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2006 Revised Code of Washington
Volume 1: Titles 1 through 17


Download as PDF VOLUME 1 Titles 1 through 17 2006 REVISED CODE OF WASHINGTON Published under the authority of chapter 1.08 RCW. Containing all laws of a general and permanent nature through the 2006 regular session, which adjourned sine die March 8, 2006. (2006 Ed.) [Preface—p i] REVISED CODE OF WASHINGTON 2006 Edition © 2006 State of Washington CERTIFICATE The 2006 edition of the Revised Code of Washington, published officially by the Statute Law Committee, is, in accordance with RCW 1.08.037, certified to comply with the current specifications of the committee. MARTY BROWN, Chair STATUTE LAW COMMITTEE PRINTED ON RECYCLABLE MATERIAL For recycling information call: Recycle Hotline 1-800-732-9253 [Preface—p ii] (2006 Ed.) PREFACE Numbering system: The number of each section of this code is made up of three parts, in sequence as follows: Number of title; number of chapter within the title; number of section within the chapter. Thus RCW 1.04.020 is Title 1, chapter 4, section 20. The section part of the number (.020) is initially made up of three digits, constitutes a true decimal, and provides a facility for numbering new sections to be inserted between old sections already consecutively numbered, merely by adding one or more digits at the end of the number. In most chapters of the code, sections have been numbered by tens (.010, .020, .030, .040, etc.), leaving nine vacant numbers between original sections so that for a time new sections may be inserted without extension of the section number beyond three digits. Citation to the Revised Code of Washington: The code should be cited as RCW; see RCW 1.04.040. An RCW title should be cited Title 7 RCW. An RCW chapter should be cited chapter 7.24 RCW. An RCW section should be cited RCW 7.24.010. Through references should be made as RCW 7.24.010 through 7.24.100. Series of sections should be cited as RCW 7.24.010, 7.24.020, and 7.24.030. History of the Revised Code of Washington; Source notes: The Revised Code of Washington was adopted by the legislature in 1950; see chapter 1.04 RCW. The original publication (1951) contained material variances from the language and organization of the session laws from which it was derived, including a variety of divisions and combinations of the session law sections. During 1953 through 1959, the Statute Law Committee, in exercise of the powers in chapter 1.08 RCW, completed a comprehensive study of these variances and, by means of a series of administrative orders or reenactment bills, restored each title of the code to reflect its session law source, but retaining the general codification scheme originally adopted. An audit trail of this activity has been preserved in the concluding segments of the source note of each section of the code so affected. The legislative source of each section is enclosed in brackets [ ] at the end of the section. Reference to session laws is abbreviated; thus "1891 c 23 § 1; 1854 p 99 § 135" refers to section 1, chapter 23, Laws of 1891 and section 135, page 99, Laws of 1854. "Prior" indicates a break in the statutory chain, usually a repeal and reenactment. "RRS or Rem. Supp.——" indicates the parallel citation in Remington's Revised Code, last published in 1949. Where, before restoration, a section of this code constituted a consolidation of two or more sections of the session laws, or of sections separately numbered in Remington's, the line of derivation is shown for each component section, with each line of derivation being set off from the others by use of small Roman numerals, "(i)," "(ii)," etc. Where, before restoration, only a part of a session law section was reflected in a particular RCW section the history note reference is followed by the word "part." "Formerly" and its correlative form "FORMER PART OF SECTION" followed by an RCW citation preserves the record of original codification. Double amendments: Some double or other multiple amendments to a section made without reference to each other are set out in the code in smaller (8-point) type. See RCW 1.12.025. Index: Titles 1 through 91 are indexed in the RCW General Index. Separate indexes are provided for the Rules of Court and the State Constitution. Sections repealed or decodified; Disposition table: Memorials to RCW sections repealed or decodified are tabulated in numerical order in the table entitled "Disposition of former RCW sections." Codification tables: To convert a session law citation to its RCW number (for Laws of 1951 or later) consult the codification tables. A similar table is included to relate the disposition in RCW of sections of Remington's Revised Statutes. Errors or omissions: (1) Where an obvious clerical error has been made in the law during the legislative process, the code reviser adds a corrected word, phrase, or punctuation mark in [brackets] for clarity. These additions do not constitute any part of the law. (2) Although considerable care has been taken in the production of this code, within the limits of available time and facilities it is inevitable that in so large a work that there will be errors, both mechanical and of judgment. When those who use this code detect errors in particular sections, a note citing the section involved and the nature of the error may be sent to: Code Reviser, Box 40551, Olympia, WA 98504-0551, so that correction may be made in a subsequent publication. (2006 Ed.) [Preface—p iii] TITLES OF THE REVISED CODE OF WASHINGTON 1 46 47 Highways and motor vehicles Motor vehicles Public highways and transportation 48 Insurance 49 50 51 Labor Labor regulations Unemployment compensation Industrial insurance 52 53 54 55 57 Local service districts Fire protection districts Port districts Public utility districts Sanitary districts Water-sewer districts 58 59 60 61 62A 63 64 65 Property rights and incidents Boundaries and plats Landlord and tenant Liens Mortgages, deeds of trust, and real estate contracts Uniform Commercial Code Personal property Real property and conveyances Recording, registration, and legal publication 66 67 68 69 70 71 71A 72 73 74 Public health, safety, and welfare Alcoholic beverage control Sports and recreation—Convention facilities Cemeteries, morgues, and human remains Food, drugs, cosmetics, and poisons Public health and safety Mental illness Developmental disabilities State institutions Veterans and veterans' affairs Public assistance 76 77 78 79 79A Public resources Forests and forest products Fish and wildlife Mines, minerals, and petroleum Public lands Public recreational lands 80 81 Public service Public utilities Transportation 82 83 84 Taxation Excise taxes Estate taxation Property taxes 85 86 87 88 89 90 91 Waters Diking and drainage Flood control Irrigation Navigation and harbor improvements Reclamation, soil conservation, and land settlement Water rights—Environment Waterways General provisions 2 3 4 5 6 7 8 9 9A 10 11 12 13 Judicial Courts of record District courts—Courts of limited jurisdiction Civil procedure Evidence Enforcement of judgments Special proceedings and actions Eminent domain Crimes and punishments Washington Criminal Code Criminal procedure Probate and trust law District courts—Civil procedure Juvenile courts and juvenile offenders 14 Aeronautics 15 16 17 Agriculture Agriculture and marketing Animals and livestock Weeds, rodents, and pests 18 19 20 21 22 Businesses and professions Businesses and professions Business regulations—Miscellaneous Commission merchants—Agricultural products Securities and investments Warehousing and deposits 23 23B 24 25 Corporations, associations, and partnerships Corporations and associations (Profit) Washington business corporation act Corporations and associations (Nonprofit) Partnerships 26 Domestic relations 27 28A 28B 28C Education Libraries, museums, and historical activities Common school provisions Higher education Vocational education 29A Elections 30 31 32 33 Financial institutions Banks and trust companies Miscellaneous loan agencies Mutual savings banks Savings and loan associations 34 35 35A 36 37 38 39 40 41 42 43 44 Government Administrative law Cities and towns Optional Municipal Code Counties Federal areas—Indians Militia and military affairs Public contracts and indebtedness Public documents, records, and publications Public employment, civil service, and pensions Public officers and agencies State government—Executive State government—Legislative [Preface—p iv] (2006 Ed.) Title 1 Chapters 1.04 1.08 1.12 1.16 1.20 1.40 1.50 1.60 Chapter 1.04 Title 1 GENERAL PROVISIONS 1.04.014 The code. Statute law committee (Code reviser). Rules of construction. General definitions. General provisions. State medal of merit. Washington gift of life award. Medal of valor. Chapter 1.04 RCW THE CODE Sections 1.04.010 1.04.013 1.04.014 1.04.015 1.04.016 1.04.020 1.04.021 1.04.030 1.04.040 Revised Code of Washington enacted. 1950 Supplement enacted. Numbering system adopted—Application. Numbering new sections, chapters—Corrections. Expansion of numbering system—Decimal factor. Code as evidence of the law—Rule of construction—Effect of amendment. Rule of construction—Prima facie law. New laws to be added to code. Code may be cited as "RCW." Code reviser: Chapter 1.08 RCW. Legislature to amend or repeal laws by reference to code numbers: RCW 1.08.050. Statute law committee: Chapter 1.08 RCW. 1.04.010 Revised Code of Washington enacted. The ninety-one titles with chapters and sections designated as the "Revised Code of Washington" and attested by the secretary of the senate and the chief clerk of the house of representatives of the legislature of the state of Washington, are hereby enacted and designated as the "Revised Code of Washington." Said code is intended to embrace in a revised, consolidated, and codified form and arrangement all the laws of the state of a general and permanent nature. [1951 c 5 § 2; 1950 ex.s. c 16 § 1.] 1.04.010 Creation of new code titles authorized, effect: RCW 1.08.015. 1.04.013 1950 Supplement enacted. The titles, chapters, and sections designated as the "1950 Supplement to the Revised Code of Washington" attested by the secretary of the senate and the chief clerk of the house of representatives of the legislature of the state of Washington, and filed with the secretary of state, are hereby enacted and consolidated into and with the Revised Code of Washington. Said 1950 supplement is intended to embrace (1) in a revised and codified form, all those laws of the state of Washington of a general and permanent nature enacted since January 1, 1949, (2) revision and recodification of certain of the titles, chapters, and sections of the revised code, and (3) application of a new system of numbering to all of the sections and certain of the chapters of the revised code, subject to RCW 1.04.014. [1951 c 5 § 1.] 1.04.013 (2006 Ed.) 1.04.014 Numbering system adopted—Application. The system of numbering employed in the 1950 supplement is hereby adopted as the general system to be followed in designating sections of the revised code. Specific numbers, in accordance with such system, are authorized to be assigned to sections of the revised code as follows: Those chapters and sections of the revised code expressly numbered or renumbered in the 1950 supplement are authorized to be numbered or renumbered to the new number respectively shown in the 1950 supplement. All other sections of the revised code now existing are authorized to be renumbered by tens according to the plan generally used in the 1950 supplement, using the number of the title, the new number, if any, of the chapter in which the section occurs, and adding the digit "0" to the terminal end of the number marking the position of the section within the chapter. The secretary of state shall, before publication of any laws enacted at this session of the legislature which are by their terms expressly amendatory of any section or sections contained in the revised code or the 1950 supplement, renumber each section and correlate the numbers of sections so renumbered, in accordance with this provision, so that each such section when published bears or is referred to by its proper new number. The secretary of state, in publishing the session laws of this thirty-second session of the legislature shall use therein the applicable new numbers of the respective sections so renumbered. [1951 c 5 § 3.] 1.04.015 1.04.015 Numbering new sections, chapters—Corrections. New chapters or sections added to the Revised Code of Washington (as supplemented or modified by the 1950 supplement), as the result of laws enacted at this or subsequent sessions of the legislature, shall be numbered in harmony with said general numbering system, and shall bear such respective numbers in accordance therewith as may be assigned by such official or agency as may be expressly authorized by law so to do. This section shall not prohibit or prevent the correction by any such official or agency, of the number of any section of the revised code found clearly to be incorrectly numbered or incorrectly correlated with other sections as to number. [1951 c 5 § 4.] 1.04.016 1.04.016 Expansion of numbering system—Decimal factor. It is the intent that under said numbering system the section factor of the section number shall be treated as a decimal figure, and where new sections must hereafter in codifying be inserted between sections then already consecutively numbered, the proper number for such new section shall be created by the insertion of an additional digit at the terminal end of the number of the section immediately preceding the location at which such new section is to be inserted. [1951 c 5 § 5.] [Title 1 RCW—page 1] 1.04.020 Title 1 RCW: General Provisions 1.04.020 Code as evidence of the law—Rule of construction—Effect of amendment. The contents of the Revised Code of Washington, after striking therefrom sections repealed or superseded by laws of the state of Washington enacted since January 1, 1949, as the revised code is supplemented or modified in the 1950 supplement, shall establish the laws of this state of a general and permanent nature in effect on January 1, 1951; except, that nothing herein shall be construed as changing the meaning of any such laws and, as a rule of construction, in case of any omissions or any inconsistency between any of the provisions of the revised code as so supplemented or modified and the laws existing immediately preceding this enactment, the previously existing laws shall control. Any section of the Revised Code of Washington (as supplemented or modified by the 1950 supplement) expressly amended by the legislature, including the entire context set out, shall, as so amended, constitute the law and the ultimate declaration of legislative intent. [1951 c 5 § 6.] 1.04.020 1.04.021 Rule of construction—Prima facie law. The contents of said code shall establish prima facie the laws of this state of a general and permanent nature in effect on January 1, 1949, but nothing herein shall be construed as changing the meaning of any such laws. In case of any omissions, or any inconsistency between any of the provisions of said code and the laws existing immediately preceding this enactment, the previously existing laws shall control. [1950 ex.s. c 16 § 2.] 1.04.021 1.04.030 New laws to be added to code. All laws of a general and permanent nature enacted after January 1, 1949, shall, from time to time, be incorporated into and become a part of said code. [1950 ex.s. c 16 § 3.] 1.04.030 1.04.040 Code may be cited as "RCW." The code may be cited by the abbreviation "RCW." [1950 ex.s. c 16 § 4.] 1.04.040 Chapter 1.08 Chapter 1.08 RCW STATUTE LAW COMMITTEE (CODE REVISER) Sections 1.08.001 1.08.003 1.08.005 1.08.007 1.08.011 1.08.013 1.08.015 1.08.016 1.08.017 1.08.020 1.08.021 1.08.023 1.08.024 1.08.025 1.08.026 1.08.027 1.08.028 1.08.031 1.08.033 1.08.037 1.08.038 Statute law committee created—Membership. Terms of members—Filling vacancies. Compensation and expenses of members. Committee meetings. Employment of code reviser and staff. Code reviser defined. Codification and revision of laws—Scope of revision. Code correction—Committee orders. May omit certain sections of acts. Code index. Historical records. Annotations. Inclusion in code of rules of court. Improvement of statutes. Examination of code—Hearings—Recommendations to legislature. Bill drafting service. Opinions as to validity or constitutionality. Information service to legislators. Reviser’s office location. Publication of code—Specifications—Certificate of compliance. Publication, sale, and distribution of code and supplements— Reprints. [Title 1 RCW—page 2] 1.08.039 1.08.0392 1.08.040 1.08.050 1.08.060 1.08.070 1.08.110 1.08.112 1.08.120 Publication, sale, and distribution of code and supplements— Contracts or other arrangements. Publication, sale, and distribution of code and supplements— Statute law committee publications account created—Purpose—Disbursements. Certification—Official code—Prima facie evidence. Amendment, repeal to include code numbers—Assignment of code numbers. Loans and exchanges of codes and supplements. Legislators to receive codes and supplements. Publication of Washington state register—Rule-making authority. Report on rule-making activity. Substitution of words designating department or secretary of transportation. Administrative procedures, reviser’s powers and duties: Chapter 34.05 RCW. Statute law committee to publish session laws: Chapter 44.20 RCW. Voter registration, copy of statewide computer tape provided to statute law committee: RCW 29A.08.760. 1.08.001 1.08.001 Statute law committee created—Membership. There is created a permanent statute law committee consisting of eleven members as follows: (1) The secretary of the senate, ex officio; (2) Two members of the senate, one from each of the two largest caucuses in the senate, appointed by the president of the senate; (3) The chief clerk of the house of representatives, ex officio; (4) Two members of the house of representatives, one from each of the two largest caucuses in the house of representatives, appointed by the speaker of the house of representatives; (5) The staff director of the nonpartisan professional committee staff of the senate, ex officio; (6) The staff director of the nonpartisan professional committee staff of the house of representatives, ex officio; (7) A lawyer admitted to practice in this state, appointed by the board of governors of the Washington State Bar Association; (8) A judge of the supreme court or a lawyer who has been admitted to practice in this state, appointed by the chief justice of the supreme court; and (9) A lawyer staff member of the governor’s office or a state agency, appointed by the governor. All such initial appointments shall be made within thirty days of May 11, 2005. [2005 c 409 § 1; 1967 ex.s. c 124 § 1; 1959 c 95 § 1; 1955 c 235 § 1; 1953 c 257 § 1; 1951 c 157 § 1.] Effective date—2005 c 409: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 11, 2005]." [2005 c 409 § 5.] Severability—1955 c 235: "If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1955 c 235 § 10.] 1.08.003 1.08.003 Terms of members—Filling vacancies. The term of the member of the committee appointed by the State Bar Association, shall be for two years. The term of any ex officio member expires upon expiration of tenure of the position by virtue of which he or she is a member of the committee. The remaining members of the committee shall serve at the pleasure of the appointing (2006 Ed.) Statute Law Committee (Code Reviser) authority. Vacancies shall be filled by designation, appointment, or ex officio in the same manner as for the member so vacating, and if a vacancy results other than from expiration of a term, the vacancy shall be filled for the unexpired term. [2005 c 409 § 2; 1959 c 95 § 2; 1955 c 235 § 2; 1953 c 257 § 2; 1951 c 157 § 2.] Effective date—2005 c 409: See note following RCW 1.08.001. 1.08.005 1.08.005 Compensation and expenses of members. For attendance at meetings of the committee or in attending to such other business of the committee as may be authorized thereby, each legislative member of the committee shall receive the per diem and travel allowances provided for such members by RCW 44.04.120, and each other member shall be compensated in accordance with RCW 43.03.240 and shall be reimbursed for travel expenses in accordance with RCW 43.03.050 and 43.03.060. [1984 c 287 § 6; 1969 c 21 § 1; 1951 c 157 § 3.] Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. 1.08.007 1.08.007 Committee meetings. The committee shall from time to time elect a chairman from among its members and adopt rules to govern its procedures. Four members of the committee shall constitute a quorum for the transaction of any business but no proceeding of the committee shall be valid unless carried by the vote of a majority of the members present. The code reviser or a member of his or her staff shall act as secretary of the committee. [2005 c 409 § 3; 1953 c 257 § 3; 1951 c 157 § 4.] Effective date—2005 c 409: See note following RCW 1.08.001. 1.08.011 1.08.011 Employment of code reviser and staff. The committee shall employ on behalf of the state and from time to time fix the compensation of a competent code reviser, with power to terminate any such employment at any time. The committee shall also employ on behalf of the state and fix the compensation of such additional legal and clerical assistance to the code reviser as may reasonably be required under this chapter. The committee shall have general supervision and control over the functions and performance of the code reviser. [2005 c 409 § 4; 1951 c 157 § 5.] Effective date—2005 c 409: See note following RCW 1.08.001. 1.08.013 1.08.013 Code reviser defined. Code reviser shall mean any lawyer or law publisher employing competent lawyers, each deemed by the committee to be qualified to compile the statutory law of the state of Washington as enacted by the legislature into a code or compilation of laws by title, chapter and section, without substantive change or alteration of purpose or intent. [1951 c 157 § 6.] 1.08.015 1.08.015 Codification and revision of laws—Scope of revision. Subject to such general policies as may be promulgated by the committee and to the general supervision of the committee, the reviser shall: (1) Codify for consolidation into the Revised Code of Washington all laws of a general and permanent nature heretofore or hereafter enacted by the legislature, and assign per(2006 Ed.) 1.08.016 manent numbers as provided by law to all new titles, chapters, and sections so added to the revised code. (2) Edit and revise such laws for such consolidation, to the extent deemed necessary or desirable by the reviser and without changing the meaning of any such law, in the following respects only: (a) Make capitalization uniform with that followed generally in the revised code. (b) Make chapter or section division and subdivision designations uniform with that followed in the revised code. (c) Substitute for the term "this act," where necessary, the term "section," "part," "code," "chapter," or "title," or reference to specific section or chapter numbers, as the case may require. (d) Substitute for reference to a section of an "act," the proper code section number reference. (e) Substitute for "as provided in the preceding section" and other phrases of similar import, the proper code section number references. (f) Substitute the proper calendar date for "effective date of this act," "date of passage of this act," and other phrases of similar import. (g) Strike out figures where merely a repetition of written words, and substitute, where deemed advisable for uniformity, written words for figures. (h) Rearrange any misplaced statutory material, incorporate any omitted statutory material as well as correct manifest errors in spelling, and manifest clerical or typographical errors, or errors by way of additions or omissions. (i) Correct manifest errors in references, by chapter or section number, to other laws. (j) Correct manifest errors or omissions in numbering or renumbering sections of the revised code. (k) Divide long sections into two or more sections, and rearrange the order of sections to conform to such logical arrangement of subject matter as may most generally be followed in the revised code when to do so will not change the meaning or effect of such sections. (l) Change the wording of section captions, if any, and provide captions to new chapters and sections. (m) Strike provisions manifestly obsolete. (3) Create new code titles, chapters, and sections of the Revised Code of Washington, or otherwise revise the title, chapter and sectional organization of the code, all as may be required from time to time, to effectuate the orderly and logical arrangement of the statutes. Such new titles, chapters, and sections, and organizational revisions, shall have the same force and effect as the ninety-one titles originally enacted and designated as the "Revised Code of Washington" pursuant to the code adoption acts codified in chapter 1.04 RCW. [1961 c 246 § 1; 1953 c 257 § 4; 1951 c 157 § 7.] 1.08.016 Code correction—Committee orders. The committee may at any time by order correct any section or portion of the code in any of the respects enumerated in RCW 1.08.015. Orders shall be numbered consecutively and signed by the committee chairman and each order shall be followed by an explanatory note reciting the reason therefor. Unless otherwise prescribed in the orders, each shall become effective ninety days after (1) signing of the order; and 1.08.016 [Title 1 RCW—page 3] 1.08.017 Title 1 RCW: General Provisions (2) filing a summary thereof with the board of governors of the State Bar Association; and (3) the filing thereof with the secretary of state. [1953 c 257 § 5.] 1.08.017 1.08.017 May omit certain sections of acts. The reviser may omit from the code all titles to acts, enacting and repealing clauses, preambles, declarations of emergency, and validity and construction sections unless, in a particular instance, it may be necessary to retain such to preserve the full intent of the law. The omission of validity or construction sections is not intended to, nor shall it change, or be considered as changing, the effect to be given thereto in construing legislation of which such validity and construction sections were a part. Any section so omitted, other than repealing, emergency, or validity provisions, shall be referred to or set forth as an annotation to the applicable sections of the act as codified. [1955 c 235 § 3; 1951 c 157 § 8.] 1.08.020 1.08.020 Code index. The reviser, as soon as practicable, shall compile and thereafter maintain a comprehensive index and from time to time prepare for publication supplements thereto. [1953 c 257 § 7.] 1.08.021 1.08.021 Historical records. The reviser shall prepare and maintain full historical records showing the enactment, amendment, revision, supersession, and repeal of the various sections of the revised code. [1951 c 157 § 9.] 1.08.023 1.08.023 Annotations. The reviser may prepare and maintain complete annotations of court decisions construing the statutes of this state. [1951 c 157 § 10.] 1.08.024 1.08.024 Inclusion in code of rules of court. The committee may provide for inclusion in the published sets of the code the rules of court promulgated by the supreme court. [1953 c 257 § 8.] 1.08.025 1.08.025 Improvement of statutes. The committee, or the reviser with the approval of the committee, shall from time to time make written recommendations to the legislature concerning deficiencies, conflicts, or obsolete provisions in, and need for reorganization or revision of, the statutes, and shall prepare for submission to the legislature, legislation for the correction or removal of such deficiencies, conflicts or obsolete provisions, or to otherwise improve the form or substance of any portion of the statute law of this state as the public interest or the administration of the subject may require. Such or similar projects may also be undertaken at the request of the legislature and legislative interim bodies and if such undertaking will not impede the other functions of the committee. All such proposed legislation shall be annotated so as to show the purposes, reasons, and history thereof. [1997 c 41 § 1; 1983 c 52 § 2; 1959 c 95 § 3; 1951 c 157 § 11.] 1.08.026 1.08.026 Examination of code—Hearings—Recommendations to legislature. The committee also shall examine the revised code and from time to time submit to the leg[Title 1 RCW—page 4] islature proposals for enactment of the several titles, chapters and sections thereof, to the end that, as expeditiously as possible, the revised code, and each part thereof, shall constitute conclusive, rather than prima facie evidence of the law. Each such proposal shall be accompanied by explanatory matter. The committee may hold hearings concerning any such proposal or concerning recommendations formulated or to be formulated in accordance with RCW 1.08.025. Proposals or recommendations approved by the committee shall be submitted to the chairman of the house or senate judiciary committee at the commencement of the next succeeding session of the legislature. [1959 c 95 § 4; 1953 c 257 § 9.] 1.08.027 Bill drafting service. The reviser shall be in charge of and shall at all times maintain an expert bill drafting service for the use and benefit of the legislature, its committees and its members. Prior to any session thereof, the legislature shall provide quarters convenient to both houses and shall augment the reviser’s staff with such additional legal and clerical assistance as may be needed to carry out the bill drafting functions of the legislature and pay the cost of such additional staff. Such services shall be confidential and nonpartisan and no member of the bill drafting staff shall advocate for or against any legislative measure. [1953 c 257 § 6; 1951 c 157 § 12.] 1.08.027 Initiative measures, review by code reviser: RCW 29A.72.020. 1.08.028 Opinions as to validity or constitutionality. Neither the reviser nor any member of his staff shall be required to furnish any written opinion as to the validity or constitutionality of any proposed legislation, which he may be requested to draft or prepare, nor shall any member of the committee be required to pass upon the constitutionality of any matter submitted to it for consideration. [1955 c 235 § 4.] 1.08.028 1.08.031 Information service to legislators. The reviser shall, to the extent reasonably feasible through available facilities and public sources of information, provide objective and factual information in writing to and upon request of any member of the legislature relative to any matter which is or may be the subject of or involved in, legislation. [1951 c 157 § 13.] 1.08.031 1.08.033 Reviser’s office location. The department of public institutions shall provide suitable office and storage space and facilities for the reviser and his staff at Olympia, at a location convenient to the legislature and to the state law library. [1955 c 235 § 5; 1951 c 157 § 15.] 1.08.033 Reviser’s note: Powers and duties of department of public institutions relating to housing of state agencies were repealed by 1955 c 195 § 3 and the director of general administration was vested with these powers and duties in 1955 c 285 § 9. 1.08.037 1.08.037 Publication of code—Specifications—Certificate of compliance. The committee shall from time to time formulate specifications relative to the format, size and style of type, paper stock, number of volumes, method and quality of binding, contents, indexing, and general scope and character of footnotes, and annotations, if any, for any publication for general use of the revised code and supplements thereto. No such publication or the contents thereof, other (2006 Ed.) Statute Law Committee (Code Reviser) than such temporary edition as may expressly be authorized by the legislature, shall be received as evidence of the laws of this state unless it complies with such specifications of the committee as are current at the time of publication, including compliance with the section numbering adopted by the reviser under supervision of the statute law committee. If a publication complies with such specifications, the committee shall furnish a certificate of such compliance, executed on behalf of the committee by its chairman, to the publisher, and the certificate shall be reproduced at the beginning of each such volume or supplement. Upon request of any publisher in good faith interested in publishing said code, the committee shall furnish a copy of its current specifications and shall not during the process of any bona fide publication of said code or supplements modify any such specifications, if such modification would result in added expense or material inconvenience to the publisher, without written concurrence therein by such publisher. [1955 c 235 § 6; 1953 c 257 § 14; 1951 c 157 § 14.] 1.08.038 1.08.038 Publication, sale, and distribution of code and supplements—Reprints. The statute law committee shall publish, sell and distribute, and arrange for the publication, sale and distribution of the Revised Code of Washington and of supplements thereto and of such other materials as in their discretion may be incorporated in or appended to the code. They may republish, reprint or authorize the republishing or reprinting of the code or any portion thereof. [1955 c 235 § 7; 1953 c 257 § 11.] 1.08.039 1.08.039 Publication, sale, and distribution of code and supplements—Contracts or other arrangements. The committee may enter into contracts or otherwise arrange for the publication and/or distribution, provided for in RCW 1.08.038, with or without calling for bids, by the public printer or by private printer, upon specifications formulated under the authority of RCW 1.08.037, and upon such basis as the committee deems to be most expeditious and economical. Any such contract may be upon such terms as the committee deems to be most advantageous to the state and to potential purchasers of such publications. The committee shall fix terms and prices for such publications. [1955 c 235 § 8; 1953 c 257 § 12.] 1.08.0392 1.08.0392 Publication, sale, and distribution of code and supplements—Statute law committee publications account created—Purpose—Disbursements. For the purposes of financing the production and sale of such of its publications as in the judgment of the statute law committee may be advantageously financed by the use of revolving fund moneys, there is hereby created, and the committee is authorized to maintain, a revolving fund to be known as statute law committee publications account. None of the provisions of RCW 43.01.050 shall be applicable to said fund nor to any moneys received or collected by the committee for publications financed by said fund. All moneys shall be paid from said account by check or voucher in such form and in such manner as shall be prescribed by the committee. [1961 c 246 § 2.] (2006 Ed.) 1.08.110 1.08.040 1.08.040 Certification—Official code—Prima facie evidence. The Revised Code of Washington containing the certificate of the temporary code committee and any supplement or addition thereto or reprint edition thereof, which contains the certificate of the statute law committee referred to in RCW 1.08.037, shall be deemed official, and shall be prima facie evidence of the laws contained therein. [1955 c 5 § 2; 1953 c 257 § 15; 1951 c 157 § 16; 1941 c 149 § 3; Rem. Supp. 1941 § 152-38.] 1.08.050 1.08.050 Amendment, repeal to include code numbers—Assignment of code numbers. The legislature in amending or repealing laws shall include in such act references to the code numbers of the law affected. The reviser shall assign code numbers to such permanent and general laws as are hereafter enacted at any legislative session. [1959 c 95 § 5; 1955 c 5 § 3; 1951 c 157 § 17. Prior: (i) 1941 c 149 § 4; Rem. Supp. 1941 § 152-39. (ii) 1947 c 282 § 1; Rem. Supp. 1947 § 152-40.] 1.08.060 1.08.060 Loans and exchanges of codes and supplements. The committee may loan sets of the code and materials supplemental thereto (1) for the use of senate committees, a quantity as required by advice from the secretary of the senate, not to exceed twenty-five sets; (2) for use of the house committees, a quantity as required by advice from the chief clerk of the house, not to exceed thirty-five sets; (3) to the state law library for library use; (4) for use of the reviser’s office, as required; (5) for use of recognized news reporting services maintaining permanent offices at the capitol, three sets. The committee may exchange copies of RCW for codes or compilations of other states. [1982 1st ex.s. c 32 § 6; 1953 c 257 § 10.] 1.08.070 1.08.070 Legislators to receive codes and supplements. Each member of the legislature, who has not received a set of the Revised Code of Washington under the provisions of section 9, chapter 155, Laws of 1951, or section 16, chapter 257, Laws of 1953, or this section, shall be entitled to receive one set of the code without charge. All persons receiving codes under the provisions of this section or the sections above referred to shall be entitled to receive supplements to the code free of charge, during their term of office as a member or officer of the legislature: PROVIDED, That legislative appropriation has been made for the purpose of supplying such codes and supplements. [1955 c 235 § 9.] 1.08.110 1.08.110 Publication of Washington state register— Rule-making authority. The statute law committee, in addition to the other responsibilities enumerated in this chapter, shall cause to be published the Washington State Register as created in RCW 34.08.020. The statute law committee and/or the code reviser may adopt such rules as are necessary for the effective operation of such service. [1977 ex.s. c 240 § 2.] Effective date—Severability—1977 ex.s. c 240: See RCW 34.08.905 and 34.08.910. [Title 1 RCW—page 5] 1.08.112 Title 1 RCW: General Provisions 1.08.112 1.08.112 Report on rule-making activity. (1) The code reviser shall compile and publish on a quarterly basis a report on state agency rule-making activity. The report shall summarize the following information by agency and by type of activity for new, amended, and repealed rules adopted by state agencies pursuant to chapter 34.05 RCW: (a) The number adopted, proposed for adoption, and withdrawn; (b) The number adopted as emergency rules; (c) The number adopted in order to comply with federal statute, with federal rules or standards, and with recently enacted state statutes; (d) The number adopted at the request of a nongovernmental entity; (e) The number adopted on an agency’s own initiative; (f) The number adopted in order to clarify, streamline, or reform agency procedures; (g) The number of petitions for review of rules received by agencies; (h) The number of rules appealed to superior court; and (i) The number adopted using negotiated rule making, pilot rule making, or other alternative rule-making mechanisms. (2) For purposes of the report required by this section, each Washington State Register filing section shall be considered as a separate rule. The code reviser may adopt rules necessary to implement this section. To the maximum extent practicable, the code reviser shall use information supplied on forms provided by state agencies pursuant to chapter 34.05 RCW to prepare the report required by this section. [1995 c 403 § 704.] Findings—Short title—Intent—1995 c 403: See note following RCW 34.05.328. Part headings not law—Severability—1995 c 403: See RCW 43.05.903 and 43.05.904. 1.08.120 1.08.120 Substitution of words designating department or secretary of transportation. For purposes of harmonizing and clarifying the provisions of the statute sections published in the revised code of Washington, the code reviser may substitute words designating the department of transportation or the secretary of transportation, as appropriate, whenever necessary to effect the changes in meaning provided for in RCW 47.68.015 and 47.04.015 or any other act of the 1977 legislature. [1977 ex.s. c 151 § 24.] Federal requirements—Severability—1977 ex.s. c 151: See RCW 47.98.070 and 47.98.080. Chapter 1.12 Chapter 1.12 RCW RULES OF CONSTRUCTION Sections 1.12.010 1.12.020 1.12.025 1.12.026 1.12.028 1.12.040 1.12.050 1.12.060 1.12.070 Code to be liberally construed. Statutes continued, when. Construction of multiple amendments to statutes—Publication—Decodification of repealed sections. Construction of statutes—Retrospective application. Construction of statutes—Internal references as including amendments thereto. Computation of time. Number and gender. Certified mail—Use. Reports, claims, tax returns, remittances, etc.—Filing. [Title 1 RCW—page 6] 1.12.010 1.12.010 Code to be liberally construed. The provisions of this code shall be liberally construed, and shall not be limited by any rule of strict construction. [1891 c 23 § 1, part; Code 1881 §§ 758, 1686; 1877 p 153 § 763; 1854 p 221 § 504; RRS § 144.] Reviser’s note: (1) This section is a part of 1891 c 23 § 1. The introductory phrase of that section provides: "The following provisions relative to the construction of statutes shall be rules of construction and shall constitute a part of the code of procedure of this state:" (2) This section was originally section 504 of the 1854 statute entitled "An act to regulate the practice and proceedings in civil actions." Section 504 of the 1854 statute reads as follows: "The provisions of this act shall be liberally construed and shall not be limited by any rule of strict construction." Identical language appears in Code of 1881 § 1686 relating to probate, and again in Code of 1881 § 758, being part of "An act to regulate the practice and proceedings in civil actions" except that in the latter instance the 1881 codifier changed the words "this act" to read "this code." 1.12.020 1.12.020 Statutes continued, when. The provisions of a statute, so far as they are substantially the same as those of a statute existing at the time of their enactment, must be construed as continuations thereof. [1891 c 23 § 1, part; Code 1881 §§ 761, 1292, 1681; RRS § 145.] Reviser’s note: This section is a part of 1891 c 23 § 1. The introductory phrase of that section provides: "The following provisions relative to the construction of statutes shall be rules of construction and shall constitute a part of the code of procedure of this state:". Laws in force continued: State Constitution Art. 27 § 2. 1.12.025 1.12.025 Construction of multiple amendments to statutes—Publication—Decodification of repealed sections. (1) If at any session of the legislature there are enacted two or more acts amending the same section of the session laws or of the official code, each amendment without reference to the others, each act shall be given effect to the extent that the amendments do not conflict in purpose, otherwise the act last filed in the office of the secretary of state in point of time, shall control: PROVIDED, That if one or more special sessions of the same legislature shall follow any regular session, this rule of construction shall apply to the laws enacted at either, both, any, or all of such sessions. (2) If a section of the session laws or of the official code is amended without reference to another amendment of the same section, the code reviser, in consultation with the statute law committee, may publish the section in the official code with all amendments incorporated therein. The publication of the section under this subsection shall occur only if the statute law committee determines that the amendments do not conflict in purpose or effect. Sections so published constitute prima facie evidence of the law but shall not be construed as changing the meaning of any such law. The code reviser, in consultation with the statute law committee, may decodify a section of the official code which was repealed without reference to an amendment to the section. The decodification of the section shall occur only if the statute law committee determines that the decodification does not conflict with the purpose of the amendment. Any decision of the code reviser, in consultation with the statute law committee, to incorporate amendments in the same section or to decodify a section which was both repealed and amended in the same session shall be clearly noted in the revised code of Washington. (2006 Ed.) General Definitions 1.16.020 1.12.050 Number and gender. Words importing the singular number may also be applied to the plural of persons and things; words importing the plural may be applied to the singular; and words importing the masculine gender may be extended to females also. [1891 c 23 § 1, part; Code 1881 §§ 756, 965, 1920; 1877 p 153 § 761; 1857 p 45 § 1; 1854 p 99 § 135 and p 221 § 502; RRS § 148.] or other appropriate wrapper containing it; or (b) mailed via United States mail or sent by a private third-party delivery service but not received by the state or political subdivision, or where received and the cancellation mark or shipping date is illegible, erroneous, or omitted, shall be deemed filed and received on the date it was mailed if the sender establishes by competent evidence that the report, claim, tax return, statement, remittance, or other document was deposited with a private third-party delivery service or in the United States mail on or before the date due for filing; and in cases of such nonreceipt of a report, tax return, statement, remittance, or other document required by law to be filed, the sender files with the state or political subdivision a duplicate within ten days after written notification is given to the sender by the state or political subdivision of its nonreceipt of such report, tax return, statement, remittance, or other document. (2)(a) If any report, claim, tax return, statement, remittance, or other document is sent by United States registered mail, certified mail or certificate of mailing, a record authenticated by the United States post office of such registration, certification or certificate shall be considered competent evidence that the report, claim, tax return, statement, remittance or other document was delivered to the addressee, and the date of registration, certification or certificate shall be deemed the postmarked date. (b) If any report, claim, tax return, statement, remittance, or other document is sent via private third-party delivery service, a record authenticated by the private third-party delivery service shall be considered competent evidence that the report, claim, tax return, statement, remittance, or other document was delivered to the addressee, and the date of deposit with the private third-party delivery service shall be deemed the shipping date. (3) If the date for filing any report, claim, tax return, statement, remittance, or other document falls upon a Saturday, Sunday or legal holiday, the filing shall be considered timely if performed on the next business day. [2005 c 502 § 1; 1967 c 222 § 1.] Reviser’s note: This section is a part of 1891 c 23 § 1. The introductory phrase of that section provides: "The following provisions relative to the construction of statutes shall be rules of construction and shall constitute a part of the code of procedure of this state:". Effective date—2005 c 502: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 17, 2005]." [2005 c 502 § 11.] If any conflict arises in the interpretation of a section published or decodified under this subsection, the session law sections shall control. [1983 c 244 § 1; 1980 c 87 § 2; 1974 ex.s. c 87 § 1; 1969 ex.s. c 240 § 1; 1955 c 162 § 1.] 1.12.026 1.12.026 Construction of statutes—Retrospective application. The provisions of RCW 1.12.025 as now or hereafter amended shall apply retrospectively as well as prospectively. [1969 ex.s. c 240 § 2.] 1.12.028 1.12.028 Construction of statutes—Internal references as including amendments thereto. If a statute refers to another statute of this state, the reference includes any amendments to the referenced statute unless a contrary intent is clearly expressed. [1982 c 16 § 1.] 1.12.040 1.12.040 Computation of time. The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last, unless the last day is a holiday, Saturday, or Sunday, and then it is also excluded. [1997 c 125 § 1; 1887 c 20 § 1; Code 1881 § 743; 1854 p 219 § 486; RRS § 150.] Rules of court: CR 6(a), RAP 18.6. Cf. RAP 18.22. Reviser’s note: This section has been enacted at various times as part of "An act to regulate the practice and proceedings in civil actions." However, Allen v. Morris, 87 Wash. 268, 274, 151 Pac. 827 (1915); State ex rel. Evans v. Superior Court, 168 Wash. 176, 179, 11 P. (2d) 229 (1932); State v. Levesque, 5 Wn. (2d) 631, 635, 106 P. (2d) 309 (1940); and State ex rel. Early v. Batchelor, 15 Wn. (2d) 149, 130 P. (2d) 72 (1942), treat this section as being of general application. 1.12.050 Probate, number and gender: RCW 11.02.005. Statutes in gender-neutral terms: RCW 44.04.210. Chapter 1.16 Wrongful death, number and gender: RCW 4.20.005. 1.12.060 1.12.060 Certified mail—Use. Whenever the use of "registered" mail is authorized by this code, "certified" mail, with return receipt requested, may be used. [1961 c 204 § 1.] 1.12.070 1.12.070 Reports, claims, tax returns, remittances, etc.—Filing. Except as otherwise specifically provided by law hereafter: (1) Any report, claim, tax return, statement or other document required to be filed with, or any payment made to the state or to any political subdivision thereof, which is (a) transmitted through the United States mail or private thirdparty delivery service, shall be deemed filed and received by the state or political subdivision on the date shown by the post office or private third-party delivery service cancellation mark or shipping date stamped or affixed upon the envelope (2006 Ed.) Chapter 1.16 RCW GENERAL DEFINITIONS Sections 1.16.020 1.16.030 1.16.040 1.16.050 1.16.060 1.16.065 1.16.080 1.16.090 "Fiscal biennium." "Fiscal year"—School districts and other taxing districts. "Folio." "Legal holidays and legislatively recognized days." "Month" or "months." "Officer." "Person"—Construction of "association," "unincorporated association," and "person, firm, or corporation" to include a limited liability company. Legislative declaration for civil liberties day of remembrance. 1.16.020 1.16.020 "Fiscal biennium." The fiscal biennium of the state shall commence on the first day of July in each oddnumbered year and end on the thirtieth day of June of the next succeeding odd-numbered year. The fiscal biennium of those cities and towns which utilize a biennial budget shall com[Title 1 RCW—page 7] 1.16.030 Title 1 RCW: General Provisions mence on the first day of January in each odd-numbered year and end on the thirty-first day of December of the next succeeding even-numbered year. [1985 c 175 § 2; 1953 c 184 § 2; 1923 c 86 § 1; RRS § 10927.] Biennial reports: RCW 43.01.035. Municipal biennial budgets: Chapters 35.34 and 35A.34 RCW. 1.16.030 1.16.030 "Fiscal year"—School districts and other taxing districts. August 31st shall end the fiscal year of school districts and December 31st of all other taxing districts. [1975-’76 2nd ex.s. c 118 § 21; 1909 c 76 § 13; RRS § 9963.] Severability—1975-’76 2nd ex.s. c 118: See note following RCW 28A.505.010. 1.16.040 1.16.040 "Folio." The term "folio" when used as a measure for computing fees or compensation, shall be construed to mean one hundred words, counting every two figures necessarily used as a word. Any portion of a folio, when in the whole draft or paper there should not be a complete folio, and when there shall be an excess over the last folio exceeding a quarter, it shall be computed as a folio. The filing of a paper shall be construed to include the certificate of the same. [Code 1881 § 2093; 1869 p 373 § 15; RRS § 500.] 1.16.050 1.16.050 "Legal holidays and legislatively recognized days." The following are legal holidays: Sunday; the first day of January, commonly called New Year’s Day; the third Monday of January, being celebrated as the anniversary of the birth of Martin Luther King, Jr.; the third Monday of February to be known as Presidents’ Day and to be celebrated as the anniversary of the births of Abraham Lincoln and George Washington; the last Monday of May, commonly known as Memorial Day; the fourth day of July, being the anniversary of the Declaration of Independence; the first Monday in September, to be known as Labor Day; the eleventh day of November, to be known as Veterans’ Day; the fourth Thursday in November, to be known as Thanksgiving Day; the day immediately following Thanksgiving Day; and the twentyfifth day of December, commonly called Christmas Day. Employees of the state and its political subdivisions, except employees of school districts and except those nonclassified employees of institutions of higher education who hold appointments or are employed under contracts to perform services for periods of less than twelve consecutive months, shall be entitled to one paid holiday per calendar year in addition to those specified in this section. Each employee of the state or its political subdivisions may select the day on which the employee desires to take the additional holiday provided for herein after consultation with the employer pursuant to guidelines to be promulgated by rule of the appropriate personnel authority, or in the case of local government by ordinance or resolution of the legislative authority. If any of the above specified state legal holidays are also federal legal holidays but observed on different dates, only the state legal holidays shall be recognized as a paid legal holiday for employees of the state and its political subdivisions except that for port districts and the law enforcement and public transit employees of municipal corporations, [Title 1 RCW—page 8] either the federal or the state legal holiday, but in no case both, may be recognized as a paid legal holiday for employees. Whenever any legal holiday, other than Sunday, falls upon a Sunday, the following Monday shall be the legal holiday. Whenever any legal holiday falls upon a Saturday, the preceding Friday shall be the legal holiday. Nothing in this section shall be construed to have the effect of adding or deleting the number of paid holidays provided for in an agreement between employees and employers of political subdivisions of the state or as established by ordinance or resolution of the local government legislative authority. The legislature declares that the twelfth day of October shall be recognized as Columbus Day but shall not be considered a legal holiday for any purposes. The legislature declares that the ninth day of April shall be recognized as former prisoner of war recognition day but shall not be considered a legal holiday for any purposes. The legislature declares that the twenty-sixth day of January shall be recognized as Washington army and air national guard day but shall not be considered a legal holiday for any purposes. The legislature declares that the seventh day of August shall be recognized as purple heart recipient recognition day but shall not be considered a legal holiday for any purposes. The legislature declares that the second Sunday in October be recognized as Washington state children’s day but shall not be considered a legal holiday for any purposes. The legislature declares that the sixteenth day of April shall be recognized as Mother Joseph day and the fourth day of September as Marcus Whitman day, but neither shall be considered legal holidays for any purpose. The legislature declares that the seventh day of December be recognized as Pearl Harbor remembrance day but shall not be considered a legal holiday for any purpose. The legislature declares that the nineteenth day of February be recognized as civil liberties day of remembrance but shall not be considered a legal holiday for any purpose. [2003 c 68 § 2; 2000 c 60 § 1; 1999 c 26 § 1; 1993 c 129 § 2; 1991 sp.s. c 20 § 1; 1991 c 57 § 2; 1989 c 128 § 1; 1985 c 189 § 1; 1979 c 77 § 1; 1977 ex.s. c 111 § 1; 1975-’76 2nd ex.s. c 24 § 1; 1975 1st ex.s. c 194 § 1; 1973 2nd ex.s. c 1 § 1; 1969 c 11 § 1; 1955 c 20 § 1; 1927 c 51 § 1; RRS § 61. Prior: 1895 c 3 § 1; 1891 c 41 § 1; 1888 p 107 § 1.] Finding—1993 c 129: "The legislature finds that Washington’s children are one of our most valuable assets, representing hope for the future. Children today are at risk for many things, including drug and alcohol abuse, child abuse, suicide, peer pressure, and the economic and educational challenges of a changing world. It is increasingly important for families, schools, health professionals, caregivers, and workers at state agencies charged with the protection and help of children to listen to them, to support and encourage them, and to help them build their dreams for the future. To increase recognition of children’s issues, a national children’s day is celebrated in October, with ceremonies and activities devoted to children. Washington state focuses special attention on its children by establishing a Washington state children’s day." [1993 c 129 § 1.] Finding—Declaration—1991 c 57: "The legislature finds that the Washington army and air national guard comprise almost nine thousand dedicated men and women who serve the state and nation on a voluntary basis. The legislature also finds that the state of Washington benefits from that dedication by immediate access to well-prepared resources in time of natural disasters and public emergency. The national guard has consistently and fre(2006 Ed.) General Provisions quently responded to state and local emergencies with people and equipment to provide enforcement assistance, medical services, and overall support to emergency management services. The legislature further declares that an annual day of commemoration should be observed in honor of the achievements, sacrifices, and dedication of the men and women of the Washington army and air national guard." [1991 c 57 § 1.] Court business on legal holidays: RCW 2.28.100, 2.28.110. School holidays: RCW 28A.150.050. 1.16.060 1.16.060 "Month" or "months." The word "month" or "months," whenever the same occurs in the statutes of this state now in force, or in statutes hereinafter enacted, or in any contract made in this state, shall be taken and construed to mean "calendar months." [1891 c 23 § 1, part; Code 1881 § 759; 1877 p 333 § 1; RRS § 149.] Reviser’s note: This section is a part of 1891 c 23 § 1. The introductory phrase of that section provides: "The following provisions relative to the construction of statutes shall be rules of construction and shall constitute a part of the code of procedure of this state:". United States citizens by birth; that Japanese Americans lost their homes and livelihoods and suffered physical and psychological damage; and that, despite widespread hostility and discrimination, Japanese Americans served with distinction in the United States military effort as members of the Military Intelligence Service and in the segregated 100th Infantry Battalion and the 442nd Regimental Combat Team. The legislature further recognizes that in the name of "military necessity," Japanese Americans were deprived of their fundamental constitutional rights and civil liberties; and that the Japanese American experience during World War II tragically illuminates the fragile nature of our most cherished national beliefs and values. The legislature declares that an annual day of recognition be observed in remembrance of Japanese Americans interned during World War II as a reminder that, regardless of the provocation, individual rights and freedoms must never be denied. [2003 c 68 § 1.] 1.16.065 1.16.065 "Officer." Whenever any term indicating an officer is used it shall be construed, when required, to mean any person authorized by law to discharge the duties of such officer. [Code 1881 § 755; 1854 p 221 § 501; RRS § 147.] Reviser’s note: This section was formerly a part of RCW 42.04.010. It first appeared in "An Act to regulate the practice and proceedings in civil actions" (1854 p 221 § 501), as part of chapter LIV, "Construction". It also appeared as Code of 1881 § 755 in chapter LXVII, "Of Construction", as part of the code of civil procedure. Criminal code, officer defined: RCW 9A.04.110. 1.16.080 1.16.080 "Person"—Construction of "association," "unincorporated association," and "person, firm, or corporation" to include a limited liability company. (1) The term "person" may be construed to include the United States, this state, or any state or territory, or any public or private corporation or limited liability company, as well as an individual. (2) Unless the context clearly indicates otherwise, the terms "association," "unincorporated association," and "person, firm, or corporation" or substantially identical terms shall, without limiting the application of any term to any other type of legal entity, be construed to include a limited liability company. [1996 c 231 § 1; 1891 c 23 § 1, part; Code 1881 § 964; 1857 p 46 § 1; 1854 p 99 § 134; RRS § 146.] Reviser’s note: This section is a part of 1891 c 23 § 1. The introductory phrase of that section provides: "The following provisions relative to the construction of statutes shall be rules of construction and shall constitute a part of the code of procedure of this state:". Criminal proceedings, person defined: RCW 9A.04.110. Declaratory judgments, person defined: RCW 7.24.130. Eminent domain by cities, person defined: RCW 8.12.020. Notice to alien property custodian, person defined: RCW 4.28.340. Wrongful death, person defined: RCW 4.20.005. 1.16.090 1.16.090 Legislative declaration for civil liberties day of remembrance. The legislature recognizes that on February 19, 1942, the President of the United States issued Executive Order 9066 which authorized military rule over civilian law and lives; that Executive Order 9066 led to the World War II evacuation and internment of more than one hundred twenty thousand Japanese Americans, most of whom were (2006 Ed.) 1.20.010 Chapter 1.20 Chapter 1.20 RCW GENERAL PROVISIONS Sections 1.20.010 1.20.015 1.20.017 1.20.020 1.20.025 1.20.030 1.20.035 1.20.037 1.20.040 1.20.042 1.20.045 1.20.047 1.20.050 1.20.051 1.20.060 1.20.070 1.20.071 1.20.073 1.20.075 1.20.080 1.20.090 1.20.100 1.20.110 1.20.120 1.20.130 State flag. Display of national and state flags. Display of national league of families’ POW/MIA flag. State tree. State grass. State flower. State fruit. State marine mammal. State bird. State fossil. State fish. State insect. Standard time—Daylight saving time. Daylight saving time. Arbor day. State song. State song—Proceeds from sale. State folk song. State dance. State seal. State gem. Diverse cultures and languages encouraged—State policy. State tartan. State arboretum. Preferred terminology in government documents. Design of state seal: State Constitution Art. 18 § 1. State boundaries: State Constitution Art. 24 § 1 (Amendment 33). 1.20.010 1.20.010 State flag. The official flag of the state of Washington shall be of dark green silk or bunting and shall bear in its center a reproduction of the seal of the state of Washington embroidered, printed, painted or stamped thereon. The edges of the flag may, or may not, be fringed. If a fringe is used the same shall be of gold or yellow color of the same shade as the seal. The dimensions of the flag may vary. The secretary of state is authorized to provide the state flag to units of the armed forces, without charge therefor, as in his discretion he deems entitled thereto. The secretary of state is further authorized to sell the state flag to any citizen at a price to be determined by the secretary of state. [1967 ex.s. c 65 § 2; 1925 ex.s. c 85 § 1; 1923 c 174 § 1; RRS § 10964-1, RRS vol. 11, p. 399.] [Title 1 RCW—page 9] 1.20.015 Title 1 RCW: General Provisions Reviser’s note: Same RRS number was also used for a section dealing with a different subject on page 110 of RRS vol. 11, pocket part. 1.20.040 State bird. The willow goldfinch is hereby designated as the official bird of the state of Washington. [1951 c 249 § 1.] 1.20.040 1.20.015 1.20.015 Display of national and state flags. The flag of the United States and the flag of the state shall be prominently installed, displayed and maintained in schools, court rooms and state buildings. [1955 c 88 § 1.] Crimes relating to flags: Chapter 9.86 RCW. Flag exercises in schools: RCW 28A.230.140. 1.20.017 1.20.017 Display of national league of families’ POW/MIA flag. (1) Each public entity shall display the national league of families’ POW/MIA flag along with the flag of the United States and the flag of the state upon or near the principal building of the public entity on the following days: (a) Armed Forces Day on the third Saturday in May; (b) Memorial Day on the last Monday in May; (c) Flag Day on June 14; (d) Independence Day on July 4; (e) National POW/MIA Recognition Day; and (f) Veterans’ Day on November 11. If the designated day falls on a Saturday or Sunday, then the POW/MIA flag will be displayed on the preceding Friday. (2) The governor’s veterans affairs advisory committee shall provide information to public entities regarding the purchase and display of the POW/MIA flag upon request. (3) As used in this section, "public entity" means every state agency, including each institution of higher education, and every county, city, and town. [2002 c 293 § 1.] 1.20.020 1.20.020 State tree. That certain evergreen tree known and described as the western hemlock (Tsuga heterophylla) is hereby designated as the official tree of the state of Washington. [1947 c 191 § 1; Rem. Supp. 1947 § 10964-120.] 1.20.025 1.20.025 State grass. Agropyron spicatum, the species of natural grass commonly called "bluebunch wheatgrass," is hereby designated as the official grass of the state of Washington. [1989 c 354 § 62.] Severability—1989 c 354: See note following RCW 15.36.012. 1.20.030 1.20.030 State flower. The native species, Rhododendron macrophyllum, is hereby designated as the official flower of the state of Washington. [1959 c 29 § 1; 1949 c 18 § 1; Rem. Supp. 1949 § 10964-200.] 1.20.035 1.20.035 State fruit. The official fruit of the state of Washington is the apple. [1989 c 354 § 63.] 1.20.042 State fossil. The Columbian mammoth of North America, Mammuthus columbi, is hereby designated as the official fossil of the state of Washington. [1998 c 129 § 2.] 1.20.042 Legislative recognition—1998 c 129: "The legislature recognizes that the large, hairy prehistoric elephants of the extinct genus Mammuthus roamed the North American continent, including the Pacific Northwest, during the Pleistocene epoch (ice ages)." [1998 c 129 § 1.] 1.20.045 State fish. The species of trout commonly called "steelhead trout" (Salmo gairdnerii) is hereby designated as the official fish of the state of Washington. [1969 c 36 § 1.] 1.20.045 1.20.047 State insect. The common green darner dragonfly, Anax junius drury, is hereby designated as the official insect of the state of Washington. [1997 c 6 § 2.] 1.20.047 Finding—1997 c 6: "The legislature finds that the common green darner dragonfly, Anax junius drury, can be found throughout Washington and is easily recognizable by its bright green head and thorax. The legislature further recognizes that the common green darner dragonfly, also known as the "mosquito hawk," is a beneficial contributor to our ecosystem." [1997 c 6 § 1.] 1.20.050 Standard time—Daylight saving time. No county, city or other political subdivision of this state shall adopt any provision for the observance of daylight saving time, or any time other than standard, except pursuant to a gubernatorial proclamation declaring an emergency during a period of national war and authorizing such adoption, or unless other than standard time is established on a national basis: PROVIDED, That this section shall not apply to orders made by federal authorities in a local area entirely under federal control. [1953 c 2 § 1 (Initiative Measure No. 181, approved November 4, 1952).] 1.20.050 1.20.051 Daylight saving time. At two o’clock antemeridian Pacific Standard Time of the *last Sunday in April each year the time of the state of Washington shall be advanced one hour, and at two o’clock antemeridian Pacific Standard Time of the last Sunday in October in each year the time of the state of Washington shall, by the retarding of one hour, be returned to Pacific Standard Time. [1963 c 14 § 1; 1961 c 3 § 1 (Initiative Measure No. 210, approved November 8, 1960).] 1.20.051 *Reviser’s note: Federal law sets the day to advance time at the first Sunday in April (100 Stat. 764; 15 U.S.C. Sec. 260a). Severability—1989 c 354: See note following RCW 15.36.012. 1.20.060 Arbor day. The second Wednesday in April of each year is designated as Arbor day. [1957 c 220 § 1.] 1.20.060 1.20.037 1.20.037 State marine mammal. The orca, Orcinus orca, is hereby designated as the official marine mammal of the state of Washington. [2005 c 51 § 2.] Finding—Intent—2005 c 51: "The legislature finds that many people visit Washington state to watch orcas, the orca is a significant symbol for the Native American culture, there are pods of orcas that migrate annually through Puget Sound, and the orca is easily recognizable because of its distinct markings. The legislature intends to promote orca awareness and to encourage protection of the natural marine habitat by designating the orca as the official marine mammal of the state of Washington." [2005 c 51 § 1.] [Title 1 RCW—page 10] 1.20.070 State song. The song, music and lyrics, "Washington My Home", composed by Helen Davis, is hereby designated as the official song of the state of Washington. [1959 c 281 § 1.] 1.20.070 1.20.071 State song—Proceeds from sale. All proceeds from the sale of the official song of the state as desig1.20.071 (2006 Ed.) General Provisions nated in RCW 1.20.070 shall be placed in the general fund. [1973 1st ex.s. c 59 § 1; 1959 c 281 § 2.] Effective date—1973 1st ex.s. c 59: See note following RCW 43.79.420. 1.20.073 1.20.073 State folk song. The legislature recognizes that winter recreational activities are part of the folk tradition of the state of Washington. Winter recreational activities serve to turn the darkness of a northwest winter into the dawn of renewed vitality. As the winter snows dissolve into the torrents of spring, the Columbia river is nourished. The Columbia river is the pride of the northwest and the unifying geographic element of the state. In order to celebrate the river which ties the winter recreation playground of snowcapped mountains and the Yakima, Snake, and the Klickitat rivers to the ocean so blue, the legislature declares that the official state folk song is "Roll On Columbia, Roll On," composed by Woody Guthrie. [1987 c 526 § 4.] 1.20.075 1.20.075 State dance. The square dance is designated as the official dance of the state of Washington. [1979 ex.s. c 10 § 1.] 1.20.080 1.20.080 State seal. The seal of the state of Washington shall be, a seal encircled with the words: "The Seal of the State of Washington," with the vignette of General George Washington as the central figure, and beneath the vignette the figures "1889" and shall be composed as appears in the illustration below: 1.20.130 (2) It is the welcomed responsibility and opportunity of this state to respect and facilitate the efforts of all cultural, ethnic, and linguistic segments of the population to become full participants in Washington communities; (3) This state’s economic well-being depends heavily on foreign trade and international exchange and more than one out of six jobs is directly linked to foreign trade and international exchange; (4) If Washington is to prosper in foreign trade and international exchange, it must have citizens that are multilingual and multicultural; (5) While recognizing the value of a multilingual background, the state also encourages all citizens to become proficient in English to facilitate full participation of all groups into society and to promote cross-communication between multilingual groups; and (6) The multilingual nature of communication that currently exists in this state should be promoted to build trust and understanding among all of its citizens. Therefore, it shall be the policy of the state of Washington to welcome and encourage the presence of diverse cultures and the use of diverse languages in business, government, and private affairs in this state. [1989 c 236 § 1.] Construction—1989 c 236: "Nothing in section 1 of this act creates any right or cause of action or adds to any existing right or cause of action nor may it be relied upon to compel the establishment of any program or special entitlement." [1989 c 236 § 2.] 1.20.110 1.20.110 State tartan. The Washington state tartan is hereby designated. The tartan shall have a pattern of colors, called a sett, that is made up of a green background with stripes of blue, white, yellow, red, and black. The secretary of state shall register the tartan with the Scottish Tartan Society, Comrie, Perthshire, Scotland. [1991 c 62 § 1.] 1.20.120 1.20.120 State arboretum. The Washington park arboretum is hereby designated as an official arboretum of the state of Washington. [1995 c 82 § 2.] [1967 ex.s. c 65 § 1.] 1.20.090 1.20.090 State gem. Petrified wood is hereby designated as the official gem of the state of Washington. [1975 c 8 § 1.] Findings—1995 c 82: "The legislature finds that the arboreta in this state act as living museums devoted to the display and conservation of woody plant species from around the world that can grow in the Pacific Northwest. Arboreta enhance public appreciation for the aesthetic diversity of temperate woody plants; conserve both natural and cultivated woody plant taxa to preserve their diversity for future appreciation; educate the public and students concerning urban landscape use and the natural biology of temperate woody plants; and cooperate with similar institutions in this region and around the world in achieving these common goals. The legislature further finds that arboreta are of increasing importance as world biodiversity declines. The Washington park arboretum is a two hundred acre living museum that is managed cooperatively by the city of Seattle and the University of Washington. It is devoted to the display and conservation of collections of plants from around the world which can grow in the Pacific Northwest. These plants are used for education, research, conservation, and a sense of public pleasure. The Washington park arboretum, the oldest center for botanical and gardening learning in the Pacific Northwest, is recognized as one of the two foremost collections of woody plants in the United States of America and enjoys an excellent international reputation. The legislature finds that it is fitting and appropriate to recognize the importance of the overall mission of the Washington park arboretum." [1995 c 82 § 1.] 1.20.100 1.20.100 Diverse cultures and languages encouraged—State policy. The legislature finds that: (1) Diverse ethnic and linguistic communities have contributed to the social and economic prosperity of Washington state; (2006 Ed.) 1.20.130 1.20.130 Preferred terminology in government documents. (1) All state and local government statutes, codes, rules, regulations, and other official documents enacted after July 1, 2002, are required to use the term "Asian" when refer[Title 1 RCW—page 11] Chapter 1.40 Title 1 RCW: General Provisions ring to persons of Asian descent. The use of the term "Oriental" is prohibited. (2) The legislature urges all state and local entities to review their statutes, codes, rules, regulations, and other official documents and revise them to omit the use of the term "Oriental" when referring to persons of Asian descent. [2002 c 307 § 2.] Finding—2002 c 307: "The legislature finds that the use of the term "Oriental" when used to refer to persons of Asian descent is outdated and pejorative. There is a need to make clear that the term "Asian" is preferred terminology, and that this more modern and nonpejorative term must be used to replace outdated terminology." [2002 c 307 § 1.] Effective date—2002 c 307: "This act takes effect July 1, 2002." [2002 c 307 § 4.] Chapter 1.40 Chapter 1.40 RCW STATE MEDAL OF MERIT 1.40.050 1.40.050 Certain persons prohibited from receiving award. The state medal of merit shall not be awarded to any elected official while in office or to any candidate for an elected office. [1986 c 92 § 5.] 1.40.060 1.40.060 Appearance of medal—Inscription. The decoration of the state medal of merit shall be of bronze and shall consist of the seal of the state of Washington, surrounded by a raised laurel wreath and suspended from a ring attached by a dark green ribbon. The reverse of the decoration within the raised laurel wreath shall be inscribed with the words: "For exceptionally meritorious conduct in performing outstanding services to the people and state of Washington." [1986 c 92 § 6.] Chapter 1.50 Sections 1.40.010 1.40.020 1.40.030 1.40.040 1.40.050 1.40.060 Chapter 1.50 RCW WASHINGTON GIFT OF LIFE AWARD (Formerly: Washington gift of life medal) State medal of merit established. Nominating committee created—Composition—Meeting— Rules. Delegation of authority to make award. Posthumous award. Certain persons prohibited from receiving award. Appearance of medal—Inscription. Sections 1.50.005 1.50.010 1.50.030 1.50.040 Findings—Intent. Definitions. Washington gift of life award—Presentation. Appearance of award—Inscription. 1.50.005 1.40.010 1.40.010 State medal of merit established. There is established a decoration of the state medal of merit with accompanying ribbons and appurtenances for award by the governor, in the name of the state, to any person who has been distinguished by exceptionally meritorious conduct in performing outstanding services to the people and state of Washington, upon the nomination of the governor’s state medal of merit committee. [1986 c 92 § 1.] 1.50.005 Findings—Intent. The legislature finds that persons who donate organs help save the lives and promote the well-being of others in a manner that demonstrates the noblest side of human nature. Many families and friends of both the donors and the donees may want to remember the special act of donation in a way that honors the memory of the donor and encourages donation by others in the future. To recognize the special kindness of those who donate their organs, the legislature establishes the Washington gift of life award. [1999 c 264 § 1; 1998 c 59 § 1.] 1.40.020 1.40.020 Nominating committee created—Composition—Meeting—Rules. There is created the state medal of merit committee for nominating candidates for the award of the state medal of merit. The committee membership consists of the governor, president of the senate, speaker of the house of representatives, and the chief justice of the supreme court, or their designees. The secretary of state shall serve as a nonvoting ex officio member, and shall serve as secretary to the committee. The committee shall meet annually to consider candidates for nomination. The committee shall adopt rules establishing the qualifications for the state medal of merit, the protocol governing the decoration, and the appurtenances necessary to the implementation of this chapter. [1986 c 92 § 2.] 1.40.030 1.40.030 Delegation of authority to make award. The governor may delegate the awarding of the state medal of merit to the president of the senate, speaker of the house of representatives, or the chief justice of the supreme court. [1986 c 92 § 3.] 1.40.040 1.40.040 Posthumous award. The state medal of merit may be awarded posthumously to be presented to such representative of the deceased as may be deemed appropriate by the governor or the designees specified in RCW 1.40.030. [1986 c 92 § 4.] [Title 1 RCW—page 12] 1.50.010 1.50.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Organ donor" means an individual who makes an anatomical gift as specified in RCW 68.50.530(1). (2) "Organ procurement organization" means any accredited or certified organ or eye bank. (3) "Person" means a person specified in RCW 68.50.550. [1998 c 59 § 2.] 1.50.030 1.50.030 Washington gift of life award—Presentation. The governor’s office shall present the Washington gift of life award to six eligible families or persons per year under the following: (1) The organ procurement organization may nominate the six individuals or persons eligible under this section to represent all those who have donated organs and may submit documentation supporting the eligibility of the individual or person to the governor’s office. If more than one organ procurement organization is involved, they shall coordinate in harmony to designate by consensus the organ procurement organization among them to have primary administrative responsibility under this chapter. (2) The governor’s office shall present the awards on an annual basis in coordination with the organ procurement (2006 Ed.) Medal of Valor organization. Only one award may be presented to the family of an organ donor. [1999 c 264 § 2; 1998 c 59 § 4.] 1.50.040 1.50.040 Appearance of award—Inscription. The Washington gift of life award shall consist of the seal of the state of Washington and be inscribed with the words: "For the greatest act of kindness in donating organs to enhance the lives of others." [1999 c 264 § 3; 1998 c 59 § 5.] Chapter 1.60 Chapter 1.60 RCW MEDAL OF VALOR Sections 1.60.010 1.60.020 1.60.030 1.60.040 1.60.050 1.60.060 Medal of valor. Medal of valor committee. Award presentation. Posthumous award. Hazardous professions excluded. Appearance of medal and certificate. 1.60.010 1.60.010 Medal of valor. There is established a decoration of the state medal of valor with accompanying certificate, ribbons, and appurtenances for award by the governor, in the name of the state, to any person who has saved, or attempted to save, the life of another at the risk of serious injury or death to himself or herself, upon the selection of the governor’s state medal of valor committee. [2000 c 224 § 1.] 1.60.060 acting as a result of service given by any branch of law enforcement, fire fighting, rescue, or other hazardous profession where the individual is employed by a government entity within the state of Washington. [2000 c 224 § 5.] 1.60.060 Appearance of medal and certificate. (1) The decoration of the state medal of valor shall be of .999 pure silver and shall consist of the seal of the state of Washington, surrounded by a raised laurel wreath and suspended from a silver bar device inscribed "For Valor" which is suspended from a ring attached by a dark green ribbon, bordered by silver. The reverse of the decoration within the raised laurel wreath shall be inscribed with the recipient’s name and the words: "For exceptionally valorous service, given in the act of saving the life of another." (2) The certificate accompanying the medal will prominently display: (a) The title, "Washington State Medal of Valor"; (b) the recipient’s name; and (c) the phrase, "For exceptionally valorous service, given in the act of saving the life of another." A seven-line citation will also be included on the certificate. [2000 c 224 § 6.] 1.60.060 1.60.020 1.60.020 Medal of valor committee. There is created the state medal of valor committee for selecting honorees for the award of the state medal of valor. The committee membership consists of the governor, president of the senate, speaker of the house of representatives, and the chief justice of the supreme court, or their designees. The secretary of state shall serve as a nonvoting ex officio member, and shall serve as secretary to the committee. The committee shall meet annually to consider candidates for this award. Any individual may nominate any resident of this state for any act of valor covered by this section. The committee shall adopt rules establishing the qualifications for the state medal of valor, the protocol governing the decoration, the certificate, and appurtenances necessary to the implementation of this chapter. [2000 c 224 § 2.] 1.60.030 1.60.030 Award presentation. (1) The award will be presented by the governor of the state of Washington to the recipient only during a joint session of both houses of the legislature. (2) If the governor is unable to present the award due to the disability or illness of the governor, the governor may delegate the presenting of the award to the president of the senate, the speaker of the house of representatives, or the chief justice of the supreme court. [2000 c 224 § 3.] 1.60.040 1.60.040 Posthumous award. The state medal of valor may be awarded posthumously to be presented to such representative of the deceased as may be deemed appropriate by the committee. [2000 c 224 § 4.] 1.60.050 1.60.050 Hazardous professions excluded. The state medal of valor will not be awarded to any individual who is (2006 Ed.) [Title 1 RCW—page 13] Title 2 Title 2 COURTS OF RECORD Chapters 2.04 Supreme court. 2.06 Court of appeals. 2.08 Superior courts. 2.10 Judicial retirement system. 2.12 Retirement of judges—Retirement system. 2.14 Retirement of judges—Supplemental retirement. 2.16 Association of superior court judges. 2.20 Magistrates. 2.24 Court commissioners and referees. 2.28 Powers of courts and general provisions. 2.32 Court clerks, reporters, and bailiffs. 2.36 Juries. 2.40 Witnesses. 2.42 Interpreters in legal proceedings. 2.43 Interpreters for non-English-speaking persons. 2.44 Attorneys at law. 2.48 State bar act. 2.50 Legal aid. 2.53 Civil legal aid. 2.56 Administrator for the courts. 2.60 Federal court local law certificate procedure act. 2.64 Commission on judicial conduct. 2.68 Judicial information system. 2.70 Office of public defense. Commissioner of the supreme court: Rules of court: SAR 15. Family court: Chapter 26.12 RCW. Judiciary and judicial power: State Constitution Art. 4. Rules of court: Cf. RAP 4.2, 4.3, 18.22; Titles 2 and 16 RAP. Professional service corporations, application to attorneys: Chapter 18.100 RCW. Public bodies may retain collection agencies to collect public debts—Fees: RCW 19.16.500. Records, receipts and exhibits of superior court, destruction, reproduction: RCW 36.23.065, 36.23.067, 36.23.070. Chapter 2.04 Chapter 2.04 RCW SUPREME COURT 2.04.250 (2006 Ed.) Publication of opinions: Chapter 2.32 RCW. 2.04.010 2.04.010 Jurisdiction. The supreme court shall have original jurisdiction in habeas corpus and quo warranto and mandamus as to all state officers, and appellate jurisdiction in all actions and proceedings excepting that its appellate jurisdiction shall not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy or the value of the property does not exceed the sum of two hundred dollars, unless the action involves the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute. The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. Each of the judges shall have power to issue writs of habeas corpus to any part of the state, upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself or before the supreme court, or before any superior court of the state, or any judge thereof. [1890 p 322 § 6; RRS § 1.] Jurisdiction of supreme court: State Constitution Art. 4 § 4. 2.04.020 2.04.020 Court of record—General powers. The supreme court shall be a court of record, and shall be vested with all power and authority necessary to carry into complete execution all its judgments, decrees and determinations in all matters within its jurisdiction, according to the rules and principles of the common law, and the Constitution and laws of this state. [1890 p 323 § 10; RRS § 2.] Courts of record: State Constitution Art. 4 § 11. Judicial power, where vested: State Constitution Art. 4 § 1. Sections 2.04.010 2.04.020 2.04.030 2.04.031 2.04.040 2.04.050 2.04.070 2.04.071 2.04.080 2.04.092 2.04.100 2.04.110 2.04.150 2.04.180 2.04.190 2.04.200 2.04.210 2.04.215 2.04.220 2.04.230 2.04.240 Judiciary and judicial power: State Constitution Art. 4. Jurisdiction. Court of record—General powers. Supreme court and court of appeals—When open. Court facilities. Effect of adjournments. Style of process. Number of judges. Election—Term of office. Oath of office. Salary of justices. Vacancy, how filled. Justices, judges to wear gowns. Apportionment of business—En banc hearings. Rules of practice and forms of process in supreme court. Rules of pleading, practice, and procedure generally. Effect of rules upon statutes. Supplementary superior court rules. Adoption of rules for settlement conferences in civil cases. Effect of supreme court judgments. Report to governor. Judge pro tempore—Declaration of policy—Appointment— Oath of office. Judge pro tempore—Remuneration. 2.04.030 2.04.030 Supreme court and court of appeals—When open. The supreme court and the court of appeals shall always be open for the transaction of business except on Saturdays, Sundays, and legal holidays designated by the legislature. [1971 ex.s. c 107 § 1; 1909 p 36 § 7; RRS § 4. Prior: 1890 p 322 § 4, part.] Rules of court: SAR-Rule 4. Legal holidays: RCW 1.16.050. 2.04.031 2.04.031 Court facilities. If proper rooms in which to hold the court, and for the accommodation of the officers thereof, are not provided by the state, together with attendants, furniture, fuel, lights, record books and stationery, suitable and sufficient for the transaction of business, the court, or any three justices thereof, may direct the clerk of the supreme court to provide the same; and the expense thereof, [Title 2 RCW—page 1] 2.04.040 Title 2 RCW: Courts of Record certified by any three justices to be correct, shall be paid out of the state treasury out of any funds therein not otherwise appropriated. Such moneys shall be subject to the order of the clerk of the supreme court, and be by him disbursed on proper vouchers, and accounted for by him in annual settlements with the governor. [1973 c 106 § 1; 1955 c 38 § 1; 1890 p 322 § 4; RRS § 3.] 2.04.092 Salary of justices. The annual salary of justices of the supreme court shall be established by the Washington citizens’ commission on salaries for elected officials. No salary warrant may be issued to a justice of the supreme court until the justice files with the state treasurer an affidavit that no matter referred to the justice for opinion or decision has been uncompleted or undecided for more than six months. [1986 c 155 § 4; 1984 c 258 § 401.] 2.04.040 Effect of adjournments. Adjournments from day to day, or from time to time, are to be construed as recesses in the sessions, and shall not prevent the court from sitting at any time. [1890 p 323 § 7; RRS § 5.] Contingent effective date—Severability—1986 c 155: See notes following RCW 43.03.300. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 2.04.040 Rules of court: SAR-Rule 5. 2.04.050 Style of process. Its process shall run in the name of the "State of Washington," bear test in the name of the chief justice, be signed by the clerk of the court, dated when issued, sealed with the seal of the court, and made returnable according to law, or such rule or orders as may be prescribed by the court. [1890 p 323 § 11; RRS § 6.] 2.04.050 Rules of court: SAR-Rule 2. 2.04.070 Number of judges. The supreme court, from and after February 26, 1909, shall consist of nine judges. [1909 c 24 § 1; RRS § 11036. FORMER PARTS OF SECTION: 1911 c 119 § 1; 1909 c 24 § 2; RRS § 11039; now codified in RCW 2.04.071. Prior: (i) 1905 c 5 § 1; 1890 p 321 § 1; RRS § 11035. (ii) 1893 c 5 § 1; RRS 11037. (iii) 1905 c 5 § 3; RRS § 11038.] 2.04.070 2.04.071 Election—Term of office. At the next general election, and at each biennial general election thereafter, there shall be elected three justices of the supreme court, to hold for the full term of six years, and until their successors are elected and qualified, commencing with the second Monday in January succeeding their election. [1971 c 81 § 1; 1911 c 119 § 1; 1909 c 24 § 2; RRS § 11039. Formerly RCW 2.04.070, part.] 2.04.071 Election and terms, supreme court judges: State Constitution Art. 4 § 3. Eligibility of judges: State Constitution Art. 4 § 17. Forfeiture of office for absence: State Constitution Art. 4 § 8. Impeachment: State Constitution Art. 5. Judge may not practice law: State Constitution Art. 4 § 19. Judges ineligible to other office: State Constitution Art. 4 § 15. 2.04.092 Salaries of judicial officers: State Constitution Art. 4 §§ 13, 14; Art. 28 § 1; Art. 30 § 1. Washington citizens’ commission on salaries for elected officials: RCW 43.03.305. 2.04.100 2.04.100 Vacancy, how filled. If a vacancy occurs in the office of a justice of the supreme court, the governor shall appoint a person to hold the office until the election and qualification of a justice to fill the vacancy, which election shall take place at the next succeeding general election, and the justice so elected shall hold the office for the remainder of the unexpired term. [1971 c 81 § 3; 1955 c 38 § 2. Prior: 1937 c 15 § 1; 1893 c 5 § 2; 1890 p 321 § 3; RRS § 11044.] 2.04.110 Justices, judges to wear gowns. Each of the justices of the supreme court, judges of the court of appeals, and the judges of the superior courts shall in open court during the presentation of causes, before them, appear in and wear gowns, made of black silk, of the usual style of judicial gowns. [1971 c 81 § 4; 1909 c 206 § 1; RRS § 11054. Formerly RCW 2.04.110, 2.08.130.] 2.04.110 2.04.150 Apportionment of business—En banc hearings. The chief justice shall from time to time apportion the business to the departments, and may, in his discretion, before a decision is pronounced, order any cause pending before the court to be heard and determined by the court en banc. When a cause has been allotted to one of the departments and a decision pronounced therein, the chief justice, together with any two associate judges, may order such cause to be heard and decided by the court en banc. Any four judges may, either before or after decision by a department, order a cause to be heard en banc. [1909 c 24 § 4, part; RRS § 9.] 2.04.150 Rules of court: SAR 4. 2.04.080 Oath of office. The several justices of the supreme court, before entering upon the duties of their office, shall take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm, as the case may be), that I will support the Constitution of the United States and the Constitution of the State of Washington, and that I will faithfully and impartially discharge the duties of the office of judge of the supreme court of the State of Washington to the best of my ability." Which oath or affirmation may be administered by any person authorized to administer oaths, a certificate whereof shall be affixed thereto by the person administering the oath. And the oath or affirmation so certified shall be filed in the office of the secretary of state. [1971 c 81 § 2; 1890 p 324 § 14; RRS § 11043.] 2.04.080 Oath of judges: State Constitution Art. 4 § 28. [Title 2 RCW—page 2] 2.04.180 Rules of practice and forms of process in supreme court. The supreme court may from time to time institute such rules of practice and prescribe such forms of process to be used in such court and in the court en banc and each of its departments, and for the keeping of the dockets, records and proceedings, and for the regulation of such court, including the court en banc and in departments, as may be deemed most conducive to the due administration of justice. [1909 c 24 § 8; 1890 p 323 § 12; RRS § 13.] 2.04.180 Rules of court: Cf. Title 1 RAP and RAP 18.10. 2.04.190 2.04.190 Rules of pleading, practice, and procedure generally. The supreme court shall have the power to prescribe, from time to time, the forms of writs and all other pro(2006 Ed.) Supreme Court cess, the mode and manner of framing and filing proceedings and pleadings; of giving notice and serving writs and process of all kinds; of taking and obtaining evidence; of drawing up, entering and enrolling orders and judgments; and generally to regulate and prescribe by rule the forms for and the kind and character of the entire pleading, practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature by the supreme court, superior courts, and district courts of the state. In prescribing such rules the supreme court shall have regard to the simplification of the system of pleading, practice and procedure in said courts to promote the speedy determination of litigation on the merits. [1987 c 202 § 101; 1925 ex.s. c 118 § 1; RRS § 13-1.] Rules of court: Cf. Title 1 RAP. Intent—1987 c 202: "The legislature intends to: (1) Make the statutes of the state consistent with rules adopted by the supreme court governing district courts; and (2) Delete or modify archaic, outdated, and superseded language and nomenclature in statutes related to the district courts." [1987 c 202 § 1.] Court of appeals—Rules of administration and procedure: RCW 2.06.030. 2.04.200 2.04.200 Effect of rules upon statutes. When and as the rules of courts herein authorized shall be promulgated all laws in conflict therewith shall be and become of no further force or effect. [1925 ex.s. c 118 § 2; RRS § 13-2.] Rules of court: Cf. CR 81(b), RAP 1.1(g). 2.04.210 2.04.210 Supplementary superior court rules. RCW 2.04.190 through 2.04.210 shall not be construed to deprive the superior courts of power to establish rules for their government supplementary to and not in conflict with the rules prescribed by the supreme court. [1925 ex.s. c 118 § 3; RRS § 13-3.] Rules of court: Cf. CR 83(a); Cf. RAP 1.1. Rules for government of superior courts: RCW 2.08.230, 2.16.040. 2.04.215 2.04.215 Adoption of rules for settlement conferences in civil cases. By January 1, 1982, the supreme court shall adopt rules for settlement conferences in civil cases in such superior courts and the court of appeals which are amenable to the settlement conference process. [1981 c 331 § 5.] Court Congestion Reduction Act of 1981—Purpose—Severability—1981 c 331: See notes following RCW 2.32.070. Adoption of rules for discovery in civil cases in courts of limited jurisdiction: RCW 3.02.050. 2.04.220 2.04.220 Effect of supreme court judgments. The judgments and decrees of the supreme court shall be final and conclusive upon all the parties properly before the court. [1890 p 323 § 8; RRS § 14.] Rules of court: SAR-Rule 3. 2.04.230 2.04.230 Report to governor. The judges of the supreme court shall, on or before the first day of January in each year, report in writing to the governor such defects and omissions in the laws as they may believe to exist. [1890 p 324 § 16; RRS § 11042.] Annual report to governor: State Constitution Art. 4 § 25. Court of appeals—Reporting defects or omissions in the laws: RCW 2.06.110. (2006 Ed.) 2.04.250 2.04.240 2.04.240 Judge pro tempore—Declaration of policy—Appointment—Oath of office. (1) DECLARATION OF POLICY. Whenever necessary for the prompt and orderly administration of justice, as authorized and empowered by Article IV, section 2(a), Amendment 38, of the state Constitution, a majority of the supreme court may appoint any regularly elected and qualified judge of the court of appeals or the superior court or any retired judge of a court of record in this state to serve as judge pro tempore of the supreme court. (2) If the term of a justice of the supreme court expires with cases or other judicial business pending, the chief justice of the supreme court may appoint the justice to serve as judge pro tempore of the supreme court, whenever necessary for the prompt and orderly administration of justice. No justice may be appointed under this subsection more than one time and no appointment may exceed sixty days. (3) Before entering upon his or her duties as judge pro tempore of the supreme court, the appointee shall take and subscribe an oath of office as provided for in Article IV, section 28 of the state Constitution. [1997 c 88 § 1; 1982 c 72 § 1; 1963 c 40 § 1.] Rules of court: SAR 21. 2.04.250 2.04.250 Judge pro tempore—Remuneration. (1) A judge of the court of appeals or of the superior court serving as a judge pro tempore of the supreme court as provided in RCW 2.04.240 shall receive, in addition to his or her regular salary, reimbursement for subsistence, lodging, and travel expenses in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060. (2) A retired judge of a court of record in this state serving as a judge pro tempore of the supreme court as provided in RCW 2.04.240 shall receive, in addition to any retirement pay he or she may be receiving, the following compensation and expenses: (a) Reimbursement for subsistence, lodging, and travel expenses in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060. (b) During the period of his or her service as a judge pro tempore, an amount equal to the salary of a regularly elected judge of the court in which he or she last served for such period diminished by the amount of retirement pay accrued to him or her for such period. (3) Whenever a superior court judge is appointed to serve as judge pro tempore of the supreme court and a visiting judge is assigned to replace him or her, subsistence, lodging, and travel expenses incurred by such visiting judge as a result of such assignment shall be paid in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060, upon application of such judge from the appropriation of the supreme court. (4) A justice appointed as judge pro tempore of the supreme court under RCW 2.04.240(2) shall continue to receive compensation in accordance with the rates applicable to the justice immediately before the expiration of the term. (5) The provisions of RCW 2.04.240(1) and 2.04.250 (1) through (3) shall not be construed as impairing or enlarging any right or privilege acquired in any retirement or pension system by any judge or his or her dependents. [1997 c 88 § 2; 1982 c 72 § 2; 1981 c 186 § 1; 1963 c 40 § 2.] [Title 2 RCW—page 3] Chapter 2.06 Chapter 2.06 Title 2 RCW: Courts of Record Chapter 2.06 RCW COURT OF APPEALS Sections 2.06.010 2.06.020 2.06.022 2.06.024 2.06.030 2.06.040 2.06.045 2.06.050 2.06.062 2.06.070 2.06.075 2.06.076 2.06.080 2.06.085 2.06.090 2.06.100 2.06.110 2.06.150 2.06.160 Court of appeals established—Definitions. Divisions—Locations—Judges enumerated—Districts. Effective date for Snohomish county judicial position—Initial term. Effective date for Pierce county judicial position—Initial term. General powers and authority—Transfers of cases—Appellate jurisdiction, exceptions—Appeals. Panels—Decisions, publication as opinions, when—Sessions—Rules. When open for transaction of business. Qualifications of judges. Salary of judges. Original appointments—Election of judges—Terms of office. Appointments to positions created by 1977 ex.s. c 49 § 1— Election—Terms of office. Appointments to positions created by 1993 c 420 § 1—Election—Appointment—Terms of office. Vacancy, how filled. Oath of judges. Practice of law, seeking nonjudicial elective office prohibited. Retirement. Reporting defects or omissions in the laws. Judge pro tempore—Appointment—Oath of office. Judge pro tempore—Remuneration. Commissioners of the court of appeals: Rules of court: CAR 16. Court of appeals reports: RCW 2.32.160, 40.04.030, 40.04.100, and 40.04.110. Washington court reports commission: RCW 2.32.160. (b) District 2 shall consist of Clallam, Grays Harbor, Jefferson, Kitsap, Mason, and Thurston counties and shall have two judges; (c) District 3 shall consist of Clark, Cowlitz, Lewis, Pacific, Skamania, and Wahkiakum counties and shall have two judges. (3) The third division shall have five judges from the following districts: (a) District 1 shall consist of Ferry, Lincoln, Okanogan, Pend Oreille, Spokane and Stevens counties and shall have two judges; (b) District 2 shall consist of Adams, Asotin, Benton, Columbia, Franklin, Garfield, Grant, Walla Walla, and Whitman counties and shall have one judge; (c) District 3 shall consist of Chelan, Douglas, Kittitas, Klickitat and Yakima counties and shall have two judges. [1999 c 75 § 1; 1993 c 420 § 1; 1989 c 328 § 10; 1977 ex.s. c 49 § 1; 1969 ex.s. c 221 § 2.] Rules of court: Cf. RAP 4.1(b). Effective date—1993 c 420: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [May 15, 1993]." [1993 c 420 § 3.] Intent—1989 c 328: See note following RCW 2.08.061. Appointments to positions created by the amendment to this section by 1977 ex.s. c 49 § 1: RCW 2.06.075. 2.06.010 2.06.010 Court of appeals established—Definitions. There is hereby established a court of appeals as a court of record. For the purpose of RCW 2.06.010 through 2.06.100 the following terms shall have the following meanings: (1) "Rules" means rules of the supreme court. (2) "Chief justice" means chief justice of the supreme court. (3) "Court" means court of appeals. (4) "Judge" means judge of the court of appeals. (5) "Division" means a division of the court of appeals. (6) "District" means a geographic subdivision of a division from which judges of the court of appeals are elected. (7) "General election" means the biennial election at which members of the house of representatives are elected. [1969 ex.s. c 221 § 1.] 2.06.020 2.06.020 Divisions—Locations—Judges enumerated—Districts. The court shall have three divisions, one of which shall be headquartered in Seattle, one of which shall be headquartered in Spokane, and one of which shall be headquartered in Tacoma: (1) The first division shall have twelve judges from three districts, as follows: (a) District 1 shall consist of King county and shall have eight judges; (b) District 2 shall consist of Snohomish county and shall have two judges; and (c) District 3 shall consist of Island, San Juan, Skagit and Whatcom counties and shall have two judges. (2) The second division shall have seven judges from the following districts: (a) District 1 shall consist of Pierce county and shall have three judges; [Title 2 RCW—page 4] 2.06.022 2.06.022 Effective date for Snohomish county judicial position—Initial term. The new judicial position for the first division, district 2, Snohomish county created pursuant to the 1989 amendment to RCW 2.06.020 shall become effective January 1, 1990, and shall be filled by gubernatorial appointment. The person appointed by the governor shall hold office until the general election to be held in November 1990. At the general election, the judge appointed shall be entitled to run for a term of six years or until the second Monday in January 1997, and until a successor is elected and qualified. Thereafter, the judge shall be elected for a term of six years and until a successor is elected and qualified, commencing with the second Monday in January succeeding the election. [1989 c 328 § 11.] Intent—1989 c 328: See note following RCW 2.08.061. 2.06.024 2.06.024 Effective date for Pierce county judicial position—Initial term. The new judicial position for the second division, district 1, Pierce county, created pursuant to the 1999 amendment to RCW 2.06.020 shall become effective July 1, 2000, and shall be filled by gubernatorial appointment. The person appointed by the governor shall hold office until the general election to be held in November 2000. At the general election, the judge appointed shall be entitled to run for a term of six years or until the second Monday in January 2007, and until a successor is elected and qualified. Thereafter, the judge shall be elected for a term of six years and until a successor is elected and qualified, commencing with the second Monday in January succeeding the election. [1999 c 75 § 2.] (2006 Ed.) Court of Appeals 2.06.030 General powers and authority—Transfers of cases—Appellate jurisdiction, exceptions—Appeals. The administration and procedures of the court shall be as provided by rules of the supreme court. The court shall be vested with all power and authority, not inconsistent with said rules, necessary to carry into complete execution all of its judgments, decrees and determinations in all matters within its jurisdiction, according to the rules and principles of the common law and the Constitution and laws of this state. For the prompt and orderly administration of justice, the supreme court may (1) transfer to the appropriate division of the court for decision a case or appeal pending before the supreme court; or (2) transfer to the supreme court for decision a case or appeal pending in a division of the court. Subject to the provisions of this section, the court shall have exclusive appellate jurisdiction in all cases except: (a) cases of quo warranto, prohibition, injunction or mandamus directed to state officials; (b) criminal cases where the death penalty has been decreed; (c) cases where the validity of all or any portion of a statute, ordinance, tax, impost, assessment or toll is drawn into question on the grounds of repugnancy to the Constitution of the United States or of the state of Washington, or to a statute or treaty of the United States, and the superior court has held against its validity; (d) cases involving fundamental and urgent issues of broad public import requiring prompt and ultimate determination; and (e) cases involving substantive issues on which there is a direct conflict among prevailing decisions of panels of the court or between decisions of the supreme court; all of which shall be appealed directly to the supreme court: PROVIDED, That whenever a majority of the court before which an appeal is pending, but before a hearing thereon, is in doubt as to whether such appeal is within the categories set forth in subsection (d) or (e) of this section, the cause shall be certified to the supreme court for such determination. The appellate jurisdiction of the court of appeals does not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy, or the value of the property does not exceed the sum of two hundred dollars. The court shall have appellate jurisdiction over review of final decisions of administrative agencies certified by the superior court pursuant to RCW 34.05.518. Appeals from the court to the supreme court shall be only at the discretion of the supreme court upon the filing of a petition for review. No case, appeal or petition for a writ filed in the supreme court or the court shall be dismissed for the reason that it was not filed in the proper court, but it shall be transferred to the proper court. [1980 c 76 § 3; 1979 c 102 § 1; 1969 ex.s. c 221 § 3.] 2.06.030 Rules of court: Cf. Titles 1 and 4 RAP, RAP 18.22. Severability—1979 c 102: See note following RCW 3.66.020. 2.06.040 Panels—Decisions, publication as opinions, when—Sessions—Rules. The court shall sit in panels of three judges and decisions shall be rendered by not less than a majority of the panel. In the determination of causes all decisions of the court shall be given in writing and the 2.06.040 (2006 Ed.) 2.06.070 grounds of the decisions shall be stated. All decisions of the court having precedential value shall be published as opinions of the court. Each panel shall determine whether a decision of the court has sufficient precedential value to be published as an opinion of the court. Decisions determined not to have precedential value shall not be published. Panels in the first division shall be comprised of such judges as the chief judge thereof shall from time to time direct. Judges of the respective divisions may sit in other divisions and causes may be transferred between divisions, as directed by written order of the chief justice. The court may hold sessions in cities as may be designated by rule. No judge of the court shall be entitled to per diem or mileage for services performed at either his legal residence or the headquarters of the division of the court of which he is a member. The court may establish rules supplementary to and not in conflict with rules of the supreme court. [1987 c 43 § 1; 1984 c 258 § 91; 1971 c 41 § 1; 1969 ex.s. c 221 § 4.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 2.06.045 2.06.045 When open for transaction of business. See RCW 2.04.030. 2.06.050 2.06.050 Qualifications of judges. A judge of the court shall be: (1) Admitted to the practice of law in the courts of this state not less than five years prior to taking office. (2) A resident for not less than one year at the time of appointment or initial election in the district for which his position was created. [1969 ex.s. c 221 § 5.] 2.06.062 2.06.062 Salary of judges. The annual salary of the judges of the court of appeals shall be established by the Washington citizens’ commission on salaries for elected officials. No salary warrant may be issued to any judge until the judge files with the state treasurer an affidavit that no matter referred to the judge for opinion or decision has been uncompleted for more than six months. [1986 c 155 § 5; 1984 c 258 § 402.] Contingent effective date—Severability—1986 c 155: See notes following RCW 43.03.300. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Washington citizens’ commission on salaries for elected officials: RCW 43.03.305. 2.06.070 2.06.070 Original appointments—Election of judges—Terms of office. Upon the taking effect of RCW 2.06.010 through 2.06.100, the governor shall appoint the judges of the court of appeals for each district in the numbers provided in RCW 2.06.020, who shall hold office until the second Monday in January of the year following the first state general election following the effective date of this act. In making the original appointments the governor shall take into consideration such factors as: Personal character; intellect; ability; diversity of background of experience in the practice of the law; diversity of political philosophy; diversity of educational experience; and diversity of affiliation with social and economic groups, for the purpose of establishing a bal[Title 2 RCW—page 5] 2.06.075 Title 2 RCW: Courts of Record anced appellate court with the highest quality of personnel. At the first state general election after the effective date of this act there shall be elected from each district the number of judges provided for in RCW 2.06.020. Upon taking office the judges of each division elected shall come together at the direction of the chief justice and be divided by lot into three equal groups; those of the first group shall hold office until the second Monday in January of 1973, those of the second group shall hold office until the second Monday in January of 1975, and those of the third group shall hold office until the second Monday in January of 1977, and until their successors are elected and qualified. Thereafter, judges shall be elected for the full term of six years and until their successors are elected and qualified, commencing with the second Monday in January succeeding their election: PROVIDED, HOWEVER, That if the governor shall make appointments to the appellate court from membership of the superior court, the governor shall, in making appointments filling vacancies created in the superior courts by such action, take into consideration such factors as: Personal character; intellect; ability; diversity of background of experience in the practice of the law; diversity of political philosophy; diversity of educational experience; and diversity of affiliation with social and economic groups, for the purpose of maintaining a balanced superior court with the highest quality of personnel. [1969 ex.s. c 221 § 7.] Effective date—1969 ex.s. c 221: The effective date of this act [1969 ex.s. c 221] is May 8, 1969, see preface to 1969 session laws. 2.06.075 2.06.075 Appointments to positions created by 1977 ex.s. c 49 § 1—Election—Terms of office. The new judicial positions created pursuant to section 1, chapter 49, Laws of 1977 ex. sess. shall become effective January 1, 1978 and shall be filled by gubernatorial appointment as follows: (1) Two shall be appointed to the first division, District 1, King county; (2) One shall be appointed to the second division, District 1, Pierce county; and (3) One shall be appointed to the third division, District 1, Ferry, Lincoln, Okanogan, Pend Oreille, Spokane, and Stevens counties. The persons appointed by the governor shall hold office until the general election to be held in November 1978. Upon taking office the two newly appointed judges in Division 1 shall determine by lot the length of term they will be entitled to run for in the general election of 1977. One term will be for one year or until the second Monday in January 1980, and the other for three years or until the second Monday in January 1982, and until their successors are elected and qualified. Thereafter judges shall be elected for a term of six years and until their successors are elected and qualified, commencing with the second Monday in January succeeding their election. At the general election to be held in November 1978, the judges appointed in Division 2 and Division 3 shall be entitled to run for a term of six years or until the second Monday in January 1985, and until their successors are elected and qualified. Thereafter judges shall be elected for a term of six years and until their successors are elected and qualified, commencing with the second Monday in January succeeding their election. [1977 ex.s. c 49 § 3.] [Title 2 RCW—page 6] 2.06.076 2.06.076 Appointments to positions created by 1993 c 420 § 1—Election—Appointment—Terms of office. (1) Any judicial position created by *section 1, chapter 420, Laws of 1993 shall be effective only if that position is specifically funded and is referenced by division and district in an omnibus appropriations act. (2)(a) The full term of office for the judicial positions authorized pursuant to chapter 420, Laws of 1993 shall be six years. (b) The authorized judicial positions shall be filled at the general election in the November immediately preceding the beginning of the full term except as provided in (d) and (e) of this subsection. (c) The six-year terms shall be staggered as follows: In the first division, the initial full terms of six years for the two positions in district 1 shall begin the second Monday in January following the general election held in November 2000. If the effective date for the judicial positions are later than the deadline to include it in the November 2000 election, the initial full term shall begin the second Monday in January following the general election held in November 2006. (d) Upon becoming effective pursuant to subsection (1) of this section, the governor shall appoint judges to the additional judicial positions authorized in section 1, chapter 420, Laws of 1993. The appointed judges shall hold office until the second Monday in January following the general election following the effective date of the position. The appointed judges and other judicial candidates are entitled to run for the judicial position at the general election following appointment. (e) The initial election for these positions shall be held in November following the effective date of the position. If the initial election of a newly authorized position is not held on a date which corresponds to the beginning of a full term as specified in (c) of this subsection, the election shall be for a partial term. [1998 c 26 § 1; 1993 c 420 § 2.] *Reviser’s note: Section 1, chapter 420, Laws of 1993 was not referenced in a 1993 omnibus appropriations act. Effective date—1993 c 420: See note following RCW 2.06.020. 2.06.080 2.06.080 Vacancy, how filled. If a vacancy occurs in the office of a judge of the court, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall take place at the next succeeding general election and the judge so elected shall hold the office for the remainder of the unexpired term. [1969 ex.s. c 221 § 8.] 2.06.085 2.06.085 Oath of judges. The several judges of the court of appeals, before entering upon the duties of their office, shall take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm, as the case may be), that I will support the Constitution of the United States and the Constitution of the State of Washington, and that I will faithfully and impartially discharge the duties of the office of judge of the court of appeals of the State of Washington to the best of my ability." Which oath or affirmation may be administered by any person authorized to administer oaths, a certificate whereof shall be affixed thereto by the person administering the oath. And the oath or affirmation so certi(2006 Ed.) Superior Courts fied shall be filed in the office of the secretary of state. [1971 c 81 § 182.] 2.06.090 2.06.090 Practice of law, seeking nonjudicial elective office prohibited. No judge, while in office, shall engage in the practice of law. No judge shall run for elective office other than a judicial office during the term for which he was elected. [1969 ex.s. c 221 § 9.] 2.06.100 2.06.100 Retirement. Judges shall retire at the age, and under the conditions and with the same retirement benefits as specified by law for the retirement of justices of the supreme court. [1969 ex.s. c 221 § 10.] 2.06.110 2.06.110 Reporting defects or omissions in the laws. Court of appeals judges shall, on or before the first day of November in each year, report in writing to the justices of the supreme court, such defects and omissions in the laws as their experience may suggest. [1971 ex.s. c 107 § 6.] 2.06.150 2.06.150 Judge pro tempore—Appointment—Oath of office. (1) Whenever necessary for the prompt and orderly administration of justice, the chief justice of the supreme court of the state of Washington may appoint any regularly elected and qualified judge of the superior court or any retired judge of a court of record in this state to serve as judge pro tempore of the court of appeals: PROVIDED, HOWEVER, That no judge pro tempore appointed to serve on the court of appeals may serve more than ninety days in any one year. (2) If the term of a judge of the court of appeals expires with cases or other judicial business pending, the chief justice of the supreme court of the state of Washington, upon the recommendation of the chief presiding judge of the court of appeals, may appoint the judge to serve as judge pro tempore of the court of appeals, whenever necessary for the prompt and orderly administration of justice. No judge may be appointed under this subsection more than one time and no appointment may exceed sixty days. (3) Before entering upon his or her duties as judge pro tempore of the court of appeals, the appointee shall take and subscribe an oath of office as provided for in Article IV, section 28 of the state Constitution. [1997 c 88 § 3; 1977 ex.s. c 49 § 2; 1973 c 114 § 1.] Judge pro tempore appointments: RCW 2.56.170. 2.06.160 2.06.160 Judge pro tempore—Remuneration. (1) A judge of a court of record serving as a judge pro tempore of the court of appeals, as provided in RCW 2.06.150, shall receive, in addition to his or her regular salary, reimbursement for subsistence, lodging, and travel expenses in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060. (2) A retired judge of a court of record in this state serving as a judge pro tempore of the court of appeals, as provided in RCW 2.06.150, shall receive, in addition to any retirement pay he or she may be receiving, the following compensation and expenses: (a) Reimbursement for subsistence, lodging, and travel expenses in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060; and (2006 Ed.) Chapter 2.08 (b) During the period of his or her service as judge pro tempore, he or she shall receive as compensation sixty percent of one-two hundred and fiftieth of the annual salary of a court of appeals judge for each day of service: PROVIDED, HOWEVER, That the total amount of combined compensation received as salary and retirement by any judge in any calendar year shall not exceed the yearly salary of a full time judge. (3) Whenever a judge of a court of record is appointed to serve as judge pro tempore of the court of appeals and a visiting judge is assigned to replace him or her, subsistence, lodging, and travel expenses incurred by such visiting judge as a result of such assignment shall be paid in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060, upon application of such judge from the appropriation of the court of appeals. (4) A judge appointed as judge pro tempore of the court of appeals under RCW 2.06.150(2) shall continue to receive compensation in accordance with the rates applicable to the judge immediately before the expiration of the term. (5) The provisions of RCW 2.06.150(1) and 2.06.160 (1) through (3) shall not be construed as impairing or enlarging any right or privilege acquired in any retirement or pension system by any judge or his or her dependents. [1997 c 88 § 4; 1981 c 186 § 2; 1973 c 114 § 2.] Chapter 2.08 Chapter 2.08 RCW SUPERIOR COURTS Sections 2.08.010 2.08.020 2.08.030 2.08.040 2.08.050 2.08.060 2.08.061 2.08.062 2.08.063 2.08.064 2.08.065 2.08.069 2.08.070 2.08.080 2.08.092 2.08.100 2.08.110 2.08.115 2.08.120 2.08.140 2.08.150 2.08.160 2.08.170 2.08.180 2.08.185 2.08.190 2.08.200 2.08.210 2.08.220 2.08.230 2.08.240 Original jurisdiction. Appellate jurisdiction. Courts of record—Sessions. Effect of adjournments. Seal of courts. Judges—Election. Judges—King, Spokane, and Pierce counties. Judges—Chelan, Douglas, Clark, Grays Harbor, Kitsap, Kittitas, and Lewis counties. Judges—Lincoln, Skagit, Walla Walla, Whitman, Yakima, Adams, and Whatcom counties. Judges—Benton, Franklin, Clallam, Jefferson, Snohomish, Asotin, Columbia, Garfield, Cowlitz, Klickitat, and Skamania counties. Judges—Grant, Ferry, Okanogan, Mason, Thurston, Pacific, Wahkiakum, Pend Oreille, Stevens, San Juan, and Island counties. Judges—Filling vacancies resulting from creation of additional judgeships. Terms of office. Oath of office. Salary of judges. Payment of county’s portion. Apportionment between counties in joint judicial district. Judge serving district comprising more than one county— Reimbursement for travel expenses. Vacancy, how filled. Visiting judge at direction of governor. Visiting judge at request of judge or judges. Sessions where more than one judge sits—Effect of decrees, orders, etc. Expenses of visiting judge. Judge pro tempore—Appointment—Oath—Compensation. Attorney serving as guardian ad litem—Disqualification as judge pro tempore or commissioner pro tempore—Circumstances. Powers of judge in counties of his district. Decisions and rulings in matters heard outside judge’s district. Extent of court’s process—Venue. Process, to whom directed. Uniform rules to be established. Limit of time for decision. [Title 2 RCW—page 7] 2.08.010 2.08.250 Title 2 RCW: Courts of Record Report to judges of supreme court. 2.08.040 Court filing fees: RCW 36.18.020. 2.08.040 Effect of adjournments. Adjournments from day to day, or from time to time, are to be construed as recesses in the sessions, and shall not prevent the court from sitting at any time. [1890 p 343 § 8; RRS § 26.] Family court: Chapter 26.12 RCW. Rules of court: Cf. CR 77(g). Basic juvenile court act: Chapter 13.04 RCW. Court commissioners: State Constitution Art. 4 § 23. Judiciary and judicial power: State Constitution Art. 4. 2.08.050 2.08.010 2.08.010 Original jurisdiction. The superior court shall have original jurisdiction in all cases in equity, and in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll or municipal fine, and in all other cases in which the demand or the value of the property in controversy amounts to three hundred dollars, and in all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for by law; of actions of forcible entry and detainer; of proceedings in insolvency; of actions to prevent or abate a nuisance; of all matters of probate, of divorce and for annulment of marriage, and for such special cases and proceedings as are not otherwise provided for; and shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court, and shall have the power of naturalization and to issue papers therefor. Said courts and their judges shall have power to issue writs of mandamus, quo warranto, review, certiorari, prohibition and writs of habeas corpus on petition by or on behalf of any person in actual custody in their respective counties. Injunctions and writs of prohibition and of habeas corpus may be issued on legal holidays and nonjudicial days. [1955 c 38 § 3; 1890 p 342 § 5; RRS § 15.] Jurisdiction of superior courts: State Constitution Art. 4 § 6 (Amendment 28). 2.08.020 2.08.020 Appellate jurisdiction. The superior courts shall have such appellate jurisdiction in cases arising in courts of limited jurisdiction in their respective counties as may be prescribed by law. [1987 c 202 § 102; 1890 p 343 § 6; RRS § 17.] Rules of court: See Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ). Intent—1987 c 202: See note following RCW 2.04.190. Appeals from district courts: Criminal, chapter 10.10 RCW; civil, chapter 12.36 RCW. municipal courts: Chapter 35.20 RCW. Jurisdiction of superior courts: State Constitution Art. 4 § 6 (Amendment 28). 2.08.030 2.08.030 Courts of record—Sessions. The superior courts are courts of record, and shall be always open, except on nonjudicial days. They shall hold their sessions at the county seats of the several counties, respectively, and at such other places within the county as are designated by the judge or judges thereof with the approval of the chief justice of the supreme court of this state and of the governing body of the county. They shall hold regular and special sessions in the several counties of this state at such times as may be prescribed by the judge or judges thereof. [1971 ex.s. c 60 § 1; 1890 p 343 § 7; RRS § 18.] Rules of court: Cf. CR 77(d), (f). Courts of record: State Constitution Art. 4 § 11. Open when: State Constitution Art. 4 § 6 (Amendment 28). [Title 2 RCW—page 8] 2.08.050 Seal of courts. The seals of the superior courts of the several counties of the state shall be, until otherwise provided by law, the vignette of General George Washington, with the words "Seal of the Superior Court of . . . . . . County, State of Washington," surrounding the vignette. [1890 p 345 § 17; RRS § 38.] 2.08.060 2.08.060 Judges—Election. There shall be in each of the counties a superior court. Judges of the superior court shall be elected at the general election in November, 1952, and every four years thereafter. [1951 c 125 § 2; 1949 c 237 §§ 1-5, part; 1945 c 20 § 1, part; 1933 ex.s. c 63 §§ 1-3, part; 1927 c 135 § 1, part; Rem. Supp. 1949 §§ 11045-1f-1i, part; Rem. Supp. 1945 §§ 11045-1d & 1e, part; RRS §§ 11045-1, 1a, 1b, 1c, part. Prior: 1925 ex.s. c 66 §§ 1-3, part; 1925 ex.s. c 132 §§ 1-4, part; 1917 c 97 §§ 1-5, part; 1913 c 17 §§ 1-4, part; 1911 c 40 §§ 1-3, part; 1911 c 62 §§ 1-3, part; 1911 c 76 §§ 1-3, part; 1911 c 129 §§ 1-3, part; 1911 c 131 §§ 1-2, part; 1909 c 10 §§ 1-3, part; 1909 c 12 §§ 1-3, part; 1909 c 52 §§ 1-3, part; 1909 c 94 §§ 1-3, part; 1907 c 79 §§ 1-3, part; 1907 c 106 § 1, part; 1907 c 178 §§ 1-2, part; 1905 c 9 §§ 1-3, part; 1905 c 36 §§ 1-4, part; 1903 c 50 § 1, part; 1895 c 89 § 1, part; 1891 c 68 §§ 1-3, part; 1890 p 341 § 1, part.] Election, terms, etc., superior judges: State Constitution Art. 4 § 5. Eligibility of judges: State Constitution Art. 4 § 17. Impeachment: State Constitution Art. 5. Judges ineligible to other office: State Constitution Art. 4 § 15. Judges may not practice law: State Constitution Art. 4 § 19. Removal from office: State Constitution Art. 4 § 9. 2.08.061 2.08.061 Judges—King, Spokane, and Pierce counties. There shall be in the county of King no more than fiftyeight judges of the superior court; in the county of Spokane thirteen judges of the superior court; and in the county of Pierce twenty-four judges of the superior court. [1997 c 347 § 3; 1996 c 208 § 3; 1992 c 189 § 1; 1989 c 328 § 2; 1987 c 323 § 1; 1985 c 357 § 1; 1980 c 183 § 1; 1979 ex.s. c 202 § 1; 1977 ex.s. c 311 § 1; 1973 1st ex.s. c 27 § 1; 1971 ex.s. c 83 § 5; 1969 ex.s. c 213 § 1; 1967 ex.s. c 84 § 1; 1963 c 48 § 1; 1961 c 67 § 1; 1955 c 176 § 1; 1951 c 125 § 3. Prior: 1949 c 237 §§ 1, 3; 1933 ex.s. c 63 § 1; 1927 c 135 § 1, part; 1925 ex.s. c 66 § 1; 1911 c 76 § 1; 1909 c 52 § 1; 1909 c 12 § 1; 1909 c 10 § 1; 1907 c 106 § 1; 1907 c 79 § 1, part; 1905 c 9 § 1; 1895 c 89 § 1, part; 1891 c 68 § 2; 1890 p 341 § 1, part; Rem. Supp. 1949 §§ 11045-1f, 11045-1h; RRS §§ 11045-1, 11045-1a, part.] Starting dates of additional judicial positions in Spokane county— Effective, starting dates of additional judicial positions in Pierce county—1997 c 347: "(1) The additional judicial positions created by section 3 of this act for the county of Spokane take effect upon July 27, 1997, but the actual starting dates for these positions may be established by the Spokane county commissioners upon the request of the superior court. (2) The additional positions created by section 3 of this act for the county of Pierce, take effect as follows: One additional judicial position is effective January 1, 1998; two positions are effective January 1, 1999; and two positions are effective January 1, 2000. The actual starting dates for (2006 Ed.) Superior Courts these positions may be established by the Pierce county council upon request of the superior court and by recommendation of the Pierce county executive." [1997 c 347 § 4.] Additional judicial position in Spokane county subject to approval and agreement—1996 c 208: "The additional judicial position created by section 3 of this act shall be effective only if Spokane county through its duly constituted legislative authority documents its approval of the additional position and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of the additional judicial position as provided by statute." [1996 c 208 § 4.] Effective dates—1992 c 189: "(1) Sections 1, 3, and 5 of this act shall take effect July 1, 1992. (2) The remainder of this act shall take effect July 1, 1993." [1992 c 189 § 7.] Additional judicial positions subject to approval and agreement— 1992 c 189: "The additional judicial positions created by sections 1, 2, 3, 4, and 5 of this act shall be effective only if each county through its duly constituted legislative authority documents its approval of any additional positions and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of such additional judicial positions as provided by statute." [1992 c 189 § 8.] Intent—1989 c 328: "The legislature recognizes the dramatic increase in cases filed in superior court over the last six years in King, Pierce, and Snohomish counties. This increase has created a need for more superior court judges in those counties. The increased caseload at the superior court level has also caused a similar increase in the case and petition filings in the court of appeals. Currently, the additional caseload is being handled by pro tempore judges and excessive caseloads for permanent judges. The addition of a permanent fulltime judge will allow the court to more efficiently process the growing caseload. By the creation of these additional positions, it is the intent of the legislature to promote the careful judicial review of cases by an elected judiciary." [1989 c 328 § 1.] Additional judicial positions subject to approval and agreement— 1989 c 328: "The additional judicial positions created by sections 2 and 3 of this act in Pierce and Snohomish counties shall be effective only if the county through its duly constituted legislative authority documents its approval of any additional positions and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of such additional judicial positions as provided by statute. The additional expenses include, but are not limited to, expenses incurred for court facilities." [1989 c 328 § 5.] Effective dates for additional judicial positions—1989 c 328 §§ 2 and 3: "(1) Three additional judicial positions created by section 2 of this 1989 act shall be effective January 1, 1990. (2) One additional judicial position created by section 3 of this act shall be effective July 1, 1990; the second position shall be effective not later than June 30, 1991." [1989 c 328 § 7.] Effective dates—Additional judicial positions in King, Chelan, and Douglas counties subject to approval and agreement—1989 c 328; 1987 c 323: "Sections 1 and 2 of this act shall take effect January 1, 1988. The additional judicial positions created by sections 1 and 2 of this act in King county and Chelan and Douglas counties shall be effective only if each county through its duly constituted legislative authority documents its approval of any additional positions and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of such additional judicial positions as provided by statute. The additional expenses include, but are not limited to, expenses incurred for court facilities. The legislative authorities of Chelan and Douglas counties may in their discretion phase in any additional judicial positions over a period of time not to extend beyond January 1, 1990. The legislative authority of King county may in its discretion phase in any additional judicial positions over a period of time not to extend beyond January 1, 1991." [1989 c 328 § 6; 1987 c 323 § 5.] Effective dates—Additional judicial positions in Pierce, Clark, and Snohomish counties subject to approval and agreement—1985 c 357: "(1) Sections 1 and 2 of this act shall take effect January 1, 1987. The additional judicial positions created by sections 1 and 2 of this act in Pierce and Clark counties shall be effective only if, prior to January 1, 1987, each county through its duly constituted legislative authority documents its approval of the additional positions and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of such additional judicial positions as provided by statute. The additional expenses (2006 Ed.) 2.08.062 include, but are not limited to, expenses incurred for court facilities. (2) Section 3 of this act shall take effect January 1, 1986. The additional judicial position created by section 3 of this act in Snohomish county shall be effective only if, prior to January 1, 1986, the county through its duly constituted legislative authority documents its approval of the additional position and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of such additional judicial position as provided by statute. The additional expenses include, but are not limited to, expenses incurred for court facilities." [1985 c 357 § 4.] Effective date—1977 ex.s. c 311: "This 1977 amendatory act shall take effect November 1, 1977." [1977 ex.s. c 311 § 6.] 2.08.062 2.08.062 Judges—Chelan, Douglas, Clark, Grays Harbor, Kitsap, Kittitas, and Lewis counties. There shall be in the county of Chelan four judges of the superior court; in the county of Douglas one judge of the superior court; in the county of Clark ten judges of the superior court; in the county of Grays Harbor three judges of the superior court; in the county of Kitsap eight judges of the superior court; in the county of Kittitas two judges of the superior court; in the county of Lewis three judges of the superior court. [2003 c 96 § 1; 1998 c 270 § 1; 1996 c 208 § 1; 1995 c 117 § 1; 1992 c 189 § 2; 1990 c 186 § 1; 1987 c 323 § 2; 1985 c 357 § 2; 1979 ex.s. c 202 § 2; 1977 ex.s. c 311 § 2; 1975-’76 2nd ex.s. c 79 § 1; 1971 ex.s. c 83 § 4; 1967 ex.s. c 84 § 2; 1963 c 48 § 2; 1951 c 125 § 4. Prior: 1945 c 20 § 1, part; 1927 c 135 § 1, part; 1911 c 131 § 1; 1907 c 79 § 1, part; 1907 c 178 § 1, part; 1905 c 36 § 1, part; 1895 c 89 § 1, part; 1891 c 68 § 3, part; 1890 p 341 § 1, part; Rem. Supp. 1945 § 11045-1d, part; RRS § 11045-1, part.] Effective dates for additional judicial positions—2003 c 96: "(1) The additional judicial positions created by sections 1 and 2 of this act in Clark county, Kitsap county, Kittitas county, and Benton and Franklin counties shall be effective only if each county through its duly constituted legislative authority documents its approval of any additional positions and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of such additional judicial positions as provided by statute. (2)(a) The additional judicial positions created by section 1 of this act for the county of Clark take effect as follows: One additional judicial position shall be effective no earlier than the second Monday in January 2004, and one additional position shall be effective no earlier than the second Monday in January 2005. The actual starting dates for the positions may be established by the Clark county legislative authority upon request of the superior court and by recommendation of the Clark county executive authority, if any. (b) The additional judicial position created by section 1 of this act for the county of Kitsap shall be effective no earlier than the second Monday in January 2005. The actual starting date for the position may be established by the Kitsap county legislative authority upon request of the superior court and by recommendation of the Kitsap county executive authority, if any. (c) The additional judicial position created by section 1 of this act for the county of Kittitas shall be effective no earlier than the second Monday in January 2004. The actual starting date for the position may be established by the Kittitas county legislative authority upon request of the superior court and by recommendation of the Kittitas county executive authority, if any. (d) The additional judicial position created by section 2 of this act jointly for the counties of Benton and Franklin shall be effective no earlier than July 1, 2003. The actual starting date for the position may be established by the Benton and Franklin county legislative authorities upon request of the superior court and by recommendation of the Benton and Franklin county executive authorities, if any." [2003 c 96 § 3.] Effective date—1998 c 270: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [April 1, 1998]." [1998 c 270 § 5.] Additional judicial positions in Clark, Lewis, and Yakima counties—Start dates—Establishment by county commissioners upon superior court request—1998 c 270: "(1) The additional judicial position created by section 1 of this act for the county of Clark takes effect on April 1, 1998, but the actual starting date for this position may be established by the [Title 2 RCW—page 9] 2.08.063 Title 2 RCW: Courts of Record Clark county commissioners upon the request of the superior court. (2) The additional judicial position created by section 1 of this act for the county of Lewis takes effect on April 1, 1998, but the actual starting date for this position may be established by the Lewis county commissioners upon the request of the superior court. (3) The additional judicial positions created by section 2 of this act for the county of Yakima take effect on April 1, 1998, but the actual starting dates for these positions may be established by the Yakima county commissioners upon the request of the superior court." [1998 c 270 § 4.] Additional judicial positions in Chelan and Douglas counties subject to approval and agreement—1996 c 208: "(1) The three judicial positions serving Chelan and Douglas counties jointly are allocated to Chelan county, effective upon appointment of a judge to the Douglas county superior court. The additional judicial positions created by section 1, chapter 208, Laws of 1996, are allocated one to Chelan county and one to Douglas county and each position becomes effective only if each county, through its duly constituted legislative authority, documents its approval of the additional position and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of the additional judicial position as provided by state law or the state Constitution. (2) The judicial positions created by section 1, chapter 208, Laws of 1996, shall be effective January 1, 1997." [1998 c 270 § 3; 1996 c 208 § 2.] Effect—Additional judicial position in Clark county subject to approval and agreement—1995 c 117: "The additional judicial position created by section 1 of this act is effective only if Clark county through its duly constituted legislative authority documents its approval of the additional position and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of the additional judicial position as provided by state law or the state Constitution." [1995 c 117 § 2.] Effective dates—Additional judicial positions subject to approval and agreement—1992 c 189: See notes following RCW 2.08.061. Effective dates—Additional judicial positions in Kitsap and Thurston counties subject to approval and agreement—1990 c 186: "(1)(a) One additional judicial position created by section 1 of this act and the additional judicial position created by section 2 of this act shall be effective July 1, 1990. (b) The second additional judicial position created by section 1 of this act shall be effective not later than, and at the discretion of the legislative authority may be phased in at any time before, January 1, 1994. (2) The additional judicial positions created by sections 1 and 2 of this act in Kitsap and Thurston counties shall be effective only if the county through its duly constituted legislative authority documents its approval of any additional positions and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of such additional judicial positions as provided by statute. The additional expenses include, but are not limited to, expenses incurred for court facilities." [1990 c 186 § 4.] Effective dates—Additional judicial positions in King, Chelan, and Douglas counties subject to approval and agreement—1987 c 323: See note following RCW 2.08.061. Effective dates—Additional judicial positions in Pierce, Clark, and Snohomish counties subject to approval and agreement—1985 c 357: See note following RCW 2.08.061. Adjustment in judicial services: See note following RCW 2.08.065. Effective date—1977 ex.s. c 311: See note following RCW 2.08.061. 2.08.063 2.08.063 Judges—Lincoln, Skagit, Walla Walla, Whitman, Yakima, Adams, and Whatcom counties. There shall be in the county of Lincoln one judge of the superior court; in the county of Skagit, four judges of the superior court; in the county of Walla Walla, two judges of the superior court; in the county of Whitman, one judge of the superior court; in the county of Yakima, eight judges of the superior court; in the county of Adams, one judge of the superior court; in the county of Whatcom, three judges of the superior court. [2005 c 95 § 1; 1998 c 270 § 2; 1992 c 189 § 3; 1988 c 66 § 1; 1975 1st ex.s. c 49 § 1; 1973 1st ex.s. c 27 § 2; 1971 ex.s. c 83 § 1; 1963 c 48 § 3; 1955 c 19 § 1; 1951 c 125 § 5. Prior: 1949 c 237 §§ 2, 4; 1945 c 20 § 1, part; 1927 c 135 § [Title 2 RCW—page 10] 1, part; 1917 c 97 § 5, part; 1911 c 62 § 1; 1911 c 129 § 2, part; 1907 c 79 § 1, part; 1895 c 89 § 1, part; 1891 c 68 § 3, part; 1890 p 341 § 1, part; Rem. Supp. 1949 §§ 11045-1j, 11045-1i; Rem. Supp. 1945 § 11045-1d, part; RRS § 110451, part.] Contingency of additional judicial position—2005 c 95: "The additional judicial position created by section 1 of this act in Skagit county shall be effective only if the county through its legislative authority documents its approval by January 1, 2007, of the additional position and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of the additional judicial position as provided by statute. The additional expenses include, but are not limited to, expenses incurred for court facilities." [2005 c 95 § 2.] Effective date—Additional judicial positions in Clark, Lewis, and Yakima counties—Start dates—Establishment by county commissioners upon superior court request—1998 c 270: See notes following RCW 2.08.062. Effective dates—Additional judicial positions subject to approval and agreement—1992 c 189: See notes following RCW 2.08.061. Effect—Additional judicial position in Yakima county subject to approval and agreement—1988 c 66: "The additional judicial position created by section 1 of this act in Yakima county shall be effective only if the county through its legislative authority documents its approval by January 1, 1990, of the additional position and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of the additional judicial position as provided by statute. The additional expenses include, but are not limited to, expenses incurred for court facilities." [1988 c 66 § 2.] 2.08.064 2.08.064 Judges—Benton, Franklin, Clallam, Jefferson, Snohomish, Asotin, Columbia, Garfield, Cowlitz, Klickitat, and Skamania counties. There shall be in the counties of Benton and Franklin jointly, six judges of the superior court; in the county of Clallam, three judges of the superior court; in the county of Jefferson, one judge of the superior court; in the county of Snohomish, fifteen judges of the superior court; in the counties of Asotin, Columbia and Garfield jointly, one judge of the superior court; in the county of Cowlitz, five judges of the superior court; in the counties of Klickitat and Skamania jointly, one judge of the superior court. [2006 c 20 § 1; 2003 c 96 § 2; 1997 c 347 § 1; 1993 sp.s. c 14 § 1; 1992 c 189 § 4; 1989 c 328 § 3; 1985 c 357 § 3; 1982 c 139 § 2; 1981 c 65 § 1; 1979 ex.s. c 202 § 3; 1977 ex.s. c 311 § 3; 1974 ex.s. c 192 § 1; 1971 ex.s. c 83 § 3; 1969 ex.s. c 213 § 2; 1967 ex.s. c 84 § 3; 1963 c 35 § 1; 1961 c 67 § 2; 1955 c 19 § 2; 1951 c 125 § 6. Prior: 1945 c 20 § 1, part; 1927 c 135 § 1, part; 1925 ex.s. c 132 § 1; 1917 c 97 §§ 1-3; 1911 c 40 § 1; 1911 c 129 §§ 1, 2, part; 1907 c 79 § 1, part; 1905 c 36 § 1, part; 1895 c 89 § 1, part; 1891 c 68 §§ 1, 3, part; 1890 p 341 § 1, part; Rem. Supp. 1945 § 11045-1d, part; RRS § 11045-1, part.] Additional judicial positions in Clallam and Cowlitz counties subject to approval and agreement—2006 c 20: "The additional judicial positions created by section 1 of this act in Clallam and Cowlitz counties are effective only if each county through its duly constituted legislative authority documents its approval of the additional position and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of the existing and additional judicial positions as provided by statute and the state Constitution." [2006 c 20 § 2.] Effective dates for additional judicial positions—2003 c 96: See note following RCW 2.08.062. Starting dates of additional judicial positions in Snohomish county—1997 c 347: "The additional judicial positions created for the county of Snohomish under section 1 of this act are effective January 1, 1998, but the actual starting dates for these positions may be established by (2006 Ed.) Superior Courts the Snohomish county council upon request of the superior court and by the recommendation of the Snohomish county executive." [1997 c 347 § 2.] Additional judicial position in Cowlitz county subject to approval and agreement—1993 sp.s. c 14: "The additional judicial position created by section 1 of this act shall be effective only if Cowlitz county through its duly constituted legislative authority documents its approval of the additional position and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of the additional judicial position as provided by statute." [1993 sp.s. c 14 § 2.] Effective dates—Additional judicial positions subject to approval and agreement—1992 c 189: See notes following RCW 2.08.061. 2.08.070 position and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of the existing and additional judicial positions as provided by state law or the state Constitution." [1999 c 245 § 2.] Additional judicial positions in Thurston county subject to approval and agreement—1996 c 208: "The additional judicial positions created by section 5 of this act are effective only if Thurston county through its duly constituted legislative authority documents its approval of the additional positions and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of the additional judicial positions as provided by state law or the state Constitution." [1996 c 208 § 6.] Intent—Additional judicial positions subject to approval and agreement—Effective dates for additional judicial positions—1989 c 328: See notes following RCW 2.08.061. Effective dates—Additional judicial positions in Pierce, Clark, and Snohomish counties subject to approval and agreement—1989 c 328; 1985 c 357: See note following RCW 2.08.061. Effective dates of additional judicial positions in Thurston county— 1996 c 208: "One judicial position created by section 5 of this act shall be effective July 1, 1996; the second position shall be effective July 1, 2000." [1996 c 208 § 7.] Effective dates—Additional judicial positions subject to approval and agreement—1992 c 189: See notes following RCW 2.08.061. Additional judicial positions in Clallam and Jefferson counties subject to approval and agreement—1982 c 139: "The additional judicial positions created by section 2 of this 1982 act in Clallam and Jefferson counties shall be effective only if, prior to April 1, 1982, each county through its duly constituted legislative authority documents its approval of the additional positions and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of such additional judicial positions as provided by statute." [1982 c 139 § 3.] Additional judicial positions in Ferry, Stevens, and Pend Oreille district subject to approval and agreement—1982 c 139; 1981 c 65: "The additional judicial position created by this 1981 act in the joint Ferry, Stevens, and Pend Oreille judicial district shall be effective only if each county in the judicial district through its duly constituted legislative authority documents its approval of the additional position and its agreement that it and the other counties comprising the judicial district will pay out of county funds, without reimbursement from the state, the expenses of such additional judicial position as provided by statute. As among the counties, the amount of the judge’s salary to be paid by each county shall be in accordance with RCW 2.08.110 unless otherwise agreed upon by the counties involved." [1982 c 139 § 1; 1981 c 65 § 3.] Effective date—1977 ex.s. c 311: See note following RCW 2.08.061. 2.08.065 2.08.065 Judges—Grant, Ferry, Okanogan, Mason, Thurston, Pacific, Wahkiakum, Pend Oreille, Stevens, San Juan, and Island counties. There shall be in the county of Grant, three judges of the superior court; in the county of Okanogan, two judges of the superior court; in the county of Mason, two judges of the superior court; in the county of Thurston, eight judges of the superior court; in the counties of Pacific and Wahkiakum jointly, one judge of the superior court; in the counties of Ferry, Pend Oreille, and Stevens jointly, two judges of the superior court; and in the counties of San Juan and Island jointly, two judges of the superior court. [1999 c 245 § 1; 1996 c 208 § 5; 1992 c 189 § 5; 1990 c 186 § 2; 1986 c 76 § 1; 1981 c 65 § 2; 1979 ex.s. c 202 § 4; 1977 ex.s. c 311 § 4; 1973 1st ex.s. c 27 § 3; 1971 ex.s. c 83 § 2; 1969 ex.s. c 213 § 3; 1955 c 159 § 1; 1951 c 125 § 7. Prior: 1927 c 135 § 1, part; 1917 c 97 §§ 4, 5, part; 1913 c 17 § 1; 1911 c 131 § 2; 1907 c 79 § 1, part; 1907 c 178 § 1, part; 1903 c 50 § 1, part; 1895 c 89 § 1, part; 1891 c 68 §§ 1, 3, part; 1890 p 341 § 1, part; RRS § 11045-1, part.] Effective dates—Additional judicial positions in Kitsap and Thurston counties subject to approval and agreement—1990 c 186: See note following RCW 2.08.062. Effective date—Appointment of additional judicial position—1986 c 76: "(1) Pursuant to RCW 2.08.069, the governor shall appoint a person to fill the judicial position created by section 1 of this act in Mason county. The five judges of the superior court serving in the Thurston/Mason judicial district on January 1, 1987, shall be assigned to the new Thurston county judicial district. (2) This act shall take effect January 1, 1987. The additional judicial position created by section 1 of this act in Mason county shall be effective only if, before January 1, 1987, Thurston and Mason counties, through their duly constituted legislative authorities, document their approval of the additional position and their agreement that they will pay out of county funds, without reimbursement from the state, the expenses resulting from section 1 of this act." [1986 c 76 § 2.] Additional judicial positions subject to approval and agreement: See note following RCW 2.08.064. Adjustment in judicial services provided for Douglas, Grant, and Chelan counties: "The superior court judge serving in position two, as designated by the county auditors of Grant and Douglas counties for the 1976 general election, in the counties of Grant and Douglas prior to the effective date of this 1979 act, shall thereafter serve jointly in the counties of Douglas and Chelan, along with the judge previously serving only in Chelan county. The additional superior court judge position created by this 1979 act shall be for Grant county alone, which shall retain the judge in position one previously serving jointly in the counties of Grant and Douglas." [1979 ex.s. c 202 § 5.] Effective date—1977 ex.s. c 311: See note following RCW 2.08.061. 2.08.069 2.08.069 Judges—Filling vacancies resulting from creation of additional judgeships. Unless otherwise provided, upon the taking effect of any act providing for additional judges of the superior court and thereby creating a vacancy, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall be at the next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term. [1955 c 38 § 4; 1951 c 125 § 8.] Vacancy, how filled: RCW 2.08.120. 2.08.070 Additional judicial positions subject to approval and agreement— 1999 c 245: "(1) The additional judicial position for Grant county created by section 1 of this act is effective only if Grant county through its duly constituted legislative authority documents its approval of the additional position and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of the additional judicial position as provided by state law or the state Constitution. (2) The additional judicial position for Okanogan county created by section 1 of this act is effective only if Okanogan county through its duly constituted legislative authority documents its approval of the additional (2006 Ed.) 2.08.070 Terms of office. The judges of the superior court elected under the provisions of RCW 2.08.060 through 2.08.065 shall hold their offices for the term of four years from and after the second Monday in January next succeeding their election, and until their successors are elected and qualified. [1927 c 135 § 2; RRS § 11045-2.] Election, terms, etc., superior judges: State Constitution Art. 4 § 5. Forfeiture of office for absence: State Constitution Art. 4 § 8. [Title 2 RCW—page 11] 2.08.080 Title 2 RCW: Courts of Record Removal of judges: State Constitution Art. 4 § 9. 2.08.080 2.08.080 Oath of office. Every judge of a superior court shall, before entering upon the duties of his office, take and subscribe an oath that he will support the Constitution of the United States and the Constitution of the state of Washington, and will faithfully and impartially discharge the duties of judge to the best of his ability, which oath shall be filed in the office of the secretary of state. Such oath or affirmation to be in form substantially the same as prescribed for justices of the supreme court. [1971 c 81 § 5; 1890 p 344 § 15; RRS § 11051.] Oath of judges: State Constitution Art. 4 § 28. 2.08.092 2.08.092 Salary of judges. The annual salary of the judges of the superior court shall be established by the Washington citizens’ commission on salaries for elected officials. [1986 c 155 § 6; 1984 c 258 § 403.] Contingent effective date—Severability—1986 c 155: See notes following RCW 43.03.300. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Salaries of judicial officers: State Constitution Art. 4 § 13, 14; Art. 28 § 1; Art. 30 § 1. Washington citizens’ commission on salaries for elected officials: RCW 43.03.305. 2.08.100 2.08.100 Payment of county’s portion. The county auditor of each county shall pay superior court judges in the same means and manner provided for all other elected officials. [1997 c 204 § 1; 1939 c 189 § 1; 1893 c 30 § 1; 1890 p 329 § 2; RRS § 10967.] Distribution of work of courts by chief justice: RCW 2.56.040. 2.08.110 2.08.110 Apportionment between counties in joint judicial district. Where there is only one judge of the superior court for two or more counties, the auditors thereof, acting together, shall apportion among or between such counties, according to the assessed valuation of their taxable property, the amount of such judge’s salary that each county shall pay. [1890 p 329 § 3; RRS § 10968.] 2.08.115 2.08.115 Judge serving district comprising more than one county—Reimbursement for travel expenses. Whenever a judge of the superior court shall serve a district comprising more than one county, such judge shall be reimbursed for travel expenses in connection with business of the court in accordance with RCW 43.03.050 and 43.03.060 as now existing or hereafter amended for travel from his residence to the other county or counties in his district and return. [1975-’76 2nd ex.s. c 34 § 1.] Severability—1975-’76 2nd ex.s. c 34: "If any provision of this 1976 amendatory act, or its application to any person or circumstance is held invalid, the remainder of this 1976 amendatory act, or the application of the provision to other persons or circumstances is not affected." [1975-’76 2nd ex.s. c 34 § 182.] Effective date—1975-’76 2nd ex.s. c 34: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect on July 1, 1976." [1975-’76 2nd ex.s. c 34 § 183.] [Title 2 RCW—page 12] 2.08.120 Vacancy, how filled. If a vacancy occurs in the office of judge of the superior court, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall be at the next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term. [1955 c 38 § 5. Prior: 1890 p 342 § 4; 1937 c 15 § 2; RRS § 11049.] 2.08.120 Superior court—Election of judges, terms of, etc.: State Constitution Art. 4 § 5. Vacancies resulting from additional judgeships: RCW 2.08.069. 2.08.140 Visiting judge at direction of governor. Whenever a judge of the superior court of any county in this state, or a majority of such judges in any county in which there is more than one judge of said court, shall request the governor of the state to direct a judge of the superior court of any other county to hold a session of the superior court of any such county as is first herein above mentioned, the governor shall thereupon request and direct a judge of the superior court of some other county, making such selection as the governor shall deem to be most consistent with the state of judicial business in other counties, to hold a session of the superior court in the county the judge shall have requested the governor as aforesaid. Such request and direction by the governor shall be made in writing, and shall specify the county in which he directs the superior judge to whom the same is addressed to hold such session of the superior court, and the period during which he is to hold such session. Thereupon it shall be the duty of the superior judge so requested, and he is hereby empowered to hold a session of the superior court of the county specified by the governor, at the seat of judicial business thereof, during the period specified by the governor, and in such quarters as the county commissioners of said county may provide for the holding of such session. [1893 c 43 § 1; RRS § 27. Prior: 1890 p 343 § 10.] 2.08.140 Duty to hold court in other county or district: RCW 2.56.040. 2.08.150 Visiting judge at request of judge or judges. Whenever a like request shall be addressed by the judge, or by a majority of the judges (if there be more than one) of the superior court of any county to the superior judge of any other county, he is hereby empowered, if he deem it consistent with the state of judicial business in the county or counties whereof he is a superior judge (and in such case it shall be his duty to comply with such request), to hold a session of the superior court of the county the judge or judges whereof shall have made such request, at the seat of judicial business of such county, in such quarters as shall be provided for such session by the board of county commissioners, and during such period as shall have been specified in the request, or such shorter period as he may deem necessary by the state of judicial business in the county or counties whereof he is a superior judge. [1893 c 43 § 2; RRS § 28. Prior: 1890 p 343 § 10.] 2.08.150 2.08.160 Sessions where more than one judge sits— Effect of decrees, orders, etc. In any county where there shall be more than one superior judge, or in which a superior judge of another county may be holding a session of the superior court, as provided in RCW 2.08.140 through 2.08.170, 2.08.160 (2006 Ed.) Superior Courts there may be as many sessions of the superior court at the same time as there are judges thereof, or assigned to duty therein by the governor, or responding to a request made as provided in RCW 2.08.150. In such cases the business of the court shall be so distributed and assigned by law, or in the absence of legislation therefor, by such rules and orders of the court as shall best promote and secure the convenient and expeditious transaction thereof. Judgments, decrees, orders and proceedings of any session of the superior court held by one or more of the judges of said court, or by any judge of the superior court of another county pursuant to the provisions of RCW 2.08.140 through 2.08.170, shall be equally effectual as if all the judges of such court presided at such session. [1893 c 43 § 3; RRS § 29. Prior: 1890 p 341 § 2.] 2.08.170 2.08.170 Expenses of visiting judge. Any judge of the superior court of any county in this state who shall hold a session of the superior court of any other county, in pursuance of the provisions of RCW 2.08.140 through 2.08.170 shall be entitled to receive from the county in which he shall hold such sessions reimbursement for subsistence, lodging, and travel expenses in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060 as now or hereafter amended. The county clerk of such county shall, upon the presentation to him by such judge of a statement of such expenses, verified by his affidavit, issue to such judge a certificate that he is entitled to the amount thereof; and upon presentation of such certificate to the auditor of such county he shall draw a warrant on the current expense fund of such county for the amount in favor of such judge. [1981 c 186 § 3; 1893 c 43 § 4; RRS § 30. Prior: 1890 p 329 § 4.] Holding court in another county or district—Reimbursement for expenses: RCW 2.56.070. 2.08.180 2.08.180 Judge pro tempore—Appointment— Oath—Compensation. A case in the superior court of any county may be tried by a judge pro tempore, who must be either: (1) A member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court, and sworn to try the case; or (2) pursuant to supreme court rule, any sitting elected judge. Any action in the trial of such cause shall have the same effect as if it was made by a judge of such court. However, if a previously elected judge of the superior court retires leaving a pending case in which the judge has made discretionary rulings, the judge is entitled to hear the pending case as a judge pro tempore without any written agreement. A judge pro tempore shall, before entering upon his or her duties in any cause, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm, as the case may be,) that I will support the Constitution of the United States and the Constitution of the State of Washington, and that I will faithfully discharge the duties of the office of judge pro tempore in the cause wherein . . . . . . is plaintiff and . . . . . . defendant, according to the best of my ability." A judge pro tempore who is a practicing attorney and who is not a retired justice of the supreme court or judge of a superior court of the state of Washington, or who is not an active judge of a court of the state of Washington, shall receive a compensation of one-two hundred fiftieth of the (2006 Ed.) 2.08.200 annual salary of a superior court judge for each day engaged in said trial, to be paid in the same manner as the salary of the superior judge. A judge who is an active full-time judge of a court of the state of Washington shall receive no compensation as judge pro tempore. A judge who is an active part-time judge of a court of the state of Washington may receive compensation as a judge pro tempore only when sitting as a judge pro tempore during time for which he or she is not compensated as a part-time judge. A justice or judge who has retired from the supreme court, court of appeals, or superior court of the state of Washington shall receive compensation as judge pro tempore in the amount of sixty percent of the amount payable to a judge pro tempore under this section, provided that a retired justice or judge may decline to accept compensation. [2005 c 142 § 1; 2003 c 247 § 1; 2002 c 137 § 1; 1987 c 73 § 1; 1971 c 81 § 6; 1967 c 149 § 1; 1890 p 343 § 11; RRS § 40.] Contingent effective date—1987 c 73: "This act shall take effect January 1, 1988, if the proposed amendment to Article IV, section 7 of the state Constitution, allowing retiring judges to hear pending cases, is validly submitted to and is approved and ratified by the voters at a general election held in November, 1987. If the proposed amendment is not so approved and ratified, this act shall be null and void in its entirety." [1987 c 73 § 2.] Amendment 80 of the state Constitution, amending Article IV, section 7, was approved by the voters November 3, 1987. Judges pro tempore: State Constitution Art. 4 § 7. appointments: RCW 2.56.170. 2.08.185 2.08.185 Attorney serving as guardian ad litem— Disqualification as judge pro tempore or commissioner pro tempore—Circumstances. An attorney may not serve as a superior court judge pro tempore or a superior court commissioner pro tempore in a judicial district while appointed to or serving on a case in that judicial district as a guardian ad litem for compensation under Title 11, 13, or 26 RCW, if that judicial district is contained within division one or two of the court of appeals and has a population of more than one hundred thousand. [1996 c 249 § 12.] Intent—1996 c 249: See note following RCW 2.56.030. 2.08.190 2.08.190 Powers of judge in counties of his district. Any judge of the superior court of the state of Washington shall have power, in any county within his district: (1) To sign all necessary orders and papers in probate matters pending in any other county in his district; (2) to issue restraining orders, and to sign the necessary orders of continuance in actions or proceedings pending in any other county in his district; (3) to decide and rule upon all motions, demurrers, issues of fact or other matters that may have been submitted to him in any other county. All such rulings and decisions shall be in writing and shall be filed immediately with the clerk of the proper county: PROVIDED, That nothing herein contained shall authorize the judge to hear any matter outside of the county wherein the cause or proceeding is pending, except by consent of the parties. [1901 c 57 § 1; RRS § 41.] 2.08.200 2.08.200 Decisions and rulings in matters heard outside judge’s district. Any judge of the superior court of the state of Washington who shall have heard any cause, either upon motion, demurrer, issue of fact, or other matter in any county out of his district, may decide, rule upon, and determine the same in any county in this state, which decision, rul[Title 2 RCW—page 13] 2.08.210 Title 2 RCW: Courts of Record ing and determination shall be in writing and shall be filed immediately with the clerk of the county where such cause is pending. [1901 c 57 § 2; RRS § 42.] Rules of court: Statute modified or superseded by CR 7(c). 2.08.210 Extent of court’s process—Venue. The process of the superior courts shall extend to all parts of the state: PROVIDED, That all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon, real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions is situated. [1890 p 343 § 9; RRS § 32.] 2.08.210 Rules of court: Cf. CR 4(f). Extent of process: State Constitution Art. 4 § 6 (Amendment 28). Venue: Chapter 4.12 RCW. 2.08.220 Process, to whom directed. Unless otherwise provided by statute, all process issuing out of the court shall be directed to the sheriff of the county in which it is to be served, and be by him executed according to law. [1891 c 45 § 5; RRS § 35.] 2.10.080 2.10.090 2.10.100 2.10.110 2.10.120 2.10.130 2.10.140 2.10.144 2.10.146 2.10.155 2.10.165 2.10.170 2.10.180 2.10.190 2.10.200 2.10.210 2.10.220 2.10.230 Funds and securities. Funding. Retirement for service or age. Service retirement allowance. Retirement for disability—Procedure. Retirement for disability allowance. Survivor’s benefits. Payment of accumulated contributions or retirement allowance upon death—Election. Election of option for payment of retirement or disability allowance—Retirement allowance adjustment. Suspension of retirement allowance upon employment— Exceptions—Reinstatement—Pro tempore service. Refund of certain contributions. Cost of living adjustment. Benefits exempt from taxation and judicial process—Exceptions—Deductions for group insurance premiums. Hearing prior to judicial review—Required—Notice. Hearing prior to judicial review—Conduct. Hearing prior to judicial review—No bond required. Transfer to system—Prior service credit. Cessation of benefits upon appointment or election to court. 2.08.220 2.10.010 2.10.010 Short title. This chapter shall be known and cited as the Washington Judicial Retirement System Act. [1971 ex.s. c 267 § 1.] 2.10.020 2.08.230 Uniform rules to be established. The judges of the superior courts shall, from time to time, establish uniform rules for the government of the superior courts. [1890 p 344 § 13; RRS § 36.] 2.08.230 Rule-making power, supreme court: RCW 2.04.180 through 2.04.210. Superior court rules: State Constitution Art. 4 § 24. Supplementary superior court rules: RCW 2.04.210. Uniform court rules: RCW 2.16.040. 2.08.240 Limit of time for decision. Every case submitted to a judge of a superior court for his decision shall be decided by him within ninety days from the submission thereof: PROVIDED, That if within said period of ninety days a rehearing shall have been ordered, then the period within which he is to decide shall commence at the time the cause is submitted upon such rehearing, and upon wilful failure of any such judge so to do, he shall be deemed to have forfeited his office. [1890 p 344 § 12; RRS § 39.] 2.08.240 Decisions, when to be made: State Constitution Art. 4 § 20. Payment of county’s portion: RCW 2.08.100. 2.08.250 Report to judges of supreme court. Superior judges shall, on or before the first day of November in each year, report in writing to the judges of the supreme court, such defects and omissions in the laws as their experience may suggest. [1890 p 344 § 14; RRS § 11050.] 2.08.250 Annual report to supreme court: State Constitution Art. 4 § 25. Chapter 2.10 Chapter 2.10 RCW JUDICIAL RETIREMENT SYSTEM Sections 2.10.010 2.10.020 2.10.030 2.10.040 2.10.052 2.10.070 Short title. Purpose. Definitions. System created—Coverage—Exclusions. Retirement board abolished—Transfer of powers, duties, and functions. Retirement board—Duties. [Title 2 RCW—page 14] 2.10.020 Purpose. The purpose of this chapter is to effect a system of retirement from active service. [1971 ex.s. c 267 § 2.] 2.10.030 2.10.030 Definitions. (1) "Retirement system" means the "Washington judicial retirement system" provided herein. (2) "Judge" means a person elected or appointed to serve as judge of a court of record as provided in chapters 2.04, 2.06, and 2.08 RCW. "Judge" does not include a person serving as a judge pro tempore except for a judge pro tempore appointed under RCW 2.04.240(2) or 2.06.150(2). (3) "Retirement board" means the "Washington judicial retirement board" established herein. (4) "Surviving spouse" means the surviving widow or widower of a judge. "Surviving spouse" does not include the divorced spouse of a judge. (5) "Retirement fund" means the "Washington judicial retirement fund" established herein. (6) "Beneficiary" means any person in receipt of a retirement allowance, disability allowance or any other benefit described herein. (7) "Monthly salary" means the monthly salary of the position held by the judge. (8) "Service" means all periods of time served as a judge, as herein defined. Any calendar month at the beginning or end of a term in which ten or more days are served shall be counted as a full month of service: PROVIDED, That no more than one month’s service may be granted for any one calendar month. Only months of service will be counted in the computation of any retirement allowance or other benefit provided for in this chapter. Years of service shall be determined by dividing the total months of service by twelve. Any fraction of a year of service as so determined shall be taken into account in the computation of such retirement allowance or benefit. (9) "Final average salary" means (a) for a judge in service in the same court for a minimum of twelve consecutive months preceding the date of retirement, the salary attached to the position held by the judge immediately prior to retire(2006 Ed.) Judicial Retirement System ment; (b) for any other judge, the average monthly salary paid over the highest twenty-four month period in the last ten years of service. (10) "Retirement allowance" for the purpose of applying cost of living increases or decreases includes retirement allowances, disability allowances and survivorship benefit. (11) "Index" means for any calendar year, that year’s annual average consumer price index for urban wage earners and clerical workers, all items (1957-1959 equal one hundred) — compiled by the bureau of labor statistics, United States department of labor. (12) "Accumulated contributions" means the total amount deducted from the judge’s monthly salary pursuant to RCW 2.10.090, together with the regular interest thereon from July 1, 1988, as determined by the director of the department of retirement systems. [1997 c 88 § 5; 1988 c 109 § 1; 1971 ex.s. c 267 § 3.] Effective date—1988 c 109: "This act shall take effect July 1, 1988." [1988 c 109 § 27.] 2.10.040 2.10.040 System created—Coverage—Exclusions. The Washington judicial retirement system is hereby created for judges appointed or elected under the provisions of chapters 2.04, 2.06, and 2.08 RCW. All judges first appointed or elected to the courts covered by these chapters on or after August 9, 1971, and prior to July 1, 1988, shall be members of this system: PROVIDED, That following February 23, 1984, and until July 1, 1988, any newly elected or appointed judge holding credit toward retirement benefits under chapter 41.40 RCW shall be allowed thirty days from the effective date of election or appointment to such judgeship to make an irrevocable choice filed in writing with the department of retirement systems to continue coverage under that chapter and to be permanently excluded from coverage under this chapter for the current or any future term as a judge. All judges first appointed or elected to the courts covered by these chapters on or after July 1, 1988, shall not be members of this system, but may become members of the public employees’ retirement system under chapter 41.40 RCW on the same basis as other elected officials as provided in RCW 41.40.023(3). Any member of the retirement system who is serving as a judge as of July 1, 1988, has the option on or before December 31, 1989, of becoming a member of the retirement system created in chapter 41.40 RCW, subject to the conditions imposed by RCW 41.40.095. The option may be exercised by making an irrevocable choice filed in writing with the department of retirement systems to be permanently excluded from this system for all service as a judge. In the case of a former member of the retirement system who is not serving as a judge on July 1, 1988, the written election must be filed within one year after reentering service as a judge. [1988 c 109 § 2; 1984 c 37 § 1; 1971 ex.s. c 267 § 4.] Effective date—1988 c 109: See note following RCW 2.10.030. Transfers to system, prior service credit: RCW 2.10.220. 2.10.052 2.10.052 Retirement board abolished—Transfer of powers, duties, and functions. The Washington judicial retirement board established by this chapter is abolished. All (2006 Ed.) 2.10.080 powers, duties, and functions of the board are transferred to the director of retirement systems. [1982 c 163 § 1.] Severability—1982 c 163: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1982 c 163 § 24.] Effective date—1982 c 163: "This act shall take effect June 30, 1982." [1982 c 163 § 25.] 2.10.070 2.10.070 Retirement board—Duties. The retirement board shall perform the following duties: (1) Keep in convenient form such data as shall be deemed necessary for actuarial evaluation purposes; (2) As of July 1 of every even-numbered year have an actuarial evaluation made as to the mortality and service experience of the beneficiaries under this chapter and the various accounts created for the purpose of showing the financial status of the retirement fund; (3) Adopt for the retirement system the mortality tables and such other tables as shall be deemed necessary; (4) Keep a record of its proceedings, which shall be open to inspection by the public; (5) Serve without compensation but shall be reimbursed for expense incident to service as individual members thereof; (6) From time to time adopt such rules and regulations not inconsistent with this chapter for the administration of this chapter and for the transaction of the business of the board. No member of the board shall be liable for the negligence, default or failure of any employee or of any member of the board to perform the duties of his office and no member of the board shall be considered or held to be an insurer of the funds or assets of the retirement system, but shall be liable only for his own personal default or individual failure to perform his duties as such member and to exercise reasonable diligence in providing for safeguarding of the funds and assets of the system. [1971 ex.s. c 267 § 7.] 2.10.080 2.10.080 Funds and securities. (1) The state treasurer shall be the custodian of all funds and securities of the retirement system. Disbursements from this fund shall be made by the state treasurer upon receipt of duly authorized vouchers. (2) The state treasurer is hereby authorized and directed to deposit any portion of the funds of the retirement system not needed for immediate use in the same manner and subject to all the provisions of law with respect to the deposit of state funds by such treasurer. All investment income earned by such portion of the retirement system’s funds as may be deposited by the state treasurer in pursuance of authority herewith given shall be collected by him or her and placed to the credit of the retirement fund, less the allocation to the state investment board expense account pursuant to RCW 43.33A.160 and to the state treasurer’s service fund pursuant to RCW 43.08.190. (3) The state investment board established by RCW 43.33A.020 has full power to invest or reinvest the funds of this system in those classes of investments authorized by RCW 43.84.150. (4) For the purpose of providing amounts to be used to defray the cost of administration, the judicial retirement [Title 2 RCW—page 15] 2.10.090 Title 2 RCW: Courts of Record board shall ascertain at the beginning of each biennium and request from the legislature an appropriation sufficient to cover estimated expenses for the said biennium. [1991 sp.s. c 13 § 114; 1981 c 3 § 22; 1973 1st ex.s. c 103 § 1; 1971 ex.s. c 267 § 8.] Effective dates—Severability—1991 sp.s. c 13: See notes following RCW 18.08.240. Intent of amendment—1981 c 3: "The amendment of RCW 2.10.080, 2.12.070, 41.26.060, 41.26.070, and 41.40.080 by this 1980 act is intended solely to provide for the investment of state funds and is not intended to alter the administration of the affected retirement systems by the department of retirement systems under chapter 41.50 RCW." [1981 c 3 § 44.] Effective dates—Severability—1981 c 3: See notes following RCW 43.33A.010. Severability—1973 1st ex.s. c 103: "If any provision of this 1973 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1973 1st ex.s. c 103 § 20.] 2.10.090 2.10.090 Funding. The total liability, as determined by the actuary, of this system shall be funded as follows: (1) Every judge shall have deducted from his monthly salary an amount equal to seven and one-half percent of said salary. (2) The state as employer shall contribute an equal amount on a quarterly basis. (3) The state shall in addition guarantee the solvency of said fund and the legislature shall make biennial appropriations from the general fund of amounts sufficient to guarantee the making of retirement payments as herein provided for if the money in the judicial retirement fund shall become insufficient for that purpose, but such biennial appropriation may be conditioned that sums appropriated may not be expended unless the money in the judicial retirement fund shall become insufficient to meet the retirement payments. [1971 ex.s. c 267 § 9.] Members’ retirement contributions—Pick up by employer: RCW 41.04.445. 2.10.100 2.10.100 Retirement for service or age. Retirement of a member for service shall be made by the retirement board as follows: (1) Any judge who, on August 9, 1971 or within one year thereafter, shall have completed as a judge the years of actual service required under chapter 2.12 RCW and who shall elect to become a member of this system, shall in all respects be deemed qualified to retire under this retirement system upon the member’s written request. (2) Any member who has completed fifteen or more years of service may be retired upon the member’s written request but shall not be eligible to receive a retirement allowance until the member attains the age of sixty years. (3) Any member who attains the age of seventy-five years shall be retired at the end of the calendar year in which the member attains such age. (4) Any judge who involuntarily leaves service or who is appointed to a position as a federal judge or federal magistrate at any time after having served an aggregate of twelve years shall be eligible to a partial retirement allowance computed according to RCW 2.10.110 and shall receive this allowance upon the attainment of the age of sixty years and fifteen years after the beginning of the member’s judicial service. [1995 c 305 § 1; 1988 c 109 § 3; 1971 ex.s. c 267 § 10.] [Title 2 RCW—page 16] Retroactive application—1995 c 305: "Section 1 of this act shall apply retroactively to October 1, 1994." [1995 c 305 § 2.] Effective date—1988 c 109: See note following RCW 2.10.030. 2.10.110 2.10.110 Service retirement allowance. A member upon retirement for service shall receive a monthly retirement allowance computed according to his completed years of service, as follows: Ten years, but less than fifteen years, three percent of his final average salary for each year of service; fifteen years and over, three and one-half percent of his final average salary for each year of service: PROVIDED, That in no case shall any retired member receive more than seventy-five percent of his final salary except as increased as a result of the cost of living increases as provided by this chapter. [1971 ex.s. c 267 § 11.] 2.10.120 2.10.120 Retirement for disability—Procedure. (1) Any judge who has served as a judge for a period of ten or more years, and who shall believe he has become physically or otherwise permanently incapacitated for the full and efficient performance of the duties of his office, may file with the retirement board an application in writing, asking for retirement. Upon receipt of such application the retirement board shall appoint one or more physicians of skill and repute, duly licensed to practice their professions in the state of Washington, who shall, within fifteen days thereafter, for such compensation as may be fixed by the board, to be paid out of the fund herein created, examine said judge and report in writing to the board their findings in the matter. If the physicians appointed by the board find the judge to be so disabled and the retirement board concurs in this finding the judge shall be retired. (2) The retirement for disability of a judge, who has served as a judge for a period of ten or more years, by the supreme court under Article IV, section 31 of the Constitution of the state of Washington (House Joint Resolution No. 37, approved by the voters November 4, 1980), with the concurrence of the retirement board, shall be considered a retirement under subsection (1) of this section. [1982 c 18 § 1; 1971 ex.s. c 267 § 12.] Reviser’s note: House Joint Resolution No. 37, approved by the voters November 4, 1980, became Amendment 71 to the state Constitution. 2.10.130 2.10.130 Retirement for disability allowance. Upon a judge being retired for disability as provided in RCW 2.10.120, he shall receive from the fund an amount equal to one-half of his final average salary. [1971 ex.s. c 267 § 13.] 2.10.140 2.10.140 Survivor’s benefits. (1) A surviving spouse of any judge holding such office, or if he dies after having retired and who, at the time of his death, has served ten or more years in the aggregate, shall receive a monthly allowance equal to fifty percent of the retirement allowance the retired judge was receiving, or fifty percent of the retirement allowance the active judge would have received had he been retired on the date of his death, but in no event less than twenty-five percent of the final average salary that the deceased judge was receiving: PROVIDED, That said surviving spouse had been married to the judge for a minimum of two years at time of death. (2006 Ed.) Judicial Retirement System (2) A judge holding office on July 1, 1988, may make an irrevocable choice to relinquish the survivor benefits provided by this section in exchange for the survivor benefits provided by RCW 2.10.144 and 2.10.146 by indicating the choice in a written declaration submitted to the department of retirement systems by December 31, 1988. (3) The surviving spouse of any judge who died in office after January 1, 1986, but before July 1, 1988, may elect to receive the survivor benefit provided in RCW 2.10.144(1). [1988 c 109 § 7; 1984 c 37 § 2; 1971 ex.s. c 267 § 14.] Application—1988 c 109 § 7(1): "The amendment to RCW 2.10.140(1) in section 7(1), chapter 109, Laws of 1988 shall apply on a retroactive basis to the surviving spouse of any judge who retired before July 1, 1988, if the surviving spouse had not remarried before July 1, 1988." [1989 c 139 § 1.] Effective date—1988 c 109: See note following RCW 2.10.030 Application—1984 c 37 § 2: "Section 2 of this 1984 act applies in respect to each surviving spouse who first applies for benefits under RCW 2.10.140 after January 1, 1984." [1984 c 37 § 3.] 2.10.144 Payment of accumulated contributions or retirement allowance upon death—Election. (1) If a judge dies before the date of retirement, the amount of the accumulated contributions standing to the judge’s credit at the time of death shall be paid to the member’s estate, or such person or persons, trust, or organization as the judge has nominated by written designation duly executed and filed with the department of retirement systems. If there is no such designated person or persons still living at the time of the judge’s death, or if the judge fails to file a new beneficiary designation subsequent to marriage, remarriage, dissolution of marriage, divorce, or reestablishment of membership following termination by withdrawal or retirement, the judge’s credited accumulated contributions shall be paid to the surviving spouse as if in fact the spouse had been nominated by written designation or, if there is no such surviving spouse, then to the judge’s legal representatives. (2) Upon the death in service of any judge who is qualified but has not applied for a service retirement allowance or has completed ten years of service at the time of death, the designated beneficiary, or the surviving spouse as provided in subsection (1) of this section, may elect to waive the payment provided by subsection (1) of this section. Upon such an election, a joint and one hundred percent survivor option under RCW 2.10.146 shall automatically be given effect as if selected for the benefit of the surviving spouse or dependent who is the designated beneficiary, except that if the judge is not then qualified for a service retirement allowance, the option II benefit shall be based upon the actuarial equivalent of the sum necessary to pay the accrued regular retirement allowance commencing when the deceased judge would have first qualified for a service retirement allowance. However, subsection (1) of this section, unless elected, shall not apply to any judge who has applied for a service retirement and thereafter dies between the date of separation from service and the judge’s effective retirement date, where the judge has selected a survivorship option under RCW 2.10.146(1)(b). In those cases, the beneficiary named in the judge’s final application for service retirement may elect to receive either a cash refund or monthly payments according to the option selected by the judge. [1995 c 144 § 20; 1990 c 249 § 13; 1988 c 109 § 8.] 2.10.144 (2006 Ed.) 2.10.146 Findings—1990 c 249: See note following RCW 2.10.146. Effective date—1988 c 109: See note following RCW 2.10.030. 2.10.146 2.10.146 Election of option for payment of retirement or disability allowance—Retirement allowance adjustment. (1) Upon making application for a service retirement allowance under RCW 2.10.100 or a disability allowance under RCW 2.10.120, a judge who is eligible therefor shall make an election as to the manner in which such service retirement shall be paid from among the following designated options, calculated so as to be actuarially equivalent to each other: (a) Standard allowance. A member selecting this option shall receive a retirement allowance, which shall be computed as provided in RCW 2.10.110. The retirement allowance shall be payable throughout the judge’s life. However, if the judge dies before the total of the retirement allowance paid to the judge equals the amount of the judge’s accumulated contributions at the time of retirement, then the balance shall be paid to the member’s estate, or such person or persons, trust, or organization as the judge has nominated by written designation duly executed and filed with the department of retirement systems or, if there is no such designated person or persons still living at the time of the judge’s death, then to the surviving spouse or, if there is neither such designated person or persons still living at the time of death nor a surviving spouse, then to the judge’s legal representative. (b) The department shall adopt rules that allow a judge to select a retirement option that pays the judge a reduced retirement allowance and upon death, such portion of the judge’s reduced retirement allowance as the department by rule designates shall be continued throughout the life of and paid to a designated person. Such person shall be nominated by the judge by written designation duly executed and filed with the department at the time of retirement. The options adopted by the department shall include, but are not limited to, a joint and one hundred percent survivor option and a joint and fifty percent survivor option. (2)(a) A judge, if married, must provide the written consent of his or her spouse to the option selected under this section, except as provided in (b) of this subsection. If a judge is married and both the judge and the judge’s spouse do not give written consent to an option under this section, the department will pay the judge a joint and fifty percent survivor benefit and record the judge’s spouse as the beneficiary. Such benefit shall be calculated to be actuarially equivalent to the benefit options available under subsection (1) of this section unless spousal consent is not required as provided in (b) of this subsection. (b) If a copy of a dissolution order designating a survivor beneficiary under RCW 41.50.790 has been filed with the department at least thirty days prior to a member’s retirement: (i) The department shall honor the designation as if made by the member under subsection (1) of this section; and (ii) The spousal consent provisions of (a) of this subsection do not apply. (3)(a) Any member who retired before January 1, 1996, and who elected to receive a reduced retirement allowance under subsection (1)(b) or (2) of this section is entitled to [Title 2 RCW—page 17] 2.10.155 Title 2 RCW: Courts of Record receive a retirement allowance adjusted in accordance with (b) of this subsection, if they meet the following conditions: (i) The retiree’s designated beneficiary predeceases or has predeceased the retiree; and (ii) The retiree provides to the department proper proof of the designated beneficiary’s death. (b) The retirement allowance payable to the retiree, as of July 1, 1998, or the date of the designated beneficiary’s death, whichever comes last, shall be increased by the percentage derived in (c) of this subsection. (c) The percentage increase shall be derived by the following: (i) One hundred percent multiplied by the result of (c)(ii) of this subsection converted to a percent; (ii) Subtract one from the reciprocal of the appropriate joint and survivor option factor; (iii) The joint and survivor option factor shall be from the table in effect as of July 1, 1998. (d) The adjustment under (b) of this subsection shall accrue from the beginning of the month following the date of the designated beneficiary’s death or from July 1, 1998, whichever comes last. [1998 c 340 § 4; 1996 c 175 § 2; 1995 c 144 § 21; 1990 c 249 § 2; 1988 c 109 § 9.] Effective date—1998 c 340: See note following RCW 41.31.010. Findings—1990 c 249: "The legislature finds that: (1) It would be advantageous for some retirees to have survivorship options available other than the options currently listed in statute. Allowing the department of retirement systems to adopt several different survivor options will assist retirees in their financial planning; and (2) Disabled members of the retirement systems listed in RCW 41.50.030, except for members of the law enforcement officers’ and fire fighters’ retirement system plan 1, must forfeit any right to leave a benefit to their survivors if they wish to go on disability retirement. This results in some disabled workers holding onto their jobs in order to provide for their dependents. The provisions of this act allow members to go on disability retirement while still providing for their survivors." [1990 c 249 § 1.] Effective date—1988 c 109: See note following RCW 2.10.030. 2.10.155 2.10.155 Suspension of retirement allowance upon employment—Exceptions—Reinstatement—Pro tempore service. (1) No judge shall be eligible to receive the judge’s monthly service or disability retirement allowance if the retired judge is employed: (a) For more than eight hundred ten hours in a calendar year as a pro tempore judge; or (b) In an eligible position as defined in RCW 41.40.010 or 41.32.010, or as a law enforcement officer or fire fighter as defined in RCW 41.26.030. (2) Subsection (1) of this section notwithstanding, a previously elected judge of the superior court who retired before June 7, 1990, leaving a pending case in which the judge had made discretionary rulings may hear the pending case as a judge pro tempore without having his or her retirement allowance suspended. (3) If a retired judge’s benefits have been suspended under this section, his or her benefits shall be reinstated when the retiree terminates the employment that caused his or her benefits to be suspended. Upon reinstatement, the retired judge’s benefits shall be actuarially recomputed pursuant to the rules adopted by the department. (4) The department shall adopt rules implementing this section. [1990 c 274 § 14; 1988 c 109 § 10.] [Title 2 RCW—page 18] Findings—Construction—1990 c 274: See notes following RCW 41.32.010. Application—Reservation—1990 c 274 §§ 11, 12, 14, and 15: See note following RCW 41.40.690. Effective date—1988 c 109: See note following RCW 2.10.030. 2.10.165 2.10.165 Refund of certain contributions. If a judge who was a member of this system left the system before July 1, 1988, and neither the judge nor the judge’s surviving spouse: (1) Was eligible at that time to receive a benefit under this chapter; or (2) has received an amount under a sundry claims appropriation from the state legislature intended as a refund of the judge’s contributions paid under RCW 2.10.090(1); then the judge or the judge’s surviving spouse may apply to the department for and receive a refund of such contributions. [1991 c 159 § 1.] 2.10.170 2.10.170 Cost of living adjustment. Effective July 1, 1972, and of each succeeding year, every retirement allowance which has been in effect for one year or more shall be adjusted to that dollar amount which bears the ratio to its original dollar amount which the retirement board finds to exist between the index for the previous calendar year and the index for the calendar year prior to the date the retirement allowance became payable: PROVIDED, That the amount of increase or decrease in any one year shall not exceed three percent of the then payable retirement allowance: AND PROVIDED FURTHER, That this cost of living adjustment shall not reduce any pension below that amount which was payable at time of retirement. [1971 ex.s. c 267 § 17.] 2.10.180 2.10.180 Benefits exempt from taxation and judicial process—Exceptions—Deductions for group insurance premiums. (1) Except as provided in subsections (2), (3), and (4) of this section, the right of a person to a retirement allowance, disability allowance, or death benefit, the retirement, disability or death allowance itself, any optional benefit, any other right accrued or accruing to any person under the provisions of this chapter, and the moneys in the fund created under this chapter, are hereby exempt from any state, county, municipal, or other local tax and shall not be subject to execution, garnishment, or any other process of law whatsoever. (2) Subsection (1) of this section shall not be deemed to prohibit a beneficiary of a retirement allowance from authorizing deductions therefrom for payment of premiums due on any group insurance policy or plan issued for the benefit of a group comprised of public employees of the state of Washington. (3) Deductions made in the past from retirement benefits are hereby expressly recognized, ratified, and affirmed. Future deductions may only be made in accordance with this section. (4) Subsection (1) of this section shall not prohibit the department of retirement systems from complying with (a) a wage assignment order for child support issued pursuant to chapter 26.18 RCW, (b) a notice of payroll deduction issued under chapter 26.23 RCW, (c) an order to withhold and deliver issued pursuant to chapter 74.20A RCW, (d) a mandatory benefits assignment order issued pursuant to chapter 41.50 RCW, (e) a court order directing the department of (2006 Ed.) Judicial Retirement System retirement systems to pay benefits directly to an obligee under a dissolution order as defined in RCW 41.50.500(3) which fully complies with RCW 41.50.670 and 41.50.700, or (f) any administrative or court order expressly authorized by federal law. [1991 c 365 § 18; 1989 c 360 § 22; 1987 c 326 § 17; 1982 1st ex.s. c 52 § 1; 1979 ex.s. c 205 § 1; 1971 ex.s. c 267 § 18.] Severability—1991 c 365: See note following RCW 41.50.500. Effective date—1987 c 326: See RCW 41.50.901. Effective dates—1982 1st ex.s. c 52: "(1) Sections 9 and 34 of this act are necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately. (2) The remainder of this act shall take effect July 1, 1982." [1982 1st ex.s. c 52 § 37.] 2.10.190 2.10.190 Hearing prior to judicial review— Required—Notice. Any person aggrieved by any final decision of the retirement board must, before petitioning for judicial review, file with the director of the retirement system by mail or personally within sixty days from the day such decision was communicated to such person, a notice for a hearing before the retirement board. The notice of hearing shall set forth in full detail the grounds upon which such person considers such decision unjust or unlawful and shall include every issue to be considered by the retirement board, and it must contain a detailed statement of facts upon which such person relies in support thereof. Such persons shall be deemed to have waived all objections or irregularities concerning the matter on which such appeal is taken other than those records of the retirement system. [1971 ex.s. c 267 § 19.] 2.10.200 2.10.200 Hearing prior to judicial review—Conduct. A hearing shall be held by the department of retirement systems, or an authorized representative, in the county of the residence of the claimant at a time and place designated by the director. Such hearings shall be de novo and shall conform to the provisions of chapter 34.05 RCW. The retirement system may appear in all such proceedings and introduce testimony in support of the decision. Judicial review of any final decision by the director is governed by the provisions of chapter 34.05 RCW. [1989 c 175 § 37; 1971 ex.s. c 267 § 20.] Effective date—1989 c 175: See note following RCW 34.05.010. 2.10.210 2.10.210 Hearing prior to judicial review—No bond required. No bond of any kind shall be required of a claimant appealing to the superior court, the court of appeals, or the supreme court from a finding of the retirement board affecting such claimant’s right to retirement or disability benefits. [1971 ex.s. c 267 § 21.] 2.10.220 2.10.220 Transfer to system—Prior service credit. (1) Any member of the Washington public employees’ retirement system who is eligible to participate in the judicial retirement system may, by written request filed with the retirement boards of the two systems respectively, transfer such membership to the judicial retirement system. Upon the receipt of such request, the board of the Washington public employees’ retirement system shall transfer to the board of the Washington judicial retirement system (a) all employee’s (2006 Ed.) 2.10.230 contributions and interest thereon belonging to such member in the employees’ savings fund and all employer’s contributions credited or attributed to such member in the benefit account fund and (b) a record of service credited to such member. One-half of such service shall be computed and not more than nine years shall be credited to such member as though such service was performed as a member of the judicial retirement system. Upon such transfer being made the state treasurer shall deposit such moneys in the judicial retirement fund. In the event that any such member should terminate judicial service prior to his entitlement to retirement benefits under any of the provisions of this chapter, he shall upon request therefor be repaid from the judicial retirement fund an amount equal to the amount of his employee’s contributions to the Washington public employees’ retirement system and interest plus interest thereon from the date of the transfer of such moneys. (2) Any member of the judicial retirement system who was formerly a member of the Washington public employees’ retirement system with membership service credit of not less than six years but who has terminated his membership therein under the provisions of chapter 41.40 RCW, may reinstate his membership in the Washington public employees’ retirement system, for the sole purpose of qualifying for a transfer of membership in the judicial retirement system in accordance with subsection (1) above by making full restoration of all withdrawn funds to the employees’ savings fund prior to July 1, 1980. Upon reinstatement in accordance with this subsection, the provisions of subsection (1) and the provisions of RCW 41.40.023(3) shall then be applicable to the reinstated member in the same manner and to the same extent as they are to the present members of the Washington public employees’ retirement system who are eligible to participate in the judicial retirement system. (3) Any member of the judicial retirement system who has served as a judge for one or more years and who has rendered service for the state of Washington, or any political subdivision thereof, prior to October 1, 1947, or the time of the admission of the employer into the Washington public employees’ retirement system, may—upon his payment into the judicial retirement fund of a sum equal to five percent of his compensation earned for such prior public service— request and shall be entitled to have one-half of such service computed and not more than six years immediately credited to such member as though such service had been performed as a member of the judicial retirement system, provided that any such prior service so credited shall not be claimed for any pension system other than a judicial retirement system. [1980 c 7 § 1; 1971 ex.s. c 267 § 22.] Transfers to system by those covered under chapter 2.12 RCW: RCW 2.10.040. 2.10.230 2.10.230 Cessation of benefits upon appointment or election to court. Any person receiving retirement benefits from this system who is appointed or elected to a court under chapter 2.04, 2.06, or 2.08 RCW shall upon the first day of entering such office become a member of this system and his or her retirement benefits shall cease. Pro tempore service as a judge of a court of record shall not constitute appointment as that term is used in this section. Upon leaving such office, a person shall have his or her benefits recomputed or [Title 2 RCW—page 19] Chapter 2.12 Title 2 RCW: Courts of Record restored, as determined in this chapter: PROVIDED, That no such person shall receive a benefit less than that which was being paid at the time his or her benefit ceased. [1988 c 109 § 4.] Effective date—1988 c 109: See note following RCW 2.10.030. Chapter 2.12 Chapter 2.12 RCW RETIREMENT OF JUDGES— RETIREMENT SYSTEM Sections 2.12.010 2.12.012 2.12.015 2.12.020 2.12.030 2.12.035 2.12.037 2.12.040 2.12.045 2.12.046 2.12.048 2.12.050 2.12.060 2.12.090 2.12.100 2.12.900 Retirement for service or age. Partial pension for less than eighteen years service—When authorized, amount. Additional pension for more than eighteen years service— Amount. Retirement for disability. Amount and time of payment—Surviving spouse’s benefit. Retirement pay of certain justices or judges retiring prior to December 1, 1968—Widow’s benefits. Adjustment of pension of retired judges or widows. Service after retirement. Minimum monthly benefit—Post-retirement adjustment— Computation. Monthly benefit—Post-retirement adjustment—Computation. Refund of certain contributions. Judges’ retirement fund—Created—Contents—Custodian— Records. Fund—Constitution—Salary deductions—Aid. Benefits exempt from taxation and judicial process—Exceptions—Deductions for group insurance premiums. Transfer of membership from Washington public employees’ retirement system to judges’ retirement system—Authorized—Procedure. Construction—Gender. Judicial retirement system—1971 act: Chapter 2.10 RCW. Retirement of judges: State Constitution Art. 4 § 3(a) (Amendment 25). 2.12.010 Retirement for service or age. Any judge of the supreme court, court of appeals, or superior court of the state of Washington who heretofore and/or hereafter shall have served as a judge of any such courts for eighteen years in the aggregate or who shall have served ten years in the aggregate and shall have attained the age of seventy years or more may, during or at the expiration of his term of office, in accordance with the provisions of this chapter, be retired and receive the retirement pay herein provided for. In computing such term of service, there shall be counted the time spent by such judge in active service in the armed forces of the United States of America, under leave of absence from his judicial duties as provided for under chapter 201, Laws of 1941: PROVIDED, HOWEVER, That in computing such credit for such service in the armed forces of the United States of America no allowance shall be made for service beyond the date of the expiration of the term for which such judge was elected. Any judge desiring to retire under the provisions of this section shall file with the director of retirement systems, a notice in duplicate in writing, verified by his affidavit, fixing a date when he desires his retirement to commence, one copy of which the director shall forthwith file with the administrator for the courts. The notice shall state his name, the court or courts of which he has served as judge, the period of service thereon and the dates of such service. [1982 1st ex.s. c 52 § 2; 1973 c 106 § 4; 1971 c 30 § 1; 1943 c 221 § 1; 1937 c 229 § 1; Rem. Supp. 1943 § 11054-1.] 2.12.010 Effective dates—1982 1st ex.s. c 52: See note following RCW 2.10.180. [Title 2 RCW—page 20] Construction—1971 c 30: "The provisions of this 1971 amendatory act shall be construed in accordance with RCW 2.06.100 which provides for the retirement of judges of the court of appeals." [1971 c 30 § 7.] Severability—1937 c 229: "If any section or provision of this act shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the act as a whole or any section, provision, or part thereof not adjudged invalid or unconstitutional." [1937 c 229 § 10; RRS § 11054-10.] This applies to RCW 2.12.010, 2.12.020, 2.12.030, and 2.12.040 through 2.12.070. 2.12.012 2.12.012 Partial pension for less than eighteen years service—When authorized, amount. Any judge of the supreme court, court of appeals, or superior court of this state who shall leave judicial service at any time after having served as a judge of any of such courts for an aggregate of twelve years shall be eligible to a partial retirement pension in a percentage of the pension provided in this chapter as determined by the proportion his years of judicial service bears to eighteen and shall receive the same upon attainment of age seventy, or eighteen years after the commencement of such judicial service, whichever shall occur first. [1971 c 30 § 2; 1961 c 286 § 1.] Construction—1971 c 30: See note following RCW 2.12.010. 2.12.015 2.12.015 Additional pension for more than eighteen years service—Amount. In the event any judge of the supreme court, court of appeals, or superior court of the state serves more than eighteen years in the aggregate as computed under RCW 2.12.010, he shall receive in addition to any other pension benefits to which he may be entitled under this chapter, an additional pension benefit based upon one-eighteenth of his salary for each year of full service after eighteen years, provided his total pension shall not exceed seventyfive percent of the monthly salary he was receiving as a judge at the time of his retirement. [1971 c 30 § 3; 1961 c 286 § 2.] Construction—1971 c 30: See note following RCW 2.12.010. 2.12.020 2.12.020 Retirement for disability. (1) Any judge of the supreme court, court of appeals, or superior court of the state of Washington, who heretofore and/or hereafter shall have served as a judge of any such courts for a period of ten years in the aggregate, and who shall believe he has become physically or otherwise permanently incapacitated for the full and efficient performance of the duties of his office, may file with the director of retirement systems an application in duplicate in writing, asking for retirement, which application shall be signed and verified by the affidavit of the applicant or by someone in his behalf and which shall set forth his name, the office then held, the court or courts of which he has served as judge, the period of service thereon, the dates of such service and the reasons why he believes himself to be, or why they believe him to be incapacitated. Upon filing of such application the director shall forthwith transmit a copy thereof to the governor who shall appoint three physicians of skill and repute, duly licensed to practice their professions in the state of Washington, who shall, within fifteen days thereafter, for such compensation as may be fixed by the governor, to be paid out of the fund hereinafter created, examine said judge and report, in writing, to the governor their findings in the matter. If a majority of such physicians shall report that in their opinion said judge has become permanently incapacitated for the full and efficient performance of the duties of his (2006 Ed.) Retirement of Judges—Retirement System office, and if the governor shall approve such report, he shall file the report, with his approval endorsed thereon, in the office of the director and a duplicate copy thereof with the administrator for the courts, and from the date of such filing the applicant shall be deemed to have retired from office and be entitled to the benefits of this chapter to the same extent as if he had retired under the provisions of RCW 2.12.010. (2) The retirement for disability of a judge, who has served as a judge of the supreme court, court of appeals, or superior court of the state of Washington for a period of ten years in the aggregate, by the supreme court under Article IV, section 31 of the Constitution of the state of Washington (House Joint Resolution No. 37, approved by the voters November 4, 1980), with the concurrence of the retirement board, shall be considered a retirement under subsection (1) of this section. [1982 1st ex.s. c 52 § 3; 1982 c 18 § 2; 1973 c 106 § 5; 1971 c 30 § 4; 1937 c 229 § 2; RRS § 11054-2.] Reviser’s note: House Joint Resolution No. 37, approved by the voters November 4, 1980, became Amendment 71 to the state Constitution. Effective dates—1982 1st ex.s. c 52: See note following RCW 2.10.180. Construction—1971 c 30: See note following RCW 2.12.010. 2.12.030 2.12.030 Amount and time of payment—Surviving spouse’s benefit. Supreme court, court of appeals, or superior court judges of the state who retire from office under the provisions of this chapter other than as provided in RCW 2.12.012 shall be entitled to receive monthly during the period of their natural life, out of the fund hereinafter created, an amount equal to one-half of the monthly salary they were receiving as a judge at the time of their retirement, or at the end of the term immediately prior to their retirement if their retirement is made after expiration of their term. The surviving spouse of any judge who shall have heretofore retired or may hereafter retire, or of a judge who was heretofore or may hereafter be eligible for retirement at the time of death, if the surviving spouse had been married to the judge for three years, if the surviving spouse had been married to the judge prior to retirement, shall be paid an amount equal to one-half of the retirement pay of the judge, as long as such surviving spouse remains unmarried. The retirement pay shall be paid monthly by the state treasurer on or before the tenth day of each month. The provisions of this section shall apply to the surviving spouse of any judge who dies while holding such office or dies after having retired under the provisions of this chapter and who at the time of death had served ten or more years in the aggregate as a judge of the supreme court, court of appeals, or superior court or any of such courts, or had served an aggregate of twelve years in the supreme court, court of appeals, or superior court if such pension rights are based upon RCW 2.12.012. [1973 1st ex.s. c 154 § 1; 1971 c 30 § 5; 1961 c 286 § 3; 1957 c 243 § 1; 1951 c 79 § 1; 1945 c 19 § 1; 1937 c 229 § 3; RRS § 11054-3.] Severability—1973 1st ex.s. c 154: "If any provision of this 1973 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1973 1st ex.s. c 154 § 130.] Construction—1971 c 30: See note following RCW 2.12.010. 2.12.035 2.12.035 Retirement pay of certain justices or judges retiring prior to December 1, 1968—Widow’s benefits. (2006 Ed.) 2.12.045 The retirement pay or pension of any justice of the supreme or judge of any superior court of the state who was in office on August 6, 1965, and who retired prior to December 1, 1968, or who would have been eligible to retire at the time of death prior to December 1, 1968, shall be based, effective December 1, 1968, upon the annual salary which was being prescribed by the statute in effect for the office of justice of the supreme court or for the office of judge of the superior court, respectively, at the time of his retirement or at the end of the term immediately prior to his retirement if his retirement was made after expiration of his term or at the time of his death if he died prior to retirement. The widow’s benefit for the widow of any such justice or judge as provided for in RCW 2.12.030 shall be based, effective December 1, 1968, upon such retirement pay. [1971 c 81 § 7; 1969 ex.s. c 202 § 1.] 2.12.037 2.12.037 Adjustment of pension of retired judges or widows. (1) "Index" for the purposes of this section, shall mean, for any calendar year, that year’s annual average consumer price index for urban wage earners and clerical workers, all items (1957-1959 equal one hundred) compiled by the Bureau of Labor Statistics, United States Department of Labor; (2) Effective July 1, 1970, every pension computed and payable under the provisions of RCW 2.12.030 to any retired judge or to his widow which does not exceed four hundred fifty dollars per month shall be adjusted to that dollar amount which bears the ratio of its original dollar amount which is found to exist between the index for 1969 and the index for the calendar year prior to the effective retirement date of the person to whom, or on behalf of whom, such retirement allowance is being paid. [1970 ex.s. c 96 § 1.] 2.12.040 2.12.040 Service after retirement. If any retired judge shall accept an appointment or an election to a judicial office, he shall be entitled to receive the full salary pertaining thereto, and his retirement pay under this chapter shall be suspended during such term of office and his salary then received shall be subject to contribution to the judges’ retirement fund as provided in this chapter. [1955 c 38 § 6; 1943 c 37 § 1; 1937 c 229 § 4; Rem. Supp. 1943 § 11054-4.] 2.12.045 2.12.045 Minimum monthly benefit—Post-retirement adjustment—Computation. (1) Notwithstanding any provision of law to the contrary, effective July 1, 1979, no person receiving a monthly benefit pursuant to this chapter shall receive a monthly benefit of less than ten dollars per month for each year of service creditable to the person whose service is the basis of the retirement allowance. Portions of a year shall be treated as fractions of a year and the decimal equivalent shall be multiplied by ten dollars. Where the monthly benefit was adjusted at the time benefit payments to the beneficiary commenced, the minimum benefit provided in this section shall be adjusted in a manner consistent with that adjustment. (2) Notwithstanding any provision of law to the contrary, effective July 1, 1979, the monthly benefit of each person who either is receiving benefits pursuant to RCW 2.12.020 or 2.12.030 as of December 31, 1978, or commenced receiving [Title 2 RCW—page 21] 2.12.046 Title 2 RCW: Courts of Record a monthly benefit under this chapter as of a date no later than July 1, 1974, shall be permanently increased by a post-retirement adjustment. This adjustment shall be in lieu of any adjustments provided under RCW 2.12.037 as of July 1, 1979, or July 1, 1980, for the affected persons. Such adjustment shall be calculated as follows: (a) Monthly benefits to which this subsection and subsection (1) of this section are both applicable shall be determined by first applying subsection (1) and then applying this subsection. The department shall determine the total years of creditable service and the total dollar benefit base accrued as of December 31, 1978, except that this determination shall take into account only those persons to whom this subsection applies; (b) The department shall multiply the total benefits determined in (a) of this subsection by six percent and divide the dollar value thus determined by the total service determined in (a) of this subsection. The resultant figure shall then be a post-retirement increase factor which shall be applied as specified in (c) of this subsection; (c) Each person to whom this subsection applies shall receive an increase which is the product of the factor determined in (b) of this subsection multiplied by the years of creditable service. [1979 ex.s. c 96 § 4.] 2.12.046 2.12.046 Monthly benefit—Post-retirement adjustment—Computation. Notwithstanding any provision of law to the contrary, effective July 1, 1983, the monthly benefit of each person who either is receiving benefits pursuant to RCW 2.12.020 or 2.12.030 as of December 31, 1982, or commenced receiving a monthly benefit under this chapter as of a date no later than July 1, 1978, shall be permanently increased by a post-retirement adjustment of $.74 per month for each year of creditable service the judge established with the retirement system. Any fraction of a year of service shall be counted in the computation of the post-retirement adjustment. This adjustment shall be in lieu of any adjustments provided under RCW 2.12.037 as of July 1, 1983, or July 1, 1984, for the affected persons. [1983 1st ex.s. c 56 § 1.] Effective date—1983 1st ex.s. c 56: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1983." [1983 1st ex.s. c 56 § 7.] 2.12.048 2.12.048 Refund of certain contributions. If a judge who was a member of this system left the system before July 1, 1988, and neither the judge nor the judge’s surviving spouse: (1) Was eligible at that time to receive a benefit under this chapter; or (2) has received an amount under a sundry claims appropriation from the state legislature intended as a refund of the judge’s contributions paid under RCW 2.12.060; then the judge or the judge’s surviving spouse may apply to the department for and receive a refund of such contributions. [1991 c 159 § 2.] 2.12.050 2.12.050 Judges’ retirement fund—Created—Contents—Custodian—Records. There is hereby created a fund in the state treasury to be known as "The Judges’ Retirement Fund" which shall consist of the moneys appropriated from the general fund in the state treasury, as hereinafter provided; the deductions from salaries of judges, as hereinafter [Title 2 RCW—page 22] provided, all gifts, donations, bequests and devises made for the benefit of said fund, and the rents, issues and profits thereof, or proceeds of sales of assets thereof. The state treasurer shall be treasurer, ex officio, of this fund. The treasurer shall be custodian of the moneys in said judges’ retirement fund. The department of retirement systems shall receive all moneys payable into said fund and make disbursements therefrom as provided in this chapter. The department shall keep written permanent records showing all receipts and disbursements of said fund. [1982 1st ex.s. c 52 § 4; 1977 c 75 § 1; 1977 c 18 § 1; 1967 c 28 § 1; 1959 c 192 § 1; 1937 c 229 § 5; RRS § 11054-5.] Effective dates—1982 1st ex.s. c 52: See note following RCW 2.10.180. 2.12.060 2.12.060 Fund—Constitution—Salary deductions— Aid. For the purpose of providing moneys in said judges’ retirement fund, concurrent monthly deductions from judges’ salaries and portions thereof payable from the state treasury and withdrawals from the general fund of the state treasury shall be made as follows: Six and one-half percent shall be deducted from the monthly salary of each justice of the supreme court, six and one-half percent shall be deducted from the monthly salary of each judge of the court of appeals, and six and one-half percent of the total salaries of each judge of the superior court shall be deducted from that portion of the salary of such justices or judges payable from the state treasury; and a sum equal to six and one-half percent of the combined salaries of the justices of the supreme court, the judges of the court of appeals, and the judges of the superior court shall be withdrawn from the general fund of the state treasury. In consideration of the contributions made by the judges and justices to the judges’ retirement fund, the state hereby undertakes to guarantee the solvency of said fund and the legislature shall make biennial appropriations from the general fund of amounts sufficient to guarantee the making of retirement payments as herein provided for if the money in the judges’ retirement fund shall become insufficient for that purpose, but such biennial appropriation may be conditioned that sums appropriated may not be expended unless the money in the judges’ retirement fund shall become insufficient to meet the retirement payments. The deductions and withdrawals herein directed shall be made on or before the tenth day of each month and shall be based on the salaries of the next preceding calendar month. The administrator for the courts shall issue warrants payable to the treasurer to accomplish the deductions and withdrawals herein directed, and shall issue the monthly salary warrants of the judges and justices for the amount of salary payable from the state treasury after such deductions have been made. The treasurer shall cash the warrants made payable to him hereunder and place the proceeds thereof in the judges’ retirement fund for disbursement as authorized in this chapter. [1973 c 106 § 6; 1973 c 37 § 1. Prior: 1971 c 81 § 8; 1971 c 30 § 6; 1957 c 243 § 2; 1951 c 79 § 2; 1945 c 19 § 2; 1937 c 229 § 6; Rem. Supp. 1945 § 11054-6.] Construction—1971 c 30: See note following RCW 2.12.010. Members’ retirement contributions—Pick up by employer: RCW 41.04.445. (2006 Ed.) Retirement of Judges—Supplemental Retirement 2.12.090 2.12.090 Benefits exempt from taxation and judicial process—Exceptions—Deductions for group insurance premiums. (1) Except as provided in subsections (2), (3), and (4) of this section, the right of any person to a retirement allowance or optional retirement allowance under the provisions of this chapter and all moneys and investments and income thereof are exempt from any state, county, municipal, or other local tax and shall not be subject to execution, garnishment, attachment, the operation of bankruptcy or the insolvency laws, or other processes of law whatsoever and shall be unassignable except as herein specifically provided. (2) Subsection (1) of this section shall not prohibit the department of retirement systems from complying with (a) a wage assignment order for child support issued pursuant to chapter 26.18 RCW, (b) a notice of payroll deduction issued under chapter 26.23 RCW, (c) an order to withhold and deliver issued pursuant to chapter 74.20A RCW, (d) a mandatory benefits assignment order issued pursuant to chapter 41.50 RCW, (e) a court order directing the department of retirement systems to pay benefits directly to an obligee under a dissolution order as defined in RCW 41.50.500(3) which fully complies with RCW 41.50.670 and 41.50.700, or (f) any administrative or court order expressly authorized by federal law. (3) Subsection (1) of this section shall not be deemed to prohibit a beneficiary of a retirement allowance from authorizing deductions therefrom for payment of premiums due on any group insurance policy or plan issued for the benefit of a group comprised of public employees of the state of Washington. (4) Deductions made in the past from retirement benefits are hereby expressly recognized, ratified, and affirmed. Future deductions may only be made in accordance with this section. [1991 c 365 § 19; 1989 c 360 § 23; 1987 c 326 § 18; 1982 1st ex.s. c 52 § 32.] 2.14.020 ment benefits under any of the provisions of chapter 2.12 RCW, he shall upon request therefor be repaid from the judges’ retirement fund an amount equal to the amount of his employees’ contributions to the Washington public employees’ retirement system and interest plus interest thereon from the date of the transfer of such moneys: PROVIDED, HOWEVER, That this section shall not apply to any person who is retired as a judge as of February 20, 1970. [1970 ex.s. c 96 § 2.] 2.12.900 2.12.900 Construction—Gender. Whenever words importing the masculine gender are used in the provisions of this chapter they may be extended to females also as provided in RCW 1.12.050 and whenever words importing the feminine gender are used in the provisions of this chapter they may be extended to males. [1971 c 30 § 8.] Chapter 2.14 Chapter 2.14 RCW RETIREMENT OF JUDGES— SUPPLEMENTAL RETIREMENT Sections 2.14.010 2.14.020 2.14.030 2.14.040 2.14.050 2.14.060 2.14.070 2.14.080 2.14.090 2.14.100 2.14.110 2.14.115 Severability—1991 c 365: See note following RCW 41.50.500. Purpose. Definitions. Judicial retirement account plan established. Administration of plan. Administrator—Discharge of duties. Judicial retirement principal account—Creation—Transfer of deficiencies—Contributions—Use. Judicial retirement administrative account—Creation—Use— Excess balance—Deficiencies. Duties of administrator—Investments and earnings. Funding of plan—Contributions. Contributions—Distribution upon member’s separation— Exemptions from state and local tax—Exempt from execution. Payment of contributions upon member’s death. Discontinuing plan contributions—One-time irrevocable election. Effective date—1987 c 326: See RCW 41.50.901. Effective dates—1982 1st ex.s. c 52: See note following RCW 2.10.180. 2.12.100 2.12.100 Transfer of membership from Washington public employees’ retirement system to judges’ retirement system—Authorized—Procedure. Any member of the Washington public employees’ retirement system who is eligible to participate in the judges’ retirement system, may by written request filed with the director and custodian of the two systems respectively, transfer such membership to the judges’ retirement system. Upon the receipt of such request, the director of the Washington public employees’ retirement system shall transfer to the state treasurer (1) all employees’ contributions and interest thereon belonging to such member in the employees’ savings fund and all employers’ contributions credited or attributed to such member in the benefit account fund and (2) a record of service credited to such member. One-half of such service but not in excess of twelve years shall be computed and credited to such member as though such service was performed as a member of the judges’ retirement system. Upon such transfer being made the state treasurer shall deposit such moneys in the judges’ retirement fund. In the event that any such member should terminate judicial service prior to his entitlement to retire(2006 Ed.) 2.14.010 2.14.010 Purpose. (1) The purpose of this chapter is to provide a supplemental retirement benefit to judges who are elected or appointed under chapter 2.04, 2.06, or 2.08 RCW and who are members of the public employees’ retirement system for their service as a judge. (2) This chapter may be known and cited as the judicial retirement account act. [1988 c 109 § 12.] Effective date—1988 c 109: See note following RCW 2.10.030. 2.14.020 2.14.020 Definitions. The definitions in this section apply throughout this chapter. (1) "Plan" means the judicial retirement account plan. (2) "Principal account" means the judicial retirement principal account. (3) "Member" means a judge participating in the judicial retirement account plan. (4) "Administrative account" means the judicial retirement administrative account. (5) "Accumulated contributions" means the total amount contributed to a member’s account under RCW 2.14.090 (1) and (2), together with any interest and earnings that have been credited to the member’s account. [1988 c 109 § 13.] Effective date—1988 c 109: See note following RCW 2.10.030. [Title 2 RCW—page 23] 2.14.030 Title 2 RCW: Courts of Record 2.14.030 2.14.030 Judicial retirement account plan established. The judicial retirement account plan is established for judges appointed or elected under chapter 2.04, 2.06, or 2.08 RCW and who are members of the public employees’ retirement system for their service as a judge. [1988 c 109 § 14.] Effective date—1988 c 109: See note following RCW 2.10.030. account caused by an excess of administrative expenses disbursed from this account over the excess balance of this account shall be transferred to this account from the principal account. [1991 sp.s. c 13 § 70; 1988 c 109 § 18.] Effective dates—Severability—1991 sp.s. c 13: See notes following RCW 18.08.240. Effective date—1988 c 109: See note following RCW 2.10.030. 2.14.040 2.14.040 Administration of plan. The administrator for the courts, under the direction of the board for judicial administration, shall administer the plan. The administrator shall: (1) Deposit or invest contributions to the plan consistent with RCW 2.14.080; (2) Credit investment earnings or interest to individual judicial retirement accounts consistent with RCW 2.14.070; (3) Keep or cause to be kept full and adequate accounts and records of the assets, obligations, transactions, and affairs of any judicial retirement accounts created under this chapter; and (4) Adopt rules necessary to carry out this chapter. [1998 c 245 § 1; 1988 c 109 § 15.] Effective date—1988 c 109: See note following RCW 2.10.030. 2.14.050 2.14.050 Administrator—Discharge of duties. The administrator for the courts shall be deemed to stand in a fiduciary relationship to the members participating in the plan and shall discharge his or her duties in good faith and with that diligence, care, and skill which ordinary prudent persons would exercise under similar circumstances in like positions. [1988 c 109 § 16.] Effective date—1988 c 109: See note following RCW 2.10.030. 2.14.060 2.14.060 Judicial retirement principal account— Creation—Transfer of deficiencies—Contributions— Use. The judicial retirement principal account is created in the state treasury. Any deficiency in the judicial retirement administrative account caused by an excess of administrative expenses disbursed from that account over earnings of investments of balances credited to that account shall be transferred to that account from the principal account. The contributions under *section 19 of this act shall be paid into the principal account and shall be sufficient to cover costs of administration and staffing in addition to such other amounts as determined by the administrator for the courts. The principal account shall be used to carry out the purposes of this chapter. [1988 c 109 § 17.] *Reviser’s note: The reference to section 19 of this act appears to be incorrect. Section 20 of the act, codified as RCW 2.14.090, was apparently intended. Effective date—1988 c 109: See note following RCW 2.10.030. 2.14.070 2.14.070 Judicial retirement administrative account—Creation—Use—Excess balance—Deficiencies. The judicial retirement administrative account is created in the state treasury. All expenses of the administrator for the courts under this chapter, including staffing and administrative expenses, shall be paid out of the administrative account. Any excess balance of this account over administrative expenses disbursed from this account shall be transferred to the principal account. Any deficiency in the administrative [Title 2 RCW—page 24] 2.14.080 2.14.080 Duties of administrator—Investments and earnings. (1) The administrator for the courts shall: (a) Deposit or invest the contributions under RCW 2.14.090 in a credit union, savings and loan association, bank, or mutual savings bank; (b) Purchase life insurance, shares of an investment company, or fixed and/or variable annuity contracts from any insurance company or investment company licensed to contract business in this state; or (c) Invest in any of the class of investments described in RCW 43.84.150. (2) The state investment board or the department of retirement systems, at the request of the administrator for the courts, may invest moneys in the principal account. Moneys invested by the investment board shall be invested in accordance with RCW 43.84.150. Moneys invested by the department of retirement systems shall be invested in accordance with applicable law. Except as provided in RCW 43.33A.160 or as necessary to pay a pro rata share of expenses incurred by the department of retirement systems, one hundred percent of all earnings from these investments, exclusive of investment income pursuant to RCW 43.84.080, shall accrue directly to the principal account. [1996 c 39 § 20; 1991 sp.s. c 13 § 103; 1989 c 139 § 3; 1988 c 109 § 19.] Effective dates—1996 c 39: See note following RCW 41.32.010. Effective dates—Severability—1991 sp.s. c 13: See notes following RCW 18.08.240. Effective date—1988 c 109: See note following RCW 2.10.030. 2.14.090 2.14.090 Funding of plan—Contributions. The plan shall be funded as provided in this section. (1) Two and one-half percent shall be deducted from each member’s salary. (2) The state, as employer, shall contribute an equal amount on a monthly basis. (3) The contributions shall be collected by the administrator for the courts and deposited in the member’s account within the principal account. [1988 c 109 § 20.] Effective date—1988 c 109: See note following RCW 2.10.030. 2.14.100 2.14.100 Contributions—Distribution upon member’s separation—Exemptions from state and local tax— Exempt from execution. (1) A member who separates from judicial service for any reason is entitled to receive a lump sum distribution of the member’s accumulated contributions. The administrator for the courts may adopt rules establishing other payment options, in addition to lump sum distributions, if the other payment options conform to the requirements of the federal internal revenue code. (2) The right of a person to receive a payment under this chapter and the moneys in the accounts created under this chapter are exempt from any state, county, municipal, or (2006 Ed.) Association of Superior Court Judges other local tax and are not subject to execution, garnishment, or any other process of law whatsoever. [1988 c 109 § 21.] Effective date—1988 c 109: See note following RCW 2.10.030. Chapter 2.24 for the government of the superior courts, which rules may be amended from time to time. [1955 c 38 § 9; 1933 ex.s. c 58 § 4; RRS § 11051-4.] Rules of court: Cf. CR 83. 2.14.110 2.14.110 Payment of contributions upon member’s death. If a member dies, the amount of the accumulated contributions standing to the member’s credit at the time of the member’s death shall be paid to the member’s estate, or such person or persons, trust, or organization as the member has nominated by written designation duly executed and filed with the administrative office of the courts. If there is no such designated person or persons still living at the time of the member’s death, the member’s accumulated contributions shall be paid to the member’s surviving spouse as if in fact the spouse had been nominated by written designation or, if there is no such surviving spouse, then to the member’s legal representatives. [2005 c 282 § 1; 1996 c 42 § 1; 1988 c 109 § 22.] Effective date—1988 c 109: See note following RCW 2.10.030. 2.14.115 2.14.115 Discontinuing plan contributions—Onetime irrevocable election. (Effective January 1, 2007.) Beginning January 1, 2007, through December 31, 2007, any member of the public employees’ retirement system eligible to participate in the judicial retirement account plan under this chapter may make a one-time irrevocable election, filed in writing with the member’s employer, the department of retirement systems, and the administrative office of the courts, to discontinue future contributions to the judicial retirement account plan in lieu of prospective contribution and benefit provisions under chapter 189, Laws of 2006. [2006 c 189 § 1.] Effective date—2006 c 189: "This act takes effect January 1, 2007." [2006 c 189 § 20.] Chapter 2.16 RCW ASSOCIATION OF SUPERIOR COURT JUDGES Rule-making power, supreme court: RCW 2.04.180 through 2.04.210. Superior court rules: State Constitution Art. 4 § 24. Uniform rules to be established: RCW 2.08.230. 2.16.050 2.16.050 Annual meeting. The association shall meet annually at a time established by the association’s governing board. At the meeting officers shall be chosen for the ensuing year, and other business transacted as may properly come before the association. [1996 c 82 § 1; 1955 c 38 § 10; 1933 ex.s. c 58 § 5; RRS § 11051-5.] 2.16.070 2.16.070 Effect of chapter on existing laws. Except for the provisions of *RCW 2.16.060, this chapter shall not be held to repeal any other existing law relating to the visitation of judges. [1933 ex.s. c 58 § 7; RRS § 11051-7.] *Reviser’s note: RCW 2.16.060 was repealed by 1973 c 106 § 40. Chapter 2.20 Chapter 2.20 RCW MAGISTRATES Sections 2.20.010 2.20.020 Magistrate defined. Who are magistrates. Municipal judges as magistrates: RCW 35.20.020, 35.20.250. Preliminary hearings: Chapter 10.16 RCW. 2.20.010 2.20.010 Magistrate defined. A magistrate is an officer having power to issue a warrant for the arrest of a person charged with the commission of a crime. [1891 c 53 § 1; RRS § 50.] Chapter 2.16 Sections 2.16.010 2.16.020 2.16.040 2.16.050 2.16.070 Association created. Officers. Uniform court rules. Annual meeting. Effect of chapter on existing laws. Administrator for the courts: Chapter 2.56 RCW. 2.20.020 Who are magistrates. The following persons are magistrates: (1) The justices of the supreme court. (2) The judges of the court of appeals. (3) The superior judges, and district judges. (4) All municipal officers authorized to exercise the powers and perform the duties of district judges. [1987 c 202 § 103; 1971 c 81 § 9; 1891 c 53 § 2; RRS § 51.] 2.20.020 Intent—1987 c 202: See note following RCW 2.04.190. 2.16.010 2.16.010 Association created. All the judges of the superior courts of the state of Washington are hereby associated under the name of the association of the superior court judges of the state of Washington. [1933 ex.s. c 58 § 1; RRS § 11051-1.] Chapter 2.24 RCW COURT COMMISSIONERS AND REFEREES Chapter 2.24 Sections 2.24.010 2.16.020 2.16.020 Officers. The judges shall elect from their number a president, who shall be called president judge, and a secretary, who shall hold their offices from the date of one annual meeting of the association to the next. [1955 c 38 § 7; 1933 ex.s. c 58 § 2; RRS § 11051-2.] 2.24.020 2.24.030 2.24.040 2.24.050 2.24.060 Appointment of court commissioners—Qualifications—Term of office. Oath. Salary. Powers—Fees. Revision by court. Referees—Definition—Powers. Attorney serving as guardian ad litem—Disqualification as court commissioner pro tempore—Circumstances: RCW 2.08.185. 2.16.040 2.16.040 Uniform court rules. At its annual meetings, pursuant to section 24, Article IV of the state Constitution, the association shall have power to establish uniform rules (2006 Ed.) Court commissioners: State Constitution Art. 4 § 23; RCW 71.05.135 and 71.05.137. Juvenile court, court commissioner powers: RCW 13.04.021. [Title 2 RCW—page 25] 2.24.010 Title 2 RCW: Courts of Record 2.24.010 2.24.010 Appointment of court commissioners— Qualifications—Term of office. There may be appointed in each county or judicial district, by the judges of the superior court having jurisdiction therein, one or more court commissioners for said county or judicial district. Each such commissioner shall be a citizen of the United States and shall hold the office during the pleasure of the judges making the appointment. [1990 c 191 § 1; 1979 ex.s. c 54 § 1; 1967 ex.s. c 87 § 1; 1961 c 42 § 1; 1909 c 124 § 1; RRS § 83. Prior: 1895 c 83 § 1.] 2.24.020 2.24.020 Oath. Court commissioners appointed hereunder shall, before entering upon the duties of such office, take and subscribe an oath to support the Constitution of the United States, the Constitution of the state of Washington, and to perform the duties of such office fairly and impartially and to the best of his ability. [1909 c 124 § 5; RRS § 88.] 2.24.030 2.24.030 Salary. Each court commissioner appointed hereunder shall be allowed a salary, in addition to the fees herein provided for, in such sum as the board of county commissioners may designate, said salary to be paid at the time and in the manner as the salary of other county officials. [1909 c 124 § 4; RRS § 87. Prior: 1895 c 83 § 3.] 2.24.040 2.24.040 Powers—Fees. Such court commissioner shall have power, authority, and jurisdiction, concurrent with the superior court and the judge thereof, in the following particulars: (1) To hear and determine all matters in probate, to make and issue all proper orders therein, and to issue citations in all cases where same are authorized by the probate statutes of this state. (2) To grant and enter defaults and enter judgment thereon. (3) To issue temporary restraining orders and temporary injunctions, and to fix and approve bonds thereon. (4) To act as referee in all matters and actions referred to him or her by the superior court as such, with all the powers now conferred upon referees by law. (5) To hear and determine all proceedings supplemental to execution, with all the powers conferred upon the judge of the superior court in such matters. (6) To hear and determine all petitions for the adoption of children and for the dissolution of incorporations. (7) To hear and determine all applications for the commitment of any person to the hospital for the insane, with all the powers of the superior court in such matters: PROVIDED, That in cases where a jury is demanded, same shall be referred to the superior court for trial. (8) To hear and determine all complaints for the commitments of minors with all powers conferred upon the superior court in such matters. (9) To hear and determine ex parte and uncontested civil matters of any nature. (10) To grant adjournments, administer oaths, preserve order, compel attendance of witnesses, and to punish for contempts in the refusal to obey or the neglect of the court commissioner’s lawful orders made in any matter before the court commissioner as fully as the judge of the superior court. [Title 2 RCW—page 26] (11) To take acknowledgments and proofs of deeds, mortgages and all other instruments requiring acknowledgment under the laws of this state, and to take affidavits and depositions in all cases. (12) To provide an official seal, upon which shall be engraved the words "Court Commissioner," and the name of the county for which he or she may be appointed, and to authenticate his official acts therewith in all cases where same is necessary. (13) To charge and collect, for his or her own use, the same fees for the official performance of official acts mentioned in subsections (4) and (11) of this section as are provided by law for referees and notaries public. (14) To hear and determine small claims appeals as provided in chapter 12.36 RCW. (15) In adult criminal cases, to preside over arraignments, preliminary appearances, initial extradition hearings, and non com plian ce pro ceedings pursuant to RCW 9.94A.634; accept pleas if authorized by local court rules; appoint counsel; make determinations of probable cause; set, amend, and review conditions of pretrial release; set bail; set trial and hearing dates; authorize continuances; and accept waivers of the right to speedy trial. [2000 c 73 § 1; 1997 c 352 § 14; 1991 c 33 § 6; 1979 ex.s. c 54 § 2; 1963 c 188 § 1; 1909 c 124 § 2; RRS § 85. Prior: 1895 c 83 § 2.] Effective date—1991 c 33: See note following RCW 3.66.020. Powers of commissioner under juvenile court act: RCW 13.04.030. 2.24.050 2.24.050 Revision by court. All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner. Such revision shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner, and unless a demand for revision is made within ten days from the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge. [1988 c 202 § 1; 1971 c 81 § 10; 1909 c 124 § 3; RRS § 86.] Severability—1988 c 202: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1988 c 202 § 97.] 2.24.060 2.24.060 Referees—Definition—Powers. A referee is a person appointed by the court or judicial officer with power— (1) To try an issue of law or of fact in a civil action or proceeding and report thereon. (2) To ascertain any other fact in a civil action or proceeding when necessary for the information of the court, and report the fact or to take and report the evidence in an action. (3) To execute an order, judgment or decree or to exercise any other power or perform any other duty expressly authorized by law. [1891 c 25 § 1; RRS § 82.] Referee asking or receiving unlawful compensation: RCW 9A.68.020, 9A.68.030. (2006 Ed.) Powers of Courts and General Provisions Supplemental proceedings: Chapter 6.32 RCW. Trial before referee: Chapter 4.48 RCW. Chapter 2.28 RCW POWERS OF COURTS AND GENERAL PROVISIONS Chapter 2.28 Sections 2.28.010 2.28.020 2.28.030 2.28.040 2.28.050 2.28.060 2.28.070 2.28.080 2.28.090 2.28.100 2.28.110 2.28.120 2.28.130 2.28.139 2.28.140 2.28.141 2.28.150 2.28.160 2.28.170 2.28.180 2.28.190 Powers of courts in conduct of judicial proceedings. Contempt—Punishment. Judicial officer defined—When disqualified. May act as attorney, when. Judge distinguished from court. Judicial officers—Powers. Contempt—Judicial officer may punish. Powers of judges of supreme and superior courts. Powers of inferior judicial officers. Legal holidays—No court—Exceptions. Legal holiday—Sitting deemed adjourned. Proceedings may be adjourned from time to time. Proceeding not to fail for want of judge or session of court. County to furnish court house. Court rooms. County commissioners to provide temporary quarters. Implied powers—Proceeding when mode not prescribed. Judge pro tempore—Compensation—Reimbursement for subsistence, lodging and travel expenses—Affidavit to court. Drug courts. Mental health courts. Drug court and mental health court may be combined. Justice without unnecessary delay: State Constitution Art. 1 § 10. 2.28.010 2.28.010 Powers of courts in conduct of judicial proceedings. Every court of justice has power—(1) To preserve and enforce order in its immediate presence. (2) To enforce order in the proceedings before it, or before a person or body empowered to conduct a judicial investigation under its authority. (3) To provide for the orderly conduct of proceedings before it or its officers. (4) To compel obedience to its judgments, decrees, orders and process, and to the orders of a judge out of court, in an action, suit or proceeding pending therein. (5) To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto. (6) To compel the attendance of persons to testify in an action, suit or proceeding therein, in the cases and manner provided by law. (7) To administer oaths in an action, suit or proceeding pending therein, and in all other cases where it may be necessary in the exercise of its powers or the performance of its duties. [1955 c 38 § 12; 1909 c 124 § 2; RRS § 85.] Compelling attendance of witnesses: Chapter 5.56 RCW. Oaths, who may administer: RCW 5.28.010. 2.28.020 2.28.020 Contempt—Punishment. For the effectual exercise of the powers specified in RCW 2.28.010, the court may punish for contempt in the cases and the manner provided by law. [1891 c 54 § 2; RRS § 53.] Rules of court: CR 45(f). Contempts: Chapter 7.21 RCW. Criminal contempts: Chapter 7.21 RCW, RCW 9.92.040. Power of judicial officer to punish for contempt: RCW 2.28.060, 2.28.070. Witnesses, failure to attend as contempt: RCW 5.56.061 through 5.56.080. 2.28.070 in a court of justice. Such officer shall not act as such in a court of which he is a member in any of the following cases: (1) In an action, suit or proceeding to which he is a party, or in which he is directly interested. (2) When he was not present and sitting as a member of the court at the hearing of a matter submitted for its decision. (3) When he is related to either party by consanguinity or affinity within the third degree. The degree shall be ascertained and computed by ascending from the judge to the common ancestor and descending to the party, counting a degree for each person in both lines, including the judge and party and excluding the common ancestor. (4) When he has been attorney in the action, suit or proceeding in question for either party; but this section does not apply to an application to change the place of trial, or the regulation of the order of business in court. In the cases specified in subdivisions (3) and (4), the disqualification may be waived by the parties, and except in the supreme court and the court of appeals shall be deemed to be waived unless an application for a change of the place of trial be made as provided by law. [1971 c 81 § 11; 1895 c 39 § 1; 1891 c 54 § 3; RRS § 54.] 2.28.040 2.28.040 May act as attorney, when. A part-time district judge, if permitted by court rule, may act as an attorney in any court other than the one of which he or she is judge, except in an action, suit or proceeding removed therefrom to another court for review. [1987 c 202 § 104; 1891 c 54 § 4; RRS § 55. Cf. Code 1881 § 3293.] Intent—1987 c 202: See note following RCW 2.04.190. Judge may not practice law: State Constitution Art. 4 § 19. 2.28.050 2.28.050 Judge distinguished from court. A judge may exercise out of court all the powers expressly conferred upon a judge as contradistinguished from a court and not otherwise. [1891 c 54 § 5; RRS § 56.] 2.28.060 2.28.060 Judicial officers—Powers. Every judicial officer has power—(1) To preserve and enforce order in his immediate presence and in the proceedings before him, when he is engaged in the performance of a duty imposed upon him by law. (2) To compel obedience to his lawful orders as provided by law. (3) To compel the attendance of persons to testify in a proceeding pending before him, in the cases and manner provided by law. (4) To administer oaths to persons in a proceeding pending before him, and in all other cases where it may be necessary in the exercise of his powers and the performance of his duties. [1955 c 38 § 13; 1891 c 54 § 6; RRS § 57.] Compelling attendance of witnesses: Chapter 5.56 RCW. Oaths, who may administer: RCW 5.28.010. 2.28.070 Contempt—Judicial officer may punish. For the effectual exercise of the powers specified in RCW 2.28.060, a judicial officer may punish for contempt in the cases and manner provided by law. [1891 c 54 § 7; RRS § 58.] 2.28.070 Rules of court: CR 45(f). 2.28.030 2.28.030 Judicial officer defined—When disqualified. A judicial officer is a person authorized to act as a judge (2006 Ed.) Contempts: Chapter 7.21 RCW. Criminal contempts: Chapter 7.21 RCW, RCW 9.92.040. [Title 2 RCW—page 27] 2.28.080 Title 2 RCW: Courts of Record Power of court to punish for contempt: RCW 2.28.020. Witnesses, failure to attend as contempt: RCW 5.56.061 through 5.56.080. 2.28.080 2.28.080 Powers of judges of supreme and superior courts. The judges of the supreme and superior courts have power in any part of the state to take and certify— (1) The proof and acknowledgment of a conveyance of real property or any other written instrument authorized or required to be proved or acknowledged. (2) The acknowledgment of satisfaction of a judgment in any court. (3) An affidavit or deposition to be used in any court of justice or other tribunal of this state. (4) To exercise any other power and perform any other duty conferred or imposed upon them by statute. [1891 c 54 § 8; RRS § 59.] Who may take acknowledgments: RCW 64.08.010. essary, unless otherwise expressly provided by law. [1891 c 54 § 10; RRS § 66.] 2.28.130 2.28.130 Proceeding not to fail for want of judge or session of court. No proceeding in a court of justice in any action, suit, or proceeding pending therein, is affected by a vacancy in the office of any or all of the judges, or by the failure of a session of the court. [1891 c 49 § 2; RRS § 67.] Rules of court: Section superseded by CR 6(c). See comment by court after CR 6(c). 2.28.139 2.28.139 County to furnish court house. The county in which the court is held shall furnish the court house, a jail or suitable place for confining prisoners, books for record, stationery, lights, wood, attendance, and other incidental expenses of the court house and court which are not paid by the United States. [Code 1881 § 2111; 1869 p 421 § 10; 1863 p 425 § 11; RRS § 4034.] 2.28.090 2.28.090 Powers of inferior judicial officers. Every other judicial officer may, within the county, city, district or precinct in which he is chosen— (1) Exercise the powers mentioned in RCW 2.28.080 (1), (2) and (3). (2) Exercise any other power and perform any other duty conferred or imposed upon him by other statute. [1891 c 54 § 9; RRS § 60.] 2.28.100 2.28.100 Legal holidays—No court—Exceptions. No court shall be open, nor shall any judicial business be transacted, on a legal holiday, except: (1) To give, upon their request, instructions to a jury when deliberating on their verdict; (2) To receive the verdict of a jury; (3) For the exercise of the powers of a magistrate in a criminal action, or in a proceeding of a criminal nature; (4) For hearing applications for and issuing writs of habeas corpus, injunction, prohibition and attachment; (5) For the issuance of any process or subpoena not requiring immediate judicial or court action, and the service thereof. The governor, in declaring any legal holiday, in his discretion, may provide in his proclamation that such holiday shall not be applicable to the courts of or within the state. [1986 c 219 § 1; 1933 c 54 § 1; 1927 c 51 § 2; RRS § 64. Prior: 1891 c 41 § 2; Code 1881 § 1267.] Courts to be open except on nonjudicial days: State Constitution Art. 4 § 6 (Amendment 28). Legal holidays: RCW 1.16.050. 2.28.110 2.28.110 Legal holiday—Sitting deemed adjourned. If any legal holiday happens to be a day appointed for the sitting of a court or to which it is adjourned, such sitting shall be deemed appointed for or adjourned to the next day which is not a legal holiday. [1927 c 51 § 3; RRS § 65. Prior: 1891 c 41 § 3.] 2.28.120 2.28.120 Proceedings may be adjourned from time to time. A court or judicial officer has power to adjourn any proceeding before it or him from time to time, as may be nec[Title 2 RCW—page 28] 2.28.140 2.28.140 Court rooms. If the proper authority neglects to provide any superior court with rooms, furniture, fuel, lights and stationery suitable and sufficient for the transaction of its business and for the jury attending upon it, if there be one, the court may order the sheriff to do so, at the place within the county designated by law for holding such court; and the expense incurred by the sheriff in carrying such order into effect, when ascertained and ordered to be paid by the court, is a charge upon the county. [1955 c 38 § 14; 1891 c 54 § 11; RRS § 68.] 2.28.141 2.28.141 County commissioners to provide temporary quarters. Until proper buildings are erected at a place fixed upon for the seat of justice in any county, it shall be the duty of the county commissioners to provide some suitable place for holding the courts of such county. [Code 1881 § 2688; 1854 p 423 § 23; RRS § 4035.] 2.28.150 2.28.150 Implied powers—Proceeding when mode not prescribed. When jurisdiction is, by the Constitution of this state, or by statute, conferred on a court or judicial officer all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding is not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the laws. [1955 c 38 § 15; 1891 c 54 § 12; RRS § 69.] 2.28.160 2.28.160 Judge pro tempore—Compensation— Reimbursement for subsistence, lodging and travel expenses—Affidavit to court. Whenever a judge serves as a judge pro tempore the payments for subsistence, lodging, and compensation pursuant to RCW 2.04.250 and 2.06.160 as now or hereafter amended shall be paid only for time actually spent away from the usual residence and abode of such pro tempore judge and only for time actually devoted to sitting on cases heard by such pro tempore judge and for time actually spent in research and preparation of a written opinion prepared and delivered by such pro tempore judge; which time spent shall be evidenced by an affidavit of such judge to be submitted by him to the court from which he is entitled to (2006 Ed.) Powers of Courts and General Provisions receive subsistence, lodging, and compensation for his services pursuant to RCW 2.04.250 and 2.06.160 as now or hereafter amended. [1975-’76 2nd ex.s. c 34 § 2.] Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. 2.28.170 2.28.170 Drug courts. (1) Counties may establish and operate drug courts. (2) For the purposes of this section, "drug court" means a court that has special calendars or dockets designed to achieve a reduction in recidivism and substance abuse among nonviolent, substance abusing felony and nonfelony offenders, whether adult or juvenile, by increasing their likelihood for successful rehabilitation through early, continuous, and intense judicially supervised treatment; mandatory periodic drug testing; and the use of appropriate sanctions and other rehabilitation services. (3)(a) Any jurisdiction that seeks a state appropriation to fund a drug court program must first: (i) Exhaust all federal funding that is available to support the operations of its drug court and associated services; and (ii) Match, on a dollar-for-dollar basis, state moneys allocated for drug court programs with local cash or in-kind resources. Moneys allocated by the state must be used to supplement, not supplant, other federal, state, and local funds for drug court operations and associated services. (b) Any county that establishes a drug court pursuant to this section shall establish minimum requirements for the participation of offenders in the program. The drug court may adopt local requirements that are more stringent than the minimum. The minimum requirements are: (i) The offender would benefit from substance abuse treatment; (ii) The offender has not previously been convicted of a serious violent offense or sex offense as defined in RCW 9.94A.030; and (iii) Without regard to whether proof of any of these elements is required to convict, the offender is not currently charged with or convicted of an offense: (A) That is a sex offense; (B) That is a serious violent offense; (C) During which the defendant used a firearm; or (D) During which the defendant caused substantial or great bodily harm or death to another person. [2006 c 339 § 106; 2005 c 504 § 504; 2002 c 290 § 13; 1999 c 197 § 9.] 2.28.190 2.28.180 2.28.180 Mental health courts. (1) Counties may establish and operate mental health courts. (2) For the purposes of this section, "mental health court" means a court that has special calendars or dockets designed to achieve a reduction in recidivism and symptoms of mental illness among nonviolent, mentally ill felony and nonfelony offenders by increasing their likelihood for successful rehabilitation through early, continuous, and intense judicially supervised treatment including drug treatment for persons with co-occurring disorders; mandatory periodic reviews, including drug testing if indicated; and the use of appropriate sanctions and other rehabilitation services. (3)(a) Any jurisdiction that seeks a state appropriation to fund a mental health court program must first: (i) Exhaust all federal funding that is available to support the operations of its mental health court and associated services; and (ii) Match, on a dollar-for-dollar basis, state moneys allocated for mental health court programs with local cash or in-kind resources. Moneys allocated by the state must be used to supplement, not supplant, other federal, state, and local funds for mental health court operations and associated services. (b) Any county that establishes a mental health court pursuant to this section shall establish minimum requirements for the participation of offenders in the program. The mental health court may adopt local requirements that are more stringent than the minimum. The minimum requirements are: (i) The offender would benefit from psychiatric treatment; (ii) The offender has not previously been convicted of a serious violent offense or sex offense as defined in RCW 9.94A.030; and (iii) Without regard to whether proof of any of these elements is required to convict, the offender is not currently charged with or convicted of an offense: (A) That is a sex offense; (B) That is a serious violent offense; (C) During which the defendant used a firearm; or (D) During which the defendant caused substantial or great bodily harm or death to another person. [2005 c 504 § 501.] Intent—Part headings not law—2006 c 339: See notes following RCW 70.96A.325. Findings—Intent—Severability—Application—Construction— Captions, part headings, subheadings not law—Adoption of rules— Effective dates—2005 c 504: See notes following RCW 71.05.027. Findings—Intent—Severability—Application—Construction— Captions, part headings, subheadings not law—Adoption of rules— Effective dates—2005 c 504: See notes following RCW 71.05.027. Alphabetization—Correction of references—2005 c 504: See note following RCW 71.05.020. Alphabetization—Correction of references—2005 c 504: See note following RCW 71.05.020. Effective date—2002 c 290 §§ 1, 4-6, 12, 13, 26, and 27: See note following RCW 70.96A.350. Intent—2002 c 290: See note following RCW 9.94A.517. Severability—2002 c 290: See RCW 9.94A.924. Legislative recognition—1999 c 197: "The legislature recognizes the utility of drug court programs in reducing recidivism and assisting the courts by diverting potential offenders from the normal course of criminal trial proceedings." [1999 c 197 § 7.] Severability—1999 c 197: See note following RCW 9.94A.030. (2006 Ed.) 2.28.190 2.28.190 Drug court and mental health court may be combined. Any county that has established a drug court and a mental health court under this chapter may combine the functions of both courts into a single therapeutic court. [2005 c 504 § 502.] Findings—Intent—Severability—Application—Construction— Captions, part headings, subheadings not law—Adoption of rules— Effective dates—2005 c 504: See notes following RCW 71.05.027. Alphabetization—Correction of references—2005 c 504: See note following RCW 71.05.020. [Title 2 RCW—page 29] Chapter 2.32 Title 2 RCW: Courts of Record Chapter 2.32 RCW COURT CLERKS, REPORTERS, AND BAILIFFS Chapter 2.32 Sections 2.32.011 2.32.021 2.32.031 2.32.050 2.32.060 2.32.070 2.32.071 2.32.090 2.32.110 2.32.120 2.32.130 2.32.140 2.32.160 2.32.170 2.32.180 2.32.200 2.32.210 2.32.220 2.32.230 2.32.240 2.32.250 2.32.260 2.32.270 2.32.280 2.32.290 2.32.300 2.32.310 2.32.330 2.32.360 2.32.370 Election, compensation—Clerks of superior court. Oath and bond of clerk of superior court. Office—Clerks of superior court. Powers and duties of court clerks. Powers and duties of clerk of superior court. Fees—Supreme court clerk, clerks of court of appeals. Fees—Superior court clerks. Clerk not to practice law. Reporter’s duties. Publication of reports. Correction by judges. Opinions available to reporter. Washington court reports commission. Commission—Powers. Superior court reporters—Qualifications—Appointment— Terms—Oath and bonds. Duties of official reporter. Salaries—Expenses. Application to lesser judicial districts. One reporter for two lesser districts. Transcript of testimony—Fee—Forma pauperis. Transcript accorded verity. Notes of outgoing reporter may be transcribed—Effect. Reporter pro tempore. Reporter as amanuensis in counties with populations of one hundred twenty-five thousand or more. Court files accessible to reporter. Office space. Other reporting service not precluded. Criers and bailiffs. Compensation of superior court bailiffs. Payment of compensation. 2.32.011 2.32.011 Election, compensation—Clerks of superior court. See chapters 36.16 and 36.17 RCW. 2.32.021 2.32.021 Oath and bond of clerk of superior court. See RCW 36.16.040 through 36.16.060. 2.32.031 2.32.031 Office—Clerks of superior court. RCW 36.23.080. 2.32.050 See 2.32.050 Powers and duties of court clerks. The clerk of the supreme court, each clerk of the court of appeals, and each clerk of a superior court, has power to take and certify the proof and acknowledgment of a conveyance of real property, or any other written instrument authorized or required to be proved or acknowledged, and to administer oaths in every case when authorized by law; and it is the duty of the clerk of the supreme court, each clerk of the court of appeals, and of each county clerk for each of the courts for which he is clerk— (1) To keep the seal of the court and affix it in all cases where he is required by law. (2) To record the proceedings of the court. (3) To keep the records, files and other books and papers appertaining to the court. (4) To file all papers delivered to him for that purpose in any action or proceeding in the court as directed by court rule or statute. (5) To attend the court of which he is clerk, to administer oaths, and receive the verdict of a jury in any action or proceeding therein, in the presence and under the direction of the court. [Title 2 RCW—page 30] (6) To keep the journal of the proceedings of the court, and, under the direction of the court, to enter its orders, judgments and decrees. (7) To authenticate by certificate or transcript, as may be required, the records, files or proceedings of the court, or any other paper appertaining thereto and filed with him. (8) To exercise the powers and perform the duties conferred and imposed upon him elsewhere by statute. (9) In the performance of his duties to conform to the direction of the court. (10) To publish notice of the procedures for inspection of the public records of the court. [1981 c 277 § 1; 1971 c 81 § 12; 1891 c 57 § 3; RRS § 77. Prior: Code 1881 §§ 2180, 2182, 2184.] Rules of court: SAR 16. 2.32.060 2.32.060 Powers and duties of clerk of superior court. See chapter 36.23 RCW. County clerk is clerk of superior court: State Constitution Art. 4 § 26. County clerk’s trust fund and safekeeping thereof: Chapter 36.48 RCW. 2.32.070 2.32.070 Fees—Supreme court clerk, clerks of court of appeals. The clerk of the supreme court and the clerks of the court of appeals shall collect the following fees for their official services: Upon filing his or her first paper or record and making an appearance, the appellant or petitioner shall pay to the clerk of said court a docket fee of two hundred fifty dollars. For copies of opinions, twenty cents per folio: PROVIDED, That counsel of record and criminal defendants shall be supplied a copy without charge. For certificates showing admission of an attorney to practice law five dollars, except that there shall be no fee for an original certificate to be issued at the time of his or her admission. For filing a petition for review of a court of appeals decision terminating review, two hundred dollars. The foregoing fees shall be all the fees connected with the appeal or special proceeding. No fees shall be required to be advanced by the state or any municipal corporation, or any public officer prosecuting or defending on behalf of such state or municipal corporation. [1992 c 140 § 1; 1987 c 382 § 1; 1981 c 331 § 2; 1971 ex.s. c 107 § 2; 1951 c 51 § 1; 1907 c 56 § 1, part; 1903 c 151 § 1, part; RRS § 497, part. Prior: 1893 c 130 § 1, part; Code 1881 § 2086, part; 1866 pp 94-99, part; 1863 pp 391-399, part; 1861 pp 34-42, part; 1854 pp 368-376, part.] Effective date—1992 c 140: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect April 1, 1992." [1992 c 140 § 2.] Court Congestion Reduction Act of 1981—Purpose—1981 c 331: "Recognizing the value of providing the people of the state of Washington with justice delivered in an expeditious fashion, recognizing the need to assure the people of the state of Washington that the quality of our judicial system will not be placed in jeopardy, and recognizing the need to avoid congestion of the courts at all levels of our judicial system, the legislature hereby enacts this Court Congestion Reduction Act of 1981." [1981 c 331 § 1.] Severability—1981 c 331: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1981 c 331 § 16.] (2006 Ed.) Court Clerks, Reporters, and Bailiffs "Folio" defined: RCW 1.16.040. 2.32.071 2.32.071 Fees—Superior court clerks. 36.18.020. See RCW County law library fees: RCW 27.24.070, 27.24.090. 2.32.180 [2005 c 190 § 1; 1995 c 257 § 1; 1984 c 287 § 7; 1971 c 42 § 1; 1943 c 185 § 1; Rem. Supp. 1943 § 11071-1. Prior: 1917 c 87 § 1; 1905 c 167 §§ 1-4; 1895 c 55 § 1; 1891 c 37 § 1; 1890 p 327 § 1.] Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. 2.32.090 2.32.090 Clerk not to practice law. Each clerk of a court is prohibited during his continuance in office from acting, or having a partner who acts, as an attorney of the court of which he is clerk. [1891 c 57 § 5; RRS § 81. Prior: Code 1881 § 2183; 1854 p 367 § 10.] Rules of court: SAR 16(3). 2.32.110 2.32.110 Reporter’s duties. He shall prepare such decisions for publication by giving the title of each case, a syllabus of the points decided, a brief statement of the facts bearing on the points decided, the names of the counsel, and a reference to such authorities as are cited from standard reports and textbooks that have a special bearing on the case, and he shall prepare a full and comprehensive index to each volume, and prefix a table of cases reported. [1890 p 320 § 2; RRS § 11059.] Rules of court: SAR 17. 2.32.120 2.32.120 Publication of reports. The reports must be published under the supervision of the court, and to that end each of the judges must be furnished by the reporter with proof sheets of each volume thirty days before its final publication. [1890 p 320 § 3; RRS § 11060.] Rules of court: SAR 17. Publication of supreme court opinions: State Constitution Art. 4 § 21. reports by public printer: RCW 43.78.070. 2.32.130 2.32.130 Correction by judges. Within thirty days after such proof sheets are furnished, the judges must return the same to the reporter, with corrections or alterations, and he must make the corrections or alterations accordingly. [1890 p 320 § 4; RRS § 11061.] Rules of court: SAR 17. 2.32.140 2.32.140 Opinions available to reporter. The reporter may take the original opinions and papers in each case from the clerk’s office and retain them in his possession not exceeding sixty days. [1890 p 320 § 5; RRS § 11062.] 2.32.160 2.32.160 Washington court reports commission. There is hereby created a commission advisory to the supreme court regarding the publication of the decisions of the supreme court and court of appeals of this state in both the form of advance sheets for temporary use and in permanent form, to be known as the Washington court reports commission, and to include the reporter of decisions, the state law librarian, and such other members, including a judge of the court of appeals and a member in good standing of the Washington state bar association, as determined by the chief justice of the supreme court, who shall be chairman of the commission. Members of the commission shall serve as such without additional or any compensation: PROVIDED, That members shall be compensated in accordance with RCW 43.03.240. (2006 Ed.) 2.32.170 2.32.170 Commission—Powers. The commission shall make recommendations to the supreme court on matters pertaining to the publication of such decisions, in both temporary and permanent forms. The commission shall by July 1, 1997, develop a policy that ensures that if any material prepared pursuant to RCW 2.32.110 is licensed for resale, the material is made available for licensing to all commercial resellers on an equal and nonexclusive basis. [1995 c 257 § 2; 1943 c 185 § 2; Rem. Supp. 1943 § 11071-2. Prior: 1921 c 162 § 1; 1919 c 117 §§ 1-3; 1905 c 167 § 5.] 2.32.180 2.32.180 Superior court reporters—Qualifications— Appointment—Terms—Oath and bonds. It shall be and is the duty of each and every superior court judge in counties or judicial districts in the state of Washington having a population of over thirty-five thousand inhabitants to appoint, or said judge may, in any county or judicial district having a population of over twenty-five thousand and less than thirtyfive thousand, appoint a stenographic reporter to be attached to the judge’s court who shall have had at least three years’ experience as a skilled, practical reporter, or who upon examination shall be able to report and transcribe accurately one hundred and seventy-five words per minute of the judge’s charge or two hundred words per minute of testimony each for five consecutive minutes; said test of proficiency, in event of inability to meet qualifications as to length of time of experience, to be given by an examining committee composed of one judge of the superior court and two official reporters of the superior court of the state of Washington, appointed by the president judge of the superior court judges association of the state of Washington: PROVIDED, That a stenographic reporter shall not be required to be appointed for the seven additional judges of the superior court authorized for appointment by section 1, chapter 323, Laws of 1987, the additional superior court judge authorized by section 1, chapter 66, Laws of 1988, the additional superior court judges authorized by sections 2 and 3, chapter 328, Laws of 1989, the additional superior court judges authorized by sections 1 and 2, chapter 186, Laws of 1990, or the additional superior court judges authorized by sections 1 through 5, chapter 189, Laws of 1992. Appointment of a stenographic reporter is not required for any additional superior court judge authorized after July 1, 1992. The initial judicial appointee shall serve for a period of six years; the two initial reporter appointees shall serve for a period of four years and two years, respectively, from September 1, 1957; thereafter on expiration of the first terms of service, each newly appointed member of said examining committee to serve for a period of six years. In the event of death or inability of a member to serve, the president judge shall appoint a reporter or judge, as the case may be, to serve for the balance of the unexpired term of the member whose inability to serve caused such vacancy. The examining committee shall grant certificates to qualified applicants. Administrative and procedural rules and regulations shall be pro[Title 2 RCW—page 31] 2.32.200 Title 2 RCW: Courts of Record mulgated by said examining committee, subject to approval by the said president judge. The stenographic reporter upon appointment shall thereupon become an officer of the court and shall be designated and known as the official reporter for the court or judicial district for which he or she is appointed: PROVIDED, That in no event shall there be appointed more official reporters in any one county or judicial district than there are superior court judges in such county or judicial district; the appointments in each county with a population of one million or more shall be made by the majority vote of the judges in said county acting en banc; the appointments in each county with a population of from one hundred twenty-five thousand to less than one million may be made by each individual judge therein or by the judges in said county acting en banc. Each official reporter so appointed shall hold office during the term of office of the judge or judges appointing him or her, but may be removed for incompetency, misconduct or neglect of duty, and before entering upon the discharge of his or her duties shall take an oath to perform faithfully the duties of his or her office, and file a bond in the sum of two thousand dollars for the faithful discharge of his or her duties. Such reporter in each court is hereby declared to be a necessary part of the judicial system of the state of Washington. [1992 c 189 § 6; 1991 c 363 § 2; 1990 c 186 § 3; 1989 c 328 § 4; 1988 c 66 § 3; 1987 c 323 § 4; 1957 c 244 § 1; 1945 c 154 § 1; 1943 c 69 § 1; 1921 c 42 § 1; 1913 c 126 § 1; Rem. Supp. 1945 § 42-1. Formerly RCW 2.32.180, 2.32.190.] Effective dates—1992 c 189: See note following RCW 2.08.061. Purpose—1991 c 363: "The purposes of this act are to eliminate the use of formal county classes and substitute the use of the most current county population figures to distinguish counties. In addition, certain old statutes that reference county class, but no longer are followed, are repealed or amended to conform with current practices." [1991 c 363 § 1.] Captions not law—1991 c 363: "Section headings as used in this act do not constitute any part of the law." [1991 c 363 § 168.] 2.32.200 2.32.200 Duties of official reporter. It shall be the duty of each official reporter appointed under RCW 2.32.180 through 2.32.310 to attend every term of the superior court in the county or judicial district for which he is appointed, at such times as the judge presiding may direct; and upon the trial of any cause in any court, if either party to the suit or action, or his attorney, request the services of the official reporter, the presiding judge shall grant such request, or upon his own motion such presiding judge may order a full report of the testimony, exceptions taken, and all other oral proceedings; in which case the official reporter shall cause accurate shorthand notes of the oral testimony, exceptions taken, and other oral proceedings had, to be taken, except when the judge and attorneys dispense with his services with respect to any portion of the proceedings therein, which notes shall be filed in the office of the clerk of the superior court where such trial is had. [1983 c 3 § 1; 1913 c 126 § 2; RRS § 42-2.] 2.32.210 2.32.210 Salaries—Expenses. Each official reporter shall be paid such compensation as shall be fixed, after recommendation by the judges of the judicial district involved, by the legislative authority of the county comprising said judicial district, or by the legislative authorities acting jointly where the judicial district is comprised of more than one [Title 2 RCW—page 32] county: PROVIDED, That in judicial districts having a total population of forty thousand or more, the salary of an official court reporter shall not be less than sixteen thousand five hundred dollars per annum: PROVIDED FURTHER, That in judicial districts having a total population of twenty-five thousand and under forty thousand, such salary shall not be less than eleven thousand one hundred dollars per annum. Said compensation shall be paid out of the current expense fund of the county or counties where court is held. In judicial districts comprising more than one county the council or commissioners thereof shall, on the first day of January of each year, or as soon thereafter as may be convenient, apportion the amount of the salary to be paid to the reporter by each county according and in proportion to the number of criminal and civil actions entered and commenced in superior court of the constituent counties in the preceding year. In addition to the salary above provided, in judicial districts comprising more than one county, the reporter shall receive his actual and necessary expenses of transportation and living expenses when he goes on official business to a county of his judicial district other than the county in which he resides, from the time he leaves his place of residence until he returns thereto, said expense to be paid by the county to which he travels. If one trip includes two or more counties, the expense may be apportioned between the counties visited in proportion to the amount of time spent in each county on the trip. If an official reporter uses his own automobile for the purpose of such transportation, he shall be paid therefor at the same rate per mile as county officials are paid for use of their private automobiles. The sworn statement of the official reporter, when certified to as correct by the judge presiding, shall be a sufficient voucher upon which the county auditor shall draw his warrant upon the treasurer of the county in favor of the official reporter. The salaries of official court reporters shall be paid upon sworn statements, when certified as correct by the judge presiding, as state and county officers are paid. [1975 1st ex.s. c 128 § 1; 1972 ex.s. c 18 § 1; 1969 c 95 § 1; 1967 c 20 § 1; 1965 ex.s. c 114 § 1; 1961 c 121 § 1; 1957 c 244 § 2; 1953 c 265 § 1; 1951 c 210 § 1. Prior: 1945 c 24 § 1; 1943 c 69 § 2; 1913 c 126 § 3; Rem. Supp. 1945 § 42-3.] 2.32.220 2.32.220 Application to lesser judicial districts. If the judge of the superior court in any judicial district having a total population of less than twenty-five thousand finds that the work in such district requires the services of an official court reporter he may appoint a person qualified under RCW 2.32.180. [1957 c 244 § 3; 1951 c 210 § 2; 1945 c 24 § 2; Rem. Supp. 1945 § 42-3a.] 2.32.230 2.32.230 One reporter for two lesser districts. An official court reporter may be appointed to serve two or more judicial districts, each of which has a total population under twenty-five thousand, if the judges thereof so agree, and the salary of such official reporter shall be determined by the total population of all the judicial districts so served in accordance with the schedule of salaries in RCW 2.32.210, and shall be apportioned between the several counties of the districts as therein provided. Such reporter, if appointed, must be (2006 Ed.) Court Clerks, Reporters, and Bailiffs qualified to serve, under RCW 2.32.180. [1951 c 210 § 3; 1945 c 24 § 3; Rem. Supp. 1945 § 42-3b.] 2.32.240 2.32.240 Transcript of testimony—Fee—Forma pauperis. (1) When a record has been taken in any cause as provided in RCW 2.32.180 through 2.32.310, if the court, or either party to the suit or action, or his attorney, request a transcript, the official reporter and clerk of the court shall make, or cause to be made, with reasonable diligence, full and accurate transcript of the testimony and other proceedings, which shall, when certified to as hereinafter provided, be filed with the clerk of the court where such trial is had for the use of the court or parties to the action. The fees of the reporter and clerk of the court for making such transcript shall be fixed in accordance with costs as allowed in cost bills in civil cases by the supreme court of the state of Washington, and when such transcript is ordered by any party to any suit or action, said fee shall be paid forthwith by the party ordering the same, and in all cases where a transcript is made as provided for under the provisions of RCW 2.32.180 through 2.32.310 the cost thereof shall be taxable as costs in the case, and shall be so taxed as other costs in the case are taxed: PROVIDED, That when, from and after December 20, 1973, a party has been judicially determined to have a constitutional right to a transcript and to be unable by reason of poverty to pay for such transcript, the court may order said transcript to be made by the official reporter, which transcript fee therefor shall be paid by the state upon submission of appropriate vouchers to the clerk of the supreme court. [1983 c 3 § 2; 1975 1st ex.s. c 261 § 1; 1972 ex.s. c 111 § 1; 1970 ex.s. c 31 § 1; 1965 c 133 § 3; 1957 c 244 § 4; 1943 c 69 § 4; 1913 c 126 § 5; Rem. Supp. 1943 § 42-5.] Severability—1965 c 133: "If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1965 c 133 § 4.] Indigent party—State to pay costs and fees incident to review by supreme court or court of appeals: RCW 4.88.330. 2.32.250 2.32.250 Transcript accorded verity. The report of the official reporter, when transcribed and certified as being a correct transcript of the stenographic notes of the testimony, or other oral proceedings had in the matter, shall be prima facie a correct statement of such testimony or other oral proceedings had, and the same may thereafter, in any civil cause, be read in evidence as competent testimony, when satisfactory proof is offered to the judge presiding that the witness originally giving such testimony is then dead or without the jurisdiction of the court, subject, however, to all objections the same as though such witness were present and giving such testimony in person. [1913 c 126 § 6; RRS § 42-6.] 2.32.260 2.32.260 Notes of outgoing reporter may be transcribed—Effect. When the official reporter who has taken notes in any cause, shall thereafter cease to be such official reporter, any transcript thereafter made by him therefrom, or made by any competent person under the direction of the court, and duly certified to by the person making the same, under oath, as a full, true and correct transcript of said notes, the same shall have full force and effect the same as though (2006 Ed.) 2.32.360 certified by an official reporter of said court. [1913 c 126 § 7; RRS § 42-7.] 2.32.270 2.32.270 Reporter pro tempore. In the event of the absence or inability of the official reporter to act, the presiding judge may appoint a competent stenographer to act pro tempore, who shall perform the same duties as the official reporter, and whose report when certified to, shall have the same legal effect as the certified report of the official reporter. The reporter pro tempore shall possess the qualifications and take the oath prescribed for the official reporter, and shall file a like bond, and shall receive the same compensation. [1913 c 126 § 8; RRS § 42-8.] 2.32.280 2.32.280 Reporter as amanuensis in counties with populations of one hundred twenty-five thousand or more. In all counties or judicial districts, except in any county with a population of one hundred twenty-five thousand or more, such official reporter shall act as amanuensis to the court for which he or she is appointed. [1991 c 363 § 3; 1957 c 244 § 5; 1943 c 69 § 5; 1913 c 126 § 9; Rem. Supp. 1943 § 42-9.] Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. 2.32.290 2.32.290 Court files accessible to reporter. Official reporters or reporters pro tempore may, without order of court, upon giving a proper receipt therefor, procure at all reasonable hours from the office of the clerk of the court, any files or exhibits necessary for use in the preparation of statements of fact or transcribing portions of testimony or proceedings in any cause reported by them. [1913 c 126 § 10; RRS § 42-10.] 2.32.300 2.32.300 Office space. Suitable office space shall be furnished the official reporter. [1943 c 69 § 6; 1913 c 126 § 11; Rem. Supp. 1943 § 42-11.] 2.32.310 2.32.310 Other reporting service not precluded. Nothing in this act or any other act or parts of acts or court rule shall be construed to preclude such official reporter from performing other and additional reporting service at any time when such service can be performed without conflict with or prejudice to the duties of the official reporter. [1943 c 69 § 8; Rem. Supp. 1943 § 42-14.] 2.32.330 2.32.330 Criers and bailiffs. Every court of record shall have the power to appoint a crier and as many bailiffs as may be necessary for the orderly and expeditious dispatch of the business. [1891 c 54 § 13; RRS § 11052.] 2.32.360 2.32.360 Compensation of superior court bailiffs. Bailiffs of the several superior courts in this state, appointed by the respective judges thereof, shall be paid for their services such salary or per diem as shall be fixed and allowed by the board of county commissioners of the county in which they serve. [1949 c 139 § 1; 1945 c 149 § 1; 1943 c 94 § 1; 1939 c 134 § 1; 1917 c 94 § 1; 1891 c 10 § 1; Rem. Supp. 1949 § 10973. Cf. 1921 c 25 § 1; 1919 c 141 § 1.] [Title 2 RCW—page 33] 2.32.370 Title 2 RCW: Courts of Record 2.32.370 2.32.370 Payment of compensation. From time to time, the superior judge of the county shall certify the amount due any such bailiff, and order the payment thereof; and thereupon the county auditor shall issue to such bailiff a warrant on the county treasurer, payable out of the general fund [current expense fund], for the amount so certified. [1891 c 10 § 2; RRS § 10975.] Chapter 2.36 Chapter 2.36 RCW JURIES Sections 2.36.010 2.36.020 2.36.050 2.36.052 2.36.054 2.36.055 2.36.057 2.36.0571 2.36.063 2.36.065 2.36.070 2.36.072 2.36.080 2.36.093 2.36.095 2.36.100 2.36.110 2.36.130 2.36.150 2.36.165 2.36.170 Definitions. Kinds of juries. Juries in courts of limited jurisdiction. Courts of limited jurisdiction—Performance of jury management activities by superior court authorized. Jury source list—Master jury list—Creation. Jury source list—Jury assignment areas—Master jury list— Compilation. Expanded jury source list—Court rules. Jury source list—Master jury list—Adoption of rules for implementation of methodology and standards by agencies. Compilation of jury source list, master jury list, and selection of jurors by electronic data processing. Judges to ensure random selection—Description of process. Qualification of juror. Determination of juror qualification—Written declaration. Selection of jurors—State policy—Exclusion for race, color, religion, sex, national origin, or economic status prohibited. Selection of jurors—Length and number of terms—Time of service. Summons to persons selected. Excuse from service—Reasons—Assignment to another term—Summons for additional service—Certification of prior service. Judge must excuse unfit person. Additional names. Juror expense payments—Reimbursement by state—Pilot projects. Leave of absence from employment to be provided—Denial of promotional opportunities prohibited—Penalty—Civil action. Failure of juror to appear—Penalty. Grand juries—Criminal investigations: Chapter 10.27 RCW. Juries crimes relating to: Chapter 9.51 RCW. in eminent domain proceedings: Title 8 RCW. Jury trial, civil cases, challenging, procedure, etc.: Chapter 4.44 RCW. 2.36.010 2.36.010 Definitions. Unless the context clearly requires otherwise the definitions in this section apply throughout this chapter. (1) A jury is a body of persons temporarily selected from the qualified inhabitants of a particular district, and invested with power— (a) To present or indict a person for a public offense. (b) To try a question of fact. (2) "Court" when used without further qualification means any superior court or court of limited jurisdiction in the state of Washington. (3) "Judge" means every judicial officer authorized to hold or preside over a court. For purposes of this chapter "judge" does not include court commissioners or referees. (4) "Juror" means any person summoned for service on a petit jury, grand jury, or jury of inquest as defined in this chapter. [Title 2 RCW—page 34] (5) "Grand jury" means those twelve persons impaneled by a superior court to hear, examine, and investigate evidence concerning criminal activity and corruption. (6) "Petit jury" means a body of persons twelve or less in number in the superior court and six in number in courts of limited jurisdiction, drawn by lot from the jurors in attendance upon the court at a particular session, and sworn to try and determine a question of fact. (7) "Jury of inquest" means a body of persons six or fewer in number, but not fewer than four persons, summoned before the coroner or other ministerial officer, to inquire of particular facts. (8) "Jury source list" means the list of all registered voters for any county, merged with a list of licensed drivers and identicard holders who reside in the county. The list shall specify each person’s name and residence address and conform to the methodology and standards set pursuant to the provisions of RCW 2.36.054 or by supreme court rule. The list shall be filed with the superior court by the county auditor. (9) "Master jury list" means the list of prospective jurors from which jurors summoned to serve will be randomly selected. The master jury list shall be either randomly selected from the jury source list or may be an exact duplicate of the jury source list. (10) "Jury term" means a period of time of one or more days, not exceeding one month, during which summoned jurors must be available to report for juror service. (11) "Juror service" means the period of time a juror is required to be present at the court facility. This period of time may not extend beyond the end of the jury term, and may not exceed two weeks, except to complete a trial to which the juror was assigned during the two-week period. (12) "Jury panel" means those persons randomly selected for jury service for a particular jury term. [1993 c 408 § 4; 1992 c 93 § 1; 1988 c 188 § 2; 1891 c 48 § 1; RRS § 89.] Severability—Effective dates—1993 c 408: See notes following RCW 2.36.054. Legislative findings—1988 c 188: "The legislature recognizes the vital and unique role of the jury system in enhancing our system of justice. The purpose of this chapter is the promotion of efficient jury administration and the opportunity for widespread citizen participation in the jury system. To accomplish this purpose the legislature intends that all courts and juries of inquest in the state of Washington select, summon, and compensate jurors uniformly." [1988 c 188 § 1.] Severability—1988 c 188: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1988 c 188 § 23.] Effective date—1988 c 188: "Except for section 19, this act shall take effect January 1, 1989. Section 19 of this act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately [March 22, 1988]." [1988 c 188 § 24.] 2.36.020 2.36.020 Kinds of juries. There shall be three kinds of juries— (1) A grand jury. (2) A petit jury. (3) A jury of inquest. [1891 c 48 § 2; RRS § 90.] 2.36.050 2.36.050 Juries in courts of limited jurisdiction. In courts of limited jurisdiction, juries shall be selected and (2006 Ed.) Juries impaneled in the same manner as in the superior courts, except that a court of limited jurisdiction shall use the master jury list developed by the superior court to select a jury panel. Jurors for the jury panel may be selected at random from the population of the area served by the court. [1988 c 188 § 3; 1980 c 162 § 6; 1972 ex.s. c 57 § 1; 1891 c 48 § 4; RRS § 92.] Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. Severability—1980 c 162: See note following RCW 3.02.010. Courts of limited jurisdiction: Chapter 3.02 RCW. 2.36.052 2.36.052 Courts of limited jurisdiction—Performance of jury management activities by superior court authorized. Pursuant to an agreement between the judge or judges of each superior court and the judge or judges of each court of limited jurisdiction, jury management activities may be performed by the superior court for any county or judicial district as provided by statute. [1988 c 188 § 20.] Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. 2.36.055 (3) The department of information services shall provide counties that elect to receive a jury source list merged by department of information services with a list of names which are possible duplicates that cannot be resolved based on the identifying information required under subsection (2) of this section. If a possible duplication cannot subsequently be resolved satisfactorily through reasonable efforts by the county receiving the merged list, the possible duplicate name shall be stricken from the jury source list until the next annual jury source list is prepared. [1993 c 408 § 3.] Severability—1993 c 408: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1993 c 408 § 14.] Effective dates—1993 c 408: "(1) Sections 1, 2, 3, 6, 8, and 13 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1993. (2) Sections 10 and 12 of this act shall take effect March 1, 1994. (3) The remainder of this act shall take effect September 1, 1994." [1993 c 408 § 15.] 2.36.055 2.36.054 2.36.054 Jury source list—Master jury list—Creation. Unless otherwise specified by rule of the supreme court, the jury source list and master jury list for each county shall be created as provided by this section. (1) The superior court of each county, after consultation with the county clerk and county auditor of that jurisdiction, shall annually notify the department of information services not later than March 1 of each year of its election to use either a jury source list that is merged by the county or a jury source list that is merged by the department of information services. The department of information services shall annually furnish at no charge to the superior court of each county a separate list of the registered voters residing in that county as supplied annually by the secretary of state and a separate list of driver’s license and identicard holders residing in that county as supplied annually by the department of licensing, or a merged list of all such persons residing in that county, in accordance with the annual notification required by this subsection. The lists provided by the department of information services shall be in an electronic format mutually agreed upon by the superior court requesting it and the department of information services. The annual merger of the list of registered voters residing in each county with the list of licensed drivers and identicard holders residing in each county to form a jury source list for each county shall be in accordance with the standards and methodology established in this chapter or by superseding court rule whether the merger is accomplished by the department of information services or by a county. (2) Persons on the lists of registered voters and driver’s license and identicard holders shall be identified by a minimum of last name, first name, middle initial where available, date of birth, gender, and county of residence. Identifying information shall be used when merging the lists to ensure to the extent reasonably possible that persons are only listed once on the merged list. Conflicts in addresses are to be resolved by using the most recent record by date of last vote in a general election, date of driver’s license or identicard address change or date of voter registration. (2006 Ed.) 2.36.055 Jury source list—Jury assignment areas— Master jury list—Compilation. The superior court at least annually shall cause a jury source list to be compiled from a list of all registered voters and a list of licensed drivers and identicard holders residing in the county. In a county with more than one superior court facility and a separate case assignment area for each court facility, the jury source list may be divided into jury assignment areas that consist of registered voters and licensed drivers and identicard holders residing in each jury assignment area. Jury assignment area boundaries may be designated and adjusted by the administrative office of the courts based on the most current United States census data at the request of the majority of the judges of the superior court when required for the efficient and fair administration of justice. The superior court upon receipt of the jury source list shall compile a master jury list. The master jury list shall be certified by the superior court and filed with the county clerk. All previous jury source lists and master jury lists shall be superseded. In the event that, for any reason, a county’s jury source list is not timely created and available for use at least annually, the most recent previously compiled jury source list for that county shall be used by the courts of that county on an emergency basis only for the shortest period of time until a current jury source list is created and available for use. Upon receipt of amendments to the list of registered voters and licensed drivers and identicard holders residing in the county the superior court may update the jury source list and master jury list as maintained by the county clerk accordingly. [2005 c 199 § 2; 1993 c 408 § 5; 1988 c 188 § 4.] Findings—Intent—2005 c 199: "The legislature finds that superior courts with more than one superior court facility are asking some jurors to travel excessively long distances to attend court proceedings. In these cases, the legislature further finds that consideration of a juror’s proximity to a particular courthouse can be accommodated while continuing to provide proportionate jury source list representation from distinctive groups within the community. The legislature intends to lessen the burdens borne by jurors fulfilling their civic duties by providing a mechanism that narrows the geographic area from which the jurors are drawn while maintaining a random and proportionate jury pool." [2005 c 199 § 1.] Severability—Effective dates—1993 c 408: See notes following RCW 2.36.054. [Title 2 RCW—page 35] 2.36.057 Title 2 RCW: Courts of Record Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. 2.36.057 2.36.057 Expanded jury source list—Court rules. The supreme court is requested to adopt court rules to be effective by September 1, 1994, regarding methodology and standards for merging the list of registered voters in Washington state with the list of licensed drivers and identicard holders in Washington state for purposes of creating an expanded jury source list. The rules should specify the standard electronic format or formats in which the lists will be provided to requesting superior courts by the department of information services. In the interim, and until such court rules become effective, the methodology and standards provided in RCW 2.36.054 shall apply. An expanded jury source list shall be available to the courts for use by September 1, 1994. [1993 c 408 § 1.] Severability—Effective dates—1993 c 408: See notes following RCW 2.36.054. 2.36.0571 2.36.0571 Jury source list—Master jury list—Adoption of rules for implementation of methodology and standards by agencies. Not later than January 1, 1994, the secretary of state, the department of licensing, and the department of information services shall adopt administrative rules as necessary to provide for the implementation of the methodology and standards established pursuant to RCW 2.36.057 and 2.36.054 or by supreme court rule. [1993 c 408 § 2.] Severability—Effective dates—1993 c 408: See notes following RCW 2.36.054. 2.36.063 2.36.063 Compilation of jury source list, master jury list, and selection of jurors by electronic data processing. The judge or judges of the superior court of any county may employ a properly programmed electronic data processing system or device to compile the jury source list, and to compile the master jury list and to randomly select jurors from the master jury list. [1993 c 408 § 6; 1988 c 188 § 5; 1973 2nd ex.s. c 13 § 1.] Severability—Effective dates—1993 c 408: See notes following RCW 2.36.054. Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. 2.36.065 2.36.065 Judges to ensure random selection— Description of process. It shall be the duty of the judges of the superior court to ensure continued random selection of the master jury list and jury panels, which shall be done without regard to whether a person’s name originally appeared on the list of registered voters, or on the list of licensed drivers and identicard holders, or both. The judges shall review the process from time to time and shall cause to be kept on file with the county clerk a description of the jury selection process. Any person who desires may inspect this description in said office. Nothing in this chapter shall be construed as requiring uniform equipment or method throughout the state, so long as fair and random selection of the master jury list and jury panels is achieved. [1993 c 408 § 7; 1988 c 188 § 6.] Severability—Effective dates—1993 c 408: See notes following RCW 2.36.054. [Title 2 RCW—page 36] Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. 2.36.070 2.36.070 Qualification of juror. A person shall be competent to serve as a juror in the state of Washington unless that person: (1) Is less than eighteen years of age; (2) Is not a citizen of the United States; (3) Is not a resident of the county in which he or she has been summoned to serve; (4) Is not able to communicate in the English language; or (5) Has been convicted of a felony and has not had his or her civil rights restored. [1988 c 188 § 7; 1975 1st ex.s. c 203 § 1; 1971 ex.s. c 292 § 3; 1911 c 57 § 1; RRS § 94. Prior: 1909 c 73 § 1.] Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. Severability—1971 ex.s. c 292: See note following RCW 26.28.010. 2.36.072 2.36.072 Determination of juror qualification— Written declaration. Each court shall establish a means to preliminarily determine by a written declaration signed under penalty of perjury by the person summoned, the qualifications set forth in RCW 2.36.070 of each person summoned for jury duty prior to their appearance at the court to which they are summoned to serve. Upon receipt by the summoning court of a written declaration stating that a declarant does not meet the qualifications set forth in RCW 2.36.070, that declarant shall be excused from appearing in response to the summons. If a person summoned to appear for jury duty fails to sign and return a declaration of his or her qualifications to serve as a juror prior to appearing in response to a summons and is later determined to be unqualified for one of the reasons set forth in RCW 2.36.070, that person shall not be entitled to any compensation as provided in RCW 2.36.150. Information provided to the court for preliminary determination of statutory qualification for jury duty may only be used for the term such person is summoned and may not be used for any other purpose, except that the court, or designee, may report a change of address or nondelivery of summons of persons summoned for jury duty to the county auditor. [1993 c 408 § 9.] Severability—Effective dates—1993 c 408: See notes following RCW 2.36.054. 2.36.080 2.36.080 Selection of jurors—State policy—Exclusion for race, color, religion, sex, national origin, or economic status prohibited. (1) It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity in accordance with chapter 135, Laws of 1979 ex. sess. to be considered for jury service in this state and have an obligation to serve as jurors when summoned for that purpose. (2) It is the policy of this state to maximize the availability of residents of the state for jury service. It also is the policy of this state to minimize the burden on the prospective jurors, their families, and employers resulting from jury service. The jury term and jury service should be set at as brief an interval as is practical given the size of the jury source list (2006 Ed.) Juries for the judicial district. The optimal jury term is two weeks or less. Optimal juror service is one day or one trial, whichever is longer. (3) A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin, or economic status. (4) This section does not affect the right to peremptory challenges under RCW 4.44.130. [1992 c 93 § 2; 1979 ex.s. c 135 § 2; 1967 c 39 § 1; 1911 c 57 § 2; RRS § 95. Prior: 1909 c 73 § 2.] Severability—1979 ex.s. c 135: "If any provision of this amendatory act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1979 ex.s. c 135 § 12.] 2.36.093 2.36.093 Selection of jurors—Length and number of terms—Time of service. (1) At such time as the judge or judges of any court of any county shall deem that the public business requires a jury term to be held, the judge or judges shall direct that a jury panel be selected and summoned to serve for the ensuing jury term or terms. (2) The court shall establish the length and number of jury terms in a consecutive twelve-month period, and shall establish the time of juror service consistent with the provisions of RCW 2.36.010. [1992 c 93 § 3; 1988 c 188 § 8; 1973 2nd ex.s. c 13 § 2.] 2.36.150 (2) At the discretion of the court’s designee, after a request by a prospective juror to be excused, a prospective juror excused from juror service for a particular time may be assigned to another jury term within the twelve-month period. If the assignment to another jury term is made at the time a juror is excused from the jury term for which he or she was summoned, a second summons under RCW 2.36.095 need not be issued. (3) When the jury source list has been fully summoned within a consecutive twelve-month period and additional jurors are needed, jurors who have already served during the consecutive twelve-month period may be summoned again for service. A juror who has previously served may only be excused if he or she served at least two weeks of juror service within the preceding twelve months. An excuse for prior service shall be granted only upon the written request of the prospective juror, which request shall certify the terms of prior service. Prior jury service may include service in superior court, in a court of limited jurisdiction, in the United States District Court, or on a jury of inquest. [1992 c 93 § 5; 1988 c 188 § 10; 1983 c 181 § 1; 1979 ex.s. c 135 § 3; 1911 c 57 § 7; RRS § 100. Prior: 1909 c 73 § 7.] Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. Severability—1979 ex.s. c 135: See note following RCW 2.36.080. 2.36.110 Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. 2.36.095 2.36.095 Summons to persons selected. (1) Persons selected to serve on a petit jury, grand jury, or jury of inquest shall be summoned by mail or personal service. The county clerk shall issue summons and thereby notify persons selected for jury duty. The clerk may issue summons for any jury term, in any consecutive twelve-month period, at any time thirty days or more before the beginning of the jury term for which the summons are issued. However, when applicable, the provisions of RCW 2.36.130 apply. (2) In courts of limited jurisdiction summons shall be issued by the court. Upon the agreement of the courts, the county clerk may summon jurors for any and all courts in the county or judicial district. (3) The county clerk shall notify the county auditor of each summons for jury duty that is returned by the postal service as undeliverable. [1993 c 408 § 8; 1992 c 93 § 4; 1990 c 140 § 1; 1988 c 188 § 9.] Severability—Effective dates—1993 c 408: See notes following RCW 2.36.054. 2.36.110 Judge must excuse unfit person. It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service. [1988 c 188 § 11; 1925 ex.s. c 191 § 3; RRS § 97-1.] Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. 2.36.130 2.36.130 Additional names. If for any reason the jurors drawn for service upon a jury for any term shall not be sufficient to dispose of the pending jury business, or where no jury is in regular attendance and the business of the court may require the attendance of a jury before a regular term, the judge or judges of any court may direct the random selection and summoning from the master jury list such additional names as they may consider necessary. [1988 c 188 § 12; 1911 c 57 § 6; RRS § 99.] Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. 2.36.150 Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. 2.36.100 2.36.100 Excuse from service—Reasons—Assignment to another term—Summons for additional service—Certification of prior service. (1) Except for a person who is not qualified for jury service under RCW 2.36.070, no person may be excused from jury service by the court except upon a showing of undue hardship, extreme inconvenience, public necessity, or any reason deemed sufficient by the court for a period of time the court deems necessary. (2006 Ed.) 2.36.150 Juror expense payments—Reimbursement by state—Pilot projects. Jurors shall receive for each day’s attendance, besides mileage at the rate determined under RCW 43.03.060, the following expense payments: (1) Grand jurors may receive up to twenty-five dollars but in no case less than ten dollars; (2) Petit jurors may receive up to twenty-five dollars but in no case less than ten dollars; (3) Coroner’s jurors may receive up to twenty-five dollars but in no case less than ten dollars; (4) District court jurors may receive up to twenty-five dollars but in no case less than ten dollars: [Title 2 RCW—page 37] 2.36.165 Title 2 RCW: Courts of Record PROVIDED, That a person excused from jury service at his or her own request shall be allowed not more than a per diem and such mileage, if any, as to the court shall seem just and equitable under all circumstances: PROVIDED FURTHER, That the state shall fully reimburse the county in which trial is held for all jury fees and witness fees related to criminal cases which result from incidents occurring within an adult or juvenile correctional institution: PROVIDED FURTHER, That the expense payments paid to jurors shall be determined by the county legislative authority and shall be uniformly applied within the county. For the fiscal year ending June 30, 2007, jurors participating in pilot projects in superior, district, and municipal courts may receive juror fees of up to sixty-two dollars for each day of attendance in addition to mileage reimbursement at the rate determined under RCW 43.03.060. [2006 c 372 § 903; 2004 c 127 § 1; 1987 c 202 § 105; 1979 ex.s. c 135 § 7; 1975 1st ex.s. c 76 § 1; 1959 c 73 § 1; 1951 c 51 § 2; 1943 c 188 § 1; 1933 c 52 § 1; 1927 c 171 § 1; 1907 c 56 § 1, part; Rem. Supp. 1943 § 4229. Prior: 1903 c 151 § 1, part; 1893 p 421 § 1, part; Code 1881 § 2086, part.] Severability—Effective date—2006 c 372: See notes following RCW 73.04.135. Intent—1987 c 202: See note following RCW 2.04.190. Severability—1979 ex.s. c 135: See note following RCW 2.36.080. Chapter 2.40 Chapter 2.40 RCW WITNESSES Sections 2.40.010 2.40.020 2.40.030 2.40.040 Witness fees and mileage. Witness fee and mileage in civil cases demandable in advance. Travel expense in lieu of mileage in certain cases. Attorney of record not entitled to witness fee in case. Discovery and depositions: Title 5 RCW; see also Rules of Court: CR 26 through 37. District courts, witnesses: Chapter 12.16 RCW. Utilities and transportation commission proceedings, witness fees: RCW 80.04.040, 81.04.040. Witness fees and mileage in criminal cases: RCW 10.01.130, 10.01.140, 10.52.040. Witnesses: Chapters 5.56 and 5.60 RCW. 2.40.010 Witness fees and mileage. Witnesses shall receive for each day’s attendance in all courts of record of this state the same compensation per day and per mile as jurors in superior court. Witnesses in any other court shall receive for each day’s attendance the same compensation per day and per mile as jurors in district court. [1987 c 202 § 106; 1977 ex.s. c 54 § 1; 1951 c 51 § 3; 1907 c 56 § 1, part; RRS § 497, part. Prior: 1903 c 151 § 1, part; 1893 p 421 § 1, part; Code 1881 § 2086, part.] 2.40.010 Intent—1987 c 202: See note following RCW 2.04.190. Travel expense in lieu of mileage in certain cases: RCW 2.40.030. 2.40.020 Witness fee and mileage in civil cases demandable in advance. Witnesses in civil cases shall be entitled to receive, upon demand, their fees for one day’s attendance, together with mileage going to the place where they are required to attend, if such demand is made to the officer or person serving the subpoena at the time of service. [Code 1881 § 2100; 1869 p 374 § 22; RRS § 507.] 2.40.020 2.36.165 2.36.165 Leave of absence from employment to be provided—Denial of promotional opportunities prohibited—Penalty—Civil action. (1) An employer shall provide an employee with a sufficient leave of absence from employment to serve as a juror when that employee is summoned pursuant to chapter 2.36 RCW. (2) An employer shall not deprive an employee of employment or threaten, coerce, or harass an employee, or deny an employee promotional opportunities because the employee receives a summons, responds to the summons, serves as a juror, or attends court for prospective jury service. (3) An employer who intentionally violates subsection (1) or (2) of this section shall be guilty of a misdemeanor. (4) If an employer commits an act in violation of subsection (2) of this section the employee may bring a civil action for damages as a result of the violation and for an order requiring the reinstatement of the employee. If the employee prevails, the employee shall be allowed a reasonable attorney’s fee as determined by the court. (5) For purposes of this section employer means any person, association, partnership, or private or public corporation who employs or exercises control over wages, hours, or working conditions of one or more employees. [1988 c 188 § 13.] Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. 2.36.170 2.40.030 Travel expense in lieu of mileage in certain cases. Whenever a juror, witness or officer is required to attend a court, or travel on official business out of the limits of his own county, and entitled to mileage, in lieu thereof he may at his option receive his actual and necessary traveling expenses by the usually traveled route in going to and returning from the place where the court is held, or where the business is discharged. At the close of each term of the district court, the clerk shall ascertain the amount due each juror for his mileage and per diem; and he shall also certify the amount of fees that may be due to the sheriff of any other county than that in which the court is held, who may have attended the term, having a prisoner in custody charged with or convicted of a crime, or for the purpose of conveying such prisoner to or from the county, which, when approved by the court or judge, shall be a charge upon the county to which the prisoner belongs; and he shall also certify the amount which may be due witnesses attending from another county in a criminal case for their fees, which, when approved by the court or judge, shall be a charge upon the county to which the case belongs. [Code 1881 § 2109; 1869 p 419 § 7; 1863 p 424 §§ 6, 8; RRS §§ 509, 4230.] 2.40.030 2.36.170 Failure of juror to appear—Penalty. A person summoned for jury service who intentionally fails to appear as directed shall be guilty of a misdemeanor. [1988 c 188 § 14.] County officers—Expenses: RCW 42.24.090. Juror expense payments: RCW 2.36.150. Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. Salaried officers not to receive witness fees: RCW 42.16.020. State officers—Subsistence and mileage: RCW 43.03.050, 43.03.060. [Title 2 RCW—page 38] (2006 Ed.) Interpreters in Legal Proceedings Witness fees as costs in civil actions: RCW 4.84.090. 2.40.040 2.40.040 Attorney of record not entitled to witness fee in case. No attorney in any case shall be allowed any fees as a witness in such case. [Code 1881 § 2095; 1869 p 374 § 17; RRS § 502.] Chapter 2.42 RCW INTERPRETERS IN LEGAL PROCEEDINGS Chapter 2.42 Sections 2.42.010 2.42.050 2.42.110 2.42.120 2.42.130 2.42.140 2.42.150 2.42.160 2.42.170 2.42.180 Legislative declaration—Intent. Oath. Definitions. Appointment, pay. Source of interpreters, qualifications. Intermediary interpreter, when. Waiver of right to interpreter. Privileged communication. Fee. Visual recording of testimony. Rules of court: ER 604. 2.42.010 2.42.010 Legislative declaration—Intent. It is hereby declared to be the policy of this state to secure the constitutional rights of deaf persons and of other persons who, because of impairment of hearing or speech, are unable to readily understand or communicate the spoken English language, and who consequently cannot be fully protected in legal proceedings unless qualified interpreters are available to assist them. It is the intent of the legislature in the passage of this chapter to provide for the appointment of such interpreters. [1989 c 358 § 12; 1983 c 222 § 1; 1973 c 22 § 1.] Severability—1989 c 358: See note following RCW 2.43.010. 2.42.050 2.42.050 Oath. Every qualified interpreter appointed under this chapter in a judicial or administrative proceeding shall, before beginning to interpret, take an oath that a true interpretation will be made to the person being examined of all the proceedings in a manner which the person understands, and that the interpreter will repeat the statements of the person being examined to the court or other agency conducting the proceedings, to the best of the interpreter’s skill and judgment. [1989 c 358 § 14; 1985 c 389 § 20; 1973 c 22 § 5.] Rules of court: ER 604. Severability—1989 c 358: See note following RCW 2.43.010. 2.42.110 2.42.110 Definitions. As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise. (1) "Impaired person" means a person who, because of a hearing or speech impairment, cannot readily understand or communicate in spoken language; and includes persons who are deaf, deaf and blind, speech impaired, or hard of hearing. (2) "Qualified interpreter" means a visual language interpreter who is certified by the state or is certified by the registry of interpreters for the deaf to hold the comprehensive skills certificate or both certificates of interpretation and transliteration, or an interpreter who can readily translate statements of speech impaired persons into spoken language. (2006 Ed.) 2.42.120 (3) "Intermediary interpreter" means a hearing impaired interpreter who holds a reverse skills certificate by the state or is certified by the registry of interpreters for the deaf with a reverse skills certificate, who meets the requirements of RCW 2.42.130, and who is able to assist in providing an accurate interpretation between spoken and sign language or between variants of sign language by acting as an intermediary between a hearing impaired person and a qualified hearing interpreter. (4) "Appointing authority" means the presiding officer or similar official of any court, department, board, commission, agency, licensing authority, or legislative body of the state or of any political subdivision. [1991 c 171 § 1; 1985 c 389 § 11.] 2.42.120 Appointment, pay. (1) If a hearing impaired person is a party or witness at any stage of a judicial or quasijudicial proceeding in the state or in a political subdivision, including but not limited to civil and criminal court proceedings, grand jury proceedings, proceedings before a magistrate, juvenile proceedings, adoption proceedings, mental health commitment proceedings, and any proceeding in which a hearing impaired person may be subject to confinement or criminal sanction, the appointing authority shall appoint and pay for a qualified interpreter to interpret the proceedings. (2) If the parent, guardian, or custodian of a juvenile brought before a court is hearing impaired, the appointing authority shall appoint and pay for a qualified interpreter to interpret the proceedings. (3) If a hearing impaired person participates in a program or activity ordered by a court as part of the sentence or order of disposition, required as part of a diversion agreement or deferred prosecution program, or required as a condition of probation or parole, the appointing authority shall appoint and pay for a qualified interpreter to interpret exchange of information during the program or activity. (4) If a law enforcement agency conducts a criminal investigation involving the interviewing of a hearing impaired person, whether as a victim, witness, or suspect, the appointing authority shall appoint and pay for a qualified interpreter throughout the investigation. Whenever a law enforcement agency conducts a criminal investigation involving the interviewing of a minor child whose parent, guardian, or custodian is hearing impaired, whether as a victim, witness, or suspect, the appointing authority shall appoint and pay for a qualified interpreter throughout the investigation. No employee of the law enforcement agency who has responsibilities other than interpreting may be appointed as the qualified interpreter. (5) If a hearing impaired person is arrested for an alleged violation of a criminal law the arresting officer or the officer’s supervisor shall, at the earliest possible time, procure and arrange payment for a qualified interpreter for any notification of rights, warning, interrogation, or taking of a statement. No employee of the law enforcement agency who has responsibilities other than interpreting may be appointed as the qualified interpreter. (6) Where it is the policy and practice of a court of this state or of a political subdivision to appoint and pay counsel for persons who are indigent, the appointing authority shall 2.42.120 [Title 2 RCW—page 39] 2.42.130 Title 2 RCW: Courts of Record appoint and pay for a qualified interpreter for hearing impaired persons to facilitate communication with counsel in all phases of the preparation and presentation of the case. [1985 c 389 § 12.] 2.42.130 2.42.130 Source of interpreters, qualifications. (1) If a qualified interpreter for a hearing impaired person is required, the appointing authority shall request a qualified interpreter and/or an intermediary interpreter through the department of social and health services, office of deaf services, or through any community center for hearing impaired persons which operates an interpreter referral service. The office of deaf services and these community centers shall maintain an up-to-date list or lists of interpreters that are certified by the state and/or by the registry of interpreters for the deaf. (2) The appointing authority shall make a preliminary determination, on the basis of testimony or stated needs of the hearing impaired person, that the interpreter is able in that particular proceeding, program, or activity to interpret accurately all communication to and from the hearing impaired person. If at any time during the proceeding, program, or activity, in the opinion of the hearing impaired person or a qualified observer, the interpreter does not provide accurate, impartial, and effective communication with the hearing impaired person the appointing authority shall appoint another qualified interpreter. No otherwise qualified interpreter who is a relative of any participant in the proceeding may be appointed. [1991 c 171 § 2; 1985 c 389 § 13.] 2.42.140 2.42.140 Intermediary interpreter, when. If the communication mode or language of the hearing impaired person is not readily interpretable, the interpreter or hearing impaired person shall notify the appointing authority who shall appoint and pay an intermediary interpreter to assist the qualified interpreter. [1985 c 389 § 14.] 2.42.150 2.42.150 Waiver of right to interpreter. (1) The right to a qualified interpreter may not be waived except when: (a) A hearing impaired person requests a waiver through the use of a qualified interpreter; (b) The counsel, if any, of the hearing impaired person consents; and (c) The appointing authority determines that the waiver has been made knowingly, voluntarily, and intelligently. (2) Waiver of a qualified interpreter shall not preclude the hearing impaired person from claiming his or her right to a qualified interpreter at a later time during the proceeding, program, or activity. [1985 c 389 § 15.] 2.42.160 2.42.160 Privileged communication. (1) A qualified and/or intermediary interpreter shall not, without the written consent of the parties to the communication, be examined as to any communication the interpreter interprets under circumstances where the communication is privileged by law. (2) A qualified and/or intermediary interpreter shall not, without the written consent of the parties to the communication, be examined as to any information the interpreter obtains while interpreting pertaining to any proceeding then pending. [1991 c 171 § 3; 1985 c 389 § 16.] [Title 2 RCW—page 40] 2.42.170 Fee. A qualified and/or intermediary interpreter appointed under this chapter is entitled to a reasonable fee for services, including waiting time and reimbursement for actual necessary travel expenses. The fee for services for interpreters for hearing impaired persons shall be in accordance with standards established by the department of social and health services, office of deaf services. [1991 c 171 § 4; 1985 c 389 § 17.] 2.42.170 2.42.180 Visual recording of testimony. At the request of any party to the proceeding or on the appointing authority’s initiative, the appointing authority may order that the testimony of the hearing impaired person and the interpretation of the proceeding by the qualified interpreter be visually recorded for use in verification of the official transcript of the proceeding. In any judicial proceeding involving a capital offense, the appointing authority shall order that the testimony of the hearing impaired person and the interpretation of the proceeding by the qualified interpreter be visually recorded for use in verification of the official transcript of the proceeding. [1985 c 389 § 18.] 2.42.180 Chapter 2.43 Chapter 2.43 RCW INTERPRETERS FOR NON-ENGLISH-SPEAKING PERSONS Sections 2.43.010 2.43.020 2.43.030 2.43.040 2.43.050 2.43.060 2.43.070 2.43.080 Legislative intent. Definitions. Appointment of interpreter. Fees and expenses—Cost of providing interpreter. Oath. Waiver of right to interpreter. Testing, certification of interpreters. Code of ethics. 2.43.010 2.43.010 Legislative intent. It is hereby declared to be the policy of this state to secure the rights, constitutional or otherwise, of persons who, because of a non-English-speaking cultural background, are unable to readily understand or communicate in the English language, and who consequently cannot be fully protected in legal proceedings unless qualified interpreters are available to assist them. It is the intent of the legislature in the passage of this chapter to provide for the use and procedure for the appointment of such interpreters. Nothing in chapter 358, Laws of 1989 abridges the parties’ rights or obligations under other statutes or court rules or other law. [1989 c 358 § 1. Formerly RCW 2.42.200.] Severability—1989 c 358: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 c 358 § 10.] 2.43.020 2.43.020 Definitions. As used in this chapter: (1) "Non-English-speaking person" means any person involved in a legal proceeding who cannot readily speak or understand the English language, but does not include hearing-impaired persons who are covered under chapter 2.42 RCW. (2) "Qualified interpreter" means a person who is able readily to interpret or translate spoken and written English for (2006 Ed.) Interpreters for Non-English-Speaking Persons non-English-speaking persons and to interpret or translate oral or written statements of non-English-speaking persons into spoken English. (3) "Legal proceeding" means a proceeding in any court in this state, grand jury hearing, or hearing before an inquiry judge, or before an administrative board, commission, agency, or licensing body of the state or any political subdivision thereof. (4) "Certified interpreter" means an interpreter who is certified by the administrative office of the courts. (5) "Appointing authority" means the presiding officer or similar official of any court, department, board, commission, agency, licensing authority, or legislative body of the state or of any political subdivision thereof. [2005 c 282 § 2; 1989 c 358 § 2. Formerly RCW 2.42.210.] Severability—1989 c 358: See note following RCW 2.43.010. 2.43.030 2.43.030 Appointment of interpreter. (1) Whenever an interpreter is appointed to assist a non-English-speaking person in a legal proceeding, the appointing authority shall, in the absence of a written waiver by the person, appoint a certified or a qualified interpreter to assist the person throughout the proceedings. (a) Except as otherwise provided for in (b) of this subsection, the interpreter appointed shall be a qualified interpreter. (b) Beginning on July 1, 1990, when a non-Englishspeaking person is a party to a legal proceeding, or is subpoenaed or summoned by an appointing authority or is otherwise compelled by an appointing authority to appear at a legal proceeding, the appointing authority shall use the services of only those language interpreters who have been certified by the administrative office of the courts, unless good cause is found and noted on the record by the appointing authority. For purposes of chapter 358, Laws of 1989, "good cause" includes but is not limited to a determination that: (i) Given the totality of the circumstances, including the nature of the proceeding and the potential penalty or consequences involved, the services of a certified interpreter are not reasonably available to the appointing authority; or (ii) The current list of certified interpreters maintained by the administrative office of the courts does not include an interpreter certified in the language spoken by the nonEnglish-speaking person. (c) Except as otherwise provided in this section, when a non-English-speaking person is involved in a legal proceeding, the appointing authority shall appoint a qualified interpreter. (2) If good cause is found for using an interpreter who is not certified or if a qualified interpreter is appointed, the appointing authority shall make a preliminary determination, on the basis of testimony or stated needs of the non-Englishspeaking person, that the proposed interpreter is able to interpret accurately all communications to and from such person in that particular proceeding. The appointing authority shall satisfy itself on the record that the proposed interpreter: (a) Is capable of communicating effectively with the court or agency and the person for whom the interpreter would interpret; and (2006 Ed.) 2.43.070 (b) Has read, understands, and will abide by the code of ethics for language interpreters established by court rules. [2005 c 282 § 3; 1990 c 183 § 1; 1989 c 358 § 3. Formerly RCW 2.42.220.] Severability—1989 c 358: See note following RCW 2.43.010. 2.43.040 2.43.040 Fees and expenses—Cost of providing interpreter. (1) Interpreters appointed according to this chapter are entitled to a reasonable fee for their services and shall be reimbursed for actual expenses which are reasonable as provided in this section. (2) In all legal proceedings in which the non-Englishspeaking person is a party, or is subpoenaed or summoned by the appointing authority or is otherwise compelled by the appointing authority to appear, including criminal proceedings, grand jury proceedings, coroner’s inquests, mental health commitment proceedings, and other legal proceedings initiated by agencies of government, the cost of providing the interpreter shall be borne by the governmental body initiating the legal proceedings. (3) In other legal proceedings, the cost of providing the interpreter shall be borne by the non-English-speaking person unless such person is indigent according to adopted standards of the body. In such a case the cost shall be an administrative cost of the governmental body under the authority of which the legal proceeding is conducted. (4) The cost of providing the interpreter is a taxable cost of any proceeding in which costs ordinarily are taxed. [1989 c 358 § 4. Formerly RCW 2.42.230.] Severability—1989 c 358: See note following RCW 2.43.010. 2.43.050 2.43.050 Oath. Before beginning to interpret, every interpreter appointed under this chapter shall take an oath affirming that the interpreter will make a true interpretation to the person being examined of all the proceedings in a language which the person understands, and that the interpreter will repeat the statements of the person being examined to the court or agency conducting the proceedings, in the English language, to the best of the interpreter’s skill and judgment. [1989 c 358 § 5. Formerly RCW 2.42.240.] Severability—1989 c 358: See note following RCW 2.43.010. 2.43.060 2.43.060 Waiver of right to interpreter. (1) The right to a qualified interpreter may not be waived except when: (a) A non-English-speaking person requests a waiver; and (b) The appointing authority determines on the record that the waiver has been made knowingly, voluntarily, and intelligently. (2) Waiver of a qualified interpreter may be set aside and an interpreter appointed, in the discretion of the appointing authority, at any time during the proceedings. [1989 c 358 § 6. Formerly RCW 2.42.250.] Severability—1989 c 358: See note following RCW 2.43.010. 2.43.070 2.43.070 Testing, certification of interpreters. (1) Subject to the availability of funds, the administrative office of the courts shall establish and administer a comprehensive testing and certification program for language interpreters. [Title 2 RCW—page 41] 2.43.080 Title 2 RCW: Courts of Record (2) The administrative office of the courts shall work cooperatively with community colleges and other private or public educational institutions, and with other public or private organizations to establish a certification preparation curriculum and suitable training programs to ensure the availability of certified interpreters. Training programs shall be made readily available in both eastern and western Washington locations. (3) The administrative office of the courts shall establish and adopt standards of proficiency, written and oral, in English and the language to be interpreted. (4) The administrative office of the courts shall conduct periodic examinations to ensure the availability of certified interpreters. Periodic examinations shall be made readily available in both eastern and western Washington locations. (5) The administrative office of the courts shall compile, maintain, and disseminate a current list of interpreters certified by the office. (6) The administrative office of the courts may charge reasonable fees for testing, training, and certification. [2005 c 282 § 4; 1989 c 358 § 7. Formerly RCW 2.42.260.] Severability—1989 c 358: See note following RCW 2.43.010. 2.43.080 2.43.080 Code of ethics. All language interpreters serving in a legal proceeding, whether or not certified or qualified, shall abide by a code of ethics established by supreme court rule. [1989 c 358 § 8. Formerly RCW 2.42.270.] Severability—1989 c 358: See note following RCW 2.43.010. Chapter 2.44 Chapter 2.44 RCW ATTORNEYS AT LAW Sections 2.44.010 2.44.020 2.44.030 2.44.040 2.44.050 2.44.060 Authority of attorney. Appearance without authority—Procedure. Production of authority to act. Change of attorneys. Notice of change and substitution. Death or removal of attorney—Proceedings. Rules of court: See Code of professional responsibility. Attorney as witness: Rules of court: CR 43(g); Code of Professional Responsibility—DR 5-102. Attorney fee in appeals from board of industrial insurance appeals: RCW 51.52.130. Legal aid: Chapter 2.50 RCW. Lien for attorneys’ fees: Chapter 60.40 RCW. Prosecuting attorneys, duties in general: Chapter 36.27 RCW. Salaried attorney of trust company or national bank not allowed fee for probating estate: RCW 11.36.010. 2.44.010 2.44.010 Authority of attorney. An attorney and counselor has authority: (1) To bind his client in any of the proceedings in an action or special proceeding by his agreement duly made, or entered upon the minutes of the court; but the court shall disregard all agreements and stipulations in relation to the conduct of, or any of the proceedings in, an action or special proceeding unless such agreement or stipulation be made in open court, or in presence of the clerk, and entered in the minutes by him, or signed by the party against whom the same is alleged, or his attorney; [Title 2 RCW—page 42] (2) To receive money claimed by his client in an action or special proceeding, during the pendency thereof, or after judgment upon the payment thereof, and not otherwise, to discharge the same or acknowledge satisfaction of the judgment; (3) This section shall not prevent a party [from] employing a new attorney or from issuing an execution upon a judgment, or from taking other proceedings prescribed by statute for its enforcement. [Code 1881 § 3280; 1863 p 404 § 6; RRS § 130.] 2.44.020 2.44.020 Appearance without authority—Procedure. If it be alleged by a party for whom an attorney appears, that he does so without authority, the court may, at any stage of the proceedings, relieve the party for whom the attorney has assumed to appear from the consequences of his act; it may also summarily, upon motion, compel the attorney to repair the injury to either party consequent upon his assumption of authority. [Code 1881 § 3281; 1863 p 405 § 7; RRS § 131.] 2.44.030 2.44.030 Production of authority to act. The court, or a judge, may, on motion of either party, and on showing reasonable grounds therefor, require the attorney for the adverse party, or for any one of several adverse parties, to produce or prove the authority under which he appears, and until he does so, may stay all proceedings by him on behalf of the party for whom he assumes to appear. [Code 1881 § 3282; 1863 p 405 § 8; RRS § 132.] 2.44.040 2.44.040 Change of attorneys. The attorney in an action or special proceeding, may be changed at any time before judgment or final determination as follows: (1) Upon his own consent, filed with the clerk or entered upon the minutes; or (2) Upon the order of the court, or a judge thereof, on the application of the client, or for other sufficient cause; but no such change can be made until the charges of such attorney have been paid by the party asking such change to be made. [Code 1881 § 3283; 1863 p 405 § 9; RRS § 133.] 2.44.050 2.44.050 Notice of change and substitution. When an attorney is changed, as provided in RCW 2.44.040, written notice of the change, and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party; until then, he shall be bound to recognize the former attorney. [Code 1881 § 3284; 1863 p 405 § 10; RRS § 134.] 2.44.060 2.44.060 Death or removal of attorney—Proceedings. When an attorney dies, or is removed, or suspended, or ceases to act as such, a party to an action for whom he was acting as attorney, must, at least twenty days before any further proceedings against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person. [Code 1881 § 3285; 1863 p 405 § 11; RRS § 135.] (2006 Ed.) State Bar Act Chapter 2.48 Chapter 2.48 RCW STATE BAR ACT Sections 2.48.010 2.48.020 2.48.021 2.48.030 2.48.035 2.48.040 2.48.050 2.48.060 2.48.070 2.48.080 2.48.090 2.48.100 2.48.110 2.48.130 2.48.140 2.48.150 2.48.160 2.48.165 2.48.166 2.48.170 2.48.180 2.48.190 2.48.200 2.48.210 2.48.220 2.48.230 Objects and powers. First members. New members. Board of governors. Board of governors—Membership—Effect of creation of new congressional districts or boundaries. State bar governed by board of governors. Powers of governors. Admission and disbarment. Admission of veterans. Admission of veterans—Establishment of requirements if in service. Admission of veterans—Establishment of requirements if discharged. Admission of veterans—Effect of disability discharge. Admission of veterans—Fees of veterans. Membership fee—Active. Membership fee—Inactive. Admission fees. Suspension for nonpayment of fees. Disbarment or license suspension—Nonpayment or default on educational loan or scholarship. Admission to or suspension from practice—Noncompliance with support order—Rules. Only active members may practice law. Definitions—Unlawful practice a crime—Cause for discipline—Unprofessional conduct—Defense—Injunction— Remedies—Costs—Attorneys’ fees—Time limit for action. Qualifications on admission to practice. Restrictions on practice by certain officers. Oath on admission. Grounds of disbarment or suspension. Code of ethics. Rules of court: See Rules of Professional Responsibility, Rules for Lawyer Discipline, also Admission to Practice Rules. School district hearings, hearing officers as members of state bar association: RCW 28A.405.310. Statute law committee, membership on: RCW 1.08.001. 2.48.010 2.48.010 Objects and powers. There is hereby created as an agency of the state, for the purpose and with the powers hereinafter set forth, an association to be known as the Washington State Bar Association, hereinafter designated as the state bar, which association shall have a common seal and may sue and be sued, and which may, for the purpose of carrying into effect and promoting the objects of said association, enter into contracts and acquire, hold, encumber and dispose of such real and personal property as is necessary thereto. [1933 c 94 § 2; RRS § 138-2.] Severability—1933 c 94: "If any section, subsection, sentence, clause or phrase of this act or any rule adopted thereunder, is for any reason held unconstitutional, such decision shall not affect the validity of the remaining portions of this act nor of any other rule adopted hereunder. The legislature hereby declares that it would have passed this act, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional." [1933 c 94 § 17.] Short title—1933 c 94: "This act may be known and cited as the State Bar Act." [1933 c 94 § 1.] 2.48.020 2.48.020 First members. The first members of the Washington State Bar Association shall be all persons now [on June 7, 1933] entitled to practice law in this state. [1933 c 94 § 3; RRS § 138-3. FORMER PART OF SECTION: 1933 c 94 § 4; RRS § 138-4 now codified as RCW 2.48.021.] (2006 Ed.) 2.48.040 2.48.021 New members. After the organization of the state bar, as herein provided, all persons who are admitted to practice in accordance with the provisions of RCW 2.48.010 through 2.48.180, except judges of courts of record, shall become by that fact active members of the state bar. [1933 c 94 § 4; RRS § 138-4. Formerly RCW 2.48.020, part.] 2.48.021 2.48.030 Board of governors. There is hereby constituted a board of governors of the state bar which shall consist of not more than fifteen members, to include: The president of the state bar elected as provided by the bylaws of the association, one member from each congressional district now or hereafter existing in the state elected by secret ballot by mail by the active members residing therein, and such additional members elected as provided by the bylaws of the association. The members of the board of governors shall hold office for three years and until their successors are elected and qualified. Any vacancies in the board of governors shall be filled by the continuing members of the board until the next election, held in accordance with the bylaws of the association. The board shall not be deemed to be unlawfully constituted and a member of the board shall not be deemed ineligible to serve the remainder of the member’s unexpired term on the board solely by reason of the establishment of new or revised boundaries for congressional districts. [1982 1st ex.s. c 30 § 1; 1972 ex.s. c 66 § 1; 1933 c 94 § 5; RRS § 138-5.] 2.48.030 2.48.035 Board of governors—Membership—Effect of creation of new congressional districts or boundaries. The terms of office of members of the board of governors of the state bar who are elected from the various congressional districts shall not be affected by the creation of either new boundaries for congressional districts or additional districts. In such an event, each board member so elected may continue to serve in office for the balance of the term for which he or she was elected or appointed: PROVIDED, That the board member continues to reside within the boundaries of the congressional district as they existed at the time of his or her election or appointment. Vacancies which occur in a board member position during the balance of any such term shall be filled pursuant to RCW 2.48.030, as now or hereafter amended, by a successor who resides within the boundaries of the congressional district from which the member whose office was vacated was elected as they existed at the time of his or her election. At the election immediately preceding expiration of the term of office of each board member provided for in this section following the creation of either new boundaries for congressional districts or additional districts, and thereafter, a successor shall be elected from the congressional district which corresponds in number with the congressional district from which the incumbent was appointed or elected. [1982 1st ex.s. c 30 § 2.] 2.48.035 2.48.040 State bar governed by board of governors. The state bar shall be governed by the board of governors which shall be charged with the executive functions of the state bar and the enforcement of the provisions of RCW 2.48.010 through 2.48.180 and all rules adopted in pursuance thereof. The members of the board of governors shall receive no salary by virtue of their office. [1933 c 94 § 6; RRS § 1386.] 2.48.040 [Title 2 RCW—page 43] 2.48.050 Title 2 RCW: Courts of Record 2.48.050 2.48.050 Powers of governors. The said board of governors shall have power, in its discretion, from time to time to adopt rules (1) concerning membership and the classification thereof into active, inactive and honorary members; and (2) concerning the enrollment and privileges of membership; and (3) defining the other officers of the state bar, the time, place and method of their selection, and their respective powers, duties, terms of office and compensation; and (4) concerning annual and special meetings; and (5) concerning the collection, the deposit and the disbursement of the membership and admission fees, penalties, and all other funds; and (6) providing for the organization and government of district and/or other local subdivisions of the state bar; and (7) providing for all other matters, whether similar to the foregoing or not, affecting in any way whatsoever, the organization and functioning of the state bar. Any such rule may be modified, or rescinded, or a new rule adopted, by a vote of the active members under rules to be prescribed by the board of governors. [1933 c 94 § 7; RRS § 138-7.] 2.48.060 2.48.060 Admission and disbarment. The said board of governors shall likewise have power, in its discretion, from time to time to adopt rules, subject to the approval of the supreme court, fixing the qualifications, requirements and procedure for admission to the practice of law; and, with such approval, to establish from time to time and enforce rules of professional conduct for all members of the state bar; and, with such approval, to appoint boards or committees to examine applicants for admission; and, to investigate, prosecute and hear all causes involving discipline, disbarment, suspension or reinstatement, and make recommendations thereon to the supreme court; and, with such approval, to prescribe rules establishing the procedure for the investigation and hearing of such matters, and establishing county or district agencies to assist therein to the extent provided by such rules: PROVIDED, HOWEVER, That no person who shall have participated in the investigation or prosecution of any such cause shall sit as a member of any board or committee hearing the same. [1933 c 94 § 8; RRS § 138-8.] Rules of court: See Rules for Lawyer Discipline, also Admission to Practice Rules. 2.48.070 2.48.070 Admission of veterans. Any person who shall have graduated from any accredited law school and after such graduation shall have served in the armed forces of the United States of America between December 7, 1941, and the termination of the present World War, may be admitted to the practice of law in the state of Washington and to membership in the Washington State Bar Association, upon motion made before the supreme court of the state of Washington, provided the following is made to appear: (1) That the applicant is a person of good moral character over the age of twenty-one years; (2) That the applicant, at the time of entering the armed forces of the United States, was a legal resident of the state of Washington; [Title 2 RCW—page 44] (3) That the applicant’s service in the armed forces of the United States is or was satisfactory and honorable. [1945 c 181 § 1; Rem. Supp. 1945 § 138-7A.] Qualifications for admission to practice as prescribed by Rules of court: Admission to Practice Rules. 2.48.080 2.48.080 Admission of veterans—Establishment of requirements if in service. If an applicant under RCW 2.48.070 through 2.48.110 is, at the time he applies for admission to practice law in the state of Washington, still in the armed forces of the United States, he may establish the requirements of the proviso in RCW 2.48.070 by a letter or certificate from his commanding officer and by the certificates of at least two active members of the Washington State Bar Association. [1945 c 181 § 2; Rem. Supp. 1945 § 1387B.] 2.48.090 2.48.090 Admission of veterans—Establishment of requirements if discharged. If an applicant under RCW 2.48.070 through 2.48.110 is, at the time he applies for admission to practice law in the state of Washington, no longer in the armed forces of the United States, he may establish the requirements of the proviso in RCW 2.48.070 as follows: (1) If he shall have been an enlisted person, by producing an honorable discharge, and by the certificates of at least two active members of the Washington State Bar Association. (2) If he shall have been an officer, by an affidavit showing that he has been relieved from active duty under circumstances other than dishonorable, and by the certificates of at least two active members of the Washington State Bar Association. [1945 c 181 § 3; Rem. Supp. 1945 § 138-7C.] 2.48.100 2.48.100 Admission of veterans—Effect of disability discharge. A physical disability discharge shall be considered an honorable discharge unless it be coupled with a dishonorable discharge. [1945 c 181 § 4; Rem. Supp. 1945 § 138-7D.] 2.48.110 2.48.110 Admission of veterans—Fees of veterans. An applicant applying for admission to practice law under the provisions of RCW 2.48.070 through 2.48.090, shall pay the same fees as are required of residents of the state of Washington seeking admission to practice law by examination. [1945 c 181 § 5; Rem. Supp. 1945 § 138-7E.] 2.48.130 2.48.130 Membership fee—Active. The annual membership fees for active members shall be payable on or before February 1st of each year. The board of governors may establish the amount of such annual membership fee to be effective each year: PROVIDED, That written notice of any proposed increase in membership fee shall be sent to active members not less than sixty days prior to the effective date of such increase: PROVIDED FURTHER, That the board of governors may establish the fee at a reduced rate for those who have been active members for less than five years in this state or elsewhere. [1957 c 138 § 1; 1953 c 256 § 1; 1933 c 94 § 9; RRS § 138-9.] (2006 Ed.) State Bar Act 2.48.140 Membership fee—Inactive. The annual membership fee for inactive members shall be the sum of two dollars, payable on or before the first day of February of each year. [1955 c 34 § 1; 1933 c 94 § 10; RRS § 138-10.] 2.48.140 2.48.150 Admission fees. Applicants for admission to the bar upon accredited certificates or upon examination, not having been admitted to the bar in another state or territory, shall pay a fee of twenty-five dollars and all other applicants a fee of fifty dollars. Said admission fees shall be used to pay the expenses incurred in connection with examining and admitting applicants to the bar, including salaries of examiners, and any balance remaining at the close of each biennium shall be paid to the state treasurer and be by him credited to the general fund. [1933 c 94 § 11; RRS § 138-11.] 2.48.150 2.48.180 vices to certify a responsible parent based on a court order to certify for noncompliance with residential provisions of a parenting plan were vetoed. See RCW 74.20A.320. Intent—1997 c 58: "The legislature intends that the license suspension program established in chapter 74.20A RCW be implemented fairly to ensure that child support obligations are met and that parents comply with residential and visitation orders. However, being mindful of the separations of powers and responsibilities among the branches of government, the legislature strongly encourages the state supreme court to adopt rules providing for suspension and denial of licenses related to the practice of law to those individuals who are in noncompliance with a support order or a residential or visitation order." [1997 c 58 § 809.] Short title—Part headings, captions, table of contents not law— Exemptions and waivers from federal law—Conflict with federal requirements—Severability—1997 c 58: See RCW 74.08A.900 through 74.08A.904. Effective dates—Intent—1997 c 58: See notes following RCW 74.20A.320. Rules of court: Admission—APR 3(d). 2.48.170 2.48.160 Suspension for nonpayment of fees. Any member failing to pay any fees after the same become due, and after two months’ written notice of his delinquency, must be suspended from membership in the state bar, but may be reinstated upon payment of accrued fees and such penalties as may be imposed by the board of governors, not exceeding double the amount of the delinquent fee. [1933 c 94 § 12; RRS § 138-12.] 2.48.160 2.48.165 Disbarment or license suspension—Nonpayment or default on educational loan or scholarship. The Washington state supreme court may provide by court rule that nonpayment or default on a federally or state-guaranteed educational loan shall result in disbarment or license suspension of the license of any person who has been certified by a lending agency and reported to the court for nonpayment or default on a federally or state-guaranteed educational loan or service-conditional scholarship. The supreme court may reinstate the person when provided with a written release issued by the lending agency stating that the person is making payments on the loan in accordance with a repayment agreement approved by the lending agency. [1996 c 293 § 1.] 2.48.170 Only active members may practice law. No person shall practice law in this state subsequent to the first meeting of the state bar unless he shall be an active member thereof as hereinbefore defined: PROVIDED, That a member of the bar in good standing in any other state or jurisdiction shall be entitled to appear in the courts of this state under such rules as the board of governors may prescribe. [1933 c 94 § 13; RRS § 138-13.] Rules of court: Admission—APR 5. 2.48.165 Severability—1996 c 293: See note following RCW 18.04.420. 2.48.166 2.48.166 Admission to or suspension from practice— Noncompliance with support order—Rules. The Washington state supreme court may provide by rule that no person who has been certified by the department of social and health services as a person who is in noncompliance with a support order or a *residential or visitation order as provided in RCW 74.20A.320 may be admitted to the practice of law in this state, and that any member of the Washington state bar association who has been certified by the department of social and health services as a person who is in noncompliance with a support order or a residential or visitation order as provided in RCW 74.20A.320 shall be immediately suspended from membership. The court’s rules may provide for review of an application for admission or reinstatement of membership after the department of social and health services has issued a release stating that the person is in compliance with the order. [1997 c 58 § 810.] Reviser’s note: 1997 c 58 § 887 requiring a court to order certification of noncompliance with residential provisions of a court-ordered parenting plan was vetoed. Provisions ordering the department of social and health ser(2006 Ed.) 2.48.180 2.48.180 Definitions—Unlawful practice a crime— Cause for discipline—Unprofessional conduct— Defense—Injunction—Remedies—Costs—Attorneys’ fees—Time limit for action. (1) As used in this section: (a) "Legal provider" means an active member in good standing of the state bar, and any other person authorized by the Washington state supreme court to engage in full or limited practice of law; (b) "Nonlawyer" means a person to whom the Washington supreme court has granted a limited authorization to practice law but who practices law outside that authorization, and a person who is not an active member in good standing of the state bar, including persons who are disbarred or suspended from membership; (c) "Ownership interest" means the right to control the affairs of a business, or the right to share in the profits of a business, and includes a loan to the business when the interest on the loan is based upon the income of the business or the loan carries more than a commercially reasonable rate of interest. (2) The following constitutes unlawful practice of law: (a) A nonlawyer practices law, or holds himself or herself out as entitled to practice law; (b) A legal provider holds an investment or ownership interest in a business primarily engaged in the practice of law, knowing that a nonlawyer holds an investment or ownership interest in the business; (c) A nonlawyer knowingly holds an investment or ownership interest in a business primarily engaged in the practice of law; (d) A legal provider works for a business that is primarily engaged in the practice of law, knowing that a nonlawyer holds an investment or ownership interest in the business; or (e) A nonlawyer shares legal fees with a legal provider. [Title 2 RCW—page 45] 2.48.190 Title 2 RCW: Courts of Record (3)(a) Unlawful practice of law is a crime. A single violation of this section is a gross misdemeanor. (b) Each subsequent violation of this section, whether alleged in the same or in subsequent prosecutions, is a class C felony punishable according to chapter 9A.20 RCW. (4) Nothing contained in this section affects the power of the courts to grant injunctive or other equitable relief or to punish as for contempt. (5) Whenever a legal provider or a person licensed by the state in a business or profession is convicted, enjoined, or found liable for damages or a civil penalty or other equitable relief under this section, the plaintiff’s attorney shall provide written notification of the judgment to the appropriate regulatory or disciplinary body or agency. (6) A violation of this section is cause for discipline and constitutes unprofessional conduct that could result in any regulatory penalty provided by law, including refusal, revocation, or suspension of a business or professional license, or right or admission to practice. Conduct that constitutes a violation of this section is unprofessional conduct in violation of RCW 18.130.180. (7) In a proceeding under this section it is a defense if proven by the defendant by a preponderance of the evidence that, at the time of the offense, the conduct alleged was authorized by the rules of professional conduct or the admission to practice rules, or Washington business and professions licensing statutes or rules. (8) Independent of authority granted to the attorney general, the prosecuting attorney may petition the superior court for an injunction against a person who has violated this chapter. Remedies in an injunctive action brought by a prosecuting attorney are limited to an order enjoining, restraining, or preventing the doing of any act or practice that constitutes a violation of this chapter and imposing a civil penalty of up to five thousand dollars for each violation. The prevailing party in the action may, in the discretion of the court, recover its reasonable investigative costs and the costs of the action including a reasonable attorney’s fee. The degree of proof required in an action brought under this subsection is a preponderance of the evidence. An action under this subsection must be brought within three years after the violation of this chapter occurred. [2003 c 53 § 2; 2001 c 310 § 2. Prior: 1995 c 285 § 26; 1989 c 117 § 13; 1933 c 94 § 14; RRS § 13814.] Rules of court: RLD 1.1(h). Intent—2003 c 53: "The legislature intends by this act to reorganize criminal provisions throughout the Revised Code of Washington to clarify and simplify the identification and referencing of crimes. It is not intended that this act effectuate any substantive change to any criminal provision in the Revised Code of Washington." [2003 c 53 § 1.] Effective date—2003 c 53: "This act takes effect July 1, 2004." [2003 c 53 § 423.] Purpose—2001 c 310: "The purpose of this act is to respond to State v. Thomas, 103 Wn. App. 800, by reenacting and ranking, without changes, legislation relating to the crime of unlawful practice of law, enacted as sections 26 and 27, chapter 285, Laws of 1995." [2001 c 310 § 1.] Effective date—2001 c 310: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 14, 2001]." [2001 c 310 § 5.] Effective date—1995 c 285: See RCW 48.30A.900. Severability—Effective date—1989 c 117: See RCW 19.154.901 and 19.154.902. [Title 2 RCW—page 46] Practicing law with disbarred attorney: RCW 2.48.220(9). 2.48.190 2.48.190 Qualifications on admission to practice. No person shall be permitted to practice as an attorney or counselor at law or to do work of a legal nature for compensation, or to represent himself or herself as an attorney or counselor at law or qualified to do work of a legal nature, unless he or she is a citizen of the United States and a bona fide resident of this state and has been admitted to practice law in this state: PROVIDED, That any person may appear and conduct his or her own case in any action or proceeding brought by or against him or her, or may appear in his or her own behalf in the small claims department of the district court: AND PROVIDED FURTHER, That an attorney of another state may appear as counselor in a court of this state without admission, upon satisfying the court that his or her state grants the same right to attorneys of this state. [1987 c 202 § 107; 1921 c 126 § 4; RRS § 139-4. Prior: 1919 c 100 § 1; 1917 c 115 § 1.] Rules of court: Admission—APR 5. Reviser’s note: Last proviso, see later enactment, RCW 2.48.170. Intent—1987 c 202: See note following RCW 2.04.190. 2.48.200 2.48.200 Restrictions on practice by certain officers. No person shall practice law who holds a commission as judge in any court of record, or as sheriff or coroner; nor shall the clerk of the supreme court, the court of appeals, or of the superior court or any deputy thereof practice in the court of which he or she is clerk or deputy clerk: PROVIDED, It shall be unlawful for a deputy prosecuting attorney, or for the employee, partner, or agent of a prosecuting attorney, or for an attorney occupying offices with a prosecuting attorney, to appear for an adverse interest in any proceeding in which a prosecuting attorney is appearing, or to appear in any suit, action or proceeding in which a prosecuting attorney is prohibited by law from appearing, but nothing herein shall prohibit a prosecuting attorney or a deputy prosecuting attorney from appearing in any action or proceeding for an interest divergent from that represented in the same action or proceeding by another attorney or special attorney in or for the same office, so long as such appearances are pursuant to the duties of prosecuting attorneys as set out in RCW 36.27.020 and such appearances are consistent with the code of professional responsibility or other code of ethics adopted by the Washington state supreme court, but nothing herein shall preclude a judge or justice of a court of this state from finishing any business undertaken in a court of the United States prior to him or her becoming a judge or justice. [1992 c 225 § 1; 1975 1st ex.s. c 19 § 3; 1971 c 81 § 13; 1921 c 126 § 5; RRS § 139-5.] Rules of court: Judicial ethics—CJC. Administrator for the courts, assistant not to practice law: RCW 2.56.020. Attorney general, deputies, assistants—Private practice of law prohibited: RCW 43.10.115, 43.10.120, 43.10.125; but see RCW 43.10.130. Clerk not to practice law: RCW 2.32.090. Coroner not to practice law: RCW 36.24.170. Judges may not practice law: State Constitution Art. 4 § 19 and RCW 2.06.090, 35.20.170; but see RCW 2.28.040. Prosecuting and deputy prosecuting attorneys—Private practice prohibited in certain counties: RCW 36.27.060. Registrar, deputy registrar of titles not to practice law: RCW 65.12.050. (2006 Ed.) Legal Aid Sheriff not to practice law: RCW 36.28.110. 2.50.040 (8) Disbarment by a foreign court of competent jurisdic- tion. 2.48.210 Oath on admission. Every person before being admitted to practice law in this state shall take and subscribe the following oath: I do solemnly swear: I am a citizen of the United States and owe my allegiance thereto; I will support the Constitution of the United States and the Constitution of the state of Washington; I will maintain the respect due to courts of justice and judicial officers; I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land, unless it be in defense of a person charged with a public offense; I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with his business except from him or with his knowledge and approval; I will abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man’s cause for lucre or malice. So help me God. [1921 c 126 § 12; RRS § 139-12. Prior: 1917 c 115 § 14.] Rules of court: RLD 1.1. Rules of court: Admission—APR 5(c) and (d). Sections 2.48.210 2.48.220 Grounds of disbarment or suspension. An attorney or counselor may be disbarred or suspended for any of the following causes arising after his admission to practice: (1) His conviction of a felony or misdemeanor involving moral turpitude, in which case the record of conviction shall be conclusive evidence. (2) Wilful disobedience or violation of an order of the court requiring him to do or forbear an act connected with, or in the course of, his profession, which he ought in good faith to do or forbear. (3) Violation of his oath as an attorney, or of his duties as an attorney and counselor. (4) Corruptly or wilfully, and without authority, appearing as attorney for a party to an action or proceeding. (5) Lending his name to be used as attorney and counselor by another person who is not an attorney and counselor. (6) For the commission of any act involving moral turpitude, dishonesty or corruption, whether the same be committed in the course of his relations as an attorney or counselor at law, or otherwise, and whether the same constitute a felony or misdemeanor or not; and if the act constitute a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disbarment or suspension from practice therefor. (7) Misrepresentation or concealment of a material fact made in his application for admission or in support thereof. 2.48.220 (2006 Ed.) (9) Practicing law with or in cooperation with a disbarred or suspended attorney, or maintaining an office for the practice of law in a room or office occupied or used in whole or in part by a disbarred or suspended attorney, or permitting a disbarred or suspended attorney to use his name for the practice of law, or practicing law for or on behalf of a disbarred or suspended attorney, or practicing law under any arrangement or understanding for division of fees or compensation of any kind with a disbarred or suspended attorney or with any person not a licensed attorney. (10) Gross incompetency in the practice of the profession. (11) Violation of the ethics of the profession. [1921 c 126 § 14; 1909 c 139 § 7; RRS § 139-14.] 2.48.230 2.48.230 Code of ethics. The code of ethics of the American Bar Association shall be the standard of ethics for the members of the bar of this state. [1921 c 126 § 15; RRS § 139-15. Prior: 1917 c 115 § 20.] Rules of court: See Code of Professional Responsibility, also Code of Judicial Conduct. Reviser’s note: RCW 2.48.190, 2.48.200, 2.48.210, 2.48.220, and 2.48.230 are the only sections of the earlier act relating to the admission, regulation, disbarment, etc., of attorneys which are thought not to be embraced within the general repeal contained in the state bar act of 1933. Chapter 2.50 2.50.010 2.50.020 2.50.040 2.50.050 2.50.060 2.50.070 2.50.080 2.50.090 2.50.100 2.50.110 2.50.120 2.50.125 2.50.130 2.50.140 2.50.150 2.50.160 Chapter 2.50 RCW LEGAL AID Legal aid defined. Public interest. Declaration of necessity by board of county commissioners. Legal aid bureau defined. Board of governors—Authority. Legal aid county committee created. Supervision. Registration fees and private funds. Limitation of legal aid. Attorneys’ fees. County funds. Cities authorized to appropriate funds. Revocation of declaration of necessity. Washington State Bar Association not restricted. Certain other acts not applicable. Chapter not exclusive—Counties authorized to provide legal aid. 2.50.010 2.50.010 Legal aid defined. Legal aid is the rendition, without compensation, of professional services by an active member of the Washington State Bar Association to or for any indigent person unable to pay a reasonable attorney’s fee determined in accordance with the established code of legal ethics. [1939 c 93 § 1; RRS § 10007-201. Formerly RCW 74.36.010.] 2.50.020 2.50.020 Public interest. The promotion of organized legal aid is hereby declared to be in the public interest. [1939 c 93 § 2; RRS § 10007-202. Formerly RCW 74.36.020.] 2.50.040 2.50.040 Declaration of necessity by board of county commissioners. The board of county commissioners (here[Title 2 RCW—page 47] 2.50.050 Title 2 RCW: Courts of Record inafter called the county board) is empowered to find by resolution the existence of a necessity in such county for organized legal aid. Such resolution shall specify the amount of county funds thereby to be allocated for and expended in the operation of a legal aid bureau during the period of the fiscal year or the remainder thereof. Within ten days after the passage of such a resolution, the commissioners shall cause a certified copy to be transmitted to the board of governors of the Washington State Bar Association (hereinafter called the bar board). [1939 c 93 § 4; RRS § 10007-204. Formerly RCW 74.36.040.] 2.50.050 2.50.050 Legal aid bureau defined. A legal aid bureau (hereinafter called the bureau), is an agency for the rendition of organized legal aid to indigent persons resident in the county, consisting of one director, who shall be an attorney resident in the county, and who shall be in good standing and active membership in the Washington State Bar Association, together with such professional and other personnel, such office facilities, and other equipment, as may be determined by the bar board and be financed by the county board. [1939 c 93 § 5; RRS § 10007-205. Formerly RCW 74.36.050.] bureau under the guidance of the director—however, by this provision, no law student shall be deemed authorized to represent as an attorney in a court of record any legal aid client; (5) To require of the director periodically written statements of account and written reports upon any and all subjects within the operation of the bureau; (6) To prescribe rules and regulations, always subject to the bar board, for determination of the indigent persons who are entitled to legal aid, for determination of the kinds of legal problems and cases subject to legal aid, and for determination of all operative legal aid policies not inconsistent with this chapter; (7) To advise the county board, for its budget upon its written request, as to the estimated amount of county funds reasonably required to effectively operate the bureau for the ensuing fiscal year; (8) To receive county funds allocated by the county board for the bureau, and to render an account thereof at the times and in the manner reasonably required by the county board; (9) To disburse such county funds, after receipt thereof, solely for the purposes contemplated by this chapter. [1939 c 93 § 8; RRS § 10007-208. Formerly RCW 74.36.080.] 2.50.060 2.50.060 Board of governors—Authority. Upon receipt of a certified copy of such resolution the bar board is empowered and, within sixty days thereafter, is obligated to create and continue a legal aid bureau as soon and as long as the necessary funds so allocated are made available by the county board, all expenditures for the bureau to be limited to county funds so supplied, except only as hereinafter authorized. The bar board is vested with the ultimate power to control by its rules and regulations such bureau, the immediate supervision of which in actual operation shall be by the bar board itself or by a committee of its selection. [1939 c 93 § 6; RRS § 10007-206. Formerly RCW 74.36.060.] 2.50.070 2.50.070 Legal aid county committee created. The legal aid county committee (hereinafter called the committee), if created and continued by resolution of the bar board, shall consist of three members chosen by the bar board as follows: a member of the bar board, who shall be chairman, a judge of the superior court of the county, and an active member of the Washington State Bar Association, resident in the county. [1939 c 93 § 7; RRS § 10007-207. Formerly RCW 74.36.070.] 2.50.080 2.50.080 Supervision. Among the powers to supervise the actual operation of any such bureau, which shall be exercised either by the bar board itself or in its discretion by the committee, are the following: (1) To appoint and remove at will the director and to fix the amount of his salary not in excess of two hundred dollars per month; (2) To engage and discharge all other employees of the bureau and to fix their salaries or remuneration; (3) To assist the director in supplying the free services of attorneys for the bureau; (4) To cooperate with the dean of any law school now or hereafter established within this state respecting the participation of law students in the rendition of services by the [Title 2 RCW—page 48] 2.50.090 2.50.090 Registration fees and private funds. For the purpose of promoting organized legal aid, the bar board is empowered to receive and disburse, at its discretion, a nominal registration fee (not in excess of fifty cents), which it may require of legal aid applicants, and also donations in any sum of private funds. [1939 c 93 § 9; RRS § 10007-209. Formerly RCW 74.36.090.] 2.50.100 2.50.100 Limitation of legal aid. No legal aid shall be rendered by or through any bureau as to any matter which, in the opinion of the director or the committee is not a proper subject of legal aid. No legal aid shall be given concerning matters relating to claims or litigation commonly handled on a contingent fee basis, nor to the defense of criminal charges in court. [1939 c 93 § 10; RRS § 10007-210. Formerly RCW 74.36.100.] 2.50.110 2.50.110 Attorneys’ fees. No attorney’s fee shall be charged to or received from any legal aid client as to any legal aid matter handled by or through the bureau. All attorneys’ fees and court costs collected from any third party by the bureau in the name of any legal aid client shall become a part of the bureau’s operation funds. [1939 c 93 § 11; RRS § 10007-211. Formerly RCW 74.36.110.] 2.50.120 2.50.120 County funds. The county board in its discretion shall allocate funds for the purposes of the bureau from county funds available for public assistance and relief received from the levy of three mills as provided in section 17, chapter 180, Laws of 1937. [1939 c 93 § 12; RRS § 10007-212. Formerly RCW 74.36.120.] Reviser’s note: 1937 c 180 § 17 was repealed by 1939 c 216 § 35. 2.50.125 2.50.125 Cities authorized to appropriate funds. A city of any class or any code city may appropriate funds in (2006 Ed.) Civil Legal Aid any amount for the purposes of this chapter. [1974 ex.s. c 5 § 1.] 2.50.130 2.50.130 Revocation of declaration of necessity. The county board is empowered to find by resolution the nonexistence of a necessity in such county for organized legal aid. Within ten days after the passage of such a resolution the county board shall cause a certified copy to be transmitted to the bar board. Upon receipt of a certified copy of such resolution the bar board is empowered and, within sixty days thereafter, is obligated to discontinue the legal aid bureau—unless it is subsequently maintained in the discretion of the bar board and financed by funds other than county funds. Nothing in this chapter shall prevent a county board from adopting successive resolutions declaring the existence or nonexistence of a necessity for organized legal aid, but no bureau actually created as a result of such a resolution shall be discontinued by a resolution of revocation within sixty days thereafter. [1939 c 93 § 13; RRS § 10007-213. Formerly RCW 74.36.130.] 2.50.140 2.50.140 Washington State Bar Association not restricted. No county funds shall be expended for legal aid except in accordance with this chapter, but nothing in this chapter shall limit the powers of the Washington State Bar Association, or its board of governors, to promote or render legal aid independent of county financial support. [1939 c 93 § 14; RRS § 10007-214. Formerly RCW 74.36.140.] 2.50.150 2.50.150 Certain other acts not applicable. The provisions of section 6 of chapter 180 of the Laws of 1937 shall not be applicable to a bureau or a committee as authorized by this chapter, or to the bar board or the Washington State Bar Association. [1939 c 93 § 15; RRS § 10007-215. Formerly RCW 74.36.150.] Reviser’s note: 1937 c 180 § 6 was repealed by 1939 c 216 § 35. 2.50.160 2.50.160 Chapter not exclusive—Counties authorized to provide legal aid. The provisions of this chapter are not exclusive. Nothing in this chapter shall be construed as placing a limitation on the establishment of alternative methods or systems for providing legal aid. Counties are hereby authorized to expend county funds for the establishment of such methods or systems of providing legal aid as shall be deemed in the public interest by the county legislative body. [1972 ex.s. c 109 § 1.] Chapter 2.53 Chapter 2.53 RCW CIVIL LEGAL AID Sections 2.53.005 2.53.010 2.53.020 2.53.030 2.53.900 2.53.005 Findings. Civil legal aid oversight committee. Office of civil legal aid—Director’s duties. Public safety and education account—Use—Distribution formula—Audit—Rules. Effective date—2005 c 105. 2.53.005 Findings. The legislature finds that the provision of civil legal aid services to indigent persons is an important component of the state’s responsibility to provide for the (2006 Ed.) 2.53.020 proper and effective administration of civil and criminal justice. The legislature further finds that state-funded legal aid services should be administered by an independent office of civil legal aid located within the judicial branch and subject to formal continuing oversight that includes bipartisan legislative representation. [2005 c 105 § 1.] 2.53.010 2.53.010 Civil legal aid oversight committee. (1) There is created a civil legal aid oversight committee consisting of the following members: (a) Three persons appointed by the supreme court from a list of nominees submitted by the access to justice board, one of whom at the time of appointment is income eligible to receive state-funded civil legal aid; (b) Two persons appointed by the board for judicial administration; (c) Two senators, one from each of the two largest caucuses, appointed by the president of the senate; and two members of the house of representatives, one from each of the two largest caucuses, appointed by the speaker of the house of representatives; (d) One person appointed by the Washington state bar association; and (e) One person appointed by the governor. (2) During the term of his or her appointment, an appointee may not be employed by a state-funded legal aid provider. (3) Members shall each serve a three-year term, subject to renewal for no more than one additional three-year term. The oversight committee shall develop rules that provide for the staggering of terms so that, after the first three years of the committee’s existence, the terms of one-third of the members expire each year. Members of the oversight committee receive no compensation for their services as members of the oversight committee, but may be reimbursed for travel and other expenses in accordance with rules adopted by the office of financial management. (4) The oversight committee shall: Oversee the activities of the office of civil legal aid created in RCW 2.53.020; review the performance of the director of the office of civil legal aid; and may, from time to time, make recommendations to the supreme court, the access to justice board, and the legislature regarding the provision of civil legal aid funded through RCW 2.53.030. [2005 c 105 § 4.] 2.53.020 2.53.020 Office of civil legal aid—Director’s duties. (1) There is created an office of civil legal aid as an independent agency of the judicial branch. (2) Activities of the office of civil legal aid shall be carried out by a director of civil legal aid services. The director of civil legal aid services shall be appointed by the supreme court from a list of three names forwarded by the access to justice board. Qualifications for the director include admission to practice law in this state for at least five years; experience in representation of low-income people in civil matters, which experience may be in the form of volunteer representation; knowledge of and demonstrated commitment to promoting access to the civil justice system for indigent persons; and proven managerial or supervisory experience. The director shall serve at the pleasure of the supreme court and receive a salary to be fixed by the oversight committee. [Title 2 RCW—page 49] 2.53.030 Title 2 RCW: Courts of Record (3) The director shall: (a) Contract with one or more qualified legal aid providers to provide civil legal aid services authorized by RCW 2.53.030; (b) Monitor and oversee the use of state funding to ensure compliance with this chapter; (c) Report quarterly to the civil legal aid oversight committee established in RCW 2.53.010 and the supreme court’s access to justice board on the use of state funds for legal aid; and report biennially on the status of access to the civil justice system for low-income people eligible for state-funded legal aid; and (d) Submit a biennial budget request. (4) The office shall not provide direct representation of clients. [2005 c 105 § 5.] 2.53.030 2.53.030 Public safety and education account— Use—Distribution formula—Audit—Rules. (1)(a) The legislature recognizes the ethical obligation of attorneys to represent clients without interference by third parties in the discharge of professional obligations to clients. However, to ensure the most beneficial use of state resources, the legislature finds that it is within the authority of the legislature to specify the categories of legal cases in which qualified legal aid programs may provide civil representation with state moneys. Accordingly, moneys appropriated for civil legal representation shall not be used for legal representation that is either outside the scope of this section or prohibited by this section. (b) Nothing in this section is intended to limit the authority of existing entities, including but not limited to the Washington state bar association, the public disclosure commission, the state auditor, and the federal legal services corporation to resolve issues within their respective jurisdictions. (2) Any money appropriated by the legislature for civil representation of indigent persons shall be administered by the office of civil legal aid established under RCW 2.53.020, and shall be used solely for the purpose of contracting with qualified legal aid programs for legal representation of indigent persons in matters relating to: (a) Domestic relations and family law matters, (b) public assistance and health care, (c) housing and utilities, (d) social security, (e) mortgage foreclosures, (f) home protection bankruptcies, (g) consumer fraud and unfair sales practices, (h) rights of residents of long-term care facilities, (i) wills, estates, and living wills, (j) elder abuse, and (k) guardianship. (3) For purposes of this section, a "qualified legal aid program" means a not-for-profit corporation incorporated and operating exclusively in Washington which has received basic field funding for the provision of civil legal aid to indigents from the federal legal services corporation or that has received funding for civil legal aid for indigents under this section before July 1, 1997. (4) When entering into a contract with a qualified legal aid provider under this section, the office of civil legal aid shall require the provider to provide legal aid in a manner that maximizes geographic access throughout the state. (5) Funds distributed to qualified legal aid programs under this section may not be used directly or indirectly for: (a) Lobbying. [Title 2 RCW—page 50] (i) For purposes of this section, "lobbying" means any personal service, advertisement, telegram, telephone communication, letter, printed or written matter, or other device directly or indirectly intended to influence any member of congress or any other federal, state, or local nonjudicial official, whether elected or appointed: (A) In connection with any act, bill, resolution, or similar legislation by the congress of the United States or by any state or local legislative body, or any administrative rule, rule-making activity, standard, rate, or other enactment by any federal, state, or local administrative agency; (B) In connection with any referendum, initiative, constitutional amendment, or any similar procedure of the congress, any state legislature, any local council, or any similar governing body acting in a legislative capacity; or (C) In connection with inclusion of any provision in a legislative measure appropriating funds to, or defining or limiting the functions or authority of, the recipient of funds under this section. (ii) "Lobbying" does not include the response of an employee of a legal aid program to a written request from a governmental agency, an elected or appointed official, or committee on a specific matter. This exception does not authorize communication with anyone other than the requesting party, or agent or employee of such agency, official, or committee. (b) Grass roots lobbying. For purposes of this section, "grass roots lobbying" means preparation, production, or dissemination of information the purpose of which is to encourage the public at large, or any definable segment thereof, to contact legislators or their staff in support of or in opposition to pending or proposed legislation; or contribute to or participate in a demonstration, march, rally, lobbying campaign, or letter writing or telephone campaign for the purpose of influencing the course of pending or proposed legislation. (c) Class action lawsuits. (d) Participating in or identifying the program with prohibited political activities. For purposes of this section, "prohibited political activities" means (i) any activity directed toward the success or failure of a political party, a candidate for partisan or nonpartisan office, a partisan political group, or a ballot measure; (ii) advertising or contributing or soliciting financial support for or against any candidate, political group, or ballot measure; or (iii) voter registration or transportation activities. (e) Representation in fee-generating cases. For purposes of this section, "fee-generating" means a case that might reasonably be expected to result in a fee for legal aid if undertaken by a private attorney. The charging of a fee pursuant to subsection (6) of this section does not establish the fee-generating nature of a case. A fee-generating case may be accepted when: (i) The case has been rejected by the local lawyer referral services or by two private attorneys; (ii) neither the referral service nor two private attorneys will consider the case without payment of a consultation fee; (iii) after consultation with the appropriate representatives of the private bar, the program has determined that the type of case is one that private attorneys do not ordinarily accept, or do not accept without prepayment of a fee; or (iv) the director of the program or the director’s designee has determined that referral of the case to the private (2006 Ed.) Administrator for the Courts bar is not possible because documented attempts to refer similar cases in the past have been futile, or because emergency circumstances compel immediate action before referral can be made, but the client is advised that, if appropriate and consistent with professional responsibility, referral will be attempted at a later time. (f) Organizing any association, union, or federation, or representing a labor union. However, nothing in this subsection (5)(f) prohibits the provision of legal aid to clients as otherwise permitted by this section. (g) Representation of undocumented aliens. (h) Picketing, demonstrations, strikes, or boycotts. (i) Engaging in inappropriate solicitation. For purposes of this section, "inappropriate solicitation" means promoting the assertion of specific legal claims among persons who know of their rights to make a claim and who decline to do so. Nothing in this subsection precludes a legal aid program or its employees from providing information regarding legal rights and responsibilities or providing information regarding the program’s services and intake procedures through community legal education activities, responding to an individual’s specific question about whether the individual should consult with an attorney or take legal action, or responding to an individual’s specific request for information about the individual’s legal rights or request for assistance in connection with a specific legal problem. (j) Conducting training programs that: (i) Advocate particular public policies; (ii) encourage or facilitate political activities, labor or antilabor activities, boycotts, picketing, strikes, or demonstrations; or (iii) attempt to influence legislation or rule making. Nothing in this subsection (5)(j) precludes representation of clients as otherwise permitted by this section. (6) The office of civil legal aid may establish requirements for client participation in the provision of civil legal aid under this section, including but not limited to copayments and sliding fee scales. (7)(a) Contracts entered into by the office of civil legal aid with qualified legal aid programs under this section must specify that the program’s expenditures of moneys distributed under this section: (i) Must be audited annually by an independent outside auditor. These audit results must be provided to the office of civil legal aid; and (ii) Are subject to audit by the state auditor. (b)(i) Any entity auditing a legal aid program under this section shall have access to all records of the legal aid program to the full extent necessary to determine compliance with this section, with the exception of confidential information protected by the United States Constitution, the state Constitution, the attorney-client privilege, and applicable rules of attorney conduct. (ii) The legal aid program shall have a system allowing for production of case-specific information, including client eligibility and case type, to demonstrate compliance with this section, with the exception of confidential information protected by the United States Constitution, the state Constitution, the attorney-client privilege, and applicable rules of attorney conduct. Such information shall be available to any entity that audits the program. (2006 Ed.) 2.56.010 (8) The office of civil legal aid must recover or withhold amounts determined by an audit to have been used in violation of this section. (9) The office of civil legal aid may adopt rules to implement this section. [2005 c 105 § 3; 1997 c 319 § 2; 1995 c 399 § 62; 1992 c 54 § 4. Formerly RCW 43.08.260.] Intent—1997 c 319: "It is the intent of the legislature to promote the provision of civil legal services to indigent persons, subject to available funds. To the extent that funds are appropriated for civil legal services for the indigent, the legislature intends that civil legal services be offered within an oversight framework that ensures accountability." [1997 c 319 § 1.] Effective date—1992 c 54: See note following RCW 36.18.020. 2.53.900 2.53.900 Effective date—2005 c 105. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2005. [2005 c 105 § 9.] Chapter 2.56 Chapter 2.56 RCW ADMINISTRATOR FOR THE COURTS Sections 2.56.010 2.56.020 2.56.030 2.56.031 2.56.040 2.56.050 2.56.060 2.56.070 2.56.080 2.56.090 2.56.100 2.56.110 2.56.120 2.56.130 2.56.140 2.56.150 2.56.160 2.56.170 2.56.180 2.56.190 2.56.200 Office created—Appointment of administrator. Appointment, compensation of assistants—Administrator, assistants not to practice law. Powers and duties. Juvenile offender information—Plan. Distribution of work of courts by chief justice. Judges, clerks, other officers, to comply with requests of administrator. Annual conference of judges—Judge’s expenses. Holding court in another county—Reimbursement for expenses. Chapter applies to supreme and superior courts, court of appeals, and courts of limited jurisdiction. Disbursement of appropriated funds. Penalty assessment in addition to penalty resulting from hearing under RCW 46.63.090 or 46.63.100—Paid into judiciary education account—Account created, purposes. Driving while under the influence of intoxicating liquor or any drug—Enhanced enforcement of related laws—Assignment of visiting district judges—Powers, expenses. Judicial impact notes—Establishment of procedure—Legislator may request—Copies to be filed. Juvenile laws and court processes and procedures—Informational materials. Disposition of school attendance violation petitions—Report. Review of mandatory use of court-appointed special advocates as guardians ad litem, certification of guardians ad litem. Processing of warrants pilot program. Judge pro tempore appointments. Family law handbook. Legal financial obligations—Collection—Distribution of funds. Performance audits. 2.56.010 2.56.010 Office created—Appointment of administrator. There shall be a state office to be known as the administrative office of the courts. The executive officer of the administrative office of the courts is the administrator for the courts, who shall be appointed by and hold office at the pleasure of the supreme court of this state. The administrator’s salary shall be fixed by the supreme court. [2005 c 282 § 5; 1984 c 20 § 1; 1979 ex.s. c 255 § 7; 1974 ex.s. c 156 § 1; 1969 c 93 § 1; 1957 c 259 § 1.] Effective date—1979 ex.s. c 255: See note following RCW 43.03.010. [Title 2 RCW—page 51] 2.56.020 Title 2 RCW: Courts of Record 2.56.020 Appointment, compensation of assistants— Administrator, assistants not to practice law. (1) The administrator for the courts, with the approval of the chief justice of the supreme court of this state, shall appoint and fix the compensation of such assistants as are necessary to enable performance of the power and duties vested in the administrative office of the courts. (2) Neither the administrator nor any assistant shall engage in the private practice of law except as otherwise provided for in this section. (3) Except as provided in subsection (4) of this section, nothing in this section prohibits the administrator or any assistant from: (a) Performing legal services for himself or herself or his or her immediate family; or (b) Performing legal services of a charitable nature. (4) The legal services identified in subsection (3) of this section may not be performed if they would interfere with the duties of the administrator or any assistant and no services that are performed shall be deemed within the scope of employment. [2005 c 282 § 6; 1957 c 259 § 2.] 2.56.020 2.56.030 2.56.030 Powers and duties. The administrator for the courts shall, under the supervision and direction of the chief justice: (1) Examine the administrative methods and systems employed in the offices of the judges, clerks, stenographers, and employees of the courts and make recommendations, through the chief justice, for the improvement of the same; (2) Examine the state of the dockets of the courts and determine the need for assistance by any court; (3) Make recommendations to the chief justice relating to the assignment of judges where courts are in need of assistance and carry out the direction of the chief justice as to the assignments of judges to counties and districts where the courts are in need of assistance; (4) Collect and compile statistical and other data and make reports of the business transacted by the courts and transmit the same to the chief justice to the end that proper action may be taken in respect thereto; (5) Prepare and submit budget estimates of state appropriations necessary for the maintenance and operation of the judicial system and make recommendations in respect thereto; (6) Collect statistical and other data and make reports relating to the expenditure of public moneys, state and local, for the maintenance and operation of the judicial system and the offices connected therewith; (7) Obtain reports from clerks of courts in accordance with law or rules adopted by the supreme court of this state on cases and other judicial business in which action has been delayed beyond periods of time specified by law or rules of court and make report thereof to supreme court of this state; (8) Act as secretary of the judicial conference referred to in RCW 2.56.060; (9) Submit annually, as of February 1st, to the chief justice, a report of the activities of the administrator’s office for the preceding calendar year including activities related to courthouse security; (10) Administer programs and standards for the training and education of judicial personnel; [Title 2 RCW—page 52] (11) Examine the need for new superior court and district court judge positions under an objective workload analysis. The results of the objective workload analysis shall be reviewed by the board for judicial administration which shall make recommendations to the legislature. It is the intent of the legislature that an objective workload analysis become the basis for creating additional district and superior court positions, and recommendations should address that objective; (12) Provide staff to the judicial retirement account plan under chapter 2.14 RCW; (13) Attend to such other matters as may be assigned by the supreme court of this state; (14) Within available funds, develop a curriculum for a general understanding of child development, placement, and treatment resources, as well as specific legal skills and knowledge of relevant statutes including chapters 13.32A, 13.34, and 13.40 RCW, cases, court rules, interviewing skills, and special needs of the abused or neglected child. This curriculum shall be completed and made available to all juvenile court judges, court personnel, and service providers and be updated yearly to reflect changes in statutes, court rules, or case law; (15) Develop, in consultation with the entities set forth in RCW 2.56.150(3), a comprehensive statewide curriculum for persons who act as guardians ad litem under Title 13 or 26 RCW. The curriculum shall be made available July 1, 1997, and include specialty sections on child development, child sexual abuse, child physical abuse, child neglect, clinical and forensic investigative and interviewing techniques, family reconciliation and mediation services, and relevant statutory and legal requirements. The curriculum shall be made available to all superior court judges, court personnel, and all persons who act as guardians ad litem; (16) Develop a curriculum for a general understanding of crimes of malicious harassment, as well as specific legal skills and knowledge of RCW 9A.36.080, relevant cases, court rules, and the special needs of malicious harassment victims. This curriculum shall be made available to all superior court and court of appeals judges and to all justices of the supreme court; (17) Develop, in consultation with the criminal justice training commission and the commissions established under chapters 43.113, 43.115, and 43.117 RCW, a curriculum for a general understanding of ethnic and cultural diversity and its implications for working with youth of color and their families. The curriculum shall be available to all superior court judges and court commissioners assigned to juvenile court, and other court personnel. Ethnic and cultural diversity training shall be provided annually so as to incorporate cultural sensitivity and awareness into the daily operation of juvenile courts statewide; (18) Authorize the use of closed circuit television and other electronic equipment in judicial proceedings. The administrator shall promulgate necessary standards and procedures and shall provide technical assistance to courts as required; (19) Develop a Washington family law handbook in accordance with RCW 2.56.180; (20) Administer state funds for improving the operation of the courts and provide support for court coordinating (2006 Ed.) Administrator for the Courts councils, under the direction of the board for judicial administration; (21)(a) Administer and distribute amounts appropriated from the equal justice subaccount under RCW 43.08.250(2) for district court judges’ and qualifying elected municipal court judges’ salary contributions. The administrator for the courts shall develop a distribution formula for these amounts that does not differentiate between district and elected municipal court judges. (b) A city qualifies for state contribution of elected municipal court judges’ salaries under (a) of this subsection if: (i) The judge is serving in an elected position; (ii) The city has established by ordinance that a full-time judge is compensated at a rate equivalent to at least ninetyfive percent, but not more than one hundred percent, of a district court judge salary or for a part-time judge on a pro rata basis the same equivalent; and (iii) The city has certified to the office of the administrator for the courts that the conditions in (b)(i) and (ii) of this subsection have been met. [2005 c 457 § 7; 2005 c 282 § 7; 2002 c 49 § 2; 1997 c 41 § 2; 1996 c 249 § 2; 1994 c 240 § 1; 1993 c 415 § 3; 1992 c 205 § 115; 1989 c 95 § 2. Prior: 1988 c 234 § 2; 1988 c 109 § 23; 1987 c 363 § 6; 1981 c 132 § 1; 1957 c 259 § 3.] Reviser’s note: This section was amended by 2005 c 282 § 7 and by 2005 c 457 § 7, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Intent—2005 c 457: See note following RCW 43.08.250. Declaration—2002 c 49: See note following RCW 2.56.180. Intent—1996 c 249: "It is the intent of this act to make improvements to the guardian and guardian ad litem systems currently in place for the protection of minors and incapacitated persons." [1996 c 249 § 1.] Intent—1993 c 415: See note following RCW 2.56.031. Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. Construction—Severability—1989 c 95: See notes following RCW 9A.36.080. Legislative findings—1988 c 234: "The legislature recognizes the need for appropriate training of juvenile court judges, attorneys, court personnel, and service providers in the dependency system and at-risk youth systems." [1988 c 234 § 1.] Effective date—1988 c 109: See note following RCW 2.10.030. Ethnic and cultural diversity—Development of curriculum for understanding—Training: RCW 43.101.280. 2.56.031 2.56.031 Juvenile offender information—Plan. The administrator for the courts shall develop a plan to improve the collection and reporting of information on juvenile offenders by all juvenile courts in the state. The information related to juvenile offenders shall include, but is not limited to, social, demographic, education, and economic data on juvenile offenders and where possible, their families. Development and implementation of the plan shall be accomplished in consultation with the human rights commission, the governor’s juvenile justice advisory committee, superior court judges, juvenile justice administrators, and interested juvenile justice practitioners and researchers. The plan shall include a schedule and budget for implementation and shall be provided to the office of financial management by September 15, 1993. [1993 c 415 § 2.] (2006 Ed.) 2.56.060 Intent—1993 c 415: "Pursuant to the work of the juvenile justice task force created by the 1991 legislature to undertake a study of Washington state’s juvenile justice system, the department of social and health services and the commission on African-American affairs commissioned an independent study of racial disproportionality in the state’s juvenile justice system. The study team, which documented evidence of disparity in the treatment of juvenile offenders of color throughout the system, provided recommendations to the legislature on December 15, 1992. The study recommends cultural diversity training for juvenile court and law enforcement personnel, expanded data collection on juvenile offenders throughout the system, development of uniform prosecutorial standards for juvenile offenders, changes to the consolidated juvenile services program and funding formula, dissemination of information to families and communities regarding juvenile court procedures, and examination of juvenile disposition standards for racial and/or ethnic bias. It is the intent of the legislature to implement the recommendations of this study in an effort to discourage differential treatment of youth of color and their families who come in contact with the juvenile courts in this state, and to promote racial and ethnic sensitivity and awareness throughout the juvenile court system." [1993 c 415 § 1.] 2.56.040 2.56.040 Distribution of work of courts by chief justice. The chief justice shall consider all recommendations of the administrator for the assignment of judges, and, in the discretion of the chief justice, direct any judge whose calendar, in the judgment of the chief justice, will permit, to hold court in any county or district where need therefor exists, to the end that the courts of this state shall function with maximum efficiency, and that the work of other courts shall be equitably distributed. It shall be the duty of every judge to obey such direction of the chief justice unless excused by the chief justice for sufficient cause. [2005 c 182 § 1; 1957 c 259 § 4.] Visiting judge: RCW 2.08.140 through 2.08.170, 2.08.200. 2.56.050 2.56.050 Judges, clerks, other officers, to comply with requests of administrator. The judges and clerks of the courts and all other officers, state and local, shall comply with all requests made by the administrator, after approval by the chief justice, for information and statistical data bearing on the state of the dockets of such courts and such other information as may reflect the business transacted by them and the expenditure of public moneys for the maintenance and operation of the judicial system. [1957 c 259 § 5.] 2.56.060 2.56.060 Annual conference of judges—Judge’s expenses. The supreme court of this state may provide by rule or special order for the holding in this state of an annual conference of the judges of the courts of record of this state, judges of the courts of limited jurisdiction, and invited members of the bar, for the consideration of matters relating to judicial business, the improvement of the judicial system and the administration of justice. Each judge attending such annual judicial conference shall be entitled to be reimbursed for travel expenses in accordance with RCW 43.03.050 and 43.03.060 as now existing or hereafter amended, to be paid from state appropriations made for the purposes of this chapter. [1981 c 331 § 15; 1975-’76 2nd ex.s. c 34 § 6; 1957 c 259 § 6.] Court Congestion Reduction Act of 1981—Purpose—Severability—1981 c 331: See notes following RCW 2.32.070. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. [Title 2 RCW—page 53] 2.56.070 Title 2 RCW: Courts of Record 2.56.070 Holding court in another county—Reimbursement for expenses. For attendance while holding court in another county or district pursuant to the direction of the chief justice, a judge shall be entitled to receive from the county to which he is sent reimbursement for subsistence, lodging, and travel expenses in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060 as now or hereafter amended. [1981 c 186 § 4; 1957 c 259 § 7.] 2.56.070 2.56.080 Chapter applies to supreme and superior courts, court of appeals, and courts of limited jurisdiction. This chapter shall apply to the following courts: The supreme court, the court of appeals, the superior courts; and, when and to the extent so ordered by the supreme court, to the courts of limited jurisdiction of this state, including district courts. [1987 c 202 § 108; 1971 c 81 § 14; 1957 c 259 § 8.] 2.56.080 Intent—1987 c 202: See note following RCW 2.04.190. 2.56.090 Disbursement of appropriated funds. Any moneys appropriated for the purposes of this chapter shall be disbursed, upon order of the chief justice, on warrants drawn by the state auditor on the general fund. [1957 c 259 § 9.] 2.56.090 2.56.100 Penalty assessment in addition to penalty resulting from hearing under RCW 46.63.090 or 46.63.100—Paid into judiciary education account— Account created, purposes. 2.56.100 Reviser’s note: RCW 2.56.100 was amended by 1985 c 57 § 1 without reference to its repeal by 1984 c 258 § 339, both effective July 1, 1985. It has been decodified for publication purposes pursuant to RCW 1.12.025. 2.56.110 Driving while under the influence of intoxicating liquor or any drug—Enhanced enforcement of related laws—Assignment of visiting district judges— Powers, expenses. The administrator for the courts may assign one or more district judges from other judicial districts to serve as visiting district judges in a judicial district which the administrator determines is experiencing an increase in case filings as the result of enhanced enforcement of laws related to driving, or being in physical control of, a motor vehicle while under the influence of intoxicating liquor or any drug. The prosecuting, city, or town attorney of the county, city, or town in which a judicial district lies, or the presiding judge of the judicial district, may request the administrator for the courts to designate the district as an enhanced enforcement district and to make assignments under this section. An assignment shall be for a specified period of time not to exceed thirty days. A visiting district judge has the same powers as a district judge of the district to which he or she is assigned. A visiting district judge shall be reimbursed for expenses under RCW 2.56.070. [1991 c 290 § 1; 1987 c 202 § 109; 1983 c 165 § 31.] 2.56.110 Intent—1987 c 202: See note following RCW 2.04.190. Legislative finding, intent—Effective dates—Severability—1983 c 165: See notes following RCW 46.20.308. Venue, criminal actions: RCW 3.66.070. 2.56.120 Judicial impact notes—Establishment of procedure—Legislator may request—Copies to be filed. (1) The administrative office of the courts, in cooperation 2.56.120 [Title 2 RCW—page 54] with appropriate legislative committees and legislative staff, shall establish a procedure for the provision of judicial impact notes on the effect legislative bills will have on the workload and administration of the courts of this state. The administrative office of the courts and the office of financial management shall coordinate the development of judicial impact notes with the preparation of fiscal notes under chapters 43.88A and 43.132 RCW. (2) The administrative office of the courts shall provide a judicial impact note on any legislative proposal at the request of any legislator. The note shall be provided to the requesting legislator and copies filed with the appropriate legislative committees in accordance with subsection (3) of this section when the proposed legislation is introduced in either house. (3) When a judicial impact note is prepared and approved by the administrative office of the courts, copies of the note shall be filed with: (a) The chairperson of the committee to which the bill was referred upon introduction in the house of origin; (b) The senate committee on ways and means; (c) The house of representatives committee on ways and means; (d) The senate judiciary committee; (e) The house of representatives judiciary committee; and (f) The office of financial management. (4) This section shall not prevent either house of the legislature from acting on any bill before it as otherwise provided by the state Constitution, by law, and by the rules and joint rules of the senate and house of representatives, nor shall the lack of any judicial impact note as provided in this section or any error in the accuracy thereof affect the validity of any measure otherwise duly passed by the legislature. [2005 c 282 § 8; 1986 c 158 § 1; 1984 c 258 § 604.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 2.56.130 2.56.130 Juvenile laws and court processes and procedures—Informational materials. The administrator for the courts shall, in cooperation with juvenile courts, develop informational materials describing juvenile laws and juvenile court processes and procedures related to such laws, and make such information available to the public. Similar information shall also be made available for the non-English speaking youth and their families. [1993 c 415 § 5.] Intent—1993 c 415: See note following RCW 2.56.031. 2.56.140 2.56.140 Disposition of school attendance violation petitions—Report. The administrator for the courts shall prepare a report for each school year to be submitted to the legislature no later than December 15th of each year that summarizes the disposition of petitions filed with the juvenile court under RCW 28A.225.030, including the number of contempt orders issued to enforce a court’s order under RCW 28A.225.030. [1996 c 134 § 8.] 2.56.150 2.56.150 Review of mandatory use of courtappointed special advocates as guardians ad litem, certification of guardians ad litem. (1) The administrator for the (2006 Ed.) Administrator for the Courts courts shall review the advisability and feasibility of the statewide mandatory use of court-appointed special advocates as described in RCW 26.12.175 to act as guardians ad litem in appropriate cases under Titles 13 and 26 RCW. The review must explore the feasibility of obtaining various sources of private and public funding to implement statewide mandatory use of court-appointed special advocates, such as grants and donations, instead of or in combination with raising court fees or assessments. (2) The administrator shall also conduct a study on the feasibility and desirability of requiring all persons who act as guardians ad litem under Titles 11, 13, and 26 RCW to be certified as qualified guardians ad litem prior to their eligibility for appointment. (3) In conducting the review and study the administrator shall consult with: (a) The presidents or directors of all public benefit nonprofit corporations that are eligible to receive state funds under RCW 43.330.135; (b) the attorney general, or a designee; (c) the secretary of the department of social and health services, or a designee; (d) the superior court judges association; (e) the Washington state bar association; (f) public defenders who represent children under Title 13 or 26 RCW; (g) private attorneys who represent parents under Title 13 or 26 RCW; (h) professionals who evaluate families for the purposes of determining the custody or placement decisions of children; (i) the office of financial management; (j) persons who act as volunteer or compensated guardians ad litem; and (k) parents who have dealt with guardians ad litem in court cases. For the purposes of studying the feasibility of a certification requirement for guardians ad litem acting under Title 11 RCW the administrator shall consult with the advisory group formed under RCW 11.88.090. (4) The administrator shall also conduct a review of problems and concerns about the role of guardians ad litem in actions under Titles 11, 13, and 26 RCW and recommend alternatives to strengthen judicial oversight of guardians ad litem and ensure fairness and impartiality of the process. The administrator must accept and obtain comments from parties designated in subsection (3) of this section. [2005 c 282 § 9; 1996 c 249 § 3.] Presentation of review and study—Time limit—1996 c 249: "The review and study required under section 3 of this act shall be presented to the governor and to the legislature no later than December 1, 1996." [1996 c 249 § 4.] Intent—1996 c 249: See note following RCW 2.56.030. 2.56.160 Processing of warrants pilot program. The administrator for the courts shall establish a pilot program for the efficient statewide processing of warrants issued by courts of limited jurisdiction. The pilot program shall contain procedures and criteria for courts of limited jurisdiction to enter into agreements with other courts of limited jurisdiction throughout the state to process each other’s warrants when the defendant is within the processing court’s jurisdiction. The administrator for the courts shall establish a formula for allocating between the court processing the warrant and the court that issued the warrant any moneys collected and costs associated with the processing of warrants. [2000 c 111 § 1.] 2.56.160 Report to legislature—2000 c 111: "The program established by the office of the administrator for the courts pursuant to RCW 2.56.160 shall by June 1, 2003, report to the legislature on the effectiveness and costs of the pilot program. Copies of the report shall be distributed to the house of (2006 Ed.) 2.56.190 representatives judiciary committee and the senate judiciary committee." [2000 c 111 § 8.] 2.56.170 2.56.170 Judge pro tempore appointments. A judge pro tempore may be authorized under RCW 2.06.150 or 2.08.180 whenever a judge of the court of appeals or the superior court serves on a judicial commission, board, or committee established by the legislature or the chief justice of the supreme court. The judge pro tempore shall be compensated as specified in RCW 2.06.160 or 2.08.180. [2000 c 165 § 1.] 2.56.180 2.56.180 Family law handbook. (1) The administrative office of the courts shall create a handbook explaining the sections of Washington law pertaining to the rights and responsibilities of marital partners to each other and to any children during a marriage and a dissolution of marriage. The handbook may also be provided in videotape or other electronic form. (2) The handbook created under subsection (1) of this section shall be provided by the county auditor when an individual applies for a marriage license under RCW 26.04.140. (3) The information contained in the handbook created under subsection (1) of this section shall be reviewed and updated annually. The handbook must contain the following information: (a) Information on prenuptial agreements as contracts and as a means of structuring financial arrangements and other aspects of the marital relationship; (b) Information on shared parental responsibility for children, including establishing a residential schedule for the child in the event of the dissolution of the marriage; (c) Information on notice requirements and standards for parental relocation; (d) Information on child support for minor children; (e) Information on property rights, including equitable distribution of assets and premarital and postmarital property rights; (f) Information on spousal maintenance; (g) Information on domestic violence, child abuse, and neglect, including penalties; (h) Information on the court process for dissolution; (i) Information on the effects of dissolution on children; (j) Information on community resources that are available to separating or divorcing persons and their children. [2005 c 282 § 10; 2003 c 225 § 1; 2002 c 49 § 3.] Declaration—2002 c 49: "The legislature declares that: (1) Strong marital relationships result in stronger families, children, and ultimately, stronger communities and place less of a fiscal burden on the state; and (2) The state has a compelling interest in providing couples, applying for a marriage license, information with regard to marriage and, if contemplated, the effects of divorce." [2002 c 49 § 1.] 2.56.190 2.56.190 Legal financial obligations—Collection— Distribution of funds. By October 1, 2003, and annually thereafter, the administrative office of the courts shall distribute such funds to counties for county clerk collection budgets as are appropriated by the legislature for this purpose, using the funding formula recommended by the Washington association of county officials. The administrative office of the courts shall not deduct any amount for indirect or direct costs, [Title 2 RCW—page 55] 2.56.200 Title 2 RCW: Courts of Record and shall distribute the entire amount appropriated by the legislature to the counties for county clerk collection budgets. The administrative office of the courts shall report on the amounts distributed to counties to the appropriate committees of the legislature no later than December 1, 2003, and annually thereafter. The administrative office of the courts may expend for the purposes of billing for legal financial obligations, such funds as are appropriated for the legislature for this purpose. [2003 c 379 § 21.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Intent—Purpose—2003 c 379 §§ 13-27: See note following RCW 9.94A.760. 2.56.200 2.56.200 Performance audits. The office of the administrator for the courts is encouraged to conduct performance audits of courts under the authority of the supreme court, in conformity with criteria and methods developed by the board for judicial administration that have been approved by the supreme court. In developing criteria and methods for conducting performance audits, the board for judicial administration is encouraged to consider quality improvement programs, audits, and scoring. The judicial branch is encouraged to submit the results of these efforts to the chief justice of the supreme court or his or her designee, and with any other applicable boards or committees established under the authority of the supreme court to oversee government accountability. [2005 c 385 § 10.] Findings—2005 c 385: See note following RCW 43.09.430. Chapter 2.60 RCW FEDERAL COURT LOCAL LAW CERTIFICATE PROCEDURE ACT Chapter 2.60 Sections 2.60.010 2.60.020 2.60.030 2.60.900 Definitions. Federal court certification of local law question. Practice and procedure. Short title. 2.60.010 2.60.010 Definitions. As used in this chapter: (1) The term "certificate procedure" shall mean the procedure authorized herein by which a federal court in disposing of a cause pending before it submits a question of local law to the supreme court for answer; (2) The term "federal court" means any court of the United States of America including the supreme court of the United States, courts of appeal, district courts and any other court created by act of congress; (3) The term "supreme court" shall mean supreme court of Washington; (4) The term "record" shall mean: (a) A stipulation of facts approved by the federal court showing the nature of the case and the circumstances out of which the question of law arises or such part of the pleadings, proceedings and testimony in the cause pending before the federal court as in its opinion is necessary to enable the supreme court to answer the question submitted; (b) a statement of the question of local law certified for answer. The record shall contain a certificate under the official seal of the court, signed by the chief [Title 2 RCW—page 56] judge of a multi-judge federal court or judge of the district court utilizing certificate procedure stating that the record contains all matters in the pending cause deemed material for consideration of the local law question certified for answer; (5) The term "supplemental record" shall mean the original or copies of any other portion of the proceedings, pleadings and testimony before the federal court deemed desirable by the supreme court in the determination of the local law question certified for answer. The supplemental record shall contain a certificate under the official seal of the court signed by the chief judge of such multi-judge federal court or judge of the district court, certifying that the supplemental record contains all additional matters requested; (6) The term "opinion" shall mean the written opinion of the supreme court of Washington and shall include the certificate of the clerk of such court under seal of court stating that the opinion is in answer to the local law question submitted. [1965 c 99 § 1.] 2.60.020 2.60.020 Federal court certification of local law question. When in the opinion of any federal court before whom a proceeding is pending, it is necessary to ascertain the local law of this state in order to dispose of such proceeding and the local law has not been clearly determined, such federal court may certify to the supreme court for answer the question of local law involved and the supreme court shall render its opinion in answer thereto. [1965 c 99 § 2.] 2.60.030 2.60.030 Practice and procedure. Certificate procedure shall be governed by the following provisions: (1) Certificate procedure may be invoked by a federal court upon its own motion or upon the motion of any interested party in the litigation involved if the federal court grants such motion. (2) Certificate procedure shall include and be based upon the record and may include a supplemental record. (3) Certificate procedure costs shall be equally divided between plaintiff and defendant, subject to reallocation as between or among the parties by the federal court involved. (4) The appellant or moving party in the federal court shall file and serve upon its adversary its brief on the question certified within thirty days after the filing of the record in the supreme court. The appellee or responding party in the federal court shall file and serve upon its adversary its brief within twenty days after receipt of appellant’s or moving party’s brief and a reply brief shall be filed within ten days. Time for filing record, supplemental record or briefs may be extended for cause. (5) Oral argument as in other causes on the merits may be had upon request of the supreme court or upon application of any interested party in the certificate procedure. (6) The supreme court shall forward to the federal court utilizing certificate procedure its opinion answering the local law question submitted. (7) The supreme court may adopt rules of practice and procedure to implement or otherwise facilitate utilization of certificate procedure. [1965 c 99 § 3.] (2006 Ed.) Commission on Judicial Conduct 2.60.900 2.60.900 Short title. This act may be cited as the "federal court local law certificate procedure act." [1965 c 99 § 4.] Chapter 2.64 RCW COMMISSION ON JUDICIAL CONDUCT Chapter 2.64 Sections 2.64.010 2.64.020 2.64.030 2.64.040 2.64.050 2.64.055 2.64.057 2.64.060 2.64.070 2.64.080 2.64.092 2.64.094 2.64.096 2.64.100 2.64.111 2.64.113 2.64.115 2.64.120 2.64.910 Definitions—Application. Membership—Terms. Disqualification—Vacancies—Limitations on terms—Alternates—Removal. Compensation and travel expenses. Employment of personnel—Expenditures authorized. Disciplinary actions authorized. Investigation of conduct occurring prior to, on, or after December 4, 1980. Administration of oaths—Powers as to witnesses, papers, books, etc.—Subpoenas. Refusal to obey subpoena—Powers of superior court. Privilege from suit. Administrative procedure act not applicable. Suspension of judge or justice. Disclosure of material tending to negate determination. Proposed operating budgets—Reports to legislature. Exemption from public disclosure—Records subject to public disclosure, when. Confidentiality—Violations. Application of open public meetings act—Exemptions. Independent part of judicial branch. Severability—1981 c 268. Rules of court: See Discipline Rules for Judges (DRJ). 2.64.010 2.64.010 Definitions—Application. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Admonishment" means a written disposition of an advisory nature that cautions a judge or justice not to engage in certain proscribed behavior. An admonishment may include a requirement that the judge or justice follow a specified corrective course of action. (2) "Censure" means a written action of the commission that requires a judge or justice to appear personally before the commission, and that finds that conduct of the judge or justice violates a rule of judicial conduct, detrimentally affects the integrity of the judiciary, undermines public confidence in the administration of justice, and may or may not require a recommendation to the supreme court that the judge or justice be suspended or removed. A censure shall include a requirement that the judge or justice follow a specified corrective course of action. (3) "Commission" means the commission on judicial conduct provided for in Article IV, section 31 of the state Constitution, which is authorized to recommend to the supreme court, after notice and hearing, the suspension or removal of a judge or justice for violating a rule of judicial conduct, or the retirement of a judge or justice for disability. (4) "Judge or justice" includes justices of the supreme court, judges of the court of appeals, judges of the superior courts, judges of any court organized under Titles 3 or 35 RCW, judges pro tempore, court commissioners, and magistrates. (5) "Removal" means a written recommendation by the commission and a finding by the supreme court that the conduct of a judge or justice is a violation of a rule of judicial conduct and seriously impairs the integrity of the judiciary (2006 Ed.) 2.64.020 and substantially undermines the public confidence in the administration of justice to such a degree that the judge or justice should be relieved of all duties of his or her office. (6) "Reprimand" means a written action of the commission that requires a judge or justice to appear personally before the commission, and that finds that the conduct of the judge or justice is a minor violation of the code of judicial conduct and does not require censure or a formal recommendation to the supreme court that the judge or justice be suspended or removed. A reprimand shall include a requirement that the judge or justice follow a specified corrective course of action. (7) "Retirement" means a written recommendation by the commission and a finding by the supreme court that a judge or justice has a disability which is permanent, or likely to become permanent, and that seriously interferes with the performance of judicial duties. (8) "Suspension" means a written recommendation by the commission and a finding by the supreme court that the conduct of a judge or justice is a violation of a rule of judicial conduct and seriously impairs the integrity of the judiciary and substantially undermines the public confidence in the administration of justice to such a degree that the judge or justice should be relieved of the duties of his or her office by the court for a specified period of time, as determined by the court. This chapter shall apply to any judge or justice, regardless of whether the judge or justice serves full time or part time, and regardless of whether the judge or justice is admitted to practice law in this state. [1989 c 367 § 1; 1987 c 186 § 1; 1981 c 268 § 2.] Contingent effective date—1989 c 367: "This act shall take effect upon the effective date of an amendment to Article IV, section 31 of the state Constitution making changes to the commission on judicial conduct. If such amendment is not validly submitted to and approved and ratified by the voters at a general election held in November 1989, this act shall be null and void in its entirety." [1989 c 367 § 12.] Substitute Senate Joint Resolution No. 8202 was approved and ratified by the voters at the November 7, 1989, general election. 2.64.020 2.64.020 Membership—Terms. The commission shall consist of eleven members. One member shall be a judge selected by and from the court of appeals judges; one member shall be a judge selected by and from the superior court judges; one member shall be a judge selected by and from the limited jurisdiction court judges; two members shall be selected by the state bar association and be admitted to the practice of law in this state; and six members shall be nonlawyers appointed by the governor. The term of each member of the commission shall be four years. [2005 c 15 § 1; 1989 c 367 § 2; 1987 c 186 § 2; 1981 c 268 § 3.] Contingent effective date—2005 c 15: "This act takes effect January 1, 2006, if the proposed amendment to Article IV, section 31 of the state Constitution (Senate Joint Resolution No. 8207, changing the membership of the commission on judicial conduct) is validly submitted to and is approved and ratified by the voters at the next general election. If the proposed amendment is not approved and ratified, this act is void in its entirety." [2005 c 15 § 2.] Senate Joint Resolution No. 8207 was approved and ratified by the voters at the November 8, 2005, general election. Contingent effective date—1989 c 367: See note following RCW 2.64.010. Terms of additional members—1987 c 186 § 2: "Notwithstanding RCW 2.64.020, the initial term of one of the members added to the commission on judicial conduct by section 2, chapter 186, Laws of 1987 shall end on [Title 2 RCW—page 57] 2.64.030 Title 2 RCW: Courts of Record June 16, 1990, and the term of the other member shall end on June 16, 1991, as determined by lot." [1987 c 186 § 3.] 2.64.030 2.64.030 Disqualification—Vacancies—Limitations on terms—Alternates—Removal. Commission membership shall terminate if a member ceases to hold the position that qualified him or her for appointment. Vacancies caused by disqualification or resignation shall be filled by the appointing authority for the remainder of the term. No person may serve more than two consecutive four-year terms. A person may be reappointed after a lapse of one year. A member, rather than his or her successor, shall continue to participate in any hearing in progress at the end of his or her term, or when the member ceases to hold the position that qualified him or her for appointment. The appointing authority shall appoint an alternate to serve during a member’s temporary disability, disqualification, or inability to serve. No member may otherwise be removed from the commission before the end of his or her term except upon good cause found by the appointing authority. [1981 c 268 § 4.] 2.64.040 2.64.040 Compensation and travel expenses. Commission members and alternate members shall be compensated in accordance with RCW 43.03.250 and shall be reimbursed for travel expenses under RCW 43.03.050 and 43.03.060. [1984 c 287 § 8; 1981 c 268 § 5.] Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. 2.64.050 2.64.050 Employment of personnel—Expenditures authorized. The commission may employ personnel, including attorneys, and make any other expenditures necessary for the effective performance of its duties and the exercise of its powers. The commission may hire attorneys or others by personal service contract to conduct initial proceedings regarding a complaint against a judge or justice. Commission employees shall be exempt from the civil service law, chapter 41.06 RCW. [1989 c 367 § 3; 1981 c 268 § 6.] 2.64.060 2.64.060 Administration of oaths—Powers as to witnesses, papers, books, etc.—Subpoenas. Each member of the commission, and any special master appointed by the commission, may administer oaths. The commission may summon and examine witnesses and compel the production and examination of papers, books, accounts, documents, records, certificates, and other evidence for the determination of any issue before or the discharge of any duty of the commission. The commission shall also issue subpoenas at the request and on behalf of any judge or justice under inquiry. All subpoenas shall be signed by a member of the commission or a special master appointed by the commission. Subpoenas shall be served and witnesses reimbursed in the manner provided in civil cases in superior court. [1981 c 268 § 7.] 2.64.070 2.64.070 Refusal to obey subpoena—Powers of superior court. If a person refuses to obey a subpoena issued by the commission or refuses to answer any proper question during a hearing or proceeding, the superior court of any county in which the hearing or proceeding is conducted or in which the person resides or is found shall have jurisdiction, upon application by the commission, to order the person to appear before the commission, to produce evidence if so ordered, or to give testimony concerning the matter under investigation. Failure to obey the order of the court may be punished as contempt. [1981 c 268 § 8.] 2.64.080 2.64.080 Privilege from suit. Members and employees of the commission, including any lawyers or special masters temporarily employed by the commission, are absolutely privileged from suit in any action, civil or criminal, based upon any disciplinary proceedings or upon other official acts as members or employees of the commission. Statements made to the commission or its investigators or other employees are absolutely privileged in actions for defamation. This absolute privilege does not apply to statements made in any other forum. [1981 c 268 § 9.] 2.64.092 Contingent effective date—1989 c 367: See note following RCW 2.64.010. 2.64.055 2.64.055 Disciplinary actions authorized. The commission is authorized to impose the following disciplinary actions, in increasing order of severity: (a) Admonishment; (b) reprimand; or (c) censure. If the conduct of the judge or justice warrants more severe disciplinary action, the commission may recommend to the supreme court the suspension or removal of the judge or justice. [1989 c 367 § 4.] 2.64.092 Administrative procedure act not applicable. The adjudicative proceedings, judicial review, and civil enforcement provisions of chapter 34.05 RCW, the administrative procedure act, do not apply to any investigations, initial proceedings, public hearings, or executive sessions involving the discipline or retirement of a judge or justice. [1989 c 367 § 7.] Contingent effective date—1989 c 367: See note following RCW 2.64.010. 2.64.094 Contingent effective date—1989 c 367: See note following RCW 2.64.010. 2.64.057 2.64.057 Investigation of conduct occurring prior to, on, or after December 4, 1980. The commission is authorized to investigate and consider for probative value any conduct that may have occurred prior to, on, or after December 4, 1980, by a person who was, or is now, a judge or justice when such conduct relates to a complaint filed with the commission against the same judge or justice. [1989 c 367 § 5.] Contingent effective date—1989 c 367: See note following RCW 2.64.010. [Title 2 RCW—page 58] 2.64.094 Suspension of judge or justice. If the commission adopts a recommendation that a judge or justice be removed, the judge or justice shall be suspended, with salary, from his or her judicial position upon filing of the recommendation with the supreme court and until a final determination is made by the supreme court. [1987 c 186 § 6.] 2.64.096 2.64.096 Disclosure of material tending to negate determination. Whenever the commission determines that there is probable cause to believe that a judge or justice has violated a rule of judicial conduct or that the judge or justice suffers from a disability which is permanent or likely to (2006 Ed.) Judicial Information System become permanent and which seriously interferes with the performance of judicial duties, the commission shall disclose to the judge or justice any material or information within the commission’s knowledge which tends to negate the determination of the commission, except as otherwise provided by a protective order. [1989 c 367 § 10.] Contingent effective date—1989 c 367: See note following RCW 2.64.010. 2.64.100 2.64.100 Proposed operating budgets—Reports to legislature. The commission shall prepare and present to the legislature proposed operating budgets for the commission in accordance with the provisions of chapter 43.88 RCW. The commission shall report to the legislature in the manner required by law, with due regard for the confidentiality of proceedings before the commission. [1981 c 268 § 11.] 2.64.111 2.64.111 Exemption from public disclosure— Records subject to public disclosure, when. All pleadings, papers, evidence records, and files of the commission, including complaints and the identity of complainants, compiled or obtained during the course of an investigation or initial proceeding involving the discipline or retirement of a judge or justice, are exempt from the public disclosure requirements of chapter 42.56 RCW during such investigation or initial proceeding. As of the date of a public hearing, all those records of the initial proceeding that were the basis of a finding of probable cause are subject to the public disclosure requirements of chapter 42.56 RCW. [2005 c 274 § 201; 1989 c 367 § 6.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Contingent effective date—1989 c 367: See note following RCW 2.64.010. 2.64.113 2.64.113 Confidentiality—Violations. The commission shall provide by rule for confidentiality of its investigations and initial proceedings in accordance with Article IV, section 31 of the state Constitution. Any person violating a rule on confidentiality is subject to a proceeding for contempt in superior court. [1989 c 367 § 9.] Contingent effective date—1989 c 367: See note following RCW 2.64.010. 2.64.115 2.64.115 Application of open public meetings act— Exemptions. The commission is subject to the open public meetings act, chapter 42.30 RCW. However, investigations, initial proceedings, public hearings, and executive sessions involving the discipline or retirement of a judge or justice are governed by this chapter and Article IV, section 31 of the state Constitution and are exempt from the provisions of chapter 42.30 RCW. [1989 c 367 § 8.] Contingent effective date—1989 c 367: See note following RCW 2.64.010. 2.64.120 2.64.120 Independent part of judicial branch. The commission shall for all purposes be considered an independent part of the judicial branch of government. [1981 c 268 § 13.] (2006 Ed.) 2.68.030 2.64.910 Severability—1981 c 268. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1981 c 268 § 17.] 2.64.910 Chapter 2.68 Chapter 2.68 RCW JUDICIAL INFORMATION SYSTEM Sections 2.68.010 2.68.020 2.68.030 2.68.040 2.68.050 Judicial information system committee—Fees. Judicial information system account. Schedule of user fees. Judicial information system account—Increase in fines, penalties, assessments. Electronic access to judicial information. 2.68.010 Judicial information system committee— Fees. The judicial information system committee, as established by court rule, shall determine all matters pertaining to the delivery of services available from the judicial information system. The committee may establish a fee schedule for the provision of information services and may enter into contracts with any person, public or private, including the state, its departments, subdivisions, institutions, and agencies. However, no fee may be charged to county or city governmental agencies within the state of Washington using the judicial information system for the business of the courts. [1989 c 364 § 1.] 2.68.010 2.68.020 Judicial information system account. There is created an account in the custody of the state treasurer to be known as the judicial information system account. The administrative office of the courts shall maintain and administer the account, in which shall be deposited all moneys received from in-state noncourt users and any out-of-state users of the judicial information system and moneys as specified in RCW 2.68.040 for the purposes of providing judicial information system access to noncourt users and providing an adequate level of automated services to the judiciary. The legislature shall appropriate the funds in the account for the purposes of the judicial information system. The account shall be used for the acquisition of equipment, software, supplies, services, and other costs incidental to the acquisition, development, operation, and administration of information services, telecommunications, systems, software, supplies, and equipment, including the payment of principal and interest on items paid in installments. [2005 c 282 § 11; 1994 c 8 § 1; 1989 c 364 § 2.] 2.68.020 2.68.030 Schedule of user fees. The judicial information system committee shall develop a schedule of user fees for in-state noncourt users and all out-of-state users of the judicial information computer system and charges for judicial information system products and licenses for the purpose of distributing and apportioning the full cost of operation and continued development of the system among the users. The schedule shall generate sufficient revenue to cover the costs relating to (1) the payment of salaries, wages, other costs including, but not limited to the acquisition, operation, and administration of acquired information services, supplies, and equipment; and (2) the development of judicial informa2.68.030 [Title 2 RCW—page 59] 2.68.040 Title 2 RCW: Courts of Record tion system products and services. As used in this section, the term "supplies" shall not be interpreted to delegate or abrogate the state purchasing and material control director’s responsibilities and authority to purchase supplies as provided in chapter 43.19 RCW. [1989 c 364 § 3.] 2.68.040 2.68.040 Judicial information system account— Increase in fines, penalties, assessments. (1) To support the judicial information system account provided for in RCW 2.68.020, the supreme court may provide by rule for an increase in fines, penalties, and assessments, and the increased amount shall be forwarded to the state treasurer for deposit in the account: (a) Pursuant to the authority of *RCW 46.63.110(2), the sum of ten dollars to any penalty collected by a court pursuant to supreme court infraction rules for courts of limited jurisdiction; (b) Pursuant to RCW 3.62.060, a mandatory appearance cost in the initial sum of ten dollars to be assessed on all defendants; and (c) Pursuant to *RCW 46.63.110(5), a ten-dollar assessment for each account for which a person requests a time payment schedule. (2) Notwithstanding a provision of law or rule to the contrary, the assessments provided for in this section may not be waived or suspended and shall be immediately due and payable upon forfeiture, conviction, deferral of prosecution, or request for time payment, as each shall occur. (3) The supreme court is requested to adjust these assessments for inflation. [1994 c 8 § 2.] *Reviser’s note: RCW 46.63.110 was amended by 2002 c 279 § 15, changing subsection (2) to subsection (3) and subsection (5) to subsection (6). 2.68.050 2.68.050 Electronic access to judicial information. The supreme court, the court of appeals and all superior and district courts, through the judicial information system committee, shall: (1) Continue to plan for and implement processes for making judicial information available electronically; (2) Promote and facilitate electronic access to the public of judicial information and services; (3) Establish technical standards for such services; (4) Consider electronic public access needs when planning new information systems or major upgrades of information systems; (5) Develop processes to determine which judicial information the public most wants and needs; (6) Increase capabilities to receive information electronically from the public and transmit forms, applications and other communications and transactions electronically; (7) Use technologies that allow continuous access twenty-four hours a day, seven days per week, involve little or no cost to access, and are capable of being used by persons without extensive technology ability; and (8) Consider and incorporate wherever possible ease of access to electronic technologies by persons with disabilities. [1996 c 171 § 3.] Captions not law—Effective dates—1996 c 171: See notes following RCW 43.105.250. [Title 2 RCW—page 60] Chapter 2.70 Chapter 2.70 RCW OFFICE OF PUBLIC DEFENSE Sections 2.70.005 2.70.010 2.70.020 2.70.030 2.70.040 2.70.050 Intent. Director—Appointment—Qualifications—Salary. Director—Duties—Limitations. Advisory committee—Membership—Duties—Travel and other expenses. Employees—Civil service exemption. Transfer to office of appellate indigent defense powers, duties, functions, information, property, appropriations, employees, rules, and pending business—Apportionment—Effect on collective bargaining. Reviser’s note—Sunset Act application: The office of public defense is subject to review, termination, and possible extension under chapter 43.131 RCW, the Sunset Act. See RCW 43.131.389. RCW 2.70.005 through 2.70.040 are scheduled for future repeal under RCW 43.131.390. 2.70.005 Intent. In order to implement the constitutional guarantee of counsel and to ensure the effective and efficient delivery of the indigent appellate services funded by the state of Washington, an office of public defense is established as an independent agency of the judicial branch. [1996 c 221 § 1.] 2.70.005 Sunset Act application: See note following chapter digest. 2.70.010 Director—Appointment—Qualifications— Salary. The supreme court shall appoint the director of the office of public defense from a list of three names submitted by the advisory committee created under RCW 2.70.030. Qualifications shall include admission to the practice of law in this state for at least five years, experience in the representation of persons accused of a crime, and proven managerial or supervisory experience. The director shall serve at the pleasure of the supreme court and receive a salary to be fixed by the advisory committee. [1996 c 221 § 2.] 2.70.010 Sunset Act application: See note following chapter digest. 2.70.020 Director—Duties—Limitations. The director, under the supervision and direction of the advisory committee, shall: (1) Administer all criminal appellate indigent defense services; (2) Submit a biennial budget for all costs related to state appellate indigent defense; (3) Establish administrative procedures, standards, and guidelines for the program including a cost-efficient system that provides for recovery of costs; (4) Recommend criteria and standards for determining and verifying indigency. In recommending criteria for determining indigency, the director shall compile and review the indigency standards used by other state agencies and shall periodically submit the compilation and report to the legislature on the appropriateness and consistency of such standards; (5) Collect information regarding indigency cases funded by the state and report annually to the legislature and the supreme court; (6) Coordinate with the supreme court and the judges of each division of the court of appeals to determine how attorney services should be provided. The office of public defense shall not provide direct representation of clients. [1996 c 221 § 3.] 2.70.020 (2006 Ed.) Office of Public Defense Sunset Act application: See note following chapter digest. 2.70.030 2.70.030 Advisory committee—Membership— Duties—Travel and other expenses. (1) There is created an advisory committee consisting of the following members: (a) Three persons appointed by the chief justice of the supreme court, including the chair of the appellate indigent defense commission identified in subsection (3) of this section; (b) Two nonattorneys appointed by the governor; (c) Two senators, one from each of the two largest caucuses, appointed by the president of the senate; and two members of the house of representatives, one from each of the two largest caucuses, appointed by the speaker of the house of representatives; (d) One person appointed by the court of appeals executive committee; (e) One person appointed by the Washington state bar association. (2) During the term of his or her appointment, no appointee may: (a) Provide indigent defense services except on a pro bono basis; (b) serve as an appellate judge except on a pro tem basis or as an appellate court employee; or (c) serve as a prosecutor or prosecutor employee. (3) The initial advisory committee shall be comprised of the current members of the appellate indigent defense commission, as established by Supreme Court Order No. 25700B, dated March 9, 1995, plus two additional legislator members appointed under subsection (1)(c) of this section. Members shall serve until the termination of their current terms, and may be reappointed. The two additional legislator members, who are not on the appellate indigent defense commission, shall each serve three-year terms. Members of the advisory committee shall receive no compensation for their services as members of the commission, but may be reimbursed for travel and other expenses in accordance with rules adopted by the office of financial management. [2005 c 111 § 1; 1996 c 221 § 4.] Sunset Act application: See note following chapter digest. 2.70.040 2.70.040 Employees—Civil service exemption. All employees of the office of public defense shall be exempt from state civil service under chapter 41.06 RCW. [1996 c 221 § 5.] Sunset Act application: See note following chapter digest. 2.70.050 2.70.050 Transfer to office of appellate indigent defense powers, duties, functions, information, property, appropriations, employees, rules, and pending business— Apportionment—Effect on collective bargaining. (1) All powers, duties, and functions of the supreme court and the administrative office of the courts pertaining to appellate indigent defense are transferred to the office of public defense. (2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the supreme court or the administrative office of the courts pertaining to the powers, functions, and duties transferred shall be delivered to the custody of the office of public defense. All cabinets, furniture, office equipment, motor vehicles, and (2006 Ed.) 2.70.050 other tangible property employed by the supreme court or the administrative office of the courts in carrying out the powers, functions, and duties transferred shall be made available to the office of public defense. All funds, credits, or other assets held in connection with the powers, functions, and duties transferred shall be assigned to the office of public defense. (b) Any appropriations made to the supreme court or the administrative office of the courts for carrying out the powers, functions, and duties transferred shall, on June 6, 1996, be transferred and credited to the office of public defense. (c) Whenever any question arises as to the transfer of any personnel, funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned. (3) All employees of the supreme court or the administrative office of the courts engaged in performing the powers, functions, and duties transferred are transferred to the jurisdiction of the office of public defense. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the office of public defense to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service. (4) All rules and all pending business before the supreme court or the administrative office of the courts pertaining to the powers, functions, and duties transferred shall be continued and acted upon by the office of public defense. All existing contracts and obligations shall remain in full force and shall be performed by the office of public defense. (5) The transfer of the powers, duties, functions, and personnel of the supreme court or the administrative office of the courts shall not affect the validity of any act performed before June 6, 1996. (6) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification. (7) Nothing contained in this section may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the personnel board as provided by law. [2005 c 282 § 12; 1996 c 221 § 6.] [Title 2 RCW—page 61] Title 3 Title 3 DISTRICT COURTS—COURTS OF LIMITED JURISDICTION Chapters 3.02 3.20 3.30 3.34 3.38 3.42 3.46 3.50 3.54 3.58 3.62 3.66 3.70 3.72 3.74 Courts of limited jurisdiction. Venue. District courts. District judges. District court districts. District court commissioners. Municipal departments. Municipal courts—Alternate provision. Clerks and deputy clerks. Salaries and expenses. Income of court. Jurisdiction and venue. Magistrates’ association. Youth court. Miscellaneous. Rules of court: Rules for Courts of Limited Jurisdiction—See Rules of Court, Part V. District courts—Civil procedure: Title 12 RCW. superior court, the procedure for which may be established by supreme court rule. [1980 c 162 § 2.] Effective dates, savings—Severability—1980 c 162: See notes following RCW 3.02.010. 3.02.030 3.02.030 Record of proceedings. The supreme court may, by court rule, establish a method of making a record of the proceedings of a court of limited jurisdiction for purposes of review. [1980 c 162 § 3.] Effective dates, savings—Severability—1980 c 162: See notes following RCW 3.02.010. 3.02.040 3.02.040 Electronic recording equipment. The administrator for the courts shall supervise the selection, installation, and operation of any electronic recording equipment in courts of limited jurisdiction. [1980 c 162 § 4.] Effective dates, savings—Severability—1980 c 162: See notes following RCW 3.02.010. Justice or constable levying demand or promising reward: RCW 9.12.020. Municipal courts, cities over four hundred thousand: Chapter 35.20 RCW. Persons convicted in district court may be placed under supervision of county probation officer: RCW 9.92.060, 9.95.210. Public bodies may retain collection agencies to collect public debts—Fees: RCW 19.16.500. Small claims department: Chapter 12.40 RCW. Chapter 3.02 Chapter 3.02 RCW COURTS OF LIMITED JURISDICTION Sections 3.02.010 3.02.020 3.02.030 3.02.040 3.02.045 3.02.050 3.02.060 Court of limited jurisdiction defined. Review of proceedings. Record of proceedings. Electronic recording equipment. Use of collection agencies and attorneys to collect unpaid amounts—Interest to agency authorized—Credit or debit card use—Assessment of amounts paid for collection as court costs. Discovery rules in civil cases. Judge pro tempore appointments. 3.02.010 3.02.010 Court of limited jurisdiction defined. For purposes of this chapter, a court of limited jurisdiction is any court organized under Titles 3, 35, or 35A RCW. [1980 c 162 § 1.] Effective dates, savings—1980 c 162: "Sections 1 through 4 of this 1980 act shall take effect on January 1, 1981, and shall apply to civil or criminal actions commenced on or after January 1, 1981. Sections 8 and 9 of this 1980 act shall take effect on May 1, 1980." [1980 c 162 § 13.] Severability—1980 c 162: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1980 c 162 § 12.] 3.02.020 3.02.020 Review of proceedings. Review of the proceedings in a court of limited jurisdiction shall be by the (2006 Ed.) 3.02.045 3.02.045 Use of collection agencies and attorneys to collect unpaid amounts—Interest to agency authorized— Credit or debit card use—Assessment of amounts paid for collection as court costs. (1) Courts of limited jurisdiction may use collection agencies under chapter 19.16 RCW for purposes of collecting unpaid penalties on infractions, criminal fines, costs, assessments, civil judgments, or forfeitures that have been imposed by the courts. Courts of limited jurisdiction may enter into agreements with one or more attorneys or collection agencies for collection of outstanding penalties, fines, costs, assessments, and forfeitures. These agreements may specify the scope of work, remuneration for services, and other charges deemed appropriate. Such agreements may authorize collection agencies to retain all or any portion of the interest collected on these accounts. (2) Courts of limited jurisdiction may use credit cards or debit cards for purposes of billing and collecting unpaid penalties, fines, costs, assessments, and forfeitures so imposed. Courts of limited jurisdiction may enter into agreements with one or more financial institutions for the purpose of the collection of penalties, fines, costs, assessments, and forfeitures. The agreements may specify conditions, remuneration for services, and other charges deemed appropriate. (3) Servicing of delinquencies by collection agencies or by collecting attorneys in which the court retains control of its delinquencies shall not constitute assignment of debt. (4) For purposes of this section, the term debt shall include penalties, fines, costs, assessments, or forfeitures imposed by the courts. (5) The court may assess as court costs the moneys paid for remuneration for services or charges paid to collecting attorneys, to collection agencies, or, in the case of credit cards, to financial institutions. [1995 c 291 § 1; 1995 c 38 § 1; 1994 c 301 § 1; 1987 c 266 § 1.] [Title 3 RCW—page 1] 3.02.050 Title 3 RCW: District Courts—Courts of Limited Jurisdiction Reviser’s note: This section was amended by 1995 c 38 § 1 and by 1995 c 291 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section pursuant to RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Acts of municipal officers ratified and confirmed—1995 c 38: "Acts of municipal officers before July 23, 1995, that are consistent with its terms, including, but not limited to, acts consistent with chapter 301, Laws of 1994, are ratified and confirmed." [1995 c 38 § 12.] 3.02.050 Discovery rules in civil cases. By January 1, 1982, the supreme court shall adopt rules providing for discovery in civil cases in the courts of limited jurisdiction. [1981 c 331 § 8.] 3.30.050 3.30.060 3.30.070 3.30.080 3.30.090 Departments. Adjournments. Records. Rules. Violations bureau. Rules of court: See Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ). County probation services for persons convicted in district court: RCW 9.92.060, 9.95.210, 36.01.070. 3.02.050 Court Congestion Reduction Act of 1981—Purpose—Severability—1981 c 331: See notes following RCW 2.32.070. 3.02.060 Judge pro tempore appointments. A judge pro tempore may be authorized under RCW 3.50.090 or 35.20.200 whenever a judge of the municipal court serves on a judicial commission, board, or committee established by the legislature or the chief justice of the supreme court. The judge pro tempore shall be compensated as specified in RCW 3.50.090 or 35.20.200. [2000 c 165 § 2.] 3.02.060 Chapter 3.20 RCW VENUE Chapter 3.20 (Formerly: Jurisdiction and venue) Sections 3.20.100 Change of venue—Affidavit of prejudice. District courts, civil procedure: Title 12 RCW. 3.20.100 Change of venue—Affidavit of prejudice. If, previous to the commencement of any trial before a justice of the peace, the defendant, his attorney or agent, shall make and file with the justice an affidavit that the deponent believes that the defendant cannot have an impartial trial before such justice, it shall be the duty of the justice to forthwith transmit all papers and documents belonging to the case to the next nearest justice of the peace in the same county, who is not of kin to either party, sick, absent from the county, or interested in the result of the action, either as counsel or otherwise. The justice to whom such papers and documents are so transmitted shall proceed as if the suit had been instituted before him. Distance, as contemplated by this section, shall mean to be by the nearest traveled route. The costs of such change of venue shall abide the result of the suit. In precincts, and incorporated cities and towns where there are two or more justices of the peace, any one of them shall be considered the next nearest justice of the peace. [1943 c 126 § 1; 1881 p 8 §§ 2, 3; Code 1881 § 1938; 1867 p 88 § 2; Rem. Supp. 1943 § 1774.] 3.20.100 Chapter 3.30 Chapter 3.30 RCW DISTRICT COURTS Sections 3.30.010 3.30.015 3.30.020 3.30.030 3.30.040 Definitions. Construction of "justices of the peace," "justice courts," "justice of the peace courts." Application of chapters 3.30 through 3.74 RCW. Nomenclature for judges and courts. Sessions. [Title 3 RCW—page 2] 3.30.010 Definitions. As used in this chapter unless the context clearly requires otherwise: "City" means an incorporated city or town. "Department" means an administrative unit of a district court established for the orderly and efficient administration of business and may include, without being limited in scope thereby, a unit or units for determining traffic cases, violations of city ordinances, violations of state law, criminal cases, civil cases, or jury cases. "Population" means the latest population of the judicial district of each county as estimated and certified by the office of financial management. The office of financial management, on or before May 1, 1970 and on or before May 1st each four years thereafter, shall estimate and certify to the county legislative authority the population of each judicial district of each county. [1984 c 258 § 3; 1979 c 151 § 1; 1967 ex.s. c 42 § 1; 1961 c 299 § 1.] 3.30.010 Court Improvement Act of 1984—Effective dates—1984 c 258: "(1) Sections 1 through 210, 511, 601 through 808, and 901 of this act shall take effect on July 1, 1984. (2) Sections 501 through 510 and 512 through 524 of this act shall take effect on January 1, 1985. (3) Sections 301 through 405 of this act shall take effect on July 1, 1985." [1984 c 258 § 902.] Court Improvement Act of 1984—Severability—1984 c 258: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1984 c 258 § 903.] Short title—1984 c 258: "This act may be known and cited as the court improvement act of 1984." [1984 c 258 § 1.] Savings—1967 ex.s. c 42: "All matters relating to functions transferred under the provisions of this 1967 amendatory act which at the time of transfer have not been completed may be undertaken and completed by the director of the planning and community affairs agency, who is authorized, empowered, and directed to promulgate any and all orders, rules and regulations necessary to accomplish this purpose." [1967 ex.s. c 42 § 4.] The planning and community affairs agency has been redesignated the department of community, trade, and economic development. See RCW 43.330.020. Effective date—1967 ex.s. c 42: "This 1967 amendatory act shall take effect on July 1, 1967." [1967 ex.s. c 42 § 5.] Population determinations, office of financial management: Chapter 43.62 RCW. 3.30.015 Construction of "justices of the peace," "justice courts," "justice of the peace courts." All references to justices of the peace in other titles of the Revised Code of Washington shall be construed as meaning district judges. All references to justice courts or justice of the peace courts in other titles of the Revised Code of Washington shall be construed as meaning district courts. [1984 c 258 § 90.] 3.30.015 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.30.020 Application of chapters 3.30 through 3.74 RCW. The provisions of chapters 3.30 through 3.74 RCW shall apply to each county with a population of two hundred 3.30.020 (2006 Ed.) District Judges ten thousand or more: PROVIDED, That any city having a population of more than four hundred thousand may by resolution of its legislative body elect to continue to operate a municipal court pursuant to the provisions of chapter 35.20 RCW, as if chapters 3.30 through 3.74 RCW had never been enacted: PROVIDED FURTHER, That if a city elects to continue its municipal court pursuant to this section, the number of district judges allocated to the county in RCW 3.34.010 shall be reduced by two and the number of full time district judges allocated by RCW 3.34.020 to the district in which the city is situated shall also be reduced by two. The provisions of chapters 3.30 through 3.74 RCW may be made applicable to any county with a population of less than two hundred ten thousand upon a majority vote of its county legislative authority. [1991 c 363 § 4; 1987 c 202 § 110; 1961 c 299 § 2.] Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. Intent—1987 c 202: See note following RCW 2.04.190. Municipal courts in cities of over four hundred thousand: Chapter 35.20 RCW. 3.30.030 3.30.030 Nomenclature for judges and courts. The judges of each district court district shall be the justices of the peace of the district elected or appointed as provided in chapters 3.30 through 3.74 RCW. Such courts shall alternately be referred to as district courts and the judges thereof as district judges. [1984 c 258 § 4; 1971 c 73 § 1; 1961 c 299 § 3.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.30.040 3.30.040 Sessions. The district courts shall be open except on nonjudicial days. Sessions of the court shall be held at such places as shall be provided by the district court districting plan. The court shall sit as often as business requires in each city of the district which provides suitable courtroom facilities, to hear causes in which such city is the plaintiff. [1984 c 258 § 5; 1961 c 299 § 4.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.30.050 3.30.050 Departments. Each court may be organized in a manner consistent with the departments created by the districting plan. [1984 c 258 § 6; 1971 c 73 § 2; 1961 c 299 § 5.] Chapter 3.34 3.30.080 Rules. The supreme court may adopt rules of procedure for district courts. A district court may adopt local rules of procedure which are not inconsistent with state law or with the rules adopted by the supreme court. The rules for a county with a single district and multiple facilities may include rules to provide where cases shall be filed and where cases shall be heard. If the rules of the supreme court authorized under this section are adopted, all procedural laws in conflict with the rules shall be of no effect. [1989 c 227 § 5; 1984 c 258 § 7; 1961 c 299 § 8.] 3.30.080 Intent—1989 c 227: See note following RCW 3.38.070. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.30.090 Violations bureau. A violations bureau may be established by any city or district court having jurisdiction of traffic cases to assist in processing traffic cases. As designated by written order of the court having jurisdiction of traffic cases, specific offenses under city ordinance, county resolution, or state law may be processed by such bureau. Such bureau may be authorized to receive the posting of bail for such specified offenses, and, as authorized by the court order, to accept forfeiture of bail and payment of monetary penalties. The court order shall specify the amount of bail to be posted and shall also specify the circumstances or conditions which will require an appearance before the court. Such bureau, upon accepting the prescribed bail, shall issue a receipt to the alleged violator, which receipt shall bear a legend informing him of the legal consequences of bail forfeiture. The bureau shall transfer daily to the clerk of the proper department of the court all bail posted for offenses where forfeiture is not authorized by the court order, as well as copies of all receipts. All forfeitures or penalties paid to a violations bureau for violations of municipal ordinances shall be placed in the city general fund or such other fund as may be prescribed by ordinance. All forfeitures or penalties paid to a violations bureau for violations of state laws or county resolutions shall be remitted at least monthly to the county treasurer for deposit in the current expense fund. Employees of violations bureaus of a city shall be city employees under any applicable municipal civil service system. [1979 ex.s. c 136 § 15; 1971 c 73 § 4; 1961 c 299 § 9.] 3.30.090 Effective date—Severability—1979 ex.s. c 136: See notes following RCW 46.63.010. Chapter 3.34 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Chapter 3.34 RCW DISTRICT JUDGES Sections 3.30.060 3.30.060 Adjournments. Adjournments from day to day, or from time to time, are to be construed as recesses in the sessions, and shall not prevent the court from sitting at any time. [1961 c 299 § 6.] 3.30.070 3.30.070 Records. The clerk of each district court shall keep uniform records of each case filed and the proceedings had therein including an accounting for all funds received and disbursed. Financial reporting shall be in such form as may be prescribed by the state auditor. The form of other records may be prescribed by the supreme court. [1995 c 301 § 30; 1971 c 73 § 3; 1961 c 299 § 7.] (2006 Ed.) 3.34.010 3.34.020 3.34.025 3.34.040 3.34.050 3.34.060 3.34.070 3.34.080 3.34.090 3.34.100 3.34.110 3.34.120 3.34.130 3.34.140 3.34.150 District judges—Number for each county. District judges—Number—Changes. District judge positions—Approval and agreement. District judges—Full time—Other. District judges—Election. District judges—Eligibility and qualifications. District judges—Term of office. Oath—District judges—Court commissioners. Bonds—Insurance as reimbursable expense. District judges—Vacancies—Remuneration. District judges—Disqualification. District judges—Disqualification of partners. District judges pro tempore—Reduction in salary of replaced judges—Exception—Reimbursement of counties. Exchange of district judges—Reimbursement for expenses. Presiding judge. [Title 3 RCW—page 3] 3.34.010 Title 3 RCW: District Courts—Courts of Limited Jurisdiction 3.34.010 3.34.010 District judges—Number for each county. The number of district judges to be elected in each county shall be: Adams, two; Asotin, one; Benton, three; Chelan, two; Clallam, two; Clark, six; Columbia, one; Cowlitz, two; Douglas, one; Ferry, one; Franklin, one; Garfield, one; Grant, two; Grays Harbor, two; Island, one; Jefferson, one; King, twenty-one; Kitsap, four; Kittitas, two; Klickitat, two; Lewis, two; Lincoln, one; Mason, one; Okanogan, two; Pacific, two; Pend Oreille, one; Pierce, eleven; San Juan, one; Skagit, two; Skamania, one; Snohomish, eight; Spokane, ten; Stevens, one; Thurston, three; Wahkiakum, one; Walla Walla, two; Whatcom, two; Whitman, one; Yakima, four. This number may be increased only as provided in RCW 3.34.020. [2005 c 91 § 1; 2003 c 97 § 1; 2002 c 138 § 1; 1998 c 64 § 1; 1995 c 168 § 1; 1994 c 111 § 1; 1991 c 354 § 1; 1989 c 227 § 6; 1987 c 202 § 111; 1975 1st ex.s. c 153 § 1; 1973 1st ex.s. c 14 § 1; 1971 ex.s. c 147 § 1; 1970 ex.s. c 23 § 1; 1969 ex.s. c 66 § 1; 1965 ex.s. c 110 § 5; 1961 c 299 § 10.] District judge position for Clark county—2005 c 91: See note following RCW 3.34.025. Effective date—2003 c 97: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 7, 2003]." [2003 c 97 § 6.] Effective date—1995 c 168: "This is act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [May 1, 1995]." [1995 c 168 § 2.] Intent—1989 c 227: See note following RCW 3.38.070. Intent—1987 c 202: See note following RCW 2.04.190. 3.34.020 3.34.020 District judges—Number—Changes. (1) Any change in the number of full and part-time district judges after January 1, 1992, shall be determined by the legislature after receiving a recommendation from the supreme court. The supreme court shall make its recommendations to the legislature based on an objective workload analysis that takes into account available judicial resources and the caseload activity of each court. (2) The administrator for the courts, under the supervision of the supreme court, may consult with the board of judicial administration and the district and municipal court judge’s association in developing the procedures and methods of applying the objective workload analysis. (3) For each recommended change from the number of full and part-time district judges in any county as of January 1, 1992, the administrator for the courts, under the supervision of the supreme court, shall complete a judicial impact note detailing any local or state cost associated with such recommended change. (4) If the legislature approves an increase in the base number of district judges in any county as of January 1, 1992, such increase in the base number of district judges and all related costs may be paid for by the county from moneys provided under RCW 82.14.310, and any such costs shall be deemed to be expended for criminal justice purposes as provided in *RCW 82.14.315, and such expenses shall not constitute a supplanting of existing funding. (5)(a) A county legislative authority that desires to change the number of full or part-time district judges from the base number on January 1, 1992, must first request the assistance of the supreme court. The administrator for the [Title 3 RCW—page 4] courts, under the supervision of the supreme court, shall conduct an objective workload analysis and make a recommendation of its findings to the legislature for consideration as provided in this section. Changes in the number of district court judges may only be made by the legislature in a year in which the quadrennial election for district court judges is not held. (b) The legislative authority of any county may change a part-time district judge position to a full-time position. [2003 c 97 § 2; 2002 c 83 § 1; 1997 c 41 § 3; 1991 c 313 § 2; 1987 c 202 § 112; 1984 c 258 § 8; 1982 c 29 § 1; 1973 1st ex.s. c 14 § 2; 1970 ex.s. c 23 § 2; 1969 ex.s. c 66 § 7; 1961 c 299 § 11.] *Reviser’s note: RCW 82.14.315 expired July 1, 1991. Effective date—2003 c 97: See note following RCW 3.34.010. Intent—1987 c 202: See note following RCW 2.04.190. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.34.025 3.34.025 District judge positions—Approval and agreement. Any additional district judge positions created under RCW 3.34.020 shall be effective only if the legislative authority of the affected county documents its approval of any additional positions and its agreement that it will pay out of county funds, without reimbursement from the state, the expenses of such additional judicial positions as provided by statute. The additional expenses include, but are not limited to, expenses incurred for court facilities. The legislative authority of any such county may, at its discretion, phase in any judicial positions over a period of time not to exceed two years from the effective date of the additional district judge positions. [1991 c 313 § 3.] District judge position for Clark county—2005 c 91: "For the purposes of RCW 3.34.025, the district judge position for Clark county created in chapter 97, Laws of 2003, is hereby re-created as of July 24, 2005." [2005 c 91 § 2.] 3.34.040 3.34.040 District judges—Full time—Other. A district judge serving a district having a population of forty thousand or more persons, and a district judge receiving a salary equal to the maximum salary set by the salary commission under RCW 3.58.020 for district judges shall be deemed full time judges and shall devote all of their time to the office and shall not engage in the practice of law. Other judges shall devote sufficient time to the office to properly fulfill the duties thereof and may engage in other occupations but shall maintain a separate office for private business and shall not use for private business the services of any clerk or secretary paid for by the county or office space or supplies furnished by the judicial district. [1991 c 338 § 2; 1984 c 258 § 10; 1983 c 195 § 1; 1974 ex.s. c 95 § 2; 1971 ex.s. c 147 § 2; 1961 c 299 § 13.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.34.050 3.34.050 District judges—Election. At the general election in November 1962 and quadrennially thereafter, there shall be elected by the voters of each district court district the number of judges authorized for the district by the district court districting plan. Judges shall be elected for each district and electoral district, if any, by the qualified electors (2006 Ed.) District Judges of the district in the same manner as judges of courts of record are elected, except as provided in *chapter 29.21 RCW. Not less than ten days before the time for filing declarations of candidacy for the election of judges for districts entitled to more than one judge, the county auditor shall designate each such office of district judge to be filled by a number, commencing with the number one and numbering the remaining offices consecutively. At the time of the filing of the declaration of candidacy, each candidate shall designate by number which one, and only one, of the numbered offices for which he or she is a candidate and the name of the candidate shall appear on the ballot for only the numbered office for which the candidate filed a declaration of candidacy. [1998 c 19 § 2; 1989 c 227 § 3; 1984 c 258 § 11; 1975-’76 2nd ex.s. c 120 § 8; 1961 c 299 § 14.] *Reviser’s note: Chapter 29.21 RCW was recodified as chapter 29A.52 RCW pursuant to 2003 c 111 § 2401, effective July 1, 2004. Intent—1989 c 227: See note following RCW 3.38.070. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.34.110 3.34.090 3.34.090 Bonds—Insurance as reimbursable expense. The county legislative authority shall provide for the bonding of each district judge, district judge pro tempore, district court commissioner, clerk of the district court, and court employee, at the expense of the county, in such amount as the county legislative authority shall prescribe, conditioned that each such person will pay over according to law all moneys which shall come into the person’s custody in causes filed in the district court. Such bond shall not be less than the maximum amount of money liable to be under the control, at any one time, of each such person in the performance of his or her duties. Such bond may be a blanket bond. If the county obtains errors and omissions insurance covering district court personnel, the costs of such coverage shall be a reimbursable expense pursuant to RCW 3.62.050 as now or hereafter amended. [1984 c 258 § 15; 1971 c 73 § 5; 1961 c 299 § 18.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.34.100 Severability—1975-’76 2nd ex.s. c 120: See note following RCW 29A.52.210. 3.34.060 3.34.060 District judges—Eligibility and qualifications. To be eligible to file a declaration of candidacy for and to serve as a district court judge, a person must: (1) Be a registered voter of the district court district and electoral district, if any; and (2) Be either: (a) A lawyer admitted to practice law in the state of Washington; or (b) In those districts having a population of less than five thousand persons, a person who has taken and passed by January 1, 2003, the qualifying examination for a lay candidate for judicial officer as provided by rule of the supreme court. [2002 c 136 § 1; 1991 c 361 § 1; 1989 c 227 § 4; 1984 c 258 § 12; 1961 c 299 § 15.] Intent—1989 c 227: See note following RCW 3.38.070. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.34.070 3.34.070 District judges—Term of office. Every district judge shall hold office for a term of four years from and after the second Monday in January next succeeding his or her selection and continuing until a successor is elected and qualified. [1984 c 258 § 13; 1961 c 299 § 16.] 3.34.100 District judges—Vacancies—Remuneration. If a district judge dies, resigns, is convicted of a felony, ceases to reside in the district, fails to serve for any reason except temporary disability, or if his or her term of office is terminated in any other manner, the office shall be deemed vacant. The county legislative authority shall fill all vacancies by appointment and the judge thus appointed shall hold office until the next general election and until a successor is elected and qualified. However, if a vacancy in the office of district court judge occurs and the total number of district court judges remaining in the county is equal to or greater than the number of district court judges authorized in RCW 3.34.010 then the position shall remain vacant. District judges shall be granted sick leave in the same manner as other county employees. A district judge may receive when vacating office remuneration for unused accumulated leave and sick leave at a rate equal to one day’s monetary compensation for each full day of accrued leave and one day’s monetary compensation for each four full days of accrued sick leave, the total remuneration for leave and sick leave not to exceed the equivalent of thirty days’ monetary compensation. [2003 c 97 § 3; 1992 c 76 § 1; 1984 c 258 § 16; 1961 c 299 § 19.] Effective date—2003 c 97: See note following RCW 3.34.010. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.34.110 3.34.080 Oath—District judges—Court commissioners. Each district judge, district judge pro tempore and district court commissioner shall, before entering upon the duties of office, take an oath to support the Constitution of the United States and the Constitution and laws of the state of Washington, and to perform the duties of the office faithfully and impartially and to the best of his or her ability. [1984 c 258 § 14; 1961 c 299 § 17.] 3.34.110 District judges—Disqualification. A district judge shall not act as judge in any of the following cases: (1) In an action to which the judge is a party, or in which the judge is directly interested, or in which the judge has been an attorney for a party. (2) When the judge or one of the parties believes that the parties cannot have an impartial trial before the judge. Only one change of judges shall be allowed each party under this subsection. When a judge is disqualified under this section, the case shall be heard before another judge or judge pro tempore of the same county. [1984 c 258 § 17; 1961 c 299 § 20.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.34.080 (2006 Ed.) [Title 3 RCW—page 5] 3.34.120 Title 3 RCW: District Courts—Courts of Limited Jurisdiction 3.34.120 3.34.120 District judges—Disqualification of partners. The partner and associates of a judge who is a lawyer shall not practice law before the judge. [1984 c 258 § 18; 1961 c 299 § 21.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.34.130 3.34.130 District judges pro tempore—Reduction in salary of replaced judges—Exception—Reimbursement of counties. (1) Each district court shall designate one or more persons as judge pro tempore who shall serve during the temporary absence, disqualification, or incapacity of a district judge or to serve as an additional judge for excess caseload or special set cases. The qualifications of a judge pro tempore shall be the same as for a district judge, except that with respect to RCW 3.34.060(1), the person appointed need only be a registered voter of the state. A district that has a population of not more than ten thousand and that has no person available who meets the qualifications under *RCW 3.34.060(2) (a) or (b), may appoint as a pro tempore judge a person who has taken and passed the qualifying examination for the office of district judge as is provided by rule of the supreme court. A judge pro tempore may sit in any district of the county for which he or she is appointed. A judge pro tempore shall be paid the salary authorized by the county legislative authority. (2) For each day that a judge pro tempore serves in excess of thirty days during any calendar year, the annual salary of the district judge in whose place the judge pro tempore serves shall be reduced by an amount equal to one-two hundred fiftieth of such salary: PROVIDED, That each full time district judge shall have up to fifteen days annual leave without reduction for service on judicial commissions established by the legislature or the chief justice of the supreme court. No reduction in salary shall occur when a judge pro tempore serves: (a) While a district judge is using sick leave granted in accordance with RCW 3.34.100; (b) While a district court judge is disqualified from serving following the filing of an affidavit of prejudice; (c) As an additional judge for excess case load or special set cases; or (d) While a district judge is otherwise involved in administrative, educational, or judicial functions related to the performance of the judge’s duties: PROVIDED, That the appointment of judge pro tempore authorized under subsection (2)(c) and (d) of this section is subject to an appropriation for this purpose by the county legislative authority. (3) The legislature may appropriate money for the purpose of reimbursing counties for the salaries of judges pro tempore for certain days in excess of thirty worked per year that the judge pro tempore was required to work as the result of service by a judge on a commission as authorized under subsection (2) of this section. No later than September 1 of each year, each county treasurer shall certify to the administrator for the courts for the year ending the preceding June 30, the number of days in excess of thirty that any judge pro tempore was required to work as the result of service by a judge on a commission as authorized under subsection (2) of this section. Upon receipt of the certification, the administrator for the courts shall reimburse the county from money appro[Title 3 RCW—page 6] priated for that purpose. [1996 c 16 § 1; 1994 c 18 § 1; 1993 c 330 § 1; 1986 c 161 § 4; 1984 c 258 § 302; 1984 c 258 § 19; 1983 c 195 § 2; 1981 c 331 § 9; 1961 c 299 § 22.] *Reviser’s note: RCW 3.34.060 was amended by 2002 c 136 § 1, deleting subsection (2)(b). Severability—1986 c 161: See note following RCW 43.03.010. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Intent—1984 c 258: See note following RCW 3.46.120. Court Congestion Reduction Act of 1981—Purpose—Severability—1981 c 331: See notes following RCW 2.32.070. 3.34.140 3.34.140 Exchange of district judges—Reimbursement for expenses. Any district judge may hold a session in any district in the state, at the request of the judge or majority of judges in the district if the visiting judge determines that the state of business in his or her district allows the judge to be absent. The county legislative authority in which the district court is located shall first approve the temporary absence and the judge pro tempore shall not be required to serve during the judge’s absence. A visiting judge shall be entitled to reimbursement for subsistence, lodging, and travel expenses in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060 as now or hereafter amended while so acting, to be paid by the visited district. These expenses shall not be paid to the visiting judge unless the legislative authority of the county in which the visited district is located has approved the payment before the visit. [1984 c 258 § 20; 1981 c 186 § 5; 1961 c 299 § 23.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.34.150 3.34.150 Presiding judge. If a district has more than one judge, the supreme court may by rule provide for the manner of selection of one of the judges to serve as presiding judge and prescribe the presiding judge’s duties. If a county has multiple districts or has one district with multiple electoral districts, the supreme court may by rule provide for the manner of selection of one of the judges to serve as presiding judge and prescribe the presiding judge’s duties. [1989 c 227 § 7; 1984 c 258 § 21; 1961 c 299 § 24.] Intent—1989 c 227: See note following RCW 3.38.070. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Chapter 3.38 Chapter 3.38 RCW DISTRICT COURT DISTRICTS Sections 3.38.010 3.38.020 3.38.022 3.38.030 3.38.031 3.38.040 3.38.050 3.38.060 3.38.070 3.38.080 Districting committee—Membership. Districting committee—Duties—Districting plan. Location of offices and courtrooms. Districting plan—Adoption. Districting plan—Transitional provisions. Districting plan—Amendment. District court districts—Standards. Joint district court districts. Separate electoral districts—Establishment. Separate electoral districts—Definition. 3.38.010 3.38.010 Districting committee—Membership. There is established in each county a district court districting committee composed of the following: (2006 Ed.) District Court Districts (1) The judge of the superior court, or, if there be more than one such judge, then one of the judges selected by that court; (2) The prosecuting attorney, or a deputy selected by the prosecuting attorney; (3) A practicing lawyer of the county selected by the president of the largest local bar association, if there be one, and if not, then by the county legislative authority; (4) A judge of a court of limited jurisdiction in the county selected by the president of the Washington state district and municipal court judges’ association; and (5) The mayor, or representative appointed by the mayor, of each city or town with a population of three thousand or more in the county; (6) One person to represent the cities and towns with populations of three thousand or less in the county, if any, to be selected by a majority vote of the mayors of those cities and towns with a population of less than three thousand. However, if there should not be a city in the county with a population of ten thousand or more, the mayor, or the mayor’s representative, of each city or town with a population of less than three thousand shall be a member; (7) The chair of the county legislative authority; and (8) The county auditor. [1995 c 37 § 1. Prior: 1994 c 81 § 1; 1994 c 32 § 2; 1984 c 258 § 22; 1961 c 299 § 25.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.38.020 3.38.020 Districting committee—Duties—Districting plan. The district court districting committee shall meet at the call of the prosecuting attorney to prepare or amend the plan for the districting of the county into one or more district court districts in accordance with the provisions of chapters 3.30 through 3.74 RCW. The plan shall include the following: (1) The boundaries of each district proposed to be established; (2) The number of judges to be elected in each district or electoral district, if any. In determining the number of judges to be elected, the districting committee shall consider the results of an objective workload analysis conducted by the administrator for the courts; (3) The location of the central office, courtrooms and records of each court; (4) The other places in the district, if any, where the court shall sit; (5) The number and location of district court commissioners to be authorized, if any; (6) The departments, if any, into which each district court shall be initially organized, including municipal departments provided for in chapter 3.46 RCW; (7) The name of each district; and (8) The allocation of the time and allocation of salary of each judge who will serve part time in a municipal department. [2003 c 97 § 4; 1984 c 258 § 23; 1965 ex.s. c 110 § 1; 1961 c 299 § 26.] Effective date—2003 c 97: See note following RCW 3.34.010. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. (2006 Ed.) 3.38.040 3.38.022 3.38.022 Location of offices and courtrooms. The districting plan may provide that the offices and courtrooms of more than one district may be in the same building: PROVIDED, That no office or courtroom of any district shall be located further than two miles outside the boundary of the district which it serves. [1984 c 258 § 24; 1963 c 213 § 1.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.38.030 3.38.030 Districting plan—Adoption. Upon receipt of the districting plan, the county legislative authority shall hold a public hearing, pursuant to the provisions of RCW 36.32.120(7), as now or hereafter amended. At the hearing, anyone interested in the plan may attend and be heard as to the convenience which will be afforded to the public by the plan, and as to any other matters pertaining thereto. If the county legislative authority finds that the plan proposed by the districting committee conforms to the standards set forth in chapters 3.30 through 3.74 RCW and is conducive to the best interests and welfare of the county as a whole it may adopt such plan. If the county legislative authority finds that the plan does not conform to the standards as provided in chapters 3.30 through 3.74 RCW, the county legislative authority may modify, revise or amend the plan and adopt such amended or revised plan as the county’s district court districting plan. The plan decided upon shall be adopted by the county legislative authority not later than six months after the county initially obtains a population of two hundred ten thousand or more or the adoption of the elective resolution. [1991 c 363 § 5; 1984 c 258 § 25; 1965 ex.s. c 110 § 2; 1961 c 299 § 27.] Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.38.031 3.38.031 Districting plan—Transitional provisions. As a part of the districting plan, the county legislative authority shall designate a date on which the terms of the district judges of the county shall end. For each judicial position under the districting plan, the county legislative authority shall appoint a person qualified under RCW 3.34.060 who shall take office on the date designated by the county legislative authority and shall serve until the next quadrennial election of district judges as provided in RCW 3.34.050. Pending cases, proceedings, and matters shall be transferred to the appropriate court as provided in RCW 3.74.900. [1984 c 258 § 26; 1965 ex.s. c 110 § 3.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.38.040 3.38.040 Districting plan—Amendment. (1) The districting committee may meet for the purpose of amending the districting plan at any time on call of the county legislative authority, the chairperson of the committee or a majority of its members. Amendments to the plan shall be submitted to the county legislative authority not later than March 15th of each year for adoption by the county legislative authority following the same procedure as with the original districting plan. Amendments shall be adopted not later than May 1st [Title 3 RCW—page 7] 3.38.050 Title 3 RCW: District Courts—Courts of Limited Jurisdiction following submission by the districting committee. Any amendment which would reduce the salary or shorten the term of any judge shall not be effective until the next regular election for district judge. All other amendments may be effective on a date set by the county legislative authority. (2) The districting committee shall meet within fortyfive days of the effective date of changes in the number of judges to be elected in each district court district, or electoral district, if any. Amendments to the plan concerning the number of judges to be elected in each district court district, or electoral district, if any, shall be submitted to the county legislative authority not later than ninety days after the effective date of changes in RCW 3.34.010, and the amendments shall be adopted not later than one hundred eighty days after the effective date of changes in RCW 3.34.010. [2003 c 97 § 5; 1984 c 258 § 27; 1969 ex.s. c 66 § 3; 1961 c 299 § 28.] Effective date—2003 c 97: See note following RCW 3.34.010. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. district but has multiple locations for courtrooms may establish separate electoral districts to provide for election of district court judges by subcounty local districts. In any county containing a city of more than four hundred thousand population, the legislative authority of such a county shall establish such separate electoral districts. The procedures in chapter 3.38 RCW for the establishment of district court districts apply to the establishment of separate electoral districts authorized by this section. [1990 c 257 § 1; 1989 c 227 § 2.] Intent—1989 c 227: "It is the intent of the legislature to continue to provide the option for local election of district court judges where a county district court with multiple courtrooms is unified into a single district court for operational and administrative purposes." [1989 c 227 § 1.] 3.38.080 3.38.080 Separate electoral districts—Definition. In any county in which separate electoral districts have been established pursuant to RCW 3.38.070, the term "district" also means "electoral district" for purposes of RCW 3.38.022, 3.38.050, and 3.38.060. [1990 c 257 § 2.] 3.38.050 3.38.050 District court districts—Standards. District court districts shall be established in accordance with the following standards: (1) Every part of the county shall be in some district. (2) The whole county may constitute one district. (3) There shall not be more districts than there are judges authorized for the county. (4) A district boundary shall not intersect the boundary of an election precinct. (5) A city shall not lie in more than one district. (6) Whenever a county is divided into more than one district, each district shall be so established as best to serve the convenience of the people of the district, considering the distances which must be traveled by parties and witnesses in going to and from the court and any natural barriers which may obstruct such travel. [1984 c 258 § 28; 1961 c 299 § 29.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.38.060 Joint district court districts. Joint districts may be established containing all or part of two or more counties. The county containing the largest portion of the population of a joint district shall be known as the "principal county" and each joint district shall be deemed to lie within the principal county for the purpose of chapters 3.30 through 3.74 RCW. A joint district may be established by resolution of one county concurred in by a resolution of each other county: PROVIDED, That the county legislative authority of a county containing the largest portion of the population of a city may include the portions of such city lying outside the county in a joint district without concurrence of the other counties. Elections of judges in joint districts shall be conducted and canvassed in the same manner as elections of superior court judges in joint judicial districts. [1984 c 258 § 29; 1961 c 299 § 30.] 3.38.060 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.38.070 3.38.070 Separate electoral districts—Establishment. A county legislative authority for a county that has a single [Title 3 RCW—page 8] Chapter 3.42 Chapter 3.42 RCW DISTRICT COURT COMMISSIONERS Sections 3.42.010 3.42.020 3.42.030 3.42.040 District court commissioners—Appointment—Qualifications—Term of office. Powers of commissioners. Transfer of cases to district judge. Compensation. 3.42.010 3.42.010 District court commissioners—Appointment—Qualifications—Term of office. When so authorized by the districting plan, one or more district court commissioners may be appointed in any district by the judges of the district. Each commissioner shall be a registered voter of the county in which the district or a portion thereof is located, and shall hold office at the pleasure of the appointing judges. Any person appointed as a commissioner authorized to hear or dispose of cases shall be a lawyer who is admitted to the practice of law in the state of Washington or who has passed the qualifying examination for lay judges as provided under RCW 3.34.060. [1984 c 258 § 30; 1980 c 162 § 7; 1961 c 299 § 31.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Severability—1980 c 162: See note following RCW 3.02.010. District court commissioners bond: RCW 3.34.090. oath: RCW 3.34.080. 3.42.020 3.42.020 Powers of commissioners. Each district court commissioner shall have such power, authority, and jurisdiction in criminal and civil matters as the appointing judges possess and shall prescribe. [1984 c 258 § 31; 1979 ex.s. c 136 § 16; 1961 c 299 § 32.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Effective date—Severability—1979 ex.s. c 136: See notes following RCW 46.63.010. 3.42.030 3.42.030 Transfer of cases to district judge. Any party may have a case transferred from a district court com(2006 Ed.) Municipal Departments missioner to a judge of the same district for hearing, by filing a motion for transfer as long as the motion is filed and called to the attention of the commissioner before any discretionary ruling has been made. The following are not considered discretionary rulings: (1) The arrangement of the calendar; (2) the setting of an action, motion, or proceeding for hearing or trial; (3) the arraignment of the accused; or (4) the fixing of bail. The commissioner shall forthwith transfer the case to the judge. [2000 c 164 § 1; 1984 c 258 § 32; 1961 c 299 § 33.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.42.040 3.42.040 Compensation. District court commissioners shall receive such compensation as the county legislative authority or city council shall provide. [1984 c 258 § 33; 1969 ex.s. c 66 § 4; 1961 c 299 § 34.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. District court commissioners salary: RCW 3.46.090 and 3.58.030. travel expenses: RCW 3.58.040. Chapter 3.46 Chapter 3.46 RCW MUNICIPAL DEPARTMENTS Sections 3.46.010 3.46.020 3.46.030 3.46.040 3.46.050 3.46.060 3.46.063 3.46.067 3.46.070 3.46.080 3.46.090 3.46.100 3.46.110 3.46.120 3.46.130 3.46.140 3.46.145 3.46.150 3.46.160 Municipal department authorized. Judges. Jurisdiction. Petition. Selection of full time judges. Selection of part time judges. Judicial positions—Filling—Circumstances permitted. Judges—Residency requirement. Election. Term and removal. Salary—City cost. Vacancy. Night sessions. Revenue—Disposition—Interest. Facilities. Personnel. Court commissioners. Termination of municipal department—Transfer agreement— Notice. City trial court improvement account—Contributions to account by city—Use of funds. Rules of court: See Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ). 3.46.010 3.46.010 Municipal department authorized. Any city may secure the establishment of a municipal department of the district court, to be designated "The Municipal Department of (city)." Such department may also be designated "The Municipal Court of (city)." [1984 c 258 § 72; 1961 c 299 § 35.] 3.46.063 application of the provision to other persons or circumstances is not affected." [1987 c 3 § 21.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.46.030 3.46.030 Jurisdiction. A municipal department shall have exclusive jurisdiction of matters arising from ordinances of the city, and no jurisdiction of other matters except as conferred by statute. A municipal department participating in the program established by the administrative office of the courts pursuant to RCW 2.56.160 shall have jurisdiction to take recognizance, approve bail, and arraign defendants held within its jurisdiction on warrants issued by any court of limited jurisdiction participating in the program. [2005 c 282 § 13; 2000 c 111 § 5; 1985 c 303 § 13; 1961 c 299 § 37.] 3.46.040 3.46.040 Petition. Establishment of a municipal department shall be initiated by a petition from the legislative body of the city to the county legislative authority. Such petition shall be filed not less than thirty days prior to February 1, 1962, or any subsequent year, and shall set forth: (1) The number of full time and part time judges required for the municipal department; (2) the amount of time for which a part time judge will be required for the municipal department; and (3) whether the full time judge or judges will be elected or appointed. In a petition filed subsequent to 1962 provision shall be made for temporary appointment of a municipal judge to fill each elective position until the next election for district judges. The petition shall be forthwith transmitted to the districting committee. The organization of the municipal department shall be incorporated into the districting plan. The districting committee in its plan shall designate the proportion of the salary of each judge serving as a part time municipal judge to be paid by the city, which shall be proportionate to the time of such judge allotted to the municipal department by the districting plan. A city may withdraw its petition any time prior to adoption of the districting plan by the county legislative authority, and thereupon the municipal department pursuant to this chapter shall not be established. [1984 c 258 § 74; 1961 c 299 § 38.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.46.050 3.46.050 Selection of full time judges. Each city may select its full time municipal judge or judges by election, or by appointment in such manner as the city legislative body determines: PROVIDED, That in cities having a population in excess of four hundred thousand, the municipal judges shall be elected. [1975 c 33 § 2; 1961 c 299 § 39.] Severability—1975 c 33: See note following RCW 35.21.780. 3.46.060 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.46.020 3.46.020 Judges. Each judge of a municipal department shall be a judge of the district court in which the municipal department is situated. Such judge shall be designated as a municipal judge. [1987 c 3 § 1; 1984 c 258 § 73; 1961 c 299 § 36.] 3.46.060 Selection of part time judges. In district court districts having more than one judge, appointment of part time municipal judges shall be made from the judges of the district by the mayor in such manner as the city legislative body shall determine. [1984 c 258 § 75; 1961 c 299 § 40.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.46.063 Severability—1987 c 3: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the (2006 Ed.) 3.46.063 Judicial positions—Filling—Circumstances permitted. Notwithstanding RCW 3.46.050 and 3.46.060, [Title 3 RCW—page 9] 3.46.067 Title 3 RCW: District Courts—Courts of Limited Jurisdiction judicial positions may be filled only by election under the following circumstances: (1) Each full-time equivalent judicial position shall be filled by election. This requirement applies regardless of how many judges are employed to fill the position. For purposes of this section, a full-time equivalent position is thirty-five or more hours per week of compensated time. (2) In any city with one or more full-time equivalent judicial positions, an additional judicial position or positions that is or are in combination more than one-half of a full-time equivalent position shall be filled by election. [1993 c 317 § 3.] Severability—Effective date—1993 c 317: See notes following RCW 3.50.810. 3.46.067 3.46.067 Judges—Residency requirement. A judge of a municipal department of a district court need not be a resident of the city in which the department is created, but must be a resident of the county in which the city is located. [1993 c 317 § 5.] Severability—Effective date—1993 c 317: See notes following RCW 3.50.810. 3.46.070 3.46.070 Election. In each district court district where an election is held for the position of municipal judge, the county auditor, prior to the date for filing declarations for the office of district judge, shall designate the proper number of municipal judge positions, commencing with number one, and if there is more than one municipal judge in any municipal department, one or more positions may, at the request of the legislative body of the city, be further designated as municipal traffic judge positions. Only voters of the city shall vote for municipal judges. [1984 c 258 § 76; 1961 c 299 § 41.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.46.080 3.46.080 Term and removal. A municipal judge shall serve in such capacity for his or her term as district judge and may be removed from so serving in the same manner and for the same reasons as he or she may be removed from the office of district judge. [1984 c 258 § 77; 1961 c 299 § 42.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.46.090 3.46.090 Salary—City cost. The salary of a full time municipal judge shall be paid wholly by the city. The salary of a district judge serving a municipal department part time shall be paid jointly by the county and the city in the same proportion as the time of the judge has been allocated to each. Salaries of court commissioners serving the municipal department shall be paid by the city. [1984 c 258 § 78; 1969 ex.s. c 66 § 5; 1961 c 299 § 43.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.46.100 3.46.100 Vacancy. A vacancy in a position of full time municipal judge shall be filled for the unexpired term by appointment in such manner as the city may determine. In districts having more than one judge, a vacancy in a position of part time municipal judge shall be filled for the unexpired [Title 3 RCW—page 10] term by appointment in such manner as the city shall determine from the judges of the district, including any judge appointed by the county commissioners to fill an unexpired term. [1984 c 258 § 79; 1961 c 299 § 44.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.46.110 3.46.110 Night sessions. A city may authorize its municipal department to hold night sessions. [1961 c 299 § 45.] 3.46.120 3.46.120 Revenue—Disposition—Interest. (1) All money received by the clerk of a municipal department including penalties, fines, bail forfeitures, fees and costs shall be paid by the clerk to the city treasurer. (2) Except as provided in RCW 10.99.080, the city treasurer shall remit monthly thirty-two percent of the noninterest money received under this section, other than for parking infractions, and certain costs to the state treasurer. "Certain costs" as used in this subsection, means those costs awarded to prevailing parties in civil actions under RCW 4.84.010 or 36.18.040, or those costs awarded against convicted defendants in criminal actions under RCW 10.01.160, 10.46.190, or 36.18.040, or other similar statutes if such costs are specifically designated as costs by the court and are awarded for the specific reimbursement of costs incurred by the state, county, city, or town in the prosecution of the case, including the fees of defense counsel. Money remitted under this subsection to the state treasurer shall be deposited as provided in RCW 43.08.250. (3) The balance of the noninterest money received under this section shall be retained by the city and deposited as provided by law. (4) Penalties, fines, bail forfeitures, fees, and costs may accrue interest at the rate of twelve percent per annum, upon assignment to a collection agency. Interest may accrue only while the case is in collection status. (5) Interest retained by the court on penalties, fines, bail forfeitures, fees, and costs shall be split twenty-five percent to the state treasurer for deposit in the public safety and education account as provided in RCW 43.08.250, twenty-five percent to the state treasurer for deposit in the judicial information system account as provided in RCW 2.68.020, twenty-five percent to the city general fund, and twenty-five percent to the city general fund to fund local courts. [2004 c 15 § 7; 1995 c 291 § 2; 1988 c 169 § 1; 1985 c 389 § 3; 1984 c 258 § 303; 1975 1st ex.s. c 241 § 4; 1961 c 299 § 46.] Intent—2004 c 15: See note following RCW 10.99.080. Effective date—1985 c 389: See note following RCW 27.24.070. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Legislative intent—1984 c 258 §§ 302-340: "It is the intent of the legislature to assure accountability, uniformity, economy, and efficiency in the collection and distribution by superior, district, and municipal courts of fees, fines, forfeitures, and penalties assessed and collected for violations of state statutes, and county, city, and town ordinances." [1984 c 258 § 301.] 3.46.130 3.46.130 Facilities. All courtrooms, offices, facilities and supplies for the operation of a municipal department shall be furnished by the city. [1961 c 299 § 47.] (2006 Ed.) Municipal Courts—Alternate Provision 3.46.140 3.46.140 Personnel. All such personnel shall be deemed employees of the city, shall be compensated wholly by the city, and shall be appointed under and subject to any applicable civil service laws and regulations. [1961 c 299 § 48.] Chapter 3.50 RCW MUNICIPAL COURTS—ALTERNATE PROVISION Chapter 3.50 (Formerly: Municipal departments—Alternate provision) Sections 3.50.003 3.50.005 3.46.145 3.46.145 Court commissioners. The provisions of chapter 3.42 RCW shall apply to this chapter 3.46 RCW. [1969 ex.s. c 66 § 6.] 3.46.150 3.46.150 Termination of municipal department— Transfer agreement—Notice. (1) Any city, having established a municipal department as provided in this chapter may, by written notice to the county legislative authority not less than one year prior to February 1st of the year in which all district court judges are subject to election, require the termination of the municipal department created pursuant to this chapter. A city may terminate a municipal department only at the end of a four-year judicial term. However, the city may not give the written notice required by this section unless the city has reached an agreement with the county under chapter 39.34 RCW under which the county is to be paid a reasonable amount for costs associated with prosecution, adjudication, and sentencing in criminal cases filed in district court as a result of the termination. The agreement shall provide for periodic review and renewal of the terms of the agreement. If the municipality and the county are unable to agree on the terms for renewal of the agreement, they shall be deemed to have entered into an agreement to submit the issue to arbitration under chapter 7.04A RCW. Pending conclusion of the arbitration proceeding, the terms of the agreement shall remain in effect. The municipality and the county have the same rights and are subject to the same duties as other parties who have agreed to submit to arbitration under chapter 7.04A RCW. (2) A county that wishes to terminate a municipal department of the district court must provide written notice to the city legislative authority at least one year prior to the date of the intended termination. [2005 c 433 § 33; 2001 c 68 § 2; 1984 c 258 § 210; 1961 c 299 § 49.] 3.50.007 3.50.010 3.50.020 3.50.030 3.50.040 3.50.050 3.50.055 3.50.057 3.50.060 3.50.070 3.50.075 3.50.080 3.50.090 3.50.093 3.50.095 3.50.097 3.50.100 3.50.110 3.50.115 3.50.125 3.50.135 3.50.300 3.50.320 3.50.330 3.50.340 3.50.355 3.50.425 3.50.430 3.50.440 3.50.450 3.50.480 Application—Captions not law—Savings—Effective date—2005 c 433: See RCW 7.04A.290 through 7.04A.310 and 7.04A.900. 3.50.800 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.50.805 3.46.160 3.46.160 City trial court improvement account— Contributions to account by city—Use of funds. Any city operating a municipal department under this chapter for which the state contributes to district or municipal court judges’ salaries under RCW 2.56.030 shall create a city trial court improvement account. An amount equal to one hundred percent of the state’s contribution received by the city for the payment of the city’s proportionate share of the district or municipal court judges’ salaries shall be deposited into the account. Money in the account shall be used to fund improvements to the municipal department’s staffing, programs, facilities, or services, as appropriated by the city legislative authority. [2005 c 457 § 2.] Intent—2005 c 457: See note following RCW 43.08.250. (2006 Ed.) 3.50.005 3.50.810 Definition. Legislative finding—Alternative court structure for cities and towns of four hundred thousand or less. Cities and towns of four hundred thousand or less to operate municipal court under this chapter or chapter 3.46 RCW— Municipal judges in office on July 1, 1984—Terms. Municipal court authorized in cities of four hundred thousand or less. Jurisdiction. Violations bureau for traffic cases—Disposition of moneys collected. Municipal judges—Appointed—Terms, qualifications—District judge as part-time municipal judge. Municipal judge may be elective position—Qualifications, term. Judicial positions—Filling—Circumstances permitted. Judges—Residency requirement. Termination of municipal court—Requirements—Establishment of court. Additional judges—Appointment, election. Court commissioners—Appointment—Qualification—Parttime appointed judge. Salaries of judges—Payment of court operating costs from city funds—Judges and employees as city employees. Judges pro tem. Municipal judge—Vacancy—Appointment. Municipal judge—Removal from office. Judge’s oath—Bonds. Revenue—Disposition—Interest. Sessions. Municipal court seal. Transfer within municipal court. Request for jury trial in civil cases—Exception—Fee—Juror compensation—Jury trials in criminal cases. Execution of sentence—Jail in lieu of fine and costs, computation. Suspension or deferral of sentence—Change of plea—Dismissal. Suspension or deferral of sentence—Continuing jurisdiction of court. Revocation of deferred or suspended sentence—Limitations— Termination of probation. Offender supervision by another state. Issuance of criminal process. Criminal prosecution in city’s name for violation of ordinances. Penalty if no other punishment prescribed. Pleadings, practice and procedure not provided for governed by district court law. City or town trial court improvement account—Contributions to account by city or town—Use of funds. Repeal of municipal criminal code—Agreement covering costs of handling resulting criminal cases—Arbitration— Renewal. Termination of municipal court—Agreement covering costs of handling resulting criminal cases—Arbitration—Repeal of municipal criminal code—Agreement—Arbitration— Repeal of a municipal crime equivalent to offense in RCW 46.63.020—Agreement—Arbitration. Termination of municipal court—Notice. Rules of court: See Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ). 3.50.003 Definition. "Mayor," as used in this chapter, means the chief administrative officer of the city. [1984 c 258 § 125.] 3.50.003 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.005 3.50.005 Legislative finding—Alternative court structure for cities and towns of four hundred thousand [Title 3 RCW—page 11] 3.50.007 Title 3 RCW: District Courts—Courts of Limited Jurisdiction or less. The legislature finds that there is a multitude of statutes governing the municipal courts of the state. This situation is confusing and misleading to attorneys, judges, court personnel, and others who work with the municipal courts. The legislature therefore finds that a reorganization of the municipal courts of the state would allow those courts to operate in a more effective and efficient manner. This chapter provides a court structure which may be used by cities and towns with a population of four hundred thousand or less which choose to operate under this chapter. [1984 c 258 § 101.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: "The enactment of sections 101 through 139 of this act shall not affect any case, proceeding, appeal, or other matter pending in any court operating under Title 35 or 35A RCW on the effective date of this act [July 1, 1984]. The enactment of sections 101 through 139 of this act shall not have the effect of terminating or in any way modifying any right or liability, civil or criminal, which may be in existence on the effective date of this act [July 1, 1984]." [1984 c 258 § 128.] 3.50.007 3.50.007 Cities and towns of four hundred thousand or less to operate municipal court under this chapter or chapter 3.46 RCW—Municipal judges in office on July 1, 1984—Terms. After January 1, 1985, cities and towns with a population of four hundred thousand or less which are operating a municipal court under Title 35 or 35A RCW shall operate the court pursuant to this chapter. In the alternative, a city or town may establish a municipal department of a district court under chapter 3.46 RCW. Municipal judges holding office on July 1, 1984, shall continue to hold office until expiration of their term or January 1, 1986, whichever occurs first. [1984 c 258 § 102.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.010 3.50.010 Municipal court authorized in cities of four hundred thousand or less. Any city or town with a population of four hundred thousand or less may by ordinance provide for an inferior court to be known and designated as a municipal court, which shall be entitled "The Municipal Court of . . . . . . . . . (insert name of city or town)", hereinafter designated and referred to as "municipal court", which court shall have jurisdiction and shall exercise all powers by this chapter declared to be vested in the municipal court, together with such other powers and jurisdiction as are generally conferred upon such court in this state either by common law or by express statute. [1984 c 258 § 103; 1961 c 299 § 50.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. recover license penalties or forfeitures declared or given by such ordinances or by state statutes. The municipal court shall also have the jurisdiction as conferred by statute. The municipal court is empowered to forfeit cash bail or bail bonds and issue execution thereon; and in general to hear and determine all causes, civil or criminal, including traffic infractions, arising under such ordinances and to pronounce judgment in accordance therewith. A municipal court participating in the program established by the administrative office of the courts pursuant to RCW 2.56.160 shall have jurisdiction to take recognizance, approve bail, and arraign defendants held within its jurisdiction on warrants issued by any court of limited jurisdiction participating in the program. [2005 c 282 § 14; 2000 c 111 § 6; 1985 c 303 § 14; 1984 c 258 § 104; 1979 ex.s. c 136 § 17; 1961 c 299 § 51.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. Effective date—Severability—1979 ex.s. c 136: See notes following RCW 46.63.010. 3.50.030 3.50.030 Violations bureau for traffic cases—Disposition of moneys collected. Every city or town may establish and operate under the supervision of the municipal court a violations bureau to assist the court in processing traffic cases. Each municipal court shall designate the specific traffic offenses and traffic infractions under city or town ordinances which may be processed by the violations bureau. A violations bureau may be authorized to process traffic infractions in conformity with chapter 46.63 RCW. A violations bureau may be authorized to receive the posting of bail for specified offenses and, to the extent authorized by court order, permitted to accept forfeiture of bail and payment of penalties. Any violations bureau, upon accepting the prescribed bail, shall issue a receipt therefor to the alleged violator, acknowledging the posting thereof and informing the accused of the legal consequences of bail forfeiture. Any person charged with any criminal traffic offense within the authority of the violations bureau may, upon signing a written appearance, a written plea of guilty and a written waiver of trial, pay to the violations bureau the fine established for the offense charged and costs and this shall have the same effect as a court conviction. All penalties and forfeitures paid to a violations bureau for the violation of municipal ordinance shall be placed in the city or town general fund or such other fund as may be prescribed by ordinance of the city or town or laws of the state of Washington. Any employees of an existing violations bureau of any city shall continue as city employees. [1984 c 258 § 105; 1979 ex.s. c 136 § 18; 1961 c 299 § 52.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.020 3.50.020 Jurisdiction. The municipal court shall have exclusive original jurisdiction over traffic infractions arising under city ordinances and exclusive original criminal jurisdiction of all violations of city ordinances duly adopted by the city in which the municipal court is located and shall have original jurisdiction of all other actions brought to enforce or [Title 3 RCW—page 12] Effective date—Severability—1979 ex.s. c 136: See notes following RCW 46.63.010. 3.50.040 3.50.040 Municipal judges—Appointed—Terms, qualifications—District judge as part-time municipal judge. Within thirty days after the effective date of the ordi(2006 Ed.) Municipal Courts—Alternate Provision nance creating the municipal court, the mayor of each city or town shall appoint a municipal judge or judges of the municipal court for a term of four years. The terms of judges serving on July 1, 1984, and municipal judges who are appointed to terms commencing before January 1, 1986, shall expire January 1, 1986. The terms of their successors shall commence on January 1, 1986, and on January 1 of each fourth year thereafter, pursuant to appointment or election as provided in this chapter. Appointments shall be made on or before December 1 of the year next preceding the year in which the terms commence. The legislative authority of a city or town that has the general power of confirmation over mayoral appointments shall have the power to confirm the appointment of a municipal judge. A person appointed as a full-time or part-time municipal judge shall be a citizen of the United States of America and of the state of Washington; and an attorney admitted to practice law before the courts of record of the state of Washington: PROVIDED, That in a municipality having a population less than five thousand persons, a person who has taken and passed by January 1, 2003, the qualifying examination for a lay candidate for judicial officer as provided by rule of the supreme court may be the judge. Any city or town shall have authority to appoint a district judge as its municipal judge when the municipal judge is not required to serve full time. In the event of the appointment of a district judge, the city or town shall pay a pro rata share of the salary. [2002 c 136 § 2; 1984 c 258 § 106; 1975-’76 2nd ex.s. c 35 § 1; 1961 c 299 § 53.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.050 3.50.050 Municipal judge may be elective position— Qualifications, term. The legislative authority of the city or town may, by ordinance, provide that the position of municipal judge within the city or town shall be an elective position. The ordinance shall provide for the qualifications of the municipal judge which shall be the same as the qualifications necessary for the appointment thereof; and further, shall provide that the municipal judge shall be elected in the same manner as other elective city officials are elected to office, and that the term of the municipal judge shall be for a term of four years commencing on January 1, 1986, and every four years thereafter. [1984 c 258 § 107; 1961 c 299 § 54.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.055 3.50.055 Judicial positions—Filling—Circumstances permitted. Notwithstanding RCW 3.50.040 and 3.50.050, judicial positions may be filled only by election under the following circumstances: (1) Each full-time equivalent judicial position shall be filled by election. This requirement applies regardless of how many judges are employed to fill the position. For purposes of this section, a full-time equivalent position is thirty-five or more hours per week of compensated time. (2006 Ed.) 3.50.075 (2) In any city with one or more full-time equivalent judicial positions, an additional judicial position or positions that is or are in combination more than one-half of a full-time equivalent position shall also be filled by election. [1993 c 317 § 4.] Severability—Effective date—1993 c 317: See notes following RCW 3.50.810. 3.50.057 3.50.057 Judges—Residency requirement. A judge of a municipal court need not be a resident of the city in which the court is created, but must be a resident of the county in which the city is located. [1993 c 317 § 6.] Severability—Effective date—1993 c 317: See notes following RCW 3.50.810. 3.50.060 3.50.060 Termination of municipal court—Requirements—Establishment of court. A city or town electing to establish a municipal court pursuant to this chapter may terminate such court by adoption of an appropriate ordinance. However no municipal court may be terminated unless the municipality has complied with RCW 3.50.805, 35.22.425, *35.23.595, **35.24.455, 35.27.515, 35.30.100, and 35A.11.200. A city or town newly establishing a municipal court pursuant to this chapter shall do so by adoption of an appropriate ordinance on or before December 1 of any year, to take effect January 1 of the following year. [1984 c 258 § 108; 1961 c 299 § 55.] Reviser’s note: *(1) RCW 35.23.595 was repealed by 1994 c 81 § 89. **(2) RCW 35.24.455 was recodified as RCW 35.23.555 pursuant to 1994 c 81 § 90. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.070 3.50.070 Additional judges—Appointment, election. Additional full or part time judges may be appointed or elected, as provided by ordinance of the legislative body of the city or town when public interest and the administration of justice makes such additional judge or judges necessary. [1984 c 258 § 109; 1961 c 299 § 56.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.075 3.50.075 Court commissioners—Appointment— Qualification—Part-time appointed judge. One or more court commissioners may be appointed by a judge of the municipal court. Each commissioner holds office at the pleasure of the appointing judge. A commissioner authorized to hear or dispose of cases must be a lawyer who is admitted to practice law in the state of Washington or a nonlawyer who has passed the qualifying examination for lay judges for courts of limited jurisdiction under RCW 3.34.060. A commissioner need not be a resident of the city or of the county in which the municipal court is created. When a court commissioner has not been appointed and the municipal court is presided over by a part-time appointed judge, the [Title 3 RCW—page 13] 3.50.080 Title 3 RCW: District Courts—Courts of Limited Jurisdiction judge need not be a resident of the city or of the county in which the municipal court is created. [1994 c 10 § 1.] Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.095 3.50.080 3.50.080 Salaries of judges—Payment of court operating costs from city funds—Judges and employees as city employees. Salaries of municipal court judges shall be fixed by ordinance. All costs of operating the municipal court, including but not limited to salaries of judges and court employees, dockets, books of records, forms, furnishings, and supplies, shall be paid wholly out of the funds of the city or town. The city shall provide a suitable place for holding court and pay all expenses of maintaining it. All employees of the municipal court shall, for all purposes, be deemed employees of the city or town. They shall be appointed by and serve at the pleasure of the court. [1984 c 258 § 111; 1961 c 299 § 57.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. Salaries of municipal judges in cities over 400,000: RCW 3.58.010 and 35.20.160. 3.50.090 3.50.090 Judges pro tem. The presiding municipal court judge may designate one or more persons as judges pro tem to serve in the absence or disability of the elected or duly appointed judges of the court, subsequent to the filing of an affidavit of prejudice, or in addition to the elected or duly appointed judges when the administration of justice and the accomplishment of the work of the court make it necessary. The qualifications of a judge pro tempore shall be the same as for judges as provided under RCW 3.50.040 except that a judge pro tempore need not be a resident of the city or county in which the municipal court is located. Judges pro tempore shall have all of the powers of the duly appointed or elected judges when serving as judges pro tempore of the court. Before entering on his or her duties, each judge pro tempore shall take, subscribe, and file an oath as is taken by a duly appointed or elected judge. Such pro tempore judges shall receive such compensation as shall be fixed by ordinance by the municipality in which the court is located and such compensation shall be paid by the municipality. [2000 c 55 § 1; 1984 c 258 § 112; 1961 c 299 § 58.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. Judges pro tempore appointments: RCW 3.02.060. 3.50.093 3.50.093 Municipal judge—Vacancy—Appointment. Any vacancy in the municipal court due to a death, disability, or resignation of a municipal court judge shall be filled by the mayor, for the remainder of the unexpired term. The appointment shall be subject to confirmation by the legislative authority of the city or town if the legislative authority has the general power of confirmation over mayoral appointments. The appointed judge shall be qualified to hold the position of judge of the municipal court as provided in this chapter. [1984 c 258 § 113.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. [Title 3 RCW—page 14] 3.50.095 Municipal judge—Removal from office. A municipal judge shall be removed only upon conviction of misconduct or malfeasance in office, or because of physical or mental disability rendering the judge incapable of performing the duties of the office. [1984 c 258 § 124.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.097 3.50.097 Judge’s oath—Bonds. Every judge of a municipal court, before entering upon the duties of the office, shall take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Washington, and that I will faithfully discharge the duties of the office of judge of the municipal court of the city of . . . . . . (naming such city) according to the best of my ability." The oath shall be filed in the office of the county auditor. The judge shall also give such bonds to the state and city for the faithful performance of the judge’s duties as may be by law or ordinance directed. [1984 c 258 § 110.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.100 3.50.100 Revenue—Disposition—Interest. (1) Costs in civil and criminal actions may be imposed as provided in district court. All fees, costs, fines, forfeitures and other money imposed by any municipal court for the violation of any municipal or town ordinances shall be collected by the court clerk and, together with any other noninterest revenues received by the clerk, shall be deposited with the city or town treasurer as a part of the general fund of the city or town, or deposited in such other fund of the city or town, or deposited in such other funds as may be designated by the laws of the state of Washington. (2) Except as provided in RCW 10.99.080, the city treasurer shall remit monthly thirty-two percent of the noninterest money received under this section, other than for parking infractions, and certain costs to the state treasurer. "Certain costs" as used in this subsection, means those costs awarded to prevailing parties in civil actions under RCW 4.84.010 or 36.18.040, or those costs awarded against convicted defendants in criminal actions under RCW 10.01.160, 10.46.190, or 36.18.040, or other similar statutes if such costs are specifically designated as costs by the court and are awarded for the specific reimbursement of costs incurred by the state, county, city, or town in the prosecution of the case, including the fees of defense counsel. Money remitted under this subsection to the state treasurer shall be deposited as provided in RCW 43.08.250. (3) The balance of the noninterest money received under this section shall be retained by the city and deposited as provided by law. (4) Penalties, fines, bail forfeitures, fees, and costs may accrue interest at the rate of twelve percent per annum, upon (2006 Ed.) Municipal Courts—Alternate Provision assignment to a collection agency. Interest may accrue only while the case is in collection status. (5) Interest retained by the court on penalties, fines, bail forfeitures, fees, and costs shall be split twenty-five percent to the state treasurer for deposit in the public safety and education account as provided in RCW 43.08.250, twenty-five percent to the state treasurer for deposit in the judicial information system account as provided in RCW 2.68.020, twenty-five percent to the city general fund, and twenty-five percent to the city general fund to fund local courts. [2004 c 15 § 3; 1995 c 291 § 3; 1988 c 169 § 2; 1985 c 389 § 4; 1984 c 258 § 304; 1975 1st ex.s. c 241 § 3; 1961 c 299 § 59.] Intent—2004 c 15: See note following RCW 10.99.080. Effective date—1985 c 389: See note following RCW 27.24.070. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Intent—1984 c 258: See note following RCW 3.46.120. 3.50.110 3.50.110 Sessions. The municipal court shall be open and shall hold such regular and special sessions as may be prescribed by the legislative body of the city or town: PROVIDED, That the municipal court shall not be open on nonjudicial days. [1984 c 258 § 114; 1961 c 299 § 60.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.115 3.50.115 Municipal court seal. The municipal court shall have a seal which shall be the vignette of George Washington, with the words "Seal of The Municipal Court of . . . . . . (name of city), State of Washington," surrounding the vignette. All process from the court runs throughout the state. The supreme court may determine by rule what process must be issued under seal. [1999 c 152 § 1; 1984 c 258 § 123.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.320 one jury fee shall be collected by the court. The fee shall be apportioned among the requesting parties. Each juror may receive up to twenty-five dollars but in no case less than ten dollars for each day in attendance upon the municipal court, and in addition thereto shall receive mileage at the rate determined under RCW 43.03.060: PROVIDED, That the compensation paid jurors shall be determined by the legislative authority of the city and shall be uniformly applied. Jury trials shall be allowed in all criminal cases unless waived by the defendant. [1984 c 258 § 126.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.300 3.50.300 Execution of sentence—Jail in lieu of fine and costs, computation. In all cases of conviction, unless otherwise provided in chapters 3.30 through 3.74 RCW as now or hereafter amended, where a jail sentence is given to the defendant, execution shall issue accordingly and where the judgment of the court is that the defendant pay a fine and costs, the defendant may be committed to jail until the judgment is paid in full. A defendant who has been committed shall be discharged upon the payment for such part of the fine and costs as remains unpaid after deducting from the whole amount any previous payment, and after deducting the amount allowed for each day of imprisonment, which amount shall be the same and computed in the same manner as provided for superior court cases in RCW 10.82.030 and 10.82.040, as now or hereafter amended. In addition, all other proceedings in respect of such fine and costs shall be the same as in like cases in the superior court. [1984 c 258 § 115; 1969 c 84 § 1; 1961 c 299 § 79.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.320 3.50.125 3.50.125 Transfer within municipal court. A transfer of a case from the municipal court to either another municipal judge of the same city or to a judge pro tempore appointed in the manner prescribed by this chapter shall be allowed in accordance with RCW 3.66.090 in all civil and criminal proceedings. [1984 c 258 § 122.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.135 3.50.135 Request for jury trial in civil cases—Exception—Fee—Juror compensation—Jury trials in criminal cases. In all civil cases, the plaintiff or defendant may demand a jury, which shall consist of six citizens of the state who shall be impaneled and sworn as in cases before district courts, or the trial may be by a judge of the municipal court: PROVIDED, That no jury trial may be held on a proceeding involving a traffic infraction. A party requesting a jury shall pay to the court a fee which shall be the same as that for a jury in district court. If more than one party requests a jury, only (2006 Ed.) 3.50.320 Suspension or deferral of sentence— Change of plea—Dismissal. After a conviction, the court may impose sentence by suspending all or a portion of the defendant’s sentence or by deferring the sentence of the defendant and may place the defendant on probation for a period of no longer than two years and prescribe the conditions thereof. A defendant who has been sentenced, or whose sentence has been deferred, and who then fails to appear for any hearing to address the defendant’s compliance with the terms of probation when ordered to do so by the court, shall have the term of probation tolled until such time as the defendant makes his or her presence known to the court on the record. During the time of the deferral, the court may, for good cause shown, permit a defendant to withdraw the plea of guilty, permit the defendant to enter a plea of not guilty, and dismiss the charges. [2001 c 94 § 4; 1984 c 258 § 116; 1983 c 156 § 5; 1961 c 299 § 81.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. [Title 3 RCW—page 15] 3.50.330 Title 3 RCW: District Courts—Courts of Limited Jurisdiction 3.50.330 3.50.330 Suspension or deferral of sentence—Continuing jurisdiction of court. For a period not to exceed five years after imposition of sentence for a defendant sentenced under RCW 46.61.5055 and two years after imposition of sentence for all other offenses, the court shall have continuing jurisdiction and authority to suspend or defer the execution of all or any part of the sentence upon stated terms, including installment payment of fines. A defendant who has been sentenced, or whose sentence has been deferred, and who then fails to appear for any hearing to address the defendant’s compliance with the terms of probation when ordered to do so by the court, shall have the term of probation tolled until such time as the defendant makes his or her presence known to the court on the record. However, the jurisdiction period in this section does not apply to the enforcement of orders issued under RCW 46.20.720. Any time before entering an order terminating probation, the court may modify or revoke its order suspending or deferring the imposition or execution of the sentence. [2001 c 94 § 5; 1999 c 56 § 1; 1984 c 258 § 117; 1983 c 156 § 6; 1961 c 299 § 82.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.340 3.50.340 Revocation of deferred or suspended sentence—Limitations—Termination of probation. Deferral of sentence and suspension of execution of sentence may be revoked if the defendant violates or fails to carry out any of the conditions of the deferral or suspension. Upon the revocation of the deferral or suspension, the court shall impose the sentence previously suspended or any unexecuted portion thereof. In no case shall the court impose a sentence greater than the original sentence, with credit given for time served and money paid on fine and costs. Any time before entering an order terminating probation, the court may revoke or modify its order suspending the imposition or execution of the sentence. If the ends of justice will be served and when warranted by the reformation of the probationer, the court may terminate the period of probation and discharge the person so held. [1984 c 258 § 118; 1983 c 156 § 7; 1961 c 299 § 83.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.355 3.50.355 Offender supervision by another state. (1) If a person placed on probation for one year or more for a misdemeanor or gross misdemeanor by a municipal court requests permission to travel or transfer to another state, the assigned probation officer shall determine whether such request is subject to RCW 9.94A.745, the interstate compact for adult offender supervision. If such request is subject to the compact, the probation officer shall: (a) Notify the department of corrections of the probationer’s request; (b) Provide the department of corrections with the supporting documentation it requests for processing an application for transfer; [Title 3 RCW—page 16] (c) Notify the probationer of the fee due to the department of corrections for processing an application under the compact; (d) Cease supervision of the probationer while another state supervises the probationer pursuant to the compact; (e) Resume supervision if the probationer returns to this state before the term of probation expires. (2) The probationer shall receive credit for time served while being supervised by another state. (3) If the probationer is returned to the state at the request of the receiving state under rules of the interstate compact for adult offender supervision, the department of corrections is responsible for the cost of returning the probationer. (4) The state of Washington, the department of corrections and its employees, and any city and its employees are not liable for civil damages resulting from any act or omission authorized or required under this section unless the act or omission constitutes gross negligence. [2005 c 400 § 6.] Application—Effective date—2005 c 400: See notes following RCW 9.94A.74504. 3.50.425 3.50.425 Issuance of criminal process. All criminal process issued by the municipal court shall be in the name of the state of Washington and run throughout the state, and be directed to and served by the chief of police, marshal, or other police officer of any city or to any sheriff in the state. [1984 c 258 § 127.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.430 3.50.430 Criminal prosecution in city’s name for violation of ordinances. All criminal prosecutions for the violation of a city ordinance shall be conducted in the name of the city and may be upon the complaint of any person. [1984 c 258 § 119; 1961 c 299 § 92.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.440 3.50.440 Penalty if no other punishment prescribed. Every person convicted by the municipal court of a violation of the criminal provisions of an ordinance for which no punishment is specifically prescribed in the ordinance is guilty of a gross misdemeanor and shall be punished by a fine of not more than five thousand dollars or imprisonment in the city jail for a period not to exceed one year, or both such fine and imprisonment. [2003 c 53 § 3; 1984 c 258 § 120; 1961 c 299 § 93.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.450 3.50.450 Pleadings, practice and procedure not provided for governed by district court law. Pleadings, practice and procedure in cases not governed by statutes or rules (2006 Ed.) Municipal Courts—Alternate Provision specifically applicable to municipal courts shall, insofar as applicable, be governed by the statutes and rules now existing or hereafter adopted governing pleadings, practice and procedure applicable to district courts. [1984 c 258 § 121; 1961 c 299 § 94.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1984 c 258 §§ 101-139: See note following RCW 3.50.005. 3.50.480 3.50.480 City or town trial court improvement account—Contributions to account by city or town—Use of funds. Any city or town operating a municipal court under this chapter for which the state contributes to municipal court judges’ salaries under RCW 2.56.030 shall create a city or town trial court improvement account. An amount equal to one hundred percent of the state’s contribution for the payment of the city’s or town’s municipal court judges’ salaries shall be deposited into the account. Money in the account shall be used to fund improvements to the municipal court’s staffing, programs, facilities, or services, as appropriated by the city or town legislative authority. [2005 c 457 § 3.] Intent—2005 c 457: See note following RCW 43.08.250. 3.50.800 3.50.800 Repeal of municipal criminal code—Agreement covering costs of handling resulting criminal cases—Arbitration—Renewal. (1) If a municipality has, prior to July 1, 1984, repealed in its entirety that portion of its municipal code defining crimes but continues to hear and determine traffic infraction cases under chapter 46.63 RCW in a municipal court, the municipality and the appropriate county shall, prior to January 1, 1985, enter into an agreement under chapter 39.34 RCW under which the county is to be paid a reasonable amount for costs incurred after January 1, 1985, associated with prosecution, adjudication, and sentencing in criminal cases filed in district court as a result of the repeal. If the municipality and the county cannot come to an agreement within the time prescribed by this section, they shall be deemed to have entered into an agreement to submit the issue to arbitration pursuant to chapter 7.04A RCW. The municipality and the county have the same rights and are subject to the same duties as other parties who have agreed to submit to arbitration under chapter 7.04A RCW. (2) The agreement between the municipality and the county shall include provisions for periodic review and renewal of the terms of the agreement. If the municipality and the county are unable to agree on the terms for renewal of the agreement, they shall be deemed to have entered into an agreement to submit the issue to arbitration under chapter 7.04A RCW. Pending conclusion of the arbitration proceeding, the terms of the agreement shall remain in effect. The municipality and the county have the same rights as other parties who have agreed to submit to arbitration under chapter 7.04A RCW. [2005 c 433 § 34; 1984 c 258 § 202.] Application—Captions not law—Savings—Effective date—2005 c 433: See RCW 7.04A.290 through 7.04A.310 and 7.04A.900. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.50.805 3.50.805 Termination of municipal court—Agreement covering costs of handling resulting criminal (2006 Ed.) 3.50.805 cases—Arbitration—Repeal of municipal criminal code—Agreement—Arbitration—Repeal of a municipal crime equivalent to offense in RCW 46.63.020—Agreement—Arbitration. (1) A municipality operating a municipal court under this chapter shall not terminate that court unless the municipality has reached an agreement with the appropriate county or another municipality under chapter 39.34 RCW under which the county or municipality is to be paid a reasonable amount for costs associated with prosecution, adjudication, and sentencing in criminal cases filed in district or municipal court as a result of the termination. The agreement shall provide for periodic review and renewal of the terms of the agreement. If the municipality and the county or municipality are unable to agree on the terms for renewal of the agreement, they shall be deemed to have entered into an agreement to submit the issue to arbitration under chapter 7.04A RCW. Pending conclusion of the arbitration proceeding, the terms of the agreement shall remain in effect. The municipality and the county or municipality have the same rights and are subject to the same duties as other parties who have agreed to submit to arbitration under chapter 7.04A RCW. A municipality that has entered into agreements with other municipalities that have terminated their municipal courts may not thereafter terminate its court unless each municipality has reached an agreement with the appropriate county in accordance with this section. (2) A municipality operating a municipal court under this chapter may not repeal in its entirety that portion of its municipal code defining crimes while retaining the court’s authority to hear and determine traffic infractions under chapter 46.63 RCW unless the municipality has reached an agreement with the county under chapter 39.34 RCW under which the county is to be paid a reasonable amount for costs associated with prosecution, adjudication, and sentencing in criminal cases filed in district court as a result of the repeal. The agreement shall provide for periodic review and renewal of the terms of the agreement. If the municipality and the county are unable to agree on the terms for renewal of the agreement, they shall be deemed to have entered into an agreement to submit the issue to arbitration under chapter 7.04A RCW. Pending conclusion of the arbitration proceeding, the terms of the agreement shall remain in effect. The municipality and the county have the same rights and are subject to the same duties as other parties who have agreed to submit to arbitration under chapter 7.04A RCW. (3) A municipality operating a municipal court under this chapter may not repeal a provision of its municipal code which defines a crime equivalent to an offense listed in RCW 46.63.020 unless the municipality has reached an agreement with the county under chapter 39.34 RCW under which the county is to be paid a reasonable amount for costs associated with prosecution, adjudication, and sentencing in criminal cases filed in district court as a result of the repeal. The agreement shall provide for periodic review and renewal of the terms of the agreement. If the municipality and the county are unable to agree on the terms for renewal of the agreement, they shall be deemed to have entered into an agreement to submit the issue to arbitration under chapter 7.04A RCW. Pending conclusion of the arbitration proceeding, the terms of the agreement shall remain in effect. The municipality and the county have the same rights and are sub[Title 3 RCW—page 17] 3.50.810 Title 3 RCW: District Courts—Courts of Limited Jurisdiction ject to the same duties as other parties who have agreed to submit to arbitration under chapter 7.04A RCW. [2005 c 433 § 35; 1984 c 258 § 203.] Application—Captions not law—Savings—Effective date—2005 c 433: See RCW 7.04A.290 through 7.04A.310 and 7.04A.900. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.50.810 3.50.810 Termination of municipal court—Notice. (1) Any city having entered into an agreement for court services with the county must provide written notice of the intent to terminate the agreement to the county legislative authority not less than one year prior to February 1st of the year in which all district court judges are subject to election. (2) Any city that terminates an agreement for court services to be provided by a district court may terminate the agreement only at the end of a four-year district court judicial term. (3) A county that wishes to terminate an agreement with a city for the provision of court services must provide written notice of the intent to terminate the agreement to the city legislative authority not less than one year prior to the expiration of the agreement. [2001 c 68 § 1; 1993 c 317 § 2.] Severability—1993 c 317: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1993 c 317 § 11.] Effective date—1993 c 317: "This act shall take effect January 1, 1995." [1993 c 317 § 12.] Chapter 3.54 Chapter 3.54 RCW CLERKS AND DEPUTY CLERKS Sections 3.54.010 3.54.020 3.54.030 Compensation. Powers and duties. Seal. 3.54.010 3.54.010 Compensation. The clerk and deputy clerks of district courts shall receive such compensation as shall be provided by the county legislative authority. [1984 c 258 § 34; 1971 c 73 § 6; 1961 c 299 § 98.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.54.020 3.54.020 Powers and duties. The district courts shall prescribe the duties of the clerk and deputy clerks. Such duties shall include all of the requirements of RCW 3.62.020 and 3.62.040 as now or hereafter amended and the receipt of bail and additionally the power to: (1) Accept and enter pleas; (2) Receive bail as set by the court; (3) Set cases for trial; (4) Administer oaths. [1975 1st ex.s. c 241 § 1; 1971 c 73 § 7; 1961 c 299 § 99.] 3.54.030 3.54.030 Seal. The district court shall have a seal that shall be the vignette of George Washington, with the words "Seal of the . . . . . . District Court of . . . . . . County, State of Washington," surrounding the vignette. All process from the court runs throughout the state. The supreme court may deter[Title 3 RCW—page 18] mine by rule what process must be issued under seal. [1999 c 152 § 2; 1992 c 29 § 1.] Chapter 3.58 Chapter 3.58 RCW SALARIES AND EXPENSES Sections 3.58.010 3.58.020 3.58.030 3.58.040 3.58.050 3.58.060 Salaries of full time district court judges. Salaries of part time district judges. Payment of salaries. Travel expenses. Other court expenses—Lease, construction, of courtrooms and offices. County trial court improvement account—Contributions to account by county—Use of funds. 3.58.010 3.58.010 Salaries of full time district court judges. The annual salary of each full time district court judge shall be established by the Washington citizen’s commission on salaries for elected officials. A member of the legislature whose term of office is partly coextensive with or extends beyond the present term of office of any of the officials whose salary is increased by virtue of the provisions of RCW 43.03.010, 2.04.092, 2.06.062, 2.08.092, and 3.58.010 shall be eligible to be appointed or elected to any of the offices the salary of which is increased hereby but he shall not be entitled to receive such increased salary until after the expiration of his present term of office and his subsequent election or reelection to the office to which he was appointed or elected respectively during his term of office as legislator. [1986 c 155 § 7; 1985 c 7 § 1; 1983 c 186 § 2; 1980 c 162 § 8; 1979 ex.s. c 255 § 8; 1977 ex.s. c 318 § 5; 1975 1st ex.s. c 263 § 5; 1975 c 33 § 3; 1974 ex.s. c 149 § 6 (Initiative Measure No. 282, approved November 6, 1973); 1972 ex.s. c 100 § 4; 1969 c 52 § 1; 1965 c 147 § 1; 1961 c 299 § 100.] Contingent effective date—Severability—1986 c 155: See notes following RCW 43.03.300. Effective dates, savings—Severability—1980 c 162: See notes following RCW 3.02.010. Effective date—1979 ex.s. c 255: See note following RCW 43.03.010. Effective date—1977 ex.s. c 318: See note following RCW 43.03.010. Severability—Effective date—1975 1st ex.s. c 263: See notes following RCW 43.03.010. Severability—1975 c 33: See note following RCW 35.21.780. Severability—1974 ex.s. c 149 (Initiative Measure No. 282): See note following RCW 43.03.010. District court judges’ salaries: State Constitution Art. 28 § 1. District courts, judges pro tempore, salaries: RCW 3.34.130. Municipal courts, cities over 400,000, judges’ salaries: RCW 35.20.160. Superior courts, judges’ salaries: RCW 2.08.092. Washington citizens’ commission on salaries for elected officials: RCW 43.03.305. 3.58.020 3.58.020 Salaries of part time district judges. The annual salaries of part time district judges shall be set by the citizens’ commission on salaries. [1991 c 338 § 3; 1984 c 258 § 35; 1982 c 29 § 2; 1979 ex.s. c 255 § 9; 1974 ex.s. c 95 § 1; 1969 ex.s. c 192 § 1; 1961 c 299 § 101.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Effective date—1979 ex.s. c 255: See note following RCW 43.03.010. District judges—Full time—Other: RCW 3.34.040. (2006 Ed.) Income of Court 3.58.030 3.58.030 Payment of salaries. The compensation of judges, clerks, judges pro tempore, deputy clerks, and court commissioners payable by the county shall be paid monthly out of the county treasury from the same funds out of which other salaried county officers are paid. [1984 c 258 § 36; 1961 c 299 § 102.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.62.020 3.62.010 Suspension of fine or penalty. The district court may at the time of sentencing or at any time thereafter suspend a portion or all of a fine or penalty. [1984 c 258 § 305; 1961 c 299 § 105.] 3.62.010 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Intent—1984 c 258: See note following RCW 3.46.120. 3.62.020 3.58.040 3.58.040 Travel expenses. District judges, judges pro tempore, court commissioners, and district court employees shall receive their reasonable traveling expenses when engaged in the business of the court as provided in chapter 42.24 RCW. [1984 c 258 § 37; 1983 c 3 § 3; 1961 c 299 § 103.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.58.050 3.58.050 Other court expenses—Lease, construction, of courtrooms and offices. The county legislative authority shall furnish all necessary facilities for the district courts, including suitable courtrooms, furniture, books, stationery, postage, office equipment, heat, light and telephone and may lease or construct courtrooms and offices for such purpose. The county legislative authority shall not be required to furnish courtroom space in any place other than as provided in the districting plan. [1984 c 258 § 38; 1963 c 213 § 3; 1961 c 299 § 104.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.58.060 3.58.060 County trial court improvement account— Contributions to account by county—Use of funds. Any county with a district court created under this title shall create a county trial court improvement account. An amount equal to one hundred percent of the state’s contribution received by the county for the payment of district court judges’ salaries under RCW 43.08.250 shall be deposited into the account. Money in the account shall be used to fund improvements to superior and district court staffing, programs, facilities, or services, as appropriated by the county legislative authority. [2005 c 457 § 4.] Intent—2005 c 457: See note following RCW 43.08.250. Chapter 3.62 Chapter 3.62 RCW INCOME OF COURT Sections 3.62.010 3.62.020 3.62.040 3.62.050 3.62.060 3.62.065 3.62.070 3.62.085 3.62.090 3.62.100 (2006 Ed.) Suspension of fine or penalty. Costs, fees, fines, forfeitures, and penalties except city cases— Disposition—Interest. Costs, fines, forfeitures, and penalties from city cases—Disposition—Interest. Court expenditures to be paid from county current expense fund—Exception. Filing fees in civil cases—Fees allowed as court costs. Fees allowed as court costs. Filing fees in criminal cases and traffic infractions—Arbitration if no agreement. Fee for conviction or plea of guilty. Public safety and education assessment—Amount. Promotion of efficiency. 3.62.020 Costs, fees, fines, forfeitures, and penalties except city cases—Disposition—Interest. (1) Except as provided in subsection (4) of this section, all costs, fees, fines, forfeitures and penalties assessed and collected in whole or in part by district courts, except costs, fines, forfeitures and penalties assessed and collected, in whole or in part, because of the violation of city ordinances, shall be remitted by the clerk of the district court to the county treasurer at least monthly, together with a financial statement as required by the state auditor, noting the information necessary for crediting of such funds as required by law. (2) Except as provided in RCW 10.99.080, the county treasurer shall remit thirty-two percent of the noninterest money received under subsection (1) of this section except certain costs to the state treasurer. "Certain costs" as used in this subsection, means those costs awarded to prevailing parties in civil actions under RCW 4.84.010 or 36.18.040, or those costs awarded against convicted defendants in criminal actions under RCW 10.01.160, 10.46.190, or 36.18.040, or other similar statutes if such costs are specifically designated as costs by the court and are awarded for the specific reimbursement of costs incurred by the state or county in the prosecution of the case, including the fees of defense counsel. Money remitted under this subsection to the state treasurer shall be deposited as provided in RCW 43.08.250. (3) The balance of the noninterest money received by the county treasurer under subsection (1) of this section shall be deposited in the county current expense fund. (4) All money collected for county parking infractions shall be remitted by the clerk of the district court at least monthly, with the information required under subsection (1) of this section, to the county treasurer for deposit in the county current expense fund. (5) Penalties, fines, bail forfeitures, fees, and costs may accrue interest at the rate of twelve percent per annum, upon assignment to a collection agency. Interest may accrue only while the case is in collection status. (6) Interest retained by the court on penalties, fines, bail forfeitures, fees, and costs shall be split twenty-five percent to the state treasurer for deposit in the public safety and education account as provided in RCW 43.08.250, twenty-five percent to the state treasurer for deposit in the judicial information system account as provided in RCW 2.68.020, twenty-five percent to the county current expense fund, and twenty-five percent to the county current expense fund to fund local courts. [2004 c 15 § 4. Prior: 1995 c 301 § 31; 1995 c 291 § 5; 1988 c 169 § 3; 1985 c 389 § 5; 1984 c 258 § 306; 1971 c 73 § 8; 1969 ex.s. c 199 § 2; 1961 c 299 § 106.] Intent—2004 c 15: See note following RCW 10.99.080. Effective date—1985 c 389: See note following RCW 27.24.070. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Intent—1984 c 258: See note following RCW 3.46.120. [Title 3 RCW—page 19] 3.62.040 Title 3 RCW: District Courts—Courts of Limited Jurisdiction 3.62.040 Costs, fines, forfeitures, and penalties from city cases—Disposition—Interest. (1) Except as provided in subsection (4) of this section, all costs, fines, forfeitures and penalties assessed and collected, in whole or in part, by district courts because of violations of city ordinances shall be remitted by the clerk of the district court at least monthly directly to the treasurer of the city wherein the violation occurred. (2) Except as provided in RCW 10.99.080, the city treasurer shall remit monthly thirty-two percent of the noninterest money received under this section, other than for parking infractions and certain costs, to the state treasurer. "Certain costs" as used in this subsection, means those costs awarded to prevailing parties in civil actions under RCW 4.84.010 or 36.18.040, or those costs awarded against convicted defendants in criminal actions under RCW 10.01.160, 10.46.190, or 36.18.040, or other similar statutes if such costs are specifically designated as costs by the court and are awarded for the specific reimbursement of costs incurred by the state, county, city, or town in the prosecution of the case, including the fees of defense counsel. Money remitted under this subsection to the state treasurer shall be deposited as provided in RCW 43.08.250. (3) The balance of the noninterest money received under this section shall be retained by the city and deposited as provided by law. (4) All money collected for city parking infractions shall be remitted by the clerk of the district court at least monthly to the city treasurer for deposit in the city’s general fund. (5) Penalties, fines, bail forfeitures, fees, and costs may accrue interest at the rate of twelve percent per annum, upon assignment to a collection agency. Interest may accrue only while the case is in collection status. (6) Interest retained by the court on penalties, fines, bail forfeitures, fees, and costs shall be split twenty-five percent to the state treasurer for deposit in the public safety and education account as provided in RCW 43.08.250, twenty-five percent to the state treasurer for deposit in the judicial information system account as provided in RCW 2.68.020, twenty-five percent to the city general fund, and twenty-five percent to the city general fund to fund local courts. [2004 c 15 § 8; 1995 c 291 § 6; 1988 c 169 § 4; 1985 c 389 § 6; 1984 c 258 § 307; 1975 1st ex.s. c 241 § 2; 1961 c 299 § 108.] 3.62.040 Intent—2004 c 15: See note following RCW 10.99.080. Effective date—1985 c 389: See note following RCW 27.24.070. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Intent—1984 c 258: See note following RCW 3.46.120. 3.62.050 3.62.050 Court expenditures to be paid from county current expense fund—Exception. The total expenditures of the district courts, including the cost of providing courtroom and office space, the cost of probation and parole services and any personnel employment therefor, and the cost of providing services necessary for the preparation and presentation of a defense at public expense, except costs of defense to be paid by a city pursuant to RCW 3.62.070 and the portion of district court judges’ salaries distributed by the administrator for the courts pursuant to RCW 2.56.030, shall be paid from the county current expense fund. [2005 c 457 § 6; 1987 c 202 § 114; 1984 c 258 § 308; 1973 1st ex.s. c 10 § 1; 1969 [Title 3 RCW—page 20] ex.s. c 199 § 3; 1969 c 111 § 1; 1963 c 213 § 2; 1961 c 299 § 109.] Intent—2005 c 457: See note following RCW 43.08.250. Intent—1987 c 202: See note following RCW 2.04.190. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Intent—1984 c 258: See note following RCW 3.46.120. 3.62.060 3.62.060 Filing fees in civil cases—Fees allowed as court costs. Clerks of the district courts shall collect the following fees for their official services: (1) In any civil action commenced before or transferred to a district court, the plaintiff shall, at the time of such commencement or transfer, pay to such court a filing fee of fortythree dollars plus any surcharge authorized by RCW 7.75.035. Any party filing a counterclaim, cross-claim, or third-party claim in such action shall pay to the court a filing fee of forty-three dollars plus any surcharge authorized by RCW 7.75.035. No party shall be compelled to pay to the court any other fees or charges up to and including the rendition of judgment in the action other than those listed. (2) For issuing a writ of garnishment or other writ, or for filing an attorney issued writ of garnishment, a fee of twelve dollars. (3) For filing a supplemental proceeding a fee of twenty dollars. (4) For demanding a jury in a civil case a fee of one hundred twenty-five dollars to be paid by the person demanding a jury. (5) For preparing a transcript of a judgment a fee of twenty dollars. (6) For certifying any document on file or of record in the clerk’s office a fee of five dollars. (7) For preparing the record of a case for appeal to superior court a fee of forty dollars including any costs of tape duplication as governed by the rules of appeal for courts of limited jurisdiction (RALJ). (8) For duplication of part or all of the electronic recording of a proceeding ten dollars per tape or other electronic storage medium. The fees or charges imposed under this section shall be allowed as court costs whenever a judgment for costs is awarded. [2005 c 457 § 9; 2003 c 222 § 15; 1992 c 62 § 8; 1990 c 172 § 2; 1987 c 382 § 2; 1984 c 258 § 309; 1981 c 330 § 1; 1980 c 162 § 9; 1969 c 25 § 1; 1965 c 55 § 1; 1961 c 299 § 110.] Intent—2005 c 457: See note following RCW 43.08.250. Effective date—1992 c 62: See RCW 27.24.900. Effective date—1990 c 172: See note following RCW 7.75.035. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Intent—1984 c 258: See note following RCW 3.46.120. Severability—1981 c 330: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1981 c 330 § 11.] Effective dates, savings—Severability—1980 c 162: See notes following RCW 3.02.010. 3.62.065 3.62.065 Fees allowed as court costs. All courts organized under Title 3 or 35 RCW may charge fees as prescribed (2006 Ed.) Jurisdiction and Venue in RCW 3.62.060. The fees or charges imposed under this section shall be allowed as court costs whenever a judgment for costs is awarded. [1992 c 62 § 7.] Effective date—1992 c 62: See RCW 27.24.900. 3.62.070 3.62.070 Filing fees in criminal cases and traffic infractions—Arbitration if no agreement. Except in traffic cases wherein bail is forfeited or a monetary penalty paid to a violations bureau, and except in cases filed in municipal departments established pursuant to chapter 3.46 RCW and except in cases where a city has contracted with another city for such services pursuant to chapter 39.34 RCW, in every criminal or traffic infraction action filed by a city for an ordinance violation, the city shall be charged a filing fee. Fees shall be determined pursuant to an agreement as provided for in chapter 39.34 RCW, the interlocal cooperation act, between the city and the county providing the court service. In such criminal or traffic infraction actions the cost of providing services necessary for the preparation and presentation of a defense at public expense are not within the filing fee and shall be paid by the city. In all other criminal or traffic infraction actions, no filing fee shall be assessed or collected: PROVIDED, That in such cases, for the purposes of RCW 3.62.010, four dollars or the agreed filing fee of each fine or penalty, whichever is greater, shall be deemed filing costs. In the event no agreement is reached between a city and the county providing the court service, either party may invoke binding arbitration on the fee issue by notice to the other party. In the case of establishing initial fees, the notice shall be thirty days. In the case of renewal or proposed nonrenewal, the notice shall be given one hundred twenty days prior to the expiration of the existing contract. In the event that such issue is submitted to arbitration, the arbitrator or arbitrators shall only consider those additional costs borne by the county in providing district court services for such city. The city and the county shall each select one arbitrator, the two of whom shall pick a third arbitrator. The existing contract shall remain in effect until a new agreement is reached or until an arbitration award is made. [1994 c 266 § 15; 1993 c 317 § 8; 1984 c 258 § 39; 1980 c 128 § 14; 1979 ex.s. c 129 § 1; 1973 1st ex.s. c 10 § 2; 1961 c 299 § 111.] Chapter 3.66 tion to any fines, forfeitures, or penalties assessed, other than for parking infractions, by all courts organized under Title 3 or 35 RCW a public safety and education assessment equal to seventy percent of such fines, forfeitures, or penalties, which shall be remitted as provided in chapters 3.46, 3.50, 3.62, and 35.20 RCW. The assessment required by this section shall not be suspended or waived by the court. (2) There shall be assessed and collected in addition to any fines, forfeitures, or penalties assessed, other than for parking infractions and for fines levied under RCW 46.61.5055, and in addition to the public safety and education assessment required under subsection (1) of this section, by all courts organized under Title 3 or 35 RCW, an additional public safety and education assessment equal to fifty percent of the public safety and education assessment required under subsection (1) of this section, which shall be remitted to the state treasurer and deposited as provided in RCW 43.08.250. The additional assessment required by this subsection shall not be suspended or waived by the court. (3) This section does not apply to the fee imposed under RCW 46.63.110(7), the penalty imposed under RCW 46.63.110(8), or the penalty assessment imposed under RCW 10.99.080. [2004 c 15 § 5; 2003 c 380 § 1; 2001 c 289 § 1; 1997 c 331 § 4; 1995 c 332 § 7; 1994 c 275 § 34; 1986 c 98 § 4; 1984 c 258 § 337.] Intent—2004 c 15: See note following RCW 10.99.080. Effective date—1997 c 331: See note following RCW 70.168.135. Severability—Effective dates—1995 c 332: See notes following RCW 46.20.308. Short title—Effective date—1994 c 275: See notes following RCW 46.04.015. Effective date—1986 c 98 § 4: "Section 4 of this act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect May 1, 1986." [1986 c 98 § 5.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Intent—1984 c 258: See note following RCW 3.46.120. Public safety and education account: RCW 43.08.250. 3.62.100 Severability—Effective date—1993 c 317: See notes following RCW 3.50.810. 3.62.100 Promotion of efficiency. District courts shall take all steps necessary to promote efficiencies in calendaring in order to minimize costs to cities that use the district courts. Cities shall cooperate with the district courts in order to minimize those costs. [1993 c 317 § 7.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Severability—Effective date—1993 c 317: See notes following RCW 3.50.810. Effective date—1994 c 266 § 15: "Section 15 of this act shall take effect January 1, 1995." [1994 c 266 § 16.] Effective date—Severability—1980 c 128: See notes following RCW 46.63.060. Chapter 3.66 3.62.085 3.62.085 Fee for conviction or plea of guilty. Upon conviction or a plea of guilty in any court organized under this title or Title 35 RCW, a defendant in a criminal case is liable for a fee of forty-three dollars. This fee shall be subject to division with the state under RCW 3.46.120(2), 3.50.100(2), 3.62.020(2), 3.62.040(2), and 35.20.220(2). [2005 c 457 § 10.] Intent—2005 c 457: See note following RCW 43.08.250. Sections 3.66.010 3.66.020 3.66.030 3.66.040 3.66.050 3.66.060 3.66.065 3.66.067 3.62.090 3.62.090 Public safety and education assessment— Amount. (1) There shall be assessed and collected in addi(2006 Ed.) Chapter 3.66 RCW JURISDICTION AND VENUE 3.66.068 Powers of district court. Civil jurisdiction. Restrictions on civil jurisdiction. Venue—Civil action. Transfer of proceedings. Criminal jurisdiction. Assessment of punishment. Assessment of punishment—Suspension or deferral of sentence—Dismissal of charges. Assessment of punishment—Suspension or deferral of sentence—Terms. [Title 3 RCW—page 21] 3.66.010 3.66.069 3.66.070 3.66.080 3.66.090 3.66.095 3.66.100 3.66.110 3.66.120 3.66.130 3.66.140 Title 3 RCW: District Courts—Courts of Limited Jurisdiction Assessment of punishment—Revocation of deferred or suspended sentence—Limitations—Termination of probation. Venue—Criminal actions—Temporary venue. Criminal venue corrected. Change of venue. Removal of certain civil actions to superior court. Territorial jurisdiction—Process—Limitation. Advertising authority to solemnize marriages is breach of judicial ethics. Court-ordered restitution—Enforcement. Court-ordered restitution—Payment. Offender supervision by another state. 3.66.010 3.66.010 Powers of district court. (1) The justices of the peace elected in accordance with chapters 3.30 through 3.74 RCW are authorized to hold court as judges of the district court for the trial of all actions enumerated in chapters 3.30 through 3.74 RCW or assigned to the district court by law; to hear, try, and determine the same according to the law, and for that purpose where no special provision is otherwise made by law, such court shall be vested with all the necessary powers which are possessed by courts of record in this state; and all laws of a general nature shall apply to such district court as far as the same may be applicable and not inconsistent with the provisions of chapters 3.30 through 3.74 RCW. The district court shall, upon the demand of either party, impanel a jury to try any civil or criminal case in accordance with the provisions of chapter 12.12 RCW. No jury trial may be held in a proceeding involving a traffic infraction. (2) A district court participating in the program established by the administrative office of the courts pursuant to RCW 2.56.160 shall have jurisdiction to take recognizance, approve bail, and arraign defendants held within its jurisdiction on warrants issued by any other court of limited jurisdiction participating in the program. [2005 c 282 § 15; 2000 c 111 § 2; 1984 c 258 § 40; 1979 ex.s. c 136 § 20; 1961 c 299 § 112.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Effective date—Severability—1979 ex.s. c 136: See notes following RCW 46.63.010. Powers and jurisdiction of district court commissioner: RCW 3.42.020. 3.66.020 3.66.020 Civil jurisdiction. If the value of the claim or the amount at issue does not exceed fifty thousand dollars, exclusive of interest, costs, and attorneys’ fees, the district court shall have jurisdiction and cognizance of the following civil actions and proceedings: (1) Actions arising on contract for the recovery of money; (2) Actions for damages for injuries to the person, or for taking or detaining personal property, or for injuring personal property, or for an injury to real property when no issue raised by the answer involves the plaintiff’s title to or possession of the same and actions to recover the possession of personal property; (3) Actions for a penalty; (4) Actions upon a bond conditioned for the payment of money, when the amount claimed does not exceed fifty thousand dollars, though the penalty of the bond exceeds that sum, the judgment to be given for the sum actually due, not exceeding the amount claimed in the complaint; [Title 3 RCW—page 22] (5) Actions on an undertaking or surety bond taken by the court; (6) Actions for damages for fraud in the sale, purchase, or exchange of personal property; (7) Proceedings to take and enter judgment on confession of a defendant; (8) Proceedings to issue writs of attachment, garnishment and replevin upon goods, chattels, moneys, and effects; (9) All other actions and proceedings of which jurisdiction is specially conferred by statute, when the title to, or right of possession of real property is not involved; and (10) Actions arising under the provisions of chapter 19.190 RCW. [2003 c 27 § 1; 2000 c 49 § 1; 1997 c 246 § 1; 1991 c 33 § 1; 1984 c 258 § 41; 1981 c 331 § 7; 1979 c 102 § 3; 1965 c 95 § 1; 1961 c 299 § 113.] Effective date—1991 c 33: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1991." [1991 c 33 § 7.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Court Congestion Reduction Act of 1981—Purpose—Severability—1981 c 331: See notes following RCW 2.32.070. Application, savings—1979 c 102: "Sections 2, 3, and 4 of this 1979 amendatory act upon taking effect shall apply to all actions filed on or after December 8, 1977. Any party to an action which is pending on the effective date of this act shall be permitted to amend any pleadings to reflect such increase in court jurisdiction: PROVIDED, That nothing in this act shall affect the validity of judicial acts taken prior to its effective date." [1979 c 102 § 5.] Severability—1979 c 102: "If any provision of this amendatory act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1979 c 102 § 6.] Effective date—1979 c 102: "Sections 2 through 5 of this 1979 amendatory act are necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect May 1, 1979." [1979 c 102 § 7.] 3.66.030 3.66.030 Restrictions on civil jurisdiction. The jurisdiction covered by RCW 3.66.020 shall not extend to the following civil actions: (1) Actions involving title to real property; (2) Actions for the foreclosure of a mortgage or enforcement of a lien on real estate; (3) Actions for false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction; and (4) Actions against an executor or administrator as such. [1961 c 299 § 114.] 3.66.040 3.66.040 Venue—Civil action. (1) An action arising under RCW 3.66.020 (1), (4), (6), (7), and (9) may be brought in any district in which the defendant, or, if there be more than one defendant, where some one of the defendants, resides at the time the complaint is filed or in which the defendant, or if there be more than one defendant, where some one of the defendants may be served with the notice and complaint in which latter case, however, the district where the defendant or defendants is or are served must be within the county in which the defendant or defendants reside. If the residence of the defendant is not ascertained by reasonable efforts, the action may be brought in the district in which the defendant’s place of actual physical employment is located. (2006 Ed.) Jurisdiction and Venue (2) An action arising under RCW 3.66.020(2) for the recovery of possession of personal property and RCW 3.66.020(8) shall be brought in the district in which the subject matter of the action or some part thereof is situated. (3) An action arising under RCW 3.66.020 (3) and (5) shall be brought in the district in which the cause of action, or some part thereof arose. (4) An action arising under RCW 3.66.020(2) for the recovery of damages for injuries to the person or for injury to personal property may be brought, at the plaintiff’s option, either in the district in which the cause of action, or some part thereof, arose, or in the district in which the defendant, or, if there be more than one defendant, where some one of the defendants, resides at the time the complaint is filed. (5) An action against a nonresident of this state, including an action arising under the provisions of chapter 19.190 RCW, may be brought in any district where service of process may be had, or in which the cause of action or some part thereof arose, or in which the plaintiff or one of them resides. (6) An action upon the unlawful issuance of a check or draft may be brought in any district in which the defendant resides or may be brought in any district in which the check was issued or presented as payment. (7) For the purposes of chapters 3.30 through 3.74 RCW, the residence of a corporation defendant shall be deemed to be in any district where the corporation transacts business or has an office for the transaction of business or transacted business at the time the cause of action arose or where any person resides upon whom process may be served upon the corporation, unless herein otherwise provided. [2003 c 27 § 2; 2001 c 45 § 1; 1988 c 71 § 1; 1984 c 258 § 42; 1961 c 299 § 115.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.66.050 3.66.050 Transfer of proceedings. If a civil action is brought in the wrong district, the action may nevertheless be tried therein unless the defendant, at the time the defendant appears, requests a transfer of the action to the proper district. Upon such demand an order shall be entered transferring the action to the proper district and awarding the defendant a reasonable attorney’s fee to be paid by the plaintiff. [1984 c 258 § 43; 1961 c 299 § 116.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.66.060 3.66.060 Criminal jurisdiction. The district court shall have jurisdiction: (1) Concurrent with the superior court of all misdemeanors and gross misdemeanors committed in their respective counties and of all violations of city ordinances. It shall in no event impose a greater punishment than a fine of five thousand dollars, or imprisonment for one year in the county or city jail as the case may be, or both such fine and imprisonment, unless otherwise expressly provided by statute. It may suspend and revoke vehicle operators’ licenses in the cases provided by law; (2) to sit as a committing magistrate and conduct preliminary hearings in cases provided by law; (3) concurrent with the superior court of a proceeding to keep the peace in their respective counties; (4) concurrent with the superior court of all violations under Title 77 RCW; (5) to hear and determine traffic infractions (2006 Ed.) 3.66.068 under chapter 46.63 RCW; and (6) to take recognizance, approve bail, and arraign defendants held within its jurisdiction on warrants issued by other courts of limited jurisdiction when those courts are participating in the program established under RCW 2.56.160. [2003 c 39 § 1; 2000 c 111 § 3; 1984 c 258 § 44; 1983 1st ex.s. c 46 § 176; 1982 c 150 § 1; 1961 c 299 § 117.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.66.065 Assessment of punishment. If a defendant is found guilty, a judge holding office pursuant to chapters 3.30 through 3.74 RCW, or chapter 35.20 RCW, and not the jury, shall assess punishment, notwithstanding the provisions of RCW 10.04.100. If the judge determines that the punishment authorized is inadequate compared to the gravity of the offense he or she may order such defendant to enter recognizance to appear in the superior court of the county and may also recognize the witnesses and shall proceed as a committing magistrate. [1984 c 258 § 45; 1975 c 29 § 1; 1965 ex.s. c 110 § 7.] 3.66.065 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Sentence and judgment: Rules of court: CrRLJ 7.2. 3.66.067 Assessment of punishment—Suspension or deferral of sentence—Dismissal of charges. After a conviction, the court may impose sentence by suspending all or a portion of the defendant’s sentence or by deferring the sentence of the defendant and may place the defendant on probation for a period of no longer than two years and prescribe the conditions thereof. A defendant who has been sentenced, or whose sentence has been deferred, and who then fails to appear for any hearing to address the defendant’s compliance with the terms of probation when ordered to do so by the court, shall have the term of probation tolled until such time as the defendant makes his or her presence known to the court on the record. During the time of the deferral, the court may, for good cause shown, permit a defendant to withdraw the plea of guilty and to enter a plea of not guilty, and the court may dismiss the charges. [2001 c 94 § 1; 1984 c 258 § 46; 1983 c 156 § 1; 1969 c 75 § 1.] 3.66.067 Rules of court: ER 410. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.66.068 Assessment of punishment—Suspension or deferral of sentence—Terms. For a period not to exceed five years after imposition of sentence for a defendant sentenced under RCW 46.61.5055 and two years after imposition of sentence for all other offenses, the court has continuing jurisdiction and authority to suspend or defer the execution of all or any part of its sentence upon stated terms, including installment payment of fines. A defendant who has been sentenced, or whose sentence has been deferred, and who then fails to appear for any hearing to address the defendant’s compliance with the terms of probation when ordered to do so by the court, shall have the term of probation tolled until such time as the defendant makes his or her presence known to the court on the record. However, the jurisdiction period in this section does not apply to the enforcement of 3.66.068 [Title 3 RCW—page 23] 3.66.069 Title 3 RCW: District Courts—Courts of Limited Jurisdiction orders issued under RCW 46.20.720. [2001 c 94 § 2; 1999 c 56 § 2; 1983 c 156 § 2; 1969 c 75 § 2.] Legislative finding, intent—Effective dates—Severability—1983 c 165: See notes following RCW 46.20.308. 3.66.080 3.66.069 3.66.069 Assessment of punishment—Revocation of deferred or suspended sentence—Limitations—Termination of probation. Deferral of sentence and suspension of execution of sentence may be revoked if the defendant violates or fails to carry out any of the conditions of the deferral or suspension. Upon the revocation of the deferral or suspension, the court may impose the sentence previously suspended or any unexecuted portion thereof. In no case shall the court impose a sentence greater than the original sentence, with credit given for time served and money paid on fine and costs. Any time before entering an order terminating probation, the court may revoke or modify its order suspending the imposition or execution of the sentence. Whenever the ends of justice will be served and when warranted by the reformation of the probationer, the court may terminate the period of probation and discharge the person so held. [1983 c 156 § 3; 1969 c 75 § 3.] 3.66.070 3.66.070 Venue—Criminal actions—Temporary venue. (1) All criminal actions shall be brought in the district where the alleged violation occurred: PROVIDED, That (a) the prosecuting attorney may file felony cases in the district in which the county seat is located, (b) with the consent of the defendant criminal actions other than those arising out of violations of city ordinances may be brought in or transferred to the district in which the county seat is located, (c) if the alleged violation relates to driving, or being in actual physical control of, a motor vehicle while under the influence of intoxicating liquor or any drug and the alleged violation occurred within a judicial district which has been designated an enhanced enforcement district under RCW 2.56.110, the charges may be filed in that district or in a district within the same county which is adjacent to the district in which the alleged violation occurred, and (d) a district court participating in the program established by the administrative office of the courts pursuant to RCW 2.56.160 shall have jurisdiction to take recognizance, approve bail, and arraign defendants held within its jurisdiction on warrants issued by any other court of limited jurisdiction participating in the program. (2) In the event of an emergency created by act of nature, civil unrest, technological failure, or other hazardous condition, temporary venue for court of limited jurisdiction matters may be had in a court district not impacted by the emergency. Such emergency venue is appropriate only for the duration of the emergency. (3) A criminal action commenced under a local ordinance or state statute is deemed to be properly heard by the court of original jurisdiction even though the hearing may take place by video or other electronic means as approved by the supreme court and the defendant is appearing by an electronic method from a location outside the court’s geographic jurisdiction or boundaries. [2005 c 282 § 16; 2002 c 59 § 1; 2001 c 15 § 1; 2000 c 111 § 4; 1991 c 290 § 2; 1984 c 258 § 47; 1983 c 165 § 32; 1961 c 299 § 118.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. [Title 3 RCW—page 24] 3.66.080 Criminal venue corrected. If a criminal action is commenced in an improper district under RCW 3.66.070, the court may of its own volition or at the request of either party order the case removed for trial to a proper district. [1984 c 258 § 48; 1961 c 299 § 119.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.66.090 3.66.090 Change of venue. A change of venue may be allowed upon motion: (1) Where there is reason to believe that an impartial trial cannot be had in the district or municipal court in which the action was commenced; or (2) Where the convenience of witnesses or the ends of justice would be forwarded by the change. When such change is ordered, it shall be to the district court of another district in the same county, if any, otherwise to the district court of an adjacent district in another county: PROVIDED, That where an affidavit of prejudice is filed against a judge of a municipal court the cause shall be transferred to another department of the municipal court, if one exists, otherwise to a judge pro tempore appointed in the manner prescribed by law. The court to which a case is removed on change of venue under this section shall have the same jurisdiction, either civil or criminal to hear and determine the case as the court from which the case was removed. [1984 c 258 § 49; 1967 c 241 § 1; 1961 c 299 § 120.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Application—1967 c 241: "The provisions of this 1967 amendatory act shall apply only to those cities as to which the law requires that the judge be a qualified attorney." [1967 c 241 § 10.] 3.66.095 3.66.095 Removal of certain civil actions to superior court. See chapter 4.14 RCW. 3.66.100 3.66.100 Territorial jurisdiction—Process—Limitation. (1) Every district judge having authority to hear a particular case may issue criminal process in and to any place in the state. (2) Every district judge having authority to hear a particular case may issue civil process, including writs of execution, attachment, garnishment, and replevin, in and to any place as permitted by statute or rule. This statute does not authorize service of process pursuant to RCW 4.28.180 in actions filed pursuant to chapter 12.40 RCW or in civil infraction matters. [1998 c 73 § 1; 1987 c 442 § 1101; 1984 c 258 § 701; 1961 c 299 § 121.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Issuance of process infractions generally: RCW 7.80.020. natural resource infractions: RCW 7.84.120. traffic infractions: RCW 46.63.130. 3.66.110 Advertising authority to solemnize marriages is breach of judicial ethics. It shall be a breach of judicial ethics for any judge of any court of limited jurisdiction, as defined in RCW 3.02.010, to advertise in any manner 3.66.110 (2006 Ed.) Magistrates’ Association that he or she is authorized to solemnize marriages. Any violation of this section shall be grounds for forfeiture of office. [1983 c 186 § 3; 1961 c 299 § 122.] 3.66.120 3.66.120 Court-ordered restitution—Enforcement. All court-ordered restitution obligations that are ordered as a result of a conviction for a criminal offense in a court of limited jurisdiction may be enforced in the same manner as a judgment in a civil action by the party or entity to whom the legal financial obligation is owed. The judgment and sentence must identify the party or entity to whom restitution is owed so that the state, party, or entity may enforce the judgment. All court-ordered restitution obligations may be enforced at any time during the ten-year period following the offender’s release from total confinement or within ten years of entry of the judgment and sentence, whichever period is longer. Prior to the expiration of the initial ten-year period, the court may extend the criminal judgment an additional ten years for payment of court-ordered restitution only if the court finds that the offender has not made a good faith attempt to pay. The party or entity to whom the court-ordered restitution obligation is owed may utilize any other remedies available to the party or entity to collect the court-ordered financial obligation. Nothing in this section may be construed to deprive the court of the authority to determine whether the offender’s failure to pay the legal financial obligation constitutes a violation of a condition of probation or to impose a sanction upon the offender if such a violation is found. [2001 c 115 § 1.] 3.66.130 3.66.130 Court-ordered restitution—Payment. If the party or entity for whom a court-ordered restitution obligation has been entered pursuant to this title seeks to enforce the judgment as a lien on real estate, he or she shall commence a lien of judgment upon the real estate of the judgment debtor/obligor as provided in RCW 4.56.200. When any court-ordered restitution obligation entered pursuant to this title is paid or satisfied, the clerk of the court of limited jurisdiction in which the restitution obligation was ordered shall note upon the record of the court of limited jurisdiction satisfaction thereof including the date of the satisfaction. [2001 c 115 § 2.] 3.66.140 3.66.140 Offender supervision by another state. (1) If a person placed on probation for one year or more for a misdemeanor or gross misdemeanor by a district court requests permission to travel or transfer to another state, the assigned probation officer shall determine whether such request is subject to RCW 9.94A.745, the interstate compact for adult offender supervision. If such request is subject to the compact, the probation officer shall: (a) Notify the department of corrections of the probationer’s request; (b) Provide the department of corrections with the supporting documentation it requests for processing an application for transfer; (2006 Ed.) 3.70.030 (c) Notify the probationer of the fee due to the department of corrections for processing an application under the compact; (d) Cease supervision of the probationer while another state supervises the probationer pursuant to the compact; (e) Resume supervision if the probationer returns to this state before the term of probation expires. (2) The probationer shall receive credit for time served while being supervised by another state. (3) If the probationer is returned to the state at the request of the receiving state under rules of the interstate compact for adult offender supervision, the department of corrections is responsible for the cost of returning the probationer. (4) The state of Washington, the department of corrections and its employees, and any county and its employees are not liable for civil damages resulting from any act or omission authorized or required under this section unless the act or omission constitutes gross negligence. [2005 c 400 § 4.] Application—Effective date—2005 c 400: See notes following RCW 9.94A.74504. Chapter 3.70 Chapter 3.70 RCW MAGISTRATES’ ASSOCIATION Sections 3.70.010 3.70.020 3.70.030 3.70.040 District and municipal court judges’ association established. Formalities—Meetings. Expenses of members. Duties. 3.70.010 3.70.010 District and municipal court judges’ association established. There is established in the state an association, to be known as the Washington state district and municipal court judges’ association, membership in which shall include all duly elected or appointed and qualified judges of courts of limited jurisdiction, including but not limited to district judges and municipal court judges. [1994 c 32 § 3; 1987 c 3 § 2; 1984 c 258 § 50; 1961 c 299 § 123.] Severability—1987 c 3: See note following RCW 3.46.020. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.70.020 3.70.020 Formalities—Meetings. Members of the Washington state district and municipal court judges’ association may either amend the present bylaws of the association, adopt a constitution, or provide for bylaws only, electing officers as provided therein and doing all things necessary and proper to formally establish a permanent Washington state district and municipal court judges’ association. The association may meet each year at a time established by the association’s governing board. Meetings shall be held in the state of Washington. [1994 c 32 § 4; 1984 c 258 § 51; 1961 c 299 § 124.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.70.030 3.70.030 Expenses of members. For attendance at the annual meetings of the association, beginning in 1962 and thereafter, a judge of a court of limited jurisdiction shall be entitled to receive reimbursement for judge’s reasonable [Title 3 RCW—page 25] 3.70.040 Title 3 RCW: District Courts—Courts of Limited Jurisdiction travel expenses as provided in RCW 43.03.050 and 43.03.060 from the county or city responsible for the operating cost of the court over which he or she presides while attending meetings of the association. The per diem and transportation or mileage allowance authorized by this section shall not be paid to any judge for more than five days in any one calendar year. [1984 c 258 § 52; 1961 c 299 § 125.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.70.040 3.70.040 Duties. The Washington state district and municipal court judges’ association shall: (1) Continuously survey and study the operation of the courts served by its membership, the volume and condition of business of such courts, the methods of procedure therein, the work accomplished, and the character of the results; (2) Promulgate suggested rules for the administration of the courts of limited jurisdiction not inconsistent with the law or rules of the supreme court relating to such courts; (3) Report annually to the supreme court as well as the governor and the legislature on the condition of business in the courts of limited jurisdiction, including the association’s recommendations as to needed changes in the organization, operation, judicial procedure, and laws or statutes implemented or enforced in these courts. [1994 c 32 § 5; 1984 c 258 § 53; 1980 c 162 § 10; 1961 c 299 § 126.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Severability—1980 c 162: See note following RCW 3.02.010. Chapter 3.72 Chapter 3.72 RCW YOUTH COURT Sections 3.72.005 3.72.010 3.72.020 3.72.030 3.72.040 3.72.050 Definitions. Youth court creation—Jurisdiction. Youth court agreement. Purpose and limitations of youth courts, student courts. Youth court programs. Fee. 3.72.005 3.72.005 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Court" when used without further qualification means the district court under chapter 3.30 RCW, the municipal department under chapter 3.46 RCW, or the municipal court under chapter 3.50 or 35.20 RCW. (2) "Traffic infraction" means those acts defined as traffic infractions by RCW 46.63.020. (3) "Youth court" means an alternative method of hearing and disposing of traffic infractions for juveniles age sixteen or seventeen. [2002 c 237 § 1.] 3.72.010 3.72.010 Youth court creation—Jurisdiction. (1) A court created under chapter 3.30, 3.46, 3.50, or 35.20 RCW may create a youth court. The youth court shall have jurisdiction over traffic infractions alleged to have been committed by juveniles age sixteen or seventeen. The court may refer a juvenile to the youth court upon request of any party or upon its own motion. However, a juvenile shall not be required [Title 3 RCW—page 26] under this section to have his or her traffic infraction referred to or disposed of by a youth court. (2) To be referred to a youth court pursuant to this chapter, a juvenile: (a) May not have had a prior traffic infraction referred to a youth court; (b) May not be under the jurisdiction of any court for a violation of any provision of Title 46 RCW; (c) May not have any convictions for a violation of any provision of Title 46 RCW; and (d) Must acknowledge that there is a high likelihood that he or she would be found to have committed the traffic infraction. (3)(a) Nothing in this chapter shall interfere with the ability of juvenile courts to refer matters to youth courts that have been established to provide a diversion for matters involving juvenile offenders who are eligible for diversion pursuant to RCW 13.40.070 (6) and (7) and who agree, along with a parent, guardian, or legal custodian, to comply with the provisions of RCW 13.40.600. (b) Nothing in this chapter shall interfere with the ability of student courts to work with students who violate school rules and policies pursuant to RCW 28A.300.420. [2005 c 73 § 1; 2002 c 237 § 2.] 3.72.020 Youth court agreement. (1) A youth court agreement shall be a contract between a juvenile accused of a traffic infraction and a court whereby the juvenile agrees to fulfill certain conditions imposed by a youth court in lieu of a determination that a traffic infraction occurred. Such agreements may be entered into only after the law enforcement authority has determined that probable cause exists to believe that a traffic infraction has been committed and that the juvenile committed it. A youth court agreement shall be reduced to writing and signed by the court and the youth accepting the terms of the agreement. Such agreements shall be entered into as expeditiously as possible. (2) Conditions imposed on a juvenile by a youth court shall be limited to one or more of the following: (a) Community service not to exceed one hundred fifty hours, not to be performed during school hours if the juvenile is attending school; (b) Attendance at defensive driving school or driver improvement education classes or, in the discretion of the court, a like means of fulfilling this condition. The state shall not be liable for costs resulting from the youth court or the conditions imposed upon the juvenile by the youth court; (c) A monetary penalty, not to exceed one hundred dollars. All monetary penalties assessed and collected under this section shall be deposited and distributed in the same manner as costs, fines, forfeitures, and penalties are assessed and collected under RCW 2.68.040, 3.46.120, 3.50.100, 3.62.020, 3.62.040, 35.20.220, and *46.63.110(6), regardless of the juvenile’s successful or unsuccessful completion of the youth court agreement; (d) Requirements to remain during specified hours at home, school, or work, and restrictions on leaving or entering specified geographical areas; (e) Participating in law-related education classes; (f) Providing periodic reports to the youth court or the court; 3.72.020 (2006 Ed.) Miscellaneous (g) Participating in mentoring programs; (h) Serving as a participant in future youth court proceedings; (i) Writing apology letters; or (j) Writing essays. (3) Youth courts may require that the youth pay any costs associated with conditions imposed upon the youth by the youth court. (a) A youth court disposition shall be completed within one hundred eighty days from the date of referral. (b) The court, as specified in RCW 3.72.010, shall monitor the successful or unsuccessful completion of the disposition. (4) A youth court agreement may extend beyond the eighteenth birthday of the youth. (5) Any juvenile who is, or may be, referred to a youth court shall be afforded due process in all contacts with the youth court regardless of whether the juvenile is accepted by the youth court or whether the youth court program is successfully completed. Such due process shall include, but not be limited to, the following: (a) A written agreement shall be executed stating all conditions in clearly understandable language and the action that will be taken by the court upon successful or unsuccessful completion of the agreement; (b) Violation of the terms of the agreement shall be the only grounds for termination. (6) The youth court shall, subject to available funds, be responsible for providing interpreters when juveniles need interpreters to effectively communicate during youth court hearings or negotiations. (7) The court shall be responsible for advising a juvenile of his or her rights as provided in this chapter. (8) When a juvenile enters into a youth court agreement, the court may receive only the following information for dispositional purposes: (a) The fact that a traffic infraction was alleged to have been committed; (b) The fact that a youth court agreement was entered into; (c) The juvenile’s obligations under such agreement; (d) Whether the juvenile performed his or her obligations under such agreement; and (e) The facts of the alleged traffic infraction. (9) A court may refuse to enter into a youth court agreement with a juvenile. When a court refuses to enter a youth court agreement with a juvenile, it shall set the matter for hearing in accordance with all applicable court rules and statutory provisions governing the hearing and disposition of traffic infractions. (10) If a monetary penalty required by a youth court agreement cannot reasonably be paid due to a lack of financial resources of the youth, the court may convert any or all of the monetary penalty into community service. The modification of the youth court agreement shall be in writing and signed by the juvenile and the court. The number of hours of community service in lieu of a monetary penalty shall be converted at the rate of the prevailing state minimum wage per hour. [2002 c 237 § 3.] *Reviser’s note: RCW 46.63.110 was amended by 2002 c 279 § 15, changing subsection (6) to subsection (7). (2006 Ed.) Chapter 3.74 3.72.030 3.72.030 Purpose and limitations of youth courts, student courts. Youth courts provide a disposition method for cases involving juveniles alleged to have committed traffic infractions. Youth courts may also provide diversion in cases involving juvenile offenders who are eligible for diversion pursuant to RCW 13.40.070 (6) and (7) and who agree, along with a parent, guardian, or legal custodian, to comply with the provisions of RCW 13.40.600. Student court programs may also be available in schools to work with students who violate school rules and policies pursuant to RCW 28A.300.420. Youth court participants, under the supervision of the court or an adult coordinator, may serve in various capacities within the youth court, acting in the role of jurors, lawyers, bailiffs, clerks, and judges. Youth courts and student courts have no jurisdiction except as provided for in this chapter, chapter 13.40 RCW, and RCW 28A.300.420. Youth courts and student courts are not courts established under Article IV of the state Constitution. [2005 c 73 § 2; 2002 c 237 § 4.] 3.72.040 3.72.040 Youth court programs. The administrative office of the courts shall encourage the courts to work with cities, counties, and schools to implement, expand, or use youth court programs for juveniles who commit traffic infractions. Program operations of youth court programs may be funded by government and private grants. Youth court programs are limited to those that: (1) Are developed using the guidelines for creating and operating youth court programs developed by nationally recognized experts in youth court projects; (2) Target youth ages sixteen and seventeen who are alleged to have committed a traffic infraction; and (3) Emphasize the following principles: (a) Youth must be held accountable for their problem behavior; (b) Youth must be educated about the impact their actions have on themselves and others including their victims, their families, and their community; (c) Youth must develop skills to resolve problems with their peers more effectively; and (d) Youth should be provided a meaningful forum to practice and enhance newly developed skills. [2002 c 237 § 5.] 3.72.050 3.72.050 Fee. A court may require that a youth pay a nonrefundable fee, not exceeding thirty dollars, to cover the costs of administering the program. The fee may be reduced or waived for a participant. Fees shall be paid to and accounted for by the court. The fees collected under this section shall not constitute "certain costs" as defined in RCW 3.46.120(2), 3.50.100(2), 3.62.020(2), 3.62.040(2), and 35.20.220(2). [2002 c 237 § 6.] Chapter 3.74 Chapter 3.74 RCW MISCELLANEOUS Sections 3.74.010 3.74.020 3.74.030 District judges to be members of state retirement system. Full time district judges ineligible for any other office or public employment than judicial. Mandatory retirement for district judges. [Title 3 RCW—page 27] 3.74.010 3.74.900 3.74.930 3.74.931 3.74.932 3.74.940 Title 3 RCW: District Courts—Courts of Limited Jurisdiction Transfer of proceedings—1961 c 299. Severability—1961 c 299. Severability—1965 ex.s. c 110. Severability—1967 c 241. Validation—1991 c 363; 1965 ex.s. c 110. circumstance is held invalid, the remainder of this 1967 amendatory act, or the application of the provision to other persons or circumstances is not affected. [1967 c 241 § 11.] 3.74.940 Validation—1991 c 363; 1965 ex.s. c 110. Any prior action by the legislative authority of any county with a population of less than two hundred ten thousand to make the provisions of chapters 3.30 through 3.74 RCW applicable to their county and the organization of any justice court as a result thereof, and all other things and proceedings done or taken by such county or by their respective officers acting under or in pursuance to such prior action and organization are hereby declared legal and valid and of full force and effect. [1991 c 363 § 6; 1965 ex.s. c 110 § 4.] 3.74.940 3.74.010 3.74.010 District judges to be members of state retirement system. All district judges under chapters 3.30 through 3.74 RCW shall remain members of the state retirement system. [1984 c 258 § 54; 1961 c 299 § 130.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.74.020 3.74.020 Full time district judges ineligible for any other office or public employment than judicial. The full time judges of the district court shall be ineligible to any other office, or public employment than a judicial office or employment during the term for which they shall have been elected. [1984 c 258 § 55; 1961 c 299 § 131.] Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.74.030 Mandatory retirement for district judges. A district judge shall retire from judicial office at the end of the calendar year in which he or she has attained the age of seventy-five years. This provision shall not affect the term to which any such judge shall have been elected or appointed prior to August 11, 1969. [1984 c 258 § 56; 1969 ex.s. c 6 § 1.] 3.74.030 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 3.74.900 3.74.900 Transfer of proceedings—1961 c 299. All cases, proceedings and matters pending before justice courts, police courts, municipal courts and night courts shall be transferred to the appropriate court established by chapters 3.30 through 3.74 RCW, together with all files, records and proceedings relating to such cases. Chapters 3.30 through 3.74 RCW shall not affect any appeal from any municipal court, police court, justice court or night court, but such appeal shall be conducted and concluded as if chapters 3.30 through 3.74 RCW had not been enacted, except that if remanded from the superior court the superseding court shall have the authority and power to forfeit bail or bond or impose sentence thereon. [1961 c 299 § 127.] 3.74.930 Severability—1961 c 299. If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1961 c 299 § 132.] 3.74.930 3.74.931 3.74.931 Severability—1965 ex.s. c 110. If any provision or clause of this act or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable. [1965 ex.s. c 110 § 8.] 3.74.932 3.74.932 Severability—1967 c 241. If any provision of this 1967 amendatory act, or its application to any person or [Title 3 RCW—page 28] (2006 Ed.) Title 4 Title 4 CIVIL PROCEDURE Chapters 4.04 Rule of decision—Form of actions. 4.08 Parties to actions. 4.12 Venue—Jurisdiction. 4.14 Removal of certain actions to superior court. 4.16 Limitation of actions. 4.18 Uniform conflict of laws—Limitations act. 4.20 Survival of actions. 4.22 Contributory fault—Effect—Imputation—Contribution—Settlement agreements. 4.24 Special rights of action and special immunities. 4.28 Commencement of actions. 4.32 Pleadings. 4.36 General rules of pleading. 4.40 Issues. 4.44 Trial. 4.48 Trial before referee. 4.52 Agreed cases. 4.56 Judgments—Generally. 4.60 Judgment by confession. 4.64 Entry of judgments. 4.68 Procedure to bind joint debtor. 4.72 Vacation and modification of judgments. 4.76 New trials. 4.80 Exceptions. 4.84 Costs. 4.88 Appeals. 4.92 Actions and claims against state. 4.96 Actions against political subdivisions, municipal and quasi-municipal corporations. Arbitration of civil actions: Chapter 7.06 RCW. Bonds, judicial attachment: Chapter 6.25 RCW. bail and appearance: Chapter 10.19 RCW. civil actions, court to fix amount: RCW 4.44.470. civil appeals from district courts: Chapter 12.36 RCW. contempt: Chapter 7.21 RCW. costs, security: RCW 4.84.210 through 4.84.240. criminal appeals from district courts: Chapter 10.10 RCW. criminal appeals to supreme court: Chapter 10.73 RCW. executions, levy on joint personalty: RCW 6.17.180, 6.17.190. extradition: Chapter 10.88 RCW. garnishment: Chapter 6.27 RCW. guardians: Chapters 11.88, 11.92 RCW. injunction: Chapter 7.40 RCW. judgments, sentences, good behavior, maintain peace: RCW 10.64.070. municipal courts: Chapter 35.20 RCW. ne exeat: Chapter 7.44 RCW. nuisance, stay of warrant: RCW 7.48.040. preliminary hearings: Chapter 10.16 RCW. public officers, official bonds: Chapter 42.08 RCW. replevin: Chapter 7.64 RCW. replevin, district courts: Chapter 12.28 RCW. suretyship, generally: Chapters 19.72, 48.28 RCW. Chattel mortgages, foreclosure: Article 62A.9A RCW. Claims against cities and towns: Chapters 35.31, 35A.31 RCW. counties: Chapter 36.45 RCW. Claims, reports, etc., filing and receipt: RCW 1.12.070. Federal court local law certificate procedure act: Chapter 2.60 RCW. (2006 Ed.) Foreign corporations, nonadmitted—Actions against: Chapter 23B.18 RCW. Immunity from implied warranties and civil liability relating to blood, plasma, and blood derivatives—Scope—Effective date: RCW 70.54.120. Indians, jurisdiction in criminal and civil causes: Chapter 37.12 RCW. Industrial insurance, procedure: Title 51 RCW. Justice without unnecessary delay: State Constitution Art. 1 § 10. Liens, foreclosure: Title 60 RCW. Public bodies may retain collection agencies to collect public debts—Fees: RCW 19.16.500. Real estate mortgages, foreclosure: Chapter 61.12 RCW. Redress of injuries to property under code of military justice: RCW 38.38.856. Tax refunds: Chapter 84.69 RCW. Chapter 4.04 RCW RULE OF DECISION—FORM OF ACTIONS Chapter 4.04 Sections 4.04.010 Extent to which common law prevails. General definitions: Chapter 1.16 RCW. Rules of construction: Chapter 1.12 RCW. 4.04.010 4.04.010 Extent to which common law prevails. The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state. [1891 c 17 § 1; Code 1881 § 1; 1877 p 3 § 1; 1862 p 83 § 1; RRS § 143. Formerly RCW 1.12.030.] Chapter 4.08 Chapter 4.08 RCW PARTIES TO ACTIONS Sections 4.08.030 4.08.040 4.08.050 4.08.060 4.08.080 4.08.100 4.08.110 4.08.120 4.08.140 4.08.150 4.08.160 4.08.170 4.08.180 Either husband or wife may sue for community—Necessary parties. When husband and wife may join, defend. Guardian ad litem for infant. Guardian ad litem for incapacitated person. Action on assigned choses in action. Action to recover purchase money on land—Final judgment. Action by public corporations. Action against public corporations. New party entitled to service of summons. Substitution and interpleader. Action to determine conflicting claims to property. Action to determine conflicting claims to property—Disclaimer and deposit in court. Action to determine conflicting claims to property—Trial of issue. Persons licensed to provide health care or related services, employees, hospitals, clinics, etc.—Professional review committee, society, examining or disciplinary board members, etc.—Immunity from civil suit arising from duties: RCW 4.24.240. [Title 4 RCW—page 1] 4.08.030 Title 4 RCW: Civil Procedure 4.08.030 4.08.030 Either husband or wife may sue for community—Necessary parties. Either husband or wife may sue on behalf of the community: PROVIDED, That (1) When the action is for personal injuries, the spouse having sustained personal injuries is a necessary party; (2) When the action is for compensation for services rendered, the spouse having rendered the services is a necessary party. [1972 ex.s. c 108 § 1; Code 1881 § 6; 1877 p 4 § 6; 1875 p 4 § 2; 1869 p 4 § 6; 1854 p 131 § 5; RRS § 181.] 4.08.040 4.08.040 When husband and wife may join, defend. Husband and wife may join in all causes of action arising from injuries to the person or character of either or both of them, or from injuries to the property of either or both of them, or arising out of any contract in favor of either or both of them. If a husband and wife be sued together, either or both spouses may defend, and if one spouse neglects to defend, the other spouse may defend for the nonacting spouse also. And each spouse may defend in all cases in which he or she is interested, whether that spouse is sued with the other spouse or not. [1972 ex.s. c 108 § 2; Code 1881 § 7; 1877 p 4 § 7; 1875 p 4 § 3; 1854 p 219 § 492; RRS § 182.] 4.08.050 4.08.050 Guardian ad litem for infant. Except as provided under RCW 26.50.020 and 28A.225.035, when an infant is a party he or she shall appear by guardian, or if he or she has no guardian, or in the opinion of the court the guardian is an improper person, the court shall appoint one to act. Said guardian shall be appointed as follows: (1) When the infant is plaintiff, upon the application of the infant, if he or she be of the age of fourteen years, or if under that age, upon the application of a relative or friend of the infant. (2) When the infant is defendant, upon the application of the infant, if he or she be of the age of fourteen years, and applies within thirty days after the service of the summons; if he or she be under the age of fourteen, or neglects to apply, then upon the application of any other party to the action, or of a relative or friend of the infant. [1996 c 134 § 7; 1992 c 111 § 9; 1891 c 30 § 1; Code 1881 § 12; 1854 p 132 §§ 6, 7; RRS § 187.] Severability—1992 c 111: See RCW 26.50.903. Findings—1992 c 111: See note following RCW 26.50.030. 4.08.060 4.08.060 Guardian ad litem for incapacitated person. When an incapacitated person is a party to an action in the superior courts he or she shall appear by guardian, or if he or she has no guardian, or in the opinion of the court the guardian is an improper person, the court shall appoint one to act as guardian ad litem. Said guardian shall be appointed as follows: (1) When the incapacitated person is plaintiff, upon the application of a relative or friend of the incapacitated person. (2) When the incapacitated person is defendant, upon the application of a relative or friend of such incapacitated person, such application shall be made within thirty days after the service of summons if served in the state of Washington, and if served out of the state or service is made by publication, then such application shall be made within sixty days [Title 4 RCW—page 2] after the first publication of summons or within sixty days after the service out of the state. If no such application be made within the time above limited, application may be made by any party to the action. [1996 c 249 § 5; 1899 c 91 § 1; RRS § 188.] Intent—1996 c 249: See note following RCW 2.56.030. 4.08.080 4.08.080 Action on assigned choses in action. Any assignee or assignees of any judgment, bond, specialty, book account, or other chose in action, for the payment of money, by assignment in writing, signed by the person authorized to make the same, may, by virtue of such assignment, sue and maintain an action or actions in his or her name, against the obligor or obligors, debtor or debtors, named in such judgment, bond, specialty, book account, or other chose in action, notwithstanding the assignor may have an interest in the thing assigned: PROVIDED, That any debtor may plead in defense as many defenses, counterclaims and offsets, whether they be such as have heretofore been denominated legal or equitable, or both, if held by him against the original owner, against the debt assigned, save that no counterclaim or offset shall be pleaded against negotiable paper assigned before due, and where the holder thereof has purchased the same in good faith and for value, and is the owner of all interest therein. [1927 c 87 § 1; 1891 c 30 § 2; Code 1881 § 15; 1879 p 122 § 1; 1854 p 131 § 3; RRS § 191.] 4.08.100 4.08.100 Action to recover purchase money on land—Final judgment. In any action brought for the recovery of the purchase money against any person holding a contract for the purchase of lands, the party bound to perform the contract, if not the plaintiff, may be made a party, and the court in a final judgment may order the interest of purchaser to be sold or transferred to the plaintiff upon such terms as may be just, and may also order a specific performance of the contract in favor of the complainant, or the purchaser, in case a sale be ordered. [Code 1881 § 19; 1877 p 6 § 19; 1854 p 219 § 490; RRS § 195.] 4.08.110 4.08.110 Action by public corporations. An action at law may be maintained by any county, incorporated town, school district or other public corporation of like character, in its corporate name, and upon a cause of action accruing to it, in its corporate character and not otherwise, in any of the following cases: (1) Upon a contract made with such public corporation; (2) Upon a liability prescribed by law in favor of such public corporation; (3) To recover a penalty or forfeiture given to such public corporation; (4) To recover damages for an injury to the corporate rights or property of such public corporation. [1953 c 118 § 1. Prior: Code 1881 § 661; 1869 p 154 § 601; RRS § 950.] 4.08.120 4.08.120 Action against public corporations. An action may be maintained against a county or other of the public corporations mentioned or described in RCW 4.08.110, either upon a contract made by such county, or other public corporation in its corporate character and within the scope of its authority, or for an injury to the rights of the (2006 Ed.) Venue—Jurisdiction plaintiff arising from some act or omission of such county or other public corporation. [1953 c 118 § 2. Prior: Code 1881 § 662; 1869 p 154 § 602; RRS § 951.] 4.12.020 The court or judge thereof may make all necessary orders, during the pendency of said action, for the preservation and protection of the rights, interests or liens of the several parties. [1890 p 94 § 3; RRS § 201.] 4.08.140 4.08.140 New party entitled to service of summons. When a new party is introduced into an action as a representative or successor of a former party, such new party is entitled to the same summons to be served in the same manner as required for defendants in the commencement of an action. [1957 c 7 § 1. Prior: Code 1881 §§ 21, 742; 1877 pp 6 and 151 §§ 21, 747; 1873 pp 7 and 176 §§ 21, 682; 1869 pp 6 and 172 §§ 21, 684; 1863 p 194 § 524; 1860 p 99 § 477; 1854 p 219 § 485; RRS § 197.] Rules of court: Cf. CR 3; CR 5. Chapter 4.12 Sections 4.12.010 4.12.020 4.12.025 4.12.030 4.12.040 4.08.150 4.08.150 Substitution and interpleader. A defendant against whom an action is pending upon a contract, or for specific real or personal property, at any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, may apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct; and the court may make the order. [Code 1881 § 22; 1877 p 6 § 22; 1869 p 7 § 22; 1854 p 132 § 12; RRS § 198.] Rules of court: Interpleader—CR 22; Substitution—CR 25. 4.08.160 4.08.160 Action to determine conflicting claims to property. Anyone having in his possession, or under his control, any property or money, or being indebted, where more than one person claims to be the owner of, entitled to, interested in, or to have a lien on, such property, money or indebtedness, or any part thereof, may commence an action in the superior court against all or any of such persons, and have their rights, claims, interest or liens adjudged, determined and adjusted in such action. [1890 p 93 § 1; RRS § 199.] Chapter 4.12 RCW VENUE—JURISDICTION 4.12.050 4.12.060 4.12.070 4.12.080 4.12.090 4.12.100 4.12.110 4.12.120 Actions to be commenced where subject is situated. Actions to be tried in county where cause arose. Action to be brought where defendant resides—Optional venue of actions upon unlawful issuance of check or draft— Residence of corporations—Optional venue of actions against corporations. Grounds authorizing change of venue. Prejudice of judge, transfer to another department, visiting judge—Change of venue generally, criminal cases. Affidavit of prejudice. To what county venue may be changed—Limitation on number of changes. Change to newly created county. Change by stipulation. Transmission of record on change of venue—Costs, attorney’s fee. Transcript of record entries. Effect of neglect of moving party. Change deemed complete, when. Rules of court: Venue—CR 82. Actions against nonresident motorist: RCW 46.64.040. 4.12.010 4.12.010 Actions to be commenced where subject is situated. Actions for the following causes shall be commenced in the county in which the subject of the action, or some part thereof, is situated: (1) For the recovery of, for the possession of, for the partition of, for the foreclosure of a mortgage on, or for the determination of all questions affecting the title, or for any injuries to real property. (2) All questions involving the rights to the possession or title to any specific article of personal property, in which last mentioned class of cases, damages may also be awarded for the detention and for injury to such personal property. [Code 1881 § 47; 1877 p 11 § 48; 1869 p 12 § 48; 1860 p 7 § 15; 1854 p 133 § 13; RRS § 204.] 4.08.170 4.08.170 Action to determine conflicting claims to property—Disclaimer and deposit in court. In any action commenced under RCW 4.08.160, the plaintiff may disclaim any interest in the money, property or indebtedness, and deposit with the clerk of the court the full amount of such money or indebtedness, or other property, and he shall not be liable for any costs accruing in said action. And the clerks of the various courts shall receive and file such complaint, and all other officers shall execute the necessary processes to carry out the purposes of this section, and RCW 4.08.160 and 4.08.180, free from all charge to said plaintiff, and the court, in its discretion, shall determine the liability for costs of the action. [1890 p 93 § 2; RRS § 200.] 4.08.180 4.08.180 Action to determine conflicting claims to property—Trial of issue. Either of the defendants may set up or show any claim or lien he may have to such property, money or indebtedness, or any part thereof, and the superior right, title or lien, whether legal or equitable, shall prevail. (2006 Ed.) 4.12.020 4.12.020 Actions to be tried in county where cause arose. Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose: (1) For the recovery of a penalty or forfeiture imposed by statute; (2) Against a public officer, or person specially appointed to execute his or her duties, for an act done by him or her in virtue of his or her office, or against a person who, by his or her command or in his or her aid, shall do anything touching the duties of such officer; (3) For the recovery of damages for injuries to the person or for injury to personal property, the plaintiff shall have the option of suing either in the county in which the cause of action or some part thereof arose, or in the county in which the defendant resides, or if there be more than one defendant, where some one of the defendants resides, at the time of the commencement of the action. [2001 c 45 § 2; 1941 c 81 § 1; Code 1881 § 48; 1877 p 11 § 49; 1869 p 12 § 49; 1860 p 7 § 16; 1854 p 133 § 14; Rem. Supp. 1941 § 205.] [Title 4 RCW—page 3] 4.12.025 Title 4 RCW: Civil Procedure 4.12.025 Action to be brought where defendant resides—Optional venue of actions upon unlawful issuance of check or draft—Residence of corporations— Optional venue of actions against corporations. (1) An action may be brought in any county in which the defendant resides, or, if there be more than one defendant, where some one of the defendants resides at the time of the commencement of the action. For the purpose of this section, the residence of a corporation defendant shall be deemed to be in any county where the corporation: (a) Transacts business; (b) has an office for the transaction of business; (c) transacted business at the time the cause of action arose; or (d) where any person resides upon whom process may be served upon the corporation. (2) An action upon the unlawful issuance of a check or draft may be brought in any county in which the defendant resides or may be brought in any division of the judicial district in which the check was issued or presented as payment. (3) The venue of any action brought against a corporation, at the option of the plaintiff, shall be: (a) In the county where the tort was committed; (b) in the county where the work was performed for said corporation; (c) in the county where the agreement entered into with the corporation was made; or (d) in the county where the corporation has its residence. [1998 c 56 § 1; 1985 c 68 § 2; 1983 c 31 § 1; 1965 c 53 § 168; 1927 c 173 § 1; RRS § 205-1. Prior: 1909 c 42 § 1; Code 1881 § 49; 1877 p 11 § 50; 1869 p 13 § 50; 1860 p 101 § 488; 1854 p 220 § 494.] 4.12.025 4.12.030 4.12.030 Grounds authorizing change of venue. The court may, on motion, in the following cases, change the place of trial when it appears by affidavit, or other satisfactory proof: (1) That the county designated in the complaint is not the proper county; or, (2) That there is reason to believe that an impartial trial cannot be had therein; or, (3) That the convenience of witnesses or the ends of justice would be forwarded by the change; or, (4) That from any cause the judge is disqualified; which disqualification exists in either of the following cases: In an action or proceeding to which he is a party, or in which he is interested; when he is related to either party by consanguinity or affinity, within the third degree; when he has been of counsel for either party in the action or proceeding. [Code 1881 § 51; 1877 p 12 § 52; 1875 p 6 § 8; 1869 p 13 § 52; 1854 p 134 § 16; RRS § 209.] 4.12.040 4.12.040 Prejudice of judge, transfer to another department, visiting judge—Change of venue generally, criminal cases. (1) No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding when it shall be established as hereinafter provided that said judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. In such case the presiding judge in judicial districts where there is more than one judge shall forthwith transfer the action to another department of the same court, or call in a judge from some other court. In all judicial districts where there is only one judge, a certified copy of the motion and affidavit filed in the cause shall be transmitted by the clerk of the superior [Title 4 RCW—page 4] court to the clerk of the superior court designated by the chief justice of the supreme court. Upon receipt the clerk of said superior court shall transmit the forwarded affidavit to the presiding judge who shall direct a visiting judge to hear and try such action as soon as convenient and practical. (2) The presiding judge in judicial districts where there is more than one judge, or the presiding judge of judicial districts where there is only one judge, may send a case for trial to another court if the convenience of witnesses or the ends of justice will not be interfered with by such a course and the action is of such a character that a change of venue may be ordered: PROVIDED, That in criminal prosecutions the case shall not be sent for trial to any court outside the county unless the accused shall waive his right to a trial by a jury of the county in which the offense is alleged to have been committed. [1989 c 15 § 1; 1961 c 303 § 1; 1927 c 145 § 1; 1911 c 121 § 1; RRS § 209-1.] Criminal proceedings, venue and jurisdiction: Chapter 10.25 RCW. 4.12.050 4.12.050 Affidavit of prejudice. Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion, supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge: PROVIDED, That such motion and affidavit is filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case, either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion, but the arrangement of the calendar, the setting of an action, motion or proceeding down for hearing or trial, the arraignment of the accused in a criminal action or the fixing of bail, shall not be construed as a ruling or order involving discretion within the meaning of this proviso; and in any event, in counties where there is but one resident judge, such motion and affidavit shall be filed not later than the day on which the case is called to be set for trial: AND PROVIDED FURTHER, That notwithstanding the filing of such motion and affidavit, if the parties shall, by stipulation in writing agree, such judge may hear argument and rule upon any preliminary motions, demurrers, or other matter thereafter presented: AND PROVIDED FURTHER, That no party or attorney shall be permitted to make more than one such application in any action or proceeding under this section and RCW 4.12.040. [1941 c 148 § 1; 1927 c 145 § 2; 1911 c 121 § 2; Rem. Supp. 1941 § 209-2.] Rules of court: Demurrers abolished—CR 7(c). 4.12.060 4.12.060 To what county venue may be changed— Limitation on number of changes. If the motion for a change of the place of trial be allowed, the change shall be made to the county where the action ought to have been commenced, if it be for the cause mentioned in RCW 4.12.030(1), and in other cases to the most convenient county where the cause alleged does not exist. Neither party shall be entitled to more than one change of the place of trial, except for causes (2006 Ed.) Removal of Certain Actions to Superior Court not in existence when the first change was allowed. [Code 1881 § 52; 1877 p 12 § 53; 1869 p 14 § 53; RRS § 210.] 4.12.070 4.12.070 Change to newly created county. Any party in a civil action pending in the superior court in a county out of whose limits a new county, in whole or in part, has been created, may file with the clerk of such superior court an affidavit setting forth that he is a resident of such newly created county, and that the venue of such action is transitory, or that the venue of such action is local, and that it ought properly to be tried in such newly created county; and thereupon the clerk shall make out a transcript of the proceedings already had in such action in such superior court, and certify it under the seal of the court, and transmit such transcript, together with the papers on file in his office connected with such action, to the clerk of the superior court of such newly created county, wherein it shall be proceeded with as in other cases. [1891 c 33 § 2; Code 1881 § 53; 1877 p 12 § 54; 1869 p 14 § 54; 1854 p 377 § 2; RRS § 211.] 4.14.020 of all record entries up to and including the order for such change. [Code 1881 § 58; 1877 p 13 § 59; RRS § 219.] 4.12.110 Effect of neglect of moving party. If such papers be not transmitted to the clerk of the proper court within the time prescribed in the order allowing the change, and the delay be caused by the act or omission of the party procuring the change, the adverse party, on motion to the court or judge thereof, may have the order vacated, and thereafter no other change of the place of trial shall be allowed to such party. [Code 1881 § 56; 1877 p 13 § 57; 1869 p 15 § 57; 1854 p 135 § 21; RRS § 217.] 4.12.110 4.12.120 Change deemed complete, when. Upon the filing of the papers with the clerk of the court to which the cause is transferred, the change of venue shall be deemed complete, and thereafter the action shall proceed as though it had been commenced in that court. [Code 1881 § 57; 1877 p 13 § 58; 1869 p 15 § 58; 1854 p 135 § 22; RRS § 218.] 4.12.120 4.12.080 4.12.080 Change by stipulation. Notwithstanding the provisions of RCW 4.12.030 all the parties to the action by stipulation in writing or by consent in open court entered in the records may agree that the place of trial be changed to any county of the state, and thereupon the court must order the change agreed upon. [Code 1881 § 55; 1877 p 13 § 56; RRS § 216.] 4.12.090 4.12.090 Transmission of record on change of venue—Costs, attorney’s fee. (1) When an order is made transferring an action or proceeding for trial, the clerk of the court must transmit the pleadings and papers therein to the court to which it is transferred and charge a fee as provided in RCW 36.18.016. The costs and fees thereof and of filing the papers anew must be paid by the party at whose instance the order was made, except in the cases mentioned in RCW 4.12.030(1), in which case the plaintiff shall pay costs of transfer and, in addition thereto, if the court finds that the plaintiff could have determined the county of proper venue with reasonable diligence, it shall order the plaintiff to pay the reasonable attorney’s fee of the defendant for the changing of venue to the proper county. The court to which an action or proceeding is transferred has and exercises over the same the like jurisdiction as if it had been originally commenced therein. (2) In acting on any motion for dismissal without prejudice in a case where a motion for change of venue under subsection (1) of this section has been made, the court shall, if it determines the motion for change of venue proper, determine the amount of attorney’s fee properly to be awarded to defendant and, if the action be dismissed, the attorney’s fee shall be a setoff against any claim subsequently brought on the same cause of action. [2005 c 457 § 11; 1969 ex.s. c 144 § 1; Code 1881 § 54; 1877 p 12 § 55; 1875 p 7 § 10; 1869 p 14 §§ 55, 56; RRS § 215.] Intent—2005 c 457: See note following RCW 43.08.250. 4.12.100 4.12.100 Transcript of record entries. The clerk of the court must also transmit with the original papers where an order is made changing the place of trial, a certified transcript (2006 Ed.) Chapter 4.14 Chapter 4.14 RCW REMOVAL OF CERTAIN ACTIONS TO SUPERIOR COURT Sections 4.14.010 4.14.020 4.14.030 4.14.040 Removal of certain actions from justice court to superior court authorized—Grounds—Joint claims or actions—Exceptions. Petition for removal—Contents—Filing—Notice. Orders and process upon removal—Remand of cases improvidently removed. Attached property—Custody. 4.14.010 Removal of certain actions from justice court to superior court authorized—Grounds—Joint claims or actions—Exceptions. Whenever the removal of such action to superior court is required in order to acquire jurisdiction over a third party defendant, who is or may be liable to the defendant for all or part of the judgment and resides outside the county wherein the action was commenced, any civil action which could have been brought in superior court may, if commenced in district court, be removed by the defendant or defendants to the superior court for the county where such action is pending if the district court determines that there are reasonable grounds to believe that a third party may be liable to the plaintiff and issues an order so stating. Whenever a separate or independent claim or cause of action which would be removable if sued upon alone is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the superior court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction. This section does not apply to cases originally filed in the small claims department of a district court, or transferred to the small claims department pursuant to RCW 12.40.025, except as set forth in RCW 12.40.027. [1997 c 352 § 6; 1967 ex.s. c 46 § 4.] 4.14.010 4.14.020 4.14.020 Petition for removal—Contents—Filing— Notice. (1) A defendant or defendants desiring to remove any civil action from a justice court as authorized by RCW [Title 4 RCW—page 5] 4.14.030 Title 4 RCW: Civil Procedure 4.14.010 shall file in the superior court in the county where such action is pending, a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action. (2) The petition for removal of a civil action or proceeding shall be filed within twenty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper, including the defendant’s answer, from which it may first be ascertained that the case is or has become removable. (3) Promptly after the filing of such petition the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the justice court, which shall effect the removal and the justice court shall proceed no further unless and until the case is remanded. [1967 ex.s. c 46 § 5.] 4.14.030 Orders and process upon removal— Remand of cases improvidently removed. In any case removed from justice court under the provisions of this chapter, the superior court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the justice court or otherwise. If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the superior court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by the clerk of the superior court to the justice court. The justice court may thereupon proceed with such case. [1967 ex.s. c 46 § 6.] 4.14.030 4.14.040 Attached property—Custody. Whenever any action is removed from a justice court to a superior court under the provisions of this chapter, any attachment or sequestration of the property of the defendant in such action in the justice court shall remain in the custody of the sheriff to answer the final judgment or decree in the same manner as would have been held to answer had the cause been brought in the superior court originally. [1967 ex.s. c 46 § 7.] 4.14.040 Chapter 4.16 Chapter 4.16 RCW LIMITATION OF ACTIONS Sections 4.16.005 4.16.020 4.16.030 4.16.040 4.16.050 4.16.060 4.16.070 4.16.080 4.16.085 4.16.090 4.16.100 4.16.110 4.16.112 4.16.115 Commencement of actions. Actions to be commenced within ten years—Exception. Actions to foreclose special assessments. Actions limited to six years. Action on irrigation or drainage district warrant. Action on irrigation district bonds. Actions limited to five years. Actions limited to three years. Actions based on product defects, etc. Action to cancel tax deed. Actions limited to two years. Actions limited to one year. Actions for contribution between joint tort feasors. Special provisions for action on penalty. [Title 4 RCW—page 6] 4.16.130 4.16.150 4.16.160 4.16.170 4.16.180 4.16.190 4.16.200 4.16.210 4.16.220 4.16.230 4.16.240 4.16.250 4.16.260 4.16.270 4.16.280 4.16.290 4.16.300 4.16.310 4.16.320 4.16.325 4.16.326 4.16.327 4.16.340 4.16.350 4.16.360 4.16.370 Action for relief not otherwise provided for. Action on mutual open accounts. Application of limitations to actions by state, counties, municipalities. Tolling of statute—Actions, when deemed commenced or not commenced. Statute tolled by absence from state, concealment, etc. Statute tolled by personal disability. Statute tolled by death. Statute tolled—By war as to enemy alien. Statute tolled—As to person in military service of United States. Statute tolled by judicial proceedings. Effect of reversal of judgment on appeal. Disability must exist when right of action accrued. Coexisting disabilities. Effect of partial payment. New promise must be in writing. Foreign statutes of limitation, how applied. Actions or claims arising from construction, alteration, repair, design, planning, survey, engineering, etc., of improvements upon real property. Actions or claims arising from construction, alteration, repair, design, planning, survey, engineering, etc., of improvements upon real property—Accrual and limitations of actions or claims. Actions or claims arising from construction, alteration, repair, design, planning, survey, engineering, etc., of improvements upon real property—Construction. Actions or claims arising from construction defect claims— Statute tolled. Actions or claims for construction defect claims—Comparative fault. Actions or claims for construction defects—Emergency repairs. Actions based on childhood sexual abuse. Action for injuries resulting from health care or related services—Physicians, dentists, nurses, etc.—Hospitals, clinics, nursing homes, etc. Application of chapter to paternity action. Actions against personal representative or trustee for breach of fiduciary duties—Statute of limitations. Claims against counties: RCW 36.32.330; chapter 36.45 RCW. estates: RCW 11.40.051, 11.40.060. the state: RCW 4.92.050. Criminal procedure, limitation of actions: RCW 9A.04.080. Garnishment writ, dismissal after one year: RCW 6.27.310. Lawyer discipline: Rules of court—RLD 12.10. Product liability actions: RCW 7.72.060(3). Tax liability, action by another state, limitation: RCW 4.24.140. Uniform conflict of laws—Limitations act: Chapter 4.18 RCW. Usury, business organizations engaged in lending or real estate development cannot bring action: RCW 19.52.080. 4.16.005 4.16.005 Commencement of actions. Except as otherwise provided in this chapter, and except when in special cases a different limitation is prescribed by a statute not contained in this chapter, actions can only be commenced within the periods provided in this chapter after the cause of action has accrued. [1989 c 14 § 1.] 4.16.020 4.16.020 Actions to be commenced within ten years— Exception. The period prescribed for the commencement of actions shall be as follows: Within ten years: (1) For actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appears that the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action. (2006 Ed.) Limitation of Actions (2) For an action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, or of any territory or possession of the United States outside the boundaries thereof, or of any extraterritorial court of the United States, unless the period is extended under RCW 6.17.020 or a similar provision in another jurisdiction. (3) Of the eighteenth birthday of the youngest child named in the order for whom support is ordered for an action to collect past due child support that has accrued under an order entered after July 23, 1989, by any of the above-named courts or that has accrued under an administrative order as defined in RCW 74.20A.020(6), which is issued after July 23, 1989. [2002 c 261 § 2; 1994 c 189 § 2; 1989 c 360 § 1; 1984 c 76 § 1; 1980 c 105 § 1; Code 1881 § 26; 1877 p 7 § 26; 1854 p 363 § 2; RRS § 156.] Application—1980 c 105: "This act shall apply to all judgments which have not expired before June 12, 1980." [1980 c 105 § 7.] Adverse possession limitation tolled when personal disability: RCW 7.28.090. recovery of realty, limitation: RCW 7.28.050. 4.16.030 4.16.030 Actions to foreclose special assessments. An action to collect any special assessment for local improvements of any kind against any person, corporation or property whatsoever, or to enforce any lien for any special assessment for local improvements of any kind, whether said action be brought by a municipal corporation or by the holder of any delinquency certificate, or by any other person having the right to bring such an action, shall be commenced within ten years after such assessment shall have become delinquent, or due, or within ten years after the last installment of any such special assessment shall have become delinquent or due when said special assessment is payable in installments. [1907 c 182 § 1; Rem. Supp. 1945 § 10322C-1.] 4.16.080 4.16.060 Action on irrigation district bonds. No action against any irrigation district organized under the laws of this state, or its officers, to enforce any right or claim arising out of the issuance or ownership of any negotiable bond, payable on a day certain, of the irrigation district, where such district is under contract with the United States, or any department or agency thereof, to sell its lands and its right, title and interest in its distribution canals and pipelines and its water rights, thereby necessitating the discontinuance of the district operation upon fulfillment of the contract, shall be brought after a period of six years from and after the maturity date of such bond. [1939 c 57 § 1; RRS § 157-2.] 4.16.060 Reviser’s note: Transitional proviso omitted. The proviso reads: "PROVIDED, That this section shall not apply to actions not otherwise barred on such irrigation district bonds heretofore issued, if the same shall be commenced within six (6) months after the taking effect of this act". 4.16.070 Actions limited to five years. No action for the recovery of any real estate sold by an executor or administrator under the laws of this state shall be maintained by any heir or other person claiming under the deceased, unless it is commenced within five years next after the sale, and no action for any estate sold by a guardian shall be maintained by the ward, or by any person claiming under him, unless commenced within five years next after the termination of the guardianship, except that minors, and other persons under legal disability to sue at the time when the right of action first accrued, may commence such action at any time within three years after the removal of the disability. [1890 p 81 § 1; RRS § 158. Prior: 1863 p 245 §§ 251, 252; 1860 p 205 §§ 217, 218; 1854 p 290 §§ 137, 138.] 4.16.070 Age of majority: Chapter 26.28 RCW. Probate actions by and against executors, etc.: Chapter 11.48 RCW. guardianship: Chapters 11.88, 11.92 RCW. sales and mortgages of real estate: Chapter 11.56 RCW; RCW 11.60.010. Sales not voided by irregularities: RCW 11.56.115. Actions brought by code city: RCW 35A.21.200. Actions to foreclose special assessments in cities or towns: RCW 35.50.050. 4.16.040 4.16.040 Actions limited to six years. The following actions shall be commenced within six years: (1) An action upon a contract in writing, or liability express or implied arising out of a written agreement. (2) An action upon an account receivable incurred in the ordinary course of business. (3) An action for the rents and profits or for the use and occupation of real estate. [1989 c 38 § 1; 1980 c 105 § 2; 1927 c 137 § 1; Code 1881 § 27; 1854 p 363 § 3; RRS § 157.] Application—1980 c 105: See note following RCW 4.16.020. 4.16.050 4.16.050 Action on irrigation or drainage district warrant. Action to enforce any right arising out of the issuance or ownership of any warrant of an irrigation or drainage district organized under the laws of this state, must be brought within six years from and after the date of the issuance of such warrant. [1931 c 75 § 1; RRS § 157-1.] Reviser’s note: Transitional proviso omitted. The proviso reads: "PROVIDED, That this section shall not apply to actions not otherwise barred on warrants heretofore issued, if the same shall be commenced within one year after the taking effect of this act". (2006 Ed.) 4.16.080 Actions limited to three years. The following actions shall be commenced within three years: (1) An action for waste or trespass upon real property; (2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated; (3) Except as provided in RCW 4.16.040(2), an action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument; (4) An action for relief upon the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud; (5) An action against a sheriff, coroner, or constable upon a liability incurred by the doing of an act in his official capacity and by virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution; but this subdivision shall not apply to action for an escape; (6) An action against an officer charged with misappropriation or a failure to properly account for public funds intrusted to his custody; an action upon a statute for penalty or forfeiture, where an action is given to the party aggrieved, 4.16.080 [Title 4 RCW—page 7] 4.16.085 Title 4 RCW: Civil Procedure or to such party and the state, except when the statute imposing it prescribed a different limitation: PROVIDED, HOWEVER, The cause of action for such misappropriation, penalty or forfeiture, whether for acts heretofore or hereafter done, and regardless of lapse of time or existing statutes of limitations, or the bar thereof, even though complete, shall not be deemed to accrue or to have accrued until discovery by the aggrieved party of the act or acts from which such liability has arisen or shall arise, and such liability, whether for acts heretofore or hereafter done, and regardless of lapse of time or existing statute of limitation, or the bar thereof, even though complete, shall exist and be enforceable for three years after discovery by aggrieved party of the act or acts from which such liability has arisen or shall arise. [1989 c 38 § 2; 1937 c 127 § 1; 1923 c 28 § 1; Code 1881 § 28; 1869 p 8 § 28; 1854 p 363 § 4; RRS § 159.] Reviser’s note: Transitional proviso omitted from subsection (6). The proviso reads: "PROVIDED, FURTHER, That no action heretofore barred under the provisions of this paragraph shall be commenced after ninety days from the time this act becomes effective;". 4.16.085 Actions based on product defects, etc. RCW 7.72.060(3). 4.16.085 See 4.16.090 Action to cancel tax deed. Actions to set aside or cancel any deed heretofore or hereafter issued by any county treasurer after and upon the sale of lands for general, state, county or municipal taxes, or upon the sale of lands acquired by any county on foreclosure of general, state, county or municipal taxes, or for the recovery of any lands so sold, must be brought within three years from and after the date of the issuance of such treasurer’s deed. [1949 c 74 § 1; 1907 c 173 § 1; Rem. Supp. 1949 § 162.] 4.16.090 Reviser’s note: Transitional proviso omitted. The proviso reads: "PROVIDED, This act shall not apply to actions not otherwise barred on deeds heretofore issued if the same be commenced within one year after the passage of this act". 4.16.100 Actions limited to two years. Within two years: (1) An action for libel, slander, assault, assault and battery, or false imprisonment. (2) An action upon a statute for a forfeiture or penalty to the state. [Code 1881 § 29; 1877 p 8 § 29; 1869 p 9 § 29; 1854 p 363 § 5; RRS § 160.] 4.16.100 Limitation of action for recovery of transportation charges: RCW 81.28.270. 4.16.110 Actions limited to one year. Within one year an action shall be brought against a sheriff, or other officer for the escape of a prisoner arrested or imprisoned on civil process. [1985 c 11 § 2. Prior: 1984 c 149 § 1; Code 1881 § 30; 1877 p 8 § 30; 1869 p 9 § 30; 1854 p 364 § 5; RRS § 161.] 4.16.110 Purpose—1985 c 11: "The purpose of this act is to make technical corrections to chapter 149, Laws of 1984, and to ensure that the changes made in that chapter meet the constitutional requirements of Article II, section 19 of the state Constitution." [1985 c 11 § 1.] Severability—1985 c 11: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 11 § 4.] Reviser’s note: 1985 c 11 reenacted RCW 4.16.110 and 4.16.370 without amendment. [Title 4 RCW—page 8] Short title—Application—1985 c 30: See RCW 11.02.900 and 11.02.901. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Sheriff, civil liability: RCW 36.28.150. 4.16.112 4.16.112 Actions for contribution between joint tort feasors. See RCW 4.22.050. 4.16.115 4.16.115 Special provisions for action on penalty. An action upon a statute for a penalty given in whole or in part to the person who may prosecute for the same, shall be commenced within three years [one year] after the commission of the offense; and if the action be not commenced within one year by a private party, it may be commenced within two years after the commission of the offense in behalf of the state by the prosecuting attorney of the county, where said offense was committed. [1877 p 9 § 31; 1854 p 364 § 6; RRS § 163. Formerly RCW 4.16.140. Cf. Code 1881 § 31.] Reviser’s note: "one year" appeared in Laws of 1854 and 1877; "three years" appears in Code of 1881. 4.16.130 4.16.130 Action for relief not otherwise provided for. An action for relief not hereinbefore provided for, shall be commenced within two years after the cause of action shall have accrued. [Code 1881 § 33; 1877 p 9 § 32; 1854 p 364 § 7; RRS § 165.] Limitation of action to recover taxes paid: RCW 84.68.060. 4.16.150 4.16.150 Action on mutual open accounts. In an action brought to recover a balance due upon a mutual open and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side, but whenever a period of more than one year shall have elapsed between any of a series of items or demands, they are not to be deemed such an account. [Code 1881 § 34; 1877 p 9 § 33; 1869 p 10 § 33; 1854 p 364 § 8; RRS § 166.] 4.16.160 4.16.160 Application of limitations to actions by state, counties, municipalities. The limitations prescribed in this chapter shall apply to actions brought in the name or for the benefit of any county or other municipality or quasimunicipality of the state, in the same manner as to actions brought by private parties: PROVIDED, That, except as provided in RCW 4.16.310, there shall be no limitation to actions brought in the name or for the benefit of the state, and no claim of right predicated upon the lapse of time shall ever be asserted against the state: AND FURTHER PROVIDED, That no previously existing statute of limitations shall be interposed as a defense to any action brought in the name or for the benefit of the state, although such statute may have run and become fully operative as a defense prior to February 27, 1903, nor shall any cause of action against the state be predicated upon such a statute. [1986 c 305 § 701; 1955 c 43 § 2. Prior: 1903 c 24 § 1; Code 1881 § 35; 1873 p 10 §§ 34, 35; 1869 p 10 §§ 34, 35; 1854 p 364 § 9; RRS § 167, part.] Preamble—1986 c 305: "Tort law in this state has generally been developed by the courts on a case-by-case basis. While this process has resulted in some significant changes in the law, including amelioration of the (2006 Ed.) Limitation of Actions harshness of many common law doctrines, the legislature has periodically intervened in order to bring about needed reforms. The purpose of this chapter is to enact further reforms in order to create a more equitable distribution of the cost and risk of injury and increase the availability and affordability of insurance. The legislature finds that counties, cities, and other governmental entities are faced with increased exposure to lawsuits and awards and dramatic increases in the cost of insurance coverage. These escalating costs ultimately affect the public through higher taxes, loss of essential services, and loss of the protection provided by adequate insurance. In order to improve the availability and affordability of quality governmental services, comprehensive reform is necessary. The legislature also finds comparable cost increases in professional liability insurance. Escalating malpractice insurance premiums discourage physicians and other health care providers from initiating or continuing their practice or offering needed services to the public and contribute to the rising costs of consumer health care. Other professionals, such as architects and engineers, face similar difficult choices, financial instability, and unlimited risk in providing services to the public. The legislature also finds that general liability insurance is becoming unavailable or unaffordable to many businesses, individuals, and nonprofit organizations in amounts sufficient to cover potential losses. High premiums have discouraged socially and economically desirable activities and encourage many to go without adequate insurance coverage. Therefore, it is the intent of the legislature to reduce costs associated with the tort system, while assuring that adequate and appropriate compensation for persons injured through the fault of others is available." [1986 c 305 § 100.] Report to legislature—1986 c 305: "The insurance commissioner shall submit a report to the legislature by January 1, 1991, on the effects of this act on insurance rates and the availability of insurance coverage and the impact on the civil justice system." [1986 c 305 § 909.] Application—1986 c 305: "Except as provided in sections 202 and 601 of this act and except for section 904 of this act, this act applies to all actions filed on or after August 1, 1986." [1986 c 305 § 910.] Severability—1986 c 305: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1986 c 305 § 911.] 4.16.170 4.16.170 Tolling of statute—Actions, when deemed commenced or not commenced. For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint. If the action is commenced by service on one or more of the defendants or by publication, the plaintiff shall file the summons and complaint within ninety days from the date of service. If following service, the complaint is not so filed, or following filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations. [1971 ex.s. c 131 § 1; 1955 c 43 § 3. Prior: 1903 c 24 § 1; Code 1881 § 35; 1873 p 10 § 35; 1869 p 10 § 35; RRS § 167, part.] 4.16.180 4.16.180 Statute tolled by absence from state, concealment, etc. If the cause of action shall accrue against any person who is a nonresident of this state, or who is a resident of this state and shall be out of the state, or concealed therein, such action may be commenced within the terms herein respectively limited after the coming, or return of such person into the state, or after the end of such concealment; and if after such cause of action shall have accrued, such person (2006 Ed.) 4.16.200 shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limit for the commencement of such action. [1927 c 132 § 1; Code 1881 § 36; 1854 p 364 § 10; RRS § 168.] 4.16.190 4.16.190 Statute tolled by personal disability. (1) Unless otherwise provided in this section, if a person entitled to bring an action mentioned in this chapter, except for a penalty or forfeiture, or against a sheriff or other officer, for an escape, be at the time the cause of action accrued either under the age of eighteen years, or incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings, such incompetency or disability as determined according to chapter 11.88 RCW, or imprisoned on a criminal charge prior to sentencing, the time of such disability shall not be a part of the time limited for the commencement of action. (2) Subsection (1) of this section with respect to a person under the age of eighteen years does not apply to the time limited for the commencement of an action under RCW 4.16.350. [2006 c 8 § 303; 1993 c 232 § 1; 1977 ex.s. c 80 § 2; 1971 ex.s. c 292 § 74; Code 1881 § 37; 1877 p 9 § 38; 1869 p 10 § 38; 1861 p 61 § 1; 1854 p 364 § 11; RRS § 169.] Findings—Intent—Part headings and subheadings not law—Severability—2006 c 8: See notes following RCW 5.64.010. Purpose—Intent—1977 ex.s. c 80: "It is the purpose of the legislature in enacting this 1977 amendatory act to provide for a comprehensive revision of out-dated and offensive language, procedures and assumptions that have previously been used to identify and categorize mentally, physically, and sensory handicapped citizens. It is legislative intent that language references such as idiots, imbeciles, feeble-minded or defective persons be deleted and replaced with more appropriate references to reflect current statute law more recently enacted by the federal government and this legislature. It is legislative belief that use of the undefined term "insanity" be avoided in preference to the use of a process for defining incompetency or disability as fully set forth in chapter 11.88 RCW; that language that has allowed or implied a presumption of incompetency or disability on the basis of an apparent condition or appearance be deleted in favor of a reference to necessary due process allowing a judicial determination of the existence or lack of existence of such incompetency or disability." [1977 ex.s. c 80 § 1.] Severability—1977 ex.s. c 80: "If any provision of this 1977 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1977 ex.s. c 80 § 76.] Severability—1971 ex.s. c 292: See note following RCW 26.28.010. Adverse possession, personal disability, limitation tolled: RCW 7.28.090. 4.16.200 4.16.200 Statute tolled by death. Limitations on actions against a person who dies before the expiration of the time otherwise limited for commencement thereof are as set forth in chapter 11.40 RCW. Subject to the limitations on claims against a deceased person under chapter 11.40 RCW, if a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representatives after the expiration of the time and within one year from his death. [1989 c 333 § 8; Code 1881 § 38; 1877 p 9 § 38; 1854 p 364 § 12; RRS § 170.] Application—Effective date—1989 c 333: See note following RCW 11.40.010. Decedents, claims against, time limits: RCW 11.40.051, 11.40.060. [Title 4 RCW—page 9] 4.16.210 Title 4 RCW: Civil Procedure 4.16.210 4.16.210 Statute tolled—By war as to enemy alien. When a person shall be an alien subject or a citizen of a country at war with the United States, the time of the continuance of the war shall not be a part of the period limited for the commencement of the action. [1941 c 174 § 1, part; Code 1881 § 39; 1854 p 365 § 13; Rem. Supp. 1941 § 171, part.] 4.16.220 4.16.220 Statute tolled—As to person in military service of United States. When the enforcement of civil liabilities against a person in the military service of the United States has been suspended by operation of law, the period of such suspension shall not be a part of the period limited for the commencement of the action. [1941 c 174 § 1, part; Code 1881 § 39; 1854 p 365 § 13; Rem. Supp. 1941 § 171, part.] Application of federal law: RCW 73.16.070. 4.16.230 4.16.230 Statute tolled by judicial proceedings. When the commencement of an action is stayed by injunction or a statutory prohibition, the time of the continuance of the injunction or prohibition shall not be a part of the time limited for the commencement of the action. [Code 1881 § 40; 1877 p 10 § 41; 1854 p 365 § 14; RRS § 172.] 4.16.240 4.16.240 Effect of reversal of judgment on appeal. If an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on error or appeal, the plaintiff, or if he dies and the cause of action survives, his heirs or representatives may commence a new action within one year after reversal. [Code 1881 § 41; 1877 p 10 § 42; 1854 p 365 § 15; RRS § 173.] 4.16.250 4.16.250 Disability must exist when right of action accrued. No person shall avail himself of a disability unless it existed when his right of action accrued. [Code 1881 § 42; 1877 p 10 § 43; 1854 p 365 § 16; RRS § 174.] 4.16.260 4.16.260 Coexisting disabilities. When two or more disabilities shall coexist at the time the right of action accrues, the limitation shall not attach until they all be removed. [Code 1881 § 43; 1877 p 10 § 44; 1854 p 365 § 17; RRS § 175.] 4.16.270 4.16.270 Effect of partial payment. When any payment of principal or interest has been or shall be made upon any existing contract, whether it be a bill of exchange, promissory note, bond or other evidence of indebtedness, if such payment be made after the same shall have become due, the limitation shall commence from the time the last payment was made. [Code 1881 § 45; 1877 p 10 § 46; 1854 p 365 § 19; RRS § 177.] 4.16.280 4.16.280 New promise must be in writing. No acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take the case out of the operation of this chapter, unless it is contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest. [Code 1881 § 44; 1877 p 10 § 45; 1854 p 365 § 18; RRS § 176.] [Title 4 RCW—page 10] 4.16.290 4.16.290 Foreign statutes of limitation, how applied. When the cause of action has arisen in another state, territory or country between nonresidents of this state, and by the laws of the state, territory or country where the action arose, an action cannot be maintained thereon by reason of the lapse of time, no action shall be maintained thereon in this state. [Code 1881 § 46; 1877 p 10 § 47; 1854 p 365 § 20; RRS § 178.] 4.16.300 4.16.300 Actions or claims arising from construction, alteration, repair, design, planning, survey, engineering, etc., of improvements upon real property. RCW 4.16.300 through 4.16.320 shall apply to all claims or causes of action of any kind against any person, arising from such person having constructed, altered or repaired any improvement upon real property, or having performed or furnished any design, planning, surveying, architectural or construction or engineering services, or supervision or observation of construction, or administration of construction contracts for any construction, alteration or repair of any improvement upon real property. This section is specifically intended to benefit persons having performed work for which the persons must be registered or licensed under RCW 18.08.310, 18.27.020, 18.43.040, 18.96.020, or 19.28.041, and shall not apply to claims or causes of action against persons not required to be so registered or licensed. [2004 c 257 § 1; 1986 c 305 § 703; 1967 c 75 § 1.] Severability—2004 c 257: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2004 c 257 § 2.] Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. 4.16.310 4.16.310 Actions or claims arising from construction, alteration, repair, design, planning, survey, engineering, etc., of improvements upon real property—Accrual and limitations of actions or claims. All claims or causes of action as set forth in RCW 4.16.300 shall accrue, and the applicable statute of limitation shall begin to run only during the period within six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later. The phrase "substantial completion of construction" shall mean the state of completion reached when an improvement upon real property may be used or occupied for its intended use. Any cause of action which has not accrued within six years after such substantial completion of construction, or within six years after such termination of services, whichever is later, shall be barred: PROVIDED, That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues. The limitations prescribed in this section apply to all claims or causes of action as set forth in RCW 4.16.300 brought in the name or for the benefit of the state which are made or commenced after June 11, 1986. If a written notice is filed under RCW 64.50.020 within the time prescribed for the filing of an action under this chapter, the period of time during which the filing of an action is barred under RCW 64.50.020 plus sixty days shall not be a (2006 Ed.) Limitation of Actions part of the period limited for the commencement of an action, nor for the application of this section. [2002 c 323 § 9; 1986 c 305 § 702; 1967 c 75 § 2.] Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. 4.16.320 4.16.320 Actions or claims arising from construction, alteration, repair, design, planning, survey, engineering, etc., of improvements upon real property—Construction. Nothing in RCW 4.16.300 through 4.16.320 shall be construed as extending the period now permitted by law for bringing any kind of action. [1967 c 75 § 3.] 4.16.325 4.16.325 Actions or claims arising from construction defect claims—Statute tolled. If a written notice of claim is served under RCW 64.50.020 within the time prescribed for the filing of an action under this chapter, the statutes of limitations for construction-related claims are tolled until sixty days after the period of time during which the filing of an action is barred under RCW 64.50.020. [2002 c 323 § 8.] 4.16.326 4.16.326 Actions or claims for construction defect claims—Comparative fault. (1) Persons engaged in any activity defined in RCW 4.16.300 may be excused, in whole or in part, from any obligation, damage, loss, or liability for those defined activities under the principles of comparative fault for the following affirmative defenses: (a) To the extent it is caused by an unforeseen act of nature that caused, prevented, or precluded the activities defined in RCW 4.16.300 from meeting the applicable building codes, regulations, and ordinances in effect at the commencement of construction. For purposes of this section an "unforeseen act of nature" means any weather condition, earthquake, or manmade event such as war, terrorism, or vandalism; (b) To the extent it is caused by a homeowner’s unreasonable failure to minimize or prevent those damages in a timely manner, including the failure of the homeowner to allow reasonable and timely access for inspections and repairs under this section. This includes the failure to give timely notice to the builder after discovery of a violation, but does not include damages due to the untimely or inadequate response of a builder to the homeowner’s claim; (c) To the extent it is caused by the homeowner or his or her agent, employee, subcontractor, independent contractor, or consultant by virtue of their failure to follow the builder’s or manufacturer’s maintenance recommendations, or commonly accepted homeowner maintenance obligations. In order to rely upon this defense as it relates to a builder’s recommended maintenance schedule, the builder shall show that the homeowner had written notice of the schedule, the schedule was reasonable at the time it was issued, and the homeowner failed to substantially comply with the written schedule; (d) To the extent it is caused by the homeowner or his or her agent’s or an independent third party’s alterations, ordinary wear and tear, misuse, abuse, or neglect, or by the structure’s use for something other than its intended purpose; (e) As to a particular violation for which the builder has obtained a valid release; (2006 Ed.) 4.16.340 (f) To the extent that the builder’s repair corrected the alleged violation or defect; (g) To the extent that a cause of action does not accrue within the statute of repose pursuant to RCW 4.16.310 or that an actionable cause as set forth in RCW 4.16.300 is not filed within the applicable statute of limitations. In contract actions the applicable contract statute of limitations expires, regardless of discovery, six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later; (h) As to any causes of action to which this section does not apply, all applicable affirmative defenses are preserved. (2) This section does not apply to any civil action in tort alleging personal injury or wrongful death to a person or persons resulting from a construction defect. [2003 c 80 § 1.] 4.16.327 4.16.327 Actions or claims for construction defects— Emergency repairs. Any person, including but not limited to contractors, builders, tradespeople, and other providers of construction, remodel, or repair services, who, without compensation or the expectation of compensation, renders emergency repairs to any structure at the scene of any accident, disaster, or emergency that has caused or resulted in damage to the structure is not liable for civil damages resulting from any act or omission in the rendering of such emergency repairs, other than acts or omissions constituting gross negligence or willful or wanton misconduct. Any person rendering emergency repairs during the course of regular employment and receiving compensation or expecting to receive compensation for rendering such repairs is excluded from the protection of this section. For the purposes of this section, "accident, disaster, or emergency" includes an earthquake, windstorm, hurricane, landslide, flood, volcanic eruption, explosion, fire, or any similar occurrence. [2003 c 11 § 1.] Reviser’s note: 2003 c 11 § 1 directed that this section be added to chapter 4.24 RCW. Since this placement appears inappropriate, this section has been codified as part of chapter 4.16 RCW. 4.16.340 4.16.340 Actions based on childhood sexual abuse. (1) All claims or causes of action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within the later of the following periods: (a) Within three years of the act alleged to have caused the injury or condition; (b) Within three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by said act; or (c) Within three years of the time the victim discovered that the act caused the injury for which the claim is brought: PROVIDED, That the time limit for commencement of an action under this section is tolled for a child until the child reaches the age of eighteen years. (2) The victim need not establish which act in a series of continuing sexual abuse or exploitation incidents caused the injury complained of, but may compute the date of discovery from the date of discovery of the last act by the same perpetrator which is part of a common scheme or plan of sexual abuse or exploitation. [Title 4 RCW—page 11] 4.16.350 Title 4 RCW: Civil Procedure (3) The knowledge of a custodial parent or guardian shall not be imputed to a person under the age of eighteen years. (4) For purposes of this section, "child" means a person under the age of eighteen years. (5) As used in this section, "childhood sexual abuse" means any act committed by the defendant against a complainant who was less than eighteen years of age at the time of the act and which act would have been a violation of chapter 9A.44 RCW or RCW 9.68A.040 or prior laws of similar effect at the time the act was committed. [1991 c 212 § 2; 1989 c 317 § 2; 1988 c 144 § 1.] Finding—Intent—1991 c 212: "The legislature finds that: (1) Childhood sexual abuse is a pervasive problem that affects the safety and well-being of many of our citizens. (2) Childhood sexual abuse is a traumatic experience for the victim causing long-lasting damage. (3) The victim of childhood sexual abuse may repress the memory of the abuse or be unable to connect the abuse to any injury until after the statute of limitations has run. (4) The victim of childhood sexual abuse may be unable to understand or make the connection between childhood sexual abuse and emotional harm or damage until many years after the abuse occurs. (5) Even though victims may be aware of injuries related to the childhood sexual abuse, more serious injuries may be discovered many years later. (6) The legislature enacted RCW 4.16.340 to clarify the application of the discovery rule to childhood sexual abuse cases. At that time the legislature intended to reverse the Washington supreme court decision in Tyson v. Tyson, 107 Wn.2d 72, 727 P.2d 226 (1986). It is still the legislature’s intention that Tyson v. Tyson, 107 Wn.2d 72, 727 P.2d 226 (1986) be reversed, as well as the line of cases that state that discovery of any injury whatsoever caused by an act of childhood sexual abuse commences the statute of limitations. The legislature intends that the earlier discovery of less serious injuries should not affect the statute of limitations for injuries that are discovered later." [1991 c 212 § 1.] Intent—1989 c 317: "(1) The legislature finds that possible confusion may exist in interpreting the statute of limitations provisions for child sexual abuse civil actions in RCW 4.16.190 and 4.16.340 regarding the accrual of a cause of action for a person under age eighteen. The legislature finds that amending RCW 4.16.340 will clarify that the time limit for commencement of an action under RCW 4.16.340 is tolled until the child reaches age eighteen. The 1989 amendment to RCW 4.16.340 is intended as a clarification of existing law and is not intended to be a change in the law. (2) The legislature further finds that the enactment of chapter 145, Laws of 1988, which deleted specific reference to RCW 9A.44.070, 9A.44.080, and 9A.44.100(1)(b) from RCW 9A.04.080 and also deleted those specific referenced provisions from the laws of Washington, did not intend to change the statute of limitations governing those offenses from seven to three years." [1989 c 317 § 1.] Application—1988 c 144: "Sections 1 and 2 of this act apply to all causes of action commenced on or after June 9, 1988, regardless of when the cause of action may have arisen. To this extent, sections 1 and 2 of this act apply retrospectively." [1988 c 144 § 3.] 4.16.350 4.16.350 Action for injuries resulting from health care or related services—Physicians, dentists, nurses, etc.—Hospitals, clinics, nursing homes, etc. Any civil action for damages for injury occurring as a result of health care which is provided after June 25, 1976 against: (1) A person licensed by this state to provide health care or related services, including, but not limited to, a physician, osteopathic physician, dentist, nurse, optometrist, podiatric physician and surgeon, chiropractor, physical therapist, psychologist, pharmacist, optician, physician’s assistant, osteopathic physician’s assistant, nurse practitioner, or physician’s trained mobile intensive care paramedic, including, in the event such person is deceased, his estate or personal representative; [Title 4 RCW—page 12] (2) An employee or agent of a person described in subsection (1) of this section, acting in the course and scope of his employment, including, in the event such employee or agent is deceased, his estate or personal representative; or (3) An entity, whether or not incorporated, facility, or institution employing one or more persons described in subsection (1) of this section, including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, employee, or agent thereof acting in the course and scope of his employment, including, in the event such officer, director, employee, or agent is deceased, his estate or personal representative; based upon alleged professional negligence shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever period expires later, except that in no event shall an action be commenced more than eight years after said act or omission: PROVIDED, That the time for commencement of an action is tolled upon proof of fraud, intentional concealment, or the presence of a foreign body not intended to have a therapeutic or diagnostic purpose or effect, until the date the patient or the patient’s representative has actual knowledge of the act of fraud or concealment, or of the presence of the foreign body; the patient or the patient’s representative has one year from the date of the actual knowledge in which to commence a civil action for damages. For purposes of this section, notwithstanding RCW 4.16.190, the knowledge of a custodial parent or guardian shall be imputed to a person under the age of eighteen years, and such imputed knowledge shall operate to bar the claim of such minor to the same extent that the claim of an adult would be barred under this section. Any action not commenced in accordance with this section shall be barred. For purposes of this section, with respect to care provided after June 25, 1976, and before August 1, 1986, the knowledge of a custodial parent or guardian shall be imputed as of April 29, 1987, to persons under the age of eighteen years. This section does not apply to a civil action based on intentional conduct brought against those individuals or entities specified in this section by a person for recovery of damages for injury occurring as a result of childhood sexual abuse as defined in RCW 4.16.340(5). [2006 c 8 § 302. Prior: 1998 c 147 § 1; 1988 c 144 § 2; 1987 c 212 § 1401; 1986 c 305 § 502; 1975-’76 2nd ex.s. c 56 § 1; 1971 c 80 § 1.] Purpose—Findings—Intent—2006 c 8 §§ 301 and 302: "The purpose of this section and section 302, chapter 8, Laws of 2006 is to respond to the court’s decision in DeYoung v. Providence Medical Center, 136 Wn.2d 136 (1998), by expressly stating the legislature’s rationale for the eight-year statute of repose in RCW 4.16.350. The legislature recognizes that the eight-year statute of repose alone may not solve the crisis in the medical insurance industry. However, to the extent that the eight-year statute of repose has an effect on medical malpractice insurance, that effect will tend to reduce rather than increase the cost of malpractice insurance. Whether or not the statute of repose has the actual effect of reducing insurance costs, the legislature finds it will provide protection against claims, however few, that are stale, based on untrustworthy evidence, or that place undue burdens on defendants. In accordance with the court’s opinion in DeYoung, the legislature further finds that compelling even one defendant to answer a stale claim is a (2006 Ed.) Uniform Conflict of Laws—Limitations Act substantial wrong, and setting an outer limit to the operation of the discovery rule is an appropriate aim. The legislature further finds that an eight-year statute of repose is a reasonable time period in light of the need to balance the interests of injured plaintiffs and the health care industry. The legislature intends to reenact RCW 4.16.350 with respect to the eight-year statute of repose and specifically set forth for the court the legislature’s legitimate rationale for adopting the eight-year statute of repose. The legislature further intends that the eight-year statute of repose reenacted by section 302, chapter 8, Laws of 2006 be applied to actions commenced on or after June 7, 2006." [2006 c 8 § 301.] Findings—Intent—Part headings and subheadings not law—Severability—2006 c 8: See notes following RCW 5.64.010. Application—1998 c 147: "This act applies to any cause of action filed on or after June 11, 1998." [1998 c 147 § 2.] Application—1988 c 144: See note following RCW 4.16.340. Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. Severability—1975-’76 2nd ex.s. c 56: "If any provision of this 1976 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1975-’76 2nd ex.s. c 56 § 15.] Actions for injuries resulting from health care: Chapter 7.70 RCW. Complaint in personal injury actions not to include statement of damages: RCW 4.28.360. Evidence of furnishing or offering to pay medical expenses inadmissible to prove liability in personal injury actions for medical negligence: Chapter 5.64 RCW. Immunity of members of professional review committees, societies, examining, licensing or disciplinary boards from civil suit: RCW 4.24.240. Proof and evidence required in actions against hospitals, personnel and members of healing arts: RCW 4.24.290. Verdict or award of future economic damages in personal injury or property damage action may provide for periodic payments: RCW 4.56.260. 4.16.360 Application of chapter to paternity action. This chapter does not limit the time in which an action for determination of paternity may be brought under chapter 26.26 RCW. [1983 1st ex.s. c 41 § 13.] 4.16.360 Severability—1983 1st ex.s. c 41: See note following RCW 26.09.060. 4.16.370 Actions against personal representative or trustee for breach of fiduciary duties—Statute of limitations. The statute of limitations for actions against a personal representative or trustee for breach of fiduciary duties is as set forth in RCW 11.96A.070. [1999 c 42 § 602; 1985 c 11 § 3. Prior: 1984 c 149 § 2.] 4.16.370 Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Short title—Application—1985 c 30: See RCW 11.02.900 and 11.02.901. Purpose—Severability—1985 c 11: See notes following RCW 4.16.110. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Chapter 4.18 Chapter 4.18 RCW UNIFORM CONFLICT OF LAWS— LIMITATIONS ACT Sections 4.18.010 4.18.020 4.18.030 4.18.040 4.18.900 (2006 Ed.) 4.18.901 4.18.902 4.18.903 4.18.904 4.18.902 Application of chapter—Existing and future claims. Uniformity of application and construction of chapter. Severability—1983 c 152. Captions not law—1983 c 152. Limitation of actions generally: Chapter 4.16 RCW. 4.18.010 4.18.010 Definitions. As used in this chapter: (1) "Claim" means a right of action that may be asserted in a civil action or proceeding and includes a right of action created by statute. (2) "State" means a state, commonwealth, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, a foreign country, or a political subdivision of any of them. [1983 c 152 § 1.] 4.18.020 4.18.020 Conflict of laws—Limitation periods. (1) Except as provided by RCW 4.18.040, if a claim is substantively based: (a) Upon the law of one other state, the limitation period of that state applies; or (b) Upon the law of more than one state, the limitation period of one of those states, chosen by the law of conflict of laws of this state, applies. (2) The limitation period of this state applies to all other claims. [1983 c 152 § 2.] 4.18.030 4.18.030 Rules of law applicable to computation of limitation period. If the statute of limitations of another state applies to the assertion of a claim in this state, the other state’s relevant statutes and other rules of law governing tolling and accrual apply in computing the limitation period, but its statutes and other rules of law governing conflict of laws do not apply. [1983 c 152 § 3.] 4.18.040 4.18.040 Application of limitation period of other state—Unfairness. If the court determines that the limitation period of another state applicable under RCW 4.18.020 and 4.18.030 is substantially different from the limitation period of this state and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against, the claim, the limitation period of this state applies. [1983 c 152 § 4.] 4.18.900 4.18.900 Short title. This chapter may be cited as the Uniform Conflict of Laws—Limitations Act. [1983 c 152 § 7.] 4.18.901 4.18.901 Application of chapter—Existing and future claims. This chapter applies to claims: (1) Accruing after July 24, 1983; or (2) Asserted in a civil action or proceeding more than one year after July 24, 1983, but it does not revive a claim barred before July 24, 1983. [1983 c 152 § 5.] 4.18.902 Definitions. Conflict of laws—Limitation periods. Rules of law applicable to computation of limitation period. Application of limitation period of other state—Unfairness. Short title. 4.18.902 Uniformity of application and construction of chapter. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it. [1983 c 152 § 6.] [Title 4 RCW—page 13] 4.18.903 Title 4 RCW: Civil Procedure 4.18.903 4.18.903 Severability—1983 c 152. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1983 c 152 § 8.] 4.18.904 4.18.904 Captions not law—1983 c 152. Section captions used in this act constitute no part of the law. [1983 c 152 § 9.] Chapter 4.20 Chapter 4.20 RCW SURVIVAL OF ACTIONS Sections 4.20.005 4.20.010 4.20.020 4.20.030 4.20.046 4.20.050 4.20.060 Wrongful death—Application of terms. Wrongful death—Right of action. Wrongful death—Beneficiaries of action. Workers’ compensation act not affected. Survival of actions. Action not abated by death or disability if it survives—Substitution. Action for personal injury survives to surviving spouse, child, stepchildren, or heirs. Action for injury or death of a child: RCW 4.24.010. Actions by and against executors: Chapter 11.48 RCW. Imputation of contributory fault of decedent in wrongful death actions: RCW 4.22.020. 4.20.005 4.20.005 Wrongful death—Application of terms. Words in RCW 4.20.010, 4.20.020, and 4.20.030 denoting the singular shall be understood as belonging to a plurality of persons or things. The masculine shall apply also to the feminine, and the word person shall also apply to bodies politic and corporate. [1917 c 123 § 3; RRS § 183-2. Formerly RCW 4.20.010, part.] 4.20.010 4.20.010 Wrongful death—Right of action. When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death; and although the death shall have been caused under such circumstances as amount, in law, to a felony. [1917 c 123 § 1; RRS § 183. FORMER PARTS OF SECTION: 1917 c 123 § 3 now codified as RCW 4.20.005. Prior: 1909 c 129 § 1; Code 1881 § 8; 1875 p 4 § 4; 1854 p 220 § 496.] 4.20.030 4.20.030 Workers’ compensation act not affected. RCW 4.20.005, 4.20.010, and 4.20.020 shall not repeal or supersede chapter 74 of the Laws of 1911 [Title 51 RCW] and acts amendatory thereof, or any part thereof. [1917 c 123 § 5; RRS § 183-3.] 4.20.046 4.20.046 Survival of actions. (1) All causes of action by a person or persons against another person or persons shall survive to the personal representatives of the former and against the personal representatives of the latter, whether such actions arise on contract or otherwise, and whether or not such actions would have survived at the common law or prior to the date of enactment of this section: PROVIDED, HOWEVER, That the personal representative shall only be entitled to recover damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased on behalf of those beneficiaries enumerated in RCW 4.20.020, and such damages are recoverable regardless of whether or not the death was occasioned by the injury that is the basis for the action. The liability of property of a husband and wife held by them as community property to execution in satisfaction of a claim enforceable against such property so held shall not be affected by the death of either or both spouses; and a cause of action shall remain an asset as though both claiming spouses continued to live despite the death of either or both claiming spouses. (2) Where death or an injury to person or property, resulting from a wrongful act, neglect or default, occurs simultaneously with or after the death of a person who would have been liable therefor if his death had not occurred simultaneously with such death or injury or had not intervened between the wrongful act, neglect or default and the resulting death or injury, an action to recover damages for such death or injury may be maintained against the personal representative of such person. [1993 c 44 § 1; 1961 c 137 § 1.] 4.20.050 4.20.050 Action not abated by death or disability if it survives—Substitution. No action shall abate by the death, marriage or other disability of the party, or by the transfer of any interest therein, if the cause of action survives or continues; but the court may at any time within one year thereafter, on motion, allow the action to be continued by or against his representatives or successors in interest. [Code 1881 § 17; 1877 p 6 § 17; 1869 p 6 § 17; 1854 p 132 § 11; RRS § 193.] Rules of court: Cf. RAP 3.2, 18.22. 4.20.020 4.20.020 Wrongful death—Beneficiaries of action. Every such action shall be for the benefit of the wife, husband, child or children, including stepchildren, of the person whose death shall have been so caused. If there be no wife or husband or such child or children, such action may be maintained for the benefit of the parents, sisters or brothers, who may be dependent upon the deceased person for support, and who are resident within the United States at the time of his death. In every such action the jury may give such damages as, under all circumstances of the case, may to them seem just. [1985 c 139 § 1; 1973 1st ex.s. c 154 § 2; 1917 c 123 § 2; RRS § 183-1.] Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. [Title 4 RCW—page 14] 4.20.060 4.20.060 Action for personal injury survives to surviving spouse, child, stepchildren, or heirs. No action for a personal injury to any person occasioning death shall abate, nor shall such right of action determine, by reason of such death, if such person has a surviving spouse or child living, including stepchildren, or leaving no surviving spouse or such children, if there is dependent upon the deceased for support and resident within the United States at the time of decedent’s death, parents, sisters or brothers; but such action may be prosecuted, or commenced and prosecuted, by the executor or administrator of the deceased, in favor of such surviving spouse, or in favor of the surviving spouse and such children, or if no surviving spouse, in favor of such child or children, or if no surviving spouse or such child or children, (2006 Ed.) Contributory Fault—Effect—Imputation—Contribution—Settlement Agreements then in favor of the decedent’s parents, sisters or brothers who may be dependent upon such person for support, and resident in the United States at the time of decedent’s death. [1985 c 139 § 2; 1973 1st ex.s. c 154 § 3; 1927 c 156 § 1; 1909 c 144 § 1; Code 1881 § 18; 1854 p 220 § 495; RRS § 194.] Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. Chapter 4.22 Chapter 4.22 RCW CONTRIBUTORY FAULT—EFFECT— IMPUTATION—CONTRIBUTION— SETTLEMENT AGREEMENTS Sections 4.22.005 4.22.015 4.22.020 4.22.030 4.22.040 4.22.050 4.22.060 4.22.070 4.22.080 4.22.900 4.22.910 4.22.911 4.22.920 4.22.925 Effect of contributory fault. "Fault" defined. Imputation of contributory fault—Spouse or minor child of spouse—Wrongful death actions. Nature of liability. Right of contribution—Indemnity. Enforcement of contribution. Effect of settlement agreement. Percentage of fault—Determination—Exception—Limitations. Year 2000 failure—Actions against agency or public service provider—Definitions. Effective date—1973 1st ex.s. c 138. Severability—1973 1st ex.s. c 138. Severability—1981 c 27. Applicability—1981 c 27. Applicability—1981 c 27 § 17. Preamble—1981 c 27: See note following RCW 7.72.010. Product liability actions: Chapter 7.72 RCW. 4.22.005 4.22.005 Effect of contributory fault. In an action based on fault seeking to recover damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery. This rule applies whether or not under prior law the claimant’s contributory fault constituted a defense or was disregarded under applicable legal doctrines, such as last clear chance. [1981 c 27 § 8.] 4.22.015 4.22.015 "Fault" defined. "Fault" includes acts or omissions, including misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability or liability on a product liability claim. The term also includes breach of warranty, unreasonable assumption of risk, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault. A comparison of fault for any purpose under RCW 4.22.005 through 4.22.060 shall involve consideration of both the nature of the conduct of the parties to the action and the extent of the causal relation between such conduct and the damages. [1981 c 27 § 9.] 4.22.020 4.22.020 Imputation of contributory fault—Spouse or minor child of spouse—Wrongful death actions. The contributory fault of one spouse shall not be imputed to the other spouse or the minor child of the spouse to diminish (2006 Ed.) 4.22.050 recovery in an action by the other spouse or the minor child of the spouse, or his or her legal representative, to recover damages caused by fault resulting in death or in injury to the person or property, whether separate or community, of the spouse. In an action brought for wrongful death or loss of consortium, the contributory fault of the decedent or injured person shall be imputed to the claimant in that action. [1987 c 212 § 801; 1981 c 27 § 10; 1973 1st ex.s. c 138 § 2.] Wrongful death actions: Chapter 4.20 RCW. 4.22.030 4.22.030 Nature of liability. Except as otherwise provided in RCW 4.22.070, if more than one person is liable to a claimant on an indivisible claim for the same injury, death or harm, the liability of such persons shall be joint and several. [1986 c 305 § 402; 1981 c 27 § 11.] Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. 4.22.040 4.22.040 Right of contribution—Indemnity. (1) A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury, death or harm, whether or not judgment has been recovered against all or any of them. It may be enforced either in the original action or by a separate action brought for that purpose. The basis for contribution among liable persons is the comparative fault of each such person. However, the court may determine that two or more persons are to be treated as a single person for purposes of contribution. (2) Contribution is available to a person who enters into a settlement with a claimant only (a) if the liability of the person against whom contribution is sought has been extinguished by the settlement and (b) to the extent that the amount paid in settlement was reasonable at the time of the settlement. (3) The common law right of indemnity between active and passive tort feasors is abolished: PROVIDED, That the common law right of indemnity between active and passive tort feasors is not abolished in those cases to which a right of contribution by virtue of RCW 4.22.920(2) does not apply. [1982 c 100 § 1; 1981 c 27 § 12.] Severability—1982 c 100: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1982 c 100 § 4.] 4.22.050 4.22.050 Enforcement of contribution. (1) If the comparative fault of the parties to a claim for contribution has been established previously by the court in the original action, a party paying more than that party’s equitable share of the obligation, upon motion, may recover judgment for contribution. (2) If the comparative fault of the parties to the claim for contribution has not been established by the court in the original action, contribution may be enforced in a separate action, whether or not a judgment has been rendered against either the person seeking contribution or the person from whom contribution is being sought. (3) If a judgment has been rendered, the action for contribution must be commenced within one year after the judgment becomes final. If no judgment has been rendered, the [Title 4 RCW—page 15] 4.22.060 Title 4 RCW: Civil Procedure person bringing the action for contribution either must have (a) discharged by payment the common liability within the period of the statute of limitations applicable to the claimant’s right of action against him and commenced the action for contribution within one year after payment, or (b) agreed while the action was pending to discharge the common liability and, within one year after the agreement, have paid the liability and commenced an action for contribution. [1981 c 27 § 13.] 4.22.060 4.22.060 Effect of settlement agreement. (1) A party prior to entering into a release, covenant not to sue, covenant not to enforce judgment, or similar agreement with a claimant shall give five days’ written notice of such intent to all other parties and the court. The court may for good cause authorize a shorter notice period. The notice shall contain a copy of the proposed agreement. A hearing shall be held on the issue of the reasonableness of the amount to be paid with all parties afforded an opportunity to present evidence. A determination by the court that the amount to be paid is reasonable must be secured. If an agreement was entered into prior to the filing of the action, a hearing on the issue of the reasonableness of the amount paid at the time it was entered into may be held at any time prior to final judgment upon motion of a party. The burden of proof regarding the reasonableness of the settlement offer shall be on the party requesting the settlement. (2) A release, covenant not to sue, covenant not to enforce judgment, or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons is reduced by the amount paid pursuant to the agreement unless the amount paid was unreasonable at the time of the agreement in which case the claim shall be reduced by an amount determined by the court to be reasonable. (3) A determination that the amount paid for a release, covenant not to sue, covenant not to enforce judgment, or similar agreement was unreasonable shall not affect the validity of the agreement between the released and releasing persons nor shall any adjustment be made in the amount paid between the parties to the agreement. [1987 c 212 § 1901; 1981 c 27 § 14.] 4.22.070 4.22.070 Percentage of fault—Determination— Exception—Limitations. (1) In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant’s damages except entities immune from liability to the claimant under Title 51 RCW. The sum of the percentages of the total fault attributed to atfault entities shall equal one hundred percent. The entities whose fault shall be determined include the claimant or person suffering personal injury or incurring property damage, defendants, third-party defendants, entities released by the claimant, entities with any other individual defense against the claimant, and entities immune from liability to the claimant, but shall not include those entities immune from liability to the claimant under Title 51 RCW. Judgment shall be [Title 4 RCW—page 16] entered against each defendant except those who have been released by the claimant or are immune from liability to the claimant or have prevailed on any other individual defense against the claimant in an amount which represents that party’s proportionate share of the claimant’s total damages. The liability of each defendant shall be several only and shall not be joint except: (a) A party shall be responsible for the fault of another person or for payment of the proportionate share of another party where both were acting in concert or when a person was acting as an agent or servant of the party. (b) If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimants [claimant’s] total damages. (2) If a defendant is jointly and severally liable under one of the exceptions listed in subsections (1)(a) or (1)(b) of this section, such defendant’s rights to contribution against another jointly and severally liable defendant, and the effect of settlement by either such defendant, shall be determined under RCW 4.22.040, 4.22.050, and 4.22.060. (3)(a) Nothing in this section affects any cause of action relating to hazardous wastes or substances or solid waste disposal sites. (b) Nothing in this section shall affect a cause of action arising from the tortious interference with contracts or business relations. (c) Nothing in this section shall affect any cause of action arising from the manufacture or marketing of a fungible product in a generic form which contains no clearly identifiable shape, color, or marking. [1993 c 496 § 1; 1986 c 305 § 401.] Effective date—1993 c 496: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1993." [1993 c 496 § 3.] Application—1993 c 496: "This act applies to all causes of action that the parties have not settled or in which judgment has not been entered prior to July 1, 1993." [1993 c 496 § 4.] Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. 4.22.080 Year 2000 failure—Actions against agency or public service provider—Definitions. (Expires December 31, 2009.) (1) The definitions in this section apply throughout this section and RCW 4.24.650, 48.18.560, 51.04.140, and 82.32.420. (a) "Agency" means any state or local government board, commission, bureau, committee, department, institution, division, or tribunal in the legislative, executive, or judicial branch, including elective and legislative offices, institutions of higher education created and supported by state government, counties, cities, towns, special purpose districts, local service districts, municipal corporations, quasi-municipal corporations, and political subdivisions of such agencies and corporations, and any officer, employee, or agent of these entities acting within the scope of the officer, employee, or agent’s employment or duties. "Agency" does not include municipal electric or gas utilities formed under Title 35 RCW or electric public utility districts formed under Title 54 RCW. 4.22.080 (2006 Ed.) Special Rights of Action and Special Immunities (b) "Electric cooperative utility" means any nonprofit, member-owned cooperative organized under chapter 23.86 RCW and engaged in the business of distributing electric energy in the state. (c) "Electric mutual utility" means any nonprofit, member-owned corporation or association organized under chapter 24.06 RCW and engaged in the business of distributing electric energy in the state. (d) "Electronic computing device" means any computer hardware or software, computer chip, embedded chip, process control equipment, or other information system used to capture, store, manipulate, or process data, or that controls, monitors, or assists in the operation of physical apparatus that is not primarily used as a computer, but that relies on automation or digital technology to function, including but not limited to vehicles, vessels, buildings, structures, facilities, elevators, medical equipment, traffic signals, factory machinery, and the like. (e) "Public service provider" means any municipal electric or gas utility formed under Title 35 RCW, electric public utility district formed under Title 54 RCW, electrical company, as defined in RCW 80.04.010, gas company, as defined in RCW 80.04.010, electric cooperative utility, and electric mutual utility. (f) "Year 2000 failure" means with respect to an electronic computing device, a computing failure that prevents such electronic computing device from accurately interpreting, producing, computing, generating, accounting for, processing, calculating, comparing, or sequencing date or time data from, into, or between the years 1999 and 2000, or with regard to leap year calculations. (2) In any action against an agency or public service provider, whether based in tort, contract, or otherwise, for damages caused in whole or in part by computational or interpretive errors generated by an electronic computing device in connection with a year 2000 failure: (a) Any liability shall be several, not joint, and the liability shall be determined as a percentage of fault in a manner consistent with RCW 4.22.070; and (b) Agencies as defined in this section shall have no liability for the first one hundred dollars of damages per claimant that would otherwise be owed by the agency. (3) This section shall not apply to any action for damages arising from bodily personal injury, or to wrongful death and survival actions under chapter 4.20 RCW or RCW 4.24.010. (4) This section does not apply to any claim or cause of action filed after December 31, 2003. (5) This section expires December 31, 2009. [1999 c 369 § 1.] Effective date—1999 c 369: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 17, 1999]." [1999 c 369 § 7.] 4.22.900 4.22.900 Effective date—1973 1st ex.s. c 138. This act takes effect as of 12:01 a.m. on April 1, 1974. [1973 1st ex.s. c 138 § 3.] 4.22.910 4.22.910 Severability—1973 1st ex.s. c 138. If any provision of this act or the application thereof to any person or circumstance is held unconstitutional, the remainder of this (2006 Ed.) Chapter 4.24 act and the application of such provisions to other persons or circumstances shall not be affected thereby, and it shall be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional provision. [1973 1st ex.s. c 138 § 4.] 4.22.911 Severability—1981 c 27. If any provision of this amendatory act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1981 c 27 § 18.] 4.22.911 4.22.920 4.22.920 Applicability—1981 c 27. (1) Chapter 27, Laws of 1981 shall apply to all claims arising on or after July 26, 1981. (2) Notwithstanding subsection (1) of this section, RCW 4.22.040, 4.22.050, and 4.22.060 shall also apply to all actions in which trial on the underlying action has not taken place prior to July 26, 1981, except that there is no right of contribution in favor of or against any party who has, prior to July 26, 1981, entered into a release, covenant not to sue, covenant not to enforce judgment, or similar agreement with the claimant. [1982 c 100 § 2; 1981 c 27 § 15.] Severability—1982 c 100: See note following RCW 4.22.040. 4.22.925 4.22.925 Applicability—1981 c 27 § 17. In accordance with section 15(1), chapter 27, Laws of 1981, the repeal of RCW 4.22.010 by section 17, chapter 27, Laws of 1981 applies only to claims arising on or after July 26, 1981. RCW 4.22.010 shall continue to apply to claims arising prior to July 26, 1981. [1982 c 100 § 3.] Severability—1982 c 100: See note following RCW 4.22.040. Chapter 4.24 Chapter 4.24 RCW SPECIAL RIGHTS OF ACTION AND SPECIAL IMMUNITIES Sections 4.24.005 4.24.010 4.24.020 4.24.040 4.24.050 4.24.060 4.24.070 4.24.080 4.24.090 4.24.115 4.24.130 4.24.140 4.24.141 4.24.150 4.24.160 4.24.170 4.24.180 4.24.190 4.24.200 4.24.210 4.24.220 Tort actions—Attorneys’ fees—Determination of reasonableness. Action for injury or death of child. Action by parent for seduction of child. Action for negligently permitting fire to spread. Kindling of fires by persons driving lumber. Application of common law. Recovery of money lost at gambling. Action to recover leased premises used for gambling. Validity of evidence of gambling debt. Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate. Action for change of name—Fees. Action by another state to enforce tax liability. Action by another state to enforce tax liability—"Taxes" defined. Action for fines or forfeitures. Action for penalty—Amount of recovery. Judgment for penalty or forfeiture—Effect of collusion. Disposition of fines, fees, penalties and forfeitures—Venue. Action against parent for willful injury to person or property by minor—Monetary limitation—Common law liability preserved. Liability of owners or others in possession of land and water areas for injuries to recreation users—Purpose. Liability of owners or others in possession of land and water areas for injuries to recreation users—Limitation. Action for being detained on mercantile establishment premises for investigation—"Reasonable grounds" as defense. [Title 4 RCW—page 17] 4.24.005 4.24.230 4.24.235 4.24.240 4.24.250 4.24.260 4.24.264 4.24.270 4.24.280 4.24.290 4.24.295 4.24.300 4.24.310 4.24.312 4.24.314 4.24.316 4.24.320 4.24.350 4.24.360 4.24.370 4.24.380 4.24.400 4.24.405 4.24.410 4.24.420 4.24.450 4.24.460 4.24.470 4.24.480 4.24.490 4.24.500 4.24.510 4.24.520 4.24.530 4.24.540 4.24.545 4.24.550 4.24.5501 4.24.5502 Title 4 RCW: Civil Procedure Liability for conversion of goods or merchandise from store or mercantile establishment, leaving restaurant or hotel or motel without paying—Adults, minors—Parents, guardians—Notice. Physicians—Immunity from liability regarding safety belts. Persons licensed to provide health care or related services, employees, hospitals, clinics, etc.—Professional review committee, society, examining, licensing or disciplinary board members, etc.—Immunity from civil suit. Health care provider filing charges or presenting evidence— Immunity—Information sharing. Health professionals making reports, filing charges, or presenting evidence—Immunity. Boards of directors or officers of nonprofit corporations—Liability—Limitations. Physician or hospital rendering emergency care—Immunity from civil liability. Acts or omissions of physician’s trained mobile intensive care paramedic—Immunity from liability. Action for damages based on professional negligence of hospitals or members of healing arts—Standard of proof—Evidence—Exception. Special action for injuries resulting from health care, special procedure. Immunity from liability for certain types of medical care. Persons rendering emergency care or transportation—Definitions. Person rendering emergency aid in hazardous materials incident—Immunity from liability—Limitations. Person causing hazardous materials incident—Responsibility for incident clean-up—Liability. Emergency care, rescue, assistance, or recovery services in mine rescue or recovery work—Immunity from liability. Action by person damaged by malicious mischief to livestock or by owner damaged by theft of livestock—Treble damages, attorney’s fees. Actions for damages that are false, unfounded, malicious, without probable cause, or part of conspiracy—Action, claim, or counterclaim by judicial officer, prosecuting authority, or law enforcement officer for malicious prosecution—Damages and costs—Attorneys’ fees—Definitions. Construction contract provision waiving, releasing, etc., rights of contractor, etc., to damages or adjustment for unreasonable delay caused by contractee, etc.—Declared void and unenforceable—Exceptions. Construction contract provision waiving, releasing, etc., rights of contractor, etc., to damages or adjustment for unreasonable delay caused by contractee, etc.—"Construction contract" defined. Construction contract provision waiving, releasing, etc., rights of contractor, etc., to damages or adjustment for unreasonable delay caused by contractee, etc.—Prospective application of RCW 4.24.360. Building warden assisting others to evacuate building or attempting to control hazard—Immunity from liability. Action for malicious harassment of another because of race, color, religion, ancestry or national origin. Dog handler using dog in line of duty—Immunity. Action by person committing a felony—Defense—Actions under 42 U.S.C. Sec. 1983. Liability of operators for nuclear incidents—Definitions. Liability of operators for nuclear incidents—Presumption of operator negligence—Rebuttal—Recovery for negligence or against other parties not limited by section. Liability of officials and members of governing body of public agency—Definitions. Liability of members of state hazardous materials planning committee and local emergency planning committees. Indemnification of state employees. Good faith communication to government agency—Legislative findings—Purpose. Communication to government agency or self-regulatory organization—Immunity from civil liability. Good faith communication to government agency—When agency or attorney general may defend against lawsuit— Costs and fees. Limitations on liability for equine activities—Definitions. Limitations on liability for equine activities—Exceptions. Electronic monitoring—Limitation on liability. Sex offenders and kidnapping offenders—Release of information to public—Web site. Sex offenders—Model policy—Work group. Sex offenders—Consistent approach to risk assessment by agencies to implement 1997 c 364. [Title 4 RCW—page 18] 4.24.551 4.24.555 4.24.556 4.24.558 4.24.560 4.24.570 4.24.575 4.24.580 4.24.590 4.24.601 4.24.611 4.24.630 4.24.640 4.24.650 4.24.660 4.24.670 4.24.680 4.24.690 4.24.700 4.24.710 4.24.720 4.24.730 4.24.740 Law enforcement response to secure community transition facility—Limitation on liability. Release of information not restricted by pending appeal, petition, or writ. Sex offender treatment providers—Affiliate sex offender treatment providers—Limited liability—Responsibilities. Limitations on liability for information sharing regarding persons under court orders for supervision or treatment. Defense to action for injury caused by indoor air pollutants. Acts against animals in research or educational facilities. Acts against animals kept for agricultural or veterinary purposes. Acts against animal facilities—Injunction. Liability of foster parents. Hazards to the public—Information—Legislative findings, policy, intent. Product liability/hazardous substance claims—Public right to information—Confidentiality—Damages, costs, attorneys’ fees—Repeal. Liability for damage to land and property—Damages— Costs—Attorneys’ fees—Exceptions. Firearm safety program liability. Year 2000 failure—Affirmative defense to contract action. Liability of school districts under contracts with youth programs. Liability of volunteers of nonprofit or governmental entities. Unlawful release of court and law enforcement employee information—Exception. Unlawful release of court and law enforcement employee information—Court action to prevent. Unlawful release of court and law enforcement employee information—Damages, fees, and costs. Outdoor music festival, campground—Detention. Liability immunity—Amber alerts. Liability immunity—Disclosure of employee information to prospective employer. Liability immunity—Bovine handling activities. Action for money damages due to gambling violations: RCW 9.46.200. Arson reporting immunity act: Chapter 48.50 RCW. Consent to treatment of minor for sexually transmitted disease, liability: RCW 70.24.110. Food donation and distribution, limitation of liability: Chapter 69.80 RCW. Malpractice insurance for retired physicians providing health care services: RCW 43.70.460. Special proceedings and actions: Title 7 RCW. 4.24.005 4.24.005 Tort actions—Attorneys’ fees—Determination of reasonableness. Any party charged with the payment of attorney’s fees in any tort action may petition the court not later than forty-five days of receipt of a final billing or accounting for a determination of the reasonableness of that party’s attorneys’ fees. The court shall make such a determination and shall take into consideration the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; (8) Whether the fee is fixed or contingent; (2006 Ed.) Special Rights of Action and Special Immunities (9) Whether the fixed or contingent fee agreement was in writing and whether the client was aware of his or her right to petition the court under this section; (10) The terms of the fee agreement. [1987 c 212 § 1601; 1986 c 305 § 201.] Application—1987 c 212 § 1601: "Section 1601 of this act applies to agreements for attorneys’ fees entered into after April 29, 1987." [1987 c 212 § 1602.] Application—1986 c 305 § 201: "Section 201 of this act applies to agreements for attorney’s fees entered into after June 11, 1986." [1986 c 305 § 202.] Preamble—Report to legislature—Severability—1986 c 305: See notes following RCW 4.16.160. 4.24.010 4.24.010 Action for injury or death of child. A mother or father, or both, who has regularly contributed to the support of his or her minor child, and the mother or father, or both, of a child on whom either, or both, are dependent for support may maintain or join as a party an action as plaintiff for the injury or death of the child. This section creates only one cause of action, but if the parents of the child are not married, are separated, or not married to each other damages may be awarded to each plaintiff separately, as the trier of fact finds just and equitable. If one parent brings an action under this section and the other parent is not named as a plaintiff, notice of the institution of the suit, together with a copy of the complaint, shall be served upon the other parent: PROVIDED, That notice shall be required only if parentage has been duly established. Such notice shall be in compliance with the statutory requirements for a summons. Such notice shall state that the other parent must join as a party to the suit within twenty days or the right to recover damages under this section shall be barred. Failure of the other parent to timely appear shall bar such parent’s action to recover any part of an award made to the party instituting the suit. In such an action, in addition to damages for medical, hospital, medication expenses, and loss of services and support, damages may be recovered for the loss of love and companionship of the child and for injury to or destruction of the parent-child relationship in such amount as, under all the circumstances of the case, may be just. [1998 c 237 § 2; 1973 1st ex.s. c 154 § 4; 1967 ex.s. c 81 § 1; 1927 c 191 § 1; Code 1881 § 9; 1877 p 5 § 9; 1873 p 5 § 10; 1869 p 4 § 9; RRS § 184.] Intent—1998 c 237: "It is the intent of this act to address the constitutional issue of equal protection addressed by the Washington state supreme court in Guard v. Jackson, 132 Wn.2d 660 (1997). The legislature intends to provide a civil cause of action for wrongful injury or death of a minor child to a mother or father, or both, if the mother or father has had significant involvement in the child’s life, including but not limited to, emotional, psychological, or financial support." [1998 c 237 § 1.] Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 4.24.020 4.24.020 Action by parent for seduction of child. A father or mother, may maintain an action as plaintiff for the seduction of a child, and the guardian for the seduction of a ward, though the child or the ward be not living with or in the service of the plaintiff at the time of the seduction or afterwards, and there be no loss of service. [1973 1st ex.s. c 154 § 5; Code 1881 § 10; 1877 p 5 § 10; 1869 p 4 § 10; RRS § 185.] (2006 Ed.) 4.24.080 Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 4.24.040 4.24.040 Action for negligently permitting fire to spread. If any person shall for any lawful purpose kindle a fire upon his own land, he shall do it at such time and in such manner, and shall take such care of it to prevent it from spreading and doing damage to other persons’ property, as a prudent and careful man would do, and if he fails so to do he shall be liable in an action on the case to any person suffering damage thereby to the full amount of such damage. [Code 1881 § 1226; 1877 p 300 § 3; RRS § 5647.] Reviser’s note: The words "on the case" appear in the 1877 law and in the 1881 enrolled bill but were inadvertently omitted from the printed Code of 1881. See also Pettigrew v. McCoy, 138 Wash. 619. Arson, reckless burning, and malicious mischief: Chapter 9A.48 RCW. 4.24.050 4.24.050 Kindling of fires by persons driving lumber. Persons engaged in driving lumber upon any waters or streams of this state, may kindle fires when necessary for the purposes in which they are engaged, but shall be bound to use the utmost caution to prevent the same from spreading and doing damage; and if they fail so to do, they shall be subject to all liabilities and penalties of RCW 4.24.040, 4.24.050, and 4.24.060, in the same manner as if the privilege granted by this section had not been allowed. [1983 c 3 § 4; Code 1881 § 1228; 1877 p 300 § 5; RRS § 5648.] 4.24.060 4.24.060 Application of common law. The common law right to an action for damages done by fires, is not taken away or diminished by RCW 4.24.040, 4.24.050, and 4.24.060, but it may be pursued; but any person availing himself of the provisions of RCW 4.24.040, shall be barred of his action at common law for the damage so sued for, and no action shall be brought at common law for kindling fires in the manner described in RCW 4.24.050; but if any such fires shall spread and do damage, the person who kindled the same and any person present and concerned in driving such lumber, by whose act or neglect such fire is suffered to spread and do damage shall be liable in an action on the case for the amount of damages thereby sustained. [1983 c 3 § 5; Code 1881 § 1229; 1877 p 300 § 6; RRS § 5649.] 4.24.070 4.24.070 Recovery of money lost at gambling. All persons losing money or anything of value at or on any illegal gambling games shall have a cause of action to recover from the dealer or player winning, or from the proprietor for whose benefit such game was played or dealt, or such money or things of value won, the amount of the money or the value of the thing so lost. [1957 c 7 § 2; Code 1881 § 1255; 1879 p 98 § 3; RRS § 5851.] Gambling: Chapter 9.46 RCW. 4.24.080 4.24.080 Action to recover leased premises used for gambling. It shall be lawful for any person letting or renting any house, room, shop or other building whatsoever, or any boat, booth, garden, or other place, which shall, at any time, be used by the lessee or occupant thereof, or any other person, with his knowledge or consent, for gambling purposes, upon discovery thereof, to avoid and terminate such lease, or contract of occupancy, and to recover immediate possession [Title 4 RCW—page 19] 4.24.090 Title 4 RCW: Civil Procedure of the premises by an action at law for that purpose. [1957 c 7 § 3; Code 1881 § 1257; 1879 p 98 § 5; RRS § 5852.] 4.24.090 4.24.090 Validity of evidence of gambling debt. All notes, bills, bonds, mortgages, or other securities, or other conveyances, the consideration for which shall be money, or other things of value, won by playing at any unlawful game, shall be void and of no effect, as between the parties thereto and all other persons, except holders in good faith, without notice of the illegality of such contract or conveyance. [1957 c 7 § 4; Code 1881 § 1254; 1879 p 98 § 2; RRS § 5853.] 4.24.115 4.24.115 Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate. A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith, purporting to indemnify against liability for damages arising out of bodily injury to persons or damage to property: (1) Caused by or resulting from the sole negligence of the indemnitee, his agents or employees is against public policy and is void and unenforceable; (2) Caused by or resulting from the concurrent negligence of (a) the indemnitee or the indemnitee’s agents or employees, and (b) the indemnitor or the indemnitor’s agents or employees, is valid and enforceable only to the extent of the indemnitor’s negligence and only if the agreement specifically and expressly provides therefor, and may waive the indemnitor’s immunity under industrial insurance, Title 51 RCW, only if the agreement specifically and expressly provides therefor and the waiver was mutually negotiated by the parties. This subsection applies to agreements entered into after June 11, 1986. [1986 c 305 § 601; 1967 ex.s. c 46 § 2.] Preamble—Report to legislature—Severability—1986 c 305: See notes following RCW 4.16.160. 4.24.130 4.24.130 Action for change of name—Fees. (1) Any person desiring a change of his or her name or that of his or her child or ward, may apply therefor to the district court of the judicial district in which he or she resides, by petition setting forth the reasons for such change; thereupon such court in its discretion may order a change of the name and thenceforth the new name shall be in place of the former. (2) An offender under the jurisdiction of the department of corrections who applies to change his or her name under subsection (1) of this section shall submit a copy of the application to the department of corrections not fewer than five days before the entry of an order granting the name change. No offender under the jurisdiction of the department of corrections at the time of application shall be granted an order changing his or her name if the court finds that doing so will interfere with legitimate penological interests, except that no order shall be denied when the name change is requested for religious or legitimate cultural reasons or in recognition of [Title 4 RCW—page 20] marriage or dissolution of marriage. An offender under the jurisdiction of the department of corrections who receives an order changing his or her name shall submit a copy of the order to the department of corrections within five days of the entry of the order. Violation of this subsection is a misdemeanor. (3) A sex offender subject to registration under RCW 9A.44.130 who applies to change his or her name under subsection (1) of this section shall follow the procedures set forth in *RCW 9A.44.130(6). (4) The district court shall collect the fees authorized by RCW 36.18.010 for filing and recording a name change order, and transmit the fee and the order to the county auditor. The court may collect a reasonable fee to cover the cost of transmitting the order to the county auditor. (5) Name change petitions may be filed and shall be heard in superior court when the person desiring a change of his or her name or that of his or her child or ward is a victim of domestic violence as defined in RCW 26.50.010(1) and the person seeks to have the name change file sealed due to reasonable fear for his or her safety or that of his or her child or ward. Upon granting the name change, the superior court shall seal the file if the court finds that the safety of the person seeking the name change or his or her child or ward warrants sealing the file. In all cases filed under this subsection, whether or not the name change petition is granted, there shall be no public access to any court record of the name change filing, proceeding, or order, unless the name change is granted but the file is not sealed. [1998 c 220 § 5; 1995 sp.s. c 19 § 14; 1995 c 246 § 34; 1992 c 30 § 1; 1991 c 33 § 5; Code 1881 § 635; 1877 p 132 § 638; RRS § 998.] *Reviser’s note: RCW 9A.44.130 was amended by 1999 sp.s. c 6 § 2, changing subsection (6) to subsection (7). RCW 9A.44.130 was subsequently amended by 2006 c 129 § 2, changing subsection (7) to subsection (8). Severability—1998 c 220: See note following RCW 9A.44.130. Findings—Purpose—Short title—Severability—Effective date— 1995 1st sp.s. c 19: See notes following RCW 72.09.450. Severability—1995 c 246: See note following RCW 26.50.010. Effective date—1991 c 33: See note following RCW 3.66.020. 4.24.140 4.24.140 Action by another state to enforce tax liability. The courts of the state shall recognize and enforce the liability for taxes lawfully imposed by the laws of any other state which extends a like comity in respect to the liability for taxes lawfully imposed by the laws of this state and the officials of such state are hereby authorized to bring an action in all the courts of this state for the collection of such taxes: PROVIDED, That the courts of this state shall not recognize claims for such taxes against this state or any of its political subdivisions: PROVIDED, FURTHER, That the time limitations upon the bringing of such actions which may be imposed by the laws of such other state shall not be tolled by the absence from such state of the person from whom the taxes are sought. The certificate of the secretary of state of such other state to the effect that such officials have the authority to collect the taxes sought to be recovered by such action shall be conclusive proof of that authority. [1951 c 166 § 1. FORMER PART OF SECTION: 1951 c 166 § 2 now codified as RCW 4.24.141.] Limitation of actions: Chapter 4.16 RCW. (2006 Ed.) Special Rights of Action and Special Immunities 4.24.141 4.24.141 Action by another state to enforce tax liability—"Taxes" defined. The term "taxes" as used in RCW 4.24.140 shall include: (1) Any and all tax assessments lawfully made whether they be based upon a return or other disclosure of the taxpayer, upon information and belief of the taxing authority, or otherwise; (2) Any and all penalties lawfully imposed pursuant to a tax statute; (3) Interest charges lawfully added to the tax liability which constitutes the subject of the action. [1951 c 166 § 2. Formerly RCW 4.24.140, part.] 4.24.210 ciously destroy or deface property, real or personal or mixed, or who shall willfully and maliciously inflict personal injury on another person, shall be liable to the owner of such property or to the person injured in a civil action at law for damages in an amount not to exceed five thousand dollars. This section shall in no way limit the amount of recovery against the parent or parents for their own common law negligence. [1996 c 35 § 2; 1992 c 205 § 116; 1977 ex.s. c 145 § 1; 1967 ex.s. c 46 § 1; 1961 c 99 § 1.] Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. 4.24.200 Liability of owners or others in possession of land and water areas for injuries to recreation users— Purpose. The purpose of RCW 4.24.200 and 4.24.210 is to encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon. [1969 ex.s. c 24 § 1; 1967 c 216 § 1.] 4.24.200 4.24.150 4.24.150 Action for fines or forfeitures. Fines and forfeitures may be recovered by an action at law in the name of the officer or person to whom they are by law given, or in the name of the officer or person who by law is authorized to prosecute for them. [Code 1881 § 657; 1869 p 153 § 597; RRS § 963.] Limitation of actions: Chapter 4.16 RCW. 4.24.160 4.24.160 Action for penalty—Amount of recovery. When an action shall be commenced for a penalty, which by law is not to exceed a certain amount, the action may be commenced for that amount, and if judgment be given for the plaintiff, it may be for such amount or less, in the discretion of the court, in proportion to the offense. [Code 1881 § 658; 1869 p 153 § 598; RRS § 964.] 4.24.170 4.24.170 Judgment for penalty or forfeiture—Effect of collusion. A recovery of a judgment for a penalty or forfeiture by collusion between the plaintiff and defendant, with intent to save the defendant wholly or partially from the consequences contemplated by law, in case when the penalty or forfeiture is given wholly or partly to the person who prosecutes, shall not bar the recovery of the same by another person. [Code 1881 § 659; 1869 p 153 § 599; RRS § 965.] 4.24.180 4.24.180 Disposition of fines, fees, penalties and forfeitures—Venue. Fines and forfeitures not specially granted or otherwise appropriated by law, when recovered, shall be paid into the school fund of the proper county: PROVIDED, That all fees, fines, forfeitures and penalties collected or assessed by a district court because of the violation of a state law shall be remitted as provided in chapter 3.62 RCW as now exists or is later amended. Whenever, by the provisions of law, any property real or personal shall be forfeited to the state, or to any officer for its use, the action for the recovery of such property may be commenced in any county where the defendant may be found or where such property may be. [1987 c 202 § 115; 1969 ex.s. c 199 § 9; Code 1881 § 660; 1869 p 153 § 600; RRS § 966.] Intent—1987 c 202: See note following RCW 2.04.190. Disposition of fines, fees, costs, penalties and forfeitures: RCW 10.82.070. 4.24.190 4.24.190 Action against parent for willful injury to person or property by minor—Monetary limitation— Common law liability preserved. The parent or parents of any minor child under the age of eighteen years who is living with the parent or parents and who shall willfully or mali(2006 Ed.) 4.24.210 Liability of owners or others in possession of land and water areas for injuries to recreation users— Limitation. (1) Except as otherwise provided in subsection (3) or (4) of this section, any public or private landowners or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to, the cutting, gathering, and removing of firewood by private persons for their personal use without purchasing the firewood from the landowner, hunting, fishing, camping, picnicking, swimming, hiking, bicycling, skateboarding or other nonmotorized wheel-based activities, hanggliding, paragliding, rock climbing, the riding of horses or other animals, clam digging, pleasure driving of off-road vehicles, snowmobiles, and other vehicles, boating, nature study, winter or water sports, viewing or enjoying historical, archaeological, scenic, or scientific sites, without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users. (2) Except as otherwise provided in subsection (3) or (4) of this section, any public or private landowner or others in lawful possession and control of any lands whether rural or urban, or water areas or channels and lands adjacent to such areas or channels, who offer or allow such land to be used for purposes of a fish or wildlife cooperative project, or allow access to such land for cleanup of litter or other solid waste, shall not be liable for unintentional injuries to any volunteer group or to any other users. (3) Any public or private landowner, or others in lawful possession and control of the land, may charge an administrative fee of up to twenty-five dollars for the cutting, gathering, and removing of firewood from the land. (4) Nothing in this section shall prevent the liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted. A fixed anchor used in rock climbing 4.24.210 [Title 4 RCW—page 21] 4.24.220 Title 4 RCW: Civil Procedure and put in place by someone other than a landowner is not a known dangerous artificial latent condition and a landowner under subsection (1) of this section shall not be liable for unintentional injuries resulting from the condition or use of such an anchor. Nothing in RCW 4.24.200 and this section limits or expands in any way the doctrine of attractive nuisance. Usage by members of the public, volunteer groups, or other users is permissive and does not support any claim of adverse possession. (5) For purposes of this section, the following are not fees: (a) A license or permit issued for statewide use under authority of chapter 79A.05 RCW or Title 77 RCW; and (b) A daily charge not to exceed twenty dollars per person, per day, for access to a publicly owned ORV sports park, as defined in RCW 46.09.020, or other public facility accessed by a highway, street, or nonhighway road for the purposes of off-road vehicle use. [2006 c 212 § 6. Prior: 2003 c 39 § 2; 2003 c 16 § 2; 1997 c 26 § 1; 1992 c 52 § 1; prior: 1991 c 69 § 1; 1991 c 50 § 1; 1980 c 111 § 1; 1979 c 53 § 1; 1972 ex.s. c 153 § 17; 1969 ex.s. c 24 § 2; 1967 c 216 § 2.] Finding—2003 c 16: "The legislature finds that some property owners in Washington are concerned about the possibility of liability arising when individuals are permitted to engage in potentially dangerous outdoor recreational activities, such as rock climbing. Although RCW 4.24.210 provides property owners with immunity from legal claims for any unintentional injuries suffered by certain individuals recreating on their land, the legislature finds that it is important to the promotion of rock climbing opportunities to specifically include rock climbing as one of the recreational activities that are included in RCW 4.24.210. By including rock climbing in RCW 4.24.210, the legislature intends merely to provide assurance to the owners of property suitable for this type of recreation, and does not intend to limit the application of RCW 4.24.210 to other types of recreation. By providing that a landowner shall not be liable for any unintentional injuries resulting from the condition or use of a fixed anchor used in rock climbing, the legislature recognizes that such fixed anchors are recreational equipment used by climbers for which a landowner has no duty of care." [2003 c 16 § 1.]. Purpose—1972 ex.s. c 153: See RCW 79A.35.070. Off-road and nonhighway vehicles: Chapter 46.09 RCW. Snowmobiles: Chapter 46.10 RCW. 4.24.220 4.24.220 Action for being detained on mercantile establishment premises for investigation—"Reasonable grounds" as defense. In any civil action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer or by the owner of the mercantile establishment, his authorized employee or agent, and that such peace officer, owner, employee or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit larceny or shoplifting on such premises of such merchandise. As used in this section, "reasonable grounds" shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a "reasonable time" shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of [Title 4 RCW—page 22] the mercantile establishment relative to the ownership of the merchandise. [1967 c 76 § 3.] Theft and robbery: Chapter 9A.56 RCW. 4.24.230 4.24.230 Liability for conversion of goods or merchandise from store or mercantile establishment, leaving restaurant or hotel or motel without paying—Adults, minors—Parents, guardians—Notice. (1) An adult or emancipated minor who takes possession of any goods, wares, or merchandise displayed or offered for sale by any wholesale or retail store or other mercantile establishment without the consent of the owner or seller, and with the intention of converting such goods, wares, or merchandise to his own use without having paid the purchase price thereof shall be liable in addition to actual damages, for a penalty to the owner or seller in the amount of the retail value thereof not to exceed one thousand dollars, plus an additional penalty of not less than one hundred dollars nor more than two hundred dollars, plus all reasonable attorney’s fees and court costs expended by the owner or seller. A customer who orders a meal in a restaurant or other eating establishment, receives at least a portion thereof, and then leaves without paying, is subject to liability under this section. A person who shall receive any food, money, credit, lodging, or accommodation at any hotel, motel, boarding house, or lodging house, and then leaves without paying the proprietor, manager, or authorized employee thereof, is subject to liability under this section. (2) The parent or legal guardian having the custody of an unemancipated minor who takes possession of any goods, wares, or merchandise displayed or offered for sale by any wholesale or retail store or other mercantile establishment without the consent of the owner or seller and with the intention of converting such goods, wares, or merchandise to his own use without having paid the purchase price thereof, shall be liable as a penalty to the owner or seller for the retail value of such goods, wares, or merchandise not to exceed five hundred dollars plus an additional penalty of not less than one hundred dollars nor more than two hundred dollars, plus all reasonable attorney’s fees and court costs expended by the owner or seller. The parent or legal guardian having the custody of an unemancipated minor, who orders a meal in a restaurant or other eating establishment, receives at least a portion thereof, and then leaves without paying, is subject to liability under this section. The parent or legal guardian having the custody of an unemancipated minor, who receives any food, money, credit, lodging, or accommodation at any hotel, motel, boarding house, or lodging house, and then leaves without paying the proprietor, manager, or authorized employee thereof, is subject to liability under this section. For the purposes of this subsection, liability shall not be imposed upon any governmental entity, private agency, or foster parent assigned responsibility for the minor child pursuant to court order or action of the department of social and health services. (3) Judgments and claims arising under this section may be assigned. (4) A conviction for violation of chapter 9A.56 RCW shall not be a condition precedent to maintenance of a civil action authorized by this section. (2006 Ed.) Special Rights of Action and Special Immunities (5) An owner or seller demanding payment of a penalty under subsection (1) or (2) of this section shall give written notice to the person or persons from whom the penalty is sought. The notice shall state: "IMPORTANT NOTICE: The payment of any penalty demanded of you does not prevent criminal prosecution under a related criminal provision." This notice shall be boldly and conspicuously displayed, in at least the same size type as is used in the demand, and shall be sent with the demand for payment of a penalty described in subsection (1) or (2) of this section. [1994 c 9 § 1; 1987 c 353 § 1; 1981 c 126 § 1; 1977 ex.s. c 134 § 1; 1975 1st ex.s. c 59 § 1.] Obtaining food from restaurant without paying: RCW 19.48.110. 4.24.235 4.24.235 Physicians—Immunity from liability regarding safety belts. A licensed physician shall not be liable for civil damages resulting directly or indirectly from providing, or refusing to provide, a written verification that a person under that physician’s care us [is] unable to wear an automotive safety belt. [1986 c 152 § 2.] Safety belts, use required: RCW 46.61.688. 4.24.240 4.24.240 Persons licensed to provide health care or related services, employees, hospitals, clinics, etc.—Professional review committee, society, examining, licensing or disciplinary board members, etc.—Immunity from civil suit. (1)(a) A person licensed by this state to provide health care or related services, including, but not limited to, a licensed acupuncturist, a physician, osteopathic physician, dentist, nurse, optometrist, podiatric physician and surgeon, chiropractor, physical therapist, psychologist, pharmacist, optician, physician’s assistant, osteopathic physician’s assistant, nurse practitioner, including, in the event such person is deceased, his or her estate or personal representative; (b) An employee or agent of a person described in subparagraph (a) of this subsection, acting in the course and scope of his or her employment, including, in the event such employee or agent is deceased, his or her estate or personal representative; or (c) An entity, whether or not incorporated, facility, or institution employing one or more persons described in subparagraph (a) of this subsection, including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, trustee, employee, or agent thereof acting in the course and scope of his or her employment, including in the event such officer, director, employee, or agent is deceased, his or her estate or personal representative; shall be immune from civil action for damages arising out of the good faith performance of their duties on such committees, where such actions are being brought by or on behalf of the person who is being evaluated. (2) No member, employee, staff person, or investigator of a professional review committee shall be liable in a civil action as a result of acts or omissions made in good faith on behalf of the committee; nor shall any person be so liable for filing charges with or supplying information or testimony in good faith to any professional review committee; nor shall a member, employee, staff person, or investigator of a profes(2006 Ed.) 4.24.250 sional society, of a professional examining or licensing board, of a professional disciplinary board, of a governing board of any institution, or of any employer of professionals be so liable for good faith acts or omissions made in full or partial reliance on recommendations or decisions of a professional review committee or examining board. [1995 c 323 § 1; 1985 c 326 § 25; 1975-’76 2nd ex.s. c 56 § 4; 1975 1st ex.s. c 114 § 1; 1969 ex.s. c 157 § 1.] Severability—1975-’76 2nd ex.s. c 56: See note following RCW 4.16.350. 4.24.250 4.24.250 Health care provider filing charges or presenting evidence—Immunity—Information sharing. (1) Any health care provider as defined in RCW 7.70.020 (1) and (2) who, in good faith, files charges or presents evidence against another member of their profession based on the claimed incompetency or gross misconduct of such person before a regularly constituted review committee or board of a professional society or hospital whose duty it is to evaluate the competency and qualifications of members of the profession, including limiting the extent of practice of such person in a hospital or similar institution, or before a regularly constituted committee or board of a hospital whose duty it is to review and evaluate the quality of patient care and any person or entity who, in good faith, shares any information or documents with one or more other committees, boards, or programs under subsection (2) of this section, shall be immune from civil action for damages arising out of such activities. For the purposes of this section, sharing information is presumed to be in good faith. However, the presumption may be rebutted upon a showing of clear, cogent, and convincing evidence that the information shared was knowingly false or deliberately misleading. The proceedings, reports, and written records of such committees or boards, or of a member, employee, staff person, or investigator of such a committee or board, are not subject to review or disclosure, or subpoena or discovery proceedings in any civil action, except actions arising out of the recommendations of such committees or boards involving the restriction or revocation of the clinical or staff privileges of a health care provider as defined in RCW 7.70.020 (1) and (2). (2) A coordinated quality improvement program maintained in accordance with RCW 43.70.510 or 70.41.200, a quality assurance committee maintained in accordance with RCW 18.20.390 or 74.42.640, or any committee or board under subsection (1) of this section may share information and documents, including complaints and incident reports, created specifically for, and collected and maintained by, a coordinated quality improvement committee or committees or boards under subsection (1) of this section, with one or more other coordinated quality improvement programs or committees or boards under subsection (1) of this section for the improvement of the quality of health care services rendered to patients and the identification and prevention of medical malpractice. The privacy protections of chapter 70.02 RCW and the federal health insurance portability and accountability act of 1996 and its implementing regulations apply to the sharing of individually identifiable patient information held by a coordinated quality improvement program. Any rules necessary to implement this section shall meet the requirements of applicable federal and state privacy laws. [Title 4 RCW—page 23] 4.24.260 Title 4 RCW: Civil Procedure Information and documents disclosed by one coordinated quality improvement program or committee or board under subsection (1) of this section to another coordinated quality improvement program or committee or board under subsection (1) of this section and any information and documents created or maintained as a result of the sharing of information and documents shall not be subject to the discovery process and confidentiality shall be respected as required by subsection (1) of this section and by RCW 43.70.510(4), 70.41.200(3), 18.20.390 (6) and (8), and 74.42.640 (7) and (9). [2005 c 291 § 1; 2005 c 33 § 5; 2004 c 145 § 1; 1981 c 181 § 1; 1979 c 17 § 1; 1977 c 68 § 1; 1975 1st ex.s. c 114 § 2; 1971 ex.s. c 144 § 1.] Reviser’s note: This section was amended by 2005 c 33 § 5 and by 2005 c 291 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Findings—2005 c 33: See note following RCW 18.20.390. 4.24.260 4.24.260 Health professionals making reports, filing charges, or presenting evidence—Immunity. Any member of a health profession listed under RCW 18.130.040 who, in good faith, makes a report, files charges, or presents evidence against another member of a health profession based on the claimed unprofessional conduct as provided in RCW 18.130.180 or inability to practice with reasonable skill and safety to consumers by reason of any physical or mental condition as provided in RCW 18.130.170 of such person before the agency, board, or commission responsible for disciplinary activities for the person’s profession under chapter 18.130 RCW, shall be immune from civil action for damages arising out of such activities. A person prevailing upon the good faith defense provided for in this section is entitled to recover expenses and reasonable attorneys’ fees incurred in establishing the defense. [2006 c 8 § 102; 1994 sp.s. c 9 § 701; 1975 1st ex.s. c 114 § 3; 1971 ex.s. c 144 § 2.] Findings—Intent—Part headings and subheadings not law—Severability—2006 c 8: See notes following RCW 5.64.010. Severability—Headings and captions not law—Effective date— 1994 sp.s. c 9: See RCW 18.79.900 through 18.79.902. 4.24.264 4.24.264 Boards of directors or officers of nonprofit corporations—Liability—Limitations. (1) Except as provided in subsection (2) of this section, a member of the board of directors or an officer of any nonprofit corporation is not individually liable for any discretionary decision or failure to make a discretionary decision within his or her official capacity as director or officer unless the decision or failure to decide constitutes gross negligence. (2) Nothing in this section shall limit or modify in any manner the duties or liabilities of a director or officer of a corporation to the corporation or the corporation’s members. [1987 c 212 § 1101; 1986 c 305 § 903.] Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. 4.24.270 4.24.270 Physician or hospital rendering emergency care—Immunity from civil liability. See RCW 18.71.220. [Title 4 RCW—page 24] 4.24.280 4.24.280 Acts or omissions of physician’s trained mobile intensive care paramedic—Immunity from liability. See RCW 18.71.210. 4.24.290 4.24.290 Action for damages based on professional negligence of hospitals or members of healing arts—Standard of proof—Evidence—Exception. In any civil action for damages based on professional negligence against a hospital which is licensed by the state of Washington or against the personnel of any such hospital, or against a member of the healing arts including, but not limited to, an acupuncturist licensed under chapter 18.06 RCW, a physician licensed under chapter 18.71 RCW, an osteopathic physician licensed under chapter 18.57 RCW, a chiropractor licensed under chapter 18.25 RCW, a dentist licensed under chapter 18.32 RCW, a podiatric physician and surgeon licensed under chapter 18.22 RCW, or a nurse licensed under chapter 18.79 RCW, the plaintiff in order to prevail shall be required to prove by a preponderance of the evidence that the defendant or defendants failed to exercise that degree of skill, care, and learning possessed at that time by other persons in the same profession, and that as a proximate result of such failure the plaintiff suffered damages, but in no event shall the provisions of this section apply to an action based on the failure to obtain the informed consent of a patient. [1995 c 323 § 2; 1994 sp.s. c 9 § 702; 1985 c 326 § 26; 1983 c 149 § 1; 1975 1st ex.s. c 35 § 1.] Severability—Headings and captions not law—Effective date— 1994 sp.s. c 9: See RCW 18.79.900 through 18.79.902. Limitations of actions for injuries resulting from health care or related services: RCW 4.16.350. 4.24.295 4.24.295 Special action for injuries resulting from health care, special procedure. See chapter 7.70 RCW. 4.24.300 4.24.300 Immunity from liability for certain types of medical care. (1) Any person, including but not limited to a volunteer provider of emergency or medical services, who without compensation or the expectation of compensation renders emergency care at the scene of an emergency or who participates in transporting, not for compensation, therefrom an injured person or persons for emergency medical treatment shall not be liable for civil damages resulting from any act or omission in the rendering of such emergency care or in transporting such persons, other than acts or omissions constituting gross negligence or willful or wanton misconduct. Any person rendering emergency care during the course of regular employment and receiving compensation or expecting to receive compensation for rendering such care is excluded from the protection of this subsection. (2) Any licensed health care provider regulated by a disciplining authority under RCW 18.130.040 in the state of Washington who, without compensation or the expectation of compensation, provides health care services at a community health care setting is not liable for civil damages resulting from any act or omission in the rendering of such care, other than acts or omissions constituting gross negligence or willful or wanton misconduct. (3) For purposes of subsection (2) of this section, "community health care setting" means an entity that provides health care services and: (2006 Ed.) Special Rights of Action and Special Immunities (a) Is a clinic operated by a public entity or private tax exempt corporation, except a clinic that is owned, operated, or controlled by a hospital licensed under chapter 70.41 RCW unless the hospital-based clinic either: (i) Maintains and holds itself out to the public as having established hours on a regular basis for providing free health care services to members of the public to the extent that care is provided without compensation or expectation of compensation during those established hours; or (ii) Is participating, through a written agreement, in a community-based program to provide access to health care services for uninsured persons, to the extent that: (A) Care is provided without compensation or expectation of compensation to individuals who have been referred for care through that community-based program; and (B) The health care provider’s participation in the community-based program is conditioned upon his or her agreement to provide health services without expectation of compensation; (b) Is a for-profit corporation that maintains and holds itself out to the public as having established hours on a regular basis for providing free health care services to members of the public to the extent that care is provided without compensation or expectation of compensation during those established hours; or (c) Is a for-profit corporation that is participating, through a written agreement, in a community-based program to provide access to health care services for uninsured persons, to the extent that: (i) Care is provided without compensation or expectation of compensation to individuals who have been referred for care through that community-based program; and (ii) The health care provider’s participation in the community-based program is conditioned upon his or her agreement to provide health services without expectation of compensation. [2004 c 87 § 1; 2003 c 256 § 1; 1985 c 443 § 19; 1975 c 58 § 1.] Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. Citizen’s immunity if aiding police officer: RCW 9.01.055. Infectious disease testing availability: RCW 70.05.180. 4.24.310 Persons rendering emergency care or transportation—Definitions. For the purposes of RCW 4.24.300 the following words and phrases shall have the following meanings unless the context clearly requires otherwise: (1) "Compensation" has its ordinary meaning but does not include: Nominal payments, reimbursement for expenses, or pension benefits; payments made to volunteer part-time and volunteer on-call personnel of fire departments, fire districts, ambulance districts, police departments, or any emergency response organizations; or any payment to a person employed as a transit operator who is paid for his or her regular work, which work does not routinely include providing emergency care or emergency transportation. (2) "Emergency care" means care, first aid, treatment, or assistance rendered to the injured person in need of immediate medical attention and includes providing or arranging for further medical treatment or care for the injured person. Except with respect to the injured person or persons being transported for further medical treatment or care, the immu4.24.310 (2006 Ed.) 4.24.320 nity granted by RCW 4.24.300 does not apply to the negligent operation of any motor vehicle. (3) "Scene of an emergency" means the scene of an accident or other sudden or unexpected event or combination of circumstances which calls for immediate action. [1989 c 223 § 1; 1987 c 212 § 501; 1985 c 443 § 20; 1975 c 58 § 2.] Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. Infectious disease testing availability: RCW 70.05.180. 4.24.312 4.24.312 Person rendering emergency aid in hazardous materials incident—Immunity from liability—Limitations. See RCW 70.136.050. 4.24.314 4.24.314 Person causing hazardous materials incident—Responsibility for incident clean-up—Liability. (1) Any person transporting hazardous materials shall clean up any hazardous materials incident that occurs during transportation, and shall take such additional action as may be reasonably necessary after consultation with the designated incident command agency in order to achieve compliance with all applicable federal and state laws and regulations. Any person transporting hazardous materials that is responsible for causing a hazardous materials incident, as defined in RCW 70.136.020, other than the operating employees of a transportation company, is liable to the state or any political subdivision thereof for extraordinary costs incurred by the state or the political subdivision in the course of protecting the public from actual or threatened harm resulting from the hazardous materials incident. (2) Any person, other than a person transporting hazardous materials or an operating employee of a company, responsible for causing a hazardous materials incident, as defined in RCW 70.136.020, is liable to a municipal fire department or fire district for extraordinary costs incurred by the municipal fire department or fire district, in the course of protecting the public from actual or threatened harm resulting from the hazardous materials incident, until the incident oversight is assumed by the department of ecology. (3) "Extraordinary costs" as used in this section means those reasonable and necessary costs incurred by a governmental entity in the course of protecting life and property that exceed the normal and usual expenses anticipated for police and fire protection, emergency services, and public works. These shall include, but not be limited to, overtime for public employees, unusual fuel consumption requirements, any loss or damage to publicly owned equipment, and the purchase or lease of any special equipment or services required to protect the public during the hazardous materials incident. [1989 c 406 § 1; 1984 c 165 § 3.] 4.24.316 4.24.316 Emergency care, rescue, assistance, or recovery services in mine rescue or recovery work— Immunity from liability. See RCW 38.52.198. 4.24.320 4.24.320 Action by person damaged by malicious mischief to livestock or by owner damaged by theft of livestock—Treble damages, attorney’s fees. Any person who suffers damage to livestock as a result of actions described in RCW 16.52.205 or any owner of livestock who [Title 4 RCW—page 25] 4.24.350 Title 4 RCW: Civil Procedure suffers damage as a result of a willful, unauthorized act described in RCW 9A.56.080 or 9A.56.083 may bring an action against the person or persons committing the act in a court of competent jurisdiction for exemplary damages up to three times the actual damages sustained, plus attorney’s fees. As used in this section, "livestock" means the animals specified in RCW 9A.56.080. [2005 c 419 § 2; 2003 c 53 § 4; 1979 c 145 § 1; 1977 ex.s. c 174 § 3.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. The legislature also finds that the cost of defending against such unfounded suits, claims and liens is severely burdensome to such officers, and also to the state and the various cities and counties of the state. The purpose of section 2 of this 1984 act is to provide a remedy to those public officers and to the public." [1984 c 133 § 1.] Construction—1984 c 133: "The provisions of section 2 of this 1984 act are remedial and shall be liberally construed." [1984 c 133 § 3.] Severability—1984 c 133: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1984 c 133 § 4.] 4.24.360 4.24.350 Actions for damages that are false, unfounded, malicious, without probable cause, or part of conspiracy—Action, claim, or counterclaim by judicial officer, prosecuting authority, or law enforcement officer for malicious prosecution—Damages and costs—Attorneys’ fees—Definitions. (1) In any action for damages, whether based on tort or contract or otherwise, a claim or counterclaim for damages may be litigated in the principal action for malicious prosecution on the ground that the action was instituted with knowledge that the same was false, and unfounded, malicious and without probable cause in the filing of such action, or that the same was filed as a part of a conspiracy to misuse judicial process by filing an action known to be false and unfounded. (2) In any action, claim, or counterclaim brought by a judicial officer, prosecuting authority, or law enforcement officer for malicious prosecution arising out of the performance or purported performance of the public duty of such officer, an arrest or seizure of property need not be an element of the claim, nor do special damages need to be proved. A judicial officer, prosecuting authority, or law enforcement officer prevailing in such an action may be allowed an amount up to one thousand dollars as liquidated damages, together with a reasonable attorneys’ fee, and other costs of suit. A government entity which has provided legal services to the prevailing judicial officer, prosecuting authority, or law enforcement officer has reimbursement rights to any award for reasonable attorneys’ fees and other costs, but shall have no such rights to any liquidated damages allowed. (3) No action may be brought against an attorney under this section solely because of that attorney’s representation of a party in a lawsuit. (4) As used in this section: (a) "Judicial officer" means a justice, judge, magistrate, or other judicial officer of the state or a city, town, or county. (b) "Prosecuting authority" means any officer or employee of the state or a city, town, or county who is authorized by law to initiate a criminal or civil proceeding on behalf of the public. (c) "Law enforcement officer" means a member of the state patrol, a sheriff or deputy sheriff, or a member of the police force of a city, town, university, state college, or port district, or a fish and wildlife officer or ex officio fish and wildlife officer as defined in RCW 77.08.010. [2001 c 253 § 1; 1997 c 206 § 1; 1984 c 133 § 2; 1977 ex.s. c 158 § 1.] 4.24.350 Legislative findings—1984 c 133: "The legislature finds that a growing number of unfounded lawsuits, claims, and liens are filed against law enforcement officers, prosecuting authorities, and judges, and against their property, having the purpose and effect of deterring those officers in the exercise of their discretion and inhibiting the performance of their public duties. [Title 4 RCW—page 26] 4.24.360 Construction contract provision waiving, releasing, etc., rights of contractor, etc., to damages or adjustment for unreasonable delay caused by contractee, etc.—Declared void and unenforceable—Exceptions. Any clause in a construction contract, as defined in RCW 4.24.370, which purports to waive, release, or extinguish the rights of a contractor, subcontractor, or supplier to damages or an equitable adjustment arising out of unreasonable delay in performance which delay is caused by the acts or omissions of the contractee or persons acting for the contractee is against public policy and is void and unenforceable. This section shall not be construed to void any provision in a construction contract, as defined in RCW 4.24.370, which (1) requires notice of delays, (2) provides for arbitration or other procedure for settlement, or (3) provides for reasonable liquidated damages. [1979 ex.s. c 264 § 1.] 4.24.370 4.24.370 Construction contract provision waiving, releasing, etc., rights of contractor, etc., to damages or adjustment for unreasonable delay caused by contractee, etc.—"Construction contract" defined. "Construction contract" for purposes of RCW 4.24.360 means any contract or agreement for the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith. [1979 ex.s. c 264 § 2.] 4.24.380 4.24.380 Construction contract provision waiving, releasing, etc., rights of contractor, etc., to damages or adjustment for unreasonable delay caused by contractee, etc.—Prospective application of RCW 4.24.360. The provisions of RCW 4.24.360 shall apply to contracts or agreements entered into after September 1, 1979. [1979 ex.s. c 264 § 3.] 4.24.400 4.24.400 Building warden assisting others to evacuate building or attempting to control hazard—Immunity from liability. No building warden, who acts in good faith, with or without compensation, shall be personally liable for civil damages arising from his or her negligent acts or omissions during the course of assigned duties in assisting others to evacuate industrial, commercial, governmental or multiunit residential buildings or in attempting to control or alleviate a hazard to the building or its occupants caused by fire, earthquake or other threat to life or limb. The term "building warden" means an individual who is assigned to take charge of the occupants on a floor or in an area of a building during an emergency in accordance with a predetermined fire safety (2006 Ed.) Special Rights of Action and Special Immunities or evacuation plan; and/or an individual selected by a municipal fire chief or the chief of the Washington state patrol, through the director of fire protection, after an emergency is in progress to assist in evacuating the occupants of such a building or providing for their safety. This section shall not apply to any acts or omissions constituting gross negligence or wilful or wanton misconduct. [1995 c 369 § 2; 1986 c 266 § 79; 1981 c 320 § 1.] Effective date—1995 c 369: See note following RCW 43.43.930. Severability—1986 c 266: See note following RCW 38.52.005. 4.24.405 4.24.405 Action for malicious harassment of another because of race, color, religion, ancestry or national origin. See RCW 9A.36.080. 4.24.410 4.24.410 Dog handler using dog in line of duty— Immunity. (1) As used in this section: (a) "Police dog" means a dog used by a law enforcement agency specially trained for law enforcement work and under the control of a dog handler. (b) "Accelerant detection dog" means a dog used exclusively for accelerant detection by the state fire marshal or a fire department and under the control of the state fire marshal or his or her designee or a fire department handler. (c) "Dog handler" means a law enforcement officer who has successfully completed training as prescribed by the Washington state criminal justice training commission in police dog handling, or in the case of an accelerant detection dog, the state fire marshal’s designee or an employee of the fire department authorized by the fire chief to be the dog’s handler. (2) Any dog handler who uses a police dog in the line of duty in good faith is immune from civil action for damages arising out of such use of the police dog or accelerant detection dog. [1993 c 180 § 1; 1989 c 26 § 1; 1982 c 22 § 1.] 4.24.420 4.24.420 Action by person committing a felony— Defense—Actions under 42 U.S.C. Sec. 1983. It is a complete defense to any action for damages for personal injury or wrongful death that the person injured or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death and the felony was a proximate cause of the injury or death. However, nothing in this section shall affect a right of action under 42 U.S.C. Sec. 1983. [1987 c 212 § 901; 1986 c 305 § 501.] Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. 4.24.450 4.24.450 Liability of operators for nuclear incidents—Definitions. Unless the context clearly requires otherwise the following definitions apply throughout RCW 4.24.460: (1) "Nuclear incident" means any occurrence within this state causing, within or without this state, bodily injury, sickness, disease or death; loss or damage to property; or loss of use of property arising out of the resultant radioactive, toxic, explosive, or other hazardous properties of radioactive wastes being stored in or being transported to or from a waste repository in this state. (2006 Ed.) 4.24.470 (2) "Operator" means the entity or entities that have been given responsibility for constructing, operating, or monitoring waste repositories or transporting radioactive waste and may include the United States and its federal agencies. (3) "Radioactive waste" includes, but is not limited to, high-level radioactive waste, low-level radioactive waste, transuranic radioactive waste, spent nuclear fuel, and radioactive defense waste. It does not include de minimis radioactive waste. (4) "Spent nuclear fuel" means fuel that has been withdrawn from a nuclear reactor following irradiation, the constituent elements of which have not been separated by reprocessing. (5) "Waste repository" means any system which is intended or may be used for the disposal or storage of radioactive waste including permanent disposal systems, interim storage systems, monitored retrievable storage systems, defense waste storage systems, test and evaluation facilities, or similar systems. [1985 c 275 § 1.] 4.24.460 4.24.460 Liability of operators for nuclear incidents—Presumption of operator negligence—Rebuttal— Recovery for negligence or against other parties not limited by section. (1) Operators are liable for failure to exercise ordinary and reasonable care to protect persons and property subject to injury in nuclear incidents. In addition, operators are liable for operational expenses and emergency purchases incurred by local or state governments in responding to nuclear incidents. (2) If a nuclear incident occurs, there is a presumption that the operator of a waste repository was negligent in constructing, operating, or monitoring the waste repository, or in transporting radioactive waste, and that the operator was an actual cause of the nuclear incident. The presumption may be rebutted by a clear and convincing showing by the operator that the nuclear incident was not the result of the operator’s negligence and that the operator’s negligence was not an actual cause of the nuclear incident. (3) This section does not limit the recovery of parties injured by a nuclear incident against the operators of a waste repository under theories of negligence in selecting contractors, failure to retain adequate controls over the waste repository, vicarious liability for contractors, failure to take reasonable precautionary measures with respect to inherently dangerous activities, and other negligence theories. This section does not limit the recovery of parties injured by a nuclear incident against parties other than operators of a waste facility. [1985 c 275 § 2.] 4.24.470 4.24.470 Liability of officials and members of governing body of public agency—Definitions. (1) An appointed or elected official or member of the governing body of a public agency is immune from civil liability for damages for any discretionary decision or failure to make a discretionary decision within his or her official capacity, but liability shall remain on the public agency for the tortious conduct of its officials or members of the governing body. (2) For purposes of this section: (a) "Public agency" means any state agency, board, commission, department, institution of higher education, school [Title 4 RCW—page 27] 4.24.480 Title 4 RCW: Civil Procedure district, political subdivision, or unit of local government of this state including but not limited to municipal corporations, quasi-municipal corporations, special purpose districts, and local service districts. (b) "Governing body" means the policy-making body of a public agency. [1987 c 212 § 401.] Actions against local government for tortious conduct: Chapter 4.96 RCW. 4.24.480 4.24.480 Liability of members of state hazardous materials planning committee and local emergency planning committees. Any person who is appointed by the state emergency response commission under the authority of Sec. 301(c) of Title III of the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. Sec. 11001) to serve on the state hazardous materials planning committee or a local emergency planning committee who, in good faith, assists in the development or review of local plans to respond to hazardous materials incidents is not liable for civil damages as a result of any act or omission in the development, review, or implementation of such plans unless the act or omission constitutes gross negligence or wilful misconduct. [1988 c 42 § 15.] Severability—1988 c 42: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1988 c 42 § 19.] 4.24.490 4.24.490 Indemnification of state employees. (1) The state shall indemnify and hold harmless its employees in the amount of any judgment obtained or fine levied against an employee in any state or federal court, or in the amount of the settlement of a claim, or shall pay the judgment, fine, or settlement, if the act or omission that gave rise to the civil or criminal liability was in good faith and occurred while the employee was acting within the scope of his or her employment or duties and the employee is being represented in accordance with RCW 4.92.070. (2) For purposes of this section "state employee" means a member of the civil service or an exempt person under chapter 41.06 RCW, or *higher education personnel under chapter 28B.16 RCW. [1989 c 413 § 3.] *Reviser’s note: Chapter 28B.16 RCW was repealed by 1993 c 281, with the exception of RCW 28B.16.015 and 28B.16.240, which was recodified as RCW 41.06.382. The powers, duties, and functions of the state higher education personnel board were transferred to the Washington personnel resources board. RCW 28B.16.015 and 41.06.382 were subsequently repealed by 2002 c 354 § 403, effective July 1, 2005. 4.24.500 4.24.500 Good faith communication to government agency—Legislative findings—Purpose. Information provided by citizens concerning potential wrongdoing is vital to effective law enforcement and the efficient operation of government. The legislature finds that the threat of a civil action for damages can act as a deterrent to citizens who wish to report information to federal, state, or local agencies. The costs of defending against such suits can be severely burdensome. The purpose of RCW 4.24.500 through 4.24.520 is to protect individuals who make good-faith reports to appropriate governmental bodies. [1989 c 234 § 1.] 4.24.510 4.24.510 Communication to government agency or self-regulatory organization—Immunity from civil liabil[Title 4 RCW—page 28] ity. A person who communicates a complaint or information to any branch or agency of federal, state, or local government, or to any self-regulatory organization that regulates persons involved in the securities or futures business and that has been delegated authority by a federal, state, or local government agency and is subject to oversight by the delegating agency, is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency or organization. A person prevailing upon the defense provided for in this section is entitled to recover expenses and reasonable attorneys’ fees incurred in establishing the defense and in addition shall receive statutory damages of ten thousand dollars. Statutory damages may be denied if the court finds that the complaint or information was communicated in bad faith. [2002 c 232 § 2; 1999 c 54 § 1; 1989 c 234 § 2.] Intent—2002 c 232: "Strategic lawsuits against public participation, or SLAPP suits, involve communications made to influence a government action or outcome which results in a civil complaint or counterclaim filed against individuals or organizations on a substantive issue of some public interest or social significance. SLAPP suits are designed to intimidate the exercise of First Amendment rights and rights under Article I, section 5 of the Washington state Constitution. Although Washington state adopted the first modern anti-SLAPP law in 1989, that law has, in practice, failed to set forth clear rules for early dismissal review. Since that time, the United States supreme court has made it clear that, as long as the petitioning is aimed at procuring favorable government action, result, product, or outcome, it is protected and the case should be dismissed. Chapter 232, Laws of 2002 amends Washington law to bring it in line with these court decisions which recognizes that the United States Constitution protects advocacy to government, regardless of content or motive, so long as it is designed to have some effect on government decision making." [2002 c 232 § 1.] 4.24.520 4.24.520 Good faith communication to government agency—When agency or attorney general may defend against lawsuit—Costs and fees. In order to protect the free flow of information from citizens to their government, an agency receiving a complaint or information under RCW 4.24.510 may intervene in and defend against any suit precipitated by the communication to the agency. In the event that a local governmental agency does not intervene in and defend against a suit arising from any communication protected under chapter 234, Laws of 1989, the office of the attorney general may intervene in and defend against the suit. An agency prevailing upon the defense provided for in RCW 4.24.510 shall be entitled to recover costs and reasonable attorneys’ fees incurred in establishing the defense. If the agency fails to establish the defense provided for in RCW 4.24.510, the party bringing the action shall be entitled to recover from the agency costs and reasonable attorney’s fees incurred in proving the defense inapplicable or invalid. [1989 c 234 § 4.] 4.24.530 4.24.530 Limitations on liability for equine activities—Definitions. Unless the context clearly indicates otherwise, the definitions in this section apply to RCW 4.24.530, 4.24.540, and section 3, chapter 292, Laws of 1989. (1) "Equine" means a horse, pony, mule, donkey, or hinny. (2) "Equine activity" means: (a) Equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper (2006 Ed.) Special Rights of Action and Special Immunities horse shows, grand prix jumping, three-day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, endurance trail riding and western games, and hunting; (b) equine training and/or teaching activities; (c) boarding equines; (d) riding, inspecting, or evaluating an equine belonging to another whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine; and (e) rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor. (3) "Equine activity sponsor" means an individual, group or club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for, an equine activity including but not limited to: Pony clubs, 4-H clubs, hunt clubs, riding clubs, school and college sponsored classes and programs, therapeutic riding programs, and, operators, instructors, and promoters of equine facilities, including but not limited to stables, clubhouses, ponyride strings, fairs, and arenas at which the activity is held. (4) "Participant" means any person, whether amateur or professional, who directly engages in an equine activity, whether or not a fee is paid to participate in the equine activity. (5) "Engages in an equine activity" means a person who rides, trains, drives, or is a passenger upon an equine, whether mounted or unmounted, and does not mean a spectator at an equine activity or a person who participates in the equine activity but does not ride, train, drive, or ride as a passenger upon an equine. (6) "Equine professional" means a person engaged for compensation (a) in instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine, or, (b) in renting equipment or tack to a participant. [1989 c 292 § 1.] Application—1989 c 292 §§ 1 and 2: "Sections 1 and 2 of this act apply only to causes of action filed on or after July 23, 1989." [1989 c 292 § 3.] 4.24.540 4.24.540 Limitations on liability for equine activities—Exceptions. (1) Except as provided in subsection (2) of this section, an equine activity sponsor or an equine professional shall not be liable for an injury to or the death of a participant engaged in an equine activity, and, except as provided in subsection (2) of this section, no participant nor participant’s representative may maintain an action against or recover from an equine activity sponsor or an equine professional for an injury to or the death of a participant engaged in an equine activity. (2)(a) RCW 4.24.530 and 4.24.540 do not apply to the horse racing industry as regulated in chapter 67.16 RCW. (b) Nothing in subsection (1) of this section shall prevent or limit the liability of an equine activity sponsor or an equine professional: (i) If the equine activity sponsor or the equine professional: (A) Provided the equipment or tack and the equipment or tack caused the injury; or (2006 Ed.) 4.24.550 (B) Provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, determine the ability of the equine to behave safely with the participant, and determine the ability of the participant to safely manage the particular equine; (ii) If the equine activity sponsor or the equine professional owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known to or should have been known to the equine activity sponsor or the equine professional and for which warning signs have not been conspicuously posted; (iii) If the equine activity sponsor or the equine professional commits an act or omission that constitutes willful or wanton disregard for the safety of the participant and that act or omission caused the injury; (iv) If the equine activity sponsor or the equine professional intentionally injures the participant; (v) Under liability provisions as set forth in the products liability laws; or (vi) Under liability provisions in chapter 16.04, *16.13, or *16.16 RCW. [1989 c 292 § 2.] *Reviser’s note: Chapters 16.13 and 16.16 RCW were each recodified and/or repealed in their entirety by 1989 c 286. For disposition of chapters 16.13 and 16.16 RCW, see Table of Disposition of Former RCW Sections, Volume 0. Application—1989 c 292 §§ 1 and 2: See note following RCW 4.24.530. 4.24.545 4.24.545 Electronic monitoring—Limitation on liability. Local governments, their subdivisions and employees, the department of corrections and its employees, and the Washington association of sheriffs and police chiefs and its employees are immune from civil liability for damages arising from incidents involving offenders who are placed on electronic monitoring, unless it is shown that an employee acted with gross negligence or bad faith. [2006 c 130 § 3.] 4.24.550 4.24.550 Sex offenders and kidnapping offenders— Release of information to public—Web site. (Effective until September 1, 2006.) (1) In addition to the disclosure under subsection (5) of this section, public agencies are authorized to release information to the public regarding sex offenders and kidnapping offenders when the agency determines that disclosure of the information is relevant and necessary to protect the public and counteract the danger created by the particular offender. This authorization applies to information regarding: (a) Any person adjudicated or convicted of a sex offense as defined in RCW 9A.44.130 or a kidnapping offense as defined by RCW 9A.44.130; (b) any person under the jurisdiction of the indeterminate sentence review board as the result of a sex offense or kidnapping offense; (c) any person committed as a sexually violent predator under chapter 71.09 RCW or as a sexual psychopath under chapter 71.06 RCW; (d) any person found not guilty of a sex offense or kidnapping offense by reason of insanity under chapter 10.77 RCW; and (e) any person found incompetent to stand trial for a sex offense or kidnapping offense and subsequently committed under chapter 71.05 or 71.34 RCW. [Title 4 RCW—page 29] 4.24.550 Title 4 RCW: Civil Procedure (2) Except for the information specifically required under subsection (5) of this section, the extent of the public disclosure of relevant and necessary information shall be rationally related to: (a) The level of risk posed by the offender to the community; (b) the locations where the offender resides, expects to reside, or is regularly found; and (c) the needs of the affected community members for information to enhance their individual and collective safety. (3) Except for the information specifically required under subsection (5) of this section, local law enforcement agencies shall consider the following guidelines in determining the extent of a public disclosure made under this section: (a) For offenders classified as risk level I, the agency shall share information with other appropriate law enforcement agencies and may disclose, upon request, relevant, necessary, and accurate information to any victim or witness to the offense and to any individual community member who lives near the residence where the offender resides, expects to reside, or is regularly found; (b) for offenders classified as risk level II, the agency may also disclose relevant, necessary, and accurate information to public and private schools, child day care centers, family day care providers, public libraries, businesses and organizations that serve primarily children, women, or vulnerable adults, and neighbors and community groups near the residence where the offender resides, expects to reside, or is regularly found; (c) for offenders classified as risk level III, the agency may also disclose relevant, necessary, and accurate information to the public at large; and (d) because more localized notification is not feasible and homeless and transient offenders may present unique risks to the community, the agency may also disclose relevant, necessary, and accurate information to the public at large for offenders registered as homeless or transient. (4) The county sheriff with whom an offender classified as risk level III is registered shall cause to be published by legal notice, advertising, or news release a sex offender community notification that conforms to the guidelines established under RCW 4.24.5501 in at least one legal newspaper with general circulation in the area of the sex offender’s registered address or location. The county sheriff shall also cause to be published consistent with this subsection a current list of level III registered sex offenders, twice yearly. Unless the information is posted on the web site described in subsection (5) of this section, this list shall be maintained by the county sheriff on a publicly accessible web site and shall be updated at least once per month. (5)(a) When funded by federal grants or other sources, the Washington association of sheriffs and police chiefs shall create and maintain a statewide registered kidnapping and sex offender web site, which shall be available to the public. The web site shall post all level III and level II registered sex offenders and all registered kidnapping offenders in the state of Washington. (i) For level III offenders, the web site shall contain, but is not limited to, the registered sex offender’s name, relevant criminal convictions, address by hundred block, physical description, and photograph. The web site shall provide mapping capabilities that display the sex offender’s address by hundred block on a map. The web site shall allow citizens to search for registered sex offenders within the state of [Title 4 RCW—page 30] Washington by county, city, zip code, last name, type of conviction, and address by hundred block. (ii) For level II offenders, the web site shall contain, but is not limited to, the same information and functionality as described in (a)(i) of this subsection, provided that it is permissible under state and federal law. If it is not permissible, the web site shall be limited to the information and functionality that is permissible under state and federal law. (iii) For kidnapping offenders, the web site shall contain, but is not limited to, the same information and functionality as described in (a)(i) of this subsection, provided that it is permissible under state and federal law. If it is not permissible, the web site shall be limited to the information and functionality that is permissible under state and federal law. (b) Until the implementation of (a) of this subsection, the Washington association of sheriffs and police chiefs shall create a web site available to the public that provides electronic links to county-operated web sites that offer sex offender registration information. (6) Local law enforcement agencies that disseminate information pursuant to this section shall: (a) Review available risk level classifications made by the department of corrections, the department of social and health services, and the indeterminate sentence review board; (b) assign risk level classifications to all offenders about whom information will be disseminated; and (c) make a good faith effort to notify the public and residents at least fourteen days before the offender is released from confinement or, where an offender moves from another jurisdiction, as soon as possible after the agency learns of the offender’s move, except that in no case may this notification provision be construed to require an extension of an offender’s release date. The juvenile court shall provide local law enforcement officials with all relevant information on offenders allowed to remain in the community in a timely manner. (7) An appointed or elected public official, public employee, or public agency as defined in RCW 4.24.470, or units of local government and its employees, as provided in RCW 36.28A.010, are immune from civil liability for damages for any discretionary risk level classification decisions or release of relevant and necessary information, unless it is shown that the official, employee, or agency acted with gross negligence or in bad faith. The immunity in this section applies to risk level classification decisions and the release of relevant and necessary information regarding any individual for whom disclosure is authorized. The decision of a local law enforcement agency or official to classify an offender to a risk level other than the one assigned by the department of corrections, the department of social and health services, or the indeterminate sentence review board, or the release of any relevant and necessary information based on that different classification shall not, by itself, be considered gross negligence or bad faith. The immunity provided under this section applies to the release of relevant and necessary information to other public officials, public employees, or public agencies, and to the general public. (8) Except as may otherwise be provided by law, nothing in this section shall impose any liability upon a public official, public employee, or public agency for failing to release information authorized under this section. (2006 Ed.) Special Rights of Action and Special Immunities (9) Nothing in this section implies that information regarding persons designated in subsection (1) of this section is confidential except as may otherwise be provided by law. (10) When a local law enforcement agency or official classifies an offender differently than the offender is classified by the end of sentence review committee or the department of social and health services at the time of the offender’s release from confinement, the law enforcement agency or official shall notify the end of sentence review committee or the department of social and health services and submit its reasons supporting the change in classification. Upon implementation of subsection (5)(a) of this section, notification of the change shall also be sent to the Washington association of sheriffs and police chiefs. [2005 c 228 § 1; 2005 c 99 § 1; 2003 c 217 § 1; 2002 c 118 § 1. Prior: 2001 c 283 § 2; 2001 c 169 § 2; 1998 c 220 § 6; prior: 1997 c 364 § 1; 1997 c 113 § 2; 1996 c 215 § 1; 1994 c 129 § 2; 1990 c 3 § 117.] Reviser’s note: This section was amended by 2005 c 99 § 1 and by 2005 c 228 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Conflict with federal requirements—2002 c 118: "If any provision of this act or its application to any person or circumstance is held invalid due to a conflict with federal law, the conflicting part of this act is inoperative solely to the extent of the conflict, and such holding does not affect the operation of the remainder of this act or the application of the provision to other persons or circumstances." [2002 c 118 § 3.] Severability—1998 c 220: See note following RCW 9A.44.130. Severability—1997 c 364: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1997 c 364 § 9.] Findings—1997 c 113: "The legislature finds that offenders who commit kidnapping offenses against minor children pose a substantial threat to the well-being of our communities. Child victims are especially vulnerable and unable to protect themselves. The legislature further finds that requiring sex offenders to register has assisted law enforcement agencies in protecting their communities. Similar registration requirements for offenders who have kidnapped or unlawfully imprisoned a child would also assist law enforcement agencies in protecting the children in their communities from further victimization." [1997 c 113 § 1.] Findings—Intent—1994 c 129: "The legislature finds that members of the public may be alarmed when law enforcement officers notify them that a sex offender who is about to be released from custody will live in or near their neighborhood. The legislature also finds that if the public is provided adequate notice and information, the community can develop constructive plans to prepare themselves and their children for the offender’s release. A sufficient time period allows communities to meet with law enforcement to discuss and prepare for the release, to establish block watches, to obtain information about the rights and responsibilities of the community and the offender, and to provide education and counseling to their children. Therefore, the legislature intends that when law enforcement officials decide to notify the public about a sex offender’s pending release that notice be given at least fourteen days before the offender’s release whenever possible." [1994 c 129 § 1.] Finding—Policy—1990 c 3 § 117: "The legislature finds that sex offenders pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is a paramount governmental interest. The legislature further finds that the penal and mental health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety. Overly restrictive confidentiality and liability laws governing the release of information about sexual predators have reduced willingness to release information that could be appropriately released under the public disclosure laws, and have increased risks to public safety. Persons found to have committed a sex offense have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation (2006 Ed.) 4.24.550 of government. Release of information about sexual predators to public agencies and under limited circumstances, the general public, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals. Therefore, this state’s policy as expressed in RCW 4.24.550 is to require the exchange of relevant information about sexual predators among public agencies and officials and to authorize the release of necessary and relevant information about sexual predators to members of the general public." [1990 c 3 § 116.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Release of information regarding convicted sex offenders: RCW 9.94A.846. juveniles found to have committed sex offenses: RCW 13.40.217. persons in custody of department of social and health services: RCW 10.77.207, 71.05.427, 71.06.135, 71.09.120. 4.24.550 4.24.550 Sex offenders and kidnapping offenders— Release of information to public—Web site. (Effective September 1, 2006.) (1) In addition to the disclosure under subsection (5) of this section, public agencies are authorized to release information to the public regarding sex offenders and kidnapping offenders when the agency determines that disclosure of the information is relevant and necessary to protect the public and counteract the danger created by the particular offender. This authorization applies to information regarding: (a) Any person adjudicated or convicted of a sex offense as defined in RCW 9A.44.130 or a kidnapping offense as defined by RCW 9A.44.130; (b) any person under the jurisdiction of the indeterminate sentence review board as the result of a sex offense or kidnapping offense; (c) any person committed as a sexually violent predator under chapter 71.09 RCW or as a sexual psychopath under chapter 71.06 RCW; (d) any person found not guilty of a sex offense or kidnapping offense by reason of insanity under chapter 10.77 RCW; and (e) any person found incompetent to stand trial for a sex offense or kidnapping offense and subsequently committed under chapter 71.05 or 71.34 RCW. (2) Except for the information specifically required under subsection (5) of this section, the extent of the public disclosure of relevant and necessary information shall be rationally related to: (a) The level of risk posed by the offender to the community; (b) the locations where the offender resides, expects to reside, or is regularly found; and (c) the needs of the affected community members for information to enhance their individual and collective safety. (3) Except for the information specifically required under subsection (5) of this section, local law enforcement agencies shall consider the following guidelines in determining the extent of a public disclosure made under this section: (a) For offenders classified as risk level I, the agency shall share information with other appropriate law enforcement agencies and, if the offender is a student, the public or private school regulated under Title 28A RCW or chapter 72.40 RCW which the offender is attending, or planning to attend. The agency may disclose, upon request, relevant, necessary, and accurate information to any victim or witness to the offense and to any individual community member who lives near the residence where the offender resides, expects to reside, or is regularly found; (b) for offenders classified as risk level II, the agency may also disclose relevant, necessary, and accurate information to public and private schools, [Title 4 RCW—page 31] 4.24.550 Title 4 RCW: Civil Procedure child day care centers, family day care providers, public libraries, businesses and organizations that serve primarily children, women, or vulnerable adults, and neighbors and community groups near the residence where the offender resides, expects to reside, or is regularly found; (c) for offenders classified as risk level III, the agency may also disclose relevant, necessary, and accurate information to the public at large; and (d) because more localized notification is not feasible and homeless and transient offenders may present unique risks to the community, the agency may also disclose relevant, necessary, and accurate information to the public at large for offenders registered as homeless or transient. (4) The county sheriff with whom an offender classified as risk level III is registered shall cause to be published by legal notice, advertising, or news release a sex offender community notification that conforms to the guidelines established under RCW 4.24.5501 in at least one legal newspaper with general circulation in the area of the sex offender’s registered address or location. The county sheriff shall also cause to be published consistent with this subsection a current list of level III registered sex offenders, twice yearly. Unless the information is posted on the web site described in subsection (5) of this section, this list shall be maintained by the county sheriff on a publicly accessible web site and shall be updated at least once per month. (5)(a) When funded by federal grants or other sources, the Washington association of sheriffs and police chiefs shall create and maintain a statewide registered kidnapping and sex offender web site, which shall be available to the public. The web site shall post all level III and level II registered sex offenders and all registered kidnapping offenders in the state of Washington. (i) For level III offenders, the web site shall contain, but is not limited to, the registered sex offender’s name, relevant criminal convictions, address by hundred block, physical description, and photograph. The web site shall provide mapping capabilities that display the sex offender’s address by hundred block on a map. The web site shall allow citizens to search for registered sex offenders within the state of Washington by county, city, zip code, last name, type of conviction, and address by hundred block. (ii) For level II offenders, the web site shall contain, but is not limited to, the same information and functionality as described in (a)(i) of this subsection, provided that it is permissible under state and federal law. If it is not permissible, the web site shall be limited to the information and functionality that is permissible under state and federal law. (iii) For kidnapping offenders, the web site shall contain, but is not limited to, the same information and functionality as described in (a)(i) of this subsection, provided that it is permissible under state and federal law. If it is not permissible, the web site shall be limited to the information and functionality that is permissible under state and federal law. (b) Until the implementation of (a) of this subsection, the Washington association of sheriffs and police chiefs shall create a web site available to the public that provides electronic links to county-operated web sites that offer sex offender registration information. (6) Local law enforcement agencies that disseminate information pursuant to this section shall: (a) Review avail[Title 4 RCW—page 32] able risk level classifications made by the department of corrections, the department of social and health services, and the indeterminate sentence review board; (b) assign risk level classifications to all offenders about whom information will be disseminated; and (c) make a good faith effort to notify the public and residents at least fourteen days before the offender is released from confinement or, where an offender moves from another jurisdiction, as soon as possible after the agency learns of the offender’s move, except that in no case may this notification provision be construed to require an extension of an offender’s release date. The juvenile court shall provide local law enforcement officials with all relevant information on offenders allowed to remain in the community in a timely manner. (7) An appointed or elected public official, public employee, or public agency as defined in RCW 4.24.470, or units of local government and its employees, as provided in RCW 36.28A.010, are immune from civil liability for damages for any discretionary risk level classification decisions or release of relevant and necessary information, unless it is shown that the official, employee, or agency acted with gross negligence or in bad faith. The immunity in this section applies to risk level classification decisions and the release of relevant and necessary information regarding any individual for whom disclosure is authorized. The decision of a local law enforcement agency or official to classify an offender to a risk level other than the one assigned by the department of corrections, the department of social and health services, or the indeterminate sentence review board, or the release of any relevant and necessary information based on that different classification shall not, by itself, be considered gross negligence or bad faith. The immunity provided under this section applies to the release of relevant and necessary information to other public officials, public employees, or public agencies, and to the general public. (8) Except as may otherwise be provided by law, nothing in this section shall impose any liability upon a public official, public employee, or public agency for failing to release information authorized under this section. (9) Nothing in this section implies that information regarding persons designated in subsection (1) of this section is confidential except as may otherwise be provided by law. (10) When a local law enforcement agency or official classifies an offender differently than the offender is classified by the end of sentence review committee or the department of social and health services at the time of the offender’s release from confinement, the law enforcement agency or official shall notify the end of sentence review committee or the department of social and health services and submit its reasons supporting the change in classification. Upon implementation of subsection (5)(a) of this section, notification of the change shall also be sent to the Washington association of sheriffs and police chiefs. [2005 c 380 § 2; 2005 c 228 § 1; 2005 c 99 § 1; 2003 c 217 § 1; 2002 c 118 § 1. Prior: 2001 c 283 § 2; 2001 c 169 § 2; 1998 c 220 § 6; prior: 1997 c 364 § 1; 1997 c 113 § 2; 1996 c 215 § 1; 1994 c 129 § 2; 1990 c 3 § 117.] Reviser’s note: This section was amended by 2005 c 99 § 1, 2005 c 228 § 1, and by 2005 c 380 § 2, each without reference to the other. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). (2006 Ed.) Special Rights of Action and Special Immunities Effective date—2005 c 380: See note following RCW 9A.44.130. Conflict with federal requirements—2002 c 118: "If any provision of this act or its application to any person or circumstance is held invalid due to a conflict with federal law, the conflicting part of this act is inoperative solely to the extent of the conflict, and such holding does not affect the operation of the remainder of this act or the application of the provision to other persons or circumstances." [2002 c 118 § 3.] Severability—1998 c 220: See note following RCW 9A.44.130. Severability—1997 c 364: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1997 c 364 § 9.] Findings—1997 c 113: "The legislature finds that offenders who commit kidnapping offenses against minor children pose a substantial threat to the well-being of our communities. Child victims are especially vulnerable and unable to protect themselves. The legislature further finds that requiring sex offenders to register has assisted law enforcement agencies in protecting their communities. Similar registration requirements for offenders who have kidnapped or unlawfully imprisoned a child would also assist law enforcement agencies in protecting the children in their communities from further victimization." [1997 c 113 § 1.] Findings—Intent—1994 c 129: "The legislature finds that members of the public may be alarmed when law enforcement officers notify them that a sex offender who is about to be released from custody will live in or near their neighborhood. The legislature also finds that if the public is provided adequate notice and information, the community can develop constructive plans to prepare themselves and their children for the offender’s release. A sufficient time period allows communities to meet with law enforcement to discuss and prepare for the release, to establish block watches, to obtain information about the rights and responsibilities of the community and the offender, and to provide education and counseling to their children. Therefore, the legislature intends that when law enforcement officials decide to notify the public about a sex offender’s pending release that notice be given at least fourteen days before the offender’s release whenever possible." [1994 c 129 § 1.] Finding—Policy—1990 c 3 § 117: "The legislature finds that sex offenders pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is a paramount governmental interest. The legislature further finds that the penal and mental health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety. Overly restrictive confidentiality and liability laws governing the release of information about sexual predators have reduced willingness to release information that could be appropriately released under the public disclosure laws, and have increased risks to public safety. Persons found to have committed a sex offense have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation of government. Release of information about sexual predators to public agencies and under limited circumstances, the general public, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals. Therefore, this state’s policy as expressed in RCW 4.24.550 is to require the exchange of relevant information about sexual predators among public agencies and officials and to authorize the release of necessary and relevant information about sexual predators to members of the general public." [1990 c 3 § 116.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Release of information regarding convicted sex offenders: RCW 9.94A.846. juveniles found to have committed sex offenses: RCW 13.40.217. persons in custody of department of social and health services: RCW 10.77.207, 71.05.427, 71.06.135, 71.09.120. 4.24.5501 4.24.5501 Sex offenders—Model policy—Work group. (1) When funded, the Washington association of sheriffs and police chiefs shall convene a sex offender model policy work group to develop a model policy for law enforcement agencies and other criminal justice personnel. The (2006 Ed.) 4.24.5501 model policy shall provide guidelines for sex offender registration, community notification, and strategies for sex offender management. (2) In developing the policy, the association shall consult with representatives of the following agencies and professions: (a) The department of corrections; (b) the department of social and health services; (c) the indeterminate sentence review board; (d) the Washington state council of police officers; (e) local correctional agencies; (f) the Washington association of prosecuting attorneys; (g) the Washington public defender association; (h) the Washington association for the treatment of sexual abusers; (i) the office of the superintendent of public instruction; (j) the criminal justice training commission; (k) the Washington association of criminal defense lawyers; (l) the association of Washington cities; (m) the Washington coalition of sexual assault programs; and (n) victim advocates. The sex offender model policy work group, once convened, shall first conduct a series of community meetings around the state to assess the practices and needs of communities, identify best practices on sex offender registration, community notification, and strategies for sex offender management. Once the sex offender model policy work group has received input from stakeholders on a final draft of the model policy, the policy shall be presented to the Washington association of sheriffs and police chiefs for adoption or rejection. Following the adoption of a model policy, the sex offender model policy work group shall conduct a series of meetings around the state with local law enforcement agencies and other criminal justice personnel to review the model policy and conduct training as needed. The sex offender model policy work group shall then be dissolved, and, when funded, the Washington association of sheriffs and police chiefs shall be responsible for the continued promotion of the model policy, including annual or biennial regional workshops with local law enforcement agencies and other criminal justice personnel to encourage sex offender registration, community notification, and strategies for sex offender management policies and practices that best fit the needs, characteristics, and risks of each community. (3) The model policy shall, at a minimum, include recommendations to address the following issues: (a) Procedures for local agencies or officials to accomplish the notifications required under RCW 4.24.550(10), including the identification of best practices for community notification, as they relate to the specific needs and characteristics to each community and the risk posed to that community; (b) contents and form of community notification documents, including procedures for ensuring the accuracy of factual information contained in the notification documents, and ways of protecting the privacy of victims of the offenders’ crimes; (c) methods of distributing community notification documents, including distribution to schools; (d) methods of providing follow-up notifications to community residents at specified intervals and of disclosing information about offenders to law enforcement agencies in other jurisdictions if necessary to protect the public; (e) methods of educating community residents at public meetings on how they can use the information in the notification document in a reasonable manner to enhance their individual and collective safety; (f) procedures for educating community members regarding the right of sex [Title 4 RCW—page 33] 4.24.5502 Title 4 RCW: Civil Procedure offenders not to be the subject of harassment or criminal acts as a result of the notification process; (g) procedures and documents for local law enforcement agencies to provide appropriate notification when a sex offender risk level is reclassified, including strategies to monitor the reclassification of sex offender risk levels by local law enforcement agencies; (h) formulas and instructions on standard sex offender risk assessment instruments; (i) strategies for sex offender management; and (j) other matters the Washington association of sheriffs and police chiefs deems necessary as it relates to sex offender registration, community notification, and management. [2006 c 137 § 1; 1997 c 364 § 6.] 4.24.5502 Sex offenders—Consistent approach to risk assessment by agencies to implement 1997 c 364. The department of corrections, the department of social and health services, and the indeterminate sentence review board shall jointly develop, by September 1, 1997, a consistent approach to risk assessment for the purposes of implementing chapter 364, Laws of 1997, including consistent standards for classifying sex offenders into risk levels I, II, and III. [1999 c 372 § 1; 1997 c 364 § 7.] 4.24.5502 4.24.551 Law enforcement response to secure community transition facility—Limitation on liability. (1) Law enforcement shall respond to a call regarding a resident of a secure community transition facility as a high priority call. (2) No law enforcement officer responding reasonably and in good faith to a call regarding a resident of a secure community transition facility shall be held liable nor shall the city or county employing the officer be held liable, in any cause of action for civil damages based on the acts of the resident or the actions of the officer during the response. [2002 c 68 § 3.] 4.24.551 Purpose—Severability—Effective date—2002 c 68: See notes following RCW 36.70A.200. 4.24.555 Release of information not restricted by pending appeal, petition, or writ. An offender’s pending appeal, petition for personal restraint, or writ of habeas corpus shall not restrict the agency’s, official’s, or employee’s authority to release relevant information concerning an offender’s prior criminal history. However, the agency must release the latest dispositions of the charges as provided in chapter 10.97 RCW, the Washington state criminal records privacy act. [1990 c 3 § 118.] 4.24.555 Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 4.24.556 Sex offender treatment providers—Affiliate sex offender treatment providers—Limited liability— Responsibilities. (1) A certified sex offender treatment provider, or a certified affiliate sex offender treatment provider who has completed at least fifty percent of the required hours under the supervision of a certified sex offender treatment provider, acting in the course of his or her duties, providing treatment to a person who has been released to a less restrictive alternative under chapter 71.09 RCW or to a level III sex offender on community custody as a court or department ordered condition of sentence is not negligent because he or 4.24.556 [Title 4 RCW—page 34] she treats a high risk offender; sex offenders are known to have a risk of reoffense. The treatment provider is not liable for civil damages resulting from the reoffense of a client unless the treatment provider’s acts or omissions constituted gross negligence or willful or wanton misconduct. This limited liability provision does not eliminate the treatment provider’s duty to warn of and protect from a client’s threatened violent behavior if the client communicates a serious threat of physical violence against a reasonably ascertainable victim or victims. In addition to any other requirements to report violations, the sex offender treatment provider is obligated to report an offender’s expressions of intent to harm or other predatory behavior, whether or not there is an ascertainable victim, in progress reports and other established processes that enable courts and supervising entities to assess and address the progress and appropriateness of treatment. This limited liability provision applies only to the conduct of certified sex offender treatment providers, and certified affiliate sex offender treatment providers who have completed at least fifty percent of the required hours under the supervision of a certified sex offender treatment provider, and not the conduct of the state. (2) Sex offender treatment providers who provide services to the department of corrections by identifying risk factors and notifying the department of risks for the subset of high risk offenders who are not amenable to treatment and who are under court order for treatment or supervision are practicing within the scope of their profession. [2004 c 38 § 1; 2001 2nd sp.s. c 12 § 403.] Effective date—2004 c 38: See note following RCW 18.155.075. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. 4.24.558 4.24.558 Limitations on liability for information sharing regarding persons under court orders for supervision or treatment. Information shared and actions taken without gross negligence and in good faith compliance with RCW 71.05.445, 72.09.585, 70.96A.142, 71.05.157, or 72.09.315 are not a basis for any private civil cause of action. [2004 c 166 § 21.] Severability—Effective dates—2004 c 166: See notes following RCW 71.05.040. 4.24.560 Defense to action for injury caused by indoor air pollutants. It is a defense in a civil action brought for damages for injury caused by indoor air pollutants in a residential structure on which construction was begun on or after July 1, 1991, that the builder or design professional complied in good faith, without negligence or misconduct, with: (1) Building product safety standards, including labeling; (2) Restrictions on the use of building materials known or believed to contain substances that contribute to indoor air pollution; and (3) The ventilation and radon resistive construction requirements adopted under RCW 19.27.190. [1992 c 132 § 2; 1990 c 2 § 8.] 4.24.560 Effective dates—1990 c 2: See note following RCW 19.27.040. Findings—Severability—1990 c 2: See notes following RCW 19.27A.015. (2006 Ed.) Special Rights of Action and Special Immunities 4.24.570 4.24.570 Acts against animals in research or educational facilities. (1) Joint and several liability for damages shall apply to persons and organizations that commit an intentional tort by (a) taking, releasing, destroying, contaminating, or damaging any animal or animals kept in a research or educational facility, where the animal or animals are used or to be used for medical research or other research purposes, or for educational purposes; or (b) destroying or damaging any records, equipment, research product, or other thing pertaining to such animal or animals. (2) Any person or organization that plans or assists in the development of a plan to commit an intentional tort covered by subsection (1) of this section is liable for damages to the same extent as a person who has committed the tort. However, a person or organization that assists in the development of a plan is not liable under this subsection, if, at the time of providing the assistance the person or organization does not know, or have reason to know, that the assistance is promoting the commission of the tort. Membership in a liable organization does not in itself establish the member’s liability under this subsection. The common law defense of prior renunciation is allowed in actions brought under this subsection. (3) In any case where damages are awarded under this section, the court shall award to the plaintiff all costs of the litigation, including reasonable attorneys’ fees, investigation costs, and court costs, and shall impose on any liable party a civil fine of not to exceed one hundred thousand dollars to be paid to the plaintiff. [1991 c 325 § 3.] Severability—1991 c 325: See note following RCW 9.08.080. Criminal acts against animal facilities: RCW 9.08.080, 9.08.090. 4.24.575 4.24.575 Acts against animals kept for agricultural or veterinary purposes. (1) Joint and several liability for damages shall apply to persons and organizations that commit an intentional tort by taking, releasing, destroying or damaging any animal or animals kept by a person for agricultural production purposes or by a veterinarian for veterinary purposes; or by destroying or damaging any farm or veterinary equipment or supplies pertaining to such animal or animals. (2) Any person or organization that plans or assists in the development of a plan to commit an intentional tort covered by subsection (1) of this section is liable for damages to the same extent as a person who has committed the tort. However, a person or organization that assists in the development of a plan is not liable under this subsection, if, at the time of providing the assistance the person or organization does not know, or have reason to know, that the assistance is promoting the commission of the tort. Membership in a liable organization does not in itself establish the member’s liability under this subsection. The common law defense of prior renunciation is allowed in actions brought under this subsection. (3) In any case where damages are awarded under this section, the court shall award to the plaintiff all costs of the litigation, including reasonable attorneys’ fees, investigation costs, and court costs, and shall impose on any liable party a civil fine of not to exceed one hundred thousand dollars to be paid to the plaintiff. (2006 Ed.) 4.24.601 (4) "Agricultural production," for purposes of this section, means all activities associated with the raising of animals for agricultural purposes, including but not limited to animals raised for wool or fur. Agricultural production also includes the exhibiting or marketing of live animals raised for agricultural purposes. [1991 c 325 § 4.] Severability—1991 c 325: See note following RCW 9.08.080. Criminal acts against animal facilities: RCW 9.08.080, 9.08.090. 4.24.580 4.24.580 Acts against animal facilities—Injunction. Any individual having reason to believe that he or she may be injured by the commission of an intentional tort under RCW 4.24.570 or 4.24.575 may apply for injunctive relief to prevent the occurrence of the tort. Any individual who owns or is employed at a research or educational facility or an agricultural production facility where animals are used for research, educational, or agricultural purposes who is harassed, or believes that he or she is about to be harassed, by an organization, person, or persons whose intent is to stop or modify the facility’s use or uses of an animal or animals, may apply for injunctive relief to prevent the harassment. For the purposes of this section: (1) "Agricultural production" means all activities associated with the raising of animals for agricultural purposes, including but not limited to animals raised for wool or fur. Agricultural production also includes the exhibiting or marketing of live animals raised for agricultural purposes; and (2) "Harassment" means any threat, without lawful authority, that the recipient has good reason to fear will be carried out, that is knowingly made for the purpose of stopping or modifying the use of animals, and that either (a) would cause injury to the person or property of the recipient, or result in the recipient’s physical confinement or restraint, or (b) is a malicious threat to do any other act intended to substantially cause harm to the recipient’s mental health or safety. [1991 c 325 § 5.] Severability—1991 c 325: See note following RCW 9.08.080. 4.24.590 4.24.590 Liability of foster parents. In actions for personal injury or property damage commenced by foster children or their parents against foster parents licensed pursuant to chapter 74.15 RCW, the liability of foster parents for the care and supervision of foster children shall be the same as the liability of biological and adoptive parents for the care and supervision of their children. [1991 c 283 § 3.] Findings—Effective date—1991 c 283: See notes following RCW 74.14B.080. 4.24.601 4.24.601 Hazards to the public—Information—Legislative findings, policy, intent. The legislature finds that public health and safety is promoted when the public has knowledge that enables members of the public to make informed choices about risks to their health and safety. Therefore, the legislature declares as a matter of public policy that the public has a right to information necessary to protect members of the public from harm caused by alleged hazards to the public. The legislature also recognizes that protection of trade secrets, other confidential research, development, or commercial information concerning products or business methods promotes business activity and prevents unfair com[Title 4 RCW—page 35] 4.24.611 Title 4 RCW: Civil Procedure petition. Therefore, the legislature declares it a matter of public policy that the confidentiality of such information be protected and its unnecessary disclosure be prevented. [1994 c 42 § 1.] Application—1994 c 42: "This act applies to all confidentiality provisions entered or executed with respect to product liability/ hazardous substance claims on or after May 1, 1994." [1994 c 42 § 3.] Effective date—1994 c 42: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect May 1, 1994." [1994 c 42 § 4.] 4.24.611 4.24.611 Product liability/ hazardous substance claims—Public right to information—Confidentiality— Damages, costs, attorneys’ fees—Repeal. As used in RCW 4.24.601 and this section: (1)(a) "Product liability/hazardous substance claim" means a claim for damages for personal injury, wrongful death, or property damage caused by a product or hazardous or toxic substances, that is an alleged hazard to the public and that presents an alleged risk of similar injury to other members of the public. (b) "Confidentiality provision" means any terms in a court order or a private agreement settling, concluding, or terminating a product liability/hazardous substance claim, that limit the possession, disclosure, or dissemination of information about an alleged hazard to the public, whether those terms are integrated in the order or private agreement or written separately. (c) "Members of the public" includes any individual, group of individuals, partnership, corporation, or association. (2) Except as provided in subsection (4) of this section, members of the public have a right to information necessary for a lay member of the public to understand the nature, source, and extent of the risk from alleged hazards to the public. (3) Except as provided in subsection (4) of this section, members of the public have a right to the protection of trade secrets as defined in RCW 19.108.010, other confidential research, development, or commercial information concerning products or business methods. (4)(a) Nothing in this chapter shall limit the issuance of any protective or discovery orders during the course of litigation pursuant to court rules. (b) Confidentiality provisions may be entered into or ordered or enforced by the court only if the court finds, based on the evidence, that the confidentiality provision is in the public interest. In determining the public interest, the court shall balance the right of the public to information regarding the alleged risk to the public from the product or substance as provided in subsection (2) of this section against the right of the public to protect the confidentiality of information as provided in subsection (3) of this section. (5)(a) Any confidentiality provisions that are not adopted consistent with the provisions of this section are voidable by the court. (b) Any confidentiality provisions that are determined to be void are severable from the remainder of the order or agreement notwithstanding any provision to the contrary and the remainder of the order or agreement shall remain in force. [Title 4 RCW—page 36] (c) Nothing in RCW 4.24.601 and this section prevents the court from denying the request for confidentiality provisions under other law nor limits the scope of discovery pursuant to applicable court rules. (6) In cases of third party actions challenging confidentiality provisions in orders or agreements, the court has discretion to award to the prevailing party actual damages, costs, reasonable attorneys’ fees, and such other terms as the court deems just. (7) The following acts or parts of acts are each repealed on May 1, 1994: (a) RCW 4.24.600 and 1993 c 17 § 1; (b) RCW 4.24.610 and 1993 c 17 § 2; (c) RCW 4.24.620 and 1993 c 17 § 3; (d) RCW 4.16.380 and 1993 c 17 § 5; and (e) 1993 c 17 § 4 (uncodified). [1994 c 42 § 2.] Application—Effective date—1994 c 42: See notes following RCW 4.24.601. 4.24.630 4.24.630 Liability for damage to land and property— Damages—Costs—Attorneys’ fees—Exceptions. (1) Every person who goes onto the land of another and who removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvements to real estate on the land, is liable to the injured party for treble the amount of the damages caused by the removal, waste, or injury. For purposes of this section, a person acts "wrongfully" if the person intentionally and unreasonably commits the act or acts while knowing, or having reason to know, that he or she lacks authorization to so act. Damages recoverable under this section include, but are not limited to, damages for the market value of the property removed or injured, and for injury to the land, including the costs of restoration. In addition, the person is liable for reimbursing the injured party for the party’s reasonable costs, including but not limited to investigative costs and reasonable attorneys’ fees and other litigation-related costs. (2) This section does not apply in any case where liability for damages is provided under RCW 64.12.030, *79.01.756, 79.01.760, 79.40.070, or where there is immunity from liability under RCW 64.12.035. [1999 c 248 § 2; 1994 c 280 § 1.] *Reviser’s note: RCW 79.01.756, 79.01.760, and 79.40.070 were recodified as RCW 79.02.320, 79.02.300, and 79.02.340, respectively, pursuant to 2003 c 334 § 554. Severability—1999 c 248: See note following RCW 64.12.035. 4.24.640 4.24.640 Firearm safety program liability. No person who owns, operates, is employed by, or volunteers at a program approved under RCW 77.32.155 shall be liable for any injury that occurs while the person who suffered the injury is participating in the course, unless the injury is the result of gross negligence. [1994 sp.s. c 7 § 513.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. 4.24.650 4.24.650 Year 2000 failure—Affirmative defense to contract action. (Expires December 31, 2006.) (1) A person has an affirmative defense to any claim or action, based on a (2006 Ed.) Special Rights of Action and Special Immunities contract, brought against the person if he or she establishes that: (a) The default, failure to pay, breach, omission, or other violation that is the basis of the claim against him or her was caused, in whole or in part, by a year 2000 failure associated with an electronic computing device; (b) The year 2000 failure being asserted was not proximately caused by a failure of the person to update an electronic computing device, that is under his or her dominion or control, to be year 2000 compliant; and (c) If it were not for the year 2000 failure, the person would have been able to satisfy the contractual obligation that was the basis of the claim. (2) If an affirmative defense as set forth in subsection (1) of this section is established, then the person or entity making the claim may not reassert the claim against which the affirmative defense was asserted for a period of thirty days from the date on which the court dismissed the case as a result of the affirmative defense. Any statute of limitations applicable to the claim shall be tolled for forty-five days upon the dismissal of the case under this section. (3) The dismissal of an action as the result of the affirmative defense under this section does not impair, extinguish, discharge, satisfy, or otherwise affect the underlying obligation that is the basis of the claim against which the affirmative defense was asserted. However, the ability of a party to bring the claim based upon the obligation is delayed as set forth in subsection (2) of this section. (4) A person who has established an affirmative defense as set forth in subsection (1) of this section may dispute directly with a credit reporting agency operating in this state any item of information in the person’s consumer file relating to the subject of the affirmative defense. The dispute shall be filed in accordance with RCW 19.182.090(6). If requested by the person under this subsection (4), the credit reporting agency shall furnish a statement, made in accordance with RCW 19.182.090(7), to the person and include the statement in the person’s consumer file. The credit reporting agency may not charge the person a fee for the inclusion of this statement in the person’s consumer file. (5)(a) The definitions in RCW 4.22.080 apply to this section unless the context clearly requires otherwise. (b) As used in this section, unless the context clearly requires otherwise, "person" means a natural person or a small business as defined in RCW 19.85.020. (6) This section does not affect those transactions upon which a default has occurred before any disruption of financial or data transfer operations attributable to a year 2000 failure. (7) This section does not apply to or affect any contract that specifically provides for a year 2000 failure. (8) This section does not apply to any claim or cause of action filed after December 31, 2003. (9) This section expires December 31, 2006. [1999 c 369 § 2.] Effective date—1999 c 369: See note following RCW 4.22.080. 4.24.660 4.24.660 Liability of school districts under contracts with youth programs. (1) A school district shall not be liable for an injury to or the death of a person due to action or (2006 Ed.) 4.24.670 inaction of persons employed by, or under contract with, a youth program if: (a) The action or inaction takes place on school property and during the delivery of services of the youth program; (b) The private nonprofit group provides proof of being insured, under an accident and liability policy issued by an insurance company authorized to do business in this state, that covers any injury or damage arising from delivery of its services. Coverage for a policy meeting the requirements of this section must be at least fifty thousand dollars due to bodily injury or death of one person, or at least one hundred thousand dollars due to bodily injury or death of two or more persons in any incident; and (c) The group provides proof of such insurance before the first use of the school facilities. The immunity granted shall last only as long as the insurance remains in effect. (2) Immunity under this section does not apply to any school district before January 1, 2000. (3) As used in this section, "youth programs" means any program or service, offered by a private nonprofit group, that is operated primarily to provide persons under the age of eighteen with opportunities to participate in services or programs. (4) This section does not impair or change the ability of any person to recover damages for harm done by: (a) Any contractor or employee of a school district acting in his or her capacity as a contractor or employee; or (b) the existence of unsafe facilities or structures or programs of any school district. [1999 c 316 § 3.] Intent—Effective date—1999 c 316: See notes following RCW 28A.335.155. 4.24.670 4.24.670 Liability of volunteers of nonprofit or governmental entities. (1) Except as provided in subsection (2) of this section, a volunteer of a nonprofit organization or governmental entity shall not be personally liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if: (a) The volunteer was acting within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity at the time of the act or omission; (b) If appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice, where the activities were or practice was undertaken within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity; (c) The harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; (d) The harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or the owner of the vehicle, craft, or vessel to either possess an operator’s license or maintain insurance; and (e) The nonprofit organization carries public liability insurance covering the organization’s liability for harm caused to others for which it is directly or vicariously liable of not less than the following amounts: [Title 4 RCW—page 37] 4.24.680 Title 4 RCW: Civil Procedure (i) For organizations with gross revenues of less than twenty-five thousand dollars, at least fifty thousand dollars due to the bodily injury or death of one person or at least one hundred thousand dollars due to the bodily injury or death of two or more persons; (ii) For organizations with gross revenues of twenty-five thousand dollars or more but less than one hundred thousand dollars, at least one hundred thousand dollars due to the bodily injury or death of one person or at least two hundred thousand dollars due to the bodily injury or death of two or more persons; (iii) For organizations with gross revenues of one hundred thousand dollars or more, at least five hundred thousand dollars due to bodily injury or death. (2) Nothing in this section shall be construed to affect any civil action brought by any nonprofit organization or any governmental entity against any volunteer of the organization or entity. (3) Nothing in this section shall be construed to affect the liability, or vicarious liability, of any nonprofit organization or governmental entity with respect to harm caused to any person, including harm caused by the negligence of a volunteer. (4) Nothing in this section shall be construed to apply to the emergency workers registered in accordance with chapter 38.52 RCW nor to the related volunteer organizations to which they may belong. (5) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise. (a) "Economic loss" means any pecuniary loss resulting from harm, including the loss of earnings or other benefits related to employment, medical expense loss, replacement services loss, loss due to death, burial costs, and loss of business or employment opportunities. (b) "Harm" includes physical, nonphysical, economic, and noneconomic losses. (c) "Noneconomic loss" means loss for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium other than loss of domestic service, hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind or nature. (d) "Nonprofit organization" means: (i) Any organization described in section 501(c)(3) of the internal revenue code of 1986 (26 U.S.C. Sec. 501(c)(3)) and exempt from tax under section 501(a) of the internal revenue code; (ii) any not-for-profit organization that is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes; or (iii) any organization described in section 501(c)(14)(A) of the internal revenue code of 1986 (26 U.S.C. Sec. 501(c)(14)(A)) and exempt from tax under section 501(a) of the internal revenue code. (e) "Volunteer" means an individual performing services for a nonprofit organization or a governmental entity who does not receive compensation, other than reasonable reimbursement or allowance for expenses actually incurred, or any other thing of value, in excess of five hundred dollars per year. "Volunteer" includes a volunteer serving as a director, officer, trustee, or direct service volunteer. [2001 c 209 § 1.] [Title 4 RCW—page 38] 4.24.680 Unlawful release of court and law enforcement employee information—Exception. (1) A person shall not knowingly make available on the world wide web the personal information of a peace officer, corrections person, justice, judge, commissioner, public defender, or prosecutor if the dissemination of the personal information poses an imminent and serious threat to the peace officer’s, corrections person’s, justice’s, judge’s, commissioner’s, public defender’s, or prosecutor’s safety or the safety of that person’s immediate family and the threat is reasonably apparent to the person making the information available on the world wide web to be serious and imminent. (2) It is not a violation of this section if an employee of a county auditor or county assessor publishes personal information, in good faith, on the web site of the county auditor or county assessor in the ordinary course of carrying out public functions. (3) For the purposes of this section: (a) "Commissioner" means a commissioner of the superior court, court of appeals, or supreme court. (b) "Corrections person" means any employee or volunteer who by state, county, municipal, or combination thereof, statute has the responsibility for the confinement, care, management, training, treatment, education, supervision, or counseling of those whose civil rights have been limited in some way by legal sanction. (c) "Immediate family" means a peace officer’s, corrections person’s, justice’s, judge’s, commissioner’s, public defender’s, or prosecutor’s spouse, child, or parent and any other adult who lives in the same residence as the person. (d) "Judge" means a judge of the United States district court, the United States court of appeals, the United States magistrate, the United States bankruptcy court, and the Washington court of appeals, superior court, district court, or municipal court. (e) "Justice" means a justice of the United States supreme court or Washington supreme court. (f) "Personal information" means a peace officer’s, corrections person’s, justice’s, judge’s, commissioner’s, public defender’s, or prosecutor’s home address, home telephone number, pager number, social security number, home e-mail address, directions to the person’s home, or photographs of the person’s home or vehicle. (g) "Prosecutor" means a county prosecuting attorney, a city attorney, the attorney general, or a United States attorney and their assistants or deputies. (h) "Public defender" means a federal public defender, or other public defender, and his or her assistants or deputies. [2006 c 355 § 2; 2002 c 336 § 1.] 4.24.680 Finding—2006 c 355: "The legislature finds that the dissemination of personally identifying information as proscribed in RCW 4.24.680 is not in the public interest." [2006 c 355 § 1.] Severability—2006 c 355: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2006 c 355 § 4.] 4.24.690 Unlawful release of court and law enforcement employee information—Court action to prevent. (1) Whenever it appears that any person or organization is engaged in or about to engage in any act that constitutes or will constitute a violation of RCW 4.24.680, the prosecuting 4.24.690 (2006 Ed.) Special Rights of Action and Special Immunities attorney or any person harmed by an alleged violation of RCW 4.24.680 may initiate a civil proceeding in superior court to enjoin such violation, and may petition the court to issue an order for the discontinuance of the dissemination of information in violation of RCW 4.24.680. (2) An action under this section shall be brought in the county in which the violation is alleged to have taken place, and shall be commenced by the filing of a verified complaint, or shall be accompanied by an affidavit. (3) If it is shown to the satisfaction of the court, either by verified complaint or affidavit, that a person or organization is engaged in or about to engage in any act that constitutes a violation of RCW 4.24.680, the court may issue a temporary restraining order to abate and prevent the continuance or recurrence of the act. (4) The court may issue a permanent injunction to restrain, abate, or prevent the continuance or recurrence of the violation of RCW 4.24.680. The court may grant declaratory relief, mandatory orders, or any other relief deemed necessary to accomplish the purposes of the injunction. The court may retain jurisdiction of the case for the purpose of enforcing its orders. [2002 c 336 § 2.] 4.24.700 4.24.700 Unlawful release of court and law enforcement employee information—Damages, fees, and costs. Any person whose personal information is made available on the world wide web as described in RCW 4.24.680(1) who suffers damages as a result of such conduct may bring an action against the person or organization who makes such information available, for actual damages sustained plus damages in an amount not to exceed one thousand dollars for each day the personal information was made available on the world wide web, and reasonable attorneys’ fees and costs. [2006 c 355 § 3; 2002 c 336 § 3.] Finding—Severability—2006 c 355: See notes following RCW 4.24.680. 4.24.710 4.24.710 Outdoor music festival, campground— Detention. (1) In a civil action brought against the detainer by reason of a person having been detained on or in the immediate vicinity of the premises of an outdoor music festival or related campground for the purpose of investigation or questioning as to the lawfulness of the consumption or possession of alcohol or illegal drugs, it is a defense that the detained person was detained in a reasonable manner and for not more than a reasonable time to permit the investigation or questioning by a law enforcement officer, and that a peace officer, owner, operator, employee, or agent of the outdoor music festival had reasonable grounds to believe that the person so detained was unlawfully consuming or attempting to unlawfully consume or possess, alcohol or illegal drugs on the premises. (2) For the purposes of this section: (a) "Illegal drug" means a controlled substance under chapter 69.50 RCW for which the person detained does not have a valid prescription or that is not being consumed in accordance with the prescription directions and warnings, or a legend drug under chapter 69.41 RCW for which the person does not have a valid prescription or that is not being consumed in accordance with the prescription directions and warnings. (2006 Ed.) 4.24.730 (b) "Outdoor music festival" has the same meaning as in RCW 70.108.020, except that no minimum time limit is required. (c) "Reasonable grounds" include, but are not limited to: (i) Exhibiting the effects of having consumed liquor, which means that a person has the odor of liquor on his or her breath, or that by speech, manner, appearance, behavior, lack of coordination, or otherwise exhibits that he or she has consumed liquor, and either: (A) Is in possession of or in close proximity to a container that has or recently had liquor in it; or (B) Is shown by other evidence to have recently consumed liquor; or (ii) Exhibiting the effects of having consumed an illegal drug, which means that a person by speech, manner, appearance, behavior, lack of coordination, or otherwise exhibits that he or she has consumed an illegal drug, and either: (A) Is in possession of an illegal drug; or (B) Is shown by other evidence to have recently consumed an illegal drug. (d) "Reasonable time" means the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to allow a law enforcement officer to determine the lawfulness of the consumption or possession of alcohol or illegal drugs. "Reasonable time" may not exceed one hour. [2003 c 219 § 2.] 4.24.720 4.24.720 Liability immunity—Amber alerts. No cause of action shall be maintained for civil damages in any court of this state against any radio or television broadcasting station or cable television system, or the employees, officers, directors, managers, or agents of the radio or television broadcasting station or cable television system, based on the broadcast of information including, but not limited to, the name or description of an abducted child, the name or description of a suspected abductor, and the circumstances of an abduction supplied by law enforcement officials pursuant to the voluntary broadcast notification system commonly known as the "Amber alert," or as the same system may otherwise be known in this state, which is used to notify the public of missing or abducted children. Nothing in this section shall be construed to limit or restrict in any way any immunity or privilege a radio or television broadcasting station or cable television system may have under statute or common law for broadcasting or otherwise disseminating information. [2005 c 128 § 1.] 4.24.730 4.24.7 30 Liability immunity—Disclosure of employee information to prospective employer. (1) An employer who discloses information about a former or current employee to a prospective employer, or employment agency as defined by RCW 49.60.040, at the specific request of that individual employer or employment agency, is presumed to be acting in good faith and is immune from civil and criminal liability for such disclosure or its consequences if the disclosed information relates to: (a) The employee’s ability to perform his or her job; (b) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or (c) any illegal or wrongful act committed by the employee when related to the duties of his or her job. [Title 4 RCW—page 39] 4.24.740 Title 4 RCW: Civil Procedure (2) The employer should retain a written record of the identity of the person or entity to which information is disclosed under this section for a minimum of two years from the date of disclosure. The employee or former employee has a right to inspect any such written record upon request and any such written record shall become part of the employee’s personnel file, subject to the provisions of chapter 49.12 RCW. (3) For the purposes of this section, the presumption of good faith may only be rebutted upon a showing by clear and convincing evidence that the information disclosed by the employer was knowingly false, deliberately misleading, or made with reckless disregard for the truth. [2005 c 103 § 1.] 4.24.740 4.24.740 Liability immunity—Bovine handling activities. (1) Except as provided in subsection (2) of this section, an owner, operator, or manager of a bovine handling facility, and the owner of bovine handled at or processed through a bovine handling facility, are not liable for an injury to or the death of a person who knowingly and voluntarily participates in bovine handling activities at a bovine handling facility or knowingly and voluntarily enters onto the premises of a bovine handling facility as a spectator of bovine handling activities. (2) Nothing in subsection (1) of this section prevents or limits the liability of an owner, operator, or manager of a bovine handling facility, or an owner of bovine handled at or processed through a bovine handling facility, if the owner, operator, or manager of the bovine handling facility, or the bovine owner: (a) Intentionally injures the participant or spectator or commits an act or omission that constitutes willful or wanton disregard for the safety of the participant or spectator and that act or omission caused the injury; (b) Owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant or spectator sustained injuries because of a dangerous latent condition which was known to or should have been known to the owner, operator, or manager of the bovine handling facility, or the bovine owner, and for which warning signs have not been conspicuously posted; or (c) Is liable under chapter 16.04 or 16.24 RCW. (3) As used in this section: (a) "Bovine" means beef cattle, dairy cattle, and bison. (b) "Bovine handling facility" means a cooperative notfor-profit outdoor facility, such as a corral, that is used for the normal and customary handling and husbandry of bovines, whether on a daily or periodic basis, and does not include commercial slaughter facilities. (c) "Bovine handling activities" means normal and customary activities associated with the handling and husbandry of bovines. [2006 c 158 § 1.] Chapter 4.28 Chapter 4.28 RCW COMMENCEMENT OF ACTIONS Sections 4.28.011 4.28.020 4.28.080 Tolling statute of limitations—Action deemed commenced, when. Jurisdiction acquired, when. Summons, how served. [Title 4 RCW—page 40] 4.28.090 4.28.100 4.28.110 4.28.120 4.28.140 4.28.150 4.28.160 4.28.180 4.28.185 4.28.200 4.28.210 4.28.290 4.28.320 4.28.325 4.28.328 4.28.330 4.28.340 4.28.350 4.28.360 Service on corporation without officer in state upon whom process can be served. Service of summons by publication—When authorized. Manner of publication and form of summons. Publication of notice in eminent domain proceedings. Affidavit as to unknown heirs. Title of cause—Unknown claimants—Service by publication. Rights of unknown claimants and heirs—Effect of judgment— Lis pendens. Personal service out of state. Personal service out of state—Acts submitting person to jurisdiction of courts—Saving. Right of one constructively served to appear and defend or reopen. Appearance, what constitutes. Assessment of damages without answer. Lis pendens in actions affecting title to real estate. Lis pendens in actions in United States district courts affecting title to real estate. Lis pendens—Liability of claimants—Damages, costs, attorneys’ fees. Notice to alien property custodian. Notice to alien property custodian—Definitions. Notice to alien property custodian—Duration. Personal injury action—Complaint not to include statement of damages—Request for statement. Rules of court: CR 3; CR 4; CR 4.1; CR 5; and CR 6. Claims against cities and towns: Chapters 35.31, 35A.31 RCW. counties: Chapter 36.45 RCW. political subdivisions, municipal corporations, and quasi municipal corporations: Chapter 4.96 RCW. state: Chapter 4.92 RCW. Foreign corporations, actions against: RCW 23B.15.100 and 23B.15.310. Nonadmitted foreign corporations, actions against: Chapter 23B.18 RCW. Proceedings as to mentally ill: Chapter 71.05 RCW. Publication of legal notices: Chapter 65.16 RCW. Service of papers on foreign corporation: RCW 23B.15.100 and 23B.15.310. Service of process on foreign savings and loan association: RCW 33.32.050. nonadmitted foreign corporation: RCW 23B.18.040. nonresident motor vehicle operator: RCW 46.64.040. Sheriff’s fees for service of process and other official services: RCW 36.18.040. 4.28.011 4.28.011 Tolling statute of limitations—Action deemed commenced, when. See RCW 4.16.170. 4.28.020 4.28.020 Jurisdiction acquired, when. From the time of the commencement of the action by service of summons, or by the filing of a complaint, or as otherwise provided, the court is deemed to have acquired jurisdiction and to have control of all subsequent proceedings. [1984 c 76 § 2; 1895 c 86 § 4; 1893 c 127 § 15; RRS § 238.] 4.28.080 4.28.080 Summons, how served. Service made in the modes provided in this section shall be taken and held to be personal service. The summons shall be served by delivering a copy thereof, as follows: (1) If the action be against any county in this state, to the county auditor or, during normal office hours, to the deputy auditor, or in the case of a charter county, summons may be served upon the agent, if any, designated by the legislative authority. (2) If against any town or incorporated city in the state, to the mayor, city manager, or, during normal office hours, to the mayor’s or city manager’s designated agent or the city clerk thereof. (2006 Ed.) Commencement of Actions (3) If against a school or fire district, to the superintendent or commissioner thereof or by leaving the same in his or her office with an assistant superintendent, deputy commissioner, or business manager during normal business hours. (4) If against a railroad corporation, to any station, freight, ticket or other agent thereof within this state. (5) If against a corporation owning or operating sleeping cars, or hotel cars, to any person having charge of any of its cars or any agent found within the state. (6) If against a domestic insurance company, to any agent authorized by such company to solicit insurance within this state. (7) If against a foreign or alien insurance company, as provided in chapter 48.05 RCW. (8) If against a company or corporation doing any express business, to any agent authorized by said company or corporation to receive and deliver express matters and collect pay therefor within this state. (9) If the suit be against a company or corporation other than those designated in the preceding subdivisions of this section, to the president or other head of the company or corporation, the registered agent, secretary, cashier or managing agent thereof or to the secretary, stenographer or office assistant of the president or other head of the company or corporation, registered agent, secretary, cashier or managing agent. (10) If the suit be against a foreign corporation or nonresident joint stock company, partnership or association doing business within this state, to any agent, cashier or secretary thereof. (11) If against a minor under the age of fourteen years, to such minor personally, and also to his or her father, mother, guardian, or if there be none within this state, then to any person having the care or control of such minor, or with whom he or she resides, or in whose service he or she is employed, if such there be. (12) If against any person for whom a guardian has been appointed for any cause, then to such guardian. (13) If against a foreign or alien steamship company or steamship charterer, to any agent authorized by such company or charterer to solicit cargo or passengers for transportation to or from ports in the state of Washington. (14) If against a self-insurance program regulated by chapter 48.62 RCW, as provided in chapter 48.62 RCW. (15) In all other cases, to the defendant personally, or by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein. (16) In lieu of service under subsection (15) of this section, where the person cannot with reasonable diligence be served as described, the summons may be served as provided in this subsection, and shall be deemed complete on the tenth day after the required mailing: By leaving a copy at his or her usual mailing address with a person of suitable age and discretion who is a resident, proprietor, or agent thereof, and by thereafter mailing a copy by first class mail, postage prepaid, to the person to be served at his or her usual mailing address. For the purposes of this subsection, "usual mailing address" shall not include a United States postal service post office box or the person’s place of employment. [1997 c 380 § 1; 1996 c 223 § 1; 1991 sp.s. c 30 § 28; 1987 c 361 § 1; 1977 ex.s. c 120 § 1; 1967 c 11 § 1; 1957 c 202 § 1; 1893 c 127 § (2006 Ed.) 4.28.100 7; RRS § 226, part. FORMER PART OF SECTION: 1897 c 97 § 1 now codified in RCW 4.28.081.] Rules of court: Service of process—CR 4(d), (e). Effective date, implementation, application—Severability—1991 sp.s. c 30: See RCW 48.62.900 and 48.62.901. Severability—1977 ex.s. c 120: "If any provision of this 1977 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1977 ex.s. c 120 § 3.] Service of process on foreign corporation: RCW 23B.15.100 and 23B.15.310. foreign savings and loan association: RCW 33.32.050. nonadmitted foreign corporation: RCW 23B.18.040. nonresident motor vehicle operator: RCW 46.64.040. 4.28.090 4.28.090 Service on corporation without officer in state upon whom process can be served. Whenever any corporation, created by the laws of this state, or late territory of Washington, does not have an officer in this state upon whom legal service of process can be made, an action or proceeding against the corporation may be commenced in any county where the cause of action may arise, or the corporation may have property, and service may be made upon the corporation by depositing a copy of the summons, writ, or other process, in the office of the secretary of state, which shall be taken, deemed and treated as personal service on the corporation: PROVIDED, A copy of the summons, writ, or other process, shall be deposited in the post office, postage paid, directed to the secretary or other proper officer of the corporation, at the place where the main business of the corporation is transacted, when the place of business is known to the plaintiff, and be published at least once a week for six weeks in a newspaper of general circulation at the seat of government of this state, before the service shall be deemed perfect. [1985 c 469 § 1; 1893 c 127 § 8; RRS § 227.] 4.28.100 4.28.100 Service of summons by publication—When authorized. When the defendant cannot be found within the state, and upon the filing of an affidavit of the plaintiff, his agent, or attorney, with the clerk of the court, stating that he believes that the defendant is not a resident of the state, or cannot be found therein, and that he has deposited a copy of the summons (substantially in the form prescribed in RCW 4.28.110) and complaint in the post office, directed to the defendant at his place of residence, unless it is stated in the affidavit that such residence is not known to the affiant, and stating the existence of one of the cases hereinafter specified, the service may be made by publication of the summons, by the plaintiff or his attorney in any of the following cases: (1) When the defendant is a foreign corporation, and has property within the state; (2) When the defendant, being a resident of this state, has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with like intent; (3) When the defendant is not a resident of the state, but has property therein and the court has jurisdiction of the subject of the action; (4) When the action is for (a) establishment or modification of a parenting plan or residential schedule; or (b) dissolution of marriage, legal separation, or declaration of invalidity, in the cases prescribed by law; [Title 4 RCW—page 41] 4.28.110 Title 4 RCW: Civil Procedure (5) When the action is for nonparental custody under chapter 26.10 RCW and the child is in the physical custody of the petitioner; (6) When the subject of the action is real or personal property in this state, and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly, or partly, in excluding the defendant from any interest or lien therein; (7) When the action is to foreclose, satisfy, or redeem from a mortgage, or to enforce a lien of any kind on real estate in the county where the action is brought, or satisfy or redeem from the same; (8) When the action is against any corporation, whether private or municipal, organized under the laws of the state, and the proper officers on whom to make service do not exist or cannot be found; (9) When the action is brought under RCW 4.08.160 and 4.08.170 to determine conflicting claims to property in this state. [2005 c 117 § 1; 1981 c 331 § 13; 1953 c 102 § 1. Prior: 1929 c 81 § 1; 1915 c 45 § 1; 1893 c 127 § 9; RRS § 228.] Court Congestion Reduction Act of 1981—Purpose—Severability—1981 c 331: See notes following RCW 2.32.070. P.O. Address . . . . . . . . . . . . . . . . . . . . . . . . . County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Washington. [1985 c 469 § 2; 1895 c 86 § 2; 1893 c 127 § 10; RRS § 233.] Publication of legal notices: Chapter 65.16 RCW. 4.28.120 4.28.120 Publication of notice in eminent domain proceedings. If a party having or claiming a share or interest in or lien upon any property sought to be appropriated for public use be unknown, and such fact be made to appear by affidavit filed in the office of the clerk of the court, the notice required by law in such cases may be served by publication as in the case of nonresident owners, and such notice shall be directed by name to every owner of a share or interest in or lien upon the property sought to be so appropriated, and generally to all persons unknown having or claiming an interest or estate in the property or any portion thereof, and all such unknown parties shall in all papers and proceedings be designated as "unknown owners," and shall be bound by the provisions and be entitled to the benefits of the judgment the same as if they had been known and duly named. [1895 c 140 § 1; RRS § 239.] Eminent domain: Title 8 RCW. 4.28.110 4.28.110 Manner of publication and form of summons. The publication shall be made in a newspaper of general circulation in the county where the action is brought once a week for six consecutive weeks: PROVIDED, That publication of summons shall not be made until after the filing of the complaint, and the service of the summons shall be deemed complete at the expiration of the time prescribed for publication. The summons must be subscribed by the plaintiff or his attorney or attorneys. The summons shall contain the date of the first publication, and shall require the defendant or defendants upon whom service by publication is desired, to appear and answer the complaint within sixty days from the date of the first publication of the summons; and the summons for publication shall also contain a brief statement of the object of the action. The summons for publication shall be substantially as follows: In the superior court of the State of Washington for the county of . . . . . . . . . . . . . . ., Plaintiff, vs. . . . . . . . . ., Defendant. No. . . . . The State of Washington to the said (naming the defendant or defendants to be served by publication): You are hereby summoned to appear within sixty days after the date of the first publication of this summons, to wit, within sixty days after the . . . . day of . . . . . ., 1 . . . ., and defend the above entitled action in the above entitled court, and answer the complaint of the plaintiff . . . . . ., and serve a copy of your answer upon the undersigned attorneys for plaintiff . . . . . ., at his (or their) office below stated; and in case of your failure so to do, judgment will be rendered against you according to the demand of the complaint, which has been filed with the clerk of said court. (Insert here a brief statement of the object of the action.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., Plaintiff’s Attorneys. [Title 4 RCW—page 42] Publication of legal notices: Chapter 65.16 RCW. 4.28.140 4.28.140 Affidavit as to unknown heirs. Upon presenting an affidavit to the court or judge, showing to his satisfaction that the heirs of such deceased person are proper parties to the action, and that their names and residences cannot with use of reasonable diligence be ascertained, such court or judge may grant an order that service of the summons in such action be made on such "Unknown heirs" by publication thereof in the same manner as in actions against nonresident defendants. [1903 c 144 § 2; RRS § 230.] Rules of court: Cf. CR 10(a). 4.28.150 4.28.150 Title of cause—Unknown claimants—Service by publication. In any action brought to determine any adverse claim, estate, lien, or interest in real property, or to quiet title to real property, the plaintiff may include as a defendant in such action, and insert in the title thereof, in addition to the names of such persons or parties as appear of record to have, and other persons or parties who are known to have, some title, claim, estate, lien, or interest in the lands in controversy, the following, viz.: "Also all other persons or parties unknown claiming any right, title, estate, lien, or interest in the real estate described in the complaint herein." And service of summons may be had upon all such unknown persons or parties defendant by publication as provided by law in case of nonresident defendants. [1903 c 144 § 3; RRS § 231.] Publication of legal notices: Chapter 65.16 RCW. 4.28.160 4.28.160 Rights of unknown claimants and heirs— Effect of judgment—Lis pendens. All such unknown heirs of deceased persons, and all such unknown persons or parties, so served by publication as in RCW 4.28.150, provided, shall have the same rights as are provided by law in case of all other defendants upon whom service is made by publication, (2006 Ed.) Commencement of Actions and the action shall proceed against such unknown heirs, or unknown persons or parties, in the same manner as against defendants, who are named, upon whom service is made by publication, and with like effect; and any such unknown heirs or unknown persons or parties who have or claim any right, estate, lien, or interest in the said real property in controversy, at the time of the commencement of the action, duly served as aforesaid, shall be bound and concluded by the judgment in such action, if the same is in favor of the plaintiff therein as effectually as if the action was brought against such defendant by his or her name and constructive service of summons obtained: PROVIDED, HOWEVER, That such judgment shall not bind such unknown heirs, or unknown persons or parties, defendant, unless the plaintiff shall file a notice of lis pendens in the office of the auditor of each county in which said real estate is located, in the manner provided by law, before commencing the publication of said summons. [1903 c 144 § 4; RRS § 232.] 4.28.320 same force and effect as though personally served within this state. (3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section. (4) Personal service outside the state shall be valid only when an affidavit is made and filed to the effect that service cannot be made within the state. (5) In the event the defendant is personally served outside the state on causes of action enumerated in this section, and prevails in the action, there may be taxed and allowed to the defendant as part of the costs of defending the action a reasonable amount to be fixed by the court as attorneys’ fees. (6) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law. [1977 c 39 § 1; 1975-’76 2nd ex.s. c 42 § 22; 1959 c 131 § 2.] Rules of court: Cf. CR 4(e), CR 12(a), CR 82(a). Uniform parentage act: Chapter 26.26 RCW. 4.28.180 4.28.180 Personal service out of state. Personal service of summons or other process may be made upon any party outside the state. If upon a citizen or resident of this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of personal service within this state; otherwise it shall have the force and effect of service by publication. The summons upon the party out of the state shall contain the same and be served in like manner as personal summons within the state, except it shall require the party to appear and answer within sixty days after such personal service out of the state. [1959 c 131 § 1; 1895 c 86 § 3; 1893 c 127 § 11; RRS § 234.] Rules of court: Cf. CR 4(e), CR 12(a), CR 82(a). Service of process on nonresident motor vehicle operator: RCW 46.64.040. 4.28.185 4.28.185 Personal service out of state—Acts submitting person to jurisdiction of courts—Saving. (1) Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts in this section enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts: (a) The transaction of any business within this state; (b) The commission of a tortious act within this state; (c) The ownership, use, or possession of any property whether real or personal situated in this state; (d) Contracting to insure any person, property or risk located within this state at the time of contracting; (e) The act of sexual intercourse within this state with respect to which a child may have been conceived; (f) Living in a marital relationship within this state notwithstanding subsequent departure from this state, as to all proceedings authorized by chapter 26.09 RCW, so long as the petitioning party has continued to reside in this state or has continued to be a member of the armed forces stationed in this state. (2) Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in this section, may be made by personally serving the defendant outside this state, as provided in RCW 4.28.180, with the (2006 Ed.) 4.28.200 4.28.200 Right of one constructively served to appear and defend or reopen. If the summons is not served personally on the defendant in the cases provided in RCW 4.28.110 and 4.28.180, he or his representatives, on application and sufficient cause shown, at any time before judgment, shall be allowed to defend the action and, except in an action for divorce, the defendant or his representative may in like manner be allowed to defend after judgment, and within one year after the rendition of such judgment, on such terms as may be just; and if the defense is successful, and the judgment, or any part thereof, has been collected or otherwise enforced, such restitution may thereupon be compelled as the court directs. [1893 c 127 § 12; RRS § 235.] 4.28.210 4.28.210 Appearance, what constitutes. A defendant appears in an action when he answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of his appearance. After appearance a defendant is entitled to notice of all subsequent proceedings; but when a defendant has not appeared, service of notice or papers in the ordinary proceedings in an action need not be made upon him. Every such appearance made in an action shall be deemed a general appearance, unless the defendant in making the same states that the same is a special appearance. [1893 c 127 § 16; RRS § 241.] Rules of court: Demurrers abolished—CR 7(c). 4.28.290 4.28.290 Assessment of damages without answer. A defendant who has appeared may, without answering, demand in writing an assessment of damages, of the amount which the plaintiff is entitled to recover, and thereupon such assessment shall be had or any such amount ascertained in such manner as the court on application may direct, and judgment entered by the clerk for the amount so assessed or ascertained. [1893 c 127 § 25; RRS § 251.] 4.28.320 4.28.320 Lis pendens in actions affecting title to real estate. At any time after an action affecting title to real property has been commenced, or after a writ of attachment with respect to real property has been issued in an action, or after [Title 4 RCW—page 43] 4.28.325 Title 4 RCW: Civil Procedure a receiver has been appointed with respect to any real property, the plaintiff, the defendant, or such a receiver may file with the auditor of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the real property in that county affected thereby. From the time of the filing only shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property affected thereby, and every person whose conveyance or encumbrance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he or she were a party to the action. For the purpose of this section an action shall be deemed to be pending from the time of filing such notice: PROVIDED, HOWEVER, That such notice shall be of no avail unless it shall be followed by the first publication of the summons, or by the personal service thereof on a defendant within sixty days after such filing. And the court in which the said action was commenced may, at its discretion, at any time after the action shall be settled, discontinued or abated, on application of any person aggrieved and on good cause shown and on such notice as shall be directed or approved by the court, order the notice authorized in this section to be canceled of record, in whole or in part, by the county auditor of any county in whose office the same may have been filed or recorded, and such cancellation shall be evidenced by the recording of the court order. [2004 c 165 § 33; 1999 c 233 § 1; 1893 c 127 § 17; RRS § 243.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. Effective date—1999 c 233: "This act takes effect August 1, 1999." [1999 c 233 § 24.] 4.28.325 4.28.325 Lis pendens in actions in United States district courts affecting title to real estate. In an action in a United States district court for any district in the state of Washington affecting the title to real property in the state of Washington, the plaintiff, at the time of filing the complaint, or at any time afterwards, or a defendant, when he sets up an affirmative cause of action in his answer, or at any time afterward, if the same be intended to affect real property, may file with the auditor of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action and a description of the real property in that county affected thereby. From the time of the filing only shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property affected thereby, and every person whose conveyance or encumbrance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were a party to the action. For the purpose of this section an action shall be deemed to be pending from the time of filing such notice: PROVIDED, HOWEVER, That such notice shall be of no avail unless it shall be followed by the first publication of the summons, or by personal service thereof on a defendant within sixty days after such filing. And the court in which the said action was commenced may, in its discretion, at any time after the action shall be settled, discontinued or abated, on [Title 4 RCW—page 44] application of any person aggrieved and on good cause shown and on such notice as shall be directed or approved by the court, order the notice authorized in this section to be canceled, in whole or in part, by the county auditor of any county in whose office the same may have been filed or recorded, and such cancellation shall be evidenced by the recording of the court order. [1999 c 233 § 4; 1963 c 137 § 1.] Effective date—1999 c 233: See note following RCW 4.28.320. 4.28.328 4.28.328 Lis pendens—Liability of claimants—Damages, costs, attorneys’ fees. (1) For purposes of this section: (a) "Lis pendens" means a lis pendens filed under RCW 4.28.320 or 4.28.325 or other instrument having the effect of clouding the title to real property, however named, including consensual commercial lien, common law lien, commercial contractual lien, or demand for performance of public office lien, but does not include a lis pendens filed in connection with an action under Title 6, 60, other than chapter 60.70 RCW, or 61 RCW; (b) "Claimant" means a person who files a lis pendens, but does not include the United States, any agency thereof, or the state of Washington, any agency, political subdivision, or municipal corporation thereof; and (c) "Aggrieved party" means (i) a person against whom the claimant asserted the cause of action in which the lis pendens was filed, but does not include parties fictitiously named in the pleading; or (ii) a person having an interest or a right to acquire an interest in the real property against which the lis pendens was filed, provided that the claimant had actual or constructive knowledge of such interest or right when the lis pendens was filed. (2) A claimant in an action not affecting the title to real property against which the lis pendens was filed is liable to an aggrieved party who prevails on a motion to cancel the lis pendens, for actual damages caused by filing the lis pendens, and for reasonable attorneys’ fees incurred in canceling the lis pendens. (3) Unless the claimant establishes a substantial justification for filing the lis pendens, a claimant is liable to an aggrieved party who prevails in defense of the action in which the lis pendens was filed for actual damages caused by filing the lis pendens, and in the court’s discretion, reasonable attorneys’ fees and costs incurred in defending the action. [1994 c 155 § 1.] 4.28.330 4.28.330 Notice to alien property custodian. In any court or administrative action or proceeding within this state, involving property within this state or any interest therein, in which service of process is required to be made upon or notice thereof given to any person who is in a designated enemy country or enemy-occupied territory, in addition to the service of process upon or giving of notice to the person as required by any law, statute or rule applicable to the action or proceeding, a copy of the process or notice shall be sent by registered mail to the alien property custodian, Washington, District of Columbia. [1943 c 62 § 1; Rem. Supp. 1943 § 254-1.] 4.28.340 4.28.340 Notice to alien property custodian—Definitions. For the purposes of RCW 4.28.330 through 4.28.350: (2006 Ed.) Pleadings (1) "Person" includes any individual, partnership, association and corporation; (2) "Designated enemy country" means any foreign country as to which the United States has declared the existence of a state of war and any other country with which the United States is at war in the future; (3) "Enemy-occupied territory" means any place under the control of any designated enemy country or any place with which, by reason of the existence of a state of war, the United States does not maintain postal communication. [1943 c 62 § 2; Rem. Supp. 1943 § 254-2.] Chapter 4.36 plaintiff’s debt, if the same might have been set off in an action brought by those beneficially interested. [Code 1881 § 498; 1877 p 107 § 502; RRS § 267.] 4.32.130 4.32.130 Setoff in probate actions brought by personal representatives. In actions brought by executors and administrators, demands against their testators and intestates, and belonging to defendant at the time of their death, may be set off by the defendant in the same manner as if the action had been brought by and in the name of the deceased. [Code 1881 § 499; 1877 p 107 § 503; RRS § 268.] 4.28.350 4.28.350 Notice to alien property custodian—Duration. RCW 4.28.330 and 4.28.340 shall remain in force only so long as a state of war shall exist between the United States and the designated enemy country involved in the action or proceeding described in RCW 4.28.330. [1943 c 62 § 3; Rem. Supp. 1943 § 254-3.] 4.28.360 4.28.360 Personal injury action—Complaint not to include statement of damages—Request for statement. In any civil action for personal injuries, the complaint shall not contain a statement of the damages sought but shall contain a prayer for damages as shall be determined. A defendant in such action may at any time request a statement from the plaintiff setting forth separately the amounts of any special damages and general damages sought. Not later than fifteen days after service of such request to the plaintiff, the plaintiff shall have served the defendant with such statement. [1975-’76 2nd ex.s. c 56 § 2.] Severability—1975-’76 2nd ex.s. c 56: See note following RCW 4.16.350. Actions and procedure for injuries resulting from health care: Chapter 7.70 RCW. Verdict or award of future economic damages in personal injury or property damage action may provide for periodic payments: RCW 4.56.260. Chapter 4.32 Chapter 4.32 RCW PLEADINGS Sections 4.32.070 4.32.120 4.32.130 4.32.140 4.32.150 4.32.170 4.32.250 Objection may be taken by answer. Setoff against beneficiary of trust estate. Setoff in probate actions brought by personal representatives. Setoff in probate actions against personal representatives. Setoff must be pleaded. Answer may be stricken. Effect of minor defects in pleading. 4.32.140 4.32.140 Setoff in probate actions against personal representatives. In actions against executors and administrators and against trustees and others, sued in their representative character, the defendants may set off demands belonging to their testators or intestates or those whom they represent, in the same manner as the person so represented would have been entitled to set off the same, in an action against them. [Code 1881 § 501; 1877 p 107 § 505; RRS § 270.] 4.32.150 4.32.150 Setoff must be pleaded. To entitle a defendant to a setoff he must set the same forth in his answer. [Code 1881 § 502; 1877 p 108 § 506; RRS § 271.] 4.32.170 4.32.170 Answer may be stricken. Sham, frivolous and irrelevant answers and defenses may be stricken out on motion, and upon such terms as the court may in its discretion impose. [Code 1881 § 85; 1877 p 19 § 85; 1869 p 21 § 83; 1854 p 140 § 47; RRS § 275.] 4.32.250 4.32.250 Effect of minor defects in pleading. A notice or other paper is valid and effectual though the title of the action in which it is made is omitted, or it is defective either in respect to the court or parties, if it intelligently refers to such action or proceedings; and in furtherance of justice upon proper terms, any other defect or error in any notice or other paper or proceeding may be amended by the court, and any mischance, omission or defect relieved within one year thereafter; and the court may enlarge or extend the time, for good cause shown, within which by statute any act is to be done, proceeding had or taken, notice or paper filed or served, or may, on such terms as are just, permit the same to be done or supplied after the time therefor has expired. [1988 c 202 § 2; 1893 c 127 § 24; RRS § 250.] Rules of court: Cf. CR 6(b), RAP 5.2, 18.22. 4.32.070 4.32.070 Objection may be taken by answer. When any of the matters enumerated in *RCW 4.32.050 do not appear upon the face of the complaint, the objection may be taken by answer. [Code 1881 § 79; 1877 p 18 § 79; 1854 p 139 § 42; RRS § 261.] *Reviser’s note: RCW 4.32.050 was repealed by 1984 c 76 § 11. 4.32.120 4.32.120 Setoff against beneficiary of trust estate. If the plaintiff be a trustee to any other, or if the action be in a name of the plaintiff who has no real interest in the contract upon which the action is founded, so much of a demand existing against those whom the plaintiff represents or for whose benefit the action is brought, may be set off as will satisfy the (2006 Ed.) Severability—1988 c 202: See note following RCW 2.24.050. Chapter 4.36 Chapter 4.36 RCW GENERAL RULES OF PLEADING Sections 4.36.070 4.36.080 4.36.120 4.36.130 4.36.140 4.36.170 4.36.210 4.36.240 Pleading judgments. Conditions precedent, how pleaded. Libel or slander, how pleaded. Answer in justification and mitigation. Answer in action to recover property distrained. Material allegation defined. Variance in action to recover personal property. Harmless error disregarded. [Title 4 RCW—page 45] 4.36.070 Title 4 RCW: Civil Procedure 4.36.070 4.36.070 Pleading judgments. In pleading a judgment or other determination of a court or office of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction. [Code 1881 § 96; 1877 p 21 § 96; 1854 p 142 § 58; RRS § 287.] sion of personal property on a claim of being the owner thereof, shall fail to establish on trial such ownership, but shall prove that he is entitled to the possession thereof, by virtue of a special property therein, he shall not thereby be defeated of his action, but shall be permitted to amend, on reasonable terms his complaint, and be entitled to judgment according to the proof in the case. [Code 1881 § 108; 1877 p 23 § 108; 1869 p 27 § 106; 1856 p 10 § 11; RRS § 302.] Rules of court: Cf. CR 9(e). 4.36.240 Harmless error disregarded. The court shall, in every stage of an action, disregard any error or defect in pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect. [Code 1881 § 113; 1877 p 24 § 113; 1854 p 144 § 71; RRS § 307.] 4.36.240 4.36.080 4.36.080 Conditions precedent, how pleaded. In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts showing such performance. [Code 1881 § 97; 1877 p 21 § 97; 1854 p 142 § 59; RRS § 288.] Rules of court: Cf. RAP 2.4(a), 18.22. Chapter 4.40 Rules of court: Cf. CR 9(c). Chapter 4.40 RCW ISSUES Sections 4.36.120 4.36.120 Libel or slander, how pleaded. In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff, of the defamatory matter out of which the cause arose, but it shall be sufficient to state generally, that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish on trial that it was so published or spoken. [Code 1881 § 99; 1877 p 22 § 99; 1854 p 142 § 61; RRS § 292.] Rules of court: Cf. CR 8. 4.40.010 4.40.050 4.40.060 4.40.070 Issues defined—Kinds. Trial of issue of law. Trial of certain issues of fact—Jury. Trial of other issues of fact. 4.40.010 Issues defined—Kinds. Issues arise upon the pleadings when a fact or conclusion of law is maintained by one party and controverted by the other, they are of two kinds—first, of law; and second, of fact. [1893 c 127 § 28; Code 1881 § 200; 1877 p 42 § 204; 1854 p 163 § 179; RRS § 309.] 4.40.010 4.40.050 4.36.130 4.36.130 Answer in justification and mitigation. In an action mentioned in RCW 4.36.120, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages; and whether he proves the justification or not, he may give in evidence the mitigating circumstances. [Code 1881 § 100; 1877 p 22 § 100; 1854 p 143 § 62; RRS § 293.] 4.36.140 4.36.140 Answer in action to recover property distrained. In an action to recover the possession of property distrained doing damage, an answer that the defendant or person by whose command he acted, was lawfully possessed of the real property upon which the distress was made, and that the property distrained was at the time doing the damage thereon, shall be good, without setting forth the title to such real property. [Code 1881 § 101; 1877 p 22 § 101; 1854 p 143 § 63; RRS § 295.] 4.36.170 4.36.170 Material allegation defined. A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient. [Code 1881 § 104; 1877 p 22 § 104; 1854 p 143 § 65; RRS § 298.] 4.36.210 4.36.210 Variance in action to recover personal property. Where the plaintiff in an action to recover the posses[Title 4 RCW—page 46] 4.40.050 Trial of issue of law. An issue of law shall be tried by the court, unless it is referred as provided by the statutes relating to referees. [1893 c 127 § 32; Code 1881 § 204; 1877 p 42 § 208; 1854 p 164 § 183; RRS § 313.] Trial before referee: Chapter 4.48 RCW. 4.40.060 Trial of certain issues of fact—Jury. An issue of fact, in an action for the recovery of money only, or of specific real or personal property shall be tried by a jury, unless a jury is waived, as provided by law, or a reference ordered, as provided by statute relating to referees. [1893 c 127 § 33; Code 1881 § 204; 1877 p 42 § 208; 1873 p 52 § 206; 1869 p 50 § 208; 1854 p 164 § 183; RRS § 314.] 4.40.060 4.40.070 Trial of other issues of fact. Every other issue of fact shall be tried by the court, subject, however, to the right of the parties to consent, or of the court to order, that the whole issue, or any specific question of fact involved therein, be tried by a jury, or referred. [1893 c 127 § 34; RRS § 315.] 4.40.070 Chapter 4.44 Chapter 4.44 RCW TRIAL Sections 4.44.020 4.44.025 4.44.060 Notice of trial—Note of issue. Priority permitted for aged or ill parties in civil cases. Proceedings in trial by court—Findings deemed verdict. (2006 Ed.) Trial 4.44.070 4.44.080 4.44.090 4.44.095 4.44.110 4.44.120 4.44.130 4.44.140 4.44.150 4.44.160 4.44.170 4.44.180 4.44.190 4.44.210 4.44.220 4.44.230 4.44.240 4.44.250 4.44.260 4.44.270 4.44.280 4.44.290 4.44.300 4.44.310 4.44.330 4.44.340 4.44.350 4.44.360 4.44.370 4.44.380 4.44.390 4.44.410 4.44.420 4.44.440 4.44.450 4.44.460 4.44.470 4.44.480 4.44.490 4.44.500 Findings and conclusions, how made. Questions of law to be decided by court. Questions of fact for jury. Right to jury trial upon an issue of fact in an action at law. Jury fee part of taxable costs. Impanelling jury—Voir dire, challenge for cause—Number. Challenges—Kind and number. Peremptory challenges defined. Challenges for cause defined. General causes of challenge. Particular causes of challenge. Implied bias defined. Challenge for actual bias. Peremptory challenges, how taken. Order of taking challenges. Exceptions to challenges—Determination. Challenge determination. Challenge, exception, denial may be oral. Oath of jurors. View of premises by jury. Admonitions to jurors. Replacement juror procedure. Care of jury while deliberating. Expense of keeping jury. Discharge of jury without verdict. Effect of discharge of jury. Court recess while jury is out. Proceedings when jury have agreed. Manner of giving verdict. Number of jurors required to render verdict. Jury may be polled. General or special verdicts. Verdict in action for specific personal property. Inconsistency between special findings of fact and general verdict. Jury to assess amount of recovery. Receiving verdict and discharging jury. Court may fix amount of bond in civil actions. Deposits in court—Order. Deposits in court—Enforcement of order. Deposits in court—Custody of money deposited. District court, civil trial: Chapter 12.12 RCW. Juries crimes relating to: Chapter 9.51 RCW. generally: Chapter 2.36 RCW. 4.44.020 4.44.020 Notice of trial—Note of issue. At any time after the issues of fact are completed in any case by the service of complaint and answer or reply when necessary, as herein provided, either party may cause the issues of fact to be brought on for trial, by serving upon the opposite party a notice of trial at least three days before any day provided by rules of court for setting causes for trial, which notice shall give the title of the cause as in the pleadings, and notify the opposite party that the issues in such action will be brought on for trial at the time set by the court; and the party giving such notice of trial shall, at least five days before the day of setting such causes for trial file with the clerk of the court a note of issue containing the title of the action, the names of the attorneys and the date when the last pleading was served; and the clerk shall thereupon enter the cause upon the trial docket according to the date of the issue. In case an issue of law raised upon the pleadings is desired to be brought on for argument, either party shall, at least five days before the day set apart by the court under its rules for hearing issues of law, serve upon the opposite party a like notice of trial and furnish the clerk of the court with a note of issue as above provided, which note of issue shall specify that the issue to be tried is an issue of law; and the clerk of the court shall thereupon enter such action upon the motion docket of the court. (2006 Ed.) 4.44.110 When a cause has once been placed upon either docket of the court, if not tried or argued at the time for which notice was given, it need not be noticed for a subsequent session or day, but shall remain upon the docket from session to session or from law day to law day until final disposition or stricken off by the court. The party upon whom notice of trial is served may file the note of issue and cause the action to be placed upon the calendar without further notice. [2003 c 406 § 1; 1893 c 127 § 35; RRS § 319.] Rules of court: Cf. CR 40(a). 4.44.025 Priority permitted for aged or ill parties in civil cases. When setting civil cases for trial, unless otherwise provided by statute, upon motion of a party, the court may give priority to cases in which a party is frail and over seventy years of age, a party is afflicted with a terminal illness, or other good cause is shown for an expedited trial date. [2003 c 406 § 2; 1991 c 197 § 1.] 4.44.025 4.44.060 Proceedings in trial by court—Findings deemed verdict. The order of proceedings on a trial by the court shall be the same as provided in trials by jury. The finding of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reason as far as applicable, and a new trial granted. [Code 1881 § 247; 1877 p 51 § 251; 1869 p 60 § 251; RRS § 368.] 4.44.060 4.44.070 Findings and conclusions, how made. In any case tried upon the facts without a jury or with an advisory jury, any party may, when the evidence is closed, submit distinct and concise proposed findings of fact and conclusions of law. They may be written and handed to the court, or at the option of the court, oral, and entered in the record. [2003 c 406 § 3; Code 1881 § 222; 1877 p 47 § 226; 1869 p 56 § 226; RRS § 341.] 4.44.070 Rules of court: Cf. CR 52(a). 4.44.080 Questions of law to be decided by court. All questions of law including the admissibility of testimony, the facts preliminary to such admission, and the construction of statutes and other writings, and other rules of evidence, are to be decided by the court, and all discussions of law addressed to it. [Code 1881 § 223; 1877 p 47 § 227; 1869 p 56 § 227; RRS § 342.] 4.44.080 Rules of court: Cf. ER 104 and ER 1008. 4.44.090 Questions of fact for jury. All questions of fact other than those mentioned in RCW 4.44.080, shall be decided by the jury, and all evidence thereon addressed to them. [Code 1881 § 224; 1877 p 47 § 228; 1869 p 56 § 228; RRS § 343.] 4.44.090 Rules of court: Cf. ER 1008. Charging juries: State Constitution Art. 4 § 16. Right to trial by jury: State Constitution Art. 1 § 21; RCW 4.48.010. 4.44.095 Right to jury trial upon an issue of fact in an action at law. See RCW 4.48.010. 4.44.095 4.44.110 Jury fee part of taxable costs. The jury fee paid by the party demanding a trial by jury shall be a part of 4.44.110 [Title 4 RCW—page 47] 4.44.120 Title 4 RCW: Civil Procedure the taxable costs in such action. [1961 c 304 § 3; 1903 c 43 § 2; RRS § 317.] 4.44.120 4.44.120 Impanelling jury—Voir dire, challenge for cause—Number. When the action is called for trial, a panel of potential jurors shall be selected at random from the citizens summoned for jury service who have appeared and have not been excused. A voir dire examination of the panel shall be conducted for the purpose of discovering any basis for challenge for cause and to permit the intelligent exercise of peremptory challenges. Any necessary additions to the panel shall be selected at random from the list of qualified jurors. The jury shall consist of six persons, unless the parties in their written demand for jury demand that the jury be twelve in number or consent to a less number. The parties may consent to a jury less than six in number but not less than three, and such consent shall be entered in the record. [2003 c 406 § 4; 1996 c 40 § 1; 1972 ex.s. c 57 § 3; Code 1881 § 206; 1877 p 43 § 210; 1869 p 51 § 210; 1854 p 164 § 185; RRS § 323.] Rules of court: Cf. CR 48. Juries, district courts: Chapter 12.12 RCW. 4.44.130 4.44.130 Challenges—Kind and number. Either party may challenge the jurors. The challenge shall be to individual jurors, and be peremptory or for cause. Each party shall be entitled to three peremptory challenges. When there is more than one party on either side, the parties need not join in a challenge for cause; but, they shall join in a peremptory challenge before it can be made. If the court finds that there is a conflict of interests between parties on the same side, the court may allow each conflicting party up to three peremptory challenges. [1969 ex.s. c 37 § 1; Code 1881 § 207; 1877 p 43 § 211; 1854 p 165 § 186; RRS § 324.] 4.44.140 4.44.140 Peremptory challenges defined. A peremptory challenge is an objection to a juror for which no reason need be given, but upon which the court shall exclude the juror. [2003 c 406 § 5; Code 1881 § 208; 1877 p 43 § 212; 1869 p 51 § 212; RRS § 325.] 4.44.150 4.44.150 Challenges for cause defined. A challenge for cause is an objection to a juror, and may be either: (1) General; that the juror is disqualified from serving in any action; or (2) Particular; that the juror is disqualified from serving in the action on trial. [2003 c 406 § 6; Code 1881 § 209; 1877 p 43 § 213; 1869 p 51 § 213; RRS § 326.] 4.44.160 4.44.160 General causes of challenge. General causes of challenge are: (1) A want of any of the qualifications prescribed for a juror, as set out in RCW 2.36.070. (2) Unsoundness of mind, or such defect in the faculties of the mind, or organs of the body, as renders him or her incapable of performing the duties of a juror in any action. [1992 c 93 § 6; 1975 1st ex.s. c 203 § 2; Code 1881 § 210; 1877 p 44 § 214; 1869 p 52 § 214; RRS § 327.] Qualifications of jurors: RCW 2.36.070. [Title 4 RCW—page 48] 4.44.170 4.44.170 Particular causes of challenge. Particular causes of challenge are of three kinds: (1) For such a bias as when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this code as implied bias. (2) For the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias. (3) For the existence of a defect in the functions or organs of the body which satisfies the court that the challenged person is incapable of performing the duties of a juror in the particular action without prejudice to the substantial rights of the party challenging. [1975 1st ex.s. c 203 § 3; Code 1881 § 211; 1877 p 44 § 215; 1869 p 52 § 215; RRS § 329.] Reviser’s note: The word "code" appeared in Code 1881 § 211. Qualification of jurors: RCW 2.36.070. 4.44.180 4.44.180 Implied bias defined. A challenge for implied bias may be taken for any or all of the following causes, and not otherwise: (1) Consanguinity or affinity within the fourth degree to either party. (2) Standing in the relation of guardian and ward, attorney and client, master and servant or landlord and tenant, to a party; or being a member of the family of, or a partner in business with, or in the employment for wages, of a party, or being surety or bail in the action called for trial, or otherwise, for a party. (3) Having served as a juror on a previous trial in the same action, or in another action between the same parties for the same cause of action, or in a criminal action by the state against either party, upon substantially the same facts or transaction. (4) Interest on the part of the juror in the event of the action, or the principal question involved therein, excepting always, the interest of the juror as a member or citizen of the county or municipal corporation. [2003 c 406 § 7; Code 1881 § 212; 1877 p 44 § 216; 1869 p 52 § 216; 1854 p 165 § 187; RRS § 330.] 4.44.190 4.44.190 Challenge for actual bias. A challenge for actual bias may be taken for the cause mentioned in RCW 4.44.170(2). But on the trial of such challenge, although it should appear that the juror challenged has formed or expressed an opinion upon what he or she may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially. [2003 c 406 § 8; Code 1881 § 213; 1877 p 44 § 217; 1869 p 53 § 217; RRS § 331.] 4.44.210 4.44.210 Peremptory challenges, how taken. The jurors having been examined as to their qualifications, first by the plaintiff and then by the defendant, and passed for cause, the peremptory challenges shall be conducted as follows, to wit: (2006 Ed.) Trial The plaintiff may challenge one, and then the defendant may challenge one, and so alternately until the peremptory challenges shall be exhausted. During this alternating process, if one of the parties declines to exercise a peremptory challenge, then that party may no longer peremptorily challenge any of the jurors in the group for which challenges are then being considered and may only peremptorily challenge any jurors later added to that group. A refusal to challenge by either party in the said order of alternation shall not prevent the adverse party from using the full number of challenges. [2003 c 406 § 9; Code 1881 § 215; 1877 p 45 § 219; 1869 p 53 § 219; RRS § 333.] 4.44.220 4.44.220 Order of taking challenges. The challenges of either party shall be taken separately in the following order, including in each challenge all the causes of challenge belonging to the same class: (1) Challenges for cause. (2) Peremptory challenges. [2003 c 406 § 10; Code 1881 § 216; 1877 p 45 § 220; 1869 p 53 § 220; RRS § 334.] 4.44.230 4.44.230 Exceptions to challenges—Determination. The challenge may be excepted to by the adverse party for insufficiency, and if so, the court shall determine the sufficiency thereof, assuming the facts alleged therein to be true. The challenge may be denied by the adverse party, and if so, the court shall determine the facts and decide the issue. [2003 c 406 § 11; Code 1881 § 217; 1877 p 45 § 221; 1869 p 53 § 221; RRS § 335.] 4.44.330 jury to be conducted in a body, in the custody of a proper officer, to the place which shall be shown to them by the judge or by a person appointed by the court for that purpose. While the jury are thus absent no person other than the judge, or person so appointed, shall speak to them on any subject connected with the trial. [Code 1881 § 225; 1877 p 47 § 229; 1869 p 56 § 229; RRS § 344.] 4.44.280 4.44.280 Admonitions to jurors. The court may admonish the jurors that they must not discuss among themselves any subject connected with the trial until they begin their deliberations. The court may also admonish the jurors that they must not discuss with nonjurors any subject connected with the trial until the jurors have been dismissed from the case. [2003 c 406 § 15; 1957 c 7 § 5; Code 1881 § 226; 1877 p 47 § 230; 1869 p 56 § 230; RRS § 345.] Care of jury while deliberating: RCW 4.44.300. 4.44.290 4.44.290 Replacement juror procedure. If after the formation of the jury, and before verdict, a juror becomes unable to perform his or her duty, the court may discharge the juror. In that case, unless the parties agree to proceed with the other jurors: (1) An alternate juror may replace the discharged juror and the jury instructed to start their deliberations anew; (2) a new juror may be sworn and the trial begin anew; or (3) the jury may be discharged and a new jury then or afterwards formed. [2003 c 406 § 16; Code 1881 § 227; 1877 p 48 § 231; 1869 p 56 § 231; RRS § 347.] 4.44.300 4.44.240 4.44.240 Challenge determination. When facts are determined under RCW 4.44.230, the rules of evidence applicable to testimony offered upon the trial of an ordinary issue of fact shall govern. The juror challenged, or any other person otherwise competent may be examined as a witness by either party. If the challenge is sustained, the juror shall be dismissed from the case; otherwise, the juror shall be retained. [2003 c 406 § 12; Code 1881 § 218; 1877 p 45 § 222; 1869 p 54 § 222; RRS § 336.] 4.44.250 4.44.250 Challenge, exception, denial may be oral. The challenge, the exception, and the denial may be made orally. The judge shall enter the same upon the record, along with the substance of the testimony on either side. [2003 c 406 § 13; Code 1881 § 219; 1877 p 45 § 223; 1869 p 54 § 223; RRS § 337.] 4.44.300 Care of jury while deliberating. During deliberations, the jury may be allowed to separate unless good cause is shown, on the record, for sequestration of the jury. Unless the members of a deliberating jury are allowed to separate, they must be kept together in a room provided for them, or some other convenient place under the charge of one or more officers, until they agree upon their verdict, or are discharged by the court. The officer shall, to the best of his or her ability, keep the jury separate from other persons. The officer shall not allow any communication to be made to them, nor make any himself or herself, unless by order of the court, except to ask them if they have agreed upon their verdict, and the officer shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed on. [2003 c 406 § 17; Code 1881 § 229; 1877 p 48 § 233; 1869 p 57 § 233; 1854 p 166 § 194; RRS § 349.] Rules of court: Cf. CR 47(i), 51(h). 4.44.260 4.44.260 Oath of jurors. When the jury has been selected, an oath or affirmation shall be administered to the jurors, in substance that they and each of them, will well, and truly try, the matter in issue between the plaintiff and defendant, and a true verdict give, according to the law and evidence as given them on the trial. [2003 c 406 § 14; Code 1881 § 220; 1877 p 46 § 224; 1869 p 54 § 224; RRS § 338.] Oaths and mode of administering: State Constitution Art. 1 § 6. Admonitions to jury, separation: RCW 4.44.280. 4.44.310 4.44.310 Expense of keeping jury. If, while the jury are kept together, either during the progress of the trial or after their retirement for deliberation, the court orders them to be provided with suitable and sufficient food and lodging, they shall be so provided at the expense of the county. [2003 c 406 § 18; Code 1881 § 230; 1877 p 48 § 234; 1869 p 57 § 234; RRS § 350.] 4.44.270 4.44.270 View of premises by jury. Whenever in the opinion of the court it is proper that the jury should have a view of real property which is the subject of litigation, or of the place in which any material fact occurred, it may order the (2006 Ed.) 4.44.330 4.44.330 Discharge of jury without verdict. The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring their dis[Title 4 RCW—page 49] 4.44.340 Title 4 RCW: Civil Procedure charge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing. [Code 1881 § 233; 1877 p 48 § 237; 1869 p 58 § 237; RRS § 353.] 4.44.340 4.44.340 Effect of discharge of jury. In all cases where a jury are discharged or prevented from giving a verdict, by reason of accident or other cause, during the progress of the trial or after the cause is submitted to them, the action shall thereafter be for trial anew. [1891 c 60 § 2; Code 1881 § 234; 1877 p 49 § 238; 1869 p 58 § 238; RRS § 354.] 4.44.350 4.44.350 Court recess while jury is out. While the jury is absent the court may adjourn from time to time, in respect to other business, but it is nevertheless to be deemed open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged. [1957 c 9 § 2; Code 1881 § 235; 1877 p 49 § 239; 1869 p 58 § 239; 1854 p 166 § 197; RRS § 355.] 4.44.360 4.44.360 Proceedings when jury have agreed. When the jury have agreed upon their verdict they shall be conducted into court by the officer having them in charge. [2003 c 406 § 19; Code 1881 § 236; 1877 p 49 § 240; 1869 p 58 § 240; RRS § 356.] 4.44.370 4.44.370 Manner of giving verdict. The jurors shall be asked by the court or the clerk whether they have agreed upon their verdict, and if the presiding juror answers in the affirmative, the presiding juror shall submit the verdict to the court. [2003 c 406 § 20; Code 1881 § 237; 1877 p 49 § 241; 1869 p 58 § 241; RRS § 357.] 4.44.380 4.44.380 Number of jurors required to render verdict. In all trials by juries of six in the superior court, except criminal trials, when five of the jurors agree upon a verdict, the verdict so agreed upon shall be signed by the presiding juror, and the verdict shall stand as the verdict of the whole jury, and have all the force and effect of a verdict agreed to by six jurors. In cases where the jury is twelve in number, a verdict reached by ten shall have the same force and effect as described above, and the same procedures shall be followed. [2003 c 406 § 21; 1972 ex.s. c 57 § 4; 1895 c 36 § 1; RRS § 358.] Rules of court: See CR 49. 4.44.420 4.44.420 Verdict in action for specific personal property. In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant by his or her answer claims a return thereof, the jury shall assess the value of the property if their verdict be in favor of the plaintiff, or if they find in favor of the defendant and that the defendant is entitled to a return thereof, they may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property. [2003 c 406 § 23; Code 1881 § 241; 1877 p 50 § 245; 1869 p 59 § 245; 1854 p 167 § 199; RRS § 363.] 4.44.440 4.44.440 Inconsistency between special findings of fact and general verdict. When special findings of fact are inconsistent with the general verdict, the judge may enter judgment consistent with the findings of fact, may return the jurors to the jury room for further deliberations, or may order a new trial. [2003 c 406 § 24; Code 1881 § 243; 1877 p 50 § 247; 1869 p 60 § 247; 1854 p 167 § 201; RRS § 365.] Rules of court: Cf. CR 49(b). 4.44.450 4.44.450 Jury to assess amount of recovery. When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a setoff for the recovery of money is established beyond the amount of the plaintiff’s claim as established, the jury shall also assess the amount of the recovery; they may also, under the direction of the court, assess the amount of the recovery when the court gives judgment for a party on the pleadings. [2003 c 406 § 25; 1891 c 60 § 3; Code 1881 § 244; 1877 p 50 § 248; 1869 p 60 § 248; 1854 p 167 § 202; RRS § 366.] 4.44.460 4.44.460 Receiving verdict and discharging jury. If the court determines that the verdict meets the requirements contained in this chapter and in court rules, the clerk shall file the verdict. The verdict is then complete and the jury shall be discharged from the case. The verdict shall be in writing, and under the direction of the court shall be substantially entered in the record as of the day’s proceedings on which it was given. [2003 c 406 § 26; Code 1881 § 239; 1877 p 49 § 243; 1869 p 59 § 243; RRS § 361.] Trial by jury: State Constitution Art. 1 § 21. 4.44.470 4.44.390 4.44.390 Jury may be polled. After the verdict is announced, but before it is filed, the jury may be polled at the request of either party. Each juror may be asked whether the verdict is his or her individual verdict and whether the verdict is the jury’s collective verdict. If it appears that the verdict is insufficient because the required number of jurors have not reached agreement, the jurors may be returned to the jury room for further deliberation. [2003 c 406 § 22; 1972 ex.s. c 57 § 6; 1895 c 36 § 2; RRS § 359.] 4.44.410 4.44.410 General or special verdicts. The verdict of a jury is either general or special. [1984 c 76 § 4; Code 1881 § 240; 1877 p 49 § 244; 1869 p 59 § 244; 1854 p 167 § 198; RRS § 362.] [Title 4 RCW—page 50] 4.44.470 Court may fix amount of bond in civil actions. Whenever by statute a bond or other security is required for any purpose in an action or other proceeding in a court of record and if the party shall apply therefor, the court shall have power to prescribe the amount of the bond or other security notwithstanding any requirement of the statute; and in every such case money in an amount prescribed by the court may be deposited with the clerk in lieu of a bond. After a bond or other security shall have been given, the court in its discretion may require additional security either on its own motion or upon motion of an interested party or person. The courts shall exercise care to require adequate though not excessive security in every instance. [1927 c 272 § 1; RRS § 958-4.] Suretyship: Chapters 19.72, 48.28 RCW. (2006 Ed.) Trial Before Referee 4.44.480 4.44.480 Deposits in court—Order. When it is admitted by the pleading or examination of a party, that the party possesses or has control of any money, or other thing capable of delivery, which being the subject of the litigation, is held by him or her as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court. [2003 c 406 § 27; Code 1881 § 195; 1877 p 41 § 199; 1869 p 49 § 203; 1854 p 163 § 174; RRS § 745.] Rules of court: Cf. CR 67. 4.44.490 4.44.490 Deposits in court—Enforcement of order. Whenever, in the exercise of its authority, a court shall have ordered the deposit or delivery of money or other thing, and the order is disobeyed, the court, besides punishing the disobedience as for contempt, may make an order requiring the sheriff to take the money or thing, and deposit or deliver it, in conformity with the direction of the court. [Code 1881 § 196; 1877 p 41 § 200; 1869 p 49 § 200; 1854 p 163 § 175; RRS § 746.] Rules of court: Cf. CR 67. 4.44.500 4.44.500 Deposits in court—Custody of money deposited. Money deposited, or paid into a court in an action, shall not be loaned out, unless, with the consent of all parties having an interest in, or making claim to the same. [Code 1881 § 197; 1877 p 41 § 201; 1869 p 49 § 201; 1854 p 163 § 176; RRS § 747.] Rules of court: Cf. CR 67. Chapter 4.48 Chapter 4.48 RCW TRIAL BEFORE REFEREE Sections 4.48.010 4.48.020 4.48.030 4.48.040 4.48.050 4.48.060 4.48.070 4.48.080 4.48.090 4.48.100 4.48.110 4.48.120 4.48.130 Reference by consent—Right to jury trial—Referee may not preside—Parties’ written consent constitutes waiver of right. Reference without consent. To whom reference may be ordered. Qualifications of referees. Challenges to referees. Trial procedure—Powers of referee—Referee to provide clerical personnel. Referee’s report—Contents—Evidence, filing of, frivolous. Proceedings on filing of report. Judgment on referee’s report. Compensation of referee—Trial expense—Obligation of parties, when. Referee’s proposed report—Copies—Objections, etc.— Request for hearing—Final report—Additional items to be filed—Exception—Copies. Termination of referral—Judgment—Review of referee’s decision. Notice of trial before referee. 4.48.050 right. [1984 c 258 § 512; Code 1881 § 248; 1854 p 168 § 206; RRS § 369. Formerly RCW 4.44.100, part, and 4.48.010.] Rules of court: Cf. CR 38(a). Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 4.48.020 4.48.020 Reference without consent. Where the parties do not consent, the court may upon the application of either party, direct a reference in all cases formerly cognizable in chancery in which reference might be made: (1) When the trial of an issue of fact shall require the examination of a long account on either side, in which case the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or, (2) When the taking of an account shall be necessary for the information of the court, before judgment upon an issue of law, or for carrying a judgment or order into effect; or, (3) When a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of the action; or, (4) When it is necessary for the information of the court in a special proceeding. [1984 c 258 § 513; Code 1881 § 249; 1877 p 51 § 253; 1869 p 61 § 253; 1854 p 168 § 207; RRS § 370.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 4.48.030 4.48.030 To whom reference may be ordered. A reference may be ordered to any person or persons not exceeding three, agreed upon by the parties. If the reference is not agreed to by the parties, the court may appoint one or more persons, not exceeding three. [1984 c 258 § 514; Code 1881 § 250; 1877 p 51 § 254; 1869 p 61 § 254; 1854 p 168 § 208; RRS § 371.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 4.48.040 4.48.040 Qualifications of referees. A person appointed by the court as a referee or who serves as a referee with the consent of the parties shall be: (1) Qualified as a juror as provided by statute. (2) Competent as juror between the parties. (3) A duly admitted and practicing attorney. [1984 c 258 § 515; Code 1881 § 251; 1877 p 51 § 255; 1859 p 61 § 255; 1854 p 169 § 209; RRS § 372.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 4.48.010 4.48.010 Reference by consent—Right to jury trial— Referee may not preside—Parties’ written consent constitutes waiver of right. The court shall order all or any of the issues in a civil action, whether of fact or law, or both, referred to a referee upon the written consent of the parties which is filed with the clerk. Any party shall have the right in an action at law, upon an issue of fact, to demand a trial by jury. No referee appointed under this chapter may preside over a jury trial. The written consent of the parties constitutes a waiver of the right of trial by jury by any party having the (2006 Ed.) 4.48.050 4.48.050 Challenges to referees. If a referee is appointed by the court, each party shall have the same right to challenge the appointment. Challenges shall be made and determined in the same manner and with like effect as in the formation of juries, except that neither party shall be entitled to a peremptory challenge. [1984 c 258 § 516; Code 1881 § 252; 1877 p 52 § 256; 1869 p 61 § 256; RRS § 373.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. [Title 4 RCW—page 51] 4.48.060 Title 4 RCW: Civil Procedure 4.48.060 4.48.060 Trial procedure—Powers of referee—Referee to provide clerical personnel. (1) Subject to the limitations and directions prescribed in the order of reference, the trial conducted by a referee shall be conducted in the same manner as a trial by the court. Unless waived in whole or in part, the referee shall apply the rules of pleading, practice, procedure, and evidence used in the superior courts of this state. The referee shall have the same power to grant adjournments, administer oaths, preserve order, punish all violations thereof upon such trial, compel the attendance of witnesses, and to punish them for nonattendance or refusal to be sworn or testify, as is possessed by the court. (2) A referee appointed under RCW 4.48.010 shall provide clerical personnel necessary for the conduct of the proceeding, including a court reporter. [1984 c 258 § 517; Code 1881 § 253; 1877 p 52 § 257; 1869 p 62 § 257; 1854 p 169 § 210; RRS § 374.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 4.48.070 4.48.070 Referee’s report—Contents—Evidence, filing of, frivolous. The report of a referee appointed by the court under RCW 4.48.020 shall state the facts found, and when the order of reference includes an issue of law, it shall state the conclusions of law separately from the facts. The referee shall file with the report the evidence received upon the trial. If evidence offered by either party shall not be admitted on the trial and the party offering the same excepts to the decision rejecting such evidence at the time, the exceptions shall be noted by the referees and they shall take and receive such testimony and file it with the report. Whatever judgment the court may give upon the report, it shall, when it appears that such evidence was frivolous and inadmissible, require the party at whose instance it was taken and reported, to pay all costs and disbursements thereby incurred. [1984 c 258 § 518; Code 1881 § 254; 1877 p 52 § 258; 1869 p 62 § 258; 1854 p 169 § 210; RRS § 375.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 4.48.080 4.48.080 Proceedings on filing of report. The report of a referee appointed by the court under RCW 4.48.020 shall be filed with the clerk within twenty days after the trial concludes. Either party may, within such time as may be prescribed by the rules of court, or by special order, move to set the same aside, or for judgment thereon, or such order or proceeding as the nature of the case may require. [1984 c 258 § 519; 1957 c 9 § 3; Code 1881 § 255; 1877 p 52 § 259; 1869 p 62 § 259; RRS § 376.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 4.48.090 4.48.090 Judgment on referee’s report. The court may affirm or set aside the report of a referee appointed under RCW 4.48.020 either in whole or in part. If it affirms the report it shall give judgment accordingly. If the report be set aside, either in whole or in part, the court may make another order of reference as to all or so much of the report as is set aside, to the original referees or others, or it may find the facts and determine the law itself and give judgment accordingly. Upon a motion to set aside a report, the conclusions thereof [Title 4 RCW—page 52] shall be deemed and considered as the verdict of the jury. [1984 c 258 § 520; Code 1881 § 256; 1877 p 52 § 260; 1869 p 62 § 260; RRS § 377.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 4.48.100 4.48.100 Compensation of referee—Trial expense— Obligation of parties, when. (1) The compensation of a referee appointed under RCW 4.48.020 shall be the same as that established for a superior court judge pro tempore under RCW 2.08.180. (2) If a referee is appointed pursuant to RCW 4.48.010, the referee’s compensation shall be at the rate prescribed by subsection (1) of this section, unless otherwise agreed to by the parties. (3) Payment of the compensation of a referee appointed under RCW 4.48.010 and the expense of the trial before the referee shall be the obligation of the parties. The obligation shall be borne equally unless the parties agree to a different allocation. [1984 c 258 § 524; Code 1881 § 514; 1877 p 109 § 518; 1854 p 202 § 376; RRS § 483.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Supplemental proceedings, fees of referees: RCW 6.32.280. 4.48.110 4.48.110 Referee’s proposed report—Copies— Objections, etc.—Request for hearing—Final report— Additional items to be filed—Exception—Copies. (1) Within twenty days after the conclusion of a trial before a referee appointed under RCW 4.48.010, unless a later time is agreed to by the parties, the referee shall mail to each party a copy of the referee’s proposed written report. The proposed report shall contain the findings of fact and conclusions of law by the referee and the judgment of the referee. (2) Within ten days after receipt of the copy of the proposed report, any party may serve written objections and suggested modifications or corrections to the proposed report on the referee and the other parties. The referee shall without delay consider the objections and suggestions and prepare a final written report. If requested by any party, the referee shall conduct a hearing on the proposed report and any suggested corrections or modifications before preparing the final written report. (3) Upon completion of the final written report, the referee shall file with the clerk of the superior court: (a) Copies of all original papers in the action filed with the referee; (b) Exhibits offered and received or rejected during the trial; (c) The transcript of the proceedings in the trial; and (d) The final written report containing the findings of fact and conclusions of law by the referee and the judgment of the referee. (4) The presiding judge of the superior court may allow the referee to file the final written report under subsection (3) of this section without any of the items listed in subsection (3) (a) through (c) of this section. However, the presiding judge shall require the referee to file those items if a timely notice of appeal of the judgment is filed. (2006 Ed.) Agreed Cases (5) When the referee files the written report under subsection (3) of this section, the referee shall also mail to each party a copy of the report. [1984 c 258 § 521.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 4.56.060 4.52.020 4.52.020 Judgment to be rendered as in other cases. Judgment shall be entered in the judgment book as in other cases, but without costs for any proceedings prior to the trial. The case, the submission and a copy of the judgment shall constitute the judgment roll. [Code 1881 § 299; 1877 p 61 § 303; 1869 p 74 § 301; RRS § 379.] 4.48.120 4.48.120 Termination of referral—Judgment— Review of referee’s decision. (1) Upon receipt by the clerk of the court of the final written report filed under RCW 4.48.110, the referral of the action shall terminate and the presiding judge of the superior court shall order the judgment contained in the report entered as the judgment of the court in the action. Subsequent motions and other post trial proceedings in the action may be conducted and disposed of by the referee upon order of the presiding judge, in the discretion of the presiding judge, or may otherwise be assigned by the presiding judge. (2) The decision of a referee entered as provided in this section may be reviewed in the same manner as if the decision was made by the court. [1984 c 258 § 522.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 4.48.130 4.48.130 Notice of trial before referee. (1) If an action is to be tried by a referee appointed under RCW 4.48.010, at least five days before the date set for the trial the referee shall advise the clerk of the court of the time and place set for the trial. The clerk shall post in a conspicuous place in the courthouse a notice that includes the names of the parties to the action, the time and place set for the trial, the name of the referee, and a statement that the proceeding is being held before a referee agreed to by the parties under chapter 4.48 RCW. (2) A person interested in attending a trial before a referee appointed under RCW 4.84.010 [4.48.010] is entitled to do so as in a trial of a civil action in superior court. Upon request by any person, the referee shall give the person notice of the time and place set for the trial. [1984 c 258 § 523.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 4.52.030 4.52.030 Enforcement of judgment—Appeal. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be in the same manner subject to appeal. [Code 1881 § 300; 1877 p 61 § 304; 1869 p 74 § 302; RRS § 380.] Chapter 4.56 Chapter 4.56 RCW JUDGMENTS—GENERALLY Sections 4.56.050 4.56.060 4.56.070 4.56.075 4.56.080 4.56.090 4.56.100 4.56.110 4.56.115 4.56.120 4.56.150 4.56.190 4.56.200 4.56.210 4.56.250 4.56.260 Effect of judgment against executor or administrator. Judgment in case of setoff—When equal or less than plaintiff’s debt. Judgment in case of setoff—When exceeds plaintiff’s debt— Effect of contract assignment. Judgment in case of setoff—When exceeds plaintiff’s debt or affirmative relief required. Judgment in action to recover personal property. Assignment of judgment—Filing. Satisfaction of judgments for payment of money. Interest on judgments. Interest on judgments against state, political subdivisions or municipal corporations—Torts. Judgment of dismissal or nonsuit, grounds, effect—Other judgments on merits. Challenge to legal sufficiency of evidence—Judgment in bar or of nonsuit. Lien of judgment. Commencement of lien on real estate. Cessation of lien—Extension prohibited—Exception. Claims for noneconomic damages—Limitation. Award of future economic damages—Proposal for periodic payments—Security—Satisfaction of judgment. Enforcement of judgments: Title 6 RCW. Judgments, financial support of child: RCW 13.34.161. Liens, cessation, financial support of child: RCW 13.34.161. Pleading judgments: RCW 4.36.070. Time limit for decision: State Constitution Art. 4 § 20. Chapter 4.52 Chapter 4.52 RCW Verdict or award of future economic damages in personal injury or property damage action may provide for periodic payments: RCW 4.56.260. AGREED CASES 4.56.050 Sections 4.52.010 4.52.020 4.52.030 4.52.010 Controversy may be submitted without action. Judgment to be rendered as in other cases. Enforcement of judgment—Appeal. 4.52.010 Controversy may be submitted without action. Parties to a question in difference which might be the subject of a civil action may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceedings in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case and render judgment thereon as if an action were pending. [Code 1881 § 298; 1877 p 61 § 302; 1869 p 73 § 300; RRS § 378.] (2006 Ed.) 4.56.050 Effect of judgment against executor or administrator. When a setoff shall be established in an action brought by executors or administrators, and a balance found due to the defendant, the judgment rendered thereon against the plaintiff shall have the same effect as if the action had been originally commenced by the defendant. [Code 1881 § 500; 1877 p 107 § 504; RRS § 269.] Rules of court: Cf. CR 54(b). 4.56.060 4.56.060 Judgment in case of setoff—When equal or less than plaintiff’s debt. If the amount of the setoff, duly established, be equal to the plaintiff’s debt or demand, judgment shall be rendered that the plaintiff take nothing by his action; if it be less than the plaintiff’s debt or demand, the plaintiff shall have judgment for the residue only. [Code 1881 § 503; 1877 p 108 § 507; RRS § 271 1/2.] Rules of court: Cf. CR 54(b). [Title 4 RCW—page 53] 4.56.070 Title 4 RCW: Civil Procedure 4.56.070 4.56.070 Judgment in case of setoff—When exceeds plaintiff’s debt—Effect of contract assignment. If there be found a balance due from the plaintiff in the action to the defendant, judgment shall be rendered in favor of the defendant for the amount thereof, but no such judgment shall be rendered against the plaintiff when the contract, which is the subject of the action, shall have been assigned before the commencement of such action, nor for any balance due from any other person than the plaintiff in the action. [Code 1881 § 504; 1877 p 108 § 508; RRS § 272. FORMER PART OF SECTION: Code 1881 § 303; RRS § 433 now codified as RCW 4.56.075.] Rules of court: Cf. CR 54(b). 4.56.075 4.56.075 Judgment in case of setoff—When exceeds plaintiff’s debt or affirmative relief required. If a setoff established at the trial, exceeds the plaintiff’s demand so established, judgment for the defendant shall be given for the excess; or if it appears that the defendant is entitled to any affirmative relief, judgment shall be given accordingly. [Code 1881 § 303; 1877 p 62 § 307; 1869 p 74 § 305; 1854 p 173 § 231; RRS § 433. Formerly RCW 4.56.070, part.] Rules of court: Cf. CR 54(b). authority to note the satisfaction of judgments for criminal and juvenile legal financial obligations when the clerk’s record indicates payment in full or as directed by the court. Every satisfaction of judgment and every partial satisfaction of judgment which provides for the payment of money shall clearly designate the judgment creditor and his or her attorney if any, the judgment debtor, the amount or type of satisfaction, whether the satisfaction is full or partial, the cause number, and the date of entry of the judgment. A certificate by such clerk of the entry of such satisfaction by him or her may be filed in the office of the clerk of any county in which an abstract of such judgment has been filed. When so satisfied by the clerk or the filing of such certificate the lien of such judgment shall be discharged. (2) The department of social and health services shall file a satisfaction of judgment for welfare fraud conviction if a person does not pay money through the clerk as required under subsection (1) of this section. [2003 c 379 § 23; 1997 c 358 § 4; 1994 c 185 § 1; 1983 c 28 § 1; 1929 c 60 § 6; RRS § 454. Prior: 1893 c 42 § 7.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Intent—Purpose—2003 c 379 §§ 13-27: See note following RCW 9.94A.760. 4.56.080 4.56.080 Judgment in action to recover personal property. In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or value thereof, in case a delivery cannot be had, and damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. [Code 1881 § 304; 1877 p 62 § 308; 1869 p 75 § 306; 1854 p 173 § 232; RRS § 434.] 4.56.090 4.56.090 Assignment of judgment—Filing. When any judgment has been assigned, the assignment may be filed in the office of the county clerk in the county where the judgment is recorded and a certified copy thereof may be filed in any county where an abstract of such judgment has been filed and from the time of such filing shall be notice of such assignment: PROVIDED, That such assignment of a judgment or such certified copy thereof, may not be filed unless it is properly acknowledged before an officer qualified by law to take acknowledgment of deeds. [1935 c 22 § 1, part; 1929 c 60 § 5, part; RRS § 447. Prior: 1893 c 42 § 6.] 4.56.100 4.56.100 Satisfaction of judgments for payment of money. (1) When any judgment for the payment of money only shall have been paid or satisfied, the clerk of the court in which such judgment was rendered shall note upon the record in the execution docket satisfaction thereof giving the date of such satisfaction upon either the payment to such clerk of the amount of such judgment, costs and interest and any accrued costs by reason of the issuance of any execution, or the filing with such clerk of a satisfaction entitled in such action and identifying the same executed by the judgment creditor or his or her attorney of record in such action or his or her assignee acknowledged as deeds are acknowledged. The clerk has the [Title 4 RCW—page 54] 4.56.110 4.56.110 Interest on judgments. Interest on judgments shall accrue as follows: (1) Judgments founded on written contracts, providing for the payment of interest until paid at a specified rate, shall bear interest at the rate specified in the contracts: PROVIDED, That said interest rate is set forth in the judgment. (2) All judgments for unpaid child support that have accrued under a superior court order or an order entered under the administrative procedure act shall bear interest at the rate of twelve percent. (3) Judgments founded on the tortious conduct of individuals or other entities, whether acting in their personal or representative capacities, shall bear interest from the date of entry at two percentage points above the equivalent coupon issue yield, as published by the board of governors of the federal reserve system, of the average bill rate for twenty-six week treasury bills as determined at the first bill market auction conducted during the calendar month immediately preceding the date of entry. In any case where a court is directed on review to enter judgment on a verdict or in any case where a judgment entered on a verdict is wholly or partly affirmed on review, interest on the judgment or on that portion of the judgment affirmed shall date back to and shall accrue from the date the verdict was rendered. (4) Except as provided under subsections (1), (2), and (3) of this section, judgments shall bear interest from the date of entry at the maximum rate permitted under RCW 19.52.020 on the date of entry thereof. In any case where a court is directed on review to enter judgment on a verdict or in any case where a judgment entered on a verdict is wholly or partly affirmed on review, interest on the judgment or on that portion of the judgment affirmed shall date back to and shall accrue from the date the verdict was rendered. The method for determining an interest rate prescribed by this subsection is also the method for determining the "rate applicable to civil judgments" for purposes of RCW 10.82.090. [2004 c 185 § (2006 Ed.) Judgments—Generally 2; 1989 c 360 § 19; 1983 c 147 § 1; 1982 c 198 § 1; 1980 c 94 § 5; 1969 c 46 § 1; 1899 c 80 § 6; 1895 c 136 § 4; RRS § 457.] Application—Interest accrual—2004 c 185: See note following RCW 4.56.115. Application—1983 c 147: "The 1983 amendments of RCW 4.56.110 and 4.56.115 apply only to judgments entered after July 24, 1983." [1983 c 147 § 3.] Effective date—1980 c 94: See note following RCW 4.84.250. 4.56.115 4.56.115 Interest on judgments against state, political subdivisions or municipal corporations—Torts. Judgments founded on the tortious conduct of the state of Washington or of the political subdivisions, municipal corporations, and quasi municipal corporations of the state, whether acting in their governmental or proprietary capacities, shall bear interest from the date of entry at two percentage points above the equivalent coupon issue yield (as published by the board of governors of the federal reserve system) of the average bill rate for twenty-six week treasury bills as determined at the first bill market auction conducted during the calendar month immediately preceding the date of entry thereof. In any case where a court is directed on review to enter judgment on a verdict or in any case where a judgment entered on a verdict is wholly or partly affirmed on review, interest on the judgment or on that portion of the judgment affirmed shall date back to and shall accrue from the date the verdict was rendered. [2004 c 185 § 1; 1983 c 147 § 2; 1975 c 26 § 1.] Application—Interest accrual—2004 c 185: "The rate of interest required by sections 1 and 2(3), chapter 185, Laws of 2004 applies to the accrual of interest: (1) As of the date of entry of judgment with respect to a judgment that is entered on or after June 10, 2004; (2) As of June 10, 2004, with respect to a judgment that was entered before June 10, 2004, and that is still accruing interest on June 10, 2004." [2004 c 185 § 3.] Application—1983 c 147: See note following RCW 4.56.110. 4.56.120 4.56.120 Judgment of dismissal or nonsuit, grounds, effect—Other judgments on merits. An action in the superior court may be dismissed by the court and a judgment of nonsuit rendered in the following cases: (1) Upon the motion of the plaintiff, (a) when the case is to be or is being tried before a jury, at any time before the court announces its decision in favor of the defendant upon a challenge to the legal sufficiency of the evidence, or before the jury retire to consider their verdict, (b) when the action, whether for legal or equitable relief, is to be or is being tried before the court without a jury, at any time before the court has announced its decision: PROVIDED, That no action shall be dismissed upon the motion of the plaintiff, if the defendant has interposed a setoff as a defense, or seeks affirmative relief growing out of the same transaction, or sets up a counterclaim, either legal or equitable, to the specific property or thing which is the subject matter of the action. (2) Upon the motion of either party, upon the written consent of the other. (3) When the plaintiff fails to appear at the time of trial and the defendant appears and asks for a dismissal. (4) Upon its own motion, when, upon the trial and before the final submission of the case, the plaintiff abandons it. (2006 Ed.) 4.56.190 (5) Upon its own motion, on the refusal or neglect of the plaintiff to make the necessary parties defendants, after having been ordered so to do by the court. (6) Upon the motion of some of the defendants, when there are others whom the plaintiff fails to prosecute with diligence. (7) Upon its own motion, for disobedience of the plaintiff to an order of the court concerning the proceedings in the action. (8) Upon the motion of the defendant, when, upon the trial, the plaintiff fails to prove some material fact or facts necessary to sustain his action, as alleged in his complaint. When judgment of nonsuit is given, the action is dismissed, but such judgment shall not have the effect to bar another action for the same cause. In every case, other than those mentioned in this section, the judgment shall be rendered upon the merits and shall bar another action for the same cause. [1929 c 89 § 1; RRS §§ 408, 409, 410. Formerly RCW 4.56.120, 4.56.130, and 4.56.140. Prior: Code 1881 §§ 286, 287, 288; 1877 p 58 §§ 290, 291, 292; 1869 p 69 §§ 288, 289, 290; 1854 p 171 §§ 223, 224.] Rules of court: Cf. CR 41(a), (b). 4.56.150 4.56.150 Challenge to legal sufficiency of evidence— Judgment in bar or of nonsuit. In all cases tried in the superior court with a jury, the defendant, at the close of the plaintiff’s evidence, or either party, at the close of all the evidence, may challenge the legal sufficiency of the evidence to warrant a verdict in favor of the adverse party, and if the court shall decide as a matter of law the evidence does not warrant a verdict, it shall thereupon discharge the jury from further consideration of the case and enter a judgment in accordance with its decision, which judgment if it be in favor of the defendant shall be a bar to another action by the plaintiff for the same cause: PROVIDED, That in case the defendant challenge the legal sufficiency of the evidence at the close of plaintiff’s case, and the court shall decide that it is insufficient merely for failure of proof of some material fact, or facts, and that there is reasonable ground to believe that such proof can be supplied in a subsequent action, the court may discharge the jury and enter a judgment of nonsuit as provided in RCW 4.56.120: AND PROVIDED, FURTHER, That nothing in this section shall be construed to authorize the court to discharge the jury and determine disputed questions of fact. [1929 c 89 § 2; 1895 c 40 § 1; RRS § 410-1.] Rules of court: Cf. CR 50(a). 4.56.190 4.56.190 Lien of judgment. The real estate of any judgment debtor, and such as the judgment debtor may acquire, not exempt by law, shall be held and bound to satisfy any judgment of the district court of the United States rendered in this state and any judgment of the supreme court, court of appeals, superior court, or district court of this state, and every such judgment shall be a lien thereupon to commence as provided in RCW 4.56.200 and to run for a period of not to exceed ten years from the day on which such judgment was entered unless the ten-year period is extended in accordance with RCW 6.17.020(3). As used in this chapter, real estate shall not include the vendor’s interest under a real estate contract for judgments rendered after August 23, 1983. [Title 4 RCW—page 55] 4.56.200 Title 4 RCW: Civil Procedure If a judgment debtor owns real estate, subject to execution, jointly or in common with any other person, the judgment shall be a lien on the interest of the defendant only. Personal property of the judgment debtor shall be held only from the time it is actually levied upon. [1994 c 189 § 3. Prior: 1987 c 442 § 1103; 1987 c 202 § 116; 1983 1st ex.s. c 45 § 5; 1980 c 105 § 3; 1971 c 81 § 16; 1929 c 60 § 1; RRS § 445; prior: 1893 c 42 § 9; Code 1881 § 321; 1869 p 78 § 317; 1860 p 51 § 234; 1857 p 11 § 15; 1854 p 175 § 240.] Application—1987 c 442 § 1103: "The amendment of RCW 4.56.190 by this act applies only to judgments entered after July 26, 1987." [1987 c 442 § 1104.] Intent—1987 c 202: See note following RCW 2.04.190. Application—1980 c 105: See note following RCW 4.16.020. Repeal and saving—1929 c 60: "That chapter XXVIII (28), sections 320, 321, 322, and chapter XXIX (29), sections 323 and 324, and section 753 of the Code of Washington Territory of 1881; an act entitled ’An Act relating to the filing and recording of transcripts of judgments rendered in this state by the district or circuit courts of the United States’, approved February 19, 1890, Laws of 1889/90, pages 97 to 98; section 5 of chapter XXXVIII (38) of the Laws of 1891, pages 77 to 78; chapter LXXXIV (84) of the Laws of 1891, pages 165 to 166; chapter XLII (42) of the Laws of 1893 pages 65 to 67, and chapter XXXIX (39) of the Laws of 1897, pages 52 to 53, chapter XI of the Laws of 1897, page 10, (sections 445, 446, 447, 450, 451, 452, 453, 454, 455, 456, 458, 459, 460, 461, 462 and 463 of Remington’s Compiled Statutes; sections 8111, 8112, 8113, 8114, 8115, 8116, 8117, 8118, 8119, 8120, 8121, 8125, 8126, 8163, 8164 and 8165 of Pierce’s Code) are hereby repealed: PROVIDED, That such repeal shall not be construed as affecting any rights acquired or the validity of any act done or proceeding had or pending under the provisions of any of said acts repealed." [1929 c 60 § 9.] Entry of judgments—Superior court—District court—Small claims: RCW 6.01.020. Execution of judgments: RCW 6.17.020. 4.56.200 4.56.200 Commencement of lien on real estate. The lien of judgments upon the real estate of the judgment debtor shall commence as follows: (1) Judgments of the district court of the United States rendered or filed in the county in which the real estate of the judgment debtor is situated, and judgments of the superior court for the county in which the real estate of the judgment debtor is situated, from the time of the entry or filing thereof; (2) Judgments of the district court of the United States rendered in any county in this state other than that in which the real estate of the judgment debtor to be affected is situated, judgments of the supreme court of this state, judgments of the court of appeals of this state, and judgments of the superior court for any county other than that in which the real estate of the judgment debtor to be affected is situated, from the time of the filing of a duly certified abstract of such judgment with the county clerk of the county in which the real estate of the judgment debtor to be affected is situated, as provided in this act; (3) Judgments of a district court of this state rendered or filed as a foreign judgment in a superior court in the county in which the real estate of the judgment debtor is situated, from the time of the filing of a duly certified transcript of the docket of the district court with the county clerk of the county in which such judgment was rendered or filed, and upon such filing said judgment shall become to all intents and purposes a judgment of the superior court for said county; and (4) Judgments of a district court of this state rendered or filed in a superior court in any other county in this state than that in which the real estate of the judgment debtor to be [Title 4 RCW—page 56] affected is situated, a transcript of the docket of which has been filed with the county clerk of the county where such judgment was rendered or filed, from the time of filing, with the county clerk of the county in which the real estate of the judgment debtor to be affected is situated, of a duly certified abstract of the record of said judgment in the office of the county clerk of the county in which the certified transcript of the docket of said judgment of said district court was originally filed. [2002 c 261 § 3; 1987 c 202 § 117; 1971 c 81 § 17; 1929 c 60 § 2; RRS § 445-1.] Reviser’s note: The words at the end of subsection (2) reading "as provided in this act" appeared in chapter 60, Laws of 1929 which is codified as RCW 4.56.090, 4.56.100, 4.56.190 through 4.56.210, 4.64.070, 4.64.090, 4.64.110, and 4.64.120. Intent—1987 c 202: See note following RCW 2.04.190. Entry of verdict in execution docket—Effect—Cessation of lien: RCW 4.64.020, 4.64.100. 4.56.210 4.56.210 Cessation of lien—Extension prohibited— Exception. (1) Except as provided in subsections (2) and (3) of this section, after the expiration of ten years from the date of the entry of any judgment heretofore or hereafter rendered in this state, it shall cease to be a lien or charge against the estate or person of the judgment debtor. No suit, action or other proceeding shall ever be had on any judgment rendered in this state by which the lien shall be extended or continued in force for any greater or longer period than ten years. (2) An underlying judgment or judgment lien entered after *the effective date of this act for accrued child support shall continue in force for ten years after the eighteenth birthday of the youngest child named in the order for whom support is ordered. All judgments entered after *the effective date of this act shall contain the birth date of the youngest child for whom support is ordered. (3) A lien based upon an underlying judgment continues in force for an additional ten-year period if the period of execution for the underlying judgment is extended under RCW 6.17.020. [1995 c 75 § 1; 1989 c 360 § 2; 1979 ex.s. c 236 § 1; 1929 c 60 § 7; RRS §§ 459, 460. Formerly RCW 4.56.210 and 4.56.220. Prior: 1897 c 39 §§ 1, 2.] *Reviser’s note: This act [1989 c 360] has three effective dates. Sections 9, 10, and 16 are effective May 12, 1989, section 39 is effective July 1, 1990, and the remainder of this act is effective July 23, 1989. Entry of judgments—Superior court—District court—Small claims: RCW 6.01.020. 4.56.250 4.56.250 Claims for noneconomic damages—Limitation. (1) As used in this section, the following terms have the meanings indicated unless the context clearly requires otherwise. (a) "Economic damages" means objectively verifiable monetary losses, including medical expenses, loss of earnings, burial costs, loss of use of property, cost of replacement or repair, cost of obtaining substitute domestic services, loss of employment, and loss of business or employment opportunities. (b) "Noneconomic damages" means subjective, nonmonetary losses, including, but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputa(2006 Ed.) Judgment by Confession tion and humiliation, and destruction of the parent-child relationship. (c) "Bodily injury" means physical injury, sickness, or disease, including death. (d) "Average annual wage" means the average annual wage in the state of Washington as determined under RCW 50.04.355. (2) In no action seeking damages for personal injury or death may a claimant recover a judgment for noneconomic damages exceeding an amount determined by multiplying 0.43 by the average annual wage and by the life expectancy of the person incurring noneconomic damages, as the life expectancy is determined by the life expectancy tables adopted by the insurance commissioner. For purposes of determining the maximum amount allowable for noneconomic damages, a claimant’s life expectancy shall not be less than fifteen years. The limitation contained in this subsection applies to all claims for noneconomic damages made by a claimant who incurred bodily injury. Claims for loss of consortium, loss of society and companionship, destruction of the parent-child relationship, and all other derivative claims asserted by persons who did not sustain bodily injury are to be included within the limitation on claims for noneconomic damages arising from the same bodily injury. (3) If a case is tried to a jury, the jury shall not be informed of the limitation contained in subsection (2) of this section. [1986 c 305 § 301.] Reviser’s note: As to the constitutionality of this section, see Sofie v. Fibreboard Corp., 112 Wn.2d 636 (1989). Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. 4.56.260 4.56.260 Award of future economic damages—Proposal for periodic payments—Security—Satisfaction of judgment. (1) In an action based on fault seeking damages for personal injury or property damage in which a verdict or award for future economic damages of at least one hundred thousand dollars is made, the court or arbitrator shall, at the request of a party, enter a judgment which provides for the periodic payment in whole or in part of the future economic damages. With respect to the judgment, the court or arbitrator shall make a specific finding as to the dollar amount of periodic payments intended to compensate the judgment creditor for the future economic damages. (2) Prior to entry of judgment, the court shall request each party to submit a proposal for periodic payment of future economic damages to compensate the claimant. Proposals shall include provisions for: The name of the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, the number of payments or the period of time over which the payments shall be made, modification for hardship or unforeseen circumstances, posting of adequate security, and any other factor the court deems relevant under the circumstances. After each party has submitted a proposal, the court shall select the proposal, with any changes the court deems proper, which in the discretion of the court and the interests of justice best provides for the future needs of the claimant and enter judgment accordingly. (3) If the court enters a judgment for periodic payments and any security required by the judgment is not posted (2006 Ed.) 4.60.030 within thirty days, the court shall enter a judgment for the payment of future damages in a lump sum. (4) If at any time following entry of judgment for periodic payments, a judgment debtor fails for any reason to make a payment in a timely fashion according to the terms of the judgment, the judgment creditor may petition the court for an order requiring payment by the judgment debtor of the outstanding payments in a lump sum. In calculating the amount of the lump sum judgment, the court shall total the remaining periodic payments due and owing to the judgment creditor converted to present value. The court may also require payment of interest on the outstanding judgment. (5) Upon the death of the judgment creditor, the court which rendered the original judgment may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages. Money damages awarded for loss of future earnings shall not be reduced or payments terminated by reason of the death of the judgment creditor. (6) Upon satisfaction of a periodic payment judgment, any obligation of the judgment debtor to make further payments shall cease and any security posted pursuant to this section shall revert to the judgment debtor. [1986 c 305 § 801.] Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. Chapter 4.60 Chapter 4.60 RCW JUDGMENT BY CONFESSION Sections 4.60.010 4.60.020 4.60.030 4.60.040 4.60.050 4.60.060 4.60.070 Judgment on confession authorized. Confession by public and private corporations and minors. Confession by person jointly liable. Confession, how made. Judgment by confession without suit. Statement in writing—Requisites. Judgment on confession—Entry—Execution. Damages, assessment without answer: RCW 4.28.290. 4.60.010 4.60.010 Judgment on confession authorized. On the confession of the defendant, with the assent of the plaintiff or his attorney, judgment may be given against the defendant in any action before or after answer, for any amount or relief not exceeding or different from that demanded in the complaint. [Code 1881 § 291; 1877 p 60 § 295; 1869 p 72 § 293; 1854 p 172 §§ 226-228; RRS § 413.] 4.60.020 4.60.020 Confession by public and private corporations and minors. When the action is against the state, a county or other public corporation therein, or a private corporation, or a minor, the confession shall be made by the person who at the time sustains the relation to such state, corporation, county or minor, as would authorize the service of a notice [summons] upon him; or in the case of a minor, if a guardian for the action has been appointed, then by such guardian; in all other cases the confession shall be made by the defendant in person. [Code 1881 § 292; 1877 p 60 § 296; 1869 p 72 § 294; RRS § 414.] 4.60.030 4.60.030 Confession by person jointly liable. When the action is upon a contract and against one or more defen[Title 4 RCW—page 57] 4.60.040 Title 4 RCW: Civil Procedure dants jointly liable, judgment may be given on the confession of one or more defendants, against all the defendants thus jointly liable, whether such defendants have been served or not, to be enforced only against their joint property and against the joint and separate property of the defendant making the confession. [Code 1881 § 293; 1877 p 60 § 297; 1869 p 72 § 295; RRS § 415.] 4.60.040 4.60.040 Confession, how made. The confession and assent thereto shall be in writing and subscribed by the parties making the same, and acknowledged by each before some officer authorized to take acknowledgments of deeds. [Code 1881 § 294; 1877 p 60 § 298; 1869 p 72 § 296; RRS § 416.] 4.60.050 4.60.050 Judgment by confession without suit. A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter. [Code 1881 § 295; 1877 p 60 § 299; 1869 p 73 § 297; RRS § 417.] 4.60.060 4.60.060 Statement in writing—Requisites. A statement in writing shall be made, signed by the defendant and verified by his oath, to the following effect: (1) It shall authorize the entry of judgment for a specified sum. (2) If it be for money due or to become due, it shall state concisely the facts out of which the indebtedness arose, and shall show that the sum confessed to be due, is justly due or to become due. (3) If it be for the purpose of securing the plaintiff against a contingent liability, it shall state concisely the facts constituting the liability, and show that the sum confessed therefor does not exceed the same. [Code 1881 § 296; 1877 p 61 § 300; 1869 p 73 § 298; RRS § 418.] 4.60.070 4.60.070 Judgment on confession—Entry—Execution. The statement must be presented to the superior court or a judge thereof, and if the same be found sufficient, the court or judge shall indorse thereon an order that judgment be entered by the clerk; whereupon it may be filed in the office of the clerk, who shall enter a judgment for the amount confessed, with costs. Execution may be issued and enforced thereon in the same manner as upon judgments in other cases. [Code 1881 § 297; 1877 p 61 § 301; 1869 p 73 § 299; RRS § 419.] Chapter 4.64 Chapter 4.64 RCW ENTRY OF JUDGMENTS Sections 4.64.010 4.64.020 4.64.030 4.64.060 4.64.080 4.64.090 4.64.100 4.64.110 4.64.120 Time of entering judgment—Motions—Filing—Recording. Entry of verdict in execution docket—Effect. Entry of judgment—Form of judgment summary. Execution docket—Index of record. Entries in execution docket. Abstract of judgment. Abstract of verdict—Cessation of lien, certificate. Transcript of district court docket. Entry of abstract or transcript of judgment. [Title 4 RCW—page 58] 4.64.010 4.64.010 Time of entering judgment—Motions—Filing—Recording. Reviser’s note: RCW 4.64.010 was amended by 1984 c 128 § 5 without reference to its repeal by 1984 c 76 § 16. It has been decodified for publication purposes pursuant to RCW 1.12.025. 4.64.020 4.64.020 Entry of verdict in execution docket— Effect. (1) The clerk on the return of a verdict shall forthwith enter it in the execution docket, specifying the amount, the names of the parties to the action, and the names of the party or parties against whom the verdict is rendered; such entry shall be indexed in the record index and shall conform as near as may be to entries of judgments required to be made in the execution docket. (2) Beginning at eight o’clock a.m. the day after the entry of a verdict as herein provided, it shall be notice to all the world of the rendition thereof, and any person subsequently acquiring title to or a lien upon the real property of the party or parties against whom the verdict is returned shall be deemed to have acquired such title or lien with notice, and such title or lien shall be subject and inferior to any judgment afterwards entered on the verdict. [1987 c 442 § 1109; 1927 c 176 § 1; 1921 c 65 § 2; RRS § 431-1.] Rules of court: Cf. CR 58(b). 4.64.030 4.64.030 Entry of judgment—Form of judgment summary. (1) The clerk shall enter all judgments in the execution docket, subject to the direction of the court and shall specify clearly the amount to be recovered, the relief granted, or other determination of the action. (2)(a) On the first page of each judgment which provides for the payment of money, including foreign judgments, judgments in rem, mandates of judgments, and judgments on garnishments, the following shall be succinctly summarized: The judgment creditor and the name of his or her attorney, the judgment debtor, the amount of the judgment, the interest owed to the date of the judgment, and the total of the taxable costs and attorney fees, if known at the time of the entry of the judgment, and in the entry of a foreign judgment, the filing and expiration dates of the judgment under the laws of the original jurisdiction. (b) If the judgment provides for the award of any right, title, or interest in real property, the first page must also include an abbreviated legal description of the property in which the right, title, or interest was awarded by the judgment, including lot, block, plat, or section, township, and range, and reference to the judgment page number where the full legal description is included, if applicable; or the assessor’s property tax parcel or account number, consistent with RCW 65.04.045(1) (f) and (g). (c) If the judgment provides for damages arising from the ownership, maintenance, or use of a motor vehicle as specified in RCW 46.29.270, the first page of the judgment summary must clearly state that the judgment is awarded pursuant to RCW 46.29.270 and that the clerk must give notice to the department of licensing as outlined in RCW 46.29.310. (3) If the attorney fees and costs are not included in the judgment, they shall be summarized in the cost bill when filed. The clerk may not enter a judgment, and a judgment does not take effect, until the judgment has a summary in compliance with this section. The clerk is not liable for an (2006 Ed.) Procedure to Bind Joint Debtor incorrect summary. [2003 c 43 § 1; 2000 c 41 § 1; 1999 c 296 § 1; 1997 c 358 § 5; 1995 c 149 § 1; 1994 c 185 § 2; 1987 c 442 § 1107; 1984 c 128 § 6; 1983 c 28 § 2; Code 1881 § 305; 1877 p 62 § 309; 1869 p 75 § 307; RRS § 435.] Rules of court: Cf. CR 58(a), CR 58(b), CR 78(e). 4.64.060 4.64.060 Execution docket—Index of record. Every county clerk shall keep in the clerk’s office a record, to be called the execution docket, which shall be a public record and open during the usual business hours to all persons desirous of inspecting it. The record must be indexed both directly and inversely, and include all judgments, abstracts, and transcripts of judgments in the clerk’s office. The index must refer to each party against whom the judgment is rendered or whose property is affected by the judgment. [1997 c 358 § 6; 1987 c 442 § 1105; 1967 ex.s. c 34 § 1; Code 1881 § 307; 1877 p 62 § 311; 1869 p 75 § 309; 1854 p 173 § 234; RRS § 444.] 4.64.080 4.64.080 Entries in execution docket. When entering a judgment in the execution docket, the clerk shall leave space on the same page, if practicable, in which the clerk shall enter, in the order in which they occur, all the proceedings subsequent to the judgment in the case until its final satisfaction, including when and to what county an execution is issued, when returned, and the return or the substance thereof. When the execution is levied on personal property which is returned unsold, the entry shall be: "levied (noting the date) on property not sold." When any sheriff shall furnish the clerk with a copy of any levy upon real estate on any judgment the minutes of which are entered in the execution docket, the entry shall be: "levied upon real estate," noting the date. When any execution issued to any other county is returned levied upon real estate in such county, the entry in the docket shall be, "levied on real estate of . . . . . ., in . . . . . . county," noting the date, county, and defendants whose estate is levied upon. When any money is paid, the amount and time when paid shall be entered. When a judgment is appealed, modified, discharged, or in any manner satisfied, the facts in respect thereto shall be entered. The parties interested may also assign or discharge such judgment on such execution docket. When the judgment is fully satisfied in any way, the clerk shall write the word "satisfied," in large letters across the face of the record of such judgment in the execution docket. [1987 c 442 § 1108; 1957 c 7 § 6; 1923 c 130 § 2; Code 1881 § 310; 1877 p 63 § 314; 1869 p 76 § 312; 1854 p 174 § 237; RRS § 448.] 4.64.090 4.64.090 Abstract of judgment. The abstract of a judgment shall contain (1) the name of the party, or parties, in whose favor the judgment was rendered; (2) the name of the party, or parties, against whom the judgment was rendered; (3) the date of the rendition of the judgment; (4) the amount for which the judgment was rendered, and in the following manner, viz: Principal $. . . .; interest $. . . .; costs $. . . .; total $. . . . . [1987 c 442 § 1113; 1957 c 7 § 8. Prior: 1929 c 60 § 3, part; 1893 c 42 § 3; RRS § 451.] 4.64.100 4.64.100 Abstract of verdict—Cessation of lien, certificate. The clerk shall, on request and at the expense of the (2006 Ed.) Chapter 4.68 party in whose favor the verdict is rendered, or the party’s attorney, prepare an abstract of such verdict in substantially the same form as an abstract of a judgment and transmit such abstract to the clerk of any court in any county in the state as directed, and shall make a note on the execution docket of the name of the county to which each of such abstracts is sent. The clerk receiving such abstract shall, on payment of the statutory fee, enter and index it in the execution docket in the same manner as an abstract of judgment. The entry shall have the same effect in such county as in the county where the verdict was rendered. Whenever the verdict, or any judgment rendered thereon, shall cease to be a lien in the county where rendered, the clerk of the court shall on request of anyone, and the payment of the cost and expense thereof, certify that the lien has ceased, and transmit such certificate to the clerk of any court to which an abstract was forwarded, and the clerk receiving the certificate, on payment of the statutory fee, shall enter it in the execution docket, and then the lien of such verdict or judgment shall cease. Nothing in this section or RCW 4.64.020 shall be construed as authorizing the issuance of an execution by a clerk in any other county than that in which the judgment is rendered. [1987 c 442 § 1110; 1984 c 76 § 5; 1921 c 65 § 3; RRS § 431-2.] Fees of superior court clerks: RCW 36.18.020. supreme and appellate court clerks: RCW 2.32.070. 4.64.110 Transcript of district court docket. A transcript of the district court docket shall contain an exact copy of the district court judgment from the docket. [1987 c 202 § 118; 1957 c 7 § 9. Prior: 1929 c 60 § 3, part; 1893 c 42 § 4; RRS § 452.] 4.64.110 Intent—1987 c 202: See note following RCW 2.04.190. 4.64.120 Entry of abstract or transcript of judgment. It shall be the duty of the county clerk to enter in the execution docket any duly certified transcript of a judgment of a district court of this state and any duly certified abstract of any judgment of any court mentioned in RCW 4.56.200, filed in the county clerk’s office, and to index the same in the same manner as judgments originally rendered in the superior court for the county of which he or she is clerk. Jurisdiction over the judgment, including modification to or vacation of the original judgment, transfers to the superior court. The superior court may, in its discretion, remand the cause to district court for determination of any motion to vacate or modify the original judgment. [1997 c 358 § 2. Prior: 1987 c 442 § 1111; 1987 c 202 § 119; 1929 c 60 § 4; RRS § 453; prior: 1893 c 42 § 5.] 4.64.120 Intent—1987 c 202: See note following RCW 2.04.190. Chapter 4.68 Chapter 4.68 RCW PROCEDURE TO BIND JOINT DEBTOR Sections 4.68.010 4.68.020 4.68.030 4.68.040 4.68.050 4.68.060 Summons after judgment. Contents of summons. Affidavit must accompany summons. Defenses. Pleadings. Trial. [Title 4 RCW—page 59] 4.68.010 Title 4 RCW: Civil Procedure 4.68.010 4.68.010 Summons after judgment. When a judgment is recorded against one or more of several persons jointly indebted upon an obligation by proceeding as provided by the court by rule, such defendants who were not originally served with the summons, and did not appear to the action, may be summoned to show cause why they should not be bound by the judgment, in the same manner as though they had been originally served with the summons. [1984 c 76 § 6; Code 1881 § 314; 1877 p 64 § 318; RRS § 436.] 4.68.020 4.68.020 Contents of summons. The summons, as provided in RCW 4.68.010, must describe the judgment, and require the person summoned to show cause why he should not be bound by it, and must be served in the same manner and returnable within the same time, as the original summons. It is not necessary to file a new complaint. [Code 1881 § 315; 1877 p 64 § 319; RRS § 437.] 4.68.030 4.68.030 Affidavit must accompany summons. The summons must be accompanied by an affidavit of the plaintiff, his agent, representative, or attorney, that the judgment, or some part thereof, remains unsatisfied, and must specify the amount due thereon. [Code 1881 § 316; 1877 p 65 § 320; RRS § 438.] 4.68.040 4.68.040 Defenses. Upon the service of such summons and affidavit, the defendant may answer within the time specified therein, denying the judgment, or setting up any defense which may have arisen subsequently to the taking of the judgment, or he may deny his liability on the obligation upon which the judgment was rendered, except a discharge from such liability by the statute of limitations. [Code 1881 § 317; 1877 p 65 § 321; RRS § 439.] 4.68.050 4.68.050 Pleadings. If the defendant in his answer, deny the judgment, or set up any defense which may have arisen subsequently, the summons, with the affidavit annexed, and the answer, constitute the written allegations in the case; if he deny his liability on the obligation upon which the judgment was rendered, a copy of the original complaint and judgment, the summons with the affidavit annexed, and the answer constitute such written allegations. [Code 1881 § 318; 1877 p 65 § 322; RRS § 440.] 4.68.060 4.68.060 Trial. The issue formed may be tried as in other cases, but when the defendant denies in his answer any liability on the obligation upon which the judgment was rendered, if a verdict be found against him, it must not exceed the amount remaining unsatisfied on such original judgment, with interest thereon. [Code 1881 § 319; 1877 p 65 § 323; RRS § 441.] Chapter 4.72 RCW VACATION AND MODIFICATION OF JUDGMENTS Chapter 4.72 Sections 4.72.010 4.72.020 4.72.030 4.72.050 4.72.060 Causes for enumerated. Motion to vacate—Time limitation. Petition to vacate for certain causes—Time limitation. Conditions precedent to vacation. Grounds for vacation may first be tried. [Title 4 RCW—page 60] 4.72.070 4.72.080 4.72.090 Injunction to suspend proceedings. Construction of chapter—Time limitations when fraud, misrepresentation concerned. Judgment upon denial of application. 4.72.010 4.72.010 Causes for enumerated. The superior court in which a judgment or final order has been rendered, or made, shall have power to vacate or modify such judgment or order: (1) By granting a new trial for the cause, within the time and in the manner, and for any of the causes prescribed by the rules of court relating to new trials. (2) By a new trial granted in proceedings against defendant served by publication only as prescribed in RCW 4.28.200. (3) For mistakes, neglect or omission of the clerk, or irregularity in obtaining a judgment or order. (4) For fraud practiced by the successful party in obtaining the judgment or order. (5) For erroneous proceedings against a minor or person of unsound mind, when the condition of such defendant does not appear in the record, nor the error in the proceedings. (6) For the death of one of the parties before the judgment in the action. (7) For unavoidable casualty, or misfortune preventing the party from prosecuting or defending. (8) For error in a judgment shown by a minor, within twelve months after arriving at full age. [1957 c 9 § 4; Code 1881 § 436; 1877 p 96 § 438; 1875 p 20 § 1; RRS § 464.] Rules of court: Cf. CR 52(d), CR 60(b). Judgment to recover realty, vacation: RCW 7.28.260. 4.72.020 4.72.020 Motion to vacate—Time limitation. The proceedings to vacate or modify a judgment or order for mistakes or omissions of the clerk, or irregularity in obtaining the judgment or order, shall be by motion served on the adverse party or on his attorney in the action, and within one year. [1891 c 27 § 1; Code 1881 § 438; 1877 p 97 § 440; 1875 p 21 § 3; RRS § 466.] Rules of court: Cf. CR 60(b). 4.72.030 4.72.030 Petition to vacate for certain causes—Time limitation. RCW 4.72.010 (2), (3), (4), (5), (6), and (7) shall be by petition verified by affidavit, setting forth the judgment or order, the facts or errors constituting a cause to vacate or modify it, and if the party is a defendant, the facts constituting a defense to the action; and such proceedings must be commenced within one year after the judgment or order was made, unless the party entitled thereto be a minor or person of unsound mind, and then within one year from the removal of such disability. [1891 c 27 § 2; Code 1881 § 439; 1877 p 97 § 441; 1875 p 21 § 4; RRS § 467.] Rules of court: Cf. CR 60(b). 4.72.050 4.72.050 Conditions precedent to vacation. The judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment is rendered; or, if the plaintiff seeks its vacation, that there is a valid cause of action; and when judgment is modified, all liens and securities obtained under it shall be (2006 Ed.) New Trials preserved to the modified judgment. [Code 1881 § 441; 1877 p 97 § 443; 1875 p 22 § 6; RRS § 469.] Chapter 4.80 a jury, court or referees. [Code 1881 § 275; 1877 p 56 § 279; 1869 p 67 § 277; 1854 p 170 § 215; RRS § 398.] 4.76.030 Increase or reduction of verdict as alternative to new trial. If the trial court shall, upon a motion for new trial, find the damages awarded by a jury to be so excessive or inadequate as unmistakably to indicate that the amount thereof must have been the result of passion or prejudice, the trial court may order a new trial or may enter an order providing for a new trial unless the party adversely affected shall consent to a reduction or increase of such verdict, and if such party shall file such consent and the opposite party shall thereafter appeal from the judgment entered, the party who shall have filed such consent shall not be bound thereby, but upon such appeal the court of appeals or the supreme court shall, without the necessity of a formal crossappeal, review de novo the action of the trial court in requiring such reduction or increase, and there shall be a presumption that the amount of damages awarded by the verdict of the jury was correct and such amount shall prevail, unless the court of appeals or the supreme court shall find from the record that the damages awarded in such verdict by the jury were so excessive or so inadequate as unmistakably to indicate that the amount of the verdict must have been the result of passion or prejudice. [1971 c 81 § 19; 1933 c 138 § 2; RRS § 399-1.] 4.76.030 4.72.060 4.72.060 Grounds for vacation may first be tried. The court may first try and decide upon the grounds to vacate or modify a judgment or order, before trying or deciding upon the validity of the defense or cause of action. [Code 1881 § 442; 1877 p 97 § 440; 1875 p 22 § 7; RRS § 470.] 4.72.070 4.72.070 Injunction to suspend proceedings. The party seeking to vacate or modify a judgment or order may obtain an injunction suspending proceedings on the whole or part thereof, which injunction may be granted by the court or the judge upon its being rendered probable, by affidavit or petition sworn to, or by exhibition of the record, that the party is entitled to have such judgment or order vacated or modified. [Code 1881 § 443; 1877 p 97 § 445; 1875 p 22 § 8; RRS § 471.] Rules of court: Cf. CR 62. 4.72.080 4.72.080 Construction of chapter—Time limitations when fraud, misrepresentation concerned. The provisions of this chapter shall not be so construed as to affect the power of the court to vacate or modify judgments or orders as elsewhere in this code provided; nor shall the time limitations set forth in this chapter within which proceedings to vacate or modify a judgment must be started apply to a judgment heretofore or hereafter entered by consent or stipulation where the grounds to vacate or modify such judgment are based on fraud or misrepresentation, or when after the entry of the judgment either party fails to fulfill the terms and conditions on which the consent judgment or stipulation was entered; nor shall any judgment of acquittal in a criminal action be vacated under the provisions of this chapter. [1961 c 88 § 1; 1891 c 27 § 4; RRS § 472.] Reviser’s note: The words "this code" appeared in 1891 c 27 § 4. Severability—1933 c 138: "Adjudication of invalidity of any of the sections of this act, or any part of any section, shall not impair or otherwise affect the validity of any other of said sections or remaining part of any section." [1933 c 138 § 3.] 4.76.070 Newly discovered evidence, requirements as to. If the motion be supported by affidavits and the cause be newly discovered evidence, the affidavits of any witness or witnesses, showing what their testimony will be, shall be produced or good reasons shown for their nonproduction. [1891 c 59 § 2; Code 1881 § 282; 1877 p 57 § 286; 1869 p 68 § 284; 1854 p 170 § 219; RRS § 403.] 4.76.070 4.72.090 4.72.090 Judgment upon denial of application. In all cases in which an application under this chapter to vacate or modify a judgment or order for the recovery of money is denied, if proceedings on the judgment or order shall have been suspended, judgment shall be rendered against the plaintiff [applicant] for the amount of the former judgment or order, interest and costs, together with damages at the discretion of the court, not exceeding ten percent on the amount of the judgment or order. [1891 c 27 § 5; Code 1881 § 444; 1877 p 97 § 446; 1875 p 22 § 9; RRS § 473.] Chapter 4.76 Chapter 4.76 RCW NEW TRIALS Sections 4.76.010 4.76.030 4.76.070 4.76.080 4.76.010 Chapter 4.80 New trial defined. Increase or reduction of verdict as alternative to new trial. Newly discovered evidence, requirements as to. Petition for new trial when discovery of grounds delayed. 4.76.010 New trial defined. A new trial is a reexamination of an issue in the same court after a trial and decision by (2006 Ed.) 4.76.080 Petition for new trial when discovery of grounds delayed. When the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the time when the verdict, report of referee, or decision was rendered or made, the application may be made by petition filed as in other cases, not later than after the discovery, on which notice shall be served and returned, and the defendant held to appear as in an original action. The facts stated in the petition shall be considered as denied without answer. The case shall be tried as other cases by ordinary proceedings, but no motion shall be filed more than one year after the final judgment was rendered. [1955 c 44 § 1; Code 1881 § 437; 1875 p 21 § 2; RRS § 465.] 4.76.080 Chapter 4.80 RCW EXCEPTIONS Sections 4.80.010 4.80.020 4.80.030 4.80.040 4.80.140 Exception defined. When to be taken. Requisites—Entry in minutes. Manner of taking and entry. Application of chapter. [Title 4 RCW—page 61] 4.80.010 Title 4 RCW: Civil Procedure Rules of court: Cf. CR 46. Chapter 4.84 Chapter 4.84 RCW COSTS 4.80.010 4.80.010 Exception defined. An exception is a claim of error in a ruling or decision of a court, judge or other tribunal, or officer exercising judicial functions, made in the course of an action or proceeding or after judgment therein. [1893 c 60 § 1; RRS § 381.] Rules of court: Cf. CR 46. Construction—1893 c 60: "This act shall govern proceedings had after it shall take effect, in actions then pending as well as those in actions thereafter begun; but it shall not affect any right acquired or proceeding had prior to the time when it shall take effect, nor restore any right or enlarge any time then already lost or expired. And except as above provided all acts and parts of acts inconsistent with the provisions of this act are hereby repealed." [1893 c 60 § 18.] This applies to RCW 4.80.010 through 4.80.140. 4.80.020 4.80.020 When to be taken. It shall not be necessary or proper to take or enter an exception to any ruling or decision mentioned in RCW 4.80.010, which is embodied in a written judgment, order or journal entry in the cause. But this section shall not apply to the report of a referee or commissioner, or to findings of fact or conclusions of law in a report or decision of a referee or commissioner, or in a decision of a court or judge upon a cause or part of a cause, either legal or equitable, tried without a jury. [1893 c 60 § 2; RRS § 382.] Rules of court: Cf. CR 46. Sections 4.84.010 4.84.020 4.84.030 4.84.040 4.84.050 4.84.060 4.84.070 4.84.080 4.84.090 4.84.100 4.84.110 4.84.120 4.84.130 4.84.140 4.84.150 4.84.160 4.84.170 4.84.185 4.84.190 4.84.200 4.84.210 4.84.220 4.84.230 4.84.240 4.84.250 4.84.260 4.84.270 4.80.030 4.80.030 Requisites—Entry in minutes. Exceptions to any ruling upon an objection to the admission of evidence, offered in the course of a trial or hearing, need not be formally taken, but the question put or other offer of evidence, together with the objection thereto and the ruling thereon, shall be entered by the court, judge, referee or commissioner (or by the stenographer, if one is in attendance) in the minutes of the trial or hearing, and such entry shall import an exception by the party against whom the ruling was made. [1893 c 60 § 5; RRS § 385.] Rules of court: Cf. CR 46. 4.84.280 4.84.290 4.84.300 4.84.320 4.84.330 4.84.340 4.84.350 4.84.360 4.80.040 4.80.040 Manner of taking and entry. Exceptions to any ruling or decision made in the course of a trial or hearing, or in the progress of a cause, except those to which it is provided in this chapter that no exception need be taken and those to which some other mode of exception is in this chapter prescribed, may be taken by any party by stating to the court, judge, referee or commissioner making the ruling or decision, when the same is made, that such party excepts to the same; whereupon such court, judge, referee or commissioner shall note the exception in the minutes of the trial, hearing or cause, or shall cause the stenographer (if one is in attendance) so to note the same. [1893 c 60 § 6; RRS § 386.] Rules of court: Cf. CR 46. 4.80.140 4.80.140 Application of chapter. This chapter shall apply to and govern all civil actions and proceedings, both legal and equitable, and all criminal causes, in the superior courts, but shall not apply to district courts or other courts of limited jurisdiction from which an appeal does not lie directly to the supreme court or court of appeals. [1987 c 202 § 120; 1971 c 81 § 21; 1893 c 60 § 17; RRS § 397, part.] Intent—1987 c 202: See note following RCW 2.04.190. [Title 4 RCW—page 62] 4.84.370 Costs allowed to prevailing party—Defined—Compensation of attorneys. Amount of contracted attorneys’ fee to be fixed by court. Prevailing party to recover costs. Limitation on costs in certain actions. Limited to one of several actions. Costs to defendant. Costs to defendants defending separately. Schedule of attorneys’ fees. Cost bill—Witnesses to report attendance. Costs on postponement of trial. Costs where tender is made. Costs where deposit in court is made and rejected. Costs in appeals from district courts. Costs against guardian of infant plaintiff. Costs against fiduciaries. Costs against assignee. Costs against state or county. Prevailing party to receive expenses for opposing frivolous action or defense. Costs in proceedings not specifically covered. Retaxation of costs. Security for costs. Bond in lieu of separate security. Dismissal for failure to give security. Judgment on cost bond. Attorneys’ fees as costs in damage actions of ten thousand dollars or less—Allowed to prevailing party. Attorneys’ fees as costs in damage actions of ten thousand dollars or less—When plaintiff deemed prevailing party. Attorneys’ fees as costs in damage actions of ten thousand dollars or less—When defendant deemed prevailing party. Attorneys’ fees as costs in damage actions of ten thousand dollars or less—Offers of settlement in determining. Attorneys’ fees as costs in damage actions of ten thousand dollars or less—Prevailing party on appeal. Attorneys’ fees as costs in damage actions of ten thousand dollars or less—Application. Attorneys’ fees in actions for injuries resulting from the rendering of medical and other health care. Actions on contract or lease which provides that attorney’s fees and costs incurred to enforce provisions be awarded to one of parties—Prevailing party entitled to attorney’s fees— Waiver prohibited. Judicial review of agency action—Definitions. Judicial review of agency action—Award of fees and expenses. Judicial review of agency action—Payment of fees and expenses—Report to office of financial management. Appeal of land use decisions—Fees and costs. Deposit of jury fee taxable as costs: RCW 4.44.110. 4.84.010 Costs allowed to prevailing party— Defined—Compensation of attorneys. The measure and mode of compensation of attorneys and counselors, shall be left to the agreement, expressed or implied, of the parties, but there shall be allowed to the prevailing party upon the judgment certain sums by way of indemnity for the prevailing party’s expenses in the action, which allowances are termed costs, including, in addition to costs otherwise authorized by law, the following expenses: (1) Filing fees; (2) Fees for the service of process by a public officer, registered process server, or other means, as follows: (a) When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service. (b) If service is by a process server registered pursuant to chapter 18.180 RCW or a person exempt from registration, the recoverable cost is the amount reasonably incurred in effecting service; (3) Fees for service by publication; 4.84.010 (2006 Ed.) Costs (4) Notary fees, but only to the extent the fees are for services that are expressly required by law and only to the extent they represent actual costs incurred by the prevailing party; (5) Reasonable expenses, exclusive of attorneys’ fees, incurred in obtaining reports and records, which are admitted into evidence at trial or in mandatory arbitration in superior or district court, including but not limited to medical records, tax records, personnel records, insurance reports, employment and wage records, police reports, school records, bank records, and legal files; (6) Statutory attorney and witness fees; and (7) To the extent that the court or arbitrator finds that it was necessary to achieve the successful result, the reasonable expense of the transcription of depositions used at trial or at the mandatory arbitration hearing: PROVIDED, That the expenses of depositions shall be allowed on a pro rata basis for those portions of the depositions introduced into evidence or used for purposes of impeachment. [1993 c 48 § 1; 1984 c 258 § 92; 1983 1st ex.s. c 45 § 7; Code 1881 § 505; 1877 p 108 § 509; 1869 p 123 § 459; 1854 p 201 § 367; RRS § 474.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Attorney fee in appeals from board of industrial insurance appeals: RCW 51.52.130, 51.52.132. 4.84.020 4.84.020 Amount of contracted attorneys’ fee to be fixed by court. In all cases of foreclosure of mortgages and in all other cases in which attorneys’ fees are allowed, the amount thereof shall be fixed by the court at such sum as the court shall deem reasonable, any stipulations in the note, mortgage or other instrument to the contrary notwithstanding; but in no case shall said fee be fixed above contract price stated in said note or contract. [1895 c 48 § 1; 1891 c 44 § 1; 1888 p 9 § 1; 1885 p 176 § 1; RRS § 475.] 4.84.030 4.84.030 Prevailing party to recover costs. In any action in the superior court of Washington the prevailing party shall be entitled to his or her costs and disbursements; but the plaintiff shall in no case be entitled to costs taxed as attorneys’ fees in actions within the jurisdiction of the district court when commenced in the superior court. [1987 c 202 § 121; 1890 p 337 § 1; 1883 p 42 § 1; Code 1881 §§ 506, 507; 1854 p 201 §§ 368, 369; RRS § 476.] Intent—1987 c 202: See note following RCW 2.04.190. 4.84.040 4.84.040 Limitation on costs in certain actions. In an action for an assault and battery, or for false imprisonment, libel, slander, malicious prosecution, criminal conversation or seduction, if the plaintiff recover less than ten dollars, he shall be entitled to no more costs or disbursements than the damage recovered. [Code 1881 § 508; 1877 p 108 § 512; 1869 p 123 § 460; 1854 p 202 § 370; RRS § 477.] 4.84.050 4.84.050 Limited to one of several actions. When several actions are brought on one bond, undertaking, promissory note, bill of exchange, or other instrument in writing, or in any other case for the same cause of action against several parties, who might have been joined as defendants in the same action, no costs or disbursements shall be allowed to the plaintiff in more than one of such actions, which may be at (2006 Ed.) 4.84.090 his election, if the parties proceeded against in the other actions were, at the commencement of the previous action, openly within this state. [Code 1881 § 509; 1877 p 108 § 513; 1869 p 123 § 461; 1854 p 202 § 371; RRS § 478.] 4.84.060 4.84.060 Costs to defendant. In all cases where costs and disbursements are not allowed to the plaintiff, the defendant shall be entitled to have judgment in his favor for the same. [Code 1881 § 510; 1877 p 109 § 514; 1869 p 123 § 462; 1854 p 202 § 372; RRS § 479.] 4.84.070 4.84.070 Costs to defendants defending separately. In all actions where there are several defendants not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such defendants as recover judgments in their favor, or either of them. [Code 1881 § 511; 1877 p 109 § 515; 1869 p 124 § 463; 1854 p 202 § 373; RRS § 480.] 4.84.080 4.84.080 Schedule of attorneys’ fees. When allowed to either party, costs to be called the attorney fee, shall be as follows: (1) In all actions where judgment is rendered, two hundred dollars. (2) In all actions where judgment is rendered in the supreme court or the court of appeals, after argument, two hundred dollars. [2004 c 123 § 1; 1985 c 240 § 1; 1981 c 331 § 3; 1975-’76 2nd ex.s. c 30 § 2; Code 1881 § 512; 1877 p 108 § 516; 1869 p 124 § 464; 1854 p 202 § 374; RRS § 481.] Court Congestion Reduction Act of 1981—Purpose—Severability—1981 c 331: See notes following RCW 2.32.070. Costs: RCW 4.84.190. Transmission of record on change of venue—Costs, attorney’s fees: RCW 4.12.090. 4.84.090 4.84.090 Cost bill—Witnesses to report attendance. The prevailing party, in addition to allowance for costs, as provided in RCW 4.84.080, shall also be allowed for all necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the necessary expenses of taking depositions, by commission or otherwise, and the compensation of referees. The court shall allow the prevailing party all service of process charges in case such process was served by a person or persons not an officer or officers. Such service charge shall be the same as is now allowed or shall in the future be allowed as fee and mileage to an officer. The disbursements shall be stated in detail and verified by affidavit, and shall be served on the opposite party or his attorney, and filed with the clerk of the court, within ten days after the judgment: PROVIDED, The clerk of the court shall keep a record of all witnesses in attendance upon any civil action, for whom fees are to be claimed, with the number of days in attendance and their mileage, and no fees or mileage for any witness shall be taxed in the cost bill unless they shall have reported their attendance at the close of each day’s session to the clerk in attendance at such trial. [1949 c 146 § 1; 1905 c 16 § 1; Code 1881 § 513; 1877 p 109 § 517; 1869 p 124 § 465; 1854 p 202 § 375; Rem. Supp. 1949 § 482.] Witness fees and mileage: Chapter 2.40 RCW. [Title 4 RCW—page 63] 4.84.100 Title 4 RCW: Civil Procedure 4.84.100 4.84.100 Costs on postponement of trial. When an application shall be made to a court or referees to postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, besides the fees of witnesses, may be imposed as the condition of granting the postponement. [Code 1881 § 515; 1877 p 109 § 519; 1854 p 203 § 377; RRS § 484.] 4.84.110 4.84.110 Costs where tender is made. When in an action for the recovery of money, the defendant alleges in his answer, that, before the commencement of the action, he tendered to the plaintiff the full amount to which he is entitled, in such money as by agreement ought to be tendered, and thereupon brings into court, for the plaintiff, the amount tendered, and the allegation be found true, the plaintiff shall not recover costs, but shall pay them to the defendant. [Code 1881 § 516; 1877 p 109 § 520; 1854 p 203 § 378; RRS § 485.] 4.84.120 4.84.120 Costs where deposit in court is made and rejected. If the defendant in any action pending, shall at any time deposit with the clerk of the court, for the plaintiff, the amount which he admits to be due, together with all costs that have accrued, and notify the plaintiff thereof, and such plaintiff shall refuse to accept the same in discharge of the action, and shall not afterwards recover a larger amount than that deposited with the clerk, exclusive of interest and cost, he shall pay all costs that may accrue from the time such money was so deposited. [Code 1881 § 517; 1877 p 110 § 521; 1854 p 203 § 379; RRS § 486.] Conflicting claims, deposit in court, costs: RCW 4.08.170. 4.84.130 4.84.130 Costs in appeals from district courts. In all civil actions tried before the district court, in which an appeal shall be taken to the superior court, and the party appellant shall not recover a more favorable judgment in the superior court than before the district court, such appellant shall pay all costs. [1987 c 202 § 122; Code 1881 § 518; 1877 p 110 § 522; 1854 p 203 § 380; RRS § 487.] Intent—1987 c 202: See note following RCW 2.04.190. District court appeals: Chapter 12.36 RCW. 4.84.160 4.84.160 Costs against assignee. When the cause of action, after the commencement of the action, by assignment, or in any other manner, becomes the property of a person not a party thereto, and the prosecution or defense is thereafter continued, such person shall be liable for the costs in the same manner as if he were a party, and payment thereof may be enforced by execution. [Code 1881 § 521; 1877 p 110 § 525; 1869 p 125 § 473; 1854 p 203 § 383; RRS § 490.] 4.84.170 4.84.170 Costs against state or county. In all actions prosecuted in the name and for the use of the state, or in the name and for the use of any county, and in any action brought against the state or any county, and on all appeals to the supreme court or the court of appeals of the state in all actions brought by or against either the state or any county, the state or county shall be liable for costs in the same case and to the same extent as private parties. [1971 c 81 § 22; 1959 c 62 § 1; Code 1881 § 522; 1877 p 110 § 526; 1854 p 203 § 384; RRS § 491.] 4.84.185 4.84.185 Prevailing party to receive expenses for opposing frivolous action or defense. In any civil action, the court having jurisdiction may, upon written findings by the judge that the action, counterclaim, cross-claim, third party claim, or defense was frivolous and advanced without reasonable cause, require the nonprevailing party to pay the prevailing party the reasonable expenses, including fees of attorneys, incurred in opposing such action, counterclaim, cross-claim, third party claim, or defense. This determination shall be made upon motion by the prevailing party after a voluntary or involuntary order of dismissal, order on summary judgment, final judgment after trial, or other final order terminating the action as to the prevailing party. The judge shall consider all evidence presented at the time of the motion to determine whether the position of the nonprevailing party was frivolous and advanced without reasonable cause. In no event may such motion be filed more than thirty days after entry of the order. The provisions of this section apply unless otherwise specifically provided by statute. [1991 c 70 § 1; 1987 c 212 § 201; 1983 c 127 § 1.] Administrative law, frivolous petitions for judicial review: RCW 34.05.598. 4.84.140 4.84.140 Costs against guardian of infant plaintiff. When costs are adjudged against an infant plaintiff, the guardian or person by whom he appeared in the action shall be responsible therefor, and payment may be enforced by execution. [Code 1881 § 519; 1877 p 110 § 523; 1854 p 203 § 381; RRS § 488.] 4.84.150 4.84.150 Costs against fiduciaries. In [an] action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered as in an action by or against a person prosecuting in his own right, but such costs shall be chargeable only upon or collected of the estate of the party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defense. [Code 1881 § 520; 1877 p 110 § 524; 1854 p 203 § 382; RRS § 489.] Actions by and against personal representatives, etc.: Chapter 11.48 RCW. [Title 4 RCW—page 64] 4.84.190 4.84.190 Costs in proceedings not specifically covered. In all actions and proceedings other than those mentioned in this chapter [and RCW 4.48.100], where no provision is made for the recovery of costs, they may be allowed or not, and if allowed may be apportioned between the parties, in the discretion of the court. [Code 1881 § 525; 1877 p 111 § 529; 1854 p 204 § 387; RRS § 493.] Costs: RCW 4.84.080. 4.84.200 4.84.200 Retaxation of costs. Any party aggrieved by the taxation of costs by the clerk of the court may, upon application, have the same retaxed by the court in which the action or proceeding is had. [Code 1881 § 526; 1877 p 111 § 530; 1854 p 204 § 388; RRS § 494.] 4.84.210 4.84.210 Security for costs. When a plaintiff in an action, or in a garnishment or other proceeding, resides out of (2006 Ed.) Costs the county, or is a foreign corporation, or begins such action or proceeding as the assignee of some other person or of a firm or corporation, as to all causes of action sued upon, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant or garnishee defendant. When required, all proceedings in the action or proceeding shall be stayed until a bond, executed by two or more persons, or by a surety company authorized to do business in this state be filed with the clerk, conditioned that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action or proceeding, not exceeding the sum of two hundred dollars. A new or additional bond may be ordered by the court or judge, upon proof that the original bond is insufficient security, and proceedings in the action or proceeding stayed until such new or additional bond be executed and filed. The plaintiff may deposit with the clerk the sum of two hundred dollars in lieu of a bond. [1929 c 103 § 1; Code 1881 § 527; 1877 p 111 § 531; 1854 p 204 § 389; RRS § 495.] 4.84.220 4.84.220 Bond in lieu of separate security. In lieu of separate security for each action or proceeding in any court, the plaintiff may cause to be executed and filed in the court a bond in the penal sum of two hundred dollars running to the state of Washington, with surety as in case of a separate bond, and conditioned for the payment of all judgments for costs which may thereafter be rendered against him in that court. Any defendant or garnishee who shall thereafter recover a judgment for costs in said court against the principal on such bond shall likewise be entitled to judgment against the sureties. Such bond shall not be sufficient unless the penalty thereof is unimpaired by any outstanding obligation at the time of the commencement of the action. [1929 c 103 § 2; RRS § 495-1.] 4.84.290 defined, exclusive of costs, is seven thousand five hundred dollars or less, there shall be taxed and allowed to the prevailing party as a part of the costs of the action a reasonable amount to be fixed by the court as attorneys’ fees. After July 1, 1985, the maximum amount of the pleading under this section shall be ten thousand dollars. [1984 c 258 § 88; 1980 c 94 § 1; 1973 c 84 § 1.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Effective date—1980 c 94: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect May 1, 1980." [1980 c 94 § 6.] 4.84.260 4.84.260 Attorneys’ fees as costs in damage actions of ten thousand dollars or less—When plaintiff deemed prevailing party. The plaintiff, or party seeking relief, shall be deemed the prevailing party within the meaning of RCW 4.84.250 when the recovery, exclusive of costs, is as much as or more than the amount offered in settlement by the plaintiff, or party seeking relief, as set forth in RCW 4.84.280. [1973 c 84 § 2.] 4.84.270 4.84.270 Attorneys’ fees as costs in damage actions of ten thousand dollars or less—When defendant deemed prevailing party. The defendant, or party resisting relief, shall be deemed the prevailing party within the meaning of RCW 4.84.250, if the plaintiff, or party seeking relief in an action for damages where the amount pleaded, exclusive of costs, is equal to or less than the maximum allowed under RCW 4.84.250, recovers nothing, or if the recovery, exclusive of costs, is the same or less than the amount offered in settlement by the defendant, or the party resisting relief, as set forth in RCW 4.84.280. [1980 c 94 § 2; 1973 c 84 § 3.] Effective date—1980 c 94: See note following RCW 4.84.250. 4.84.230 4.84.230 Dismissal for failure to give security. After the lapse of ninety days from the service of notice that security is required or of an order for new or additional security, upon proof thereof, and that no undertaking as required has been filed, the court or judge may order the action to be dismissed. [1933 c 14 § 1; RRS § 495-2.] 4.84.240 4.84.240 Judgment on cost bond. Whenever any bond or undertaking for the payment of any costs to any party shall be filed in any action or other legal proceeding in any court in this state and judgment should be rendered for any such costs against the principal on any such bonds or against the party primarily liable therefor in whose behalf any such bond or undertaking has been filed, such judgment for costs shall be rendered against the principal on such bond or the party primarily liable therefor and at the same time also against his surety or sureties on any or all such bonds or undertakings filed in any such action or other legal proceeding. [1909 c 173 § 1; RRS § 496.] 4.84.250 4.84.250 Attorneys’ fees as costs in damage actions of ten thousand dollars or less—Allowed to prevailing party. Notwithstanding any other provisions of chapter 4.84 RCW and RCW 12.20.060, in any action for damages where the amount pleaded by the prevailing party as hereinafter (2006 Ed.) 4.84.280 4.84.280 Attorneys’ fees as costs in damage actions of ten thousand dollars or less—Offers of settlement in determining. Offers of settlement shall be served on the adverse party in the manner prescribed by applicable court rules at least ten days prior to trial. Offers of settlement shall not be served until thirty days after the completion of the service and filing of the summons and complaint. Offers of settlement shall not be filed or communicated to the trier of the fact until after judgment, at which time a copy of said offer of settlement shall be filed for the purposes of determining attorneys’ fees as set forth in RCW 4.84.250. [1983 c 282 § 1; 1980 c 94 § 3; 1973 c 84 § 4.] Effective date—1980 c 94: See note following RCW 4.84.250. 4.84.290 4.84.290 Attorneys’ fees as costs in damage actions of ten thousand dollars or less—Prevailing party on appeal. If the case is appealed, the prevailing party on appeal shall be considered the prevailing party for the purpose of applying the provisions of RCW 4.84.250: PROVIDED, That if, on appeal, a retrial is ordered, the court ordering the retrial shall designate the prevailing party, if any, for the purpose of applying the provisions of RCW 4.84.250. In addition, if the prevailing party on appeal would be entitled to attorneys’ fees under the provisions of RCW 4.84.250, the court deciding the appeal shall allow to the pre[Title 4 RCW—page 65] 4.84.300 Title 4 RCW: Civil Procedure vailing party such additional amount as the court shall adjudge reasonable as attorneys’ fees for the appeal. [1973 c 84 § 5.] 4.84.300 4.84.300 Attorneys’ fees as costs in damage actions of ten thousand dollars or less—Application. The provisions of RCW 4.84.250 through 4.84.290 shall apply regardless of whether the action is commenced in district court or superior court except as provided in RCW 4.84.280. This section shall not be construed as conferring jurisdiction on either court. [1987 c 202 § 123; 1980 c 94 § 4; 1973 c 84 § 6.] Intent—1987 c 202: See note following RCW 2.04.190. Effective date—1980 c 94: See note following RCW 4.84.250. 4.84.320 4.84.320 Attorneys’ fees in actions for injuries resulting from the rendering of medical and other health care. See RCW 7.70.070. 4.84.330 4.84.330 Actions on contract or lease which provides that attorney’s fees and costs incurred to enforce provisions be awarded to one of parties—Prevailing party entitled to attorney’s fees—Waiver prohibited. In any action on a contract or lease entered into after September 21, 1977, where such contract or lease specifically provides that attorney’s fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or lease or not, shall be entitled to reasonable attorney’s fees in addition to costs and necessary disbursements. Attorney’s fees provided for by this section shall not be subject to waiver by the parties to any contract or lease which is entered into after September 21, 1977. Any provision in any such contract or lease which provides for a waiver of attorney’s fees is void. As used in this section "prevailing party" means the party in whose favor final judgment is rendered. [1977 ex.s. c 203 § 1.] 4.84.340 4.84.340 Judicial review of agency action—Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout RCW 4.84.340 through 4.84.360. (1) "Agency" means any state board, commission, department, institution of higher education, or officer, authorized by law to make rules or to conduct adjudicative proceedings, except those in the legislative or judicial branches, the governor, or the attorney general except to the extent otherwise required by law. (2) "Agency action" means agency action as defined by chapter 34.05 RCW. (3) "Fees and other expenses" includes the reasonable expenses of expert witnesses, the reasonable cost of a study, analysis, engineering report, test, or project that is found by the court to be necessary for the preparation of the party’s case, and reasonable attorneys’ fees. Reasonable attorneys’ fees shall be based on the prevailing market rates for the kind and quality of services furnished, except that (a) no expert witness shall be compensated at a rate in excess of the highest rates of compensation for expert witnesses paid by the state [Title 4 RCW—page 66] of Washington, and (b) attorneys’ fees shall not be awarded in excess of one hundred fifty dollars per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee. (4) "Judicial review" means a judicial review as defined by chapter 34.05 RCW. (5) "Qualified party" means (a) an individual whose net worth did not exceed one million dollars at the time the initial petition for judicial review was filed or (b) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization whose net worth did not exceed five million dollars at the time the initial petition for judicial review was filed, except that an organization described in section 501(c)(3) of the federal internal revenue code of 1954 as exempt from taxation under section 501(a) of the code and a cooperative association as defined in section 15(a) of the agricultural marketing act (12 U.S.C. 1141J(a)), may be a party regardless of the net worth of such organization or cooperative association. [1995 c 403 § 902.] Findings—1995 c 403: "The legislature finds that certain individuals, smaller partnerships, smaller corporations, and other organizations may be deterred from seeking review of or defending against an unreasonable agency action because of the expense involved in securing the vindication of their rights in administrative proceedings. The legislature further finds that because of the greater resources and expertise of the state of Washington, individuals, smaller partnerships, smaller corporations, and other organizations are often deterred from seeking review of or defending against state agency actions because of the costs for attorneys, expert witnesses, and other costs. The legislature therefore adopts this equal access to justice act to ensure that these parties have a greater opportunity to defend themselves from inappropriate state agency actions and to protect their rights." [1995 c 403 § 901.] Findings—Short title—Intent—1995 c 403: See note following RCW 34.05.328. Part headings not law—Severability—1995 c 403: See RCW 43.05.903 and 43.05.904. 4.84.350 4.84.350 Judicial review of agency action—Award of fees and expenses. (1) Except as otherwise specifically provided by statute, a court shall award a qualified party that prevails in a judicial review of an agency action fees and other expenses, including reasonable attorneys’ fees, unless the court finds that the agency action was substantially justified or that circumstances make an award unjust. A qualified party shall be considered to have prevailed if the qualified party obtained relief on a significant issue that achieves some benefit that the qualified party sought. (2) The amount awarded a qualified party under subsection (1) of this section shall not exceed twenty-five thousand dollars. Subsection (1) of this section shall not apply unless all parties challenging the agency action are qualified parties. If two or more qualified parties join in an action, the award in total shall not exceed twenty-five thousand dollars. The court, in its discretion, may reduce the amount to be awarded pursuant to subsection (1) of this section, or deny any award, to the extent that a qualified party during the course of the proceedings engaged in conduct that unduly or unreasonably protracted the final resolution of the matter in controversy. [1995 c 403 § 903.] Findings—1995 c 403: See note following RCW 4.84.340. Findings—Short title—Intent—1995 c 403: See note following RCW 34.05.328. (2006 Ed.) Appeals Part headings not law—Severability—1995 c 403: See RCW 43.05.903 and 43.05.904. 4.84.360 4.84.360 Judicial review of agency action—Payment of fees and expenses—Report to office of financial management. Fees and other expenses awarded under RCW 4.84.340 and 4.84.350 shall be paid by the agency over which the party prevails from operating funds appropriated to the agency within sixty days. Agencies paying fees and other expenses pursuant to RCW 4.84.340 and 4.84.350 shall report all payments to the office of financial management within five days of paying the fees and other expenses. Fees and other expenses awarded by the court shall be subject to the provisions of chapter 39.76 RCW and shall be deemed payable on the date the court announces the award. [1995 c 403 § 904.] 4.92.005 reason of poverty to procure counsel to perfect the review all costs necessarily incident to the proper consideration of the review including preparation of the record, reasonable fees for court appointed counsel to be determined by the supreme court, and actual travel expenses of counsel for appearance in the supreme court or court of appeals, shall be paid by the state. Upon satisfaction of requirements established by supreme court rules and submission of appropriate vouchers to the clerk of the supreme court, payment shall be made from funds specifically appropriated by the legislature for that purpose. [1975 1st ex.s. c 261 § 2. Prior: 1972 ex.s. c 111 § 2; 1970 ex.s. c 31 § 2; 1965 c 133 § 2. Formerly RCW 10.01.112.] Severability—1965 c 133: See note following RCW 2.32.240. Transcript of testimony—Fee—Forma pauperis: RCW 2.32.240. Findings—1995 c 403: See note following RCW 4.84.340. Chapter 4.92 RCW ACTIONS AND CLAIMS AGAINST STATE Chapter 4.92 Findings—Short title—Intent—1995 c 403: See note following RCW 34.05.328. Part headings not law—Severability—1995 c 403: See RCW 43.05.903 and 43.05.904. 4.84.370 4.84.370 Appeal of land use decisions—Fees and costs. (1) Notwithstanding any other provisions of this chapter, reasonable attorneys’ fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals or the supreme court of a decision by a county, city, or town to issue, condition, or deny a development permit involving a site-specific rezone, zoning, plat, conditional use, variance, shoreline permit, building permit, site plan, or similar land use approval or decision. The court shall award and determine the amount of reasonable attorneys’ fees and costs under this section if: (a) The prevailing party on appeal was the prevailing or substantially prevailing party before the county, city, or town, or in a decision involving a substantial development permit under chapter 90.58 RCW, the prevailing party on appeal was the prevailing party or the substantially prevailing party before the shoreline[s] hearings board; and (b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings. (2) In addition to the prevailing party under subsection (1) of this section, the county, city, or town whose decision is on appeal is considered a prevailing party if its decision is upheld at superior court and on appeal. [1995 c 347 § 718.] Finding—Severability—Part headings and table of contents not law—1995 c 347: See notes following RCW 36.70A.470. Chapter 4.88 Chapter 4.88 RCW APPEALS 4.92.005 4.92.006 4.92.010 4.92.020 4.92.030 4.92.040 4.92.045 4.92.050 4.92.060 4.92.070 4.92.075 4.92.080 4.92.090 4.92.100 4.92.110 4.92.120 4.92.130 4.92.150 4.92.160 4.92.175 4.92.200 4.92.210 4.92.220 4.92.230 4.92.240 4.92.250 4.92.260 4.92.270 4.92.280 "Volunteer"—Definition. Definitions. Where brought—Change of venue. Service of summons and complaint. Duties of attorney general—Procedure. Judgments—Claims to legislature against state—Payment procedure—Inapplicability to judgments and claims against housing finance commission. Interest on judgments against state. Limitations. Action against state officers, employees, volunteers, or foster parents—Request for defense. Actions against state officers, employees, volunteers, or foster parents—Defense by attorney general—Legal expenses. Action against state officers, employees, or volunteers—Judgment satisfied by state. Bond not required of state. Tortious conduct of state—Liability for damages. Tortious conduct of state or its agents—Claims—Presentment and filing—Contents. Tortious conduct of state or its agents—Presentment and filing of claim prerequisite to suit. Tortious conduct of state—Assignment of claims. Tortious conduct of state—Liability account—Purpose. Compromise and settlement of claims by attorney general. Payment of claims and judgments. Action against state patrol officers in private law enforcement off-duty employment—Immunity of state—Notice to employer. Actions against state on state warrant appearing to be redeemed—Claim required—Time limitation. Risk management—Review of claims—Settlements. Risk management administration account. Risk management—Advisory committee created—Duties. Rules. Risk management—Risk manager may delegate powers and duties. Construction. Risk management—Standard indemnification agreements. Local government reimbursement claims. Actions against political subdivisions, municipal corporations and quasi municipal corporations: Chapter 4.96 RCW. Sections 4.88.330 Sections Indigent party—State payment of review costs. Rule-making power of court of appeals: RCW 2.06.030, 2.06.040. supreme court: RCW 2.04.180 through 2.04.210. Claims, reports, etc., filing and receipt: RCW 1.12.070. Hood Canal bridge, use for sport fishing purposes—Disclaimer of liability: RCW 47.56.366. Liability coverage of university personnel and students: RCW 28B.20.250 through 28B.20.255. 4.88.330 4.88.330 Indigent party—State payment of review costs. When a party has been judicially determined to have a constitutional right to obtain a review and to be unable by (2006 Ed.) 4.92.005 4.92.005 "Volunteer"—Definition. For the purposes of RCW 4.92.060, 4.92.070, 4.92.130, *4.92.140, and [Title 4 RCW—page 67] 4.92.006 Title 4 RCW: Civil Procedure 4.92.150, volunteer is defined in RCW 51.12.035. [1985 c 217 § 6.] *Reviser’s note: RCW 4.92.140 was repealed by 1989 c 419 § 18, effective July 1, 1989. 4.92.006 4.92.006 Definitions. As used in this chapter: (1) "Office" means the office of financial management. (2) "Director" means the director of financial management. (3) "Risk management division" means the division of the office of financial management that carries out the powers and duties under this chapter relating to claim filing, claims administration, and claims payment. (4) "Risk manager" means the person supervising the risk management division. [2002 c 332 § 10; 1989 c 419 § 2.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Intent—1989 c 419: "In recent years the state of Washington has experienced significant increases in public liability claims. It is the intent of the legislature to reduce tort claim costs by restructuring Washington state’s risk management program to place more accountability in state agencies, to establish an actuarially sound funding mechanism for paying legitimate claims, when they occur, and to establish an effective safety and loss control program." [1989 c 419 § 1.] Effective date—1989 c 419: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1989." [1989 c 419 § 19.] 4.92.010 4.92.010 Where brought—Change of venue. Any person or corporation having any claim against the state of Washington shall have a right of action against the state in the superior court. The venue for such actions shall be as follows: (1) The county of the residence or principal place of business of one or more of the plaintiffs; (2) The county where the cause of action arose; (3) The county in which the real property that is the subject of the action is situated; (4) The county where the action may be properly commenced by reason of the joinder of an additional defendant; or (5) Thurston county. Actions shall be subject to change of venue in accordance with statute, rules of court, and the common law as the same now exist or may hereafter be amended, adopted, or altered. Actions shall be tried in the county in which they have been commenced in the absence of a seasonable motion by or in behalf of the state to change the venue of the action. [1986 c 126 § 1; 1973 c 44 § 1; 1963 c 159 § 1; 1927 c 216 § 1; 1895 c 95 § 1; RRS § 886.] Severability—1963 c 159: "If any provision of this act, or its application to any persons or circumstances is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1963 c 159 § 12.] Venue: Chapter 4.12 RCW. 4.92.020 4.92.020 Service of summons and complaint. Service of summons and complaint in such actions shall be served in the manner prescribed by law upon the attorney general, or by leaving the summons and complaint in the office of the [Title 4 RCW—page 68] attorney general with an assistant attorney general. [1986 c 126 § 2; 1927 c 216 § 2; 1895 c 95 § 2; RRS § 887.] 4.92.030 4.92.030 Duties of attorney general—Procedure. The attorney general or an assistant attorney general shall appear and act as counsel for the state. The action shall proceed in all respects as other actions. Appellate review may be sought as in other actions or proceedings, but in case review is sought by the state, no bond shall be required of the appellant. [1988 c 202 § 3; 1986 c 126 § 3; 1971 c 81 § 24; 1895 c 95 § 3; RRS § 888.] Severability—1988 c 202: See note following RCW 2.24.050. 4.92.040 4.92.040 Judgments—Claims to legislature against state—Payment procedure—Inapplicability to judgments and claims against housing finance commission. (1) No execution shall issue against the state on any judgment. (2) Whenever a final judgment against the state is obtained in an action on a claim arising out of tortious conduct, the claim shall be paid from the liability account. (3) Whenever a final judgment against the state shall have been obtained in any other action, the clerk of the court shall make and furnish to the risk management division a duly certified copy of such judgment; the risk management division shall thereupon audit the amount of damages and costs therein awarded, and the same shall be paid from appropriations specifically provided for such purposes by law. (4) Final judgments for which there are no provisions in state law for payment shall be transmitted by the risk management division to the senate and house of representatives committees on ways and means as follows: (a) On the first day of each session of the legislature, the risk management division shall transmit judgments received and audited since the adjournment of the previous session of the legislature. (b) During each session of legislature, the risk management division shall transmit judgments immediately upon completion of audit. (5) All claims, other than judgments, made to the legislature against the state of Washington for money or property, shall be accompanied by a statement of the facts on which such claim is based and such evidence as the claimant intends to offer in support of the claim and shall be filed with the risk management division, which shall retain the same as a record. All claims of two thousand dollars or less shall be approved or rejected by the risk management division, and if approved shall be paid from appropriations specifically provided for such purpose by law. Such decision, if adverse to the claimant in whole or part, shall not preclude the claimant from seeking relief from the legislature. If the claimant accepts any part of his or her claim which is approved for payment by the risk management division, such acceptance shall constitute a waiver and release of the state from any further claims relating to the damage or injury asserted in the claim so accepted. The risk management division shall submit to the house and senate committees on ways and means, at the beginning of each regular session, a comprehensive list of all claims paid pursuant to this subsection during the preceding year. For all claims not approved by the risk manage(2006 Ed.) Actions and Claims Against State ment division, the risk management division shall recommend to the legislature whether such claims should be approved or rejected. Recommendations shall be submitted to the senate and house of representatives committees on ways and means not later than the thirtieth day of each regular session of the legislature. Claims which cannot be processed for timely submission of recommendations shall be held for submission during the following regular session of the legislature. The recommendations shall include, but not be limited to: (a) A summary of the facts alleged in the claim, and a statement as to whether these facts can be verified by the risk management division; (b) An estimate by the risk management division of the value of the loss or damage which was alleged to have occurred; (c) An analysis of the legal liability, if any, of the state for the alleged loss or damage; and (d) A summary of equitable or public policy arguments which might be helpful in resolving the claim. (6) The legislative committees to whom such claims are referred shall make a transcript, recording, or statement of the substance of the evidence given in support of such a claim. If the legislature approves a claim the same shall be paid from appropriations specifically provided for such purpose by law. (7) Subsections (3) through (6) of this section do not apply to judgments or claims against the state housing finance commission created under chapter 43.180 RCW. [2002 c 332 § 11; 1999 c 163 § 3; 1986 c 126 § 4; 1983 c 161 § 28; 1979 ex.s. c 167 § 1; 1979 c 151 § 2; 1977 ex.s. c 144 § 1; 1963 c 159 § 6; 1895 c 95 § 4; RRS § 889.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Effective date—1999 c 163: See note following RCW 4.92.130. Severability—Effective dates—1983 c 161: See RCW 43.180.903 and 43.180.904. 4.92.090 Findings—1989 c 403: "The legislature finds and declares that foster parents are a valuable resource providing an important service to the citizens of Washington. The legislature further recognizes that the current insurance crisis has adversely affected some foster-family homes in several ways: (1) In some locales, foster parents are unable to obtain liability insurance coverage over and above homeowner’s or tenant’s coverage for actions filed against them by the foster child or the child’s parents or legal guardian. In addition, the monthly payment made to foster-family homes is not sufficient to cover the cost of obtaining this extended coverage and there is no mechanism in place by which foster parents can recapture this cost; (2) foster parents’ personal resources are at risk. Therefore, the legislature is providing relief to address these problems." [1989 c 403 § 1.] 4.92.070 Actions against state officers, employees, volunteers, or foster parents—Defense by attorney general—Legal expenses. If the attorney general shall find that said officer, employee, or volunteer’s acts or omissions were, or were purported to be in good faith, within the scope of that person’s official duties, or, in the case of a foster parent, that the occurrence arose from the good faith provision of foster care services, said request shall be granted, in which event the necessary expenses of the defense of said action or proceeding relating to a state officer, employee, or volunteer shall be paid as provided in RCW 4.92.130. In the case of a foster parent, necessary expenses of the defense shall be paid from the appropriations made for the support of the department to which such foster parent is attached. In such cases the attorney general shall appear and defend such officer, employee, volunteer, or foster parent, who shall assist and cooperate in the defense of such suit. However, the attorney general may not represent or provide private representation for a foster parent in an action or proceeding brought by the department of social and health services against that foster parent. [1999 c 163 § 5; 1989 c 403 § 3; 1986 c 126 § 6; 1985 c 217 § 2; 1975 1st ex.s. c 126 § 2; 1975 c 40 § 2; 1921 c 79 § 2; RRS § 890-2.] 4.92.070 Effective date—1999 c 163: See note following RCW 4.92.130. Findings—1989 c 403: See note following RCW 4.92.060. 4.92.075 Action against state officers, employees, or volunteers—Judgment satisfied by state. When a state officer, employee, or volunteer has been represented by the attorney general pursuant to RCW 4.92.070, and the body presiding over the action or proceeding has found that the officer, employee, or volunteer was acting within the scope of his or her official duties, and a judgment has been entered against the officer, employee, or volunteer pursuant to chapter 4.92 RCW or 42 U.S.C. Sec. 1981 et seq., thereafter the judgment creditor shall seek satisfaction only from the state, and the judgment shall not become a lien upon any property of such officer, employee, or volunteer. [1989 c 413 § 2.] 4.92.075 4.92.045 4.92.045 Interest on judgments against state. RCW 4.56.115. See 4.92.050 4.92.050 Limitations. All provisions of law relating to the limitations of personal actions shall apply to claims against the state, but the computation of time thereunder shall not begin until RCW 4.92.010 through 4.92.050 shall have become a law. [1895 c 95 § 5; RRS § 890.] 4.92.060 4.92.060 Action against state officers, employees, volunteers, or foster parents—Request for defense. Whenever an action or proceeding for damages shall be instituted against any state officer, including state elected officials, employee, volunteer, or foster parent licensed in accordance with chapter 74.15 RCW, arising from acts or omissions while performing, or in good faith purporting to perform, official duties, or, in the case of a foster parent, arising from the good faith provision of foster care services, such officer, employee, volunteer, or foster parent may request the attorney general to authorize the defense of said action or proceeding at the expense of the state. [1989 c 403 § 2; 1986 c 126 § 5; 1985 c 217 § 1; 1975 1st ex.s. c 126 § 1; 1975 c 40 § 1; 1921 c 79 § 1; RRS § 890-1.] (2006 Ed.) 4.92.080 Bond not required of state. No bond shall be required of the state of Washington for any purpose in any case in any of the courts of the state of Washington and the state of Washington shall be, on proper showing, entitled to any orders, injunctions and writs of whatever nature without bond notwithstanding the provisions of any existing statute requiring that bonds be furnished by private parties. [1935 c 122 § 1; RRS § 390-3.] 4.92.080 4.92.090 Tortious conduct of state—Liability for damages. The state of Washington, whether acting in its 4.92.090 [Title 4 RCW—page 69] 4.92.100 Title 4 RCW: Civil Procedure governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. [1963 c 159 § 2; 1961 c 136 § 1.] 4.92.100 4.92.100 Tortious conduct of state or its agents— Claims—Presentment and filing—Contents. All claims against the state, or against the state’s officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct shall be presented to and filed with the risk management division. All such claims shall be verified and shall accurately describe the conduct and circumstances which brought about the injury or damage, describe the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time the claim arose. If the claimant is incapacitated from verifying, presenting, and filing the claim or if the claimant is a minor, or is a nonresident of the state, the claim may be verified, presented, and filed on behalf of the claimant by any relative, attorney, or agent representing the claimant. With respect to the content of such claims this section shall be liberally construed so that substantial compliance will be deemed satisfactory. [2006 c 82 § 1; 2002 c 332 § 12; 1986 c 126 § 7; 1979 c 151 § 3; 1977 ex.s. c 144 § 2; 1967 c 164 § 2; 1963 c 159 § 3.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Purpose—Severability—1967 c 164: See notes following RCW 4.96.010. Puget Sound ferry and toll bridge system, claims against: RCW 47.60.250. 4.92.110 4.92.110 Tortious conduct of state or its agents—Presentment and filing of claim prerequisite to suit. No action shall be commenced against the state, or against any state officer, employee, or volunteer, acting in such capacity, for damages arising out of tortious conduct until sixty days have elapsed after the claim is presented to and filed with the risk management division. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty-day period. [2006 c 82 § 2; 2002 c 332 § 13; 1989 c 419 § 14; 1986 c 126 § 8; 1979 c 151 § 4; 1977 ex.s. c 144 § 3; 1963 c 159 § 4.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Intent—Effective date—1989 c 419: See notes following RCW 4.92.006. 4.92.120 4.92.120 Tortious conduct of state—Assignment of claims. Claims against the state arising out of tortious conduct may be assigned voluntarily, involuntarily, and by operation of law to the same extent as like claims against private persons may be so assigned. [1963 c 159 § 5.] 4.92.130 Tortious conduct of state—Liability account—Purpose. A liability account in the custody of the treasurer is hereby created as a nonappropriated account to be used solely and exclusively for the payment of liability settle- ments and judgments against the state under 42 U.S.C. Sec. 1981 et seq. or for the tortious conduct of its officers, employees, and volunteers and all related legal defense costs. (1) The purpose of the liability account is to: (a) Expeditiously pay legal liabilities and defense costs of the state resulting from tortious conduct; (b) promote risk control through a cost allocation system which recognizes agency loss experience, levels of self-retention, and levels of risk exposure; and (c) establish an actuarially sound system to pay incurred losses, within defined limits. (2) The liability account shall be used to pay claims for injury and property damages and legal defense costs exclusive of agency-retained expenses otherwise budgeted. (3) No money shall be paid from the liability account, except for defense costs, unless all proceeds available to the claimant from any valid and collectible liability insurance shall have been exhausted and unless: (a) The claim shall have been reduced to final judgment in a court of competent jurisdiction; or (b) The claim has been approved for payment. (4) The liability account shall be financed through annual premiums assessed to state agencies, based on sound actuarial principles, and shall be for liability coverage in excess of agency-budgeted self-retention levels. (5) Annual premium levels shall be determined by the risk manager, with the consultation and advice of the risk management advisory committee. An actuarial study shall be conducted to assist in determining the appropriate level of funding. (6) Disbursements for claims from the liability account shall be made to the claimant, or to the clerk of the court for judgments, upon written request to the state treasurer from the risk manager. (7) The director may direct agencies to transfer moneys from other funds and accounts to the liability account if premiums are delinquent. (8) The liability account shall not exceed fifty percent of the actuarial value of the outstanding liability as determined annually by the risk management division. If the account exceeds the maximum amount specified in this section, premiums may be adjusted by the risk management division in order to maintain the account balance at the maximum limits. If, after adjustment of premiums, the account balance remains above the limits specified, the excess amount shall be prorated back to the appropriate funds. [2002 c 332 § 14; 1999 c 163 § 1; 1991 sp.s. c 13 § 92; 1989 c 419 § 4; 1985 c 217 § 3; 1975 1st ex.s. c 126 § 3; 1969 c 140 § 1; 1963 c 159 § 7.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Transfer of funds—Fund abolished—1999 c 163: "Moneys in the tort claims revolving fund shall be deposited in the liability account on July 1, 1999, to be used for payment of settlements, judgments, and legal defense costs as provided in RCW 4.92.130." [1999 c 163 § 2.] Effective date—1999 c 163: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 1999." [1999 c 163 § 10.] 4.92.130 [Title 4 RCW—page 70] Effective dates—Severability—1991 sp.s. c 13: See notes following RCW 18.08.240. Transfer of funds—Fund abolished—1989 c 419: "Moneys in the tort claims revolving fund shall be deposited in the liability account to be used (2006 Ed.) Actions and Claims Against State for payment of liabilities incurred before July 1, 1989. The tort claim revolving fund is abolished." [1989 c 419 § 13.] Intent—Effective date—1989 c 419: See notes following RCW 4.92.006. Severability—1969 c 140: "If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1969 c 140 § 5.] Actions against regents, trustees, etc., of institutions of higher education or educational boards, payments of obligations from liability account: RCW 28B.10.842. Department of general administration to conduct actuarial studies: RCW 43.41.340. 4.92.150 4.92.150 Compromise and settlement of claims by attorney general. After commencement of an action in a court of competent jurisdiction upon a claim against the state, or any of its officers, employees, or volunteers arising out of tortious conduct or pursuant to 42 U.S.C. Sec. 1981 et seq., or against a foster parent that the attorney general is defending pursuant to RCW 4.92.070, or upon petition by the state, the attorney general, with the prior approval of the risk management division and with the approval of the court, following such testimony as the court may require, may compromise and settle the same and stipulate for judgment against the state, the affected officer, employee, volunteer, or foster parent. [2002 c 332 § 15; 1989 c 403 § 4. Prior: 1985 c 217 § 5; 1985 c 188 § 9; 1979 ex.s. c 144 § 2; 1975 1st ex.s. c 126 § 5; 1963 c 159 § 9.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Findings—1989 c 403: See note following RCW 4.92.060. 4.92.210 Duty of clerk to forward copy of judgment: RCW 4.92.040. 4.92.175 4.92.175 Action against state patrol officers in private law enforcement off-duty employment—Immunity of state—Notice to employer. (1) The state of Washington is not liable for tortious conduct by Washington state patrol officers that occurs while such officers are engaged in private law enforcement off-duty employment. (2) Upon petition of the state any suit, for which immunity is granted to the state under subsection (1) of this section, shall be dismissed. (3) Washington state patrol officers engaged in private law enforcement off-duty employment shall notify, in writing, prior to such employment, anyone who employs Washington state patrol officers in private off-duty employment of the specific provisions of subsections (1) and (2) of this section. [1997 c 375 § 2.] 4.92.200 4.92.200 Actions against state on state warrant appearing to be redeemed—Claim required—Time limitation. No action shall be commenced against the state on account of any state warrant appearing to have been redeemed unless a claim has been presented and filed with the state treasurer within six years of the date of issuance of such warrant. The requirements of this section shall not extend or modify the period of limitations otherwise applicable within which an action must be commenced, but such period shall begin and shall continue to run as if no claim were required. [1975 c 48 § 1.] State warrants: RCW 43.08.061 through 43.08.080. 4.92.160 4.92.160 Payment of claims and judgments. Payment of claims and judgments arising out of tortious conduct or pursuant to 42 U.S.C. Sec. 1981 et seq. shall not be made by any agency or department of state government with the exception of the risk management division, and that division shall authorize and direct the payment of moneys only from the liability account whenever: (1) The head or governing body of any agency or department of state or the designee of any such agency certifies to the risk management division that a claim has been settled; or (2) The clerk of court has made and forwarded a certified copy of a final judgment in a court of competent jurisdiction and the attorney general certifies that the judgment is final and was entered in an action on a claim arising out of tortious conduct or under and pursuant to 42 U.S.C. Sec. 1981 et seq. Payment of a judgment shall be made to the clerk of the court for the benefit of the judgment creditors. Upon receipt of payment, the clerk shall satisfy the judgment against the state. [2002 c 332 § 16; 1999 c 163 § 4; 1991 c 187 § 3; 1986 c 126 § 9; 1979 ex.s. c 144 § 3; 1979 c 151 § 5; 1975 1st ex.s. c 126 § 6; 1969 c 140 § 2; 1963 c 159 § 10.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Effective date—1999 c 163: See note following RCW 4.92.130. Intent—1991 c 187: "It is the intent of the legislature that the tort claims revolving fund created under section 1 of this act have [has] the same purpose, use, and application as the tort claims revolving fund abolished effective July 1, 1989, by the legislature in chapter 419, Laws of 1989." [1991 c 187 § 2.] Severability—1969 c 140: See note following RCW 4.92.130. (2006 Ed.) 4.92.210 4.92.210 Risk management—Review of claims—Settlements. (1) All liability claims arising out of tortious conduct or under 42 U.S.C. Sec. 1981 et seq. that the state of Washington or any of its officers, employees, or volunteers would be liable for shall be filed with the risk management division. (2) A centralized claim tracking system shall be maintained to provide agencies with accurate and timely data on the status of liability claims. Information in this claim file, other than the claim itself, shall be privileged and confidential. (3) Standardized procedures shall be established for filing, reporting, processing, and adjusting claims, which includes the use of qualified claims management personnel. (4) All claims shall be reviewed by the risk management division to determine an initial valuation, to delegate to the appropriate office to investigate, negotiate, compromise, and settle the claim, or to retain that responsibility on behalf of and with the assistance of the affected state agency. (5) All claims that result in a lawsuit shall be forwarded to the attorney general’s office. Thereafter the attorney general and the risk management division shall collaborate in the investigation, denial, or settlement of the claim. (6) Reserves shall be established for recognizing financial liability and monitoring effectiveness. The valuation of specific claims against the state shall be privileged and confidential. [Title 4 RCW—page 71] 4.92.220 Title 4 RCW: Civil Procedure (7) All settlements shall be approved by the responsible agencies, or their designees, prior to settlement. [2002 c 332 § 17; 1989 c 419 § 3.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Intent—Effective date—1989 c 419: See notes following RCW 4.92.006. (e) Preparing recommendations for containment of risk exposures. [2002 c 332 § 19; 1989 c 419 § 7.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Intent—Effective date—1989 c 419: See notes following RCW 4.92.006. 4.92.240 4.92.220 4.92.220 Risk management administration account. (1) The risk management administration account is created in the custody of the state treasurer. All receipts from appropriations and assessments shall be deposited into the account. Only the director or the director’s designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but no appropriation is required for expenditures. (2) The risk management administration account is to be used for the payment of costs related to: (a) The appropriated administration of liability, property, and vehicle claims, including investigation, claim processing, negotiation, and settlement, and other expenses relating to settlements and judgments against the state not otherwise budgeted; and (b) The nonappropriated pass-through cost associated with the purchase of liability and property insurance, including catastrophic insurance, subject to policy conditions and limitations determined by the risk manager. (3) The risk management administration account’s appropriation for risk management shall be financed through a combination of direct appropriations and assessments to state agencies. [2002 c 332 § 18; 1998 c 105 § 2; 1995 c 137 § 1; 1991 sp.s. c 13 § 91; 1989 c 419 § 5.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Effective date—1998 c 105: See note following RCW 43.19.025. Effective dates—Severability—1991 sp.s. c 13: See notes following RCW 18.08.240. 4.92.240 Rules. The director has the power to adopt rules necessary to carry out the intent of this chapter. [2002 c 332 § 20; 1989 c 419 § 8.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Intent—Effective date—1989 c 419: See notes following RCW 4.92.006. 4.92.250 4.92.250 Risk management—Risk manager may delegate powers and duties. The risk manager may delegate to a state agency the authority to carry out any powers or duties of the risk manager under this chapter related to claims administration and purchase of insurance for the purpose of protecting any classes of officers, employees, or for other persons performing services for the state. Such delegation shall be made only upon a determination by the risk manager that another agency has sufficient resources to carry out the functions delegated. [1989 c 419 § 9.] Intent—Effective date—1989 c 419: See notes following RCW 4.92.006. 4.92.260 4.92.260 Construction. Nothing in this chapter shall be construed as amending, repealing, or otherwise affecting RCW 28B.20.250 through 28B.20.255. [1989 c 419 § 10.] Intent—Effective date—1989 c 419: See notes following RCW 4.92.006. 4.92.270 Intent—Effective date—1989 c 419: See notes following RCW 4.92.006. 4.92.230 4.92.230 Risk management—Advisory committee created—Duties. (1) The director shall establish an ongoing risk management advisory committee. Members of the committee may include but shall not be limited to directors or deputy directors of state agencies, presidents or vice-presidents of institutions of higher education, or representatives of local government or the private sector. (2) The director or his or her designee shall serve as chair. The committee shall meet upon call of the chairperson and shall adopt rules for the conduct of its business. (3) The risk management advisory committee shall provide guidance in: (a) Determining appropriate roles, responsibilities of the risk management division, and policies regarding statewide risk management; (b) Establishing premiums or other cost allocation systems; (c) Determining appropriate programs and coverages for self-insurance versus insurance; (d) Developing risk retention pools; and [Title 4 RCW—page 72] 4.92.270 Risk management—Standard indemnification agreements. The risk manager shall develop procedures for standard indemnification agreements for state agencies to use whenever the agency agrees to indemnify, or be indemnified by, any person or party. The risk manager shall also develop guidelines for the use of indemnification agreements by state agencies. On request of the risk manager, an agency shall forward to the risk management division for review and approval any contract or agreement containing an indemnification agreement. [2002 c 332 § 21; 1989 c 419 § 15.] Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Intent—Effective date—1989 c 419: See notes following RCW 4.92.006. 4.92.280 4.92.280 Local government reimbursement claims. If chapter 217, Laws of 1998 mandates an increased level of service by local governments, the local government may, under RCW 43.135.060 and chapter 4.92 RCW, submit claims for reimbursement by the legislature. The claims shall be subject to verification by the office of financial management. [1998 c 217 § 4.] (2006 Ed.) Actions Against Political Subdivisions, Municipal and Quasi-Municipal Corporations Chapter 4.96 Chapter 4.96 RCW ACTIONS AGAINST POLITICAL SUBDIVISIONS, MUNICIPAL AND QUASI-MUNICIPAL CORPORATIONS Sections 4.96.010 4.96.020 4.96.030 4.96.041 4.96.050 Tortious conduct of local governmental entities—Liability for damages. Tortious conduct of local governmental entities and their agents—Claims—Presentment and filing—Contents. Interest on judgments against political subdivisions, municipal corporations or quasi-municipal corporations. Action or proceeding against officer, employee, or volunteer of local governmental entity—Payment of damages and expenses of defense. Bond not required. Claims, reports, etc., filing and receipt: RCW 1.12.070. Liability of public officials and governing body members: RCW 4.24.470. 4.96.010 4.96.010 Tortious conduct of local governmental entities—Liability for damages. (1) All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation. Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages. The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory. (2) Unless the context clearly requires otherwise, for the purposes of this chapter, "local governmental entity" means a county, city, town, special district, municipal corporation as defined in RCW 39.50.010, quasi-municipal corporation, or public hospital. (3) For the purposes of this chapter, "volunteer" is defined according to RCW 51.12.035. [2001 c 119 § 1; 1993 c 449 § 2; 1967 c 164 § 1.] Purpose—1993 c 449: "This act is designed to provide a single, uniform procedure for bringing a claim for damages against a local governmental entity. The existing procedures, contained in chapter 36.45 RCW, counties, chapter 35.31 RCW, cities and towns, chapter 35A.31 RCW, optional municipal code, and chapter 4.96 RCW, other political subdivisions, municipal corporations, and quasi-municipal corporations, are revised and consolidated into chapter 4.96 RCW." [1993 c 449 § 1.] Severability—1993 c 449: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1993 c 449 § 15.] Purpose—1967 c 164: "It is the purpose of this act to extend the doctrine established in chapter 136, Laws of 1961, as amended, to all political subdivisions, municipal corporations and quasi municipal corporations of the state." [1967 c 164 § 17.] Severability—1967 c 164: "If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1967 c 164 § 18.] 4.96.020 4.96.020 Tortious conduct of local governmental entities and their agents—Claims—Presentment and filing—Contents. (1) The provisions of this section apply to claims for damages against all local governmental entities and their officers, employees, or volunteers, acting in such capacity. (2006 Ed.) 4.96.041 (2) The governing body of each local governmental entity shall appoint an agent to receive any claim for damages made under this chapter. The identity of the agent and the address where he or she may be reached during the normal business hours of the local governmental entity are public records and shall be recorded with the auditor of the county in which the entity is located. All claims for damages against a local governmental entity, or against any local governmental entity’s officers, employees, or volunteers, acting in such capacity, shall be presented to the agent within the applicable period of limitations within which an action must be commenced. The failure of a local governmental entity to comply with the requirements of this section precludes that local governmental entity from raising a defense under this chapter. (3) All claims for damages arising out of tortious conduct must locate and describe the conduct and circumstances which brought about the injury or damage, describe the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time the claim arose. If the claimant is incapacitated from verifying, presenting, and filing the claim in the time prescribed or if the claimant is a minor, or is a nonresident of the state absent therefrom during the time within which the claim is required to be filed, the claim may be verified, presented, and filed on behalf of the claimant by any relative, attorney, or agent representing the claimant. (4) No action shall be commenced against any local governmental entity, or against any local governmental entity’s officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty-day period. [2006 c 82 § 3; 2001 c 119 § 2; 1993 c 449 § 3; 1967 c 164 § 4.] Purpose—Severability—1993 c 449: See notes following RCW 4.96.010. 4.96.030 4.96.030 Interest on judgments against political subdivisions, municipal corporations or quasi-municipal corporations. See RCW 4.56.115. 4.96.041 Action or proceeding against officer, employee, or volunteer of local governmental entity— Payment of damages and expenses of defense. (1) Whenever an action or proceeding for damages is brought against any past or present officer, employee, or volunteer of a local governmental entity of this state, arising from acts or omissions while performing or in good faith purporting to perform his or her official duties, such officer, employee, or volunteer may request the local governmental entity to authorize the defense of the action or proceeding at the expense of the local governmental entity. (2) If the legislative authority of the local governmental entity, or the local governmental entity using a procedure created by ordinance or resolution, finds that the acts or omissions of the officer, employee, or volunteer were, or in good 4.96.041 [Title 4 RCW—page 73] 4.96.050 Title 4 RCW: Civil Procedure faith purported to be, within the scope of his or her official duties, the request shall be granted. If the request is granted, the necessary expenses of defending the action or proceeding shall be paid by the local governmental entity. Any monetary judgment against the officer, employee, or volunteer shall be paid on approval of the legislative authority of the local governmental entity or by a procedure for approval created by ordinance or resolution. (3) The necessary expenses of defending an elective officer of the local governmental entity in a judicial hearing to determine the sufficiency of a recall charge as provided in *RCW 29.82.023 shall be paid by the local governmental entity if the officer requests such defense and approval is granted by both the legislative authority of the local governmental entity and the attorney representing the local governmental entity. The expenses paid by the local governmental entity may include costs associated with an appeal of the decision rendered by the superior court concerning the sufficiency of the recall charge. (4) When an officer, employee, or volunteer of the local governmental entity has been represented at the expense of the local governmental entity under subsection (1) of this section and the court hearing the action has found that the officer, employee, or volunteer was acting within the scope of his or her official duties, and a judgment has been entered against the officer, employee, or volunteer under chapter 4.96 RCW or 42 U.S.C. Sec. 1981 et seq., thereafter the judgment creditor shall seek satisfaction for nonpunitive damages only from the local governmental entity, and judgment for nonpunitive damages shall not become a lien upon any property of such officer, employee, or volunteer. The legislative authority of a local governmental entity may, pursuant to a procedure created by ordinance or resolution, agree to pay an award for punitive damages. [1993 c 449 § 4; 1989 c 250 § 1; 1979 ex.s. c 72 § 1. Formerly RCW 36.16.134.] *Reviser’s note: RCW 29.82.023 was recodified as RCW 29A.56.140 pursuant to 2003 c 111 § 2401, effective July 1, 2004. Purpose—Severability—1993 c 449: See notes following RCW 4.96.010. 4.96.050 Bond not required. No bond is required of any local governmental entity for any purpose in any case in any of the courts of the state of Washington and all local governmental entities shall be, on proper showing, entitled to any orders, injunctions, and writs of whatever nature without bond, notwithstanding the provisions of any existing statute requiring that bonds be furnished by private parties. [1993 c 449 § 5.] 4.96.050 Purpose—Severability—1993 c 449: See notes following RCW 4.96.010. [Title 4 RCW—page 74] (2006 Ed.) Title 5 EVIDENCE aTitle 5 Chapters 5.24 5.28 5.40 5.44 5.45 5.46 5.48 5.52 5.56 5.60 5.62 5.64 5.66 5.24.020 Manner of obtaining information. The court may inform itself of such laws in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information. [1941 c 82 § 2; Rem. Supp. 1941 § 1279.] 5.24.020 Uniform judicial notice of foreign laws act. Oaths and affirmations. Proof—General provisions. Proof—Public documents. Uniform business records as evidence act. Uniform photographic copies of business and public records as evidence act. Proof—Replacement of lost records. Telegraphic communications. Witnesses—Compelling attendance. Witnesses—Competency. Witnesses—Registered nurses. Admissibility of certain gestures of apology, sympathy, fault, etc. in civil actions against health care providers. Admissibility of certain gestures expressing sympathy. Rules of court: See Rules of Evidence (ER). 5.24.030 Determination by court—Review. The determination of such laws shall be made by the court and not by the jury and shall be reviewable. [1941 c 82 § 3; Rem. Supp. 1941 § 1280.] 5.24.030 5.24.040 Necessity of pleading foreign laws. This chapter shall not be construed to relieve any party of the duty of hereafter pleading such laws where required under the law and practice of this state. [1981 c 331 § 14; 1941 c 82 § 4; Rem. Supp. 1941 § 1281.] 5.24.040 Court Congestion Reduction Act of 1981—Purpose—Severability—1981 c 331: See notes following RCW 2.32.070. City codes as evidence: RCW 35.21.550. Corporate seals, effect of absence from instrument: RCW 64.04.105. Deposition, definitions: RCW 9A.72.010. District courts, witnesses and depositions: Chapter 12.16 RCW. Domestic relations, spouse as witness: RCW 26.20.071. Method for recording of instruments: RCW 65.04.030, 65.04.040. Microfilming of records to provide continuity of civil government: Chapter 40.10 RCW. Order for examination of judgment debtor: RCW 6.32.010. Records of medical, dental, pharmaceutical, or hospital review boards, immunity from process: RCW 4.24.250. Superior court records, destruction, reproduction: RCW 36.23.065 through 36.23.070. Chapter 5.24 RCW UNIFORM JUDICIAL NOTICE OF FOREIGN LAWS ACT Chapter 5.24 5.24.050 Jurisdictions excepted. The law of any jurisdiction other than a state, territory or other jurisdiction of the United States shall be an issue for the court, but shall not be subject to the foregoing provisions concerning judicial notice. [1941 c 82 § 5; Rem. Supp. 1941 § 1282.] 5.24.050 5.24.060 Construction of chapter. This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it. [1941 c 82 § 6; Rem. Supp. 1941 § 1283.] 5.24.060 5.24.070 Short title. This chapter may be cited as the "Uniform Judicial Notice of Foreign Laws Act." [1941 c 82 § 7; Rem. Supp. 1941 § 1284.] 5.24.070 Chapter 5.28 Sections 5.24.010 5.24.020 5.24.030 5.24.040 5.24.050 5.24.060 5.24.070 Judicial notice of Constitution and laws. Manner of obtaining information. Determination by court—Review. Necessity of pleading foreign laws. Jurisdictions excepted. Construction of chapter. Short title. Rules of court: Cf. CR 9(k). City or town ordinances, evidence: RCW 5.44.080. Chapter 5.28 RCW OATHS AND AFFIRMATIONS Sections 5.28.010 5.28.020 5.28.030 5.28.040 5.28.050 5.28.060 Who may administer. How administered. Form may be varied. Form may be adapted to religious belief. Form of affirmation. Affirmation equivalent to oath. Rules of court: Cf. ER 603; CR 43(d). Oaths and mode of administering: State Constitution Art. 1 § 6. Foreign statutes as evidence: RCW 5.44.050. Uniform enforcement of foreign judgments act: Chapter 6.36 RCW. 5.24.010 5.24.010 Judicial notice of Constitution and laws. Every court of this state shall take judicial notice of the Constitution, common law, civil law, and statutes of every state, territory and other jurisdiction of the United States. [1941 c 82 § 1; Rem. Supp. 1941 § 1278.] (2006 Ed.) 5.28.010 Who may administer. Every court, judge, clerk of a court, or notary public, is authorized to take testimony in any action, suit or proceeding, and such other persons in particular cases as authorized by law. Every such court or officer is authorized to collect fees established under RCW 36.18.020 and 36.18.012 through 36.18.018 and to administer oaths and affirmations generally and to every such 5.28.010 [Title 5 RCW—page 1] 5.28.020 Title 5 RCW: Evidence other person in such particular case as authorized. [1995 c 292 § 1; 1987 c 202 § 124; 2 H. C. §1693; 1869 p 378 § 1; RRS § 1264.] Stolen property as evidence: RCW 9.54.130. Tampering with physical evidence: RCW 9A.72.150. 5.40.010 Intent—1987 c 202: See note following RCW 2.04.190. Oath of witness in superior court to be administered by judge: Rules of court: Cf. CR 43(d). Powers of courts, judicial officers to administer oaths: RCW 2.28.010, 2.28.060. 5.40.010 Pleadings do not constitute proof. Pleadings sworn to by either party in any case shall not, on the trial, be deemed proof of the facts alleged therein, nor require other or greater proof on the part of the adverse party. [Code 1881 § 741; 1877 p 151 § 746; 1854 p 219 § 484; RRS § 283.] 5.28.020 5.28.020 How administered. An oath may be administered as follows: The person who swears holds up his hand, while the person administering the oath thus addresses him: "You do solemnly swear that the evidence you shall give in the issue (or matter) now pending between . . . . . . . . and . . . . . . . . shall be the truth, the whole truth, and nothing but the truth, so help you God." If the oath be administered to any other than a witness giving testimony, the form may be changed to: "You do solemnly swear you will true answers make to such questions as you may be asked," etc. [2 H. C. §1694; 1869 p 378 § 2; RRS § 1265.] 5.40.020 5.40.020 Written finding of presumed death as prima facie evidence. A written finding of presumed death, made by the Secretary of War, the Secretary of the Navy, or other officer or employee of the United States authorized to make such finding, pursuant to the federal missing persons act (56 Stat. 143, 1092, and P.L. 408, Ch. 371, 2d Sess. 78th Cong.; U.S.C. App. Supp. 1001-17), as now or hereafter amended, or a duly certified copy of such finding, shall be received in any court, office or other place in this state as prima facie evidence of the death of the person therein found to be dead, and the date, circumstances and place of his disappearance. [1945 c 101 § 1; Rem. Supp. 1945 § 1257-1.] 5.28.030 5.28.030 Form may be varied. Whenever the court or officer before which a person is offered as a witness is satisfied that he has a peculiar mode of swearing connected with or in addition to the usual form of administration, which, in witness’ opinion, is more solemn or obligatory, the court or officer may, in its discretion, adopt that mode. [2 H. C. §1695; 1869 p 379 § 3; RRS § 1266.] 5.28.040 5.28.040 Form may be adapted to religious belief. When a person is sworn who believes in any other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there be any such. [2 H. C. §1696; 1869 p 379 § 4; RRS § 1267.] 5.28.050 5.28.050 Form of affirmation. Any person who has conscientious scruples against taking an oath, may make his solemn affirmation, by assenting, when addressed, in the following manner: "You do solemnly affirm that," etc., as in RCW 5.28.020. [2 H. C. §1697; 1869 p 379 § 5; RRS § 1268.] Severability—1945 c 101: "If any provision of this act or the application thereof to any person or circumstance be held invalid, such invalidity shall not affect any other provision or application of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable." [1945 c 101 § 4.] This applies to RCW 5.40.020 through 5.40.040. 5.40.030 5.40.030 Proof of missing in action, capture by enemy, etc. An official written report or record, or duly certified copy thereof, that a person is missing, missing in action, interned in a neutral country, or beleaguered, besieged or captured by an enemy, or is dead, or is alive, made by any officer or employee of the United States authorized by the act referred to in RCW 5.40.020 or by any other law of the United States to make same, shall be received in any court, office or other place in this state as prima facie evidence that such person is missing, missing in action, interned in a neutral country, or beleaguered, besieged or captured by an enemy, or is dead, or is alive, as the case may be. [1945 c 101 § 2; Rem. Supp. 1945 § 1257-2.] 5.40.040 5.28.060 5.28.060 Affirmation equivalent to oath. Whenever an oath is required, an affirmation, as prescribed in RCW 5.28.050 is to be deemed equivalent thereto, and a false affirmation is to be deemed perjury, equally with a false oath. [2 H. C. §1698; 1869 p 379 § 6; RRS § 1269.] Perjury: Chapter 9A.72 RCW. Chapter 5.40 Chapter 5.40 RCW PROOF—GENERAL PROVISIONS Sections 5.40.010 5.40.020 5.40.030 5.40.040 5.40.050 5.40.060 Pleadings do not constitute proof. Written finding of presumed death as prima facie evidence. Proof of missing in action, capture by enemy, etc. Proof of authenticity of signature to report or of certification. Breach of duty—Evidence of negligence—Negligence per se. Defense to personal injury or wrongful death action—Intoxicating liquor or any drug. Public documents, records and publications: Title 40 RCW. [Title 5 RCW—page 2] 5.40.040 Proof of authenticity of signature to report or of certification. For the purposes of RCW 5.40.020 and 5.40.030 any finding, report or record, or duly certified copy thereof, purporting to have been signed by such an officer or employee of the United States as is described in said sections, shall prima facie be deemed to have been signed and issued by such an officer or employee pursuant to law, and the person signing same shall prima facie be deemed to have acted within the scope of his authority. If a copy purports to have been certified by a person authorized by law to certify the same, such certified copy shall be prima facie evidence of his authority so to certify. [1945 c 101 § 3; Rem. Supp. 1945 § 1257-3.] 5.40.050 5.40.050 Breach of duty—Evidence of negligence— Negligence per se. A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any breach of duty as pro(2006 Ed.) Proof—Public Documents vided by statute, ordinance, or administrative rule relating to electrical fire safety, the use of smoke alarms, sterilization of needles and instruments used in tattooing or electrology as required under RCW 70.54.350, or driving while under the influence of intoxicating liquor or any drug, shall be considered negligence per se. [2001 c 194 § 5; 1986 c 305 § 901.] Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. 5.44.060 5.44.010 5.44.010 Court records and proceedings—When admissible. The records and proceedings of any court of the United States, or any state or territory, shall be admissible in evidence in all cases in this state when duly certified by the attestation of the clerk, prothonotary or other officer having charge of the records of such court, with the seal of such court annexed. [1997 c 358 § 7; Code 1881 § 430; 1877 p 94 § 432; 1869 p 115 § 426; 1854 p 195 § 334; RRS § 1254.] Rules of court: Cf. CR 44(a)(1). 5.40.060 5.40.060 Defense to personal injury or wrongful death action—Intoxicating liquor or any drug. (1) Except as provided in subsection (2) of this section, it is a complete defense to an action for damages for personal injury or wrongful death that the person injured or killed was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and that such condition was a proximate cause of the injury or death and the trier of fact finds such person to have been more than fifty percent at fault. The standard for determining whether a person was under the influence of intoxicating liquor or drugs shall be the same standard established for criminal convictions under RCW 46.61.502, and evidence that a person was under the influence of intoxicating liquor or drugs under the standard established by RCW 46.61.502 shall be conclusive proof that such person was under the influence of intoxicating liquor or drugs. (2) In an action for damages for personal injury or wrongful death that is brought against the driver of a motor vehicle who was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and whose condition was a proximate cause of the injury or death, subsection (1) of this section does not create a defense against the action notwithstanding that the person injured or killed was also under the influence so long as such person’s condition was not a proximate cause of the occurrence causing the injury or death. [1994 c 275 § 30; 1987 c 212 § 1001; 1986 c 305 § 902.] Retroactive application—1994 c 275 § 30: "Section 30 of this act is remedial in nature and shall apply retroactively." [1994 c 275 § 31.] Short title—Effective date—1994 c 275: See notes following RCW 46.04.015. Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. Chapter 5.44 Chapter 5.44 RCW PROOF—PUBLIC DOCUMENTS Sections 5.44.010 5.44.020 5.44.030 5.44.040 5.44.050 5.44.060 5.44.070 5.44.080 5.44.090 5.44.130 5.44.140 Court records and proceedings—When admissible. Foreign judgments for debt—Faith to be accorded. Defenses available in suit on foreign judgment. Certified copies of public records as evidence. Foreign statutes as evidence. Certified copies of recorded instruments as evidence. Certified copies of instruments, or transcripts of county commissioners’ proceedings. City or town ordinances as evidence. Copy of instrument restoring civil rights as evidence. Seal, how affixed. Proceedings for determination of family relationships—Presumption. Rules of court: Cf. ER 803; ER 901; ER 902; ER 1005; CR 44. (2006 Ed.) 5.44.020 5.44.020 Foreign judgments for debt—Faith to be accorded. Judgment for debt rendered in any other state or any territory against any person or persons residents of this state at the time of the rendition of such judgment, shall not be of any higher character as evidence of indebtedness than the original claim or demand upon which such judgment is rendered, unless such judgment shall be rendered upon personal service of summons, notice or other due process against the defendant therein. [1891 c 31 § 1; Code 1881 § 739; 1877 p 150 § 744; 1869 p 171 § 681; 1866 p 88 § 1; RRS § 1255.] Rules of court: Cf. CR 44(a)(2). Uniform enforcement of foreign judgments act: Chapter 6.36 RCW. 5.44.030 5.44.030 Defenses available in suit on foreign judgment. The same defense to suits on judgments rendered without such personal service may be made by the judgment debtor, which might have been set up in the original proceeding. [Code 1881 § 740; 1877 p 150 § 745; 1869 p 171 § 682; 1866 p 88 § 2; RRS § 1256.] 5.44.040 5.44.040 Certified copies of public records as evidence. Copies of all records and documents on record or on file in the offices of the various departments of the United States and of this state or any other state or territory of the United States, when duly certified by the respective officers having by law the custody thereof, under their respective seals where such officers have official seals, shall be admitted in evidence in the courts of this state. [1991 c 59 § 1; 1891 c 19 § 16; Code 1881 § 432; 1854 p 195 § 336; RRS § 1257.] Rules of court: Cf. ER 803; CR 44(a)(1). 5.44.050 5.44.050 Foreign statutes as evidence. Printed copies of the statute laws of any state, territory, or foreign government, if purporting to have been published under the authority of the respective governments, or if commonly admitted and read as evidence in their courts, shall be admitted in all courts in this state, and on all other occasions as presumptive evidence of such laws. [Code 1881 § 435; 1877 p 95 § 437; 1869 p 116 § 431; 1854 p 196 § 339; RRS § 1259.] Uniform judicial notice of foreign laws act: Chapter 5.24 RCW. 5.44.060 5.44.060 Certified copies of recorded instruments as evidence. Whenever any deed, conveyance, bond, mortgage or other writing, shall have been recorded or filed in pursuance of law, copies of record of such deed, conveyance, bond or other writing, duly certified by the officer having the lawful custody thereof, with the seal of the office annexed, if there be such seal, if there be no such seal, then with the official certificate of such officer, shall be received in evidence [Title 5 RCW—page 3] 5.44.070 Title 5 RCW: Evidence to all intents and purposes as the originals themselves. [Code 1881 § 431; 1877 p 95 § 433; 1869 p 115 § 427; 1854 p 195 § 335; RRS § 1260.] Deeds as evidence: RCW 84.64.180, 84.64.190. Instruments to be recorded or filed: RCW 65.04.030. Record of will as evidence: RCW 11.20.060. 5.44.070 5.44.070 Certified copies of instruments, or transcripts of county commissioners’ proceedings. Copies of all deeds or other instruments of writing, maps, documents and papers which by law are to be filed or recorded in the office of said county auditor, and all transcripts or exemplifications of the records of the proceedings of the board of county commissioners certified by said auditor under official seal, shall be admitted as prima facie evidence in all the courts of this state. [Code 1881 § 2737; 1869 p 315 § 27; RRS § 10612.] Certified copy of plat as evidence: RCW 58.10.020. Legislative authority proceedings to be published: RCW 36.22.020. relationship, a determination of family relationships regarding any person or persons who immigrated to the United States from a foreign country which was made or accepted by the United States immigration and naturalization service at the time of that person or persons’ entry into the United States creates a rebuttable presumption that the determination is valid and that the family relationship under foreign law is as made or accepted at the time of entry. Except as provided in RCW 26.26.116(2), the presumption may be overcome by a preponderance of evidence showing that a living person other than the person named by the United States immigration and naturalization service is in the relationship in question. [2002 c 302 § 701; 1990 c 175 § 1.] Application—Construction—Short title—Severability—2002 c 302: See RCW 26.26.903, 26.26.911, and 26.26.912. Chapter 5.45 RCW Chapter 5.45 UNIFORM BUSINESS RECORDS AS EVIDENCE ACT Sections 5.44.080 5.44.080 City or town ordinances as evidence. All ordinances passed by the legislative body of any city or town shall be recorded in a book to be kept for that purpose by the city or town clerk, and when so recorded the record thereof so made shall be received in any court of the state as prima facie evidence of the due passage of such ordinance as recorded. When the ordinances of any city or town are printed by authority of such municipal corporation, the printed copies thereof shall be received as prima facie evidence that such ordinances as printed and published were duly passed. [1955 c 6 § 1; Code 1881 § 2062; RRS § 1260 1/2.] 5.44.090 5.44.090 Copy of instrument restoring civil rights as evidence. The secretary of state and the clerk of the superior court, shall, upon demand and the payment of the fee required by law, issue a certified copy of any such instrument restoring civil rights filed in their respective offices, and every such certified copy shall be received in evidence as proof of the fact therein stated, in any court and by all election officers. [1931 c 19 § 4; 1929 c 26 § 5; RRS § 10253.] Restoration of civil rights: Chapter 9.96 RCW. 5.44.130 5.44.130 Seal, how affixed. A seal of court or public office, when required to any writ, process, or proceeding to authenticate a copy of any record or document, may be affixed by making an inked, printed, or embossed impression directly on the document and shall be considered valid. [2006 c 198 § 1; Code 1881 § 434; 1877 p 95 § 436; 1869 p 116 § 430; 1854 p 196 § 338; RRS § 1258.] Private seals abolished: RCW 64.04.090. Seals of courts and municipalities: State Constitution Art. 27 § 9. Superior court seal: RCW 2.08.050. Supreme court seal: Rules of court: SAR 1. Telegraphic message, description of seal: RCW 5.52.060. 5.45.010 5.45.020 5.45.900 5.45.910 5.45.920 "Business" defined. Business records as evidence. Construction—1947 c 53. Short title. Repeal of inconsistent provisions. Rules of court: ER 803. 5.45.010 5.45.010 "Business" defined. The term "business" shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not. [1947 c 53 § 1; Rem. Supp. 1947 § 1263-1. Formerly RCW 5.44.100.] 5.45.020 5.45.020 Business records as evidence. A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. [1947 c 53 § 2; Rem. Supp. 1947 § 1263-2. Formerly RCW 5.44.110.] 5.45.900 5.45.900 Construction—1947 c 53. This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it. [1947 c 53 § 3; Rem. Supp. 1947 § 1263-3. Formerly RCW 5.44.120.] 5.45.910 5.45.910 Short title. This chapter may be cited as The Uniform Business Records as Evidence Act. [1947 c 53 § 4; Rem. Supp. 1947 § 1263-4.] 5.45.920 5.44.140 5.44.140 Proceedings for determination of family relationships—Presumption. In any proceeding regarding the determination of a family relationship, including but not limited to the parent and child relationship and the marriage [Title 5 RCW—page 4] 5.45.920 Repeal of inconsistent provisions. All acts or parts of acts which are inconsistent with the provisions of this act are hereby repealed. [1947 c 53 § 5; Rem. Supp. 1947 § 1263-5.] (2006 Ed.) Uniform Photographic Copies of Business and Public Records as Evidence Act Chapter 5.46 RCW UNIFORM PHOTOGRAPHIC COPIES OF BUSINESS AND PUBLIC RECORDS AS EVIDENCE ACT Chapter 5.46 Sections 5.46.010 5.46.900 5.46.910 5.46.920 Copies of business and public records as evidence. Construction—1953 c 273. Short title. Repeal of inconsistent provisions. 5.46.010 5.46.010 Copies of business and public records as evidence. If any business, institution, member of a profession or calling or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic, optical imaging, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless the same is an asset or is representative of title to an asset held in a custodial or fiduciary capacity or unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile, does not preclude admission of the original. [1994 c 19 § 1; 1959 c 125 § 1; 1953 c 273 § 1. Formerly RCW 5.44.125.] Photostatic or photographic copies of public or business records admissible in evidence: RCW 40.20.030. 5.46.900 5.46.900 Construction—1953 c 273. This chapter shall be so interpreted and construed as to effectuate its general purpose of making uniform the law of those states which enact it. [1953 c 273 § 2.] 5.46.910 5.46.910 Short title. This chapter may be cited as the "Uniform Photographic Copies of Business and Public Records as Evidence Act." [1953 c 273 § 3.] 5.46.920 5.46.920 Repeal of inconsistent provisions. All acts or parts of acts which are inconsistent with the provisions of this act are repealed. [1953 c 273 § 4.] Chapter 5.48 RCW PROOF—REPLACEMENT OF LOST RECORDS Chapter 5.48 Sections 5.48.010 5.48.020 5.48.030 5.48.040 5.48.050 5.48.051 5.48.060 5.48.070 (2006 Ed.) Substitution of copy authorized. Methods to replace lost court records. Action to replace—Procedure. Hearing on application—Evidence. Time for appeal extended. Costs to be taxed. Replacement of lost or destroyed probate records. Costs—Payment of. 5.48.030 Records and exhibits of superior court, destruction, reproduction: RCW 36.23.065, 36.23.067, 36.23.070. 5.48.010 5.48.010 Substitution of copy authorized. Whenever a pleading, process, return, verdict, bill of exceptions, order, entry, stipulation or other act, file or proceeding in any action or proceeding pending in any court of this state shall have been lost or destroyed by fire or otherwise, or is withheld by any person, such court may, upon the application of any party to such action or proceeding, order a copy or substantial copy thereof to be substituted. [1890 p 337 § 1; RRS § 1270.] 5.48.020 5.48.020 Methods to replace lost court records. Whenever the record required by law of the proceedings, judgment or decree in any action or other proceeding of any court in this state in which a final judgment has been rendered, or any part thereof, is lost or destroyed by fire or otherwise, such court may, upon the application of any party interested therein, grant an order authorizing such record or parts thereof to be supplied or replaced— (1) by a certified copy of such original record, or part thereof, when the same can be obtained; (2) by a duly certified copy of the record in the supreme court or court of appeals of such original record of any action or proceeding that may have been removed to the supreme court or court of appeals and remains recorded or filed in said courts; (3) by the original pleadings, entries, papers and files in such action or proceeding when the same can be obtained; (4) by an agreement in writing signed by all the parties to such action or proceeding, their representatives or attorneys, that a substituted copy of such original record is substantially correct. [1971 c 81 § 25; 1890 p 338 § 2; RRS § 1271.] 5.48.030 5.48.030 Action to replace—Procedure. Whenever the record required by law, or any part thereof, of the proceedings or judgment or decree in any action or other proceeding of any court in this state in which the final judgment has been rendered, is lost or destroyed by fire or otherwise, and such loss cannot be supplied or replaced as provided in RCW 5.48.020, any person or party interested therein may make a written application to the court to which said record belongs, setting forth the substance of the record so lost or destroyed, which application shall be verified in the manner provided for the verification of pleadings in a civil action, and thereupon summons shall issue and actual service, or service by publication, shall be made upon all persons interested in or affected by said original judgment or final entry in the manner provided by law for the commencement of civil actions, provided the parties may waive the issuing or service of summons and enter their appearance to such application; and upon the hearing of such application without further pleadings, if the court finds that such record has been lost or destroyed and that it is enabled by the evidence produced to find the substance or effect thereof material to the preservation of the rights of the parties thereto, it shall make an order allowing a record, which record shall recite the substance and effect of said lost or destroyed record, or part thereof, and the same shall thereupon be recorded in said court, and shall have the same effect as the original record would have if the same had not been lost or destroyed, so far as it concerns the rights [Title 5 RCW—page 5] 5.48.040 Title 5 RCW: Evidence of the parties so making the application, or persons or parties so served with summons, or entering their appearance, or persons claiming under them by a title acquired subsequently to the filing of the application. [1890 p 338 § 3; RRS § 1272.] 5.48.040 5.48.040 Hearing on application—Evidence. Upon the hearing of the application provided in RCW 5.48.030, the court may admit in evidence oral testimony and any complete or partial abstract of such record, docket entries or indices, and any other written evidence of the contents or effect of such records and published reports concerning such actions or proceedings, when the court is of opinion that such abstracts, writings and publications were fairly and honestly made before the loss of such records occurred. [1890 p 339 § 4; RRS § 1273.] 5.48.050 5.48.050 Time for appeal extended. Whenever a lost or destroyed judgment or order is one to which either party has a right to a proceeding in error or of appeal, the time intervening between the filing of the application mentioned in RCW 5.48.030 and the final order of the court thereon shall be excluded in computing the time within which such proceeding or appeal may be taken as provided by law. [1890 p 339 § 5; RRS § 1274.] Rules of court: Cf. RAP 5.2, 18.22. 5.48.051 5.48.051 Costs to be taxed. The costs to be taxed, upon an application to restore a lost or destroyed record, shall be the same as are provided for like service in civil actions, and may be adjudged against either or any party to such proceeding or application, or may, in the discretion of the court, be apportioned between such parties. [1890 p 339 § 6; RRS § 1275. Formerly RCW 5.48.070, part.] 5.48.070 Costs—Payment of. The costs incurred in the probate and superior courts in proceedings under RCW 5.48.051 and 5.48.060 shall be paid by the party or parties interested in such proceedings, or in whose behalf such proceedings are instituted. [1890 p 340 § 8; RRS § 1277. FORMER PART OF SECTION: 1890 p 339 § 6; RRS § 1275, now codified as RCW 5.48.051.] 5.48.070 Reviser’s note: See note following RCW 5.48.060. Chapter 5.52 Chapter 5.52 RCW TELEGRAPHIC COMMUNICATIONS Sections 5.52.010 5.52.020 5.52.030 5.52.040 5.52.050 5.52.060 5.52.070 Deemed communications in writing. Notice by telegraph deemed actual notice. Instrument transmitted by telegraph—Effect. Bills and notes drawn by telegraph—Effect. Electronic copies as evidence. Seal and revenue stamp, how described. "Telegraphic copy" or "telegraphic duplicate" defined. Rules of court: Cf. CR 9(h). Arrest by telegraph—Validity of telegraphic copy: RCW 10.31.060. Divulging telegraph message: RCW 9.73.010. False message as forgery: RCW 9A.60.020. Interference with communication or its facilities: RCW 9A.48.070, 9A.48.080. Tampering with telegraph message: RCW 9A.48.070, 9A.48.080. Telecommunications companies: Chapter 80.36 RCW; state Constitution Art. 12 § 19. 5.52.010 Deemed communications in writing. Contracts made by telegraph shall be deemed to be contracts in writing; and all communications sent by telegraph and signed by the person or persons sending the same, or by his or their authority, shall be held and deemed to be communications in writing. [Code 1881 § 2352; 1865 p 74 § 11; RRS § 11345.] 5.52.010 5.48.060 5.48.060 Replacement of lost or destroyed probate records. In case of the loss or destruction by fire or otherwise of the records, or any part thereof, of any probate court or superior court having probate jurisdiction, the judge of any such court may proceed, upon its own motion, or upon application in writing of any party in interest, to restore the records, papers, and proceedings of either of said courts relating to the estates of deceased persons, including recorded wills, wills probated, or filed for probate in such courts, all marriage records and all other records and proceedings, and for the purpose of restoring said records, wills, papers or proceedings, or any part thereof, may cause citations or other process to be issued to any and all parties to be designated by him, and may compel the attendance in court of any and all witnesses whose testimony may be necessary to the establishment of any such record or part thereof, and the production of any and all written or documentary evidence which may be by him deemed necessary in determining the true import and effect of the original records, will, paper, or other document belonging to the files of said courts; and may make such orders and decrees establishing such original record, will, paper, document or proceeding, or the substance thereof, as to him shall seem just and proper. [1957 c 9 § 5; 1890 p 340 § 7; RRS § 1276.] Reviser’s note: Jurisdiction in probate matters now vested in superior courts, see state Constitution Art. 4 § 6 (Amendment 28) and Art. 27 § 10. [Title 5 RCW—page 6] 5.52.020 Notice by telegraph deemed actual notice. Whenever any notice, information or intelligence, written or otherwise, is required to be given, the same may be given by telegraph: PROVIDED, That the dispatch containing the same be delivered to the person entitled thereto, or to his agent or attorney. Notice by telegraph shall be deemed actual notice. [Code 1881 § 2353; 1865 p 74 § 12; RRS § 11346.] 5.52.020 5.52.030 Instrument transmitted by telegraph— Effect. Any power of attorney, or other instrument in writing, duly proved or acknowledged, and certified so as to be entitled to record may, together with the certificate of its proof or acknowledgment, be sent by telegraph, and telegraphic copy, or duplicate thereof, shall, prima facie, have the same force and effect, in all respects, and may be admitted to record and recorded in the same manner and with like effect as the original. [Code 1881 § 2354; 1865 p 74 § 13; RRS § 11347.] 5.52.030 5.52.040 Bills and notes drawn by telegraph—Effect. Checks, due bills, promissory notes, bills of exchange and all orders or agreements for the payment or delivery of money, or other thing of value, may be made or drawn by telegraph, and when so made or drawn, shall have the same force and effect to charge the maker, drawer, indorser or acceptor 5.52.040 (2006 Ed.) Witnesses—Compelling Attendance thereof, and shall create the same rights and equities in favor of the payee, drawer [drawee], indorser [indorsee], acceptor, holder or bearer thereof, and shall be entitled to the same days of grace as if duly made or drawn and delivered in writing; but it shall not be lawful for any person other than the person or drawer thereof, to cause any such instrument to be sent by telegraph, so as to charge any person thereby, except as in RCW 5.52.050 otherwise provided. Whenever the genuineness or execution of any such instrument received by telegraph shall be denied on oath, by or on behalf of the person sought to be charged thereby, it shall be incumbent upon the party claiming under or alleging the same, to prove the existence and execution of the original writing from which the telegraph copy or duplicate was transmitted. The original message shall in all cases be preserved in the telegraph office from which the same is sent. [Code 1881 § 2355; 1865 p 74 § 14; RRS § 11348.] 5.52.050 5.52.050 Electronic copies as evidence. Except as otherwise provided in this chapter, any instrument in writing, duly certified, under his or her hand and official seal, by a notary public, commissioner of deeds, or clerk of a court of record, to be genuine, within the personal knowledge of such officer, may, together with such certificate, be sent by telegraph or other electronic transmission and the telegraphic or other electronic transmission copy thereof shall, prima facie, only have the same force, effect and validity, in all respects whatsoever as the original, and the burden of proof shall rest with the party denying the genuineness, or due execution of the original. [2006 c 198 § 2; Code 1881 § 2356; 1865 p 75 § 15; RRS § 11349.] 5.52.060 5.52.060 Seal and revenue stamp, how described. Whenever any document to be sent by telegraph bears a seal, either private or official, it shall not be necessary for the operator in sending the same, to telegraph a description of the seal, or any words or device thereon, but the same may be expressed in the telegraphic copy by the letters "L.S.," or by the word "seal," and whenever any document bears a revenue stamp, it shall be sufficient to express the same in the telegraphic copy, by the word "stamp," without any other or further description thereof. [Code 1881 § 2359; 1865 p 76 § 18; RRS § 11350.] Seal, how affixed: RCW 5.44.130. 5.56.070 5.56.080 5.56.090 5.56.100 5.56.060 Attachment of witness. To whom attachment directed—Execution. Testimony of prisoner, how obtained. Affidavit to procure order. Tampering with witness: RCW 9A.72.120. 5.56.010 When witnesses must attend—Fees and allowances. Any person may be compelled to attend as a witness before any court of record, judge, commissioner, or referee, in any civil action or proceeding in this state. No such person shall be compelled to attend as a witness in any civil action or proceeding unless the fees be paid or tendered him which are allowed by law for one day’s attendance as a witness and for traveling to and returning from the place where he is required to attend, together with any allowance for meals and lodging theretofore fixed as specified herein: PROVIDED, That such fees be demanded by any witness residing within the same county where such court of record, judge, commissioner, or referee is located, or within twenty miles of the place where such court is located, at the time of service of the subpoena: PROVIDED FURTHER, That a party desiring the attendance of a witness residing outside of the county in which such action or proceeding is pending, or more than twenty miles of the place where such court is located, shall apply ex parte to such court, or to the judge, commissioner, referee or clerk thereof, who, if such application be granted and a subpoena issued, shall fix without notice an allowance for meals and lodging, if any to be allowed, together with necessary travel expenses, and the amounts so fixed shall be endorsed upon the subpoena and tendered to such witness at the time of the service of the subpoena: PROVIDED FURTHER, That the court shall fix and allow at or after trial such additional amounts for meals, lodging and travel as it may deem reasonable for the attendance of such witness. [1963 c 19 § 1; 1891 c 19 § 2; Code 1881 § 393; 1877 p 87 § 395; 1869 p 104 § 388; 1863 p 156 § 69; 1854 p 187 § 295; RRS § 1215.] 5.56.010 Rules of court: Cf. CR 4(f). District court, attachment, damages for nonappearance: RCW 12.16.030, 12.16.050. Power to compel attendance of persons to testify: RCW 2.28.010, 2.28.020, 2.28.060, 2.28.070. Salaried public officers shall not receive additional compensation as witness on behalf of employer, and in certain other cases: RCW 42.16.020. Witness fees and mileage: Chapter 2.40 RCW. 5.56.050 5.52.070 5.52.070 "Telegraphic copy" or "telegraphic duplicate" defined. The term "telegraphic copy," or "telegraphic duplicate," whenever used in this chapter, shall be construed to mean any copy of a message, made or prepared for delivery at the office to which said message may have been sent by telegraph. [Code 1881 § 2362; 1865 p 77 § 21; RRS § 11351.] Chapter 5.56 RCW WITNESSES—COMPELLING ATTENDANCE Chapter 5.56 Sections 5.56.010 5.56.050 5.56.060 5.56.061 (2006 Ed.) When witnesses must attend—Fees and allowances. Person in court required to testify. Result of failure to attend. Failure to attend considered contempt of court. 5.56.050 Person in court required to testify. A person present in court or before a judicial officer, may be required to testify in the same manner as if he were in attendance upon a subpoena issued by such court or officer. [Code 1881 § 397; 1877 p 88 § 399; 1869 p 106 § 392; 1854 p 188 § 299; RRS § 1219.] 5.56.060 Result of failure to attend. If any person duly served with a subpoena and obliged to attend as a witness, shall fail to do so, without any reasonable excuse, he shall be liable to the aggrieved party for all damages occasioned by such failure, to be recovered in a civil action. [Code 1881 § 398; 1877 p 88 § 400; 1869 p 106 § 393; 1854 p 188 § 300; RRS § 1220, part. FORMER PART OF SECTION: Code 1881 § 399; 1877 p 88 § 401; 1869 p 106 § 394; 1854 p 188 § 301; RRS § 1220, part, now codified as RCW 5.56.061.] 5.56.060 [Title 5 RCW—page 7] 5.56.061 Title 5 RCW: Evidence Contempts: Chapter 7.21 RCW. Chapter 5.60 District court, damages for nonappearance: RCW 12.16.050. Chapter 5.60 RCW WITNESSES—COMPETENCY Sections 5.56.061 5.56.061 Failure to attend considered contempt of court. A failure to attend as required by the subpoena, shall also be considered a contempt of court as provided in chapter 7.21 RCW. [1989 c 373 § 8; Code 1881 § 399; 1877 p 88 § 401; 1869 p 106 § 394; 1854 p 188 § 301; RRS § 1220, part. Formerly RCW 5.56.060, part.] 5.60.020 5.60.030 Rules of court: Cf. CR 45(f). Witnesses, competency: Rules of court: ER 601. 5.60.050 5.60.060 5.60.070 5.60.072 Who may testify. Not excluded on grounds of interest—Exception—Transaction with person since deceased. Who are incompetent. Who are disqualified—Privileged communications. Mediation. Mediation by agency—Privilege and confidentiality. Attorney as witness: Rules of court: CR 43(g); CPR 5 (DR 5-102). Severability—1989 c 373: See RCW 7.21.900. 5.60.020 Criminal contempt: RCW 9.92.040. Power of courts and judicial officers to punish for contempt: RCW 2.28.020, 2.28.070. 5.56.070 5.56.070 Attachment of witness. The court, judge, or other officer, in such case, may issue an attachment to bring such witness before them to answer for contempt, and also testify as witness in the cause in which he or she was subpoenaed. [1987 c 202 § 125; Code 1881 § 400; 1877 p 88 § 402; 1869 p 106 § 395; 1854 p 188 § 302; RRS § 1221.] Rules of court: Cf. CR 45(f). Intent—1987 c 202: See note following RCW 2.04.190. District court, attachment for nonappearance: RCW 12.16.030. 5.56.080 5.56.080 To whom attachment directed—Execution. Such attachment may be directed to the sheriff or any deputy of any county in which the witness may be found, and shall be executed in the same manner as a warrant; and the fees of the officer for issuing and serving the same shall be paid by the person against whom the same was issued, unless he or she shows reasonable cause, to the satisfaction of the judge, for his or her omission to attend; in which case the party requiring such attachment shall pay all such costs. [1987 c 202 § 126; 1891 c 19 § 3; RRS § 1222.] Rules of court: Cf. CR 45(f). Reviser’s note: Preliminary language of 1891 c 19 § 3 reads as follows: "The following section is enacted to follow section 400 of the said Code of 1881 [RCW 5.56.070], as that section shall be numbered in the code of procedure of this state:". 5.60.020 Who may testify. Every person of sound mind and discretion, except as hereinafter provided, may be a witness in any action, or proceeding. [1986 c 195 § 1; Code 1881 § 388; 1877 p 85 § 390; 1869 p 103 § 383; 1854 p 186 § 289; RRS § 1210.] 5.60.030 5.60.030 Not excluded on grounds of interest— Exception—Transaction with person since deceased. No person offered as a witness shall be excluded from giving evidence by reason of his or her interest in the event of the action, as a party thereto or otherwise, but such interest may be shown to affect his or her credibility: PROVIDED, HOWEVER, That in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person, or as deriving right or title by, through or from any deceased person, or as the guardian or limited guardian of the estate or person of any incompetent or disabled person, or of any minor under the age of fourteen years, then a party in interest or to the record, shall not be admitted to testify in his or her own behalf as to any transaction had by him or her with, or any statement made to him or her, or in his or her presence, by any such deceased, incompetent or disabled person, or by any such minor under the age of fourteen years: PROVIDED FURTHER, That this exclusion shall not apply to parties of record who sue or defend in a representative or fiduciary capacity, and have no other or further interest in the action. [1977 ex.s. c 80 § 3; 1927 c 84 § 1; Code 1881 § 389; 1877 p 85 § 391; 1873 p 106 § 382; 1869 p 183 § 384; 1867 p 88 § 1; 1854 p 186 § 290; RRS § 1211.] Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. Intent—1987 c 202: See note following RCW 2.04.190. 5.60.050 5.56.090 5.56.090 Testimony of prisoner, how obtained. If the witness be a prisoner confined in a jail or prison within this state, an order for his examination in prison, upon deposition, or for his temporary removal and production before a court or officer, for the purpose of being orally examined, may be issued. [Code 1881 § 401; 1877 p 88 § 403; 1869 p 106 § 396; 1854 p 189 § 303; RRS § 1223.] 5.60.050 Who are incompetent. The following persons shall not be competent to testify: (1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and (2) Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly. [1986 c 195 § 2; Code 1881 § 391; 1877 p 86 § 393; 1869 p 103 § 386; 1863 p 154 § 33; 1854 p 186 § 293; RRS § 1213.] 5.56.100 5.56.100 Affidavit to procure order. Such order can only be made upon affidavit, showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. [Code 1881 § 402; 1877 p 88 § 404; 1869 p 106 § 397; 1854 p 189 § 304; RRS § 1224.] [Title 5 RCW—page 8] 5.60.060 5.60.060 Who are disqualified—Privileged communications. (1) A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the con(2006 Ed.) Witnesses—Competency sent of the other, examined as to any communication made by one to the other during marriage. But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, nor to a criminal action or proceeding against a spouse if the marriage occurred subsequent to the filing of formal charges against the defendant, nor to a criminal action or proceeding for a crime committed by said husband or wife against any child of whom said husband or wife is the parent or guardian, nor to a proceeding under chapter 70.96A, 70.96B, 71.05, or 71.09 RCW: PROVIDED, That the spouse of a person sought to be detained under chapter 70.96A, 70.96B, 71.05, or 71.09 RCW may not be compelled to testify and shall be so informed by the court prior to being called as a witness. (2)(a) An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment. (b) A parent or guardian of a minor child arrested on a criminal charge may not be examined as to a communication between the child and his or her attorney if the communication was made in the presence of the parent or guardian. This privilege does not extend to communications made prior to the arrest. (3) A member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs. (4) Subject to the limitations under RCW 70.96A.140 or 71.05.360 (8) and (9), a physician or surgeon or osteopathic physician or surgeon or podiatric physician or surgeon shall not, without the consent of his or her patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him or her to prescribe or act for the patient, except as follows: (a) In any judicial proceedings regarding a child’s injury, neglect, or sexual abuse or the cause thereof; and (b) Ninety days after filing an action for personal injuries or wrongful death, the claimant shall be deemed to waive the physician-patient privilege. Waiver of the physician-patient privilege for any one physician or condition constitutes a waiver of the privilege as to all physicians or conditions, subject to such limitations as a court may impose pursuant to court rules. (5) A public officer shall not be examined as a witness as to communications made to him or her in official confidence, when the public interest would suffer by the disclosure. (6)(a) A peer support group counselor shall not, without consent of the law enforcement officer or fire fighter making the communication, be compelled to testify about any communication made to the counselor by the officer or fire fighter while receiving counseling. The counselor must be designated as such by the sheriff, police chief, fire chief, or chief of the Washington state patrol, prior to the incident that results in counseling. The privilege only applies when the communication was made to the counselor while acting in his or her capacity as a peer support group counselor. The privilege does not apply if the counselor was an initial responding officer or fire fighter, a witness, or a party to the incident (2006 Ed.) 5.60.060 which prompted the delivery of peer support group counseling services to the law enforcement officer or fire fighter. (b) For purposes of this section, "peer support group counselor" means a: (i) Law enforcement officer, fire fighter, civilian employee of a law enforcement agency, or civilian employee of a fire department, who has received training to provide emotional and moral support and counseling to an officer or fire fighter who needs those services as a result of an incident in which the officer or fire fighter was involved while acting in his or her official capacity; or (ii) Nonemployee counselor who has been designated by the sheriff, police chief, fire chief, or chief of the Washington state patrol to provide emotional and moral support and counseling to an officer or fire fighter who needs those services as a result of an incident in which the officer or fire fighter was involved while acting in his or her official capacity. (7) A sexual assault advocate may not, without the consent of the victim, be examined as to any communication made between the victim and the sexual assault advocate. (a) For purposes of this section, "sexual assault advocate" means the employee or volunteer from a rape crisis center, victim assistance unit, program, or association, that provides information, medical or legal advocacy, counseling, or support to victims of sexual assault, who is designated by the victim to accompany the victim to the hospital or other health care facility and to proceedings concerning the alleged assault, including police and prosecution interviews and court proceedings. (b) A sexual assault advocate may disclose a confidential communication without the consent of the victim if failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death of the victim or another person. Any sexual assault advocate participating in good faith in the disclosing of records and communications under this section shall have immunity from any liability, civil, criminal, or otherwise, that might result from the action. In any proceeding, civil or criminal, arising out of a disclosure under this section, the good faith of the sexual assault advocate who disclosed the confidential communication shall be presumed. (8) A domestic violence advocate may not, without the consent of the victim, be examined as to any communication between the victim and the domestic violence advocate. (a) For purposes of this section, "domestic violence advocate" means an employee or supervised volunteer from a community-based domestic violence program or human services program that provides information, advocacy, counseling, crisis intervention, emergency shelter, or support to victims of domestic violence and who is not employed by, or under the direct supervision of, a law enforcement agency, a prosecutor’s office, or the child protective services section of the department of social and health services as defined in RCW 26.44.020. (b) A domestic violence advocate may disclose a confidential communication without the consent of the victim if failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death of the victim or another person. This section does not relieve a domestic violence advocate from the requirement to report or cause to be reported an incident under RCW 26.44.030(1) or to disclose relevant records relating to a child as required by RCW [Title 5 RCW—page 9] 5.60.070 Title 5 RCW: Evidence 26.44.030(11). Any domestic violence advocate participating in good faith in the disclosing of communications under this subsection is immune from liability, civil, criminal, or otherwise, that might result from the action. In any proceeding, civil or criminal, arising out of a disclosure under this subsection, the good faith of the domestic violence advocate who disclosed the confidential communication shall be presumed. [2006 c 259 § 2; 2006 c 202 § 1; 2006 c 30 § 1; 2005 c 504 § 705; 2001 c 286 § 2; 1998 c 72 § 1; 1997 c 338 § 1; 1996 c 156 § 1; 1995 c 240 § 1; 1989 c 271 § 301. Prior: 1989 c 10 § 1; 1987 c 439 § 11; 1987 c 212 § 1501; 1986 c 305 § 101; 1982 c 56 § 1; 1979 ex.s. c 215 § 2; 1965 c 13 § 7; Code 1881 § 392; 1879 p 118 § 1; 1877 p 86 § 394; 1873 p 107 § 385; 1869 p 104 § 387; 1854 p 187 § 294; RRS § 1214. Cf. 1886 p 73 § 1.] Rules of court: Cf. CR 43(g). Reviser’s note: This section was amended by 2006 c 30 § 1, 2006 c 202 § 1, and by 2006 c 259 § 2, each without reference to the other. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Intent—2006 c 259: "The legislature intends, by amending RCW 5.60.060, to recognize that advocates help domestic violence victims by giving them the support and counseling they need to recover from their abuse, and by providing resources to achieve protection from further abuse. Without assurance that communications made with a domestic violence advocate will be confidential and protected from disclosure, victims will be deterred from confiding openly or seeking information and counseling, resulting in a failure to receive vital advocacy and support needed for recovery and protection from abuse. But investigative or prosecutorial functions performed by individuals who assist victims in the criminal legal system and in other state agencies are different from the advocacy and counseling functions performed by advocates who work under the auspices or supervision of a community victim services program. The legislature recognizes the important role played by individuals who assist victims in the criminal legal system and in other state agencies, but intends that the testimonial privilege not be extended to individuals who perform an investigative or prosecutorial function." [2006 c 259 § 1.] Findings—Intent—Severability—Application—Construction— Captions, part headings, subheadings not law—Adoption of rules— Effective dates—2005 c 504: See notes following RCW 71.05.027. Alphabetization—Correction of references—2005 c 504: See note following RCW 71.05.020. Recommendations—Application—Effective date—2001 c 286: See notes following RCW 71.09.015. Severability—1997 c 338: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1997 c 338 § 74.] Effective dates—1997 c 338: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 1997, except sections 10, 12, 18, 24 through 26, 30, 38, and 59 of this act which take effect July 1, 1998." [1997 c 338 § 75.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—1989 c 271: See note following RCW 9.94A.510. Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. Severability—1982 c 56: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1982 c 56 § 2.] Nonsupport or family desertion, spouse as witness: RCW 26.20.071. Optometrist—Client, privileged communications: RCW 18.53.200. Psychologist—Client, privileged communications: RCW 18.83.110. Report of abuse of children: Chapter 26.44 RCW. [Title 5 RCW—page 10] 5.60.070 Mediation. (1) If there is a court order to mediate, a written agreement between the parties to mediate, or if mediation is mandated under RCW 7.70.100, then any communication made or materials submitted in, or in connection with, the mediation proceeding, whether made or submitted to or by the mediator, a mediation organization, a party, or any person present, are privileged and confidential and are not subject to disclosure in any judicial or administrative proceeding except: (a) When all parties to the mediation agree, in writing, to disclosure; (b) When the written materials or tangible evidence are otherwise subject to discovery, and were not prepared specifically for use in and actually used in the mediation proceeding; (c) When a written agreement to mediate permits disclosure; (d) When disclosure is mandated by statute; (e) When the written materials consist of a written settlement agreement or other agreement signed by the parties resulting from a mediation proceeding; (f) When those communications or written materials pertain solely to administrative matters incidental to the mediation proceeding, including the agreement to mediate; or (g) In a subsequent action between the mediator and a party to the mediation arising out of the mediation. (2) When there is a court order, a written agreement to mediate, or when mediation is mandated under RCW 7.70.100, as described in subsection (1) of this section, the mediator or a representative of a mediation organization shall not testify in any judicial or administrative proceeding unless: (a) All parties to the mediation and the mediator agree in writing; or (b) In an action described in subsection (1)(g) of this section. (3) Beginning on January 1, 2006, this section governs only mediations pursuant to a referral or an agreement made before January 1, 2006. Mediations pursuant to a referral or an agreement made on or after January 1, 2006, are governed by chapter 7.07 RCW. [2005 c 172 § 14; 1993 c 492 § 422; 1991 c 321 § 1.] 5.60.070 Short title—Captions not law—Severability—Effective date—2005 c 172: See RCW 7.07.900 through 7.07.902 and 7.07.904. Findings—Intent—1993 c 492: See notes following RCW 43.20.050. Short title—Severability—Savings—Captions not law—Reservation of legislative power—Effective dates—1993 c 492: See RCW 43.72.910 through 43.72.915. Severability—1991 c 321: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1991 c 321 § 3.] 5.60.072 5.60.072 Mediation by agency—Privilege and confidentiality. Notwithstanding the provisions of RCW 5.60.070 and chapter 7.07 RCW, when any party participates in mediation conducted by a state or federal agency under the provisions of a collective bargaining law or similar statute, the agency’s rules govern questions of privilege and confidentiality. [2005 c 172 § 15; 1991 c 321 § 2.] Short title—Captions not law—Severability—Effective date—2005 c 172: See RCW 7.07.900 through 7.07.902 and 7.07.904. (2006 Ed.) Witnesses—Registered Nurses Severability—1991 c 321: See note following RCW 5.60.070. Chapter 5.62 Chapter 5.62 RCW WITNESSES—REGISTERED NURSES Sections 5.62.010 5.62.020 5.62.030 5.64.010 Chapter 5.64 RCW ADMISSIBILITY OF CERTAIN GESTURES OF APOLOGY, SYMPATHY, FAULT, ETC. IN CIVIL ACTIONS AGAINST HEALTH CARE PROVIDERS Chapter 5.64 (Formerly: Admissibility—Furnishing, offering, or promising to pay medical expenses) Sections Definitions. Registered nurse—Privileged communications—Exceptions. Nurse-patient privilege subject to limitations and exemptions of physician-patient privilege. 5.64.010 Civil actions against health care providers—Admissibility of evidence of furnishing or offering to pay medical expenses—Admissibility of expressions of apology, sympathy, fault, etc. 5.62.010 5.62.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Registered nurse" means a registered nurse or advanced nurse practitioner licensed under chapter 18.79 RCW. (2) "Protocol" means a regimen to be carried out by a registered nurse and prescribed by a licensed physician under chapter 18.71 RCW, or a licensed osteopathic physician under chapter 18.57 RCW, which is consistent with chapter 18.79 RCW and the rules adopted under that chapter. (3) "Primary care" means screening, assessment, diagnosis, and treatment for the purpose of promotion of health and detection of disease or injury, as authorized by chapter 18.79 RCW and the rules adopted under that chapter. [1994 sp.s. c 9 § 703; 1987 c 198 § 1; 1985 c 447 § 1.] Severability—Headings and captions not law—Effective date— 1994 sp.s. c 9: See RCW 18.79.900 through 18.79.902. 5.62.020 5.62.020 Registered nurse—Privileged communications—Exceptions. No registered nurse providing primary care or practicing under protocols, whether or not the physical presence or direct supervision of a physician is required, may be examined in a civil or criminal action as to any information acquired in attending a patient in the registered nurse’s professional capacity, if the information was necessary to enable the registered nurse to act in that capacity for the patient, unless: (1) The patient consents to disclosure or, in the event of death or disability of the patient, his or her personal representative, heir, beneficiary, or devisee consents to disclosure; or (2) The information relates to the contemplation or execution of a crime in the future, or relates to the neglect or the sexual or physical abuse of a child, or of a vulnerable adult as defined in RCW 74.34.020, or to a person subject to proceedings under chapter 70.96A, 71.05, or 71.34 RCW. [1989 c 271 § 302; 1986 c 212 § 1; 1985 c 447 § 2.] Severability—1989 c 271: See note following RCW 9.94A.510. 5.62.030 5.62.030 Nurse-patient privilege subject to limitations and exemptions of physician-patient privilege. Notwithstanding anything to the contrary in this chapter, the privilege created in this chapter is subject to the same limitations and exemptions contained in RCW 26.44.060(3) and 51.04.050 as those limitations and exemptions relate to the physician/patient privilege of RCW 5.60.060. [2002 c 302 § 702; 1986 c 212 § 2; 1985 c 447 § 3.] Application—Construction—Short title—Severability—2002 c 302: See RCW 26.26.903, 26.26.911, and 26.26.912. (2006 Ed.) 5.64.010 5.64.010 Civil actions against health care providers—Admissibility of evidence of furnishing or offering to pay medical expenses—Admissibility of expressions of apology, sympathy, fault, etc. (1) In any civil action against a health care provider for personal injuries which is based upon alleged professional negligence, or in any arbitration or mediation proceeding related to such civil action, evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible. (2)(a) In a civil action against a health care provider for personal injuries that is based upon alleged professional negligence, or in any arbitration or mediation proceeding related to such civil action, a statement, affirmation, gesture, or conduct identified in (b) of this subsection is not admissible as evidence if: (i) It was conveyed by a health care provider to the injured person, or to a person specified in RCW 7.70.065 (1)(a) or (2)(a) within thirty days of the act or omission that is the basis for the allegation of professional negligence or within thirty days of the time the health care provider discovered the act or omission that is the basis for the allegation of professional negligence, whichever period expires later; and (ii) It relates to the discomfort, pain, suffering, injury, or death of the injured person as the result of the alleged professional negligence. (b) (a) of this subsection applies to: (i) Any statement, affirmation, gesture, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence; or (ii) Any statement or affirmation regarding remedial actions that may be taken to address the act or omission that is the basis for the allegation of negligence. [2006 c 8 § 101; 1975-’76 2nd ex.s. c 56 § 3.] Rules of court: Cf. ER 409. Findings—Intent—2006 c 8: "The legislature finds that access to safe, affordable health care is one of the most important issues facing the citizens of Washington state. The legislature further finds that the rising cost of medical malpractice insurance has caused some physicians, particularly those in high-risk specialties such as obstetrics and emergency room practice, to be unavailable when and where the citizens need them the most. The answers to these problems are varied and complex, requiring comprehensive solutions that encourage patient safety practices, increase oversight of medical malpractice insurance, and making the civil justice system more understandable, fair, and efficient for all the participants. It is the intent of the legislature to prioritize patient safety and the prevention of medical errors above all other considerations as legal changes are made to address the problem of high malpractice insurance premiums. Thousands of patients are injured each year as a result of medical errors, many of which can be avoided by supporting health care providers, facilities, and carriers in their efforts to reduce the incidence of those mistakes. It is also the legislature’s intent to provide incentives to settle cases before resorting to court, and to provide the option of a more fair, efficient, and streamlined alternative to trials for those for whom settlement negotiations do not [Title 5 RCW—page 11] Chapter 5.66 Title 5 RCW: Evidence work. Finally, it is the intent of the legislature to provide the insurance commissioner with the tools and information necessary to regulate medical malpractice insurance rates and policies so that they are fair to both the insurers and the insured." [2006 c 8 § 1.] Part headings and subheadings not law—2006 c 8: "Part headings and subheadings used in this act are not any part of the law." [2006 c 8 § 401.] Severability—2006 c 8: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2006 c 8 § 407.] Severability—1975-’76 2nd ex.s. c 56: See note following RCW 4.16.350. Chapter 5.66 RCW ADMISSIBILITY OF CERTAIN GESTURES EXPRESSING SYMPATHY Chapter 5.66 Sections 5.66.010 Admissibility of sympathetic gestures. 5.66.010 Admissibility of sympathetic gestures. (1) The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident, and made to that person or to the family of that person, shall be inadmissible as evidence in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be made inadmissible by this section. (2) For purposes of this section: (a) "Accident" means an occurrence resulting in injury or death to one or more persons that is not the result of willful action by a party. (b) "Benevolent gestures" means actions that convey a sense of compassion or commiseration emanating from humane impulses. (c) "Family" means the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half brother, half sister, adopted child of a parent, or spouse’s parents of an injured party. [2002 c 334 § 1.] 5.66.010 [Title 5 RCW—page 12] (2006 Ed.) Title 6 Title 6 ENFORCEMENT OF JUDGMENTS Chapters 6.01 General provisions. 6.13 Homesteads. 6.15 Personal property exemptions. 6.17 Executions. 6.19 Adverse claims to property levied on. 6.21 Sales under execution. 6.23 Redemption. 6.25 Attachment. 6.26 Prejudgment garnishment. 6.27 Garnishment. 6.28 Commissioners to convey real estate. 6.32 Proceedings supplemental to execution. 6.36 Uniform enforcement of foreign judgments act. 6.40 Uniform foreign money-judgments recognition act. 6.44 Uniform foreign-money claims act. Alien property custodian: RCW 4.28.330. Husband and wife, property: Chapter 26.16 RCW. Private property, when may be taken for public debt: State Constitution Art. 11 § 13. Railroads, personalty may be taken: State Constitution Art. 12 § 17. Receivers: Chapter 7.60 RCW; Rules of court: CR 66. Support of dependent children—Alternative method—1971 act: Chapter 74.20A RCW. Chapter 6.01 Chapter 6.01 RCW GENERAL PROVISIONS Sections 6.01.010 6.01.020 6.01.030 6.01.040 6.01.050 6.01.060 Application of chapters in Title 6 RCW to superior courts and district courts—Definitions. Entry of judgment—Superior court—District court—Small claims. Direction of writ when sheriff a party. Execution against several persons—Contribution—Repayment. Writ of attachment or execution against debtor in bankruptcy. "Certified mail" defined. A judgment of a district court of this state is entered on the date of the entry of the judgment in the docket of the court. A judgment of a small claims department of a district court of this state is entered on the date of the entry in the docket of that department. [1987 c 442 § 102.] Rules of court: Cf. CR 58(b). 6.01.030 Direction of writ when sheriff a party. If the sheriff is a party or otherwise interested in an action in which a writ of execution, attachment, or replevin is to be served, the writ shall be directed to the coroner of the county, or the officer exercising the powers and performing the duties of coroner if there is no coroner, and the person to whom the writ is thus directed shall perform the duties of the sheriff. [1987 c 442 § 103.] 6.01.030 6.01.040 Execution against several persons—Contribution—Repayment. (1) When property liable to an execution against several persons is sold on execution, if more than a due proportion of the judgment is levied upon the property of one person, or one of them pays without a sale more than his or her due proportion, that person may compel contribution from the others. When a judgment against several persons is upon an obligation or contract of one of them as security for another, if the surety pays the full amount or any part of the judgment, either by sale of the surety’s property or before sale, the surety may compel repayment from the principal. (2) In either case covered by subsection (1) of this section, the person or surety so paying shall be entitled to the benefit of the judgment to enforce contribution or repayment, if within thirty days after the payment, notice of the payment and claim to contribution or repayment is filed with the clerk of the court where the judgment was rendered. (3) Upon filing such notice, the clerk shall make an entry thereof in the docket where the judgment is entered. [1987 c 442 § 104.] 6.01.040 6.01.010 6.01.010 Application of chapters in Title 6 RCW to superior courts and district courts—Definitions. Except as otherwise expressly provided, the provisions of this chapter and of chapters 6.13, 6.15, 6.17, 6.19, 6.21, 6.25, 6.26, and 6.27 RCW and chapter 6.32 RCW apply to both the superior courts and district courts of this state. If proceedings are before a district court, acts to be performed by the clerk may be performed by a district court judge if there is no clerk. As used in this title, "sheriff" includes deputies, and "execution docket" refers also to the docket of a district court. [1987 c 442 § 101.] 6.01.020 6.01.020 Entry of judgment—Superior court—District court—Small claims. For purposes of this title and RCW 4.56.190 and 4.56.210, a judgment of a superior court is entered when it is delivered to the clerk’s office for filing. (2006 Ed.) 6.01.050 Writ of attachment or execution against debtor in bankruptcy. If, before levying under a writ of attachment or execution, a sheriff receives notice that the defendant has become a debtor in a bankruptcy case, the sheriff shall immediately give written notice of that fact to the plaintiff’s attorney of record, if any, otherwise to the plaintiff, and shall not be bound to levy under the writ. If, after levying on property under a writ of attachment or execution, a sheriff receives such notice, the sheriff shall give written notice of the attachment or execution, describing the property seized, to the trustee in the bankruptcy case if there is one, otherwise to the bankruptcy court, with a copy to the plaintiff’s attorney of record, if any, otherwise to the plaintiff, and shall transfer the property to the trustee on demand or as the bankruptcy court otherwise directs. If no demand is made on the sheriff 6.01.050 [Title 6 RCW—page 1] 6.01.060 Title 6 RCW: Enforcement of Judgments for surrender of the property and the sheriff thereafter receives notice of the closing of the bankruptcy case, the sheriff shall give written notice by first class mail to the plaintiff’s attorney of record, if any, otherwise to the plaintiff, requiring that the plaintiff release the property or obtain a renewal of the writ from the court, and, if the plaintiff fails to release the property or to apply for a renewal within fourteen days after the mailing of the sheriff’s notice, the sheriff shall release the property to the defendant. [1988 c 231 § 2.] Severability—1988 c 231: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1988 c 231 § 38.] 6.01.060 6.01.060 "Certified mail" defined. The term "certified mail," as used in this title, includes, for mailings to a foreign country, any form of mail that requires or permits a return receipt. [1988 c 231 § 1.] Severability—1988 c 231: See note following RCW 6.01.050. Chapter 6.13 RCW HOMESTEADS Chapter 6.13 Sections 6.13.010 6.13.020 6.13.030 6.13.040 6.13.050 6.13.060 6.13.070 6.13.080 6.13.090 6.13.100 6.13.110 6.13.120 6.13.130 6.13.140 6.13.150 6.13.160 6.13.170 6.13.180 6.13.190 6.13.200 6.13.210 6.13.220 6.13.230 6.13.240 Homestead, what constitutes—"Owner," "net value" defined. Homestead—What may constitute. Homestead exemption limited. Automatic homestead exemption—Conditions—Declaration of homestead—Declaration of abandonment. Homestead presumed abandoned, when—Declaration of nonabandonment. Conveyance or encumbrance by husband and wife. Homestead exempt from execution, when—Presumed valid. Homestead exemption, when not available. Judgment against homestead owner—Lien on excess value of homestead property. Execution against homestead—Application for appointment of appraiser. Application under RCW 6.13.100 must be made by verified petition—Contents. Notice. Hearing—Appointment of appraiser. Appraiser—Oath—Duties. Division of homestead. Sale, if not divisible. Application of proceeds. Money from sale protected. Appraiser—Compensation. Costs. Alienation in case of incompetency or disability of one spouse. Notice of application for order. Petition. Order—Effect. Lien for assessments in favor of condominium association: RCW 64.34.364(2). 6.13.010 6.13.010 Homestead, what constitutes—"Owner," "net value" defined. (1) The homestead consists of real or personal property that the owner uses as a residence. In the case of a dwelling house or mobile home, the homestead consists of the dwelling house or the mobile home in which the owner resides or intends to reside, with appurtenant buildings, and the land on which the same are situated and by which the same are surrounded, or improved or unimproved land owned with the intention of placing a house or mobile home thereon and residing thereon. A mobile home may be exempted under this chapter whether or not it is permanently affixed to the underlying land and whether or not the mobile [Title 6 RCW—page 2] home is placed upon a lot owned by the mobile home owner. Property included in the homestead must be actually intended or used as the principal home for the owner. (2) As used in this chapter, the term "owner" includes but is not limited to a purchaser under a deed of trust, mortgage, or real estate contract. (3) As used in this chapter, the term "net value" means market value less all liens and encumbrances senior to the judgment being executed upon and not including the judgment being executed upon. [1999 c 403 § 1; 1993 c 200 § 1; 1987 c 442 § 201; 1981 c 329 § 7; 1945 c 196 § 1; 1931 c 88 § 1; 1927 c 193 § 1; 1895 c 64 § 1; Rem. Supp. 1945 § 528. Formerly RCW 6.12.010.] Severability—1981 c 329: See note following RCW 6.21.020. 6.13.020 6.13.020 Homestead—What may constitute. If the owner is married, the homestead may consist of the community or jointly owned property of the spouses or the separate property of either spouse: PROVIDED, That the same premises may not be claimed separately by the husband and wife with the effect of increasing the net value of the homestead available to the marital community beyond the amount specified in RCW 6.13.030 as now or hereafter amended. When the owner is not married, the homestead may consist of any of his or her property. [1987 c 442 § 202; 1981 c 329 § 8; 1977 ex.s. c 98 § 1; 1973 1st ex.s. c 154 § 6; 1895 c 64 § 2; RRS § 530. Formerly RCW 6.12.020.] Severability—1981 c 329: See note following RCW 6.21.020. Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 6.13.030 6.13.030 Homestead exemption limited. A homestead may consist of lands, as described in RCW 6.13.010, regardless of area, but the homestead exemption amount shall not exceed the lesser of (1) the total net value of the lands, mobile home, improvements, and other personal property, as described in RCW 6.13.010, or (2) the sum of forty thousand dollars in the case of lands, mobile home, and improvements, or the sum of fifteen thousand dollars in the case of other personal property described in RCW 6.13.010, except where the homestead is subject to execution, attachment, or seizure by or under any legal process whatever to satisfy a judgment in favor of any state for failure to pay that state’s income tax on benefits received while a resident of the state of Washington from a pension or other retirement plan, in which event there shall be no dollar limit on the value of the exemption. [1999 c 403 § 4; 1993 c 200 § 2; 1991 c 123 § 2; 1987 c 442 § 203; 1983 1st ex.s. c 45 § 4; 1981 c 329 § 10; 1977 ex.s. c 98 § 3; 1971 ex.s. c 12 § 1; 1955 c 29 § 1; 1945 c 196 § 3; 1895 c 64 § 24; Rem. Supp. 1945 § 552. Formerly RCW 6.12.050.] Purpose—1991 c 123: "The legislature recognizes that retired persons generally are financially dependent on fixed pension or retirement benefits and passive income from investment property. Because of this dependency, retired persons are more vulnerable than others to inflation and depletion of their assets. It is the purpose of this act to increase the protection of income of retired persons residing in the state of Washington from collection of income taxes imposed by other states." [1991 c 123 § 1.] Severability—1981 c 329: See note following RCW 6.21.020. Severability—1971 ex.s. c 12: "If any provision of this 1971 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1971 ex.s. c 12 § 5.] (2006 Ed.) Homesteads 6.13.040 6.13.040 Automatic homestead exemption—Conditions—Declaration of homestead—Declaration of abandonment. (1) Property described in RCW 6.13.010 constitutes a homestead and is automatically protected by the exemption described in RCW 6.13.070 from and after the time the real or personal property is occupied as a principal residence by the owner or, if the homestead is unimproved or improved land that is not yet occupied as a homestead, from and after the declaration or declarations required by the following subsections are filed for record or, if the homestead is a mobile home not yet occupied as a homestead and located on land not owned by the owner of the mobile home, from and after delivery of a declaration as prescribed in RCW 6.15.060(3)(c) or, if the homestead is any other personal property, from and after the delivery of a declaration as prescribed in RCW 6.15.060(3)(d). (2) An owner who selects a homestead from unimproved or improved land that is not yet occupied as a homestead must execute a declaration of homestead and file the same for record in the office of the recording officer in the county in which the land is located. However, if the owner also owns another parcel of property on which the owner presently resides or in which the owner claims a homestead, the owner must also execute a declaration of abandonment of homestead on that other property and file the same for record with the recording officer in the county in which the land is located. (3) The declaration of homestead must contain: (a) A statement that the person making it is residing on the premises or intends to reside thereon and claims them as a homestead; (b) A legal description of the premises; and (c) An estimate of their actual cash value. (4) The declaration of abandonment must contain: (a) A statement that premises occupied as a residence or claimed as a homestead no longer constitute the owner’s homestead; (b) A legal description of the premises; and (c) A statement of the date of abandonment. (5) The declaration of homestead and declaration of abandonment of homestead must be acknowledged in the same manner as a grant of real property is acknowledged. [1993 c 200 § 3; 1987 c 442 § 204; 1981 c 329 § 9. Formerly RCW 6.12.045.] 6.13.080 (1) A statement that the owner claims the property as a homestead, that the owner intends to occupy the property in the future, and that the owner claims no other property as a homestead; (2) A statement of where the owner will be residing while absent from the homestead property, the estimated duration of the owner’s absence, and the reason for the absence; and (3) A legal description of the homestead property. [1987 c 442 § 205; 1981 c 329 § 14; 1895 c 64 § 7; RRS § 535. Formerly RCW 6.12.120.] Severability—1981 c 329: See note following RCW 6.21.020. 6.13.060 6.13.060 Conveyance or encumbrance by husband and wife. The homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife, except that a husband or a wife or both jointly may make and execute powers of attorney for the conveyance or encumbrance of the homestead. [1987 c 442 § 206; 1983 c 251 § 1; 1895 c 64 § 6; RRS § 534. Formerly RCW 6.12.110.] Husband and wife, property: Chapter 26.16 RCW. 6.13.070 6.13.070 Homestead exempt from execution, when— Presumed valid. (1) Except as provided in RCW 6.13.080, the homestead is exempt from attachment and from execution or forced sale for the debts of the owner up to the amount specified in RCW 6.13.030. The proceeds of the voluntary sale of the homestead in good faith for the purpose of acquiring a new homestead, and proceeds from insurance covering destruction of homestead property held for use in restoring or replacing the homestead property, up to the amount specified in RCW 6.13.030, shall likewise be exempt for one year from receipt, and also such new homestead acquired with such proceeds. (2) Every homestead created under this chapter is presumed to be valid to the extent of all the property claimed exempt, until the validity thereof is contested in a court of general jurisdiction in the county or district in which the homestead is situated. [1987 c 442 § 207; 1981 c 329 § 13; 1945 c 196 § 2; 1927 c 193 § 2; 1895 c 64 § 4; Rem. Supp. 1945 § 532. Formerly RCW 6.12.090.] Severability—1981 c 329: See note following RCW 6.21.020. Severability—1981 c 329: See note following RCW 6.21.020. 6.13.080 6.13.050 6.13.050 Homestead presumed abandoned, when— Declaration of nonabandonment. A homestead is presumed abandoned if the owner vacates the property for a continuous period of at least six months. However, if an owner is going to be absent from the homestead for more than six months but does not intend to abandon the homestead, and has no other principal residence, the owner may execute and acknowledge, in the same manner as a grant of real property is acknowledged, a declaration of nonabandonment of homestead and file the declaration for record in the office of the recording officer of the county in which the property is situated. The declaration of nonabandonment of homestead must contain: (2006 Ed.) 6.13.080 Homestead exemption, when not available. The homestead exemption is not available against an execution or forced sale in satisfaction of judgments obtained: (1) On debts secured by mechanic’s, laborer’s, construction, maritime, automobile repair, materialmen’s or vendor’s liens arising out of and against the particular property claimed as a homestead; (2) On debts secured (a) by security agreements describing as collateral the property that is claimed as a homestead or (b) by mortgages or deeds of trust on the premises that have been executed and acknowledged by the husband and wife or by any unmarried claimant; (3) On one spouse’s or the community’s debts existing at the time of that spouse’s bankruptcy filing where (a) bankruptcy is filed by both spouses within a six-month period, [Title 6 RCW—page 3] 6.13.090 Title 6 RCW: Enforcement of Judgments other than in a joint case or a case in which their assets are jointly administered, and (b) the other spouse exempts property from property of the estate under the bankruptcy exemption provisions of 11 U.S.C. Sec. 522(d); (4) On debts arising from a lawful court order or decree or administrative order establishing a child support obligation or obligation to pay spousal maintenance; (5) On debts owing to the state of Washington for recovery of medical assistance correctly paid on behalf of an individual consistent with 42 U.S.C. Sec. 1396p; or (6) On debts secured by a condominium’s or homeowner association’s lien. In order for an association to be exempt under this provision, the association must have provided a homeowner with notice that nonpayment of the association’s assessment may result in foreclosure of the association lien and that the homestead protection under this chapter shall not apply. An association has complied with this notice requirement by mailing the notice, by first class mail, to the address of the owner’s lot or unit. The notice required in this subsection shall be given within thirty days from the date the association learns of a new owner, but in all cases the notice must be given prior to the initiation of a foreclosure. The phrase "learns of a new owner" in this subsection means actual knowledge of the identity of a homeowner acquiring title after June 9, 1988, and does not require that an association affirmatively ascertain the identity of a homeowner. Failure to give the notice specified in this subsection affects an association’s lien only for debts accrued up to the time an association complies with the notice provisions under this subsection. [2005 c 292 § 4; 1993 c 200 § 4. Prior: 1988 c 231 § 3; 1988 c 192 § 1; 1987 c 442 § 208; 1984 c 260 § 16; 1982 c 10 § 1; prior: 1981 c 304 § 17; 1981 c 149 § 1; 1909 c 44 § 1; 1895 c 64 § 5; RRS § 533. Formerly RCW 6.12.100.] Severability—1988 c 231: See note following RCW 6.01.050. Severability—1984 c 260: See RCW 26.18.900. Severability—1982 c 10: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1982 c 10 § 19.] Severability—1981 c 304: See note following RCW 26.16.030. 6.13.090 6.13.090 Judgment against homestead owner—Lien on excess value of homestead property. A judgment against the owner of a homestead shall become a lien on the value of the homestead property in excess of the homestead exemption from the time the judgment creditor records the judgment with the recording officer of the county where the property is located. However, if a judgment of a district court of this state has been transferred to a superior court, the judgment becomes a lien from the time of recording with such recording officer a duly certified abstract of the record of such judgment as it appears in the office of the clerk in which the transfer was originally filed. [1988 c 231 § 4; 1987 c 442 § 209; 1984 c 260 § 30. Formerly RCW 6.12.105.] Severability—1988 c 231: See note following RCW 6.01.050. Severability—1984 c 260: See RCW 26.18.900. 6.13.100 Execution against homestead—Application for appointment of appraiser. When execution for the enforcement of a judgment obtained in a case not within the classes enumerated in RCW 6.13.080 is levied upon the 6.13.100 [Title 6 RCW—page 4] homestead, the judgment creditor shall apply to the superior court of the county in which the homestead is situated for the appointment of a person to appraise the value thereof. [1987 c 442 § 210; 1895 c 64 § 9; RRS § 537. Formerly RCW 6.12.140.] 6.13.110 6.13.110 Application under RCW 6.13.100 must be made by verified petition—Contents. The application under RCW 6.13.100 must be made by filing a verified petition, showing: (1) The fact that an execution has been levied upon the homestead. (2) The name of the owner of the homestead property. (3) That the net value of the homestead exceeds the amount of the homestead exemption. [1987 c 442 § 211; 1981 c 329 § 15; 1895 c 64 § 10; RRS § 538. Formerly RCW 6.12.150.] Severability—1981 c 329: See note following RCW 6.21.020. 6.13.120 6.13.120 Notice. A copy of the petition, with a notice of the time and place of hearing, must be served upon the owner and the owner’s attorney of record, if any, at least ten days before the hearing. [1987 c 442 § 212; 1981 c 329 § 16; 1895 c 64 § 12; RRS § 540. Formerly RCW 6.12.170.] Severability—1981 c 329: See note following RCW 6.21.020. 6.13.130 6.13.130 Hearing—Appointment of appraiser. At the hearing, the judge may, upon the proof of the service of a copy of the petition and notice and of the facts stated in the petition, appoint a disinterested qualified person of the county to appraise the value of the homestead. [1987 c 442 § 213; 1984 c 118 § 1; 1895 c 64 § 13; RRS § 541. Formerly RCW 6.12.180.] Compensation of appraiser: RCW 6.13.190. 6.13.140 6.13.140 Appraiser—Oath—Duties. The person appointed, before entering upon the performance of duties, must take an oath to faithfully perform the same. The appraiser must view the premises and appraise the market value thereof and, if the appraised value, less all liens and encumbrances, exceeds the homestead exemption, must determine whether the land claimed can be divided without material injury. Within fifteen days after appointment, the appraiser must make to the court a report in writing, which report must show the appraised value, less liens and encumbrances, and, if necessary, the determination whether or not the land can be divided without material injury and without violation of any governmental restriction. [1987 c 442 § 214; 1895 c 64 § 14; RRS § 542. Formerly RCW 6.12.190.] 6.13.150 6.13.150 Division of homestead. If, from the report, it appears to the court that the value of the homestead, less liens and encumbrances senior to the judgment being executed upon and not including the judgment being executed upon, exceeds the homestead exemption and the property can be divided without material injury and without violation of any governmental restriction, the court may, by an order, direct the appraiser to set off to the owner so much of the land, including the residence, as will amount in net value to the homestead exemption, and the execution may be enforced (2006 Ed.) Personal Property Exemptions against the remainder of the land. [1999 c 403 § 2; 1987 c 442 § 215; 1981 c 329 § 17; 1895 c 64 § 17; RRS § 545. Formerly RCW 6.12.220.] Severability—1981 c 329: See note following RCW 6.21.020. 6.13.160 Sale, if not divisible. If, from the report, it appears to the court that the appraised value of the homestead property, less liens and encumbrances senior to the judgment being executed upon and not including the judgment being executed upon, exceeds the amount of the homestead exemption and the property is not divided, the court must make an order directing its sale under the execution. The order shall direct that at such sale no bid may be received unless it exceeds the amount of the homestead exemption. [1999 c 403 § 3; 1987 c 442 § 216; 1981 c 329 § 18; 1895 c 64 § 18; RRS § 546. Formerly RCW 6.12.230.] 6.13.160 Severability—1981 c 329: See note following RCW 6.21.020. 6.13.170 Application of proceeds. If the sale is made, the proceeds must be applied in the following order: First, to the amount of the homestead exemption, to be paid to the judgment debtor; second, up to the amount of the execution, to be applied to the satisfaction of the execution; third, the balance to be paid to the judgment debtor. [1987 c 442 § 217; 1981 c 329 § 19; 1895 c 64 § 20; RRS § 548. Formerly RCW 6.12.250.] 6.13.170 Severability—1981 c 329: See note following RCW 6.21.020. 6.13.180 Money from sale protected. The money paid to the owner is entitled to the same protection against legal process and the voluntary disposition of the husband or wife which the law gives to the homestead. [1987 c 442 § 218; 1981 c 329 § 20; 1973 1st ex.s. c 154 § 10; 1895 c 64 § 21; RRS § 549. Formerly RCW 6.12.260.] 6.13.180 Severability—1981 c 329: See note following RCW 6.21.020. Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 6.13.190 Appraiser—Compensation. The court shall determine a reasonable compensation for the appraiser. [1987 c 442 § 219; 1984 c 118 § 2; 1895 c 64 § 22; RRS § 550. Formerly RCW 6.12.270.] 6.13.190 6.13.200 6.13.200 Costs. The execution creditor must pay the costs of these proceedings in the first instance; but in the cases provided for in RCW 6.13.150 and 6.13.160 the amount so paid must be added as costs on execution, and collected accordingly. [1987 c 442 § 220; 1895 c 64 § 23; RRS § 551. Formerly RCW 6.12.280.] 6.13.210 6.13.210 Alienation in case of incompetency or disability of one spouse. In case of a homestead, if either the husband or wife shall be or become incompetent or disabled to such a degree that he or she is unable to assist in the management of his or her interest in the marital property and no guardian has been appointed, upon application of the other spouse to the superior court of the county in which the homestead is situated, and upon due proof of such incompetency or disability in the severity required above, the court may make an order permitting the husband or wife applying to the court to sell and convey or mortgage such homestead. [1987 c 442 (2006 Ed.) Chapter 6.15 § 221; 1977 ex.s. c 80 § 4; 1895 c 64 § 26; RRS § 554. Formerly RCW 6.12.300.] Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. 6.13.220 6.13.220 Notice of application for order. Notice of the application for such order shall be given by publication of the same in a newspaper published in the county in which such homestead is situated, if there be a newspaper published therein, once each week for three successive weeks prior to the hearing of such application, and a copy of such notice shall be served upon the alleged incompetent husband or wife personally, and upon the nearest relative of such incompetent or disabled husband or wife other than the applicant, resident in this state, at least three weeks prior to such application being heard, and in case there be no such relative known to the applicant, a copy of such notice shall be served upon the prosecuting attorney of the county in which such homestead is situated; and it is hereby made the duty of such prosecuting attorney, upon being served with a copy of such notice, to appear in court and see that such application is made in good faith, and that the proceedings thereon are fairly conducted. [1987 c 442 § 222; 1977 ex.s. c 80 § 5; 1895 c 64 § 27; RRS § 555. Formerly RCW 6.12.310.] Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. 6.13.230 6.13.230 Petition. Thirty days before the hearing of any application under the provisions of this chapter, the applicant shall present and file in the court in which such application is to be heard a petition for the order mentioned, subscribed and sworn to by the applicant, setting forth the name and age of the alleged incompetent or disabled husband or wife; a description of the premises constituting the homestead; the value of the same; the county in which it is situated; such facts necessary to show that the nonpetitioning husband or wife is incompetent or disabled to the degree required under RCW 6.13.210; and such additional facts relating to the circumstances and necessities of the applicant and his or her family as he or she may rely upon in support of the petition. [1987 c 442 § 223; 1977 ex.s. c 80 § 6; 1895 c 64 § 28; RRS § 556. Formerly RCW 6.12.320.] Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. 6.13.240 6.13.240 Order—Effect. If the court shall make the order provided for in RCW 6.13.210, the same shall be entered upon the minutes of the court, and thereafter any sale, conveyance, or mortgage made in pursuance of such order shall be as valid and effectual as if the property affected thereby was the absolute property of the person making such sale, conveyance, or mortgage in fee simple. [1987 c 442 § 224; 1895 c 64 § 29; RRS § 557. Formerly RCW 6.12.330.] Chapter 6.15 Chapter 6.15 RCW PERSONAL PROPERTY EXEMPTIONS Sections 6.15.010 6.15.020 Exempt property. Pension money exempt—Exceptions—Transfer of spouse’s interest in individual retirement account. [Title 6 RCW—page 5] 6.15.010 6.15.025 6.15.030 6.15.035 6.15.040 6.15.050 6.15.060 6.15.070 Title 6 RCW: Enforcement of Judgments Exemption of pension or retirement plan benefits from execution for judgment for out-of-state income tax. Insurance money on exempt property exempt. Exemption of proceeds of life, disability insurance, and annuities. Separate property of spouse exempt. Exemptions under RCW 6.15.010—Limitations on exemptions. Manner of claiming exemptions—Appraisement— Appraiser’s fee. Procedure if value of property claimed exempt exceeds exemptible value. Exemptions from execution, etc., generally: cemetery grounds: RCW 68.20.120 and 68.24.220. child support obligations and earnings of nonobligated spouse: RCW 26.16.200. crime victims’ compensation: RCW 7.68.070 and 51.32.040. earnings, amount of exempt from garnishment of employer: RCW 6.27.150. homesteads: Chapter 6.13 RCW. incompetents’ property: RCW 11.92.060. industrial insurance benefits: RCW 51.32.040. insurance, proceeds of annuity, disability, life and group life: RCW 48.18.400 through 48.18.430. property exempt from seizure: RCW 6.32.250. public assistance, benefits, money of recipients in institutions: RCW 74.08.210, 74.13.070. public retirement, insurance benefits city employees, statewide system: RCW 41.44.240. first class cities, personnel and police: RCW 41.28.200, 41.20.180. fraternal benefit society benefits: RCW 48.36A.180. judges: RCW 2.10.180, 2.12.090. law enforcement officers and fire fighters: RCW 41.26.053. state employees: RCW 41.40.052. teachers: RCW 41.32.055. volunteer fire fighters: RCW 41.24.240. Washington state patrol: RCW 43.43.310. unemployment compensation benefits: RCW 50.40.020. work release participants, earnings of: RCW 72.65.060. 6.15.010 6.15.010 Exempt property. Except as provided in RCW 6.15.050, the following personal property shall be exempt from execution, attachment, and garnishment: (1) All wearing apparel of every individual and family, but not to exceed one thousand dollars in value in furs, jewelry, and personal ornaments for any individual. (2) All private libraries of every individual, but not to exceed fifteen hundred dollars in value, and all family pictures and keepsakes. (3) To each individual or, as to community property of spouses maintaining a single household as against a creditor of the community, to the community: (a) The individual’s or community’s household goods, appliances, furniture, and home and yard equipment, not to exceed two thousand seven hundred dollars in value for the individual or five thousand four hundred dollars for the community, said amount to include provisions and fuel for the comfortable maintenance of the individual or community; (b) Other personal property, except personal earnings as provided under RCW 6.15.050(1), not to exceed two thousand dollars in value, of which not more than two hundred dollars in value may consist of cash, and of which not more than two hundred dollars in value may consist of bank accounts, savings and loan accounts, stocks, bonds, or other securities; (c) For an individual, a motor vehicle used for personal transportation, not to exceed two thousand five hundred dollars or for a community two motor vehicles used for personal [Title 6 RCW—page 6] transportation, not to exceed five thousand dollars in aggregate value; (d) Any past due, current, or future child support paid or owed to the debtor, which can be traced; (e) All professionally prescribed health aids for the debtor or a dependent of the debtor; and (f) To any individual, the right to or proceeds of a payment not to exceed sixteen thousand one hundred fifty dollars on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent; or the right to or proceeds of a payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. The exemption under this subsection (3)(f) does not apply to the right of the state of Washington, or any agent or assignee of the state, as a lienholder or subrogee under RCW 43.20B.060. (4) To each qualified individual, one of the following exemptions: (a) To a farmer, farm trucks, farm stock, farm tools, farm equipment, supplies and seed, not to exceed five thousand dollars in value; (b) To a physician, surgeon, attorney, clergyman, or other professional person, the individual’s library, office furniture, office equipment and supplies, not to exceed five thousand dollars in value; (c) To any other individual, the tools and instruments and materials used to carry on his or her trade for the support of himself or herself or family, not to exceed five thousand dollars in value. For purposes of this section, "value" means the reasonable market value of the debtor’s interest in an article or item at the time it is selected for exemption, exclusive of all liens and encumbrances thereon. (5) Tuition units, under chapter 28B.95 RCW, purchased more than two years prior to the date of a bankruptcy filing or court judgment. [2005 c 272 § 6; 2002 c 265 § 1; 1991 c 112 § 1; 1988 c 231 § 5; 1987 c 442 § 301; 1983 1st ex.s. c 45 § 8; 1979 ex.s. c 65 § 1; 1973 1st ex.s. c 154 § 13; 1965 c 89 § 1; 1886 p 96 § 1; Code 1881 § 347; 1879 p 157 § 1; 1877 p 73 § 351; 1869 p 87 § 343; 1854 p 178 § 253; RRS § 563. Formerly RCW 6.16.020.] Severability—1988 c 231: See note following RCW 6.01.050. Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 6.15.020 6.15.020 Pension money exempt—Exceptions— Transfer of spouse’s interest in individual retirement account. (1) It is the policy of the state of Washington to ensure the well-being of its citizens by protecting retirement income to which they are or may become entitled. For that purpose generally and pursuant to the authority granted to the state of Washington under 11 U.S.C. Sec. 522(b)(2), the exemptions in this section relating to retirement benefits are provided. (2) Unless otherwise provided by federal law, any money received by any citizen of the state of Washington as a pension from the government of the United States, whether the same be in the actual possession of such person or be (2006 Ed.) Personal Property Exemptions deposited or loaned, shall be exempt from execution, attachment, garnishment, or seizure by or under any legal process whatever, and when a debtor dies, or absconds, and leaves his or her family any money exempted by this subsection, the same shall be exempt to the family as provided in this subsection. This subsection shall not apply to child support collection actions issued under chapter 26.18, 26.23, or 74.20A RCW, if otherwise permitted by federal law. (3) The right of a person to a pension, annuity, or retirement allowance or disability allowance, or death benefits, or any optional benefit, or any other right accrued or accruing to any citizen of the state of Washington under any employee benefit plan, and any fund created by such a plan or arrangement, shall be exempt from execution, attachment, garnishment, or seizure by or under any legal process whatever. This subsection shall not apply to child support collection actions issued under chapter 26.18, 26.23, or 74.20A RCW if otherwise permitted by federal law. This subsection shall permit benefits under any such plan or arrangement to be payable to a spouse, former spouse, child, or other dependent of a participant in such plan to the extent expressly provided for in a qualified domestic relations order that meets the requirements for such orders under the plan, or, in the case of benefits payable under a plan described in sections 403(b) or 408 of the internal revenue code of 1986, as amended, or section 409 of such code as in effect before January 1, 1984, to the extent provided in any order issued by a court of competent jurisdiction that provides for maintenance or support. This subsection shall not prohibit actions against an employee benefit plan, or fund for valid obligations incurred by the plan or fund for the benefit of the plan or fund. (4) For the purposes of this section, the term "employee benefit plan" means any plan or arrangement that is described in RCW 49.64.020, including any Keogh plan, whether funded by a trust or by an annuity contract, and in sections 401(a) or 403(a) of the internal revenue code of 1986, as amended; or that is a tax-sheltered annuity described in section 403(b) of such code or an individual retirement account described in section 408 of such code; or a Roth individual retirement account described in section 408A of such code; or a medical savings account described in section 220 of such code; or an education individual retirement account described in section 530 of such code; or a retirement bond described in section 409 of such code as in effect before January 1, 1984. The term "employee benefit plan" also means any rights accruing on account of money paid currently or in advance for purchase of tuition units under the advanced college tuition payment program in chapter 28B.95 RCW. The term "employee benefit plan" shall not include any employee benefit plan that is established or maintained for its employees by the government of the United States, by the state of Washington under chapter 2.10, 2.12, 41.26, 41.32, 41.34, 41.35, 41.40 or 43.43 RCW or RCW 41.50.770, or by any agency or instrumentality of the government of the United States. (5) An employee benefit plan shall be deemed to be a spendthrift trust, regardless of the source of funds, the relationship between the trustee or custodian of the plan and the beneficiary, or the ability of the debtor to withdraw or borrow or otherwise become entitled to benefits from the plan before retirement. This subsection shall not apply to child support collection actions issued under chapter 26.18, 26.23, or (2006 Ed.) 6.15.020 74.20A RCW, if otherwise permitted by federal law. This subsection shall permit benefits under any such plan or arrangement to be payable to a spouse, former spouse, child, or other dependent of a participant in such plan to the extent expressly provided for in a qualified domestic relations order that meets the requirements for such orders under the plan, or, in the case of benefits payable under a plan described in sections 403(b) or 408 of the internal revenue code of 1986, as amended, or section 409 of such code as in effect before January 1, 1984, to the extent provided in any order issued by a court of competent jurisdiction that provides for maintenance or support. (6) Unless contrary to applicable federal law, nothing contained in subsection (3), (4), or (5) of this section shall be construed as a termination or limitation of a spouse’s community property interest in an individual retirement account held in the name of or on account of the other spouse, the account holder spouse. At the death of the nonaccount holder spouse, the nonaccount holder spouse may transfer or distribute the community property interest of the nonaccount holder spouse in the account holder spouse’s individual retirement account to the nonaccount holder spouse’s estate, testamentary trust, inter vivos trust, or other successor or successors pursuant to the last will of the nonaccount holder spouse or the law of intestate succession, and that distributee may, but shall not be required to, obtain an order of a court of competent jurisdiction, including a nonjudicial dispute resolution agreement entered into pursuant to *RCW 11.96.170 or other order entered under chapter 11.96A RCW, to confirm the distribution. For purposes of subsection (3) of this section, the distributee of the nonaccount holder spouse’s community property interest in an individual retirement account shall be considered a person entitled to the full protection of subsection (3) of this section. The nonaccount holder spouse’s consent to a beneficiary designation by the account holder spouse with respect to an individual retirement account shall not, absent clear and convincing evidence to the contrary, be deemed a release, gift, relinquishment, termination, limitation, or transfer of the nonaccount holder spouse’s community property interest in an individual retirement account. For purposes of this subsection, the term "nonaccount holder spouse" means the spouse of the person in whose name the individual retirement account is maintained. The term "individual retirement account" includes an individual retirement account and an individual retirement annuity both as described in section 408 of the internal revenue code of 1986, as amended, a Roth individual retirement account as described in section 408A of the internal revenue code of 1986, as amended, and an individual retirement bond as described in section 409 of the internal revenue code as in effect before January 1, 1984. As used in this subsection, an order of a court of competent jurisdiction includes an agreement, as that term is used under RCW 11.96A.220. [1999 c 81 § 1; 1999 c 42 § 603; 1997 c 20 § 1; 1990 c 237 § 1; 1989 c 360 § 21; 1988 c 231 § 6. Prior: 1987 c 64 § 1; 1890 p 88 § 1; RRS § 566. Formerly RCW 6.16.030.] Reviser’s note: *(1) RCW 11.96.170 was repealed by 1999 c 42 § 637, effective January 1, 2000. (2) This section was amended by 1999 c 42 § 603 and by 1999 c 81 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). [Title 6 RCW—page 7] 6.15.025 Title 6 RCW: Enforcement of Judgments Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Severability—1990 c 237: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1990 c 237 § 2.] Severability—1988 c 231: See note following RCW 6.01.050. 6.15.025 6.15.025 Exemption of pension or retirement plan benefits from execution for judgment for out-of-state income tax. Where a judgment is in favor of any state for failure to pay that state’s income tax on benefits received while a resident of the state of Washington from a pension or other retirement plan, all property in this state, real or personal, tangible or intangible, of a judgment debtor shall be exempt from execution, attachment, garnishment, or seizure by or under any legal process whatever, and when a debtor dies, or absconds, and leaves his or her spouse and dependents any property exempted by this section, the same shall be exempt to the surviving spouse and dependents. [1991 c 123 § 3.] Purpose—1991 c 123: See note following RCW 6.13.030. 6.15.030 6.15.030 Insurance money on exempt property exempt. If property, which by the laws of this state is exempt from execution, attachment, or garnishment, is insured and the same is lost, stolen, or destroyed, then the insurance money coming to or belonging to the person thus insured, to an amount equal to the exempt property thus destroyed, shall be exempt from execution, attachment, and garnishment. [1987 c 442 § 303; 1895 c 76 § 1; RRS § 568. Formerly RCW 6.16.050.] 6.15.035 6.15.035 Exemption of proceeds of life, disability insurance, and annuities. See RCW 48.18.400, 48.18.410, 48.18.420, and 48.18.430. 6.15.040 6.15.040 Separate property of spouse exempt. All real and personal property belonging to any married person at the time of his or her marriage, and all which he or she may have acquired subsequently to such marriage, or to which he or she shall hereafter become entitled in his or her own right, and all his or her personal earnings, and all the issues, rents and profits of such real property, shall be exempt from execution, attachment, and garnishment upon any liability or judgment against the other spouse, so long as he or she or any minor heir of his or her body shall be living: PROVIDED, That the separate property of each spouse shall be liable for debts owing by him or her at the time of marriage. [1987 c 442 § 304; 1973 1st ex.s. c 154 § 14; Code 1881 § 341; 1877 p 71 § 345; 1869 p 85 § 337; 1854 p 178 § 252; RRS § 570. Formerly RCW 6.16.070.] Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. Exemption of nonobligated spouse’s earnings from satisfaction of other spouse’s child support obligations: RCW 26.16.200. 6.15.050 6.15.050 Exemptions under RCW 6.15.010—Limitations on exemptions. (1) Wages, salary, or other compensation regularly paid for personal services rendered by the debtor claiming the exemption shall not be claimed as exempt under RCW 6.15.010, but the same may be claimed [Title 6 RCW—page 8] as exempt in any bankruptcy or insolvency proceeding to the same extent as allowed under the statutes relating to garnishments. (2) No property may be exempt under RCW 6.15.010 from execution, attachment, or garnishment issued upon a judgment for all or any part of the purchase price of the property. (3) No property may be exempt under RCW 6.15.010 from legal process issued upon a judgment for restitution ordered by a court to be paid for the benefit of a victim of a criminal act. (4) No property may be exempt under RCW 6.15.010 from legal process issued upon a judgment for any tax levied upon such property. (5) Nothing in this chapter shall be so construed as to prevent a debtor from creating a security interest in personal property which might be claimed as exempt, or the enforcement of such security interest against the property. (6) Nothing in this chapter shall be construed to exempt personal property of a nonresident of this state or of an individual who has left or is about to leave this state with the intention to defraud his or her creditors. (7) Personal property exemptions are waived by failure to claim them prior to sale of exemptible property under execution or, in a garnishment proceeding, within the time specified in RCW 6.27.160. (8) Personal property exemptions may not be claimed by one spouse in a bankruptcy case that is not a joint case or a joint administration of the estate with the bankruptcy estate of the other spouse where (a) bankruptcy is filed by both spouses within a six-month period, and (b) one spouse exempts property from property of the estate under the bankruptcy exemption provisions of 11 U.S.C. Sec. 522(d). (9) No property may be exempt under RCW 6.15.010 from execution, levy, attachment, or garnishment issued by or on behalf of a child support agency operating under Title IV-D of the federal social security act or by or on behalf of any agent or assignee of the child support agency. [2002 c 265 § 2; 1987 c 442 § 305; 1981 c 149 § 2; 1927 c 136 § 1; Code 1881 § 348; 1877 p 74 § 352; 1869 p 88 § 344; RRS § 571. Formerly RCW 6.16.080.] 6.15.060 Manner of claiming exemptions—Appraisement—Appraiser’s fee. (1) Except as provided in subsection (2) of this section, property claimed exempt under RCW 6.15.010 shall be selected by the individual entitled to the exemption, or by the husband or wife entitled to a community exemption, in the manner described in subsection (3) of this section. (2) If, at the time of seizure under execution or attachment of property exemptible under *RCW 6.15.010(3) (a), (b), or (c), the individual or the husband or wife entitled to claim the exemption is not present, then the sheriff or deputy shall make a selection equal in value to the applicable exemptions and, if no appraisement is required and no objection is made by the creditor as permitted under subsection (4) of this section, the officer shall return the same as exempt by inventory. Any selection made as provided shall be prima facie evidence (a) that the property so selected is exempt from execution and attachment, and (b) that the property so selected is not in excess of the values specified for the exemptions. 6.15.060 (2006 Ed.) Executions (3)(a) A debtor who claims personal property as exempt against execution or attachment shall, at any time before sale, deliver to the officer making the levy a list by separate items of the property claimed as exempt, together with an itemized list of all the personal property owned or claimed by the debtor, including money, bonds, bills, notes, claims and demands, with the residence of the person indebted upon the said bonds, bills, notes, claims and demands, and shall verify such list by affidavit. The officer shall immediately advise the creditor, attorney, or agent of the exemption claim and, if no appraisement is required and no objection is made by the creditor as permitted under subsection (4) of this section, the officer shall return with the process the list of property claimed as exempt. (b) A debtor who claims personal property exempt against garnishment shall proceed as provided in RCW 6.27.160. (c) A debtor who claims as a homestead, under chapter 6.13 RCW, a mobile home that is not yet occupied as a homestead and that is located on land not owned by the debtor shall claim the homestead as against a specific levy by delivering to the sheriff who levied on the mobile home, before sale under the levy, a declaration of homestead that contains (i) a declaration that the debtor owns the mobile home, intends to reside therein, and claims it as a homestead, and (ii) a description of the mobile home, a statement where it is located or was located before the levy, and an estimate of its actual cash value. (d) A debtor who claims as a homestead, under RCW 6.13.040, any other personal property, shall at any time before sale, deliver to the officer making the levy a notice of claim of homestead in a statement that sets forth the following: (i) The debtor owns the personal property; (ii) the debtor resides thereon as a homestead; (iii) the debtor’s estimate of the fair market value of the property; and (iv) the debtor’s description of the property in sufficient detail for the officer making the levy to identify the same. (4)(a) Except as provided in (b) of this subsection, a creditor, or the agent or attorney of a creditor, who wishes to object to a claim of exemption shall proceed as provided in RCW 6.27.160 and shall give notice of the objection to the officer not later than seven days after the officer’s giving notice of the exemption claim. (b) A creditor, or the agent or attorney of the creditor, who wishes to object to a claim of exemption made to a levying officer, on the ground that the property claimed exceeds exemptible value, may demand appraisement. If the creditor, or the agent or attorney of the creditor, demands an appraisement, two disinterested persons shall be chosen to appraise the property, one by the debtor and the other by the creditor, agent or attorney, and these two, if they cannot agree, shall select a third; but if either party fails to choose an appraiser, or the two fail to select a third, or if one or more of the appraisers fail to act, the court shall appoint one or more as the circumstances require. The appraisers shall forthwith proceed to make a list by separate items, of the personal property selected by the debtor as exempt, which they shall decide as exempt, stating the value of each article, and annexing to the list their affidavit to the following effect: "We solemnly swear that to the best of our judgment the above is a fair cash valuation of the property therein described," which affidavit (2006 Ed.) Chapter 6.17 shall be signed by two appraisers at least, and be certified by the officer administering the oaths. The list shall be delivered to the officer holding the execution or attachment and be annexed to and made part of the return, and the property therein specified shall be exempt from levy and sale, but the other personal estate of the debtor shall remain subject to execution, attachment, or garnishment. Each appraiser shall be entitled to fifteen dollars or such larger fee as shall be fixed by the court, to be paid by the creditor if all the property claimed by the debtor shall be exempt; otherwise to be paid by the debtor. (c) If, within seven days following the giving of notice to a creditor of an exemption claim, the officer has received no notice from the creditor of an objection to the claim or a demand for appraisement, the officer shall release the claimed property to the debtor. [1993 c 200 § 5; 1988 c 231 § 7; 1987 c 442 § 306; 1973 1st ex.s. c 154 § 15; Code 1881 § 349; 1877 p 74 § 353; 1869 p 88 § 346; RRS § 572. Formerly RCW 6.16.090.] *Reviser’s note: RCW 6.15.010 was amended by 1991 c 112 § 1 changing subsection (3)(a), (b), and (c) to subsection (3)(a) and (b). Severability—1988 c 231: See note following RCW 6.01.050. Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 6.15.070 Procedure if value of property claimed exempt exceeds exemptible value. If from an appraisal it appears that the value of the property claimed exempt, exclusive of liens and encumbrances, exceeds the exemptible value and the property is indivisible, the property shall be put up for sale on execution, but at the sale no bid may be received unless it exceeds the exempt value. The proceeds of a sale in excess of the exempt value shall be paid, first, to the debtor to the extent of the exempt amount; second, up to the amount of the execution, to the satisfaction of the execution; third, the balance to be paid to the debtor. A judgment creditor who is the successful bidder at the sale must pay the exempt amount in cash. [1987 c 442 § 307.] 6.15.070 Chapter 6.17 Chapter 6.17 RCW EXECUTIONS Sections 6.17.010 6.17.020 6.17.030 6.17.040 6.17.050 6.17.060 6.17.070 6.17.080 6.17.090 6.17.100 6.17.110 6.17.120 6.17.130 6.17.140 6.17.150 6.17.160 6.17.170 6.17.180 6.17.190 Application of chapter to district courts. Execution authorized within ten years—Exceptions—Fee— Recoverable cost. Execution in name of assignee or personal representative. Stay of execution—Bond—Time periods. Stay of execution—Judgment against surety on bond if not paid. Kinds of execution. Execution in particular cases. Enforcement of judgment against local governmental entity. Property liable to execution. Affidavit of judgment creditor—Filing required before issuance of writ—Contents. Form and contents of writ. Sheriff’s duty on receiving writ—Order of executing writs. Sheriff’s execution and service of writ—Sale date—Notice to judgment debtor. Sheriff’s execution of writ—Satisfaction of judgment—Proceeds to clerk. Clerk’s duty on receipt of execution proceeds. Sheriff’s execution of writ—Manner of levy. Levy on jointly owned real estate. Levy on jointly owned personal property. Retention of property by judgment debtor—On bond or approval of judgment creditor. [Title 6 RCW—page 9] 6.17.010 Title 6 RCW: Enforcement of Judgments 6.17.010 6.17.010 Application of chapter to district courts. Unless otherwise expressly provided, all provisions of this chapter governing execution against personal property apply to proceedings before district courts of this state, but the district courts shall not have power to issue writs of execution against real property or any interest in real property or against a vendor’s interest in a real estate contract. [1987 c 442 § 401.] 6.17.020 6.17.020 Execution authorized within ten years— Exceptions—Fee—Recoverable cost. (1) Except as provided in subsections (2), (3), and (4) of this section, the party in whose favor a judgment of a court has been or may be filed or rendered, or the assignee or the current holder thereof, may have an execution, garnishment, or other legal process issued for the collection or enforcement of the judgment at any time within ten years from entry of the judgment or the filing of the judgment in this state. (2) After July 23, 1989, a party who obtains a judgment or order of a court or an administrative order entered as defined in RCW 74.20A.020(6) for accrued child support, or the assignee or the current holder thereof, may have an execution, garnishment, or other legal process issued upon that judgment or order at any time within ten years of the eighteenth birthday of the youngest child named in the order for whom support is ordered. (3) After June 9, 1994, a party in whose favor a judgment has been filed as a foreign judgment or rendered pursuant to subsection (1) or (4) of this section, or the assignee or the current holder thereof, may, within ninety days before the expiration of the original ten-year period, apply to the court that rendered the judgment or to the court where the judgment was filed as a foreign judgment for an order granting an additional ten years during which an execution, garnishment, or other legal process may be issued. If a district court judgment of this state is transcribed to a superior court of this state, the original district court judgment shall not be extended and any petition under this section to extend the judgment that has been transcribed to superior court shall be filed in the superior court within ninety days before the expiration of the tenyear period of the date the transcript of the district court judgment was filed in the superior court of this state. The petitioner shall pay to the court a filing fee equal to the filing fee for filing the first or initial paper in a civil action in the court, except in the case of district court judgments transcribed to superior court, where the filing fee shall be the fee for filing the first or initial paper in a civil action in the superior court where the judgment was transcribed. The order granting the application shall contain an updated judgment summary as provided in RCW 4.64.030. The filing fee required under this subsection shall be included in the judgment summary and shall be a recoverable cost. The application shall be granted as a matter of right, subject to review only for timeliness, factual issues of full or partial satisfaction, or errors in calculating the judgment summary amounts. (4) A party who obtains a judgment or order for restitution, crime victims’ assessment, or other court-ordered legal financial obligations pursuant to a criminal judgment and sentence, or the assignee or the current holder thereof, may execute, garnish, and/or have legal process issued upon the judgment or order any time within ten years subsequent to the [Title 6 RCW—page 10] entry of the judgment and sentence or ten years following the offender’s release from total confinement as provided in chapter 9.94A RCW. The clerk of superior court, or a party designated by the clerk, may seek extension under subsection (3) of this section for purposes of collection as allowed under RCW 36.18.190, provided that no filing fee shall be required. (5) "Court" as used in this section includes but is not limited to the United States supreme court, the United States courts of appeals, the United States district courts, the United States bankruptcy courts, the Washington state supreme court, the court of appeals of the state of Washington, superior courts and district courts of the counties of the state of Washington, and courts of other states and jurisdictions from which judgment has been filed in this state under chapter 6.36 or 6.40 RCW. (6) The perfection of any judgment lien and the priority of that judgment lien on property as established by RCW 6.13.090 and chapter 4.56 RCW is not altered by the extension of the judgment pursuant to the provisions of this section and the lien remains in full force and effect and does not have to be rerecorded after it is extended. Continued perfection of a judgment that has been transcribed to other counties and perfected in those counties may be accomplished after extension of the judgment by filing with the clerk of the other counties where the judgment has been filed either a certified copy of the order extending the judgment or a certified copy of the docket of the matter where the judgment was extended. (7) Except as ordered in RCW 4.16.020 (2) or (3), chapter 9.94A RCW, or chapter 13.40 RCW, no judgment is enforceable for a period exceeding twenty years from the date of entry in the originating court. Nothing in this section may be interpreted to extend the expiration date of a foreign judgment beyond the expiration date under the laws of the jurisdiction where the judgment originated. (8) The chapter 261, Laws of 2002 amendments to this section apply to all judgments currently in effect on June 13, 2002, to all judgments extended after June 9, 1994, unless the judgment has been satisfied, vacated, and/or quashed, and to all judgments filed or rendered, or both, after June 13, 2002. [2002 c 261 § 1; 1997 c 121 § 1; 1995 c 231 § 4; 1994 c 189 § 1; 1989 c 360 § 3; 1987 c 442 § 402; 1980 c 105 § 4; 1971 c 81 § 26; 1929 c 25 § 2; RRS § 510. Prior: 1888 p 94 § 1; Code 1881 § 325; 1877 p 67 § 328; 1869 p 79 § 320; 1854 p 175 § 242. Formerly RCW 6.04.010.] Rules of court: Cf. CR 58(b), 62(a), and 69(a); JCR 54. Application—1980 c 105: See note following RCW 4.16.020. Entry of judgment: RCW 6.01.020. 6.17.030 6.17.030 Execution in name of assignee or personal representative. When a judgment recovered in any court of this state has been assigned, execution may issue in the name of the assignee after the assignment has been recorded in the execution docket by the clerk of the court in which the judgment was recovered. When the person in whose name execution might have issued has died, execution may issue in the name of the executor, administrator or legal representative of such deceased person after letters testamentary or of administration or other sufficient proof has been filed in the cause and recorded in the execution docket by the clerk of the court in which the judgment was entered. [1987 c 442 § 403; 1957 (2006 Ed.) Executions c 8 § 2; 1929 c 25 § 7; RRS § 519. Prior: Code 1881 § 334; 1877 p 70 § 338; 1869 p 84 § 330. Formerly RCW 6.04.070.] 6.17.040 6.17.040 Stay of execution—Bond—Time periods. In addition to any stay of execution provided by court rule, stay of execution shall be allowed on judgments of the courts of this state for the following periods upon the judgment debtor filing with the clerk of the court in which the judgment was entered a bond in double the amount of the judgment and costs, with surety to the satisfaction of the clerk, conditioned to pay the judgment, interests, costs, and increased costs, at the expiration of the stay period. If execution is issued before elapse of the stay period, the judgment debtor may nevertheless stay execution for the balance of the period by filing the required bond. (1) In the supreme court and the court of appeals, the period of stay, measured from date of entry of judgment, shall be: (a) On all sums under five thousand dollars, thirty days; (b) On all sums over five and under fifteen thousand dollars, sixty days; and (c) On all sums over fifteen thousand dollars, ninety days. (2) On judgments rendered in the superior court or a district court of this state, the period of stay shall be: (a) On all sums under three thousand dollars, two months; (b) On all sums over three thousand and under ten thousand dollars, five months; and (c) On all sums over ten thousand dollars, six months. [1987 c 442 § 404.] Rules of court: Cf. CR 62(a). 6.17.050 6.17.050 Stay of execution—Judgment against surety on bond if not paid. If execution of a judgment is stayed as permitted by RCW 6.17.040 and the judgment is not satisfied at expiration of the stay period, at any time thereafter the judgment creditor may, upon motion supported by an affidavit that the judgment or any part of it is unpaid and stating how much still remains due, have judgment against the surety on the bond for the balance remaining due, and have an execution on the judgment against the surety, on which stay shall not be allowed. [1987 c 442 § 405.] 6.17.060 6.17.060 Kinds of execution. There shall be three kinds of executions: First, against the property of the judgment debtor; second, for the delivery of the possession of real or personal property or such delivery with damages for withholding the same; and third, commanding the enforcement of or obedience to any other order of the court. In all cases there shall be an order to collect the costs. [1987 c 442 § 406; 1929 c 25 § 3; RRS § 511. Prior: Code 1881 § 327; 1877 p 68 § 331; 1854 p 176 § 244. Formerly RCW 6.04.020.] 6.17.070 6.17.070 Execution in particular cases. When any judgment of a court of this state requires the payment of money or the delivery of real or personal property, it may be enforced by execution. When a judgment of a court of record requires the performance of any other act, a certified copy of the judgment may be served on the party against whom it is (2006 Ed.) 6.17.100 given or the person or officer who is required by the judgment or by law to obey the same, and a writ may be issued commanding the person or officer to obey or enforce the judgment. Refusal to do so may be punished by the court as for contempt. [1987 c 442 § 407; 1957 c 8 § 1; 1929 c 25 § 1; RRS § 512. Prior: Code 1881 § 326; 1877 p 68 § 330; 1854 p 176 § 244. Formerly RCW 6.04.030.] 6.17.080 6.17.080 Enforcement of judgment against local governmental entity. No execution may issue for collection of a judgment for the recovery of money or damages against a local governmental entity. Any such judgment may be enforced as follows: (1) The judgment creditor may at any time when execution might issue on a like judgment against a private person, and after acknowledging satisfaction of the judgment as in ordinary cases, obtain from the clerk a certified transcript of the judgment. The clerk shall include in the transcript a copy of the memorandum of acknowledgment of satisfaction and the entry thereof as the basis for an order on the treasurer for payment. Unless the transcript contains such memorandum, no order upon the treasurer shall issue thereon. (2) The judgment creditor shall present the certified transcript showing satisfaction of the judgment to the officer of the local governmental entity who is authorized to draw orders on its treasury. (3) The officer shall draw an order on the treasurer for the amount of the judgment, in favor of the judgment creditor. The order shall be presented for payment and paid with like effect and in like manner as other orders upon the treasurer. If the proper officer of the local governmental entity fails or refuses to draw the order for payment of the judgment as provided in this section, a writ of mandamus may be issued in the original case to compel performance of the duty. (4) As used in this section, the term "local governmental entity" means a county, city, town, special district, municipal corporation, or quasi-municipal corporation. [1993 c 449 § 6; 1987 c 442 § 408; Code 1881 § 664; 1877 p 137 § 667; 1869 p 154 § 604; RRS § 953. Formerly RCW 6.04.140.] Purpose—Severability—1993 c 449: See notes following RCW 4.96.010. 6.17.090 6.17.090 Property liable to execution. All property, real and personal, of the judgment debtor that is not exempted by law is liable to execution. [1987 c 442 § 409; 1929 c 25 § 6; RRS § 518. Prior: Code 1881 § 333; 1877 p 70 § 337; 1854 p 177 § 251. Formerly RCW 6.04.060.] 6.17.100 6.17.100 Affidavit of judgment creditor—Filing required before issuance of writ—Contents. (1) Before a writ of execution may issue on any real property, the judgment creditor must file with the court an affidavit as described in subsection (4) of this section and must mail a copy of the affidavit to the judgment debtor at the debtor’s last known address. (2) If the affidavit attests that the premises are occupied or otherwise claimed as a homestead by the judgment debtor, the execution for the enforcement of a judgment obtained in a case not within the classes enumerated in RCW 6.13.080 must comply with RCW 6.13.100 through 6.13.170. [Title 6 RCW—page 11] 6.17.110 Title 6 RCW: Enforcement of Judgments (3) The term "due diligence," as used in subsection (4) of this section, includes but is not limited to the creditor or the creditor’s representative personally visiting the premises, contacting the occupants and inquiring about their relationship to the judgment debtor, contacting immediate neighbors of the premises, and searching the records of the auditor of the county in which the property is located to determine if a declaration of homestead or nonabandonment has been recorded by the judgment debtor. An examination of the debtor in supplemental proceedings on the points to be covered in the affidavit constitutes "due diligence." (4) The affidavit required by this section shall include: (a) A statement that the judgment creditor has exercised due diligence to ascertain whether the judgment debtor has sufficient nonexempt personal property to satisfy the judgment with interest and believes that there is not sufficient nonexempt personal property belonging to the judgment debtor to so satisfy the judgment. A list of personal property located shall be attached with an indication of any items that the judgment creditor believes to be exempt. (b) A statement that the judgment creditor has exercised due diligence to ascertain whether the property is occupied or otherwise claimed by the judgment debtor as a homestead as defined in chapter 6.13 RCW. (c) A statement based on belief whether the judgment debtor is currently occupying the property as the judgment debtor’s principal residence and whether there is a declaration of homestead or nonabandonment of record. If the affidavit alleges that the property is not occupied or claimed as a homestead, the creditor must list the facts relied upon to reach that conclusion. (d) If the judgment debtor is not occupying the property and there is no declaration of nonabandonment of record, a statement based on belief whether the judgment debtor has been absent for a period of at least six months, with facts relied upon to reach that conclusion, and, if known, the judgment debtor’s current address. [1988 c 231 § 8; 1987 c 442 § 410; 1981 c 329 § 4. Formerly RCW 6.04.035.] Severability—1988 c 231: See note following RCW 6.01.050. Severability—1981 c 329: See note following RCW 6.21.020. 6.17.110 6.17.110 Form and contents of writ. (1) The writ of execution shall be issued in the name of the state of Washington, sealed with the seal of the court, and subscribed by the clerk of the court in which the judgment was entered or to which it has been transferred, and shall be directed to the sheriff of the county in which the property is situated. The writ shall intelligibly refer to the judgment, stating the court, the county where the judgment was rendered, the names of the parties, the amount of the judgment if it be for money, and the amount actually due thereon; and if the judgment has been recorded, the writ shall so indicate and shall state the recording number. (2) Before an execution is delivered on a judgment of a district court of this state, the amount of the judgment, or damages and costs, and the fees due to each person separately shall be entered in the docket and on the back of the execution. In any proceeding to enforce a judgment certified to a district court from the small claims department under RCW 12.40.110, the execution shall include the amount of the [Title 6 RCW—page 12] judgment owed plus reasonable costs and reasonable attorneys’ fees incurred by the judgment creditor in seeking enforcement of the judgment in district court. (3) A writ shall require substantially as follows: (a) If the execution is against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property of the debtor unless an affidavit has been filed with the court pursuant to RCW 6.17.100, in which case it shall require that the judgment be satisfied out of the real property of the debtor. (b) If the execution is against real or personal property in the hands of a personal representative, heir, devisee, legatee, tenant of real property, or trustee, it shall require the officer to satisfy the judgment out of such property. (c) If the execution is for the delivery of real or personal property, it shall particularly describe the property and state its value and require the officer to deliver possession of it to the party entitled thereto, and may, at the same time, require the officer to satisfy any charges, damages, or rents and profits recovered by the same judgment, out of the personal property of the party against whom it was rendered. If the property described in the execution cannot be delivered, and if sufficient personal property cannot be found to satisfy the judgment, it shall be satisfied out of the real property of the party against whom the judgment was rendered. (d) If the execution is to enforce obedience to any order, it shall particularly command what is required to be done or to be omitted. (e) If the nature of the case requires it, the execution may embrace two or more of the requirements of this section. (f) In all cases the execution shall require the collection of all interest, costs, and increased costs thereon. [1988 c 231 § 9; 1987 c 442 § 411; 1981 c 329 § 5; 1929 c 25 § 4; RRS § 513. Prior: Code 1881 § 324; 1877 p 68 § 332; 1869 p 81 § 324; 1854 p 176 § 246. Formerly RCW 6.04.040.] Severability—1988 c 231: See note following RCW 6.01.050. Severability—1981 c 329: See note following RCW 6.21.020. 6.17.120 6.17.120 Sheriff’s duty on receiving writ—Order of executing writs. The sheriff or other officer shall indorse upon the writ of execution in ink, the day, hour, and minute when the writ first came into his or her hands, and the execution shall be returned with a report of proceedings under the writ within sixty days after its date to the clerk who issued it. When there are several writs of execution or of execution and attachment against the same debtor, they shall be executed in the order in which they were received by the sheriff. [1987 c 442 § 412; 1983 1st ex.s. c 45 § 1; 1929 c 25 § 5; RRS § 515. Prior: Code 1881 § 330; 1877 p 69 § 334; 1869 p 83 § 226; 1854 p 177 § 248. Formerly RCW 6.04.050.] 6.17.130 6.17.130 Sheriff’s execution and service of writ— Sale date—Notice to judgment debtor. When the writ of execution is against the property of the judgment debtor, the sheriff shall set the date of sale and serve on the debtor, in the same manner as service of a summons in a civil action, or cause to be transmitted by both regular mail and certified mail, return receipt requested, a copy of the writ, together with copies of RCW 6.13.010, 6.13.030, and 6.13.040 if real property is to be levied on, or copies of RCW 6.15.010 and (2006 Ed.) Executions 6.15.060 if personal property is to be levied on, and shall at the time of service, or with the mailing, notify the judgment debtor of the date of sale. If service on the judgment debtor must be effected by publication, only the following notice need be published under the caption of the case: To . . . . . ., Judgment Debtor: A writ of execution has been issued in the abovecaptioned case, directed to the sheriff of . . . . . . county, commanding the sheriff as follows: "WHEREAS, . . . [Quoting body of writ of execution]." The sale date has been set for . . . . . . . YOU MAY HAVE A RIGHT TO EXEMPT PROPERTY from the sale under statutes of this state, including sections 6.13.010, 6.13.030, 6.13.040, 6.15.010, and 6.15.060 of the Revised Code of Washington, in the manner described in those statutes. [1988 c 231 § 10; 1987 c 442 § 413; 1984 c 276 § 7; 1983 c 3 § 6; 1981 c 193 § 1; Code 1881 § 355; 1877 p 76 § 358; 1869 p 91 § 351; RRS § 578. Formerly RCW 6.04.100.] Rules of court: CR 4. Severability—1988 c 231: See note following RCW 6.01.050. Application—1984 c 276: See note following RCW 6.21.020. 6.17.140 6.17.140 Sheriff’s execution of writ—Satisfaction of judgment—Proceeds to clerk. The sheriff shall, at a time as near before or after service of the writ on, or mailing of the writ to, the judgment debtor as is possible, execute the writ as follows: (1) If property has been attached, the sheriff shall indorse on the execution, and pay to the clerk forthwith, if he or she has not already done so, the amount of the proceeds of sales of perishable property or debts due the defendant previously received, sufficient to satisfy the judgment. (2) If the judgment is not then satisfied, and property has been attached and remains in custody, the sheriff shall sell the same, or sufficient thereof to satisfy the judgment. When property has been attached and it is probable that such property will not be sufficient to satisfy the judgment, the sheriff may, on instructions from the judgment creditor, levy on other property of the judgment debtor without delay. (3) If then any portion of the judgment remains unsatisfied, or if no property has been attached or the same has been discharged, the sheriff shall levy on the property of the judgment debtor, sufficient to satisfy the judgment, in the manner described in RCW 6.17.160. (4) If, after the judgment is satisfied, any property remains in custody, the sheriff shall deliver it to the judgment debtor. (5) Until a levy, personal property shall not be affected by the execution. (6) When property has been sold or debts received on execution, the sheriff shall pay the proceeds to the clerk who issued the writ, for satisfaction of the judgment as commanded in the writ or for return of any excess proceeds to the judgment debtor. No sheriff or other officer may retain any moneys collected on execution more than twenty days before (2006 Ed.) 6.17.160 paying the same to the clerk of the court who issued the writ. [1988 c 231 § 11; 1987 c 442 § 414.] Severability—1988 c 231: See note following RCW 6.01.050. 6.17.150 6.17.150 Clerk’s duty on receipt of execution proceeds. Upon receipt of proceeds from the sheriff on execution, the clerk shall notify the party to whom the same is payable, and pay over the amount to that party as required by law. If any proceeds remain after satisfaction of the judgment, the clerk shall pay the excess to the judgment debtor. [1987 c 442 § 415.] 6.17.160 6.17.160 Sheriff’s execution of writ—Manner of levy. The sheriff to whom the writ is directed and delivered shall execute the same without delay as follows: (1) Real property, including a vendee’s interests under a real estate contract, shall be levied on by recording a copy of the writ, together with a description of the property attached, with the recording officer of the county in which the real estate is situated. (2) Personal property, capable of manual delivery, shall be levied on by taking into custody. (3) Shares of stock and other investment securities shall be levied on in accordance with the requirements of *RCW 62A.8-317. (4) A fund in court shall be levied on by leaving a copy of the writ with the clerk of the court with notice in writing specifying the fund. (5) A franchise granted by a public or quasi-public corporation shall be levied on by (a) serving a copy of the writ on, or mailing it to, the judgment debtor as required by RCW 6.17.130 and (b) filing a copy of the writ in the office of the auditor of the county in which the franchise was granted together with a notice in writing that the franchise has been levied on to be sold, specifying the time and place of sale, the name of the owner, the amount of the judgment for which the franchise is to be sold, and the name of the judgment creditor. (6) A vendor’s interest under a real estate contract shall be levied on by (a) recording a copy of the writ, with descriptions of the contract and of the real property covered by the contract, with the recording officer of the county in which the real estate is located and (b) serving a copy of the writ, with a copy of the descriptions, on, or mailing the same to, the judgment debtor and the vendee under the contract in the manner as described in RCW 6.17.130. (7) Other intangible personal property may be levied on by serving a copy of the writ on, or mailing it to, the judgment debtor in the manner as required by RCW 6.17.130, together with a description of the property. If the property is a claim on which suit has been commenced, a copy of the writ and of the description shall also be filed with the clerk of the court in which the suit is pending. [1988 c 231 § 12; 1987 c 442 § 416; 1927 c 100 § 1; 1886 p 42 § 13; RRS § 659. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.130.] *Reviser’s note: RCW 62A.8-317 was repealed by 1995 c 48 § 52. Severability—1988 c 231: See note following RCW 6.01.050. Sheriff’s fees for service of process and other official services: RCW 36.18.040. [Title 6 RCW—page 13] 6.17.170 Title 6 RCW: Enforcement of Judgments 6.17.170 6.17.170 Levy on jointly owned real estate. If a judgment debtor owns real estate jointly or in common with any other person, only the debtor’s interest may be levied on and sold on execution, and the sheriff’s notice of sale shall describe the extent of the debtor’s interest to be sold as accurately as possible. [1987 c 442 § 417.] 6.17.180 6.17.180 Levy on jointly owned personal property. When a judgment debtor owns personal property jointly or in common with any other person, only the debtor’s interest may be levied on and sold on execution, and the sheriff’s notice of sale shall describe the extent of the debtor’s interest as accurately as possible. If the debtor’s interest cannot be separately levied on, the sheriff shall take possession of the property unless the other person having an interest gives the sheriff a sufficient bond, with surety, conditioned to hold and manage the property according to law; and the sheriff shall then proceed to sell the interest of the defendant in such property. This section shall not be construed so as to deprive the joint or common owner of any interest in the property. [1987 c 442 § 418; 1957 c 8 § 3; Code 1881 § 752; 1877 p 152 § 757; 1869 p 174 § 694; 1854 p 220 § 499; RRS § 580. Formerly RCW 6.04.120.] 6.17.190 6.17.190 Retention of property by judgment debtor—On bond or approval of judgment creditor. (1) After levy of execution upon personal property, the sheriff may permit the judgment debtor to retain possession of the property or any part of it until the day of sale, upon the debtor executing a written bond to the sheriff with sufficient surety, in double the value of such property, to the effect that it shall be delivered to the sheriff at the time and place of sale, and for nondelivery thereof, an action may be maintained upon such bond by the sheriff or the judgment creditor, or the judgment creditor may, on motion supported by affidavit that the property has not been delivered and the judgment remains unpaid, stating the amount unpaid, have judgment against the surety on the bond for the balance remaining due. (2) In the alternative, the sheriff may appoint the judgment debtor as an agent to keep the property, without bond, upon written approval by the judgment creditor. [1988 c 231 § 13; 1987 c 442 § 419; Code 1881 § 358; 1877 p 77 § 361; 1869 p 92 § 354; 1854 p 182 § 268; RRS § 581. Formerly RCW 6.04.130.] Severability—1988 c 231: See note following RCW 6.01.050. (1) "Adverse claimant" means a person, other than the judgment debtor or defendant, who claims title or right to possession of property levied on. (2) "Levying creditor" means the judgment creditor or plaintiff who obtained the writ of execution or attachment under which levy was made. [1987 c 442 § 501.] 6.19.020 6.19.020 Application of chapter—Common law or other remedies not superseded. An adverse claimant may assert a claim under the procedures provided in this chapter whether the levy was made under a writ of execution or of attachment and whether the writ was issued by a superior court or a district court of this state, but this chapter does not supersede common law or other remedies available to an adverse claimant before or after levy or sale. [1987 c 442 § 502.] 6.19.030 6.19.030 Affidavit of adverse claimant—Bond— Hearing. (1) An adverse claimant to property levied on may demand and receive the property from the sheriff who made the levy, upon making and delivering to the sheriff an affidavit that the property is owned by the claimant or that the claimant has a right to the immediate possession thereof, stating on oath the value thereof, and giving to the sheriff a bond, with sureties in double the value of such property. The bond shall be conditioned that the claimant will appear in the court specified in RCW 6.19.050 after the bond is accepted by the sheriff, and make good the claim in the affidavit or will return the property or pay its value to the sheriff. (2) Without giving a bond, an adverse claimant who delivers to the sheriff an affidavit as described in subsection (1) of this section may, on motion made within seven days after delivering the affidavit, appear in the court specified in RCW 6.19.050, with notice to the sheriff and to the attorney of record for the levying creditor, if any, otherwise to the levying creditor, and set a hearing at which the probable validity of the claim stated in the affidavit can be considered. If the court, after the hearing, finds that the claim is probably valid, it shall direct the sheriff to release the claimed property to the claimant; otherwise, the court shall direct the sheriff to continue to hold the property unless the claimant gives a bond as provided in subsection (1) of this section. [1987 c 442 § 503; 1891 c 40 § 1; Code 1881 § 350; 1877 p 75 § 354; 1869 p 89 § 347; 1854 p 179 § 256; RRS § 573. Formerly RCW 6.20.010.] 6.19.040 Chapter 6.19 Chapter 6.19 RCW ADVERSE CLAIMS TO PROPERTY LEVIED ON Sections 6.19.010 6.19.020 6.19.030 6.19.040 6.19.050 6.19.060 Definitions. Application of chapter—Common law or other remedies not superseded. Affidavit of adverse claimant—Bond—Hearing. Justification of sureties. Filing of affidavit by sheriff—Designation of parties—Trial. Judgment—Costs. 6.19.010 6.19.010 Definitions. The definitions in this section apply throughout this chapter. [Title 6 RCW—page 14] 6.19.040 Justification of sureties. If the adverse claimant posts a bond and the sheriff requires it, the sureties shall justify as in other cases, and in case they do not so justify when required, the sheriff shall retain the property; if the sheriff does not require the sureties to justify, he or she shall stand good for their sufficiency. The sheriff shall date and indorse acceptance upon the bond. [1987 c 442 § 504; 1957 c 8 § 5; Code 1881 § 351; 1877 p 75 § 354; 1869 p 89 § 347; 1854 p 179 § 256; RRS § 574. Formerly RCW 6.20.020.] 6.19.050 6.19.050 Filing of affidavit by sheriff—Designation of parties—Trial. The sheriff shall immediately return the affidavit of an adverse claimant and the bond and justification, if any, to the office of the clerk of the court that issued (2006 Ed.) Sales Under Execution the writ, unless the property was seized in another county, then to the clerk of the superior court of the county in which the property was seized or, if the levy was made under a writ of a district court of this state, then to a district court, to be selected by the sheriff, in the county in which the property was seized, and this case shall stand for trial in said court. The adverse claimant shall be the plaintiff, and the sheriff and the levying creditor shall be the defendants. The sheriff or levying creditor or both of them may respond to the affidavit, but no further pleadings are required, and any party may cause the matter to be noted for trial. [1987 c 442 § 505; 1891 c 40 § 2; Code 1881 § 352; 1877 p 75 § 355; 1869 p 90 § 348; 1854 p 179 § 257; RRS § 575. Formerly RCW 6.20.030.] 6.19.060 6.19.060 Judgment—Costs. If the claimant makes good on all or any part of the claim to title to the property or right to possession, judgment shall be entered for the claimant to the extent the claim has been established. If the claimant has given a bond, the bond shall be canceled or, if the claimant makes good on only a portion of the claim, a like proportion of the bond shall be canceled. If the claimant has not given a bond and the sheriff has retained possession of the property, judgment shall be entered in favor of the claimant for return of the property or its value. If the claimant does not maintain the claim, judgment shall be rendered against the claimant. If the claimant has retained possession of the property pending trial on the claim, the judgment shall be entered against the claimant and, if the claimant has given a bond, against the sureties for the return of the property or for the value of the property or of the portion of the property for which the claim is not maintained, or for such lesser amount as shall not exceed the amount due on the original execution or attachment. When the judgment is in favor of the sheriff for the entire property, the claimant shall pay the costs; when the claimant recovers all the property, judgment shall be given in favor of the claimant for costs; when the claimant recovers a portion of the property only, the costs shall be apportioned. When the claimant prevails, the costs may be taxed against the levying creditor or, if the court finds that the sheriff attached or levied upon the property without the exercise of due caution, the court may require the sheriff to pay the costs or any portion thereof. [1987 c 442 § 506; Code 1881 § 354; 1877 p 76 § 357; 1869 p 90 § 350; 1854 p 179 § 259; RRS § 577. Formerly RCW 6.20.050.] Chapter 6.21 Chapter 6.21 RCW SALES UNDER EXECUTION Sections 6.21.010 6.21.020 6.21.030 6.21.040 6.21.050 6.21.060 6.21.070 6.21.080 6.21.090 (2006 Ed.) Application of chapter to district courts. Notice of sale—Personal property. Notice of sale—Real property—Form for publication. Notice of sale of real property—Form of notice to judgment debtor. Time and place of sale—Postponements. Amount of property to be sold—Officers and deputies may not purchase. Manner of sale of personal property—Bill of sale—Sheriff’s deed if real estate contract. Redemption rights—Sale of short term leasehold and vendor’s interest under real estate contract absolute. Manner of selling real estate—Sale by lot, acre—Measurement. 6.21.100 6.21.110 6.21.120 6.21.130 6.21.030 Sale of real property to highest bidder—Sheriff’s return and certificate of sale. Confirmation of sale—Objections—Resale—Distribution of sale proceeds—Filing of certificate. Sheriff’s deed to real property sold. Effect of reversal of judgment on sale of real property. 6.21.010 6.21.010 Application of chapter to district courts. All the provisions of this chapter governing sales of personal property, except vendors’ interests under real estate contracts, shall apply to proceedings before district courts. [1987 c 442 § 601.] 6.21.020 6.21.020 Notice of sale—Personal property. Before the sale of personal property under execution, order of sale or decree, notice thereof shall be given as follows: (1) The judgment creditor shall, not less than thirty days prior to the day of sale, cause a copy of the notice of sale to be transmitted both by regular mail and by certified mail, return receipt requested, to the judgment debtor at the debtor’s last known address, and by regular mail to the attorney of record for the judgment debtor, if any. The judgment creditor shall file an affidavit with the court showing compliance with the requirements of this subsection. (2) The sheriff shall post typed or printed notice of the time and place of the sale in three public places in the county in which the sale is to take place, for a period of not less than four weeks prior to the day of sale. [1988 c 231 § 14; 1987 c 442 § 602; 1984 c 276 § 1; 1981 c 329 § 1; 1935 c 35 § 1; RRS § 582. Prior: 1927 c 69 § 1; 1903 c 179 § 1; 1899 c 53 § 3; 1897 c 91 § 1. Formerly RCW 6.24.010.] Severability—1988 c 231: See note following RCW 6.01.050. Application—1984 c 276: "The 1984 amendments to RCW 6.04.100, 6.24.010, 6.24.015, 6.24.100, 6.24.140, 6.24.145, and 6.24.180 shall apply to all executions under chapter 6.24 RCW commenced after the effective date of this act [June 7, 1984]." [1984 c 276 § 8.] Severability—1981 c 329: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1981 c 329 § 24.] 6.21.030 6.21.030 Notice of sale—Real property—Form for publication. Before the sale of real property under execution, order of sale, or decree, notice of the sale shall be given as follows: (1) The judgment creditor shall: (a) Not less than thirty days prior to the date of sale, cause a copy of the notice in the form provided in RCW 6.21.040 to be (i) served on the judgment debtor or debtors and each of them in the same manner as a summons in a civil action, or (ii) transmitted both by regular mail and by certified mail, return receipt requested, to the judgment debtor or debtors, and to each of them separately if there is more than one judgment debtor, at each judgment debtor’s last known address; and (b) Not less than thirty days prior to the date of sale, mail a copy of the notice of sale to the attorney of record for the judgment debtor, if any; and (c) File an affidavit with the court that the judgment creditor has complied with the notice requirements of this section. (2) The sheriff shall: [Title 6 RCW—page 15] 6.21.040 Title 6 RCW: Enforcement of Judgments (a) For a period of not less than four weeks prior to the date of sale, post a notice in the form provided in RCW 6.21.040, particularly describing the property, in two public places in the county in which the property is located, one of which shall be at the courthouse door, where the property is to be sold, and in case of improved real estate, one of which shall be at the front door of the principal building constituting such improvement; and (b) Publish a notice of the sale once a week, consecutively, for the same period, in any daily or weekly legal newspaper of general circulation published in the county in which the real property to be sold is situated, but if there is more than one legal newspaper published in the county, then the plaintiff or moving party in the action, suit, or proceeding has the exclusive right to designate in which of the qualified newspapers the notice shall be published, and if there is no qualified legal newspaper published in the county, then the notice shall be published in a qualified legal newspaper published in a contiguous county, as designated by the plaintiff or moving party. The published notice shall be in substantially the following form: IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR . . . . COUNTY Plaintiff, vs. Defendant.      CAUSE NO. SHERIFF’S PUBLIC NOTICE OF SALE OF REAL PROPERTY TO: [Judgment Debtor] The Superior Court of . . . . . . County has directed the undersigned Sheriff of . . . . . . County to sell the property described below to satisfy a judgment in the above-entitled action. If developed, the property address is: . . . . . . The sale of the above-described property is to take place: Time: . . . . . . Date: . . . . . . Place: . . . . . . The judgment debtor can avoid the sale by paying the judgment amount of $ . . . ., together with interest, costs, and fees, before the sale date. For the exact amount, contact the sheriff at the address stated below: . . . . . . SHERIFF-DIRECTOR, . . . . . . COUNTY, WASHINGTON. By . . . . . . . . . ., Deputy Address . . . . . . . . . . . . . . . City . . . . . . . . . . . . . . . . . . Washington 9 . . . . . . . Phone (. . .) . . . . . . . . . . . . [1987 c 442 § 603.] 6.21.040 6.21.040 Notice of sale of real property—Form of notice to judgment debtor. The notice of sale shall be printed or typed and shall be in substantially the following form, except that if the sale is not pursuant to a judgment of foreclosure of a mortgage or a statutory lien, the notice shall also contain a statement that the sheriff has been informed that there is not sufficient personal property to satisfy the judgment and that if the judgment debtor or debtors do have sufficient personal property to satisfy the judgment, the judg[Title 6 RCW—page 16] ment debtor or debtors should contact the sheriff’s office immediately: IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR . . . . COUNTY Plaintiff, vs. Defendant.      CAUSE NO. SHERIFF’S NOTICE TO JUDGMENT DEBTOR OF SALE OF REAL PROPERTY TO: [Judgment Debtor] The Superior Court of . . . . . . County has directed the undersigned Sheriff of . . . . . . County to sell the property described below to satisfy a judgment in the above-entitled action. The property to be sold is described on the reverse side of this notice. If developed, the property address is: . . . . . . The sale of the above-described property is to take place: Time: . . . . . . . Date: . . . . . . . Place: . . . . . . . The judgment debtor can avoid the sale by paying the judgment amount of $ . . . ., together with interest, costs, and fees, before the sale date. For the exact amount, contact the sheriff at the address stated below: This property is subject to: (check one) â 1. No redemption rights after sale. â 2. A redemption period of eight months which will expire at 4:30 p.m. on the . . . . day of . . . . . ., 19 . . . â 3. A redemption period of one year which will expire at 4:30 p.m. on the . . . . day of . . . . . ., 19 . . . The judgment debtor or debtors or any of them may redeem the above described property at any time up to the end of the redemption period by paying the amount bid at the sheriff’s sale plus additional costs, taxes, assessments, certain other amounts, fees, and interest. If you are interested in redeeming the property contact the undersigned sheriff at the address stated below to determine the exact amount necessary to redeem. IMPORTANT NOTICE: IF THE JUDGMENT DEBTOR OR DEBTORS DO NOT REDEEM THE PROPERTY BY 4:30 p.m. ON THE . . . . DAY OF . . . . . ., 19 . . ., THE END OF THE REDEMPTION PERIOD, THE PURCHASER AT THE SHERIFF’S SALE WILL BECOME THE OWNER AND MAY EVICT THE OCCUPANT FROM THE PROPERTY UNLESS THE OCCUPANT IS A TENANT HOLDING UNDER AN UNEXPIRED LEASE. IF THE PROPERTY TO BE SOLD IS OCCUPIED AS A PRINCIPAL RESIDENCE BY THE JUDGMENT DEBTOR OR DEBTORS AT THE TIME OF SALE, HE, SHE, THEY, OR ANY OF THEM MAY HAVE THE RIGHT TO RETAIN POSSESSION DURING THE REDEMPTION PERIOD, IF ANY, WITHOUT PAYMENT OF ANY RENT OR OCCUPANCY FEE. THE JUDGMENT DEBTOR MAY ALSO HAVE A RIGHT TO RETAIN POSSESSION DURING ANY REDEMPTION PERIOD IF THE PROPERTY IS USED FOR FARMING OR IF THE PROPERTY IS BEING SOLD UNDER A MORTGAGE THAT SO PROVIDES. (2006 Ed.) Sales Under Execution . . . . . . SHERIFF-DIRECTOR, . . . . . . COUNTY, WASHINGTON. By . . . . . . . . . ., Deputy Address . . . . . . . . . . City . . . . . . . . . . Washington 9 . . . . Phone ( . . .) . . . . . . . . . . [1987 c 442 § 604; 1984 c 276 § 2; 1981 c 329 § 2. Formerly RCW 6.24.015.] Application—1984 c 276: See note following RCW 6.21.020. Severability—1981 c 329: See note following RCW 6.21.020. 6.21.050 6.21.050 Time and place of sale—Postponements. (1) All sales of property under execution, order of sale, or decree, shall be made by auction between nine o’clock in the morning and four o’clock in the afternoon. Sale of a public franchise under execution or order of sale on foreclosure must be made at the front door of the courthouse in the county in which the franchise was granted. Sales of real property shall be made at the courthouse door on Friday unless Friday is a legal holiday and then the sale shall be held on the next following regular business day. (2) If at the time appointed for the sale the sheriff is prevented from attending at the place appointed or, being present, should deem it for the advantage of all concerned to postpone the sale for want of purchasers, or other sufficient cause, the sheriff may postpone the sale not exceeding one week next after the day appointed, and so from time to time for the like cause, giving notice of every adjournment by public proclamation made at the same time, and by posting written notices of such adjournment under the notices of sale originally posted. The sheriff for like causes may also adjourn the sale from time to time, not exceeding thirty days beyond the day at which the writ is made returnable, with the consent of the plaintiff indorsed upon the writ. [1987 c 442 § 605; 1953 c 126 § 1; 1899 c 53 § 4; 1897 c 50 § 2; RRS § 583. Formerly RCW 6.24.020.] 6.21.060 6.21.060 Amount of property to be sold—Officers and deputies may not purchase. After sufficient property has been sold to satisfy the execution, no more shall be sold. Neither the officer holding the execution nor his or her deputy shall become a purchaser or be interested in any purchase at the sale. [1987 c 442 § 606.] 6.21.070 6.21.070 Manner of sale of personal property—Bill of sale—Sheriff’s deed if real estate contract. If the sale is of personal property capable of manual delivery, and not in the possession of a third person, it shall be within view of those who attend the sale and shall be sold in such parcels as are likely to bring the highest price; and upon receipt of the purchase money, the sheriff shall deliver the property to the purchaser and shall give a bill of sale containing an acknowledgment of the payment if the purchaser requests it. A vendor’s interest under a real estate contract, including vendor’s legal title to the real property, shall be treated as personal property for purposes of sale, but the sheriff shall give the purchaser both a bill of sale covering the vendor’s interest under the contract and a sheriff’s deed covering the vendor’s (2006 Ed.) 6.21.090 legal title to the real property. In all other sales of personal property, the sheriff shall give the purchaser a bill of sale with an acknowledgment of payment. The sheriff shall return the proceeds with the execution to the clerk who issued the writ for payment as required by law. [1987 c 442 § 607; Code 1881 § 362; 1877 p 78 § 365; 1869 p 94 § 358; 1854 p 183 § 270; RRS § 586. Formerly RCW 6.24.050.] 6.21.080 6.21.080 Redemption rights—Sale of short term leasehold and vendor’s interest under real estate contract absolute. A sale of a real property estate of less than a leasehold of two years unexpired term and a sale of a vendor’s interest in real property being sold under a real estate contract shall be absolute. In all other cases, real property shall be sold subject to redemption, as provided in chapter 6.23 RCW. [1987 c 442 § 608; 1899 c 53 § 5; RRS § 584. Formerly RCW 6.24.030.] 6.21.090 6.21.090 Manner of selling real estate—Sale by lot, acre—Measurement. (1) The form and manner of selling real estate by execution shall be as follows: The sheriff shall proclaim aloud at the place of sale, in the hearing of all the bystanders: "I am about to sell the following tracts of real estate (here reading the description,) upon the following execution:" (here reading the execution). The sheriff shall also state the amount that is required upon the execution, which shall include damages, interests and costs up to the day of sale, and increased costs. The sheriff shall then offer the land for sale. (2) If the sale is of real property consisting of several known lots or parcels, they shall be sold separately or otherwise as the sheriff deems likely to bring the highest price, except that if an interest in a portion of such real property is claimed by a third person who, by request directed to the sheriff in writing prior to the sale or orally or in writing at the sale before the bidding is begun, requests that it be sold separately, such portion shall be sold separately. Bids on all land except town lots may be by the acre or by tract or parcel. (3) If the land is sold by the acre and any fewer number of acres than the whole tract or parcel is sold, it shall be measured off to the purchaser in a square form, from the northeast corner of the tract or parcel, unless some person claiming an interest in the land, by request directed to the sheriff in writing prior to the sale or orally or in writing at the sale before the bidding is begun, requests that the land sold be taken from some other part or in some other form; in such case, if the request is reasonable, the officer making the sale shall sell accordingly. (4) If an entire tract or parcel of land is sold by the acre, it shall not be measured but shall be deemed and taken to contain the number of acres named in the description, and be paid for accordingly; and if the number of acres is not contained in the description, the officer shall declare according to his or her judgment how many acres are contained therein, which shall be deemed and taken to be the true number of acres. [1987 c 442 § 609; Code 1881 § 363; 1877 p 79 § 366; 1869 p 94 § 359; 1854 p 181 § 262; RRS § 587. Formerly RCW 6.24.060.] [Title 6 RCW—page 17] 6.21.100 Title 6 RCW: Enforcement of Judgments 6.21.100 6.21.100 Sale of real property to highest bidder— Sheriff’s return and certificate of sale. (1) The officer shall strike off the land to the highest bidder, who shall forthwith pay the money bid to the officer, who shall return the money with the execution and the report of proceedings on the execution to the clerk of the court from which the execution issued: PROVIDED, HOWEVER, That when final judgment shall have been entered in the supreme court or the court of appeals and the execution upon which sale has been made issued from said court, the return shall be made to the superior court in which the action was originally commenced, and the same proceedings shall be had as though execution had issued from that superior court. (2) At the time of the sale, the sheriff shall prepare a certificate of the sale, containing a particular description of the property sold, the price bid for each distinct lot or parcel, and the whole price paid; and when subject to redemption, it shall be so stated. The matters contained in such certificate shall be substantially stated in the sheriff’s return of proceedings upon the writ. Upon receipt of the purchase price, the sheriff shall give a copy of the certificate to the purchaser and the original certificate to the clerk of the court with the return on the execution to hold for delivery to the purchaser upon confirmation of the sale. [1987 c 442 § 610; 1971 c 81 § 28; Code 1881 § 366; 1877 p 79 § 369; 1869 p 95 § 362; 1854 p 182 § 265; RRS § 590. Formerly RCW 6.24.090.] 6.21.110 6.21.110 Confirmation of sale—Objections— Resale—Distribution of sale proceeds—Filing of certificate. (1) Upon the return of any sale of real estate, the clerk: (a) Shall enter the cause, on which the execution or order of sale issued, by its title, on the motion docket, and mark opposite the same: "Sale of land for confirmation"; (b) shall mail notice of the filing of the return of sale to all parties who have entered a written notice of appearance in the action and who have not had an order of default entered against them; (c) shall file proof of such mailing in the action; (d) shall apply the proceeds of the sale returned by the sheriff, or so much thereof as may be necessary, to satisfaction of the judgment, including interest as provided in the judgment, and shall pay any excess proceeds as provided in subsection (5) of this section by direction of court order; and (e) upon confirmation of the sale, shall deliver the original certificate of sale to the purchaser. (2) The judgment creditor or successful purchaser at the sheriff’s sale is entitled to an order confirming the sale at any time after twenty days have elapsed from the mailing of the notice of the filing of the sheriff’s return, on motion with notice given to all parties who have entered a written notice of appearance in the action and who have not had an order of default entered against them, unless the judgment debtor, or in case of the judgment debtor’s death, the representative, or any nondefaulting party to whom notice was sent shall file objections to confirmation with the clerk within twenty days after the mailing of the notice of the filing of such return. (3) If objections to confirmation are filed, the court shall nevertheless allow the order confirming the sale, unless on the hearing of the motion, it shall satisfactorily appear that there were substantial irregularities in the proceedings concerning the sale, to the probable loss or injury of the party objecting. In the latter case, the court shall disallow the [Title 6 RCW—page 18] motion and direct that the property be resold, in whole or in part, as the case may be, as upon an execution received as of that date. (4) Upon a resale, the bid of the purchaser at the former sale shall be deemed to be renewed and continue in force, and no bid shall be taken, except for a greater amount. If on resale the property sells for a greater amount to any person other than the former purchaser, the clerk shall first repay to the former purchaser out of the proceeds of the resale the amount of the former purchaser’s bid together with interest as is provided in the judgment. (5) If, after the satisfaction of the judgment, there be any proceeds of the sale remaining, the clerk shall pay such proceeds to the judgment debtor, or the judgment debtor’s representative, as the case may be, before the order is made upon the motion to confirm the sale only if the party files with the clerk a waiver of all objections made or to be made to the proceedings concerning the sale; otherwise the excess proceeds shall remain in the custody of the clerk until the sale of the property has been disposed of; but if the sale be confirmed, such excess proceeds shall be paid to the judgment debtor or representative as a matter of course. (6) The purchaser shall file the original certificate of sale for record with the recording officer in the county in which the property is located. [1994 c 185 § 3; 1987 c 442 § 611; 1984 c 276 § 3; 1981 c 329 § 3; 1899 c 53 § 6; RRS § 591. Prior: 1897 c 50 § 14; Code 1881 § 367; 1877 p 79 § 370; 1869 p 95 § 363; 1854 p 182 § 266. Formerly RCW 6.24.100.] Application—1984 c 276: See note following RCW 6.21.020. Severability—1981 c 329: See note following RCW 6.21.020. 6.21.120 6.21.120 Sheriff’s deed to real property sold. In all cases where real estate has been, or may hereafter be sold by virtue of an execution or other process, it shall be the duty of the sheriff or other officer making such sale to execute and deliver to the purchaser, or other person entitled to the same, a deed of conveyance of the real estate so sold. The deeds shall be issued upon request immediately after the confirmation of sale by the court in those instances where redemption rights have been precluded pursuant to RCW 61.12.093 et seq., or immediately after the time for redemption from such sale has expired in those instances in which there are redemption rights, as provided in RCW 6.23.060. In case the term of office of the sheriff or other officer making such sale shall have expired before a sufficient deed has been executed, then the successor in office of such sheriff shall, within the time specified in this section, execute and deliver to the purchaser or other person entitled to the same a deed of the premises so sold, and such deeds shall be as valid and effectual to convey to the grantee the lands or premises so sold, as if the deed had been made by the sheriff or other officer who made the sale. [1987 c 442 § 612; 1965 c 80 § 5; 1899 c 53 § 16; RRS § 603. Prior: 1897 c 50 § 16. Formerly RCW 6.24.220.] Sheriff, successor to complete process: RCW 36.28.130. 6.21.130 6.21.130 Effect of reversal of judgment on sale of real property. A purchaser of real property sold on execution, or a purchaser’s successor in interest, who is evicted in consequence of the reversal of the judgment may recover from the (2006 Ed.) Redemption plaintiff in the execution the price paid with interest and the costs and disbursements of the eviction suit. [1987 c 442 § 613; Code 1881 § 368; 1877 p 80 § 371; 1869 p 96 § 364; RRS § 592. Formerly RCW 6.24.110.] Chapter 6.23 Chapter 6.23 RCW REDEMPTION Sections 6.23.010 6.23.011 6.23.020 6.23.030 6.23.040 6.23.050 6.23.060 6.23.070 6.23.080 6.23.090 6.23.100 6.23.110 6.23.120 Redemption from sale—Who may redeem—Terms include successors. Voluntary relinquishment of ownership rights by mortgagor may result in loss of redemption rights. Time for redemption from purchaser—Amount to be paid. Notice to be given during redemption period—Effect of noncompliance—Form of notice and affidavit. Time for redemption from redemptioner—Successive redemptions—Amount to be paid. Purchaser or redemptioner to file statements of amounts paid. Sheriff’s deed—When issued. Payment on successive redemptions. Redemption procedure—Certificate to be recorded—Evidence of right to redeem. Rents and profits during period of redemption—Accounting— Option for reimbursement or extension on agricultural property. Restraining waste during redemption period. Possession during period of redemption. Listing of property for sale during redemption period—Acceptance of qualifying offer if property unredeemed and deed issued—Procedure—Disposition of proceeds. 6.23.030 (2) The person who redeems from the purchaser must pay: (a) The amount of the bid, with interest thereon at the rate provided in the judgment to the time of redemption, together with (b) the amount of any assessment or taxes which the purchaser has paid thereon after purchase, and like interest on such amount from time of payment to time of redemption, together with (c) any sum paid by the purchaser on a prior lien or obligation secured by an interest in the property to the extent the payment was necessary for the protection of the interest of the judgment debtor or a redemptioner, and like interest upon every payment made from the date of payment to the time of redemption, and (d) if the redemption is by a redemptioner and if the purchaser is also a creditor having a lien, by judgment, decree, deed of trust, or mortgage, prior to that of the redemptioner, other than the judgment under which such purchase was made, the redemptioner shall also pay the amount of such lien with like interest: PROVIDED, HOWEVER, That a purchaser who makes any payment as mentioned in (c) of this subsection shall submit to the sheriff the affidavit required by RCW 6.23.080, and any purchaser who pays any taxes or assessments or has or acquires any such lien as mentioned in (d) of this subsection must file the statement required in RCW 6.23.050 and provide evidence of the lien as required by RCW 6.23.080. [1987 c 442 § 702; 1984 c 276 § 4; 1965 c 80 § 4; 1961 c 196 § 1; 1899 c 53 § 8; RRS § 595. Formerly RCW 6.24.140.] Application—1984 c 276: See note following RCW 6.21.020. 6.23.010 6 . 2 3 . 0 1 0 Re de m pt i o n f r o m s a l e— Wh o m a y redeem—Terms include successors. (1) Real property sold subject to redemption, as provided in RCW 6.21.080, or any part thereof separately sold, may be redeemed by the following persons, or their successors in interest: (a) The judgment debtor, in the whole or any part of the property separately sold. (b) A creditor having a lien by judgment, decree, deed of trust, or mortgage, on any portion of the property, or any portion of any part thereof, separately sold, subsequent in time to that on which the property was sold. The persons mentioned in this subsection are termed redemptioners. (2) As used in this chapter, the terms "judgment debtor," "redemptioner," and "purchaser," refer also to their respective successors in interest. [1987 c 442 § 701; 1899 c 53 § 7; RRS § 594. Prior: 1897 c 50 § 15. Formerly RCW 6.24.130.] 6.23.011 6.23.011 Voluntary relinquishment of ownership rights by mortgagor may result in loss of redemption rights. See RCW 61.12.093 through 61.12.095. 6.23.020 6.23.020 Time for redemption from purchaser— Amount to be paid. (1) Unless redemption rights have been precluded pursuant to RCW 61.12.093 et seq., the judgment debtor or any redemptioner may redeem the property from the purchaser at any time (a) within eight months after the date of the sale if the sale is pursuant to judgment and decree of foreclosure of any mortgage executed after June 30, 1961, which mortgage declares in its terms that the mortgaged property is not used principally for agricultural or farming purposes, and in which complaint the judgment creditor has expressly waived any right to a deficiency judgment, or (b) otherwise within one year after the date of the sale. (2006 Ed.) 6.23.030 6.23.030 Notice to be given during redemption period—Effect of noncompliance—Form of notice and affidavit. (1) If the property is subject to a homestead as provided in chapter 6.13 RCW, the purchaser, or the redemptioner if the property has been redeemed, shall send a notice, in the form prescribed in subsection (3) of this section, at least forty but not more than sixty days before the expiration of the judgment debtor’s redemption period both by regular mail and by certified mail, return receipt requested, to the judgment debtor or debtors and to each of them separately, if there is more than one judgment debtor, at their last known address or addresses and to "occupant" at the property address. The party who sends the notice shall file a copy of the notice with an affidavit of mailing with the clerk of the court and deliver or mail a copy to the sheriff. (2) Failure to comply with this section extends the judgment debtor’s redemption period six months. If the redemption period is extended, no further notice need be sent. Time for redemption by redemptioners shall not be extended. (3) The notice and affidavit of mailing required by subsection (1) of this section shall be in substantially the following form: IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR . . . . COUNTY Plaintiff, vs. Defendant.      CAUSE NO. NOTICE OF EXPIRATION OF REDEMPTION PERIOD TO: [Judgment Debtor] THIS IS AN IMPORTANT NOTICE AFFECTING YOUR RIGHT TO RETAIN YOUR PROPERTY. [Title 6 RCW—page 19] 6.23.040 Title 6 RCW: Enforcement of Judgments NOTICE IS HEREBY GIVEN that the period for redemption of the following described real property ("the property") is expiring. The property is situated in the County of . . . . . ., State of Washington, to wit: . . . . . . [legal description] . . . . . . and commonly known as . . . . . ., which was sold by . . . . . ., . . . . . . County Sheriff, in . . . ., . . . . . . County, Washington on the . . . . day of . . . . . ., 19 . . ., under and by virtue of a writ of execution and order of sale issued by the court in the aboveentitled action. THE REDEMPTION PERIOD FOR THE PROPERTY IS . . . . MONTHS. THE REDEMPTION PERIOD COMMENCED ON . . . . . ., 19 . . ., AND WILL EXPIRE AT 4:30 p.m. ON . . . . . ., 19 . . . If you intend to redeem the property described above you must give written notice of your intention to the . . . . . . County Sheriff on or before . . . . . ., 19 . . . Following is an itemized account of the amount required to redeem the property to date: Item Purchase price paid at sale Interest from date of sale to date of this notice at . . . percent per annum Real estate taxes plus interest Assessments plus interest Liens or other costs paid by purchaser or purchaser’s successor during redemption period plus interest Lien of redemptioner TOTAL REQUIRED TO REDEEM AS OF THE DATE OF THIS NOTICE Amount $ $ $ $ $ $ $ You may redeem the property by 4:30 p.m. on or before the . . . . day of . . . . . ., 19 . . ., by paying the amount set forth above and such other amounts as may be required by law. Payment must be in the full amount and in cash, certified check, or cashier’s check. Because such other amounts as may be required by law to redeem may include presently unknown expenditures required to operate, preserve, protect, or insure the property, or the amount to comply with state or local laws, or the amounts of prior liens, with interest, held by the purchaser or a redemptioner, it will be necessary for you to contact the . . . . . . County Sheriff at the address stated below prior to the time you tender the redemption amount so that you may be informed exactly how much you will have to pay to redeem the property. . . . . . . SHERIFF-DIRECTOR, . . . . . . COUNTY, WASHINGTON. By . . . . . . . . . ., Deputy Address . . . . . . . . . . City . . . . . . . . . . Washington 9 . . . . Phone ( . . .) . . . . . . . . . . [Title 6 RCW—page 20] IF YOU FAIL TO REDEEM THE PROPERTY BY 4:30 p.m. ON OR BEFORE THE . . . . DAY OF . . . . . ., 19 . . ., THE DATE UPON WHICH THE REDEMPTION PERIOD WILL EXPIRE, THE PURCHASER OR THE PURCHASER’S SUCCESSOR WILL BE ENTITLED TO POSSESSION OF THE PROPERTY AND MAY BRING AN ACTION TO EVICT YOU FROM POSSESSION OF THE PROPERTY. DATED THIS . . . . DAY OF . . . . . ., 19 . . . [Purchaser] By [Purchaser’s attorney] Attorneys for STATE OF WASHINGTON COUNTY OF      ss. The undersigned being first duly sworn on oath states: That on this day affiant deposited in the mails of the United States of America a properly stamped and addressed envelope directed to the judgment debtor at the address stated on the face of this document and to "occupant" at the property address, both by certified mail, return receipt requested, and by first class mail, all of the mailings containing a copy of the document to which this affidavit is attached. SIGNED AND SWORN TO BEFORE ME THIS . . . . DAY OF . . . . . ., 19 . . ., BY . . . . . . (name of person making statement) ........................ Title . . . . . . . . . . . . . . . . . . . . My appointment expires . . . . . ., 19 . . . [1987 c 442 § 703; 1984 c 276 § 5; 1981 c 329 § 6. Formerly RCW 6.24.145.] Application—1984 c 276: See note following RCW 6.21.020. Severability—1981 c 329: See note following RCW 6.21.020. 6.23.040 6.23.040 Time for redemption from redemptioner— Successive redemptions—Amount to be paid. (1) If property is redeemed from the purchaser by a redemptioner, as provided in RCW 6.23.020, another redemptioner may, within sixty days after the first redemption, redeem it from the first redemptioner. The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty days after the last redemption, and such sixty-day redemption periods may extend beyond the period prescribed in RCW 6.23.020 for redemption from the purchaser. (2) The judgment debtor may also redeem from a redemptioner, but in all cases the judgment debtor shall have the entire redemption period prescribed by RCW 6.23.020, but no longer unless the time is extended under RCW 6.23.030 or 6.23.090. If the judgment debtor redeems, the effect of the sale is terminated and the estate of the debtor is restored. (2006 Ed.) Redemption (3) A redemptioner may redeem under this section by paying the sum paid on the last previous redemption with interest at the rate of eight percent per annum, and the amount of any assessments or taxes which the last previous redemptioner paid on the property after redeeming, with like interest, and the amount of any liens by judgment, decree, deed of trust, or mortgage, other than the judgment under which the property was sold, held by the last redemptioner, prior to his own, with interest. A judgment debtor who redeems from a redemptioner under this section must make the same payments as are required to effect a redemption by a redemptioner, including any lien by judgment, decree, deed of trust, or mortgage, other than the judgment under which the property was sold, held by the redemptioner. A redemptioner who pays any taxes or assessments, or has or acquires any such lien as herein mentioned, must file a statement as required under RCW 6.23.050. [1987 c 442 § 704; 1899 c 53 § 9; RRS § 596. Formerly RCW 6.24.150.] 6.23.050 6.23.050 Purchaser or redemptioner to file statements of amounts paid. A purchaser or redemptioner who pays any taxes or assessments or has or acquires a lien on the property by judgment, decree, deed of trust, or mortgage prior to that of a prospective redemptioner must file a statement thereof, for recording, with the recording officer of the county in which the property is situated before the property has been redeemed from him or her. Otherwise, the property may be redeemed without paying such tax, assessment, or lien, but if actual notice of such payments or liens has been given to the person who redeems, failure to file the statement shall not affect the right to payment from that person absent that person’s demonstration of prejudice resulting from the failure to file the statement. [1987 c 442 § 705.] 6.23.060 6.23.060 Sheriff’s deed—When issued. If no redemption is made within the redemption period prescribed by RCW 6.23.020 or within any extension of that period under any other provision of this chapter, the purchaser is entitled to a sheriff’s deed; or, if so redeemed, whenever sixty days have elapsed and no other redemption has been made or notice given operating to extend the period for re-redemption, and the time for redemption by the judgment debtor has expired, the last redemptioner is entitled to receive a sheriff’s deed as provided in RCW 6.21.120. [1987 c 442 § 706; 1961 c 196 § 2; 1899 c 53 § 10; RRS § 597. Prior: 1897 c 50 § 16. Formerly RCW 6.24.160.] 6.23.070 6.23.070 Payment on successive redemptions. When two or more persons apply to the sheriff to redeem at the same time, the sheriff shall allow the person having the prior lien to redeem first, and so on. The sheriff shall immediately pay the money over to the person from whom the property is redeemed, if that person is present at time of redemption; or if not, at any time thereafter when demanded. When a sheriff wrongfully refuses to allow any person to redeem, the right to redeem shall not be prejudiced by such refusal, and the sheriff may be required, by order of the court, to allow such redemption. [1987 c 442 § 707; 1899 c 53 § 11; RRS § 598. Formerly RCW 6.24.170.] (2006 Ed.) 6.23.090 6.23.080 6.23.080 Redemption procedure—Certificate to be recorded—Evidence of right to redeem. (1) The person seeking to redeem shall give the sheriff at least five days’ written notice of intention to apply to the sheriff for that purpose. It shall be the duty of the sheriff to notify the purchaser or redemptioner, as the case may be, or the purchaser’s or redemptioner’s attorney, of the receipt of such notice, if such person is within such county. At the time specified in such notice, the person seeking to redeem may do so by paying to the sheriff the sum required. The sheriff shall give the person redeeming a certificate stating the sum paid on redemption, from whom redeemed, the date thereof and a description of the property redeemed. A certificate of redemption must be filed and recorded in the office of the recording officer of the county in which the property is situated, and the recording officer must note the record thereof in the margin of the record of the certificate of sale. (2) A person seeking to redeem shall submit to the sheriff the evidence of the right to redeem, as follows: (a) A lien creditor shall submit a copy of the docket of the judgment or decree under which the right to redeem is claimed, certified by the clerk of the court where such judgment or decree is docketed; or the holder of a mortgage or deed of trust shall submit the certificate of the record thereof together with an affidavit, verified by the holder or agent, showing the amount then actually due thereon. (b) An assignee shall submit a copy of any assignment necessary to establish the claim, verified by the affidavit of the assignee or agent, showing the amount then actually due on the judgment, decree, deed of trust, or mortgage. (3) If the redemptioner or purchaser has a lien prior to that of the lien creditor seeking to redeem, such redemptioner or purchaser shall submit to the sheriff the same kind of evidence thereof as is required from a person seeking to redeem under subsection (2) of this section, and the amount due thereon, or the same may be disregarded. (4) A purchaser who has paid a sum on a prior lien or obligation secured by an interest in the property shall submit to the sheriff an affidavit, verified by the purchaser or an agent, showing the amount paid on the prior lien or obligation, or the prior lien or obligation may be disregarded. [1987 c 442 § 708; 1984 c 276 § 6; 1899 c 53 § 12; RRS § 599. Formerly RCW 6.24.180.] Application—1984 c 276: See note following RCW 6.21.020. 6.23.090 6.23.090 Rents and profits during period of redemption—Accounting—Option for reimbursement or extension on agricultural property. (1) Except as provided in subsection (3) of this section and in RCW 6.23.110, the purchaser, from the time of the sale until the redemption, and the redemptioner from the time of the redemption until another redemption, is entitled to receive from the tenant in possession the rents of the property sold or the value of the use and occupation thereof. But when any rents or profits have been received from the property by such purchaser or redemptioner, preceding the redemption thereof from him or her, the amount of such rents and profits, over and above the expenses paid for operating, caring for, protecting and insuring the property, shall be a credit upon the redemption money to be paid. [Title 6 RCW—page 21] 6.23.100 Title 6 RCW: Enforcement of Judgments (2) If a redemptioner or other person entitled to redeem, before the expiration of the time allowed for such redemption, files with the sheriff a demand in writing for a written and verified statement of the amounts of rents and profits thus received and expenses paid and incurred, the period for redemption is extended five days after such a sworn statement is given by the person receiving such rents and profits, or by his or her agent, to the person making the demand, or to the sheriff. It shall be the duty of the sheriff to serve a copy of such demand upon the person receiving such rents and profits, his or her agent or his or her attorney, if service can be made in the county where the property is situate. If such person shall, for a period of ten days after such demand has been given to the sheriff, fail or refuse to give such statement, the redemptioner or other person entitled to redeem who made the demand may bring an action within sixty days after making such demand, but not later, in any court of competent jurisdiction, to compel an accounting and disclosure of such rents, profits and expenses, and until fifteen days from and after the final determination of such action the right of redemption is extended to such redemptioner or other person entitled to redeem who made the demand. If a sworn statement is given by the purchaser or other person receiving such rents and profits, and the redemptioner or other person entitled to redeem who made the demand, desires to contest the correctness of the statement, he or she must first redeem in accordance with such sworn statement, and if he or she desires to bring an action for an accounting thereafter he or she may do so within thirty days after such redemption, but not later. (3) If such property is farming or agricultural property and is in possession of any purchaser or any previous redemptioner and is redeemed after the first day of April and before the first day of December, and the purchaser or previous redemptioner or the tenant of either has performed any work in preparing such property for crops or has planted crops, such purchaser or previous redemptioner shall have the option to demand reimbursement for such work and labor or to retain possession of such property until the first day of December following, and the new redemptioner shall be entitled to collect the reasonable rental value thereof during such farming year, unless such reasonable rental shall have been collected by such purchaser or previous redemptioner and accounted for to the new redemptioner. [1987 c 442 § 709; 1899 c 53 § 13; RRS § 600. Formerly RCW 6.24.190.] 6.23.100 6.23.100 Restraining waste during redemption period. Until the expiration of the time allowed for redemption, the court may restrain the commission of waste on the property. But it is not waste for the person in possession of the property at the time of the sale or entitled to possession afterwards during the period allowed for redemption to continue to use it in the same manner in which it was previously used, or to use it in the ordinary course of husbandry, or to make the necessary repairs of buildings thereon, or to use wood or timber on the property therefor, or for the repairs of fences, or for fuel in his or her family while occupying the property. [1987 c 442 § 710; 1899 c 53 § 14; RRS § 601. Formerly RCW 6.24.200.] [Title 6 RCW—page 22] 6.23.110 6.23.110 Possession during period of redemption. (1) Except as provided in this section and RCW 6.23.090, the purchaser from the day of sale until a resale or redemption, and the redemptioner from the day of redemption until another redemption, shall be entitled to the possession of the property purchased or redeemed, unless the same be in the possession of a tenant holding under an unexpired lease, and in such case shall be entitled to receive from such tenant the rents or the value of the use and occupation thereof during the period of redemption. (2) If a mortgage contains a stipulation that in case of foreclosure the mortgagor may remain in possession of the mortgaged premises after sale and until the period of redemption has expired, the court shall make its decree to that effect and the mortgagor shall have such right. (3) As to any land so sold which is at the time of the sale used for farming purposes, or which is a part of a farm used, at the time of sale, for farming purposes, the judgment debtor shall be entitled to retain possession thereof during the period of redemption and the purchaser or his successor in interest shall, if the judgment debtor does not redeem, have a lien upon the crops raised or harvested thereon during said period of redemption, for interest on the purchase price at the rate of six percent per annum during said period of redemption and for taxes becoming delinquent during the period of redemption together with interest thereon. (4) In case of any homestead as defined in chapter 6.13 RCW and occupied for that purpose at the time of sale, the judgment debtor shall have the right to retain possession thereof during the period of redemption without accounting for issues or for value of occupation. [1987 c 442 § 711; 1981 c 329 § 21; 1961 c 196 § 3; 1957 c 8 § 6; 1939 c 94 § 1; 1927 c 93 § 1; 1899 c 53 § 15; RRS § 602. Formerly RCW 6.24.210.] Severability—1981 c 329: See note following RCW 6.21.020. 6.23.120 6.23.120 Listing of property for sale during redemption period—Acceptance of qualifying offer if property unredeemed and deed issued—Procedure—Disposition of proceeds. (1) Except as provided in subsection (4) of this section, during the period of redemption for any property that a person would be entitled to claim as a homestead, any licensed real estate broker within the county in which the property is located may nonexclusively list the property for sale whether or not there is a listing contract. If the property is not redeemed by the judgment debtor and a sheriff’s deed is issued under RCW 6.21.120, then the property owner shall accept the highest current qualifying offer upon tender of full cash payment within two banking days after notice of the pending acceptance is received by the offeror. If timely tender is not made, such offer shall no longer be deemed to be current and the opportunity shall pass to the next highest current qualifying offer, if any. Notice of pending acceptance shall be given for the first highest current qualifying offer within five days after delivery of the sheriff’s deed under RCW 6.21.120 and for each subsequent highest current qualifying offer within five days after the offer becoming the highest current qualifying offer. An offer is qualifying if the offer is made during the redemption period through a licensed real estate broker listing the property and is at least equal to the sum of: (a) One hundred twenty percent greater (2006 Ed.) Attachment than the redemption amount determined under RCW 6.23.020 and (b) the normal commission of the real estate broker or agent handling the offer. (2) The proceeds shall be divided at the time of closing with: (a) One hundred twenty percent of the redemption amount determined under RCW 6.23.020 paid to the property owner, (b) the real estate broker’s or agent’s normal commission paid, and (c) any excess paid to the judgment debtor. (3) Notice, tender, payment, and closing shall be made through the real estate broker or agent handling the offer. (4) This section shall not apply to mortgage or deed of trust foreclosures under chapter 61.12 or 61.24 RCW. [1987 c 442 § 712; 1981 c 329 § 23. Formerly RCW 6.24.230.] Severability—1981 c 329: See note following RCW 6.21.020. Chapter 6.25 Chapter 6.25 RCW ATTACHMENT Sections 6.25.010 6.25.020 6.25.030 6.25.040 6.25.050 6.25.060 6.25.070 6.25.080 6.25.090 6.25.100 6.25.110 6.25.120 6.25.130 6.25.140 6.25.150 6.25.160 6.25.170 6.25.180 6.25.190 6.25.220 6.25.230 6.25.240 6.25.250 6.25.260 6.25.270 6.25.280 Application of chapter to district courts. Time for granting. Issuance of writ—Grounds. Grounds if debt not due. Procedure when debt not due. Application for writ—Affidavit. Issuance of writ—Notice—Hearing—Issuance without notice—Forms for notice. Issuance of writ—Attachment bond. Bond—Additional security. Action on bond—Damages and attorney’s fees. Contents of writ—Levy of attachment. Writs to different counties—Successive writs. Writ—Notation of time received—Order of execution. Manner of levy. Property may be followed to adjoining county. Sheriff’s inventory—Return. Examination of defendant as to property. Motion to discharge attachment—Affidavits in opposition— Discharge. Discharge of attachment—Bond—Judgment on bond. Sale of property before judgment. Custody of property or proceeds. Subjection of attached property to judgment. Procedure when attached property insufficient. Procedure where execution unsatisfied. Procedure when judgment is for defendant. Chapter to be liberally construed—Amendments. 6.25.010 6.25.010 Application of chapter to district courts. Unless otherwise expressly provided, all the provisions of this chapter governing attachment of personal property apply to proceedings before district courts of this state, but the district courts shall not have power to issue writs of attachment against real property or any interest in real property or against vendors’ interests under real estate contracts. [1987 c 442 § 801.] 6.25.020 6.25.020 Time for granting. The plaintiff at the time of commencing an action, or at any time afterward before judgment, may have the property of the defendant, or that of any one or more of several defendants, attached in the manner prescribed in this chapter, as security for the satisfaction of such judgment as the plaintiff may recover. [1987 c 442 § 802; 1886 p 39 § 1; RRS § 647. Prior: Code 1881 §§ 174192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.010.] (2006 Ed.) 6.25.050 Rules of court: Cf. CR 64. 6.25.030 6.25.030 Issuance of writ—Grounds. The writ of attachment may be issued by the court in which the action is pending on one or more of the following grounds: (1) That the defendant is a foreign corporation; or (2) That the defendant is not a resident of this state; or (3) That the defendant conceals himself so that the ordinary process of law cannot be served upon him; or (4) That the defendant has absconded or absented himself from his usual place of abode in this state, so that the ordinary process of law cannot be served upon him; or (5) That the defendant has removed or is about to remove any of his property from this state, with intent to delay or defraud his creditors; or (6) That the defendant has assigned, secreted, or disposed of, or is about to assign, secrete, or dispose of, any of his property, with intent to delay or defraud his creditors; or (7) That the defendant is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or (8) That the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; or (9) That the damages for which the action is brought are for injuries arising from the commission of some felony, gross misdemeanor, or misdemeanor; or (10) That the object for which the action is brought is to recover on a contract, express or implied. [1987 c 442 § 803; 1973 1st ex.s. c 154 § 16; 1923 c 159 § 1; 1886 p 39 § 2; RRS § 648. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.020.] Rules of court: CR 64. Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 6.25.040 6.25.040 Grounds if debt not due. An action may be commenced and the property of a debtor may be attached previous to the time when the debt becomes due, when nothing but time is wanting to fix an absolute indebtedness, and when the complaint and the affidavit allege, in addition to that fact, one or more of the following grounds: (1) That the defendant is about to dispose or has disposed of his property in whole or in part with intent to defraud his creditors; or (2) That the defendant is about to remove from the state and refuses to make any arrangements for securing the payment of the debt when it falls due, and the contemplated removal was not known to the plaintiff at the time the debt was contracted; or (3) That the debt was incurred for property obtained under false pretenses. [1987 c 442 § 804; 1886 p 39 § 3; RRS § 649. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.030.] Rules of court: Cf. CR 64. 6.25.050 6.25.050 Procedure when debt not due. If the debt or demand for which the attachment is sued out is not due at the time of the commencement of the action, the defendant is not [Title 6 RCW—page 23] 6.25.060 Title 6 RCW: Enforcement of Judgments required to file any pleadings until the maturity of such debt or demand, but the defendant may, in his or her discretion, do so, and go to trial as early as the cause is reached. No final judgment shall be rendered in such action until the debt or demand upon which it is based becomes due, unless the defendant consents by filing pleadings or otherwise. However, property of a perishable nature may be sold as provided in RCW 6.25.220. [1987 c 442 § 805; 1886 p 40 § 4; RRS § 650. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.040.] 6.25.060 6.25.060 Application for writ—Affidavit. (1) The plaintiff or someone on plaintiff’s behalf shall apply for a writ of attachment by affidavit, alleging that the attachment is not sought and the action is not prosecuted to hinder, delay, or defraud any creditor of the defendant and also alleging that affiant has reason to believe and does believe the following, together with specific facts on which affiant’s belief in the allegations is based: (a) That the defendant is indebted to the plaintiff (specifying the nature of the claim and the amount of such indebtedness over and above all just credits and offsets), and (b) that one or more of the grounds stated in RCW 6.25.030 for issuance of a writ of attachment exists. (2) If the action is based on a debt not due, the ground alleged under subsection (1)(b) of this section must be one stated in RCW 6.25.040 for attachment on a debt not due, and affiant shall also allege reason to believe and belief that nothing but time is wanting to fix an absolute indebtedness due from defendant, together with specific facts on which the affiant’s belief in the allegations is based. [1987 c 442 § 806.] 6.25.070 6.25.070 Issuance of writ—Notice—Hearing—Issuance without notice—Forms for notice. (1) Except as provided in subsection (2) of this section, the court shall issue a writ of attachment only after prior notice to defendant, given in the manner prescribed in subsections (4) and (5) of this section, with an opportunity for a prior hearing at which the plaintiff shall establish the probable validity of the claim sued on and that there is probable cause to believe that the alleged ground for attachment exists. (2) Subject to subsection (3) of this section, the court shall issue the writ without prior notice to defendant and an opportunity for a prior hearing only if: (a)(i) The attachment is to be levied only on real property, or (ii) if it is to be levied on personal property, the ground alleged for issuance of attachment is one appearing in RCW 6.25.030 (5) through (7) or in RCW 6.25.040(1) or, if attachment is necessary for the court to obtain jurisdiction of the action, the ground alleged is one appearing in RCW 6.25.030 (1) through (4); and (b) The court finds, on the basis of specific facts alleged in the affidavit, after an ex parte hearing, that there is probable cause to believe the allegations of plaintiff’s affidavit. (3) If a writ is issued under subsection (2) of this section without prior notice to defendant, after seizure of property under the writ the defendant shall be entitled to prompt notice of the seizure and of a right to an early hearing, if requested, at which the plaintiff shall establish the probable validity of [Title 6 RCW—page 24] the claim sued on and that there is probable cause to believe that the alleged ground for attachment exists. Such notice shall be given in the manner prescribed in subsections (4) and (5) of this section. (4) When notice and a hearing are required under this section, notice may be given by a show cause order stating the date, time, and place of the hearing. Notice required under this section shall be jurisdictional and, except as provided for published notice in subsection (5) of this section, notice shall be served in the same manner as a summons in a civil action and shall be served together with: (a) A copy of the plaintiff’s affidavit and a copy of the writ if already issued; (b) if the defendant is an individual, copies of homestead statutes, RCW 6.13.010, 6.13.030, and 6.13.040, if real property is to be attached, or copies of exemption statutes, RCW 6.15.010 and 6.15.060, if personal property is to be attached; and (c) if the plaintiff has proceeded under subsection (2) of this section, a copy of a "Notice of Right to Hearing" in substantially the following form: NOTICE OF RIGHT TO HEARING In a lawsuit against you, a Washington court has issued or will issue a Writ of Attachment against your property. Under the writ a sheriff or sheriff’s deputy has or will put a lien against your real estate or has seized or will seize other property of yours to hold until the court decides the lawsuit. Delivery of this notice of your rights is required by law. YOU HAVE THE RIGHT TO A PROMPT HEARING. If notice of a hearing date and time is not served with this notice, you have a right to request the hearing. At the hearing, the plaintiff must give evidence that there is probable cause to believe that the statements in the enclosed affidavit are true and also that the claim stated in the lawsuit is probably valid, or else your property will be released. If the defendant is an individual, the following paragraph shall be added to the notice: Y OU MAY ALSO HAVE A RIGHT TO HAVE YOUR PROPERTY RELEASED if it is exempt property as described in the copies of statutes included with this notice and if you claim your exemptions in the way described in the statutes. (5) If service of notice on the defendant must be effected by publication, only the following notice need be published under the caption of the case: To Defendant: A writ of attachment has been issued in the abovecaptioned case, directed to the Sheriff of . . . . . . County, commanding the Sheriff as follows: "WHEREAS, . . . [Quoting body of writ of attachment]" YOU HAVE A RIGHT TO ASK FOR A HEARING. At the hearing, the plaintiff must give evidence that there is probable cause to believe that the ground for attachment alleged in an affidavit filed with the court (2006 Ed.) Attachment exists and also that the claim stated in the lawsuit is probably valid, or else the attachment will be discharged. If the defendant is an individual, the following paragraph shall be added to the published notice: Y OU MAY ALSO HAVE A RIGHT TO HAVE YOUR PROPERTY RELEASED if it is exempt property as described in Washington exemption statutes, including sections 6.13.010, 6.13.030, 6.13.040, 6.15.010, and 6.15.060 of the Revised Code of Washington, in the manner described in those statutes. [1988 c 231 § 15; 1987 c 442 § 807.] Severability—1988 c 231: See note following RCW 6.01.050. 6.25.080 6.25.080 Issuance of writ—Attachment bond. (1) Except as provided in subsection (2) of this section, before the writ of attachment shall issue, the plaintiff, or someone in the plaintiff’s behalf, shall execute and file with the clerk a surety bond or undertaking in the sum in no case less than three thousand dollars, in the superior court, nor less than five hundred dollars in the district court, and double the amount for which plaintiff demands judgment, or such other amount as the court shall fix, conditional that the plaintiff will prosecute the action without delay and will pay all costs that may be adjudged to the defendant, and all damages that the defendant may sustain by reason of the writ of attachment or of additional writs issued as permitted under RCW 6.25.120, not exceeding the amount specified in such bond or undertaking, as the penalty thereof, should the same be wrongfully, oppressively or maliciously sued out. (2) If it is desired to attach real estate only, and such fact is stated in the affidavit for attachment, and the ground of attachment is that the defendant is a foreign corporation or is not a resident of the state, or conceals himself or herself or has absconded or is absent from his or her usual place of abode so that the ordinary process of law cannot be served upon him or her, the writ of attachment shall issue without bond or undertaking by or on behalf of the plaintiff. (3) If the plaintiff sues on an assigned claim and the plaintiff’s immediate or any other assignor thereof retains or has any interest in the claim, then the plaintiff and every assignor who retains or has any interest therein shall be jointly and severally liable for all costs that may be adjudged to the defendant and for all damages that the defendant may sustain by reason of the attachment, should the same be wrongfully, oppressively or maliciously sued out. [1988 c 231 § 16. Prior: 1987 c 442 § 808; 1987 c 202 § 128; 1957 c 51 § 1; 1903 c 41 § 1; 1886 p 40 § 6; RRS § 652; prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.060.] Severability—1988 c 231: See note following RCW 6.01.050. Intent—1987 c 202: See note following RCW 2.04.190. Corporate surety—Insurance: Chapter 48.28 RCW. Court may fix amount of bond in civil actions: RCW 4.44.470. (2006 Ed.) 6.25.120 6.25.090 Bond—Additional security. The defendant may, at any time before judgment, move the court or judge for additional security on the part of the plaintiff, or for security if none was required under RCW 6.25.080, and if, on such motion, the court or judge is satisfied that security or additional security should be required or that the surety in the plaintiff’s bond has removed from this state or is not sufficient, the attachment may be vacated, and restitution directed of any property taken under it, unless in a reasonable time, to be fixed by the court or judge, further security is given by the plaintiff in form as provided in RCW 6.25.080. [1987 c 442 § 809; 1886 p 40 § 7; RRS § 653. Prior: Code 1881 §§ 174192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.070.] 6.25.090 6.25.100 Action on bond—Damages and attorney’s fees. In an action on such bond, if it is shown that the attachment was wrongfully sued out, the defendant may recover the actual damages sustained and reasonable attorney’s fees to be fixed by the court. If it is shown that such attachment was sued out maliciously, the defendant may recover exemplary damages, and the defendant need not wait until the principal suit is determined before suing on the bond. [1987 c 442 § 810; 1886 p 41 § 8; RRS § 654. Prior: Code 1881 §§ 174192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.080.] 6.25.100 6.25.110 Contents of writ—Levy of attachment. The writ of attachment shall be directed to the sheriff of any county in which property of the defendant may be, and shall require the sheriff to attach and safely keep the property of such defendant within the county, to the requisite amount, which shall be stated in conformity with the affidavit. The sheriff shall in all cases attach the amount of property directed, if sufficient property not exempted from execution be found in the county, giving that in which the defendant has a legal and unquestionable title a preference over that in which title is doubtful or only equitable, and the sheriff shall as nearly as the circumstances of the case will permit, levy upon property fifty percent greater in valuation than the amount that the plaintiff in the affidavit claims to be due. When property is seized on attachment, the court may allow to the officer having charge thereof such compensation for the trouble and expenses in keeping the same as shall be reasonable and just. [1987 c 442 § 811; 1886 p 41 § 9; RRS § 655. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.090.] 6.25.110 6.25.120 Writs to different counties—Successive writs. If issuance of a writ of attachment has been ordered by the court in a case, other writs of attachment may be issued in the same case from the court to different counties, and several may, at the option of the plaintiff, be issued at the same time, or in succession and subsequently, until sufficient property has been attached; but only those executed shall be taxed in the costs, unless otherwise ordered by the court, and if more property is attached in the aggregate than the plaintiff is entitled to have held, the surplus must be abandoned and the 6.25.120 [Title 6 RCW—page 25] 6.25.130 Title 6 RCW: Enforcement of Judgments plaintiff pay all costs incurred in relation to such surplus. After the first writ has issued, it shall not be necessary for the plaintiff to file any further affidavit or bond unless the court otherwise directs, but the plaintiff shall be entitled to as many writs as may be necessary to secure the amount claimed. [1988 c 231 § 17; 1987 c 442 § 812; 1886 p 41 § 10; RRS § 656. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.100.] Severability—1988 c 231: See note following RCW 6.01.050. 6.25.130 6.25.130 Writ—Notation of time received—Order of execution. The sheriff or other officer shall indorse upon the writ of attachment in ink the day, hour, and minute when the writ first came into the officer’s hands. Where there are several attachments against the same defendant, they shall be executed in the order in which they were received by the sheriff. [1987 c 442 § 813; 1886 p 41 § 11; RRS § 657. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.110.] Rules of court: Cf. CR 64. 6.25.140 6.25.140 Manner of levy. The sheriff shall levy on property to be attached in the same manner as provided for execution in RCW 6.17.160, 6.17.170, and 6.17.180. [1987 c 442 § 814.] 6.25.150 6.25.150 Property may be followed to adjoining county. If, after an attachment has been placed in the hands of the sheriff, any property of the defendant is moved from the county, the sheriff may pursue and attach the property in an adjoining county within twenty-four hours after removal. [1987 c 442 § 815; 1886 p 42 § 12; RRS § 658. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.120.] 6.25.160 6.25.160 Sheriff’s inventory—Return. The sheriff shall make a full inventory of the property attached and return the inventory with the writ of attachment within twenty days of receipt of the writ, with a return of the proceedings indorsed on or attached to the writ. If the writ was issued at the same time as the summons, the sheriff shall return the writ with the summons. [1987 c 442 § 816; 1927 c 100 § 2; 1886 p 43 § 21; RRS § 666. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.200.] the court or judge or referee appointed by the court or judge and give information on oath respecting the property. [1987 c 442 § 817; 1886 p 42 § 14; RRS § 660. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.140.] 6.25.180 6.25.180 Motion to discharge attachment—Affidavits in opposition—Discharge. (1) The defendant may at any time, after appearing in the action and before giving bond as provided in RCW 6.25.190, apply on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought or to the judge thereof, that the writ of attachment be discharged on the ground that it was improperly or irregularly issued. (2) If the motion is made on affidavits on the part of the defendant, the plaintiff may oppose the same by affidavits in addition to those on which the attachment was issued or by other evidence, unless otherwise ordered by the court. (3) If upon application it satisfactorily appears that the writ of attachment was improperly or irregularly issued, it must be discharged. (4) Whenever an order has been made discharging or releasing an attachment upon real property, a certified copy of such order may be recorded with the recording officer of the county in which the writ of attachment has been recorded. [1987 c 442 § 818; 1927 c 131 § 1; 1886 p 45 § 31; RRS § 673. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.270.] Rules of court: CR 7(b), 64. 6.25.190 6.25.190 Discharge of attachment—Bond—Judgment on bond. If the defendant, at any time before judgment, causes a bond to be executed to the plaintiff with sufficient sureties, to be approved by the officer having the attachment or after the return thereof by the clerk, conditional on the performance of the judgment of the court, the attachment shall be discharged and restitution made of property taken or proceeds thereof. The execution of such bond shall be deemed an appearance of such defendant to the action. The bond shall be part of the record and, if judgment goes against the defendant, the judgment shall be entered against the defendant and the sureties. [1987 c 442 § 819; 1886 p 45 § 29; RRS § 671. Prior: Code 1881 §§ 174-192; 1877 pp 3540; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.250.] 6.25.220 6.25.170 6.25.170 Examination of defendant as to property. Whenever it appears by the affidavit of the plaintiff that the plaintiff has probable cause to believe that a ground for attachment exists and it appears by the plaintiff’s affidavit or by the return of the attachment that no property is known to the plaintiff or officer on which the attachment can be executed, or not enough to satisfy the plaintiff’s claim, and it being shown to the court or judge by affidavit that the defendant has property within the state not exempted, the defendant may be required by such court or judge to attend before [Title 6 RCW—page 26] 6.25.220 Sale of property before judgment. If any property attached be perishable or in danger of serious and immediate waste or decay, the sheriff shall sell the same in the manner in which such property is sold on execution. Whenever it shall be made to appear satisfactorily to the court or judge that the interest of the parties to the action will be subserved by a sale of any attached property, the court or judge may order such property to be sold in the same manner as like property is sold under execution. Such order shall be made only upon notice to the adverse party or that party’s attorney in case such party shall have been personally served (2006 Ed.) Prejudgment Garnishment with a summons in the action. [1987 c 442 § 822; 1957 c 51 § 2; 1886 p 42 § 16; RRS § 662. Prior: Code 1881 §§ 174192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.160.] 6.25.230 6.25.230 Custody of property or proceeds. All moneys received by the sheriff under the provisions of this chapter shall be paid to the clerk of the court that issued the writ, to be held to be applied to any judgment that may be recovered in the action, and all other attached property shall be retained by the sheriff to be applied to any judgment that may be recovered in the action. [1987 c 442 § 823; 1886 p 43 § 17; RRS § 663. Prior: Code 1881 §§ 174-192; 1877 pp 3540; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.170.] 6.25.240 6.25.240 Subjection of attached property to judgment. If judgment is recovered by the plaintiff, it shall be paid out of any proceeds held by the clerk of the court and out of the property retained by the sheriff if it is sufficient for that purpose as follows: (1) By applying on the execution issued on said judgment the proceeds of all sales of perishable or other property sold, or so much as shall be necessary to satisfy the judgment. (2) If any balance remains due, the sheriff shall sell under the execution so much of the personal property attached as may be necessary to satisfy the balance and, if there is not sufficient personal property to satisfy the balance, the sheriff shall sell so much of any real property attached as is necessary to satisfy the judgment. Notice of sale shall be given and sale conducted as in other cases of sales on execution. [1987 c 442 § 824; 1957 c 51 § 4; 1886 p 44 § 25; RRS § 667. Prior: Code 1881 §§ 174192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.210.] 6.25.270 6.25.270 Procedure when judgment is for defendant. If the defendant recovers judgment against the plaintiff, all the proceeds of sales and money collected by the sheriff and deposited with the clerk and all the property attached and retained by the sheriff shall be delivered to the defendant or the defendant’s agent. The order of attachment shall be discharged and the property released therefrom. [1987 c 442 § 827; 1886 p 45 § 28; RRS § 670. Prior: Code 1881 §§ 174192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.240.] 6.25.280 6.25.280 Chapter to be liberally construed—Amendments. This chapter shall be liberally construed, and the plaintiff, at any time when objection is made thereto, shall be permitted to amend any defect in the complaint, affidavit, bond, writ or other proceeding, and no attachment shall be quashed or dismissed, or the property attached released, if the defect in any of the proceedings has been or can be amended so as to show that a legal cause for the attachment existed at the time it was issued, and the court shall give the plaintiff a reasonable time to perfect such defective proceedings. [1987 c 442 § 828; 1886 p 46 § 35; RRS § 677. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.310.] Chapter 6.26 6.26.010 6.26.020 6.26.025 6.26.030 6.26.040 6.26.050 6.26.060 6.26.070 6.25.260 6.25.260 Procedure where execution unsatisfied. If the execution is returned unsatisfied, in whole or in part, the plaintiff may proceed as in other cases upon the return of an execution. [1987 c 442 § 826; 1886 p 45 § 27; RRS § 669. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 4350; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.230.] (2006 Ed.) Chapter 6.26 RCW PREJUDGMENT GARNISHMENT Sections 6.25.250 6.25.250 Procedure when attached property insufficient. If, after the proceeds of all the property attached have been applied to the payment of the judgment, any balance remains due, the sheriff shall proceed as upon an execution in other cases. Whenever the judgment has been paid, the sheriff, upon reasonable demand, shall deliver to the defendant the attached property remaining and the clerk shall pay to the defendant any remaining proceeds of the property attached that have not been applied on the judgment. [1987 c 442 § 825; 1957 c 51 § 5; 1886 p 44 § 26; RRS § 668. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.220.] 6.26.010 Prejudgment writs of garnishment—Grounds. Issuance of writ—Bond—Fee. Writs of garnishment to different garnishees. Action on bond for wrongful garnishment—Damages and attorney’s fees. Action against plaintiff for wrongful garnishment—Damages and attorney’s fees. Application for prejudgment writ of garnishment—Affidavit. Issuance of writ—Notice—Hearing—Issuance without prior notice—Forms for notice. Application of chapter 6.27 RCW to prejudgment garnishments. Rules of court: CR 64. 6.26.010 6.26.010 Prejudgment writs of garnishment— Grounds. Except as limited by RCW 6.27.040, relating to the state and other public entities, and RCW 6.27.330, relating to continuing liens on earnings, the plaintiff at the time of commencing an action, or at any time thereafter before judgment in an action, may obtain a prejudgment writ of garnishment from a superior or district court of this state before which the action is pending on the following grounds: (1) If the writ is issued for a purpose other than garnishing a defendant’s earnings as defined in RCW 6.27.010, (a) on the ground that an attachment has been issued in accordance with chapter 6.25 RCW, (b) on the ground that the plaintiff sues on a debt that is due and owing and unpaid, or (c) on one or more of the grounds for issuance of attachment stated in RCW 6.25.030 or 6.25.040; or (2) If the writ is directed to an employer for the purpose of garnishing earnings of a defendant, on the grounds that the defendant: [Title 6 RCW—page 27] 6.26.020 Title 6 RCW: Enforcement of Judgments (a) Is not a resident of this state, or is about to move from this state; or (b) Has concealed himself or herself, absconded, or absented himself or herself so that ordinary process of law cannot be served on him or her; or (c) Has removed or is about to remove any of his or her property from this state, with intent to delay or defraud his or her creditors. [1988 c 231 § 18; 1987 c 442 § 901.] Severability—1988 c 231: See note following RCW 6.01.050. 6.26.020 6.26.020 Issuance of writ—Bond—Fee. In all cases of garnishment before judgment, before the writ shall issue, the plaintiff shall pay the fee described in RCW 6.27.060 and shall execute and file with the clerk a bond with sufficient sureties, to be approved by the clerk of the court issuing the writ, payable to the defendant in the suit, in double the amount of the debt claimed therein, or such other amount as the court shall fix, conditioned that the plaintiff will prosecute the suit without delay and pay all damages and costs that may be adjudged against him or her for wrongfully suing out such garnishment. [1988 c 231 § 19; 1987 c 442 § 902; 1969 ex.s. c 264 § 3. Formerly RCW 7.33.030.] Severability—1988 c 231: See note following RCW 6.01.050. 6.26.025 6.26.025 Writs of garnishment to different garnishees. If issuance of a writ of garnishment or of a writ of attachment has been ordered by the court in a case, other writs of garnishment to different garnishees may be issued in the same case under the circumstances and restrictions stated in RCW 6.25.120 for issuance of successive writs of attachment. [1988 c 231 § 21.] Severability—1988 c 231: See note following RCW 6.01.050. 6.26.030 6.26.030 Action on bond for wrongful garnishment— Damages and attorney’s fees. In an action on the bond under RCW 6.26.020, if it is shown that the garnishment was wrongfully sued out, the defendant may recover the actual damages sustained and reasonable attorney’s fees to be fixed by the court. If it is shown that such garnishment was sued out maliciously, the defendant may also recover exemplary damages, and the defendant need not wait until the principal suit is determined before suing on the bond by counterclaim in the original action or in a separate action. [1987 c 442 § 903.] 6.26.040 6.26.040 Action against plaintiff for wrongful garnishment—Damages and attorney’s fees. In all actions in which a prejudgment writ of garnishment has been issued by a court and served upon a garnishee, in the event judgment is not entered for the plaintiff on the claim sued upon by plaintiff, and the claim has not voluntarily been settled or otherwise satisfied, the defendant shall have an action for damages against the plaintiff. The defendant’s action for damages may be brought by way of a counterclaim in the original action or in a separate action and, in the action the trier of fact, in addition to other actual damages sustained by the defendant, may award the defendant reasonable attorney’s fees. [1987 c 442 § 904; 1970 ex.s. c 61 § 4; 1969 ex.s. c 264 § 34. Formerly RCW 7.33.340.] [Title 6 RCW—page 28] 6.26.050 6.26.050 Application for prejudgment writ of garnishment—Affidavit. The plaintiff or someone on the plaintiff’s behalf shall apply for a prejudgment writ of garnishment by affidavit, alleging that the garnishment is not sought and the action is not prosecuted to hinder, delay, or defraud any creditor of the defendant and also alleging that the affiant has reason to believe and does believe the following, together with specific facts on which the affiant’s belief in the allegations is based: (1) That the defendant is indebted to the plaintiff (specifying the nature of the claim and the amount of such indebtedness over and above all just credits and offsets); (2) that one or more of the grounds for prejudgment garnishment established in RCW 6.26.010 exists; (3) that the plaintiff has reason to believe, and does believe, that the garnishee, stating the garnishee’s name and residence or place of business, is indebted to the defendant in amounts exceeding those exempted from garnishment by any state or federal law, or that the garnishee has possession or control of personal property or effects belonging to the defendant which are not exempted from garnishment by any state or federal law; (4) whether or not the garnishee is the employer of the defendant; and (5) if the action is based on a debt not due, that nothing but time is wanting to fix an absolute indebtedness due from the defendant. [1987 c 442 § 905.] 6.26.060 6.26.060 Issuance of writ—Notice—Hearing—Issuance without prior notice—Forms for notice. (1) When application is made for a prejudgment writ of garnishment, the court shall issue the writ in substantially the form prescribed in RCW 6.27.070 and 6.27.100 directing that the garnishee withhold an amount as prescribed in RCW 6.27.090, but, except as provided in subsection (2) of this section, the court shall issue the writ only after prior notice to the defendant, given in the manner prescribed in subsections (4) and (5) of this section, with an opportunity for a prior hearing at which the plaintiff shall establish the probable validity of the plaintiff’s claim and that there is probable cause to believe that the alleged ground for garnishment exists. (2) Subject to subsection (3) of this section, the court shall issue the writ without prior notice to the defendant and without an opportunity for a prior hearing only if: (a) A ground alleged in the plaintiff’s affidavit is: (i) A ground appearing in RCW 6.26.010(2)(c) if the writ is to be directed to an employer for the purpose of garnishing the defendant’s earnings; or (ii) a ground appearing in RCW 6.25.030 (5) through (7) or in RCW 6.25.040(1) of the attachment chapter; or (iii) if garnishment is necessary to permit the court to acquire jurisdiction over the action, the ground alleged is one appearing in RCW 6.25.030 (1) through (4) or in RCW 6.26.010(2) (a) or (b); and (b) The court finds on the basis of specific facts, after an ex parte hearing, that there is probable cause to believe the allegations of the plaintiff’s affidavit. (3) If a writ is issued under subsection (2) of this section without prior notice to the defendant, after service of the writ on the garnishee, the defendant shall be entitled to prompt notice of the garnishment and a right to an early hearing, if requested, at which the plaintiff shall establish the probable validity of the claim sued on and that there is probable cause to believe that the alleged ground for garnishment exists. (2006 Ed.) Garnishment (4) When notice and a hearing are required under this section, notice may be given by a show cause order stating the date, time, and place of the hearing. Notice required under this section shall be jurisdictional and, except as provided for published notice in subsection (5) of this section, notice required under this section shall be served in the same manner as a summons in a civil action and shall be served together with (a) a copy of plaintiff’s affidavit and a copy of the writ if already issued, and (b) a copy of the following "Notice of Right to a Hearing" in substantially the following form or, if defendant is an individual, a copy of the claim form and the "Notice of Garnishment and of Your Rights" prescribed by RCW 6.27.140, in which the following notice is substituted for the first paragraph of said Notice: NOTICE OF RIGHT TO HEARING A writ of garnishment has been or will be issued by a Washington court and has been or will be served on the garnishee defendant. It will require the garnishee defendant to withhold payment of money that may be due to you and to withhold other property of yours that the garnishee may hold or control until a lawsuit in which you are a defendant has been decided by the court. Service of this notice of your rights is required by law. YOU HAVE A RIGHT TO A PROMPT HEARING. If notice of a hearing date and time is not served with this notice, you have the right to request the hearing. At the hearing, the plaintiff must give evidence that there is probable cause to believe that the statements in the enclosed affidavit are true and also that the claim stated in the lawsuit is probably valid, or else the garnishment will be released. (5) If service of notice on the defendant must be effected by publication, only the following notice need be published under the caption of the case: To, Defendant: A writ of prejudgment garnishment has been issued in the above captioned case, directed to . . . . . . as Garnishee Defendant, commanding the Garnishee to withhold amounts due you or to withhold any of your property in the Garnishee’s possession or control for application to any judgment that may be entered for plaintiff in the case. YOU HAVE A RIGHT TO ASK FOR A HEARING. At the hearing, the plaintiff must give evidence that there is probable cause to believe that the ground for garnishment alleged in an affidavit filed with the court exists and also that the claim stated in the lawsuit is probably valid, or else the garnishment will be released. If the defendant is an individual, the following paragraph shall be added to the published notice: YOU MAY ALSO HAVE A RIGHT TO HAVE THE GARNISHMENT RELEASED if amounts or property withheld are exempt under federal or state statutes, for example, bank accounts in which bene(2006 Ed.) Chapter 6.27 fits such as Temporary Assistance for Needy Families, Supplemental Security Income (SSI), Social Security, United States pension, Unemployment Compensation, or Veterans’ benefits have been deposited or certain personal property described in section 6.15.010 of the Revised Code of Washington. [1997 c 59 § 1; 1988 c 231 § 20; 1987 c 442 § 906.] Severability—1988 c 231: See note following RCW 6.01.050. 6.26.070 6.26.070 Application of chapter 6.27 RCW to prejudgment garnishments. Except as otherwise provided, the provisions of chapter 6.27 RCW governing garnishments apply to prejudgment garnishments. [1987 c 442 § 907.] Chapter 6.27 RCW GARNISHMENT Chapter 6.27 Sections 6.27.005 6.27.010 6.27.020 6.27.030 6.27.040 6.27.050 6.27.060 6.27.070 6.27.080 6.27.090 6.27.095 6.27.100 6.27.110 6.27.120 6.27.130 6.27.140 6.27.150 6.27.160 6.27.170 6.27.180 6.27.190 6.27.200 6.27.210 6.27.220 6.27.230 6.27.240 6.27.250 6.27.260 6.27.265 6.27.270 6.27.280 6.27.290 6.27.300 6.27.310 6.27.320 6.27.330 6.27.340 6.27.350 6.27.360 6.27.370 Legislative intent. Definitions. Grounds for issuance of writ—Time of issuance of prejudgment writs. Application of chapter to district courts. State and municipal corporations subject to garnishment— Service of writ. Garnishment of money held by officer—Of judgment debtor—Of personal representative. Application for writ—Affidavit—Fee. Issuance of writ—Form—Dating—Attestation. Writ directed to financial institution—Form and service. Amount garnishee required to hold. Garnishee’s processing fees. Form of writ. Service of writ generally—Forms—Requirements for financial institution—Return. Effect of service of writ. Mailing of writ and judgment or affidavit to judgment debtor—Mailing of notice and claim form if judgment debtor is an individual—Service—Return. Form of returns under RCW 6.27.130. Exemption of earnings—Amount. Claiming exemptions—Form—Hearing—Attorney’s fees— Costs—Release of funds or property. Garnished employee not to be discharged—Exception. Bond to discharge writ. Answer of garnishee—Contents—Forms. Default judgment—Reduction upon motion of garnishee— Attorney’s fees. Answer of garnishee may be controverted by plaintiff or defendant. Controversion—Procedure. Controversion—Costs and attorney’s fees. Discharge of garnishee. Judgment against garnishee—Procedure if debt not mature. Execution on judgment against garnishee. Form for judgment against garnishee. Decree directing garnishee to deliver up effects—Disposition. Procedure upon failure of garnishee to deliver. Similarity of names—Procedure. Garnishee protected against claim of defendant. Dismissal of writ after one year—Notice—Exception. Dismissal of garnishment—Duty of plaintiff—Procedure— Penalty—Costs. Continuing lien on earnings—Authorized. Continuing lien on earnings—Captions—Additions to writ and answer forms. Continuing lien on earnings—When lien becomes effective— Termination—Second answer. Continuing lien on earnings—Priorities—Exceptions. Notice to federal government as garnishee defendant— Deposit, payment, and endorsement of funds received by the clerk—Fees as recoverable cost. Rules of court: CR 64. [Title 6 RCW—page 29] 6.27.005 Title 6 RCW: Enforcement of Judgments 6.27.005 6.27.005 Legislative intent. The legislature recognizes that a garnishee has no responsibility for the situation leading to the garnishment of a debtor’s wages, funds, or other property, but that the garnishment process is necessary for the enforcement of obligations debtors otherwise fail to honor, and that garnishment procedures benefit the state and the business community as creditors. The state should take whatever measures that are reasonably necessary to reduce or offset the administrative burden on the garnishee consistent with the goal of effectively enforcing the debtor’s unpaid obligations. [2000 c 72 § 1; 1998 c 227 § 1; 1997 c 296 § 1.] original action or by the attorney of record for the judgment creditor in district court. (3) The writ of garnishment shall be served upon the same officer as is required for service of summons upon the commencement of a civil action against the state, county, city, town, school district, or other municipal corporation, as the case may be. [2003 c 222 § 2. Prior: 1987 c 442 § 1004; 1987 c 202 § 134; 1969 ex.s. c 264 § 6. Formerly RCW 7.33.060.] Intent—1987 c 202: See note following RCW 2.04.190. 6.27.050 6.27.010 6.27.010 Definitions. (1) As used in this chapter, the term "earnings" means compensation paid or payable to an individual for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a nongovernmental pension or retirement program. (2) As used in this chapter, the term "disposable earnings" means that part of earnings remaining after the deduction from those earnings of any amounts required by law to be withheld. [2003 c 222 § 16; 1987 c 442 § 1001.] 6.27.020 6.27.020 Grounds for issuance of writ—Time of issuance of prejudgment writs. (1) The clerks of the superior courts and district courts of this state may issue writs of garnishment returnable to their respective courts for the benefit of a judgment creditor who has a judgment wholly or partially unsatisfied in the court from which the garnishment is sought. (2) Writs of garnishment may be issued in district court with like effect by the attorney of record for the judgment creditor, and the form of writ shall be substantially the same as when issued by the court except that it shall be subscribed only by the signature of such attorney. (3) Except as otherwise provided in RCW 6.27.040 and 6.27.330, the superior courts and district courts of this state may issue prejudgment writs of garnishment to a plaintiff at the time of commencement of an action or at any time afterward, subject to the requirements of chapter 6.26 RCW. [2003 c 222 § 1; 1987 c 442 § 1002; 1969 ex.s. c 264 § 1. Formerly RCW 7.33.010.] Rules of court: Cf. CR 64. 6.27.030 6.27.030 Application of chapter to district courts. All the provisions of this chapter shall apply to proceedings before district courts of this state. [1987 c 442 § 1003; 1969 ex.s. c 264 § 2. Formerly RCW 7.33.020.] 6.27.040 6.27.040 State and municipal corporations subject to garnishment—Service of writ. (1) The state of Washington, all counties, cities, towns, school districts and other municipal corporations shall be subject to garnishment after judgment has been entered in the principal action, but not before, in the superior and district courts, in the same manner and with the same effect, as provided in the case of other garnishees. (2) The venue of any such garnishment proceeding shall be the same as for the original action, and the writ shall be issued by the clerk of the court having jurisdiction of such [Title 6 RCW—page 30] 6.27.050 Garnishment of money held by officer—Of judgment debtor—Of personal representative. A sheriff or other peace officer who holds money of the defendant is subject to garnishment, excepting only for money or property taken from a person arrested by such officer, at the time of the arrest. A judgment debtor of the defendant is subject to garnishment when the judgment has not been previously assigned on the record or by writing filed in the office of the clerk of the court that entered the judgment and minuted by the clerk as an assignment in the execution docket. An executor or administrator is subject to garnishment for money due from the decedent to the defendant. [1987 c 442 § 1005; 1927 c 101 § 1; 1886 p 43 § 19; RRS § 664. Prior: Code 1881 §§ 174-192; 1877 pp 35-40; 1873 pp 43-50; 1871 pp 9, 10; 1869 pp 41-47; 1863 pp 112-120; 1860 pp 30-36; 1854 pp 155-162. Formerly RCW 7.12.180.] 6.27.060 6.27.060 Application for writ—Affidavit—Fee. The judgment creditor as the plaintiff or someone in the judgment creditor’s behalf shall apply for a writ of garnishment by affidavit, stating the following facts: (1) The plaintiff has a judgment wholly or partially unsatisfied in the court from which the writ is sought; (2) the amount alleged to be due under that judgment; (3) the plaintiff has reason to believe, and does believe that the garnishee, stating the garnishee’s name and residence or place of business, is indebted to the defendant in amounts exceeding those exempted from garnishment by any state or federal law, or that the garnishee has possession or control of personal property or effects belonging to the defendant which are not exempted from garnishment by any state or federal law; and (4) whether or not the garnishee is the employer of the judgment debtor. The judgment creditor shall pay to the clerk of the superior court the fee provided by RCW 36.18.020, or to the clerk of the district court the fee provided by RCW 3.62.060. [2003 c 222 § 17; 1988 c 231 § 22. Prior: 1987 c 442 § 1006; 1987 c 202 § 133; 1981 c 193 § 3; 1977 ex.s. c 55 § 1; 1969 ex.s. c 264 § 4. Formerly RCW 7.33.040.] Severability—1988 c 231: See note following RCW 6.01.050. Intent—1987 c 202: See note following RCW 2.04.190. 6.27.070 6.27.070 Issuance of writ—Form—Dating—Attestation. (1) When application for a writ of garnishment is made by a judgment creditor and the requirements of RCW 6.27.060 have been complied with, the clerk shall docket the case in the names of the judgment creditor as plaintiff, the judgment debtor as defendant, and the garnishee as garnishee defendant, and shall immediately issue and deliver a writ of garnishment to the judgment creditor in the form prescribed (2006 Ed.) Garnishment in RCW 6.27.100, directed to the garnishee, commanding the garnishee to answer said writ on forms served with the writ and complying with RCW 6.27.190 within twenty days after the service of the writ upon the garnishee. The clerk shall likewise docket the case when a writ of garnishment issued by the attorney of record of a judgment creditor is filed. Whether a writ is issued by the clerk or an attorney, the clerk shall bear no responsibility for errors contained in the writ. (2) The writ of garnishment shall be dated and attested as in the form prescribed in RCW 6.27.100. The name and office address of the plaintiff’s attorney shall be indorsed thereon or, in case the plaintiff has no attorney, the name and address of the plaintiff shall be indorsed thereon. The address of the clerk’s office shall appear at the bottom of the writ. [2003 c 222 § 3; 1987 c 442 § 1007; 1970 ex.s. c 61 § 1. Prior: 1969 ex.s. c 264 § 5. Formerly RCW 7.33.050.] 6.27.080 Writ directed to financial institution— Form and service. (1) A writ of garnishment directed to a bank, savings and loan association, or credit union that maintains branch offices shall identify either a particular branch of the financial institution or the financial institution as the garnishee defendant. The head office of a financial institution shall be considered a separate branch for purposes of this section. The statement required by subsection (2) of this section may be incorporated in the writ or served separately. (2) Service shall be as required by RCW 6.27.110 (1) and (3) and shall be by certified mail, return receipt requested, directed to or by personal service, in the same manner as a summons in a civil action is served, on the manager, cashier, or assistant cashier of the financial institution, except that, if the financial institution, and not a branch, is named as garnishee defendant, service shall be either on the head office or on the place designated by the financial institution for receipt of service of process. There shall be served with the writ, as part of the service, a statement in writing signed by the plaintiff or plaintiff’s attorney, stating (a) the defendant’s place of residence and business, occupation, trade, or profession, or (b) the defendant’s federal tax identification number, or (c) the defendant’s account number, if such information is not incorporated in the writ. If the statement is not served with the writ and such information is not included in the writ, the service shall be deemed incomplete and the garnishee shall not be held liable for funds owing to the defendant or property of the defendant in the possession of or under the control of the garnishee defendant that it fails to discover. (3) A writ naming the financial institution as the garnishee defendant shall be effective only to attach deposits of the defendant in the financial institution and compensation payable for personal services due the defendant from the financial institution. A writ naming a branch as garnishee defendant shall be effective only to attach the deposits, accounts, credits, or other personal property of the defendant (excluding compensation payable for personal services) in the possession or control of the particular branch to which the writ is directed and on which service is made. A writ of garnishment is effective against property in the possession or control of a financial institution only if the writ of garnishment is directed to and names a branch as garnishee defendant. [1988 c 231 § 23; 1987 c 442 § 1008.] 6.27.080 (2006 Ed.) 6.27.100 Severability—1988 c 231: See note following RCW 6.01.050. 6.27.090 6.27.090 Amount garnishee required to hold. (1) The writ of garnishment shall set forth in the first paragraph the amount that garnishee is required to hold, which shall be an amount determined as follows: (a)(i) If after judgment, the amount of the judgment remaining unsatisfied on the clerk of the court’s execution docket, if any, plus interest to the date of garnishment, as provided in RCW 4.56.110, plus taxable costs and attorney’s fees, or (ii) if before judgment, the amount prayed for in the complaint plus estimated taxable costs of suit and attorneys’ fees, together with, (b) whether before or after judgment, estimated costs of garnishment as provided in subsection (2) of this section. The court may, by order, set a higher amount to be held upon a showing of good cause by plaintiff. (2) Costs recoverable in garnishment proceedings, to be estimated for purposes of subsection (1) of this section, include filing fee, service and affidavit fees, postage and costs of certified mail, answer fee or fees, other fees legally chargeable to a plaintiff in the garnishment process, and a garnishment attorney fee in the amount of the greater of fifty dollars or ten percent of (a) the amount of the judgment remaining unsatisfied or (b) the amount prayed for in the complaint. The garnishment attorney fee shall not exceed two hundred fifty dollars. [2000 c 72 § 2; 1988 c 231 § 24; 1987 c 442 § 1009; 1969 ex.s. c 264 § 9. Formerly RCW 7.33.090.] Severability—1988 c 231: See note following RCW 6.01.050. 6.27.095 6.27.095 Garnishee’s processing fees. (1) The garnishee of a writ for a continuing lien on earnings may deduct a processing fee from the remainder of the obligor’s earnings after withholding the required amount under the writ. The processing fee may not exceed twenty dollars for the first answer and ten dollars at the time the garnishee submits the second answer. (2) If the writ of garnishment is not a writ for a continuing lien on earnings, the garnishee is entitled to check or money order payable to the garnishee in the amount of twenty dollars at the time the writ of garnishment is served on the garnishee as required under RCW 6.27.110(1). [1998 c 227 § 2; 1997 c 296 § 3.] 6.27.100 6.27.100 Form of writ. (1) The writ shall be substantially in the following form, but if the writ is issued under a court order or judgment for child support, the following statement shall appear conspicuously in the caption: "This garnishment is based on a judgment or court order for child support"; and if the garnishment is for a continuing lien, the form shall be modified as provided in RCW 6.27.340; and if the writ is not directed to an employer for the purpose of garnishing a defendant’s earnings, the paragraph relating to the earnings exemption may be omitted and the paragraph relating to the deduction of processing fees may be omitted; and if the writ is issued by an attorney, the writ shall be revised as indicated in subsection (2) of this section: "IN THE . . . . . COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF . . . . . . [Title 6 RCW—page 31] 6.27.100 .................... , Plaintiff, vs. .................... , Defendant .................... , Garnishee Title 6 RCW: Enforcement of Judgments No. . . . . WRIT OF GARNISHMENT THE STATE OF WASHINGTON TO: . . . . . . . . . . . . . . Garnishee AND TO: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant The above-named plaintiff has applied for a writ of garnishment against you, claiming that the above-named defendant is indebted to plaintiff and that the amount to be held to satisfy that indebtedness is $ . . . . . ., consisting of: Balance on Judgment or Amount of Claim Interest under Judgment from . . . . to . . . . Taxable Costs and Attorneys’ Fees Estimated Garnishment Costs: Filing Fee Service and Affidavit Fees Postage and Costs of Certified Mail Answer Fee or Fees (If applicable) Garnishment Attorney Fee Other $.... $.... $.... $.... $.... $.... $.... $.... $.... YOU ARE HEREBY COMMANDED, unless otherwise directed by the court, by the attorney of record for the plaintiff, or by this writ, not to pay any debt, whether earnings subject to this garnishment or any other debt, owed to the defendant at the time this writ was served and not to deliver, sell, or transfer, or recognize any sale or transfer of, any personal property or effects of the defendant in your possession or control at the time when this writ was served. Any such payment, delivery, sale, or transfer is void to the extent necessary to satisfy the plaintiff’s claim and costs for this writ with interest. YOU ARE FURTHER COMMANDED to answer this writ by filling in the attached form according to the instructions in this writ and in the answer forms and, within twenty days after the service of the writ upon you, to mail or deliver the original of such answer to the court, one copy to the plaintiff or the plaintiff’s attorney, and one copy to the defendant, in the envelopes provided. If, at the time this writ was served, you owed the defendant any earnings (that is, wages, salary, commission, bonus, or other compensation for personal services or any periodic payments pursuant to a nongovernmental pension or retirement program), the defendant is entitled to receive amounts that are exempt from garnishment under federal and state law. You must pay the exempt amounts to the defendant on the day you would customarily pay the compensation or other periodic payment. As more fully explained in the answer, the basic exempt amount is the greater of seventy-five percent of disposable earnings or a minimum amount determined by reference to the employee’s pay period, to be calculated as provided in the answer. However, if this writ carries a statement in the heading that "This garnishment is based on a judgment [Title 6 RCW—page 32] or court order for child support," the basic exempt amount is forty percent of disposable earnings. IF THIS IS A WRIT FOR A CONTINUING LIEN ON EARNINGS, YOU MAY DEDUCT A PROCESSING FEE FROM THE REMAINDER OF THE EMPLOYEE’S EARNINGS AFTER WITHHOLDING UNDER THIS WRIT. THE PROCESSING FEE MAY NOT EXCEED TWENTY DOLLARS FOR THE FIRST ANSWER AND TEN DOLLARS AT THE TIME YOU SUBMIT THE SECOND ANSWER. If you owe the defendant a debt payable in money in excess of the amount set forth in the first paragraph of this writ, hold only the amount set forth in the first paragraph and any processing fee if one is charged and release all additional funds or property to defendant. IF YOU FAIL TO ANSWER THIS WRIT AS COMMANDED, A JUDGMENT MAY BE ENTERED AGAINST YOU FOR THE FULL AMOUNT OF THE PLAINTIFF’S CLAIM AGAINST THE DEFENDANT WITH ACCRUING INTEREST, ATTORNEY FEES, AND COSTS WHETHER OR NOT YOU OWE ANYTHING TO THE DEFENDANT. IF YOU PROPERLY ANSWER THIS WRIT, ANY JUDGMENT AGAINST YOU WILL NOT EXCEED THE AMOUNT OF ANY NONEXEMPT DEBT OR THE VALUE OF ANY NONEXEMPT PROPERTY OR EFFECTS IN YOUR POSSESSION OR CONTROL. JUDGMENT MAY ALSO BE ENTERED AGAINST THE DEFENDANT FOR COSTS AND FEES INCURRED BY THE PLAINTIFF. Witness, the Honorable . . . . . . . ., Judge of the aboveentitled Court, and the seal thereof, this . . . . day of . . . . . ., 20. . . [Seal] ..................... Attorney for Plaintiff (or Plaintiff, if no attorney) ..................... Address ..................... Clerk of the Court ..................... By ..................... Address" (2) If an attorney issues the writ of garnishment, the final paragraph of the writ, containing the date, and the subscripted attorney and clerk provisions, shall be replaced with text in substantially the following form: "This writ is issued by the undersigned attorney of record for plaintiff under the authority of chapter 6.27 of the Revised Code of Washington, and must be complied with in the same manner as a writ issued by the clerk of the court. Dated this . . . . . . . .day of . . . . . . . . . ., 20 . . . . . . ..................... Attorney for Plaintiff ..................... Address" ..................... Address of the Clerk of the Court (2006 Ed.) Garnishment [2003 c 222 § 4; 2000 c 72 § 3; 1998 c 227 § 3; 1997 c 296 § 2; 1988 c 231 § 25; 1987 c 442 § 1010; 1981 c 193 § 4; 1969 ex.s. c 264 § 11. Formerly RCW 7.33.110.] Severability—1988 c 231: See note following RCW 6.01.050. 6.27.110 6.27.110 Service of writ generally—Forms— Requirements for financial institution—Return. (1) Service of the writ of garnishment on the garnishee is invalid unless the writ is served together with: (a) Four answer forms as prescribed in RCW 6.27.190; (b) three stamped envelopes addressed respectively to the clerk of the court issuing the writ, the attorney for the plaintiff (or to the plaintiff if the plaintiff has no attorney), and the defendant; and (c) check or money order made payable to the garnishee in the amount of twenty dollars for the answer fee if the writ of garnishment is not a writ for a continuing lien on earnings. (2) Except as provided in RCW 6.27.080 for service on a bank, savings and loan association, or credit union, the writ of garnishment shall be mailed to the garnishee by certified mail, return receipt requested, addressed in the same manner as a summons in a civil action, and will be binding upon the garnishee on the day set forth on the return receipt. In the alternative, the writ shall be served by the sheriff of the county in which the garnishee lives or has its place of business or by any person qualified to serve process in the same manner as a summons in a civil action is served. (3) If a writ of garnishment is served by a sheriff, the sheriff shall file with the clerk of the court that issued the writ a signed return showing the time, place, and manner of service and that the writ was accompanied by answer forms, addressed envelopes, and check or money order if required by this section, and noting thereon fees for making the service. If service is made by any person other than a sheriff, such person shall file an affidavit including the same information and showing qualifications to make such service. If a writ of garnishment is served by mail, the person making the mailing shall file an affidavit showing the time, place, and manner of mailing and that the writ was accompanied by answer forms and addressed envelopes, and check or money order if required by this section, and shall attach the return receipt to the affidavit. [1998 c 227 § 4; 1997 c 296 § 4; 1988 c 231 § 26; 1987 c 442 § 1011; 1981 c 193 § 5; 1971 ex.s. c 292 § 8; 1970 ex.s. c 61 § 11; 1969 ex.s. c 264 § 13. Formerly RCW 7.33.130.] Rules of court: Cf. SPR 91.04W(a), (b), and (e). Severability—1988 c 231: See note following RCW 6.01.050. Severability—1971 ex.s. c 292: See note following RCW 26.28.010. 6.27.120 6.27.120 Effect of service of writ. (1) From and after the service of a writ of garnishment, it shall not be lawful, except as provided in this chapter or as directed by the court, for the garnishee to pay any debt owing to the defendant at the time of such service, or to deliver, sell or transfer, or recognize any sale or transfer of, any personal property or effects belonging to the defendant in the garnishee’s possession or under the garnishee’s control at the time of such service; and any such payment, delivery, sale or transfer shall be void and of no effect as to so much of said debt, personal property or effects as may be necessary to satisfy the plaintiff’s demand. (2006 Ed.) 6.27.130 (2) This section shall have no effect as to any portion of a debt that is exempt from garnishment. (3) The garnishee shall incur no liability for releasing funds or property in excess of the amount stated in the writ of garnishment if the garnishee continues to hold an amount equal to the amount stated in the writ of garnishment. [1987 c 442 § 1012; 1969 ex.s. c 264 § 14. Formerly RCW 7.33.140.] 6.27.130 6.27.130 Mailing of writ and judgment or affidavit to judgment debtor—Mailing of notice and claim form if judgment debtor is an individual—Service—Return. (1) When a writ is issued under a judgment, on or before the date of service of the writ on the garnishee, the judgment creditor shall mail or cause to be mailed to the judgment debtor, by certified mail, addressed to the last known post office address of the judgment debtor, (a) a copy of the writ and a copy of the judgment creditor’s affidavit submitted in application for the writ, and (b) if the judgment debtor is an individual, the notice and claim form prescribed in RCW 6.27.140. In the alternative, on or before the day of the service of the writ on the garnishee or within two days thereafter, the stated documents shall be served on the judgment debtor in the same manner as is required for personal service of summons upon a party to an action. (2) The requirements of this section shall not be jurisdictional, but (a) no disbursement order or judgment against the garnishee defendant shall be entered unless there is on file the return or affidavit of service or mailing required by subsection (3) of this section, and (b) if the copies of the writ and judgment or affidavit, and the notice and claim form if the defendant is an individual, are not mailed or served as herein provided, or if any irregularity appears with respect to the mailing or service, the court, in its discretion, on motion of the judgment debtor promptly made and supported by affidavit showing that the judgment debtor has suffered substantial injury from the plaintiff’s failure to mail or otherwise to serve such copies, may set aside the garnishment and award to the judgment debtor an amount equal to the damages suffered because of such failure. (3) If the service on the judgment debtor is made by a sheriff, the sheriff shall file with the clerk of the court that issued the writ a signed return showing the time, place, and manner of service and that the copy of the writ was accompanied by a copy of a judgment or affidavit, and by a notice and claim form if required by this section, and shall note thereon fees for making such service. If service is made by any person other than a sheriff, such person shall file an affidavit including the same information and showing qualifications to make such service. If service on the judgment debtor is made by mail, the person making the mailing shall file an affidavit including the same information as required for return on service and, in addition, showing the address of the mailing and attaching the return receipt or the mailing should it be returned to the sender as undeliverable. [2003 c 222 § 5; 1988 c 231 § 27; 1987 c 442 § 1013; 1969 ex.s. c 264 § 32. Formerly RCW 7.33.320.] Severability—1988 c 231: See note following RCW 6.01.050. [Title 6 RCW—page 33] 6.27.140 Title 6 RCW: Enforcement of Judgments 6.27.140 6.27.140 Form of returns under RCW 6.27.130. (1) The notice required by RCW 6.27.130(1) to be mailed to or served on an individual judgment debtor shall be in the following form, printed or typed in type no smaller than elite type: plaintiff does not object to your claim, the funds or other property that you have claimed as exempt must be released not later than 10 days after the plaintiff receives your claim form. If the plaintiff objects, the law requires a hearing not later than 14 days after the plaintiff receives your claim form, and notice of the objection and hearing date will be mailed to you at the address that you put on the claim form. NOTICE OF GARNISHMENT AND OF YOUR RIGHTS A Writ of Garnishment issued in a Washington court has been or will be served on the garnishee named in the attached copy of the writ. After receipt of the writ, the garnishee is required to withhold payment of any money that was due to you and to withhold any other property of yours that the garnishee held or controlled. This notice of your rights is required by law. YOU HAVE THE FOLLOWING EXEMPTION RIGHTS: WAGES. If the garnishee is your employer who owes wages or other personal earnings to you, your employer is required to pay amounts to you that are exempt under state and federal laws, as explained in the writ of garnishment. You should receive a copy of your employer’s answer, which will show how the exempt amount was calculated. If the garnishment is for child support, the exempt amount paid to you will be forty percent of wages due you, but if you are supporting a spouse or dependent child, you are entitled to claim an additional ten percent as exempt. BANK ACCOUNTS. If the garnishee is a bank or other institution with which you have an account in which you have deposited benefits such as Temporary Assistance for Needy Families, Supplemental Security Income (SSI), Social Security, veterans’ benefits, unemployment compensation, or a United States pension, you may claim the account as fully exempt if you have deposited only such benefit funds in the account. It may be partially exempt even though you have deposited money from other sources in the same account. An exemption is also available under RCW 26.16.200, providing that funds in a community bank account that can be identified as the earnings of a stepparent are exempt from a garnishment on the child support obligation of the parent. OTHER EXEMPTIONS. If the garnishee holds other property of yours, some or all of it may be exempt under RCW 6.15.010, a Washington statute that exempts up to five hundred dollars of property of your choice (including up to one hundred dollars in cash or in a bank account) and certain property such as household furnishings, tools of trade, and a motor vehicle (all limited by differing dollar values). HOW TO CLAIM EXEMPTIONS. Fill out the enclosed claim form and mail or deliver it as described in instructions on the claim form. If the [Title 6 RCW—page 34] THE LAW ALSO PROVIDES OTHER EXEMPTION RIGHTS. IF NECESSARY, AN ATTORNEY CAN ASSIST YOU TO ASSERT THESE AND OTHER RIGHTS, BUT YOU MUST ACT IMMEDIATELY TO AVOID LOSS OF RIGHTS BY DELAY. (2) The claim form required by RCW 6.27.130(1) to be mailed to or served on an individual judgment debtor shall be in the following form, printed or typed in type no smaller than elite type: [Caption to be filled in by judgment creditor or plaintiff before mailing.] ..................... Name of Court ..................... Plaintiff, No . . . . . . vs. ..................... Defendant, EXEMPTION CLAIM ..................... Garnishee Defendant INSTRUCTIONS: 1. Read this whole form after reading the enclosed notice. Then put an X in the box or boxes that describe your exemption claim or claims and write in the necessary information on the blank lines. If additional space is needed, use the bottom of the last page or attach another sheet. 2. Make two copies of the completed form. Deliver the original form by first class mail or in person to the clerk of the court, whose address is shown at the bottom of the writ of garnishment. Deliver one of the copies by first class mail or in person to the plaintiff or plaintiff’s attorney, whose name and address are shown at the bottom of the writ. Keep the other copy. YOU SHOULD DO THIS AS QUICKLY AS POSSIBLE, BUT NO LATER THAN 28 DAYS (4 WEEKS) AFTER THE DATE ON THE WRIT. I/We claim the following money or property as exempt: IF BANK ACCOUNT IS GARNISHED: [ ] The account contains payments from: [ ] Temporary assistance for needy families, SSI, or other public assistance. I receive $ . . . . . monthly. [ ] Social Security. I receive $ . . . . . monthly. [ ] Veterans’ Benefits. I receive $ . . . . . monthly. (2006 Ed.) Garnishment [ ] U.S. Government Pension. I receive $ . . . . . monthly. [ ] Unemployment Compensation. I receive $ . . . . . monthly. [ ] Child support. I receive $ . . . . . monthly. [ ] Other. Explain . . . . . . . . . . . . . . . . . . . . . . . . . . ....................................... IF EXEMPTION IN BANK ACCOUNT IS CLAIMED, ANSWER ONE OR BOTH OF THE FOLLOWING: [ ] No money other than from above payments are in the account. [ ] Moneys in addition to the above payments have been deposited in the account. Explain . . . . . . . ....................................... ....................................... IF EARNINGS ARE GARNISHED FOR CHILD SUPPORT: [ ] I claim maximum exemption. [ ] I am supporting another child or other children. [ ] I am supporting a husband or a wife. IF PENSION OR RETIREMENT BENEFITS ARE GARNISHED: [ ] Name and address of employer who is paying the benefits: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........................................ OTHER PROPERTY: [ ] Describe property . . . . . . . . . . . . . . . . . . . . . . . . . ........................................ (If you claim other personal property as exempt, you must attach a list of all other personal property that you own.) ..................... Print: Your name ..................... If married, name of husband/wife ..................... Your signature ..................... Signature of husband or wife ..................... ..................... Address ..................... ..................... Address (if different from yours) ..................... Telephone number ..................... Telephone number (if different from yours) CAUTION: If the plaintiff objects to your claim, you will have to go to court and give proof of your claim. For example, if you claim that a bank account is exempt, you may have to show the judge your bank statements and papers that show the source of the money you deposited in the bank. Your claim may be granted more quickly if you attach copies of such proof to your claim. IF THE JUDGE DENIES YOUR EXEMPTION CLAIM, YOU WILL HAVE TO PAY THE PLAINTIFF’S COSTS. IF THE JUDGE DECIDES THAT YOU DID NOT MAKE THE CLAIM IN GOOD FAITH, HE OR SHE MAY (2006 Ed.) 6.27.160 DECIDE THAT YOU MUST PAY THE PLAINTIFF’S ATTORNEY FEES. [2003 c 222 § 6; 1997 c 59 § 2; 1987 c 442 § 1014.] 6.27.150 6.27.150 Exemption of earnings—Amount. (1) Except as provided in subsection (2) of this section, if the garnishee is an employer owing the defendant earnings, then for each week of such earnings, an amount shall be exempt from garnishment which is the greatest of the following: (a) Thirty times the federal minimum hourly wage prescribed by section 206(a)(1) of Title 29 of the United States Code in effect at the time the earnings are payable; or (b) Seventy-five percent of the disposable earnings of the defendant. (2) In the case of a garnishment based on a judgment or other court order for child support or court order for spousal maintenance, other than a mandatory wage assignment order pursuant to chapter 26.18 RCW, or a mandatory assignment of retirement benefits pursuant to chapter 41.50 RCW, the exemption shall be fifty percent of the disposable earnings of the defendant if the individual is supporting a spouse or dependent child (other than a spouse or child on whose behalf the garnishment is brought), or forty percent of the disposable earnings of the defendant if the individual is not supporting such a spouse or dependent child. (3) The exemptions stated in this section shall apply whether such earnings are paid, or are to be paid, weekly, monthly, or at other intervals, and whether earnings are due the defendant for one week, a portion thereof, or for a longer period. (4) Unless directed otherwise by the court, the garnishee shall determine and deduct exempt amounts under this section as directed in the writ of garnishment and answer, and shall pay these amounts to the defendant. (5) No money due or earned as earnings as defined in RCW 6.27.010 shall be exempt from garnishment under the provisions of RCW 6.15.010, as now or hereafter amended. [1991 c 365 § 26; 1987 c 442 § 1015; 1981 c 193 § 6; 1971 c 6 § 1; 1970 ex.s. c 61 § 3; 1969 ex.s. c 264 § 28. Formerly RCW 7.33.280.] Severability—1991 c 365: See note following RCW 41.50.500. 6.27.160 6.27.160 Claiming exemptions—Form—Hearing— Attorney’s fees—Costs—Release of funds or property. (1) A defendant may claim exemptions from garnishment in the manner specified by the statute that creates the exemption or by delivering to or mailing by first class mail to the clerk of the court out of which the writ was issued a declaration in substantially the following form or in the form set forth in RCW 6.27.140 and mailing a copy of the form by first class mail to the plaintiff or plaintiff’s attorney at the address shown on the writ of garnishment, all not later than twentyeight days after the date stated on the writ except that the time shall be extended to allow a declaration mailed or delivered to the clerk within twenty-one days after service of the writ on the garnishee if service on the garnishee is delayed more than seven days after the date of the writ. [Title 6 RCW—page 35] 6.27.170 Title 6 RCW: Enforcement of Judgments [NAME OF COURT] ..................... Plaintiff No. . . . . . ..................... Defendant ..................... Garnishee alternative to obtaining a court order releasing exempt funds, property, or effects, deliver to the garnishee and file with the court an authorization to release claimed exempt funds, property, or effects, signed by the attorney, in substantially the following form: [NAME OF COURT] CLAIM OF EXEMPTION I/We claim the following described property or money as exempt from execution: ............................................. ............................................. ............................................. I/We believe the property is exempt because: ............................................. ............................................. ............................................. ..................... Print name ..................... Print name of spouse, if married ..................... Signature ..................... Signature ..................... Address ..................... Address ..................... ..................... Telephone number ..................... ..................... Telephone number ..................... . . . . . . . . . . . . . . . . . . . . ., Plaintiff, vs. [Title 6 RCW—page 36] RELEASE OF WRIT OF GARNISHMENT . . . . . . . . . . . . . . . . . . . . ., Defendant . . . . . . . . . . . . . . . . . . . . ., Garnishee. TO THE ABOVE-NAMED GARNISHEE You are hereby directed by the attorney for plaintiff, under the authority of chapter 6.27 of the Revised Code of Washington, to release the writ of garnishment issued in this cause on . . . . . ., as follows: . . . . . . . . . . [indicate full or partial release, and if partial the extent to which the garnishment is released] You are relieved of your obligation to withhold funds or property of the defendant to the extent indicated in this release. Any funds or property covered by this release which have been withheld, should be returned to the defendant. ..................... (2) A plaintiff who wishes to object to an exemption claim must, not later than seven days after receipt of the claim, cause to be delivered or mailed to the defendant by first class mail, to the address shown on the exemption claim, a declaration by self, attorney, or agent, alleging the facts on which the objection is based, together with notice of date, time, and place of a hearing on the objection, which hearing the plaintiff must cause to be noted for a hearing date not later than fourteen days after the receipt of the claim. After a hearing on an objection to an exemption claim, the court shall award costs to the prevailing party and may also award an attorney’s fee to the prevailing party if the court concludes that the exemption claim or the objection to the claim was not made in good faith. The defendant bears the burden of proving any claimed exemption, including the obligation to provide sufficient documentation to identify the source and amount of any claimed exempt funds. (3) If the plaintiff elects not to object to the claim of exemption, the plaintiff shall, not later than ten days after receipt of the claim, obtain from the court and deliver to the garnishee an order directing the garnishee to release such part of the debt, property, or effects as is covered by the exemption claim. If the plaintiff fails to obtain and deliver the order as required or otherwise to effect release of the exempt funds or property, the defendant shall be entitled to recover fifty dollars from the plaintiff, in addition to actual damages suffered by the defendant from the failure to release the exempt property. The attorney of record for the plaintiff may, as an No. . . . . . Date: . . . . . . . . . . . . . . . . . ..................... Attorney for Plaintiff [2003 c 222 § 7; 2002 c 265 § 3; 1988 c 231 § 28; 1987 c 442 § 1016.] Severability—1988 c 231: See note following RCW 6.01.050. 6.27.170 6.27.170 Garnished employee not to be discharged— Exception. No employer shall discharge an employee for the reason that a creditor of the employee has subjected or attempted to subject unpaid earnings of the employee to a writ of garnishment directed to the employer: PROVIDED, HOWEVER, That this provision shall not apply if garnishments on three or more separate indebtednesses are served upon the employer within any period of twelve consecutive months. [1987 c 442 § 1017; 1969 ex.s. c 264 § 16. Formerly RCW 7.33.160.] 6.27.180 6.27.180 Bond to discharge writ. If the defendant in the principal action causes a bond to be executed to the plaintiff with sufficient sureties, to be approved by the officer having the writ of garnishment or by the clerk of the court out of which the writ was issued, conditioned that the defendant will perform the judgment of the court, the writ of garnishment shall, upon the filing of said bond with the clerk, be immediately discharged, and all proceedings under the writ shall be vacated: PROVIDED, That the garnishee shall not be thereby deprived from recovering any costs in said proceeding, to which the garnishee would otherwise be entitled under this chapter. The bond shall be part of the record and, if judgment is against the defendant, it shall be entered against (2006 Ed.) Garnishment defendant and the sureties. [1988 c 231 § 29; 1987 c 442 § 1018; 1969 ex.s. c 264 § 17. Formerly RCW 7.33.170.] Severability—1988 c 231: See note following RCW 6.01.050. 6.27.190 6.27.190 Answer of garnishee—Contents—Forms. The answer of the garnishee shall be signed by the garnishee or attorney or if the garnishee is a corporation, by an officer, attorney or duly authorized agent of the garnishee, under penalty of perjury, and the original delivered, either personally or by mail, to the clerk of the court, one copy to the plaintiff or the plaintiff’s attorney, and one copy to the defendant. The answer shall be made on a form substantially as appears in this section, served on the garnishee with the writ. Prior to serving the answer forms for a writ for continuing lien on earnings, the plaintiff shall fill in the minimum exemption amounts for the different pay periods, and the maximum percentages of disposable earnings subject to lien and exempt from lien. If the garnishment is for a continuing lien, the answer forms shall be as prescribed in RCW 6.27.340 and 6.27.350. If the writ is not directed to an employer for the purpose of garnishing the defendant’s wages, the paragraphs in section II of the answer relating to earnings and calculations of withheld amounts may be omitted. IN THE . . . . . COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF . . . . . . ..................... Plaintiff vs. ..................... Defendant ..................... Garnishee Defendant NO. . . . . . ANSWER TO WRIT OF GARNISHMENT SECTION I. On the date the writ of garnishment was issued as indicated by the date appearing on the last page of the writ: (A) The defendant: (check one) . . . . was, . . . . was not employed by garnishee. If not employed and you have no possession or control of any funds of defendant, indicate the last day of employment: . . . . . . .; and complete section III of this answer and mail or deliver the forms as directed in the writ; (B) The defendant: (check one) . . . . did, . . . . did not maintain a financial account with garnishee; and (C) The garnishee: (check one) . . . . did, . . . . did not have possession of or control over any funds, personal property, or effects of the defendant. (List all of defendant’s personal property or effects in your possession or control on the last page of this answer form or attach a schedule if necessary.) SECTION II. At the time of service of the writ of garnishment on the garnishee there was due and owing from the garnishee to the above-named defendant $ . . . . . This writ attaches a maximum of . . . . percent of the defendant’s disposable earnings (that is, compensation payable for personal services, whether called wages, salary, commission, bonus, or otherwise, and including periodic payments pursuant to a nongovernmental pension or retirement program). Calculate the attachable amount as follows: (2006 Ed.) 6.27.190 Gross Earnings $ . . . . . . . .(1) Less deductions required by law (social security, federal withholding tax, etc. Do not include deductions for child support orders or government liens here. Deduct child support orders and liens on line 7): $ . . . . . . . .(2) Disposable Earnings (subtract line 2 from line 1): $ . . . . . . . .(3) Enter . . . . percent of line 3: $ . . . . . . . .(4) Enter one of the following exempt amounts*: $ . . . . . . . .(5) If paid: Weekly $..... Bi-weekly $..... Semimonthly Monthly $..... $..... *These are minimum exempt amounts that the defendant must be paid. If your answer covers more than one pay period, multiply the preceding amount by the number of pay periods and/or fraction thereof your answer covers. If you use a pay period not shown, prorate the monthly exempt amount. Subtract the larger of lines 4 and 5 from line 3: $ . . . . . . . .(6) Enter amount (if any) withheld for ongoing government liens such as child support: $ . . . . . . . .(7) Subtract line 7 from line 6. This amount must be held out for the plaintiff: $ . . . . . . . .(8) This is the formula that you will use for withholding each pay period over the required sixty-day garnishment period. Deduct any allowable processing fee you may charge from the amount that is to be paid to the defendant. If there is any uncertainty about your answer, give an explanation on the last page or on an attached page. SECTION III. An attorney may answer for the garnishee. Under penalty of perjury, I affirm that I have examined this answer, including accompanying schedules, and to the best of my knowledge and belief it is true, correct, and complete. ..................... ..................... Signature of Date Garnishee Defendant ..................... ..................... Signature of person Connection with answering for garnishee garnishee ..................... ..................... Print name of person signing . . . . . . . . . . . . . . . . . . . . . Address of garnishee [2003 c 222 § 8; 2000 c 72 § 4; 1997 c 296 § 5; 1988 c 231 § 30; 1987 c 442 § 1019; 1969 ex.s. c 264 § 15. Formerly RCW 7.33.150.] Rules of court: Cf. SPR 91.04W(c). [Title 6 RCW—page 37] 6.27.200 Title 6 RCW: Enforcement of Judgments Severability—1988 c 231: See note following RCW 6.01.050. 6.27.200 6.27.200 Default judgment—Reduction upon motion of garnishee—Attorney’s fees. If the garnishee fails to answer the writ within the time prescribed in the writ, after the time to answer the writ has expired and after required returns or affidavits have been filed, showing service on the garnishee and service on or mailing to the defendant, it shall be lawful for the court to render judgment by default against such garnishee, after providing a notice to the garnishee by personal service or first class mail deposited in the mail at least ten calendar days prior to entry of the judgment, for the full amount claimed by the plaintiff against the defendant, or in case the plaintiff has a judgment against the defendant, for the full amount of the plaintiff’s unpaid judgment against the defendant with all accruing interest and costs as prescribed in RCW 6.27.090: PROVIDED, That upon motion by the garnishee at any time within seven days following service on, or mailing to, the garnishee of a copy of the first writ of execution or writ of garnishment under such judgment, the judgment against the garnishee shall be reduced to the amount of any nonexempt funds or property which was actually in the possession of the garnishee at the time the writ was served, plus the cumulative amount of the nonexempt earnings subject to the lien provided for in RCW 6.27.350, or the sum of one hundred dollars, whichever is more, but in no event to exceed the full amount claimed by the plaintiff or the amount of the unpaid judgment against the principal defendant plus all accruing interest and costs and attorney’s fees as prescribed in RCW 6.27.090, and in addition the plaintiff shall be entitled to a reasonable attorney’s fee for the plaintiff’s response to the garnishee’s motion to reduce said judgment against the garnishee under this proviso and the court may allow additional attorney’s fees for other actions taken because of the garnishee’s failure to answer. [2003 c 222 § 9; 1997 c 296 § 6; 1988 c 231 § 31; 1987 c 442 § 1020; 1970 ex.s. c 61 § 10; 1969 ex.s. c 264 § 19. Formerly RCW 7.33.190.] Rules of court: CR 55, JCR 55. Severability—1988 c 231: See note following RCW 6.01.050. 6.27.210 6.27.210 Answer of garnishee may be controverted by plaintiff or defendant. If the garnishee files an answer, either the plaintiff or the defendant, if not satisfied with the answer of the garnishee, may controvert within twenty days after the filing of the answer, by filing an affidavit in writing signed by the controverting party or attorney or agent, stating that the affiant has good reason to believe and does believe that the answer of the garnishee is incorrect, stating in what particulars the affiant believes the same is incorrect. Copies of the affidavit shall be served on or mailed by first class mail to the garnishee at the address indicated on the answer or, if no address is indicated, at the address to or at which the writ was mailed or served, and to the other party, at the address shown on the writ if the defendant controverts, or at the address to or at which the copy of the writ of garnishment was mailed or served on the defendant if the plaintiff controverts, unless otherwise directed in writing by the defendant or defendant’s attorney. [1987 c 442 § 1021; 1969 ex.s. c 264 § 24. Formerly RCW 7.33.240.] [Title 6 RCW—page 38] 6.27.220 Controversion—Procedure. If the answer of the garnishee is controverted, as provided in RCW 6.27.210, the garnishee may respond by affidavit of the garnishee, the garnishee’s attorney or agent, within twenty days of the filing of the controverting affidavit, with copies served on or mailed by first class mail to the plaintiff at the address shown on the writ and to the defendant as provided in RCW 6.27.210. Upon the expiration of the time for garnishee’s response, the matter may be noted by any party for hearing before a commissioner or presiding judge for a determination whether an issue is presented that requires a trial. If a trial is required, it shall be noted as in other cases, but no pleadings shall be necessary on such issue other than the affidavit of the plaintiff, the answer of the garnishee and the reply of the plaintiff or defendant controverting such answer, unless otherwise ordered by the court. [1987 c 442 § 1022; 1969 ex.s. c 264 § 26. Formerly RCW 7.33.260.] 6.27.220 6.27.230 Controversion—Costs and attorney’s fees. Where the answer is controverted, the costs of the proceeding, including a reasonable compensation for attorney’s fees, shall be awarded to the prevailing party: PROVIDED, That no costs or attorney’s fees in such contest shall be taxable to the defendant in the event of a controversion by the plaintiff. [1987 c 442 § 1023; 1969 ex.s. c 264 § 29. Formerly RCW 7.33.290.] 6.27.230 6.27.240 Discharge of garnishee. If it appears from the answer of the garnishee that the garnishee was not indebted to the defendant when the writ of garnishment was served, and that the garnishee did not have possession or control of any personal property or effects of the defendant, and if an affidavit controverting the answer of the garnishee is not filed within twenty days of the filing of the answer, as provided in this chapter, the garnishee shall stand discharged without further action by the court or the garnishee and shall have no further liability. [1987 c 442 § 1024; 1969 ex.s. c 264 § 18. Formerly RCW 7.33.180.] 6.27.240 6.27.250 Judgment against garnishee—Procedure if debt not mature. (1)(a) If it appears from the answer of the garnishee or if it is otherwise made to appear that the garnishee was indebted to the defendant in any amount, not exempt, when the writ of garnishment was served, and if the required return or affidavit showing service on or mailing to the defendant is on file, the court shall render judgment for the plaintiff against such garnishee for the amount so admitted or found to be due to the defendant from the garnishee, unless such amount exceeds the amount of the plaintiff’s claim or judgment against the defendant with accruing interest and costs and attorney’s fees as prescribed in RCW 6.27.090, in which case it shall be for the amount of such claim or judgment, with said interest, costs, and fees. In the case of a superior court garnishment, the court shall order the garnishee to pay to the plaintiff or to the plaintiff’s attorney through the registry of the court the amount of the judgment against the garnishee, the clerk of the court shall note receipt of any such payment, and the clerk of the court shall disburse the payment to the plaintiff. In the case of a district court garnishment, the court shall order the garnishee to pay the judgment amount directly to the plaintiff or to the plaintiff’s attor6.27.250 (2006 Ed.) Garnishment ney. In either case, the court shall inform the garnishee that failure to pay the amount may result in execution of the judgment, including garnishment. (b) If, prior to judgment, the garnishee tenders to the plaintiff or to the plaintiff’s attorney or to the court any amounts due, such tender will support judgment against the garnishee in the amount so tendered, subject to any exemption claimed within the time required in RCW 6.27.160 after the amounts are tendered, and subject to any controversion filed within the time required in RCW 6.27.210 after the amounts are tendered. Any amounts tendered to the court by or on behalf of the garnishee or the defendant prior to judgment shall be disbursed to the party entitled to same upon entry of judgment or order, and any amounts so tendered after entry of judgment or order shall be disbursed upon receipt to the party entitled to same. (2) If it shall appear from the answer of the garnishee and the same is not controverted, or if it shall appear from the hearing or trial on controversion or by stipulation of the parties that the garnishee is indebted to the principal defendant in any sum, but that such indebtedness is not matured and is not due and payable, and if the required return or affidavit showing service on or mailing to the defendant is on file, the court shall make an order requiring the garnishee to pay such sum into court when the same becomes due, the date when such payment is to be made to be specified in the order, and in default thereof that judgment shall be entered against the garnishee for the amount of such indebtedness so admitted or found due. In case the garnishee pays the sum at the time specified in the order, the payment shall operate as a discharge, otherwise judgment shall be entered against the garnishee for the amount of such indebtedness, which judgment shall have the same force and effect, and be enforced in the same manner as other judgments entered against garnishees as provided in this chapter: PROVIDED, That if judgment is rendered in favor of the principal defendant, or if any judgment rendered against the principal defendant is satisfied prior to the date of payment specified in an order of payment entered under this subsection, the garnishee shall not be required to make the payment, nor shall any judgment in such case be entered against the garnishee. (3) The court shall, upon request of the plaintiff at the time judgment is rendered against the garnishee or within one year thereafter, or within one year after service of the writ on the garnishee if no judgment is taken against the garnishee, render judgment against the defendant for recoverable garnishment costs and attorney fees. However, if it appears from the answer of garnishee or otherwise that, at the time the writ was issued, the garnishee held no funds, personal property, or effects of the defendant and, in the case of a garnishment on earnings, the defendant was not employed by the garnishee, or, in the case of a writ directed to a financial institution, the defendant maintained no account therein, then the plaintiff may not be awarded judgment against the defendant for such costs or attorney fees. [2003 c 222 § 10; 2000 c 72 § 5; 1988 c 231 § 32; 1987 c 442 § 1025; 1969 ex.s. c 264 § 20. Formerly RCW 7.33.200.] Rules of court: Cf. SPR 91.04W(d). Severability—1988 c 231: See note following RCW 6.01.050. (2006 Ed.) 6.27.265 6.27.260 6.27.260 Execution on judgment against garnishee. Execution may be issued on the judgment against the garnishee in the same manner as upon any other judgment. The amount made upon any such execution shall be paid by the officer executing it to the clerk of the court from which the execution was issued; and, in cases where judgment has been rendered against the defendant, the amount made on the execution shall be applied to the satisfaction of the judgment, interest and costs against the defendant. In case judgment has not been rendered against the defendant at the time execution issued against the garnishee is returned, any amount made on the execution shall be paid to the clerk of the court from which the execution issued, who shall retain the same until judgment is rendered in the action between the plaintiff and defendant. In case judgment is rendered in favor of the plaintiff, the amount made on the execution against the garnishee shall be applied to the satisfaction of such judgment and the surplus, if any, shall be paid to the defendant. In case judgment is rendered in favor of the defendant, the amount made on the execution against the garnishee shall be paid to the defendant. [1987 c 442 § 1026; 1969 ex.s. c 264 § 21. Formerly RCW 7.33.210.] 6.27.265 6.27.265 Form for judgment against garnishee. The judgment on garnishee’s answer or tendered funds, and for costs against defendant, and the order to pay funds shall be substantially in the following form: IN THE . . . . COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF . . . . . ..................... Plaintiff vs. No. . . . . . JUDGMENT AND ORDER TO PAY (Clerk’s Action Required) ..................... Defendant ..................... Garnishee Judgment Summary Judgment Creditor ............ Garnishment Judgment Debtor ............ Garnishment Judgment Amount ............ Costs Judgment Debtor ............ Costs Judgment Amount ............ Judgments to bear interest at ............ Attorney for Judgment Creditor ............ % IT APPEARING THAT garnishee was indebted to defendant in the nonexempt amount of $ . . . . . .; that at the time the writ of garnishment was issued defendant was employed by or maintained a financial institution account with garnishee, or garnishee had in its possession or control funds, personal property, or effects of defendant; and that plaintiff has incurred recoverable costs and attorney fees of $. . . .; now, therefore, it is hereby [Title 6 RCW—page 39] 6.27.270 Title 6 RCW: Enforcement of Judgments ORDERED, ADJUDGED, AND DECREED that plaintiff is awarded judgment against garnishee in the amount of $. . . .; that plaintiff is awarded judgment against defendant in the amount of $ . . . . . . for recoverable costs; that, if this is a superior court order, garnishee shall pay its judgment amount to plaintiff [or to plaintiff’s attorney] through the registry of the court, and the clerk of the court shall note receipt thereof and forthwith disburse such payment to plaintiff [or to plaintiff’s attorney]; that, if this is a district court order, garnishee shall pay its judgment amount to plaintiff directly [or to plaintiff’s attorney], and if any payment is received by the clerk of the court, the clerk shall forthwith disburse such payment to plaintiff [or to plaintiff’s attorney]. Garnishee is advised that the failure to pay its judgment amount may result in execution of the judgment, including garnishment. DONE IN OPEN COURT this . . . . . . day of . . . ., 20. . ...................... Judge/Court Commissioner under the provisions of this section in case the sale had not been made. [1988 c 231 § 33; 1987 c 442 § 1027; 1969 ex.s. c 264 § 22. Formerly RCW 7.33.220.] Severability—1988 c 231: See note following RCW 6.01.050. 6.27.280 6.27.280 Procedure upon failure of garnishee to deliver. If the garnishee, adjudged to have effects or personal property of the defendant in possession or under control as provided in RCW 6.27.270, fails or refuses to deliver them to the sheriff on such demand, the officer shall immediately make return of such failure or refusal, whereupon, on motion of the plaintiff, the garnishee shall be cited to show cause why he or she should not be found in contempt of court for such failure or refusal, and should the garnishee fail to show some good and sufficient excuse for such failure and refusal, he or she shall be fined for such contempt and imprisoned until he or she shall deliver such personal property or effects. [1987 c 442 § 1028; 1969 ex.s. c 264 § 23. Formerly RCW 7.33.230.] Presented by: 6.27.290 ................. Attorney for Plaintiff [2003 c 222 § 11; 2000 c 72 § 6.] 6.27.270 6.27.270 Decree directing garnishee to deliver up effects—Disposition. If it appears from the garnishee’s answer or otherwise that the garnishee had possession or control, when the writ was served, of any personal property or effects of the defendant liable to execution, and if the required return or affidavit showing service on or mailing to the defendant is on file, the court shall render a decree requiring the garnishee to deliver up to the sheriff on demand, and after making arrangements with the sheriff as to time and place of delivery, such personal property or effects or so much of them as may be necessary to satisfy the plaintiff’s claim. If a judgment has been rendered in favor of the plaintiff against the defendant, such personal property or effects may be sold in the same manner as any other property is sold upon an execution issued on said judgment. If judgment has not been rendered in the principal action, the sheriff shall retain possession of the personal property or effects until the rendition of judgment therein, and, if judgment is thereafter rendered in favor of the plaintiff, said personal property or effects, or sufficient of them to satisfy such judgment, may be sold in the same manner as other property is sold on execution, by virtue of an execution issued on the judgment in the principal action. If judgment is rendered in the action against the plaintiff and in favor of the defendant, such effects and personal property shall be returned to the defendant by the sheriff: PROVIDED, HOWEVER, That if such effects or personal property are of a perishable nature, or the interests of the parties will be subserved by making a sale thereof before judgment, the court may order a sale thereof by the sheriff in the same manner as sales upon execution are made, and the proceeds of such sale shall be paid to the clerk of the court that issued the writ, and the same disposition shall be made of the proceeds at the termination of the action as would have been made of the personal property or effects [Title 6 RCW—page 40] 6.27.290 Similarity of names—Procedure. (1) If the garnishee in the answer states that the garnishee at the time of the service of the writ was indebted to or had possession or control of personal property or effects belonging to a person with a name the same as or similar to the name of the defendant, and stating the place of business or residence of said person, and that the garnishee does not know whether or not such person is the same person as the defendant, and prays the court to determine whether or not the person is the same person as the defendant, the court, before rendering judgment against the garnishee defendant as hereinbefore provided, shall conduct a hearing to take proof as to the identity of said persons. (2) Before the hearing on the question of identity, the plaintiff shall cause the court to issue a citation directed to the person identified in the garnishee’s answer, commanding that person to appear before the court from which the citation is issued within ten days after the service of the same, and to answer on oath whether or not he or she is the same person as the defendant in said action. The citation shall be dated and attested in the same manner as a writ of garnishment and be delivered to the plaintiff or the plaintiff’s attorney and shall be served in the same manner as a summons in a civil action is served. (3) If the court finds after hearing that the persons are not the same, the garnishee shall be discharged and shall recover costs against the plaintiff. If the court finds that the persons are the same, it shall make the same kind of judgment as in other cases in which the garnishee is held upon the garnishee’s answer, including provision for garnishee’s costs. (4) If the court finds after the hearing that the defendant or judgment debtor is the same person as the person identified in the garnishee’s answer, it shall be sufficient answer to any claim of said person against the garnishee founded on any indebtedness of the garnishee or on the possession or control by the garnishee of any personal property or effects for the garnishee to show that the indebtedness was paid or the personal property or effects were delivered under the judgment of the court in accordance with the provisions in this chapter. (2006 Ed.) Garnishment [1987 c 442 § 1029; 1969 ex.s. c 264 § 33. Formerly RCW 7.33.330.] 6.27.300 6.27.300 Garnishee protected against claim of defendant. It shall be a sufficient answer to any claim of the defendant against the garnishee founded on any indebtedness of the garnishee or on the possession or control by the garnishee of any personal property or effects, for the garnishee to show that such indebtedness was paid or such personal property or effects were delivered under the judgment of the court in accordance with this chapter. [1987 c 442 § 1030; 1969 ex.s. c 264 § 30. Formerly RCW 7.33.300.] 6.27.310 6.27.310 Dismissal of writ after one year—Notice— Exception. In all cases where it shall appear from the answer of the garnishee that the garnishee was indebted to the defendant when the writ of garnishment was served, no controversion is pending, there has been no discharge or judgment against the garnishee entered, and one year has passed since the filing of the answer of the garnishee, the court, after ten days’ notice in writing to the plaintiff, shall enter an order dismissing the writ of garnishment and discharging the garnishee: PROVIDED, That this provision shall have no effect if the cause of action between plaintiff and defendant is pending on the trial calendar, or if any party files an affidavit that the action is still pending. [1987 c 442 § 1031; 1969 ex.s. c 264 § 27. Formerly RCW 7.33.270.] 6.27.340 6.27.340 6.27.340 Continuing lien on earnings—Captions— Additions to writ and answer forms. (1) Service of a writ for a continuing lien shall comply fully with RCW 6.27.110. (2) The caption of the writ shall be marked "CONTINUING LIEN ON EARNINGS" and the following additional paragraph shall be included in the writ form prescribed in RCW 6.27.100: "THIS IS A WRIT FOR A CONTINUING LIEN. THE GARNISHEE SHALL HOLD the nonexempt portion of the defendant’s earnings due at the time of service of this writ and shall also hold the defendant’s nonexempt earnings that accrue through the last payroll period ending on or before SIXTY days after the date of service of this writ. HOWEVER, IF THE GARNISHEE IS PRESENTLY HOLDING THE NONEXEMPT PORTION OF THE DEFENDANT’S EARNINGS UNDER A PREVIOUSLY SERVED WRIT FOR A CONTINUING LIEN, THE GARNISHEE SHALL HOLD UNDER THIS WRIT only the defendant’s nonexempt earnings that accrue from the date the previously served writ or writs terminate and through the last payroll period ending on or before sixty days after the date of termination of the previous writ or writs. IN EITHER CASE, THE GARNISHEE SHALL STOP WITHHOLDING WHEN THE SUM WITHHELD EQUALS THE AMOUNT STATED IN THIS WRIT OF GARNISHMENT." 6.27.320 6.27.320 Dismissal of garnishment—Duty of plaintiff—Procedure—Penalty—Costs. In any case where garnishee has answered that it is holding funds or property belonging to defendant and plaintiff shall obtain satisfaction of the judgment and payment of recoverable garnishment costs and attorney fees from a source other than the garnishment, upon written demand of the defendant or the garnishee, it shall be the duty of plaintiff to obtain an order dismissing the garnishment and to serve it upon the garnishee within twenty days after the demand or the satisfaction of judgment and payment of costs and fees, whichever shall be later. The attorney of record for the plaintiff may, as an alternative to obtaining a court order dismissing the garnishment, deliver to the garnishee and file with the court an authorization to dismiss the garnishment in whole or part, signed by the attorney, in substantially the form indicated in RCW 6.27.160(3). In the event of the failure of plaintiff to obtain and serve such an order or release, if garnishee continues to hold such funds or property, defendant shall be entitled to move for dismissal of the garnishment and shall further be entitled to a judgment against plaintiff of one hundred dollars plus defendant’s costs and damages. Dismissal may be on ex parte motion of the plaintiff. [2003 c 222 § 12; 2000 c 72 § 7; 1969 ex.s. c 264 § 31. Formerly RCW 7.33.310.] 6.27.330 6.27.330 Continuing lien on earnings—Authorized. A judgment creditor may obtain a continuing lien on earnings by a garnishment pursuant to RCW 6.27.340, 6.27.350, 6.27.360, and *7.33.390. [1987 c 442 § 1032; 1970 ex.s. c 61 § 5. Formerly RCW 7.33.350.] *Reviser’s note: RCW 7.33.390 was repealed by 1987 c 442. Language substantially similar to RCW 7.33.390 was added to RCW 6.27.350. (2006 Ed.) (3) The answer forms served on an employer with the writ shall include in the caption, "ANSWER TO WRIT OF GARNISHMENT FOR CONTINUING LIEN ON EARNINGS," and the following paragraph shall be added to section I of the answer form prescribed in RCW 6.27.190: "If you are withholding the defendant’s nonexempt earnings under a previously served writ for a continuing lien, answer only sections I and II of this form and mail or deliver the forms as directed in the writ. Withhold from the defendant’s future nonexempt earnings as directed in the writ, and a second set of answer forms will be forwarded to you later. ANSWER: I am presently holding the defendant’s nonexempt earnings under a previous writ served on . . . . . . that will terminate not later than . . . . . ., 20 . . . ..................... If you are NOT withholding the defendant’s earnings under a previously served writ for a continuing lien, answer this entire form and mail or deliver the forms as directed in the writ. A second set of answer forms will be forwarded to you later for subsequently withheld earnings." (4) In the event plaintiff fails to comply with this section, employer may elect to treat the garnishment as one not creating a continuing lien. [2003 c 222 § 13; 1988 c 231 § 34; 1987 c 442 § 1033; 1970 ex.s. c 61 § 6. Formerly RCW 7.33.360.] [Title 6 RCW—page 41] 6.27.350 Title 6 RCW: Enforcement of Judgments Severability—1988 c 231: See note following RCW 6.01.050. 6.27.350 6.27.350 Continuing lien on earnings—When lien becomes effective—Termination—Second answer. (1) Where the garnishee’s answer to a garnishment for a continuing lien reflects that the defendant is employed by the garnishee, the judgment or balance due thereon as reflected on the writ of garnishment shall become a lien on earnings due at the time of the effective date of the writ, as defined in this subsection, to the extent that they are not exempt from garnishment, and such lien shall continue as to subsequent nonexempt earnings until the total subject to the lien equals the amount stated on the writ of garnishment or until the expiration of the employer’s payroll period ending on or before sixty days after the effective date of the writ, whichever occurs first, except that such lien on subsequent earnings shall terminate sooner if the employment relationship is terminated or if the underlying judgment is vacated, modified, or satisfied in full or if the writ is dismissed. The "effective date" of a writ is the date of service of the writ if there is no previously served writ; otherwise, it is the date of termination of a previously served writ or writs. (2) At the time of the expected termination of the lien, the plaintiff shall mail to the garnishee three additional stamped envelopes addressed as provided in RCW 6.27.110, and four additional copies of the answer form prescribed in RCW 6.27.190. The plaintiff shall replace the text of section I of the answer form with a statement in substantially the following form: "ANSWER SECTION II OF THIS FORM WITH RESPECT TO THE TOTAL AMOUNT OF EARNINGS WITHHELD UNDER THIS GARNISHMENT, INCLUDING THE AMOUNT, IF ANY, STATED IN YOUR FIRST ANSWER, AND WITHIN TWENTY DAYS AFTER YOU RECEIVE THESE FORMS, MAIL OR DELIVER THEM AS DIRECTED IN THE WRIT." Amount due and owing stated in first answer $ . . . Amount accrued since first answer $... TOTAL AMOUNT WITHHELD $. . . (3) Within twenty days of receipt of the second answer form the garnishee shall file a second answer, in the form as provided in subsection (2) of this section, stating the total amount held subject to the garnishment. [2003 c 222 § 14; 1997 c 296 § 7; 1988 c 231 § 35; 1987 c 442 § 1034; 1970 ex.s. c 61 § 7. Formerly RCW 7.33.370.] Severability—1988 c 231: See note following RCW 6.01.050. shall withhold the remaining nonexempt wages under the lien obtained under RCW 6.27.350. [1997 c 296 § 8; 1989 c 360 § 20; 1987 c 442 § 1035; 1970 ex.s. c 61 § 8. Formerly RCW 7.33.380.] 6.27.370 6.27.370 Notice to federal government as garnishee defendant—Deposit, payment, and endorsement of funds received by the clerk—Fees as recoverable cost. (1) Whenever the federal government is named as a garnishee defendant, the clerk of the court shall, upon submitting a notice in the appropriate form by the plaintiff, issue a notice which directs the garnishee defendant to disburse any nonexempt earnings to the court in accordance with the garnishee defendant’s normal pay and disbursement cycle. (2) Funds received by the clerk from a garnishee defendant may be deposited into the registry of the court or, in the case of negotiable instruments, may be retained in the court file. Upon presentation of an order directing the clerk to disburse the funds received, the clerk shall pay or endorse the funds over to the party entitled to receive the funds. Except for good cause shown, the funds shall not be paid or endorsed to the plaintiff prior to the expiration of any minimum statutory period allowed to the defendant for filing an exemption claim. (3) The plaintiff shall, in the same manner permitted for service of the writ of garnishment, provide to the garnishee defendant a copy of the notice issued by the clerk and an envelope addressed to the court, and shall supply to the garnished party a copy of the notice. (4) Any answer or processing fees charged by the garnishee defendant to the plaintiff under federal law shall be a recoverable cost under RCW 6.27.090. (5) The notice to the federal government garnishee shall be in substantially the following form: IN THE . . . . . . COURT OF THE STATE OF WASHINGTON IN AND FOR . . . . . . COUNTY ................., Plaintiff, vs. NO . . . . . . NOTICE TO FEDERAL GOVERNMENT GARNISHEE DEFENDANT 6.27.360 6.27.360 Continuing lien on earnings—Priorities— Exceptions. (1) Except as provided in subsection (2) of this section, a lien obtained under RCW 6.27.350 shall have priority over any subsequent garnishment lien or wage assignment except that service of a writ shall not be effective to create a continuing lien with such priority if a writ in the same case is pending at the time of the service of the new writ. (2) A lien obtained under RCW 6.27.350 shall not have priority over a notice of payroll deduction issued under RCW 26.23.060 or a wage assignment or other garnishment for child support issued under chapters 26.18 and 74.20A RCW. Should nonexempt wages remain after deduction of all amounts owing under a notice of payroll deduction, wage assignment, or garnishment for child support, the garnishee [Title 6 RCW—page 42] ................., Defendant, ................., Garnishee Defendant. TO: THE GOVERNMENT OF THE UNITED STATES AND ANY DEPARTMENT, AGENCY, OR DIVISION THEREOF You have been named as the garnishee defendant in the above-entitled cause. A Writ of Garnishment accompanies this Notice. The Writ of Garnishment directs you to hold the nonexempt earnings of the named defendant, but does not instruct you to disburse the funds you hold. (2006 Ed.) Commissioners to Convey Real Estate BY THIS NOTICE THE COURT DIRECTS YOU TO WITHHOLD ALL NONEXEMPT EARNINGS AND DISBURSE THEM IN ACCORDANCE WITH YOUR NORMAL PAY AND DISBURSEMENT CYCLE, TO THE FOLLOWING: . . . . . . County . . . . . . Court Clerk Cause No . . . . . . . ............................ (Address) 6.32.010 the action or proceeding. [Code 1881 § 531; 1877 p 112 § 535; 1854 p 205 § 393; RRS § 608.] 6.28.050 Approval of court necessary. A conveyance by a commissioner shall not pass any right until it has been examined and approved by the court, which approval shall be indorsed on the conveyance and recorded with it. [Code 1881 § 532; 1877 p 112 § 536; 1854 p 205 § 394; RRS § 609.] 6.28.050 6.28.060 Execution of conveyance. It shall be sufficient for the conveyance to be signed by the commissioner only, without affixing the name of the parties whose title is conveyed, but the names of the parties shall be recited in the body of the conveyance. [Code 1881 § 533; 1877 p 112 § 537; 1854 p 205 § 395; RRS § 610.] 6.28.060 PLEASE REFERENCE THE DEFENDANT EMPLOYEE’S NAME AND THE ABOVE CAUSE NUMBER ON ALL DISBURSEMENTS. The enclosed Writ also directs you to respond to the Writ within twenty (20) days, but you are allowed thirty (30) days to respond under federal law. 6.28.070 Recording. The conveyance shall be recorded in the office in which by law it should have been recorded had it been made by the parties whose title is conveyed by it. [Code 1881 § 534; 1877 p 112 § 538; 1854 p 205 § 396; RRS § 611.] 6.28.070 DATED this . . . . day of . . . . . ., 19 . . . ................ Clerk of the Court [1997 c 296 § 9.] 6.28.080 Compelling performance. In case of a judgment to compel a party to execute a conveyance of real estate, the court may enforce the judgment by attachment or sequestration, or appoint a commissioner to make the conveyance. [Code 1881 § 535; 1877 p 112 § 539; 1854 p 205 § 397; RRS § 612.] 6.28.080 Chapter 6.28 RCW COMMISSIONERS TO CONVEY REAL ESTATE Chapter 6.28 Sections 6.28.010 6.28.020 6.28.030 6.28.040 6.28.050 6.28.060 6.28.070 6.28.080 Court may appoint, when. Contents of deed. Effect of conveyance pursuant to judgment. Effect of conveyance pursuant to order of sale. Approval of court necessary. Execution of conveyance. Recording. Compelling performance. Rules of court: Cf. CR 70. 6.28.010 6.28.010 Court may appoint, when. The several superior courts may, whenever it is necessary, appoint a commissioner to convey real estate: (1) When by a judgment in an action, a party is ordered to convey real property to another, or any interest therein. (2) When real property, or any interest therein, has been sold under a special order of the court and the purchase money paid therefor. [Code 1881 § 528; 1877 p 111 § 532; 1854 p 205 § 390; RRS § 605.] 6.28.020 6.28.020 Contents of deed. The deed of the commissioner shall so refer to the judgment authorizing the conveyance, that the same may be readily found, but need not recite the record in the case generally. [Code 1881 § 529; 1877 p 112 § 533; 1854 p 205 § 391; RRS § 606.] 6.28.030 6.28.030 Effect of conveyance pursuant to judgment. A conveyance made in pursuance of a judgment shall pass to the grantee the title of the parties ordered to convey the land. [Code 1881 § 530; 1877 p 112 § 534; 1854 p 205 § 392; RRS § 607.] 6.28.040 6.28.040 Effect of conveyance pursuant to order of sale. A conveyance made in pursuance of a sale ordered by the court, shall pass to the grantee the title of all the parties to (2006 Ed.) Chapter 6.32 RCW PROCEEDINGS SUPPLEMENTAL TO EXECUTION Chapter 6.32 Sections 6.32.010 6.32.015 6.32.020 6.32.030 6.32.040 6.32.050 6.32.060 6.32.070 6.32.080 6.32.085 6.32.090 6.32.100 6.32.110 6.32.120 6.32.130 6.32.140 6.32.150 6.32.160 6.32.170 6.32.180 6.32.190 6.32.200 6.32.210 6.32.220 6.32.240 6.32.250 6.32.260 6.32.270 6.32.280 Order for examination of judgment debtor—Plaintiff entitled to costs—Additional fees if debtor fails to answer or appear. Order to require judgment debtor to answer interrogatories. Warrant, how vacated. Third parties may be brought in for examination. Before whom examined. Procedure on examination. Referee’s oath. Order authorizing payment by debtor of judgment debtor. Order requiring delivery of money or property to sheriff. Order charging partnership interest or directing sale. Powers of sheriff. How money or property applied by sheriff. Disposition of balance after judgment satisfied. Transfer of property may be enjoined. Service of orders. Service of warrant. Discontinuance or dismissal of proceedings. Costs to judgment creditor. Costs to judgment debtor, when. Disobedience of order punishable as contempt. Attendance of judgment debtor. Party or witness not excused from answering. Proceedings in case of joint debtors. Continuances. Proceedings, before whom instituted. Property exempt from seizure. Proceedings to be heard without jury. Adjudication of title to property—Jury trial. Fee of referee. Rules of court: Cf. CR 69(b). 6.32.010 Order for examination of judgment debtor—Plaintiff entitled to costs—Additional fees if debtor fails to answer or appear. At any time within ten 6.32.010 [Title 6 RCW—page 43] 6.32.015 Title 6 RCW: Enforcement of Judgments years after entry of a judgment for the sum of twenty-five dollars or over, unless the time is extended in accordance with RCW 6.17.020(3), upon application by the judgment creditor such court or judge may, by an order, require the judgment debtor to appear at a specified time and place before the judge granting the order, or a referee appointed by the judge, to answer concerning the same; and the judge to whom application is made under this chapter may, if it is made to appear to him or her by the affidavit of the judgment creditor, his or her agent or attorney that there is danger of the debtor absconding, order the sheriff to arrest the debtor and bring him or her before the judge granting the order. Upon being brought before the judge, he or she may be ordered to enter into a bond, with sufficient sureties, that he or she will attend from time to time before the judge or referee, as shall be directed, during the pendency of the proceedings and until the final termination thereof. If the judgment debtor or other persons against whom the special proceedings are instituted has been served with these proceedings, the plaintiff shall be entitled to costs of service, notary fees, and an appearance fee of twenty-five dollars. If the judgment debtor or other persons fail to answer or appear, the plaintiff shall additionally be entitled to reasonable attorney fees. If a plaintiff institutes special proceedings and fails to appear, a judgment debtor or other person against whom the proceeding was instituted who appears is entitled to an appearance fee of twenty-five dollars and reasonable attorney fees. [1994 c 189 § 4; 1985 c 215 § 1; 1983 1st ex.s. c 45 § 6; 1980 c 105 § 5; 1971 ex.s. c 211 § 1; 1957 c 8 § 7; 1899 c 93 § 1; 1893 c 133 § 1; RRS § 613.] Application—1980 c 105: See note following RCW 4.16.020. 6.32.015 6.32.015 Order to require judgment debtor to answer interrogatories. At any time within ten years after entry of a judgment for a sum of twenty-five dollars or over, unless the time is extended in accordance with RCW 6.17.020(3), upon application by the judgment creditor such court or judge may, by order served on the judgment debtor, require such debtor to answer written interrogatories, under oath, in such form as may be approved by the court. No such creditor shall be required to proceed under this section nor shall he or she waive his or her rights to proceed under RCW 6.32.010 by proceeding under this section. [1994 c 189 § 5; 1980 c 105 § 6; 1971 ex.s. c 211 § 2.] Application—1980 c 105: See note following RCW 4.16.020. 6.32.020 6.32.020 Warrant, how vacated. A warrant issued as prescribed in RCW 6.32.010 may be vacated or modified by the judge making the same, or by the court out of which the execution was issued, upon giving three days’ notice to the opposite party. [1893 c 133 § 2; RRS § 614.] 6.32.030 6.32.030 Third parties may be brought in for examination. Any person may be made a party to a supplemental proceeding by service of a like order in like manner as that required to be served upon the judgment debtor, and upon proof by affidavit or otherwise, to the satisfaction of the judge, that execution has been issued and return made thereon wholly or partially unsatisfied, and also that any person or corporation has personal property of the judgment debtor of the value of twenty-five dollars or over, or is [Title 6 RCW—page 44] indebted to him in said amount, or is holding the title to real estate for the judgment debtor, or has knowledge concerning the property interests of the judgment debtor, the judge may make an order requiring such person or corporation, or an officer thereof, to appear at a specified time and place before him, or a referee appointed by him, and answer concerning the same. [1923 c 160 § 1; 1893 c 133 § 3; RRS § 615.] 6.32.040 6.32.040 Before whom examined. An order requiring a person to attend and be examined, made pursuant to any provision of this chapter, must require him so to attend and be examined either before the judge to whom the order is returnable or before a referee designated therein. Where the examination is taken before a referee, he must certify to the judge to whom the order is returnable all of the evidence and other proceedings taken before him. [1893 c 133 § 4; RRS § 616.] 6.32.050 6.32.050 Procedure on examination. Upon an examination made under this chapter, the answer of the party or witness examined must be under oath. A corporation must attend by and answer under the oath of an officer thereof, and the judge may, in his discretion, specify the officer. Either party may be examined as a witness in his own behalf, and may produce and examine other witnesses as upon the trial of an action. The judge or referee may adjourn any proceedings under this chapter, from time to time, as he thinks proper. [1893 c 133 § 5; RRS § 617.] 6.32.060 6.32.060 Referee’s oath. Unless the parties expressly waive the referee’s oath, a referee appointed as prescribed in this chapter must, before entering upon an examination or taking testimony, subscribe and take an oath that he will faithfully and fairly discharge his duty upon the reference, and make a just and true report according to the best of his understanding. The oath must be returned to the judge with the report of the testimony. [1893 c 133 § 6; RRS § 618.] 6.32.070 6.32.070 Order authorizing payment by debtor of judgment debtor. At any time after the commencement of a special proceeding authorized by this chapter, and before the appointment of a receiver therein, or the extension of a receivership thereto, the judge by whom the order or warrant was granted or to whom it is made returnable, may in his discretion upon proof by affidavit to his satisfaction that a person or corporation is indebted to the judgment debtor, and upon such notice given to such person or corporation as he deems just, or without notice make an order permitting the person or corporation to pay the sheriff designated in the order a sum on account of the alleged indebtedness not exceeding the sum which will satisfy the execution. A payment thus made is to the extent thereof a discharge of the indebtedness except as against a transferee from the judgment debtor in good faith, and for a valuable consideration, of whose rights the person or corporation had actual or constructive notice when the payment was made. [1893 c 133 § 7; RRS § 619.] 6.32.080 6.32.080 Order requiring delivery of money or property to sheriff. Where it appears from the examination or testimony taken in the special proceedings authorized by this (2006 Ed.) Proceedings Supplemental to Execution chapter that the judgment debtor has in his possession or under his control money or other personal property belonging to him, or that one or more articles of personal property capable of manual delivery, his right to the possession whereof is not substantially disputed, are in the possession or under the control of another person, the judge by whom the order or warrant was granted, or to whom it is returnable, may in his discretion, and upon such notice given to such persons as he deems just, or without notice, make an order directing the judgment debtor, or other person, immediately to pay the money or deliver the articles of personal property to a sheriff designated in the order, unless a receiver has been appointed or a receivership has been extended to the special proceedings, and in that case to the receiver. [1893 c 133 § 8; RRS § 620.] 6.32.085 6.32.085 Order charging partnership interest or directing sale. If it appears from the examination or testimony taken in the special proceedings authorized by this chapter that the judgment debtor owns an interest in a partnership, the judge who granted the order or warrant or to whom it is returnable may in his or her discretion, upon such notice to other partners as the judge deems just, and to the extent permitted by Title 25 RCW, (1) enter an order charging the partnership interest with payment of the judgment, directing that all or any part of distributions or other amounts becoming due to the judgment debtor, other than earnings as defined in RCW 6.27.010, be paid to a receiver if one has been appointed, otherwise to the clerk of the court that entered the judgment, for application to payment of the judgment in the same manner as proceeds from sale on execution and, in aid of the charging order, the court may make such other orders as a case requires, or (2) enter an order directing sale of the partnership interest in the same manner as personal property is sold on execution. [1987 c 442 § 1114.] 6.32.090 6.32.090 Powers of sheriff. If the sheriff to whom money is paid or other property is delivered, pursuant to an order made as prescribed in RCW 6.32.080, does not then hold an execution upon the judgment against the property of the judgment debtor, he has the same rights and power, and is subject to the same duties and liabilities with respect to the money or property, as if the money had been collected or the property had been levied upon by him by virtue of such an execution, except as provided in RCW 6.32.100. [1893 c 133 § 9; RRS § 621.] 6.32.100 6.32.100 How money or property applied by sheriff. Unless a receiver has been appointed or extended with respect to money or property in the hands of the sheriff, the judge may direct the sheriff to apply the money, the property, or the proceeds of the property, upon an execution in favor of the judgment creditor issued either before or after the payment or delivery to the sheriff. [2004 c 165 § 34; 1893 c 133 § 10; RRS § 622.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 6.32.110 6.32.110 Disposition of balance after judgment satisfied. Where money is paid or property is delivered as pre(2006 Ed.) 6.32.150 scribed in RCW 6.32.070, 6.32.080, 6.32.090 and 6.32.100 and afterwards the special proceeding is discontinued or dismissed, or the judgment is satisfied without resorting to the money or property, or a balance of the money or of the proceeds of the property, or a part of the property remains in the sheriff’s or receiver’s hands after satisfying the judgment and the costs and expenses of the special proceeding, the judge must make an order directing the sheriff or receiver to pay the money or deliver the property so remaining in his hands to the debtor, or to such other person as appears to be entitled thereto, upon payment of his fees and all other sums legally chargeable against the same. [1893 c 133 § 11; RRS § 623.] 6.32.120 6.32.120 Transfer of property may be enjoined. The judge by whom the order or warrant was granted or to whom it is returnable may make an injunction order restraining any person or corporation, whether a party or not a party to the special proceeding, from making or suffering any transfer or other disposition of or interference with the property of the judgment debtor or the property or debt concerning which any person is required to attend and be examined, until further direction in the premises. Such an injunction may be made simultaneously with the order or warrant by which the special proceeding is instituted, and upon the same papers or afterwards, upon an affidavit showing sufficient grounds therefor. The judge or court may, as a condition of granting an application to vacate or modify the injunction order require the applicant to give security in such sum and in such manner as justice requires. [1893 c 133 § 12; RRS § 624.] 6.32.130 6.32.130 Service of orders. An injunction order or an order requiring a person to attend and be examined made as prescribed in this chapter must be served by delivering to the person to be served a certified copy of the original order and a copy of the affidavit on which it was made. In the case of an order requiring a person to attend and be examined and not imposing injunctive restraints, a noncertified copy may be served if the noncertified copy bears a stamp or notation indicating the name of the judge or commissioner who signed the original order, and a stamp or notation indicating the original order has been filed with the court. Service upon a corporation is sufficient if made upon an officer, to whom a copy of a summons must be delivered. Where an order is personally served upon a corporation, unless the officer to be served is specially designated in the order, the order may be served upon any person upon whom a summons can be served. [1995 c 73 § 1; 1925 ex.s. c 38 § 1; 1893 c 133 § 13; RRS § 625.] 6.32.140 6.32.140 Service of warrant. The sheriff, when he arrests a judgment debtor by virtue of a warrant issued as prescribed in this chapter, must deliver to him a copy of the warrant and of the affidavit upon which it was granted. [1893 c 133 § 14; RRS § 626.] 6.32.150 6.32.150 Discontinuance or dismissal of proceedings. A special proceeding instituted as prescribed in this chapter may be discontinued at any time upon such terms as justice requires, by an order of the judge made upon the application of the judgment creditor. Where the judgment creditor unrea[Title 6 RCW—page 45] 6.32.160 Title 6 RCW: Enforcement of Judgments sonably delays or neglects to proceed, or where it appears that the judgment has been satisfied, the special proceedings may be dismissed upon like terms by a like order made upon the application of the judgment debtor, or of plaintiff in a judgment creditor’s action against the debtor, or of a judgment creditor who has instituted either of the special proceedings authorized by this chapter. [2004 c 165 § 35; 1893 c 133 § 15; RRS § 627.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 6.32.160 6.32.160 Costs to judgment creditor. The judge may make an order allowing to the judgment creditor a fixed sum as costs, consisting of his witness fees and referee’s fees and other disbursements, and of a sum in addition thereto not exceeding twenty-five dollars, and directing the payment thereof out of any money which has come or may come to the hands of the receiver or of the sheriff within a time specified in the order. [1893 c 133 § 16; RRS § 628.] 6.32.170 6.32.170 Costs to judgment debtor, when. Where the judgment debtor or other person against whom the special proceeding is instituted has been examined, and property applicable to the payment of the judgment has not been discovered, the judge may make an order allowing him a sum, not to exceed twenty-five dollars, as costs, provided that any such sum so allowed the judgment debtor, shall be set off against the amount due the judgment creditor on his judgment. [1923 c 160 § 2; 1893 c 133 § 17; RRS § 629.] 6.32.180 6.32.180 Disobedience of order punishable as contempt. A person who refuses, or without sufficient excuse neglects, to obey an order of a judge or referee made pursuant to any of the provisions of this chapter, and duly served upon him, or an oral direction given directly to him by a judge or referee in the course of the special proceeding, or to attend before a judge or referee according to the command of a subpoena duly served upon him, may be punished by the judge of the court out of which the execution issued, as for contempt. [1893 c 133 § 18; RRS § 630.] 6.32.190 6.32.190 Attendance of judgment debtor. A judgment debtor who resides or does business in the state cannot be compelled to attend pursuant to an order made under the provisions of this chapter at a place without the county where his residence or place of business is situated. Where the judgment debtor to be examined under this chapter is a corporation the court may cause such corporation to appear and be examined by making like order or orders as are prescribed in this chapter, directed to any officer or officers thereof. [1893 c 133 § 19; RRS § 631.] 6.32.200 6.32.200 Party or witness not excused from answering. A party or witness examined in a special proceeding authorized by this chapter is not excused from answering a question on the ground that his examination will tend to convict him of a commission of a fraud, or to prove that he has been a party to or privy to or knowing of a conveyance, assignment, transfer or other disposition of property for any purpose; or that he or another person claims to be entitled as [Title 6 RCW—page 46] against the judgment creditor or receiver appointed or to be appointed in the special proceeding to hold property derived from or through the judgment debtor, or to be discharged from the payment of a debt which was due to the judgment debtor or to a person in his behalf. But an answer cannot be used as evidence against the person so answering in a criminal action or criminal proceeding. [1893 c 133 § 20; RRS § 632.] 6.32.210 6.32.210 Proceedings in case of joint debtors. When, in proceedings under this chapter, personal service of the summons in the action was not made on all of the defendants, a debt due to, or other personal property owned by, one or more of the defendants not summoned jointly with the defendants summoned, or with any of them, may be reached by proceedings under this chapter. [1893 c 133 § 21; RRS § 633.] 6.32.220 6.32.220 Continuances. A special proceeding under this chapter instituted before one judge may be continued from time to time before another judge of the same court with like effect as if it had been instituted or commenced before the judge who last heard the same. [1893 c 133 § 22; RRS § 634.] 6.32.240 6.32.240 Proceedings, before whom instituted. Special proceedings under this chapter may be instituted and prosecuted before the superior or district court of the county in which the judgment was entered or any judge thereof, or before the superior or district court of any county to the sheriff of which an execution has been issued or in which a transcript of said judgment has been filed in the office of the clerk of said court or before any judge thereof. [1981 c 193 § 2; 1899 c 93 § 2; 1893 c 133 § 24; RRS § 636.] 6.32.250 6.32.250 Property exempt from seizure. This chapter does not authorize the seizure of, or other interference with, (1) any property which is expressly exempt by law from levy and sale by virtue of an execution, attachment, or garnishment; or (2) any money, thing in action or other property held in trust for a judgment debtor where the trust has been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor; or (3) the earnings of the judgment debtor for personal services to the extent they would be exempt against garnishment of the employer under RCW 6.27.150. For purposes of this section, a person shall not be treated as having made a disposition in trust for the use of that person by reason of a lapse of a power of withdrawal over the income or corpus of a trust created by another person. For this purpose, notification to the trustee of the trust of an intent not to exercise the power of withdrawal shall not be treated as a release of the power of withdrawal, but shall be treated as a lapse of the power. [2006 c 360 § 13; 1987 c 442 § 1115; 1893 c 133 § 25; RRS § 637.] Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. 6.32.260 6.32.260 Proceedings to be heard without jury. Proceedings under this chapter are special proceedings, and shall be heard by the judge or referee before whom the same are (2006 Ed.) Uniform Enforcement of Foreign Judgments Act returnable without a jury, except as provided in RCW 6.32.270. [1923 c 160 § 3; 1893 c 133 § 26; RRS § 638.] 6.32.270 6.32.270 Adjudication of title to property—Jury trial. In any supplemental proceeding, where it appears to the court that a judgment debtor may have an interest in or title to any real property, and such interest or title is disclaimed by the judgment debtor or disputed by another person, or it appears that the judgment debtor may own or have a right of possession to any personal property, and such ownership or right of possession is substantially disputed by another person, the court may, if the person or persons claiming adversely be a party to the proceeding, adjudicate the respective interests of the parties in such real or personal property, and may determine such property to be wholly or in part the property of the judgment debtor. If the person claiming adversely to the judgment debtor be not a party to the proceeding, the court shall by show cause order or otherwise cause such person to be brought in and made a party thereto, and shall set such proceeding for hearing on the first open date in the trial calendar. Any person so made a party, or any party to the original proceeding, may have such issue determined by a jury upon demand therefor and payment of a jury fee as in other civil actions: PROVIDED, That such person would be entitled to a jury trial if the matter was adjudicated in a separate action. [1923 c 160 § 4; RRS § 638-1.] 6.32.280 6.32.280 Fee of referee. The fees of referees appointed in proceedings under this chapter shall be five dollars per day. [1893 c 133 § 27; RRS § 639.] 6.36.035 6.36.025 6.36.025 Filing of foreign judgment—Authorized— Effect. (1) A copy of any foreign judgment authenticated in accordance with the act of congress or the statutes of this state may be filed in the office of the clerk of any superior court of any county of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the superior court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, setoffs, counterclaims, cross-complaints, and proceedings for reopening, vacating, staying, or extending as a judgment of a superior court of this state and may be enforced, extended, or satisfied in like manner. (2) Alternatively, a copy of any foreign judgment (a) authenticated in accordance with the act of congress or the statutes of this state, and (b) within the civil jurisdiction and venue of the district court as provided in RCW 3.66.020, 3.66.030, and 3.66.040, may be filed in the office of the clerk of any district court of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the district court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, setoffs, counterclaims, cross-complaints, and proceedings for reopening, vacating, staying, transcribing, or extending as a judgment of a district court of this state, and may be enforced, transcribed, extended, or satisfied in like manner. (3) The lien of any judgment filed under subsection (1) or (2) of this section shall be governed by chapter 4.56 RCW and RCW 6.17.020. [2002 c 261 § 4; 1994 c 185 § 6; 1977 ex.s. c 45 § 1.] 6.36.035 Chapter 6.36 RCW UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT Chapter 6.36 Sections 6.36.010 6.36.025 6.36.035 6.36.045 6.36.130 6.36.140 6.36.150 6.36.160 6.36.900 6.36.910 Definitions. Filing of foreign judgment—Authorized—Effect. Affidavit of last address of judgment debtor, creditor—Filing—Notice of filing of judgment—Contents—Effect. Effect of appeal from or stay of execution of foreign judgment—Grounds for stay of enforcement. Sale under levy. Interest and costs. Satisfaction of judgment. Optional procedure. Construction—1953 c 191. Short title. Rules of court: Cf. CR 69(a). Foreign judgments for debt, faith accorded: RCW 5.44.020. Uniform judicial notice of foreign laws act: Chapter 5.24 RCW. 6.36.010 6.36.010 Definitions. As used in this chapter: (1) "Foreign judgment" means any judgment, decree or order of a court of the United States or of any state or territory which is entitled to full faith and credit in this state. (2) "Register" means to file a foreign judgment in a court of this state. (3) "Levy" means to take control of or create a lien upon property under any judicial writ or process whereby satisfaction of a judgment may be enforced against such property. (4) "Judgment debtor" means the party against whom a foreign judgment has been rendered. [1953 c 191 § 1.] (2006 Ed.) 6.36.035 Affidavit of last address of judgment debtor, creditor—Filing—Notice of filing of judgment— Contents—Effect. (1) At the time of the filing of the foreign judgment, the judgment creditor or the judgment creditor’s lawyer shall make and file with the clerk of court an affidavit setting forth the name and last known post office address of the judgment debtor, the judgment creditor, and the filing and expiration date of the judgment in the originating jurisdiction. (2) Promptly upon the filing of the foreign judgment and the affidavit, the judgment creditor shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given. The notice shall include the name and post office address of the judgment creditor and the judgment creditor’s lawyer if any in this state. In addition, the judgment creditor shall file proof of mailing with the clerk. (3)(a) No execution or other process for enforcement of a foreign judgment filed in the office of the clerk of a superior court shall be allowed until ten days after the proof of mailing has been filed with the clerk by the judgment creditor. (b) No execution or other process for enforcement of a foreign judgment filed in the office of the clerk of a district court shall be allowed until fourteen days after the proof of mailing has been filed with the clerk by the judgment creditor. (c) Nothing in this section may be interpreted to extend the expiration date of a foreign judgment beyond the expiration date under the laws of the jurisdiction where the judgment originated. [2003 c 43 § 2; 1997 c 358 § 1; 1994 c 185 § 7; 1979 c 97 § 1; 1977 ex.s. c 45 § 2.] [Title 6 RCW—page 47] 6.36.045 Title 6 RCW: Enforcement of Judgments 6.36.045 6.36.045 Effect of appeal from or stay of execution of foreign judgment—Grounds for stay of enforcement. (1)(a) If the judgment debtor shows the superior court of any county that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered. (b) If the judgment debtor shows the superior court of any county any ground upon which enforcement of a judgment of a superior court of any county of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state. (2)(a) If the judgment debtor shows the district court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered. (b) If the judgment debtor shows the district court any ground upon which enforcement of a judgment of a district court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state. [1994 c 185 § 8; 1977 ex.s. c 45 § 3.] 6.36.130 6.36.130 Sale under levy. Sale under the levy may be held at any time after final judgment, either personal or QUASI IN REM, but not earlier except as otherwise provided by law for sale under levy on perishable goods. Sale and distribution of the proceeds shall be made in accordance with the law of this state. [1953 c 191 § 13.] 6.36.140 6.36.140 Interest and costs. When a registered foreign judgment becomes a final judgment of this state, the court shall include as part of the judgment interest payable on the foreign judgment under the law of the state in which it was rendered, and the cost of obtaining the authenticated copy of the original judgment. The court shall include as part of its judgment court costs incidental to the proceeding in accordance with the law of this state. [1953 c 191 § 14.] 6.36.900 6.36.900 Construction—1953 c 191. This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it. [1953 c 191 § 17.] 6.36.910 6.36.910 Short title. This chapter may be cited as the "Uniform Enforcement of Foreign Judgments Act." [1953 c 191 § 18.] Chapter 6.40 RCW UNIFORM FOREIGN MONEY-JUDGMENTS RECOGNITION ACT Chapter 6.40 Sections 6.40.010 6.40.020 6.40.030 6.40.040 6.40.050 6.40.060 6.40.070 6.40.900 6.40.905 6.40.910 6.40.915 Definitions. Applicability. Recognition and enforcement. Grounds for nonrecognition. Personal jurisdiction. Stay in case of appeal. Saving clause. Uniformity of interpretation. Short title. Application to judgments in effect on effective date. Section headings. 6.40.010 6.40.010 Definitions. As used in this chapter: (1) "Foreign state" means any governmental unit other than the United States, or any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands; (2) "Foreign judgment" means any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family matters. [1975 1st ex.s. c 240 § 1.] 6.40.020 6.40.020 Applicability. This chapter applies to any foreign judgment that is final and conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal. [1975 1st ex.s. c 240 § 2.] 6.40.030 6.40.030 Recognition and enforcement. Except as provided in RCW 6.40.040, a foreign judgment meeting the requirements of RCW 6.40.020 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit. [1975 1st ex.s. c 240 § 3.] 6.36.150 6.36.150 Satisfaction of judgment. Satisfaction, either partial or complete, of the original judgment or of a judgment entered thereupon in any other state shall operate to the same extent as satisfaction of the judgment in this state, except as to costs authorized by RCW 6.36.140. [1953 c 191 § 15.] 6.36.160 6.36.160 Optional procedure. The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this chapter remains unimpaired. [1953 c 191 § 16.] [Title 6 RCW—page 48] 6.40.040 6.40.040 Grounds for nonrecognition. (1) A foreign judgment is not conclusive if (a) the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law; (b) the foreign court did not have personal jurisdiction over the defendant; or (c) the foreign court did not have jurisdiction over the subject matter. (2) A foreign judgment need not be recognized if (2006 Ed.) Uniform Foreign-Money Claims Act (a) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend; (b) the judgment was obtained by fraud; (c) the claim for relief on which the judgment is based is repugnant to the public policy of this state; (d) the judgment conflicts with another final and conclusive judgment; (e) the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or (f) in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action. [1975 1st ex.s. c 240 § 4.] 6.44.010 6.40.905 Short title. This chapter may be cited as the Uniform Foreign Money-Judgments Recognition Act. [1975 1st ex.s. c 240 § 9.] 6.40.905 6.40.910 Application to judgments in effect on effective date. This chapter shall apply to all foreign judgments in effect on the date this chapter becomes effective as well as all judgments rendered after such date. [1975 1st ex.s. c 240 § 10.] 6.40.910 Effective date—1975 1st ex.s. c 240: September 8, 1975, see preface to 1975 session laws. 6.40.915 Section headings. Section headings as used in this act shall not constitute part of the law. [1975 1st ex.s. c 240 § 12.] 6.40.915 Chapter 6.44 RCW UNIFORM FOREIGN-MONEY CLAIMS ACT Chapter 6.44 6.40.050 6.40.050 Personal jurisdiction. (1) The foreign judgment shall not be refused recognition for lack of personal jurisdiction if (a) the defendant was served personally in the foreign state; (b) the defendant voluntarily appeared in the proceedings, other than for the purpose of protecting property seized or threatened with seizure in the proceedings or of contesting the jurisdiction of the court over him; (c) the defendant prior to the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved; (d) the defendant was domiciled in the foreign state when the proceedings were instituted, or, being a body corporate had its principal place of business, was incorporated, or had otherwise acquired corporate status, in the foreign state; (e) the defendant had a business office in the foreign state and the proceedings in the foreign court involved a claim for relief arising out of business done by the defendant through that office in the foreign state; or (f) the defendant operated a motor vehicle or airplane in the foreign state and the proceedings involved a claim for relief arising out of such operation. (2) The courts of this state may recognize other bases of jurisdiction. [1975 1st ex.s. c 240 § 5.] 6.40.060 6.40.060 Stay in case of appeal. If the defendant satisfies the court either that an appeal is pending or that he is entitled and intends to appeal from the foreign judgment, the court may stay the proceedings until the appeal has been determined or until the expiration of a period of time sufficient to enable the defendant to prosecute the appeal. [1975 1st ex.s. c 240 § 6.] 6.40.070 6.40.070 Saving clause. This chapter does not prevent the recognition of a foreign judgment in situations not covered by this chapter. [1975 1st ex.s. c 240 § 7.] 6.40.900 6.40.900 Uniformity of interpretation. This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it. [1975 1st ex.s. c 240 § 8.] (2006 Ed.) Sections 6.44.010 6.44.020 6.44.030 6.44.040 6.44.050 6.44.060 6.44.070 6.44.080 6.44.090 6.44.100 6.44.110 6.44.120 6.44.130 6.44.140 6.44.901 6.44.902 6.44.903 6.44.904 Definitions. Scope. Variation by agreement. Determining money of the claim. Determining amount of the money of certain contract claims. Asserting and defending foreign-money claim. Judgments and awards on foreign-money claims—Times of money conversion—Form of judgment. Conversions of foreign money in distribution proceeding. Prejudgment and judgment interest. Enforcement of foreign judgments. Determining United States dollar value of foreign-money claims for limited purposes. Effect of currency revalorization. Supplementary general principles of law. Uniformity of application and construction. Short title. Effective date—1991 c 153. Severability—1991 c 153. Prospective application. 6.44.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter: (1) "Action" means a judicial proceeding or arbitration in which a payment in money may be awarded or enforced with respect to a foreign-money claim. (2) "Bank-offered spot rate" means the spot rate of exchange at which a bank will sell foreign money at a spot rate. (3) "Conversion date" means the banking day next preceding the date on which money, in accordance with this chapter, is: (a) Paid to a claimant in an action or distribution proceeding; (b) Paid to the official designated by law to enforce a judgment or award on behalf of a claimant; or (c) Used to recoup, set off, or counterclaim in different moneys in an action or distribution proceeding. (4) "Distribution proceeding" means a judicial or nonjudicial proceeding for the distribution of a fund in which one or more foreign-money claims is asserted and includes an accounting, an assignment for the benefit of creditors, a foreclosure, the liquidation or rehabilitation of a corporation or other entity, and the distribution of an estate, trust, or other fund. 6.44.010 [Title 6 RCW—page 49] 6.44.020 Title 6 RCW: Enforcement of Judgments (5) "Foreign money" means money other than money of the United States of America. (6) "Foreign-money claim" means a claim upon an obligation to pay, or a claim for recovery of a loss, expressed in or measured by a foreign money. (7) "Money" means a medium of exchange for the payment of obligations or a store of value authorized or adopted by a government or by intergovernmental agreement. (8) "Money of the claim" means the money determined as proper pursuant to RCW 6.44.040. (9) "Person" means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, joint venture, partnership, association, two or more persons having a joint or common interest, or any other legal or commercial entity. (10) "Rate of exchange" means the rate at which money of one country may be converted into money of another country in a free financial market convenient to or reasonably usable by a person obligated to pay or to state a rate of conversion. If separate rates of exchange apply to different kinds of transactions, the term means the rate applicable to the particular transaction giving rise to the foreign-money claim. (11) "Spot rate" means the rate of exchange at which foreign money is sold by a bank or other dealer in foreign exchange for immediate or next day availability or for settlement by immediate payment in cash or equivalent, by charge to an account, or by an agreed delayed settlement not exceeding two days. (12) "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States. [1991 c 153 § 1.] 6.44.020 6.44.020 Scope. (1) This chapter applies only to a foreign-money claim in an action or distribution proceeding. (2) This chapter applies to foreign-money issues even if other law under the conflict of laws rules of this state applies to other issues in the action or distribution proceeding. [1991 c 153 § 2.] 6.44.030 6.44.030 Variation by agreement. (1) The effect of this chapter may be varied by agreement of the parties made before or after commencement of an action or distribution proceeding or the entry of judgment. (2) Parties to a transaction may agree upon the money to be used in a transaction giving rise to a foreign-money claim and may agree to use different moneys for different aspects of the transaction. Stating the price in a foreign money for one aspect of a transaction does not alone require the use of that money for other aspects of the transaction. [1991 c 153 § 3.] 6.44.040 6.44.040 Determining money of the claim. (1) The money in which the parties to a transaction have agreed that payment is to be made is the proper money of the claim for payment. (2) If the parties to a transaction have not otherwise agreed, the proper money of the claim, as in each case may be appropriate, is the money: (a) Regularly used between the parties as a matter of usage or course of dealing; [Title 6 RCW—page 50] (b) Used at the time of a transaction in international trade, by trade usage or common practice, for valuing or settling transactions in the particular commodity or service involved; or (c) In which the loss was ultimately felt or will be incurred by the party claimant. [1991 c 153 § 4.] 6.44.050 6.44.050 Determining amount of the money of certain contract claims. (1) If an amount contracted to be paid in a foreign money is measured by a specified amount of a different money, the amount to be paid is determined on the conversion date. (2) If an amount contracted to be paid in a foreign money is to be measured by a different money at the rate of exchange prevailing on a date before default, that rate of exchange applies only to payments made within a reasonable time after default, not exceeding thirty days. Thereafter, conversion is made at the bank-offered spot rate on the conversion date. (3) A monetary claim is neither usurious nor unconscionable because the agreement on which it is based provides that the amount of the debtor’s obligation to be paid in the debtor’s money, when received by the creditor, must equal a specified amount of the foreign money of the country of the creditor. If, because of unexcused delay in payment of a judgment or award, the amount received by the creditor does not equal the amount of the foreign money specified in the agreement, the court or arbitrator shall amend the judgment or award accordingly. [1991 c 153 § 5.] 6.44.060 6.44.060 Asserting and defending foreign-money claim. (1) A person may assert a claim in a specified foreign money. If a foreign-money claim is not asserted, the claimant makes the claim in United States dollars. (2) An opposing party may allege and prove that a claim, in whole or in part, is in a different money than that asserted by the claimant. (3) A person may assert a defense, set-off, recoupment, or counterclaim in any money without regard to the money of other claims. (4) The determination of the proper money of the claim is a question of law. [1991 c 153 § 6.] 6.44.070 6.44.070 Judgments and awards on foreign-money claims—Times of money conversion—Form of judgment. (1) Except as provided in subsection (3) of this section, a judgment or award on a foreign-money claim must be stated in an amount of the money of the claim. (2) A judgment or award on a foreign-money claim is payable in that foreign money or, at the option of the debtor, in the amount of United States dollars which will purchase that foreign money on the conversion date at a bank-offered spot rate. (3) Assessed costs must be entered in United States dollars. (4) Each payment in United States dollars must be accepted and credited on a judgment or award on a foreignmoney claim in the amount of the foreign money that could be purchased by the dollars at a bank-offered spot rate of exchange at or near the close of business on the conversion date for that payment. (2006 Ed.) Uniform Foreign-Money Claims Act (5) A judgment or award made in an action or distribution proceeding on both (a) a defense, set-off, recoupment, or counterclaim, and (b) the adverse party’s claim, must be netted by converting the money of the smaller into the money of the larger, and by subtracting the smaller from the larger, and specify the rates of exchange used. (6) A judgment substantially in the following form complies with subsection (1) of this section: IT IS ADJUDGED AND ORDERED, that defendant (insert name) pay to plaintiff (insert name) the sum of (insert amount in the foreign money) plus interest on that sum at the rate of (insert rate—see RCW 6.44.090) percent a year or, at the option of the judgment debtor, the number of United States dollars which will purchase the (insert name of foreign money) with interest due, at a bank-offered spot rate at or near the close of business on the banking day next before the day of payment, together with assessed costs of (insert amount) United States dollars. (7) If a contract claim is of the type covered by RCW 6.44.050 (a) or (b) [(1) or (2)], the judgment or award must be entered for the amount of money stated to measure the obligation to be paid in the money specified for payment or, at the option of the debtor, the number of United States dollars which will purchase the computed amount of the money of payment on the conversion date at a bank-offered spot rate. (8) A judgment must be filed or docketed and indexed in foreign money in the same manner, and has the same effect as a lien, as other judgments. It may be discharged by payment. [1991 c 153 § 7.] 6.44.080 6.44.080 Conversions of foreign money in distribution proceeding. The rate of exchange prevailing at or near the close of business on the day the distribution proceeding is initiated governs all exchanges of foreign money in a distribution proceeding. A foreign-money claimant in a distribution proceeding shall assert its claim in the named foreign money and show the amount of United States dollars resulting from a conversion as of the date the proceeding was initiated. [1991 c 153 § 8.] 6.44.090 6.44.090 Prejudgment and judgment interest. (1) With respect to a foreign-money claim, recovery of prejudgment or preaward interest and the rate of interest to be applied in the action or distribution proceeding, except as provided in subsection (2) of this section, are matters of the substantive law governing the right to recovery under the conflict of laws rules of this state. (2) The court or arbitrator shall increase or decrease the amount of prejudgment or preaward interest otherwise payable in a judgment or award in foreign money to the extent required by the law of this state governing a failure to make or accept an offer of settlement or offer of judgment, or conduct by a party or its attorney causing undue delay or expense. (3) A judgment or award on a foreign-money claim bears interest at the rate applicable to judgments of this state. [1991 c 153 § 9.] 6.44.100 6.44.100 Enforcement of foreign judgments. (1) If an action is brought to enforce a judgment of another jurisdic(2006 Ed.) 6.44.120 tion expressed in a foreign money and the judgment is recognized in this state as enforceable, the enforcing judgment must be entered as provided in RCW 6.44.070, whether or not the foreign judgment confers an option to pay in an equivalent amount of United States dollars. (2) A foreign judgment may be filed or docketed in accordance with any rule or statute of this state providing a procedure for its recognition and enforcement. (3) A satisfaction or partial payment made upon the foreign judgment, on proof thereof, must be credited against the amount of foreign money specified in the judgment, notwithstanding the entry of judgment in this state. (4) A judgment entered on a foreign-money claim only in United States dollars in another state must be enforced in this state in United States dollars only. [1991 c 153 § 10.] 6.44.110 6.44.110 Determining United States dollar value of foreign-money claims for limited purposes. (1) Computations under this section are for the limited purposes of this section and do not affect computation of the United States dollar equivalent of the money of the judgment for the purpose of payment. (2) For the limited purpose of facilitating the enforcement of provisional remedies in an action, the value in United States dollars of assets to be seized or restrained pursuant to a writ of attachment, garnishment, execution, or other legal process, the amount of United States dollars at issue for assessing costs, or the amount of United States dollars involved for a surety bond or other court-required undertaking, must be ascertained as provided in subsections (3) and (4) of this section. (3) A party seeking process, costs, bond, or other undertaking under subsection (2) of this section, shall compute in United States dollars the amount of the foreign money claimed from a bank-offered spot rate prevailing at or near the close of business on the banking day next preceding the filing of a request or application for the issuance of process or for the determination of costs, or an application for a bond or other court-required undertaking. (4) A party seeking the process, costs, bond, or other undertaking under subsection (2) of this section shall file with each request or application an affidavit or certificate executed in good faith by its counsel or a bank officer, stating the market quotation used and how it was obtained, and setting forth the calculation. Affected court officials incur no liability, after a filing of the affidavit or certificate, for acting as if the judgment were in the amount of United States dollars stated in the affidavit or certificate. [1991 c 153 § 11.] 6.44.120 6.44.120 Effect of currency revalorization. (1) If, after an obligation is expressed or a loss is incurred in a foreign money, the country issuing or adopting that money substitutes a new money in place of that money, the obligation or the loss is treated as if expressed or incurred in the new money at the rate of conversion the issuing country establishes for the payment of like obligations or losses denominated in the former money. (2) If substitution under subsection (1) of this section occurs after a judgment or award is entered on a foreignmoney claim, the court or arbitrator shall amend the judg[Title 6 RCW—page 51] 6.44.130 Title 6 RCW: Enforcement of Judgments ment or award by a like conversion of the former money. [1991 c 153 § 12.] 6.44.130 Supplementary general principles of law. Unless displaced by particular provisions of this chapter, the principles of law and equity, including the law merchant, and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating causes supplement its provisions. [1991 c 153 § 13.] 6.44.130 6.44.140 Uniformity of application and construction. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it. [1991 c 153 § 14.] 6.44.140 6.44.901 Short title. This chapter may be cited as the uniform foreign-money claims act. [1991 c 153 § 15.] 6.44.901 6.44.902 Effective date—1991 c 153. This chapter shall take effect January 1, 1992. [1991 c 153 § 16.] 6.44.902 6.44.903 Severability—1991 c 153. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1991 c 153 § 17.] 6.44.903 6.44.904 Prospective application. This chapter applies prospectively only and not retroactively. It applies only to causes of action which are commenced on or after January 1, 1992. [1991 c 153 § 18.] 6.44.904 [Title 6 RCW—page 52] (2006 Ed.) Title 7 Chapters 7.04A 7.06 7.07 7.08 7.16 7.21 7.24 7.25 7.28 7.36 7.40 7.42 7.43 7.44 7.48 7.48A 7.52 7.56 7.60 7.64 7.68 7.69 7.69A 7.69B 7.70 7.70A 7.71 7.72 7.75 7.80 7.84 7.88 7.90 Title 7 SPECIAL PROCEEDINGS AND ACTIONS Uniform arbitration act. Mandatory arbitration of civil actions. Uniform mediation act. Assignment for benefit of creditors. Certiorari, mandamus, and prohibition. Contempt of court. Uniform declaratory judgments act. Declaratory judgments of local bond issues. Ejectment, quieting title. Habeas corpus. Injunctions. Injunctions—Obscene materials. Injunctions—Drug nuisances. Ne exeat. Nuisances. Moral nuisances. Partition. Quo warranto. Receivers. Replevin. Victims of crimes—Compensation, assistance. Crime victims, survivors, and witnesses. Child victims and witnesses. Crime victims and witnesses—Dependent persons. Actions for injuries resulting from health care. Arbitration of health care actions. Health care peer review. Product liability actions. Dispute resolution centers. Civil infractions. Natural resource infractions. Confidentiality of financial institution compliance review information. Sexual assault protection order act. Abortion clinics, interference with: Chapter 9A.50 RCW. Adoption: Chapter 26.33 RCW. Animals, trespass: Chapter 16.04 RCW. Arbitration, labor disputes: Chapter 49.08 RCW. Boundaries action to establish and mark: Chapter 58.04 RCW. counties: Chapter 36.05 RCW. Certiorari: State Constitution Art. 4 §§ 4, 6 (Amendment 28). Civil rights, law against discrimination: Chapter 49.60 RCW. Claims against cities and towns: Chapters 35.23, 35.31 RCW. counties: Chapter 36.45 RCW. state: Chapter 4.92 RCW. Corporations, dissolution: Chapter 23B.14 RCW. Dissolution, legal separation: Chapter 26.09 RCW. District courts: Titles 3, 12 RCW. Eminent domain: Title 8 RCW; State Constitution Art. 1 § 16 (Amendment 9); Art. 12 § 10. Escheats: Chapter 11.08 RCW. Executions generally: Chapter 6.17 RCW. (2006 Ed.) sales, redemptions: Chapters 6.21, 6.23 RCW. supplemental proceedings: Chapter 6.32 RCW. Families, abandonment or nonsupport: Chapter 26.20 RCW. Family court: Chapter 26.12 RCW. Forcible and unlawful detainer: Chapter 59.12 RCW. Forcible entry: Chapter 59.12 RCW. Foreclosure of chattel mortgages: Chapter 62A.9A RCW. real estate mortgages: Chapter 61.12 RCW. Garnishment: Chapters 6.26, 6.27 RCW. Habeas corpus: State Constitution Art. 1 § 13; Art. 4 §§ 4, 6 (Amendment 28). Harassment: Chapter 10.14 RCW. Health care facilities, interference with: Chapter 9A.50 RCW. Homesteads: Chapter 6.13 RCW. Imprisonment for debt: State Constitution Art. 1 § 17. Injunction: State Constitution Art. 4 § 6 (Amendment 28). Injunctions, labor disputes: Chapter 49.32 RCW. Judgments, enforcement: Title 6 RCW. Justice (district) courts: State Constitution Art. 4 §§ 6, 10 (Amendment 28). Juveniles, courts and offenders: Title 13 RCW. Lakes, outflow regulation: Chapter 90.24 RCW. Land titles proceedings, transfer from justice (district) court: RCW 12.20.070. registration (Torrens Act): Chapter 65.12 RCW. Legal notices, publication: Chapter 65.16 RCW. Liens enforcement of, against vessels: RCW 60.36.020. provision as to foreclosure of various: Title 60 RCW. Liquor abatement: Chapter 66.36 RCW. search and seizure: Chapter 66.32 RCW. Mandamus: State Constitution Art. 4 §§ 4, 6 (Amendment 28). Medical facilities, interference with: Chapter 9A.50 RCW. Mentally ill, proceedings as to: Chapter 71.05 RCW. Military, tribunals, trials, etc.: Title 38 RCW. Name, change of—Fees: RCW 4.24.130. Nonparental actions for child custody: Chapter 26.10 RCW. Parentage, Uniform Act: Chapter 26.26 RCW. Probate: Title 11 RCW. Prohibition: State Constitution Art. 4 §§ 4, 6 (Amendment 28). Property adverse claims to levy: Chapter 6.19 RCW. lost and found: Chapter 63.21 RCW. unclaimed, uniform act: Chapter 63.29 RCW. unclaimed in city police’s hands: Chapter 63.32 RCW. Prosecution by information: State Constitution Art. 1 § 25. Public bodies may retain collection agencies to collect public debts—Fees: RCW 19.16.500. Quo warranto: State Constitution Art. 4 § 6 (Amendment 28). Real property, conveyances: Title 64 RCW. Records, lost: Chapter 5.48 RCW. Rent, actions to collect forty dollars a month or less: Chapter 59.08 RCW. Replevin, district courts: Chapter 12.28 RCW. [Title 7 RCW—page 1] Chapter 7.04A Title 7 RCW: Special Proceedings and Actions Rights of accused: State Constitution Art. 1 § 22 (Amendment 10). Sexual psychopaths: Chapter 71.06 RCW. Small claims courts: Chapter 12.40 RCW. Subpoenas: Chapter 5.56 RCW. Subversive activities: Chapter 9.81 RCW. Superior court: State Constitution Art. 4 §§ 3(a) (Amendment 25), 6, 10 (Amendment 28). Support: Chapter 26.21A RCW. Support of dependent children—Alternative method—1971 act: Chapter 74.20A RCW. Supreme court: State Constitution Art. 4 § 3(a) (Amendment 25). Television, subscription services, unlawful sale or theft, civil cause of action: RCW 9A.56.250. Tree spiking, action for damages: RCW 9.91.155. Trial by jury: State Constitution Art. 1 § 21. Unemployment compensation, review, etc.: Chapter 50.32 RCW. Unlawful entry and detainer: Chapter 59.16 RCW. Veterans—Uniform guardianship act: Chapter 73.36 RCW. Warehouseman’s lien: Chapter 62A.7 RCW. Waste and trespass: Chapter 64.12 RCW. Water rights, determination: RCW 90.03.110 through 90.03.240. Waters, public ground, regulation of: Chapter 90.44 RCW. sponsors, or administers arbitration proceedings or is involved in the appointment of arbitrators. (2) "Arbitrator" means an individual appointed to render an award in a controversy between persons who are parties to an agreement to arbitrate. (3) "Authenticate" means: (a) To sign; or (b) To execute or adopt a record by attaching to or logically associating with the record, an electronic sound, symbol, or process with the intent to sign the record. (4) "Court" means a court of competent jurisdiction in this state. (5) "Knowledge" means actual knowledge. (6) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity. (7) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. [2005 c 433 § 1.] Workers’ compensation cases: Title 51 RCW. 7.04A.020 Chapter 7.04A Chapter 7.04A RCW UNIFORM ARBITRATION ACT Sections 7.04A.010 7.04A.020 7.04A.030 7.04A.040 7.04A.050 7.04A.060 7.04A.070 7.04A.080 7.04A.090 7.04A.100 7.04A.110 7.04A.120 7.04A.130 7.04A.140 7.04A.150 7.04A.160 7.04A.170 7.04A.180 7.04A.190 7.04A.200 7.04A.210 7.04A.220 7.04A.230 7.04A.240 7.04A.250 7.04A.260 7.04A.270 7.04A.280 7.04A.290 7.04A.900 7.04A.901 7.04A.902 7.04A.903 Definitions. Notice. When chapter applies. Effect of agreement to arbitrate—Nonwaivable provisions. Application to court. Validity of agreement to arbitrate. Motion to compel or stay arbitration. Provisional remedies. Initiation of arbitration. Consolidation of separate arbitration proceedings. Appointment of arbitrator—Service as a neutral arbitrator. Disclosure by arbitrator. Action by majority. Immunity of arbitrator—Competency to testify—Attorneys’ fees and costs. Arbitration process. Representation by lawyer. Witnesses—Subpoenas—Depositions—Discovery. Court enforcement of preaward ruling by arbitrator. Award. Change of award by arbitrator. Remedies—Fees and expenses of arbitration proceeding. Confirmation of award. Vacating award. Modification or correction of award. Judgment on award—Attorneys’ fees and litigation expenses. Jurisdiction. Venue. Appeals. Relationship to electronic signatures in global and national commerce act. Effective date—2005 c 433. Uniformity of application and construction—2005 c 433. Captions not law—2005 c 433. Savings—2005 c 433. 7.04A.010 7.04A.010 Definitions. The definitions set forth in this section apply throughout this chapter. (1) "Arbitration organization" means a neutral association, agency, board, commission, or other entity that initiates, [Title 7 RCW—page 2] 7.04A.020 Notice. Unless the parties to an agreement to arbitrate otherwise agree or except as otherwise provided in this chapter, a person gives notice to another person by taking action that is reasonably necessary to inform the other person in ordinary course, whether or not the other person acquires knowledge of the notice. A person has notice if the person has knowledge of the notice or has received notice. A person receives notice when it comes to the person’s attention or the notice is delivered at the person’s place of residence or place of business, or at another location held out by the person as a place of delivery of such communications. [2005 c 433 § 2.] 7.04A.030 7.04A.030 When chapter applies. (1) Before July 1, 2006, this chapter governs agreements to arbitrate entered into: (a) On or after January 1, 2006; and (b) Before January 1, 2006, if all parties to the agreement to arbitrate or to arbitration proceedings agree in a record to be governed by this chapter. (2) On or after July 1, 2006, this chapter governs agreements to arbitrate even if the arbitration agreement was entered into before January 1, 2006. (3) This chapter does not apply to any arbitration governed by chapter 7.06 RCW. (4) This chapter does not apply to any arbitration agreement between employers and employees or between employers and associations of employees. [2005 c 433 § 3.] 7.04A.040 7.04A.040 Effect of agreement to arbitrate—Nonwaivable provisions. (1) Except as otherwise provided in subsections (2) and (3) of this section, the parties to an agreement to arbitrate or to an arbitration proceeding may waive or vary the requirements of this chapter to the extent permitted by law. (2) Before a controversy arises that is subject to an agreement to arbitrate, the parties to the agreement may not: (2006 Ed.) Uniform Arbitration Act (a) Waive or vary the requirements of RCW 7.04A.050(1), 7.04A.060(1), 7.04A.080, 7.04A.170 (1) or (2), 7.04A.260, or 7.04A.280; (b) Unreasonably restrict the right under RCW 7.04A.090 to notice of the initiation of an arbitration proceeding; (c) Unreasonably restrict the right under RCW 7.04A.120 to disclosure of any facts by a neutral arbitrator; or (d) Waive the right under RCW 7.04A.160 of a party to an agreement to arbitrate to be represented by a lawyer at any proceeding or hearing under this chapter. (3) The parties to an agreement to arbitrate may not waive or vary the requirements of this section or RCW 7.04A.030 (1)(a) or (2), 7.04A.070, 7.04A.140, 7.04A.180, 7.04A.200 (3) or (4), 7.04A.220, 7.04A.230, 7.04A.240, 7.04A.250 (1) or (2), 7.04A.901, 7.04A.903, section 50, chapter 433, Laws of 2005, or section 51, chapter 433, Laws of 2005. [2005 c 433 § 4.] 7.04A.050 7.04A.050 Application to court. (1) Except as otherwise provided in RCW 7.04A.280, an application for judicial relief under this chapter must be made by motion to the court and heard in the manner and upon the notice provided by law or rule of court for making and hearing motions. (2) Notice of an initial motion to the court under this chapter must be served in the manner provided by law for the service of a summons in a civil action unless a civil action is already pending involving the agreement to arbitrate. [2005 c 433 § 5.] 7.04A.060 7.04A.060 Validity of agreement to arbitrate. (1) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of contract. (2) The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. (3) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable. (4) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders. [2005 c 433 § 6.] 7.04A.070 7.04A.070 Motion to compel or stay arbitration. (1) On motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement, the court shall order the parties to arbitrate if the refusing party does not appear or does not oppose the motion. If the refusing party opposes the motion, the court shall proceed summarily to decide the issue. Unless the court finds that there is no enforceable agreement to arbitrate, it shall order the parties to arbitrate. If the court finds that there is no enforceable agreement, it may not order the parties to arbitrate. (2006 Ed.) 7.04A.090 (2) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate. If the court finds that there is no enforceable agreement, it may not order the parties to arbitrate. (3) The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established. (4) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section must be filed in that court. Otherwise a motion under this section may be filed in any court as required by RCW 7.04A.270. (5) If a party files a motion with the court to order arbitration under this section, the court shall on just terms stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section. (6) If the court orders arbitration, the court shall on just terms stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may sever it and limit the stay to that claim. [2005 c 433 § 7.] 7.04A.080 7.04A.080 Provisional remedies. (1) Before an arbitrator is appointed and is authorized and able to act, the court, upon motion of a party to an arbitration proceeding and for good cause shown, may enter an order for provisional remedies to protect the effectiveness of the arbitration proceeding to the same extent and under the same conditions as if the controversy were the subject of a civil action. (2) After an arbitrator is appointed and is authorized and able to act, the arbitrator may issue such orders for provisional remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitration proceeding and to promote the fair and expeditious resolution of the controversy, to the same extent and under the same conditions as if the controversy were the subject of a civil action. After an arbitrator is appointed and is authorized and able to act, a party to an arbitration proceeding may move the court for a provisional remedy only if the matter is urgent and the arbitrator is not able to act timely or if the arbitrator cannot provide an adequate remedy. (3) A motion to a court for a provisional remedy under subsection (1) or (2) of this section does not waive any right of arbitration. [2005 c 433 § 8.] 7.04A.090 7.04A.090 Initiation of arbitration. (1) A person initiates an arbitration proceeding by giving notice in a record to the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by mail certified or registered, return receipt requested and obtained, or by service as authorized for the initiation of a civil action. The notice must describe the nature of the controversy and the remedy sought. (2) Unless a person interposes an objection as to lack or insufficiency of notice under RCW 7.04A.150(3) not later than the commencement of the arbitration hearing, the per[Title 7 RCW—page 3] 7.04A.100 Title 7 RCW: Special Proceedings and Actions son’s appearance at the hearing waives any objection to lack of or insufficiency of notice. [2005 c 433 § 9.] 7.04A.100 7.04A.100 Consolidation of separate arbitration proceedings. (1) Except as otherwise provided in subsection (3) of this section, upon motion of a party to an agreement to arbitrate or to an arbitration proceeding, the court may order consolidation of separate arbitration proceedings as to all or some of the claims if: (a) There are separate agreements to arbitrate or separate arbitration proceedings between the same persons or one of them is a party to a separate agreement to arbitrate or a separate arbitration proceeding with a third person; (b) The claims subject to the agreements to arbitrate arise in substantial part from the same transaction or series of related transactions; (c) The existence of a common issue of law or fact creates the possibility of conflicting decisions in the separate arbitration proceedings; and (d) Prejudice resulting from a failure to consolidate is not outweighed by the risk of undue delay or prejudice to the rights of or hardship to parties opposing consolidation. (2) The court may order consolidation of separate arbitration proceedings as to certain claims and allow other claims to be resolved in separate arbitration proceedings. (3) The court may not order consolidation of the claims of a party to an agreement to arbitrate that prohibits consolidation. [2005 c 433 § 10.] (2) An arbitrator has a continuing obligation to disclose to all parties to the agreement to arbitrate and arbitration proceedings and to any other arbitrators any facts that the arbitrator learns after accepting appointment that a reasonable person would consider likely to affect the impartiality of the arbitrator. (3) If an arbitrator discloses a fact required by subsection (1) or (2) of this section to be disclosed and a party timely objects to the appointment or continued service of the arbitrator based upon the disclosure, the objection may be a ground to vacate the award under RCW 7.04A.230(1)(b). (4) If the arbitrator did not disclose a fact as required by subsection (1) or (2) of this section, upon timely objection of a party, an award may be vacated under RCW 7.04A.230(1)(b). (5) An arbitrator appointed as a neutral who does not disclose a known, direct, and material interest in the outcome of the arbitration proceeding or a known, existing, and substantial relationship with a party is presumed to act with evident partiality under RCW 7.04A.230(1)(b). (6) If the parties to an arbitration proceeding agree to the procedures of an arbitration organization or any other procedures for challenges to arbitrators before an award is made, substantial compliance with those procedures is a condition precedent to a motion to vacate an award on that ground under RCW 7.04A.230(1)(b). [2005 c 433 § 12.] 7.04A.130 7.04A.130 Action by majority. If there is more than one arbitrator, the powers of the arbitrators must be exercised by a majority of them. [2005 c 433 § 13.] 7.04A.110 7.04A.110 Appointment of arbitrator—Service as a neutral arbitrator. (1) If the parties to an agreement to arbitrate agree on a method for appointing an arbitrator, that method must be followed, unless the method fails. If the parties have not agreed on a method, the agreed method fails, or an arbitrator appointed fails or is unable to act and a successor has not been appointed, the court, on motion of a party to the arbitration proceeding, shall appoint the arbitrator. The arbitrator so appointed has all the powers of an arbitrator designated in the agreement to arbitrate or appointed under the agreed method. (2) An arbitrator who has a known, direct, and material interest in the outcome of the arbitration proceeding or a known, existing, and substantial relationship with a party may not serve as a neutral arbitrator. [2005 c 433 § 11.] 7.04A.120 7.04A.120 Disclosure by arbitrator. (1) Before accepting appointment, an individual who is requested to serve as an arbitrator, after making a reasonable inquiry, shall disclose to all parties to the agreement to arbitrate and arbitration proceeding and to any other arbitrators any known facts that a reasonable person would consider likely to affect the impartiality of the arbitrator in the arbitration proceeding, including: (a) A financial or personal interest in the outcome of the arbitration proceeding; and (b) An existing or past relationship with any of the parties to the agreement to arbitrate or the arbitration proceeding, their counsel or representatives, witnesses, or the other arbitrators. [Title 7 RCW—page 4] 7.04A.140 7.04A.140 Immunity of arbitrator—Competency to testify—Attorneys’ fees and costs. (1) An arbitrator or an arbitration organization acting in that capacity is immune from civil liability to the same extent as a judge of a court of this state acting in a judicial capacity. (2) The immunity afforded by this section supplements any other immunity. (3) If an arbitrator does not make a disclosure required by RCW 7.04A.120, the nondisclosure does not cause a loss of immunity under this section. (4) In any judicial, administrative, or similar proceeding, an arbitrator or representative of an arbitration organization is not competent to testify or required to produce records as to any statement, conduct, decision, or ruling occurring during the arbitration proceeding to the same extent as a judge of a court of this state acting in a judicial capacity. This subsection does not apply: (a) To the extent necessary to determine the claim of an arbitrator or an arbitration organization or a representative of the arbitration organization against a party to the arbitration proceeding; or (b) If a party to the arbitration proceeding files a motion to vacate an award under RCW 7.04A.230(1) (a) or (b) and establishes prima facie that a ground for vacating the award exists. (5) If a person commences a civil action against an arbitrator, an arbitration organization, or a representative of an arbitration organization arising from the services of the arbitrator, organization, or representative or if a person seeks to (2006 Ed.) Uniform Arbitration Act compel an arbitrator or a representative of an arbitration organization to testify in violation of subsection (4) of this section, and the court decides that the arbitrator, arbitration organization, or representative of an arbitration organization is immune from civil liability or that the arbitrator or representative of the organization is incompetent to testify, the court shall award to the arbitrator, organization, or representative reasonable attorneys’ fees and other reasonable expenses of litigation. [2005 c 433 § 14.] 7.04A.150 7.04A.150 Arbitration process. (1) The arbitrator may conduct the arbitration in such manner as the arbitrator considers appropriate so as to aid in the fair and expeditious disposition of the proceeding. The authority conferred upon the arbitrator includes the power to hold conferences with the parties to the arbitration proceeding before the hearing and to determine the admissibility, relevance, materiality, and weight of any evidence. (2) The arbitrator may decide a request for summary disposition of a claim or particular issue by agreement of all interested parties or upon request of one party to the arbitration proceeding if that party gives notice to all other parties to the arbitration proceeding and the other parties have a reasonable opportunity to respond. (3) The arbitrator shall set a time and place for a hearing and give notice of the hearing not less than five days before the hearing. Unless a party to the arbitration proceeding interposes an objection to lack of or insufficiency of notice not later than the commencement of the hearing, the party’s appearance at the hearing waives the objection. Upon request of a party to the arbitration proceeding and for good cause shown, or upon the arbitrator’s own initiative, the arbitrator may adjourn the hearing from time to time as necessary but may not postpone the hearing to a time later than that fixed by the agreement to arbitrate for making the award unless the parties to the arbitration proceeding consent to a later date. The arbitrator may hear and decide the controversy upon the evidence produced although a party who was duly notified of the arbitration proceeding did not appear. The court, on request, may direct the arbitrator to promptly conduct the hearing and render a timely decision. (4) If an arbitrator orders a hearing under subsection (3) of this section, the parties to the arbitration proceeding are entitled to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing. (5) If there is more than one arbitrator, all of them shall conduct the hearing under subsection (3) of this section; however, a majority shall decide any issue and make a final award. (6) If an arbitrator ceases, or is unable, to act during the arbitration proceeding, a replacement arbitrator must be appointed in accordance with RCW 7.04A.110 to continue the hearing and to decide the controversy. [2005 c 433 § 15.] 7.04A.160 7.04A.160 Representation by lawyer. A party to an arbitration proceeding may be represented by a lawyer. [2005 c 433 § 16.] (2006 Ed.) 7.04A.180 7.04A.170 7.04A.170 Witnesses—Subpoenas—Depositions— Discovery. (1) An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. A subpoena must be served in the manner for service of subpoenas in a civil action and, upon motion to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action. (2) On request of a party to or a witness in an arbitration proceeding, an arbitrator may permit a deposition of any witness, including a witness who cannot be subpoenaed for or is unable to attend a hearing, to be taken under conditions determined by the arbitrator for use as evidence in order to make the proceeding fair, expeditious, and cost-effective. (3) An arbitrator may permit such discovery as the arbitrator decides is appropriate in the circumstances, taking into account the needs of the parties to the arbitration proceeding and other affected persons and the desirability of making the proceeding fair, expeditious, and cost-effective. (4) If an arbitrator permits discovery under subsection (3) of this section, the arbitrator may order a party to the arbitration proceeding to comply with the arbitrator’s discoveryrelated orders, including the issuance of a subpoena for the attendance of a witness and for the production of records and other evidence at a discovery proceeding, and may take action against a party to the arbitration proceeding who does not comply to the extent permitted by law as if the controversy were the subject of a civil action in this state. (5) An arbitrator may issue a protective order to prevent the disclosure of privileged information, confidential information, trade secrets, and other information protected from disclosure as if the controversy were the subject of a civil action in this state. (6) All laws compelling a person under subpoena to testify and all fees for attending a judicial proceeding, a deposition, or a discovery proceeding as a witness apply to an arbitration proceeding as if the controversy were the subject of a civil action in this state. (7) The court may enforce a subpoena or discoveryrelated order for the attendance of a witness within this state and for the production of records and other evidence issued by an arbitrator in connection with an arbitration proceeding in another state upon conditions determined by the court in order to make the arbitration proceeding fair, expeditious, and cost-effective. A subpoena or discovery-related order issued by an arbitrator must be served in the manner provided by law for service of subpoenas in a civil action in this state and, upon motion to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner provided by law for enforcement of subpoenas in a civil action in this state. [2005 c 433 § 17.] 7.04A.180 7.04A.180 Court enforcement of preaward ruling by arbitrator. If an arbitrator makes a preaward ruling in favor of a party to the arbitration proceeding, the party may request the arbitrator to incorporate the ruling into an award under RCW 7.04A.190. The successful party may file a motion to the court for an expedited order to confirm the award under RCW 7.04A.220, in which case the court shall proceed summarily to decide the motion. The court shall issue an order to confirm the award unless the court vacates, modifies, or cor[Title 7 RCW—page 5] 7.04A.190 Title 7 RCW: Special Proceedings and Actions rects the award of the arbitrator under RCW 7.04A.230 and 7.04A.240. [2005 c 433 § 18.] 7.04A.190 7.04A.190 Award. (1) An arbitrator shall make a record of an award. The record must be authenticated by any arbitrator who concurs with the award. The arbitrator or the arbitration organization shall give notice of the award, including a copy of the award, to each party to the arbitration proceeding. (2) An award must be made within the time specified by the agreement to arbitrate or, if not specified therein, within the time ordered by the court. The court may extend or the parties to the arbitration proceeding may agree in a record to extend the time. The court or the parties may do so within or after the time specified or ordered. A party waives any objection that an award was not timely made unless the party gives notice of the objection to the arbitrator before receiving notice of the award. [2005 c 433 § 19.] 7.04A.200 7.04A.200 Change of award by arbitrator. (1) On motion to an arbitrator by a party to the arbitration proceeding, the arbitrator may modify or correct an award: (a) Upon the grounds stated in RCW 7.04A.240(1) (a) or (c); (b) Because the arbitrator has not made a final and definite award upon a claim submitted by the parties to the arbitration proceeding; or (c) To clarify the award. (2) A motion under subsection (1) of this section must be made and served on all parties within twenty days after the movant receives notice of the award. (3) A party to the arbitration proceeding must serve any objections to the motion within ten days after receipt of the notice. (4) If a motion to the court is pending under RCW 7.04A.220, 7.04A.230, or 7.04A.240, the court may submit the claim to the arbitrator to consider whether to modify or correct the award: (a) Upon the grounds stated in RCW 7.04A.240(1) (a) or (c); (b) Because the arbitrator has not made a final and definite award upon a claim submitted by the parties to the arbitration proceeding; or (c) To clarify the award. (5) An award modified or corrected under this section is subject to RCW 7.04A.220, 7.04A.230, and 7.04A.240. [2005 c 433 § 20.] 7.04A.210 7.04A.210 Remedies—Fees and expenses of arbitration proceeding. (1) An arbitrator may award punitive damages or other exemplary relief if such an award is authorized under the applicable law in a civil action involving the same claim and the evidence produced at the hearing justifies the award under the legal standards otherwise applicable to the claim. (2) An arbitrator may award attorneys’ fees and other reasonable expenses of arbitration if such an award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding. [Title 7 RCW—page 6] (3) As to all remedies other than those authorized by subsections (1) and (2) of this section, an arbitrator may order such remedies as the arbitrator considers just and appropriate under the circumstances of the arbitration proceeding. The fact that such a remedy could not or would not be granted by the court is not a ground for refusing to confirm an award RCW 7.04A.220 or for vacating an award under RCW 7.04A.230. (4) An arbitrator’s expenses and fees, together with other expenses, must be paid as provided in the award. (5) If an arbitrator awards punitive damages or other exemplary relief under subsection (1) of this section, the arbitrator shall specify in the award the basis in fact justifying and the basis in law authorizing the award and state separately the amount of the punitive damages or other exemplary relief. [2005 c 433 § 21.] 7.04A.220 7.04A.220 Confirmation of award. After a party to the arbitration proceeding receives notice of an award, the party may file a motion with the court for an order confirming the award, at which time the court shall issue such an order unless the award is modified or corrected under RCW 7.04A.200 or 7.04A.240 or is vacated under RCW 7.04A.230. [2005 c 433 § 22.] 7.04A.230 7.04A.230 Vacating award. (1) Upon motion of a party to the arbitration proceeding, the court shall vacate an award if: (a) The award was procured by corruption, fraud, or other undue means; (b) There was: (i) Evident partiality by an arbitrator appointed as a neutral; (ii) Corruption by an arbitrator; or (iii) Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding; (c) An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to RCW 7.04A.150, so as to prejudice substantially the rights of a party to the arbitration proceeding; (d) An arbitrator exceeded the arbitrator’s powers; (e) There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under RCW 7.04A.150(3) not later than the commencement of the arbitration hearing; or (f) The arbitration was conducted without proper notice of the initiation of an arbitration as required in RCW 7.04A.090 so as to prejudice substantially the rights of a party to the arbitration proceeding. (2) A motion under this section must be filed within ninety days after the movant receives notice of the award in a record under RCW 7.04A.190 or within ninety days after the movant receives notice of an arbitrator’s award in a record on a motion to modify or correct an award under RCW 7.04A.200, unless the motion is predicated upon the ground that the award was procured by corruption, fraud, or other undue means, in which case it must be filed within ninety (2006 Ed.) Mandatory Arbitration of Civil Actions days after such a ground is known or by the exercise of reasonable care should have been known by the movant. (3) In vacating an award on a ground other than that set forth in subsection (1)(e) of this section, the court may order a rehearing before a new arbitrator. If the award is vacated on a ground stated in subsection (1)(c), (d), or (f) of this section, the court may order a rehearing before the arbitrator who made the award or the arbitrator’s successor. The arbitrator must render the decision in the rehearing within the same time as that provided in RCW 7.04A.190(2) for an award. (4) If a motion to vacate an award is denied and a motion to modify or correct the award is not pending, the court shall confirm the award. [2005 c 433 § 23.] 7.04A.240 7.04A.240 Modification or correction of award. (1) Upon motion filed within ninety days after the movant receives notice of the award in a record under RCW 7.04A.190 or within ninety days after the movant receives notice of an arbitrator’s award in a record on a motion to modify or correct an award under RCW 7.04A.200, the court shall modify or correct the award if: (a) There was an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property referred to in the award; (b) The arbitrator has made an award on a claim not submitted to the arbitrator and the award may be corrected without affecting the merits of the decision upon the claims submitted; or (c) The award is imperfect in a matter of form not affecting the merits of the decision on the claims submitted. (2) If a motion filed under subsection (1) of this section is granted, the court shall modify or correct and confirm the award as modified or corrected. Otherwise, the court shall confirm the award. (3) A motion to modify or correct an award under this section may be joined with a motion to vacate the award. [2005 c 433 § 24.] 7.04A.250 7.04A.250 Judgment on award—Attorneys’ fees and litigation expenses. (1) Upon granting an order confirming, vacating without directing a rehearing, modifying, or correcting an award, the court shall enter a judgment in conformity with the order. The judgment may be recorded, docketed, and enforced as any other judgment in a civil action. (2) A court may allow reasonable costs of the motion and subsequent judicial proceedings. (3) On application of a prevailing party to a contested judicial proceeding under RCW 7.04A.220, 7.04A.230, or 7.04A.240, the court may add to a judgment confirming, vacating without directing a rehearing, modifying, or correcting an award, attorneys’ fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made. [2005 c 433 § 25.] 7.04A.260 7.04A.260 Jurisdiction. (1) A court of this state having jurisdiction over the dispute and the parties may enforce an agreement to arbitrate. (2) An agreement to arbitrate providing for arbitration in this state confers exclusive jurisdiction on the court to enter judgment on an award under this chapter. [2005 c 433 § 26.] (2006 Ed.) Chapter 7.06 7.04A.270 7.04A.270 Venue. A motion under RCW 7.04A.050 must be filed in the court of the county in which the agreement to arbitrate specifies the arbitration hearing is to be held or, if the hearing has been held, in the court of the county in which it was held. Otherwise, the motion must be filed in any county in which an adverse party resides or has a place of business or, if no adverse party has a residence or place of business in this state, in the court of any county in this state. All subsequent motions must be filed in the court hearing the initial motion unless the court otherwise directs. [2005 c 433 § 27.] 7.04A.280 7.04A.280 Appeals. (1) An appeal may be taken from: (a) An order denying a motion to compel arbitration; (b) An order granting a motion to stay arbitration; (c) An order confirming or denying confirmation of an award; (d) An order modifying or correcting an award; (e) An order vacating an award without directing a rehearing; or (f) A final judgment entered under this chapter. (2) An appeal under this section must be taken as from an order or a judgment in a civil action. [2005 c 433 § 28.] 7.04A.290 7.04A.290 Relationship to electronic signatures in global and national commerce act. The provisions of this chapter governing the legal effect, validity, and enforceability of electronic records or electronic signatures, and of contracts performed with the use of such records or signatures conform to the requirements of section 102 of the electronic signatures in global and national commerce act. [2005 c 433 § 32.] 7.04A.900 7.04A.900 Effective date—2005 c 433. This act takes effect January 1, 2006. [2005 c 433 § 51.] 7.04A.901 7.04A.901 Uniformity of application and construction—2005 c 433. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. [2005 c 433 § 29.] 7.04A.902 7.04A.902 Captions not law—2005 c 433. Captions used in this act are not part of the law. [2005 c 433 § 30.] 7.04A.903 7.04A.903 Savings—2005 c 433. This act does not affect an action or proceeding commenced or right accrued before January 1, 2006. [2005 c 433 § 31.] Chapter 7.06 RCW MANDATORY ARBITRATION OF CIVIL ACTIONS Chapter 7.06 Sections 7.06.010 7.06.020 7.06.030 7.06.040 7.06.050 7.06.060 7.06.070 Authorization. Actions subject to mandatory arbitration—Court may authorize mandatory arbitration of maintenance and child support. Implementation by supreme court rules. Qualifications, appointment and compensation of arbitrators. Decision and award—Appeals—Trial—Judgment. Costs and attorneys’ fees. Right to trial by jury. [Title 7 RCW—page 7] 7.06.010 7.06.080 7.06.900 7.06.910 Title 7 RCW: Special Proceedings and Actions Application date for request under RCW 7.06.050 and 7.06.060. Severability—1979 c 103. Effective date—1979 c 103. Rules of court: See Superior Court Mandatory Arbitration Rules (MAR). Arbitrators shall be compensated in the same amount and manner as judges pro tempore of the superior court. [1987 c 212 § 102; 1979 c 103 § 4.] Effective date—1987 c 212 §§ 101 and 102: See note following RCW 7.06.020. 7.06.010 7.06.010 Authorization. In counties with a population of more than one hundred thousand, mandatory arbitration of civil actions under this chapter shall be required. In counties with a population of one hundred thousand or less, the superior court of the county, by majority vote of the judges thereof, or the county legislative authority may authorize mandatory arbitration of civil actions under this chapter. [2005 c 472 § 1; 2002 c 338 § 1; 1991 c 363 § 7; 1984 c 258 § 511; 1979 c 103 § 1.] Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 7.06.020 7.06.020 Actions subject to mandatory arbitration— Court may authorize mandatory arbitration of maintenance and child support. (1) All civil actions, except for appeals from municipal or district courts, which are at issue in the superior court in counties which have authorized arbitration, where the sole relief sought is a money judgment, and where no party asserts a claim in excess of fifteen thousand dollars, or if approved by the superior court of a county by two-thirds or greater vote of the judges thereof, up to fifty thousand dollars, exclusive of interest and costs, are subject to mandatory arbitration. (2) If approved by majority vote of the superior court judges of a county which has authorized arbitration, all civil actions which are at issue in the superior court in which the sole relief sought is the establishment, termination or modification of maintenance or child support payments are subject to mandatory arbitration. The arbitrability of any such action shall not be affected by the amount or number of payments involved. [2005 c 472 § 2. Prior: 1987 c 212 § 101; 1987 c 202 § 127; 1985 c 265 § 3; 1982 c 188 § 1; 1979 c 103 § 2.] Rules of court: MAR 1.2. Application—2005 c 472 § 2: "Section 2 of this act applies to any case in which a notice of arbitrability is filed on or after July 24, 2005." [2005 c 472 § 3.] Effective date—1987 c 212 §§ 101 and 102: "Sections 101 and 102 of this act shall take effect July 1, 1988." [1987 c 212 § 1902.] Intent—1987 c 202: See note following RCW 2.04.190. 7.06.030 7.06.030 Implementation by supreme court rules. The supreme court shall by rule adopt procedures to implement mandatory arbitration of civil actions under this chapter. [1979 c 103 § 3.] 7.06.040 7.06.040 Qualifications, appointment and compensation of arbitrators. The appointment of arbitrators shall be prescribed by rules adopted by the supreme court. An arbitrator must be a member of the state bar association who has been admitted to the bar for a minimum of five years or who is a retired judge. The parties may stipulate to a nonlawyer arbitrator. The supreme court may prescribe by rule additional qualifications of arbitrators. [Title 7 RCW—page 8] 7.06.050 7.06.050 Decision and award—Appeals—Trial— Judgment. (1) Following a hearing as prescribed by court rule, the arbitrator shall file his decision and award with the clerk of the superior court, together with proof of service thereof on the parties. Within twenty days after such filing, any aggrieved party may file with the clerk a written notice of appeal and request for a trial de novo in the superior court on all issues of law and fact. Such trial de novo shall thereupon be held, including a right to jury, if demanded. (a) Up to thirty days prior to the actual date of a trial de novo, a nonappealing party may serve upon the appealing party a written offer of compromise. (b) In any case in which an offer of compromise is not accepted by the appealing party within ten calendar days after service thereof, for purposes of MAR 7.3, the amount of the offer of compromise shall replace the amount of the arbitrator’s award for determining whether the party appealing the arbitrator’s award has failed to improve that party’s position on the trial de novo. (c) A postarbitration offer of compromise shall not be filed or communicated to the court or the trier of fact until after judgment on the trial de novo, at which time a copy of the offer of compromise shall be filed for purposes of determining whether the party who appealed the arbitrator’s award has failed to improve that party’s position on the trial de novo, pursuant to MAR 7.3. (2) If no appeal has been filed at the expiration of twenty days following filing of the arbitrator’s decision and award, a judgment shall be entered and may be presented to the court by any party, on notice, which judgment when entered shall have the same force and effect as judgments in civil actions. [2002 c 339 § 1; 1982 c 188 § 2; 1979 c 103 § 5.] 7.06.060 7.06.060 Costs and attorneys’ fees. (1) The superior court shall assess costs and reasonable attorneys’ fees against a party who appeals the award and fails to improve his or her position on the trial de novo. The court may assess costs and reasonable attorneys’ fees against a party who voluntarily withdraws a request for a trial de novo if the withdrawal is not requested in conjunction with the acceptance of an offer of compromise. (2) For the purposes of this section, "costs and reasonable attorneys’ fees" means those provided for by statute or court rule, or both, as well as all expenses related to expert witness testimony, that the court finds were reasonably necessary after the request for trial de novo has been filed. (3) If the prevailing party in the arbitration also prevails at the trial de novo, even though at the trial de novo the appealing party may have improved his or her position from the arbitration, this section does not preclude the prevailing party from recovering those costs and disbursements otherwise allowed under chapter 4.84 RCW, for both actions. [2002 c 339 § 2; 1979 c 103 § 6.] (2006 Ed.) Uniform Mediation Act 7.06.070 7.06.070 Right to trial by jury. No provision of this chapter may be construed to abridge the right to trial by jury. [1979 c 103 § 7.] 7.06.080 7.06.080 Application date for request under RCW 7.06.050 and 7.06.060. RCW 7.06.050 and 7.06.060 apply to all requests for a trial de novo filed pursuant to and in appeal of an arbitrator’s decision and filed on or after June 13, 2002. [2002 c 339 § 3.] 7.06.900 7.06.900 Severability—1979 c 103. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1979 c 103 § 9.] 7.06.910 7.06.910 Effective date—1979 c 103. This act shall take effect July 1, 1980. [1979 c 103 § 10.] Chapter 7.07 Chapter 7.07 RCW UNIFORM MEDIATION ACT Sections 7.07.010 7.07.020 7.07.030 7.07.040 7.07.050 7.07.060 7.07.070 7.07.080 7.07.090 7.07.100 7.07.110 7.07.900 7.07.901 7.07.902 7.07.903 7.07.904 7.07.010 Definitions. Scope. Privilege against disclosure—Admissibility—Discovery. Waiver and preclusion of privilege. Exceptions to privilege. Prohibited mediator reports. Confidentiality. Mediator’s disclosure of conflicts of interest—Background. Participation in mediation. Relation to electronic signatures in global and national commerce act. Uniformity of application and construction. Short title—2005 c 172. Captions not law—2005 c 172. Severability—2005 c 172. Application to existing agreements or referrals. Effective date—2005 c 172. 7.07.010 Definitions. In this chapter: (1) "Mediation" means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute. (2) "Mediation communication" means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator. (3) "Mediator" means an individual who conducts a mediation. (4) "Nonparty participant" means a person, other than a party or mediator, that participates in a mediation. (5) "Mediation party" means a person that participates in a mediation and whose agreement is necessary to resolve the dispute. (6) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; or public corporation, or any other legal or commercial entity. (7) "Proceeding" means: (2006 Ed.) 7.07.030 (a) A judicial, administrative, arbitral, or other adjudicative process, including related prehearing and posthearing motions, conferences, and discovery; or (b) A legislative hearing or similar process. (8) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (9) "Sign" means: (a) To execute or adopt a tangible symbol with the present intent to authenticate a record; or (b) To attach or logically associate an electronic symbol, sound, or process to or with a record with the present intent to authenticate a record. [2005 c 172 § 2.] 7.07.020 7.07.020 Scope. (1) Except as otherwise provided in subsection (2) or (3) of this section, this chapter applies to a mediation in which: (a) The mediation parties are required to mediate by statute or court or administrative agency rule or referred to mediation by a court, administrative agency, or arbitrator; (b) The mediation parties and the mediator agree to mediate in a record that demonstrates an expectation that mediation communications will be privileged against disclosure; or (c) The mediation parties use as a mediator an individual who holds himself or herself out as a mediator or the mediation is provided by a person that holds itself out as providing mediation. (2) This chapter does not apply to a mediation: (a) Conducted by a judge who might make a ruling on the case; or (b) Conducted under the auspices of: (i) A primary or secondary school if all the parties are students; or (ii) A correctional institution for youths if all the parties are residents of that institution. (3) If the parties agree in advance in a signed record, or a record of proceeding reflects agreement by the parties, that all or part of a mediation is not privileged, the privileges under RCW 7.07.030 through 7.07.050 do not apply to the mediation or part agreed upon. However, RCW 7.07.030 through 7.07.050 apply to a mediation communication made by a person that has not received actual notice of the agreement before the communication is made. [2005 c 172 § 3.] 7.07.030 7.07.030 Privilege against disclosure—Admissibility—Discovery. (1) Except as otherwise provided in RCW 7.07.050, a mediation communication is privileged as provided in subsection (2) of this section and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by RCW 7.07.040. (2) In a proceeding, the following privileges apply: (a) A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication; (b) A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator; and [Title 7 RCW—page 9] 7.07.040 Title 7 RCW: Special Proceedings and Actions (c) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant. (3) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation. [2005 c 172 § 4.] 7.07.040 7.07.040 Waiver and preclusion of privilege. (1) A privilege under RCW 7.07.030 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and: (a) In the case of the privilege of a mediator, it is expressly waived by the mediator; and (b) In the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant. (2) A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under RCW 7.07.030, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure. (3) A person that intentionally uses a mediation to plan, attempt to commit, or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under RCW 7.07.030. [2005 c 172 § 5.] 7.07.050 7.07.050 Exceptions to privilege. (1) There is no privilege under RCW 7.07.030 for a mediation communication that is: (a) In an agreement evidenced by a record signed by all parties to the agreement; (b) Made during a session of a mediation which is open, or is required by law to be open, to the public; (c) A threat or statement of a plan to inflict bodily injury or commit a crime of violence; (d) Intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity; (e) Sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; (f) Except as otherwise provided in subsection (3) of this section, sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or (g) Sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, unless the public agency participates in the child or adult protection mediation. (2) There is no privilege under RCW 7.07.030 if a court finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in: [Title 7 RCW—page 10] (a) A criminal court proceeding involving a felony; or (b) Except as otherwise provided in subsection (3) of this section, a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation. (3) A mediator may not be compelled to provide evidence of a mediation communication referred to in subsection (1)(f) or (2)(b) of this section. (4) If a mediation communication is not privileged under subsection (1) or (2) of this section, only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (1) or (2) of this section does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose. (5) Records of mediation communications that are privileged under this chapter are exempt from the requirements of chapter 42.56 RCW. [2006 c 209 § 1; 2005 c 172 § 6.] Effective date—2006 c 209: See RCW 42.56.903. 7.07.060 7.07.060 Prohibited mediator reports. (1) Except as provided in subsection (2) of this section, a mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation. (2) A mediator may disclose: (a) Whether the mediation occurred or has terminated, whether a settlement was reached, attendance, and efforts to schedule a mediation ordered by a court, administrative agency, or other authority that may make a ruling on the dispute; (b) A mediation communication as permitted under RCW 7.07.050; or (c) A mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against such mistreatment. (3) A communication made in violation of subsection (1) of this section may not be considered by a court, administrative agency, or arbitrator. [2005 c 172 § 7.] 7.07.070 7.07.070 Confidentiality. Unless subject to chapter 42.30 RCW, mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this state. [2005 c 172 § 8.] 7.07.080 7.07.080 Mediator’s disclosure of conflicts of interest—Background. (1) Before accepting a mediation, an individual who is requested to serve as a mediator shall: (a) Make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and (b) Disclose any such known fact to the mediation parties as soon as is practical before accepting a mediation. (2006 Ed.) Assignment for Benefit of Creditors (2) If a mediator learns any fact described in subsection (1)(a) of this section after accepting a mediation, the mediator shall disclose it as soon as is practicable. (3) At the request of a mediation party, an individual who is requested to serve as a mediator shall disclose the mediator’s qualifications to mediate a dispute. (4) A person that violates subsection (1) or (2) of this section is precluded by the violation from asserting a privilege under RCW 7.07.030. (5) Subsections (1) through (3) of this section do not apply to an individual acting as a judge. (6) This chapter does not require that a mediator have a special qualification by background or profession. [2005 c 172 § 9.] 7.07.090 7.07.090 Participation in mediation. An attorney or other individual designated by a party may accompany the party to and participate in a mediation, except that if the dispute being mediated is the subject of pending proceedings under chapter 12.40 RCW, then a party may not be represented by an attorney in mediation unless the party may be represented by an attorney in the proceedings under chapter 12.40 RCW. A waiver of participation given before the mediation may be rescinded. [2005 c 172 § 10.] 7.07.100 7.07.100 Relation to electronic signatures in global and national commerce act. This chapter modifies, limits, or supersedes the federal electronic signatures in global and national commerce act (15 U.S.C. Sec. 7001 et seq.), but this chapter does not modify, limit, or supersede section 101(c) of that act or authorize electronic delivery of any of the notices described in section 103(b) of that act. [2005 c 172 § 11.] 7.07.110 7.07.110 Uniformity of application and construction. In applying and construing this chapter, consideration should be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. [2005 c 172 § 12.] 7.08.030 7.07.904 Effective date—2005 c 172. This act takes effect January 1, 2006. [2005 c 172 § 23.] 7.07.904 Chapter 7.08 RCW ASSIGNMENT FOR BENEFIT OF CREDITORS Chapter 7.08 Sections 7.08.010 7.08.030 Assignment must be for benefit of all creditors. Assignment—Procedure—Creditor’s selection of new assignee. Fraud in assignment for benefit of creditors: RCW 9.45.100. 7.08.010 Assignment must be for benefit of all creditors. No general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors, shall be valid unless it be made for the benefit of all of the assignor’s creditors in proportion to the amount of their respective claims. [2004 c 165 § 36; 1893 c 100 § 1; 1890 p 83 § 1; RRS § 1086.] 7.08.010 Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.08.030 Assignment—Procedure—Creditor’s selection of new assignee. (1) An assignment under this chapter must be in substantially the following form: 7.08.030 ASSIGNMENT THIS ASSIGNMENT is made this . . . . day of . . . . . ., . . . ., by and between . . . . . . . ., with a principal place of business at . . . . . . . . (hereinafter "assignor"), and . . . . . . . ., whose address is . . . . . . . . (hereinafter "assignee"). WHEREAS, the assignor has been engaged in the business of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................................................ WHEREAS, the assignor is indebted to creditors, as set forth in Schedule A annexed hereto, is unable to pay debts as they become due, and is desirous of providing for the payment of debts, so far as it is possible by an assignment of all property for that purpose. 7.07.900 7.07.900 Short title—2005 c 172. This act may be cited as the Uniform Mediation Act. [2005 c 172 § 1.] 7.07.901 7.07.901 Captions not law—2005 c 172. Captions used in this act are not any part of the law. [2005 c 172 § 20.] 7.07.902 7.07.902 Severability—2005 c 172. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2005 c 172 § 21.] 7.07.903 7.07.903 Application to existing agreements or referrals. (1) This chapter governs a mediation pursuant to a referral or an agreement to mediate made on or after January 1, 2006. (2) If all parties agree in a signed record or a record of proceeding reflects such an agreement by all parties, then this chapter governs a mediation pursuant to a referral or an agreement to mediate whenever made. [2005 c 172 § 22.] (2006 Ed.) NOW, THEREFORE, the assignor, in consideration of the assignee’s acceptance of this assignment, and for other good and valuable consideration, hereby grants, assigns, conveys, transfers, and sets over, unto the assignee, and the assignee’s successors and assigns, all of assignor’s property, except such property as is exempt by law from levy and sale under an execution (and then only to the extent of such exemption), including, but not limited to, all real property, fixtures, goods, stock, inventory, equipment, furniture, furnishings, accounts receivable, general intangibles, bank deposits, cash, promissory notes, cash value and proceeds of insurance policies, claims, and demands belonging to the assignor, wherever such property may be located (hereinafter collectively the "estate"), which property is, to the best knowledge and belief of the assignor, fully and accurately set forth on Schedule B annexed hereto. By making this assignment, the assignor consents to the appointment of the assignee as a general receiver with respect to the assignee’s property in accordance with chapter 7.60 RCW. [Title 7 RCW—page 11] 7.08.030 Title 7 RCW: Special Proceedings and Actions The assignee shall take possession and administer the estate, and shall liquidate the estate with reasonable dispatch and convert the estate into money, collect all claims and demands hereby assigned as and to the extent they may be collectible, and pay and discharge all reasonable expenses, costs, and disbursements in connection with the execution and administration of this assignment from the proceeds of such liquidations and collections. The assignee shall then pay and discharge in full, to the extent that funds are available in the estate after payment of administrative expenses, costs, and disbursements, all of the debts and liabilities now due from the assignor, including interest on such debts and liabilities in full, according to their priority as established by law, and on a pro rata basis within each class. In the event that all debts and liabilities are paid in full, the remainder of the estate shall be returned to the assignor. To accomplish the purposes of this assignment, the assignor hereby irrevocably appoints the assignee as the assignor’s true and lawful attorney in fact, with full power and authority to do all acts and things which may be necessary to execute and fulfill the assignment hereby created, to the same extent as such acts and things might be done by assignor in the absence of this assignment, including but not limited to the power to demand and recover from all persons all property of the estate; to sue for the recovery of such property; to execute, acknowledge, and deliver all necessary deeds, instruments, and conveyances, and to grant and convey any or all of the real or personal property of the estate pursuant thereto; and to appoint one or more attorneys to assist the assignee in carrying out the assignee’s duties hereunder. The assignor hereby authorizes the assignee to sign the name of the assignor to any check, draft, promissory note, or other instrument in writing which is payable to the order of the assignor, or to sign the name of the assignor to any instrument in writing, whenever it shall be necessary to do so, to carry out the purposes of this assignment. The assignor declares, under penalty of perjury under the laws of the state of Washington, that the attached list of creditors and of the property of the assignor is true and complete to the best of the assignor’s knowledge. The assignment shall be signed by the assignor and duly acknowledged in the same manner as conveyances of real property before a notary public of this state, and shall include an acceptance of the assignment by the assignee in substantially the following form: The assignee hereby accepts the trust created by the foregoing assignment, and agrees faithfully and without delay to carry out the assignee’s duties under the foregoing assignment. ..................... ..................... Assignor Assignee Dated: . . . . . . . . . . . . . . Dated: . . . . . . . . . . . . . . (2) The assignor shall annex to such assignment schedules in the form provided for by RCW 7.60.090(3) in the case [Title 7 RCW—page 12] of general receiverships, setting forth the creditors and the property of the assignor. (3) Every assignment shall be effective when a petition to appoint the assignee as receiver has been filed by the assignor, by the assignee, or by any creditor of the assignor with the clerk of the superior court in the county of the assignor’s residence if the assignor is an individual or a marital community, or in the county of the assignor’s principal place of business or registered office within this state if the assignor is any other person. A petition shall set forth the name and address of the assignor and the name and address of the assignee, and shall include a copy of the assignment and the schedules affixed thereto, and a request that the court fix the amount of the receiver’s bond to be filed with the clerk of the court. (4) A person to whom a general assignment of property for the benefit of creditors has been made shall be appointed as general receiver with respect to the assignor’s property by the superior court upon the filing of a petition under subsection (3) of this section. Except as provided for by subsection (5) of this section, following the assignee’s appointment as general receiver, all proceedings involving the administration of the assignor’s property and the claims of the assignee’s creditors shall be governed by the provisions of chapter 7.60 RCW applicable to general receiverships and court rules applicable thereto. (5) Upon motion of two or more creditors of the assignor served and filed at any time within thirty days following the date upon which notice is mailed to all known creditors under RCW 7.60.200, it shall be the duty of the court to direct the clerk of the court to order a meeting of the creditors of the assignor, to determine whether a person other than the assignee named in the assignment should be appointed as general receiver with respect to the property of the assignor; and thereupon the clerk of the court shall immediately give notice to all the creditors identified in the schedules affixed to the assignment to meet at the clerk’s office or at such other location within the county as the clerk may specify, at a time stated not to exceed fifteen days from the date of such notice, to determine whether a person other than the assignee named in the assignment should be appointed as general receiver with respect to the property of the assignor. The assignor’s creditors may appear in person or by proxy at the meeting, and a majority in both number and value of claims of the creditors attending or represented at the meeting may select a person other than the assignee named in the assignment to serve as general receiver with respect to the assignor’s property, whereupon the court shall appoint the selected person as receiver under subsection (4) of this section if a receiver has not already been appointed, and shall appoint the person to replace the original assignee as receiver if the appointment already has been made, unless the court determines upon good cause shown that the appointment as receiver of the person selected by the creditors would not be in the best interests of creditors in general, in which event the court shall appoint or substitute as the receiver a person selected by the court other than the original assignee. If at least one-third of the number or amount of claims represented in person or by proxy at the meeting of creditors vote for the appointment as receiver of a person or persons other than the assignee named in the assignment, then the court upon motion of any creditor (2006 Ed.) Certiorari, Mandamus, and Prohibition served and filed within ten days following the meeting shall appoint as receiver a person selected by the court other than the original assignee, discharging the original assignee if the person previously was appointed as receiver. A creditor may not vote at any meeting of creditors called for the purpose of determining whether a person other than the assignee named in the assignment should be appointed as receiver, until the creditor has presented to the clerk, who presides at the meeting, a proof of claim in accordance with RCW 7.60.210. (6) From the time a motion is made to elect a new assignee in accordance with subsection (5) of this section, and until either the meeting of creditors occurs without a selection of a new assignee, or until the court enters an order appointing as receiver a person other than the original assignee if the creditors vote to select a new assignee at that meeting, no property of the assignor, except perishable property, may be sold or disposed of by the assignee, whether or not the assignee has been appointed as receiver; but the same shall be safely and securely kept until then. [2004 c 165 § 37; 1890 p 83 § 3; RRS § 1088. Formerly RCW 7.08.030 and 7.08.040.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.16.360 7.16.370 7.16.080 Inapplicability to action reviewable under Administrative Procedure Act or Land Use Petition Act. Enforcement of term limits for elected officials. Rules of court: Writ procedure superseded by RAP 2.1; special proceeding RAP 16.1 through 16.17. Camping resorts, writ of mandamus authorized: RCW 19.105.470. 7.16.010 7.16.010 Parties, how designated. The party prosecuting a special proceeding may be known as the plaintiff and the adverse party as the defendant. [1895 c 65 § 1; RRS § 999.] 7.16.020 Judgment, motion, and order defined. A judgment in a special proceeding is the final determination of the rights of the parties therein. The definitions of a motion and an order in a civil action are applicable to similar acts in a special proceeding. [1895 c 65 § 2; RRS § 1000.] 7.16.020 CERTIORARI 7.16.030 Certiorari defined. The writ of certiorari may be denominated the writ of review. [1895 c 65 § 3; RRS § 1001.] 7.16.030 7.16.040 Chapter 7.16 RCW CERTIORARI, MANDAMUS, AND PROHIBITION Chapter 7.16 Sections 7.16.010 7.16.020 Parties, how designated. Judgment, motion, and order defined. CERTIORARI 7.16.030 7.16.040 7.16.050 7.16.060 7.16.070 7.16.080 7.16.100 7.16.110 7.16.120 7.16.130 7.16.140 Certiorari defined. Grounds for granting writ. Application for writ—Notice. Writ, to whom directed. Contents of writ. Stay of proceedings. Service of writ. Defective return—Further return—Hearing—Judgment. Questions involving merits to be determined. Copy of judgment to inferior tribunal, board, or officer. Judgment roll. 7.16.150 7.16.160 7.16.170 7.16.180 7.16.190 7.16.200 7.16.210 7.16.220 7.16.230 7.16.240 7.16.250 7.16.260 7.16.270 7.16.280 Mandamus defined. Grounds for granting writ. Absence of remedy at law required—Affidavit. Alternative or peremptory writs—Form. Notice of application—No default. Answer. Questions of fact, how determined. Applicant may demur to answer or countervail it by proof. Motion for new trial, where made. Certification of verdict—Argument. Hearing. Judgment for damages and costs—Peremptory mandate. Service of writ. Enforcement of writ—Penalty. 7.16.290 7.16.300 7.16.310 7.16.320 Prohibition defined. Grounds for granting writ—Affidavit. Alternative or peremptory writs—Form. Provisions relating to mandate applicable. 7.16.330 7.16.340 7.16.350 When writs may be made returnable. Rules of practice. Appellate review. MANDAMUS PROHIBITION IN GENERAL (2006 Ed.) 7.16.040 Grounds for granting writ. A writ of review shall be granted by any court, except a municipal or district court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law. [1987 c 202 § 130; 1895 c 65 § 4; RRS § 1002.] Intent—1987 c 202: See note following RCW 2.04.190. 7.16.050 7.16.050 Application for writ—Notice. The application must be made on affidavit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice. [1895 c 65 § 5; RRS § 1003.] 7.16.060 7.16.060 Writ, to whom directed. The writ may be directed to the inferior tribunal, board or officer, or to any other person having the custody of the record or proceedings to be certified. When directed to a tribunal the clerk, if there be one, must return the writ with the transcript required. [1895 c 65 § 6; RRS § 1004.] 7.16.070 Contents of writ. The writ of review must command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, a transcript of the record and proceedings (describing or referring to them with convenient certainty), that the same may be reviewed by the court, and requiring the party, in the meantime, to desist from further proceedings in the matter to be reviewed. [1895 c 65 § 7; RRS § 1005.] 7.16.070 7.16.080 7.16.080 Stay of proceedings. If a stay of proceedings be not intended, the words requiring the stay must be omitted [Title 7 RCW—page 13] 7.16.100 Title 7 RCW: Special Proceedings and Actions from the writ. These words may be inserted or omitted, in the sound discretion of the court, but if omitted the power of the inferior court or office is not suspended or the proceedings stayed. [1895 c 65 § 8; RRS § 1006.] MANDAMUS 7.16.150 7.16.150 Mandamus defined. The writ of mandamus may be denominated a writ of mandate. [1895 c 65 § 15; RRS § 1013.] 7.16.100 7.16.100 Service of writ. The writ may be served as follows, except where different directions respecting the mode of service thereof are given by the court granting it: (1) Where it is directed to a person or persons by name or by his or her official title or titles, or to a municipal corporation, it must be served upon each officer or other person to whom it is directed, or upon the corporation, in the same manner as a summons. (2) Where it is directed to a court, or to the judges of a court, having a clerk appointed pursuant to law, service upon the court or the judges thereof may be made by filing the writ with the clerk. [1895 c 65 § 10; RRS § 1008.] 7.16.160 7.16.160 Grounds for granting writ. It may be issued by any court, except a district or municipal court, to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board or person. [1987 c 202 § 131; 1987 c 3 § 3; 1895 c 65 § 16; RRS § 1014.] Intent—1987 c 202: See note following RCW 2.04.190. Severability—1987 c 3: See note following RCW 3.46.020. 7.16.170 7.16.110 7.16.110 Defective return—Further return—Hearing—Judgment. If the return of the writ be defective, the court may order a further return to be made. When a full return has been made, the court must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming or annulling or modifying the proceedings below. [1895 c 65 § 11; RRS § 1009.] 7.16.120 7.16.120 Questions involving merits to be determined. The questions involving the merits to be determined by the court upon the hearing are: (1) Whether the body or officer had jurisdiction of the subject matter of the determination under review. (2) Whether the authority, conferred upon the body or officer in relation to that subject matter, has been pursued in the mode required by law, in order to authorize it or to make the determination. (3) Whether, in making the determination, any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator. (4) Whether there was any competent proof of all the facts necessary to be proved, in order to authorize the making of the determination. (5) Whether the factual determinations were supported by substantial evidence. [1989 c 7 § 1; 1957 c 51 § 6; 1895 c 65 § 12; RRS § 1010.] 7.16.130 7.16.130 Copy of judgment to inferior tribunal, board, or officer. A copy of the judgment signed by the clerk, must be transmitted to the inferior tribunal, board or officer having the custody of the record or proceeding certified up. [1895 c 65 § 13; RRS § 1011.] 7.16.140 7.16.140 Judgment roll. A copy of the judgment signed by the clerk, entered upon or attached to the writ and return, constitute the judgment roll. [1895 c 65 § 14; RRS § 1012.] [Title 7 RCW—page 14] 7.16.170 Absence of remedy at law required—Affidavit. The writ must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It must be issued upon affidavit on the application of the party beneficially interested. [1895 c 65 § 17; RRS § 1015.] 7.16.180 7.16.180 Alternative or peremptory writs—Form. The writ may be either alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed, and command such party, immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court, at a specified time and place, why he has not done so. The peremptory writ must be in some similar form, except the words requiring the party to show cause why he has not done as commanded must be omitted and a return [day] inserted. [1895 c 65 § 18; RRS § 1016.] 7.16.190 7.16.190 Notice of application—No default. When the application to the court is made without notice to the party, and the writ be allowed, the alternative must be first issued; and if the application be upon due notice and the writ be allowed, the peremptory writ may be issued in the first instance. The notice of the application, when given, must be at least ten days. The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appear or not. [1895 c 65 § 19; RRS § 1017.] 7.16.200 7.16.200 Answer. On the return of the alternative, or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may show cause by answer, under oath, made in the same manner as an answer to a complaint in a civil action. [1895 c 65 § 20; RRS § 1018.] 7.16.210 7.16.210 Questions of fact, how determined. If an answer be made which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for the writ is based, the court may, in its discretion, order the question to be tried (2006 Ed.) Certiorari, Mandamus, and Prohibition before a jury, and postpone the argument until such trial can be had, and the verdict certified to the court. The question to be tried must be distinctly stated in the order for trial, and the county must be designated in which the same shall be had. The order may also direct the jury to assess any damages which the appellant may have sustained, in case they find for him. [1895 c 65 § 21; RRS § 1019.] 7.16.220 7.16.220 Applicant may demur to answer or countervail it by proof. On the trial the applicant is not precluded by the answer from any valid objections to its sufficiency, and may countervail it by proof, either in direct denial or by way of avoidance. [1895 c 65 § 22; RRS § 1020.] 7.16.350 imprisoned until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ. [1957 c 51 § 7; 1895 c 65 § 28; RRS § 1026.] PROHIBITION 7.16.290 7.16.290 Prohibition defined. The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. [1895 c 65 § 29; RRS § 1027.] 7.16.300 7.16.230 7.16.230 Motion for new trial, where made. The motion for new trial must be made in the court in which the issue of fact is tried. [1895 c 65 § 23; RRS § 1021.] 7.16.240 7.16.240 Certification of verdict—Argument. If no notice of a motion for a new trial be given, or if given, the motion be denied, the clerk, within five days after rendition of the verdict or denial of the motion, must transmit to the court in which the application for the writ is pending, a certified copy of the verdict attached to the order of trial, after which either party may bring on the argument of the application, upon reasonable notice to the adverse party. [1895 c 65 § 24; RRS § 1022.] 7.16.250 7.16.250 Hearing. If no answer be made, the case must be heard on the papers of the applicant. If the answer raises only questions of law, or puts in issue immaterial statements not affecting the substantial rights of the party, the court must proceed to hear or fix a day for hearing the argument of the case. [1895 c 65 § 25; RRS § 1023.] 7.16.260 7.16.260 Judgment for damages and costs—Peremptory mandate. If judgment be given for the applicant he may recover the damages which he has sustained, as found by the jury or as may be determined by the court or referee, upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue, and a peremptory mandate must also be awarded without delay. [1895 c 65 § 26; RRS § 1024.] 7.16.300 Grounds for granting writ—Affidavit. It may be issued by any court, except district or municipal courts, to an inferior tribunal, or to a corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It is issued upon affidavit, on the application of the person beneficially interested. [1987 c 202 § 132; 1895 c 65 § 30; RRS § 1028.] Intent—1987 c 202: See note following RCW 2.04.190. 7.16.310 7.16.310 Alternative or peremptory writs—Form. The writ must be either alternative or peremptory. The alternative writ must state generally the allegations against the party to whom it is directed, and command such party to desist or refrain from further proceedings in the action or matter specified therein until the further order of the court from which it is issued, and to show cause before such court, at a specified time and place, why such party should not be absolutely restrained from any further proceedings in such action or matter. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he should not be absolutely restrained, etc., must be omitted and a return day inserted. [1895 c 65 § 31; RRS § 1029.] 7.16.320 7.16.320 Provisions relating to mandate applicable. The provisions of this chapter relating to writ of mandate, apply to this proceeding. [1895 c 65 § 32; RRS § 1030.] IN GENERAL 7.16.330 7.16.270 7.16.270 Service of writ. The writ must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the court. Service upon a majority of the members of any board or body is service upon the board or body, whether at the time of the service the board or body was in session or not. [1895 c 65 § 27; RRS § 1025.] 7.16.280 7.16.280 Enforcement of writ—Penalty. When a temporary mandate has been issued and directed to any inferior tribunal, corporation, board or person upon whom the writ has been personally served and such tribunal, corporation, board, or person has without just excuse, refused or neglected to obey the same, the court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persistence in a refusal or disobedience, the court may order the party to be (2006 Ed.) 7.16.330 When writs may be made returnable. Writs of review, mandate, and prohibition issued by the supreme court, the court of appeals, or by a superior court, may, in the discretion of the court issuing the writ, be made returnable, and a hearing thereon be had at any time. [1971 c 81 § 29; 1895 c 65 § 33; RRS § 1031.] 7.16.340 7.16.340 Rules of practice. Except as otherwise provided in this chapter, the provisions of the code of procedure concerning civil actions are applicable to and constitute the rules of practice in the proceedings in this chapter. [1895 c 65 § 34; RRS § 1032.] 7.16.350 7.16.350 Appellate review. From a final judgment in the superior court, in any such proceeding, appellate review by the supreme court or the court of appeals may be sought as [Title 7 RCW—page 15] 7.16.360 Title 7 RCW: Special Proceedings and Actions in other actions. [1988 c 202 § 4; 1971 c 81 § 30; 1895 c 65 § 35; RRS § 1033.] Severability—1988 c 202: See note following RCW 2.24.050. 7.16.360 7.16.360 Inapplicability to action reviewable under Administrative Procedure Act or Land Use Petition Act. This chapter does not apply to state agency action reviewable under chapter 34.05 RCW or to land use decisions of local jurisdictions reviewable under chapter 36.70C RCW. [1995 c 347 § 716; 1989 c 175 § 38.] Finding—Severability—Part headings and table of contents not law—1995 c 347: See notes following RCW 36.70A.470. Effective date—1989 c 175: See note following RCW 34.05.010. 7.16.370 7.16.370 Enforcement of term limits for elected officials. Any resident of this state may bring suit to enforce RCW *43.01.015, 44.04.015, 29.68.015, 29.68.016, 29.51.173, and 29.15.240 and section 8, chapter 1, Laws of 1993. If the person prevails, the court shall award the person reasonable attorney’s fees and costs of suit. [1993 c 1 § 9 (Initiative Measure No. 573, approved November 3, 1992).] *Reviser’s note: RCW 43.01.015, 29.68.015, 29.68.016, 29.51.173, and 29.15.240 were repealed by 2003 c 111 § 2404, effective July 1, 2004. Preamble—Severability—1993 c 1 (Initiative Measure No. 573): See notes following RCW 44.04.015. Chapter 7.21 Chapter 7.21 RCW CONTEMPT OF COURT Sections 7.21.010 7.21.020 7.21.030 7.21.040 7.21.050 7.21.060 7.21.070 7.21.900 Definitions. Sanctions—Who may impose. Remedial sanctions—Payment for losses. Punitive sanctions—Fines. Sanctions—Summary imposition—Procedure. Administrative actions or proceedings—Petition to court for imposition of sanctions. Appellate review. Severability—1989 c 373. 7.21.010 7.21.010 Definitions. The definitions in this section apply throughout this chapter: (1) "Contempt of court" means intentional: (a) Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority, or to interrupt the due course of a trial or other judicial proceedings; (b) Disobedience of any lawful judgment, decree, order, or process of the court; (c) Refusal as a witness to appear, be sworn, or, without lawful authority, to answer a question; or (d) Refusal, without lawful authority, to produce a record, document, or other object. (2) "Punitive sanction" means a sanction imposed to punish a past contempt of court for the purpose of upholding the authority of the court. (3) "Remedial sanction" means a sanction imposed for the purpose of coercing performance when the contempt consists of the omission or refusal to perform an act that is yet in the person’s power to perform. [1989 c 373 § 1.] [Title 7 RCW—page 16] 7.21.020 7.21.020 Sanctions—Who may impose. A judge or commissioner of the supreme court, the court of appeals, or the superior court, a judge of a court of limited jurisdiction, and a commissioner of a court of limited jurisdiction may impose a sanction for contempt of court under this chapter. [1998 c 3 § 1; 1989 c 373 § 2.] 7.21.030 7.21.030 Remedial sanctions—Payment for losses. (1) The court may initiate a proceeding to impose a remedial sanction on its own motion or on the motion of a person aggrieved by a contempt of court in the proceeding to which the contempt is related. Except as provided in RCW 7.21.050, the court, after notice and hearing, may impose a remedial sanction authorized by this chapter. (2) If the court finds that the person has failed or refused to perform an act that is yet within the person’s power to perform, the court may find the person in contempt of court and impose one or more of the following remedial sanctions: (a) Imprisonment if the contempt of court is of a type defined in RCW 7.21.010(1) (b) through (d). The imprisonment may extend only so long as it serves a coercive purpose. (b) A forfeiture not to exceed two thousand dollars for each day the contempt of court continues. (c) An order designed to ensure compliance with a prior order of the court. (d) Any other remedial sanction other than the sanctions specified in (a) through (c) of this subsection if the court expressly finds that those sanctions would be ineffectual to terminate a continuing contempt of court. (e) In cases under chapters 13.32A, 13.34, and 28A.225 RCW, commitment to juvenile detention for a period of time not to exceed seven days. This sanction may be imposed in addition to, or as an alternative to, any other remedial sanction authorized by this chapter. This remedy is specifically determined to be a remedial sanction. (3) The court may, in addition to the remedial sanctions set forth in subsection (2) of this section, order a person found in contempt of court to pay a party for any losses suffered by the party as a result of the contempt and any costs incurred in connection with the contempt proceeding, including reasonable attorney’s fees. (4) If the court finds that a person under the age of eighteen years has willfully disobeyed the terms of an order issued under chapter 10.14 RCW, the court may find the person in contempt of court and may, as a sole sanction for such contempt, commit the person to juvenile detention for a period of time not to exceed seven days. [2001 c 260 § 6; 1998 c 296 § 36; 1989 c 373 § 3.] Findings—Intent—2001 c 260: See note following RCW 10.14.020. Findings—Intent—1998 c 296 §§ 36-39: "The legislature finds that an essential component of the children in need of services, dependency, and truancy laws is the use of juvenile detention. As chapter 7.21 RCW is currently written, courts may not order detention time without a criminal charge being filed. It is the intent of the legislature to avoid the bringing of criminal charges against youth who need the guidance of the court rather than its punishment. The legislature further finds that ordering a child placed in detention is a remedial action, not a punitive one. Since the legislature finds that the state is required to provide instruction to children in detention, use of the courts’ contempt powers is an effective means for furthering the education and protection of these children. Thus, it is the intent of the legislature to authorize a limited sanction of time in juvenile detention independent of chapter 7.21 RCW for failure to comply with court orders in truancy, child in need of services, at-risk youth, and dependency cases for the sole purpose of (2006 Ed.) Uniform Declaratory Judgments Act providing the courts with the tools necessary to enforce orders in these limited types of cases because other statutory contempt remedies are inadequate." [1998 c 296 § 35.] Findings—Intent—Part headings not law—Short title—1998 c 296: See notes following RCW 74.13.025. 7.21.040 7.21.040 Punitive sanctions—Fines. (1) Except as otherwise provided in RCW 7.21.050, a punitive sanction for contempt of court may be imposed only pursuant to this section. (2)(a) An action to impose a punitive sanction for contempt of court shall be commenced by a complaint or information filed by the prosecuting attorney or city attorney charging a person with contempt of court and reciting the punitive sanction sought to be imposed. (b) If there is probable cause to believe that a contempt has been committed, the prosecuting attorney or city attorney may file the information or complaint on his or her own initiative or at the request of a person aggrieved by the contempt. (c) A request that the prosecuting attorney or the city attorney commence an action under this section may be made by a judge presiding in an action or proceeding to which a contempt relates. If required for the administration of justice, the judge making the request may appoint a special counsel to prosecute an action to impose a punitive sanction for contempt of court. A judge making a request pursuant to this subsection shall be disqualified from presiding at the trial. (d) If the alleged contempt involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial of the contempt unless the person charged consents to the judge presiding at the trial. (3) The court may hold a hearing on a motion for a remedial sanction jointly with a trial on an information or complaint seeking a punitive sanction. (4) A punitive sanction may be imposed for past conduct that was a contempt of court even though similar present conduct is a continuing contempt of court. (5) If the defendant is found guilty of contempt of court under this section, the court may impose for each separate contempt of court a fine of not more than five thousand dollars or imprisonment in the county jail for not more than one year, or both. [1989 c 373 § 4.] 7.21.050 7.21.050 Sanctions—Summary imposition—Procedure. (1) The judge presiding in an action or proceeding may summarily impose either a remedial or punitive sanction authorized by this chapter upon a person who commits a contempt of court within the courtroom if the judge certifies that he or she saw or heard the contempt. The judge shall impose the sanctions immediately after the contempt of court or at the end of the proceeding and only for the purpose of preserving order in the court and protecting the authority and dignity of the court. The person committing the contempt of court shall be given an opportunity to speak in mitigation of the contempt unless compelling circumstances demand otherwise. The order of contempt shall recite the facts, state the sanctions imposed, and be signed by the judge and entered on the record. (2006 Ed.) 7.24.010 (2) A court, after a finding of contempt of court in a proceeding under subsection (1) of this section may impose for each separate contempt of court a punitive sanction of a fine of not more than five hundred dollars or imprisonment in the county jail for not more than thirty days, or both, or a remedial sanction set forth in RCW 7.21.030(2). A forfeiture imposed as a remedial sanction under this subsection may not exceed more than five hundred dollars for each day the contempt continues. [1989 c 373 § 5.] 7.21.060 7.21.060 Administrative actions or proceedings— Petition to court for imposition of sanctions. A state administrative agency conducting an action or proceeding or a party to the action or proceeding may petition the superior court in the county in which the action or proceeding is being conducted for a remedial sanction specified in RCW 7.21.030 for conduct specified in RCW 7.21.010 in the action or proceeding. [1989 c 373 § 6.] 7.21.070 Appellate review. A party in a proceeding or action under this chapter may seek appellate review under applicable court rules. Appellate review does not stay the proceedings in any other action, suit, or proceeding, or any judgment, decree, or order in the action, suit, or proceeding to which the contempt relates. [1989 c 373 § 7.] 7.21.070 7.21.900 7.21.900 Severability—1989 c 373. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1989 c 373 § 30.] Chapter 7.24 RCW UNIFORM DECLARATORY JUDGMENTS ACT Chapter 7.24 Sections 7.24.010 7.24.020 7.24.030 7.24.050 7.24.060 7.24.070 7.24.080 7.24.090 7.24.100 7.24.110 7.24.120 7.24.130 7.24.135 7.24.140 7.24.144 7.24.146 7.24.190 Authority of courts to render. Rights and status under written instruments, statutes, ordinances. Construction of contracts. General powers not restricted by express enumeration. Refusal of declaration where judgment would not terminate controversy. Review. Further relief. Determination of issues of fact. Costs. Parties—City as party—Attorney general to be served, when. Construction of chapter. "Person" defined. Severability—1935 c 113. General purpose stated. Short title. Application of chapter—Validation of proceedings. Court may stay proceedings and restrain parties. Rules of court: Cf. CR 57. 7.24.010 7.24.010 Authority of courts to render. Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. An action or proceeding shall not be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final [Title 7 RCW—page 17] 7.24.020 Title 7 RCW: Special Proceedings and Actions judgment or decree. [1937 c 14 § 1; 1935 c 113 § 1; RRS § 784-1.] 7.24.020 7.24.020 Rights and status under written instruments, statutes, ordinances. A person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. [1935 c 113 § 2; RRS § 7842.] 7.24.030 7.24.030 Construction of contracts. A contract may be construed either before or after there has been a breach thereof. [1935 c 113 § 3; RRS § 784-3.] 7.24.050 7.24.050 General powers not restricted by express enumeration. The enumeration in RCW 7.24.020 and 7.24.030 does not limit or restrict the exercise of the general powers conferred in RCW 7.24.010, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty. [1985 c 9 § 2. Prior: 1984 c 149 § 3; 1935 c 113 § 5; RRS § 784-5.] Purpose—Reenactment—1985 c 9: "The purpose of this act is to make technical corrections to chapter 149, Laws of 1984, and to ensure that the changes made in that chapter meet the constitutional requirements of Article II, section 19 of the state Constitution." [1985 c 9 § 1.] 7.24.090 7.24.090 Determination of issues of fact. When a proceeding under this chapter involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions, in the court in which the proceeding is pending. [1935 c 113 § 9; RRS § 784-9.] 7.24.100 7.24.100 Costs. In any proceeding under this chapter, the court may make such award of costs as may seem equitable and just. [1935 c 113 § 10; RRS § 784-10.] 7.24.110 7.24.110 Parties—City as party—Attorney general to be served, when. When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard. [1935 c 113 § 11; RRS § 784-11.] 7.24.120 7.24.120 Construction of chapter. This chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered. [1935 c 113 § 12; RRS § 784-12.] 7.24.130 Severability—1985 c 9: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 9 § 4.] Reviser’s note: 1985 c 9 reenacted RCW 7.24.050 without amendment. Short title—Application—1984 c 30: See RCW 11.02.900 and 11.02.901. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 7.24.060 7.24.060 Refusal of declaration where judgment would not terminate controversy. The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. [1935 c 113 § 6; RRS § 784-6.] 7.24.070 7.24.070 Review. All orders, judgments and decrees under this chapter may be reviewed as other orders, judgments and decrees. [1935 c 113 § 7; RRS § 784-7.] 7.24.130 "Person" defined. The word "person" wherever used in this chapter, shall be construed to mean any person, partnership, joint stock company, unincorporated association or society, or municipal or other corporation of any character whatsoever. [1935 c 113 § 13; RRS § 784-13.] 7.24.135 7.24.135 Severability—1935 c 113. The several sections and provisions of this chapter, except RCW 7.24.010 and 7.24.020, are hereby declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the chapter invalid or inoperative. [1935 c 113 § 14; RRS § 784-14.] 7.24.140 7.24.140 General purpose stated. This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees. [1935 c 113 § 15; RRS § 784-15.] 7.24.144 7.24.080 7.24.080 Further relief. Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. When the application is deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith. [1935 c 113 § 8; RRS § 784-8.] [Title 7 RCW—page 18] 7.24.144 Short title. This chapter may be cited as the Uniform Declaratory Judgments Act. [1935 c 113 § 16; RRS § 784-16.] 7.24.146 7.24.146 Application of chapter—Validation of proceedings. This chapter shall apply to all actions and proceedings now pending in the courts of record of the state of Washington seeking relief under the terms of the uniform declaratory judgments act [this chapter]; and all judgments heretofore rendered; and all such actions and proceedings (2006 Ed.) Declaratory Judgments of Local Bond Issues heretofore instituted and now pending in said courts of record of the state of Washington, seeking such relief, are hereby validated, and the respective courts of record in said actions shall have jurisdiction and power to proceed in said actions and to declare the rights, status and other legal relations sought to have been declared in said pending actions and proceedings in accordance with the provisions of said chapter. This chapter does not apply to state agency action reviewable under chapter 34.05 RCW. [1989 c 175 § 39; 1937 c 14 § 2; RRS § 784-17.] Effective date—1989 c 175: See note following RCW 34.05.010. 7.24.190 7.24.190 Court may stay proceedings and restrain parties. The court, in its discretion and upon such conditions and with or without such bond or other security as it deems necessary and proper, may stay any ruling, order, or any court proceedings prior to final judgment or decree and may restrain all parties involved in order to secure the benefits and preserve and protect the rights of all parties to the court proceedings. [1965 c 131 § 1.] Rules of court: CR 57. Chapter 7.25 RCW DECLARATORY JUDGMENTS OF LOCAL BOND ISSUES Chapter 7.25 Sections 7.25.005 7.25.010 7.25.020 7.25.030 7.25.040 Definitions. Validity of bond issues may be tested. Complaint—Defendants—Service—Intervention—Attorney’s fee—Notice of action. Judgment as to validity of all or part of bond issue—Effect. Other declaratory judgment provisions applicable. Local bond issues generally: Title 39 RCW. 7.25.005 7.25.005 Definitions. As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise: (1) "Government entity" means the state of Washington, the state finance committee, any county, city, school district, other municipal corporation, taxing district, or any agency, instrumentality, or public corporation thereof. (2) "Bonds" means one or more bonds, notes, or other evidences of indebtedness. (3) "Interested parties" means all taxpayers, ratepayers, or any other persons who have any obligations, rights, or other interests in the bonds or issuance thereof, or the project or purpose for which the bonds were issued or are to be issued. [1999 c 284 § 2.] 7.25.010 7.25.010 Validity of bond issues may be tested. Whenever the legislative or governing body of the state or any county, city, school district, other municipal corporation, taxing district, or any agency, instrumentality, or public corporation thereof shall desire to issue bonds of any kind and shall have passed an ordinance or resolution authorizing the same, the validity of such proposed bond issue may be tested and determined in the manner provided in this chapter. [1999 c 284 § 1; 1983 c 263 § 1; 1939 c 153 § 1; RRS § 5616-11. Formerly RCW 7.24.150.] (2006 Ed.) 7.25.040 7.25.020 7.25.020 Complaint—Defendants—Service—Intervention—Attorney’s fee—Notice of action. A complaint shall be prepared and filed in the superior court by such government entity setting forth such ordinance or resolution and that it is the purpose of the plaintiff to issue and sell bonds as stated therein and that it is desired that the right of the plaintiff to so issue such bonds and sell the same shall be tested and determined in said action. In said action all interested parties shall be deemed to be defendants. The title of the action shall be "In re (name of bond issue)." Upon the filing of the complaint the court shall, upon the application of the plaintiff, enter an order naming one or more interested parties upon whom service in said action shall be made as the representative of all interested parties, except such as may intervene as herein provided, and in such case the court shall fix and allow a reasonable attorney’s fee in said action to the attorney who shall represent the representative interested parties as aforesaid, and such fee and all taxable costs incurred by such representative interested parties shall be taxed as costs against the plaintiff: PROVIDED, That if the interested parties appointed by the court shall default, the court shall appoint an attorney who shall defend said action on behalf of all interested parties, and such attorney shall be allowed a reasonable fee and taxable costs to be taxed against the plaintiff: PROVIDED FURTHER, That after filing the complaint, the plaintiff shall twice place a notice in a newspaper of general circulation within the boundaries of the government entity, stating the title of the action, informing the interested parties that the action has been commenced testing the validity of the bonds, and stating that any interested parties, as that term is defined herein, may intervene in such action and be represented therein by his own attorney. Thereupon, any interested parties who desire to intervene must apply to the court to intervene within ten days after the second publication of the notice. [1999 c 284 § 3; 1983 c 263 § 2; 1939 c 153 § 2; RRS § 5616-12. Formerly RCW 7.24.160.] 7.25.030 7.25.030 Judgment as to validity of all or part of bond issue—Effect. The court in such action shall enter its judgment determining whether or not the bonds as proposed will be valid, and if the court finds that a portion, but not all, of the said bond issue is authorized by law, the court shall so declare, and find by its judgment what portion of such bond issue will be valid, and the judgment in said action shall be conclusive and binding upon all interested parties and upon all other persons. [1999 c 284 § 4; 1939 c 153 § 3; RRS § 5616-13. Formerly RCW 7.24.170.] 7.25.040 7.25.040 Other declaratory judgment provisions applicable. Except as otherwise herein provided, all the provisions of the laws of Washington relating to declaratory judgments shall apply to the action herein provided for. The remedy and procedure herein provided shall be in addition to other remedies and procedures now provided by law. [1999 c 284 § 5; 1939 c 153 § 4; RRS § 5616-14. Formerly RCW 7.24.180.] Uniform Declaratory Judgments Act: Chapter 7.24 RCW. [Title 7 RCW—page 19] Chapter 7.28 Chapter 7.28 Title 7 RCW: Special Proceedings and Actions Chapter 7.28 RCW EJECTMENT, QUIETING TITLE Sections 7.28.010 7.28.050 7.28.060 7.28.070 7.28.080 7.28.085 7.28.090 7.28.100 7.28.110 7.28.120 7.28.130 7.28.140 7.28.150 7.28.160 7.28.170 7.28.180 7.28.190 7.28.200 7.28.210 7.28.220 7.28.230 7.28.240 7.28.250 7.28.260 7.28.270 7.28.280 7.28.300 7.28.310 7.28.320 Who may maintain actions—Service on nonresident defendant. Limitation of actions for recovery of real property—Adverse possession under title deducible of record. Rights inhere to heirs, devisees and assigns. Adverse possession under claim and color of title—Payment of taxes. Color of title to vacant and unoccupied land. Adverse possession—Forest land—Additional requirements—Exceptions. Adverse possession—Public lands—Adverse title in infants, etc. Construction. Substitution of landlord in action against tenant. Pleadings—Superior title prevails. Defendant must plead nature of his estate or right to possession. Verdict of jury. Damages—Limitation—Permanent improvements. Defendant’s counterclaim for permanent improvements and taxes paid. Defendant’s counterclaim for permanent improvements and taxes paid—Pleadings, issues and trial on counterclaim. Defendant’s counterclaim for permanent improvements and taxes paid—Judgment on counterclaim—Payment. Verdict where plaintiff’s right to possession expires before trial. Order for survey of property. Order for survey of property—Contents of order—Service. Alienation by defendant, effect of. Mortgagee cannot maintain action for possession—Possession to collect mortgaged, pledged, or assigned rents and profits—Perfection of security interest. Action between cotenants. Action against tenant on failure to pay rent. Effect of judgment—Lis pendens—Vacation. Effect of vacation of judgment. Conflicting claims, donation law, generally—Joinder of parties. Quieting title against outlawed mortgage or deed of trust. Quieting title to personal property. Possession no defense. Forcible and unlawful entry, detainer: Chapters 59.12, 59.16 RCW. Liens: Title 60 RCW. Real property: Title 64 RCW. Rent default, less than forty dollars: Chapter 59.08 RCW. Tenancies: Chapter 59.04 RCW. 7.28.010 7.28.010 Who may maintain actions—Service on nonresident defendant. Any person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action in the superior court of the proper county, to be brought against the tenant in possession; if there is no such tenant, then against the person claiming the title or some interest therein, and may have judgment in such action quieting or removing a cloud from plaintiff’s title; an action to quiet title may be brought by the known heirs of any deceased person, or of any person presumed in law to be deceased, or by the successors in interest of such known heirs against the unknown heirs of such deceased person or against such person presumed to be deceased and his unknown heirs, and if it shall be made to appear in such action that the plaintiffs are heirs of the deceased person, or the person presumed in law to be deceased, or the successors in interest of such heirs, and have been in possession of the real property involved in such action for ten years preceding the time of the commencement of such action, and that during said time no person other than [Title 7 RCW—page 20] the plaintiff in the action or his grantors has claimed or asserted any right or title or interest in said property, the court may adjudge and decree the plaintiff or plaintiffs in such action to be the owners of such real property, free from all claims of any unknown heirs of such deceased person, or person presumed in law to be deceased; and an action to quiet title may be maintained by any person in the actual possession of real property against the unknown heirs of a person known to be dead, or against any person where it is not known whether such person is dead or not, and against the unknown heirs of such person, and if it shall thereafter transpire that such person was at the time of commencing such action dead the judgment or decree in such action shall be as binding and conclusive on the heirs of such person as though they had been known and named; and in all actions, under this section, to quiet or remove a cloud from the title to real property, if the defendant be absent or a nonresident of this state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons, service may be made upon such defendant by publication of summons as provided by law; and the court may appoint a trustee for such absent or nonresident defendant, to make or cancel any deed or conveyance of whatsoever nature, or do any other act to carry into effect the judgment or the decree of the court. [1911 c 83 § 1; 1890 c 72 § 1; Code 1881 § 536; 1879 p 134 § 1; 1877 p 112 § 540; 1869 p 128 § 488; 1854 p 205 § 398; RRS § 785. Formerly RCW 7.28.010, 7.28.020, 7.28.030, and 7.28.040.] Process, publication, etc.: Chapter 4.28 RCW. Publication of legal notices: Chapter 65.16 RCW. 7.28.050 7.28.050 Limitation of actions for recovery of real property—Adverse possession under title deducible of record. That all actions brought for the recovery of any lands, tenements or hereditaments of which any person may be possessed by actual, open and notorious possession for seven successive years, having a connected title in law or equity deducible of record from this state or the United States, or from any public officer, or other person authorized by the laws of this state to sell such land for the nonpayment of taxes, or from any sheriff, marshal or other person authorized to sell such land on execution or under any order, judgment or decree of any court of record, shall be brought within seven years next after possession being taken as aforesaid, but when the possessor shall acquire title after taking such possession, the limitation shall begin to run from the time of acquiring title. [1893 c 11 § 1; RRS § 786.] 7.28.060 7.28.060 Rights inhere to heirs, devisees and assigns. The heirs, devisees and assigns of the person having such title and possession shall have the same benefit of RCW 7.28.050 as the person from whom the possession is derived. [1893 c 11 § 2; RRS § 787.] 7.28.070 7.28.070 Adverse possession under claim and color of title—Payment of taxes. Every person in actual, open and notorious possession of lands or tenements under claim and color of title, made in good faith, and who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tene(2006 Ed.) Ejectment, Quieting Title ments, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, devise or descent, before said seven years shall have expired, and who shall continue such possession and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section. [1893 c 11 § 3; RRS § 788.] 7.28.080 7.28.080 Color of title to vacant and unoccupied land. Every person having color of title made in good faith to vacant and unoccupied land, who shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land to the extent and according to the purport of his or her paper title. All persons holding under such taxpayer, by purchase, devise or descent, before said seven years shall have expired, and who shall continue to pay the taxes as aforesaid, so as to complete the payment of said taxes for the term aforesaid, shall be entitled to the benefit of this section: PROVIDED, HOWEVER, If any person having a better paper title to said vacant and unoccupied land shall, during the said term of seven years, pay the taxes as assessed on said land for any one or more years of said term of seven years, then and in that case such taxpayer, his heirs or assigns, shall not be entitled to the benefit of this section. [1893 c 11 § 4; RRS § 789.] 7.28.085 7.28.085 Adverse possession—Forest land—Additional requirements—Exceptions. (1) In any action seeking to establish an adverse claimant as the legal owner of a fee or other interest in forest land based on a claim of adverse possession, and in any defense to an action brought by the holder of record title for recovery of title to or possession of a fee or other interest in forest land where such defense is based on a claim of adverse possession, the adverse claimant shall not be deemed to have established open and notorious possession of the forest lands at issue unless, as a minimum requirement, the adverse claimant establishes by clear and convincing evidence that the adverse claimant has made or erected substantial improvements, which improvements have remained entirely or partially on such lands for at least ten years. If the interests of justice so require, the making, erecting, and continuous presence of substantial improvements on the lands at issue, in the absence of additional acts by the adverse claimant, may be found insufficient to establish open and notorious possession. (2) This section shall not apply to any adverse claimant who establishes by clear and convincing evidence that the adverse claimant occupied the lands at issue and made continuous use thereof for at least ten years in good faith reliance on location stakes or other boundary markers set by a registered land surveyor purporting to establish the boundaries of property to which the adverse claimant has record title. (3) For purposes of this section: (a) "Adverse claimant" means any person, other than the holder of record title, occupying the lands at issue together with any prior occupants of the land in privity with such person by purchase, devise, or decent [descent]; (2006 Ed.) 7.28.110 (b) "Claim of adverse possession" does not include a claim asserted under RCW 7.28.050, 7.28.070, or 7.28.080; (c) "Forest land" has the meaning given in *RCW 84.33.100; and (d) "Substantial improvement" means a permanent or semipermanent structure or enclosure for which the costs of construction exceeded fifty thousand dollars. (4) This section shall not apply to any adverse claimant who, before June 11, 1998, acquired title to the lands in question by adverse possession under the law then in effect. (5) This section shall not apply to any adverse claimant who seeks to assert a claim or defense of adverse possession in an action against any person who, at the time such action is commenced, owns less than twenty acres of forest land in the state of Washington. [1998 c 57 § 1.] *Reviser’s note: RCW 84.33.100 was repealed by 2001 c 249 § 16. 7.28.090 7.28.090 Adverse possession—Public lands— Adverse title in infants, etc. RCW 7.28.070 and 7.28.080 shall not extend to lands or tenements owned by the United States or this state, nor to school lands, nor to lands held for any public purpose. Nor shall they extend to lands or tenements when there shall be an adverse title to such lands or tenements, and the holder of such adverse title is a person under eighteen years of age, or incompetent within the meaning of RCW 11.88.010: PROVIDED, Such persons as aforesaid shall commence an action to recover such lands or tenements so possessed as aforesaid, within three years after the several disabilities herein enumerated shall cease to exist, and shall prosecute such action to judgment, or in case of vacant and unoccupied land shall, within the time last aforesaid, pay to the person or persons who have paid the same for his or her betterments, and the taxes, with interest on said taxes at the legal rate per annum that have been paid on said vacant and unimproved land. [1977 ex.s. c 80 § 7; 1971 ex.s. c 292 § 7; 1893 c 11 § 5; RRS § 790.] Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. Severability—1971 ex.s. c 292: See note following RCW 26.28.010. 7.28.100 7.28.100 Construction. That the provisions of RCW 7.28.050 through 7.28.100 shall be liberally construed for the purposes set forth in those sections. [1893 c 11 § 6; RRS § 791.] 7.28.110 7.28.110 Substitution of landlord in action against tenant. A defendant who is in actual possession may, for answer, plead that he is in possession only as a tenant of another, naming him and his place of residence, and thereupon the landlord, if he applies therefor, shall be made defendant in place of the tenant, and the action shall proceed in all respects as if originally commenced against him. If the landlord does not apply to be made defendant within the time the tenant is allowed to answer, thereafter he shall not be allowed to, but he shall be made defendant if the plaintiff require it. If the landlord be made defendant on motion of the plaintiff he shall be required to appear and answer within ten days from notice of the pendency of the action and the order making him defendant, or such further notice as the court or judge [Title 7 RCW—page 21] 7.28.120 Title 7 RCW: Special Proceedings and Actions thereof may prescribe. [Code 1881 § 537; 1877 p 112 § 541; 1869 p 128 § 489; RRS § 792.] 7.28.120 7.28.120 Pleadings—Superior title prevails. The plaintiff in such action shall set forth in his complaint the nature of his estate, claim or title to the property, and the defendant may set up a legal or equitable defense to plaintiff’s claims; and the superior title, whether legal or equitable, shall prevail. The property shall be described with such certainty as to enable the possession thereof to be delivered if a recovery be had. [Code 1881 § 538; 1879 p 134 § 2; 1877 p 113 § 542; 1869 p 128 § 490; RRS § 793.] 7.28.130 7.28.130 Defendant must plead nature of his estate or right to possession. The defendant shall not be allowed to give in evidence any estate in himself or another in the property, or any license or right to the possession thereof unless the same be pleaded in his answer. If so pleaded, the nature and duration of such estate, or license or right to the possession, shall be set forth with the certainty and particularity required in a complaint. If the defendant does not defend for the whole of the property, he shall specify for what particular part he does defend. In an action against a tenant, the judgment shall be conclusive against a landlord who has been made defendant in place of the tenant, to the same extent as if the action had been originally commenced against him. [Code 1881 § 539; 1877 p 113 § 543; 1869 p 129 § 491; RRS § 794.] a setoff against such damages. [Code 1881 § 541; 1877 p 113 § 545; 1869 p 129 § 493; RRS § 796.] Reviser’s note: Compare the last sentence of this section with RCW 7.28.160 through 7.28.180. 7.28.160 7.28.160 Defendant’s counterclaim for permanent improvements and taxes paid. In an action for the recovery of real property upon which permanent improvements have been made or general or special taxes or local assessments have been paid by a defendant, or those under whom he claims, holding in good faith under color or claim of title adversely to the claim of plaintiff, the value of such improvements and the amount of such taxes or assessments with interest thereon from date of payment must be allowed as a counterclaim to the defendant. [1903 c 137 § 1; RRS § 797.] 7.28.170 7.28.170 Defendant’s counterclaim for permanent improvements and taxes paid—Pleadings, issues and trial on counterclaim. The counterclaim shall set forth the value of the land apart from the improvements, and the nature and value of the improvements apart from the land and the amount of said taxes and assessments so paid, and the date of payment. Issues shall be joined and tried as in other actions, and the value of the land and the amount of said taxes and assessments apart from the improvements, and the value of the improvements apart from the land must be specifically found by the verdict of the jury, report of the referee, or findings of the court as the case may be. [1903 c 137 § 2; RRS § 798.] 7.28.140 7.28.140 Verdict of jury. The jury by their verdict shall find as follows: (1) If the verdict be for the plaintiff, that he is entitled to the possession of the property described in the complaint, or some part thereof, or some undivided share or interest in either, and the nature and duration of his estate in such property, part thereof, or undivided share or interest, in either, as the case may be. (2) If the verdict be for the defendant, that the plaintiff is not entitled to the possession of the property described in the complaint, or to such part thereof as the defendant defends for, and the estate in such property or part thereof, or license, or right to the possession of either established on the trial by the defendant, if any, in effect as the same is required to be pleaded. [Code 1881 § 540; 1877 p 113 § 544; 1869 p 129 § 492; RRS § 795.] Rules of court: CR 49. General, special verdicts: RCW 4.44.410 through 4.44.440. 7.28.150 7.28.150 Damages—Limitat ion—Permanent improvements. The plaintiff shall only be entitled to recover damages for withholding the property for the term of six years next preceding the commencement of the action, and for any period that may elapse from such commencement, to the time of giving a verdict therein, exclusive of the use of permanent improvements made by the defendant. When permanent improvements have been made upon the property by the defendant, or those under whom he claims holding under color of title adversely to the claim of the plaintiff, in good faith, the value thereof at the time of trial shall be allowed as [Title 7 RCW—page 22] 7.28.180 7.28.180 Defendant’s counterclaim for permanent improvements and taxes paid—Judgment on counterclaim—Payment. If the judgment be in favor of the plaintiff for the recovery of the realty, and of the defendant upon the counterclaim, the plaintiff shall be entitled to recover such damages as he may be found to have suffered through the withholding of the premises and waste committed thereupon by the defendant or those under whom he claims, but against this recovery shall be offset pro tanto the value of the permanent improvements and the amount of said taxes and assessments with interest found as above provided. Should the value of improvements or taxes or assessments with interest exceed the recovery for damages, the plaintiff, shall, within two months, pay to the defendant the difference between the two sums and upon proof, after notice, to the defendant, that this has been done, the court shall make an order declaring that fact, and that title to the improvements is vested in him. Should the plaintiff fail to make such payment, the defendant may at any time within two months after the time limited for such payment to be made, pay to the plaintiff the value of the land apart from the improvements, and the amount of the damages awarded against him, and he thereupon shall be vested with title to the land, and, after notice to the plaintiff, the court shall make an order reciting the fact and adjudging title to be in him. Should neither party make the payment above provided, within the specified time, they shall be deemed to be tenants in common of the premises, including the improvements, each holding an interest proportionate to the value of his property determined in the manner specified in RCW 7.28.170: PROVIDED, That the interest of the (2006 Ed.) Ejectment, Quieting Title owner of the improvements shall be the difference between the value of the improvements and the amount of damages recovered against him by the plaintiff. [1903 c 137 § 3; RRS § 799.] 7.28.190 7.28.190 Verdict where plaintiff’s right to possession expires before trial. If the right of the plaintiff to the possession of the property expire, after the commencement of the action and before the trial, the verdict shall be given according to the fact, and judgment shall be given only for the damages. [Code 1881 § 542; 1877 p 114 § 546; 1869 p 130 § 494; RRS § 800.] 7.28.200 7.28.200 Order for survey of property. The court or judge thereof, on motion, and after notice to the adverse party, may, for cause shown, grant an order allowing the party applying therefor to enter upon the property in controversy and make survey and admeasurement thereof, for the purposes of the action. [Code 1881 § 543; 1877 p 114 § 547; 1869 p 130 § 495; RRS § 801.] 7.28.210 7.28.210 Order for survey of property—Contents of order—Service. The order shall describe the property, and a copy thereof shall be served upon the defendant, and thereupon the party may enter upon the property and make such survey and admeasurement; but if any unnecessary injury be done to the premises, he shall be liable therefor. [Code 1881 § 544; 1877 p 114 § 548; 1869 p 130 § 496; RRS § 802.] 7.28.220 7.28.220 Alienation by defendant, effect of. An action for the recovery of the possession of real property against a person in possession, cannot be prejudiced by any alienation made by such person either before or after the commencement of the action; but if such alienation be made after the commencement of the action, and the defendant do not satisfy the judgment recovered for damages for withholding the possession, such damages may be recovered by action against the purchaser. [Code 1881 § 545; 1877 p 114 § 549; 1869 p 130 § 497; RRS § 803.] 7.28.230 7.28.230 Mortgagee cannot maintain action for possession—Possession to collect mortgaged, pledged, or assigned rents and profits—Perfection of security interest. (1) A mortgage of any interest in real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property, without a foreclosure and sale according to law: PROVIDED, That nothing in this section shall be construed as any limitation upon the right of the owner of real property to mortgage, pledge or assign the rents and profits thereof, nor as prohibiting the mortgagee, pledgee or assignee of such rents and profits, or any trustee under a mortgage or trust deed either contemporaneously or upon the happening of a future event of default, from entering into possession of any real property, other than farm lands or the homestead of the mortgagor or his successor in interest, for the purpose of collecting the rents and profits thereof for application in accordance with the provisions of the mortgage or trust deed or other instrument creating the lien, nor as any limitation upon the power of a court of equity to appoint a receiver to take charge of (2006 Ed.) 7.28.260 such real property and collect such rents and profits thereof for application in accordance with the terms of such mortgage, trust deed or assignment. (2) Until paid, the rents and profits of real property constitute real property for the purposes of mortgages, trust deeds or assignments whether or not said rents and profits have accrued. The provisions of RCW 65.08.070 as now or hereafter amended shall be applicable to such rents and profits, and such rents and profits are excluded from *Article 62A.9 RCW. (3) The recording of an assignment, mortgage, or pledge of unpaid rents and profits of real property, intended as security, in accordance with RCW 65.08.070, shall immediately perfect the security interest in the assignee, mortgagee, or pledgee and shall not require any further action by the holder of the security interest to be perfected as to any subsequent purchaser, mortgagee, or assignee. Any lien created by such assignment, mortgage, or pledge shall, when recorded, be deemed specific, perfected, and choate even if recorded prior to July 23, 1989. [1991 c 188 § 1; 1989 c 73 § 1; 1969 ex.s. c 122 § 1; Code 1881 § 546; 1877 p 114 § 550; 1869 p 130 § 498; RRS § 804.] *Reviser’s note: Article 62A.9 RCW was repealed in its entirety by 2000 c 250 § 9A-901, effective July 1, 2001. For later enactment, see Article 62A.9A RCW. 7.28.240 7.28.240 Action between cotenants. In an action by a tenant in common, or a joint tenant of real property against his cotenant, the plaintiff must show, in addition to his evidence of right, that the defendant either denied the plaintiff’s right or did some act amounting to such denial. [Code 1881 § 547; 1877 p 114 § 551; 1869 p 130 § 499; RRS § 805.] 7.28.250 7.28.250 Action against tenant on failure to pay rent. When in the case of a lease of real property and the failure of tenant to pay rent, the landlord has a subsisting right to reenter for such failure; he may bring an action to recover the possession of such property, and such action is equivalent to a demand of the rent and a reentry upon the property. But if at any time before the judgment in such action, the lessee or his successor in interest as to the whole or a part of the property, pay to the plaintiff, or bring into court the amount of rent then in arrear, with interest and cost of action, and perform the other covenants or agreements on the part of the lessee, he shall be entitled to continue in the possession according to the terms of the lease. [Code 1881 § 548; 1877 p 114 § 552; 1869 p 131 § 500; No RRS.] Forcible entry, detainer: Chapter 59.12 RCW. Rent default, less than forty dollars: Chapter 59.08 RCW. Tenancies: Chapter 59.04 RCW. 7.28.260 7.28.260 Effect of judgment—Lis pendens—Vacation. In an action to recover possession of real property, the judgment rendered therein shall be conclusive as to the estate in such property and the right of possession thereof, so far as the same is thereby determined, upon all persons claiming by, through, or under the party against whom the judgment is rendered, by title or interest passing after the commencement of the action, if the party in whose favor the judgment is rendered shall have filed a notice of the pendency of the action [Title 7 RCW—page 23] 7.28.270 Title 7 RCW: Special Proceedings and Actions as required by RCW 4.28.320. When service of the notice is made by publication, and judgment is given for failure to answer, at any time within two years from the entry thereof, the defendant or his successor in interest as to the whole or any part of the property, shall, upon application to the court or judge thereof, be entitled to an order, vacating the judgment and granting him a new trial, upon the payment of the costs of the action. [1909 c 35 § 1; Code 1881 § 549; 1877 p 114 § 553; 1869 p 131 § 501; RRS § 806.] Rules of court: Cf. CR 58, 60(e). New trials: Chapter 4.76 RCW. Vacation of judgments: Chapter 4.72 RCW. 7.28.270 7.28.270 Effect of vacation of judgment. If the plaintiff has taken possession of the property before the judgment is set aside and a new trial granted, as provided in RCW 7.28.260, such possession shall not be thereby affected in any way; and if judgment be given for defendant in the new trial, he shall be entitled to restitution by execution in the same manner as if he were plaintiff. [Code 1881 § 550; 1877 p 115 § 554; 1869 p 131 § 502; RRS § 807.] Rules of court: Cf. CR 58, 60(e). 7.28.280 7.28.280 Conflicting claims, donation law, generally—Joinder of parties. In an action at law, for the recovery of the possession of real property, if either party claims the property as a donee of the United States, and under the act of congress approved September 27th, 1850, commonly called the "Donation law," or the acts amendatory thereof, such party, from the date of his settlement thereon, as provided in said act, shall be deemed to have a legal estate in fee, in such property, to continue upon condition that he perform the conditions required by such acts, which estate is unconditional and indefeasible after the performance of such conditions. In such action, if both plaintiff and defendant claim title to the same real property, by virtue of settlement, under such acts, such settlement and performance of the subsequent condition shall be prima facie presumed in favor of the party having or claiming under the elder certificate, or patent, as the case may be, unless it appears upon the face of such certificate or patent that the same is absolutely void. Any person in possession, by himself or his tenant, of real property, and any private or municipal corporation in possession by itself or its tenant of any real property, or when such real property is not in the actual possession of anyone, any person or private or municipal corporation claiming title to any real property under a patent from the United States, or during his or its claim of title to such real property under a patent from the United States for such real estate, may maintain a civil action against any person or persons, corporations or associations claiming an interest in said real property or any part thereof, or any right thereto adverse to him, them, or it, for the purpose of determining such claim, estate, or interest; and where several persons, or private or municipal corporations are in possession of, or claim as aforesaid, separate parcels of real property, and an adverse interest is claimed or claim made in or to any such parcels, by any other person, persons, corporations or associations, arising out of a question, conveyance, statute, grant, or other matter common to all such parcels of real estate, all or any portion of such persons or corporations [Title 7 RCW—page 24] so in possession, or claiming such parcel of real property may unite as plaintiffs in such suit to determine such adverse claim or interest against all persons, corporations or associations claiming such adverse interest. [Code 1881 § 551; 1877 p 116 § 556; 1869 p 132 § 504; RRS §§ 808, 809. Formerly RCW 7.28.280 and 7.28.290.] 7.28.300 7.28.300 Quieting title against outlawed mortgage or deed of trust. The record owner of real estate may maintain an action to quiet title against the lien of a mortgage or deed of trust on the real estate where an action to foreclose such mortgage or deed of trust would be barred by the statute of limitations, and, upon proof sufficient to satisfy the court, may have judgment quieting title against such a lien. [1998 c 295 § 17; 1937 c 124 § 1; RRS § 785-1.] Limitation of actions, generally: Chapter 4.16 RCW. Real estate mortgages, foreclosure: Chapter 61.12 RCW. 7.28.310 7.28.310 Quieting title to personal property. Any person or corporation claiming to be the owner of or interested in any tangible or intangible personal property may institute and maintain a suit against any person or corporation also claiming title to or any interest in such property for the purpose of adjudicating the title of the plaintiff to such property, or any interest therein, against any and all adverse claims; removing all such adverse claims as clouds upon the title of the plaintiff and quieting the title of the plaintiff against any and all such adverse claims. [1929 c 100 § 1; RRS § 809-1.] 7.28.320 7.28.320 Possession no defense. The fact that any person or corporation against whom such action may be brought is in the possession of such property, or evidence of title to such property, shall not prevent the maintenance of such suit. [1929 c 100 § 2; RRS § 809-2.] Chapter 7.36 Chapter 7.36 RCW HABEAS CORPUS Sections 7.36.010 7.36.020 7.36.030 7.36.040 7.36.050 7.36.060 7.36.070 7.36.080 7.36.090 7.36.100 7.36.110 7.36.120 7.36.130 7.36.140 7.36.150 7.36.160 7.36.170 7.36.180 7.36.190 7.36.200 7.36.210 7.36.220 7.36.230 7.36.240 7.36.250 Who may prosecute writ. Parents, guardians, etc., may act for persons under disability. Petition—Contents. Who may grant writ. To whom directed—Contents. Delivery to sheriff if to him directed. Service by sheriff if directed to another. Service when person not found. Return—Attachment for refusal. Form of return—Production of person. Procedure—Pleadings—Amendment. Hearing—Determination. Limitation upon inquiry. Duty of courts when federal question is raised. Admission to bail or discharge—Duty of court. Writ to admit prisoner to bail. Compelling attendance of witnesses. Officers protected from civil liability. Warrant to prevent removal. Warrant may call for apprehension of offending party. Execution of warrant. Temporary orders. Emergency acts on Sunday authorized. Writs and process—Issuance—Service—Defects—Amendments. Proceeding in forma pauperis. Rules of court: RAP 16.3 through 16.15. (2006 Ed.) Habeas Corpus 7.36.010 7.36.010 Who may prosecute writ. Every person restrained of his liberty under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when illegal. [Code 1881 § 666; 1877 p 138 § 669; 1869 p 156 § 606; 1854 p 212 § 434; RRS § 1063.] 7.36.020 7.36.020 Parents, guardians, etc., may act for persons under disability. Writs of habeas corpus shall be granted in favor of parents, guardians, limited guardians where appropriate, spouses, and next of kin, and to enforce the rights, and for the protection of infants and incompetent or disabled persons within the meaning of RCW 11.88.010; and the proceedings shall in all cases conform to the provisions of this chapter. [1977 ex.s. c 80 § 8; 1973 1st ex.s. c 154 § 17; Code 1881 § 688; 1877 p 141 § 692; 1869 p 159 § 628; 1854 p 214 § 456; RRS § 1064.] Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 7.36.030 7.36.030 Petition—Contents. Application for the writ shall be made by petition, signed and verified either by the plaintiff or by some person in his behalf, and shall specify: (1) By whom the petitioner is restrained of his liberty, and the place where, (naming the parties if they are known, or describing them if they are not known). (2) The cause or pretense of the restraint according to the best of the knowledge and belief of the applicant. (3) If the restraint be alleged to be illegal, in what the illegality consists. [Code 1881 § 667; 1877 p 138 § 670; 1869 p 156 § 607; 1854 p 212 § 435; RRS § 1065.] 7.36.130 p 139 § 674; 1869 p 156 § 611; 1854 p 212 § 430; RRS § 1069.] 7.36.080 7.36.080 Service when person not found. If the person to whom such writ is directed cannot be found or shall refuse admittance to the sheriff, the same may be served by leaving it at the residence of the person to whom it is directed, or by posting the same on [in] some conspicuous place, either of [on] his dwelling house or where the party is confined or under restraint. [Code 1881 § 672; 1877 p 139 § 675; 1869 p 157 § 612; 1854 p 212 § 440; RRS § 1070.] 7.36.090 7.36.090 Return—Attachment for refusal. The sheriff or other person to whom the writ is directed shall make immediate return thereof, and if he refuse after due service to make return, the court shall enforce obedience by attachment. [Code 1881 § 673; 1877 p 139 § 676; 1869 p 157 § 613; 1854 p 213 § 441; RRS § 1071.] 7.36.100 7.36.100 Form of return—Production of person. The return must be signed and verified by the person making it, who shall state: (1) The authority or cause of the restraint of the party in his custody. (2) If the authority shall be in writing, he shall return a copy and produce the original on the hearing. (3) If he has had the party in his custody or under his restraint, and has transferred him to another, he shall state to whom, the time, place and cause of the transfer. He shall produce the party at the hearing unless prevented by sickness or infirmity, which must be shown in the return. [Code 1881 § 674; 1877 p 139 § 677; 1869 p 157 § 614; 1854 p 213 § 442; RRS § 1072.] 7.36.040 7.36.040 Who may grant writ. Writs of habeas corpus may be granted by the supreme court, the court of appeals, or superior court, or by any judge of such courts, and upon application the writ shall be granted without delay. [1971 c 81 § 31; 1957 c 9 § 10; Code 1881 § 668; 1877 p 138 § 671; 1869 p 156 § 608; 1854 p 212 § 436; RRS § 1066.] Rules of court: Cf. RAP 16.3, 18.22. 7.36.050 7.36.050 To whom directed—Contents. The writ shall be directed to the officer or party having the person under restraint, commanding him to have such person before the court or judge at such time and place as the court or judge shall direct to do and receive what shall be ordered concerning him, and have then and there the writ. [Code 1881 § 669; 1877 p 138 § 672; 1869 p 156 § 609; 1854 p 212 § 437; RRS § 1067.] 7.36.060 7.36.060 Delivery to sheriff if to him directed. If the writ be directed to the sheriff, it shall be delivered by the clerk to him without delay. [Code 1881 § 670; 1877 p 138 § 673; 1869 p 156 § 610; 1854 p 212 § 438; RRS § 1068.] 7.36.110 7.36.110 Procedure—Pleadings—Amendment. The court or judge, if satisfied of the truth of the allegation of sickness or infirmity, may proceed to decide on the return, or the hearing may be adjourned until the party can be produced, or for other good cause. The plaintiff may except to the sufficiency of, or controvert the return or any part thereof, or allege any new matter in evidence. The new matter shall be verified, except in cases of commitment on a criminal charge. The return and pleadings may be amended without causing a delay. [Code 1881 § 675; 1877 p 139 § 678; 1869 p 157 § 615; 1854 p 213 § 443; RRS § 1073.] 7.36.120 7.36.120 Hearing—Determination. The court or judge shall thereupon proceed in a summary way to hear and determine the cause, and if no legal cause be shown for the restraint or for the continuation thereof, shall discharge the party. [Code 1881 § 676; 1877 p 139 § 679; 1869 p 157 § 616; 1854 p 213 § 444; RRS § 1074.] Rules of court: ER 1101. 7.36.130 7.36.070 7.36.070 Service by sheriff if directed to another. If the writ be directed to any other person, it shall be delivered to the sheriff and shall be by him served by delivering the same to such person without delay. [Code 1881 § 671; 1877 (2006 Ed.) 7.36.130 Limitation upon inquiry. No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge the party when the term of commitment has not expired, in either of the cases following: [Title 7 RCW—page 25] 7.36.140 Title 7 RCW: Special Proceedings and Actions (1) Upon any process issued on any final judgment of a court of competent jurisdiction except where it is alleged in the petition that rights guaranteed the petitioner by the Constitution of the state of Washington or of the United States have been violated and the petition is filed within the time allowed by RCW 10.73.090 and 10.73.100. (2) For any contempt of any court, officer or body having authority in the premises to commit; but an order of commitment, as for a contempt upon proceedings to enforce the remedy of a party, is not included in any of the foregoing specifications. (3) Upon a warrant issued from the superior court upon an indictment or information. [1989 c 395 § 3; 1947 c 256 § 3; 1891 c 43 § 1; Code 1881 § 677; 1869 p 157 § 617; 1854 p 213 § 445; Rem. Supp. 1947 § 1075.] 7.36.140 7.36.140 Duty of courts when federal question is raised. In the consideration of any petition for a writ of habeas corpus by the supreme court or the court of appeals, whether in an original proceeding or upon an appeal, if any federal question shall be presented by the pleadings, it shall be the duty of the supreme court to determine in its opinion whether or not the petitioner has been denied a right guaranteed by the Constitution of the United States. [1971 c 81 § 32; 1947 c 256 § 2; Rem. Supp. 1947 § 1085-2.] 7.36.190 7.36.190 Warrant to prevent removal. Whenever it shall appear by affidavit that any one is illegally held in custody or restraint, and that there is good reason to believe that such person will be carried out of the jurisdiction of the court or judge before whom the application is made, or will suffer some irreparable injury before compliance with the writ can be enforced, such court or judge may cause a warrant to be issued reciting the facts, and directed to the sheriff or any constable of the county, commanding him to take the person thus held in custody or restraint, and forthwith bring him before the court or judge to be dealt with according to the law. [Code 1881 § 682; 1877 p 140 § 685; 1869 p 158 § 622; 1854 p 214 § 450; RRS § 1080.] 7.36.200 7.36.200 Warrant may call for apprehension of offending party. The court or judge may also, if the same be deemed necessary, insert in the warrant a command for the apprehension of the person charged with causing the illegal restraint. [Code 1881 § 683; 1877 p 141 § 687; 1869 p 159 § 623; 1854 p 214 § 451; RRS § 1081.] 7.36.210 7.36.210 Execution of warrant. The officer shall execute the writ [warrant] by bringing the person therein named before the court or judge, and the like return of proceedings shall be required and had as in case of writs of habeas corpus. [Code 1881 § 684; 1877 p 141 § 688; 1869 p 159 § 624; 1854 p 214 § 452; RRS § 1082.] 7.36.150 7.36.150 Admission to bail or discharge—Duty of court. No person shall be discharged from an order of commitment issued by any judicial or peace officer for want of bail, or in cases not bailable on account of any defect in the charge or process, or for alleged want of probable cause; but in all cases the court or judge shall summon the prosecuting witnesses, investigate the criminal charge, and discharge, admit to bail or recommit the prisoner, as may be just and legal, and recognize witnesses when proper. [Code 1881 § 678; 1877 p 140 § 681; 1869 p 157 § 618; 1854 p 213 § 446; RRS § 1076.] 7.36.160 7.36.160 Writ to admit prisoner to bail. The writ may be had for the purpose of admitting a prisoner to bail in civil and criminal actions. When any person has an interest in the detention, and the prisoner shall not be discharged until the person having such interest is notified. [Code 1881 § 679; 1877 p 140 § 682; 1869 p 158 § 619; 1854 p 214 § 447; RRS § 1077.] 7.36.170 7.36.170 Compelling attendance of witnesses. The court or judge shall have power to require and compel the attendance of witnesses, and to do all other acts necessary to determine the case. [Code 1881 § 680; 1877 p 140 § 683; 1869 p 158 § 620; 1854 p 214 § 448; RRS § 1078.] Witnesses, compelling attendance: Chapter 5.56 RCW. 7.36.220 7.36.220 Temporary orders. The court or judge may make any temporary orders in the cause or disposition of the party during the progress of the proceedings that justice may require. The custody of any party restrained may be changed from one person to another, by order of the court or judge. [Code 1881 § 685; 1877 p 141 § 689; 1869 p 159 § 625; 1854 p 214 § 453; RRS § 1083.] 7.36.230 7.36.230 Emergency acts on Sunday authorized. Any writ or process authorized by this chapter may be issued and served, in cases of emergency, on Sunday. [Code 1881 § 686; 1877 p 141 § 690; 1869 p 159 § 626; 1854 p 214 § 454; RRS § 1084.] Superior court, issuance of habeas corpus on nonjudicial days: State Constitution Art. 4 § 6 (Amendment 28). 7.36.240 7.36.240 Writs and process—Issuance—Service— Defects—Amendments. All writs and other process authorized by this chapter shall be issued by the clerk of the court, and sealed with the seal of such court, and shall be served and returned forthwith, unless the court or judge shall specify a particular time for such return. And no writ or other process shall be disregarded for any defect therein, if enough is shown to notify the officer or person of the purport of the process. Amendments may be allowed and temporary commitments when necessary. [Code 1881 § 687; 1877 p 141 § 691; 1869 p 159 § 627; 1854 p 214 § 455; RRS § 1085.] 7.36.180 7.36.180 Officers protected from civil liability. No sheriff or other officer shall be liable to a civil action for obeying any writ of habeas corpus or order of discharge made thereon. [Code 1881 § 681; 1877 p 140 § 684; 1869 p 158 § 621; 1854 p 214 § 449; RRS § 1079.] [Title 7 RCW—page 26] 7.36.250 7.36.250 Proceeding in forma pauperis. Any person entitled to prosecute a writ of habeas corpus who, by reason of poverty is unable to pay the costs of such proceeding or give security therefor, may file in the court having original (2006 Ed.) Injunctions jurisdiction of the proceeding an affidavit setting forth such facts and that he or she believes himself or herself to be entitled to the redress sought. Upon the filing of such an affidavit the court may, if satisfied that the proceeding or appeal is instituted or taken in good faith, order that such proceeding, including appeal, may be prosecuted without prepayment of fees or costs or the giving of security therefor. This section also applies to filing fees assessed under RCW 36.18.016. [2002 c 338 § 3; 1947 c 256 § 1; Rem. Supp. 1947 § 1085-1.] Rules of court: RAP 16.15(f), 16.15(g). 7.40.080 injunction may be granted to restrain such act or proceedings until the further order of the court, which may afterwards be dissolved or modified upon motion. And where it appears in the complaint at the commencement of the action, or during the pendency thereof, by affidavit, that the defendant threatens, or is about to remove or dispose of his property with intent to defraud his creditors, a temporary injunction may be granted to restrain the removal or disposition of his property. [Code 1881 § 154; 1877 p 33 § 154; 1869 p 38 § 152; 1854 p 152 § 112; RRS § 719.] 7.40.030 Chapter 7.40 Chapter 7.40 RCW INJUNCTIONS Sections 7.40.010 7.40.020 7.40.030 7.40.040 7.40.050 7.40.060 7.40.070 7.40.080 7.40.085 7.40.090 7.40.100 7.40.110 7.40.120 7.40.130 7.40.140 7.40.150 7.40.160 7.40.170 7.40.180 7.40.190 7.40.200 7.40.210 7.40.230 Who may grant restraining orders and injunctions. Grounds for issuance. Malicious erection of structure may be enjoined. Time of granting. Notice—Restraining orders in emergencies. Affidavits at hearing. Terms and conditions may be imposed. Injunction bond. Injunction bonds for injunctions affecting public construction contracts. Bond for injunction after temporary restraining order. Copy of order serves as writ. Stay of judgment—Release of errors. Injunction, who is bound by. When adverse party becomes bound. Disposition of money collected on enjoined judgment. Contempt for disobedience. Attachment and arrest—Indemnity of plaintiff. Bond for appearance. Motion to dissolve or modify. Damages on dissolution of injunction to stay judgment. Damages for rents and waste. Motion to reinstate. Injunctions—Fraud in obtaining telecommunications service. 7.40.030 Malicious erection of structure may be enjoined. An injunction may be granted to restrain the malicious erection, by any owner or lessee of land, of any structure intended to spite, injure or annoy an adjoining proprietor. And where any owner or lessee of land has maliciously erected such a structure with such intent, a mandatory injunction will lie to compel its abatement and removal. [1883 p 44 § 1, part; Code 1881 § 154 1/2; RRS § 720.] 7.40.040 7.40.040 Time of granting. The injunction may be granted at the time of commencing the action, or at any time afterwards, before judgment in that proceeding. [Code 1881 § 155; 1877 p 33 § 155; 1869 p 39 § 153; 1854 p 153 § 113; RRS § 721.] 7.40.050 Abortion clinics, interference with: Chapter 9A.50 RCW. 7.40.050 Notice—Restraining orders in emergencies. No injunction shall be granted until it shall appear to the court or judge granting it, that some one or more of the opposite party concerned, has had reasonable notice of the time and place of making application, except that in cases of emergency to be shown in the complaint, the court may grant a restraining order until notice can be given and hearing had thereon. [Code 1881 § 156; 1877 p 33 § 156; 1869 p 39 § 154; 1854 p 153 § 114; RRS § 722.] Camping resorts, relating to: RCW 19.105.470, 19.105.490. Rules of court: CR 52(a)(2)(A), 65. Rules of court: Cf. CR 65, 52(a)(2)(A). Health care facilities, interference with: Chapter 9A.50 RCW. 7.40.060 Injunctions in labor disputes: Chapter 49.32 RCW. Medical facilities, interference with: Chapter 9A.50 RCW. Term papers, theses, dissertations, sale of prohibited—Injunctions: RCW 28B.10.584. 7.40.060 Affidavits at hearing. On the hearing of an application for an injunction, each party may read affidavits. [Code 1881 § 157; 1877 p 33 § 157; 1869 p 39 § 155; 1854 p 153 § 115; RRS § 723.] Rules of court: CR 65. 7.40.010 7.40.010 Who may grant restraining orders and injunctions. Restraining orders and injunctions may be granted by the superior court, or by any judge thereof. [1957 c 9 § 11; Code 1881 § 153; 1877 p 32 § 153; 1869 p 38 § 151; 1854 p 152 § 111; RRS § 718.] 7.40.020 7.40.020 Grounds for issuance. When it appears by the complaint that the plaintiff is entitled to the relief demanded and the relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce great injury to the plaintiff; or when during the litigation, it appears that the defendant is doing, or threatened, or is about to do, or is procuring, or is suffering some act to be done in violation of the plaintiff’s rights respecting the subject of the action tending to render the judgment ineffectual; or where such relief, or any part thereof, consists in restraining proceedings upon any final order or judgment, an (2006 Ed.) 7.40.070 7.40.070 Terms and conditions may be imposed. Upon the granting or continuing an injunction, such terms and conditions may be imposed upon the party obtaining it as may be deemed equitable. [Code 1881 § 158; 1877 p 33 § 158; 1869 p 39 § 156; 1854 p 153 § 116; RRS § 724.] Rules of court: Cf. CR 65(d). 7.40.080 7.40.080 Injunction bond. No injunction or restraining order shall be granted until the party asking it shall enter into a bond, in such a sum as shall be fixed by the court or judge granting the order, with surety to the satisfaction of the clerk of the superior court, to the adverse party affected thereby, conditioned to pay all damages and costs which may accrue by reason of the injunction or restraining order. The sureties shall, if required by the clerk, justify as provided by law, and until they so justify, the clerk shall be responsible for their sufficiency. The court in its sound discretion may waive the [Title 7 RCW—page 27] 7.40.085 Title 7 RCW: Special Proceedings and Actions required bond in situations in which a person’s health or life would be jeopardized. [1994 c 185 § 5; 1957 c 51 § 9; Code 1881 § 159; 1877 p 33 § 159; 1869 p 39 § 157; 1854 p 153 § 117; RRS § 725.] Rules of court: Cf. CR 65(c). Corporate surety—Insurance: Chapter 48.28 RCW. 7.40.085 7.40.085 Injunction bonds for injunctions affecting public construction contracts. In determining the amount of the bond required by RCW 7.40.080 as now or hereafter amended, with respect to an injunction or restraining order that will delay or enjoin a notice to proceed or the performance of work under a construction contract for a public contracting body among the factors regarded in the exercise of its discretion, the court shall consider: (1) All costs and liquidated damages provided for in the contract or otherwise that may result from such delay; (2) The probable costs to the public in terms of inconvenience, delayed use of the proposed facilities, and escalation of costs of delayed construction of the proposed facilities that may be incurred as a result of a delay subsequently found to be without good cause; and (3) The procedures for consideration of objections to proposed construction and the opportunity the one seeking the injunction had for objecting prior to the letting of the contract. [1974 ex.s. c 153 § 1.] 7.40.090 7.40.090 Bond for injunction after temporary restraining order. When an injunction is granted upon the hearing, after a temporary restraining order, the plaintiff shall not be required to enter into a second bond, unless the former shall be deemed insufficient, but the plaintiff and his surety shall remain liable upon his original bond. [Code 1881 § 160; 1877 p 33 § 160; 1869 p 39 § 158; 1854 p 153 § 118; RRS § 726.] Rules of court: Cf. CR 65(c). 7.40.100 7.40.100 Copy of order serves as writ. It shall not be necessary to issue a writ of injunction, but the clerk shall issue a copy of the order of injunction duly certified by him, which shall be forthwith served by delivering the same to the adverse party. [Code 1881 § 161; 1877 p 33 § 161; 1869 p 39 § 159; 1854 p 153 § 119; RRS § 727.] soon as the bond required of the plaintiff is executed and delivered to the proper officer. [Code 1881 § 164; 1877 p 34 § 164; 1869 p 40 § 162; 1854 p 154 § 122; RRS § 730.] 7.40.140 7.40.140 Disposition of money collected on enjoined judgment. Money collected upon a judgment afterward enjoined, remaining in the hands of the collecting officer, shall be paid to the clerk of the court granting the injunction, subject to the order of the court. [Code 1881 § 165; 1877 p 34 § 165; 1869 p 40 § 163; 1854 p 154 § 123; RRS § 731.] 7.40.150 7.40.150 Contempt for disobedience. Whenever it shall appear to any court granting a restraining order or an order of injunction, or by affidavit, that any person has wilfully disobeyed the order after notice thereof, such court shall award an attachment for contempt against the party charged, or an order to show cause why it should not issue. The attachment or order shall be issued by the clerk of the court, and directed to the sheriff, and shall be served by him. [1957 c 9 § 12; Code 1881 § 166; 1877 p 34 § 166; 1869 p 40 § 164; 1854 p 154 § 124; RRS § 732.] 7.40.160 7.40.160 Attachment and arrest—Indemnity of plaintiff. The attachment for contempt shall be immediately served, by arresting the party charged, and bringing him into court, if in session, to be dealt with as in other cases of contempt; and the court shall also take all necessary measures to secure and indemnify the plaintiff against damages in the premises. [Code 1881 § 167; 1877 p 34 § 167; 1869 p 40 § 165; 1854 p 154 § 125; RRS § 733.] 7.40.170 7.40.170 Bond for appearance. If the court is not in session the officer making the arrest shall cause the person to enter into a bond, with surety, to be approved by the officer, conditioned that he personally appear in open court whenever his appearance shall be required, to answer such contempt, and that he will pay to the plaintiff all his damages and costs occasioned by the breach of the order; and in default thereof he shall be committed to the jail of the county until he shall enter into such bond with surety, or be otherwise legally discharged. [1891 c 56 § 1; Code 1881 § 168; 1877 p 34 § 168; 1869 p 40 § 166; 1854 p 154 § 126; RRS § 734.] 7.40.110 7.40.110 Stay of judgment—Release of errors. In application to stay proceedings after judgment, the plaintiff shall endorse upon his complaint a release of errors in the judgment whenever required to do so by the judge or court. [Code 1881 § 162; 1877 p 33 § 162; 1869 p 39 § 160; 1854 p 153 § 120; RRS § 728.] 7.40.120 7.40.120 Injunction, who is bound by. An order of injunction shall bind every person and officer restrained from the time he is informed thereof. [Code 1881 § 163; 1877 p 33 § 163; 1869 p 40 § 161; 1854 p 153 § 121; RRS § 729.] 7.40.130 7.40.130 When adverse party becomes bound. When notice of the application for an injunction has been served upon the adverse party, it shall not be necessary to serve the order upon him, but he shall be bound by the injunction as [Title 7 RCW—page 28] 7.40.180 7.40.180 Motion to dissolve or modify. Motions to dissolve or modify injunctions may be made in open court, or before a judge of the superior court, at any time after reasonable notice to the adverse party. [1891 c 36 § 1; Code 1881 § 169; 1877 p 34 § 169; 1869 p 40 § 167; 1854 p 154 § 127; RRS § 735.] Rules of court: CR 65. 7.40.190 7.40.190 Damages on dissolution of injunction to stay judgment. When an injunction to stay proceedings after judgment for debt or damages shall be dissolved, the court shall award such damages not exceeding ten percent on the judgment, as the court may deem right, against the party in whose favor the injunction issued. [Code 1881 § 170; 1877 p 34 § 170; 1869 p 41 § 168; 1854 p 154 § 128; RRS § 736.] (2006 Ed.) Injunctions—Obscene Materials 7.40.200 Damages for rents and waste. If an injunction to stay proceedings after verdict or judgment in an action for the recovery of real estate, or the possession thereof, be dissolved, the damages assessed against the party obtaining the injunction, shall include the reasonable rents and profits of the lands recovered, and all waste committed after granting injunction. [Code 1881 § 171; 1877 p 35 § 171; 1869 p 41 § 169; 1854 p 154 § 129; RRS § 737.] 7.40.200 7.40.210 Motion to reinstate. Upon an order being made dissolving or modifying an order of injunction, the plaintiff may move the court to reinstate the order, and the court may, in its discretion, allow the motion, and appoint a time for hearing the same before the court, or a time and place for hearing before some judge thereof, and upon the hearing, the parties may produce such additional affidavits or depositions as the court shall direct, and the order of injunction shall be dissolved, modified, or reinstated, as the court or judge may deem right. Until the hearing of the motion to reinstate the order of injunction, the order to dissolve or modify it, shall be suspended. [Code 1881 § 172; 1877 p 35 § 172; 1869 p 41 § 170; 1854 p 154 § 130; RRS § 738.] 7.40.210 7.40.230 Injunctions—Fraud in obtaining telecommunications service. (1) Whenever it appears that any person is engaged in or about to engage in any act that constitutes or will constitute a violation of RCW 9.26A.110, 9.26A.115, or 9.26A.090, the prosecuting attorney, a telecommunications company, or any person harmed by an alleged violation of RCW 9.26A.110, 9.26A.115, or 9.26A.090 may initiate a civil proceeding in superior court to enjoin such violation, and may petition the court to issue an order for the discontinuance of the specific telephone service being used in violation of RCW 9.26A.110, 9.26A.115, or 9.26A.090. (2) An action under this section shall be brought in the county in which the unlawful act or acts are alleged to have taken place, and shall be commenced by the filing of a verified complaint, or shall be accompanied by an affidavit. (3) If it is shown to the satisfaction of the court, either by verified complaint or affidavit, that a person is engaged in or about to engage in any act that constitutes a violation of RCW 9.26A.110, 9.26A.115, or 9.26A.090, the court may issue a temporary restraining order to abate and prevent the continuance or recurrence of the act. The court may direct the sheriff to seize and retain until further order of the court any device that is being used in violation of RCW 9.26A.110, 9.26A.115, or 9.26A.090. All property seized pursuant to the order of the court shall remain in the custody of the court. (4) The court may issue a permanent injunction to restrain, abate or prevent the continuance or recurrence of the violation of RCW 9.26A.110, 9.26A.115, or 9.26A.090. The court may grant declaratory relief, mandatory orders, or any other relief deemed necessary to accomplish the purposes of the injunction. The court may retain jurisdiction of the case for the purpose of enforcing its orders. (5) If it is shown to the satisfaction of the court, either by verified complaint or affidavit, that a person is engaged in or is about to engage in any act that constitutes a violation of RCW 9.26A.110, 9.26A.115, or 9.26A.090, the court may issue an order which shall be promptly served upon the per7.40.230 (2006 Ed.) Chapter 7.42 son in whose name the telecommunications device is listed, requiring the party, within a reasonable time, to be fixed by the court, from the time of service of the petition on the party, to show cause before the judge why telephone service should not promptly be discontinued. At the hearing the burden of proof shall be on the complainant. (6) Upon a finding by the court that the telecommunications device is being used or has been used in violation of RCW 9.26A.110 or 9.26A.115, the court may issue an order requiring the telephone company which is rendering service over the device to disconnect such service. Upon receipt of such order, which shall be served upon an officer of the telephone company by the sheriff or deputy of the county in which the telecommunications device is installed, the telephone company shall proceed promptly to disconnect and remove such device and discontinue all telephone service until further order of the court, provided that the telephone company may do so without breach of the peace or trespass. (7) The telecommunications company that petitions the court for the removal of any telecommunications device under this section shall be a necessary party to any proceeding or action arising out of or under RCW 9.26A.110 or 9.26A.115. (8) No telephone company shall be liable for any damages, penalty, or forfeiture, whether civil or criminal, for any legal act performed in compliance with any order issued by the court. (9) Property seized pursuant to the direction of the court that the court has determined to have been used in violation of RCW 9.26A.110 or 9.26A.115 shall be forfeited after notice and hearing. The court may remit or mitigate the forfeiture upon terms and conditions as the court deems reasonable if it finds that such forfeiture was incurred without gross negligence or without any intent of the petitioner to violate the law, or it finds the existence of such mitigating circumstances as to justify the remission or the mitigation of the forfeiture. In determining whether to remit or mitigate forfeiture, the court shall consider losses that may have been suffered by victims as the result of the use of the forfeited property. [2003 c 53 § 5; 1990 c 11 § 4.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1990 c 11: See RCW 9.26A.900. Chapter 7.42 Chapter 7.42 RCW INJUNCTIONS—OBSCENE MATERIALS Sections 7.42.010 7.42.020 7.42.030 7.42.040 7.42.050 7.42.060 7.42.070 7.42.900 Obscene prints and articles—Jurisdiction to enjoin. Injunction authorized. Trial by jury—Judgment. Matter to be surrendered to sheriff—Seizure, destruction. Prosecuting attorney need not file undertaking prior to order— Nonliability. Knowledge of contents chargeable after service. Exemptions. Severability—1959 c 105. Rules of court: Cf. CR 65. Crimes, obscenity: Chapter 9.68 RCW. Criminal procedure, sufficiency of indictment, information for obscene literature: RCW 10.37.130. [Title 7 RCW—page 29] 7.42.010 Title 7 RCW: Special Proceedings and Actions 7.42.010 7.42.010 Obscene prints and articles—Jurisdiction to enjoin. The superior courts shall have jurisdiction to enjoin the sale or distribution of obscene prints and articles as hereinafter specified. [1959 c 105 § 1.] 7.42.020 7.42.020 Injunction authorized. The prosecuting attorney of every county of the state, in which a person, firm, or corporation sells or distributes or offers to sell or distribute or has in his possession with intent to sell or distribute any book, magazine, pamphlet, comic book, story paper, writing, paper, newspaper, phonograph record, magnetic tape, electric or mechanical transcription, picture, drawing, photograph, figure, image or any written or printed matter of an indecent character, which is obscene, lewd, lascivious, filthy or indecent, or which contains an article or instrument of indecent use or purports to be for indecent use or purpose, may maintain an action in the name of the state for an injunction against such person, firm, or corporation in the superior court to prevent the sale or further sale or the distribution or further distribution or the acquisition or possession of any book, magazine, pamphlet, comic book, story paper, writing, paper, newspaper, phonograph record, magnetic tape, electric or mechanical transcription, picture, drawing, photograph, figure or image or any written or printed matter of indecent character, herein described. [1959 c 105 § 2.] 7.42.030 7.42.030 Trial by jury—Judgment. The person, firm, or corporation sought to be enjoined shall be entitled to a trial by jury of the issues within a reasonable time after joinder of issue and a judgment shall be entered by the court within two days of the conclusion of the trial. No injunction or restraining order shall be issued prior to the conclusion of the trial. [1959 c 105 § 3.] is chargeable with knowledge of the contents thereof. [1959 c 105 § 6.] 7.42.070 7.42.070 Exemptions. Nothing in this chapter shall apply to any recognized historical society or museum, the state law library, any county law library, the state library, the public library, any library of any college or university, or to any archive or library under the supervision and control of the state, county, municipality, or other political subdivision. [1959 c 105 § 7.] 7.42.900 7.42.900 Severability—1959 c 105. If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances is not affected. [1959 c 105 § 8.] Chapter 7.43 Chapter 7.43 RCW INJUNCTIONS—DRUG NUISANCES Sections 7.43.010 7.43.020 7.43.030 7.43.040 7.43.050 7.43.060 7.43.070 7.43.080 7.43.090 7.43.100 7.43.110 7.43.120 7.43.130 7.43.900 Injunction authorized. Complaint—Affidavit. Temporary restraining order or preliminary injunction. Temporary restraining order or preliminary injunction—Bond required. Priority of actions. Dismissal of citizen complaint—Limitations. Service of complaint. Order of abatement. Final order of abatement. Sale of items subject to forfeiture—Use of proceeds. Violation of injunction—Contempt of court. Fine constitutes lien. Recovery of damages not precluded. Severability—1988 c 141. 7.42.040 7.42.040 Matter to be surrendered to sheriff—Seizure, destruction. In the event that a final order or judgment of injunction be entered in favor of the state and against the person, firm, or corporation sought to be enjoined, such final order or judgment shall contain a provision directing the person, firm, or corporation to surrender to the sheriff of the county in which the action was brought any of the matter described in RCW 7.42.020, and each sheriff shall be directed to seize and destroy the same. [1959 c 105 § 4.] 7.42.050 7.42.050 Prosecuting attorney need not file undertaking prior to order—Nonliability. In any action brought as herein provided, the prosecuting attorney shall not be required to file any undertaking before the issuance of an injunction order provided for in RCW 7.42.040, shall not be liable for costs and shall not be liable for damages sustained by reason of the injunction order in cases where judgment is rendered in favor of the person, firm, or corporation sought to be enjoined. [1959 c 105 § 5.] 7.42.060 7.42.060 Knowledge of contents chargeable after service. Every person, firm, or corporation who sells, distributes, or acquires possession with intent to sell or distribute any of the matter described in RCW 7.42.020, after the service upon him of a summons and complaint in an action brought by the prosecuting attorney pursuant to this chapter [Title 7 RCW—page 30] 7.43.010 7.43.010 Injunction authorized. (1) Every building or unit within a building used for the purpose of unlawfully manufacturing, delivering, selling, storing, or giving away any controlled substance as defined in chapter 69.50 RCW, legend drug as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW, and every building or unit within a building wherein or upon which such acts take place, is a nuisance which shall be enjoined, abated, and prevented, whether it is a public or private nuisance. (2) As used in this chapter, "building" includes, but is not limited to, any structure or any separate part or portion thereof, whether permanent or not, or the ground itself. [1988 c 141 § 4.] 7.43.020 7.43.020 Complaint—Affidavit. The action provided for in RCW 7.43.010 shall be brought in the superior court in the county in which the property is located. Such action shall be commenced by the filing of a complaint alleging the facts constituting the nuisance. Any complaint filed under this chapter shall be verified or accompanied by affidavit. For purposes of showing that the owner or his or her agent has had an opportunity to abate the nuisance, the affidavit shall contain a description of all attempts by the applicant to notify and locate the owner of the property or the owner’s agent. (2006 Ed.) Injunctions—Drug Nuisances In addition, the affidavit shall describe in detail the adverse impact associated with the property on the surrounding neighborhood. "Adverse impact" includes, but is not limited to, the following: Any search warrants served on the property where controlled substances were seized; investigative purchases of controlled substances on or near the property by law enforcement or their agents; arrests of persons who frequent the property for violation of controlled substances laws; increased volume of traffic associated with the property; and the number of complaints made to law enforcement of illegal activity associated with the property. After filing the complaint, the court shall grant a hearing within three business days after the filing. [1988 c 141 § 5.] 7.43.030 7.43.030 Temporary restraining order or preliminary injunction. Upon application for a temporary restraining order or preliminary injunction, the court may, upon a showing of good cause, issue an ex parte restraining order or preliminary injunction, preventing the defendant and all other persons from removing or in any manner interfering with the personal property and contents of the place where the nuisance is alleged to exist and may grant such preliminary equitable relief as is necessary to prevent the continuance or recurrence of the nuisance pending final resolution of the matter on the merits. However, pending the decision, the stock in trade may not be so restrained, but an inventory and full accounting of all business transactions may be required. The restraining order or preliminary injunction may be served by handing to and leaving a copy with any person in charge of the place or residing in the place, or by posting a copy in a conspicuous place at or upon one or more of the principal doors or entrances to the place, or by both delivery and posting. The officer serving the order or injunction shall forthwith make and return into court an inventory of the personal property and contents situated in and used in conducting or maintaining the nuisance. Any violation of the order or injunction is a contempt of court, and where such order or injunction is posted, mutilation or removal thereof while the same remains in force is a contempt of court if such posted order or injunction contains a notice to that effect. [1988 c 141 § 6.] 7.43.040 7.43.040 Temporary restraining order or preliminary injunction—Bond required. A temporary restraining order or preliminary injunction shall not issue under this chapter except upon the giving of a bond or security by the applicant, in the sum that the court deems proper, but not less than one thousand dollars, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully restrained or enjoined. A bond or security shall not be required of the state of Washington, municipal corporations, or political subdivisions of the state of Washington. [1988 c 141 § 7.] 7.43.050 7.43.050 Priority of actions. An action under this chapter shall have precedence over all other actions, except prior matters of the same character, criminal proceedings, election contests, hearings on temporary restraining orders and injunctions, and actions to forfeit vehicles used in viola(2006 Ed.) 7.43.090 tion of the uniform controlled substances act. [1988 c 141 § 8.] 7.43.060 7.43.060 Dismissal of citizen complaint—Limitations. (1) If the complaint under this chapter is filed by a citizen, the complaint shall not be dismissed by the citizen for want of prosecution except upon a sworn statement made by the citizen and the citizen’s attorney, if the citizen has one. The statement shall set forth the reasons why the action should be dismissed. The case shall only be dismissed if so ordered by the court. (2) In case of failure to prosecute the action with reasonable diligence, or at the request of the plaintiff, the court, in its discretion, may substitute any other citizen consenting to be substituted for the plaintiff. [1988 c 141 § 9.] 7.43.070 7.43.070 Service of complaint. A copy of the complaint, together with a notice of the time and place of the hearing of the action shall be served upon the defendant at least one business day before the hearing. Service may also be made by posting the papers in the same manner as is provided for in RCW 7.43.030. If the hearing is then continued at the request of any defendant, all temporary orders and injunctions shall be extended as a matter of course. [1988 c 141 § 10.] 7.43.080 7.43.080 Order of abatement. (1) Except as provided in subsection (2) of this section, if the existence of the nuisance is established in the action, an order of abatement shall be entered as part of the final judgment in the case. Plaintiff’s costs in the action, including those of abatement, are a lien upon the building or unit within a building. The lien is enforceable and collectible by execution issued by order of the court. (2) If the court finds and concludes that the owner of the building or unit within a building: (a) Had no knowledge of the existence of the nuisance or has been making reasonable efforts to abate the nuisance, (b) has not been guilty of any contempt of court in the proceedings, and (c) will immediately abate any such nuisance that may exist at the building or unit within a building and prevent it from being a nuisance within a period of one year thereafter, the court shall, if satisfied of the owner’s good faith, order the building or unit within a building to be delivered to the owner, and no order of abatement shall be entered. If an order of abatement has been entered and the owner subsequently meets the requirements of this subsection, the order of abatement shall be canceled. [1988 c 141 § 11.] 7.43.090 7.43.090 Final order of abatement. Any final order of abatement issued under this chapter shall: (1) Direct the removal of all personal property subject to seizure and forfeiture pursuant to RCW 69.50.505 from the building or unit within a building, and direct their disposition pursuant to the forfeiture provisions of RCW 69.50.505; (2) Provide for the immediate closure of the building or unit within a building against its use for any purpose, and for keeping it closed for a period of one year unless released sooner as provided in this chapter; and [Title 7 RCW—page 31] 7.43.100 Title 7 RCW: Special Proceedings and Actions (3) State that while the order of abatement remains in effect the building or unit within a building shall remain in the custody of the court. [1988 c 141 § 12.] 7.43.100 7.43.100 Sale of items subject to forfeiture—Use of proceeds. In all actions brought under this chapter, the proceeds and all moneys forfeited pursuant to the forfeiture provisions of RCW 69.50.505 shall be applied as follows: (1) First, to the fees and costs of the removal and sale; (2) Second, to the allowances and costs of closing and keeping closed the building or unit within a building; (3) Third, to the payment of the plaintiff’s costs in the action; and (4) Fourth, the balance, if any, to the owner of the property. If the proceeds of the sale of items subject to seizure and forfeiture do not fully discharge all of the costs, fees, and allowances, the building or unit within a building shall then also be sold under execution issued upon the order of the court, and the proceeds of the sale shall be applied in a like manner. A building or unit within a building shall not be sold under this section unless the court finds and concludes by clear and convincing evidence that the owner of the building or unit within a building had actual or constructive knowledge or notice of the existence of the nuisance. However, this shall not be construed as limiting or prohibiting the entry of any final order of abatement as provided in this chapter. [1988 c 141 § 13.] 7.43.110 7.43.110 Violation of injunction—Contempt of court. An intentional violation of a restraining order, preliminary injunction, or order of abatement under this chapter is a contempt of court as provided in chapter 7.21 RCW. [1989 c 373 § 9; 1988 c 141 § 14.] Severability—1989 c 373: See RCW 7.21.900. 7.43.120 7.43.120 Fine constitutes lien. Whenever the owner of a building or unit within a building upon which the act or acts constituting the contempt have been committed, or the owner of any interest in the building or unit has been found in contempt of court, and fined in any proceedings under this chapter, the fine is a lien upon the building or unit within a building to the extent of the owner’s interest. The lien is enforceable and collectible by execution issued by order of the court. [1989 c 373 § 10; 1988 c 141 § 15.] Chapter 7.44 Chapter 7.44 RCW NE EXEAT Sections 7.44.010 7.44.020 7.44.021 7.44.030 7.44.031 7.44.040 7.44.050 7.44.060 7.44.070 Affidavit for writ. Complaint. Arrest and bail—Bond. Recognizance of defendant. Recognizance of defendant—Discharge by securing performance. Subrogation of surety—Rights of contractor. Habeas corpus available to defendant. District judges have jurisdiction. Venue. 7.44.010 7.44.010 Affidavit for writ. Actions may be commenced upon any agreement in writing before the time for the performance of the contract expires, when the plaintiff or his agent shall make and file an affidavit with the clerk of the proper court, that the defendant is about to leave the state without performing or making provisions for the performance of the contract, taking with him property, moneys, credits or effects subject to execution, with intent to defraud plaintiff. [Code 1881 § 636; 1877 p 133 § 639; 1869 p 149 § 576; 1854 p 209 § 418; RRS § 778.] 7.44.020 7.44.020 Complaint. At the time of filing the affidavit the plaintiff shall also file his complaint in the action, and thenceforth the action shall proceed as other actions at law, except as otherwise provided in this chapter. [1891 c 42 (p 81) § 1; Code 1881 § 637; 1877 p 133 § 640; 1869 p 149 § 577; 1854 p 209 § 419; RRS § 779, part: FORMER PARTS OF SECTION: 1891 c 42 § 2 now codified as RCW 7.44.021.] 7.44.021 7.44.021 Arrest and bail—Bond. Upon such affidavit and complaint being filed, the clerk shall issue an order of arrest and bail, directed to the sheriff, which shall be issued, served and returned in all respects as such orders in other cases; before such order shall issue the plaintiff shall file in the office of the clerk a bond, with sufficient surety, to be approved by the clerk, conditioned that the plaintiff will pay the defendant such damages and costs as he shall wrongfully sustain by reason of the action, which surety shall justify as provided by law. [1957 c 51 § 10; 1891 c 42 § 2. Formerly RCW 7.44.020, part.] Corporate surety—Insurance: Chapter 48.28 RCW. 7.44.030 Severability—1989 c 373: See RCW 7.21.900. 7.43.130 7.43.130 Recovery of damages not precluded. The abatement of a nuisance under this chapter does not prejudice the right of any person to recover damages for its past existence. [1988 c 141 § 16.] 7.43.900 7.43.900 Severability—1988 c 141. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1988 c 141 § 18.] [Title 7 RCW—page 32] 7.44.030 Recognizance of defendant. The sheriff shall require the defendant to enter into a bond, with sufficient surety, personally to appear within the time allowed by law for answering the complaint, and to abide the order of the court; and in default thereof the defendant shall be committed to prison until discharged in due course of law; such special bail shall be liable for the principal, and shall have a right to arrest and deliver him up, as in other cases, and the defendant may give other bail. [1891 c 42 § 3; Code 1881 § 638; 1877 p 133 § 641; 1869 p 149 § 578; 1854 p 209 § 420; RRS § 780, part. FORMER PARTS OF SECTION: Code 1881 § 639; 1877 p 133 § 642; 1869 p 150 § 579; 1854 p 209 § 421 now codified as RCW 7.44.031.] (2006 Ed.) Nuisances 7.44.031 Recognizance of defendant—Discharge by securing performance. Instead of giving special bail, as above provided, the defendant shall be entitled to his discharge from custody if he will secure the performance of the contract to the satisfaction of the plaintiff. [Code 1881 § 639; 1877 p 133 § 642; 1869 p 150 § 579; 1854 p 209 § 421; RRS § 780, part. Formerly RCW 7.44.030, part.] 7.44.031 7.44.040 Subrogation of surety—Rights of contractor. This proceeding may be had in favor of any surety or other person jointly bound with the defendant. It may also be prosecuted by the person in whose favor the contract exists, against any one or more of the persons bound thereby, upon filing such affidavit, when the co-contractors are nonresidents or probably insolvent, or at the request of any of them when they are residents and solvent. [Code 1881 § 640; 1877 p 133 § 643; 1869 p 150 § 580; 1854 p 210 § 422; RRS § 781.] 7.44.040 7.44.050 Habeas corpus available to defendant. The defendant may have the same remedy by writ of habeas corpus as in other cases of arrest and bail. [Code 1881 § 641; 1877 p 134 § 644; 1869 p 150 § 581; 1854 p 210 § 423; RRS § 782.] 7.44.050 7.44.060 District judges have jurisdiction. The proceedings provided for in this chapter may be had before district judges in all cases within their jurisdiction. [1987 c 202 § 135; 1891 c 42 § 4; Code 1881 § 642; 1877 p 134 § 644; 1869 p 150 § 582; 1854 p 210 § 424; RRS § 783.] 7.44.060 Intent—1987 c 202: See note following RCW 2.04.190. 7.44.070 7.44.070 Venue. The affidavit and bond may be filed, and proceedings had in any county where the defendants may be found. [Code 1881 § 643; 1877 p 134 § 646; 1869 p 150 § 583; 1854 p 210 § 425; RRS § 784.] Chapter 7.48 Chapter 7.48 RCW NUISANCES Sections 7.48.010 7.48.020 7.48.030 7.48.040 7.48.050 7.48.052 7.48.054 7.48.056 7.48.058 7.48.060 7.48.062 7.48.064 7.48.066 7.48.068 7.48.070 7.48.072 7.48.074 7.48.076 7.48.078 7.48.080 7.48.085 7.48.090 7.48.100 (2006 Ed.) Actionable nuisance defined. Who may sue—Judgment for damages—Warrant for abatement—Injunction. Issuance and execution of warrant. Stay of issuance of warrant. Moral nuisances—Definitions. Moral nuisances. Moral nuisance—Personal property—Effects of notice. Abate moral nuisance—Enjoin owner. Maintaining action to abate moral nuisance—Bond. Moral nuisance—Jurisdiction—Filing a complaint. Moral nuisance—Restraining order—Violations. Moral nuisance—Hearing—Notice—Consolidation with trial. Finding of moral nuisance—Orders. Abatement of moral nuisance by owner—Effect on injunction. Moral nuisance—Priority of action on calendar. Moral nuisance—Effects of admission or finding of guilt. Moral nuisance—Evidence of reputation—Admissibility. Moral nuisance—Trial—Costs—Dismissal—Judgment. Moral nuisance—Judgment—Penalties—Disposal of personal property. Moral nuisance—Violation of injunction—Contempt of court. Moral nuisance—Property owner may repossess. Moral nuisance—Contraband—Forfeitures. Moral nuisance—Immunity of certain motion picture theatre employees. 7.48.020 7.48.110 7.48.120 7.48.130 7.48.140 7.48.150 7.48.155 7.48.160 7.48.170 7.48.180 7.48.190 7.48.200 7.48.210 7.48.220 7.48.230 7.48.240 7.48.250 7.48.260 7.48.270 7.48.280 7.48.300 7.48.305 7.48.310 7.48.315 7.48.320 7.48.900 7.48.905 Houses of lewdness, assignation or prostitution may be abated—Voluntary abatement. Nuisance defined. Public nuisance defined. Public nuisances enumerated. Private nuisance defined. Unlawful use of firearm or deadly weapon—Arrest required. Authorized act not a nuisance. Successive owners liable. Abatement does not preclude action for damages. Nuisance does not become legal by prescription. Remedies. Civil action, who may maintain. Abatement, by whom. Public nuisance—Abatement. Certain places of resort declared nuisances. Penalty—Abatement. Warrant of abatement. Stay of warrant. Costs of abatement. Agricultural activities and forest practices—Legislative finding and purpose. Agricultural activities and forest practices—Presumed reasonable and not a nuisance—Exception—Damages. Agricultural activities and forest practices—Definitions. Agricultural activities and forest practices—Recovering lawsuit costs—Farmers. Agricultural activities and forest practices—Recovering costs to investigate complaints—State and local agencies. Severability—Initiative Measure No. 335. Severability—1979 c 122. Nuisances criminal: Chapter 9.66 RCW. drug, injunctions: Chapter 7.43 RCW. jurisdiction of superior court: State Constitution Art. 4 § 6 (Amendment 28). 7.48.010 7.48.010 Actionable nuisance defined. The obstruction of any highway or the closing of the channel of any stream used for boating or rafting logs, lumber or timber, or whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance and the subject of an action for damages and other and further relief. [Code 1881 § 605; 1877 p 126 § 610; 1869 p 144 § 599; 1854 p 207 § 405; RRS § 943.] Crimes malicious mischief: Chapter 9.61 RCW. public nuisance: RCW 9.66.010. 7.48.020 7.48.020 Who may sue—Judgment for damages— Warrant for abatement—Injunction. Such action may be brought by any person whose property is, or whose patrons or employees are, injuriously affected or whose personal enjoyment is lessened by the nuisance. If judgment be given for the plaintiff in such action, he or she may, in addition to the execution to enforce the same, on motion, have an order allowing a warrant to issue to the sheriff to abate and to deter or prevent the resumption of such nuisance. Such motion shall be allowed, of course, unless it appear on the hearing that the nuisance has ceased, or that such remedy is inadequate to abate or prevent the continuance of the nuisance, in which latter case the plaintiff may have the defendant enjoined. [1994 c 45 § 5; 1891 c 50 § 1; Code 1881 § 606; 1877 p 126 § 611; 1869 p 144 § 560; 1854 p 207 § 406; RRS § 944.] Findings—Declaration—Severability—1994 c 45: See notes following RCW 7.48.140. [Title 7 RCW—page 33] 7.48.030 Title 7 RCW: Special Proceedings and Actions 7.48.030 Issuance and execution of warrant. If the order be made, the clerk shall thereafter, at any time within six months, when requested by the plaintiff, issue such warrant directed to the sheriff, requiring him forthwith to abate the nuisance at the expense of the defendant, and return the warrant as soon thereafter as may be, with his proceedings indorsed thereon. The expenses of abating the nuisance may be levied by the sheriff on the property of the defendant, and in this respect the warrant is to be deemed an execution against property. [Code 1881 § 607; 1877 p 126 § 612; 1869 p 145 § 561; 1854 p 207 § 407; RRS § 945.] 7.48.030 7.48.040 Stay of issuance of warrant. At any time before the order is made or the warrant issues, the defendant may, on motion to the court or judge thereof, have an order to stay the issue of such warrant for such period as may be necessary, not exceeding six months, to allow the defendant to abate the nuisance himself, upon his giving bond to the plaintiff in a sufficient amount with one or more sureties, to the satisfaction of the court or judge thereof, that he will abate it within the time and in the manner specified in such order. The sureties shall justify as provided by law. If the defendant fails to abate such nuisance within the time specified, the warrant for the abatement of the nuisance may issue as if the same had not been stayed. [1957 c 51 § 11; Code 1881 § 608; 1877 p 127 § 613; 1869 p 145 § 562; RRS § 946.] 7.48.040 Corporate surety—Insurance: Chapter 48.28 RCW. 7.48.050 Moral nuisances—Definitions. The definitions set forth in this section shall apply throughout this chapter as they relate to moral nuisances. (1) "Knowledge" or "knowledge of such nuisance" means having knowledge of the contents and character of the patently offensive sexual conduct which appears in the lewd matter, or knowledge of the acts of lewdness, assignation, or prostitution which occur on the premises. (2) "Lewd matter" is synonymous with "obscene matter" and means any matter: (a) Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and (b) Which depicts or describes patently offensive representations or descriptions of: (i) Ultimate sexual acts, normal or perverted, actual or simulated; or (ii) Masturbation, excretory functions, or lewd exhibition of the genitals or genital area. Nothing herein contained is intended to include or proscribe any matter which, when considered as a whole, and in the context in which it is used, possesses serious literary, artistic, political, or scientific value. (3) "Lewdness" shall have and include all those meanings which are assigned to it under the common law. (4) "Live performance" means any play, show, skit, dance, or other exhibition performed or presented to or before an audience of one or more, in person or by electronic transmission, with or without consideration. (5) "Matter" shall mean a live performance, a motion picture film, or a publication or any combination thereof. (6) "Moral nuisance" means a nuisance which is injurious to public morals. 7.48.050 [Title 7 RCW—page 34] (7) "Motion picture film" shall include any: (a) Film or plate negative; (b) Film or plate positive; (c) Film designed to be projected on a screen for exhibition; (d) Films, glass slides, or transparencies, either in negative or positive form, designed for exhibition by projection on a screen; (e) Video tape or any other medium used to electronically reproduce images on a screen. (8) "Person" means any individual, partnership, firm, association, corporation, or other legal entity. (9) "Place" includes, but is not limited to, any building, structure, or places, or any separate part or portion thereof, whether permanent or not, or the ground itself. (10) "Publication" shall include any book, magazine, article, pamphlet, writing, printing, illustration, picture, sound recording, or a motion picture film which is offered for sale or exhibited in a coin-operated machine. (11) "Sale" means a passing of title or right of possession from a seller to a buyer for valuable consideration, and shall include, but is not limited to, any lease or rental arrangement or other transaction wherein or whereby any valuable consideration is received for the use of, or transfer of possession of, lewd matter. [1990 c 152 § 1; 1979 c 1 § 1 (Initiative Measure No. 335, approved November 8, 1977); 1913 c 127 § 1; RRS § 946-1.] Severability—1990 c 152: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1990 c 152 § 6.] 7.48.052 7.48.052 Moral nuisances. The following are declared to be moral nuisances: (1) Any and every place in the state where lewd films are publicly exhibited as a regular course of business, or possessed for the purpose of such exhibition, or where lewd live performances are publicly exhibited as a regular course of business; (2) Any and every place in the state where a lewd film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition, or where a lewd live performance is publicly and repeatedly exhibited; (3) Any and every lewd film which is publicly exhibited, or possessed for such purpose at a place which is a moral nuisance under this section; (4) Any and every place of business in the state in which lewd publications constitute a principal part of the stock in trade; (5) Any and every lewd publication possessed at a place which is a moral nuisance under this section; (6) Every place which, as a regular course of business, is used for the purpose of lewdness, assignation, or prostitution, and every such place in or upon which acts of lewdness, assignation, or prostitution are conducted, permitted, carried on, continued, or exist; (7) All public houses or places of resort where illegal gambling is carried on or permitted; all houses or places within any city, town, or village, or upon any public road, or highway where drunkenness, illegal gambling, fighting, or breaches of the peace are carried on or permitted; all houses, (2006 Ed.) Nuisances housing units, other buildings, or places of resort where controlled substances identified in Article II of chapter 69.50 RCW and not authorized by that chapter, are manufactured, delivered or possessed, or where any such substance not obtained in a manner authorized by chapter 69.50 RCW is consumed by ingestion, inhalation, injection or any other means. [1990 c 152 § 2; 1988 c 141 § 1; 1979 c 1 § 2 (Initiative Measure No. 335, approved November 8, 1977).] Severability—1990 c 152: See note following RCW 7.48.050. Severability—1988 c 141: See RCW 7.43.900. 7.48.054 7.48.054 Moral nuisance—Personal property— Effects of notice. The following are also declared to be moral nuisances, as personal property used in conducting and maintaining a moral nuisance: (1) All moneys paid as admission price to the exhibition of any lewd film or lewd live performance found to be a moral nuisance; (2) All valuable consideration received for the sale of any lewd publication which is found to be a moral nuisance; (3) The furniture, fixtures, and contents of a place which is a moral nuisance. From and after service of a copy of the notice of hearing of the application for a preliminary injunction, provided for in RCW 7.48.064, upon the place or its manager, acting manager, or person then in charge, all such persons are deemed to have knowledge of the acts, conditions, or things which make such place a moral nuisance. Where the circumstantial proof warrants a determination that a person had knowledge of the moral nuisance prior to such service of process, the court shall make such finding. [1990 c 152 § 3; 1979 c 1 § 3 (Initiative Measure No. 335, approved November 8, 1977).] Severability—1990 c 152: See note following RCW 7.48.050. 7.48.056 7.48.056 Abate moral nuisance—Enjoin owner. In addition to any other remedy provided by law, any act, occupation, structure, or thing which is a moral nuisance may be abated, and the person doing such act or engaged in such occupation, and the owner and agent of the owner of any such structure or thing, may be enjoined as provided in this chapter. [1979 c 1 § 4 (Initiative Measure No. 335, approved November 8, 1977).] 7.48.058 7.48.058 Maintaining action to abate moral nuisance—Bond. The attorney general, prosecuting attorney, city attorney, city prosecutor, or any citizen of the county may maintain an action of an equitable nature in the name of the state of Washington upon the relation of such attorney general, prosecuting attorney, city attorney, city prosecutor, or citizen, to abate a moral nuisance, to perpetually enjoin all persons from maintaining the same, and to enjoin the use of any structure or thing adjudged to be a moral nuisance. If such action is instituted by a private person, the complainant shall execute a bond to the person against whom complaint is made, with good and sufficient surety to be approved by the court or clerk thereof, in the sum of not less than five hundred dollars, to secure to the party enjoined the damages he may sustain if such action is wrongfully brought, and the court finds there was no reasonable grounds or cause for said action and the case is dismissed for that reason before (2006 Ed.) 7.48.064 trial or for want of prosecution. No bond shall be required of the attorney general, prosecuting attorney, city attorney, or city prosecutor, and no action shall be maintained against such public official for his official action when brought in good faith. [1979 c 1 § 5 (Initiative Measure No. 335, approved November 8, 1977).] 7.48.060 7.48.060 Moral nuisance—Jurisdiction—Filing a complaint. The action provided for in RCW 7.48.058 shall be brought in any court of competent jurisdiction in the county in which the property is located. Such action shall be commenced by the filing of a verified complaint alleging the facts constituting the nuisance. After the filing of said complaint, application for a temporary injunction may be made to the court in which the action is filed, or to a judge thereof, who shall grant a hearing within ten days after the filing. [1979 c 1 § 6 (Initiative Measure No. 335, approved November 8, 1977); 1913 c 127 § 2; RRS § 946-2.] 7.48.062 7.48.062 Moral nuisance—Restraining order—Violations. Where such application for a temporary injunction is made, the court or judge thereof may, on application of the complainant showing good cause, issue an ex parte restraining order, restraining the defendant and all other persons from removing or in any manner interfering with the personal property and contents of the place where such nuisance is alleged to exist, until the decision of the court or judge granting or refusing such temporary injunction and until the further order of the court thereon, except that pending such decision, the stock in trade may not be so restrained, but an inventory and full accounting of all business transactions may be required. The restraining order may be served by handing to and leaving a copy of such order with any person in charge of such place or residing therein, or by posting a copy thereof in a conspicuous place at or upon one or more of the principal doors or entrances to such place, or by both such delivery and posting. The officer serving such restraining order shall forthwith make and return into court an inventory of the personal property and contents situated in and used in conducting or maintaining such nuisance. Any violation of such restraining order is a contempt of court, and where such order is posted, mutilation or removal thereof while the same remains in force is a contempt of court if such posted order contains therein a notice to that effect. [1979 c 1 § 7 (Initiative Measure No. 335, approved November 8, 1977).] 7.48.064 7.48.064 Moral nuisance—Hearing—Notice—Consolidation with trial. A copy of the complaint, together with a notice of the time and place of the hearing of the application for a temporary injunction, shall be served upon the defendant at least three days before such hearing. The place may also be served by posting such papers in the same manner as is provided for in RCW 7.48.062 in the case of a restraining order. If the hearing is then continued at the instance of any defendant, the temporary writ as prayed shall be granted as a matter of course. Before or after the commencement of the hearing of an application for a temporary injunction, the court, on applica[Title 7 RCW—page 35] 7.48.066 Title 7 RCW: Special Proceedings and Actions tion of either of the parties or on its own motion, may order the trial of the action on the merits to be advanced and consolidated with the hearing on the application for the temporary injunction. Any evidence received upon an application for a temporary injunction which would be admissible in the trial on the merits becomes a part of the record of the trial and need not be repeated as to such parties at the trial on the merits. [1979 c 1 § 8 (Initiative Measure No. 335, approved November 8, 1977).] 7.48.066 7.48.066 Finding of moral nuisance—Orders. If upon hearing, the allegations of the complaint are sustained to the satisfaction of the court or judge, the court or judge shall issue a temporary injunction without additional bond, restraining the defendant and any other person from continuing the nuisance. If at the time the temporary injunction is granted, it further appears that the person owning, in control of, or in charge of the nuisance so enjoined had received three days notice of the hearing, then the court shall declare a temporary forfeiture of the use of the real property upon which such public nuisance is located and the personal property located therein, and shall forthwith issue an order closing such place against its use for any purpose until a final decision is rendered on the application for a permanent injunction, unless: (1) The person owning, in control of, or in charge of such nuisance shows to the satisfaction of the court or judge, by competent and admissible evidence which is subject to crossexamination, that the nuisance complained of has been abated by such person; or (2) The owner of such property, as a "good faith" lessor, has taken action to void said lease as is authorized by RCW 7.48.085. Such order shall also continue in effect for such further period as the order authorized in RCW 7.48.062 provides. If no order has been issued pursuant to RCW 7.48.062, then an order restraining the removal or interference with the personal property and contents located therein shall be issued. Such restraining order shall be served and the inventory of such property shall be made and filed as provided for in RCW 7.48.062. Such order shall also require such persons to show cause within thirty days why such closing order should not be made permanent, as provided for in RCW 7.48.078. [1979 c 1 § 9 (Initiative Measure No. 335, approved November 8, 1977).] 7.48.068 7.48.068 Abatement of moral nuisance by owner— Effect on injunction. The owner of any real or personal property to be closed or restrained, or which has been closed or restrained, may appear after the filing of the complaint and before the hearing on the application for a permanent injunction. The court, if satisfied of the good faith of the owner of the real property and of the innocence on the part of any owner of the personal property of any knowledge of its use as a nuisance, and that with reasonable care and diligence such owner could not have known thereof shall, at the time of the hearing on the application for the temporary injunction and upon payment of all costs incurred and upon the filing of a bond by the owner of the real property with sureties to be [Title 7 RCW—page 36] approved by the clerk in the full value of the property to be ascertained by the court, conditioned that such owner will immediately abate the nuisance and prevent the same from being established or kept, refrain from issuing any order closing such real property or restraining the removal or interference with such personal property, and, if such temporary injunction has already been issued, shall cancel said order and shall deliver such real or personal property, or both, to the respective owners thereof. The release of any real or personal property under this section shall not release it from any judgment, lien, penalty, or liability to which it may be subjected by law. [1979 c 1 § 10 (Initiative Measure No. 335, approved November 8, 1977).] Voluntary abatement: RCW 7.48.110. 7.48.070 7.48.070 Moral nuisance—Priority of action on calendar. The action provided for in RCW 7.48.058 shall be set down for trial at the first term of the court and shall have precedence over all other cases except crimes, election contests, or injunctions. [1979 c 1 § 11 (Initiative Measure No. 335, approved November 8, 1977); 1913 c 127 § 3; RRS § 946-3.] 7.48.072 7.48.072 Moral nuisance—Effects of admission or finding of guilt. In such action, an admission or finding of guilty of any person under the criminal laws against lewdness, prostitution, or assignation at any such place is admissible for the purpose of proving the existence of such nuisance, and is prima facie evidence of such nuisance and of knowledge of, and of acquiescence and participation therein, on the part of the person charged with maintaining such nuisance. [1979 c 1 § 12 (Initiative Measure No. 335, approved November 8, 1977).] 7.48.074 7.48.074 Moral nuisance—Evidence of reputation— Admissibility. At all hearings upon the merits, evidence of the general reputation of the building or place constituting the alleged nuisance, of the inmates thereof, and of those resorting thereto, is admissible for the purpose of proving the existence of such nuisance. [1979 c 1 § 13 (Initiative Measure No. 335, approved November 8, 1977).] 7.48.076 7.48.076 Moral nuisance—Trial—Costs—Dismissal—Judgment. If the action is brought by a person who is a citizen of the county, and the court finds that there were no reasonable grounds or probable cause for bringing said action, and the case is dismissed before trial for that reason or for want of prosecution, the costs, including attorney’s fees, may be taxed to such person. If the existence of the nuisance is established upon the trial, a judgment shall be entered which shall perpetually enjoin the defendant and any other person from further maintaining the nuisance at the place complained of, and the defendant from maintaining such nuisance elsewhere. The entire expenses of such abatement, including attorney’s fees, shall be recoverable by the plaintiff as a part of his costs of the lawsuit. If the complaint is filed by a person who is a citizen of the county, it shall not be dismissed except upon a sworn statement by the complainant and his attorney, setting forth the reason why the action should be dismissed and the dis(2006 Ed.) Nuisances missal approved by the prosecuting attorney in writing or in open court. If the judge is of the opinion that the action should not be dismissed, he may direct the prosecuting attorney to prosecute said action to judgment at the expense of the county, and if the action is continued for more than one term of court, any person who is a citizen of the county or has an office therein, or the attorney general, the prosecuting attorney, city attorney, or city prosecutor, may be substituted for the complainant and prosecute said action to judgment. [1979 c 1 § 14 (Initiative Measure No. 335, approved November 8, 1977).] 7.48.090 court. [1979 c 1 § 15 (Initiative Measure No. 335, approved November 8, 1977).] 7.48.080 7.48.080 Moral nuisance—Violation of injunction— Contempt of court. A violation of any injunction granted under RCW 7.48.050 through 7.48.100 is a contempt of court as provided in chapter 7.21 RCW. [1989 c 373 § 11; 1979 c 1 § 16 (Initiative Measure No. 335, approved November 8, 1977); 1913 c 127 § 4; RRS § 946-4.] Severability—1989 c 373: See RCW 7.21.900. 7.48.085 7.48.078 Moral nuisance—Judgment—Penalties— Disposal of personal property. If the existence of a nuisance is admitted or established in an action as provided for in RCW 7.48.058 or in a criminal proceeding, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the place of all personal property and contents used in conducting the nuisance and not already released under authority of the court as provided for in RCW 7.48.066 and 7.48.068, and shall direct the sale of such thereof as belong to the defendants notified or appearing, in the manner provided for the sale of chattels under execution. Lewd matter shall be destroyed and shall not be sold. Such judgment shall impose a penalty of three hundred dollars for the maintenance of such nuisance, which penalty shall be imposed against the person or persons found to have maintained the nuisance, and, in case any owner or agent of the building found to have had actual or constructive notice of the maintenance of such nuisance, against such owner or agent, and against the building kept or used for the purposes of maintaining a moral nuisance, which penalty shall be collected by execution as in civil actions, and when collected, shall be paid into the current expense fund of the county in which the judgment is had. Such order shall also require the renewal for one year of any bond furnished by the owner of the real property, as provided in RCW 7.48.068 or, if not so furnished, shall continue for one year any closing order issued at the time of granting the temporary injunction, or, if no such closing order was then issued, shall include an order directing the effectual closing of the place against its use for any purpose and keeping it closed for a period of one year unless sooner released. The owner of any place closed and not released under bond may then appear and obtain such release in the manner and upon fulfilling the requirements provided in RCW 7.48.068. Owners of unsold personal property and contents so seized must appear and claim the same within ten days after such order of abatement is made, and prove innocence to the satisfaction of the court of any knowledge of such use thereof, and that with reasonable care and diligence they could not have known thereof. If such innocence is established, such unsold personal property and contents shall be delivered to the owner, otherwise it shall be sold as provided in this section. For removing and selling the personal property and contents, the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling like property on execution; and for closing the place and keeping it closed, a reasonable sum shall be allowed by the 7.48.078 (2006 Ed.) 7.48.085 Moral nuisance—Property owner may repossess. If a tenant or occupant of a building or tenement, under a lawful title, uses such place for the purposes of maintaining a moral nuisance, such use makes void at the option of the owner the lease or other title under which he holds, and without any act of the owner causes the right of possession to revert and vest in such owner, who may without process of law make immediate entry upon the premises. [1979 c 1 § 17 (Initiative Measure No. 335, approved November 8, 1977).] 7.48.090 7.48.090 Moral nuisance—Contraband—Forfeitures. Lewd matter is contraband, and there are no property rights therein. All personal property declared to be a moral nuisance in RCW 7.48.052 and 7.48.054 and all moneys and other consideration declared to be a moral nuisance under RCW 7.48.056 are the subject of forfeiture to the local government and are recoverable as damages in the county wherein such matter is sold, exhibited, or otherwise used. Such moneys may be traced to and shall be recoverable from persons who, under RCW 7.48.064, have knowledge of the nuisance at the time such moneys are received by them. Upon judgment against the defendants in legal proceedings brought pursuant to RCW 7.48.050 through 7.48.100 as now or hereafter amended, an accounting shall be made by such defendant or defendants of all moneys received by them which have been declared to be a public nuisance under this section. An amount equal to the sum of all moneys estimated to have been taken in as gross income from such unlawful commercial activity shall be forfeited to the general funds of the city and county governments wherein such matter is sold or exhibited, to be shared equally, as a forfeiture of the fruits of an unlawful enterprise and as partial restitution for damages done to the public welfare, public health, and public morals. Where the action is brought pursuant to RCW 7.48.050 through 7.48.100 as now or hereafter amended, special injury need not be proven, and the costs of abatement are a lien on both the real and personal property used in maintaining the nuisance. Costs of abatement include, but are not limited to the following: (1) Investigative costs; (2) Court costs; (3) Reasonable attorney’s fees arising out of the preparation for and trial of the cause, appeals therefrom, and other costs allowed on appeal; (4) Printing costs of trial and appellate briefs, and all other papers filed in such proceedings. [1979 c 1 § 18 (Initiative Measure No. 335, approved November 8, 1977); 1927 c 94 § 1; 1913 c 127 § 5; RRS § 946-5.] [Title 7 RCW—page 37] 7.48.100 Title 7 RCW: Special Proceedings and Actions 7.48.100 Moral nuisance—Immunity of certain motion picture theatre employees. The provisions of any criminal statutes with respect to the exhibition of, or the possession with the intent to exhibit, any obscene film shall not apply to a motion picture projectionist, usher, or ticket taker acting within the scope of his employment, if such projectionist, usher, or ticket taker (1) has no financial interest in the place wherein he is so employed, other than his salary, and (2) freely and willingly gives testimony regarding such employment in any judicial proceedings brought under RCW 7.48.050 through 7.48.100 as now or hereafter amended, including pretrial discovery proceedings incident thereto, when and if such is requested, and upon being granted immunity by the trial judge sitting in such matters. [1979 c 1 § 19 (Initiative Measure No. 335, approved November 8, 1977); 1927 c 94 § 2; 1913 c 127 § 6; RRS § 946-6.] 7.48.100 7.48.110 Houses of lewdness, assignation or prostitution may be abated—Voluntary abatement. If the owner of the building in which a nuisance is found to be maintained, appears and pays all costs of the proceeding, and files a bond with sureties to be approved by the clerk in the full value of the property to be ascertained by the court, conditioned that he will immediately abate said nuisance and prevent the same from being established or kept therein within a period of one year thereafter, the court or judge may, if satisfied of his good faith, order the premises, closed under the order of abatement, to be delivered to said owner, and said order closing the building canceled. The release of the property under the provisions of this section shall not release it from any judgment, lien, penalty or liability to which it may be subject by law. [1927 c 94 § 3; 1913 c 127 § 7; RRS § 946-7.] 7.48.110 7.48.120 Nuisance defined. Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property. [Code 1881 § 1235; 1875 p 79 § 1; RRS § 9914.] 7.48.120 Crimes malicious mischief: Chapter 9.61 RCW. nuisances: Chapter 9.66 RCW. 7.48.130 7.48.130 Public nuisance defined. A public nuisance is one which affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal. [Code 1881 § 1236; 1875 p 79 § 2; RRS § 9912.] Crimes, nuisances: Chapter 9.66 RCW. 7.48.140 Public nuisances enumerated. It is a public nuisance: (1) To cause or suffer the carcass of any animal or any offal, filth, or noisome substance to be collected, deposited, or to remain in any place to the prejudice of others; (2) To throw or deposit any offal or other offensive matter, or the carcass of any dead animal, in any watercourse, stream, lake, pond, spring, well, or common sewer, street, or 7.48.140 [Title 7 RCW—page 38] public highway, or in any manner to corrupt or render unwholesome or impure the water of any such spring, stream, pond, lake, or well, to the injury or prejudice of others; (3) To obstruct or impede, without legal authority, the passage of any river, harbor, or collection of water; (4) To obstruct or encroach upon public highway, private ways, streets, alleys, commons, landing places, and ways to burying places or to unlawfully obstruct or impede the flow of municipal transit vehicles as defined in RCW 46.04.355 or passenger traffic, access to municipal transit vehicles or stations as defined in *RCW 9.91.025(2)(a), or otherwise interfere with the provision or use of public transportation services, or obstruct or impede a municipal transit driver, operator, or supervisor in the performance of that individual’s duties; (5) To carry on the business of manufacturing gun powder, nitroglycerine, or other highly explosive substance, or mixing or grinding the materials therefor, in any building within fifty rods of any valuable building erected at the time such business may be commenced; (6) To establish powder magazines near incorporated cities or towns, at a point different from that appointed by the corporate authorities of such city or town; or within fifty rods of any occupied dwelling house; (7) To erect, continue, or use any building, or other place, for the exercise of any trade, employment, or manufacture, which, by occasioning obnoxious exhalations, offensive smells, or otherwise is offensive or dangerous to the health of individuals or of the public; (8) To suffer or maintain on one’s own premises, or upon the premises of another, or to permit to be maintained on one’s own premises, any place where wines, spirituous, fermented, malt, or other intoxicating liquors are kept for sale or disposal to the public in contravention of law; (9) For an owner or occupier of land, knowing of the existence of a well, septic tank, cesspool, or other hole or excavation ten inches or more in width at the top and four feet or more in depth, to fail to cover, fence or fill the same, or provide other proper and adequate safeguards: PROVIDED, That this section shall not apply to a hole one hundred square feet or more in area or one that is open, apparent, and obvious. Every person who has the care, government, management, or control of any building, structure, powder magazine, or any other place mentioned in this section shall, for the purposes of this section, be taken and deemed to be the owner or agent of the owner or owners of such building, structure, powder magazine or other place, and, as such, may be proceeded against for erecting, contriving, causing, continuing, or maintaining such nuisance. [1994 c 45 § 2; 1955 c 237 § 1; 1895 c 14 § 1; Code 1881 § 1246; RRS § 9913.] *Reviser’s note: The reference to RCW 9.91.025(2)(a) appears to be erroneous. Reference to RCW 9.91.025(2) was apparently intended. Findings—Declaration—1994 c 45: "The legislature finds that it is important to the general welfare to protect and preserve public safety in the operation of public transportation facilities and vehicles, in order to protect the personal safety of both passengers and employees. The legislature further finds that public transportation facilities and services will be utilized more fully by the general public if they are assured of personal safety and security in the utilization. The legislature recognizes that cities, towns, counties, public transportation benefit areas, and other municipalities that offer public transportation services have the independent authority to adopt regulations, rules, and (2006 Ed.) Nuisances guidelines that regulate conduct in public transportation vehicles and facilities to protect and preserve the public safety in the operation of the vehicles and facilities. The legislature finds that this act is not intended to limit the independent authority to regulate conduct by these municipalities. The legislature, however, further finds that this act is necessary to provide statewide guidelines that regulate conduct in public transportation vehicles and facilities to further enhance the independent regulatory authority of cities, towns, counties, public transportation benefit areas, and any other municipalities that offer public transportation services." [1994 c 45 § 1.] Severability—1994 c 45: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1994 c 45 § 6.] Crimes malicious mischief: Chapter 9.61 RCW. nuisance: Chapter 9.66 RCW. Devices simulating traffic control signs declared public nuisance: RCW 47.36.180. 7.48.150 7.48.150 Private nuisance defined. Every nuisance not included in the definition of RCW 7.48.130 is private. [Code 1881 § 1237; 1875 p 79 § 3; RRS § 9915.] 7.48.260 for damage is resorted to, the practice shall conform to RCW 7.48.010 through 7.48.040. [1957 c 51 § 12; Code 1881 § 1242; 1875 p 80 § 8; RRS § 9920.] 7.48.210 7.48.210 Civil action, who may maintain. A private person may maintain a civil action for a public nuisance, if it is specially injurious to himself but not otherwise. [Code 1881 § 1243; 1875 p 80 § 9; RRS § 9921.] 7.48.220 7.48.220 Abatement, by whom. A public nuisance may be abated by any public body or officer authorized thereto by law. [Code 1881 § 1244; 1875 p 80 § 10; RRS § 9922.] 7.48.230 7.48.230 Public nuisance—Abatement. Any person may abate a public nuisance which is specially injurious to him by removing, or if necessary, destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. [Code 1881 § 1245; 1875 p 80 § 11; RRS § 9923.] 7.48.155 7.48.155 Unlawful use of firea rm or deadly weapon—Arrest required. The unlawful use of a firearm or other deadly weapon by a person in, or adjacent to his or her dwelling, that imminently threatens the physical safety of other people in the adjacent area, so as to essentially interfere with the comfortable enjoyment of their residences, is a nuisance and may be abated, and the person who unlawfully used the firearm or deadly weapon is subject to the punishment provided in this chapter. This section does not apply unless the person who unlawfully used the firearm or other deadly weapon is arrested for this activity. [1992 c 38 § 10.] Intent—Effective date—1992 c 38: See notes following RCW 59.18.352. 7.48.240 7.48.240 Certain places of resort declared nuisances. Houses of ill fame, kept for the purpose, where persons are employed for purposes of prostitution; all public houses or places of resort where gambling is carried on, or permitted; all houses or places within any city, town, or village, or upon any public road, or highway where drunkenness, gambling, fighting or breaches of the peace are carried on, or permitted; all opium dens, or houses, or places of resort where opium smoking is permitted, are nuisances, and may be abated, and the owners, keepers, or persons in charge thereof, and persons carrying on such unlawful business shall be punished as provided in this chapter. [1973 1st ex.s. c 154 § 18; Code 1881 § 1247; 1875 p 81 § 13; RRS § 9924.] 7.48.160 7.48.160 Authorized act not a nuisance. Nothing which is done or maintained under the express authority of a statute, can be deemed a nuisance. [Code 1881 § 1238; 1875 p 79 § 4; RRS § 9916.] 7.48.170 7.48.170 Successive owners liable. Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of such property caused by a former owner, is liable therefor in the same manner as the one who first created it. [Code 1881 § 1239; 1875 p 79 § 5; RRS § 9917.] 7.48.180 7.48.180 Abatement does not preclude action for damages. The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence. [Code 1881 § 1240; 1875 p 79 § 6; RRS § 9918.] 7.48.190 7.48.190 Nuisance does not become legal by prescription. No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right. [Code 1881 § 1241; 1875 p 80 § 7; RRS § 9919.] 7.48.200 7.48.200 Remedies. The remedies against a public nuisance are: Indictment or information, a civil action, or abatement. The remedy by indictment or information shall be as regulated and prescribed in this chapter. When a civil action (2006 Ed.) Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 7.48.250 7.48.250 Penalty—Abatement. Whoever is convicted of erecting, causing or contriving a public or common nuisance as described in this chapter, or at common law, when the same has not been modified or repealed by statute, where no other punishment therefor is specially provided, shall be punished by a fine not exceeding one thousand dollars, and the court with or without such fine, may order such nuisance to be abated, and issue a warrant as hereinafter provided: PROVIDED, That orders and warrants of abatement shall not be issued by district judges. [1987 c 202 § 136; 1957 c 45 § 1; Code 1881 § 1248; 1875 p 81 § 14; RRS § 9925.] Intent—1987 c 202: See note following RCW 2.04.190. 7.48.260 7.48.260 Warrant of abatement. When, upon indictment or information, complaint or action, any person is adjudged guilty of a nuisance, if it be in superior court the court may in addition to the fine imposed, if any, or to the judgment for damages or costs, for which a separate execution may issue, order that such nuisance be abated, or removed at the expense of the defendant, and after inquiry into and estimating, as nearly as may be, the sum necessary to defray the expenses of such abatement, the court may issue a warrant therefor: PROVIDED, That if the conviction was had in a district court, the district judge shall not issue the [Title 7 RCW—page 39] 7.48.270 Title 7 RCW: Special Proceedings and Actions order and warrant of abatement, but on application therefor, shall transfer the cause to the superior court which shall proceed to try the issue of abatement in the same manner as if the action had been originally commenced therein. [1987 c 202 § 137; 1957 c 45 § 2; Code 1881 § 1249; 1875 p 81 § 15; RRS § 9926, part. FORMER PARTS OF SECTION: Code 1881 § 1250; 1875 p 81 § 16.] Intent—1987 c 202: See note following RCW 2.04.190. 7.48.270 7.48.270 Stay of warrant. Instead of issuing such warrant, the court may order the same to be stayed upon motion of the defendant, and upon his entering into a bond in such sum and with such surety as the court may direct to the state, conditioned either that the defendant will discontinue said nuisance, or that within a time limited by the court, and not exceeding six months, he will cause the same to be abated and removed, as either is directed by the court, and upon his default to perform the condition of his bond, the same shall be forfeited, and the court, upon being satisfied of such default, may order such warrant forthwith to issue, and an order to show cause why judgment should not be entered against the sureties of said bond. [1957 c 45 § 3; Code 1881 § 1251; 1875 p 81 § 17; RRS § 9927.] 7.48.280 7.48.280 Costs of abatement. The expense of abating a nuisance, by virtue of a warrant, can be collected by the officer in the same manner as damages and costs are collected on execution, except that the materials of any buildings, fences, or other things that may be removed as a nuisance, may be first levied upon and sold by the officer, and if any of the proceeds remain after satisfying the expense of the removal, such balance must be paid by the officer to the defendant or to the owner of the property levied upon, and if said proceeds are not sufficient to pay such expenses, the officer must collect the residue thereof. [Code 1881 § 1252; 1875 p 82 § 18; RRS § 9928.] 7.48.300 7.48.300 Agricultural activities and forest practices—Legislative finding and purpose. The legislature finds that agricultural activities conducted on farmland and forest practices in urbanizing areas are often subjected to nuisance lawsuits, and that such suits encourage and even force the premature removal of the lands from agricultural uses and timber production. It is therefore the purpose of RCW 7.48.300 through 7.48.310 and 7.48.905 to provide that agricultural activities conducted on farmland and forest practices be protected from nuisance lawsuits. [1992 c 52 § 2; 1979 c 122 § 1.] 7.48.305 7.48.305 Agricultural activities and forest practices—Presumed reasonable and not a nuisance—Exception—Damages. Notwithstanding any other provision of this chapter, agricultural activities conducted on farmland and forest practices, if consistent with good agricultural and forest practices and established prior to surrounding nonagricultural and nonforestry activities, are presumed to be reasonable and shall not be found to constitute a nuisance unless the activity has a substantial adverse effect on the public health and safety. [Title 7 RCW—page 40] If those agricultural activities and forest practices are undertaken in conformity with all applicable laws and rules, the activities are presumed to be good agricultural and forest practices not adversely affecting the public health and safety for purposes of this section and RCW 7.48.300. An agricultural activity that is in conformity with such laws and rules shall not be restricted as to the hours of the day or day or days of the week during which it may be conducted. Nothing in this section shall affect or impair any right to sue for damages. [1992 c 151 § 1; 1992 c 52 § 3; 1979 c 122 § 2.] Reviser’s note: This section was amended by 1992 c 52 § 3 and by 1992 c 151 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section pursuant to RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). 7.48.310 7.48.310 Agricultural activities and forest practices—Definitions. As used in RCW 7.48.305: (1) "Agricultural activity" means a condition or activity which occurs on a farm in connection with the commercial production of farm products and includes, but is not limited to, marketed produce at roadside stands or farm markets; noise; odors; dust; fumes; operation of machinery and irrigation pumps; movement, including, but not limited to, use of current county road ditches, streams, rivers, canals, and drains, and use of water for agricultural activities; ground and aerial application of seed, fertilizers, conditioners, and plant protection products; employment and use of labor; roadway movement of equipment and livestock; protection from damage by wildlife; prevention of trespass; construction and maintenance of buildings, fences, roads, bridges, ponds, drains, waterways, and similar features and maintenance of streambanks and watercourses; and conversion from one agricultural activity to another. (2) "Farm" means the land, buildings, freshwater ponds, freshwater culturing and growing facilities, and machinery used in the commercial production of farm products. (3) "Farmland" means land or freshwater ponds devoted primarily to the production, for commercial purposes, of livestock, freshwater aquacultural, or other agricultural commodities. (4) "Farm product" means those plants and animals useful to humans and includes, but is not limited to, forages and sod crops, dairy and dairy products, poultry and poultry products, livestock, including breeding, grazing, and recreational equine use, fruits, vegetables, flowers, seeds, grasses, trees, freshwater fish and fish products, apiaries, equine and other similar products, or any other product which incorporates the use of food, feed, fiber, or fur. (5) "Forest practice" means "forest practice" as defined in RCW 76.09.020. [1992 c 52 § 4; 1991 c 317 § 2; 1979 c 122 § 3.] 7.48.315 7.48.315 Agricultural activities and forest practices—Recovering lawsuit costs—Farmers. (1) A farmer who prevails in any action, claim, or counterclaim alleging that agricultural activity on a farm constitutes a nuisance may recover the full costs and expenses determined by a court to have been reasonably incurred by the farmer as a result of the action, claim, or counterclaim. (2006 Ed.) Moral Nuisances (2) A farmer who prevails in any action, claim, or counterclaim (a) based on an allegation that agricultural activity on a farm is in violation of specified laws, rules, or ordinances, (b) where such activity is not found to be in violation of the specified laws, rules, or ordinances, and (c) actual damages are realized by the farm as a result of the action, claim, or counterclaim, may recover the full costs and expenses determined by a court to have been reasonably incurred by the farmer as a result of the action, claim, or counterclaim. (3) The costs and expenses that may be recovered according to subsection (1) or (2) of this section include actual damages and reasonable attorneys’ fees and costs. For the purposes of this subsection, "actual damages" include lost revenue and the replacement value of crops or livestock damaged or unable to be harvested or sold as a result of the action, claim, or counterclaim. (4) In addition to any sums recovered according to subsection (1) or (2) of this section, a farmer may recover exemplary damages if a court finds that the action, claim, or counterclaim was initiated maliciously and without probable cause. (5) A farmer may not recover the costs and expenses authorized in this section from a state or local agency that investigates or pursues an enforcement action pursuant to an allegation as specified in subsection (2) of this section. [2005 c 511 § 1.] 7.48.320 7.48.320 Agricultural activities and forest practices—Recovering costs to investigate complaints—State and local agencies. A state or local agency required to investigate a complaint alleging agricultural activity on a farm is in violation of specified laws, rules, or ordinances and where such activity is not found to be in violation of such specified laws, rules, or ordinances may recover its full investigative costs and expenses if a court determines that the complaint was initiated maliciously and without probable cause. [2005 c 511 § 2.] 7.48.900 7.48.900 Severability—Initiative Measure No. 335. If any provision of this 1977 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1979 c 1 § 20 (Initiative Measure No. 335, approved November 8, 1977).] 7.48.905 7.48.905 Severability—1979 c 122. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1979 c 122 § 4.] Chapter 7.48A Chapter 7.48A RCW MORAL NUISANCES Sections 7.48A.010 7.48A.020 7.48A.030 7.48A.040 7.48A.050 (2006 Ed.) Definitions. Moral nuisances—Declaration of. Civil actions—Who may bring. Maintenance of moral nuisance—Fine—Maximum. Fines—Payment. 7.48A.060 7.48A.070 7.48A.080 7.48A.090 7.48A.100 7.48A.110 7.48A.120 7.48A.130 7.48A.140 7.48A.900 7.48A.901 7.48A.010 Exceptions to application of chapter. Findings. Temporary injunction. Restraining order—Service—Violation of order or injunction. When bond or security not required. Hearing—Service of notice. Production of discovery materials—Temporary injunction. Precedence of hearing on injunction. Violation of order or injunction—Penalties. Severability—1982 c 184. Severability—1989 c 70. Drug nuisances—Injunctions: Chapter 7.43 RCW. 7.48A.010 Definitions. The definitions set forth in this section shall apply throughout this chapter. (1) "Knowledge" or "knowledge of such nuisance" means having knowledge of the contents and character of the patently offensive sexual or violent conduct which appears in the lewd matter, or knowledge of the acts of lewdness or prostitution which occur on the premises, or knowledge that controlled substances identified in Article II of chapter 69.50 RCW and not authorized by that chapter, are manufactured, delivered or possessed, or where any such substance not obtained in a manner authorized by chapter 69.50 RCW is consumed by ingestion, inhalation, or injection or any other means. (2) "Lewd matter" is synonymous with "obscene matter" and means any matter: (a) Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and (b) Which explicitly depicts or describes patently offensive representations or descriptions of: (i) Ultimate sexual acts, normal or perverted, actual or simulated; or (ii) Masturbation, fellatio, cunnilingus, bestiality, excretory functions, or lewd exhibition of the genitals or genital area; or (iii) Violent or destructive sexual acts, including but not limited to human or animal mutilation, dismemberment, rape or torture; and (c) Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value. (3) "Lewdness" shall have and include all those meanings which are assigned to it under the common law. (4) "Live performance" means any play, show, skit, dance, or other exhibition performed or presented to or before an audience of one or more, in person or by electronic transmission, with or without consideration. (5) "Matter" shall mean a live performance, a motion picture film, or a publication or any combination thereof. (6) "Motion picture film" shall include any: (a) Film or plate negative; (b) Film or plate positive; (c) Film designed to be projected on a screen for exhibition; (d) Film, glass slides, or transparencies, either in negative or positive form, designed for exhibition by projection on a screen; (e) Video tape or any other medium used to electronically reproduce images on a screen. (7) "Person" means any individual, partnership, firm, association, corporation, or other legal entity. 7.48A.010 [Title 7 RCW—page 41] 7.48A.020 Title 7 RCW: Special Proceedings and Actions (8) "Place" includes, but is not limited to, any building, structure, or places, or any separate part or portion thereof, whether permanent or not, or the ground itself. (9) "Prurient" means that which incites lasciviousness or lust. (10) "Publication" shall include any book, magazine, article, pamphlet, writing, printing, illustration, picture, sound recording, or coin-operated machine. (11) "Sale" means a passing of title or right of possession from a seller to a buyer for valuable consideration, and shall include, but is not limited to, any lease or rental arrangement or other transaction wherein or whereby any valuable consideration is received for the use of, or transfer of possession of, lewd matter. [1990 c 152 § 4; 1988 c 141 § 2; 1982 c 184 § 1.] Severability—1990 c 152: See note following RCW 7.48.050. 7.48A.040 7.48A.040 Maintenance of moral nuisance—Fine— Maximum. (1) No person shall with knowledge maintain a moral nuisance. (2) Upon a determination that a defendant has with knowledge maintained a moral nuisance, the court shall impose a civil fine and judgment of an amount as the court shall determine to be appropriate. In imposing the civil fine, the court shall consider the wilfulness of the defendant’s conduct and the profits made by the defendant attributable to the lewd matter, lewdness, or prostitution, whichever is applicable. In no event shall the civil fine exceed the greater of twenty-five thousand dollars or these profits. [1985 c 235 § 1; 1982 c 184 § 4.] Severability—1985 c 235: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 235 § 4.] Severability—1988 c 141: See RCW 7.43.900. 7.48A.050 7.48A.020 7.48A.020 Moral nuisances—Declaration of. The following are declared to be moral nuisances: (1) Any and every place in the state where lewd films are publicly exhibited as a regular course of business, or possessed for the purpose of such exhibition, or where lewd live performances are publicly exhibited as a regular course of business; (2) Any and every lewd film which is publicly exhibited, or possessed for such purpose at a place which is a moral nuisance under this section; (3) Any and every place of business in the state in which lewd publications constitute a principal part of the stock in trade; (4) Every place which, as a regular course of business, is used for the purpose of lewdness or prostitution, and every such place in or upon which acts of lewdness or prostitution are conducted, permitted, carried on, continued, or exist; (5) All houses, housing units, other buildings, or places of resort where controlled substances identified in Article II of chapter 69.50 RCW and not authorized by that chapter, are manufactured, delivered, or possessed, or where any such substance not obtained in a manner authorized by chapter 69.50 RCW is consumed by ingestion, inhalation, injection, or any other means. [1990 c 152 § 5; 1988 c 141 § 3; 1982 c 184 § 2.] Severability—1990 c 152: See note following RCW 7.48.050. Severability—1988 c 141: See RCW 7.43.900. 7.48A.030 7.48A.030 Civil actions—Who may bring. Any of the following parties may bring a civil action in the superior court of any county where a moral nuisance is alleged to have been maintained: (1) The prosecuting attorney for the county where the alleged moral nuisance is located; (2) The city attorney for the city where the alleged moral nuisance is located; or (3) The attorney general. The rules of evidence, burden of proof, and all other rules of court shall be the court rules generally applicable to civil cases in this state: PROVIDED, That the standard of proof on the issue of obscenity shall be clear, cogent, and convincing evidence. [1982 c 184 § 3.] [Title 7 RCW—page 42] 7.48A.050 Fines—Payment. All civil fines assessed under RCW 7.48A.040 shall be paid into the general treasury of the governmental unit commencing the civil action. [1985 c 235 § 2; 1982 c 184 § 5.] Severability—1985 c 235: See note following RCW 7.48A.040. 7.48A.060 7.48A.060 Exceptions to application of chapter. Nothing in this chapter applies to the circulation of any material by any recognized historical society or museum, any library of any college or university, or to any archive or library under the supervision and control of the state, county, municipality, or other political subdivision. [1982 c 184 § 6.] 7.48A.070 7.48A.070 Findings. The legislature finds that actions against moral nuisances as declared in RCW 7.48A.020 (1) through (4) involve balancing the safeguards necessary to protect constitutionally protected speech and the community and law enforcement efforts to curb dissemination of obscene matters. The legislature finds that the difficulty in ascertaining and obtaining originals and copies of obscene matters for evidentiary purposes thwarts legitimate enforcement efforts. The legislature finds that the balancing of the concerns warrants specific discovery procedures applicable to actions against moral nuisances involving obscene matters. [1989 c 70 § 1.] 7.48A.080 7.48A.080 Temporary injunction. After the plaintiff files a civil action under this chapter, the plaintiff may apply to the superior court in which the plaintiff filed the action for a temporary or preliminary injunction. The court shall grant a hearing within ten days after the plaintiff applies for a temporary injunction. [1989 c 70 § 2.] 7.48A.090 7.48A.090 Restraining order—Service—Violation of order or injunction. After the plaintiff applies for a temporary or preliminary injunction, the court may, upon a showing of good cause, issue an ex parte restraining order restraining the defendant and all other persons from removing or in any manner interfering with the personal property and contents of the place where the nuisance is alleged to exist, until the court grants or denies the plaintiff’s application for a temporary or preliminary injunction or until further order of the court. However, pending the court’s decision on the injunction, the (2006 Ed.) Partition temporary restraining order shall not restrain the exhibition or sale of any film, publication or item of stock in trade. The order may require that at least one original of each film or publication shall be preserved pending the hearing on the injunction. The court may require an inventory and full accounting of all business transactions. The officer serving the restraining order or preliminary injunction may serve the order by handing to and leaving a copy with any person in charge of the place or residing in the place, or by posting a copy in a conspicuous place at or upon one or more of the principal doors or entrances to the place, or by both delivery and posting. The officer serving the restraining order or injunction shall forthwith make and return to the court, an inventory of the personal property and contents situated in and used in conducting or maintaining the alleged nuisance. Any violation of the temporary order or injunction is a contempt of court. Mutilation or removal of a posted order that is in force is a contempt of court if the posted order or injunction contains a notice to that effect. [1989 c 70 § 3.] Chapter 7.52 7.48A.140 7.48A.140 Violation of order or injunction—Penalties. An intentional violation of a restraining order, preliminary injunction, or injunction under this chapter is punishable as a contempt of court. [1989 c 70 § 8.] 7.48A.900 7.48A.900 Severability—1982 c 184. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1982 c 184 § 9.] 7.48A.901 7.48A.901 Severability—1989 c 70. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1989 c 70 § 9.] Chapter 7.52 Chapter 7.52 RCW PARTITION Sections 7.48A.100 7.48A.100 When bond or security not required. A bond or security shall not be required of the city attorney, the prosecuting attorney, or the attorney general. [1989 c 70 § 4.] 7.48A.110 7.48A.110 Hearing—Service of notice. A copy of the complaint, together with a notice of the time and place of the hearing on the application for a temporary injunction, shall be served upon the defendant at least three business days before the hearing. Service may also be made by posting the required documents in the same manner as is provided in RCW 7.48A.090. If the defendant requests a continuance of the hearing, all temporary restraining orders and injunctions shall be extended as a matter of course. [1989 c 70 § 5.] 7.48A.120 7.48A.120 Production of discovery materials—Temporary injunction. If the court finds at the hearing for an injunction, that the accounting, inventory, personal property, and contents of the place alleged to be a nuisance provide evidence of a moral nuisance as defined by RCW 7.48A.020 (1) through (4), the court may order the defendant to produce to the plaintiff a limited number of original films, film plates, publications, videotapes, any other obscene matter, and other discovery materials the court determines is necessary for evidentiary purposes to resolve the action on the merits. The court may issue a temporary injunction enjoining the defendant and all other persons from removing or in any manner interfering with the court-ordered discovery. This discovery procedure supplements and does not replace any other discovery procedures and rules generally applicable to civil cases in this state. [1989 c 70 § 6.] 7.48A.130 7.48A.130 Precedence of hearing on injunction. The hearing on the injunction shall have precedence over all other actions, except prior matters of the same character, criminal proceedings, election contests, hearings on temporary restraining orders and injunctions, and actions to forfeit vehicles used in violation of the uniform controlled substances act, chapter 69.50 RCW. [1989 c 70 § 7.] (2006 Ed.) 7.52.010 7.52.020 7.52.030 7.52.040 7.52.050 7.52.060 7.52.070 7.52.080 7.52.090 7.52.100 7.52.110 7.52.120 7.52.130 7.52.140 7.52.150 7.52.160 7.52.170 7.52.180 7.52.190 7.52.200 7.52.210 7.52.220 7.52.230 7.52.240 7.52.250 7.52.260 7.52.270 7.52.280 7.52.290 7.52.300 7.52.310 7.52.320 7.52.330 7.52.340 7.52.350 7.52.360 7.52.370 7.52.380 7.52.390 7.52.400 7.52.410 7.52.420 7.52.430 7.52.440 7.52.450 7.52.460 7.52.470 7.52.480 Persons entitled to bring action. Requisites of complaint. Lien creditors as parties defendant. Notice. Service by publication. Answer—Contents. Trial—Proof must be taken. Order of sale or partition. Partition, how made. Report of referees, confirmation—Effect. Decree does not affect tenant. Costs. Sale of property. Estate for life or years to be set off. Lien creditors to be brought in. Clerk’s certificate of unsatisfied judgment liens. Ascertainment of liens—Priority. Notice to lienholders. Proceedings and report of referee. Exceptions to report—Service of notice on absentee. Order of confirmation is conclusive. Distribution of proceeds of sale. Other securities to be first exhausted. Lien proceedings not to delay sale. Distribution at direction of court. Continuance of suit to determine claims. Sales to be by public auction. Terms of sale to be directed by court. Referee may take security. Estate of tenant for life or years may be sold. Tenant for life or years may receive sum in gross—Consent. Court to determine sum if consent not given. Protection of unknown tenant. Contingent or vested estates. Terms of sale must be made known. Referees or guardians not to be interested in purchase. Referees’ report of sale—Contents. Exceptions—Confirmation. Purchase by interested party. Investment of proceeds of unknown owner. Investment in name of clerk. Securities to parties entitled to share when proportions determined. Duties of clerk in making investments. Unequal partition—Compensation adjudged. Infant’s share of proceeds to guardian. Guardian or limited guardian of incompetent or disabled person may receive proceeds—Bond. Guardian or limited guardian may consent to partition. Apportionment of costs. Real property and conveyances: Title 64 RCW. Termination of condominium: RCW 64.34.268. [Title 7 RCW—page 43] 7.52.010 Title 7 RCW: Special Proceedings and Actions 7.52.010 7.52.010 Persons entitled to bring action. When several persons hold and are in possession of real property as tenants in common, in which one or more of them have an estate of inheritance, or for life or years, an action may be maintained by one or more of such persons, for a partition thereof, according to the respective rights of the persons interested therein, and for sale of such property, or a part of it, if it appear that a partition cannot be made without great prejudice to the owners. [Code 1881 § 552; 1877 p 117 § 557; 1869 p 133 § 505; RRS § 838.] 7.52.020 7.52.020 Requisites of complaint. The interest of all persons in the property shall be set forth in the complaint specifically and particularly as far as known to the plaintiff, and if one or more of the parties, or the share or quantity of interest of any of the parties be unknown to the plaintiff, or be uncertain or contingent, or the ownership of the inheritance depend upon an executory devise, or the remainder be a contingent remainder, so that such parties cannot be named, that fact shall be set forth in the complaint. [Code 1881 § 553; 1877 p 117 § 558; 1869 p 133 § 506; RRS § 839.] 7.52.070 7.52.070 Trial—Proof must be taken. The rights of the several parties, plaintiffs as well as defendants, may be put in issue, tried and determined in such suit, and where a defendant fails to answer, or where a sale of the property is necessary, the title shall be ascertained by proof to the satisfaction of the court, before the decree for partition or sale is given. [Code 1881 § 558; 1877 p 118 § 563; 1869 p 134 § 511; RRS § 844.] 7.52.080 7.52.080 Order of sale or partition. If it be alleged in the complaint and established by evidence, or if it appear by the evidence without such allegation in the complaint, to the satisfaction of the court, that the property or any part of it, is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale thereof, and for that purpose may appoint one or more referees. Otherwise, upon the requisite proofs being made, it shall decree a partition according to the respective rights of the parties as ascertained by the court, and appoint three referees, therefor, and shall designate the portion to remain undivided for the owners whose interests remain unknown or are not ascertained. [Code 1881 § 559; 1877 p 118 § 564; 1869 p 134 § 512; RRS § 845.] 7.52.030 7.52.030 Lien creditors as parties defendant. The plaintiff may, at his option, make creditors having a lien upon the property or any portion thereof, other than by a judgment or decree, defendants in the suit. When the lien is upon an undivided interest or estate of any of the parties, such lien, if a partition be made, is thenceforth a lien only on the share assigned to such party; but such share shall be first charged with its just proportion of the costs of the partition, in preference to such lien. [Code 1881 § 554; 1877 p 117 § 559; 1869 p 133 § 507; RRS § 840.] 7.52.040 7.52.040 Notice. The notice shall be directed by name to all the tenants in common, who are known, and in the same manner to all lien creditors who are made parties to the suit, and generally to all persons unknown, having or claiming an interest or estate in the property. [Code 1881 § 555; 1877 p 117 § 560; 1869 p 133 § 508; RRS § 841.] 7.52.050 7.52.050 Service by publication. If a party, having a share or interest in, or lien upon the property, be unknown, or either of the known parties reside out of the state or cannot be found therein, and such fact be made to appear by affidavit, the notice may be served by publication, as in ordinary cases. When service is made by publication, the notice must contain a brief description of the property which is the subject of the suit. [Code 1881 § 556; 1877 p 117 § 561; 1869 p 134 § 509; RRS § 842.] Publication of legal notices: Chapter 65.16 RCW. 7.52.060 7.52.060 Answer—Contents. The defendant shall set forth in his answer, the nature, and extent of his interest in the property, and if he be a lien creditor, how such lien was created, the amount of the debt secured thereby and remaining due, and whether such debt is secured in any other way, and if so, the nature of such other security. [Code 1881 § 557; 1877 p 118 § 562; 1869 p 134 § 510; RRS § 843.] [Title 7 RCW—page 44] 7.52.090 7.52.090 Partition, how made. In making the partition, the referees shall divide the property, and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court, designating the several portions by proper landmarks, and may employ a surveyor with the necessary assistants to aid them therein. The referees shall make a report of their proceedings, specifying therein the manner of executing their trust, describing the property divided and the shares allotted to each party, with a particular description of each share. [Code 1881 § 560; 1877 p 118 § 565; 1869 p 134 § 513; RRS § 846.] 7.52.100 7.52.100 Report of referees, confirmation—Effect. The court may confirm or set aside the report in whole or in part, and if necessary, appoint new referees. Upon the report being confirmed a decree shall be entered that such partition be effectual forever, which decree shall be binding and conclusive: (1) On all parties named therein, and their legal representatives who have at the time any interest in the property divided, or any part thereof as owners in fee, or as tenants for life or for years, or as entitled to the reversion, remainder or inheritance of such property or any part thereof, after the termination of a particular estate therein, or who by any contingency may be entitled to a beneficial interest in the property, or who have an interest in any undivided share thereof, as tenants for years or for life. (2) On all persons interested in the property to whom notice shall have been given by publication. (3) On all other persons claiming from or through such parties or persons or either of them. [Code 1881 § 561; 1877 p 118 § 566; 1869 p 135 § 514; RRS § 847.] 7.52.110 7.52.110 Decree does not affect tenant. Such decree and partition shall not affect any tenants for years or for life, (2006 Ed.) Partition of the whole of the property which is the subject of partition, nor shall such decree and partition preclude any persons, except such as are specified in RCW 7.52.100, from claiming title to the property in question, or from controverting the title of the parties between whom the partition shall have been made. [Code 1881 § 562; 1877 p 119 § 567; 1869 p 135 § 515; RRS § 848.] 7.52.230 7.52.180 7.52.180 Notice to lienholders. The plaintiff must cause a notice to be served at least twenty days before the time for appearance on each person having such lien by judgment or decree, to appear before the referee at a specified time and place to make proof by his own affidavit or otherwise, of the true amount due or to become due, contingently or absolutely on his judgment or decree. [Code 1881 § 569; 1877 p 120 § 572; 1869 p 136 § 522; RRS § 855.] 7.52.120 7.52.120 Costs. The expenses of the referees, including those of a surveyor and his assistants, when employed, shall be ascertained and allowed by the court, and the amount thereof, together with the fees allowed by law to the referees, shall be paid by the plaintiff and may be allowed as costs. [Code 1881 § 563; 1877 p 119 § 568; 1869 p 135 § 516; RRS § 849.] 7.52.130 7.52.130 Sale of property. If the referees report to the court that the property, of which partition shall have been decreed, or any separate portion thereof is so situated that a partition thereof cannot be made without great prejudice to the owners, and the court is satisfied that such report is correct, it may thereupon by an order direct the referees to sell the property or separate portion thereof. [Code 1881 § 564; 1877 p 119 § 569; 1869 p 135 § 517; RRS § 850.] 7.52.140 7.52.140 Estate for life or years to be set off. When a part of the property only is ordered to be sold, if there be an estate for life or years in an undivided share of the property, the whole of such estate may be set off in any part of the property not ordered sold. [Code 1881 § 565; 1877 p 119 § 570; 1869 p 136 § 518; RRS § 851.] 7.52.150 7.52.150 Lien creditors to be brought in. Before making an order of sale, if lien creditors, other than those by judgment or decree, have not been made parties, the court, on motion of either party, shall order the plaintiff to file a supplemental complaint, making such creditors defendants. [Code 1881 § 566; 1877 p 119 § 571; 1869 p 136 § 519; RRS § 852.] 7.52.160 7.52.160 Clerk’s certificate of unsatisfied judgment liens. If an order of sale be made before the distribution of the proceeds thereof, the plaintiff shall produce to the court the certificate of the clerk of the county where the property is situated, showing the liens remaining unsatisfied, if any, by judgment or decree upon the property or any portion thereof, and unless he do so the court shall order a referee to ascertain them. [1957 c 51 § 13; Code 1881 § 567; 1877 p 119 § 570; 1869 p 136 § 520; RRS § 853.] 7.52.190 7.52.190 Proceedings and report of referee. The referee shall receive the evidence and report the names of the creditors whose liens are established, the amounts due thereon, or secured thereby, and their priority respectively, and whether contingent or absolute. He shall attach to his report the proof of service of the notices and the evidence before him. [Code 1881 § 570; 1877 p 120 § 573; 1869 p 136 § 523; RRS § 856.] 7.52.200 7.52.200 Exceptions to report—Service of notice on absentee. The report of the referee may be excepted to by either party to the suit, or to the proceedings before the referee, in like manner and with like effect as in ordinary cases. If a lien creditor be absent from the state, or his residence therein be unknown, and that fact appear by affidavit, the court or judge thereof may by order direct that service of the notice may be made upon his agent or attorney of record, or by publication thereof, for such time and in such manner as the order may prescribe. [Code 1881 § 571; 1877 p 120 § 574; 1869 p 137 § 524; RRS § 857.] 7.52.210 7.52.210 Order of confirmation is conclusive. If the report of the referee be confirmed, the order of confirmation is binding and conclusive upon all parties to the suit, and upon the lien creditors who have been duly served with the notice to appear before the referee, as provided in RCW 7.52.180. [Code 1881 § 572; 1877 p 120 § 575; 1869 p 137 § 525; RRS § 858.] 7.52.220 7.52.220 Distribution of proceeds of sale. The proceeds of the sale of the encumbered property shall be distributed by the decree of the court, as follows: (1) To pay its just proportion of the general costs of the suit. (2) To pay the costs of the reference. (3) To satisfy the several liens in their order of priority, by payment of the sums due, and to become due, according to the decree. (4) The residue among the owners of the property sold, according to their respective shares. [Code 1881 § 573; 1877 p 120 § 576; 1869 p 137 § 526; RRS § 859.] 7.52.230 7.52.170 7.52.170 Ascertainment of liens—Priority. If it appear by such certificate or reference, in case the certificate is not produced, that any such liens exist, the court shall appoint a referee to ascertain what amount remains due thereon or secured thereby respectively, and the order of priority in which they are entitled to be paid out of the property. [Code 1881 § 568; 1877 p 119 § 571; 1869 p 136 § 521; RRS § 854.] (2006 Ed.) 7.52.230 Other securities to be first exhausted. Whenever any party to the suit, who holds a lien upon the property or any part thereof, has other securities for the payment of the amount of such lien, the court may in its discretion, order such sureties to be exhausted before a distribution of the proceeds of sale, or may order a just deduction to be made from the amount of the lien on the property on account thereof. [Code 1881 § 574; 1877 p 121 § 577; 1869 p 137 § 527; RRS § 860.] [Title 7 RCW—page 45] 7.52.240 Title 7 RCW: Special Proceedings and Actions 7.52.240 7.52.240 Lien proceedings not to delay sale. The proceedings to ascertain the amount of the liens, and to determine their priority as above provided, or those hereinafter authorized to determine the rights of parties to funds paid into court, shall not delay the sale, nor affect any other party, whose rights are not involved in such proceedings. [Code 1881 § 575; 1877 p 121 § 578; 1869 p 137 § 528; RRS § 861.] existing at the time of the order of sale, and the person entitled to such estate shall have been made a party to the suit, such estate may be first set off out of any part of the property, and a sale made of such parcel, subject to the prior unsold estate of such tenant therein; but if in the judgment of the court, a due regard to the interest of all the parties require that such estate be also sold, the sale may be so ordered. [Code 1881 § 581; 1877 p 122 § 585; 1869 p 138 § 534; RRS § 867.] 7.52.250 7.52.250 Distribution at direction of court. The proceeds of sale, and the securities taken by the referees, or any part thereof, shall be distributed by them to the persons entitled thereto, whenever the court so directs. But if no such direction be given, all such proceeds and securities shall be paid into court, or deposited as directed by the court. [Code 1881 § 576; 1877 p 121 § 579; 1869 p 138 § 529; RRS § 862.] 7.52.260 7.52.260 Continuance of suit to determine claims. When the proceeds of sale of any shares or parcel belonging to persons who are parties to the suit and who are known, are paid into court, the suit may be continued as between such parties, for the determination of their respective claims thereto, which shall be ascertained and adjudged by the court. Further testimony may be taken in court, or by a referee at the discretion of the court, and the court may, if necessary, require such parties to present the facts or law in controversy, by pleadings as in an original suit. [Code 1881 § 577; 1877 p 121 § 580; 1869 p 138 § 530; RRS § 863.] 7.52.270 7.52.270 Sales to be by public auction. All sales of real property made by the referees shall be made by public auction, to the highest bidder, in the manner required for the sale of real property on execution. The notice shall state the terms of sale, and if the property, or any part of it is to be sold, subject to a prior estate, charge or lien, that shall be stated in the notice. [Code 1881 § 578; 1877 p 121 § 581; 1869 p 138 § 531; RRS § 864.] 7.52.310 7.52.310 Tenant for life or years may receive sum in gross—Consent. Any person entitled to an estate for life or years in any undivided part of the property, whose estate shall have been sold, shall be entitled to receive such sum in gross as may be deemed a reasonable satisfaction for such estate, and which the person so entitled shall consent to accept instead thereof, by an instrument duly acknowledged and filed with the clerk. [Code 1881 § 582; 1877 p 122 § 586; 1869 p 139 § 535; RRS § 868.] 7.52.320 7.52.320 Court to determine sum if consent not given. If such consent be not given, as provided in RCW 7.52.310, before the report of sale, the court shall ascertain and determine what proportion of the proceeds of the sale, after deducting expenses, will be a just and reasonable sum to be invested for the benefit of the person entitled to such estate for life, or years, and shall order the same to be deposited in court for that purpose. [Code 1881 § 583; 1877 p 122 § 587; 1869 p 139 § 536; RRS § 869.] 7.52.330 7.52.330 Protection of unknown tenant. If the persons entitled to such estate, for life or years, be unknown, the court shall provide for the protection of their rights in the same manner, as far as may be, as if they were known and had appeared. [Code 1881 § 584; 1877 p 122 § 589; 1869 p 139 § 538; RRS § 870.] 7.52.340 7.52.280 7.52.280 Terms of sale to be directed by court. The court shall, in the order of sale, direct the terms of credit which may be allowed for the purchase money of any portion of the premises, of which it may direct a sale on credit; and for that portion of which the purchase money is required by the provisions hereinafter contained, to be invested for the benefit of unknown owners, infants or parties out of the state. [Code 1881 § 579; 1877 p 121 § 583; 1869 p 138 § 532; RRS § 865.] 7.52.340 Contingent or vested estates. In all cases of sales in partition, when it appears that any person has a vested or contingent future right or estate therein, the court shall ascertain and settle the proportionate value of such contingent or vested right or estate, and shall direct such proportion of the proceeds of sale to be invested, secured or paid over in such manner as to protect the rights and interests of the parties. [1957 c 51 § 14; Code 1881 § 585; RRS § 871. Cf. Laws 1881 § 586; 1877 p 122 § 590; 1869 p 140 § 539.] 7.52.350 7.52.290 7.52.290 Referee may take security. The referees may take separate mortgages, and other securities for the whole, or convenient portions of the purchase money, of such parts of the property as are directed by the court to be sold on credit, in the name of the clerk of the court, and his successors in office; and for the shares of any known owner of full age, in the name of such owner. [Code 1881 § 580; 1877 p 121 § 584; 1869 p 138 § 533; RRS § 866.] 7.52.300 7.52.300 Estate of tenant for life or years may be sold. When the estate of any tenant for life or years, in any undivided part of the property in question, shall have been admitted by the parties, or ascertained by the court to be [Title 7 RCW—page 46] 7.52.350 Terms of sale must be made known. In all cases of sales of property the terms shall be made known at the time, and if the premises consist of distinct farms or lots, they shall be sold separately or otherwise, if the court so directs. [Code 1881 § 586; 1877 p 122 § 591; 1869 p 140 § 540; RRS § 872.] 7.52.360 7.52.360 Referees or guardians not to be interested in purchase. Neither of the referees, nor any person for the benefit of either of them, shall be interested in any purchase, nor shall the guardian of an infant be an interested party in the purchase of any real property being the subject of the suit, except for the benefit of the infant. All sales contrary to the (2006 Ed.) Partition provisions of this section shall be void. [Code 1881 § 587; 1877 p 122 § 592; 1869 p 140 § 541; RRS § 873.] 7.52.370 7.52.370 Referees’ report of sale—Contents. After completing the sale, the referees shall report the same to the court, with a description of the different parcels of land sold to each purchaser, the name of the purchaser, the price paid or secured, the terms and conditions of the sale, and the securities, if any, taken. The report shall be filed with the clerk. [Code 1881 § 588; 1877 p 122 § 593; 1869 p 140 § 542; RRS § 874.] 7.52.380 7.52.380 Exceptions—Confirmation. The report of sale may be excepted to in writing by any party entitled to a share of the proceeds. If the sale be confirmed, the order of confirmation shall direct the referees to execute conveyances and take securities pursuant to such sale. [Code 1881 § 589; 1877 p 123 § 594; 1869 p 140 § 543; RRS § 875.] 7.52.390 7.52.390 Purchase by interested party. When a party entitled to a share of the property, or an encumbrancer entitled to have his lien paid out of the sale, becomes a purchaser, the referees may take his receipt for so much of the proceeds of the sale as belong to him. [Code 1881 § 590; 1877 p 123 § 595; 1869 p 140 § 544; RRS § 876.] 7.52.400 7.52.400 Investment of proceeds of unknown owner. When there are proceeds of sale belonging to an unknown owner, or to a person without the state who has no legal representative within it, or when there are proceeds arising from the sale of an estate subject to the prior estate of a tenant for life or years, which are paid into the court or otherwise deposited by order of the court, the same shall be invested in securities on interest for the benefit of the persons entitled thereto. [Code 1881 § 591; 1877 p 123 § 596; 1869 p 140 § 545; RRS § 877.] 7.52.410 7.52.410 Investment in name of clerk. When the security for the proceeds of sale is taken, or when an investment of any such proceeds is made, it shall be done, except as herein otherwise provided, in the name of the clerk of the court and his successors in office, who shall hold the same for the use and benefit of the parties interested, subject to the order of the court. [Code 1881 § 592; 1877 p 123 § 597; 1869 p 141 § 546; RRS § 878.] 7.52.420 7.52.420 Securities to parties entitled to share when proportions determined. When security is taken by the referees on a sale, and the parties interested in such security by an instrument in writing under their hands, delivered to the referees, agree upon the share and proportions to which they are respectively entitled, or when shares and proportions have been previously adjudged by the court, such securities shall be taken in the names of and payable to the parties respectively entitled thereto, and shall be delivered to such parties upon their receipt therefor. Such agreement and receipt shall be returned and filed with the clerk. [Code 1881 § 593; 1877 p 123 § 598; 1869 p 141 § 547; RRS § 879.] (2006 Ed.) 7.52.470 7.52.430 Duties of clerk in making investments. The clerk in whose name a security is taken, or by whom an investment is made, and his successors in office, shall receive the interest and principal as it becomes due, and apply and invest the same as the court may direct, and shall file in his office all securities taken and keep an account in a book provided and kept for that purpose in the clerk’s office, free for inspection by all persons, of investments and moneys received by him thereon, and the disposition thereof. [Code 1881 § 594; 1877 p 123 § 599; 1869 p 141 § 548; RRS § 880.] 7.52.430 7.52.440 Unequa l pa rt it ion—Compensatio n adjudged. When it appears that partition cannot be made equal between the parties according to their respective rights, without prejudice to the rights and interests of some of them, the court may adjudge compensation to be made by one party to another on account of the inequality of partition; but such compensation shall not be required to be made to others by owners unknown, nor by infants, unless in case of an infant it appear that he has personal property sufficient for that purpose, and that his interest will be promoted thereby. [Code 1881 § 595; 1877 p 124 § 600; 1869 p 141 § 549; RRS § 881.] 7.52.440 7.52.450 Infant’s share of proceeds to guardian. When the share of an infant is sold, the proceeds of the sale may be paid by the referees making the sale, to his general guardian, or the special guardian appointed for him in the suit, upon giving the security required by law, or directed by order of the court. [Code 1881 § 596; 1877 p 124 § 601; 1869 p 142 § 550; RRS § 882.] 7.52.450 7.52.460 Guardian or limited guardian of incompetent or disabled person may receive proceeds—Bond. The guardian or limited guardian who may be entitled to the custody and management of the estate of an incompetent or disabled person adjudged incapable of conducting his own affairs, whose interest in real property shall have been sold, may receive in behalf of such person his share of the proceeds of such real property from the referees, on executing a bond with sufficient sureties, approved by the judge of the court, conditioned that he faithfully discharge the trust reposed in him, and will render a true and just account to the person entitled, or to his legal representative. [1977 ex.s. c 80 § 9; Code 1881 § 597; 1877 p 124 § 602; 1869 p 142 § 551; RRS § 883.] 7.52.460 Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. 7.52.470 Guardian or limited guardian may consent to partition. The general guardian of an infant, and the guardian or limited guardian entitled to the custody and management of the estate of an incompetent or disabled person adjudged incapable of conducting his own affairs, who is interested in real estate held in common or in any other manner, so as to authorize his being made a party to an action for the partition thereof, may consent to a partition without suit and agree upon the share to be set off to such infant or other person entitled, and may execute a release in his behalf to the owners of the shares or parts to which they may respectively be entitled, and upon an order of the court. [1977 ex.s. c 80 § 10; Code 1881 § 598; 1877 p 124 § 603; 1869 p 142 § 552; RRS § 884.] 7.52.470 [Title 7 RCW—page 47] 7.52.480 Title 7 RCW: Special Proceedings and Actions Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. 7.52.480 7.52.480 Apportionment of costs. The cost of partition, including fees of referees and other disbursements including reasonable attorney fees to be fixed by the court and in case the land is ordered sold, costs of an abstract of title, shall be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the decree. In that case there shall be a lien on the several shares, and the decree may be enforced by execution against the parties separately. When, however, a litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them. [1923 c 9 § 1; Code 1881 § 599; 1877 p 124 § 604; 1869 p 142 § 553; RRS § 885.] Chapter 7.56 Chapter 7.56 RCW QUO WARRANTO Sections 7.56.010 7.56.020 7.56.030 7.56.040 7.56.050 7.56.060 7.56.070 7.56.080 7.56.090 7.56.100 7.56.110 7.56.120 7.56.130 7.56.140 7.56.150 Against whom information may be filed. Who may file. Contents of information. Information for usurping office—Requisites—Damages. Notice—Pleadings—Proceedings. Judgment. Judgment for relator—Ouster of defendant. Delivery of books and papers—Enforcement of order. Action for damages—Limitation. Judgment of ouster or forfeiture. Judgment against corporation—Costs—Receivership. Action to recover forfeited property. Costs. Information to annul patent, certificate, or deed. Proceedings to annul. 7.56.010 7.56.010 Against whom information may be filed. An information may be filed against any person or corporation in the following cases: (1) When any person shall usurp, intrude upon, or unlawfully hold or exercise any public office or franchise within the state, or any office in any corporation created by the authority of the state. (2) When any public officer shall have done or suffered any act, which, by the provisions of law, shall work a forfeiture of his office. (3) When several persons claim to be entitled to the same office or franchise, one information may be filed against any or all such persons in order to try their respective rights to the office or franchise. (4) When any association or number of persons shall act within this state as a corporation, without being legally incorporated. (5) Or where any corporation do, or omit acts which amount to a surrender or a forfeiture of their rights and privileges as a corporation, or where they exercise powers not conferred by law. [Code 1881 § 702; 1877 p 143 § 706; 1854 p 216 § 468; RRS § 1034.] 7.56.020 7.56.020 Who may file. The information may be filed by the prosecuting attorney in the superior court of the proper county, upon his own relation, whenever he shall deem it his [Title 7 RCW—page 48] duty to do so, or shall be directed by the court or other competent authority, or by any other person on his own relation, whenever he claims an interest in the office, franchise or corporation which is the subject of the information. [Code 1881 § 703; 1877 p 143 § 707; 1854 p 216 § 469; RRS § 1035.] 7.56.030 7.56.030 Contents of information. The information shall consist of a plain statement of the facts which constitute the grounds of the proceedings, addressed to the court. [Code 1881 § 704; 1877 p 143 § 708; 1854 p 216 § 470; RRS § 1036.] 7.56.040 7.56.040 Information for usurping office—Requisites—Damages. Whenever an information shall be filed against a person for usurping an office, by the prosecuting attorney, he shall also set forth therein the name of the person rightfully entitled to the office, with an averment of his right thereto; and when filed by any other person he shall show his interest in the matter, and he may claim the damages he has sustained. [Code 1881 § 705; 1877 p 143 § 709; 1854 p 216 § 471; RRS § 1037.] 7.56.050 7.56.050 Notice—Pleadings—Proceedings. Whenever an information is filed, a notice signed by the relator shall be served and returned, as in other actions. The defendant shall appear and answer, or suffer default, and subsequent proceeding be had as in other cases. [Code 1881 § 706; 1877 p 144 § 710; 1854 p 217 § 472; RRS § 1038.] 7.56.060 7.56.060 Judgment. In every case wherein the right to an office is contested, judgment shall be rendered upon the rights of the parties, and for the damages the relator may show himself entitled to, if any, at the time of the judgment. [Code 1881 § 707; 1877 p 144 § 711; 1854 p 217 § 473; RRS § 1039.] 7.56.070 7.56.070 Judgment for relator—Ouster of defendant. If judgment be rendered in favor of the relator, he shall proceed to exercise the functions of the office, after he has been qualified as required by law, and the court shall order the defendant to deliver over all books and papers in his custody or within his power, belonging to the office from which he has been ousted. [Code 1881 § 708; 1877 p 144 § 712; 1854 p 217 § 474; RRS § 1040.] 7.56.080 7.56.080 Delivery of books and papers—Enforcement of order. If the defendant shall refuse or neglect to deliver over the books and papers pursuant to the order, the court or judge thereof shall enforce the order by attachment and imprisonment. [Code 1881 § 709; 1877 p 144 § 713; 1854 p 217 § 475; RRS § 1041.] 7.56.090 7.56.090 Action for damages—Limitation. When judgment is rendered in favor of the plaintiff, he may, if he has not claimed his damages in the information, have his action for the damages at any time within one year after the judgment. [Code 1881 § 710; 1877 p 144 § 714; 1854 p 217 § 476; RRS § 1042.] (2006 Ed.) Receivers 7.56.100 7.56.100 Judgment of ouster or forfeiture. Whenever any defendant shall be found guilty of any usurpation of or intrusion into, or unlawfully exercising any office or franchise within this state, or any office in any corporation created by the authority of this state, or when any public officer thus charged shall be found guilty of having done or suffered any act which by the provisions of the law shall work a forfeiture of his office, or when any association or number of persons shall be found guilty of having acted as a corporation without having been legally incorporated, the court shall give judgment of ouster against the defendant or defendants, and exclude him or them from the office, franchise or corporate rights, and in case of corporations that the same shall be dissolved, and the court shall adjudge costs in favor of the plaintiff. [Code 1881 § 711; 1877 p 144 § 715; 1854 p 217 § 478; RRS § 1043.] 7.60.005 the interests acquired under the same. [Code 1881 § 715; 1877 p 145 § 719; 1854 p 218 § 482; RRS § 1047.] 7.56.150 7.56.150 Proceedings to annul. In such cases, the information may be filed by the prosecuting attorney upon his relation, or by any private person upon his relation showing his interest in the subject matter; and the subsequent proceedings, judgment of the court and awarding of costs, shall conform to the above provisions, and such letters patent, deed or certificate shall be annulled or sustained, according to the right of the case. [Code 1881 § 716; 1877 p 145 § 720; 1854 p 218 § 483; RRS § 1048.] Chapter 7.60 Chapter 7.60 RCW RECEIVERS Sections 7.56.110 7.56.110 Judgment against corporation—Costs— Receivership. If judgment be rendered against any corporation or against any persons claiming to be a corporation, the court may cause the costs to be collected by executions against the persons claiming to be a corporation or by attachment against the directors or other officers of the corporation, and shall restrain the corporation, take an account, and make a distribution thereof among the creditors. The prosecuting attorney shall immediately institute proceedings for that purpose. [2004 c 165 § 38; Code 1881 § 712; 1877 p 144 § 716; 1854 p 217 § 479; RRS § 1044.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.005 7.60.015 7.60.025 7.60.035 7.60.045 7.60.055 7.60.060 7.60.070 7.60.080 7.60.090 7.60.100 7.60.110 7.60.120 7.60.130 7.60.140 7.60.150 7.60.160 7.56.120 7.56.120 Action to recover forfeited property. Whenever any property shall be forfeited to the state for its use, the legal title shall be deemed to be in the state from the time of the forfeiture, and an information may be filed by the prosecuting attorney in the superior court for the recovery of the property, alleging the ground on which the recovery is claimed, and like proceedings and judgment shall be had as in civil action for the recovery of the property. [Code 1881 § 713; 1877 p 145 § 717; 1854 p 218 § 480; RRS § 1045.] Escheats: Chapter 11.08 RCW. Uniform unclaimed property act: Chapter 63.29 RCW. 7.56.130 7.56.130 Costs. When an information is filed by the prosecuting attorney, he shall not be liable for the costs, but when it is filed upon the relation of a private person such person shall be liable for costs unless the same are adjudged against the defendant. [Code 1881 § 714; 1877 p 145 § 718; 1854 p 218 § 481; RRS § 1046.] 7.56.140 7.56.140 Information to annul patent, certificate, or deed. An information may be prosecuted for the purpose of annulling or vacating any letters patent, certificate or deed, granted by the proper authorities of this state, when there is reason to believe that the same were obtained by fraud or through mistake or ignorance of a material fact, or when the patentee or those claiming under him have done or omitted an act in violation of the terms on which the letters, deeds or certificates were granted, or have by any other means forfeited (2006 Ed.) 7.60.170 7.60.180 7.60.190 7.60.200 7.60.210 7.60.220 7.60.230 7.60.240 7.60.250 7.60.260 7.60.270 7.60.280 7.60.290 7.60.300 Definitions. Types of receivers. Appointment of receiver. Eligibility to serve as receiver. Receiver’s bond. Powers of the court. Powers and duties of receiver generally. Turnover of property. Duties of person over whose property the receiver is appointed. Schedules of property and liabilities—Inventory of property— Appraisals. Receiver’s reports. Automatic stay of certain proceedings. Utility service. Executory contracts and unexpired leases. Receivership financing. Abandonment of property. Actions by and against the receiver or affecting property held by receiver. Personal liability of receiver. Employment and compensation of professionals. Participation of creditors and parties in interest in receivership proceeding—Effect of court orders on nonparties. Notice to creditors and other parties in interest. Submission of claims in general receiverships. Objection to and allowance of claims. Priorities. Secured claims against after-acquired property. Interest on claims. Receiver’s disposition of property—Sales free and clear. Ancillary receiverships. Resignation or removal of receiver. Termination of receivership. Applicability. Rules of court: Cf. CR 66, 43(e)(2). 7.60.005 7.60.005 Definitions. The definitions in this section apply throughout this chapter unless the context requires otherwise. (1) "Court" means the superior court of this state in which the receivership is pending. (2) "Entity" means a person other than a natural person. (3) "Estate" means the entirety of the property with respect to which a receiver’s appointment applies, but does not include trust fund taxes or property of an individual person exempt from execution under the laws of this state. Estate property includes any nonexempt interest in property that is partially exempt, including fee title to property subject to a homestead exemption under chapter 6.13 RCW. (4) "Executory contract" means a contract where the obligation of both the person over whose property the [Title 7 RCW—page 49] 7.60.015 Title 7 RCW: Special Proceedings and Actions receiver is appointed and the other party to the contract are so far unperformed that the failure of either party to the contract to complete performance would constitute a material breach of the contract, thereby excusing the other party’s performance of the contract. (5) "Insolvent" or "insolvency" means a financial condition of a person such that the sum of the person’s debts and other obligations is greater than all of that person’s property, at a fair valuation, exclusive of (a) property transferred, concealed, or removed with intent to hinder, delay, or defraud any creditors of the person, and (b) any property exempt from execution under any statutes of this state. (6) "Lien" means a charge against or interest in property to secure payment of a debt or the performance of an obligation. (7) "Notice and a hearing" or any similar phrase means notice and opportunity for a hearing. (8) "Person" means an individual, corporation, limited liability company, general partnership, limited partnership, limited liability partnership, association, governmental entity, or other entity, of any kind or nature. (9) "Property" includes all right, title, and interests, both legal and equitable, and including any community property interest, in or with respect to any property of a person with respect to which a receiver is appointed, regardless of the manner by which the property has been or is acquired. "Property" includes any proceeds, products, offspring, rents, or profits of or from property in the estate. "Property" does not include any power that a person may exercise solely for the benefit of another person or trust fund taxes. (10) "Receiver" means a person appointed by the court as the court’s agent, and subject to the court’s direction, to take possession of, manage, or dispose of property of a person. (11) "Receivership" means the case in which the receiver is appointed. "General receivership" means a receivership in which a general receiver is appointed. "Custodial receivership" means a receivership in which a custodial receiver is appointed. (12) "Security interest" means a lien created by an agreement. (13) "State agent" and "state agency" means any office, department, division, bureau, board, commission, or other agency of the state of Washington or of any subdivision thereof, or any individual acting in an official capacity on behalf of any state agent or state agency. (14) "Utility" means a person providing any service regulated by the utilities and transportation commission. [2004 c 165 § 2.] Purpose—2004 c 165: "The purpose of this act is to create more comprehensive, streamlined, and cost-effective procedures applicable to proceedings in which property of a person is administered by the courts of this state for the benefit of creditors and other persons having an interest therein." [2004 c 165 § 1.] Captions not law—2004 c 165: "Captions used in this act are not part of the law." [2004 c 165 § 48.] 7.60.015 7.60.015 Types of receivers. A receiver must be either a general receiver or a custodial receiver. A receiver must be a general receiver if the receiver is appointed to take possession and control of all or substantially all of a person’s prop[Title 7 RCW—page 50] erty with authority to liquidate that property and, in the case of a business over which the receiver is appointed, wind up affairs. A receiver must be a custodial receiver if the receiver is appointed to take charge of limited or specific property of a person or is not given authority to liquidate property. The court shall specify in the order appointing a receiver whether the receiver is appointed as a general receiver or as a custodial receiver. When the sole basis for the appointment is the pendency of an action to foreclose upon a lien against real property, or the giving of a notice of a trustee’s sale under RCW 61.24.040 or a notice of forfeiture under RCW 61.30.040, the court shall appoint the receiver as a custodial receiver. The court by order may convert either a general receivership or a custodial receivership into the other. [2004 c 165 § 3.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.025 7.60.025 Appointment of receiver. (1) A receiver may be appointed by the superior court of this state in the following instances, but except in any case in which a receiver’s appointment is expressly required by statute, or any case in which a receiver’s appointment is sought by a state agent whose authority to seek the appointment of a receiver is expressly conferred by statute, or any case in which a receiver’s appointment with respect to real property is sought under (b)(ii) of this subsection, a receiver shall be appointed only if the court additionally determines that the appointment of a receiver is reasonably necessary and that other available remedies either are not available or are inadequate: (a) On application of any party, when the party is determined to have a probable right to or interest in property that is a subject of the action and in the possession of an adverse party, or when the property or its revenue-producing potential is in danger of being lost or materially injured or impaired. A receiver may be appointed under this subsection (1)(a) whether or not the application for appointment of a receiver is combined with, or is ancillary to, an action seeking a money judgment or other relief; (b) Provisionally, during the pendency of any action to foreclose upon any lien against or for forfeiture of any interest in real or personal property, or after notice of a trustee’s sale has been given under RCW 61.24.040, or after notice of forfeiture has been given under RCW 61.30.040, on application of any person, when the interest in the property that is the subject of foreclosure or forfeiture of the person seeking the receiver’s appointment is determined to be probable and either: (i) The property or its revenue-producing potential is in danger of being lost or materially injured or impaired; or (ii) The appointment of a receiver with respect to the real or personal property that is the subject of the action, the notice of trustee’s sale or notice of forfeiture is provided for by agreement or is reasonably necessary to effectuate or enforce an assignment of rents or other revenues from the property; (c) After judgment, in order to give effect to the judgment; (d) To dispose of property according to provisions of a judgment dealing with its disposition; (2006 Ed.) Receivers (e) To the extent that property is not exempt from execution, at the instance of a judgment creditor either before or after the issuance of any execution, to preserve or protect it, or prevent its transfer; (f) If and to the extent that property is subject to execution to satisfy a judgment, to preserve the property during the pendency of an appeal, or when an execution has been returned unsatisfied, or when an order requiring a judgment debtor to appear for proceedings supplemental to judgment has been issued and the judgment debtor fails to submit to examination as ordered; (g) Upon an attachment of real or personal property when the property attached is of a perishable nature or is otherwise in danger of waste, impairment, or destruction, or where the abandoned property’s owner has absconded with, secreted, or abandoned the property, and it is necessary to collect, conserve, manage, control, or protect it, or to dispose of it promptly, or when the court determines that the nature of the property or the exigency of the case otherwise provides cause for the appointment of a receiver; (h) In an action by a transferor of real or personal property to avoid or rescind the transfer on the basis of fraud, or in an action to subject property or a fund to the payment of a debt; (i) In an action against any person who is not an individual if the object of the action is the dissolution of that person, or if that person has been dissolved, or if that person is insolvent or is not generally paying the person’s debts as those debts become due unless they are the subject of bona fide dispute, or if that person is in imminent danger of insolvency; (j) In accordance with RCW 7.08.030 (4) and (6), in cases in which a general assignment for the benefit of creditors has been made; (k) In quo warranto proceedings under chapter 7.56 RCW; (l) As provided under RCW 11.64.022; (m) In an action by the department of licensing under RCW 18.35.220(3) with respect to persons engaged in the business of dispensing of hearing aids, RCW 18.85.350 in the case of persons engaged in the business of a real estate broker, associate real estate broker, or real estate salesperson, or RCW 19.105.470 with respect to persons engaged in the business of camping resorts; (n) In an action under RCW 18.44.470 or 18.44.490 in the case of persons engaged in the business of escrow agents; (o) Upon a petition with respect to a nursing home in accordance with and subject to receivership provisions under chapter 18.51 RCW; (p) Under RCW 19.40.071(3), in connection with a proceeding for relief with respect to a transfer fraudulent as to a creditor or creditors; (q) Under RCW 19.100.210(1), in an action by the attorney general or director of financial institutions to restrain any actual or threatened violation of the franchise investment protection act; (r) In an action by the attorney general or by a prosecuting attorney under RCW 19.110.160 with respect to a seller of business opportunities; (s) In an action by the director of financial institutions under RCW 21.20.390 in cases involving actual or threatened violations of the securities act of Washington or under RCW (2006 Ed.) 7.60.025 21.30.120 in cases involving actual or threatened violations of chapter 21.30 RCW with respect to certain businesses and transactions involving commodities; (t) In an action for or relating to dissolution of a business c or po ra tio n u nd er RC W 2 3B.1 4. 06 5, 23 B.14 . 30 0, 23B.14.310, or 23B.14.320, for dissolution of a nonprofit corporation under RCW 24.03.270, for dissolution of a mutual corporation under RCW 24.06.305, or in any other action for the dissolution or winding up of any other entity provided for by Title 23, 23B, 24, or 25 RCW; (u) In any action in which the dissolution of any public or private entity is sought, in any action involving any dispute with respect to the ownership or governance of such an entity, or upon the application of a person having an interest in such an entity when the appointment is reasonably necessary to protect the property of the entity or its business or other interests; (v) Under RCW 25.05.215, in aid of a charging order with respect to a partner’s interest in a partnership; (w) Under and subject to RCW 30.44.100, 30.44.270, and 30.56.030, in the case of a bank or trust company or, under and subject to RCW 32.24.070 through 32.24.090, in the case of a mutual savings bank; (x) Under and subject to RCW 31.12.637 and 31.12.671 through 31.12.724, in the case of credit unions; (y) Upon the application of the director of financial institutions under RCW 31.35.090 in actions to enforce chapter 31.35 RCW applicable to agricultural lenders, under RCW 31.40.120 in actions to enforce chapter 31.40 RCW applicable to entities engaged in federally guaranteed small business loans, under RCW 31.45.160 in actions to enforce chapter 31.45 RCW applicable to persons licensed as check cashers or check sellers, or under RCW 19.230.230 in actions to enforce chapter 19.230 RCW applicable to persons licensed under the uniform money services act; (z) Under RCW 35.82.090 or 35.82.180, with respect to a housing project; (aa) Under RCW 39.84.160 or 43.180.360, in proceedings to enforce rights under any revenue bonds issued for the purpose of financing industrial development facilities or bonds of the Washington state housing finance commission, or any financing document securing any such bonds; (bb) Under and subject to RCW 43.70.195, in an action by the secretary of health or by a local health officer with respect to a public water system; (cc) As contemplated by RCW 61.24.030, with respect to real property that is the subject of nonjudicial foreclosure proceedings under chapter 61.24 RCW; (dd) As contemplated by RCW 61.30.030(3), with respect to real property that is the subject of judicial or nonjudicial forfeiture proceedings under chapter 61.30 RCW; (ee) Under RCW 64.32.200(2), in an action to foreclose upon a lien for common expenses against a dwelling unit subject to the horizontal property regimes act, chapter 64.32 RCW; (ff) Under RCW 64.34.364(10), in an action by a unit owners’ association to foreclose a lien for nonpayment of delinquent assessments against condominium units; (gg) Upon application of the attorney general under RCW 64.36.220(3), in aid of any writ or order restraining or [Title 7 RCW—page 51] 7.60.035 Title 7 RCW: Special Proceedings and Actions enjoining violations of chapter 64.36 RCW applicable to timeshares; (hh) Under RCW 70.95A.050(3), in aid of the enforcement of payment or performance of municipal bonds issued with respect to facilities used to abate, control, or prevent pollution; (ii) Upon the application of the department of social and health services under RCW 74.42.580, in cases involving nursing homes; (jj) Upon the application of the utilities and transportation commission under RCW 80.28.040, with respect to a water company that has failed to comply with an order of such commission within the time deadline specified therein; (kk) Under RCW 87.56.065, in connection with the dissolution of an irrigation district; (ll) Upon application of the attorney general or the department of licensing, in any proceeding that either of them are authorized by statute to bring to enforce Title 18 or 19 RCW; the securities act of Washington, chapter 21.20 RCW; the Washington commodities act, chapter 21.30 RCW; the land development act, chapter 58.19 RCW; or under chapter 64.36 RCW relating to the regulation of timeshares; (mm) Upon application of the director of financial institutions in any proceeding that the director of financial institutions is authorized to bring to enforce chapters 31.35, 31.40, and 31.45 RCW; or (nn) In such other cases as may be provided for by law, or when, in the discretion of the court, it may be necessary to secure ample justice to the parties. (2) The superior courts of this state shall appoint as receiver of property located in this state a person who has been appointed by a federal or state court located elsewhere as receiver with respect to the property specifically or with respect to the owner’s property generally, upon the application of the person or of any party to that foreign proceeding, and following the appointment shall give effect to orders, judgments, and decrees of the foreign court affecting the property in this state held by the receiver, unless the court determines that to do so would be manifestly unjust or inequitable. The venue of such a proceeding may be any county in which the person resides or maintains any office, or any county in which any property over which the receiver is to be appointed is located at the time the proceeding is commenced. (3) At least seven days’ notice of any application for the appointment of a receiver shall be given to the owner of property to be subject thereto and to all other parties in the action, and to other parties in interest as the court may require. If any execution by a judgment creditor under Title 6 RCW or any application by a judgment creditor for the appointment of a receiver, with respect to property over which the receiver’s appointment is sought, is pending in any other action at the time the application is made, then notice of the application for the receiver’s appointment also shall be given to the judgment creditor in the other action. The court may shorten or expand the period for notice of an application for the appointment of a receiver upon good cause shown. (4) The order appointing a receiver in all cases shall reasonably describe the property over which the receiver is to take charge, by category, individual items, or both if the receiver is to take charge of less than all of the owner’s prop[Title 7 RCW—page 52] erty. If the order appointing a receiver does not expressly limit the receiver’s authority to designated property or categories of property of the owner, the receiver is a general receiver with the authority to take charge over all of the owner’s property, wherever located. (5) The court may condition the appointment of a receiver upon the giving of security by the person seeking the receiver’s appointment, in such amount as the court may specify, for the payment of costs and damages incurred or suffered by any person should it later be determined that the appointment of the receiver was wrongfully obtained. [2006 c 52 § 1; 2004 c 165 § 4.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.035 Eligibility to serve as receiver. Except as provided in this chapter or otherwise by statute, any person, whether or not a resident of this state, may serve as a receiver, with the exception that a person may not be appointed as a receiver, and shall be replaced as receiver if already appointed, if it should appear to the court that the person: (1) Has been convicted of a felony or other crime involving moral turpitude or is controlled by a person who has been convicted of a felony or other crime involving moral turpitude; (2) Is a party to the action, or is a parent, grandparent, child, grandchild, sibling, partner, director, officer, agent, attorney, employee, secured or unsecured creditor or lienor of, or holder of any equity interest in, or controls or is controlled by, the person whose property is to be held by the receiver, or who is the agent or attorney of any disqualified person; (3) Has an interest materially adverse to the interest of persons to be affected by the receivership generally; or (4) Is the sheriff of any county. [2004 c 165 § 5.] 7.60.035 Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.045 Receiver’s bond. Except as otherwise provided for by statute or court rule, before entering upon duties of receiver, a receiver shall execute a bond with one or more sureties approved by the court, in the amount the court specifies, conditioned that the receiver will faithfully discharge the duties of receiver in accordance with orders of the court and state law. Unless otherwise ordered by the court, the receiver’s bond runs in favor of all persons having an interest in the receivership proceeding or property held by the receiver and in favor of state agencies. The receiver’s bond must provide substantially as follows: 7.60.045 [Case Caption] RECEIVER’S BOND TO WHOM IT MAY CONCERN: KNOW ALL BY THESE PRESENTS, that . . . . . . . ., as Principal, and . . . . . . . ., as Surety, are held and firmly bound in the amount of . . . . . . . . Dollars ($ . . . . . . . .) for the faithful performance by Principal of the Principal’s duties as receiver with respect to property of . . . . . . . . in accordance with order(s) of such court previously or (2006 Ed.) Receivers hereafter entered in the above-captioned proceeding and state law. If the Principal faithfully discharges the duties of receiver in accordance with such orders, this obligation shall be void, but otherwise it will remain in full force and effect. Dated this . . . day of . . . . . . . ., . . . .. ..................... [Signature of Receiver] ..................... [Signature of Surety] The court, in lieu of a bond, may approve the posting of alternative security, such as a letter of credit or a deposit of funds with the clerk of the court, to be held by the clerk to secure the receiver’s faithful performance of the receiver’s duties in accordance with orders of the court and state law until the court authorizes the release or return of the deposited sums. No part of the property over which the receiver is appointed may be used in making the deposit; however, any interest that may accrue on a deposit ordered by the court shall be remitted to the receiver upon the receiver’s discharge. A claim against the bond shall be made within one year from the date the receiver is discharged. Claims by state agencies against the bond shall have priority. [2004 c 165 § 6.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.055 7.60.055 Powers of the court. Except as otherwise provided for by this chapter, the court in all cases has exclusive authority over the receiver, and the exclusive possession and right of control with respect to all real property and all tangible and intangible personal property with respect to which the receiver is appointed, wherever located, and the exclusive jurisdiction to determine all controversies relating to the collection, preservation, application, and distribution of all the property, and all claims against the receiver arising out of the exercise of the receiver’s powers or the performance of the receiver’s duties. However, the court does not have exclusive jurisdiction over actions in which a state agency is a party and in which a statute expressly vests jurisdiction or venue elsewhere. [2004 c 165 § 7.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.060 7.60.060 Powers and duties of receiver generally. (1) A receiver has the following powers and authority in addition to those specifically conferred by this chapter or otherwise by statute, court rule, or court order: (a) The power to incur or pay expenses incidental to the receiver’s preservation and use of the property with respect to which the appointment applies, and otherwise in the performance of the receiver’s duties, including the power to pay obligations incurred prior to the receiver’s appointment if and to the extent that payment is determined by the receiver to be prudent in order to preserve the value of property in the receiver’s possession and the funds used for this purpose are not subject to any lien or right of setoff in favor of a creditor who has not consented to the payment and whose interest is not otherwise adequately protected; (2006 Ed.) 7.60.060 (b) If the appointment applies to all or substantially all of the property of an operating business or any revenue-producing property of any person, to do all things which the owner of the business or property might do in the ordinary course of the operation of the business as a going concern or use of the property including, but not limited to, the purchase and sale of goods or services in the ordinary course of such business, and the incurring and payment of expenses of the business or property in the ordinary course; (c) The power to assert any rights, claims, or choses in action of the person over whose property the receiver is appointed relating thereto, if and to the extent that the claims are themselves property within the scope of the appointment or relate to any property, to maintain in the receiver’s name or in the name of such a person any action to enforce any right, claim, or chose in action, and to intervene in actions in which the person over whose property the receiver is appointed is a party for the purpose of exercising the powers under this subsection (1)(c); (d) The power to intervene in any action in which a claim is asserted against the person over whose property the receiver is appointed relating thereto, for the purpose of prosecuting or defending the claim and requesting the transfer of venue of the action to the court. However, the court shall not transfer actions in which both a state agency is a party and as to which a statute expressly vests jurisdiction or venue elsewhere. This power is exercisable with court approval in the case of a liquidating receiver, and with or without court approval in the case of a general receiver; (e) The power to assert rights, claims, or choses in action of the receiver arising out of transactions in which the receiver is a participant; (f) The power to pursue in the name of the receiver any claim under chapter 19.40 RCW assertable by any creditor of the person over whose property the receiver is appointed, if pursuit of the claim is determined by the receiver to be appropriate; (g) The power to seek and obtain advice or instruction from the court with respect to any course of action with respect to which the receiver is uncertain in the exercise of the receiver’s powers or the discharge of the receiver’s duties; (h) The power to obtain appraisals with respect to property in the hands of the receiver; (i) The power by subpoena to compel any person to submit to an examination under oath, in the manner of a deposition in a civil case, with respect to estate property or any other matter that may affect the administration of the receivership; and (j) Other powers as may be conferred upon the receiver by the court or otherwise by statute or rule. (2) A receiver has the following duties in addition to those specifically conferred by this chapter or otherwise by statute or court rule: (a) The duty to notify all federal and state taxing and applicable regulatory agencies of the receiver’s appointment in accordance with any applicable laws imposing this duty, including but not limited to 26 U.S.C. Sec. 6036 and RCW 51.14.073, 51.16.160, and 82.32.240, or any successor statutes; (b) The duty to comply with state law; [Title 7 RCW—page 53] 7.60.070 Title 7 RCW: Special Proceedings and Actions (c) If the receiver is appointed with respect to any real property, the duty to file with the auditor of the county in which the real property is located, or the registrar of lands in accordance with RCW 65.12.600 in the case of registered lands, a certified copy of the order of appointment, together with a legal description of the real property if one is not included in that order; and (d) Other duties as the receiver may be directed to perform by the court or as may be provided for by statute or rule. (3) The various powers and duties of a receiver provided for by this chapter may be expanded, modified, or limited by order of the court for good cause shown. [2004 c 165 § 8.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.070 7.60.070 Turnover of property. Upon demand by a receiver appointed under this chapter, any person shall turn over any property over which the receiver has been appointed that is within the possession or control of that person unless otherwise ordered by the court for good cause shown. A receiver by motion may seek to compel turnover of estate property unless there exists a bona fide dispute with respect to the existence or nature of the receiver’s interest in the property, in which case turnover shall be sought by means of an action under RCW 7.60.160. In the absence of a bona fide dispute with respect to the receiver’s right to possession of estate property, the failure to relinquish possession and control to the receiver shall be punishable as a contempt of the court. [2004 c 165 § 9.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.080 7.60.080 Duties of person over whose property the receiver is appointed. The person over whose property the receiver is appointed shall: (1) Assist and cooperate fully with the receiver in the administration of the estate and the discharge of the receiver’s duties, and comply with all orders of the court; (2) Supply to the receiver information necessary to enable the receiver to complete any schedules that the receiver may be required to file under RCW 7.60.090, and otherwise assist the receiver in the completion of the schedules; (3) Upon the receiver’s appointment, deliver into the receiver’s possession all of the property of the estate in the person’s possession, custody, or control, including, but not limited to, all accounts, books, papers, records, and other documents; and (4) Following the receiver’s appointment, submit to examination by the receiver, or by any other person upon order of the court, under oath, concerning the acts, conduct, property, liabilities, and financial condition of that person or any matter relating to the receiver’s administration of the estate. When the person over whose property the receiver is appointed is an entity, each of the officers, directors, managers, members, partners, or other individuals exercising or having the power to exercise control over the affairs of the entity are subject to the requirements of this section. [2004 c 165 § 10.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.090 Schedules of property and liabilities— Inventory of property—Appraisals. (1) In the event of a general assignment of property for the benefit of creditors under chapter 7.08 RCW, the assignment shall have annexed as schedule [A] a true list of all of the person’s known creditors, their mailing addresses, the amount and nature of their claims, and whether their claims are disputed; and as schedule B a true list of all property of the estate, including the estimated liquidation value and location of the property and, if real property, a legal description thereof, as of the date of the assignment. (2) In all other cases, within twenty days after the date of appointment of a general receiver, the receiver shall file as schedule A a true list of all of the known creditors and applicable regulatory and taxing agencies of the person over whose assets the receiver is appointed, their mailing addresses, the amount and nature of their claims, and whether their claims are disputed; and as schedule B a true list of all property of the estate identifiable by the receiver, including the estimated liquidation value and location of the property and, if real property, a legal description thereof, as of the date of appointment of the receiver. (3) The schedules must be in substantially the following forms: 7.60.090 SCHEDULE A—CREDITOR LIST 1. List all creditors having security interests or liens, showing: Name Address Amount Collateral Whether or not disputed 2. List all wages, salaries, commissions, or contributions to an employee benefit plan owed, showing: Name Address Amount Whether or not disputed 3. List all consumer deposits owed, showing: Name Address Amount Whether or not disputed 4. List all taxes owed, showing: Name Address Amount Whether or not disputed 5. List all unsecured claims, showing: Name Address Amount Whether or not disputed [Title 7 RCW—page 54] (2006 Ed.) Receivers 6. List all owners or shareholders, showing: Name Address 7.60.110 Percentage of Ownership 7. List all applicable regulatory agencies, showing: Name Address SCHEDULE B—LIST OF PROPERTY List each category of property and for each give approximate value obtainable for the asset on the date of assignment/appointment of the receiver, and address where asset is located. I. Nonexempt Property Description and Liquidation Value on Date of AssignLocation ment/Appointment of Receiver 1. 2. 3. 4. 5. 6. 7. 8. II. Legal Description and street address of real property, including leasehold interests: Fixtures: Cash and bank accounts: Inventory: Accounts receivable: Equipment: Prepaid expenses, including deposits, insurance, rents, and utilities: Other, including loans to third parties, claims, and choses in action: Exempt Property Description and Location Liquidation Value on Date of Assignment/Appointment of Receiver I DECLARE under penalty of perjury under the laws of the state of Washington that the foregoing is true, correct, and complete to the best of my knowledge. DATED this . . . day of . . . . . . . ., . . . ., at . . . . . . . ., state of . . . . . . . .. ................ [SIGNATURE] (4) When schedules are filed by a person making a general assignment of property for the benefit of creditors under chapter 7.08 RCW, the schedules shall be duly verified upon oath by such person. (5) The receiver shall obtain an appraisal or other independent valuation of the property in the receiver’s possession if ordered by the court. (6) The receiver shall file a complete inventory of the property in the receiver’s possession if ordered by the court. [2004 c 165 § 11.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.100 7.60.100 Receiver’s reports. A general receiver shall file with the court a monthly report of the receiver’s operations and financial affairs unless otherwise ordered by the court. Except as otherwise ordered by the court, each report of a general receiver shall be due by the last day of the subsequent month and shall include the following: (1) A balance sheet; (2) A statement of income and expenses; (3) A statement of cash receipts and disbursements; (2006 Ed.) (4) A statement of accrued accounts receivable of the receiver. The statement shall disclose amounts considered to be uncollectable; (5) A statement of accounts payable of the receiver, including professional fees. The statement shall list the name of each creditor and the amounts owing and remaining unpaid over thirty days; and (6) A tax disclosure statement, which shall list postfiling taxes due or tax deposits required, the name of the taxing agency, the amount due, the date due, and an explanation for any failure to make payments or deposits. A custodial receiver shall file with the court all such reports the court may require. [2004 c 165 § 12.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.110 7.60.110 Automatic stay of certain proceedings. (1) Except as otherwise ordered by the court, the entry of an order appointing a general receiver or a custodial receiver with respect to all of a person’s property shall operate as a stay, applicable to all persons, of: [Title 7 RCW—page 55] 7.60.120 Title 7 RCW: Special Proceedings and Actions (a) The commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the person over whose property the receiver is appointed that was or could have been commenced before the entry of the order of appointment, or to recover a claim against the person that arose before the entry of the order of appointment; (b) The enforcement, against the person over whose property the receiver is appointed or any estate property, of a judgment obtained before the order of appointment; (c) Any act to obtain possession of estate property from the receiver, or to interfere with, or exercise control over, estate property; (d) Any act to create, perfect, or enforce any lien or claim against estate property except by exercise of a right of setoff, to the extent that the lien secures a claim against the person that arose before the entry of the order of appointment; or (e) Any act to collect, assess, or recover a claim against the person that arose before the entry of the order of appointment. (2) The stay shall automatically expire as to the acts specified in subsection (1)(a), (b), and (e) of this section sixty days after the entry of the order of appointment unless before the expiration of the sixty-day period the receiver, for good cause shown, obtains an order of the court extending the stay, after notice and a hearing. A person whose action or proceeding is stayed by motion to the court may seek relief from the stay for good cause shown. Any judgment obtained against the person over whose property the receiver is appointed or estate property following the entry of the order of appointment is not a lien against estate property unless the receivership is terminated prior to a conveyance of the property against which the judgment would otherwise constitute a lien. (3) The entry of an order appointing a receiver does not operate as a stay of: (a) The commencement or continuation of a criminal proceeding against the person over whose property the receiver is appointed; (b) The commencement or continuation of an action or proceeding to establish paternity, or to establish or modify an order for alimony, maintenance, or support, or to collect alimony, maintenance, or support under any order of a court; (c) Any act to perfect, or to maintain or continue the perfection of, an interest in estate property if the interest perfected would be effective against a creditor of the person over whose property the receiver is appointed holding at the time of the entry of the order of appointment either a perfected nonpurchase money security interest under chapter 62A.9A RCW against the property involved, or a lien by attachment, levy, or the like, whether or not such a creditor exists. If perfection of an interest would require seizure of the property involved or the commencement of an action, the perfection shall instead be accomplished by filing, and by serving upon the receiver, or receiver’s counsel, if any, notice of the interest within the time fixed by law for seizure or commencement; (d) The commencement or continuation of an action or proceeding by a governmental unit to enforce its police or regulatory power; (e) The enforcement of a judgment, other than a money judgment, obtained in an action or proceeding by a govern[Title 7 RCW—page 56] mental unit to enforce its police or regulatory power, or with respect to any licensure of the person over whose property the receiver is appointed; (f) The exercise of a right of setoff, including but not limited to (i) any right of a commodity broker, forward contract merchant, stockbroker, financial institution, or securities clearing agency to set off a claim for a margin payment or settlement payment arising out of a commodity contract, forward contract, or securities contract against cash, securities, or other property held or due from the commodity broker, forward contract merchant, stockbroker, financial institution, or securities clearing agency to margin, guarantee, secure, or settle the commodity contract, forward contract, or securities contract, and (ii) any right of a swap participant to set off a claim for a payment due to the swap participant under or in connection with a swap agreement against any payment due from the swap participant under or in connection with the swap agreement or against cash, securities, or other property of the debtor held by or due from the swap participant to guarantee, secure, or settle the swap agreement; or (g) The establishment by a governmental unit of any tax liability and any appeal thereof. [2004 c 165 § 13.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.120 7.60.120 Utility service. A utility providing service to estate property may not alter, refuse, or discontinue service to the property without first giving the receiver fifteen days’ notice of any default or intention to alter, refuse, or discontinue service to estate property. This section does not prohibit the court, upon motion by the receiver, to prohibit the alteration or cessation of utility service if the receiver can furnish adequate assurance of payment, in the form of deposit or other security, for service to be provided after entry of the order appointing the receiver. [2004 c 165 § 14.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.130 7.60.130 Executory contracts and unexpired leases. (1) A general receiver may assume or reject any executory contract or unexpired lease of the person over whose property the receiver is appointed upon order of the court following notice to the other party to the contract or lease upon notice and a hearing. The court may condition assumption or rejection of any executory contract or unexpired lease on the terms and conditions the court believes are just and proper under the particular circumstances of the case. A general receiver’s performance of an executory contract or unexpired lease prior to the court’s authorization of its assumption or rejection shall not constitute an assumption of the contract or lease, or an agreement by the receiver to assume it, nor otherwise preclude the receiver thereafter from seeking the court’s authority to reject it. (2) Any obligation or liability incurred by a general receiver on account of the receiver’s assumption of an executory contract or unexpired lease shall be treated as an expense of the receivership. A general receiver’s rejection of an executory contract or unexpired lease shall be treated as a breach of the contract or lease occurring immediately prior to the receiver’s appointment; and the receiver’s right to possess or use property pursuant to any executory contract or lease shall (2006 Ed.) Receivers terminate upon rejection of the contract or lease. The other party to an executory contract or unexpired lease that is rejected by a general receiver may take such steps as may be necessary under applicable law to terminate or cancel the contract or lease. The claim of a party to an executory contract or unexpired lease resulting from a general receiver’s rejection of it shall be served upon the receiver in the manner provided for by RCW 7.60.210 within thirty days following the rejection. (3) A general receiver’s power under this section to assume an executory contract or unexpired lease shall not be affected by any provision in the contract or lease that would effect or permit a forfeiture, modification, or termination of it on account of either the receiver’s appointment, the financial condition of the person over whose property the receiver is appointed, or an assignment for the benefit of creditors by that person. (4) A general receiver may not assume an executory contract or unexpired lease of the person over whose property the receiver is appointed without the consent of the other party to the contract or lease if: (a) Applicable law would excuse a party, other than the person over whose property the receiver is appointed, from accepting performance from or rendering performance to anyone other than the person even in the absence of any provisions in the contract or lease expressly restricting or prohibiting an assignment of the person’s rights or the performance of the person’s duties; (b) The contract or lease is a contract to make a loan or extend credit or financial accommodations to or for the benefit of the person over whose property the receiver is appointed, or to issue a security of the person; or (c) The executory contract or lease expires by its own terms, or under applicable law prior to the receiver’s assumption thereof. (5) A receiver may not assign an executory contract or unexpired lease without assuming it, absent the consent of the other parties to the contract or lease. (6) If the receiver rejects an executory contract or unexpired lease for: (a) The sale of real property under which the person over whose property the receiver is appointed is the seller and the purchaser is in possession of the real property; (b) The sale of a real property timeshare interest under which the person over whose property the receiver is appointed is the seller; (c) The license of intellectual property rights under which the person over whose property the receiver is appointed is the licensor; or (d) The lease of real property in which the person over whose property the receiver is appointed is the lessor; then the purchaser, licensee, or lessee may treat the rejection as a termination of the contract, license agreement, or lease, or alternatively, the purchaser, licensee, or lessee may remain in possession in which case the purchaser, licensee, or lessee shall continue to perform all obligations arising thereunder as and when they may fall due, but may offset against any payments any damages occurring on account of the rejection after it occurs. The purchaser of real property in such a case is entitled to receive from the receiver any deed or any other instrument of conveyance which the person over whose prop(2006 Ed.) 7.60.160 erty the receiver is appointed is obligated to deliver under the executory contract when the purchaser becomes entitled to receive it, and the deed or instrument has the same force and effect as if given by the person. A purchaser, licensee, or lessee who elects to remain in possession under the terms of this subsection has no rights against the receiver on account of any damages arising from the receiver’s rejection except as expressly provided for by this subsection. A purchaser of real property who elects to treat rejection of an executory contract as a termination has a lien against the interest in that real property of the person over whose property the receiver is appointed for the recovery of any portion of the purchase price that the purchaser has paid. (7) Any contract with the state shall be deemed rejected if not assumed within sixty days of appointment of a general receiver unless the receiver and state agency agree to its assumption. (8) Nothing in this chapter affects the enforceability of antiassignment prohibitions provided under contract or applicable law. [2004 c 165 § 15.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.140 7.60.140 Receivership financing. (1) If a receiver is authorized to operate the business of a person or manage a person’s property, the receiver may obtain unsecured credit and incur unsecured debt in the ordinary course of business allowable under RCW 7.60.230(1)(a) as an administrative expense of the receiver without order of the court. (2) The court, after notice and a hearing, may authorize a receiver to obtain credit or incur indebtedness other than in the ordinary course of business. The court may allow the receiver to mortgage, pledge, hypothecate, or otherwise encumber estate property as security for repayment of any indebtedness that the receiver may incur. [2004 c 165 § 16.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.150 7.60.150 Abandonment of property. The receiver, or any party in interest, upon order of the court following notice and a hearing, and upon the conditions or terms the court considers just and proper, may abandon any estate property that is burdensome to the receiver or is of inconsequential value or benefit. However, a receiver may not abandon property that is a hazard or potential hazard to the public in contravention of a state statute or rule that is reasonably designed to protect the public health or safety from identified hazards, including but not limited to chapters 70.105 and 70.105D RCW. Property that is abandoned no longer constitutes estate property. [2004 c 165 § 17.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.160 7.60.160 Actions by and against the receiver or affecting property held by receiver. (1) The receiver has the right to sue and be sued in the receiver’s capacity as such, without leave of court, in all cases necessary or proper for the conduct of the receivership. However, action seeking to dispossess the receiver of any estate property or otherwise to interfere with the receiver’s management or control of any estate property may not be maintained or continued unless [Title 7 RCW—page 57] 7.60.170 Title 7 RCW: Special Proceedings and Actions permitted by order of the court obtained upon notice and a hearing. (2) Litigation by or against a receiver is adjunct to the receivership case. The clerk of the court shall assign a cause number that reflects the relationship of any litigation to the receivership case. All pleadings in adjunct litigation shall include the cause number of the receivership case as well as the adjunct litigation number assigned by the clerk of the court. All adjunct litigation shall be referred to the judge, if any, assigned to the receivership case. (3) The receiver may be joined or substituted as a party in any suit or proceeding that was pending at the time of the receiver’s appointment and in which the person over whose property the receiver is appointed is a party, upon application by the receiver to the court or agency before which the action is pending. (4) Venue for adjunct litigation by or against the receiver shall lie in the court in which the receivership is pending, if the courts of this state have jurisdiction over the cause. Actions in other courts in this state shall be transferred to the court upon the receiver’s filing of a motion for change of venue, provided that the receiver files the motion within thirty days following service of original process upon the receiver. However, actions in other courts or forums in which a state agency is a party shall not be transferred on request of the receiver absent consent of the affected state agency or grounds provided under other applicable law. (5) Action by or against a receiver does not abate by reason of death or resignation of the receiver, but continues against the successor receiver or against the entity in receivership, if a successor receiver is not appointed. (6) Whenever the assets of any domestic or foreign corporation, that has been doing business in this state, has been placed in the hands of any general receiver and the receiver is in possession of its assets, service of all process upon the corporation may be made upon the receiver. (7) A judgment against a general receiver is not a lien on the property or funds of the receivership, nor shall any execution issue thereon, but upon entry of the judgment in the court in which a general receivership is pending, or upon filing in a general receivership of a certified copy of the judgment from another jurisdiction, the judgment shall be treated as an allowed claim in the receivership. A judgment against a custodial receiver shall be treated and has the same effect as a judgment against the person over whose property the receiver is appointed, except that the judgment is not enforceable against estate property unless otherwise ordered by the court upon notice and a hearing. [2004 c 165 § 18.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.170 7.60.170 Personal liability of receiver. (1)(a) The receiver is personally liable to the person over whose property the receiver is appointed or its record or beneficial owners, or to the estate, for loss or diminution in value of or damage to estate property, only if (i) the loss or damage is caused by a failure on the part of the receiver to comply with an order of the court, or (ii) the loss or damage is caused by an act or omission for which members of a board of directors of a business corporation organized and existing under the laws of this state who vote to approve the act or omission are liable to the [Title 7 RCW—page 58] corporation in cases in which the liability of directors is limited to the maximum extent permitted by RCW 23B.08.320. (b) A general receiver is personally liable to state agencies for failure to remit sales tax collected after appointment. A custodial receiver is personally liable to state agencies for failure to remit sales tax collected after appointment with regard to assets administered by the receiver. (2) The receiver has no personal liability to a person other than the person over whose property the receiver is appointed or its record or beneficial owners for any loss or damage occasioned by the receiver’s performance of the duties imposed by the appointment, or out of the receiver’s authorized operation of any business of a person, except loss or damage occasioned by fraud on the part of the receiver, by acts intended by the receiver to cause loss or damage to the specific claimant, or by acts or omissions for which an officer of a business corporation organized and existing under the laws of this state are liable to the claimant under the same circumstances. (3) Notwithstanding subsections (1)(a) and (2) of this section, a receiver has no personal liability to any person for acts or omissions of the receiver specifically contemplated by any order of the court. (4) A person other than a successor receiver duly appointed by the court does not have a right of action against a receiver under this section to recover property or the value thereof for or on behalf of the estate. [2004 c 165 § 19.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.180 7.60.180 Employment and compensation of professionals. (1) The receiver, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons that do not hold or represent an interest adverse to the estate to represent or assist the receiver in carrying out the receiver’s duties. (2) A person is not disqualified for employment under this section solely because of the person’s employment by, representation of, or other relationship with a creditor or other party in interest, if the relationship is disclosed in the application for the person’s employment and if the court determines that there is no actual conflict of interest or inappropriate appearance of a conflict. (3) This section does not preclude the court from authorizing the receiver to act as attorney or accountant if the authorization is in the best interests of the estate. (4) The receiver, and any professionals employed by the receiver, is permitted to file an itemized billing statement with the court indicating both the time spent, billing rates of all who perform work to be compensated, and a detailed list of expenses and serve copies on any person who has been joined as a party in the action, or any person requesting the same, advising that unless objections are filed with the court, the receiver may make the payments specified in the notice. If an objection is filed, the receiver or professional whose compensation is affected may request the court to hold a hearing on the objection on five days’ notice to the persons who have filed objections. If the receiver is a custodial receiver appointed in aid of foreclosure, payment of fees and expenses may be allowed upon the stipulation of any creditor (2006 Ed.) Receivers holding a security interest in the property for whose benefit the receiver is appointed. [2004 c 165 § 20.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.190 7.60.190 Participation of creditors and parties in interest in receivership proceeding—Effect of court orders on nonparties. (1) Creditors and parties in interest to whom written notice of the pendency of the receivership is given in accordance with RCW 7.60.210, and creditors or other persons submitting written claims in the receivership or otherwise appearing and participating in the receivership, are bound by the acts of the receiver with regard to management and disposition of estate property whether or not they are formally joined as parties. (2) Any person having a claim against or interest in any estate property or in the receivership proceedings may appear in the receivership, either in person or by an attorney. Appearance must be made by filing a written notice of appearance, including the name and mailing address of the party in interest, and the name and address of the person’s attorney, if any, with the clerk, and by serving a copy of the notice upon the receiver and the receiver’s attorney of record, if any. The receiver shall maintain a master mailing list of all persons joined as parties in the receivership and of all persons serving and filing notices of appearance in the receivership in accordance with this section. A creditor or other party in interest has a right to be heard with respect to all matters affecting the person, whether or not the person is joined as a party to the action. (3) Any request for relief against a state agency shall be mailed to or otherwise served on the agency and on the office of the attorney general. (4) Orders of the court with respect to the treatment of claims and disposition of estate property, including but not limited to orders providing for sales of property free and clear of liens, are effective as to any person having a claim against or interest in the receivership estate and who has actual knowledge of the receivership, whether or not the person receives written notice from the receiver and whether or not the person appears or participates in the receivership. (5) The receiver shall give not less than ten days’ written notice by mail of any examination by the receiver of the person with respect to whose property the receiver has been appointed and to persons who serve and file an appearance in the proceeding. (6) Persons on the master mailing list are entitled to not less than thirty days’ written notice of the hearing of any motion or other proceeding involving any proposed: (a) Allowance or disallowance of any claim or claims; (b) Abandonment, disposition, or distribution of estate property, other than an emergency disposition of perishable property or a disposition of property in the ordinary course of business; (2006 Ed.) 7.60.200 (c) Compromise or settlement of a controversy that might affect the distribution to creditors from the estate; (d) Compensation of the receiver or any professional employed by the receiver; or (e) Application for termination of the receivership or discharge of the receiver. Notice of the application shall also be sent to state taxing and applicable regulatory agencies. Any opposition to any motion to authorize any of the actions under (a) through (e) of this subsection must be filed and served upon the receiver and the receiver’s attorney, if any, at least three days before the date of the proposed action. Persons on the master mailing list shall be served with all pleadings or in opposition to any motion. The court may require notice to be given to persons on the master mailing list of additional matters the court deems appropriate, and may enlarge or reduce any time period provided for by this section for good cause shown. The receiver shall make a copy of the current master mailing list available to any person on that list upon the person’s request. (7) All persons duly notified by the receiver of any hearing to approve or authorize an action or a proposed action by the receiver is bound by any order of the court with respect to the action, whether or not the persons have appeared or objected to the action or proposed action or have been joined formally as parties to the particular action. (8) Whenever notice is not specifically required to be given under this chapter, the court may consider motions and grant or deny relief without notice or hearing, if it appears that no person joined as a party or who has appeared in the receivership would be prejudiced or harmed by the relief requested. [2004 c 165 § 21.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.200 7.60.200 Notice to creditors and other parties in interest. (1) A general receiver shall give notice of the receivership by publication in a newspaper of general circulation published in the county or counties in which estate property is known to be located once a week for three consecutive weeks, the first notice to be published within twenty days after the date of appointment of the receiver; and by mailing notice to all known creditors and other known parties in interest within twenty days after the date of appointment of the receiver. The notice of the receivership shall include the date of appointment of the receiver; the name of the court and the case number; the last day on which claims may be filed and served upon the receiver; and the name and address of the debtor, the receiver, and the receiver’s attorney, if any. For purposes of this section, all intangible property of a person is deemed to be located in the county in which an individual owner thereof resides, or in which any entity owning the property maintains its principal administrative offices. (2) The notice of the receivership shall be in substantially the following form: [Title 7 RCW—page 59] 7.60.210 Title 7 RCW: Special Proceedings and Actions IN THE SUPERIOR COURT, IN AND FOR COUNTY, WASHINGTON [Case Name] ) Case No. ) ) NOTICE OF RECEIVERSHIP ) ) ) TO CREDITORS AND OTHER PARTIES IN INTEREST: PLEASE TAKE NOTICE that a receiver was appointed for , whose last known address is , on , . YOU ARE HEREBY FURTHER NOTIFIED that in order to receive any dividend in this proceeding you must file proof of claim with the receiver on or before , (120 days from the date of appointment of the receiver). RECEIVER Attorney for receiver (if any): Address: [2004 c 165 § 22.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.210 Submission of claims in general receiverships. (1) All claims, whether contingent, liquidated, unliquidated, or disputed, other than claims of creditors with security interests in or other liens against property of the estate, arising prior to the receiver’s appointment, must be served in accordance with this chapter, and any claim not so filed is barred from participating in any distribution to creditors in any general receivership. (2) Claims must be served by delivering the claim to the general receiver within thirty days from the date notice is given by mail under this section, unless the court reduces or extends the period for cause shown, except that a claim arising from the rejection of an executory contract or an unexpired lease of the person over whose property the receiver is appointed may be filed within thirty days after the rejection. Claims need not be filed. Claims must be served by state agencies on the general receiver within one hundred eighty days from the date notice is given by mail under this section. (3) Claims must be in written form entitled "Proof of Claim," setting forth the name and address of the creditor and the nature and amount of the claim, and executed by the creditor or the creditor’s authorized agent. When a claim, or an interest in estate property of securing the claim, is based on a writing, the original or a copy of the writing must be included as a part of the proof of claim, together with evidence of perfection of any security interest or other lien asserted by the claimant. (4) A claim, executed and served in accordance with this section, constitutes prima facie evidence of the validity and amount of the claim. [2004 c 165 § 23.] 7.60.210 Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.220 Objection to and allowance of claims. (1) At any time prior to the entry of an order approving the general 7.60.220 [Title 7 RCW—page 60] receiver’s final report, the general receiver or any party in interest may file with the court an objection to a claim, which objection must be in writing and must set forth the grounds for the objection. A copy of the objection, together with notice of hearing, must be mailed to the creditor at least thirty days prior to the hearing. Claims properly served upon the general receiver and not disallowed by the court are entitled to share in distributions from the estate in accordance with the priorities provided for by this chapter or otherwise by law. (2) Upon the request of a creditor, the general receiver, or any party in interest objecting to the creditor’s claim, or upon order of the court, an objection is subject to mediation prior to adjudication of the objection, under the rules or orders adopted or issued with respect to mediations. However, state claims are not subject to mediation absent agreement of the state. (3) Upon motion of the general receiver or other party in interest, the following claims may be estimated for purpose of allowance under this section under the rules or orders applicable to the estimation of claims under this subsection: (a) Any contingent or unliquidated claim, the fixing or liquidation of which, as the case may be, would unduly delay the administration of the case; or (b) Any right to payment arising from a right to an equitable remedy for breach of performance. Claims subject to this subsection shall be allowed in the estimated amount thereof. [2004 c 165 § 24.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.230 Priorities. (1) Allowed claims in a general receivership shall receive distribution under this chapter in the order of priority under (a) through (h) of this subsection and, with the exception of (a) and (c) of this subsection, on a pro rata basis. (a) Creditors with liens on property of the estate, which liens are duly perfected under applicable law, shall receive the proceeds from the disposition of their collateral. How7.60.230 (2006 Ed.) Receivers ever, the receiver may recover from property securing an allowed secured claim the reasonable, necessary expenses of preserving, protecting, or disposing of the property to the extent of any benefit to the creditors. If and to the extent that the proceeds are less than the amount of a creditor’s allowed claim or a creditor’s lien is avoided on any basis, the creditor is an unsecured claim under (h) of this subsection. Secured claims shall be paid from the proceeds in accordance with their respective priorities under otherwise applicable law. (b) Actual, necessary costs and expenses incurred during the administration of the estate, other than those expenses allowable under (a) of this subsection, including allowed fees and reimbursement of reasonable charges and expenses of the receiver and professional persons employed by the receiver under RCW 7.60.180. Notwithstanding (a) of this subsection, expenses incurred during the administration of the estate have priority over the secured claim of any creditor obtaining or consenting to the appointment of the receiver. (c) Creditors with liens on property of the estate, which liens have not been duly perfected under applicable law, shall receive the proceeds from the disposition of their collateral if and to the extent that unsecured claims are made subject to those liens under applicable law. (d) Claims for wages, salaries, or commissions, including vacation, severance, and sick leave pay, or contributions to an employee benefit plan, earned by the claimant within ninety days of the date of appointment of the receiver or the cessation of the estate’s business, whichever occurs first, but only to the extent of two thousand dollars. (e) Allowed unsecured claims, to the extent of nine hundred dollars for each individual, arising from the deposit with the person over whose property the receiver is appointed before the date of appointment of the receiver of money in connection with the purchase, lease, or rental of property or the purchase of services for personal, family, or household use by individuals that were not delivered or provided. (f) Claims for a support debt as defined in RCW 74.20A.020(10), but not to the extent that the debt (i) is assigned to another entity, voluntarily, by operation of law, or otherwise; or (ii) includes a liability designated as a support obligation unless that liability is actually in the nature of a support obligation. (g) Unsecured claims of governmental units for taxes which accrued prior to the date of appointment of the receiver. (h) Other unsecured claims. (2) If all of the classes under subsection (1) of this section have been paid in full, any residue shall be paid to the person over whose property the receiver is appointed. [2004 c 165 § 25.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.240 7.60.240 Secured claims against after-acquired property. Except as otherwise provided for by statute, property acquired by the estate or by the person over whose property the receiver is appointed after the date of appointment of the receiver is subject to an allowed secured claim to the same extent as would be the case in the absence of a receivership. [2004 c 165 § 26.] (2006 Ed.) 7.60.260 Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.250 7.60.250 Interest on claims. To the extent that funds are available in the estate for distribution to creditors in a general receivership, the holder of an allowed noncontingent, liquidated claim is entitled to receive interest at the legal rate or other applicable rate from the date of appointment of the receiver or the date on which the claim became a noncontingent, liquidated claim. If there are sufficient funds in the estate to fully pay all interest owing to all members of the class, then interest shall be paid proportionately to each member of the class. [2004 c 165 § 27.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.260 7.60.260 Receiver’s disposition of property—Sales free and clear. (1) The receiver, with the court’s approval after notice and a hearing, may use, sell, or lease estate property other than in the ordinary course of business. Except in the case of a leasehold estate with a remaining term of less than two years or a vendor’s interest in a real estate contract, estate property consisting of real property may not be sold by a custodial receiver other than in the ordinary course of business. (2) The court may order that a general receiver’s sale of estate property under subsection (1) of this section be effected free and clear of liens and of all rights of redemption, whether or not the sale will generate proceeds sufficient to fully satisfy all claims secured by the property, unless either: (a) The property is real property used principally in the production of crops, livestock, or aquaculture, or the property is a homestead under RCW 6.13.010(1), and the owner of the property has not consented to the sale following the appointment of the receiver; or (b) The owner of the property or a creditor with an interest in the property serves and files a timely opposition to the receiver’s sale, and the court determines that the amount likely to be realized by the objecting person from the receiver’s sale is less than the person would realize within a reasonable time in the absence of the receiver’s sale. Upon any sale free and clear of liens authorized by this section, all security interests and other liens encumbering the property conveyed transfer and attach to the proceeds of the sale, net of reasonable expenses incurred in the disposition of the property, in the same order, priority, and validity as the liens had with respect to the property immediately before the conveyance. The court may authorize the receiver at the time of sale to satisfy, in whole or in part, any allowed claim secured by the property out of the proceeds of its sale if the interest of any other creditor having a lien against the proceeds of the sale would not thereby be impaired. (3) At a public sale of property under subsection (1) of this section, a creditor with an allowed claim secured by a lien against the property to be sold may bid at the sale of the property. A secured creditor who purchases the property from a receiver may offset against the purchase price its allowed secured claim against the property, provided that the secured creditor tenders cash sufficient to satisfy in full all secured claims payable out of the proceeds of sale having priority over the secured creditor’s secured claim. If the lien or [Title 7 RCW—page 61] 7.60.270 Title 7 RCW: Special Proceedings and Actions the claim it secures is the subject of a bona fide dispute, the court may order the holder of the claim to provide the receiver with adequate security to assure full payment of the purchase price in the event the lien, the claim, or any part thereof is determined to be invalid or unenforceable. (4) If estate property includes an interest as a co-owner of property, the receiver shall have the rights and powers of a co-owner afforded by applicable state or federal law, including but not limited to any rights of partition. (5) The reversal or modification on appeal of an authorization to sell or lease estate property under this section does not affect the validity of a sale or lease under that authorization to an entity that purchased or leased the property in good faith, whether or not the entity knew of the pendency of the appeal, unless the authorization and sale or lease were stayed pending the appeal. [2004 c 165 § 28.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.270 7.60.270 Ancillary receiverships. (1) A receiver appointed in any action pending in the courts of this state, without first seeking approval of the court, may apply to any court outside of this state for appointment as receiver with respect to any property or business of the person over whose property the receiver is appointed constituting estate property which is located in any other jurisdiction, if the appointment is necessary to the receiver’s possession, control, management, or disposition of property in accordance with orders of the court. (2) A receiver appointed by a court of another state, or by a federal court in any district outside of this state, or any other person having an interest in that proceeding, may obtain appointment by a superior court of this state of that same receiver with respect to any property or business of the person over whose property the receiver is appointed constituting property of the foreign receivership that is located in this jurisdiction, if the person is eligible under RCW 7.60.035 to serve as receiver, and if the appointment is necessary to the receiver’s possession, control, or disposition of the property in accordance with orders of the court in the foreign proceeding. The superior court upon the receiver’s request shall enter the orders, not offensive to the laws and public policy of this state, necessary to effectuate orders entered by the court in the foreign receivership proceeding. A receiver appointed in an ancillary receivership in this state is required to comply with this chapter requiring notice to creditors or other parties in interest only as may be required by the superior court in the ancillary receivership. [2004 c 165 § 29.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. Upon executing and filing a bond under RCW 7.60.045, the successor receiver shall immediately take possession of the estate and assume the duties of receiver. (3) Whenever the court is satisfied that the receiver so removed or replaced has fully accounted for and turned over to the successor receiver appointed by the court all of the property of the estate and has filed a report of all receipts and disbursements during the person’s tenure as receiver, the court shall enter an order discharging that person from all further duties and responsibilities as receiver after notice and a hearing. [2004 c 165 § 30.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.290 7.60.290 Termination of receivership. (1) Upon distribution or disposition of all property of the estate, or the completion of the receiver’s duties with respect to estate property, the receiver shall move the court to be discharged upon notice and a hearing. (2) The receiver’s final report and accounting setting forth all receipts and disbursements of the estate shall be annexed to the petition for discharge and filed with the court. (3) Upon approval of the final report, the court shall discharge the receiver. (4) The receiver’s discharge releases the receiver from any further duties and responsibilities as receiver under this chapter. (5) Upon motion of any party in interest, or upon the court’s own motion, the court has the power to discharge the receiver and terminate the court’s administration of the property over which the receiver was appointed. If the court determines that the appointment of the receiver was wrongfully procured or procured in bad faith, the court may assess against the person who procured the receiver’s appointment (a) all of the receiver’s fees and other costs of the receivership and (b) any other sanctions the court determines to be appropriate. [2004 c 165 § 31.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. 7.60.300 7.60.300 Applicability. This chapter applies to receivers and receiverships otherwise provided for by the laws of this state except as otherwise expressly provided for by statute or as necessary to give effect to the laws of this state. This chapter does not apply to any proceeding authorized by or commenced under Title 48 RCW. [2004 c 165 § 32.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. Chapter 7.64 7.60.280 7.60.280 Resignation or removal of receiver. (1) The court shall remove or replace the receiver on application of the person over whose property the receiver is appointed, the receiver, or any creditor, or on the court’s own motion, if the receiver fails to execute and file the bond required by RCW 7.60.045, or if the receiver resigns or refuses or fails to serve for any reason, or for other good cause. (2) Upon removal, resignation, or death of the receiver, the court shall appoint a successor receiver if the court determines that further administration of the estate is required. [Title 7 RCW—page 62] Chapter 7.64 RCW REPLEVIN Sections 7.64.010 7.64.020 7.64.035 7.64.045 7.64.047 7.64.050 7.64.070 Plaintiff may claim and obtain immediate delivery. Application for delivery—Order to show cause—Petition— Hearing. Order awarding possession of property to plaintiff—Bond by plaintiff—Final judgment. Plaintiff’s duties upon issuance of order awarding possession of property. Sheriff to take possession of property. Redelivery bond. Qualification and justification of sureties. (2006 Ed.) Replevin 7.64.100 7.64.110 7.64.115 7.64.900 7.64.901 Claim by third party. Return of proceedings by sheriff. Execution of final judgment. Severability—1979 ex.s. c 132. Severability—1990 c 227. 7.64.010 Plaintiff may claim and obtain immediate delivery. The plaintiff in an action to recover the possession of personal property may claim and obtain the immediate delivery of such property, after a hearing, as provided in this chapter. The remedies provided under this chapter are in addition to any other remedy available to the plaintiff, including a secured creditor’s right of self-help repossession. [1990 c 227 § 1; 1979 ex.s. c 132 § 1; Code 1881 § 142; 1877 p 30 § 142; 1869 p 35 § 140; 1854 p 150 § 100; RRS § 707.] 7.64.010 7.64.020 7.64.020 Application for delivery—Order to show cause—Petition—Hearing. (1) At the time of filing the complaint or any time thereafter, the plaintiff may apply to the judge or court commissioner to issue an order directing the defendant to appear and show cause why an order putting the plaintiff in immediate possession of the personal property should not be issued. (2) In support of the application, the plaintiff, or someone on the plaintiff’s behalf, shall make an affidavit, or a declaration as permitted under RCW 9A.72.085, showing: (a) That the plaintiff is the owner of the property or is lawfully entitled to the possession of the property by virtue of a special property interest, including a security interest, specifically describing the property and interest; (b) That the property is wrongfully detained by defendant; (c) That the property has not been taken for a tax, assessment, or fine pursuant to a statute and has not been seized under an execution or attachment against the property of the plaintiff, or if so seized, that it is by law exempt from such seizure; and (d) The approximate value of the property. (3) The order to show cause shall state the date, time, and place of the hearing and contain a notice to the defendant that failure to promptly turn over possession of the property to the plaintiff or the sheriff, if an order awarding possession is issued under RCW 7.64.035(1), may subject the defendant to being held in contempt of court. (4) A certified copy of the order to show cause, with a copy of the plaintiff’s affidavit or declaration attached, shall be served upon the defendant no later than five days before the hearing date. [2004 c 74 § 1; 1990 c 227 § 2; 1979 ex.s. c 132 § 2; Code 1881 § 143; 1877 p 30 § 143; 1869 p 35 § 141; 1854 p 150 § 101; RRS § 708.] 7.64.035 7.64.035 Order awarding possession of property to plaintiff—Bond by plaintiff—Final judgment. (1) At the hearing on the order to show cause, the judge or court commissioner may issue an order awarding possession of the property to the plaintiff and directing the sheriff to put the plaintiff in possession of the property: (a)(i) If the plaintiff establishes the right to obtain possession of the property pending final disposition, or (ii) if the defendant, after being served with the order to show cause, fails to appear at the hearing; and (2006 Ed.) 7.64.045 (b) If the plaintiff executes to the defendant and files in the court a bond in such sum as the court may order, with sufficient surety to be approved by the clerk, conditioned that the plaintiff will prosecute the action without delay and that if the order is wrongfully sued out, the plaintiff will pay all costs that may be adjudged to the defendant and all damages, court costs, reasonable attorneys’ fees, and costs of recovery that the defendant may incur by reason of the order having been issued. However, the court may waive the bond if the plaintiff has properly served the defendant in accordance with RCW 7.64.020(4) and the defendant either fails to attend the hearing on the order to show cause or appears at the hearing on the order to show cause but does not object to entry of the order awarding possession. If the court waives the bond, the court shall establish the amount of bond that would have been required and that amount shall be considered the amount filed by the plaintiff for the purpose of determining the value of the redelivery bond under RCW 7.64.050(3). (2) An order awarding possession shall: (a) State that a show cause hearing was held; (b) describe the property and its location; (c) direct the sheriff to take possession of the property and put the plaintiff in possession as provided in this chapter; (d) contain a notice to the defendant that failure to turn over possession of the property to the sheriff may subject the defendant to being held in contempt of court upon application to the court by the plaintiff without further notice; (e) if deemed necessary, direct the sheriff to break and enter a building or enclosure to obtain possession of the property if it is concealed in the building or enclosure; and (f) be signed by the judge or commissioner. (3) If at the time of the hearing more than twenty days have elapsed since service of the summons and complaint and the defendant does not raise an issue of fact prior to or at the hearing that requires a trial on the issue of possession or damages, the judge or court commissioner may also, in addition to entering an order awarding possession, enter a final judgment awarding plaintiff possession of the property or its value if possession cannot be obtained, damages, court costs, reasonable attorneys’ fees, and costs of recovery. (4) When any of the property is located in a county other than the county in which the action was commenced, the sheriff directed to take possession of the property by the order awarding possession, or the sheriff of the county where the property is found, may execute the order awarding possession and take possession of the property in any county of the state where the property is found. For the purpose of following the property, duplicate orders awarding possession may be issued, if necessary, and served as the original. [2004 c 74 § 2; 1990 c 227 § 3; 1979 ex.s. c 132 § 5.] 7.64.045 7.64.045 Plaintiff’s duties upon issuance of order awarding possession of property. After issuance of the order awarding possession, the plaintiff shall deliver a copy of the bond, unless waived by the court under RCW 7.64.035(1)(b), and a certified copy of the order awarding possession to the sheriff of the county where the property is located and shall provide the sheriff with all available information as to the location and identity of the defendant and the property claimed. If the property is returned to the plaintiff by the defendant or if the plaintiff otherwise obtains posses[Title 7 RCW—page 63] 7.64.047 Title 7 RCW: Special Proceedings and Actions sion of the property, the plaintiff shall notify the sheriff of this fact as soon as possible. [2004 c 74 § 3; 1990 c 227 § 4; 1979 ex.s. c 132 § 6.] 7.64.047 7.64.047 Sheriff to take possession of property. (1) After receiving an order awarding possession, the sheriff shall take possession of the property. If the property or any part of it is concealed in a building or enclosure, the sheriff shall publicly demand delivery of the property. If the property is not delivered and if the order awarding possession so directs, the sheriff shall cause the building or enclosure to be broken open and take possession of the property. (2) At the time of taking possession of the property, the sheriff shall serve copies of the bond and the order awarding possession on the defendant or, if someone other than the defendant is in possession of the property, shall serve the copies on that person. If the copies of the bond and the order are not served on the defendant at the time of taking possession, the sheriff shall, within a reasonable time after taking possession, give notice to the defendant either by serving copies of the bond and order on the defendant in the same manner as a summons in a civil action or by causing the copies to be mailed to the defendant by both regular mail and certified mail, return receipt requested. (3) As soon as possible after taking possession of the property and after receiving lawful fees for taking possession and necessary expenses for keeping the property, the sheriff shall release the property to the plaintiff, unless before the release the defendant has, as provided in RCW 7.64.050, given a redelivery bond to the sheriff or filed a redelivery bond with the court and notified the sheriff of that fact. [1990 c 227 § 5.] expressly waived, and may retain the property until that time; but if they, or others in their place, fail to justify at the time and place appointed, the sheriff shall release the property to the plaintiff. [1990 c 227 § 6; 1979 ex.s. c 132 § 3; Code 1881 § 146; 1877 p 31 § 146; 1869 p 36 § 144; 1854 p 151 § 104; RRS § 711.] 7.64.070 Qualification and justification of sureties. The qualification of sureties and their justification shall be as prescribed by law. [1957 c 51 § 17; Code 1881 § 148; 1877 p 31 § 148; 1869 p 37 § 146; 1854 p 151 § 106; RRS § 713.] 7.64.070 Corporate surety—Insurance: Chapter 48.28 RCW. 7.64.100 Claim by third party. If the property taken by the sheriff is claimed by any person other than the defendant or the defendant’s agent, the claimant may assert the claim by intervening in the plaintiff’s action for possession. [1990 c 227 § 7; 1979 ex.s. c 132 § 4; Code 1881 § 151; 1877 p 32 § 151; 1869 p 37 § 149; 1854 p 151 § 109; RRS § 716.] 7.64.100 7.64.110 Return of proceedings by sheriff. The sheriff shall file a return of proceedings with the clerk of the court in which the action is pending within twenty days after taking possession of the property. [1990 c 227 § 8; 1891 c 34 § 1; Code 1881 § 152; 1877 p 32 § 152; 1869 p 38 § 150; 1854 p 152 § 110; RRS § 717.] 7.64.110 7.64.115 Execution of final judgment. To the extent the final judgment entered at a show cause hearing or at any other time is not satisfied by proceedings under an order awarding possession issued at the show cause hearing, the judgment shall be executed in the same manner as any other judgment. [1990 c 227 § 9.] 7.64.115 7.64.050 7.64.050 Redelivery bond. (1) At the hearing on the order to show cause or at any time before the sheriff takes possession of the property, the defendant may post a redelivery bond and retain possession of the property pending final judgment in the action for possession. At any time after the sheriff takes possession and before release of the property to the plaintiff as provided in RCW 7.64.047, the defendant may require the sheriff to return the property by posting a redelivery bond. (2) A redelivery bond may be given to the sheriff or filed with the court. If the bond is filed with the court after a certified copy of the order awarding possession has been issued to the sheriff, the defendant shall give notice of the filing to the sheriff. (3) The redelivery bond shall be executed by one or more sufficient sureties to the effect that they are bound in an amount equal to the value of the bond filed by the plaintiff, conditioned that the defendant will deliver the property to the plaintiff if judgment is entered for the plaintiff in the action for possession and will pay any sum recovered by the plaintiff in that action. (4) The defendant’s sureties, upon a notice to the plaintiff or the plaintiff’s attorney, of not less than two, nor more than six days, shall justify as provided by law; upon such justification, the sheriff shall release the property to the defendant. The sheriff shall be responsible for the defendant’s sureties until they justify, or until justification is completed or [Title 7 RCW—page 64] 7.64.900 Severability—1979 ex.s. c 132. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1979 ex.s. c 132 § 9.] 7.64.900 7.64.901 Severability—1990 c 227. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1990 c 227 § 11.] 7.64.901 Chapter 7.68 Chapter 7.68 RCW VICTIMS OF CRIMES— COMPENSATION, ASSISTANCE Sections 7.68.010 7.68.015 7.68.020 7.68.030 7.68.035 7.68.050 7.68.060 7.68.070 Intent. Program to be operated within conditions and limitations. Definitions. Duties of department—General provisions. Penalty assessments in addition to fine or bail forfeiture—Distribution—Establishment of crime victim and witness programs in county—Contribution required from cities and towns. Right of action for damages—Election—Effect of election or recovery—Lien of state. Applications for benefits—Accrual of rights. Benefits—Right to and amount—Limitations. (2006 Ed.) Victims of Crimes—Compensation, Assistance 7.68.075 7.68.080 7.68.085 7.68.090 7.68.100 7.68.110 7.68.120 7.68.125 7.68.130 7.68.140 7.68.145 7.68.150 7.68.160 7.68.165 7.68.170 7.68.200 7.68.210 7.68.220 7.68.230 7.68.240 7.68.250 7.68.260 7.68.270 7.68.280 7.68.290 7.68.300 7.68.310 7.68.320 7.68.330 7.68.340 7.68.350 7.68.360 7.68.900 7.68.905 7.68.910 7.68.915 Marital status—Payment for or on account of children. Medical aid—Construction. Cap on medical benefits—Alternative programs—Plan for reduction of expenditures. Establishment of funds. Physicians’ reporting. Appeals. Reimbursement—Restitution to victim—Notice—Fees— Order to withhold and deliver—Limitation. Erroneous or fraudulent payment—Repayment, when—Order contending a debt due—Filing—Fee—Service—Penalty. Public or private insurance—Attorneys’ fees and costs of victim. Confidentiality. Release of information in performance of official duties. Benefits, payments and costs to be funded and accounted for separately. Claims of persons injured prior to effective date. Application of chapter to claims filed under RCW 7.68.160. Examination costs of sexual assault victims paid by state. Payment for reenactments of crimes—Contracts—Deposits— Damages. Payment may be directed based on contract. Notice published of moneys in escrow. Payment to accused if charges dismissed, acquitted. Payment if no actions pending. Persons not guilty for mental reasons deemed convicted. Time for filing action begins when escrow account established. Escrow moneys may be used for legal representation. Actions to avoid law null and void. Restitution—Disposition when victim dead or not found. Finding. Property subject to seizure and forfeiture. Seizure and forfeiture—Procedure. Seizure and forfeiture—Distribution of proceeds. Seizure and forfeiture—Remedies nondefeatable and supplemental. Washington state task force against the trafficking of persons. Human trafficking—Coordinated state agency protocols. Effective date—1973 1st ex.s. c 122. Severability—Construction—1977 ex.s. c 302. Section captions. Savings—Statute of limitations—1982 1st ex.s. c 8. Domestic violence, official response: Chapter 10.99 RCW. Victims of sexual assault, programs and plans in aid of: Chapter 70.125 RCW. 7.68.010 Intent. 7.68.010 Reviser’s note: RCW 7.68.010 was amended by 1989 c 12 § 1 without reference to its repeal by 1989 1st ex.s. c 5 § 14. It has been decodified for publication purposes pursuant to RCW 1.12.025. 7.68.015 Program to be operated within conditions and limitations. The department of labor and industries shall operate the crime victims’ compensation program within the appropriations and the conditions and limitations on the appropriations provided for this program. [1989 1st ex.s. c 5 § 1.] 7.68.015 Severability—1989 1st ex.s. c 5: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 1st ex.s. c 5 § 15.] Application—1989 1st ex.s. c 5: "Except as provided in section 4 of this act, sections 1 through 8 of this act shall apply to all claims filed on or after July 1, 1989." [1989 1st ex.s. c 5 § 16.] Effective dates—1989 1st ex.s. c 5: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and sections 3 and 7 of this act shall take effect immediately [May 14, 1989]. The remaining sections shall take effect July 1, 1989." [1989 1st ex.s. c 5 § 17.] 7.68.020 Definitions. The following words and phrases as used in this chapter have the meanings set forth in this section unless the context otherwise requires. 7.68.020 (2006 Ed.) 7.68.020 (1) "Department" means the department of labor and industries. (2) "Criminal act" means an act committed or attempted in this state which is: (a) Punishable as a federal offense that is comparable to a felony or gross misdemeanor in this state; (b) punishable as a felony or gross misdemeanor under the laws of this state; (c) an act committed outside the state of Washington against a resident of the state of Washington which would be compensable had it occurred inside this state and the crime occurred in a state which does not have a crime victims compensation program, for which the victim is eligible as set forth in the Washington compensation law; or (d) an act of terrorism as defined in 18 U.S.C. Sec. 2331, as it exists on May 2, 1997, committed outside of the United States against a resident of the state of Washington, except as follows: (i) The operation of a motor vehicle, motorcycle, train, boat, or aircraft in violation of law does not constitute a "criminal act" unless: (A) The injury or death was intentionally inflicted; (B) The operation thereof was part of the commission of another non-vehicular criminal act as defined in this section; (C) The death or injury was the result of the operation of a motor vehicle after July 24, 1983, and a preponderance of the evidence establishes that the death was the result of vehicular homicide under RCW 46.61.520, or a conviction of vehicular assault under RCW 46.61.522, has been obtained: PROVIDED, That in cases where a probable criminal defendant has died in perpetration of vehicular assault or, in cases where the perpetrator of the vehicular assault is unascertainable because he or she left the scene of the accident in violation of RCW 46.52.020 or, because of physical or mental infirmity or disability the perpetrator is incapable of standing trial for vehicular assault, the department may, by a preponderance of the evidence, establish that a vehicular assault had been committed and authorize benefits; (D) The injury or death was caused by a driver in violation of RCW 46.61.502; or (E) The injury or death was caused by a driver in violation of RCW 46.61.655(7)(a), failure to secure a load in the first degree; (ii) Neither an acquittal in a criminal prosecution nor the absence of any such prosecution is admissible in any claim or proceeding under this chapter as evidence of the noncriminal character of the acts giving rise to such claim or proceeding, except as provided for in (d)(i)(C) of this subsection; (iii) Evidence of a criminal conviction arising from acts which are the basis for a claim or proceeding under this chapter is admissible in such claim or proceeding for the limited purpose of proving the criminal character of the acts; and (iv) Acts which, but for the insanity or mental irresponsibility of the perpetrator, would constitute criminal conduct are deemed to be criminal conduct within the meaning of this chapter. (3) "Victim" means a person who suffers bodily injury or death as a proximate result of a criminal act of another person, the victim’s own good faith and reasonable effort to prevent a criminal act, or his or her good faith effort to apprehend a person reasonably suspected of engaging in a criminal act. For the purposes of receiving benefits pursuant to this chapter, "victim" is interchangeable with "employee" or [Title 7 RCW—page 65] 7.68.030 Title 7 RCW: Special Proceedings and Actions "worker" as defined in chapter 51.08 RCW as now or hereafter amended. (4) "Child," "accredited school," "dependent," "beneficiary," "average monthly wage," "director," "injury," "invalid," "permanent partial disability," and "permanent total disability" have the meanings assigned to them in chapter 51.08 RCW as now or hereafter amended. (5) "Gainfully employed" means engaging on a regular and continuous basis in a lawful activity from which a person derives a livelihood. (6) "Private insurance" means any source of recompense provided by contract available as a result of the claimed injury or death at the time of such injury or death, or which becomes available any time thereafter. (7) "Public insurance" means any source of recompense provided by statute, state or federal, available as a result of the claimed injury or death at the time of such injury or death, or which becomes available any time thereafter. [2006 c 268 § 1; 2002 c 10 § 3; 2001 c 136 § 1; 1997 c 249 § 1; 1990 c 73 § 1; 1987 c 281 § 6; 1985 c 443 § 11; 1983 c 239 § 4; 1980 c 156 § 2; 1977 ex.s. c 302 § 2; 1975 1st ex.s. c 176 § 1; 1973 1st ex.s. c 122 § 2.] Findings—Purpose—2002 c 10: "(1) The legislature finds that: (a) The trafficking in persons is a modern form of slavery, and it is the largest manifestation of slavery today; (b) At least seven hundred thousand persons annually, primarily women and children, are trafficked within or across international borders; (c) Approximately fifty thousand women and children are trafficked into the United States each year; (d) Trafficking in persons is not limited to the sex industry, and includes forced labor with significant violations of labor, public health, and human rights standards worldwide; (e) Traffickers primarily target women and girls, who are disproportionately affected by poverty, the lack of access to education, chronic unemployment, discrimination, and the lack of economic opportunities in countries of origin; and (f) There are not adequate services and facilities to meet the needs of trafficking victims regarding health care, housing, education, and legal assistance, which safely reintegrate trafficking victims into their home countries. (2) The legislature declares that the purpose of this act is to provide a coordinated, humane response for victims of human trafficking through a review of existing programs and clarification of existing options for such victims." [2002 c 10 § 1.] Application—1997 c 249: "This act is remedial in nature and applies to criminal acts that occur on April 1, 1997, and thereafter." [1997 c 249 § 2.] Effective date—1997 c 249: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 2, 1997]." [1997 c 249 § 3.] Effective date—1990 c 73: "This act shall take effect October 1, 1990." [1990 c 73 § 2.] Application—1987 c 281 § 6: "The 1987 amendments to RCW 7.68.020 by section 5 [6] of this act apply only to vehicular assault under RCW 46.61.522 or vehicular homicide under RCW 46.61.520 that occurs after June 30, 1987." [1987 c 281 § 7.] Effective date—1987 c 281: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect June 30, 1987." [1987 c 281 § 9.] Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. Legislative intent—"Public or private insurance"—1980 c 156: "Sections 2 through 4 of this 1980 act are required to clarify the legislative intent concerning the phrase "public or private insurance" as used in section 13, chapter 122, Laws of 1973 1st ex. sess. and RCW 7.68.130 which was the subject of Wagner v. Labor & Indus., 92 Wn.2d 463 (1979). It has continuously been the legislative intent to include as "public insurance" both state and federal statutory social welfare and insurance schemes which make [Title 7 RCW—page 66] available to victims or their beneficiaries recompense as a result of the claimed injury or death, such as but not limited to old age and survivors insurance, medicare, medicaid, benefits under the veterans’ benefits act, longshore and harbor workers act, industrial insurance act, law enforcement officers’ and fire fighters’ retirement system act, Washington public employees’ retirement system act, teachers’ retirement system act, and firemen’s relief and pension act. "Private insurance" continuously has been intended to include sources of recompense available by contract, such as but not limited to policies insuring a victim’s life or disability." [1980 c 156 § 1.] 7.68.030 Duties of department—General provisions. It shall be the duty of the director to establish and administer a program of benefits to innocent victims of criminal acts within the terms and limitations of this chapter. In so doing, the director shall, in accordance with chapter 34.05 RCW, adopt rules and regulations necessary to the administration of this chapter, and the provisions contained in chapter 51.04 RCW, including but not limited to RCW 51.04.020, 51.04.030, 51.04.040, 51.04.050 and 51.04.100 as now or hereafter amended, shall apply where appropriate in keeping with the intent of this chapter. The director may apply for and, subject to appropriation, expend federal funds under Public Law 98-473 and any other federal program providing financial assistance to state crime victim compensation programs. The federal funds shall be deposited in the public safety and education account in the general fund and may be expended only for purposes authorized by applicable federal law. [1989 1st ex.s. c 5 § 2; 1985 c 443 § 12; 1973 1st ex.s. c 122 § 3.] 7.68.030 Severability—Application—Effective dates—1989 1st ex.s. c 5: See notes following RCW 7.68.015. Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. 7.68.035 Penalty assessments in addition to fine or bail forfeiture—Distribution—Establishment of crime victim and witness programs in county—Contribution required from cities and towns. (1)(a) When any person is found guilty in any superior court of having committed a crime, except as provided in subsection (2) of this section, there shall be imposed by the court upon such convicted person a penalty assessment. The assessment shall be in addition to any other penalty or fine imposed by law and shall be five hundred dollars for each case or cause of action that includes one or more convictions of a felony or gross misdemeanor and two hundred fifty dollars for any case or cause of action that includes convictions of only one or more misdemeanors. (b) When any juvenile is adjudicated of any offense in any juvenile offense disposition under Title 13 RCW, except as provided in subsection (2) of this section, there shall be imposed upon the juvenile offender a penalty assessment. The assessment shall be in addition to any other penalty or fine imposed by law and shall be one hundred dollars for each case or cause of action that includes one or more adjudications for a felony or gross misdemeanor and seventy-five dollars for each case or cause of action that includes adjudications of only one or more misdemeanors. (2) The assessment imposed by subsection (1) of this section shall not apply to motor vehicle crimes defined in Title 46 RCW except those defined in the following sections: RCW 46.61.520, 46.61.522, 46.61.024, 46.52.090, 46.70.140, 46.61.502, 46.61.504, 46.52.101, 46.20.410, 46.52.020, 46.10.130, 46.09.130, 46.61.5249, 46.61.525, 7.68.035 (2006 Ed.) Victims of Crimes—Compensation, Assistance 46.61.685, 46.61.530, 46.61.500, 46.61.015, 46.52.010, 46.44.180, 46.10.090(2), and 46.09.120(2). (3) When any person accused of having committed a crime posts bail in superior court pursuant to the provisions of chapter 10.19 RCW and such bail is forfeited, there shall be deducted from the proceeds of such forfeited bail a penalty assessment, in addition to any other penalty or fine imposed by law, equal to the assessment which would be applicable under subsection (1) of this section if the person had been convicted of the crime. (4) Such penalty assessments shall be paid by the clerk of the superior court to the county treasurer who shall monthly transmit the money as provided in RCW 10.82.070. Each county shall deposit fifty percent of the money it receives per case or cause of action under subsection (1) of this section and retains under RCW 10.82.070, not less than one and seventy-five one-hundredths percent of the remaining money it retains under RCW 10.82.070 and the money it retains under chapter 3.62 RCW, and all money it receives under subsection (7) of this section into a fund maintained exclusively for the support of comprehensive programs to encourage and facilitate testimony by the victims of crimes and witnesses to crimes. A program shall be considered "comprehensive" only after approval of the department upon application by the county prosecuting attorney. The department shall approve as comprehensive only programs which: (a) Provide comprehensive services to victims and witnesses of all types of crime with particular emphasis on serious crimes against persons and property. It is the intent of the legislature to make funds available only to programs which do not restrict services to victims or witnesses of a particular type or types of crime and that such funds supplement, not supplant, existing local funding levels; (b) Are administered by the county prosecuting attorney either directly through the prosecuting attorney’s office or by contract between the county and agencies providing services to victims of crime; (c) Make a reasonable effort to inform the known victim or his surviving dependents of the existence of this chapter and the procedure for making application for benefits; (d) Assist victims in the restitution and adjudication process; and (e) Assist victims of violent crimes in the preparation and presentation of their claims to the department of labor and industries under this chapter. Before a program in any county west of the Cascade mountains is submitted to the department for approval, it shall be submitted for review and comment to each city within the county with a population of more than one hundred fifty thousand. The department will consider if the county’s proposed comprehensive plan meets the needs of crime victims in cases adjudicated in municipal, district or superior courts and of crime victims located within the city and county. (5) Upon submission to the department of a letter of intent to adopt a comprehensive program, the prosecuting attorney shall retain the money deposited by the county under subsection (4) of this section until such time as the county prosecuting attorney has obtained approval of a program from the department. Approval of the comprehensive plan by the department must be obtained within one year of the date (2006 Ed.) 7.68.035 of the letter of intent to adopt a comprehensive program. The county prosecuting attorney shall not make any expenditures from the money deposited under subsection (4) of this section until approval of a comprehensive plan by the department. If a county prosecuting attorney has failed to obtain approval of a program from the department under subsection (4) of this section or failed to obtain approval of a comprehensive program within one year after submission of a letter of intent under this section, the county treasurer shall monthly transmit one hundred percent of the money deposited by the county under subsection (4) of this section to the state treasurer for deposit in the public safety and education account established under RCW 43.08.250. (6) County prosecuting attorneys are responsible to make every reasonable effort to insure that the penalty assessments of this chapter are imposed and collected. (7) Every city and town shall transmit monthly one and seventy-five one-hundredths percent of all money, other than money received for parking infractions, retained under RCW 3.46.120, 3.50.100, and 35.20.220 to the county treasurer for deposit as provided in subsection (4) of this section. [2000 c 71 § 3; 1999 c 86 § 1; 1997 c 66 § 9; 1996 c 122 § 2; 1991 c 293 § 1; 1989 c 252 § 29; 1987 c 281 § 1; 1985 c 443 § 13; 1984 c 258 § 311; 1983 c 239 § 1; 1982 1st ex.s. c 8 § 1; 1977 ex.s. c 302 § 10.] Effective date—2000 c 71: See note following RCW 13.40.198. Findings—Intent—1996 c 122: "The legislature finds that current funding for county victim-witness advocacy programs is inadequate. Also, the state crime victims compensation program should be enhanced to provide for increased benefits to families of victims who are killed as a result of a criminal act. It is the intent of the legislature to provide increased financial support for the county and state crime victim and witness programs by requiring offenders to pay increased penalty assessments upon conviction of a gross misdemeanor or felony crime. The increased financial support is intended to allow county victim/witness programs to more fully assist victims and witnesses through the criminal justice processes. On the state level, the increased funds will allow the remedial intent of the crime victims compensation program to be more fully served. Specifically, the increased funds from offender penalty assessments will allow more appropriate compensation for families of victims who are killed as a result of a criminal act, including reasonable burial benefits." [1996 c 122 § 1.] Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. Effective date—1987 c 281: See note following RCW 7.68.020. Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Intent—1984 c 258: See note following RCW 3.46.120. Effective dates—1982 1st ex.s. c 8: "Chapter 8, Laws of 1982 1st ex. sess. is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately [March 27, 1982], except sections 2, 3, and 6 of chapter 8, Laws of 1982 1st ex. sess. shall take effect on January 1, 1983." [1982 1st ex.s. c 47 § 29; 1982 1st ex.s. c 8 § 9.] Intent—Reports—1982 1st ex.s. c 8: "The intent of the legislature is that the victim of crime program will be self-funded. Toward that end, the department of labor and industries shall not pay benefits beyond the resources of the account. The department of labor and industries and the administrator for the courts shall cooperatively prepare a report on the collection of penalty assessments and the level of expenditures, and recommend adjustments to the revenue collection mechanism to the legislature before January 1, 1983. It is further the intent of the legislature that the percentage of funds devoted to comprehensive programs for victim assistance, as provided in RCW 7.68.035, be re-examined to ensure that it does not unreasonably conflict with the higher priority of compensating victims. To that end, the county prosecuting attorneys shall report to the legislature no later than [Title 7 RCW—page 67] 7.68.050 Title 7 RCW: Special Proceedings and Actions January 1, 1984, either individually or as a group, on their experience and costs associated with such programs, describing the nature and extent of the victim assistance provided." [1982 1st ex.s. c 8 § 10.] 7.68.050 7.68.050 Right of action for damages—Election— Effect of election or recovery—Lien of state. (1) No right of action at law for damages incurred as a consequence of a criminal act shall be lost as a consequence of being entitled to benefits under the provisions of this chapter. The victim or his beneficiary may elect to seek damages from the person or persons liable for the claimed injury or death, and such victim or beneficiary is entitled to the full compensation and benefits provided by this chapter regardless of any election or recovery made pursuant to this section. (2) For the purposes of this section, the rights, privileges, responsibilities, duties, limitations, and procedures contained in RCW 51.24.050 through 51.24.110 apply. (3) If the recovery involved is against the state, the lien of the department includes the interest on the benefits paid by the department to or on behalf of such person under this chapter computed at the rate of eight percent per annum from the date of payment. (4) The 1980 amendments to this section apply only to injuries which occur on or after April 1, 1980. [1998 c 91 § 1; 1980 c 156 § 3; 1977 ex.s. c 302 § 3; 1973 1st ex.s. c 122 § 5.] Legislative intent—"Public or private insurance"—1980 c 156: See note following RCW 7.68.020. the age of eighteen, the rights of adult victims of childhood criminal acts shall accrue at the time the victim discovers or reasonably should have discovered the elements of the crime. In making determinations as to reasonable time limits, the department shall give greatest weight to the needs of the victim. (4) A right to benefits under this chapter is available to any victim of a person against whom the state initiates proceedings under chapter 71.09 RCW. The right created under this subsection shall accrue when the victim is notified of proceedings under chapter 71.09 RCW or the victim is interviewed, deposed, or testifies as a witness in connection with the proceedings. An application for benefits under this subsection must be received by the department within two years after the date the victim’s right accrued unless the director determines that good cause exists to expand the time to receive the application. The director shall determine "good cause" on a case-by-case basis and may extend the period of time in which an application can be received for up to five years after the date the right of the victim accrued. Benefits under this subsection shall be limited to compensation for costs or losses incurred on or after the date the victim’s right accrues for a claim allowed under this subsection. [2001 c 153 § 1; 1996 c 122 § 4; 1990 c 3 § 501; 1986 c 98 § 1; 1985 c 443 § 14; 1977 ex.s. c 302 § 4; 1975 1st ex.s. c 176 § 2; 1973 1st ex.s. c 122 § 6.] Findings—Intent—1996 c 122: See note following RCW 7.68.035. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 7.68.060 7.68.060 Applications for benefits—Accrual of rights. (1) For the purposes of applying for benefits under this chapter, the rights, privileges, responsibilities, duties, limitations and procedures contained in RCW 51.28.020, 51.28.030, 51.28.040 and 51.28.060 shall apply: PROVIDED, That except for applications received pursuant to subsection (4) of this section, no compensation of any kind shall be available under this chapter if: (a) An application for benefits is not received by the department within two years after the date the criminal act was reported to a local police department or sheriff’s office or the date the rights of dependents or beneficiaries accrued, unless the director has determined that "good cause" exists to expand the time permitted to receive the application. "Good cause" shall be determined by the department on a case-bycase basis and may extend the period of time in which an application can be received for up to five years after the date the criminal act was reported to a local police department or sheriff’s office or the date the rights of dependents or beneficiaries accrued; or (b) The criminal act is not reported by the victim or someone on his or her behalf to a local police department or sheriff’s office within twelve months of its occurrence or, if it could not reasonably have been reported within that period, within twelve months of the time when a report could reasonably have been made. In making determinations as to reasonable time limits, the department shall give greatest weight to the needs of the victims. (2) This section shall apply only to criminal acts reported after December 31, 1985. (3) Because victims of childhood criminal acts may repress conscious memory of such criminal acts far beyond [Title 7 RCW—page 68] Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. 7.68.070 7.68.070 Benefits—Right to and amount—Limitations. The right to benefits under this chapter and the amount thereof will be governed insofar as is applicable by the provisions contained in chapter 51.32 RCW except as provided in this section: (1) The provisions contained in RCW 51.32.015, 51.32.030, 51.32.072, 51.32.073, 51.32.180, 51.32.190, and 51.32.200 are not applicable to this chapter. (2) Each victim injured as a result of a criminal act, including criminal acts committed between July 1, 1981, and January 1, 1983, or the victim’s family or dependents in case of death of the victim, are entitled to benefits in accordance with this chapter, subject to the limitations under RCW 7.68.015. The rights, duties, responsibilities, limitations, and procedures applicable to a worker as contained in RCW 51.32.010 are applicable to this chapter. (3) The limitations contained in RCW 51.32.020 are applicable to claims under this chapter. In addition thereto, no person or spouse, child, or dependent of such person is entitled to benefits under this chapter when the injury for which benefits are sought, was: (a) The result of consent, provocation, or incitement by the victim, unless an injury resulting from a criminal act caused the death of the victim; (b) Sustained while the crime victim was engaged in the attempt to commit, or the commission of, a felony; or (c) Sustained while the victim was confined in any county or city jail, federal jail or prison or in any other federal institution, or any state correctional institution maintained (2006 Ed.) Victims of Crimes—Compensation, Assistance and operated by the department of social and health services or the department of corrections, prior to release from lawful custody; or confined or living in any other institution maintained and operated by the department of social and health services or the department of corrections. (4) The benefits established upon the death of a worker and contained in RCW 51.32.050 shall be the benefits obtainable under this chapter and provisions relating to payment contained in that section shall equally apply under this chapter: PROVIDED, That benefits for burial expenses shall not exceed the amount paid by the department in case of the death of a worker as provided in chapter 51.32 RCW in any claim: PROVIDED FURTHER, That if the criminal act results in the death of a victim who was not gainfully employed at the time of the criminal act, and who was not so employed for at least three consecutive months of the twelve months immediately preceding the criminal act; (a) Benefits payable to an eligible surviving spouse, where there are no children of the victim at the time of the criminal act who have survived the victim or where such spouse has legal custody of all of his or her children, shall be limited to burial expenses and a lump sum payment of seven thousand five hundred dollars without reference to number of children, if any; (b) Where any such spouse has legal custody of one or more but not all of such children, then such burial expenses shall be paid, and such spouse shall receive a lump sum payment of three thousand seven hundred fifty dollars and any such child or children not in the legal custody of such spouse shall receive a lump sum of three thousand seven hundred fifty dollars to be divided equally among such child or children; (c) If any such spouse does not have legal custody of any of the children, the burial expenses shall be paid and the spouse shall receive a lump sum payment of up to three thousand seven hundred fifty dollars and any such child or children not in the legal custody of the spouse shall receive a lump sum payment of up to three thousand seven hundred fifty dollars to be divided equally among the child or children; (d) If no such spouse survives, then such burial expenses shall be paid, and each surviving child of the victim at the time of the criminal act shall receive a lump sum payment of three thousand seven hundred fifty dollars up to a total of two such children and where there are more than two such children the sum of seven thousand five hundred dollars shall be divided equally among such children. No other benefits may be paid or payable under these circumstances. (5) The benefits established in RCW 51.32.060 for permanent total disability proximately caused by the criminal act shall be the benefits obtainable under this chapter, and provisions relating to payment contained in that section apply under this chapter: PROVIDED, That if a victim becomes permanently and totally disabled as a proximate result of the criminal act and was not gainfully employed at the time of the criminal act, the victim shall receive monthly during the period of the disability the following percentages, where applicable, of the average monthly wage determined as of the date of the criminal act pursuant to RCW 51.08.018: (2006 Ed.) 7.68.070 (a) If married at the time of the criminal act, twenty-nine percent of the average monthly wage. (b) If married with one child at the time of the criminal act, thirty-four percent of the average monthly wage. (c) If married with two children at the time of the criminal act, thirty-eight percent of the average monthly wage. (d) If married with three children at the time of the criminal act, forty-one percent of the average monthly wage. (e) If married with four children at the time of the criminal act, forty-four percent of the average monthly wage. (f) If married with five or more children at the time of the criminal act, forty-seven percent of the average monthly wage. (g) If unmarried at the time of the criminal act, twentyfive percent of the average monthly wage. (h) If unmarried with one child at the time of the criminal act, thirty percent of the average monthly wage. (i) If unmarried with two children at the time of the criminal act, thirty-four percent of the average monthly wage. (j) If unmarried with three children at the time of the criminal act, thirty-seven percent of the average monthly wage. (k) If unmarried with four children at the time of the criminal act, forty percent of the average monthly wage. (l) If unmarried with five or more children at the time of the criminal act, forty-three percent of the average monthly wage. (6) The benefits established in RCW 51.32.080 for permanent partial disability shall be the benefits obtainable under this chapter, and provisions relating to payment contained in that section equally apply under this chapter. (7) The benefits established in RCW 51.32.090 for temporary total disability shall be the benefits obtainable under this chapter, and provisions relating to payment contained in that section apply under this chapter: PROVIDED, That no person is eligible for temporary total disability benefits under this chapter if such person was not gainfully employed at the time of the criminal act, and was not so employed for at least three consecutive months of the twelve months immediately preceding the criminal act. (8) The benefits established in RCW 51.32.095 for continuation of benefits during vocational rehabilitation shall be benefits obtainable under this chapter, and provisions relating to payment contained in that section apply under this chapter: PROVIDED, That benefits shall not exceed five thousand dollars for any single injury. (9) The provisions for lump sum payment of benefits upon death or permanent total disability as contained in RCW 51.32.130 apply under this chapter. (10) The provisions relating to payment of benefits to, for or on behalf of workers contained in RCW 51.32.040, 51.32.055, 51.32.100, 51.32.110, 51.32.120, 51.32.135, 51.32.140, 51.32.150, 51.32.160, and 51.32.210 are applicable to payment of benefits to, for or on behalf of victims under this chapter. (11) No person or spouse, child, or dependent of such person is entitled to benefits under this chapter where the person making a claim for such benefits has refused to give reasonable cooperation to state or local law enforcement agencies in their efforts to apprehend and convict the perpetrator(s) of the criminal act which gave rise to the claim. [Title 7 RCW—page 69] 7.68.075 Title 7 RCW: Special Proceedings and Actions (12) In addition to other benefits provided under this chapter, victims of sexual assault are entitled to receive appropriate counseling. Fees for such counseling shall be determined by the department in accordance with RCW 51.04.030, subject to the limitations of RCW 7.68.080. Counseling services may include, if determined appropriate by the department, counseling of members of the victim’s immediate family, other than the perpetrator of the assault. (13) Except for medical benefits authorized under RCW 7.68.080, no more than thirty thousand dollars shall be granted as a result of a single injury or death, except that benefits granted as the result of total permanent disability or death shall not exceed forty thousand dollars. (14) Notwithstanding other provisions of this chapter and Title 51 RCW, benefits payable for total temporary disability under subsection (7) of this section, shall be limited to fifteen thousand dollars. (15) Any person who is responsible for the victim’s injuries, or who would otherwise be unjustly enriched as a result of the victim’s injuries, shall not be a beneficiary under this chapter. (16) Crime victims’ compensation is not available to pay for services covered under chapter 74.09 RCW or Title XIX of the federal social security act, except to the extent that the costs for such services exceed service limits established by the department of social and health services or, during the 1993-95 fiscal biennium, to the extent necessary to provide matching funds for federal medicaid reimbursement. (17) In addition to other benefits provided under this chapter, immediate family members of a homicide victim may receive appropriate counseling to assist in dealing with the immediate, near-term consequences of the related effects of the homicide. Fees for counseling shall be determined by the department in accordance with RCW 51.04.030, subject to the limitations of RCW 7.68.080. Payment of counseling benefits under this section may not be provided to the perpetrator of the homicide. The benefits under this subsection may be provided only with respect to homicides committed on or after July 1, 1992. (18) A dependent mother, father, stepmother, or stepfather, as defined in RCW 51.08.050, who is a survivor of her or his child’s homicide, who has been requested by a law enforcement agency or a prosecutor to assist in the judicial proceedings related to the death of the victim, and who is not domiciled in Washington state at the time of the request, may receive a lump-sum payment upon arrival in this state. Total benefits under this subsection may not exceed seven thousand five hundred dollars. If more than one dependent parent is eligible for this benefit, the lump-sum payment of seven thousand five hundred dollars shall be divided equally among the dependent parents. [2002 c 54 § 1; 1996 c 122 § 5; 1993 sp.s. c 24 § 912; 1992 c 203 § 1; 1990 c 3 § 502; 1989 1st ex.s. c 5 § 5; 1989 c 12 § 2; 1987 c 281 § 8; 1985 c 443 § 15; 1983 c 239 § 2; 1982 1st ex.s. c 8 § 2; 1981 1st ex.s. c 6 § 26; 1977 ex.s. c 302 § 5; 1975 1st ex.s. c 176 § 3; 1973 1st ex.s. c 122 § 7.] Findings—Intent—1996 c 122: See note following RCW 7.68.035. Severability—Effective dates—1993 sp.s. c 24: See notes following RCW 28A.310.020. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. [Title 7 RCW—page 70] Severability—Application—Effective dates—1989 1st ex.s. c 5: See notes following RCW 7.68.015. Effective date—1987 c 281: See note following RCW 7.68.020. Application—1985 c 443 § 15: "The amendments to RCW 7.68.070 by this act apply only to criminal acts occurring after December 31, 1985." [1986 c 98 § 3; 1985 c 443 § 17.] Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. Effective dates—Intent—Reports—1982 1st ex.s. c 8: See notes following RCW 7.68.035. Effective date—Severability—1981 1st ex.s. c 6: See notes following RCW 74.04.005. 7.68.075 Marital status—Payment for or on account of children. Notwithstanding the provisions of any of the sections, as now or hereafter amended, of Title 51 RCW which are made applicable to this chapter, the marital status of all victims shall be deemed to be fixed as of the date of the criminal act. All references to the child or children living or conceived of the victim in this chapter shall be deemed to refer to such child or children as of the date of the criminal act unless the context clearly indicates the contrary. Payments for or on account of any such child or children shall cease when such child is no longer a "child" as defined in RCW 51.08.030, as now or hereafter amended, or on the death of any such child whichever occurs first. Payments to the victim or surviving spouse for or on account of any such child or children shall be made only when the victim or surviving spouse has legal custody of any such child or children. Where the victim or surviving spouse does not have such legal custody any payments for or on account of any such child or children shall be made to the person having legal custody of such child or children and the amount of payments shall be subtracted from the payments which would have been due the victim or surviving spouse had legal custody not been transferred to another person. [1977 ex.s. c 302 § 6; 1975 1st ex.s. c 176 § 9.] 7.68.075 7.68.080 Medical aid—Construction. The provisions of chapter 51.36 RCW as now or hereafter amended govern the provision of medical aid under this chapter to victims injured as a result of a criminal act, including criminal acts committed between July 1, 1981, and January 1, 1983, except that: (1) The provisions contained in RCW 51.36.030, 51.36.040, and 51.36.080 as now or hereafter amended do not apply to this chapter; (2) The specific provisions of RCW 51.36.020 as now or hereafter amended relating to supplying emergency transportation do not apply: PROVIDED, That: (a) When the injury to any victim is so serious as to require the victim’s being taken from the place of injury to a place of treatment, reasonable transportation costs to the nearest place of proper treatment shall be reimbursed from the fund established pursuant to RCW 7.68.090; and (b) In the case of alleged rape or molestation of a child the reasonable costs of a colposcope examination shall be reimbursed from the fund pursuant to RCW 7.68.090. Hospital, clinic, and medical charges along with all related fees under this chapter shall conform to regulations promulgated by the director. The director shall set these service levels and fees at a level no lower than those established by the depart7.68.080 (2006 Ed.) Victims of Crimes—Compensation, Assistance ment of social and health services under Title 74 RCW. In establishing fees for medical and other health care services, the director shall consider the director’s duty to purchase health care in a prudent, cost-effective manner. The director shall establish rules adopted in accordance with chapter 34.05 RCW. Nothing in this chapter may be construed to require the payment of interest on any billing, fee, or charge. [1990 c 3 § 503; 1989 1st ex.s. c 5 § 6; 1986 c 98 § 2; 1983 c 239 § 3; 1981 1st ex.s. c 6 § 27; 1975 1st ex.s. c 176 § 4; 1973 1st ex.s. c 122 § 8.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Severability—Application—Effective dates—1989 1st ex.s. c 5: See notes following RCW 7.68.015. Effective date—Severability—1981 1st ex.s. c 6: See notes following RCW 74.04.005. 7.68.120 The director shall, in cooperation with the department of social and health services, establish by October 1, 1989, a process to aid crime victims in identifying and applying for appropriate alternative benefit programs, if any, administered by the department of social and health services. [1990 c 3 § 504; 1989 1st ex.s. c 5 § 3.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Application—Transition plans—1989 1st ex.s. c 5 § 3: "The cap on medical benefits established by section 3 of this act shall apply equally to current and future recipients of crime victims’ compensation benefits. The director shall prepare individual transition plans for individuals who exceed the medical benefit cap on July 1, 1989. The transition plans must be completed within ninety days of July 1, 1989." [1989 1st ex.s. c 5 § 4.] Severability—Application—Effective dates—1989 1st ex.s. c 5: See notes following RCW 7.68.015. 7.68.090 7.68.085 7.68.085 Cap on medical benefits—Alternative programs—Plan for reduction of expenditures. The director of labor and industries shall institute a cap on medical benefits of one hundred fifty thousand dollars per injury or death. Payment for medical services in excess of the cap shall be made available to any innocent victim under the same conditions as other medical services and if the medical services are: (1) Necessary for a previously accepted condition; (2) Necessary to protect the victim’s life or prevent deterioration of the victim’s previously accepted condition; and (3) Not available from an alternative source. The director of financial management and the director of labor and industries shall monitor expenditures from the public safety and education account. Once each fiscal quarter, the director of financial management shall determine if expenditures from the public safety and education account during the prior fiscal quarter exceeded allotments by more than ten percent. Within thirty days of a determination that expenditures exceeded allotments by more than ten percent, the director of financial management shall develop and implement a plan to reduce expenditures from the account to a level that does not exceed the allotments. Such a plan may include across-theboard reductions in allotments from the account to all nonjudicial agencies except for the crime victims compensation program. In implementing the plan, the director of financial management shall seek the cooperation of judicial agencies in reducing their expenditures from the account. The director of financial management shall notify the legislative fiscal committees prior to implementation of the plan. Development and implementation of the plan is not required if the director of financial management notifies the legislative fiscal committees that increases in the official revenue forecast for the public safety and education account for that fiscal quarter will eliminate the need to reduce expenditures from the account. The official revenue forecast for the public safety and education account shall be prepared by the economic and revenue forecast council pursuant to RCW 82.33.020 and 82.33.010. For the purposes of this section, an individual will not be required to use his or her assets other than funds recovered as a result of a civil action or criminal restitution, for medical expenses or pain and suffering, in order to qualify for an alternative source of payment. (2006 Ed.) 7.68.090 Establishment of funds. The director shall establish such fund or funds, separate from existing funds, necessary to administer this chapter, and payment to these funds shall be from legislative appropriation, statutory provision, reimbursement and subrogation as provided in this chapter, and from any contributions or grants specifically so directed. [1995 c 234 § 3; 1973 1st ex.s. c 122 § 9.] Finding—1995 c 234: See note following RCW 72.09.095. 7.68.100 7.68.100 Physicians’ reporting. The requirements relating to physicians’ reporting contained in RCW 51.36.060 and 51.48.060 as now or hereafter amended shall apply under this chapter. Any funds collected pursuant to RCW 51.48.060 as now or hereafter amended shall be paid into the fund established pursuant to RCW 7.68.090. [1973 1st ex.s. c 122 § 10.] 7.68.110 7.68.110 Appeals. The provisions contained in chapter 51.52 RCW relating to appeals shall govern appeals under this chapter: PROVIDED, That no provision contained in chapter 51.52 RCW concerning employers as parties to any settlement, appeal, or other action shall apply to this chapter: PROVIDED FURTHER, That appeals taken from a decision of the board of industrial insurance appeals under this chapter shall be governed by the provisions relating to judicial review of administrative decisions contained in RCW 34.05.510 through 34.05.598, and the department shall have the same right of review from a decision of the board of industrial insurance appeals as does the claimant: PROVIDED FURTHER, That the time in which to file a protest or appeal from any order, decision, or award under this chapter shall be ninety days from the date the order, decision, or award is communicated to the parties. [1997 c 102 § 1; 1989 c 175 § 40; 1977 ex.s. c 302 § 7; 1975 1st ex.s. c 176 § 5; 1973 1st ex.s. c 122 § 11.] Effective date—1989 c 175: See note following RCW 34.05.010. 7.68.120 7.68.120 Reimbursement—Restitution to victim— Notice—Fees—Order to withhold and deliver—Limitation. Any person who has committed a criminal act which resulted in injury compensated under this chapter may be required to make reimbursement to the department as provided in this section. [Title 7 RCW—page 71] 7.68.125 Title 7 RCW: Special Proceedings and Actions (1) Any payment of benefits to or on behalf of a victim under this chapter creates a debt due and owing to the department by any person found to have committed the criminal act in either a civil or criminal court proceeding in which he or she is a party. If there has been a superior or district court order, or an order of the indeterminate sentence review board or the department of social and health services, as provided in subsection (4) of this section, the debt shall be limited to the amount provided for in the order. A court order shall prevail over any other order. If, in a criminal proceeding, a person has been found to have committed the criminal act that results in the payment of benefits to a victim and the court in the criminal proceeding does not enter a restitution order, the department shall, within one year of imposition of the sentence, petition the court for entry of a restitution order. (2)(a) The department may issue a notice of debt due and owing to the person found to have committed the criminal act, and shall serve the notice on the person in the manner prescribed for the service of a summons in a civil action or by certified mail. The department shall file the notice of debt due and owing along with proof of service with the superior court of the county where the criminal act took place. The person served the notice shall have thirty days from the date of service to respond to the notice by requesting a hearing in superior court. (b) If a person served a notice of debt due and owing fails to respond within thirty days, the department may seek a default judgment. Upon entry of a judgment in an action brought pursuant to (a) of this subsection, the clerk shall enter the order in the execution docket. The filing fee shall be added to the amount of the debt indicated in the judgment. The judgment shall become a lien upon all real and personal property of the person named in the judgment as in other civil cases. The judgment shall be subject to execution, garnishment, or other procedures for collection of a judgment. (3)(a) The director, or the director’s designee, may issue to any person or organization an order to withhold and deliver property of any kind if there is reason to believe that the person or organization possesses property that is due, owing, or belonging to any person against whom a judgment for a debt due and owing has been entered under subsection (2) of this section. For purposes of this subsection, "person or organization" includes any individual, firm, association, corporation, political subdivision of the state, or agency of the state. (b) The order to withhold and deliver must be served in the manner prescribed for the service of a summons in a civil action or by certified mail, return receipt requested. Any person or organization upon whom service has been made shall answer the order within twenty days exclusive of the day of service, under oath and in writing, and shall make true answers to the matters inquired of therein. (c) If there is in the possession of the person or organization served with the order any property that might be subject to the claim of the department, the person or organization must immediately withhold such property and deliver the property to the director or the director’s authorized representative immediately upon demand. (d) If the person or organization served the order fails to timely answer the order, the court may render judgment by default against the person or organization for the full amount claimed by the director in the order plus costs. [Title 7 RCW—page 72] (e) If an order to withhold and deliver is served upon an employer and the property found to be subject to the notice is wages, the employer may assert in the answer all exemptions to which the wage earner might be entitled as provided by RCW 6.27.150. (4) Upon being placed on work release pursuant to chapter 72.65 RCW, or upon release from custody of a state correctional facility on parole, any convicted person who owes a debt to the department as a consequence of a criminal act may have the schedule or amount of payments therefor set as a condition of work release or parole by the department of social and health services or indeterminate sentence review board respectively, subject to modification based on change of circumstances. Such action shall be binding on the department. (5) Any requirement for payment due and owing the department by a convicted person under this chapter may be waived, modified downward or otherwise adjusted by the department in the interest of justice, the well-being of the victim, and the rehabilitation of the individual. (6) The department shall not seek payment for a debt due and owing if such action would deprive the victim of the crime giving rise to the claim under this chapter of the benefit of any property to which the victim would be entitled under RCW 26.16.030. [1995 c 33 § 1; 1973 1st ex.s. c 122 § 12.] 7.68.125 7.68.125 Erroneous or fraudulent payment—Repayment, when—Order contending a debt due—Filing— Fee—Service—Penalty. (1) Whenever any payment under this chapter is made because of clerical error, mistake of identity, innocent misrepresentation by or on behalf of the recipient thereof mistakenly acted upon, or any other circumstance of a similar nature, all not induced by fraud, the recipient thereof shall repay it and recoupment may be made from any future payments due to the recipient under this chapter. The department must make claim for such repayment or recoupment within one year of the making of any such payment or it will be deemed that any claim therefor has been waived. The department may exercise its discretion to waive, in whole or in part, the amount of any such timely claim. (2) Whenever any payment under this chapter has been made pursuant to an adjudication by the department, board, or any court and timely appeal therefrom has been made and the final decision is that any such payment was made pursuant to an erroneous adjudication, the recipient thereof shall repay it and recoupment may be made from any future payments due to the recipient under this chapter. The department may exercise its discretion to waive, in whole or in part, the amount thereof. (3) Whenever any payment under this chapter has been induced by fraud the recipient thereof shall repay any such payment together with a penalty of fifty percent of the total of any such payments and the amount of such total sum may be recouped from any future payments due to the recipient under this chapter and the amount of the penalty shall be placed in the fund or funds established pursuant to RCW 7.68.090. (4) If the department issues an order contending a debt due and owing under this section, the order is subject to chapter 51.52 RCW. If the order becomes final under chapter 51.52 RCW, the director or the director’s designee may file with the clerk of any county within the state a warrant in the (2006 Ed.) Victims of Crimes—Compensation, Assistance amount stated in the order plus interest accruing from the date the order became final. The clerk of the county in which the warrant is filed shall immediately enter the warrant in the execution docket. The amount of the warrant as docketed becomes a lien upon all real and personal property of the person against whom the warrant is issued, the same as a judgment in a civil case. The warrant shall then be subject to execution, garnishment, and other procedures for the collection of judgments. The filing fee must be added to the amount of the warrant. The department shall mail a conformed copy of the warrant to the person named within seven working days of filing with the clerk. (5)(a) The director, or the director’s designee, may issue to any person or organization an order to withhold and deliver property of any kind if there is reason to believe that the person or organization possesses property that is due, owing, or belonging to any person against whom a final order of debt due and owing has been entered. For purposes of this subsection, "person or organization" includes any individual, firm, association, corporation, political subdivision of the state, or agency of the state. (b) The order to withhold and deliver must be served in the manner prescribed for the service of a summons in a civil action or by certified mail, return receipt requested. Any person or organization upon whom service has been made shall answer the order within twenty days exclusive of the day of service, under oath and in writing, and shall make true answers to the matters inquired of therein. (c) If there is in the possession of the person or organization served with the order any property that might be subject to the claim of the department, the person or organization must immediately withhold such property and deliver the property to the director or the director’s authorized representative immediately upon demand. (d) If the person or organization served the order fails to timely answer the order, the court may render judgment by default against the person or organization for the full amount claimed by the director in the order plus costs. (e) If an order to withhold and deliver is served upon an employer and the property found to be subject to the notice is wages, the employer may assert in the answer all exemptions to which the wage earner might be entitled as provided by RCW 6.27.150. [1995 c 33 § 2; 1975 1st ex.s. c 176 § 8.] 7.68.130 Public or private insurance—Attorneys’ fees and costs of victim. (1) Benefits payable pursuant to this chapter shall be reduced by the amount of any other public or private insurance available, less a proportionate share of reasonable attorneys’ fees and costs, if any, incurred by the victim in obtaining recovery from the insurer. Calculation of a proportionate share of attorneys’ fees and costs shall be made under the formula established in RCW 51.24.060. The department or the victim may require court approval of costs and attorneys’ fees or may petition a court for determination of the reasonableness of costs and attorneys’ fees. (2) Benefits payable after 1980 to victims injured or killed before 1980 shall be reduced by any other public or private insurance including but not limited to social security. (3) Payment by the department under this chapter shall be secondary to other insurance benefits, notwithstanding the provision of any contract or coverage to the contrary. In the 7.68.130 (2006 Ed.) 7.68.150 case of private life insurance proceeds, the first forty thousand dollars of the proceeds shall not be considered for purposes of any reduction in benefits. (4) For the purposes of this section, the collection methods available under RCW 7.68.125(4) apply. [1995 c 33 § 3; 1985 c 443 § 16; 1980 c 156 § 4; 1977 ex.s. c 302 § 8; 1973 1st ex.s. c 122 § 13.] Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. Legislative intent—"Public or private insurance"—1980 c 156: See note following RCW 7.68.020. 7.68.140 7.68.140 Confidentiality. Information contained in the claim files and records of victims, under the provisions of this chapter, shall be deemed confidential and shall not be open to public inspection: PROVIDED, That, except as limited by state or federal statutes or regulations, such information may be provided to public employees in the performance of their official duties: PROVIDED FURTHER, That except as otherwise limited by state or federal statutes or regulations a claimant or a representative of a claimant, be it an individual or an organization, may review a claim file or receive specific information therefrom upon the presentation of the signed authorization of the claimant: PROVIDED FURTHER, That physicians treating or examining victims claiming benefits under this chapter or physicians giving medical advice to the department regarding any claim may, at the discretion of the department and as not otherwise limited by state or federal statutes or regulations, inspect the claim files and records of such victims, and other persons may, when rendering assistance to the department at any stage of the proceedings on any matter pertaining to the administration of this chapter, inspect the claim files and records of such victims at the discretion of the department and as not otherwise limited by state or federal statutes or regulations. [1997 c 310 § 1; 1975 1st ex.s. c 176 § 6; 1973 1st ex.s. c 122 § 14.] 7.68.145 7.68.145 Release of information in performance of official duties. Notwithstanding any other provision of law, all law enforcement, criminal justice, or other governmental agencies, or hospital; any physician or other practitioner of the healing arts; or any other organization or person having possession or control of any investigative or other information pertaining to any alleged criminal act or victim concerning which a claim for benefits has been filed under this chapter, shall, upon request, make available to and allow the reproduction of any such information by the section of the department administering this chapter or other public employees in their performance of their official duties under this chapter. No person or organization, public or private, shall incur any legal liability by reason of releasing any such information to the director of labor and industries or the section of the department which administers this chapter or other public employees in the performance of their official duties under this chapter. [1975 1st ex.s. c 176 § 7.] 7.68.150 Benefits, payments and costs to be funded and accounted for separately. All benefits and payments made, and all administrative costs accrued, pursuant to this chapter shall be funded and accounted for separate from the 7.68.150 [Title 7 RCW—page 73] 7.68.160 Title 7 RCW: Special Proceedings and Actions other operations and responsibilities of the department. [1973 1st ex.s. c 122 § 15.] 7.68.160 7.68.160 Claims of persons injured prior to effective date. Any person who has been injured as a result of a "criminal act" as herein defined on or after January 1, 1972 up to July 1, 1974, who would otherwise be eligible for benefits under this chapter, may for a period of ninety days from July 1, 1974, file a claim for benefits with the department on a form provided by the department. The department shall investigate and review such claims, and, within two hundred ten days of July 1, 1974, shall report to the governor its findings and recommendations as to such claims, along with a statement as to what special legislative relief, if any, the department recommends should be provided. [1986 c 158 § 2; 1973 1st ex.s. c 122 § 16.] Effective date—1973 1st ex.s. c 122: See RCW 7.68.900 and note following. 7.68.165 7.68.165 Application of chapter to claims filed under RCW 7.68.160. The rights, privileges, responsibilities, duties, limitations and procedures contained in this chapter shall apply to those claims filed pursuant to RCW 7.68.160. In respect to such claims, the department shall proceed in the same manner and with the same authority as provided in this chapter with respect to those claims filed pursuant to RCW 7.68.060 as now or hereafter amended. [1975 1st ex.s. c 176 § 10.] escrow account, brings a civil action in a court of competent jurisdiction and recovers a money judgment for damages against such person or his representatives. [1979 ex.s. c 219 § 13.] Severability—1979 ex.s. c 219: See note following RCW 70.125.010. 7.68.210 7.68.210 Payment may be directed based on contract. The prosecutor or the department may, at any time after the person’s arraignment petition any superior court for an order, following notice and hearing, directing that any contract described in RCW 7.68.200 shall be paid in accordance with RCW 7.68.200 through 7.68.280. [1979 ex.s. c 219 § 12.] Severability—1979 ex.s. c 219: See note following RCW 70.125.010. 7.68.220 7.68.220 Notice published of moneys in escrow. The department, at least once every six months for five years from the date it receives such moneys, shall cause to have published a legal notice in newspapers of general circulation in the county wherein the crime was committed and in counties contiguous to such county advising such victims that such escrow moneys are available to satisfy money judgments pursuant to this section. For crimes committed in a city located within a county having a population of one million or more, the notice provided for in this section shall be in newspapers having general circulation in such city. The department may, in its discretion, provide for such additional notice as it deems necessary. [1979 ex.s. c 219 § 14.] Severability—1979 ex.s. c 219: See note following RCW 70.125.010. 7.68.170 7.68.170 Examination costs of sexual assault victims paid by state. No costs incurred by a hospital or other emergency medical facility for the examination of the victim of a sexual assault, when such examination is performed for the purposes of gathering evidence for possible prosecution, shall be billed or charged directly or indirectly to the victim of such assault. Such costs shall be paid by the state pursuant to this chapter. [1979 ex.s. c 219 § 11.] 7.68.230 7.68.230 Payment to accused if charges dismissed, acquitted. Upon dismissal of charges or acquittal of any accused person the department shall immediately pay over to such accused person the moneys in the escrow account established on behalf of such accused person. [1979 ex.s. c 219 § 15.] Severability—1979 ex.s. c 219: See note following RCW 70.125.010. Severability—1979 ex.s. c 219: See note following RCW 70.125.010. 7.68.240 7.68.200 7.68.200 Payment for reenactments of crimes—Contracts—Deposits—Damages. After hearing, as provided in RCW 7.68.210, every person, firm, corporation, partnership, association or other legal entity contracting with any person or the representative or assignee of any person, accused or convicted of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, live entertainment of any kind, or from the expression of such accused or convicted person’s thoughts, feelings, opinion or emotions regarding such crime, shall submit a copy of such contract to the department and pay over to the department any moneys which would otherwise, by terms of such contract, be owing to the person so accused or convicted or his representatives. The department shall deposit such moneys in an escrow account for the benefit of and payable to any victim or the legal representative of any victim of crimes committed by: (i) such convicted person; or (ii) such accused person, but only if such accused person is eventually convicted of the crime and provided that such victim, within five years of the date of the establishment of such [Title 7 RCW—page 74] 7.68.240 Payment if no actions pending. Upon a showing by any convicted person or the state that five years have elapsed from the establishment of such escrow account and further that no actions are pending against such convicted person pursuant to RCW 7.68.200 through 7.68.280, the department shall immediately pay over fifty percent of any moneys in the escrow account to such person or his legal representatives and fifty percent of any moneys in the escrow account to the fund under RCW 7.68.035(4). [1988 c 155 § 4; 1979 ex.s. c 219 § 16.] Severability—1979 ex.s. c 219: See note following RCW 70.125.010. 7.68.250 7.68.250 Persons not guilty for mental reasons deemed convicted. For purposes of *this act, a person found not guilty as a result of the defense of mental disease or defect shall be deemed to be a convicted person. [1979 ex.s. c 219 § 17.] *Reviser’s note: "this act" literally refers to 1979 ex.s. c 219. As used in this section, the term apparently refers to only sections 12 through 20 of that act, which are codified as RCW 7.68.200 through 7.68.280. Severability—1979 ex.s. c 219: See note following RCW 70.125.010. (2006 Ed.) Victims of Crimes—Compensation, Assistance 7.68.260 7.68.260 Time for filing action begins when escrow account established. Notwithstanding any inconsistent provision of the civil practice and rules with respect to the timely bringing of an action, the five year period provided for in RCW 7.68.200 shall not begin to run until an escrow account has been established. [1979 ex.s. c 219 § 18.] Severability—1979 ex.s. c 219: See note following RCW 70.125.010. 7.68.270 7.68.270 Escrow moneys may be used for legal representation. Notwithstanding the foregoing provisions of *this act the department shall make payments from an escrow account to any person accused or convicted of a crime upon the order of a court of competent jurisdiction after a showing by such person that such moneys shall be used for the exclusive purpose of retaining legal representation at any stage of the proceedings against such person, including the appeals process. [1979 ex.s. c 219 § 19.] *Reviser’s note: "this act," see note following RCW 7.68.250. Severability—1979 ex.s. c 219: See note following RCW 70.125.010. 7.68.280 7.68.280 Actions to avoid law null and void. Any action taken by any person accused or convicted of a crime, whether by way of execution of a power of attorney, creation of corporate entities or otherwise, to defeat the purpose of *this act shall be null and void as against the public policy of this state. [1979 ex.s. c 219 § 20.] *Reviser’s note: "this act," see note following RCW 7.68.250. Severability—1979 ex.s. c 219: See note following RCW 70.125.010. 7.68.290 7.68.290 Restitution—Disposition when victim dead or not found. If a defendant has paid restitution pursuant to court order under RCW 9.92.060, 9.94A.750, 9.94A.753, 9.95.210, or 9A.20.030 and the victim entitled to restitution cannot be found or has died, the clerk of the court shall deposit with the county treasurer the amount of restitution unable to be paid to the victim. The county treasurer shall monthly transmit the money to the state treasurer for deposit as provided in RCW 43.08.250. Moneys deposited under this section shall be used to compensate victims of crimes through the crime victims compensation fund. [1997 c 358 § 3; 1987 c 281 § 2.] Effective date—1987 c 281: See note following RCW 7.68.020. 7.68.300 7.68.300 Finding. The legislature finds compelling state interests in compensating the victims of crime and in preventing criminals from profiting from their crimes. RCW 7.68.310 through 7.68.340 are intended to advance both of these interests. [1993 c 288 § 3.] 7.68.310 7.68.310 Property subject to seizure and forfeiture. The following are subject to seizure and forfeiture and no property right exists in them: (1) All tangible or intangible property, including any right or interest in such property, acquired by a person convicted of a crime for which there is a victim of the crime and to the extent the acquisition is the direct or indirect result of the convicted person having committed the crime. Such property includes but is not limited to the convicted person’s remuneration for, or contract interest in, any reenactment or depiction or account of the crime in a movie, book, magazine, (2006 Ed.) 7.68.320 newspaper or other publication, audio recording, radio or television presentation, live entertainment of any kind, or any expression of the convicted person’s thoughts, feelings, opinions, or emotions regarding the crime. (2) Any property acquired through the traceable proceeds of property described in subsection (1) of this section. [1993 c 288 § 4.] 7.68.320 Seizure and forfeiture—Procedure. (1) Any property subject to seizure and forfeiture under RCW 7.68.310 may be seized by the prosecuting attorney of the county in which the convicted person was convicted upon process issued by any superior court having jurisdiction over the property. (2) Proceedings for forfeiture are commenced by a seizure. Seizure of real property shall include the filing of a lis pendens by the seizing agency. Real property seized under this section shall not be transferred or otherwise conveyed until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later, except that such real property seized may be transferred or conveyed to any person or entity who acquires title by foreclosure or deed in lieu of foreclosure of a security interest. (3) The prosecuting attorney who seized the property shall cause notice to be served within fifteen days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, including any community property interest, of the seizure and intended forfeiture of the seized property. Service of notice of seizure of real property shall be made according to the rules of civil procedure. However, the state may not obtain a default judgment with respect to real property against a party who is served by substituted service absent an affidavit stating that a good faith effort has been made to ascertain if the defaulted party is incarcerated within the state, and that there is no present basis to believe that the party is incarcerated within the state. The notice of seizure in other cases may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen-day period following the seizure. Notice of seizure in the case of property subject to a security interest that has been perfected by filing a financing statement in accordance with *chapter 62A.9 RCW, or a certificate of title, shall be made by service upon the secured party or the secured party’s assignee at the address shown on the financing statement or the certificate of title. (4) If no person notifies the seizing prosecuting attorney in writing of the person’s claim of ownership or right to possession of the property within forty-five days for personal property or ninety days for real property, the property seized shall be deemed forfeited. (5) If any person notifies the seizing prosecuting attorney in writing of the person’s claim of ownership or right to possession of the property within forty-five days for personal property or ninety days for real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The prosecuting attorney shall file the case into a court of competent jurisdiction. In a court hearing between two or more claimants to the article or articles 7.68.320 [Title 7 RCW—page 75] 7.68.330 Title 7 RCW: Special Proceedings and Actions involved, the prevailing party shall be entitled to a judgment for costs and reasonable attorneys’ fees. In cases involving personal property, the burden of producing evidence shall be by a preponderance and upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of the property. In cases involving real property, the burden of producing evidence shall be by a preponderance and upon the prosecuting attorney. The seizing prosecuting attorney shall promptly return the property to the claimant upon a determination by the prosecuting attorney or court that the claimant is the present lawful owner or is lawfully entitled to possession of the property. (6) Upon the entry of an order of forfeiture of real property, the court shall forward a copy of the order to the county auditor of the county in which the property is located. Orders for the forfeiture of real property shall be entered by the superior court, subject to court rules. (7) A forfeiture action under this section may be brought at any time from the date of conviction until the expiration of the statutory maximum period of incarceration that could have been imposed for the crime involved. (8) A forfeiture of property encumbered by a bona fide security interest is subject to the interest of the secured party if at the time the security interest was created, the secured party did not know that the property was subject to seizure and forfeiture. [1993 c 288 § 5.] *Reviser’s note: Chapter 62A.9 RCW was repealed in its entirety by 2000 c 250 § 9A-901, effective July 1, 2001. For later enactment, see chapter 62A.9A RCW. 7.68.330 7.68.330 Seizure and forfeiture—Distribution of proceeds. (1) The proceeds of any forfeiture action brought under RCW 7.68.320 shall be distributed as follows: (a) First, to the victim or to the plaintiff in a wrongful death action brought as a result of the victim’s death, to satisfy any money judgment against the convicted person, or to satisfy any restitution ordered as part of the convicted person’s sentence; (b) Second, to the reasonable legal expenses of bringing the action; (c) Third, to the crime victims’ compensation fund under RCW 7.68.090. (2) A court may establish such escrow accounts or other arrangements as it deems necessary and appropriate in order to distribute proceeds in accordance with this section. [1993 c 288 § 6.] 7.68.350 7.68.350 Washington state task force against the trafficking of persons. (1) There is created the Washington state task force against the trafficking of persons. (2) The task force shall consist of the following members: (a) The director of the office of community development, or the director’s designee; (b) The secretary of the department of health, or the secretary’s designee; (c) The secretary of the department of social and health services, or the secretary’s designee; (d) The director of the department of labor and industries, or the director’s designee; (e) The commissioner of the employment security department, or the commissioner’s designee; (f) Nine members, selected by the director of the office of community development, that represent public and private sector organizations that provide assistance to persons who are victims of trafficking. (3) The task force shall be chaired by the director of the office of community development, or the director’s designee. (4) The task force shall carry out the following activities: (a) Measure and evaluate the progress of the state in trafficking prevention activities; (b) Identify available federal, state, and local programs that provide services to victims of trafficking that include, but are not limited to health care, human services, housing, education, legal assistance, job training or preparation, interpreting services, English as a second language classes, and victim’s compensation; and (c) Make recommendations on methods to provide a coordinated system of support and assistance to persons who are victims of trafficking. (5) The task force shall report its supplemental findings and recommendations to the governor and legislature by June 30, 2004. (6) The office of community development shall provide necessary administrative and clerical support to the task force, within available resources. (7) The members of the task force shall serve without compensation, but shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060, within available resources. (8) The task force expires June 30, 2004. [2003 c 266 § 1.] Effective date—2003 c 266: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 14, 2003]." [2003 c 266 § 3.] 7.68.340 7.68.340 Seizure and forfeiture—Remedies nondefeatable and supplemental. (1) Any action taken by or on behalf of a convicted person including but not limited to executing a power of attorney or creating a corporation for the purpose of defeating the provisions of RCW 7.68.300 through 7.68.330 is null and void as against the public policy of this state. (2) RCW 7.68.300 through 7.68.330 are supplemental and do not limit rights or remedies otherwise available to the victims of crimes and do not limit actions otherwise available against persons convicted of crimes. [1993 c 288 § 7.] [Title 7 RCW—page 76] 7.68.360 7.68.360 Human trafficking—Coordinated state agency protocols. (1) By July 1, 2005, the director of the department of community, trade, and economic development, or the director’s designee, shall within existing resources convene and chair a work group to develop written protocols for delivery of services to victims of trafficking of humans. The director shall invite appropriate federal agencies to consult with the work group for the purpose of developing protocols that, to the extent possible, are in concert with federal statutes, regulations, and policies. In addition to the director of the department of community, trade, and economic devel(2006 Ed.) Crime Victims, Survivors, and Witnesses opment, the following shall be members of the work group: The secretary of the department of health, the secretary of the department of social and health services, the attorney general, the director of the department of labor and industries, the commissioner of the employment security department, a representative of the Washington association of prosecuting attorneys, the chief of the Washington state patrol, two members selected by the Washington association of sheriffs and police chiefs, and five members, selected by the director of the department of community, trade, and economic development from a list submitted by public and private sector organizations that provide assistance to persons who are victims of trafficking. The attorney general, the chief of the Washington state patrol, and the secretaries or directors may designate a person to serve in their place. Members of the work group shall serve without compensation. (2) The protocols must meet all of the following minimum standards: (a) The protocols must apply to the following state agencies: The department of community, trade, and economic development, the department of health, the department of social and health services, the attorney general’s office, the Washington state patrol, the department of labor and industries, and the employment security department; (b) The protocols must provide policies and procedures for interagency coordinated operations and cooperation with government agencies and nongovernmental organizations, agencies, and jurisdictions, including law enforcement agencies and prosecuting attorneys; (c) The protocols must include the establishment of a data base electronically available to all affected agencies which contains the name, address, and telephone numbers of agencies that provide services to victims of human trafficking; and (d) The protocols must provide guidelines for providing for the social service needs of victims of trafficking of humans, including housing, health care, and employment. (3) By January 1, 2006, the work group shall finalize the written protocols and submit them with a report to the legislature and the governor. (4) The protocols shall be reviewed on a biennial basis by the work group to determine whether revisions are appropriate. The director of the department of community, trade, and economic development, or the director’s designee, shall within existing resources reconvene and chair the work group for this purpose. [2005 c 358 § 2.] Intent—Finding—2005 c 358: "The legislature recognizes that human trafficking is growing to epidemic proportions and that our state is impacted. Human trafficking is one of the greatest threats to human dignity. It is the commodification of human beings and an assault on human values. Washington is, and must continue to be, a national leader at the state level in the fight against human trafficking. The legislature recognizes there are many state agencies and private organizations that might be called on to provide services to victims of trafficking of humans. Victims of human trafficking are often in need of services such as emergency medical attention, food and shelter, vocational and English language training, mental health counseling, and legal support. The state intends to improve the response of state, local, and private entities to incidents of trafficking of humans. Victims would be better served if there is an established, coordinated system of identifying the needs of trafficking victims, protocols for training of service delivery agencies and staff, timely and appropriate delivery of services, and better investigations and prosecutions of trafficking. (2006 Ed.) 7.69.010 Leadership in providing services to victims of trafficking of humans also extends beyond government efforts and is grounded in the work of highly dedicated individuals and community-based groups. Without these efforts the struggle against human trafficking will be very difficult to win. The legislature, therefore, finds that such efforts merit regular public recognition and appreciation. Such recognition and appreciation will encourage the efforts of all persons to end human trafficking, and provide the public with information and education about the necessity of its involvement in this struggle." [2005 c 358 § 1.] Effective date—2005 c 358: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 10, 2005]." [2005 c 358 § 3.] 7.68.900 Effective date—1973 1st ex.s. c 122. This chapter shall take effect on July 1, 1974. [1973 1st ex.s. c 122 § 17.] 7.68.900 Funding required: "This bill shall not take effect until the funds necessary for its implementation have been specifically appropriated by the legislature and such appropriation itself has become law. It is the intention of the legislature that if the governor shall veto this section or any item thereof, none of the provisions of this bill shall take effect." [1973 1st ex.s. c 122 § 21.] Reviser’s note: Funding for 1973 1st ex.s. c 122 was provided in 1973 1st ex.s. c 137 § 107 and 1975 1st ex.s. c 269 § 67(2). 7.68.905 Severability—Construction—1977 ex.s. c 302. (1) If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances, is not affected. (2) Subsection (1) of this section shall be effective retroactively to July 1, 1974. [1977 ex.s. c 302 § 12.] 7.68.905 7.68.910 Section captions. Section captions as used in this act do not constitute any part of the law. [1973 1st ex.s. c 122 § 20.] 7.68.910 7.68.915 Savings—Statute of limitations—1982 1st ex.s. c 8. Nothing in chapter 8, Laws of 1982 1st ex. sess., affects or impairs any right to benefits existing prior to *the effective date of this act. For injuries occurring on and after July 1, 1981, and before *the effective date of this act, the statute of limitations for filing claims under this chapter shall begin to run on *the effective date of this act. [1982 1st ex.s. c 8 § 3.] 7.68.915 *Reviser’s note: For "the effective date of this act," see note following RCW 7.68.035. Effective dates—Intent—Reports—1982 1st ex.s. c 8: See notes following RCW 7.68.035. Chapter 7.69 RCW CRIME VICTIMS, SURVIVORS, AND WITNESSES Chapter 7.69 Sections 7.69.010 7.69.020 7.69.030 7.69.040 7.69.050 Intent. Definitions. Rights of victims, survivors, and witnesses. Representation of incapacitated or incompetent victim. Construction of chapter—Other remedies or defenses. 7.69.010 Intent. In recognition of the severe and detrimental impact of crime on victims, survivors of victims, and witnesses of crime and the civic and moral duty of victims, survivors of victims, and witnesses of crimes to fully and vol7.69.010 [Title 7 RCW—page 77] 7.69.020 Title 7 RCW: Special Proceedings and Actions untarily cooperate with law enforcement and prosecutorial agencies, and in further recognition of the continuing importance of such citizen cooperation to state and local law enforcement efforts and the general effectiveness and wellbeing of the criminal justice system of this state, the legislature declares its intent, in this chapter, to grant to the victims of crime and the survivors of such victims a significant role in the criminal justice system. The legislature further intends to ensure that all victims and witnesses of crime are treated with dignity, respect, courtesy, and sensitivity; and that the rights extended in this chapter to victims, survivors of victims, and witnesses of crime are honored and protected by law enforcement agencies, prosecutors, and judges in a manner no less vigorous than the protections afforded criminal defendants. [1985 c 443 § 1; 1981 c 145 § 1.] Severability—1985 c 443: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 443 § 27.] Effective date—1985 c 443: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect on July 1, 1985." [1985 c 443 § 28.] 7.69.020 7.69.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Crime" means an act punishable as a felony, gross misdemeanor, or misdemeanor under the laws of this state or equivalent federal or local law. (2) "Survivor" or "survivors" of a victim of crime means a spouse, child, parent, legal guardian, sibling, or grandparent. If there is more than one survivor of a victim of crime, one survivor shall be designated by the prosecutor to represent all survivors for purposes of providing the notice to survivors required by this chapter. (3) "Victim" means a person against whom a crime has been committed or the representative of a person against whom a crime has been committed. (4) "Victim impact statement" means a statement submitted to the court by the victim or a survivor, individually or with the assistance of the prosecuting attorney if assistance is requested by the victim or survivor, which may include but is not limited to information assessing the financial, medical, social, and psychological impact of the offense upon the victim or survivors. (5) "Witness" means a person who has been or is expected to be summoned to testify for the prosecution in a criminal action, or who by reason of having relevant information is subject to call or likely to be called as a witness for the prosecution, whether or not an action or proceeding has been commenced. (6) "Crime victim/witness program" means any crime victim and witness program of a county or local law enforcement agency or prosecutor’s office, any rape crisis center’s sexual assault victim advocacy program as provided in chapter 70.125 RCW, any domestic violence program’s legal and community advocate program for domestic violence victims as provided in chapter 70.123 RCW, or any other crime victim advocacy program which provides trained advocates to assist crime victims during the investigation and prosecution [Title 7 RCW—page 78] of the crime. [1993 c 350 § 5; 1985 c 443 § 2; 1981 c 145 § 2.] Findings—Severability—1993 c 350: See notes following RCW 26.50.035. Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. 7.69.030 7.69.030 Rights of victims, survivors, and witnesses. There shall be a reasonable effort made to ensure that victims, survivors of victims, and witnesses of crimes have the following rights, which apply to any criminal court and/or juvenile court proceeding: (1) With respect to victims of violent or sex crimes, to receive, at the time of reporting the crime to law enforcement officials, a written statement of the rights of crime victims as provided in this chapter. The written statement shall include the name, address, and telephone number of a county or local crime victim/witness program, if such a crime victim/witness program exists in the county; (2) To be informed by local law enforcement agencies or the prosecuting attorney of the final disposition of the case in which the victim, survivor, or witness is involved; (3) To be notified by the party who issued the subpoena that a court proceeding to which they have been subpoenaed will not occur as scheduled, in order to save the person an unnecessary trip to court; (4) To receive protection from harm and threats of harm arising out of cooperation with law enforcement and prosecution efforts, and to be provided with information as to the level of protection available; (5) To be informed of the procedure to be followed to apply for and receive any witness fees to which they are entitled; (6) To be provided, whenever practical, a secure waiting area during court proceedings that does not require them to be in close proximity to defendants and families or friends of defendants; (7) To have any stolen or other personal property expeditiously returned by law enforcement agencies or the superior court when no longer needed as evidence. When feasible, all such property, except weapons, currency, contraband, property subject to evidentiary analysis, and property of which ownership is disputed, shall be photographed and returned to the owner within ten days of being taken; (8) To be provided with appropriate employer intercession services to ensure that employers of victims, survivors of victims, and witnesses of crime will cooperate with the criminal justice process in order to minimize an employee’s loss of pay and other benefits resulting from court appearance; (9) To access to immediate medical assistance and not to be detained for an unreasonable length of time by a law enforcement agency before having such assistance administered. However, an employee of the law enforcement agency may, if necessary, accompany the person to a medical facility to question the person about the criminal incident if the questioning does not hinder the administration of medical assistance; (10) With respect to victims of violent and sex crimes, to have a crime victim advocate from a crime victim/witness program, or any other support person of the victim’s choosing, present at any prosecutorial or defense interviews with (2006 Ed.) Child Victims and Witnesses the victim, and at any judicial proceedings related to criminal acts committed against the victim. This subsection applies if practical and if the presence of the crime victim advocate or support person does not cause any unnecessary delay in the investigation or prosecution of the case. The role of the crime victim advocate is to provide emotional support to the crime victim; (11) With respect to victims and survivors of victims, to be physically present in court during trial, or if subpoenaed to testify, to be scheduled as early as practical in the proceedings in order to be physically present during trial after testifying and not to be excluded solely because they have testified; (12) With respect to victims and survivors of victims, to be informed by the prosecuting attorney of the date, time, and place of the trial and of the sentencing hearing for felony convictions upon request by a victim or survivor; (13) To submit a victim impact statement or report to the court, with the assistance of the prosecuting attorney if requested, which shall be included in all presentence reports and permanently included in the files and records accompanying the offender committed to the custody of a state agency or institution; (14) With respect to victims and survivors of victims, to present a statement personally or by representation, at the sentencing hearing for felony convictions; (15) With respect to victims and survivors of victims, to entry of an order of restitution by the court in all felony cases, even when the offender is sentenced to confinement, unless extraordinary circumstances exist which make restitution inappropriate in the court’s judgment; and (16) With respect to victims and survivors of victims, to present a statement in person, via audio or videotape, in writing or by representation at any hearing conducted regarding an application for pardon or commutation of sentence. [2004 c 120 § 8; 1999 c 323 § 2; 1997 c 343 § 1; 1993 c 350 § 6; 1985 c 443 § 3; 1981 c 145 § 3.] Effective date—2004 c 120: See note following RCW 13.40.010. Intent—1999 c 323: See note following RCW 9.94A.885. Findings—Severability—1993 c 350: See notes following RCW 26.50.035. Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. Child victims and witnesses, additional rights: Chapter 7.69A RCW. 7.69.040 7.69.040 Representation of incapacitated or incompetent victim. For purposes of this chapter, a victim who is incapacitated or otherwise incompetent shall be represented by a parent or present legal guardian, or if none exists, by a representative designated by the prosecuting attorney without court appointment or legal guardianship proceedings. Any victim may designate another person as the victim’s representative for purposes of the rights enumerated in RCW 7.69.030. [1985 c 443 § 4.] Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. 7.69.050 Construction of chapter—Other remedies or defenses. Nothing contained in this chapter may be construed to provide grounds for error in favor of a criminal defendant in a criminal proceeding, nor may anything in this chapter be construed to grant a new cause of action or remedy 7.69.050 (2006 Ed.) 7.69A.020 against the state, its political subdivisions, law enforcement agencies, or prosecuting attorneys. The failure of a person to make a reasonable effort to ensure that victims, survivors, and witnesses under this chapter have the rights enumerated in RCW 7.69.030 shall not result in civil liability against that person. This chapter does not limit other civil remedies or defenses of the offender or the victim or survivors of the victim. [1985 c 443 § 5.] Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. Chapter 7.69A Chapter 7.69A RCW CHILD VICTIMS AND WITNESSES Sections 7.69A.010 7.69A.020 7.69A.030 7.69A.040 7.69A.050 Legislative intent. Definitions. Rights of child victims and witnesses. Liability for failure to notify or assure child’s rights. Rights of child victims and witnesses—Confidentiality of address—Notice of right—Penalty. 7.69A.010 Legislative intent. The legislature recognizes that it is important that child victims and child witnesses of crime cooperate with law enforcement and prosecutorial agencies and that their assistance contributes to state and local enforcement efforts and the general effectiveness of the criminal justice system of this state. Therefore, it is the intent of the legislature by means of this chapter, to insure that all child victims and witnesses of crime are treated with the sensitivity, courtesy, and special care that must be afforded to each child victim of crime and that their rights be protected by law enforcement agencies, prosecutors, and judges in a manner no less vigorous than the protection afforded the adult victim, witness, or criminal defendant. [1985 c 394 § 1.] 7.69A.010 Reviser’s note: "This chapter" has been substituted for "this act" in this section. 7.69A.020 7.69A.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Crime" means an act punishable as a felony, gross misdemeanor, or misdemeanor under the laws of this state or equivalent federal or local law. (2) "Child" means any living child under the age of eighteen years. (3) "Victim" means a living person against whom a crime has been committed. (4) "Witness" means a person who has been or is expected to be summoned to testify for the prosecution in a criminal action, or who by reason of having relevant information is subject to call or likely to be called as a witness for the prosecution, whether or not an action or proceeding has been commenced. (5) "Family member" means child, parent, or legal guardian. (6) "Advocate" means any person, including a family member not accused of a crime, who provides support to a child victim or child witness during any legal proceeding. (7) "Court proceedings" means any court proceeding conducted during the course of the prosecution of a crime [Title 7 RCW—page 79] 7.69A.030 Title 7 RCW: Special Proceedings and Actions committed against a child victim, including pretrial hearings, trial, sentencing, or appellate proceedings. (8) "Identifying information" means the child’s name, address, location, and photograph, and in cases in which the child is a relative or stepchild of the alleged perpetrator, identification of the relationship between the child and the alleged perpetrator. (9) "Crime victim/witness program" means any crime victim and witness program of a county or local law enforcement agency or prosecutor’s office, any rape crisis center’s sexual assault victim advocacy program as provided in chapter 70.125 RCW, any domestic violence program’s legal and community advocate program for domestic violence victims as provided in chapter 70.123 RCW, or any other crime victim advocacy program which provides trained advocates to assist crime victims during the investigation and prosecution of the crime. [1993 c 350 § 7; 1992 c 188 § 2; 1985 c 394 § 2.] Findings—Severability—1993 c 350: See notes following RCW 26.50.035. Findings—Intent—1992 c 188: "The legislature recognizes that the cooperation of child victims of sexual assault and their families is integral to the successful prosecution of sexual assaults against children. The legislature finds that release of information identifying child victims of sexual assault may subject the child to unwanted contacts by the media, public scrutiny and embarrassment, and places the child victim and the victim’s family at risk when the assailant is not in custody. Release of information to the press and the public harms the child victim and has a chilling effect on the willingness of child victims and their families to report sexual abuse and to cooperate with the investigation and prosecution of the crime. The legislature further finds that public dissemination of the child victim’s name and other identifying information is not essential to accurate and necessary release of information to the public concerning the operation of the criminal justice system. Therefore, the legislature intends to assure child victims of sexual assault and their families that the identities and locations of child victims will remain confidential." [1992 c 188 § 1.] Severability—1992 c 188: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1992 c 188 § 10.] 7.69A.030 7.69A.030 Rights of child victims and witnesses. In addition to the rights of victims and witnesses provided for in RCW 7.69.030, there shall be every reasonable effort made by law enforcement agencies, prosecutors, and judges to assure that child victims and witnesses are afforded the rights enumerated in this section. Except as provided in RCW 7.69A.050 regarding child victims or child witnesses of violent crimes, sex crimes, or child abuse, the enumeration of rights shall not be construed to create substantive rights and duties, and the application of an enumerated right in an individual case is subject to the discretion of the law enforcement agency, prosecutor, or judge. Child victims and witnesses have the following rights, which apply to any criminal court and/or juvenile court proceeding: (1) To have explained in language easily understood by the child, all legal proceedings and/or police investigations in which the child may be involved. (2) With respect to child victims of sex or violent crimes or child abuse, to have a crime victim advocate from a crime victim/witness program, or any other support person of the victim’s choosing, present at any prosecutorial or defense interviews with the child victim. This subsection applies if practical and if the presence of the crime victim advocate or [Title 7 RCW—page 80] support person does not cause any unnecessary delay in the investigation or prosecution of the case. The role of the crime victim advocate is to provide emotional support to the child victim and to promote the child’s feelings of security and safety. (3) To be provided, whenever possible, a secure waiting area during court proceedings and to have an advocate or support person remain with the child prior to and during any court proceedings. (4) To not have the names, addresses, nor photographs of the living child victim or witness disclosed by any law enforcement agency, prosecutor’s office, or state agency without the permission of the child victim, child witness, parents, or legal guardians to anyone except another law enforcement agency, prosecutor, defense counsel, or private or governmental agency that provides services to the child victim or witness. (5) To allow an advocate to make recommendations to the prosecuting attorney about the ability of the child to cooperate with prosecution and the potential effect of the proceedings on the child. (6) To allow an advocate to provide information to the court concerning the child’s ability to understand the nature of the proceedings. (7) To be provided information or appropriate referrals to social service agencies to assist the child and/or the child’s family with the emotional impact of the crime, the subsequent investigation, and judicial proceedings in which the child is involved. (8) To allow an advocate to be present in court while the child testifies in order to provide emotional support to the child. (9) To provide information to the court as to the need for the presence of other supportive persons at the court proceedings while the child testifies in order to promote the child’s feelings of security and safety. (10) To allow law enforcement agencies the opportunity to enlist the assistance of other professional personnel such as child protection services, victim advocates or prosecutorial staff trained in the interviewing of the child victim. (11) With respect to child victims of violent or sex crimes or child abuse, to receive either directly or through the child’s parent or guardian if appropriate, at the time of reporting the crime to law enforcement officials, a written statement of the rights of child victims as provided in this chapter. The written statement shall include the name, address, and telephone number of a county or local crime victim/witness program, if such a crime victim/witness program exists in the county. [2004 c 120 § 9; 1997 c 283 § 2; 1993 c 350 § 8; 1985 c 394 § 3.] Effective date—2004 c 120: See note following RCW 13.40.010. Findings—Severability—1993 c 350: See notes following RCW 26.50.035. 7.69A.040 7.69A.040 Liability for failure to notify or assure child’s rights. The failure to provide notice to a child victim or witness under this chapter of the rights enumerated in RCW 7.69A.030 shall not result in civil liability so long as the failure to notify was in good faith and without gross negligence. The failure to make a reasonable effort to assure that child victims and witnesses are afforded the rights enumer(2006 Ed.) Crime Victims and Witnesses—Dependent Persons ated in RCW 7.69A.030 shall not result in civil liability so long as the failure to make a reasonable effort was in good faith and without gross negligence. [1985 c 394 § 4.] 7.69A.050 7.69A.050 Rights of child victims and witnesses— Confidentiality of address—Notice of right—Penalty. At the time of reporting a crime to law enforcement officials and at the time of the initial witness interview, child victims or child witnesses of violent crimes, sex crimes, or child abuse and the child’s parents shall be informed of their rights to not have their address disclosed by any law enforcement agency, prosecutor’s office, defense counsel, or state agency without the permission of the child victim or the child’s parents or legal guardian. The address may be disclosed to another law enforcement agency, prosecutor, defense counsel, or private or governmental agency that provides services to the child. Intentional disclosure of an address in violation of this section is a misdemeanor. [1997 c 283 § 1.] Chapter 7.69B Chapter 7.69B RCW CRIME VICTIMS AND WITNESSES— DEPENDENT PERSONS Sections 7.69B.005 7.69B.010 7.69B.020 7.69B.030 7.69B.040 7.69B.900 Intent—Finding. Definitions. Rights enumerated. Testimony—Videotaped depositions. Liability for violating chapter—Actions based on other state or federal laws. Severability—2005 c 381. 7.69B.020 evant information is subject to call or likely to be called as a witness, whether or not an action or proceeding has been commenced. (5) "Family member" means a person who is not accused of a crime and who is an adult child, adult sibling, spouse, parent, or legal guardian of the dependent person. (6) "Advocate" means any person not accused of a crime, including a family member, approved by the witness or victim, in consultation with his or her guardian if applicable, who provides support to a dependent person during any legal proceeding. (7) "Court proceedings" means any court proceeding conducted during the course of the prosecution of a crime committed against a dependent person, including pretrial hearings, trial, sentencing, or appellate proceedings. (8) "Identifying information" means the dependent person’s name, address, location, and photograph, and in cases in which the dependent person is a relative of the alleged perpetrator, identification of the relationship between the dependent person and the alleged perpetrator. (9) "Crime victim/witness program" means any crime victim and witness program of a county or local law enforcement agency or prosecutor’s office, any rape crisis center’s sexual assault victim advocacy program as provided in chapter 70.125 RCW, any domestic violence program’s legal and community advocate program for domestic violence victims as provided in chapter 70.123 RCW, or any other crime victim advocacy program which provides trained advocates to assist crime victims during the investigation and prosecution of the crime. [2005 c 381 § 2.] 7.69B.005 7.69B.005 Intent—Finding. The legislature recognizes that it is important that dependent persons who are witnesses and victims of crime cooperate with law enforcement and prosecutorial agencies and that their assistance contributes to state and local enforcement efforts and the general effectiveness of the criminal justice system. The legislature finds that the state has an interest in making it possible for courts to adequately and fairly conduct cases involving dependent persons who are victims of crimes. Therefore, it is the intent of the legislature, by means of this chapter, to insure that all dependent persons who are victims and witnesses of crime are treated with sensitivity, courtesy, and special care and that their rights be protected by law enforcement agencies, prosecutors, and judges in a manner no less vigorous than the protection afforded to other victims, witnesses, and criminal defendants. [2005 c 381 § 1.] 7.69B.010 7.69B.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Crime" means an act punishable as a felony, gross misdemeanor, or misdemeanor under the laws of this state or equivalent federal or local law. (2) "Dependent person" has the same meaning as that term is defined in RCW 9A.42.010. (3) "Victim" means a living person against whom a crime has been committed. (4) "Witness" means a person who has been or is expected to be summoned to testify for the prosecution or defense in a criminal action, or who by reason of having rel(2006 Ed.) 7.69B.020 Rights enumerated. (1) In addition to the rights of victims and witnesses provided for in RCW 7.69.030, there shall be every reasonable effort made by law enforcement agencies, prosecutors, and judges to assure that dependent persons who are victims or witnesses are afforded the rights enumerated in this section. The enumeration of rights under this chapter shall not be construed to create substantive rights and duties, and the application of an enumerated right in an individual case is subject to the discretion of the law enforcement agency, prosecutor, or judge. Dependent persons who are victims or witnesses in the criminal justice system have the following rights, which apply to any criminal court or juvenile court proceeding: (a) To have explained in language easily understood by the dependent person, all legal proceedings and police investigations in which the dependent person may be involved. (b) With respect to a dependent person who is a victim of a sex or violent crime, to have a crime victim advocate from a crime victim/witness program, or any other advocate of the victim’s choosing, present at any prosecutorial or defense interviews with the dependent person. This subsection applies unless it creates undue hardship and if the presence of the crime victim advocate or other advocate does not cause any unnecessary delay in the investigation or prosecution of the case. The role of the crime victim advocate or other advocate is to provide emotional support to the dependent person and to promote the dependent person’s feelings of security and safety. (c) To be provided, whenever possible, a secure waiting area during court proceedings and to have an advocate or sup7.69B.020 [Title 7 RCW—page 81] 7.69B.030 Title 7 RCW: Special Proceedings and Actions port person remain with the dependent person prior to and during any court proceedings. (d) To allow an advocate to make recommendations to the prosecuting attorney about the ability of the dependent person to cooperate with prosecution and the potential effect of the proceedings on the dependent person. (e) To allow an advocate to provide information to the court concerning the dependent person’s ability to understand the nature of the proceedings. (f) To be provided information or appropriate referrals to social service agencies to assist the dependent person with the emotional impact of the crime, the subsequent investigation, and judicial proceedings in which the dependent person is involved. (g) To allow an advocate to be present in court while the dependent person testifies in order to provide emotional support to the dependent person. (h) To provide information to the court as to the need for the presence of other supportive persons at the court proceedings while the dependent person testifies in order to promote the dependent person’s feelings of security and safety. (i) To allow law enforcement agencies the opportunity to enlist the assistance of other professional personnel such as victim advocates or prosecutorial staff trained in the interviewing of the dependent person. (j) With respect to a dependent person who is a victim of a violent or sex crime, to receive either directly or through the dependent person’s legal guardian, if applicable, at the time of reporting the crime to law enforcement officials, a written statement of the rights of dependent persons as provided in this chapter. The statement may be paraphrased to make it more easily understood. The written statement shall include the name, address, and telephone number of a county or local crime victim/witness program, if such a crime victim/witness program exists in the county. (2) Any party may request a preliminary hearing for the purpose of establishing accommodations for the dependent person consistent with, but not limited to, the rights enumerated in this section. [2005 c 381 § 3.] 7.69B.030 7.69B.030 Testimony—Videotaped depositions. (1) The prosecutor or defense may file a motion with the court at any time prior to commencement of the trial for an order authorizing the taking of a videotape deposition for the purpose of preserving the direct testimony of the moving party’s witness if that witness is a dependent person. (2) The court may grant the motion if the moving party shows that it is likely that the dependent person will be unavailable to testify at a subsequent trial. The court’s finding shall be based upon, at a minimum, recommendations from the dependent person’s physician or any other person having direct contact with the dependent person and whose recommendations are based on specific behavioral indicators exhibited by the dependent person. (3) The moving party shall provide reasonable written notice to the other party of the motion and order, if granted, pursuant to superior court criminal rules for depositions. (4) Both parties shall have an opportunity to be present at the deposition and the nonmoving party shall have the opportunity to cross-examine the dependent person. [Title 7 RCW—page 82] (5) Under circumstances permitted by the rules of evidence, the deposition may be introduced as evidence in a subsequent proceeding if the dependent person is unavailable at trial and both the prosecutor and the defendant had notice of and an opportunity to participate in the taking of the deposition. [2005 c 381 § 4.] 7.69B.040 7.69B.040 Liability for violating chapter—Actions based on other state or federal laws. (1) The failure to provide notice to a dependent person of the rights enumerated in this chapter or the failure to provide the rights enumerated shall not result in civil liability so long as the failure was in good faith. (2) Nothing in this chapter shall be construed to limit a party’s ability to bring an action, including an action for damages, based on rights conferred by other state or federal law. [2005 c 381 § 5.] 7.69B.900 7.69B.900 Severability—2005 c 381. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2005 c 381 § 7.] Chapter 7.70 RCW ACTIONS FOR INJURIES RESULTING FROM HEALTH CARE Chapter 7.70 Sections 7.70.010 7.70.020 7.70.030 7.70.040 7.70.050 7.70.060 7.70.065 7.70.068 7.70.070 7.70.080 7.70.090 7.70.100 7.70.110 7.70.120 7.70.130 7.70.140 7.70.150 7.70.160 Declaration of modification of actions for damages based upon injuries resulting from health care. Definitions. Propositions required to be established—Burden of proof. Necessary elements of proof that injury resulted from failure to follow accepted standard of care. Failure to secure informed consent—Necessary elements of proof—Emergency situations. Consent form—Contents—Prima facie evidence—Failure to use. Informed consent—Persons authorized to provide for patients who are not competent—Priority. Informed consent—May be contained in mental health advance directive. Attorneys’ fees. Evidence of compensation from other source. Hospital governing bodies—Liability—Limitations. Mandatory mediation of health care claims—Procedures. Mandatory mediation of health care claims—Tolling statute of limitations. Mandatory mediation of health care claims—Right to trial not abridged. Mandatory mediation of health care claims—Exempt from arbitration mandate. Medical malpractice closed claim reporting requirements. Actions alleging violation of accepted standard of care—Certificate of merit required. Frivolous claims. Complaint in personal injury actions not to include statement of damages: RCW 4.28.360. Evidence of furnishing or offering to pay medical expenses inadmissible to prove liability in personal injury actions for medical negligence: Chapter 5.64 RCW. Immunity of members of professional review committees, societies, examining, licensing or disciplinary boards from civil suit: RCW 4.24.240. Malpractice insurance for retired physicians providing health care services: RCW 43.70.460. Statute of limitations in actions for injuries resulting from health care: RCW 4.16.350. (2006 Ed.) Actions for Injuries Resulting From Health Care 7.70.060 7.70.040 7.70.010 Declaration of modification of actions for damages based upon injuries resulting from health care. The state of Washington, exercising its police and sovereign power, hereby modifies as set forth in this chapter and in RCW 4.16.350, as now or hereafter amended, certain substantive and procedural aspects of all civil actions and causes of action, whether based on tort, contract, or otherwise, for damages for injury occurring as a result of health care which is provided after June 25, 1976. [1975-’76 2nd ex.s. c 56 § 6.] 7.70.040 Necessary elements of proof that injury resulted from failure to follow accepted standard of care. The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care: (1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances; (2) Such failure was a proximate cause of the injury complained of. [1983 c 149 § 2; 1975-’76 2nd ex.s. c 56 § 9.] Severability—1975-’76 2nd ex.s. c 56: See note following RCW 4.16.350. Severability—1975-’76 2nd ex.s. c 56: See note following RCW 4.16.350. Verdict or award of future economic damages in personal injury or property damage action may provide for periodic payments: RCW 4.56.260. 7.70.010 7.70.020 7.70.020 Definitions. As used in this chapter "health care provider" means either: (1) A person licensed by this state to provide health care or related services, including, but not limited to, a licensed acupuncturist, a physician, osteopathic physician, dentist, nurse, optometrist, podiatric physician and surgeon, chiropractor, physical therapist, psychologist, pharmacist, optician, physician’s assistant, midwife, osteopathic physician’s assistant, nurse practitioner, or physician’s trained mobile intensive care paramedic, including, in the event such person is deceased, his or her estate or personal representative; (2) An employee or agent of a person described in part (1) above, acting in the course and scope of his employment, including, in the event such employee or agent is deceased, his or her estate or personal representative; or (3) An entity, whether or not incorporated, facility, or institution employing one or more persons described in part (1) above, including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, employee, or agent thereof acting in the course and scope of his or her employment, including in the event such officer, director, employee, or agent is deceased, his or her estate or personal representative. [1995 c 323 § 3; 1985 c 326 § 27; 1981 c 53 § 1; 1975-’76 2nd ex.s. c 56 § 7.] Effective date—1981 c 53: See note following RCW 18.50.005. Severability—1975-’76 2nd ex.s. c 56: See note following RCW 4.16.350. 7.70.030 7.70.030 Propositions required to be established— Burden of proof. No award shall be made in any action or arbitration for damages for injury occurring as the result of health care which is provided after June 25, 1976, unless the plaintiff establishes one or more of the following propositions: (1) That injury resulted from the failure of a health care provider to follow the accepted standard of care; (2) That a health care provider promised the patient or his representative that the injury suffered would not occur; (3) That injury resulted from health care to which the patient or his representative did not consent. Unless otherwise provided in this chapter, the plaintiff shall have the burden of proving each fact essential to an award by a preponderance of the evidence. [1975-’76 2nd ex.s. c 56 § 8.] Severability—1975-’76 2nd ex.s. c 56: See note following RCW 4.16.350. (2006 Ed.) 7.70.050 7.70.050 Failure to secure informed consent—Necessary elements of proof—Emergency situations. (1) The following shall be necessary elements of proof that injury resulted from health care in a civil negligence case or arbitration involving the issue of the alleged breach of the duty to secure an informed consent by a patient or his representatives against a health care provider: (a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment; (b) That the patient consented to the treatment without being aware of or fully informed of such material fact or facts; (c) That a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts; (d) That the treatment in question proximately caused injury to the patient. (2) Under the provisions of this section a fact is defined as or considered to be a material fact, if a reasonably prudent person in the position of the patient or his representative would attach significance to it deciding whether or not to submit to the proposed treatment. (3) Material facts under the provisions of this section which must be established by expert testimony shall be either: (a) The nature and character of the treatment proposed and administered; (b) The anticipated results of the treatment proposed and administered; (c) The recognized possible alternative forms of treatment; or (d) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment administered and in the recognized possible alternative forms of treatment, including nontreatment. (4) If a recognized health care emergency exists and the patient is not legally competent to give an informed consent and/or a person legally authorized to consent on behalf of the patient is not readily available, his consent to required treatment will be implied. [1975-’76 2nd ex.s. c 56 § 10.] Severability—1975-’76 2nd ex.s. c 56: See note following RCW 4.16.350. 7.70.060 7.70.060 Consent form—Contents—Prima facie evidence—Failure to use. If a patient while legally competent, or his representative if he is not competent, signs a consent [Title 7 RCW—page 83] 7.70.065 Title 7 RCW: Special Proceedings and Actions form which sets forth the following, the signed consent form shall constitute prima facie evidence that the patient gave his informed consent to the treatment administered and the patient has the burden of rebutting this by a preponderance of the evidence: (1) A description, in language the patient could reasonably be expected to understand, of: (a) The nature and character of the proposed treatment; (b) The anticipated results of the proposed treatment; (c) The recognized possible alternative forms of treatment; and (d) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment and in the recognized possible alternative forms of treatment, including nontreatment; (2) Or as an alternative, a statement that the patient elects not to be informed of the elements set forth in subsection (1) of this section. Failure to use a form shall not be admissible as evidence of failure to obtain informed consent. [1975-’76 2nd ex.s. c 56 § 11.] Severability—1975-’76 2nd ex.s. c 56: See note following RCW 4.16.350. Minors access to personal records: RCW 42.48.020. alcohol and drug treatment: RCW 70.96A.095. liability of provider: RCW 26.09.310. mental health treatment: Chapter 71.34 RCW. sexually transmitted diseases: RCW 70.24.110. Records, rights: RCW 70.02.130. 7.70.065 Informed consent—Persons authorized to provide for patients who are not competent—Priority. (1) Informed consent for health care for a patient who is not competent, as defined in RCW 11.88.010(1)(e), to consent may be obtained from a person authorized to consent on behalf of such patient. (a) Persons authorized to provide informed consent to health care on behalf of a patient who is not competent to consent, based upon a reason other than incapacity as defined in RCW 11.88.010(1)(d), shall be a member of one of the following classes of persons in the following order of priority: (i) The appointed guardian of the patient, if any; (ii) The individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions; (iii) The patient’s spouse; (iv) Children of the patient who are at least eighteen years of age; (v) Parents of the patient; and (vi) Adult brothers and sisters of the patient. (b) If the health care provider seeking informed consent for proposed health care of the patient who is not competent to consent under RCW 11.88.010(1)(e), other than a person determined to be incapacitated because he or she is under the age of majority and who is not otherwise authorized to provide informed consent, makes reasonable efforts to locate and secure authorization from a competent person in the first or succeeding class and finds no such person available, authorization may be given by any person in the next class in the order of descending priority. However, no person under this section may provide informed consent to health care: 7.70.065 [Title 7 RCW—page 84] (i) If a person of higher priority under this section has refused to give such authorization; or (ii) If there are two or more individuals in the same class and the decision is not unanimous among all available members of that class. (c) Before any person authorized to provide informed consent on behalf of a patient not competent to consent under RCW 11.88.010(1)(e), other than a person determined to be incapacitated because he or she is under the age of majority and who is not otherwise authorized to provide informed consent, exercises that authority, the person must first determine in good faith that that patient, if competent, would consent to the proposed health care. If such a determination cannot be made, the decision to consent to the proposed health care may be made only after determining that the proposed health care is in the patient’s best interests. (2) Informed consent for health care, including mental health care, for a patient who is not competent, as defined in RCW 11.88.010(1)(e), because he or she is under the age of majority and who is not otherwise authorized to provide informed consent, may be obtained from a person authorized to consent on behalf of such a patient. (a) Persons authorized to provide informed consent to health care, including mental health care, on behalf of a p a ti e n t w h o is i n c a p a c i t at ed , a s d ef i n e d in R C W 11.88.010(1)(e), because he or she is under the age of majority and who is not otherwise authorized to provide informed consent, shall be a member of one of the following classes of persons in the following order of priority: (i) The appointed guardian, or legal custodian authorized pursuant to Title 26 RCW, of the minor patient, if any; (ii) A person authorized by the court to consent to medical care for a child in out-of-home placement pursuant to chapter 13.32A or 13.34 RCW, if any; (iii) Parents of the minor patient; (iv) The individual, if any, to whom the minor’s parent has given a signed authorization to make health care decisions for the minor patient; and (v) A competent adult representing himself or herself to be a relative responsible for the health care of such minor patient or a competent adult who has signed and dated a declaration under penalty of perjury pursuant to RCW 9A.72.085 stating that the adult person is a relative responsible for the health care of the minor patient. Such declaration shall be effective for up to six months from the date of the declaration. (b) A health care provider may, but is not required to, rely on the representations or declaration of a person claiming to be a relative responsible for the care of the minor patient, under (a)(v) of this subsection, if the health care provider does not have actual notice of the falsity of any of the statements made by the person claiming to be a relative responsible for the health care of the minor patient. (c) A health care facility or a health care provider may, in its discretion, require documentation of a person’s claimed status as being a relative responsible for the health care of the minor patient. However, there is no obligation to require such documentation. (d) The health care provider or health care facility where services are rendered shall be immune from suit in any action, civil or criminal, or from professional or other disciplinary action when such reliance is based on a declaration (2006 Ed.) Actions for Injuries Resulting From Health Care signed under penalty of perjury pursuant to RCW 9A.72.085 stating that the adult person is a relative responsible for the health care of the minor patient under (a)(v) of this subsection. (3) For the purposes of this section, "health care," "health care provider," and "health care facility" shall be defined as established in RCW 70.02.010. [2006 c 93 § 1; 2005 c 440 § 2; 2003 c 283 § 29; 1987 c 162 § 1.] Intent—2005 c 440: "(1) It is the intent of the legislature to assist children in the care of kin to access appropriate medical services. Children being raised by kin have faced barriers to medical care because their kinship caregivers have not been able to verify that they are the identified primary caregivers of these children. Such barriers pose an especially significant challenge to kinship caregivers in dealing with health professionals when children are left in their care. (2) It is the intent of the legislature to assist kinship caregivers in accessing appropriate medical care to meet the needs of a child in their care by permitting such responsible adults who are providing care to a child to give informed consent to medical care." [2005 c 440 § 1.] Severability—Part headings not law—2003 c 283: See RCW 71.32.900 and 71.32.901. 7.70.068 Informed consent—May be contained in mental health advance directive. Consent to treatment or admission contained in a validly executed mental health advance directive constitutes informed consent for purposes of this chapter. [2003 c 283 § 30.] 7.70.068 Severability—Part headings not law—2003 c 283: See RCW 71.32.900 and 71.32.901. 7.70.070 Attorneys’ fees. The court shall, in any action under this chapter, determine the reasonableness of each party’s attorneys fees. The court shall take into consideration the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; (8) Whether the fee is fixed or contingent. [1975-’76 2nd ex.s. c 56 § 12.] 7.70.070 Severability—1975-’76 2nd ex.s. c 56: See note following RCW 4.16.350. Attorneys’ fees: Chapter 4.84 RCW. 7.70.080 Evidence of compensation from other source. Any party may present evidence to the trier of fact that the plaintiff has already been compensated for the injury complained of from any source except the assets of the plaintiff, the plaintiff’s representative, or the plaintiff’s immediate family. In the event such evidence is admitted, the plaintiff may present evidence of an obligation to repay such compensation and evidence of any amount paid by the plaintiff, or his 7.70.080 (2006 Ed.) 7.70.100 or her representative or immediate family, to secure the right to the compensation. Compensation as used in this section shall mean payment of money or other property to or on behalf of the plaintiff, rendering of services to the plaintiff free of charge to the plaintiff, or indemnification of expenses incurred by or on behalf of the plaintiff. Notwithstanding this section, evidence of compensation by a defendant health care provider may be offered only by that provider. [2006 c 8 § 315; 1975-’76 2nd ex.s. c 56 § 13.] Findings—Intent—Part headings and subheadings not law—Severability—2006 c 8: See notes following RCW 5.64.010. Severability—1975-’76 2nd ex.s. c 56: See note following RCW 4.16.350. 7.70.090 7.70.090 Hospital governing bodies—Liability— Limitations. Members of the board of directors or other governing body of a public or private hospital are not individually liable for personal injuries or death resulting from health care administered by a health care provider granted privileges to provide health care at the hospital unless the decision to grant the privilege to provide health care at the hospital constitutes gross negligence. [1987 c 212 § 1201; 1986 c 305 § 905.] Preamble—Report to legislature—Applicability—Severability— 1986 c 305: See notes following RCW 4.16.160. 7.70.100 7.70.100 Mandatory mediation of health care claims—Procedures. (1) No action based upon a health care provider’s professional negligence may be commenced unless the defendant has been given at least ninety days’ notice of the intention to commence the action. If the notice is served within ninety days of the expiration of the applicable statute of limitations, the time for the commencement of the action must be extended ninety days from the service of the notice. (2) The provisions of subsection (1) of this section are not applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name. (3) After the filing of the ninety-day presuit notice, and before a superior court trial, all causes of action, whether based in tort, contract, or otherwise, for damages arising from injury occurring as a result of health care provided after July 1, 1993, shall be subject to mandatory mediation prior to trial except as provided in subsection (6) of this section. (4) The supreme court shall by rule adopt procedures to implement mandatory mediation of actions under this chapter. The implementation contemplates the adoption of rules by the supreme court which will require mandatory mediation without exception unless subsection (6) of this section applies. The rules on mandatory mediation shall address, at a minimum: (a) Procedures for the appointment of, and qualifications of, mediators. A mediator shall have experience or expertise related to actions arising from injury occurring as a result of health care, and be a member of the state bar association who has been admitted to the bar for a minimum of five years or who is a retired judge. The parties may stipulate to a nonlawyer mediator. The court may prescribe additional qualifications of mediators; [Title 7 RCW—page 85] 7.70.110 Title 7 RCW: Special Proceedings and Actions (b) Appropriate limits on the amount or manner of compensation of mediators; (c) The number of days following the filing of a claim under this chapter within which a mediator must be selected; (d) The method by which a mediator is selected. The rule shall provide for designation of a mediator by the superior court if the parties are unable to agree upon a mediator; (e) The number of days following the selection of a mediator within which a mediation conference must be held; (f) A means by which mediation of an action under this chapter may be waived by a mediator who has determined that the claim is not appropriate for mediation; and (g) Any other matters deemed necessary by the court. (5) Mediators shall not impose discovery schedules upon the parties. (6) The mandatory mediation requirement of subsection (4) of this section does not apply to an action subject to mandatory arbitration under chapter 7.06 RCW or to an action in which the parties have agreed, subsequent to the arisal of the claim, to submit the claim to arbitration under chapter 7.04A or 7.70A RCW. (7) The implementation also contemplates the adoption of a rule by the supreme court for procedures for the parties to certify to the court the manner of mediation used by the parties to comply with this section. [2006 c 8 § 314; 1993 c 492 § 419.] Findings—Intent—Part headings and subheadings not law—Severability—2006 c 8: See notes following RCW 5.64.010. Medical malpractice review—1993 c 492: "(1) The administrator for the courts shall coordinate a collaborative effort to develop a voluntary system for review of medical malpractice claims by health services experts prior to the filing of a cause of action under chapter 7.70 RCW. (2) The system shall have at least the following components: (a) Review would be initiated, by agreement of the injured claimant and the health care provider, at the point at which a medical malpractice claim is submitted to a malpractice insurer or a self-insured health care provider. (b) By agreement of the parties, an expert would be chosen from a pool of health services experts who have agreed to review claims on a voluntary basis. (c) The mutually agreed upon expert would conduct an impartial review of the claim and provide his or her opinion to the parties. (d) A pool of available experts would be established and maintained for each category of health care practitioner by the corresponding practitioner association, such as the Washington state medical association and the Washington state nurses association. (3) The administrator for the courts shall seek to involve at least the following organizations in a collaborative effort to develop the informal review system described in subsection (2) of this section: (a) The Washington defense trial lawyers association; (b) The Washington state trial lawyers association; (c) The Washington state medical association; (d) The Washington state nurses association and other employee organizations representing nurses; (e) The Washington state hospital association; (f) The Washington state physicians insurance exchange and association; (g) The Washington casualty company; (h) The doctor’s agency; (i) Group health cooperative of Puget Sound; (j) The University of Washington; (k) Washington osteopathic medical association; (l) Washington state chiropractic association; (m) Washington association of naturopathic physicians; and (n) The department of health. (4) On or before January 1, 1994, the administrator for the courts shall provide a report on the status of the development of the system described in this section to the governor and the appropriate committees of the senate and the house of representatives." [1993 c 492 § 418.] [Title 7 RCW—page 86] Findings—Intent—1993 c 492: See notes following RCW 43.72.005. Short title—Severability—Savings—Captions not law—Reservation of legislative power—Effective dates—1993 c 492: See RCW 43.72.910 through 43.72.915. 7.70.110 Mandatory mediation of health care claims—Tolling statute of limitations. The making of a written, good faith request for mediation of a dispute related to damages for injury occurring as a result of health care prior to filing a cause of action under this chapter shall toll the statute of limitations provided in RCW 4.16.350 for one year. [1996 c 270 § 1; 1993 c 492 § 420.] 7.70.110 Findings—Intent—1993 c 492: See notes following RCW 43.72.005. Short title—Severability—Savings—Captions not law—Reservation of legislative power—Effective dates—1993 c 492: See RCW 43.72.910 through 43.72.915. 7.70.120 Mandatory mediation of health care claims—Right to trial not abridged. RCW 7.70.100 may not be construed to abridge the right to trial by jury following an unsuccessful attempt at mediation. [1993 c 492 § 421.] 7.70.120 Findings—Intent—1993 c 492: See notes following RCW 43.72.005. Short title—Severability—Savings—Captions not law—Reservation of legislative power—Effective dates—1993 c 492: See RCW 43.72.910 through 43.72.915. 7.70.130 Mandatory mediation of health care claims—Exempt from arbitration mandate. A cause of action that has been mediated as provided in RCW 7.70.100 shall be exempt from any superior court civil rules mandating arbitration of civil actions or participation in settlement conferences prior to trial. [1993 c 492 § 423.] 7.70.130 Findings—Intent—1993 c 492: See notes following RCW 43.72.005. Short title—Severability—Savings—Captions not law—Reservation of legislative power—Effective dates—1993 c 492: See RCW 43.72.910 through 43.72.915. 7.70.140 Medical malpractice closed claim reporting requirements. (1) As used in this section: (a) "Claim" has the same meaning as in RCW 48.140.010(1). (b) "Claimant" has the same meaning as in RCW 48.140.010(2). (c) "Commissioner" has the same meaning as in RCW 48.140.010(4). (d) "Medical malpractice" has the same meaning as in RCW 48.140.010(9). (2)(a) For claims settled or otherwise disposed of on or after January 1, 2008, the claimant or his or her attorney must report data to the commissioner if any action filed under this chapter results in a final: (i) Judgment in any amount; (ii) Settlement or payment in any amount; or (iii) Disposition resulting in no indemnity payment. (b) As used in this subsection, "data" means: (i) The date of the incident of medical malpractice that was the principal cause of the action; (ii) The principal county in which the incident of medical malpractice occurred; (iii) The date of suit, if filed; (iv) The injured person’s sex and age on the incident date; and 7.70.140 (2006 Ed.) Arbitration of Health Care Actions 7.70A.020 (v) Specific information about the disposition, judgment, or settlement, including: (A) The date and amount of any judgment or settlement; (B) Court costs; (C) Attorneys’ fees; and (D) Costs of expert witnesses. [2006 c 8 § 209.] include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the action, counterclaim, cross-claim, third-party claim, or a defense to a claim, including a reasonable attorney fee. The procedures governing the enforcement of RCW 4.84.185 shall apply to this section. [2006 c 8 § 316.] Findings—Intent—Part headings and subheadings not law—Severability—2006 c 8: See notes following RCW 5.64.010. Findings—Intent—Part headings and subheadings not law—Severability—2006 c 8: See notes following RCW 5.64.010. 7.70.150 7.70.150 Actions alleging violation of accepted standard of care—Certificate of merit required. (1) In an action against an individual health care provider under this chapter for personal injury or wrongful death in which the injury is alleged to have been caused by an act or omission that violates the accepted standard of care, the plaintiff must file a certificate of merit at the time of commencing the action. If the action is commenced within forty-five days prior to the expiration of the applicable statute of limitations, the plaintiff must file the certificate of merit no later than forty-five days after commencing the action. (2) The certificate of merit must be executed by a health care provider who meets the qualifications of an expert in the action. If there is more than one defendant in the action, the person commencing the action must file a certificate of merit for each defendant. (3) The certificate of merit must contain a statement that the person executing the certificate of merit believes, based on the information known at the time of executing the certificate of merit, that there is a reasonable probability that the defendant’s conduct did not follow the accepted standard of care required to be exercised by the defendant. (4) Upon motion of the plaintiff, the court may grant an additional period of time to file the certificate of merit, not to exceed ninety days, if the court finds there is good cause for the extension. (5)(a) Failure to file a certificate of merit that complies with the requirements of this section is grounds for dismissal of the case. (b) If a case is dismissed for failure to file a certificate of merit that complies with the requirements of this section, the filing of the claim against the health care provider shall not be used against the health care provider in professional liability insurance rate setting, personal credit history, or professional licensing and credentialing. [2006 c 8 § 304.] Findings—Intent—Part headings and subheadings not law—Severability—2006 c 8: See notes following RCW 5.64.010. 7.70.160 Frivolous claims. In any action under this section, an attorney that has drafted, or assisted in drafting and filing an action, counterclaim, cross-claim, third-party claim, or a defense to a claim, upon signature and filing, certifies that to the best of the party’s or attorney’s knowledge, information, and belief, formed after reasonable inquiry it is not frivolous, and is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause frivolous litigation. If an action is signed and filed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may 7.70.160 (2006 Ed.) Chapter 7.70A RCW ARBITRATION OF HEALTH CARE ACTIONS Chapter 7.70A Sections 7.70A.010 7.70A.020 7.70A.030 7.70A.040 7.70A.050 7.70A.060 7.70A.070 7.70A.080 7.70A.090 7.70A.900 Actions for personal injury or wrongful death—Arbitration authorized. Election to submit to arbitration—Procedures. Selection of arbitrator. Arbitration proceedings—Experts—Discovery. Arbitration time frames. Issuance of decision—Limitation on award of damages—Fees and expenses. Motion for judgment. Appeal of decision. Application of chapter 7.04A RCW. Findings—Intent—Part headings and subheadings not law— Severability—2006 c 8. 7.70A.010 Actions for personal injury or wrongful death—Arbitration authorized. This chapter applies to any cause of action for damages for personal injury or wrongful death based on alleged professional negligence in the provision of health care where all parties to the action have agreed to submit the dispute to arbitration under this chapter in accordance with the requirements of RCW 7.70A.020. [2006 c 8 § 305.] 7.70A.010 7.70A.020 Election to submit to arbitration—Procedures. (1) Parties in an action covered under RCW 7.70A.010 may elect to submit the dispute to arbitration under this chapter in accordance with the requirements in this section. (a) A claimant may elect to submit the dispute to arbitration under this chapter by including such election in the complaint filed at the commencement of the action. A defendant may elect to submit the dispute to arbitration under this chapter by including such election in the defendant’s answer to the complaint. The dispute will be submitted to arbitration under this chapter only if all parties to the action elect to submit the dispute to arbitration. (b) If the parties do not initially elect to submit the dispute to arbitration in accordance with (a) of this subsection, the parties may make such an election at any time during the pendency of the action by filing a stipulation with the court in which all parties to the action agree to submit the dispute to arbitration under this chapter. (2) A party that does not initially elect to submit a dispute to arbitration under this chapter must file a declaration with the court that meets the following requirements: (a) In the case of a claimant, the declaration must be filed at the time of commencing the action and must state that the attorney representing the claimant presented the claimant with a copy of the provisions of this chapter before commencing the action and that the claimant elected not to submit the dispute to arbitration under this chapter; and 7.70A.020 [Title 7 RCW—page 87] 7.70A.030 Title 7 RCW: Special Proceedings and Actions (b) In the case of a defendant, the declaration must be filed at the time of filing the answer and must state that the attorney representing the defendant presented the defendant with a copy of the provisions of this chapter before filing the defendant’s answer and that the defendant elected not to submit the dispute to arbitration under this chapter. [2006 c 8 § 306.] 7.70A.030 7.70A.030 Selection of arbitrator. (1) An arbitrator shall be selected by agreement of the parties no later than forty-five days after: (a) The date all defendants elected arbitration in the answer where the parties elected arbitration in the initial complaint and answer; or (b) the date of the stipulation where the parties agreed to enter into arbitration after the commencement of the action through a stipulation filed with the court. The parties may agree to select more than one arbitrator to conduct the arbitration. (2) If the parties are unable to agree to an arbitrator by the time specified in subsection (1) of this section, each side may submit the names of three arbitrators to the court, and the court shall select an arbitrator from among the submitted names within fifteen days of being notified that the parties are unable to agree to an arbitrator. If none of the parties submit any names of potential arbitrators, the court shall select an arbitrator. [2006 c 8 § 307.] 7.70A.040 7.70A.040 Arbitration proceedings—Experts—Discovery. The arbitrator may conduct the arbitration in such manner as the arbitrator considers appropriate so as to aid in the fair and expeditious disposition of the proceeding subject to the requirements of this section and RCW 7.70A.050. (1)(a) Except as provided in (b) of this subsection, each party is entitled to two experts on the issue of liability, two experts on the issue of damages, and one rebuttal expert. (b) Where there are multiple parties on one side, the arbitrator shall determine the number of experts that are allowed based on the minimum number of experts necessary to ensure a fair and economic resolution of the action. (2)(a) Unless the arbitrator determines that exceptional circumstances require additional discovery, each party is entitled to the following discovery from any other party: (i) Twenty-five interrogatories, including subparts; (ii) Ten requests for admission; and (iii) In accordance with applicable court rules: (A) Requests for production of documents and things, and for entry upon land for inspection and other purposes; and (B) Requests for physical and mental examinations of persons. (b) The parties shall be entitled to the following depositions: (i) Depositions of parties and any expert that a party expects to call as a witness. Except by order of the arbitrator for good cause shown, the length of the deposition of a party or an expert witness shall be limited to four hours. (ii) Depositions of other witnesses. Unless the arbitrator determines that exceptional circumstances require additional depositions, the total number of depositions of persons who are not parties or expert witnesses is limited to five depositions per side, each of which may last no longer than two [Title 7 RCW—page 88] hours in length. In the deposition of a fact witness, each side is entitled to examine for one hour of the deposition. (3) An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. A subpoena must be served in the manner for service of subpoenas in a civil action and, upon motion to the court by a party to the arbitration proceeding or the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action. [2006 c 8 § 308.] 7.70A.050 7.70A.050 Arbitration time frames. (1) An arbitration under this chapter shall be conducted according to the time frames specified in this section. The time frames provided in this section run from the date all defendants have agreed to arbitration in their answers where the parties elected arbitration in the initial complaint and answer, and from the date of the execution of the stipulation where the parties agreed to enter into arbitration after the commencement of the action through a stipulation filed with the court. The arbitrator shall issue a case scheduling order in every case specifying the dates by which the requirements of (b) through (f) of this subsection must be completed. (a) Within forty-five days, the claimant shall provide stipulations for all relevant medical records to the defendants. (b) Within one hundred twenty days, the claimant shall disclose to the defendants the names and curriculum vitae or other documentation of qualifications of any expert the claimant expects to call as a witness. (c) Within one hundred forty days, each defendant shall disclose to the claimants the names and curriculum vitae or other documentation of qualifications of any expert the defendant expects to call as a witness. (d) Within one hundred sixty days, each party shall disclose to the other parties the name and curriculum vitae or other documentation of qualifications of any rebuttal expert the party expects to call as a witness. (e) Within two hundred forty days, all discovery shall be completed. (f) Within two hundred seventy days, the arbitration hearing shall commence subject to the limited authority of the arbitrator to extend this deadline under subsection (2) of this section. (2) It is the express public policy of the legislature that arbitration hearings under this chapter be commenced no later than twelve months after the parties elect to submit the dispute to arbitration. The arbitrator may grant a continuance of the commencement of the arbitration hearing to a date more than twelve months after the parties elect to submit the dispute to arbitration only where a party shows that exceptional circumstances create an undue and unavoidable hardship on the party. [2006 c 8 § 309.] 7.70A.060 7.70A.060 Issuance of decision—Limitation on award of damages—Fees and expenses. (1) The arbitrator shall issue a decision in writing and signed by the arbitrator within fourteen days after the completion of the arbitration hearing and shall promptly deliver a copy of the decision to each of the parties or their attorneys. (2006 Ed.) Health Care Peer Review (2) The arbitrator may not make an award of damages under this chapter that exceeds one million dollars for both economic and noneconomic damages. (3) The arbitrator may not make an award of damages under this chapter under a theory of ostensible agency liability. (4) With or without the request of a party, the arbitrator shall review the reasonableness of each party’s attorneys’ fees taking into account the factors enumerated in RCW 4.24.005. (5) The fees and expenses of the arbitrator shall be paid by the nonprevailing parties. [2006 c 8 § 310.] 7.70A.070 7.70A.070 Motion for judgment. After a party to the arbitration proceeding receives notice of a decision, the party may file a motion with the court for a judgment in accordance with the decision, at which time the court shall issue such a judgment unless the decision is modified, corrected, or vacated as provided in RCW 7.70A.080. [2006 c 8 § 311.] 7.70A.080 7.70A.080 Appeal of decision. There is no right to a trial de novo on an appeal of the arbitrator’s decision. An appeal of the arbitrator’s decision is limited to the bases for appeal provided in RCW 7.04A.230(1) (a) through (d) and 7.04A.240, or equivalent provisions in a successor statute. [2006 c 8 § 312.] 7.72.010 allows and to permit only those actions in RCW 7.71.020 and 7.71.030. [1987 c 269 § 1.] 7.71.020 7.71.020 Federal law applicable in Washington state. Pursuant to P.L. 99-660 Sec. 411(c)(2), Title IV of that act shall apply in Washington state as of July 26, 1987. [1987 c 269 § 2.] 7.71.030 7.71.030 Actions by health care peer review body— Exclusive remedy. (1) This section shall provide the exclusive remedy for any action taken by a professional peer review body of health care providers as defined in RCW 7.70.020, that is found to be based on matters not related to the competence or professional conduct of a health care provider. (2) Actions shall be limited to appropriate injunctive relief, and damages shall be allowed only for lost earnings directly attributable to the action taken by the professional review body, incurred between the date of such action and the date the action is functionally reversed by the professional peer review body. (3) Reasonable attorneys’ fees and costs as approved by the court shall be awarded to the prevailing party, if any, as determined by the court. (4) The statute of limitations for actions under this section shall be one year from the date of the action of the professional review body. [1987 c 269 § 3.] 7.70A.090 7.70A.090 Application of chapter 7.04A RCW. The provisions of chapter 7.04A RCW do not apply to arbitrations conducted under this chapter except to the extent specifically provided in this chapter. [2006 c 8 § 313.] 7.70A.900 7.70A.900 Findings—Intent—Part headings and subheadings not law—Severability—2006 c 8. See notes following RCW 5.64.010. Chapter 7.71 Chapter 7.71 RCW HEALTH CARE PEER REVIEW Sections 7.71.010 7.71.020 7.71.030 7.71.040 7.71.010 Legislative finding. Federal law applicable in Washington state. Actions by health care peer review body—Exclusive remedy. Chapter does not limit or repeal other immunities conferred by law. 7.71.010 Legislative finding. The legislature finds the assurance of quality and cost-effectiveness in the delivery of health care can be assisted through the review of health care by health care providers. It also recognizes that some peer review decisions may be based on factors other than competence or professional conduct. Although it finds that peer review decisions based on matters unrelated to quality and utilization review need redress, it concludes that it is necessary to balance carefully the rights of the consuming public who benefit by peer review with the rights of those who are occasionally hurt by peer review decisions based on matters other than competence or professional conduct. The legislature intends to foreclose federal antitrust actions to the extent Parker v. Brown, 317 U.S. 341 (1943), (2006 Ed.) 7.71.040 7.71.040 Chapter does not limit or repeal other immunities conferred by law. Nothing in this chapter limits or repeals any other immunities conferred upon participants in the peer review process contained in any other state or federal law. [1987 c 269 § 4.] Chapter 7.72 Chapter 7.72 RCW PRODUCT LIABILITY ACTIONS Sections 7.72.010 7.72.020 7.72.030 7.72.040 7.72.050 7.72.060 7.72.070 Definitions. Scope. Liability of manufacturer. Liability of product seller other than manufacturer—Exception. Relevance of industry custom, technological feasibility, and nongovernmental, legislative or administrative regulatory standards. Length of time product sellers are subject to liability. Food and beverage consumption. Contributory fault: Chapter 4.22 RCW. 7.72.010 7.72.010 Definitions. For the purposes of this chapter, unless the context clearly indicates to the contrary: (1) Product seller. "Product seller" means any person or entity that is engaged in the business of selling products, whether the sale is for resale, or for use or consumption. The term includes a manufacturer, wholesaler, distributor, or retailer of the relevant product. The term also includes a party who is in the business of leasing or bailing such products. The term "product seller" does not include: (a) A seller of real property, unless that person is engaged in the mass production and sale of standardized dwellings or is otherwise a product seller; [Title 7 RCW—page 89] 7.72.020 Title 7 RCW: Special Proceedings and Actions (b) A provider of professional services who utilizes or sells products within the legally authorized scope of the professional practice of the provider; (c) A commercial seller of used products who resells a product after use by a consumer or other product user: PROVIDED, That when it is resold, the used product is in essentially the same condition as when it was acquired for resale; (d) A finance lessor who is not otherwise a product seller. A "finance lessor" is one who acts in a financial capacity, who is not a manufacturer, wholesaler, distributor, or retailer, and who leases a product without having a reasonable opportunity to inspect and discover defects in the product, under a lease arrangement in which the selection, possession, maintenance, and operation of the product are controlled by a person other than the lessor; and (e) A licensed pharmacist who dispenses a prescription product manufactured by a commercial manufacturer pursuant to a prescription issued by a licensed prescribing practitioner if the claim against the pharmacist is based upon strict liability in tort or the implied warranty provisions under the uniform commercial code, Title 62A RCW, and if the pharmacist complies with recordkeeping requirements pursuant to chapters 18.64, 69.41, and 69.50 RCW, and related administrative rules as provided in RCW 7.72.040. Nothing in this subsection (1)(e) affects a pharmacist’s liability under RCW 7.72.040(1). (2) Manufacturer. "Manufacturer" includes a product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product or component part of a product before its sale to a user or consumer. The term also includes a product seller or entity not otherwise a manufacturer that holds itself out as a manufacturer. A product seller acting primarily as a wholesaler, distributor, or retailer of a product may be a "manufacturer" but only to the extent that it designs, produces, makes, fabricates, constructs, or remanufactures the product for its sale. A product seller who performs minor assembly of a product in accordance with the instructions of the manufacturer shall not be deemed a manufacturer. A product seller that did not participate in the design of a product and that constructed the product in accordance with the design specifications of the claimant or another product seller shall not be deemed a manufacturer for the purposes of RCW 7.72.030(1)(a). (3) Product. "Product" means any object possessing intrinsic value, capable of delivery either as an assembled whole or as a component part or parts, and produced for introduction into trade or commerce. Human tissue and organs, including human blood and its components, are excluded from this term. The "relevant product" under this chapter is that product or its component part or parts, which gave rise to the product liability claim. (4) Product liability claim. "Product liability claim" includes any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product. It includes, but is not limited to, any claim or action previously based on: Strict liability in tort; negligence; breach of express or implied warranty; breach of, or failure to, discharge a duty to warn or instruct, [Title 7 RCW—page 90] whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent or innocent; or other claim or action previously based on any other substantive legal theory except fraud, intentionally caused harm or a claim or action under the consumer protection act, chapter 19.86 RCW. (5) Claimant. "Claimant" means a person or entity asserting a product liability claim, including a wrongful death action, and, if the claim is asserted through or on behalf of an estate, the term includes claimant’s decedent. "Claimant" includes any person or entity that suffers harm. A claim may be asserted under this chapter even though the claimant did not buy the product from, or enter into any contractual relationship with, the product seller. (6) Harm. "Harm" includes any damages recognized by the courts of this state: PROVIDED, That the term "harm" does not include direct or consequential economic loss under Title 62A RCW. [1991 c 189 § 3; 1981 c 27 § 2.] Preamble—1981 c 27: "Tort reform in this state has for the most part been accomplished in the courts on a case-by-case basis. While this process has resulted in significant progress and the harshness of many common law doctrines has to some extent been ameliorated by decisional law, the legislature has from time to time felt it necessary to intervene to bring about needed reforms such as those contained in the 1973 comparative negligence act. The purpose of this amendatory act is to enact further reforms in the tort law to create a fairer and more equitable distribution of liability among parties at fault. Of particular concern is the area of tort law known as product liability law. Sharply rising premiums for product liability insurance have increased the cost of consumer and industrial goods. These increases in premiums have resulted in disincentives to industrial innovation and the development of new products. High product liability premiums may encourage product sellers and manufacturers to go without liability insurance or pass the high cost of insurance on to the consuming public in general. It is the intent of the legislature to treat the consuming public, the product seller, the product manufacturer, and the product liability insurer in a balanced fashion in order to deal with these problems. It is the intent of the legislature that the right of the consumer to recover for injuries sustained as a result of an unsafe product not be unduly impaired. It is further the intent of the legislature that retail businesses located primarily in the state of Washington be protected from the substantially increasing product liability insurance costs and unwarranted exposure to product liability litigation." [1981 c 27 § 1.] 7.72.020 7.72.020 Scope. (1) The previous existing applicable law of this state on product liability is modified only to the extent set forth in this chapter. (2) Nothing in this chapter shall prevent the recovery of direct or consequential economic loss under Title 62A RCW. [1981 c 27 § 3.] 7.72.030 7.72.030 Liability of manufacturer. (1) A product manufacturer is subject to liability to a claimant if the claimant’s harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided. (a) A product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product: PROVIDED, That a firearm or ammunition (2006 Ed.) Product Liability Actions shall not be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged. (b) A product is not reasonably safe because adequate warnings or instructions were not provided with the product, if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate. (c) A product is not reasonably safe because adequate warnings or instructions were not provided after the product was manufactured where a manufacturer learned or where a reasonably prudent manufacturer should have learned about a danger connected with the product after it was manufactured. In such a case, the manufacturer is under a duty to act with regard to issuing warnings or instructions concerning the danger in the manner that a reasonably prudent manufacturer would act in the same or similar circumstances. This duty is satisfied if the manufacturer exercises reasonable care to inform product users. (2) A product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer’s express warranty or to the implied warranties under Title 62A RCW. (a) A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line. (b) A product does not conform to the express warranty of the manufacturer if it is made part of the basis of the bargain and relates to a material fact or facts concerning the product and the express warranty proved to be untrue. (c) Whether or not a product conforms to an implied warranty created under Title 62A RCW shall be determined under that title. (3) In determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer. [1988 c 94 § 1; 1981 c 27 § 4.] 7.72.040 Liability of product seller other than manufacturer—Exception. (1) Except as provided in subsection (2) of this section, a product seller other than a manufacturer is liable to the claimant only if the claimant’s harm was proximately caused by: (a) The negligence of such product seller; or (b) Breach of an express warranty made by such product seller; or (c) The intentional misrepresentation of facts about the product by such product seller or the intentional concealment of information about the product by such product seller. (2) A product seller, other than a manufacturer, shall have the liability of a manufacturer to the claimant if: 7.72.040 (2006 Ed.) 7.72.060 (a) No solvent manufacturer who would be liable to the claimant is subject to service of process under the laws of the claimant’s domicile or the state of Washington; or (b) The court determines that it is highly probable that the claimant would be unable to enforce a judgment against any manufacturer; or (c) The product seller is a controlled subsidiary of a manufacturer, or the manufacturer is a controlled subsidiary of the product seller; or (d) The product seller provided the plans or specifications for the manufacture or preparation of the product and such plans or specifications were a proximate cause of the defect in the product; or (e) The product was marketed under a trade name or brand name of the product seller. (3) Subsection (2) of this section does not apply to a pharmacist who dispenses a prescription product in the form manufactured by a commercial manufacturer pursuant to a prescription issued by a licensed practitioner if the pharmacist complies with recordkeeping requirements pursuant to chapters 18.64, 69.41, and 69.50 RCW, and related administrative rules. [1991 c 189 § 2; 1981 c 27 § 5.] 7.72.050 7.72.050 Relevance of industry custom, technological feasibility, and nongovernmental, legislative or administrative regulatory standards. (1) Evidence of custom in the product seller’s industry, technological feasibility or that the product was or was not, in compliance with nongovernmental standards or with legislative regulatory standards or administrative regulatory standards, whether relating to design, construction or performance of the product or to warnings or instructions as to its use may be considered by the trier of fact. (2) When the injury-causing aspect of the product was, at the time of manufacture, in compliance with a specific mandatory government contract specification relating to design or warnings, this compliance shall be an absolute defense. When the injury-causing aspect of the product was not, at the time of manufacture, in compliance with a specific mandatory government specification relating to design or warnings, the product shall be deemed not reasonably safe under RCW 7.72.030(1). [1981 c 27 § 6.] 7.72.060 7.72.060 Length of time product sellers are subject to liability. (1) Useful safe life. (a) Except as provided in subsection (1)(b) hereof, a product seller shall not be subject to liability to a claimant for harm under this chapter if the product seller proves by a preponderance of the evidence that the harm was caused after the product’s "useful safe life" had expired. "Useful safe life" begins at the time of delivery of the product and extends for the time during which the product would normally be likely to perform or be stored in a safe manner. For the purposes of this chapter, "time of delivery" means the time of delivery of a product to its first purchaser or lessee who was not engaged in the business of either selling such products or using them as component parts of another product to be sold. In the case of a product which has been remanufactured by a manufacturer, "time of delivery" means the time of delivery of the remanufactured product to [Title 7 RCW—page 91] 7.72.070 Title 7 RCW: Special Proceedings and Actions its first purchaser or lessee who was not engaged in the business of either selling such products or using them as component parts of another product to be sold. (b) A product seller may be subject to liability for harm caused by a product used beyond its useful safe life, if: (i) The product seller has warranted that the product may be utilized safely for such longer period; or (ii) The product seller intentionally misrepresents facts about its product, or intentionally conceals information about it, and that conduct was a proximate cause of the claimant’s harm; or (iii) The harm was caused by exposure to a defective product, which exposure first occurred within the useful safe life of the product, even though the harm did not manifest itself until after the useful safe life had expired. (2) Presumption regarding useful safe life. If the harm was caused more than twelve years after the time of delivery, a presumption arises that the harm was caused after the useful safe life had expired. This presumption may only be rebutted by a preponderance of the evidence. (3) Statute of limitation. Subject to the applicable provisions of chapter 4.16 RCW pertaining to the tolling and extension of any statute of limitation, no claim under this chapter may be brought more than three years from the time the claimant discovered or in the exercise of due diligence should have discovered the harm and its cause. [1981 c 27 § 7.] 7.72.070 7.72.070 Food and beverage consumption. (1) Any manufacturer, packer, distributor, carrier, holder, marketer, or seller of a food or nonalcoholic beverage intended for human consumption, or an association of one or more such entities, shall not be subject to civil liability in an action brought by a private party based on an individual’s purchase or consumption of food or nonalcoholic beverages in cases where liability is premised upon the individual’s weight gain, obesity, or a health condition associated with the individual’s weight gain or obesity and resulting from the individual’s long-term purchase or consumption of a food or nonalcoholic beverage. (2) For the purposes of this section, the term "long-term consumption" means the cumulative effect of the consumption of food or nonalcoholic beverages, and not the effect of a single instance of consumption. [2004 c 139 § 1.] Short title—2004 c 139: "This act may be cited as the commonsense consumption act." [2004 c 139 § 2.] Chapter 7.75 Chapter 7.75 RCW DISPUTE RESOLUTION CENTERS Sections 7.75.010 7.75.020 7.75.030 7.75.035 7.75.040 7.75.050 7.75.060 7.75.070 Legislative findings and intent. Dispute resolution center—Creation—Plan—Approval by county or municipality. Services to be provided without charge or for fee based on ability to pay. Surcharge by county legislative authority. Dispute resolution agreement required—When admissible as evidence. Confidentiality of centers’ files, etc.—Exception—Privileged communications. Withdrawal from dispute resolution process. Center may seek and expend funds. [Title 7 RCW—page 92] 7.75.080 7.75.090 7.75.100 Statutes of limitations tolled until dispute resolution process concluded. Application of chapter. Immunity from civil action. Mediation testimony competency: RCW 5.60.070 and 5.60.072. 7.75.010 Legislative findings and intent. (1) The legislature finds and declares that: (a) The resolution of many disputes can be costly and complex in a judicial setting where the parties involved are necessarily in an adversary posture and subject to formalized procedures; and (b) Alternative dispute resolution centers can meet the needs of Washington’s citizens by providing forums in which persons may voluntarily participate in the resolution of disputes in an informal and less adversarial atmosphere. (2) It is the intent of the legislature that programs established pursuant to this chapter: (a) Stimulate the establishment and use of dispute resolution centers to help meet the need for alternatives to the courts for the resolution of certain disputes. (b) Encourage continuing community participation in the development, administration, and oversight of local programs designed to facilitate the informal resolution of disputes between and among members of the community. (c) Offer structures for dispute resolution which may serve as models for resolution centers in other communities. (d) Serve a specific community or locale and resolve disputes that arise within that community or locale. (e) Educate the community on ways of using the services of the neighborhood dispute resolution center directly and in a preventive capacity. [1984 c 258 § 501.] 7.75.010 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 7.75.020 Dispute resolution center—Creation— Plan—Approval by county or municipality. (1) A dispute resolution center may be created and operated by a municipality, county, or by a corporation organized exclusively for the resolution of disputes or for charitable or educational purposes. The corporation shall not be organized for profit, and no part of the net earnings may inure to the benefit of any private shareholders or individuals. The majority of the directors of such a corporation shall not consist of members of any single profession. (2) A dispute resolution center may not begin operation under this chapter until a plan for establishing a center for the mediation and settlement of disputes has been approved by the legislative authority of the municipality or county creating the center or, in the case of a center operated by a nonprofit corporation, by the legislative authority of the municipality or county within which the center will be located. A plan for a dispute resolution center shall not be approved and the center shall not begin operation until the legislative authority finds that the plan adequately prescribes: (a) Procedures for filing requests for dispute resolution services with the center and for scheduling mediation sessions participated in by the parties to the dispute; (b) Procedures to ensure that each dispute mediated by the center meets the criteria for appropriateness for mediation set by the legislative authority and for rejecting disputes which do not meet the criteria; 7.75.020 (2006 Ed.) Dispute Resolution Centers (c) Procedures for giving notice of the time, place, and nature of the mediation session to the parties, and for conducting mediation sessions that comply with the provisions of this chapter; (d) Procedures which ensure that participation by all parties is voluntary; (e) Procedures for obtaining referrals from public and private bodies; (f) Procedures for meeting the particular needs of the participants, including, but not limited to, providing services at times convenient to the participants, in sign language, and in languages other than English; (g) Procedures for providing trained and certified mediators who, during the dispute resolution process, shall make no decisions or determinations of the issues involved, but who shall facilitate negotiations by the participants themselves to achieve a voluntary resolution of the issues; and (h) Procedures for informing and educating the community about the dispute resolution center and encouraging the use of the center’s services in appropriate cases. [1997 c 41 § 4; 1984 c 258 § 502.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 7.75.080 (2) A written agreement entered into with the assistance of a center at the conclusion of the written dispute resolution process is admissible as evidence in any judicial or administrative proceeding. [1984 c 258 § 504.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 7.75.050 7.75.050 Confidentiality of centers’ files, etc.— Exception—Privileged communications. Regardless of any provision to the contrary in chapter 42.17 RCW, all memoranda, work notes or products, or case files of centers established under this chapter are confidential and privileged and are not subject to disclosure in any judicial or administrative proceeding unless the court or administrative tribunal determines that the materials were submitted by a participant to the center for the purpose of avoiding discovery of the material in a subsequent proceeding. In all other respects, chapter 7.07 RCW, shall govern the privilege and confidentiality to be accorded to communications made in conjunction with a mediation conducted by a dispute resolution center established under this chapter. [2005 c 172 § 16; 1984 c 258 § 505.] Short title—Captions not law—Severability—Effective date—2005 c 172: See RCW 7.07.900 through 7.07.902 and 7.07.904. 7.75.030 7.75.030 Services to be provided without charge or for fee based on ability to pay. A dispute resolution center established under this chapter shall provide dispute resolution services either without charge to the participants or for a fee which is based on the participant’s ability to pay. [1984 c 258 § 503.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 7.75.035 7.75.035 Surcharge by county legislative authority. (1) A county legislative authority may impose a surcharge of up to ten dollars on each civil filing fee in district court and a surcharge of up to fifteen dollars on each filing fee for small claims actions for the purpose of funding dispute resolution centers established under this chapter. (2) Any surcharge imposed shall be collected by the clerk of the court and remitted to the county treasurer for deposit in a separate account to be used solely for dispute resolution centers established under this chapter. Money received under this section is not subject to RCW 3.62.020(2) or 3.62.090. The accounts created pursuant to this subsection shall be audited by the state auditor in accordance with RCW 43.09.260. [1990 c 172 § 1.] Effective date—1990 c 172: "This act shall take effect July 1, 1990." [1990 c 172 § 4.] 7.75.040 7.75.040 Dispute resolution agreement required— When admissible as evidence. (1) In conducting a dispute resolution process, a center established under this chapter shall require: (a) That the disputing parties enter into a written agreement which expresses the method by which they shall attempt to resolve the issues in dispute; and (b) That at the conclusion of the dispute resolution process, the parties enter into a written agreement which sets forth the settlement of the issues and the future responsibilities, if any, of each party. (2006 Ed.) Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 7.75.060 7.75.060 Withdrawal from dispute resolution process. Any person who voluntarily enters a dispute resolution process at a center established under this chapter may revoke his or her consent, withdraw from dispute resolution, and seek judicial or administrative redress prior to reaching a written resolution agreement. The withdrawal shall be in writing. No legal penalty, sanction, or restraint may be imposed upon the person. [1984 c 258 § 506.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 7.75.070 7.75.070 Center may seek and expend funds. A dispute resolution center established under this chapter may seek and accept contributions from counties and municipalities, agencies of the state and federal governments, private sources, and any other available funds, and may expend the funds to carry out the purposes of this chapter. [1984 c 258 § 507.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 7.75.080 7.75.080 Statutes of limitations tolled until dispute resolution process concluded. Any applicable statute of limitations shall be tolled as to participants in dispute resolution at a center established under this chapter during the period which begins with the date of the participants’ execution of the written agreement required by RCW 7.75.040(1)(a) and ends on the date that a written agreement at the conclusion of the dispute resolution process is executed under RCW 7.75.040(1)(b) or a participant’s written notice of withdrawal from the dispute resolution process is executed under RCW 7.75.060. [1984 c 258 § 508.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. [Title 7 RCW—page 93] 7.75.090 Title 7 RCW: Special Proceedings and Actions 7.75.090 Application of chapter. Nothing in this chapter precludes any person or persons not operating under RCW 7.75.020 from providing dispute resolution services. However, the provisions of RCW 7.75.050, relating to confidentiality, and RCW 7.75.080, relating to statutes of limitation, apply only to proceedings conducted by a dispute resolution center established under this chapter. [1984 c 258 § 509.] 7.75.090 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 7.75.100 Immunity from civil action. (1) Members of the board of directors of a dispute resolution center are immune from suit in any civil action based upon any proceedings or other official acts performed in good faith as members of the board. (2) Employees and volunteers of a dispute resolution center are immune from suit in any civil action based on any proceedings or other official acts performed in their capacity as employees or volunteers, except in cases of wilful or wanton misconduct. (3) A dispute resolution center is immune from suit in any civil action based on any of its proceedings or other official acts performed by its employees, volunteers, or members or its board of directors, except (a) in cases of wilful or wanton misconduct by its employees or volunteers, and (b) in cases of official acts performed in bad faith by members of its board. [1986 c 95 § 2.] 7.75.100 Chapter 7.80 Chapter 7.80 RCW CIVIL INFRACTIONS Sections 7.80.005 7.80.010 7.80.020 7.80.030 7.80.040 7.80.050 7.80.060 7.80.070 7.80.080 7.80.090 7.80.100 7.80.110 7.80.120 7.80.130 7.80.140 7.80.150 7.80.160 7.80.900 7.80.901 Legislative finding—1987 c 456. Jurisdiction of courts. Issuance of process. Training of judicial officers. "Enforcement officer" defined. Notice of infraction—Issuance, service, filing. Person receiving notice—Identification and detention. Notice—Determination final unless contested—Form. Response to notice—Contesting determination—Mitigating circumstances—Hearing—Failure to respond or appear. Hearings—Rules of procedure—Counsel. Hearings—Contesting determination that infraction committed—Appeal. Hearings—Explanation of mitigating circumstances. Monetary penalties—Restitution. Order of court—Civil nature—Modification of penalty— Community restitution. Costs and attorney fees. Notices—Record of—Cancellation prohibited, penalty— Audit. Failure to exercise notice options—Failure to satisfy penalty. Decriminalization of certain municipal ordinances. Effective date—1987 c 456 §§ 9-31. 7.80.005 Legislative finding—1987 c 456. The legislature finds that many minor offenses that are established as misdemeanors are obsolete or can be more appropriately punished by the imposition of civil fines. The legislature finds that some misdemeanors should be decriminalized to allow resources of the legal system, such as judges, prosecutors, juries, and jails, to be used to punish serious criminal behavior, since acts characterized as criminal behavior have a tremendous fiscal impact on the legal system. The establishment of a system of civil infractions is a more expeditious and less expensive method of disposing of 7.80.005 [Title 7 RCW—page 94] minor offenses and will decrease the cost and workload of the courts of limited jurisdiction. [1987 c 456 § 6.] 7.80.010 7.80.010 Jurisdiction of courts. (1) All violations of state law, local law, ordinance, regulation, or resolution designated as civil infractions may be heard and determined by a district court, except as otherwise provided in this section. (2) Any municipal court has the authority to hear and determine pursuant to this chapter civil infractions that are established by municipal ordinance and that are committed within the jurisdiction of the municipality. (3) Any city or town with a municipal court under chapter 3.50 RCW may contract with the county to have civil infractions that are established by city or town ordinance and that are committed within the city or town adjudicated by a district court. (4) District court commissioners have the authority to hear and determine civil infractions pursuant to this chapter. (5) Nothing in this chapter prevents any city, town, or county from hearing and determining civil infractions pursuant to its own system established by ordinance. [1987 c 456 § 9.] 7.80.020 7.80.020 Issuance of process. Notwithstanding any other provision of law governing service of process in civil cases, a court of limited jurisdiction having jurisdiction over an alleged civil infraction may issue process anywhere within the state. [1987 c 456 § 10.] 7.80.030 7.80.030 Training of judicial officers. All judges and court commissioners adjudicating civil infractions shall complete such training requirements as are promulgated by the supreme court. [1987 c 456 § 11.] 7.80.040 7.80.040 "Enforcement officer" defined. As used in this chapter, "enforcement officer" means a person authorized to enforce the provisions of the title or ordinance in which the civil infraction is established. [1987 c 456 § 12.] 7.80.050 7.80.050 Notice of infraction—Issuance, service, filing. (1) A civil infraction proceeding is initiated by the issuance, service, and filing of a notice of civil infraction. (2) A notice of civil infraction may be issued by an enforcement officer when the civil infraction occurs in the officer’s presence. (3) A court may issue a notice of civil infraction if an enforcement officer files with the court a written statement that the civil infraction was committed in the officer’s presence or that the officer has reasonable cause to believe that a civil infraction was committed. (4) Service of a notice of civil infraction issued under subsection (2) or (3) of this section shall be as provided by court rule. Until such a rule is adopted, service shall be as provided in *JTIR 2.2(c)(1) and (3), as applicable. (5) A notice of infraction shall be filed with a court having jurisdiction within forty-eight hours of issuance, excluding Saturdays, Sundays, and holidays. A notice of infraction not filed within the time limits prescribed in this section may be dismissed without prejudice. [1987 c 456 § 13.] (2006 Ed.) Civil Infractions *Reviser’s note: The Justice Court Traffic Infraction Rules (JTIR) were replaced by the Infraction Rules for Courts of Limited Jurisdiction (IRLJ), effective September 1, 1992. 7.80.060 7.80.060 Person receiving notice—Identification and detention. A person who is to receive a notice of civil infraction under RCW 7.80.050 is required to identify himself or herself to the enforcement officer by giving his or her name, address, and date of birth. Upon the request of the officer, the person shall produce reasonable identification, including a driver’s license or identicard. A person who is unable or unwilling to reasonably identify himself or herself to an enforcement officer may be detained for a period of time not longer than is reasonably necessary to identify the person for purposes of issuing a civil infraction. Each agency authorized to issue civil infractions shall adopt rules on identification and detention of persons committing civil infractions. [1987 c 456 § 14.] 7.80.070 7.80.070 Notice—Determination final unless contested—Form. (1) A notice of civil infraction represents a determination that a civil infraction has been committed. The determination is final unless contested as provided in this chapter. (2) The form for the notice of civil infraction shall be prescribed by rule of the supreme court and shall include the following: (a) A statement that the notice represents a determination that a civil infraction has been committed by the person named in the notice and that the determination is final unless contested as provided in this chapter; (b) A statement that a civil infraction is a noncriminal offense for which imprisonment may not be imposed as a sanction; (c) A statement of the specific civil infraction for which the notice was issued; (d) A statement of the monetary penalty established for the civil infraction; (e) A statement of the options provided in this chapter for responding to the notice and the procedures necessary to exercise these options; (f) A statement that at any hearing to contest the determination the state has the burden of proving, by a preponderance of the evidence, that the civil infraction was committed and that the person may subpoena witnesses including the enforcement officer who issued the notice of civil infraction; (g) A statement that at any hearing requested for the purpose of explaining mitigating circumstances surrounding the commission of the civil infraction, the person will be deemed to have committed the civil infraction and may not subpoena witnesses; (h) A statement that the person must respond to the notice as provided in this chapter within fifteen days; (i) A statement that failure to respond to the notice or a failure to appear at a hearing requested for the purpose of contesting the determination or for the purpose of explaining mitigating circumstances will result in a default judgment against the person in the amount of the penalty and that this failure may be referred to the prosecuting attorney for criminal prosecution for failure to respond or appear; (2006 Ed.) 7.80.090 (j) A statement that failure to respond to a notice of civil infraction or to appear at a requested hearing is a misdemeanor and may be punished by a fine or imprisonment in jail. [2006 c 270 § 5; 1987 c 456 § 15.] 7.80.080 7.80.080 Response to notice—Contesting determination—Mitigating circumstances—Hearing—Failure to respond or appear. (1) Any person who receives a notice of civil infraction shall respond to such notice as provided in this section within fifteen days of the date of the notice. (2) If the person determined to have committed the civil infraction does not contest the determination, the person shall respond by completing the appropriate portion of the notice of civil infraction and submitting it, either by mail or in person, to the court specified on the notice. A check or money order in the amount of the penalty prescribed for the civil infraction must be submitted with the response. The clerk of a court may accept cash in payment for an infraction. When a response which does not contest the determination is received, an appropriate order shall be entered in the court’s records. (3) If the person determined to have committed the civil infraction wishes to contest the determination, the person shall respond by completing the portion of the notice of civil infraction requesting a hearing and submitting it, either by mail or in person, to the court specified on the notice. The court shall notify the person in writing of the time, place, and date of the hearing, and that date shall not be earlier than seven days nor more than ninety days from the date of the notice of hearing, except by agreement. (4) If the person determined to have committed the civil infraction does not contest the determination but wishes to explain mitigating circumstances surrounding the infraction, the person shall respond by completing the portion of the notice of civil infraction requesting a hearing for that purpose and submitting it, either by mail or in person, to the court specified on the notice. The court shall notify the person in writing of the time, place, and date of the hearing, and that date shall not be earlier than seven days nor more than ninety days from the date of the notice of hearing, except by agreement. (5) The court shall enter a default judgment assessing the monetary penalty prescribed for the civil infraction and may notify the prosecuting attorney of the failure to respond to the notice of civil infraction or to appear at a requested hearing if any person issued a notice of civil infraction: (a) Fails to respond to the notice of civil infraction as provided in subsection (2) of this section; or (b) Fails to appear at a hearing requested pursuant to subsection (3) or (4) of this section. [1987 c 456 § 16.] 7.80.090 7.80.090 Hearings—Rules of procedure—Counsel. (1) Procedures for the conduct of all hearings provided in this chapter may be established by rule of the supreme court. (2) Any person subject to proceedings under this chapter may be represented by counsel. (3) The attorney representing the state, county, city, or town may appear in any proceedings under this chapter but need not appear, notwithstanding any statute or rule of court to the contrary. [1987 c 456 § 17.] [Title 7 RCW—page 95] 7.80.100 Title 7 RCW: Special Proceedings and Actions 7.80.100 Hearings—Contesting determination that infraction committed—Appeal. (1) A hearing held for the purpose of contesting the determination that a civil infraction has been committed shall be without a jury and shall be recorded in the manner provided for in courts of limited jurisdiction. (2) The court may consider the notice of civil infraction and any other written report made under oath submitted by the enforcement officer who issued the notice or whose written statement was the basis for the issuance of the notice in lieu of the officer’s personal appearance at the hearing. The person named in the notice may request the court for issuance of subpoena of witnesses, including the enforcement officer who issued the notice, and has the right to present evidence and examine witnesses present in court. (3) The burden of proof is upon the state to establish the commission of the civil infraction by a preponderance of the evidence. (4) After consideration of the evidence and argument, the court shall determine whether the civil infraction was committed. Where it has not been established that the civil infraction was committed, an order dismissing the notice shall be entered in the court’s records. Where it has been established that the civil infraction was committed, an appropriate order shall be entered in the court’s records. (5) An appeal from the court’s determination or order shall be to the superior court in the manner provided by the Rules for Appeal of Decisions of Courts of Limited Jurisdiction. The decision of the superior court is subject only to discretionary review pursuant to the Rules of Appellate Procedure. [1987 c 456 § 18.] 7.80.100 7.80.110 Hearings—Explanation of mitigating circumstances. (1) A hearing held for the purpose of allowing a person to explain mitigating circumstances surrounding the commission of a civil infraction shall be an informal proceeding. The person may not subpoena witnesses. The determination that a civil infraction has been committed may not be contested at a hearing held for the purpose of explaining mitigating circumstances. (2) After the court has heard the explanation of the circumstances surrounding the commission of the civil infraction, an appropriate order shall be entered in the court’s records. (3) There is no appeal from the court’s determination or order. [1987 c 456 § 19.] 7.80.110 7.80.120 7.80.120 Monetary penalties—Restitution. (1) A person found to have committed a civil infraction shall be assessed a monetary penalty. (a) The maximum penalty and the default amount for a class 1 civil infraction shall be two hundred fifty dollars, not including statutory assessments, except for an infraction of state law involving potentially dangerous litter as specified in RCW 70.93.060(4) and an infraction of state law involving violent video or computer games under RCW 9.91.180, in which case the maximum penalty and default amount is five hundred dollars; (b) The maximum penalty and the default amount for a class 2 civil infraction shall be one hundred twenty-five dollars, not including statutory assessments; [Title 7 RCW—page 96] (c) The maximum penalty and the default amount for a class 3 civil infraction shall be fifty dollars, not including statutory assessments; and (d) The maximum penalty and the default amount for a class 4 civil infraction shall be twenty-five dollars, not including statutory assessments. (2) The supreme court shall prescribe by rule the conditions under which local courts may exercise discretion in assessing fines for civil infractions. (3) Whenever a monetary penalty is imposed by a court under this chapter it is immediately payable. If the person is unable to pay at that time the court may grant an extension of the period in which the penalty may be paid. If the penalty is not paid on or before the time established for payment, the court may proceed to collect the penalty in the same manner as other civil judgments and may notify the prosecuting authority of the failure to pay. (4) The court may also order a person found to have committed a civil infraction to make restitution. [2003 c 365 § 3; 2003 c 337 § 4; 1997 c 159 § 2; 1987 c 456 § 20.] Reviser’s note: This section was amended by 2003 c 337 § 4 and by 2003 c 365 § 3, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Findings—2003 c 365: See note following RCW 9.91.180. Findings—2003 c 337: See note following RCW 70.93.060. 7.80.130 7.80.130 Order of court—Civil nature—Modification of penalty—Community restitution. (1) An order entered after the receipt of a response which does not contest the determination, or after it has been established at a hearing that the civil infraction was committed, or after a hearing for the purpose of explaining mitigating circumstances is civil in nature. (2) The court may waive, reduce, or suspend the monetary penalty prescribed for the civil infraction. If the court determines that a person has insufficient funds to pay the monetary penalty, the court may order performance of a number of hours of community restitution in lieu of a monetary penalty, at the rate of the then state minimum wage per hour. [2002 c 175 § 1; 1987 c 456 § 21.] Effective date—2002 c 175: "This act takes effect July 1, 2002." [2002 c 175 § 53.] 7.80.140 7.80.140 Costs and attorney fees. Each party to a civil infraction case is responsible for costs incurred by that party, but the court may assess witness fees against a nonprevailing respondent. Attorney fees may be awarded to either party in a civil infraction case. [1987 c 456 § 22.] 7.80.150 7.80.150 Notices—Record of—Cancellation prohibited, penalty—Audit. (1) Every law enforcement agency in this state or other agency authorized to issue notices of civil infractions shall provide in appropriate form notices of civil infractions which shall be issued in books with notices in quadruplicate and meeting the requirements of this section, or issued by an electronic device capable of producing a printed copy and electronic copies of the citations. The chief administrative officer of every such agency shall be responsible for the issuance of such books or electronic devices and shall maintain a record of every such book (2006 Ed.) Natural Resource Infractions or electronic device and each notice contained therein issued to individual members or employees of the agency and shall require and retain a receipt for every book or electronic device so issued. (2) Every law enforcement officer or other person upon issuing a notice of civil infraction to an alleged perpetrator of a civil infraction under the laws of this state or of any ordinance of any city or town shall deposit the original or a printed or electronic copy of such notice of civil infraction with a court having competent jurisdiction over the civil infraction, as provided in RCW 7.80.050. Upon the deposit of the original or a printed or electronic copy of such notice of civil infraction with a court having competent jurisdiction over the civil infraction, the original or copy may be disposed of only as provided in this chapter. (3) It is unlawful and is official misconduct for any law enforcement officer or other officer or public employee to dispose of a notice of civil infraction or copies thereof or of the record of the issuance of the same in a manner other than as required in this section. (4) The chief administrative officer of every law enforcement agency or other agency authorized to issue notices of civil infractions shall require the return to him or her of a copy of every notice issued by a person under his or her supervision to an alleged perpetrator of a civil infraction under any law or ordinance and of all copies of every notice which has been spoiled or upon which any entry has been made and not issued to an alleged perpetrator. Such chief administrative officer shall also maintain or cause to be maintained in connection with every notice issued by a person under his or her supervision a record of the disposition of the charge by the court in which the original or copy of the notice was deposited. (5) Any person who cancels or solicits the cancellation of any notice of civil infraction, in any manner other than as provided in this section, is guilty of a misdemeanor. (6) Every record of notices required in this section shall be audited monthly by the appropriate fiscal officer of the government agency to which the law enforcement agency or other agency authorized to issue notices of civil infractions is responsible. [2004 c 43 § 1; 1987 c 456 § 23.] Effective date—2004 c 43: "This act takes effect July 1, 2004." [2004 c 43 § 6.] 7.80.160 7.80.160 Failure to exercise notice options—Failure to satisfy penalty. (1) Any person who, after receiving a statement of the options provided in this chapter for responding to the notice of civil infraction and the procedures necessary to exercise these options, fails to exercise one of the options in a timely manner is guilty of a misdemeanor regardless of the disposition of the notice of civil infraction. A notice of civil infraction may be complied with by an appearance by counsel. (2) A person who willfully fails to pay a monetary penalty or to perform community restitution as required by a court under this chapter may be found in contempt of court as provided in chapter 7.21 RCW. [2006 c 270 § 6; 2002 c 175 § 2; 1989 c 373 § 12; 1987 c 456 § 24.] Effective date—2002 c 175: See note following RCW 7.80.130. Severability—1989 c 373: See RCW 7.21.900. (2006 Ed.) 7.84.020 7.80.900 7.80.900 Decriminalization of certain municipal ordinances. Any municipal criminal ordinance in existence on the January 1, 1989, which is the same as or substantially similar to a statute which is decriminalized by sections 25 through 30 and 32, chapter 456, Laws of 1987 is deemed to be civil in nature and shall be punished as provided in this chapter. [1987 c 456 § 31.] 7.80.901 7.80.901 Effective date—1987 c 456 §§ 9-31. Sections 9 through 31 of this act shall take effect January 1, 1989. [1987 c 456 § 34.] Chapter 7.84 Chapter 7.84 RCW NATURAL RESOURCE INFRACTIONS Sections 7.84.010 7.84.020 7.84.030 7.84.040 7.84.050 7.84.060 7.84.070 7.84.080 7.84.090 7.84.100 7.84.110 7.84.120 7.84.130 7.84.900 7.84.901 Legislative declaration. "Infraction" defined. Notice of infraction—Issuance, service, filing—Penalty. Jurisdiction of court—Venue. Notice—Determination final unless contested—Form. Response to notice—Contesting determination—Mitigating circumstances—Hearing—Failure to respond or appear— Penalty. Hearing—Rules of procedure—Counsel. Hearing—Contesting determination that infraction committed—Appeal. Hearing—Explanation of mitigating circumstances. Monetary penalties. Order of court—Civil nature—Modification of penalty— Community restitution. Issuance of process. Failure to pay or complete community restitution—Penalty. Effective date—1987 c 380. Severability—1987 c 380. Tree spiking, action for damages: RCW 9.91.155. 7.84.010 7.84.010 Legislative declaration. The legislature declares that decriminalizing certain offenses contained in Titles *75, 76, 77, 79, and 79A RCW and chapter 43.30 RCW and any rules adopted pursuant to those titles and chapters would promote the more efficient administration of those titles and chapters. The purpose of this chapter is to provide a just, uniform, and efficient procedure for adjudicating those violations which, in any of these titles and chapters or rules adopted under these chapters or titles, are declared not to be criminal offenses. The legislature respectfully requests the supreme court to prescribe any rules of procedure necessary to implement this chapter. [1999 c 249 § 502; 1993 c 244 § 2; 1987 c 380 § 1.] *Reviser’s note: Title 75 RCW was recodified, repealed, or decodified in its entirety by 2000 c 107. See Comparative Table for Title 75 RCW, in the Table of Disposition of Former RCW Sections, Volume 0. Severability—1999 c 249: See note following RCW 79A.05.010. Intent—1993 c 244: See note following RCW 79A.60.010. 7.84.020 7.84.020 "Infraction" defined. Unless the context clearly requires otherwise, the definition in this section applies throughout this chapter. "Infraction" means an offense which, by the terms of Title 76, 77, 79, or 79A RCW or *chapter 43.30 RCW and rules adopted under these titles and chapters, is declared not to be a criminal offense and is subject to the provisions of this chapter. [2003 c 39 § 3; 1999 c 249 § 503; 1993 c 244 § 3; 1987 c 380 § 2.] [Title 7 RCW—page 97] 7.84.030 Title 7 RCW: Special Proceedings and Actions *Reviser’s note: Chapter 43.30 RCW was recodified or repealed in its entirety by chapter 334, Laws of 2003. See Comparative Table for chapter 43.30 RCW in the Table of Disposition of Former RCW Sections, Volume 0. Severability—1999 c 249: See note following RCW 79A.05.010. Intent—1993 c 244: See note following RCW 79A.60.010. 7.84.030 7.84.030 Notice of infraction—Issuance, service, filing—Penalty. (1) An infraction proceeding is initiated by the issuance and service of a printed notice of infraction and filing of a printed or electronic copy of the notice of infraction. (2) A notice of infraction may be issued by a person authorized to enforce the provisions of the title or chapter in which the infraction is established when the infraction occurs in that person’s presence. (3) A court may issue a notice of infraction if a person authorized to enforce the provisions of the title or chapter in which the infraction is established files with the court a written statement that the infraction was committed in that person’s presence or that the officer has reason to believe an infraction was committed. (4) Service of a notice of infraction issued under subsection (2) or (3) of this section shall be as provided by court rule. (5) A notice of infraction shall be filed with a court having jurisdiction within five days of issuance, excluding Saturdays, Sundays, and holidays. (6) Failure to sign an infraction notice shall constitute a misdemeanor under chapter 9A.20 RCW. [2004 c 43 § 2; 1987 c 380 § 3.] Effective date—2004 c 43: See note following RCW 7.80.150. 7.84.040 7.84.040 Jurisdiction of court—Venue. (1) Infraction proceedings may be heard and determined by a district court. (2) Infraction proceedings shall be brought in the district court district in which the infraction occurred. If an infraction takes place in the offshore waters, as defined in RCW 77.08.010, the infraction proceeding may be brought in any county bordering on the Pacific Ocean. [2003 c 39 § 4; 1987 c 380 § 4.] 7.84.050 7.84.050 Notice—Determination final unless contested—Form. (1) A notice of infraction represents a determination that an infraction has been committed. The determination shall be final unless contested as provided in this chapter. (2) The form for the notice of infraction shall be prescribed by rule of the supreme court and shall include the following: (a) A statement that the notice represents a determination that an infraction has been committed by the person named in the notice and that the determination shall be final unless contested as provided in this chapter; (b) A statement that an infraction is a noncriminal offense for which imprisonment will not be imposed as a sanction; (c) A statement of the specific infraction for which the notice was issued; (d) A statement of the monetary penalty established for the infraction; [Title 7 RCW—page 98] (e) A statement of the options provided in this chapter for responding to the notice and the procedures necessary to exercise these options; (f) A statement that at any hearing to contest the determination, the state has the burden of proving, by a preponderance of the evidence, that the infraction was committed; and that the person may subpoena witnesses including the officer who issued the notice of infraction; (g) A statement that at any hearing requested for the purpose of explaining mitigating circumstances surrounding the commission of the infraction the person shall be deemed to have committed the infraction and shall not subpoena witnesses; (h) A statement that failure to respond to a notice of infraction within fifteen days is a misdemeanor and may be punished by fine or imprisonment; and (i) A statement that failure to appear at a hearing requested for the purpose of contesting the determination or for the purpose of explaining mitigating circumstances is a misdemeanor and may be punished by fine or imprisonment. [2006 c 270 § 7; 1987 c 380 § 5.] 7.84.060 Response to notice—Contesting determination—Mitigating circumstances—Hearing—Failure to respond or appear—Penalty. (1) Any person who receives a notice of infraction shall respond to such notice as provided in this section within fifteen days of the date of the notice. (2) If the person determined to have committed the infraction does not contest the determination, the person shall respond by completing the appropriate portion of the notice of infraction and submitting it, either by mail or in person, to the court specified on the notice. A check or money order in the amount of the penalty prescribed for the infraction shall be submitted with the response. When a response which does not contest the determination is received, an appropriate order shall be entered in the court’s records. (3) If the person determined to have committed the infraction wishes to contest the determination, the person shall respond by completing the portion of the notice of infraction requesting a hearing and submitting it, either by mail or in person, to the court specified on the notice. The court shall notify the person in writing of the time, place, and date of the hearing, and that date shall not be sooner than seven days from the date of the notice, except by agreement. (4) If the person determined to have committed the infraction does not contest the determination but wishes to explain mitigating circumstances surrounding the infraction, the person shall respond by completing the portion of the notice of infraction requesting a hearing for that purpose and submitting it, either by mail or in person, to the court specified on the notice. The court shall notify the person in writing of the time, place, and date of the hearing. (5) If any person issued a notice of infraction: (a) Fails to respond to the notice of infraction as provided in subsection (2) of this section, or (b) fails to appear at a hearing requested pursuant to subsection (3) or (4) of this section, the court shall enter an appropriate order assessing the monetary penalty prescribed for the infraction and any other penalty authorized by this chapter. In addition, failure to respond to a notice of infraction, as required by this chapter, and failure to appear at a hearing requested pursuant to subsection (3) or (4) 7.84.060 (2006 Ed.) Natural Resource Infractions of this section are each punishable as a misdemeanor under chapter 9A.20 RCW. [1987 c 380 § 6.] 7.84.070 7.84.070 Hearing—Rules of procedure—Counsel. (1) Procedures for the conduct of all hearings provided for in this chapter may be established by rule of the supreme court. (2) Any person subject to proceedings under this chapter may be represented by counsel. [1987 c 380 § 7.] 7.84.080 7.84.080 Hearing—Contesting determination that infraction committed—Appeal. (1) A hearing held for the purpose of contesting the determination that an infraction has been committed shall be without a jury. (2) The court may consider the notice of infraction and any other written report made under oath submitted by the officer who issued the notice or whose written statement was the basis for the issuance of the notice in lieu of the officer’s personal appearance at the hearing. The person named in the notice may subpoena witnesses, including the officer, and has the right to present evidence and examine witnesses present in court. The rules of evidence shall apply to contested hearings. (3) The burden of proof is upon the state to establish the commission of the infraction by a preponderance of the evidence. (4) After consideration of the evidence and argument, the court shall determine whether the infraction was committed. Where it has not been established that the infraction was committed, an order dismissing the notice shall be entered in the court’s records. Where it has been established that the infraction was committed, the court may assess a monetary penalty not exceeding that provided for the infraction in the applicable court rule or statute and shall enter an appropriate order. (5) An appeal from the court’s determination or order shall be to the superior court. A defendant may appeal a judgment entered after a contested hearing finding that the defendant has committed the infraction. The plaintiff may appeal a decision which in effect abates, discontinues, or determines the case other than by a judgment that the defendant has not committed an infraction. No other orders or judgments are appealable by either party. The decision of the superior court is subject only to discretionary review pursuant to the rules of appellate procedure. [1987 c 380 § 8.] 7.84.090 7.84.090 Hearing—Explanation of mitigating circumstances. (1) A hearing held for the purpose of allowing a person to explain mitigating circumstances surrounding the commission of an infraction shall be an informal proceeding. The person may not subpoena witnesses. The determination that an infraction has been committed shall not be contested at a hearing held for the purpose of explaining mitigating circumstances. (2) After the court has heard the explanation of the circumstances surrounding the commission of the infraction, it may assess a monetary penalty not exceeding that provided for the infraction in rules adopted pursuant to this chapter and shall enter an appropriate order. (3) There may be no appeal from the court’s determination or order. [1987 c 380 § 9.] (2006 Ed.) 7.84.901 7.84.100 7.84.100 Monetary penalties. (1) A person found to have committed an infraction shall be assessed a monetary penalty. No penalty may exceed five hundred dollars for each offense unless specifically authorized by statute. (2) The supreme court may prescribe by rule a schedule of monetary penalties for designated infractions. The legislature requests the supreme court to adjust this schedule every two years for inflation. The maximum penalty imposed by the schedule shall be five hundred dollars per infraction and the minimum penalty imposed by the schedule shall be ten dollars per infraction. This schedule may be periodically reviewed by the legislature and is subject to its revision. (3) Whenever a monetary penalty is imposed by a court under this chapter, it is immediately payable. If the person is unable to pay at that time, the court may, in its discretion, grant an extension of the period in which the penalty may be paid. [1987 c 380 § 10.] 7.84.110 7.84.110 Order of court—Civil nature—Modification of penalty—Community restitution. (1) An order entered after the receipt of a response which does not contest the determination, or after it has been established at a hearing that the infraction was committed, or after a hearing for the purpose of explaining mitigating circumstances, is civil in nature. (2) The court may, in its discretion, waive, reduce, or suspend the monetary penalty prescribed for the infraction. At the person’s request, the court may order performance of a number of hours of community restitution in lieu of a monetary penalty, at the rate of the then state minimum wage per hour. [2002 c 175 § 3; 1987 c 380 § 11.] Effective date—2002 c 175: See note following RCW 7.80.130. 7.84.120 7.84.120 Issuance of process. A court of limited jurisdiction having jurisdiction over an alleged infraction may issue process anywhere within the state. [1987 c 380 § 12.] 7.84.130 7.84.130 Failure to pay or complete community restitution—Penalty. (1) Failure to pay a monetary penalty assessed by a court under the provisions of this chapter is a misdemeanor under chapter 9A.20 RCW. (2) Failure to complete community restitution ordered by a court under the provisions of this chapter is a misdemeanor under chapter 9A.20 RCW. [2002 c 175 § 4; 1987 c 380 § 13.] Effective date—2002 c 175: See note following RCW 7.80.130. 7.84.900 7.84.900 Effective date—1987 c 380. This act shall take effect January 1, 1988. [1987 c 380 § 21.] 7.84.901 7.84.901 Severability—1987 c 380. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1987 c 380 § 22.] [Title 7 RCW—page 99] Chapter 7.88 Title 7 RCW: Special Proceedings and Actions Chapter 7.88 RCW CONFIDENTIALITY OF FINANCIAL INSTITUTION COMPLIANCE REVIEW INFORMATION Chapter 7.88 Sections 7.88.005 7.88.010 7.88.020 7.88.030 7.88.040 7.88.050 Findings. Definitions. Compliance review document confidentiality—Civil actions—Immunity of compliance review personnel from compulsory testimony. Compliance review document confidentiality—Exceptions. Court review of application of privilege—Disclosure order. Other privileges not limited, waived, or abrogated. 7.88.005 7.88.005 Findings. The legislature finds and declares that efforts by financial institutions to comply voluntarily with state and federal statutory and regulatory requirements are vital to the public interest; that possible discovery and use in civil litigation of work produced in connection with such voluntary compliance efforts has an undesirable chilling effect on the use, scope, and effectiveness of voluntary compliance efforts by financial institutions; and that the public interest in encouraging aggressive voluntary compliance review outweighs the value of this work product in civil litigation. [1997 c 435 § 1.] 7.88.010 7.88.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Affiliate" means any person that controls, is controlled by, or is under common control with a financial institution. (2) "Civil action" means a civil proceeding pending in a court or other adjudicatory tribunal with jurisdiction to issue a request or subpoena for records, including a voluntary or mandated alternative dispute resolution mechanism under which a party may compel the production of records. "Civil action" does not include an examination or enforcement proceeding initiated by a governmental agency with primary regulatory jurisdiction over a financial institution in possession of a compliance review document. (3) "Compliance review personnel" means a person or persons assigned and directed by the board of directors or management of a financial institution or affiliate to conduct a compliance review, and any person engaged or assigned by compliance review personnel or by the board of directors or management to assist in a compliance review. (4) "Compliance review" means a self-critical analysis conducted by compliance review personnel to test, review, or evaluate past conduct, transactions, policies, or procedures for the purpose of confidentially (a) ascertaining, monitoring, or remediating violations of applicable state and federal statutes, rules, regulations, or mandatory policies, statements, or guidelines, (b) assessing and improving loan quality, loan underwriting standards, or lending practices, or (c) assessing and improving financial reporting to federal or state regulatory agencies. (5) "Compliance review document" means any record prepared or created by compliance review personnel in connection with a compliance review. "Compliance review document" includes any documents created or data generated in the course of conducting a compliance review, but does not include other underlying documents, data, or factual materi[Title 7 RCW—page 100] als that are the subject of, or source materials for, the compliance review, including any documents in existence prior to the commencement of the compliance review that are not themselves compliance review documents related to a past compliance review. (6) "Financial institution" means a bank, trust company, mutual savings bank, savings and loan association, or credit union authorized by federal or state law to accept deposits in this state. (7) "Person" means an individual, group, committee, partnership, firm, association, corporation, limited liability company, or other entity, including a financial institution or affiliate and its agents, employees, legal counsel, auditors, and consultants. [1997 c 435 § 2.] 7.88.020 7.88.020 Compliance review document confidentiality—Civil actions—Immunity of compliance review personnel from compulsory testimony. Except as provided in RCW 7.88.030: (1) Compliance review documents are confidential and are not discoverable or admissible as evidence in any civil action. (2) Compliance review personnel shall not be required to testify at deposition or trial in any civil action concerning the contents of or matters addressed in any compliance review or any compliance review documents, nor as to the actions or activities undertaken by or at the direction of the financial institution or affiliate in connection with a compliance review. [1997 c 435 § 3.] 7.88.030 7.88.030 Compliance review document confidentiality—Exceptions. RCW 7.88.020 does not: (1) Limit the discovery or admissibility in any civil action of any documents that are not compliance review documents; (2) Limit the discovery or admissibility of the testimony as to the identity of relevant witnesses or the identification of any relevant documents other than compliance review documents; (3) Apply if the financial institution or affiliate expressly waives the privilege in writing; (4) Apply if a compliance review document or matters learned in connection with a compliance review are voluntarily disclosed, but only to the extent of that disclosure, to a nonaffiliated third party other than a federal or state regulatory agency or legal counsel for or independent auditors of the financial institution or affiliate; or (5) Apply to any information required by statute, rule, or federal regulation to be maintained by or provided to a governmental agency while the information is in the possession of the agency, to the extent applicable law authorizes its disclosure. [1997 c 435 § 4.] 7.88.040 7.88.040 Court review of application of privilege— Disclosure order. In a proceeding in which the privilege provided by this chapter is asserted, a court of competent jurisdiction may determine after in camera review that the privilege does not apply to any or all of the documents for which the privilege is claimed, and if so, the court may order the materials disclosed but shall protect from disclosure any (2006 Ed.) Sexual Assault Protection Order Act other material in or related to compliance review documents or to activities of compliance review personnel to which the privilege does apply. [1997 c 435 § 5.] 7.88.050 7.88.050 Other privileges not limited, waived, or abrogated. This chapter does not limit, waive, or abrogate the scope or nature of any other statutory or common law privilege of this state or the United States, including the attorney-client privilege. [1997 c 435 § 6.] Chapter 7.90 RCW SEXUAL ASSAULT PROTECTION ORDER ACT Chapter 7.90 Sections 7.90.005 7.90.010 7.90.020 7.90.030 7.90.040 7.90.050 7.90.060 7.90.070 7.90.080 7.90.090 7.90.100 7.90.110 7.90.120 7.90.130 7.90.140 7.90.150 7.90.160 7.90.170 7.90.180 7.90.190 7.90.900 Legislative declaration. Definitions. Petition for a sexual assault protection order—Creation—Contents—Administration. Petition—Who may file. Petition—Additional requirements. Petition—Hearings prior to issuance of protection order. Sexual assault advocates. Appointment of counsel. Evidence. Burden of proof—Issuance of protection order—Remedies— Violations. Accountability for conduct of others. Ex parte temporary sexual assault protection orders—Issuance. Ex parte orders—Duration. Sexual assault protection orders—Contents. Sexual assault protection orders—Service to respondent. Court initiated issuance of sexual assault protection orders— Terms, conditions, requirements, etc. Law enforcement agencies—Entry of protection order data. Modification or termination of protection orders. Administrative office of the courts—Court clerks—Instructional and informational material. Admissibility of ex parte temporary orders in civil actions. Short title—2006 c 138. 7.90.005 Legislative declaration. Sexual assault is the most heinous crime against another person short of murder. Sexual assault inflicts humiliation, degradation, and terror on victims. According to the FBI, a woman is raped every six minutes in the United States. Rape is recognized as the most underreported crime; estimates suggest that only one in seven rapes is reported to authorities. Victims who do not report the crime still desire safety and protection from future interactions with the offender. Some cases in which the rape is reported are not prosecuted. In these situations, the victim should be able to seek a civil remedy requiring that the offender stay away from the victim. [2006 c 138 § 1.] 7.90.005 7.90.010 7.90.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Nonconsensual" means a lack of freely given agreement. (2) "Petitioner" means any named petitioner for the sexual assault protection order or any named victim of nonconsensual sexual conduct or nonconsensual sexual penetration on whose behalf the petition is brought. (3) "Sexual assault protection order" means an ex parte temporary order or a final order granted under this chapter, which includes a remedy authorized by RCW 7.90.090. (4) "Sexual conduct" means any of the following: (2006 Ed.) 7.90.020 (a) Any intentional or knowing touching or fondling of the genitals, anus, or breasts, directly or indirectly, including through clothing; (b) Any intentional or knowing display of the genitals, anus, or breasts for the purposes of arousal or sexual gratification of the respondent; (c) Any intentional or knowing touching or fondling of the genitals, anus, or breasts, directly or indirectly, including through clothing, that the petitioner is forced to perform by another person or the respondent; (d) Any forced display of the petitioner’s genitals, anus, or breasts for the purposes of arousal or sexual gratification of the respondent or others; (e) Any intentional or knowing touching of the clothed or unclothed body of a child under the age of thirteen, if done for the purpose of sexual gratification or arousal of the respondent or others; and (f) Any coerced or forced touching or fondling by a child under the age of thirteen, directly or indirectly, including through clothing, of the genitals, anus, or breasts of the respondent or others. (5) "Sexual penetration" means any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth, or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration. (6) "Nonphysical contact" includes, but is not limited to, telephone calls, mail, e-mail, fax, and written notes. [2006 c 138 § 2.] 7.90.020 Petition for a sexual assault protection order—Creation—Contents—Administration. There shall exist an action known as a petition for a sexual assault protection order. (1) A petition for relief shall allege the existence of nonconsensual sexual conduct or nonconsensual sexual penetration, and shall be accompanied by an affidavit made under oath stating the specific statements or actions made at the same time of the sexual assault or subsequently thereafter, which give rise to a reasonable fear of future dangerous acts, for which relief is sought. Petitioner and respondent shall disclose the existence of any other litigation or of any other restraining, protection, or no-contact orders between the parties. (2) A petition for relief may be made regardless of whether or not there is a pending lawsuit, complaint, petition, or other action between the parties. (3) Within ninety days of receipt of the master copy from the administrative office of the courts, all court clerk’s offices shall make available the standardized forms, instructions, and informational brochures required by RCW 7.90.180 and shall fill in and keep current specific program names and telephone numbers for community resources. Any assistance or information provided by clerks under this section does not constitute the practice of law and clerks are not responsible for incorrect information contained in a petition. (4) No filing fee may be charged for proceedings under this chapter. Forms and instructional brochures and the nec7.90.020 [Title 7 RCW—page 101] 7.90.030 Title 7 RCW: Special Proceedings and Actions essary number of certified copies shall be provided free of charge. (5) A person is not required to post a bond to obtain relief in any proceeding under this section. (6) If the petition states that disclosure of the petitioner’s address would risk abuse of the petitioner or any member of the petitioner’s family or household, that address may be omitted from all documents filed with the court. If the petitioner has not disclosed an address under this subsection, the petitioner shall designate an alternative address at which the respondent may serve notice of any motions. [2006 c 138 § 5.] 7.90.030 7.90.030 Petition—Who may file. A petition for a sexual assault protection order may be filed by a person: (1) Who is a victim of nonconsensual sexual conduct or nonconsensual sexual penetration, including a single incident of nonconsensual sexual conduct or nonconsensual sexual penetration; or (2) On behalf of any of the following persons who is a victim of nonconsensual sexual conduct or nonconsensual sexual penetration: (a) A minor child; (b) A vulnerable adult as defined in RCW 74.34.020 or 74.34.021; or (c) Any other adult who, because of age, disability, health, or inaccessibility, cannot file the petition. [2006 c 138 § 3.] 7.90.040 7.90.040 Petition—Additional requirements. (1) Any person may seek relief under this chapter by filing a petition with a court alleging that the person has been the victim of nonconsensual sexual conduct or nonconsensual sexual penetration committed by the respondent. (2) A person under eighteen years of age who is sixteen years of age or older may seek relief under this chapter and is not required to seek relief by a guardian or next friend. (3) No guardian or guardian ad litem need be appointed on behalf of a respondent to an action under this chapter who is under eighteen years of age if such respondent is sixteen years of age or older. (4) The court may, if it deems necessary, appoint a guardian ad litem for a petitioner or respondent who is a party to an action under this chapter. (5) Jurisdiction of the courts over proceedings under this chapter shall be the same as jurisdiction over domestic violence protection orders under RCW 26.50.020(5). (6) An action under this chapter shall be filed in the county or the municipality where the petitioner resides. [2006 c 138 § 4.] 7.90.050 7.90.050 Petition—Hearings prior to issuance of protection order. Upon receipt of the petition, the court shall order a hearing which shall be held not later than fourteen days from the date of the order. The court may schedule a hearing by telephone pursuant to local court rule, to reasonably accommodate a disability, or in exceptional circumstances to protect a petitioner from further nonconsensual sexual conduct or nonconsensual sexual penetration. The court shall require assurances of the petitioner’s identity [Title 7 RCW—page 102] before conducting a telephonic hearing. Except as provided in RCW 7.90.110, personal service shall be made upon the respondent not less than five court days prior to the hearing. If timely personal service cannot be made, the court shall set a new hearing date and shall require additional attempts at obtaining personal service. The court may issue an ex parte temporary sexual assault order pending the hearing as provided in RCW 7.90.110. [2006 c 138 § 6.] 7.90.060 7.90.060 Sexual assault advocates. Sexual assault advocates, as defined in RCW 5.60.060, shall be allowed to accompany the victim and confer with the victim, unless otherwise directed by the court. Court administrators shall allow sexual assault advocates to assist victims of nonconsensual sexual conduct or nonconsensual sexual penetration in the preparation of petitions for sexual assault protection orders. Sexual assault advocates are not engaged in the unauthorized practice of law when providing assistance of the types specified in this section. Communications between the petitioner and a sexual assault advocate are protected as provided by RCW 5.60.060. [2006 c 138 § 7.] 7.90.070 7.90.070 Appointment of counsel. The court may appoint counsel to represent the petitioner if the respondent is represented by counsel. [2006 c 138 § 8.] 7.90.080 7.90.080 Evidence. (1) In proceedings for a sexual assault protection order and prosecutions for violating a sexual assault protection order, the prior sexual activity or the reputation of the petitioner is inadmissible except: (a) As evidence concerning the past sexual conduct of the petitioner with the respondent when this evidence is offered by the respondent upon the issue of whether the petitioner consented to the sexual conduct with respect to which the offense is alleged; or (b) When constitutionally required to be admitted. (2) No evidence admissible under this section may be introduced unless ruled admissible by the court after an offer of proof has been made at a hearing held in camera to determine whether the respondent has evidence to impeach the witness in the event that prior sexual activity with the respondent is denied. The offer of proof shall include reasonably specific information as to the date, time, and place of the past sexual conduct between the petitioner and the respondent. Unless the court finds that reasonably specific information as to date, time, or place, or some combination thereof, has been offered as to prior sexual activity with the respondent, counsel for the respondent shall be ordered to refrain from inquiring into prior sexual activity between the petitioner and the respondent. The court may not admit evidence under this section unless it determines at the hearing that the evidence is relevant and the probative value of the evidence outweighs the danger of unfair prejudice. The evidence shall be admissible at trial to the extent an order made by the court specifies the evidence that may be admitted and areas with respect to which the petitioner may be examined or cross-examined. [2006 c 138 § 9.] 7.90.090 7.90.090 Burden of proof—Issuance of protection order—Remedies—Violations. (1)(a) If the court finds by (2006 Ed.) Sexual Assault Protection Order Act a preponderance of the evidence that the petitioner has been a victim of nonconsensual sexual conduct or nonconsensual sexual penetration by the respondent, the court shall issue a sexual assault protection order; provided that the petitioner must also satisfy the requirements of RCW 7.90.110 for ex parte temporary orders or RCW 7.90.120 for final orders. (b) The petitioner shall not be denied a sexual assault protection order because the petitioner or the respondent is a minor or because the petitioner did not report the assault to law enforcement. The court, when determining whether or not to issue a sexual assault protection order, may not require proof of physical injury on the person of the victim or proof that the petitioner has reported the sexual assault to law enforcement. Modification and extension of prior sexual assault protection orders shall be in accordance with this chapter. (2) The court may provide relief as follows: (a) Restrain the respondent from having any contact, including nonphysical contact, with the petitioner directly, indirectly, or through third parties regardless of whether those third parties know of the order; (b) Exclude the respondent from the petitioner’s residence, workplace, or school, or from the day care or school of a child, if the victim is a child; (c) Prohibit the respondent from knowingly coming within, or knowingly remaining within, a specified distance from a specified location; and (d) Order any other injunctive relief as necessary or appropriate for the protection of the petitioner. (3) In cases where the petitioner and the respondent are under the age of eighteen and attend the same public or private elementary, middle, or high school, the court, when issuing a protection order and providing relief, shall consider, among the other facts of the case, the severity of the act, any continuing physical danger or emotional distress to the petitioner, and the expense difficulty, and educational disruption that would be caused by a transfer of the respondent to another school. The court may order that the person restrained in the order not attend the public or approved private elementary, middle, or high school attended by the person under the age of eighteen protected by the order. In the event the court orders a transfer of the restrained person to another school, the parents or legal guardians of the person restrained in the order are responsible for transportation and other costs associated with the change of school by the person restrained in the order. The court shall send notice of the restriction on attending the same school as the person protected by the order to the public or approved private school the person restrained by the order will attend and to the school the person protected by the order attends. (4) Denial of a remedy may not be based, in whole or in part, on evidence that: (a) The respondent was voluntarily intoxicated; (b) The petitioner was voluntarily intoxicated; or (c) The petitioner engaged in limited consensual sexual touching. (5) Monetary damages are not recoverable as a remedy. (6) A knowing violation of a court order issued under this section is punishable under RCW 26.50.110. [2006 c 138 § 10.] (2006 Ed.) 7.90.120 7.90.100 7.90.100 Accountability for conduct of others. For the purposes of issuing a sexual assault protection order, deciding what relief should be included in the order, and enforcing the order, RCW 9A.08.020 shall govern whether the respondent is legally accountable for the conduct of another person. [2006 c 138 § 11.] 7.90.110 7.90.110 Ex parte temporary sexual assault protection orders—Issuance. (1) An ex parte temporary sexual assault protection order shall issue if the petitioner satisfies the requirements of this subsection by a preponderance of the evidence. The petitioner shall establish that: (a) The petitioner has been a victim of nonconsensual sexual conduct or nonconsensual sexual penetration by the respondent; and (b) There is good cause to grant the remedy, regardless of prior service of process or of notice upon the respondent, because the harm which that remedy is intended to prevent would be likely to occur if the respondent were given any prior notice, or greater notice than was actually given, of the petitioner’s efforts to obtain judicial relief. (2) If the respondent appears in court for this hearing for an ex parte temporary order, he or she may elect to file a general appearance and testify. Any resulting order may be an ex parte temporary order, governed by this section. (3) If the court declines to issue an ex parte temporary sexual assault protection order, the court shall state the particular reasons for the court’s denial. The court’s denial of a motion for an ex parte [temporary] order shall be filed with the court. (4) A knowing violation of a court order issued under this section is punishable under RCW 26.50.110. [2006 c 138 § 12.] 7.90.120 7.90.120 Ex parte orders—Duration. (1)(a) An ex parte temporary sexual assault protection order shall be effective for a fixed period not to exceed fourteen days. A full hearing, as provided in this chapter, shall be set for not later than fourteen days from the issuance of the temporary order. Except as provided in RCW 7.90.050, the respondent shall be personally served with a copy of the ex parte temporary sexual assault protection order along with a copy of the petition and notice of the date set for the hearing. (b) Any ex parte temporary order issued under this section shall contain the date and time of issuance and the expiration date and shall be entered into a statewide judicial information system by the clerk of the court within one judicial day after issuance. (2) Except as otherwise provided in this section or RCW 7.90.150, a final sexual assault protection order shall be effective for a fixed period of time, not to exceed two years. (3) Any ex parte temporary or final sexual assault protection order may be renewed one or more times, as required. The petitioner may apply for renewal of the order by filing a petition for renewal at any time within the three months before the order expires. If the motion for renewal is uncontested and the petitioner seeks no modification of the order, the order may be renewed on the basis of the petitioner’s motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and [Title 7 RCW—page 103] 7.90.130 Title 7 RCW: Special Proceedings and Actions stating the reason for the requested renewal. Renewals may be granted only in open court. (4) Any sexual assault protection order which would expire on a court holiday shall instead expire at the close of the next court business day. (5) The practice of dismissing or suspending a criminal prosecution in exchange for the issuance of a sexual assault protection order undermines the purposes of this chapter. This section shall not be construed as encouraging that practice. [2006 c 138 § 13.] 7.90.130 7.90.130 Sexual assault protection orders—Contents. (1) Any sexual assault protection order shall describe each remedy granted by the court, in reasonable detail and not by reference to any other document, so that the respondent may clearly understand what he or she must do or refrain from doing. (2) A sexual assault protection order shall further state the following: (a) The name of each petitioner that the court finds was the victim of nonconsensual sexual conduct or nonconsensual sexual penetration by the respondent; (b) The date and time the sexual assault protection order was issued, whether it is an ex parte temporary or final order, and the duration of the order; (c) The date, time, and place for any scheduled hearing for renewal of that sexual assault protection order or for another order of greater duration or scope; (d) For each remedy in an ex parte temporary sexual assault protection order, the reason for entering that remedy without prior notice to the respondent or greater notice than was actually given; (e) For ex parte temporary sexual assault protection orders, that the respondent may petition the court, to reopen the order if he or she did not receive actual prior notice of the hearing and if the respondent alleges that he or she had a meritorious defense to the order or that the order or its remedy is not authorized by this chapter. (3) A sexual assault protection order shall include the following notice, printed in conspicuous type: "A knowing violation of this sexual assault protection order is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest. You can be arrested even if any person protected by the order invites or allows you to violate the order’s prohibitions. You have the sole responsibility to avoid or refrain from violating the order’s provisions. Only the court can change the order." [2006 c 138 § 14.] 7.90.140 7.90.140 Sexual assault protection orders—Service to respondent. (1) An order issued under this chapter shall be personally served upon the respondent, except as provided in subsection (6) of this section. (2) The sheriff of the county or the peace officers of the municipality in which the respondent resides shall serve the respondent personally unless the petitioner elects to have the respondent served by a private party. (3) If service by a sheriff or municipal peace officer is to be used, the clerk of the court shall have a copy of any order issued under this chapter forwarded on or before the next judicial day to the appropriate law enforcement agency spec[Title 7 RCW—page 104] ified in the order for service upon the respondent. Service of an order issued under this chapter shall take precedence over the service of other documents unless they are of a similar emergency nature. (4) If the sheriff or municipal peace officer cannot complete service upon the respondent within ten days, the sheriff or municipal peace officer shall notify the petitioner. The petitioner shall provide information sufficient to permit notification. (5) Returns of service under this chapter shall be made in accordance with the applicable court rules. (6) If an order entered by the court recites that the respondent appeared in person before the court, the necessity for further service is waived and proof of service of that order is not necessary. [2006 c 138 § 15.] 7.90.150 7.90.150 Court initiated issuance of sexual assault protection orders—Terms, conditions, requirements, etc. (1)(a) When any person charged with or arrested for a sex offense as defined in RCW 9.94A.030, a violation of RCW 9A.44.096, a violation of RCW 9.68A.090, or a gross misdemeanor that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a sex offense under RCW 9.94A.030, is released from custody before arraignment or trial on bail or personal recognizance, the court authorizing the release may prohibit that person from having any contact with the victim. The jurisdiction authorizing the release shall determine whether that person should be prohibited from having any contact with the victim. If there is no outstanding restraining or protective order prohibiting that person from having contact with the victim, the court authorizing release may issue, by telephone, a sexual assault protection order prohibiting the person charged or arrested from having contact with the victim or from knowingly coming within, or knowingly remaining within, a specified distance of a location. (b) In issuing the order, the court shall consider the provisions of RCW 9.41.800. (c) The sexual assault protection order shall also be issued in writing as soon as possible. (2)(a) At the time of arraignment or whenever a motion is brought to modify the conditions of the defendant’s release, the court shall determine whether a sexual assault protection order shall be issued or extended. If a sexual assault protection order is issued or extended, the court may also include in the conditions of release a requirement that the defendant submit to electronic monitoring. If electronic monitoring is ordered, the court shall specify who shall provide the monitoring services, and the terms under which the monitoring shall be performed. Upon conviction, the court may require as a condition of the sentence that the defendant reimburse the providing agency for the costs of the electronic monitoring. (b) A sexual assault protection order issued by the court in conjunction with criminal charges shall terminate if the defendant is acquitted or the charges are dismissed, unless the victim files an independent action for a sexual assault protection order. If the victim files an independent action for a sexual assault protection order, the order may be continued by (2006 Ed.) Sexual Assault Protection Order Act the court until a full hearing is conducted pursuant to RCW 7.90.050. (3)(a) The written order releasing the person charged or arrested shall contain the court’s directives and shall bear the legend: "Violation of this order is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest. You can be arrested even if any person protected by the order invites or allows you to violate the order’s prohibitions. You have the sole responsibility to avoid or refrain from violating the order’s provisions. Only the court can change the order." (b) A certified copy of the order shall be provided to the victim at no charge. (4) If a sexual assault protection order has been issued prior to charging, that order shall expire at arraignment or within seventy-two hours if charges are not filed. Such orders need not be entered into the computer-based criminal intelligence information system in this state which is used by law enforcement agencies to list outstanding warrants. (5) Whenever an order prohibiting contact is issued pursuant to subsection (2) of this section, the clerk of the court shall forward a copy of the order on or before the next judicial day to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order, the law enforcement agency shall enter the order for one year or until the expiration date specified on the order into any computerbased criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. Entry into the computer-based criminal intelligence information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any jurisdiction in the state. (6)(a) When a defendant is found guilty of a sex offense as defined in RCW 9.94A.030, any violation of RCW 9A.44.096, or any violation of RCW 9.68A.090, or any gross misdemeanor that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a sex offense under RCW 9.94A.030, and a condition of the sentence restricts the defendant’s ability to have contact with the victim, the condition shall be recorded as a sexual assault protection order. (b) The written order entered as a condition of sentencing shall contain the court’s directives and shall bear the legend: "Violation of this order is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest. You can be arrested even if any person protected by the order invites or allows you to violate the order’s prohibitions. You have the sole responsibility to avoid or refrain from violating the order’s provisions. Only the court can change the order." (c) A final sexual assault protection order entered in conjunction with a criminal prosecution shall remain in effect for a period of two years following the expiration of any sentence of imprisonment and subsequent period of community supervision, conditional release, probation, or parole. (d) A certified copy of the order shall be provided to the victim at no charge. (7) A knowing violation of a court order issued under subsection (1), (2), or (6) of this section is punishable under RCW 26.50.110. (8) Whenever a sexual assault protection order is issued, modified, or terminated under subsection (1), (2), or (6) of this section, the clerk of the court shall forward a copy of the (2006 Ed.) 7.90.180 order on or before the next judicial day to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order, the law enforcement agency shall enter the order for one year or until the expiration date specified on the order into any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. Entry into the computer-based criminal intelligence information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any jurisdiction in the state. Upon receipt of notice that an order has been terminated under subsection (2) of this section, the law enforcement agency shall remove the order from the computer-based criminal intelligence information system. [2006 c 138 § 16.] 7.90.160 7.90.160 Law enforcement agencies—Entry of protection order data. (1) A copy of a sexual assault protection order granted under this chapter shall be forwarded by the clerk of the court on or before the next judicial day to the appropriate law enforcement agency specified in the order. Upon receipt of the order, the law enforcement agency shall immediately enter the order into any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. The order shall remain in the computer for one year or until the expiration date specified on the order. Upon receipt of notice that an order has been terminated, the law enforcement agency shall remove the order from the computer-based criminal intelligence information system. The law enforcement agency shall only expunge from the computer-based criminal intelligence information system orders that are expired, vacated, terminated, or superseded. Entry into the law enforcement information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any county in the state. (2) The information entered into the computer-based criminal intelligence information system shall include notice to law enforcement whether the order was personally served, served by publication, or served by mail. [2006 c 138 § 17.] 7.90.170 7.90.170 Modification or termination of protection orders. Upon application with notice to all parties and after a hearing, the court may modify the terms of an existing sexual assault protection order. In any situation where an order is terminated or modified before its expiration date, the clerk of the court shall forward on or before the next judicial day a true copy of the modified order or the termination order to the appropriate law enforcement agency specified in the modified or termination order. Upon receipt of the order, the law enforcement agency shall promptly enter it in the computerbased criminal intelligence information system, or if the order is terminated, remove the order from the computerbased criminal intelligence information system. [2006 c 138 § 18.] 7.90.180 7.90.180 Administrative office of the courts—Court clerks—Instructional and informational material. (1) The administrative office of the courts shall develop and prepare instructions and informational brochures required under [Title 7 RCW—page 105] 7.90.190 Title 7 RCW: Special Proceedings and Actions RCW 7.90.020, standard petition and order for protection forms, and a court staff handbook on sexual assault, and the protection order process. The standard petition and order for protection forms must be used after September 1, 2006, for all petitions filed and orders issued under this chapter. The instructions, brochures, forms, and handbook shall be prepared in consultation with interested persons, including a representative of the state sexual assault coalition, judges, and law enforcement personnel. (a) The instructions shall be designed to assist petitioners in completing the petition, and shall include a sample of standard petition and order for protection forms. (b) The informational brochure shall describe the use of and the process for obtaining, modifying, and terminating a protection order as provided under this chapter. (c) The order for protection form shall include, in a conspicuous location, notice of criminal penalties resulting from violation of the order, and the following statement: "You can be arrested even if the person or persons who obtained the order invite or allow you to violate the order’s prohibitions. The respondent has the sole responsibility to avoid or refrain from violating the order’s provisions. Only the court can change the order upon written application." (d) The court staff handbook shall allow for the addition of a community resource list by the court clerk. (2) All court clerks shall obtain a community resource list from a sexual assault program serving the county in which the court is located. The community resource list shall include the names and telephone numbers of sexual assault programs serving the community in which the court is located, including law enforcement agencies, domestic violence agencies, sexual assault agencies, legal assistance programs, interpreters, multicultural programs, and batterers’ treatment programs. The court shall make the community resource list available as part of or in addition to the informational brochures described in subsection (1) of this section. (3) The administrative office of the courts shall distribute a master copy of the petition and order forms, instructions, and informational brochures to all court clerks and shall distribute a master copy of the petition and order forms to all superior, district, and municipal courts. (4) For purposes of this section, "court clerks" means court administrators in courts of limited jurisdiction and elected court clerks. (5) The administrative office of the courts shall determine the significant non-English-speaking or limited English-speaking populations in the state. The administrator shall then arrange for translation of the instructions and informational brochures required by this section, which shall contain a sample of the standard petition and order for protection forms, into the languages spoken by those significant nonEnglish-speaking populations and shall distribute a master copy of the translated instructions and informational brochures to all court clerks by December 1, 2006. (6) The administrative office of the courts shall update the instructions, brochures, standard petition and order for protection forms, and court staff handbook when changes in the law make an update necessary. [2006 c 138 § 19.] this chapter shall not be admissible as evidence in any subsequent civil action for damages arising from the conduct alleged in the petition or the order. [2006 c 138 § 20.] 7.90.900 Short title—2006 c 138. This act may be cited as the sexual assault protection order act. [2006 c 138 § 28.] 7.90.900 7.90.190 Admissibility of ex parte temporary orders in civil actions. An ex parte temporary order issued under 7.90.190 [Title 7 RCW—page 106] (2006 Ed.) Title 8 Chapters 8.04 8.08 8.12 8.16 8.20 8.24 8.25 8.26 8.28 Title 8 EMINENT DOMAIN Eminent domain by state. Eminent domain by counties. Eminent domain by cities. Eminent domain by school districts. Eminent domain by corporations. Private ways of necessity. Additional provisions applicable to eminent domain proceedings. Relocation assistance—Real property acquisition policy. Miscellaneous provisions. Access to state timber and other valuable material: RCW 79.36.310 through 79.36.340. Assessments against public lands: RCW 79.44.140. Cemetery districts: RCW 68.52.200. Community renewal law: RCW 35.81.080. Diking and drainage districts appropriation of lands: RCW 85.05.070, 85.05.230, 85.05.240, 85.06.070. in two or more counties: RCW 85.24.260 through 85.24.265. special districts: RCW 85.38.180. Diking, drainage, and sewerage improvement districts: RCW 85.08.190. Drainage districts: Chapter 85.06 RCW. East capitol site: RCW 79.24.520. Eminent domain affecting corporations other than municipal: State Constitution Art. 12 § 10. state Constitution Art. 1 § 16 (Amendment 9). telegraph and telephone companies: State Constitution Art. 12 § 19. Existing and additional toll bridges: RCW 47.58.080. Fire protection districts: Chapters 52.04, 52.12 RCW. Flood control districts: RCW 86.09.202 through 86.09.223. Gas companies: RCW 80.28.220, 80.28.230. Generation of electricity by steam: RCW 43.21A.616. Highways, acquisition in advance of programmed construction: RCW 47.12.190. Housing authority: RCW 35.82.070, 35.82.110. State board for community and technical colleges: RCW 28B.50.090. Tax lien, amount withheld from condemnation award: RCW 84.60.050. Toll bridges: RCW 47.56.090. Toll roads: RCW 47.56.090. Underground storage of natural gas: RCW 80.40.030. Utility district, county-wide—Distribution properties: RCW 54.32.040. Valuation: Chapters 84.33, 84.34, 84.36, 84.38 RCW. Warehouses and elevators: Chapter 22.16 RCW. Water-sewer districts: Chapter 57.16 RCW. Chapter 8.04 Chapter 8.04 RCW EMINENT DOMAIN BY STATE Sections 8.04.010 8.04.020 8.04.060 8.04.070 8.04.080 8.04.090 8.04.092 8.04.094 8.04.097 8.04.098 8.04.099 8.04.100 8.04.110 8.04.112 8.04.114 8.04.120 8.04.130 8.04.140 8.04.150 8.04.160 8.04.170 8.04.180 8.04.191 Petition for appropriation—Contents. Notice—Contents—Service—Publication. Adjournment of proceedings—Further notice. Hearing—Order adjudicating public use. Order to direct determination of damages and offsetting benefits. Order for immediate possession—Payment of tender into court. Determination of adequacy of payment—Jury trial—Costs. Demand for trial—Time of trial—Decree of appropriation. Acquisition when several ownerships. Acquisition when several ownerships—Public use. Acquisition when several ownerships—Selection of single jury. Cases may be consolidated for trial. Trial—Damages to be found. Damages to buildings. Damages to buildings—Where based on readjustment or moving. Judgment—Decree of appropriation—Recording. Payment of damages—Effect—Costs—Appellate review. Claimants, payment of—Conflicting claims. Appellate review. Award, how paid into court. Condemnation for military purposes. Condemnation for military purposes—Construction. Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. Limited access facilities, acquisition of property for: RCW 47.52.050. Additional provisions applicable to eminent domain proceedings: Chapter 8.25 RCW. Metropolitan municipal corporations: RCW 35.58.320. City streets as state highways—Rights of way: RCW 47.24.030. Municipal airports: RCW 14.07.020. Condemnation of blighted property: Chapter 35.80A RCW. Park and playground systems—Counties, service area: Chapter 36.68 RCW. Department of ecology: RCW 43.21A.450, 43.21A.610 through 43.21A.642. Department of fish and wildlife—Acquisition of property—Condemnation— When authorized: RCW 77.12.037. Parking commission: RCW 35.86A.080. Port districts: RCW 53.08.010, 53.08.020, 53.25.100, 53.25.190. Public hospital districts: RCW 70.44.060. Public stadium, convention, performing arts, and visual arts facilities: RCW 67.28.140. Department of transportation—Airports, facilities: RCW 47.68.100, 47.68.120. Joint operating agency: RCW 43.52.391. Mt. St. Helens recovery—Department of transportation: RCW 43.01.210. Public utility districts: Chapters 54.16, 54.20 RCW. Parks and recreation commission: RCW 79A.05.030(7). Public waterways: RCW 91.08.100 through 91.08.260. Reclamation districts: RCW 89.30.130, 89.30.184 through 89.30.208. Puget Sound ferry and toll bridge system: RCW 47.60.020. Quinault Tribal Highway: RCW 47.20.725. Recreational facilities: RCW 67.20.010. Relocation assistance: Chapter 8.26 RCW. Regional transport authorities: RCW 81.112.080. State agency housing: RCW 43.82.030. Road improvement districts: RCW 36.88.310. State highways: Chapter 47.12 RCW. (2006 Ed.) [Title 8 RCW—page 1] 8.04.010 Title 8 RCW: Eminent Domain Tidelands, shorelands, oyster reserves—Department of natural resources: RCW 79.110.350. 8.04.010 8.04.010 Petition for appropriation—Contents. Whenever any officer, board, commission, or other body representing the state is authorized by the legislature to acquire any land, real estate, premises, or other property, deemed necessary for the public uses of the state, or any department or institution thereof, the attorney general shall present to the superior court of the county in which the land, real estate, premises, or other property so sought to be acquired or appropriated is situated, a petition in which the land, real estate, premises, or other property sought to be appropriated shall be described with reasonable certainty, and setting forth the name of each and every owner, encumbrancer, or other person or party interested therein, or any part thereof, insofar as can be ascertained from the public records, the object for which the property is sought to be appropriated, and praying that a jury be impanelled to ascertain and determine the compensation to be made in money to such owner or owners, respectively, and to all tenants, encumbrancers, and others interested, for taking such land, real estate, premises, or other property, or in case a jury is waived, as in other civil cases in courts of record, in the manner prescribed by law, then that the compensation to be made as aforesaid be ascertained and determined by the court. [1955 c 156 § 6; 1911 c 64 § 1; 1891 c 74 § 1; RRS § 891.] owner or person is a nonresident of this state, or that after diligent inquiry his residence is unknown or cannot be ascertained, service may be made by publication thereof in any newspaper published in the county where such lands are situated once a week for two successive weeks; and in case no newspaper is published in said county, then such publication may be had in a newspaper published in the county nearest the county in which lies the land sought to be acquired and appropriated. And such publication shall be deemed service upon each of such nonresident person or persons whose residence is unknown. Such notice shall be signed by the attorney general of the state of Washington. Such notice may be served by any competent person eighteen years of age or over. Due proof of the service of such notice by affidavit of the person serving the same, or by the printer’s affidavit of publication, shall be filed with the clerk of such superior court before or at the time of the presentation of such petition. Want of service of such notice shall render the subsequent proceedings void as to the person not served, but all persons or parties having been served with notice as herein provided, either by publication or otherwise, shall be bound by the subsequent proceedings. In all other cases not otherwise provided for, service of notices, order and other papers in the proceedings, authorized by RCW 8.04.010 through 8.04.160, may be made as the superior court or judge thereof may direct. [1971 ex.s. c 292 § 10; 1891 c 74 § 2; RRS § 892. Formerly RCW 8.04.020, 8.04.030, 8.04.040, 8.04.050.] Severability—1971 ex.s. c 292: See note following RCW 26.28.010. 8.04.020 8.04.020 Notice—Contents—Service—Publication. A notice stating briefly the objects of the petition and containing a description of the land, real estate, premises or property sought to be acquired and appropriated, and stating the time and place when and where the same will be presented to the court or the judge thereof, shall be served on each and every person named therein as owner, encumbrancer, tenant or otherwise interested therein at least ten days previous to the time designated in such notice for the presentation of such petition. Such service shall be made by delivering a copy of such notice to each of the persons or parties so named therein, if a resident of the state; or, in case of the absence of such person or party from his or her usual place of abode, by leaving a copy of such notice at his or her usual place of abode; or, in case of a foreign corporation, at its principal place of business in this state, with some person of more than sixteen years of age. In case of domestic corporations, such service shall be made upon the president, secretary or other director or trustee of such corporation. In case of persons under the age of eighteen years, on their guardians, or in case no guardian shall have been appointed, then on the person who has the care and custody of such person; in case of idiots, lunatics or distracted persons, on their guardians, or in case no guardian shall have been appointed, then on the person in whose care or charge they are found. In case the land, real estate, premises or other property sought to be appropriated is school or county land, the notice shall be served on the auditor of the county in which the land, real estate, premises or other property sought to be acquired and appropriated is situated. In all cases where the owner or person claiming an interest in such real estate or other property is a nonresident of this state, or where the residence of such owner or person is unknown, and an affidavit of the attorney general shall be filed that such [Title 8 RCW—page 2] Publication of legal notices: Chapter 65.16 RCW. Publication of notice in eminent domain proceedings: RCW 4.28.120. Service of process where state land is involved: RCW 8.28.010. 8.04.060 8.04.060 Adjournment of proceedings—Further notice. The court or judge may, upon application of the said attorney general or any owner or party interested, for reasonable cause, adjourn the proceedings from time to time, and may order new or further notice to be given to any party whose interest may be affected. [1891 c 74 § 3; RRS § 893.] 8.04.070 8.04.070 Hearing—Order adjudicating public use. At the time and place appointed for hearing the petition, or to which the hearing may have been adjourned, if the court has satisfactory proof that all parties interested in the lands, real estate, premises or other property described in the petition have been duly served with the notice, and is further satisfied by competent proof that the contemplated use for which the lands, real estate, premises, or other property are sought to be appropriated is really necessary for the public use of the state, it shall make and enter an order, to be recorded in the minutes of the court, and which order shall be final unless appellate review thereof is sought within five days after entry thereof, adjudicating that the contemplated use for which the lands, real estate, premises or other property are sought to be appropriated is really a public use of the state. [1988 c 202 § 6; 1971 c 81 § 33; 1955 c 213 § 2. Prior: 1925 ex.s. c 98 § 1, part; 1891 c 74 § 4, part; RRS § 894, part.] Rules of court: Writ procedure superseded by RAP 2.1, 2.2(a)(4), 5.2, 18.22. Severability—1988 c 202: See note following RCW 2.24.050. (2006 Ed.) Eminent Domain by State 8.04.080 8.04.080 Order to direct determination of damages and offsetting benefits. The order shall direct that determination be had of the compensation and damages to be paid all parties interested in the land, real estate, premises or other property sought to be appropriated for the taking and appropriation thereof, together with the injury, if any, caused by such taking and appropriation to the remainder of the lands, real estate, premises, or other property from which the same is to be taken and appropriated after offsetting against any and all such compensation and damages the special benefits, if any, accruing to such remainder by reason of the appropriation and the use by the state of the lands, real estate, premises, and other property described in the petition. The determination shall be made within thirty days after the entry of such order, before a jury if trial by jury is demanded at the hearing either by the petitioner or by the respondents, otherwise by the court sitting without a jury. If no regular venire has been called so as to be available to serve within such time on application of the petitioner at the hearing, the court may by its order continue such determination to the next regular jury term if a regular venire will be called within sixty days, otherwise the court shall call a special jury within said sixty days and direct that a jury panel be selected and summoned pursuant to chapter 2.36 RCW, from the citizens of the county in which the lands, real estate, premises, or other property sought to be appropriated are situated, as many qualified persons as may be necessary in order to form a jury of twelve persons, unless the petitioner and respondents both consent to a less number of jurors (such number to be not less than three), and such consent is entered by the clerk in the minutes of such hearing. In any county with a population of less than seventy thousand, the costs of such special jury for the trial of such condemnation cases only shall be borne by the state. [1991 c 363 § 8; 1988 c 188 § 15; 1955 c 213 § 3. Prior: 1925 ex.s. c 98 § 1, part; 1891 c 74 § 4, part; RRS § 894, part.] Rules of court: CR 47, 48. Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. Juries in courts of limited jurisdiction: RCW 2.36.050. 8.04.090 8.04.090 Order for immediate possession—Payment of tender into court. In case the state shall require immediate possession and use of the property sought to be condemned, and an order of necessity shall have been granted, and no review has been taken therefrom, the attorney general may stipulate with respondents in accordance with the provisions of this section and RCW 8.04.092 and 8.04.094 for an order of immediate possession and use, and file with the clerk of the court wherein the action is pending, a certificate of the state’s requirement of immediate possession and use of the land, which shall state the amount of money offered to the respondents and shall further state that such offer constitutes a continuing tender of such amount. The attorney general shall file a copy of the certificate with the office of financial management, which forthwith shall issue and deliver to him a warrant payable to the order of the clerk of the court wherein the action is pending in a sum sufficient to pay the amount offered, which shall forthwith be paid into the registry of the (2006 Ed.) 8.04.094 court. The court without further notice to respondent shall enter an order granting to the state the immediate possession and use of the property described in the order of necessity, which order shall bind the petitioner to pay the full amount of any final judgment of compensation and damages which may thereafter be awarded for the taking and appropriation of the lands, real estate, premises, or other property described in the petition and for the injury, if any, to the remainder of the lands, real estate, premises, or other property from which they are to be taken by reason of such taking and appropriation, after offsetting against any and all such compensation and damages the special benefits, if any, accruing to such remainder by reason of the appropriation and use by the state of the lands, real estate, premises, or other property described in the petition. The moneys paid into court may at any time after entry of the order of immediate possession, be withdrawn by respondents, by order of the court, as their interests shall appear. [1979 c 151 § 7; 1973 c 106 § 7; 1955 c 213 § 4. Prior: 1951 c 177 § 1; 1925 ex.s. c 98 § 1, part; RRS § 894, part.] 8.04.092 8.04.092 Determination of adequacy of payment— Jury trial—Costs. The amount paid into court shall constitute just compensation paid for the taking of such property: PROVIDED, That respondents may, in the same action, request a trial for the purpose of assessing the amount of compensation to be made and the amount of damages arising from the taking. At the trial, the date of valuation of the property shall be the date of entry of the order granting to the state immediate possession and use of the property. If, pursuant to such hearing, the verdict of the jury, unless a jury is waived by all parties, or decision of the court, awards respondents an amount in excess of the tender, the court shall order the excess paid to respondents with interest thereon from the time of the entry of the order of immediate possession, and shall charge the costs of the action to the state. If, pursuant to the trial, the verdict of the jury or decision of the court awards respondents an amount equal to the tender, the costs of the action shall be charged to the state, and if the verdict or decision awards an amount less than the amount of the tender, the state shall be taxed for costs and the state, if respondents have accepted the tender and withdrawn the amount paid into court, shall be entitled to a judgment for the difference; otherwise, the excess on deposit shall be returned to the state. [1983 c 140 § 1; 1955 c 155 § 1; 1951 c 177 § 2.] 8.04.094 8.04.094 Demand for trial—Time of trial—Decree of appropriation. If any respondent shall elect to demand a trial for the purpose of assessing just compensation and damages arising from the taking, he shall so move within sixty days from the date of entry of the order of immediate possession and use, and the issues shall be brought to trial within one year from the date of such order unless good and sufficient proof shall be offered and it shall appear therefrom to the court that the hearing could not have been held within said year. In the event that no such demand be timely made or having been timely made, shall not be brought to trial within the limiting period, the court, upon application of the state, shall enter a decree of appropriation for the amount paid into court under the provisions of RCW 8.04.090, as the total sum [Title 8 RCW—page 3] 8.04.097 Title 8 RCW: Eminent Domain to which respondents are entitled, and such decree shall be final and nonappealable. [1951 c 177 § 3.] 8.04.097 8.04.097 Acquisition when several ownerships. Whenever it becomes necessary on behalf of the state to acquire by condemnation more than one tract of land, property, or property rights, existing in any one county, and held in different ownerships or interests, the state may consolidate and file a single petition as one action against the several tracts of land, property, or property rights held by said different ownerships or interests, setting forth separately the descriptions of the tracts of land, property, or property rights needed, and the owners, persons, or parties interested therein. [1955 c 156 § 1. Formerly RCW 8.04.190.] nesses may be examined in behalf of either party to the proceedings as in civil actions; and a witness served with a subpoena in each proceeding shall be punished for failure to appear at such trial, or for perjury, as upon a trial of a civil action. In case a jury is not demanded as provided for in *section 894 such total amount of damages shall be ascertained and determined by the court or judge thereof and the proceedings shall be the same as in trials of an issue of fact by the court. [1925 ex.s. c 98 § 2; 1891 c 74 § 5; RRS § 895.] Rules of court: CR 26 through 37. *Reviser’s note: "section 894" refers to RRS § 894 herein codified (as amended) as RCW 8.04.070, 8.04.080, 8.04.090, and 8.04.100. Witnesses, examination of: Title 5 RCW. 8.04.112 8.04.098 8.04.098 Acquisition when several ownerships— Public use. At the time and place appointed for hearing the petition, the court may enter an order adjudicating public use as affecting all tracts of land, property, or property rights as described therein, which order shall be final as to those respondents not seeking a review to the supreme court or the court of appeals within five days after the entry thereof. [1971 c 81 § 34; 1955 c 156 § 2. Formerly RCW 8.04.200.] 8.04.099 8.04.099 Acquisition when several ownerships— Selection of single jury. Thereafter, if requested by the state, a single jury shall be selected to hear and determine in separate trials, the amount of compensation and damages, if any, that shall be paid for the different tracts, parcels, property, or property rights, as set forth in the petition. [1955 c 156 § 3. Formerly RCW 8.04.210.] Juries—Civil actions, selection, impaneling, and swearing of: Chapters 2.36, 4.44 RCW. 8.04.100 8.04.100 Cases may be consolidated for trial. At the time of fixing the date for trial by jury in any case the court may, on application of the petitioner, order that any one or more condemnation cases then pending before the court and requiring determination by a jury of the compensation and damages as aforesaid be consolidated and tried before one and the same jury but with a separate award to be made in each case. If necessary, the sheriff, under direction of the court or judge thereof, shall summon as many qualified persons as may be required to complete the jury from citizens of the county where such lands, real estate, premises or other property sought to be appropriated are situated. [1955 c 213 § 5. Prior: 1925 ex.s. c 98 § 1, part; RRS § 894, part.] 8.04.110 8.04.110 Trial—Damages to be found. A judge of the superior court shall preside at the trial to determine the compensation and damage to be awarded, which trial shall be held at the court house in the county where the land, real estate, premises or other property sought to be appropriated or acquired is situated: and in the case of each such trial by jury the jurors by their verdict shall fix as a lump sum the total amount of damages which shall result to all persons or parties and to any county and to all tenants, encumbrancers and others interested therein, by reason of the appropriation and use of the lands, real estate, premises or other property sought to be appropriated or acquired. Upon the trial, wit[Title 8 RCW—page 4] 8.04.112 Damages to buildings. If there is a building standing, in whole or in part, upon any land to be taken, the jury shall add to their finding of the value of the land taken, the damages to the building. If the entire building is taken, or if the building is damaged, so that it cannot be readjusted to the premises, then the measure of damages shall be the fair market value of the building. If part of the building is taken or damaged and the building can be readjusted or replaced on the part of the land remaining, and the state agrees thereto, then the measure of damages shall be the cost of readjusting or moving the building, or the part thereof left, together with the depreciation in the market value of the building by reason of such readjustment or moving. [1955 c 156 § 4.] 8.04.114 8.04.114 Damages to buildings—Where based on readjustment or moving. If damages are based upon readjustment or moving of building or buildings, the court shall order and fix the time in the judgment and decree of appropriation within which any such building must be moved or readjusted. Upon failure to comply with said order, the state may move said building upon respondent’s remaining land and recover its costs and expenses incidental thereto. The state shall have a lien upon the building and the remaining land from the date of the judgment and decree of appropriation for the necessary costs and expenses of removal until the order of the court has been complied with. The amount of the lien and satisfaction thereof shall be by application and entry of a supplemental judgment in said proceedings and execution thereon. [1955 c 156 § 5.] 8.04.120 8.04.120 Judgment—Decree of appropriation— Recording. At the time of rendering judgment for damages, whether upon default or trial, the court or judge thereof shall also enter a judgment or decree of appropriation of the land, real estate or premises sought to be appropriated, thereby vesting the legal title to the same in the state of Washington. Whenever said judgment or decree of appropriation is made, a certified copy of such judgment or decree of appropriation may be filed for record in the office of the auditor of the county where the said land, real estate or other premises are situated, and shall be recorded by said auditor like a deed of real estate, and with like effect. [1891 c 74 § 6; RRS § 896.] Recording of deeds of real estate: Title 65 RCW. 8.04.130 8.04.130 Payment of damages—Effect—Costs— Appellate review. Upon the entry of judgment upon the ver(2006 Ed.) Eminent Domain by State dict of the jury or the decision of the court awarding damages, the state may make payment of the damages and the costs of the proceedings by depositing them with the clerk of the court, to be paid out under the direction of the court or judge thereof; and upon making such payment into court of the damages assessed and allowed for any land, real estate, premises, or other property mentioned in the petition, and of the costs, the state shall be released and discharged from any and all further liability therefor, unless upon appeal the owner or party interested recovers a greater amount of damages; and in that case the state shall be liable only for the amount in excess of the sum paid into court and the costs of appeal. In the event appellate review is sought by any party to the proceedings, the moneys paid into the superior court by the state pursuant to this section shall remain in the custody of the court until the final determination of the proceedings by the supreme court or the court of appeals. [1988 c 202 § 7; 1971 c 81 § 35; 1951 c 177 § 4; 1925 ex.s. c 98 § 3; 1891 c 74 § 7; RRS § 897.] Severability—1988 c 202: See note following RCW 2.24.050. 8.04.140 8.04.140 Claimants, payment of—Conflicting claims. Any person, corporation or county claiming to be entitled to any money paid into court, as provided in RCW 8.04.010 through 8.04.160, may apply to the court therefor, and upon furnishing evidence satisfactory to the court that he or it is entitled to the same, the court shall make an order directing the payment to such claimant the portion of such money as he or it shall be found entitled to; but if, upon application, the court or judge thereof should decide that the title to the land, real estate or premises specified in the application of such claimant was in such condition as to require that an action be commenced to determine the conflicting claims thereto, he shall refuse such order until such action is commenced and the conflicting claims to such land, real estate or premises be determined according to law. [1891 c 74 § 8; RRS § 898.] 8.04.150 8.04.150 Appellate review. Either party may seek appellate review of the judgment for damages entered in the superior court within thirty days after the entry of judgment as aforesaid, and such review shall bring before the supreme court or the court of appeals the propriety and justness of the amount of damages in respect to the parties to the review: PROVIDED HOWEVER, That upon such review no bond shall be required: AND PROVIDED FURTHER, That if the owner of land, the real estate or premises accepts the sum awarded by the jury, the court or the judge thereof, he shall be deemed thereby to have waived conclusively appellate review, and final judgment by default may be rendered in the superior court as in other cases: PROVIDED FURTHER, That no review shall operate so as to prevent the said state of Washington from taking possession of such property pending review after the amount of said award shall have been paid into court. [1988 c 202 § 8; 1971 c 81 § 36; 1891 c 74 § 9; RRS § 899.] Rules of court: Cf. RAP 5.2, 8.1, 18.22. Severability—1988 c 202: See note following RCW 2.24.050. 8.04.160 8.04.160 Award, how paid into court. Whenever the attorney general shall file with the director of financial man(2006 Ed.) 8.04.170 agement a certificate setting forth the amount of any award found against the state of Washington under the provisions of RCW 8.04.010 through 8.04.160, together with the costs of said proceeding, and a description of the lands and premises sought to be appropriated and acquired, and the title of the action or proceeding in which said award is rendered, it shall be the duty of the office of financial management to forthwith issue a warrant upon the state treasury to the order of the attorney general in a sum sufficient to make payment in money of said award and the costs of said proceeding, and thereupon it shall be the duty of said attorney general to forthwith pay to the clerk of said court in money the amount of said award and costs. [1979 c 151 § 8; 1973 c 106 § 8; 1891 c 74 § 10; RRS § 900.] 8.04.170 8.04.170 Condemnation for military purposes. Whenever the governor, as commander-in-chief of the military of this state, shall deem it necessary to acquire any lands, real estate, premises or other property for any military purpose or purposes of this state, either to add to, enlarge, increase or otherwise improve state military facilities now or hereafter existing or to establish new facilities, the acquisition of which shall have been provided for by the state, by a county or by a city, or by either, all or any thereof, upon certificate by the governor of such necessity, proceedings for the condemnation, appropriation and taking of the lands, real estate, premises or other property so certified to be necessary shall be taken as follows: Where the state is to pay the purchase price it shall be the duty of the attorney general, upon receipt by him of said certificate of the governor, to file a petition in the superior court for the county in which such lands, real estate, premises or other property may be situate praying such condemnation, appropriating and taking, which petition shall be prosecuted to a final determination in the manner by law provided for other condemnation suits brought by or on behalf of the state; Where a county is to pay the purchase price it shall be the duty of the prosecuting attorney of said county upon receipt by him of said certificate of the governor, to file a petition in the superior court for said county praying such condemnation, appropriation and taking, which petition shall be prosecuted to a final determination in the manner by law provided for other condemnation suits brought by or on behalf of a county; Where a city is to pay the purchase price it shall be the duty of the corporation counsel, city attorney or other head of the legal department of said city, upon receipt by him of said certificate of the governor, to file a petition in the superior court for the county in which said city is situate, praying such condemnation, appropriation and taking, which petition shall be prosecuted to a final determination in the manner by law provided for other condemnation suits brought by or on behalf of such city; Where the purchase price is to be paid by the state, a county and a city or by the state and a county, or by the state and a city, or by a county and a city, the condemnation shall be prosecuted to a final determination in the manner by law provided for either or any thereof, as the governor may determine, which determination shall be final and conclusive. [1917 c 153 § 1; RRS § 900-1.] [Title 8 RCW—page 5] 8.04.180 Title 8 RCW: Eminent Domain Notice where military land is involved: RCW 8.28.030. 8.04.180 Condemnation for military purposes—Construction. Nothing contained in RCW 8.04.170 shall be construed as in any manner applying to condemnation by any county for the purpose of acquiring title to any site for a mobilization, training and supply station, to be donated by any county to the United States. [1917 c 153 § 2; RRS § 9002.] 8.04.180 8.04.191 Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. See RCW 8.25.270. 8.04.191 Chapter 8.08 Chapter 8.08 RCW EMINENT DOMAIN BY COUNTIES Sections 8.08.010 8.08.020 8.08.030 8.08.040 8.08.050 8.08.060 8.08.070 8.08.080 8.08.090 8.08.100 8.08.110 8.08.120 8.08.130 8.08.140 8.08.141 8.08.150 Condemnation authorized for general county purposes—Petition. Public use declared. Notice of presentation of petition. Hearing—Order adjudicating public use. Trial—Damages to be found. Judgment—Decree of appropriation. Costs. Appellate review. Appropriation authorized in aid of federal or state improvement. Mode of appropriation. Tax levy to pay costs. Indebtedness is for general county purposes. Limitation. Condemnation for military purposes. Condemnation for military purposes—Construction. Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. Additional provisions applicable to eminent domain proceedings: Chapter 8.25 RCW. Contracts with cities: RCW 36.64.070. County rail districts: RCW 36.60.070. Fairs: RCW 36.37.020. Flood control by counties: RCW 86.12.020. Irrigation purposes: RCW 87.03.140 through 87.03.150. Land registration: RCW 65.12.400, 65.12.610. Limited access facilities: RCW 47.52.050. Local improvement districts: RCW 36.69.270, 36.94.240. present to the superior court of the county in which said land, real estate, premises, or other property so sought to be acquired or appropriated shall be situated, a petition in which the land, real estate, premises, or other property sought to be appropriated shall be described with reasonable certainty, and setting forth the name of each and every owner, encumbrancer, or other person or party interested in the same, or any part thereof, so far as the same can be ascertained from the public records, the object for which the land is sought to be appropriated, and praying that a jury be impaneled to ascertain and determine the compensation to be made in money to such owner or owners respectively, and to all tenants, encumbrancers, or others interested, for taking such lands, real estate, premises, or other property, or in case a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law, then that the compensation to be made as aforesaid be ascertained or determined by the court or the judge thereof. [1949 c 79 § 1; Rem. Supp. 1949 § 3991-6.] 8.08.020 8.08.020 Public use declared. Any condemnation, appropriation or disposition intended in RCW 8.08.010 through 8.08.080 shall be deemed and held to be for a county purpose and public use within the meaning of RCW 8.08.010 through 8.08.080 when it is directly or indirectly, approximately or remotely for the general benefit or welfare of the county or of the inhabitants thereof. [1949 c 79 § 2; Rem. Supp. 1949 § 3991-7.] 8.08.030 8.08.030 Notice of presentation of petition. A notice, stating the time and place when and where such petition shall be presented to the court or the judge thereof, together with a copy of such petition, shall be served on each and every person named therein as owner or otherwise interested therein, at least ten days previous to the time designated in such notice for the presentation of such petition. Such notice shall be signed by the prosecuting attorney of the county wherein the real estate or property sought to be taken is situated, and may be served in the same manner as a summons in a civil action in such superior court is authorized by law to be served. [1949 c 79 § 3; Rem. Supp. 1949 § 3991-8.] Publication of notice in eminent domain proceedings: RCW 4.28.120. Relocation assistance: Chapter 8.26 RCW. 8.08.040 River improvements: RCW 86.12.020. Roads, bridges powers of county commissioners: RCW 36.75.040. rights-of-way: RCW 36.85.010, 36.85.020. service districts: RCW 36.83.090. Transportation benefit districts: RCW 36.73.130. Utility local improvement districts: RCW 36.94.240. Wharves and landings: RCW 88.24.070. 8.08.010 8.08.010 Condemnation authorized for general county purposes—Petition. Every county is hereby authorized and empowered to condemn land and property within the county for public use; whenever the board of county commissioners deems it necessary for county purposes to acquire such land, real estate, premises or other property, and is unable to agree with the owner or owners thereof for its purchase, it shall be the duty of the prosecuting attorney to [Title 8 RCW—page 6] 8.08.040 Hearing—Order adjudicating public use. At the time and place appointed for hearing said petition, or to which the same may have been adjourned, if the court or judge thereof shall have satisfactory proof that all parties interested in the land, real estate, premises or other property described in said petition have been duly served with said notice as prescribed herein, and shall be further satisfied by competent proof that the contemplated use for which the lands, real estate, premises, or other property sought to be appropriated is a public use of the county, the court or judge thereof may make and enter an order adjudicating that the contemplated use is really a public use of the county, and which order shall be final unless review thereof to the supreme court or the court of appeals be taken within five days after entry of such order, adjudicating that the contemplated use for which the lands, real estate, premises or other property sought to be appropriated is really a public use of the (2006 Ed.) Eminent Domain by Counties county, and directing that determination be had of the compensation and damages to be paid all parties interested in the land, real estate, premises, or other property sought to be appropriated for the taking and appropriation thereof, together with the injury, if any, caused by such taking or appropriation to the remainder of the lands, real estate, premises, or other property from which the same is to be taken and appropriated, after offsetting against any and all such compensation and damages, special benefits, if any, accruing to such remainder by reason of such appropriation and use by the county of such lands, real estate, premises, and other property described in the petition; such determination to be made by a jury, unless waived, in which event the compensation or damages shall be determined by the court without a jury. Proceedings under this chapter shall have precedence over all cases in court except criminal cases. [2000 c 68 § 1; 1971 c 81 § 37; 1949 c 79 § 4; Rem. Supp. 1949 § 3991-9.] 8.08.050 8.08.050 Trial—Damages to be found. The jury selected to hear the evidence and determine the compensation to be paid to the owner or owners of such real estate or property to be appropriated for public use, shall be selected, impaneled and sworn in the same manner that juries in other civil actions are selected, impaneled and sworn, and in case a jury is waived, such compensation or damages shall be ascertained and determined by the court or judge thereof and the proceedings shall be the same as in trial of an issue of fact by the court. Upon the close of the evidence, the court shall instruct the jury as to the matters submitted to them and the law pertaining thereto. Whereupon the jury shall retire and deliberate and determine upon the amount of the compensation of damages and money that shall be paid to the owner or owners of the real estate or property sought to be appropriated, which shall be the amount found by the jury to be the fair and full value of such premises, and when the jury shall have determined upon their verdict, they shall return the same to the court as in other civil actions. [1949 c 79 § 5; Rem. Supp. 1949 § 3991-10.] Rules of court: CR 47, 48. Juries, civil actions, selection, impaneling and swearing of: Chapters 2.36, 4.44 RCW. Verdicts, civil actions: Chapter 4.44 RCW. 8.08.060 8.08.060 Judgment—Decree of appropriation. Upon the verdict of the jury or upon the determination of the court of the compensation or damages to be paid for the real estate or property appropriated, judgment shall be entered against such county in favor of the owner or owners of the real estate or property so appropriated for the amount found as just compensation therefor, and upon the payment of such amount by such county to the clerk of such court for the use of the owner or owners or the persons interested in the premises sought to be taken, the court shall enter a decree of appropriation of the real estate or property sought to be taken, thereby vesting the title to the same in such county; and a certified copy of such decree of appropriation may be filed in the office of the county auditor of the county wherein the real estate taken is situated and shall be recorded by such auditor like a deed of real estate and with like effect. The money so paid to the clerk of the court shall be by him paid to the person or persons enti(2006 Ed.) 8.08.100 tled thereto upon the order of the court. [1949 c 79 § 6; Rem. Supp. 1949 § 3991-11.] 8.08.070 8.08.070 Costs. All the costs of such proceedings in the superior court shall be paid by the county initiating such proceedings. [1949 c 79 § 7; Rem. Supp. 1949 § 3991-12.] 8.08.080 8.08.080 Appellate review. Either party may seek appellate review of the judgment for compensation of the damages awarded in the superior court within thirty days after the entry of judgment as aforesaid, and such review shall bring before the supreme court or the court of appeals the propriety and justice of the amount of damage in respect to the parties to the review: PROVIDED, That upon such review no bonds shall be required: AND PROVIDED FURTHER, That if the owner of land, real estate, or premises accepts the sum awarded by the jury or the court, he shall be deemed thereby to have waived conclusively appellate review, and final judgment by default may be rendered in the superior court as in other cases. [1988 c 202 § 9; 1971 c 81 § 38; 1949 c 79 § 8; Rem. Supp. 1949 § 3991-13.] Severability—1988 c 202: See note following RCW 2.24.050. 8.08.090 8.08.090 Appropriation authorized in aid of federal or state improvement. Every county in this state is hereby, for the purposes of RCW 8.08.090 through 8.08.130, declared to be a body corporate and is authorized and empowered by and through its board of county commissioners whenever said board shall judge it to be clearly for the general welfare and benefit of the people of the county, and so far as shall be in harmony with the Constitution of this state and the provisions of RCW 8.08.090 through 8.08.130, to condemn and appropriate as hereinafter in RCW 8.08.090 through 8.08.130 provided and to dispose of for public use such lands, properties, rights and interests as are hereinafter in RCW 8.08.090 through 8.08.130 mentioned, whenever the government of the United States or of this state is intending or proposing the construction, operation or maintenance of any public work situated or to be situated wholly or partly within such county, or the expenditure of money or labor for the construction, operation or maintenance of any such work, and such condemnation or appropriation will enable the county to aid, promote, facilitate or prepare for any such construction, operation, maintenance or expenditure by either or both such governments, or to fulfill or dispose of any condition upon which such construction, operation, maintenance or expenditure is by law or from any cause contingent, and no property shall be exempt from such condemnation, appropriation or disposition by reason of the same having been or being dedicated, appropriated or otherwise reduced or held to public use. [1895 c 2 § 1; RRS § 901.] 8.08.100 8.08.100 Mode of appropriation. The right of eminent domain for the purposes intended in RCW 8.08.090 through 8.08.130 is hereby extended to all counties in this state and every such county for any purpose of condemnation, appropriation or disposition such as is mentioned in RCW 8.08.090 is hereby authorized and empowered to condemn and appropriate all necessary lands and all rights, properties and interests in or appurtenant to land under the same procedure as is [Title 8 RCW—page 7] 8.08.110 Title 8 RCW: Eminent Domain or shall be provided by the laws of this state for the case of any similar condemnation or appropriation by other corporations. [1895 c 2 § 3; RRS § 903.] Chapter 8.12 Chapter 8.12 RCW EMINENT DOMAIN BY CITIES Sections CONDEMNATION 8.08.110 8.08.110 Tax levy to pay costs. The board of county commissioners is hereby authorized and empowered in aid of the powers granted or prescribed in RCW 8.08.090 to levy, annually, a tax as large as may be necessary, but not exceeding the rate of one mill on the dollar, upon all the taxable property in the county, such tax to be assessed, levied and collected at the same time and in the same manner as taxes for general county purposes, but the proceeds of said taxes, when collected, shall constitute and be a special fund, applicable solely to the cost of such condemnation, appropriation or disposition, as is mentioned in RCW 8.08.090, and the expenses incident thereto. [1895 c 2 § 2; RRS § 902.] 8.08.120 8.08.120 Indebtedness is for general county purposes. Any county purpose mentioned in RCW 8.08.090 through 8.08.130 shall be deemed and held to be a general county purpose and any indebtedness contracted or to be contracted therefor shall be deemed and held to be an indebtedness for general county purposes, and all the provisions of law of this state relative to indebtedness for general county purposes or the contracting of such indebtedness or the bonds for funding the same shall be deemed applicable to any indebtedness contracted or to be contracted or any bonds issued by any county under RCW 8.08.090 through 8.08.130, but the accounts of the county with respect to the receipts and disbursements of all moneys received or disbursed by the county under the provisions of RCW 8.08.090 through 8.08.130 shall, for each condemnation, appropriation and disposition, be so kept as to clearly and fully exhibit such accounts separate and apart from the other accounts of the county. [1895 c 2 § 4; RRS § 904.] 8.12.010 8.12.020 8.12.030 8.12.040 8.12.050 8.12.060 8.12.070 8.12.080 8.12.090 8.12.100 8.12.120 8.12.130 8.12.140 8.12.150 8.12.160 8.12.170 8.12.190 8.12.200 8.12.210 "City" defined. Other terms defined. Condemnation authorized—Purposes enumerated. Ordinance to specify method of payment—Limitations. Petition for condemnation. Contents of petition. Summons—Service. Service when state or county lands are involved. Waiver of jury—Adjudication of public use—Procedure. Trial—Jury—Right to separate juries. Interested party may be brought in. Jury may view premises. Damages to building—Measure. Separate findings where there are several interests—Interpleader of adverse claimants. Verdict—New trial—Continuance—New summons. Change of ownership—Powers of court. Findings by jury. Judgment—Appellate review—Payment of award into court. Title vests upon payment. PAYMENT FOR IMPROVEMENT 8.12.220 8.12.230 8.12.240 8.12.250 Payment from general fund. Payment by special assessment. Petition for assessment—Appointment of commissioners. Advancement from general funds against assessments. ASSESSMENTS—IMMEDIATE PAYMENT 8.12.380 Public contracts and indebtedness: Title 39 RCW. 8.12.260 Appointment of board of eminent domain commissioners— Terms of office. Oath of commissioners—Compensation. Duties of commissioners—Assessment of benefits—Apportionment. Assessment roll. Hearing on assessment roll—Notice. Proof of service. Continuance of hearing. Objections to assessment roll. Modification of assessment. Judgment, effect—Lien. Certification of roll to treasurer. Treasurer’s notice to pay when assessments immediately payable. Notice by mail—Penalty for default. 8.12.390 8.12.400 8.12.410 8.12.420 8.12.430 8.12.440 8.12.450 8.12.460 Bonds authorized. Maturity—Interest—Payment. Sale—Application of proceeds. Installment payment of assessments. Notice to pay—Due date of installments—Penalty—Interest. Bond owner may enforce collection. Bondholder’s remedy limited to assessments. Payment of bonds—Call—Notice. 8.12.270 8.12.280 8.12.290 8.12.300 8.12.310 8.12.320 8.12.330 8.12.340 8.12.350 8.12.360 8.12.370 BONDS—INSTALLMENT PAYMENT 8.08.130 8.08.130 Limitation. Any condemnation, appropriation or disposition intended in RCW 8.08.090 through 8.08.130 shall be deemed and held to be for a county purpose and public use within the meaning of RCW 8.08.090 through 8.08.130 when it is directly or indirectly, approximately or remotely for the general benefit or welfare of the county or of the inhabitants thereof, or when it is otherwise within the meaning of the phrase "for a county purpose" as occurring in the Constitution of this state. [1895 c 2 § 5; RRS § 905.] 8.08.140 8.08.140 Condemnation for military purposes. RCW 8.04.170. 8.12.470 8.12.480 8.12.490 8.12.500 See 8.08.141 8.08.141 Condemnation for military purposes—Construction. See RCW 8.04.180. 8.08.150 8.08.150 Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. See RCW 8.25.270. [Title 8 RCW—page 8] DELINQUENCY—REDEMPTION Enforcement of collection—Interest on delinquency. Assessment fund to be kept separate. Record of payment and redemption. Liability of treasurer. MISCELLANEOUS PROVISIONS 8.12.510 8.12.520 8.12.530 8.12.540 8.12.550 8.12.560 8.12.570 8.12.580 Reassessment. Lien of assessment—Enforcement by civil action. Discontinuance of proceedings. Subsequent compensation for property taken or damaged. Regrade assessments. Construction as to second class cities. Condemnation for military purposes. Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. Additional provisions relating to eminent domain proceedings: Chapter 8.25 RCW. (2006 Ed.) Eminent Domain by Cities Auditoriums, art museums, swimming pools, athletic and recreational fields: RCW 35.21.020. Cemetery districts: RCW 68.52.200. City-owned electric power and light company—Limitation on right of eminent domain: RCW 35.84.030. Code city: RCW 35A.64.200. Condemnation of blighted property: Chapter 35.80A RCW. Easements over public land: Chapter 79.36 RCW. Electric energy facilities: RCW 35.84.020. Ferries—Authority to acquire and maintain: RCW 35.21.110. First class cities: RCW 35.22.280(6). Housing authority: RCW 35.82.070, 35.82.110. Limited access facilities: RCW 47.52.050. Local improvements filling and draining lowlands—Waterways—Damages: RCW 35.56.050. filling lowlands—Damages: RCW 35.55.040. generally: Chapters 35.43 through 35.56 RCW. Metropolitan municipal corporations: RCW 35.58.320. Metropolitan park districts—Park commissioner’s authority generally: RCW 35.61.130. Multi-purpose community centers—Powers of condemnation: RCW 35.59.050. Municipal airports acquisition of real property: RCW 14.08.030. joint condemnation proceedings: RCW 14.08.200. Off-street parking facilities: RCW 35.86.030. Parking commission: RCW 35.86A.080. Parkways, park drives and boulevards: RCW 35.21.190. Relocation assistance: Chapter 8.26 RCW. Second class cities: RCW 35.23.311, 35.23.440(45). Sewerage systems: RCW 35.67.020. Street railway extensions of municipal corporations: RCW 35.84.060. Towns generally: RCW 35.27.380. off-street parking: RCW 35.27.570. Watershed property, city in adjoining state may condemn: RCW 8.28.050. Waterworks, authority to acquire and operate: RCW 35.92.010. CONDEMNATION 8.12.010 "City" defined. The term "city," when used in this chapter, means and includes every city and town and each unclassified city and town in the state of Washington. [1915 c 154 § 20; RRS § 9272.] 8.12.010 Severability—1915 c 154: "An adjudication of invalidity of any part of this act shall not affect the validity of the act as a whole or any part thereof." [1915 c 154 § 19; RRS § 9271.] This applies to RCW 8.12.010 through 8.12.560. 8.12.020 Other terms defined. Whenever the word "person" is used in this chapter, the same shall be construed to include any company, corporation or association, the state or any county therein, and the words "city" or "town" wherever used, shall be construed to be either. Whenever the words "installment" or "installments" are used in this chapter, they shall be construed to include installment or installments of interest, as provided in RCW 8.12.420. Whenever the words "public markets" are used in this chapter and the public market is managed in whole or in part by a public corporation created by a city, the words shall be construed to include all real or personal property located in a district or area designated by a city as a public market and traditionally devoted to 8.12.020 (2006 Ed.) 8.12.040 providing farmers, crafts vendors and other merchants with retail space to market their wares to the public. Property located in such a district or area need not be exclusively or primarily used for such traditional public market retail activities and may include property used for other public purposes including, but not limited to, the provision of human services and low-income or moderate-income housing. [1990 c 189 § 2; 1925 ex.s. c 115 § 4; 1907 c 153 § 52; RRS § 9277. Prior: 1905 c 55 § 51; 1893 c 84 § 51.] 8.12.030 8.12.030 Condemnation authorized—Purposes enumerated. Every city and town and each unclassified city and town within the state of Washington, is hereby authorized and empowered to condemn land and property, including state, county and school lands and property for streets, avenues, alleys, highways, bridges, approaches, culverts, drains, ditches, public squares, public markets, city and town halls, jails and other public buildings, and for the opening and widening, widening and extending, altering and straightening of any street, avenue, alley or highway, and to damage any land or other property for any such purpose or for the purpose of making changes in the grade of any street, avenue, alley or highway, or for the construction of slopes or retaining walls for cuts and fills upon real property abutting on any street, avenue, alley or highway now ordered to be, or such as shall hereafter be ordered to be opened, extended, altered, straightened or graded, or for the purpose of draining swamps, marshes, tidelands, tide flats or ponds, or filling the same, within the limits of such city, and to condemn land or property, or to damage the same, either within or without the limits of such city for public parks, drives and boulevards, hospitals, pesthouses, drains and sewers, garbage crematories and destructors and dumping grounds for the destruction, deposit or burial of dead animals, manure, dung, rubbish, and other offal, and for aqueducts, reservoirs, pumping stations and other structures for conveying into and through such city a supply of fresh water, and for the purpose of protecting such supply of fresh water from pollution, and to condemn land and other property and damage the same for such and for any other public use after just compensation having been first made or paid into court for the owner in the manner prescribed by this chapter. [1915 c 154 § 1; 1907 c 153 § 1; RRS § 9215. Prior: 1905 c 55 § 1; 1893 c 84 § 1.] 8.12.040 8.12.040 Ordinance to specify method of payment— Limitations. When the corporate authorities of any such city shall desire to condemn land or other property, or damage the same, for any purpose authorized by this chapter, such city shall provide therefor by ordinance, and unless such ordinance shall provide that such improvement shall be paid for wholly or in part by special assessment upon property benefited, compensation therefor shall be made from any general funds of such city applicable thereto. If such ordinance shall provide that such improvement shall be paid for wholly or in part by special assessment upon property benefited, the proceedings for the making of such special assessment shall be as hereinafter prescribed, in this chapter: PROVIDED, That no special assessment shall be levied under authority of this chapter except when made for the purpose of streets, avenues, alleys, or highways or alterations thereof or changes of the [Title 8 RCW—page 9] 8.12.050 Title 8 RCW: Eminent Domain grade therein or other improvements in or adjoining the same, or for bridges, approaches, culverts, sewers, drains, ditches, public squares, public playgrounds, public parks, drives or boulevards or for the purpose of draining swamps, marshes, tide flats, tidelands or ponds or for filling the same: AND IT IS FURTHER PROVIDED, That when a street, avenue, highway or boulevard is established or widened to a width greater than one hundred and fifty feet the excess over and above the one hundred and fifty feet shall be paid out of the general fund of such city without any deduction for benefits of such excess. [1925 ex.s. c 128 § 2; 1907 c 153 § 2; RRS § 9216. Prior: 1905 c 55 § 2; 1893 c 84 § 2.] 8.12.050 Petition for condemnation. Whenever any such ordinance shall be passed by the legislative authority of any such city for the making of any improvement authorized by this chapter or any other improvement that such city is authorized to make, the making of which will require that property be taken or damaged for public use, such city shall file a petition in the superior court of the county in which such land is situated, in the name of the city, praying that just compensation, to be made for the property to be taken or damaged for the improvement or purpose specified in such ordinance, be ascertained by a jury or by the court in case a jury be waived. [1913 c 11 § 1; 1907 c 153 § 3; RRS § 9217. Prior: 1905 c 55 § 3; 1893 c 84 § 3.] 8.12.050 8.12.060 Contents of petition. Such petition shall contain a copy of said ordinance, certified by the clerk under the corporate seal, a reasonably accurate description of the lots, parcels of land and property which will be taken or damaged, and the names of the owners and occupants thereof and of persons having any interest therein, so far as known, to the officer filing the petition or appearing from the records in the office of the county auditor. [1907 c 153 § 4; RRS § 9218. Prior: 1905 c 55 § 4; 1893 c 84 § 4.] 8.12.060 8.12.070 Summons—Service. Upon the filing of the petition aforesaid a summons, returnable as summons in other civil actions, shall be issued and served upon the persons made parties defendant, together with a copy of the petition, as in other civil actions. And in case any of them are unknown or reside out of the state, a summons for publication shall issue and publication be made and return and proof thereof be made in the same manner as is or shall be provided by the laws of the state for service upon absent defendants in other civil actions. Notice so given by publication shall be sufficient to authorize the court to hear and determine the suit as though all parties had been sued by their proper names and had been personally served. [1907 c 153 § 5; RRS § 9219. Prior: 1905 c 55 § 5; 1893 c 84 § 5.] 8.12.070 Commencement of actions: Chapter 4.28 RCW. Publication of legal notices: Chapter 65.16 RCW. notice in eminent domain proceedings: RCW 4.28.120. 8.12.080 Service when state or county lands are involved. In case the land, real estate, premises or other property sought to be appropriated or damaged is state, school or county land, the summons and copy of petition shall be served on the auditor of the county in which such 8.12.080 [Title 8 RCW—page 10] land, real estate, premises or other property is situated. Service upon other parties defendant shall be made in the same manner as is or shall be provided by law for service of summons in other civil actions. [1907 c 153 § 6; RRS § 9220. Prior: 1905 c 55 § 6; 1893 c 84 § 6.] Service of process where state land is involved: RCW 8.28.010. 8.12.090 8.12.090 Waiver of jury—Adjudication of public use—Procedure. In any proceedings under this chapter wherein a trial by jury is provided for, the jury may be waived as in other civil cases in courts of record in the manner prescribed by law, and the matter may be heard and determined without the intervention of a jury. Whenever an attempt is made to take private property, for a use alleged to be public under authority of this chapter, the question whether the contemplated use be really public shall be a judicial question and shall be determined as such by the court before inquiry is had into the question of compensation to be made. When a jury is required for the determination of any matter under this chapter, such jury may be the same jury summoned for the trial of ordinary civil actions before the court, or the court may, in its discretion, issue a venire to the sheriff to summon as jurors such number of qualified persons as the court shall deem sufficient. Except as herein otherwise provided, the practice and procedure under this chapter in the superior court and in relation to the taking of appeals and prosecution thereof, shall be the same as in other civil actions, but all appeals must be taken within thirty days from the date of rendition of the judgment appealed from. Proceedings under this chapter shall have precedence of all cases in court except criminal cases. [1907 c 153 § 51; RRS § 9276. Prior: 1905 c 55 § 50; 1893 c 84 § 50. Formerly RCW 8.12.090, 8.12.110 and 8.12.200, part.] Juries, civil actions: Chapters 2.36, 4.44 RCW. 8.12.100 8.12.100 Trial—Jury—Right to separate juries. Upon the return of said summons, or as soon thereafter as the business of court will permit, the said court shall proceed to the hearing of such petition and shall impanel a jury to ascertain the just compensation to be paid for the property taken or damaged, but if any defendant or party in interest shall demand, and the court shall deem it proper, separate juries may be impaneled as to the compensation or damages to be paid to any one or more of such defendants or parties in interest. [1907 c 153 § 7; RRS § 9221. Prior: 1905 c 55 § 7; 1893 c 84 § 7.] 8.12.120 8.12.120 Interested party may be brought in. Such jury shall also ascertain the just compensation to be paid to any person claiming an interest in any lot, parcel of land or property which may be taken or damaged by such improvement, whether or not such person’s name or such lot, parcel of land or other property is mentioned or described in such petition: PROVIDED, Such person shall first be admitted as a party defendant to said suit by such court and shall file a statement of his interest in and description of the lot, parcel of land or other property in respect to which he claims compensation. [1907 c 153 § 8; RRS § 9222. Prior: 1905 c 55 § 8; 1893 c 84 § 8.] Rules of court: CR 17 through 25. (2006 Ed.) Eminent Domain by Cities 8.12.130 8.12.130 Jury may view premises. The court may upon the motion of such city or of any defendant direct that said jury (under the charge of any officer of the court and accompanied by such person or persons as may be appointed by the court to point out the property sought to be taken or damaged) shall view the lands and property affected by said improvement. [1907 c 153 § 9; RRS § 9223. Prior: 1905 c 55 § 9; 1893 c 84 § 9.] View of premises by jury: RCW 4.44.270. 8.12.140 8.12.140 Damages to building—Measure. If there be any building standing, in whole or in part, upon any land to be taken, the jury shall add to their finding of the value of the land taken the damages to said building. If the entire building is taken, or if the building is damaged, so that it cannot be readjusted to the premises, then the measure of damages shall be the fair market value of the building. If part of the building is taken or damaged and the building can be readjusted or replaced on the part of the land remaining, then the measure of damages shall be the cost of readjusting or moving the building, or the part thereof left, together with the depreciation in the market value of said building by reason of said readjustment or moving. [1907 c 153 § 10; RRS § 9224. Prior: 1905 c 55 § 10; 1893 c 84 § 10.] 8.12.150 8.12.150 Separate findings where there are several interests—Interpleader of adverse claimants. If the land and buildings belong to different parties, or if the title to the property be divided into different interests by lease or otherwise, the damages done to each of such interests may be separately found by the jury on the request of any party. In making such findings, the jury shall first find and set forth in their verdict the total amount of the damage to said land and buildings and all premises therein, estimating the same as an entire estate and as if the same were the sole property of one owner in fee simple; and they shall then apportion the damages so found among the several parties entitled to the same, in proportion to their several interests and claims and the damages sustained by them respectively, and set forth such apportionment in their verdict. No delay in ascertaining the amount of compensation shall be occasioned by any doubt or contest which may arise as to the ownership of the property, or any part thereof, or as to the extent of the interest of any defendant in the property to be taken or damaged, but in such case, the jury shall ascertain the entire compensation or damage that should be paid for the property and the entire interests of all the parties therein, and the court may thereafter require adverse claimants to interplead, so as to fully determine their rights and interests in the compensation so ascertained. And the court may make such order as may be necessary in regard to the deposit or payment of such compensation. [1907 c 153 § 11; RRS § 9225.] Rules of court: CR 54. 8.12.160 8.12.160 Verdict—New trial—Continuance—New summons. Upon the return of the verdict the proceedings of the court regarding new trial and the entry of judgment thereon shall be the same as in other civil actions, and the judgment shall be such as the nature of the case shall require. The court shall continue or adjourn the case from time to time (2006 Ed.) 8.12.190 as to all occupants and owners named in such petition who shall not have been served with process or brought in by publication, and new summons may issue or new publication may be made at any time; and upon such occupants or owners being brought in, the court may impanel a jury to ascertain the compensation so to be made to such defendant or defendants for private property taken or damaged, and like proceedings shall be had for such purpose as herein provided. [1907 c 153 § 12; RRS § 9226. Prior: 1905 c 55 § 11; 1893 c 84 § 11.] Rules of court: CR 17 through 25, 54, 59. Entry of judgment, civil actions: Chapter 4.64 RCW. New trials, civil actions: Chapter 4.76 RCW. 8.12.170 8.12.170 Change of ownership—Powers of court. The court shall have power at any time, upon proof that any such owner or owners named in such petition who has not been served with process has ceased to be such owner or owners since the filing of such petition, to impanel a jury and ascertain the just compensation to be made for the property (or the damage thereto) which has been owned by the person or persons so ceasing to own the same, and the court may upon any finding or findings of any jury or juries, or at any time during the course of such proceedings enter such order, rule, judgment or decree as the nature of the case may require. [1907 c 153 § 13; RRS § 9227. Prior: 1905 c 55 § 12; 1893 c 84 § 12.] 8.12.190 8.12.190 Findings by jury. When the ordinance providing for any such improvement provides that compensation therefor shall be paid in whole or in part by special assessment upon property benefited, the jury or court, as the case may be, shall find separately: (1) The value of land taken at date of trial; (2) The damages which will accrue to the part remaining because of its severance from the part taken, over and above any local or special benefits arising from the proposed improvement. No lot, block, tract or parcel of land found by the court or jury to be so damaged shall be assessed for any benefits arising from such taking only; (3) The gross damages to any land or property not taken (other than damages to a remainder, by reason of its severance from the part taken), and in computing such gross damages shall not deduct any benefits from the proposed improvement. Such finding by the court or jury shall leave any lot, block, parcel or tract of land, or other property subject to assessment for its proportion of any and all local and special benefits accruing thereto by reason of said improvement. When such ordinance does not provide for any assessment in whole or in part on property specially benefited, the compensation found for land or property taken or damaged shall be ascertained over and above any local or special benefits from the proposed improvement. Such city or town may offset against any award of the jury or court for the taking or damaging of any lot, block, tract or parcel of land or other property, any general taxes or local assessments unpaid at the time such award is made. Such offset shall be made by deducting the amount of such unpaid taxes and assessments at the time of payment of the [Title 8 RCW—page 11] 8.12.200 Title 8 RCW: Eminent Domain judgment or issuance of a warrant in payment of such judgment. [1909 c 210 § 1; 1907 c 153 § 15; RRS § 9229. Prior: 1905 c 55 § 15; 1893 c 84 § 15.] 8.12.200 8.12.200 Judgment—Appellate review—Payment of award into court. Any final judgment or judgments rendered by said court upon any finding or findings of any jury or juries, or upon any finding or findings of the court in case a jury be waived, shall be lawful and sufficient condemnation of the land or property to be taken, or of the right to damage the same in the manner proposed, upon the payment of the amount of such findings and all costs which shall be taxed as in other civil cases, provided that in case any defendant recovers no damages, no costs shall be taxed. Such judgment or judgments shall be final and conclusive as to the damages caused by such improvement unless appellate review is sought, and review of the same shall not delay proceedings under said ordinance, if such city shall pay into court for the owners and parties interested, as directed by the court, the amount of the judgment and costs, and such city, after making such payment into court, shall be liable to such owner or owners or parties interested for the payment of any further compensation which may at any time be finally awarded to such parties seeking review of said proceeding, and his or her costs, and shall pay the same on the rendition of judgment therefor, and abide any rule or order of the court in relation to the matter in controversy. In case of review by the supreme court or the court of appeals of the state by any party to the proceedings the money so paid into the superior court by such city, as aforesaid, shall remain in the custody of said superior court until the final determination of the proceedings. If the owner of the land, real estate, premises, or other property accepts the sum awarded by the jury or the court, he shall be deemed thereby to have waived conclusively appellate review and final judgment may be rendered in the superior court as in other cases. [1993 c 14 § 1; 1988 c 202 § 10; 1971 c 81 § 39; 1907 c 153 § 16; 1905 c 55 § 16; 1893 c 84 § 16; RRS § 9230. FORMER PART OF SECTION: 1907 c 153 § 51, part; RRS § 9276, part, now codified in RCW 8.12.090. Prior: 1905 c 55 § 50; 1893 c 84 § 50, part.] Effective date—1993 c 14: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [April 12, 1993]." [1993 c 14 § 2.] Severability—1988 c 202: See note following RCW 2.24.050. 8.12.210 8.12.210 Title vests upon payment. The court, upon proof that just compensation so found by the jury, or by the court in case the jury is waived, together with costs, has been paid to the person entitled thereto, or has been paid into court as directed by the court, shall enter an order that the city or town shall have the right at any time thereafter to take possession of or damage the property in respect to which such compensation shall have been so paid or paid into court as aforesaid, and thereupon, the title to any property so taken shall be vested in fee simple in such city or town. [1907 c 153 § 17; RRS § 9231. Prior: 1905 c 55 § 17; 1893 c 84 § 17.] Rules of court: CR 58. [Title 8 RCW—page 12] PAYMENT FOR IMPROVEMENT 8.12.220 8.12.220 Payment from general fund. When the ordinance under which said improvement is ordered to be made shall not provide that such improvement shall be made wholly by special assessment upon property benefited, the whole amount of such damage and costs, or such part thereof as shall not be assessed upon property benefited shall be paid from the general fund of such city or town, and if sufficient funds therefor are not already provided, such city or town shall levy and collect a sufficient sum therefor as part of the general taxes of such city or town, or may contract indebtedness by the issuance of bonds or warrants therefor as in other cases of internal improvements. [1907 c 153 § 18; RRS § 9232. Prior: 1905 c 55 § 18; 1893 c 84 § 18.] 8.12.230 8.12.230 Payment by special assessment. When such ordinance under which said improvement shall be ordered, shall provide that such improvement shall be paid for, in whole or in part, by special assessment of property benefited thereby, the damages and costs awarded, or such part thereof as is to be paid by special assessment, shall be levied, assessed and collected in the manner hereinafter provided. [1907 c 153 § 19; RRS § 9233. Prior: 1905 c 55 § 19; 1893 c 84 § 19.] 8.12.240 8.12.240 Petition for assessment—Appointment of commissioners. Such city may file in the same proceeding a supplementary petition, praying the court that an assessment be made for the purpose of raising an amount necessary to pay the compensation and damages which may [be] or shall have been awarded for the property taken or damaged, with costs of the proceedings, or for such part thereof as the ordinance shall provide. The said court shall thereupon appoint three competent persons as commissioners to make such assessment, or if there be a board of eminent domain commissioners of such city, appointed under the provisions of this chapter, said proceeding for assessment shall be referred to said board. Said commissioners shall include in such assessment the compensation and damages which may [be] or shall have been awarded for the property taken or damaged, with all costs and expenses of the proceedings incurred to the time of their appointment, or to the time when said proceeding was referred to them, together with the probable further costs and expenses of the proceedings, including therein the estimated costs of making and collecting such assessment. [1907 c 153 § 20; RRS § 9234. Prior: 1905 c 55 § 20; 1893 c 84 § 20.] 8.12.250 8.12.250 Advancement from general funds against assessments. If any city or town shall desire to take possession of any property or do any damage or proceed with any improvement, the compensation for which is to be paid for in whole or in part by the proceeds of special assessment under this chapter, it may advance from its general funds, or any moneys available for the purpose, the amount of the assessments aforesaid, and pay the same to the owner or into court, as herein provided, reimbursing itself for moneys so advanced from the special assessments aforesaid. If there be no funds available for the purpose, such city may contract (2006 Ed.) Eminent Domain by Cities indebtedness for the purpose of raising funds therefor, which indebtedness shall be contracted and such proceedings taken therefor as is provided by law for indebtedness contracted for other internal improvements. [1907 c 153 § 50; RRS § 9275. Prior: 1905 c 55 § 49; 1893 c 84 § 49.] Contracting indebtedness by city: Titles 35, 39 RCW. ASSESSMENTS—IMMEDIATE PAYMENT 8.12.260 8.12.260 Appointment of board of eminent domain commissioners—Terms of office. At any time after June 11, 1907, any such city may petition the superior court of the county in which said city is situated, that a board of eminent domain commissioners be appointed to make assessments in all condemnation proceedings instituted by such city. Said superior court shall thereupon, by order duly entered in its records, appoint three competent persons as commissioners who shall be known as and who shall constitute the "board of eminent domain commissioners of the city of . . . .," and who shall thereafter make assessments in all condemnation proceedings instituted by such city. The order of the court shall provide that one of the members of such board shall serve for one year, one for two years and one for three years, from the date of their appointment and until their successors are appointed and qualified. Annually thereafter, said superior court shall appoint one such person as such commissioner, whose term shall begin on the same day of the month on which the first order of appointment was made and continue for three years thereafter and until his successor is appointed and qualified. If any commissioner shall be disqualified in any proceeding by reason of interest, or for any other reason, said superior court shall appoint some other competent person to act in his place in such proceeding. [1907 c 153 § 21; RRS § 9235. Prior: 1905 c 55 § 21; 1893 c 84 § 21.] 8.12.270 8.12.270 Oath of commissioners—Compensation. All commissioners, before entering upon their duties shall take and subscribe an oath that they will faithfully perform the duties of the office to which they are appointed, and will to the best of their abilities make true and impartial assessments according to law. Every commissioner shall receive compensation at the rate of ten dollars per day for each day actually spent in making the assessment herein provided for: PROVIDED, That in any city of the first class the superior court of the county in which said city is situated may, by order duly entered in its record, fix the compensation of each commissioner in an amount in no case to exceed twenty-five dollars per day for each day actually spent in making the assessment herein provided for. Each commissioner shall file in the proceeding in which he has made such assessment his account, stating the number of days he has actually spent in said proceeding, and upon the approval of said account by the judge before whom the proceeding is pending, the comptroller or city clerk of such city shall issue a warrant in the amount approved by the judge upon the special fund created to pay the awards and costs of said proceeding, and the fees of such commissioner so paid shall be included in the cost and expense of such proceedings. In case such commissioners are, during the same period, or parts thereof, engaged in making assessments in different proceedings, in rendering (2006 Ed.) 8.12.300 their accounts they shall apportion them to the different proceedings in proportion to the amount of time, actually spent by them on the assessment in each proceeding. [1947 c 139 § 1; 1929 c 87 § 1; 1915 c 154 § 2; 1907 c 153 § 22; Rem. Supp. 1947 § 9236. Prior: 1905 c 55 § 22, part; 1893 c 84 § 22, part.] 8.12.280 8.12.280 Duties of commissioners—Assessment of benefits—Apportionment. It shall be the duty of such commissioners to examine the locality where the improvement is proposed to be made and the property which will be especially benefited thereby, and to estimate what proportion, if any, of the total cost of such improvement will be a benefit to the public, and what proportion thereof will be a benefit to the property to be benefited, and apportion the same between the city and such property so that each shall bear its relative equitable proportion, and having found said amounts, to apportion and assess the amount so found to be a benefit to the property upon the several lots, blocks, tracts and parcels of land, or other property in the proportion in which they will be severally benefited by such improvement: PROVIDED, That the legislative body of the city may in the ordinance initiating any such improvement establish an assessment district and said district when so established shall be deemed to include all the lands or other property especially benefited by the proposed improvement, and the limits of said district when so fixed shall be binding and conclusive on the said commissioners: AND PROVIDED FURTHER, That no property shall be assessed a greater amount than it will be actually benefited. That all leasehold rights and interests of private persons, firms or corporations in or to harbor areas located within the corporate limits of any incorporated city or town are for the purpose of assessment for the payment of the awards, interest and costs of any improvement authorized by this chapter, declared to be real property, and all such leasehold rights and interests may be assessed and reassessed in accordance with the special benefits received for the purpose of paying the cost of any such improvement heretofore made or which may hereafter be made in accordance with law. [1915 c 154 § 3; 1909 c 211 § 1; 1907 c 153 § 23; RRS § 9237. Prior: 1905 c 55 § 22, part; 1893 c 84 § 22, part.] 8.12.290 8.12.290 Assessment roll. Such commissioners in each proceeding shall also make or cause to be made an assessment roll in which shall appear the names of the owners, so far as known, the description of each lot, block, tract or parcel of land or other property and the amounts assessed as special benefits thereto, and in which they shall set down as against the city the amount they shall have found as public benefit, if any, and certify such assessment roll to the court before which said proceeding is pending, within sixty days after their appointment or after the date of the order referring said proceeding to them, or within such extension of said period as shall be allowed by the court. [1907 c 153 § 24; RRS § 9238. Prior: 1905 c 55 § 23; 1893 c 84 § 23.] 8.12.300 8.12.300 Hearing on assessment roll—Notice. After the return of such assessment roll, the court shall make an order setting a time for the hearing thereof before the court, which day shall be at least twenty days after return of the roll. [Title 8 RCW—page 13] 8.12.310 Title 8 RCW: Eminent Domain It shall be the duty of the commissioners to give notice of the assessment and of the day fixed by the court for the hearing thereof in the following manner: (1) They shall at least twenty days prior to the date fixed for the hearing on the roll, mail to each owner of the property assessed, whose name and address is known to them, a notice substantially in the following form: "Title of Cause. To . . . .: Pursuant to an order of the superior court of the State of Washington, in and for the county of . . . . . ., there will be a hearing in the above entitled cause on . . . . . . at . . . . . . upon the assessment roll prepared by the commissioners heretofore appointed by said court to assess the property specially benefited by the (here describe nature of improvement); and you are hereby required if you desire to make any objections to the assessment roll, to file your objections to the same before the date herein fixed for the hearing upon the roll, a description of your property and the amount assessed against it for the aforesaid improvement is as follows: (Description of property and amount assessed against it.) ..................... ..................... ..................... Commissioners." (2) They shall cause at least twenty days’ notice to be given by posting notice of the hearing on the assessment roll in at least three public places in the city, one of which shall be in the neighborhood of the proposed improvement, and by publishing the same at least for two successive weeks in the official newspaper of the city. The notice so required to be posted and published, may be substantially as follows: "Title of Cause. Special assessment notice. Notice is hereby given to all persons interested, that an assessment roll has been filed in the above entitled cause providing for the assessment upon the property benefited of the cost of (here insert brief description of improvement) and that the roll has been set down for hearing on the . . . . day of . . . . at . . . . . . The boundaries of the assessment district are substantially as follows: (here insert an approximate description of the assessment district). All persons desiring to object to the assessment roll are required to file their objections before the date fixed for the hearing upon the roll, and appear on the day fixed for hearing before said court. ..................... ..................... ..................... Commissioners." [1985 c 469 § 3; 1907 c 153 § 25; RRS § 9239. Prior: 1905 c 55 § 24; 1893 c 84 § 24.] 8.12.310 8.12.310 Proof of service. On or before the final hearing, the affidavit of one or more of the commissioners shall be filed in said court, stating that they have sent, or caused to be sent, by mail, to the owners whose property has been assessed and whose names and addresses are known to them, the notice hereinbefore required to be sent by mail to the owners of the property assessed. They shall also cause to be [Title 8 RCW—page 14] filed the affidavit of the person who shall have posted the notice required by this chapter to be posted, setting forth when and in what manner the same was posted. Such affidavits shall be received as prima facie evidence of a compliance with this chapter in regard to giving such notices. They shall also file an affidavit of publication of such notice in like manner as is required in other cases of affidavits of publication of notice of [or] summons. [1907 c 153 § 26; RRS § 9240. Prior: 1905 c 55 § 25; 1893 c 84 § 25.] 8.12.320 8.12.320 Continuance of hearing. If twenty days shall not have elapsed between the first publication or the posting of such notices and the day set for hearing, the hearing shall be continued until such time as the court shall order. The court shall retain full jurisdiction of the matter, until final judgment on the assessments; and if the notice given shall prove invalid or insufficient the court shall order new notice to be given. [1907 c 153 § 27; RRS § 9241. Prior: 1905 c 55 § 26; 1893 c 84 § 26.] 8.12.330 8.12.330 Objections to assessment roll. Any person interested in any property assessed may without payment of any fee to the clerk of court file objections to such report at any time before the day set for hearing said roll. As to all property to the assessment of which objections are not filed as herein provided, default may be entered and the assessment confirmed by the court. On the hearing, the report of such commissioners shall be competent evidence and either party may introduce such other evidence as may tend to establish the right of the matter. The hearing shall be conducted as in other cases at law, tried by the court without a jury, and if it shall appear that the property of the objector is assessed more or less than it will be benefited or more or less than its proportionate share of the costs of the improvement, the court shall so find and also find the amount in which said property ought to be assessed, and the judgment shall be entered accordingly. [1947 c 139 § 2; 1907 c 153 § 28; Rem. Supp. 1947 § 9242. Prior: 1905 c 55 §§ 27, 28; 1893 c 84 §§ 27, 28.] 8.12.340 8.12.340 Modification of assessment. The court before which any such proceedings may be pending shall have authority at any time before final judgment to modify, alter, change, annul or confirm any assessment returned as aforesaid, or cause any such assessment to be recast by the same commissioners, whenever it shall be necessary for the obtainment of justice, or may appoint other commissioners in the place of all or any of the commissioners first appointed for the purpose of making such assessment or modifying, altering, changing or recasting the same, and may take all such proceedings and make all such orders as may be necessary to make a true and just assessment of the cost of such improvement according to the principles of this chapter, and may from time to time, as may be necessary, continue the application for that purpose as to the whole or any part of the premises. [1907 c 153 § 29; RRS § 9243. Prior: 1905 c 55 § 29; 1893 c 84 § 29.] 8.12.350 8.12.350 Judgment, effect—Lien. The judgment of the court shall have the effect of a separate judgment as to each (2006 Ed.) Eminent Domain by Cities tract or parcel of land or other property assessed, and any appeal from such judgment shall not invalidate or delay the judgment except as to the property concerning which the appeal is taken. Such judgment shall be a lien upon the property assessed from the date thereof until payment shall be made, and said lien shall be paramount and superior to any other lien or encumbrance whatsoever, theretofore or thereafter created, except a lien for assessments for general taxes. [1915 c 154 § 4; 1907 c 153 § 30; RRS § 9244. Prior: 1905 c 55 § 30; 1893 c 84 § 30.] 8.12.400 to him. Any such treasurer omitting so to do, shall be liable to a penalty of five dollars for every such omission; but the validity of the special assessment shall not be affected by such omission. When any assessment or assessments are paid, it shall be the duty of the treasurer to write the word "paid" opposite the same together with the name and post office address of the person making the payment and the date of payment. The owner may annually notify the treasurer of his address and it shall be the duty of the treasurer to mail the notice above provided for to such address. [1907 c 153 § 33; RRS § 9247. Prior: 1905 c 55 § 33; 1893 c 84 § 33.] 8.12.360 8.12.360 Certification of roll to treasurer. The clerk of the court in which such judgment is rendered shall certify a copy of the assessment roll and judgment to the treasurer of the city, or if there has been an appeal taken from any part of such judgment, then he shall certify such part of the roll and judgment as is not included in such appeal, and the remainder when final judgment is rendered: PROVIDED, That if upon such appeal, the judgment of the superior court shall be affirmed, the assessments on such property as to which appeal has been taken shall bear interest at the same rate and from the same date which other assessments not paid within the time hereafter provided shall bear. Such copy of the assessment roll shall describe the lots, blocks, tracts, parcels of land or other property assessed, and the respective amounts assessed on each, and shall be sufficient warrant to the city treasurer to collect the assessment therein specified. In no case, however, shall a copy of such assessment roll and judgment be certified to the city treasurer unless and until the awards of the jury shall have first been accepted by the city council or other legislative body as provided by law, or the time for rejecting the same shall have expired. [1915 c 154 § 5; 1907 c 153 § 31; RRS § 9245. Prior: 1905 c 55 § 31; 1893 c 84 § 31.] 8.12.370 8.12.370 Treasurer’s notice to pay when assessments immediately payable. Whenever the assessment for any such improvement shall be immediately payable, the owner of any such lot, tract or parcel of land or other property so assessed may pay such entire assessment, or any part thereof, without interest, within thirty days after the notice of such assessment. The city treasurer shall, as soon as the certified copy of the assessment roll has been placed in his hands for collection, publish a notice in the official newspaper of the city for two consecutive daily, or two consecutive weekly issues, and then by posting four notices thereof in public places along the line of the proposed improvement, that the said roll is in his hands for collection, and that any assessment thereon, or any part thereof, may be paid within thirty days from the date of the first publication or posting of said notice, without penalty, interest or costs, and if not so paid, the same shall thereupon become delinquent. [1915 c 154 § 6; 1907 c 153 § 32; RRS § 9246. Prior: 1905 c 55 § 32; 1893 c 84 § 32.] 8.12.380 8.12.380 Notice by mail—Penalty for default. It shall be the duty of the city treasurer into whose hands such judgment and assessment roll shall come, to mail notices of such assessment to the persons whose names appear on the assessment roll, so far as the addresses of such persons are known (2006 Ed.) BONDS—INSTALLMENT PAYMENT 8.12.390 8.12.390 Bonds authorized. The city council or other legislative body of any city may, in their discretion, provide by ordinance for the payment of the whole or any portion of the cost and expense of any local improvement authorized by law, by bonds of the improvement district, which bonds shall be issued and sold as herein provided. [1915 c 154 § 10; 1907 c 153 § 47; RRS § 9262.] Cities and towns: Title 35 RCW. Public contracts and indebtedness: Title 39 RCW. 8.12.400 8.12.400 Maturity—Interest—Payment. (1) Such bonds shall be issued only in pursuance of ordinances of the city directing the issuance of the same, and by their terms shall be made payable on or before a date not to exceed twelve years from and after their date, which latter date may be fixed by resolution or ordinance by council or other legislative body of said city and shall bear interest at such rate or rates as may be authorized by the council or other legislative body of said city, which interest shall be payable annually, or semiannually, as may be provided by resolution or ordinance: PROVIDED, That the legislative body of any city of the first class having a population of three hundred thousand inhabitants, or more, issuing any bonds hereunder may by ordinance, passed by unanimous vote, authorize the issuance of such bonds payable on or before a date not to exceed twentytwo years from and after the date of the issue of such bonds, and shall in such ordinance provide that said bonds shall be sold at not less than par and shall bear interest at such rate or rates as may be authorized by the legislative body. Such bonds shall be in such denominations as shall be provided in the resolution or ordinance authorizing their issuance and shall be numbered from one upwards, consecutively, and each bond and any coupon shall be signed by the mayor and attested by the clerk or comptroller of such city: PROVIDED, HOWEVER, That any coupons may in lieu of being so signed have printed thereon a facsimile of the signature of said officers and each bond shall have the seal of such city affixed thereto and shall refer to the improvement to pay for which the same shall be issued and to the ordinance authorizing the same. Each bond shall provide that the principal sum therein named, and the interest thereon, shall be payable out of the local improvement fund created for the payment of the cost and expense of such improvement, and not otherwise. Such bonds shall not be issued in any amount in excess of the cost and expense of the improvement. The [Title 8 RCW—page 15] 8.12.410 Title 8 RCW: Eminent Domain bonds may be in any form, including bearer bonds or registered bonds as provided in RCW 39.46.030. (2) Notwithstanding subsection (1) of this section, such bonds may be issued and sold in accordance with chapter 39.46 RCW. [1983 c 167 § 12; 1970 ex.s. c 56 § 2; 1969 ex.s. c 232 § 64; 1925 ex.s. c 115 § 1; 1915 c 154 § 11; RRS § 9263.] Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. Purpose—1970 ex.s. c 56: See note following RCW 39.52.020. Validation—Saving—Severability—1969 ex.s. c 232: See notes following RCW 39.52.020. 8.12.410 8.12.410 Sale—Application of proceeds. (1) The bonds issued under the provisions of this chapter or any portion thereof may be sold by any authorized officer or officers of the city at not less than their par value and accrued interest, and the proceeds thereof shall be applied in payment of the awards, interest and costs of the improvement. (2) Notwithstanding subsection (1) of this section, such bonds may be sold in accordance with chapter 39.46 RCW. [1983 c 167 § 13; 1915 c 154 § 12; RRS § 9264.] Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 8.12.420 8.12.420 Installment payment of assessments. In all cases where any city shall issue bonds as provided for in this chapter, the whole or any portion of the separate assessments for any such improvement may be paid during the thirty day period provided for in RCW 8.12.430, and thereafter the sum remaining unpaid may be paid in equal annual installments; the number of which installments shall be less by two than the number of years which the bonds issued to pay for the improvements may run, with interest upon the whole unpaid sum at the bond rate, and each year thereafter one of such installments, together with the interest due thereon and on all installments thereafter to become due, shall be collected in the same manner as shall be provided by law and the resolutions and ordinances of such city for the collection of assessments for such improvements in cases where no bonds are issued: PROVIDED, HOWEVER, That whenever the legislative body of any city of the first class having a population of three hundred thousand inhabitants, or more, shall have, as provided in RCW 8.12.400, by unanimous vote determined that any bonds issued hereunder shall be payable in twentytwo years, such legislative body may by ordinance provide that the principal sum remaining unpaid after the thirty day period specified in RCW 8.12.430 may be paid in ten equal annual installments, beginning with the eleventh year and ending with the twentieth year after said thirty day period, together with interest upon the unpaid installments at the bond rate, and that in each year after the said thirty day period, to and including the tenth year thereafter, one installment of interest on the principal sum of said assessment shall be paid and collected, and that, beginning with the eleventh year after said thirty day period, one installment of the principal, together with the interest due thereon and on all installments thereafter to become due, shall be paid and collected in the same manner as shall be provided by law and the resolutions and ordinances of such city for the collection of assess[Title 8 RCW—page 16] ments for such improvements in cases where no bonds are issued. In all cases of improvements authorized in this chapter, where, at the time this chapter shall become effective, the notice by the city treasurer of the assessment for such improvement shall not have been published, the city council or other legislative body of such city may by ordinance or resolution provide for the issuance and sale of bonds for such improvement and for the payment of such assessments in installments. [1925 ex.s. c 115 § 2; 1915 c 154 § 13; RRS § 9265.] 8.12.430 Notice to pay—Due date of installments— Penalty—Interest. Whenever the assessment for any such improvement shall be payable in installments, the owner of any lot, tract, or parcel of land or other property charged with any such assessment may pay the assessment or any portion thereof, without interest, within thirty days after such notice of the assessment. The city treasurer shall, as soon as the certified copy of the assessment roll has been placed in his hands for collection, publish a notice in the official newspaper of the city for two consecutive daily or two consecutive weekly issues, that the roll is in his hands for collection and that any assessment thereon or any portion of any such assessment may be paid at any time within thirty days from the date of the first publication of the notice without penalty, interest or costs, and the unpaid balance, if any, may be paid in equal annual installments, or any such assessment may be paid at any time after the first thirty days following the date of the first publication of the notice by paying the entire unpaid portion thereof with all penalties and costs attached, together with all interest thereon to the date of delinquency of the first installment thereof next falling due. The notice shall further state that the first installment of the assessment shall become due and payable during the thirty day period succeeding a date one year after the date of first publication of the notice, and annually thereafter each succeeding installment shall become due and payable in like manner. If the whole or any portion of any assessment remains unpaid after the first thirty day period herein provided for, interest upon the whole unpaid sum shall be charged at the bond rate, and each year thereafter one of the installments, together with interest due upon the whole of the unpaid balance, shall be collected, except that where the assessment is payable in twenty years, installments of interest only shall be collected for the first ten years, as provided in RCW 8.12.420. Any installment not paid prior to the expiration of the thirty day period during which the installment is due and payable, shall thereupon become delinquent. All delinquent installments shall be subject to a charge of five percent penalty levied upon both principal and interest due on the installments, and all delinquent installments, except installments of interest when the assessment is payable in twenty years, as provided in RCW 8.12.420, shall, until paid, be subject to a charge for interest at the bond rate. The bonds herein provided for shall not be issued prior to twenty days after the expiration of the thirty days first above mentioned, but may be issued at any time thereafter. In all 8.12.430 (2006 Ed.) Eminent Domain by Cities cases where any sum is paid as herein provided, the same shall be paid to the city treasurer, or to the officer whose duty it is to collect the assessments, and all sums so paid shall be applied solely to the payment of the awards, interest and costs of the improvements or the redemption of the bonds issued therefor. [1985 c 469 § 4; 1925 ex.s. c 115 § 3; 1915 c 154 § 14; RRS § 9266.] 8.12.440 Bond owner may enforce collection. If the city shall fail, neglect or refuse to pay said bonds or to promptly collect any such assessments when due, the owner of any such bonds may proceed in his own name to collect such assessment and foreclose the lien thereof in any court of competent jurisdiction, and shall in addition to the principal of such bonds and interest thereon, recover five percent of such sum, together with the costs of such suit. Any number of owners of such bonds for any single improvement may join as plaintiffs and any number of owners of the property on which the same are a lien may be joined as defendants in such suit. [1983 c 167 § 14; 1915 c 154 § 15; RRS § 9267.] 8.12.440 8.12.510 thereof shall become delinquent, the city treasurer shall enforce the collection thereof in the same manner as provided in chapter 9, Laws of 1933 [as codified in chapter 35.50 RCW], or such other laws as may be hereafter enacted for the foreclosure of delinquent local (physical) improvement assessments. All assessments or installments unpaid at the expiration of the time fixed herein for the payment of the same, shall bear interest at the rate of ten percent per annum, from said date until paid. [1947 c 152 § 1; 1915 c 154 § 7; 1907 c 153 § 34; Rem. Supp. 1947 § 9248. Prior: 1905 c 55 § 34; 1893 c 84 § 34.] 8.12.480 8.12.480 Assessment fund to be kept separate. All moneys collected by the treasurer upon assessments under this chapter shall be kept as a separate fund and shall be used for no other purpose than the redemption of warrants or bonds drawn or issued against the fund. [1907 c 153 § 42; RRS § 9257. Prior: 1905 c 55 § 42; 1893 c 84 § 42.] 8.12.490 Rules of court: CR 17 through 25. Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 8.12.450 Bondholder’s remedy limited to assessments. Neither the holder nor owner of any bond issued under the authority of this chapter shall have any claim therefor against the city by which the same is issued, except from the special assessment made for the improvement for which such bond was issued, but his remedy in case of nonpayment, shall be confined to the enforcement of such assessments. A copy of this section shall be plainly written, printed or engraved on each bond so issued. [1915 c 154 § 16; RRS § 9268.] 8.12.450 8.12.460 Payment of bonds—Call—Notice. The city treasurer shall pay the interest on the bonds authorized to be issued by this chapter out of the respective local improvement funds from which they are payable. Whenever there shall be sufficient money in any local improvement fund against which bonds have been issued under the provisions of this chapter, over and above sufficient for the payment of interest on all unpaid bonds, to pay the principal of one or more bonds, the treasurer shall call in and pay such bonds. The bonds shall be called in and paid in their numerical order, commencing with number one. The call shall be made by publication in the city official newspaper in its first publication following the delinquency of the installment of the assessment or as soon thereafter as is practicable, and shall state that bonds No. . . . . . (giving the serial numbers of the bonds called) will be paid on the day the next interest payments on the bonds shall become due, and interest on the bonds shall cease upon such date. [1985 c 469 § 5; 1983 c 167 § 15; 1915 c 154 § 18; RRS § 9270.] 8.12.460 Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. DELINQUENCY—REDEMPTION 8.12.470 Enforcement of collection—Interest on delinquency. Wherever any assessment or installment 8.12.470 (2006 Ed.) 8.12.490 Record of payment and redemption. Whenever before the sale of any property the amount of any assessment thereon, with interest and costs accrued thereon, shall be paid to the treasurer, he shall thereupon mark the same paid, with the date of payment thereof on the assessment roll, and whenever after sale of any property for any assessments, the same shall be redeemed, he shall thereupon enter the same redeemed with the date of such redemption on such record. Such entry shall be made on the margin of the record opposite the description of such property. [1907 c 153 § 43; RRS § 9258. Prior: 1905 c 55 § 43; 1893 c 84 § 43.] 8.12.500 8.12.500 Liability of treasurer. If the treasurer shall receive any moneys for assessments, giving a receipt therefor, for any property and afterwards return the same as unpaid, or shall receive the same after making such return, and the same be sold for assessment which has been so paid and receipted for by himself or his clerk or assistant, he and his bond shall be liable to the holder of the certificate given to the purchaser at the sale for the amount of the face of the certificate, and a penalty of fifteen percent additional thereto besides legal interest, to be demanded within two years from the date of the sale and recovered in any court having jurisdiction of the amount, and the city shall in no case be liable to the holder of such certificate. [1907 c 153 § 44; RRS § 9259. Prior: 1905 c 55 § 44; 1893 c 84 § 44.] MISCELLANEOUS PROVISIONS 8.12.510 8.12.510 Reassessment. If any assessment be annulled or set aside by any court, or be invalid for any cause, a new assessment may be made, and return and like notice given and proceedings had as herein required in relation to the first; and all parties in interest shall have the like rights, and the city council or other legislative body, and the superior court, shall perform the like duties and have like power in relation to any subsequent assessment as are hereby given in relation to the first assessment. [1907 c 153 § 45; RRS § 9260. Prior: 1905 c 55 § 45; 1893 c 84 § 45.] [Title 8 RCW—page 17] 8.12.520 Title 8 RCW: Eminent Domain 8.12.520 8.12.520 Lien of assessment—Enforcement by civil action. All the assessments levied by any city under this chapter shall, from the date of the judgment confirming the assessment be a lien upon the real estate upon which the same may be imposed, and such lien shall continue until such assessments are paid; if any proceedings taken for the enforcement thereof, shall be held void or invalid, such city shall provide by ordinance for new proceedings and a new sale for the enforcement thereof in like manner as hereinbefore provided; and in addition to the remedy hereinbefore provided, any city may enforce such lien by civil action in any court of competent jurisdiction in like manner and with like effect as actions for the foreclosure of mortgage. [1907 c 153 § 46; RRS § 9261. Prior: 1905 c 55 § 46; 1893 c 84 § 46.] Foreclosure actions, real estate mortgages: Chapter 61.12 RCW. material necessary for the grading thereof, and shall be paid by assessment upon the property within the local assessment district defined by law or the charter or ordinances of such city in the same manner and to the same extent as other expenses of such improvement are assessed and collected. In such cases it shall not be necessary to procure the appointment of commissioners to take the other proceedings herein provided for making such assessments, but all the proceedings for the assessment and collection of such damages and costs, shall, if so ordained by such city, be governed by the charter provisions, law or ordinances in force in such city for the assessment and collection of the costs of such improvements upon property locally benefited thereby: PROVIDED, HOWEVER, That this section shall not apply to the original grading of such street, avenue or alley. [1909 c 80 § 1; 1907 c 153 § 48; RRS § 9273. Prior: 1905 c 55 § 47; 1893 c 84 § 47.] 8.12.530 8.12.530 Discontinuance of proceedings. At any time within six months from the date of rendition of the last judgment awarding compensation for any such improvement in the superior court, or if appellate review is sought, then within two months after the final determination of the proceeding in the supreme court or the court of appeals, any such city may discontinue the proceedings by ordinance passed for that purpose before making payment or proceeding with the improvement by paying or depositing in court all taxable costs incurred by any parties to the proceedings up to the time of such discontinuance. If any such improvement be discontinued, no new proceedings shall be undertaken therefor until the expiration of one year from the date of such discontinuance. [1988 c 202 § 11; 1971 c 81 § 40; 1915 c 154 § 21; 1907 c 153 § 49; RRS § 9274. Prior: 1905 c 55 § 48; 1893 c 84 § 48.] Severability—1988 c 202: See note following RCW 2.24.050. 8.12.540 8.12.540 Subsequent compensation for property taken or damaged. If any city has heretofore taken or shall hereafter take possession of any land or other property, or has damaged or shall hereafter damage the same for any of the public purposes mentioned in this chapter, or for any other purpose within the authority of such city or town, without having made just compensation therefor, such city or town may cause such compensation to be ascertained and paid to the persons entitled thereto by proceedings taken in accordance with the provisions of this chapter, and the payment of such compensation and costs as shall be adjudged in favor of the persons entitled thereto in such proceedings shall be a defense to any other action for the taking or damaging of such property. [1907 c 153 § 53; RRS § 9278. Prior: 1905 c 55 § 52; 1893 c 84 § 52.] 8.12.560 Construction as to second class cities. In so far as this chapter relates to cities of the second class, this chapter shall not be deemed to be exclusive or as repealing or superseding any existing law relative to such cities, covering any subject covered by this chapter, but as to such cities, this chapter shall be construed as conferring additional powers and additional remedies, to those now provided by law. [1907 c 153 § 56; RRS § 9279.] 8.12.560 Second class cities, specific powers enumerated: RCW 35.23.440(45). 8.12.570 Condemnation for military purposes. RCW 8.04.170. 8.12.570 See 8.12.580 Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. See RCW 8.25.270. 8.12.580 Chapter 8.16 RCW EMINENT DOMAIN BY SCHOOL DISTRICTS Chapter 8.16 Sections 8.16.010 8.16.020 8.16.030 8.16.040 8.16.050 8.16.060 8.16.070 8.16.080 8.16.090 8.16.100 8.16.110 8.16.120 8.16.130 8.16.140 8.16.150 8.16.160 Condemnation authorized for schoolhouse sites. Petition—Contents. Notice of petition—Service. Adjournment of proceedings—Further notice. Hearing—Finding of necessity—Setting for trial. Impaneling of jury. Trial—View by jury. Verdict. Ten jurors may render verdict. Waiver of jury. Judgment—Payment of award—Decree of appropriation. Costs. Appellate review. Appeal does not delay possession if award paid. Designation of parties—Fees. Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. 8.12.550 8.12.550 Regrade assessments. If any street, avenue or alley, or the right to use and control the same for purposes of public travel, shall belong to any city and such city shall establish a grade therefor, which grade requires any cut or fill, damaging abutting property, the damages to arise from the making of such grade may be ascertained in the manner provided in this chapter, but such city may provide that the compensation to be made for such damage, together with the accruing costs, shall be added to the cost of the labor and [Title 8 RCW—page 18] Acreage limitation with respect to district’s power of eminent domain: RCW 28A.335.220. Additional provisions relating to eminent domain proceedings: Chapter 8.25 RCW. 8.16.010 Condemnation authorized for schoolhouse sites. Whenever any school district shall select any real estate as a site for a schoolhouse, or as additional grounds to an existing schoolhouse site, within the district, and the board 8.16.010 (2006 Ed.) Eminent Domain by School Districts of school directors of such district and the owner or owners of the site or any part thereof, or addition thereto selected, shall be unable to agree upon the compensation to be paid by such school district to the owner or owners thereof, such school district shall have the right to take and acquire title to such real estate for use as a schoolhouse site or additional site, upon first paying to the owner or owners thereof therefor the value thereof, to be ascertained in the manner hereinafter provided. [1909 p 372 § 1; 1903 c 111 § 1; RRS § 906.] 8.16.020 8.16.020 Petition—Contents. The board of directors of the school district shall present to the superior court of the state of Washington in and for the county wherein is situated the real estate desired to be acquired for schoolhouse site purposes, a petition, reciting that the board of directors of such school district have selected certain real estate, describing it, as a schoolhouse site, or as additional grounds to an existing site, for such school district; that the site so selected, or some part thereof, describing it, belongs to a person or persons, naming him or them, that such school district has offered to give the owner or owners thereof therefor . . . . . . dollars, and that the owner of such real estate has refused to accept the same therefor; that the board of school directors of such school district and the said owner or owners of such real estate are unable to agree upon the compensation to be paid by such school district to the owner or owners of such real estate therefor, and praying that a jury be impaneled to ascertain and determine the compensation to be made in money by such school district to such owner or owners for the taking of such real estate for the use as a schoolhouse site for such school district; or in case a jury be waived in the manner provided by law in other civil actions in courts of record, then that the compensation to be made as aforesaid, be ascertained and determined by the court, or judge thereof. [1909 p 372 § 2; 1903 c 111 § 2; RRS § 907.] 8.16.030 8.16.030 Notice of petition—Service. A notice, stating the time and place when and where such petition shall be presented to the court, or the judge thereof, together with a copy of such petition, shall be served on each and every person named therein as owner, or otherwise interested therein, at least ten days previous to the time designated in such notice for the presentation of such petition. Such notice shall be signed by the prosecuting attorney of the county wherein the real estate sought to be taken is situated, and may be served in the same manner as summons in a civil action in such superior court is authorized by law to be served. [1909 p 373 § 3; 1903 c 111 § 3; RRS § 908.] Publication of notice in eminent domain proceedings: RCW 4.28.120. 8.16.040 8.16.040 Adjournment of proceedings—Further notice. The court may, upon application of the petitioner or of any owner of said real estate, or any person interested therein, for reasonable cause, adjourn the proceedings from time to time, and may order new or further notice to be given to any party whose interests may be affected by such proceedings. [1909 p 373 § 4; 1903 c 111 § 4; RRS § 909.] 8.16.050 8.16.050 Hearing—Finding of necessity—Setting for trial. At the time and place appointed for the hearing of such (2006 Ed.) 8.16.090 petition, or to which the same may have been adjourned, if the court shall find that all parties interested in such real estate sought to be taken have been duly served with notice and a copy of the petition as above prescribed, and shall further find that such real estate sought to be taken is required and necessary for the purposes of a schoolhouse site, or as an addition to a schoolhouse site, for such school district, the court shall make an order reciting such findings, and shall thereupon set the hearing of such petition down for trial by a jury, as other civil actions are tried, unless a jury is waived in the manner provided by law in other civil actions. [1909 p 373 § 5; RRS § 910. Prior: 1903 c 111 § 5.] 8.16.060 8.16.060 Impaneling of jury. The jury impaneled to hear the evidence and determine the compensation to be paid to the owner or owners of such real estate desired for such schoolhouse site purpose shall consist of twelve persons unless a less number be agreed upon, and shall be selected, impaneled and sworn in the same manner that juries in other civil actions are selected, impaneled and sworn, provided a juror may be challenged for cause on the ground that he is a taxpayer of the district seeking the condemnation of any real estate. [1909 p 373 § 6; 1903 c 111 § 6; RRS § 911.] Juries, civil actions, selection, impaneling and swearing of: Chapters 2.36, 4.44 RCW. Juries in courts of limited jurisdiction: RCW 2.36.050. 8.16.070 8.16.070 Trial—View by jury. A judge of the superior court shall preside at the trial and witnesses may be examined in behalf of either party to the proceedings, as in other civil actions, and upon the request of all the parties interested in such proceedings the court shall cause the jury impaneled to hear the same, to view the premises sought to be taken, and upon the request of any less number of the persons interested in the proceedings, the court may cause the jury to view the premises, pending the hearing of the case. [1909 p 374 § 7; 1903 c 111 § 7; RRS § 912.] Trial, civil actions, view by jury: RCW 4.44.270. 8.16.080 8.16.080 Verdict. Upon the close of the evidence, and the argument of counsel, the court shall instruct the jury as to the matters submitted to them, and the law pertaining thereto, whereupon the jury shall retire and deliberate and determine upon the amount of compensation in money that shall be paid to the owner or owners of the real estate sought to be taken for such schoolhouse site purposes therefor, which shall be the amount found by the jury to be the fair and full value of such premises; and when the jury shall have determined upon their verdict, they shall return the same to the court as in other civil actions. [1909 p 374 § 8; 1903 c 111 § 8; RRS § 913.] Trial, civil actions, rendering of verdict: Chapter 4.44 RCW. 8.16.090 8.16.090 Ten jurors may render verdict. When ten of the jurors agree upon a verdict, the verdict so agreed upon shall be signed by the foreman, and the verdict so agreed upon shall be and stand as the verdict of the jury. [1909 p 374 § 9; 1903 c 111 § 9; RRS § 914.] Verdict, civil actions, ten jurors may render: RCW 4.44.380. [Title 8 RCW—page 19] 8.16.100 Title 8 RCW: Eminent Domain 8.16.100 8.16.100 Waiver of jury. In case a jury is waived, the compensation that shall be paid for the premises taken shall be determined by the court and the proceedings shall be the same as in the trial of issues of fact by the court in other civil actions. [1909 p 374 § 10; 1903 c 111 § 10; RRS § 915.] 8.16.110 8.16.110 Judgment—Payment of award—Decree of appropriation. Upon the verdict of the jury, or upon the determination by the court of the compensation to be paid for the property sought to be taken as herein provided, judgment shall be entered against such school district in favor of the owner or owners of the real estate sought to be taken, for the amount found as compensation therefor, and upon the payment of such amount by such school district to the clerk of such court for the use of the owner or owners of, and the persons interested in the premises sought to be taken, the court shall enter a decree of appropriation of the real estate sought to be taken, thereby vesting the title to the same in such school district; and a certified copy of such decree of appropriation may be filed in the office of the county auditor of the county wherein the real estate taken is situated, and shall be recorded by such auditor like a deed of real estate, and with like effect. The money so paid to the clerk of the court shall be by him paid to the person or persons entitled thereto, upon the order of the court. [1909 p 374 § 11; 1903 c 111 § 11; RRS § 916.] Recording of deeds of real estate: Title 65 RCW. title to real estate for a schoolhouse site, shall be denominated plaintiff, and all other persons interested therein shall be denominated defendants; and in all such proceedings the clerk of the superior court wherein any such proceeding is brought shall charge nothing for his services, except in taking an appeal from the judgment entered in the superior court. [1909 p 375 § 15; 1903 c 111 § 15; RRS § 920.] 8.16.160 8.16.160 Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. See RCW 8.25.270. Chapter 8.20 RCW EMINENT DOMAIN BY CORPORATIONS Chapter 8.20 Sections 8.20.010 8.20.020 8.20.060 8.20.070 8.20.080 8.20.090 8.20.100 8.20.110 8.20.120 8.20.130 8.20.140 8.20.150 8.20.160 8.20.170 8.20.180 8.16.120 8.16.120 Costs. All the costs of such proceedings in the superior court shall be paid by the school district initiating such proceedings. [1909 p 375 § 12; 1903 c 111 § 12; RRS § 917.] Petition for appropriation—Contents. Notice—Contents—Service—Publication. Adjournment of proceedings—Further notice. Adjudication of public use or private way of necessity. Trial, how conducted. Judgment—Decree of appropriation—Recording. Payment of damages—Effect—Appellate review. Claimants, payment of—Conflicting claims. Appellate review. Prosecution of work pending appeal—Bond. Appropriation of railway right-of-way through canyon, pass, or defile. Prior entry with consent—Condemnation avoids ouster. Three-year occupancy—Condemnation avoids ouster. Suit for compensation by owner equivalent to condemnation. Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. Additional provisions relating to eminent domain proceedings: Chapter 8.25 RCW. Corporations, certain types: RCW 81.36.010. Corporations conveying water: RCW 90.16.100. 8.16.130 8.16.130 Appellate review. Either party may seek appellate review of the judgment for compensation awarded for the property taken, entered in the superior court, to the supreme court or the court of appeals of the state within sixty days after the entry of the judgment, and such review shall bring before the supreme court or the court of appeals the justness of the compensation awarded for the property taken, and any error occurring on the hearing of such matter, prejudicial to the party appealing: PROVIDED, HOWEVER, That if the owner or owners of the land taken accepts the sum awarded by the jury or court, he or they shall be deemed thereby to have waived appellate review. [1988 c 202 § 12; 1971 c 81 § 41; 1909 p 375 § 13; RRS § 918. Prior: 1903 c 111 § 13.] Severability—1988 c 202: See note following RCW 2.24.050. Easements over public lands: Chapter 79.36 RCW. Electric light and power companies: RCW 80.32.060 through 80.32.080. Eminent domain affecting corporations other than municipal: State Constitution Art. 12 § 10. Gas and oil pipelines: RCW 81.88.020. Grade crossing eliminations, appropriation for: RCW 81.53.180. Mining companies: RCW 78.04.010. Railroad companies, appropriation by: RCW 81.36.010. Railroads, rights of way: RCW 81.52.040, 81.53.180. State university—Rights-of-way to railroads: RCW 28B.20.330. Street and electric railroads: RCW 81.64.040. Telecommunications companies: RCW 80.36.010, State Constitution Art. 12 § 19. Underground natural gas storage: RCW 80.40.030, 80.40.040. Water power companies: RCW 90.16.030. 8.16.140 8.16.140 Appeal does not delay possession if award paid. An appeal from such judgment by the owner or owners of the land sought to be taken, shall not have the effect to preclude the school district from taking possession of the premises sought, pending the appeal, provided the amount of the judgment against the school district shall have been paid in to the clerk of the court, as hereinbefore provided. [1909 p 375 § 14; 1903 c 111 § 14; RRS § 919.] 8.16.150 8.16.150 Designation of parties—Fees. In all proceedings under this chapter the school district seeking to acquire [Title 8 RCW—page 20] 8.20.010 8.20.010 Petition for appropriation—Contents. Any corporation authorized by law to appropriate land, real estate, premises or other property for right-of-way or any other corporate purposes, may present to the superior court of the county in which any land, real estate, premises or other property sought to be appropriated shall be situated, or to the judge of such superior court in any county where he has jurisdiction or is holding court, a petition in which the land, real estate, premises or other property sought to be appropriated shall be described with reasonable certainty, and setting forth the name of each and every owner, encumbrancer or other (2006 Ed.) Eminent Domain by Corporations person or party interested in the same, or any part thereof, so far as the same can be ascertained from the public records, the object for which the land is sought to be appropriated, and praying that a jury be impaneled to ascertain and determine the compensation to be made in money, irrespective of any benefit from any improvement proposed by such corporation, to such owner or owners, respectively, and to all tenants, encumbrancers and others interested, for the taking or injuriously affecting such lands, real estate, premises or other property, or in case a jury be waived as in other civil cases in courts of record in the manner prescribed by law, then that the compensation to be made, as aforesaid, be ascertained and determined by the court, or judge thereof. [1890 p 294 § 1. Prior: 1888 p 58 § 1; RRS § 921.] 8.20.020 8.20.020 Notice—Contents—Service—Publication. A notice, stating briefly the objects of the petition, and containing a description of the land, real estate, premises or property sought to be appropriated, and stating the time and place, when and where the same will be presented to the court, or the judge thereof, shall be served on each and every person named therein as owner, encumbrancer, tenant, or otherwise interested therein, at least ten days previous to the time designated in such notice for the presentation of such petition. Such service shall be made by delivering a copy of such notice to each of the persons or parties so named therein, if a resident of the state; or, in case of the absence of such person or party from his or her usual place of abode, by leaving a copy of such notice at his or her usual place of abode; or, in case of a foreign corporation, at its principal place of business in this state, with some person of more than sixteen years of age. In case of domestic corporations, such service shall be made upon the president, secretary or other director or trustee of such corporation. In case of persons under the age of eighteen years, on their guardians, or in case no guardian shall have been appointed, then on the person who has the care and custody of such person; in case of idiots, lunatics or distracted persons, on their guardian, or in case no guardian shall have been appointed, then on the person in whose care or charge they are found. In case the land, real estate, premises or other property sought to be appropriated is state, school or county land, the notice shall be served on the auditor of the county in which the land, real estate, premises or other property sought to be appropriated is situated. In all cases where the owner or person claiming an interest in such real or other property, is a nonresident of this state, or where the residence of such owner or person is unknown, and an affidavit of the agent or attorney of the corporation shall be filed that such owner or person is a nonresident of this state, or that after diligent inquiry his residence is unknown, or cannot be ascertained by such deponent, service may be made by publication thereof in any newspaper published in the county where such lands are situated once a week for two successive weeks; and in case no newspaper is published in said county, then such publication may be had in a newspaper published in the county nearest to the county in which lies the land sought to be appropriated. And such publication shall be deemed service upon each of such nonresident person or persons whose residence is unknown. Such notice shall be signed by the president, manager, secretary or attorney of the corporation; and in case the proceedings provided for in RCW 8.20.010 (2006 Ed.) 8.20.070 through 8.20.140 are instituted by the owner or any other person or party interested in the land, real estate, or other property sought to be appropriated, then such notice shall be signed by such owner, person or party interested, or his, her or its attorney. Such notice may be served by any competent person eighteen years of age or over. Due proof of the service of such notice by affidavit of the person serving the same, or by the printer’s affidavit of publication, shall be filed with the clerk of such superior court before or at the time of the presentation of such petition. Want of service of such notice shall render the subsequent proceedings void as to the person not served, but all persons or parties having been served with notice as herein provided, either by publication or otherwise, shall be bound by the subsequent proceedings. In all other cases not otherwise provided for, service of notices, orders and other papers in the proceedings authorized by RCW 8.20.010 through 8.20.140 may be made as the superior court or the judge thereof may direct. [1971 ex.s. c 292 § 9; 1890 p 295 § 2; RRS § 922. Prior: 1888 p 58 § 2. Formerly RCW 8.20.020, 8.20.030, 8.20.040, 8.20.050.] Severability—1971 ex.s. c 292: See note following RCW 26.28.010. Publication of legal notices: Chapter 65.16 RCW. notice in eminent domain proceedings: RCW 4.28.120. Service of process where state land is involved: RCW 8.28.010. 8.20.060 8.20.060 Adjournment of proceedings—Further notice. The court or judge may, upon application of the petitioner or of any owner or party interested, for reasonable cause, adjourn the proceedings from time to time, and may order new or further notice to be given to any party whose interest may be affected. [1890 p 297 § 3; RRS § 924. Prior: 1888 p 60 § 3.] 8.20.070 8.20.070 Adjudication of public use or private way of necessity. At the time and place appointed for hearing said petition, or to which the same may have been adjourned, if the court or judge thereof shall have satisfactory proof that all parties interested in the land, real estate, premises, or other property described in said petition, have been duly served with said notice as above prescribed, and shall be further satisfied by competent proof that the contemplated use for which the land, real estate, premises or other property sought to be appropriated is really a public use, or is for a private use for a private way of necessity, and that the public interest requires the prosecution of such enterprise, or the private use is for a private way of necessity, and that the land, real estate, premises or other property sought to be appropriated are required and necessary for the purposes of such enterprise, the court or judge thereof may make an order, to be recorded in the minutes of said court, directing that a jury be summoned, or called, in the manner provided by law, to ascertain the compensation which shall be made for the land, real estate, premises or other property sought to be appropriated, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law. [1927 c 88 § 1; 1897 c 46 § 1; 1890 p 297 § 4; RRS § 925. Prior: 1888 p 60 § 4.] Juries, civil actions, selection, impaneling and swearing of: Chapters 2.36, 4.44 RCW. Private ways of necessity: Chapter 8.24 RCW. [Title 8 RCW—page 21] 8.20.080 Title 8 RCW: Eminent Domain 8.20.080 8.20.080 Trial, how conducted. A judge of the superior court shall preside at the trial which shall be held at such time as the court or the judge thereof may direct, at the courthouse in the county where the land, real estate, premises or other property sought to be appropriated is situated, and the jurors at such trial shall make in each case a separate assessment of damages which shall result to any person, corporation or company, or to the state, or to any county, by reason of the appropriation and use of such land, real estate, premises or other property by such corporation as aforesaid for any and all corporate purposes, and shall ascertain, determine and award the amount of damages to be paid to said owner or owners respectively, and to all tenants, encumbrancers and others interested, for the taking or injuriously affecting such land, real estate, premises or other property for the purpose of such enterprise, irrespective of any benefit from any improvement proposed by such corporation. Upon the trial, witnesses may be examined in behalf of either party to the proceedings as in civil actions; and a witness served with a subpoena in such proceedings shall be punished for failure to appear at such trial, or for perjury, as upon a trial of a civil action. Upon the verdict of the jury, judgment shall be entered for the amount of the damages awarded to such owner or owners respectively, and to all tenants, encumbrancers and others interested, for the taking or injuriously affecting such land, real estate, premises or other property. In case a jury is waived as in civil cases in courts of record in the manner prescribed by law, the compensation to be paid for the property sought to be appropriated shall be ascertained and determined by the court or the judge thereof, and the proceedings shall be the same as in trials of an issue of fact by the court. [1890 p 297 § 5; RRS § 926.] Witnesses in civil actions compelling attendance: Chapter 5.56 RCW. examination: Title 5 RCW. 8.20.090 8.20.090 Judgment—Decree of appropriation— Recording. At the time of rendering judgment for damages, whether upon default or trial, if the damages awarded be then paid, or upon their payment, if not paid at the time of rendering such judgment, the court or judge thereof shall also enter a judgment or decree of appropriation of the land, real estate, premises, right-of-way or other property sought to be appropriated, thereby vesting the legal title to the same in the corporation seeking to appropriate such land, real estate, premises, right-of-way or other property for corporate purposes. Whenever said judgment or decree of appropriation shall affect lands, real estate or other premises, a certified copy of such judgment or decree of appropriation may be filed for record in the office of the auditor of the county where the said land, real estate or other premises are situated, and shall be recorded by said auditor like a deed of real estate and with like effect. If the title to said land, real estate, premises or other property attempted to be acquired is found to be defective from any cause, the corporation may again institute proceedings to acquire the same, as in RCW 8.20.010 through 8.20.140 provided. [1891 c 46 § 1; 1890 p 298 § 6; RRS § 927.] Rules of court: CR 54, 58. Recording of deeds of real estate: Title 65 RCW. [Title 8 RCW—page 22] 8.20.100 Payment of damages—Effect—Appellate review. Upon the entry of judgment upon the verdict of the jury or the decision of the court or judge thereof, awarding damages as hereinbefore prescribed, the petitioner, or any officer of, or other person duly appointed by said corporation, may make payment of the damages assessed to the parties entitled to the same, and of the costs of the proceedings, by depositing the same with the clerk of said superior court, to be paid out under the direction of the court or judge thereof; and upon making such payment into the court of the damages assessed and allowed, and of the costs, to any land, real estate, premises or other property mentioned in said petition, such corporation shall be released and discharged from any and all further liability therefor, unless upon appellate review the owner or other person or party interested shall recover a greater amount of damages; and in that case only for the amount in excess of the sum paid into said court, and the costs of appellate review: PROVIDED, That in case of review by the supreme court or the court of appeals of the state by any party to the proceedings, the money so paid into the superior court by such corporation as aforesaid, shall remain in the custody of said court until the final determination of the proceedings by the said supreme court or the court of appeals. [1988 c 202 § 13; 1971 c 81 § 42; 1890 p 299 § 7; RRS § 929.] 8.20.100 Severability—1988 c 202: See note following RCW 2.24.050. 8.20.110 Claimants, payment of—Conflicting claims. Any person, corporation, state or county, claiming to be entitled to any money paid into court, as provided in RCW 8.20.010 through 8.20.140 may apply to the court therefor, and upon furnishing evidence satisfactory to the court that he or it is entitled to the same, the court shall make an order directing the payment to such claimant the portion of such money as he or it shall be found entitled to; but if, upon application, the court or judge thereof shall decide that the title to the land, real estate, premises or other property specified in the application of such claimant was in such condition as to require that an action be commenced to determine the conflicting claims thereto, he shall refuse such order until such action is commenced and the conflicting claims to such land, real estate, premises or other property be determined according to law. [1890 p 299 § 8; RRS § 930. Prior: 1888 p 61 § 8.] 8.20.110 8.20.120 Appellate review. Either party may seek appellate review of the judgment for damages entered in the superior court within thirty days after the entry of judgment as aforesaid and such review shall bring before the supreme court or the court of appeals the propriety and justness of the amount of damages in respect to the parties to the review: PROVIDED, HOWEVER, That no bond shall be required of any person interested in the property sought to be appropriated by such corporation, but in case the corporation appropriating such land, real estate, premises or other property is appellant, it shall give a bond like that prescribed in RCW 8.20.130, to be executed, filed and approved in the same manner: AND PROVIDED FURTHER, That if the owner of the land, real estate, premises or other property accepts the sum awarded by the jury, the court or the judge thereof, he shall be deemed thereby to have waived conclusively appel8.20.120 (2006 Ed.) Private Ways of Necessity late review, and final judgment by default may be rendered in the superior court as in other cases. [1988 c 202 § 14; 1971 c 81 § 43; 1890 p 300 § 9; RRS § 931. Prior: 1888 p 61 § 9.] Severability—1988 c 202: See note following RCW 2.24.050. 8.20.130 8.20.130 Prosecution of work pending appeal— Bond. The construction of any railway surface tramway, elevated cable tramway, or canal, or the prosecution of any works or improvements by any corporation as aforesaid shall not be hindered, delayed or prevented by the prosecution of the appeal of any party to the proceedings: PROVIDED, The corporation aforesaid shall execute and file with the clerk of the court in which the appeal is pending a bond to be approved by said clerk, with sufficient sureties, conditioned that the persons executing the same shall pay whatever amount may be required by the judgment of the court therein, and abide any rule or order of the court in relation to the matter in controversy. [1897 c 46 § 2; 1890 p 300 § 10; RRS § 932. Prior: 1888 p 62 § 10.] 8.24.010 8.20.160 8.20.160 Three-year occupancy—Condemnation avoids ouster. No corporation which shall have been or shall be in possession of property put to public use for three or more years, and while continuing to put such property to public use shall be ousted therefrom or prevented from continuing such use if prior to the entry of any judgment of ouster it shall institute condemnation proceedings to acquire such property for public use, and shall thereafter prosecute the same in good faith and pay any compensation awarded therein. [1927 c 219 § 2; RRS § 921-2.] 8.20.170 8.20.170 Suit for compensation by owner equivalent to condemnation. Nothing in RCW 8.20.150 through 8.20.170 shall prevent the owner of any such property suing for and recovering compensation for such property without instituting suit or proceedings to oust such corporation therefrom, and upon payment of the amount awarded such owner title to the property shall vest in such corporation as effectually as if acquired by proceedings in condemnation. [1927 c 219 § 3; RRS § 921-3.] 8.20.140 8.20.140 Appropriation of railway right-of-way through canyon, pass, or defile. Any railroad company whose right-of-way passes through any canyon, pass or defile shall not prevent any other railroad company from the use and occupancy of said canyon, pass or defile for the purpose of its road in common with the road first located or the crossing of other railroads at grade, and any railroad company authorized by law to appropriate land, real estate, premises or other property for right-of-way or any other corporate purpose may present a petition, in the manner and form hereinbefore provided, for the appropriation of a right-of-way through any canyon, pass or defile for the purpose of its road where right-of-way has already been located, condemned or occupied by some other railroad company through such canyon, pass or defile for the purpose of its road, and thereupon, like proceedings shall be had upon such petition as herein provided in other cases; and at the time of rendering judgment for damages, whether upon default or trial, the court or judge thereof shall enter a judgment or decree authorizing said railroad company to occupy and use said right-of-way, roadbed and track, if necessary, in common with the railroad company or companies already occupying or owning the same, and defining the terms and conditions upon which the same shall be so occupied and used in common. [1890 p 301 § 12; RRS § 933.] 8.20.150 8.20.150 Prior entry with consent—Condemnation avoids ouster. No corporation authorized by law to condemn property for public use, which has heretofore entered or shall hereafter enter upon property for a public use with the consent of the record owner or the person or corporation in possession, shall be ousted from such possession or prevented from continuing the putting of such property to public use if before entry of judgment of ouster it shall institute proceedings in condemnation to acquire such property for public use, and shall thereafter prosecute the same in good faith and pay any compensation which may be awarded therein. [1927 c 219 § 1; RRS § 921-1.] Severability—1927 c 219: "If any section, provision or clause in this act be adjudged invalid the remainder of the act shall nevertheless remain valid." [1927 c 219 § 4.] This applies to RCW 8.20.150 through 8.20.170. (2006 Ed.) 8.20.180 8.20.180 Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. See RCW 8.25.270. Chapter 8.24 Chapter 8.24 RCW PRIVATE WAYS OF NECESSITY Sections 8.24.010 8.24.015 8.24.025 8.24.030 8.24.040 8.24.050 Condemnation authorized—Private way of necessity defined. Joinder of surrounding property owners authorized. Selection of route—Criteria. Procedure for condemnation—Fees and costs. Logging road must carry products of condemnees. Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. Additional provisions relating to eminent domain proceedings: Chapter 8.25 RCW. Adjudication of public use or private way of necessity: RCW 8.20.070. 8.24.010 8.24.010 Condemnation authorized—Private way of necessity defined. An owner, or one entitled to the beneficial use, of land which is so situate with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity or to construct and maintain any drain, flume or ditch, on, across, over or through the land of such other, for agricultural, domestic or sanitary purposes, may condemn and take lands of such other sufficient in area for the construction and maintenance of such private way of necessity, or for the construction and maintenance of such drain, flume or ditch, as the case may be. The term "private way of necessity," as used in this chapter, shall mean and include a right of way on, across, over or through the land of another for means of ingress and egress, and the construction and maintenance thereon of roads, logging roads, flumes, canals, ditches, tunnels, tramways and other structures upon, over and through which timber, stone, minerals or other valuable materials and products may be transported and carried. [1913 c 133 § 1; RRS § 936-1. Prior: 1895 c 92 § 1. Formerly RCW 8.24.020, part.] [Title 8 RCW—page 23] 8.24.015 Title 8 RCW: Eminent Domain 8.24.015 8.24.015 Joinder of surrounding property owners authorized. In any proceeding for the condemnation of land for a private way of necessity, the owner of any land surrounding and contiguous to the property which land might contain a site for the private way of necessity may be joined as a party. [1988 c 129 § 1.] 8.24.025 8.24.025 Selection of route—Criteria. If it is determined that an owner, or one entitled to the beneficial use of land, is entitled to a private way of necessity and it is determined that there is more than one possible route for the private way of necessity, the selection of the route shall be guided by the following priorities in the following order: (1) Nonagricultural and nonsilvicultural land shall be used if possible. (2) The least-productive land shall be used if it is necessary to cross agricultural land. (3) The relative benefits and burdens of the various possible routes shall be weighed to establish an equitable balance between the benefits to the land for which the private way of necessity is sought and the burdens to the land over which the private way of necessity is to run. [1988 c 129 § 2.] 8.24.030 8.24.030 Procedure for condemnation—Fees and costs. The procedure for the condemnation of land for a private way of necessity or for drains, flumes or ditches under the provisions of this chapter shall be the same as that provided for the condemnation of private property by railroad companies, but no private property shall be taken or damaged until the compensation to be made therefor shall have been ascertained and paid as provided in the case of condemnation by railroad companies. In any action brought under the provisions of this chapter for the condemnation of land for a private way of necessity, reasonable attorneys’ fees and expert witness costs may be allowed by the court to reimburse the condemnee. [1988 c 129 § 3; 1913 c 133 § 2; RRS § 936-2. Prior: 1895 c 92 § 2.] Condemnation by corporations: Chapter 8.20 RCW. Railroads—Corporate powers and duties: RCW 81.36.010. Special railroad eminent domain proceedings: appropriation of railway right-of-way through canyon, pass or defile: RCW 8.20.140. extensions, branch lines: RCW 81.36.060. railroad crossings: RCW 81.53.180. spur tracks—Limit as to eminent domain: RCW 81.52.040. state university—Rights-of-way to railroads: RCW 28B.20.330. 8.24.040 8.24.040 Logging road must carry products of condemnees. That any person or corporation availing themselves of the provisions of this chapter for the purpose of acquiring a right-of-way for a logging road, as a condition precedent, contract and agree to carry and convey over such roads to either termini thereof any of the timber or other produce of the lands through which such right is acquired at any and all times, so long as said road is maintained and operated, and at reasonable prices; and a failure so to do shall terminate such right-of-way. The reasonableness of the rate shall be subject to determination by the utilities and transportation commission. [1913 c 133 § 3; RRS § 936-3. Prior: 1895 c 92 § 3.] [Title 8 RCW—page 24] 8.24.050 8.24.050 Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. See RCW 8.25.270. Chapter 8.25 RCW ADDITIONAL PROVISIONS APPLICABLE TO EMINENT DOMAIN PROCEEDINGS Chapter 8.25 Sections 8.25.010 8.25.020 8.25.070 8.25.073 8.25.075 8.25.120 8.25.200 8.25.210 8.25.220 8.25.230 8.25.240 8.25.250 8.25.260 8.25.270 8.25.280 Pretrial statement of compensation to be paid in event of settlement. Payment to defray costs of evaluating offer—Amount. Award of attorney’s fees and witness fees to condemnee— Conditions to award. Award of costs in air space corridor acquisitions—Conditions. Costs—Award to condemnee or plaintiff—Conditions. Conclusions of appraisers—Order for production and exchange between parties. Acquisition of property subject to unpaid or delinquent local improvement assessments—Payment. Special benefits to remaining property—Purpose. Special benefits to remaining property—Options—Election by owner—Consent to creation of lien. Special benefits to remaining property—Satisfaction or release of lien—Trial—Expiration of lien by operation of law. Special benefits to remaining property—Judgment—Maximum amounts—Offsets—Interest. Special benefits to remaining property—Attorney fees—Witness fees. Special benefits to remaining property—Lien foreclosure proceedings—Stay. Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. Valuation of public water systems. Publication of notice: RCW 4.28.120. 8.25.010 8.25.010 Pretrial statement of compensation to be paid in event of settlement. In all actions for the condemnation of property, or any interest therein, at least thirty days prior to the date set for trial of such action the condemnor shall serve a written statement showing the amount of total just compensation to be paid in the event of settlement on each condemnee who has made an appearance in the action. [1965 ex.s. c 125 § 1.] 8.25.020 8.25.020 Payment to defray costs of evaluating offer—Amount. There shall be paid by the condemnor in respect of each parcel of real property acquired by eminent domain or by consent under threat thereof, in addition to the fair market value of the property, a sum equal to the various expenditures actually and reasonably incurred by those with an interest or interests in said parcel in the process of evaluating the condemnor’s offer to buy the same, but not to exceed a total of seven hundred fifty dollars. In the case of multiple interests in a parcel, the division of such sum shall be determined by the court or by agreement of the parties. [1999 c 52 § 1; 1967 ex.s. c 137 § 1; 1965 ex.s. c 125 § 2.] 8.25.070 8.25.070 Award of attorney’s fees and witness fees to condemnee—Conditions to award. (1) Except as otherwise provided in subsection (3) of this section, if a trial is held for the fixing of the amount of compensation to be awarded to the owner or party having an interest in the property being condemned, the court shall award the condemnee reasonable attorney’s fees and reasonable expert witness fees in the event of any of the following: (2006 Ed.) Additional Provisions Applicable to Eminent Domain Proceedings (a) If condemnor fails to make any written offer in settlement to condemnee at least thirty days prior to commencement of said trial; or (b) If the judgment awarded as a result of the trial exceeds by ten percent or more the highest written offer in settlement submitted to those condemnees appearing in the action by condemnor in effect thirty days before the trial. (2) The attorney general or other attorney representing a condemnor in effecting a settlement of an eminent domain proceeding may allow to the condemnee reasonable attorney fees. (3) Reasonable attorney fees and reasonable expert witness fees authorized by this section shall be awarded only if the condemnee stipulates, if requested to do so in writing by the condemnor, to an order of immediate possession and use of the property being condemned within thirty days after receipt of the written request, or within fifteen days after the entry of an order adjudicating public use whichever is later and thereafter delivers possession of the property to the condemnor upon the deposit in court of a warrant sufficient to pay the amount offered as provided by law. In the event, however, the condemnor does not request the condemnee to stipulate to an order of immediate possession and use prior to trial, the condemnee shall be entitled to an award of reasonable attorney fees and reasonable expert witness fees as authorized by subsections (1) and (2) of this section. (4) Reasonable attorney fees as authorized in this section shall not exceed the general trial rate, per day customarily charged for general trial work by the condemnee’s attorney for actual trial time and his or her hourly rate for preparation. Reasonable expert witness fees as authorized in this section shall not exceed the customary rates obtaining in the county by the hour for investigation and research and by the day or half day for trial attendance. (5) In no event may any offer in settlement be referred to or used during the trial for any purpose in determining the amount of compensation to be paid for the property. [1984 c 129 § 1; 1971 ex.s. c 39 § 3; 1967 ex.s. c 137 § 3.] Court appointed experts: Rules of court: ER 706. 8.25.073 8.25.073 Award of costs in air space corridor acquisitions—Conditions. A superior court having jurisdiction of a proceeding instituted by a condemnor to acquire an air space corridor together with other property rights shall award the condemnee costs including reasonable attorney fees and reasonable expert witness fees, subject to the provisions of subsection (4) of RCW 8.25.070, if— (1) there is a final adjudication that the condemnor cannot acquire the air space corridor or other property rights by condemnation; or (2) the proceeding is abandoned by the condemnor. [1971 ex.s. c 39 § 2.] 8.25.220 (b) The proceeding is abandoned by the condemnor. (2) In effecting a settlement of any claim or proceeding in which a claimant seeks an award from an acquiring agency for the payment of compensation for the taking or damaging of real property for public use without just compensation having first been made to the owner, the attorney general or other attorney representing the acquiring agency may include in the settlement amount, when appropriate, costs incurred by the claimant, including reasonable attorneys’ fees and reasonable expert witness fees. (3) A superior court rendering a judgment for the plaintiff awarding compensation for the taking or damaging of real property for public use without just compensation having first been made to the owner shall award or allow to such plaintiff costs including reasonable attorney fees and reasonable expert witness fees, but only if the judgment awarded to the plaintiff as a result of trial exceeds by ten percent or more the highest written offer of settlement submitted by the acquiring agency to the plaintiff at least thirty days prior to trial. (4) Reasonable attorney fees and expert witness fees as authorized in this section shall be subject to the provisions of subsection (4) of RCW 8.25.070 as now or hereafter amended. [1977 ex.s. c 72 § 1; 1971 ex.s. c 240 § 21.] Severability—1971 ex.s. c 240: See RCW 8.26.900. 8.25.120 8.25.120 Conclusions of appraisers—Order for production and exchange between parties. After the commencement of a condemnation action, upon motion of either the condemnor or condemnee, the court may order, upon such terms and conditions as are fair and equitable the production and exchange of the written conclusions of all the appraisers of the parties as to just compensation owed to the condemnee, as prepared for the purpose of the condemnation action, and the comparable sales, if any, used by such appraisers. The court shall enter such order only after assurance that there will be mutual, reciprocal and contemporaneous disclosures of similar information between the parties. [1969 ex.s. c 236 § 8.] 8.25.200 8.25.200 Acquisition of property subject to unpaid or delinquent local improvement assessments—Payment. See RCW 79.44.190. 8.25.210 8.25.210 Special benefits to remaining property— Purpose. It is the purpose of *this 1974 act to provide procedures whereby more just and equitable results are accomplished when real property has been condemned for a highway, road, or street and an award made which is subject to a setoff for benefits inuring to the condemnee’s remaining land. [1974 ex.s. c 79 § 1.] *Reviser’s note: For codification of "this 1974 act" [1974 ex.s. c 79], see Codification Tables, Volume 0. 8.25.075 8.25.075 Costs—Award to condemnee or plaintiff— Conditions. (1) A superior court having jurisdiction of a proceeding instituted by a condemnor to acquire real property shall award the condemnee costs including reasonable attorney fees and reasonable expert witness fees if: (a) There is a final adjudication that the condemnor cannot acquire the real property by condemnation; or (2006 Ed.) 8.25.220 8.25.220 Special benefits to remaining property— Options—Election by owner—Consent to creation of lien. Whenever land, real estate, premises or other property is to be taken or damaged for a highway, road, or street and the amount offered as just compensation includes a setoff in recognition of special benefits accruing to a remainder portion [Title 8 RCW—page 25] 8.25.230 Title 8 RCW: Eminent Domain of the property the property owner shall elect one of the following options: (1) Trial on the question of just compensation which shall finally determine the amount of just compensation; or (2) Acceptance of the offered amount as a final determination of just compensation; or (3) Demand the full amount of the fair market value of any property taken plus the amount of damages if any caused by such acquisition to a remainder of the property without offsetting the amount of any special benefits accruing to a remainder of the property as those several amounts are agreed to by the parties; or (4) Demand a trial before a jury unless jury be waived to establish the fair market value of any property taken and the amount of damages if any caused by such acquisition to a remainder of the property without offsetting the amount of any special benefits accruing to a remainder of the property. The selection of the option set forth in subsections (3) or (4) of this section is subject to the consent by the property owner to the creation and recording of a lien against the remainder in the amount of the fair market value of any property taken plus the amount of damages caused by such acquisition to the remainder of the property without offsetting the amount of any special benefits accruing to a remainder of the property, plus interest as it accrues. [1974 ex.s. c 79 § 2.] 8.25.230 8.25.230 Special benefits to remaining property— Satisfaction or release of lien—Trial—Expiration of lien by operation of law. A lien established as provided in RCW 8.25.220 shall be satisfied or released by: (1) Agreement between the parties to that effect; or (2) Payment of the lien amount plus interest at the rate of five percent per annum; or (3) Payment of the amount of offsetting special benefits as established pursuant to RCW 8.25.220(3) plus interest at the rate of five percent per annum within four years of the date of acquisition; or (4) Satisfaction of a judgment lien entered as a result of a trial before a jury unless jury be waived to establish the change in value of the remainder of the original parcel because of the construction of the project involved: PROVIDED, That if the result of the trial is to find no special benefits then the lien is extinguished by operation of law. Trial may be had on the petition of any party to the superior court of the county wherein the subject remainder lies after notice of intent to try the matter of special benefits has been served on all persons having an interest in the subject remainder. Such notice shall be filed with the clerk of the superior court and personally served upon all persons having an interest in the subject remainder. Filing a notice of intent to try the matter of special benefits shall be accompanied by a fee in the amount paid when filing a petition in condemnation. (5) Upon expiration of six years time from the date of acquisition without commencement of proceedings to foreclose the lien or try the matter of special benefits to the remainder of the property, the lien shall terminate by operation of law. [1974 ex.s. c 79 § 3.] 8.25.240 8.25.240 Special benefits to remaining property— Judgment—Maximum amounts—Offsets—Interest. A [Title 8 RCW—page 26] judgment entered as a result of a trial on the matter of special benefits shall not exceed the previously established sum of (1) the fair market value of any property taken; (2) the amount of damages if any to a remainder of the property, without offsetting against either of them the amount of any special benefits accruing to a remainder of the property; (3) the interest at five percent per annum accrued thereon to the date of entry of the judgment. [1974 ex.s. c 79 § 4.] 8.25.250 8.25.250 Special benefits to remaining property— Attorney fees—Witness fees. Attorney fees and expert witness fees of the condemnee may be allowed by the attorney general or other attorney representing a condemnor to the extent provided in RCW 8.25.070 and shall be awarded by the court as authorized by this section to the extent provided in RCW 8.25.070 for trial and trial preparation: (1) In the event a trial is held as authorized by RCW 8.25.220 except the judgment awarded to the condemnor must exceed by ten percent or more the highest written offer in settlement of the issue to be determined by trial submitted by the condemnor to those condemnees appearing in the action at least thirty days prior to commencement of the trial; (2) in the event of a trial on the matter of special benefits as authorized by RCW 8.25.230(4) except the judgment awarded to the condemnor must be no more than ninety percent of the lowest written offer in settlement submitted by the condemnor to the condemnees appearing in the action at least thirty days prior to commencement of the trial on the matter of special benefits. [1974 ex.s. c 79 § 5.] 8.25.260 8.25.260 Special benefits to remaining property— Lien foreclosure proceedings—Stay. A condemnor may foreclose the lien authorized by RCW 8.25.220 by bringing an action and applying for summary judgment pursuant to civil rule 56 and may execute first upon the remainder property but such proceedings shall not be commenced before five years time has passed from the date of acquisition by the condemnor. A property owner may stay proceedings to enforce the lien authorized by RCW 8.25.220 by commencement of an action to try the matter of special benefits. [1974 ex.s. c 79 § 6.] 8.25.270 8.25.270 Appointment of guardian ad litem for minors, alleged incapacitated persons—Protection of interests. When it appears in any petition or otherwise at any time during the proceedings for condemnation brought pursuant to chapters 8.04, 8.08, 8.12, 8.16, 8.20, and 8.24 RCW that any minor, or alleged incapacitated person is interested in any property that is to be taken or damaged, the court shall appoint a guardian ad litem for the minor or alleged incapacitated person to appear and assist in the person’s defense, unless a guardian or limited guardian has previously been appointed, in which case the duty to appear and assist shall be delegated to the properly qualified guardian or limited guardian. The court shall make such orders or decrees as it shall deem necessary to protect and secure the interest of the minor or alleged incapacitated person. [1996 c 249 § 6; 1977 ex.s. c 80 § 12.] Intent—1996 c 249: See note following RCW 2.56.030. (2006 Ed.) Relocation Assistance—Real Property Acquisition Policy Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. 8.25.280 8.25.280 Valuation of public water systems. Consistent with standard appraisal practices, the valuation of a public water system as defined in RCW 70.119A.020 shall reflect the cost of system improvements necessary to comply with health and safety rules of the state board of health and applicable regulations developed under chapter 43.20, 43.20A, or 70.116 RCW. [1990 c 133 § 9.] Findings—Severability—1990 c 133: See notes following RCW 36.94.140. 8.26.020 payments under this chapter is subject to review pursuant to chapter 34.05 RCW; otherwise, no provision of this chapter may be construed to give any person a cause of action in any court. (4) Nothing in this chapter may be construed as creating in any condemnation proceedings brought under the power of eminent domain, any element of value or of damage not in existence immediately before March 16, 1988. [1988 c 90 § 1; 1971 ex.s. c 240 § 1.] Section captions—1988 c 90: "Section captions and part divisions in this act do not constitute any part of the law." [1988 c 90 § 19.] 8.26.020 Chapter 8.26 RCW RELOCATION ASSISTANCE—REAL PROPERTY ACQUISITION POLICY Chapter 8.26 Sections 8.26.010 8.26.020 8.26.035 8.26.045 8.26.055 8.26.065 8.26.075 8.26.085 8.26.095 8.26.105 8.26.115 8.26.180 8.26.190 8.26.200 8.26.205 8.26.210 8.26.900 8.26.901 8.26.910 8.26.010 Purposes and scope. Definitions. Payment for moving and related expenses. Payment for replacement housing for homeowners. Payment for replacement housing for tenants and others. Relocation assistance advisory services. Assurance of availability of housing—Exceptions. Lead agency’s rule-making authority—Compliance date. Contracts for services—Use of services of other agencies. Use of funds. Relocation assistance payments not income or resources. Acquisition procedures. Acquisition of buildings, structures, and improvements. Expenses incidental to transfer of right, title, or interest to the acquiring agency. Effect on certain property acquisitions. Award of costs, attorney’s fees, witness fees—Conditions. Severability—1971 ex.s. c 240. Severability—Conflict with federal requirements—1988 c 90. Effective date—1971 ex.s. c 240. 8.26.010 Purposes and scope. (1) The purposes of this chapter are: (a) To establish a uniform policy for the fair and equitable treatment of persons displaced as a direct result of public works programs of the state and local governments in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole and to minimize the hardship of displacement on such persons; (b) To encourage and expedite the acquisition of real property for public works programs by agreements with owners, to reduce litigation and relieve congestion in the courts, to assure consistent treatment for owners affected by state and local programs, and to promote public confidence in state and local land acquisition practices. (2) Notwithstanding the provisions and limitations of this chapter requiring a local public agency to comply with the provisions of this chapter, the governing body of any local public agency may elect not to comply with the provisions of RCW 8.26.035 through 8.26.115 in connection with a program or project not receiving federal financial assistance. Any person who has the authority to acquire property by eminent domain under state law may elect not to comply with RCW 8.26.180 through 8.26.200 in connection with a program or project not receiving federal financial assistance. (3) Any determination by the head of a state agency or local public agency administering a program or project as to (2006 Ed.) 8.26.020 Definitions. As used in this chapter: (1) The term "state" means any department, commission, agency, or instrumentality of the state of Washington. (2) The term "local public agency" applies to any county, city or town, or other municipal corporation or political subdivision of the state and any person who has the authority to acquire property by eminent domain under state law, or any instrumentality of any of the foregoing. (3) The term "person" means any individual, partnership, corporation, or association. (4)(a) The term "displaced person" means, except as provided in (c) of this subsection, any person who moves from real property, or moves his personal property from real property: (i) As a direct result of a written notice of intent to acquire, or the acquisition of, such real property in whole or in part for a program or project undertaken by a displacing agency; or (ii) On which the person is a residential tenant or conducts a small business, a farm operation, or a business defined in this section, as a direct result of rehabilitation, demolition, or such other displacing activity as the lead agency may prescribe, under a program or project undertaken by a displacing agency in any case in which the displacing agency determines that the displacement is permanent. (b) Solely for the purposes of RCW 8.26.035 (1) and (2) and 8.26.065, the term "displaced person" includes any person who moves from real property, or moves his personal property from real property: (i) As a direct result of a written notice of intent to acquire, or the acquisition of, other real property in whole or in part on which the person conducts a business or farm operation, for a program or project undertaken by a displacing agency; or (ii) As a direct result of rehabilitation, demolition, or such other displacing activity as the lead agency may prescribe, of other real property on which the person conducts a business or a farm operation, under a program or project undertaken by a displacing agency where the displacing agency determines that the displacement is permanent. (c) The term "displaced person" does not include: (i) A person who has been determined, according to criteria established by the lead agency, to be either unlawfully occupying the displacement dwelling or to have occupied the dwelling for the purpose of obtaining assistance under this chapter; or (ii) In any case in which the displacing agency acquires property for a program or project, any person (other than a person who was an occupant of the property at the time it was [Title 8 RCW—page 27] 8.26.035 Title 8 RCW: Eminent Domain acquired) who occupies the property on a rental basis for a short term or a period subject to termination when the property is needed for the program or project. (5) The term "business" means any lawful activity, excepting a farm operation, conducted primarily: (a) For the purchase, sale, lease, and rental of personal and real property, and for the manufacture, processing, or marketing of products, commodities, or other personal property; (b) For the sale of services to the public; (c) By a nonprofit organization; or (d) Solely for the purposes of RCW 8.26.035, for assisting in the purchase, sale, resale, manufacture, processing, or marketing of products, commodities, personal property, or services by the erection and maintenance of an outdoor advertising display or displays, whether or not such display or displays are located on the premises on which any of the above activities are conducted. (6) The term "farm operation" means any activity conducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or for home use, and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator’s support. (7) The term "comparable replacement dwelling" means any dwelling that is (a) decent, safe, and sanitary; (b) adequate in size to accommodate the occupants; (c) within the financial means of the displaced person; (d) functionally equivalent; (e) in an area not subject to unreasonably adverse environmental conditions; and (f) in a location generally not less desirable than the location of the displaced person’s dwelling with respect to public utilities, facilities, services, and the displaced person’s place of employment. (8) For purposes of RCW 8.26.180 through 8.26.200, the term "acquiring agency" means: (a) A state agency or local public agency that has the authority to acquire property by eminent domain under state law; or (b) Any state agency, local public agency, or person that (i) does not have the authority to acquire property by eminent domain under state law and (ii) has been designated an "acquiring agency" under rules adopted by the lead agency. However, the lead agency may only designate a state agency, local public agency, or a person as an "acquiring agency" to the extent that it is necessary in order to qualify for federal financial assistance. (9) The term "displacing agency" means the state agency, local public agency, or any person carrying out a program or project, with federal or state financial assistance, that causes a person to be a displaced person. (10) The term "federal financial assistance" means a grant, loan, or contribution provided by the United States, except any federal guarantee or insurance and any interest reduction payment to an individual in connection with the purchase and occupancy of a residence by that individual. (11) The term "mortgage" means such classes of liens as are commonly given to secure advances on, or the unpaid purchase price of, real property, under the laws of this state, together with the credit instruments, if any, secured thereby. (12) The term "lead agency" means the Washington state department of transportation. [Title 8 RCW—page 28] (13) The term "appraisal" means a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information. [2003 c 254 § 1; 1988 c 90 § 2; 1972 ex.s. c 34 § 1; 1971 ex.s. c 240 § 2.] Section captions—1988 c 90: See note following RCW 8.26.010. Application—1972 ex.s. c 34: "Sec. 2. The amendatory language contained in section 1 of this 1972 amendatory act shall apply only to persons displaced after the effective date of this 1972 amendatory act [February 20, 1972]." [1972 ex.s. c 34 § 2.] 8.26.035 8.26.035 Payment for moving and related expenses. (1) Whenever a program or project to be undertaken by a displacing agency will result in the displacement of any person, the displacing agency shall provide for the payment to the displaced person of: (a) Actual reasonable expenses in moving himself or herself, or his or her family, business, farm operation, or other personal property; (b) Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate the property, in accordance with criteria established by the lead agency; (c) Actual reasonable expenses in searching for a replacement business or farm; and (d) Actual reasonable expenses necessary to reestablish a displaced farm, nonprofit organization, or small business at its new site, in accordance with criteria established by the lead agency, but not to exceed fifty thousand dollars. (2) A displaced person eligible for payments under subsection (1) of this section who is displaced from a dwelling and who elects to accept the payments authorized by this subsection in lieu of the payments authorized by subsection (1) of this section may receive an expense and dislocation allowance determined according to a schedule established by the lead agency. (3) A displaced person eligible for payments under subsection (1) of this section who is displaced from the person’s place of business or farm operation and who is eligible under criteria established by the lead agency may elect to accept the payment authorized by this subsection in lieu of the payment authorized by subsection (1) of this section. The payment shall consist of a fixed payment in an amount to be determined according to criteria established by the lead agency, except that the payment shall be not less than one thousand dollars nor more than twenty thousand dollars. A person whose sole business at the displacement dwelling is the rental of that property to others does not qualify for a payment under this subsection. [2003 c 357 § 1; 1988 c 90 § 3.] Section captions—1988 c 90: See note following RCW 8.26.010. 8.26.045 8.26.045 Payment for replacement housing for homeowners. (1) In addition to payments otherwise authorized by this chapter, the displacing agency shall make an additional payment, not in excess of twenty-two thousand five hundred dollars, to any displaced person who is displaced from a dwelling actually owned and occupied by the displaced per(2006 Ed.) Relocation Assistance—Real Property Acquisition Policy son for not less than one hundred and eighty days immediately before the initiation of negotiations for the acquisition of the property. The additional payment shall include the following elements: (a) The amount, if any, that when added to the acquisition cost of the dwelling acquired by the displacing agency, equals the reasonable and necessary cost of a comparable replacement dwelling; (b) The amount, if any, that will compensate the displaced person for any increased mortgage interest costs and other debt service costs that the person is required to pay for financing the acquisition of any such comparable replacement dwelling. This amount shall be paid only if the dwelling acquired by the displacing agency was encumbered by a bona fide mortgage that was a valid lien on the dwelling for not less than one hundred and eighty days immediately before the initiation of negotiations for the acquisition of the dwelling; (c) Reasonable expenses incurred by the displaced person for evidence of title, recording fees, and other closing costs incident to the purchase of the replacement dwelling, but not including prepaid expenses. (2) The additional payment authorized by this section shall be made only to a displaced person who purchases and occupies a decent, safe, and sanitary replacement dwelling within one year after the date on which the person receives final payment from the displacing agency for the acquired dwelling or the date on which the obligation of the displacing agency under RCW 8.26.075 is met, whichever date is later, except that the displacing agency may extend the period for good cause. If the period is extended, the payment under this section shall be based on the costs of relocating the person to a comparable replacement dwelling within one year of that date. [1988 c 90 § 4.] Section captions—1988 c 90: See note following RCW 8.26.010. 8.26.055 8.26.055 Payment for replacement housing for tenants and others. (1) In addition to amounts otherwise authorized by this chapter, a displacing agency shall make a payment to or for a displaced person displaced from a dwelling not eligible to receive a payment under RCW 8.26.045 if the dwelling was actually and lawfully occupied by the displaced person for not less than ninety days immediately before (a) the initiation of negotiations for acquisition of the dwelling, or (b) in any case in which displacement is not a direct result of acquisition, such other event as the lead agency prescribes. The payment shall consist of the amount necessary to enable the person to lease or rent for a period not to exceed forty-two months, a comparable replacement dwelling, but not to exceed five thousand two hundred fifty dollars. At the discretion of the displacing agency, a payment under this subsection may be made in periodic installments. Computation of a payment under this subsection to a low-income displaced person for a comparable replacement dwelling shall take into account the person’s income. (2) A person eligible for a payment under subsection (1) of this section may elect to apply the payment to a down payment on, and other incidental expenses pursuant to, the purchase of a decent, safe, and sanitary replacement dwelling. The person may, at the discretion of the displacing agency, be eligible under this subsection for the maximum payment (2006 Ed.) 8.26.065 allowed under subsection (1) of this section, except that, in the case of a displaced homeowner who has owned and occupied the displacement dwelling for at least ninety days but not more than one hundred eighty days immediately before the initiation of negotiations for the acquisition of the dwelling, the payment shall not exceed the payment the person would otherwise have received under RCW 8.26.045(1) had the person owned and occupied the displacement dwelling one hundred eighty days immediately before the initiation of the negotiations. [1988 c 90 § 5.] Section captions—1988 c 90: See note following RCW 8.26.010. 8.26.065 8.26.065 Relocation assistance advisory services. (1) Programs or projects undertaken by a displacing agency shall be planned in a manner that (a) recognizes, at an early stage in the planning of the programs or projects and before the commencement of any actions that will cause displacements, the problems associated with the displacement of individuals, families, businesses, and farm operations, and (b) provides for the resolution of the problems in order to minimize adverse impacts on displaced persons and to expedite program or project advancement and completion. (2) Displacing agencies shall ensure that the relocation assistance advisory services described in subsection (3) of this section are made available to all persons displaced by the agency. If the agency determines that any person occupying property immediately adjacent to the property where the displacing activity occurs is caused substantial economic injury as a result thereof, the agency may make available to the person the advisory services. (3) Each relocation assistance advisory program required by subsection (2) of this section shall include such measures, facilities, or services as may be necessary or appropriate in order to: (a) Determine, and make timely recommendations on, the needs and preferences, if any, of displaced persons for relocation assistance; (b) Provide current and continuing information on the availability, sales prices, and rental charges of comparable replacement dwellings for displaced homeowners and tenants and suitable locations for businesses and farm operations; (c) Assist a person displaced from a business or farm operation in obtaining and becoming established in a suitable replacement location; (d) Supply (i) information concerning federal, state, and local programs that may be of assistance to displaced persons, and (ii) technical assistance to the persons in applying for assistance under those programs; (e) Provide other advisory services to displaced persons in order to minimize hardships to them in adjusting to relocation; and (f) Coordinate relocation activities performed by the agency with other federal, state, or local governmental actions in the community that could affect the efficient and effective delivery of relocation assistance and related services. (4) Notwithstanding *RCW 8.26.020(4)(b), in any case in which a displacing agency acquires property for a program or project, a person who occupies the property on a rental basis for a short term or a period subject to termination when [Title 8 RCW—page 29] 8.26.075 Title 8 RCW: Eminent Domain the property is needed for the program or project is eligible for advisory services to the extent determined by the displacing agency. [1988 c 90 § 6.] (3) State agencies and local public agencies shall comply with the rules adopted pursuant to this section by April 2, 1989. [1988 c 90 § 8.] *Reviser’s note: RCW 8.26.020 was amended by 2003 c 254 § 1, changing subsection (4)(b) to subsection (4)(c). Section captions—1988 c 90: See note following RCW 8.26.010. Section captions—1988 c 90: See note following RCW 8.26.010. 8.26.075 8.26.095 8.26.095 Contracts for services—Use of services of other agencies. In order to prevent unnecessary expenses and duplication of functions, and to promote uniform and effective administration of relocation assistance programs for displaced persons, a state agency or local public agency may enter into contracts with any individual, firm, association, or corporation for services in connection with this chapter or may carry out its functions under this chapter through any federal or state agency or local public agency having an established organization for conducting relocation assistance programs. The state agency or local public agency shall, in carrying out relocation activities described in RCW 8.26.075, whenever practicable, use the services of state or local housing agencies, or other agencies having experience in the administration or conduct of similar housing assistance activities. [1988 c 90 § 9.] 8.26.075 Assurance of availability of housing— Exceptions. (1) If a program or project undertaken by a displacing agency cannot proceed on a timely basis because comparable replacement dwellings are not available, and the head of the displacing agency determines that the dwellings cannot otherwise be made available, the head of the displacing agency may take such action as is necessary or appropriate to provide the dwellings by use of funds authorized for the project. The displacing agency may use this section to exceed the maximum amounts that may be paid under RCW 8.26.045 and 8.26.055 on a case-by-case basis for good cause as determined in accordance with rules adopted by the lead agency. (2) No person may be required to move from a dwelling on account of any program or project undertaken by a displacing agency unless the displacing agency is satisfied that comparable replacement housing is available to the person. (3) The displacing agency shall assure that a person shall not be required to move from a dwelling unless the person has had a reasonable opportunity to relocate to a comparable replacement dwelling, except in the case of the following: (a) A major disaster as defined in section 102(2) of the Federal Disaster Relief Act of 1974; (b) A national emergency declared by the president; or (c) Any other emergency that requires the person to move immediately from the dwelling because continued occupancy of the dwelling by the person constitutes a substantial danger to the health or safety of the person. [1988 c 90 § 7.] 8.26.105 Use of funds. (1) Funds appropriated or otherwise available to a state agency or local public agency for the acquisition of real property or an interest therein for a particular program or project shall also be available to carry out the provisions of this chapter as applied to that program or project. (2) No payment or assistance under this chapter may be required to be made to any person or included as a program or project cost under this section, if the person receives a payment required by federal, state, or local law that is determined by the head of the displacing agency to have substantially the same purpose and effect as that payment under this chapter. [1988 c 90 § 10.] Section captions—1988 c 90: See note following RCW 8.26.010. Section captions—1988 c 90: See note following RCW 8.26.010. 8.26.085 8.26.085 Lead agency’s rule-making authority— Compliance date. (1) The lead agency, after full consultation with the department of general administration, shall adopt rules and establish such procedures as the lead agency may determine to be necessary to assure: (a) That the payments and assistance authorized by this chapter are administered in a manner that is fair and reasonable and as uniform as practicable; (b) That a displaced person who makes proper application for a payment authorized for that person by this chapter is paid promptly after a move or, in hardship cases, is paid in advance; and (c) That a displaced person who is aggrieved by a program or project that is under the authority of a state agency or local public agency may have his application reviewed by the state agency or local public agency. (2) The lead agency, after full consultation with the department of general administration, may adopt such other rules and procedures, consistent with the provisions of this chapter, as the lead agency deems necessary or appropriate to carry out this chapter. [Title 8 RCW—page 30] Section captions—1988 c 90: See note following RCW 8.26.010. 8.26.105 8.26.115 8.26.115 Relocation assistance payments not income or resources. No payment received by a displaced person under RCW 8.26.035 through 8.26.105 may be considered as income for the purpose of determining the eligibility or extent of eligibility of any person for assistance under any state law or for the purposes of any income tax or any tax imposed under Title 82 RCW, and the payments shall not be deducted from any amount to which any recipient would otherwise be entitled under Title 74 RCW. [1988 c 90 § 11.] Section captions—1988 c 90: See note following RCW 8.26.010. 8.26.180 8.26.180 Acquisition procedures. Every acquiring agency shall, to the greatest extent practicable, be guided by the following policies: (1) Every reasonable effort shall be made to acquire expeditiously real property by negotiation. (2) Real property shall be appraised before the initiation of negotiations, and the owner or his designated representative shall be given an opportunity to accompany at least one appraiser of the acquiring agency during his inspection of the property, except that the lead agency may prescribe a proce(2006 Ed.) Relocation Assistance—Real Property Acquisition Policy dure to waive the appraisal in cases involving the acquisition of property with a low fair market value. (3) Before the initiation of negotiations for real property, the acquiring agency shall establish an amount which it believes to be just compensation therefor, and shall make a prompt offer to acquire the property for the full amount so established. In no event shall such amount be less than the agency’s approved appraisal of the fair market value of such property. Any decrease or increase in the fair market value of the real property to be acquired prior to the date of valuation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, will be disregarded in determining the compensation for the property. The acquiring agency shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount it established as just compensation. Where appropriate the just compensation for the real property acquired, for damages to remaining real property, and for benefits to remaining real property shall be separately stated. (4) No owner shall be required to surrender possession of real property before the agreed purchase price is paid or deposited with a court having jurisdiction of condemnation of such property, in accordance with applicable law, for the benefit of the owner an amount not less than the acquiring agency’s approved appraisal of the fair market value of such property, or the amount of the award of compensation in the condemnation proceeding of such property. (5) The construction or development of a public improvement shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling or to move his business or farm operation without at least ninety days written notice of the date by which such move is required. (6) If an owner or tenant is permitted to occupy the real property acquired on a rental basis for a short term or for a period subject to termination on short notice, the amount of rent required shall not exceed the fair rental value of the property to a short-term occupier. (7) In no event shall the time *of condemnation be advanced, on negotiations or condemnation and the deposit of funds in court for the use of the owner be deferred, or any other coercive action be taken to compel an agreement on the price to be paid for the property. (8) If an interest in real property is to be acquired by exercise of the power of eminent domain, formal condemnation proceedings shall be instituted. The acquiring agency shall not intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his real property. (9) If the acquisition of only a portion of a property would leave the owner with an uneconomic remnant, the head of the agency concerned shall offer to acquire that remnant. For the purposes of this chapter, an uneconomic remnant is a parcel of real property in which the owner is left with an interest after the partial acquisition of the owner’s property and that the head of the agency concerned has determined has little or no value or utility. (2006 Ed.) 8.26.200 (10) A person whose real property is being acquired in accordance with this chapter may, after the person has been fully informed of his right to receive just compensation for the property, donate the property, any part thereof, any interest therein, or any compensation paid for it to any agency as the person may determine. [1988 c 90 § 12; 1971 ex.s. c 240 § 18.] *Reviser’s note: The word "or" may have been intended. The language of subsection (7) of this section apparently reflects similar language found in 49 C.F.R. 24.102(h). Section captions—1988 c 90: See note following RCW 8.26.010. 8.26.190 8.26.190 Acquisition of buildings, structures, and improvements. (1) Where any interest in real property is acquired, the acquiring agency shall acquire an equal interest in all buildings, structures, or other improvements located upon the real property so acquired and which is required to be removed from such real property or which is determined to be adversely affected by the use to which such real property will be put. (2) For the purpose of determining the just compensation to be paid for any building, structure, or other improvement required to be acquired under subsection (1) of this section, such building, structure, or other improvement shall be deemed to be a part of the real property to be acquired notwithstanding the right or obligation of a tenant of the lands, as against the owner of any other interest in the real property, to remove such building, structure, or improvement at the expiration of his term, and the fair market value which such building, structure, or improvement contributes to the fair market value of the real property to be acquired, or the fair market value of such building, structure, or improvement for removal from the real property, whichever is the greater, shall be paid to the owner of such building, structure, or improvement. (3) Payment for such building, structure, or improvement under subsection (1) of this section shall not result in duplication of any payments otherwise authorized by state law. No such payment shall be made unless the owner of the land involved disclaims all interest in the improvements of the tenant. In consideration for any such payment, the tenant shall assign, transfer, and release all his right, title, and interest in and to such improvements. Nothing with regard to the above-mentioned acquisition of buildings, structures, or other improvements shall be construed to deprive the tenant of any rights to reject payment and to obtain payment for such property interests in accordance with other laws of this state. [1988 c 90 § 13; 1971 ex.s. c 240 § 19.] Section captions—1988 c 90: See note following RCW 8.26.010. 8.26.200 8.26.200 Expenses incidental to transfer of right, title, or interest to the acquiring agency. As soon as practicable after the date of payment of the purchase price or the date of deposit in court of funds to satisfy the award of compensation in a condemnation proceeding to acquire real property, whichever is the earlier, the acquiring agency shall reimburse the owner, to the extent the acquiring agency deems fair and reasonable, for expenses the owner necessarily incurred for: [Title 8 RCW—page 31] 8.26.205 Title 8 RCW: Eminent Domain (1) Recording fees, transfer taxes, and similar expenses incidental to conveying such real property to the acquiring agency; (2) Penalty costs for full or partial prepayment of any preexisting recorded mortgage entered into in good faith encumbering such real property; and (3) The pro rata portion of real property taxes paid which are allocable to a period subsequent to the date of vesting title in the acquiring agency, or the effective date of possession of such real property by the acquiring agency, whichever is the earlier. [1988 c 90 § 14; 1971 ex.s. c 240 § 20.] Section captions—1988 c 90: See note following RCW 8.26.010. 8.26.205 8.26.205 Effect on certain property acquisitions. The provisions of RCW 8.26.180, 8.26.190, and 8.26.200 create no rights or liabilities and do not affect the validity of any property acquisitions by purchase or condemnation. [1988 c 90 § 15.] Section captions—1988 c 90: See note following RCW 8.26.010. 8.26.210 8.26.210 Award of costs, attorney’s fees, witness fees—Conditions. See RCW 8.25.070, 8.25.075. 8.26.900 8.26.900 Severability—1971 ex.s. c 240. If any provision of this 1971 act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1971 ex.s. c 240 § 23.] 8.26.901 8.26.901 Severability—Conflict with federal requirements—1988 c 90. (1) If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. (2) If any part of this chapter is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this chapter is declared to be inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and that finding or determination shall not affect the operation of the remainder of this chapter in its application to the agencies concerned. The rules under this chapter shall meet federal requirements that are a necessary condition to the receipt of federal funds by the state. [1988 c 90 § 16.] 8.26.910 8.26.910 Effective date—1971 ex.s. c 240. This act is necessary for the immediate preservation of the public peace, health and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1971. [1971 ex.s. c 240 § 24.] Chapter 8.28 Chapter 8.28 RCW MISCELLANEOUS PROVISIONS Sections 8.28.010 8.28.030 8.28.040 8.28.050 Where state land is involved—Service of process—Filing of decree—Duty of land commissioner. Notice where military land is involved. Interest on verdict fixed—Suspension during pendency of appeal. City in adjoining state may condemn watershed property. [Title 8 RCW—page 32] 8.28.070 Acquisition of property subject to unpaid or delinquent local improvement assessments—Payment. Opening of roads, railroads through cemetery—Consent required: RCW 68.24.180. Petroleum leases—Rights-of-way over public lands: RCW 79.14.140. Public lands: Chapter 79.02 RCW. Water rights artesian wells, rights-of-way to: RCW 90.36.010. generally: RCW 90.03.040. of the United States: RCW 90.40.010. 8.28.010 8.28.010 Where state land is involved—Service of process—Filing of decree—Duty of land commissioner. In all condemnation proceedings brought for the purpose of appropriating any public land owned by the state or in which the state has an interest, service of process shall be made upon the commissioner of public lands. When in any condemnation proceeding a decree is entered appropriating public lands owned by the state or in which the state has an interest, or any interest in or rights over such lands, it shall be the duty of the plaintiff to cause to be filed in the office of the commissioner of public lands a certified copy of such decree, together with a plat of the lands appropriated and the lands contiguous thereto, in form and substance as prescribed and required by the commissioner of public lands, showing in detail the lands appropriated, and to pay to the commissioner of public lands, or into the registry of the court, the amount of compensation and damages fixed and awarded in the decree. Upon receipt of such decree, plat, compensation and damages, the commissioner of public lands shall examine the same, and if he shall find that the final decree and proceedings comply with the original petition and notice and any amendment duly authorized, and that no additional interest of the state has been taken or appropriated through error or mistake, he shall cause notations thereof to be made upon the abstracts, records and tract books in his office, and shall issue to the plaintiff his certificate, reciting compliance, in substance, with the above requirements, particularly describing the lands appropriated, and shall forthwith transmit the amount received as compensation and damages to the state treasurer, as in the case of sale of land, and the subdivision of land through which any right of way is appropriated shall thereafter be sold or leased subject to the right of way. [1927 c 255 § 104; RRS § 7797-104. Formerly RCW 8.28.010 and 8.28.020.] 8.28.030 8.28.030 Notice where military land is involved. Whenever any land, real estate, premises or other property owned by the state of Washington and used for military purposes shall be involved in or affected by any eminent domain, condemnation, local improvement or other special assessment proceeding whatsoever, in addition to the notices elsewhere provided by law, the officer or board required by law to give notice of such proceedings shall cause to be served upon the adjutant general at least twenty days in advance of any hearing therein, a written notice, setting forth the nature of the proceedings, the description of such state property sought to be involved therein or affected thereby and the amount of the proposed assessment therein. [1917 c 107 § 125; RRS § 8600.] Condemnation for military purposes: RCW 8.04.170, 8.04.180. (2006 Ed.) Miscellaneous Provisions 8.28.070 8.28.040 Interest on verdict fixed—Suspension during pendency of appeal. Whenever in any eminent domain proceeding, heretofore or hereafter instituted for the taking or damaging of private property, a verdict shall have been returned by the jury, or by the court if the case be tried without a jury, fixing the amount to be paid as compensation for the property so to be taken or damaged, such verdict shall bear interest at the maximum rate of interest permitted at that time under RCW 19.52.020 from the date of its entry to the date of payment thereof: PROVIDED, That the running of such interest shall be suspended, and such interest shall not accrue, for any period of time during which the entry of final judgment in such proceeding shall have been delayed solely by the pendency of an appeal taken in such proceeding. [1984 c 129 § 2; 1943 c 28 § 1; Rem. Supp. 1943 § 936-4.] 8.28.040 8.28.050 City in adjoining state may condemn watershed property. That any municipal corporation of any state adjoining the state of Washington may acquire title to any land or water right within the state of Washington, by purchase or condemnation, which lies within any watershed from which said municipal corporation obtains or desires to obtain its water supply. [1909 c 16 § 1; RRS § 9280.] 8.28.050 8.28.070 Acquisition of property subject to unpaid or delinquent local improvement assessments—Payment. See RCW 79.44.190. 8.28.070 (2006 Ed.) [Title 8 RCW—page 33] Title 9 Chapters 9.01 9.02 9.03 9.04 9.05 9.08 9.12 9.16 9.18 9.24 9.26A 9.27 9.31 9.35 9.38 9.40 9.41 9.44 9.45 9.46 9.47 9.47A 9.51 9.54 9.55 9.58 9.61 9.62 9.66 9.68 9.68A 9.69 9.72 9.73 9.81 9.82 9.86 9.91 9.92 9.94 9.94A 9.95 9.96 9.96A 9.98 9.100 Title 9 CRIMES AND PUNISHMENTS Washington Criminal Code: Title 9A RCW. General provisions. Abortion. Abandoned refrigeration equipment. Advertising, crimes relating to. Sabotage. Animals, crimes relating to. Barratry. Brands and marks, crimes relating to. Bidding offenses. Corporations, crimes relating to. Telecommunications crime. Interference with court. Escaped prisoner recaptured. Identity crimes. False representations. Fire, crimes relating to. Firearms and dangerous weapons. Petition misconduct. Frauds and swindles. Gambling—1973 act. Gambling. Inhaling toxic fumes. Juries, crimes relating to. Stolen property restoration. Legislature, crimes relating to. Libel and slander. Malicious mischief—Injury to property. Malicious prosecution—Abuse of process. Nuisance. Obscenity and pornography. Sexual exploitation of children. Duty of witnesses. Perjury. Privacy, violating right of. Subversive activities. Treason. Flags, crimes relating to. Miscellaneous crimes. Punishment. Prisoners—Correctional institutions. Sentencing reform act of 1981. Indeterminate sentences. Restoration of civil rights. Restoration of employment rights. Prisoners—Untried indictments, informations, complaints. Agreement on detainers. Civil disorder, proclamation of state of emergency, governor’s powers, penalties: RCW 43.06.200 through 43.06.270. Criminal justice training commission—Education and training boards: Chapter 43.101 RCW. Explosives: Chapter 70.74 RCW. Health care false claim act: Chapter 48.80 RCW. Limitation of actions: RCW 9A.04.080. Miscellaneous crimes, see list after chapter 9.91 RCW digest. Threats against governor or family: RCW 9A.36.090. Victims of crimes, compensation: Chapter 7.68 RCW. (2006 Ed.) Chapter 9.01 Chapter 9.01 RCW GENERAL PROVISIONS Sections 9.01.055 9.01.110 9.01.120 9.01.130 9.01.160 Citizen immunity if aiding officer, scope—When. Omission, when not punishable. Civil remedies preserved. Sending letter, when complete. Application to existing civil rights. Conviction of lesser crime: RCW 10.61.010. Employment of prisoners by county sheriff: RCW 36.28.100. Forfeiture or impeachment rights preserved: RCW 42.04.040. Former acquittal or conviction: Chapter 10.43 RCW. Indians, jurisdiction in criminal and civil causes: Chapter 37.12 RCW. Intent to defraud, proof: RCW 10.58.040. Juvenile offenders, commitment: Chapters 13.04, 13.34 RCW. Neglect of duty by public officer: RCW 42.20.100. Presumption of innocence: RCW 10.58.020. Prosecuting attorneys, duties in general: Chapter 36.27 RCW. Self-incrimination: RCW 10.52.090. 9.01.055 9.01.055 Citizen immunity if aiding officer, scope— When. Private citizens aiding a police officer, or other officers of the law in the performance of their duties as police officers or officers of the law, shall have the same civil and criminal immunity as such officer, as a result of any act or commission for aiding or attempting to aid a police officer or other officer of the law, when such officer is in imminent danger of loss of life or grave bodily injury or when such officer requests such assistance and when such action was taken under emergency conditions and in good faith. [1969 c 37 § 1.] Immunity from liability for certain types of medical care: RCW 4.24.300. 9.01.110 9.01.110 Omission, when not punishable. No person shall be punished for an omission to perform an act when such act has been performed by another acting in his behalf, and competent to perform it. [1909 c 249 § 23; RRS § 2275.] 9.01.120 9.01.120 Civil remedies preserved. The omission to specify or affirm in this act any liability to any damages, penalty, forfeiture or other remedy, imposed by law, and allowed to be recovered or enforced in any civil action or proceeding, for any act or omission declared punishable herein, shall not affect any right to recover or enforce the same. [1909 c 249 § 44; RRS § 2296.] Effect—1909 c 249: "The repeal or abrogation by this act of any existing law shall not revive any former law heretofore repealed, nor affect any right already existing or accrued or any action or proceeding already taken, except as in this act provided; nor does it repeal any private statute or statute affecting civil rights or liabilities not expressly repealed." [1909 c 249 § 50.] "this act" (chapter 249, Laws of 1909) has been codified as follows: RCW [Title 9 RCW—page 1] 9.01.130 Title 9 RCW: Crimes and Punishments 9.01.010-9.01.050, 9.01.060, 9.01.070, 9.01.090-9.01.114, 9.01.120, 9.01.130, 9.01.150-9.01.190, 9.02.010-9.02.050, 9.04.020, 9.04.030, 9.05.010-9.05.050, 9.05.150, 9.05.160, 9.08.010-9.08.040, 9.09.0109.09.060, 9.11.010-9.11.050, 9.12.010-9.12.020, 9.15.010, 9.15.020, 9.16.010-9.16.070, 9.16.100-9.16.150, 9.18.010-9.18.110, 9.19.0109.19.050, 9.22.010-9.22.030, 9.23.010, 9.24.010-9.24.050, 9.26.010, 9.26.020, 9.27.010-9.27.100, 9.30.010-9.30.050, 9.31.010-9.31.090, 9.33.010-9.33.060, 9.34.010, 9.34.020, 9.37.010-9.37.040, 9.38.0109.38.030, 9.38.050, 9.40.010-9.40.040, 9.41.180, 9.41.230-9.41.260, 9.44.010-9.44.080, 9.45.010-9.45.060, 9.45.070-9.45.120, 9.45.1509.45.170, 9.47.080-9.47.100, 9.47.120, 9.47.130, 9.48.010-9.48.170, 9.51.010-9.51.060, 9.52.030, 9.52.040, 9.54.010, 9.54.060-9.54.110, 9.54.120, 9.54.130, 9.55.010, 9.55.020, 9.58.010-9.58.090, 9.58.110, 9.58.120, 9.59.010-9.59.050, 9.61.010-9.61.070, 9.62.010, 9.62.020, 9.65.010-9.65.030, 9.66.010-9.66.050, 9.68.010, 9.68.020, 9.68.030, 9.69.010-9.69.090, 9.72.010-9.72.110, 9.73.010, 9.73.020, 9.75.010, 9.75.020, 9.76.020-9.76.050, 9.79.010-9.79.120, 9.80.010-9.80.050, 9.82.010-9.82.030, 9.83.010, 9.83.060, 9.86.020, 9.86.030, 9.87.010, 9.91.010, 9.91.070-9.91.090, 9.92.010-9.92.060, 9.92.080-9.92.120, 10.01.060, 10.01.110, 10.19.010, 10.37.020, 10.43.010, 10.43.03010.43.050, 10.46.010, 10.46.050, 10.46.090, 10.52.030, 10.52.060, 10.52.090, 10.58.020, 10.58.040, 10.61.010, 19.60.010-19.60.060, 22.32.010-22.32.050, 26.04.240, 26.28.060, 26.28.070, 36.28.100, 40.16.010-40.16.030, 42.04.040, 42.20.010-42.20.100, 49.44.02049.44.080, 59.12.230, 66.44.230-66.44.250, 68.08.100, 68.08.110, 68.08.140, 68.24.190, 69.40.030-69.40.050, 70.54.010, 70.54.020, 70.54.050, 70.54.070, 70.54.080, 70.74.270-70.74.300, 71.08.010, 71.08.020, 76.04.220, 81.40.100, 81.48.010, 81.48.020, 81.48.060, 81.56.150, 81.56.160, 81.60.070, 88.08.020, 88.08.030, 88.08.050, 88.08.060. 9.01.130 9.01.130 Sending letter, when complete. Whenever any statute makes the sending of a letter criminal, the offense shall be deemed complete from the time it is deposited in any post office or other place, or delivered to any person, with intent that it shall be forwarded; and the sender may be proceeded against in the county wherein it was so deposited or delivered, or in which it was received by the person to whom it was addressed. [1909 c 249 § 22; RRS § 2274.] 9.01.160 9.01.160 Application to existing civil rights. Nothing in this act shall be deemed to affect any civil right or remedy existing at the time when it shall take effect, by virtue of the common law or of the provision of any statute. [1909 c 249 § 43; RRS § 2295.] Reviser’s note: For "this act," see note following RCW 9.01.120. Chapter 9.02 RCW ABORTION Chapter 9.02 Sections 9.02.005 9.02.050 9.02.100 9.02.110 9.02.120 9.02.130 9.02.140 9.02.150 9.02.160 9.02.170 9.02.900 9.02.901 9.02.902 Transfer of duties to the department of health. Concealing birth. Reproductive privacy—Public policy. Right to have and provide. Unauthorized abortions—Penalty. Defenses to prosecution. State regulation. Refusing to perform. State-provided benefits. Definitions. Construction—1992 c 1 (Initiative Measure No. 120). Severability—1992 c 1 (Initiative Measure No. 120). Short title—1992 c 1 (Initiative Measure No. 120). Advertising or selling means of abortion: RCW 9.68.030. Health care facilities, interference with: Chapter 9A.50 RCW. Right to medical treatment of infant born alive in the course of an abortion procedure: RCW 18.71.240. [Title 9 RCW—page 2] 9.02.005 9.02.005 Transfer of duties to the department of health. The powers and duties of the state board of health under this chapter shall be performed by the department of health. [1989 1st ex.s. c 9 § 202; 1985 c 213 § 3.] Effective date—Severability—1989 1st ex.s. c 9: See RCW 43.70.910 and 43.70.920. Savings—Effective date—1985 c 213: See notes following RCW 43.20.050. 9.02.050 9.02.050 Concealing birth. Every person who shall endeavor to conceal the birth of a child by any disposition of its dead body, whether the child died before or after its birth, shall be guilty of a gross misdemeanor. [1909 c 249 § 200; RRS § 2452.] 9.02.100 9.02.100 Reproductive privacy—Public policy. The sovereign people hereby declare that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions. Accordingly, it is the public policy of the state of Washington that: (1) Every individual has the fundamental right to choose or refuse birth control; (2) Every woman has the fundamental right to choose or refuse to have an abortion, except as specifically limited by RCW 9.02.100 through 9.02.170 and 9.02.900 through 9.02.902; (3) Except as specifically permitted by RCW 9.02.100 through 9.02.170 and 9.02.900 through 9.02.902, the state shall not deny or interfere with a woman’s fundamental right to choose or refuse to have an abortion; and (4) The state shall not discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information. [1992 c 1 § 1 (Initiative Measure No. 120, approved November 5, 1991).] 9.02.110 9.02.110 Right to have and provide. The state may not deny or interfere with a woman’s right to choose to have an abortion prior to viability of the fetus, or to protect her life or health. A physician may terminate and a health care provider may assist a physician in terminating a pregnancy as permitted by this section. [1992 c 1 § 2 (Initiative Measure No. 120, approved November 5, 1991).] 9.02.120 9.02.120 Unauthorized abortions—Penalty. Unless authorized by RCW 9.02.110, any person who performs an abortion on another person shall be guilty of a class C felony punishable under chapter 9A.20 RCW. [1992 c 1 § 3 (Initiative Measure No. 120, approved November 5, 1991).] 9.02.130 9.02.130 Defenses to prosecution. The good faith judgment of a physician as to viability of the fetus or as to the risk to life or health of a woman and the good faith judgment of a health care provider as to the duration of pregnancy shall be a defense in any proceeding in which a violation of this chapter is an issue. [1992 c 1 § 4 (Initiative Measure No. 120, approved November 5, 1991).] (2006 Ed.) Abandoned Refrigeration Equipment 9.02.140 9.02.140 State regulation. Any regulation promulgated by the state relating to abortion shall be valid only if: (1) The regulation is medically necessary to protect the life or health of the woman terminating her pregnancy, (2) The regulation is consistent with established medical practice, and (3) Of the available alternatives, the regulation imposes the least restrictions on the woman’s right to have an abortion as defined by RCW 9.02.100 through 9.02.170 and 9.02.900 through 9.02.902. [1992 c 1 § 5 (Initiative Measure No. 120, approved November 5, 1991).] 9.03.040 through 9.02.902. [1992 c 1 § 10 (Initiative Measure No. 120, approved November 5, 1991).] 9.02.901 9.02.901 Severability—1992 c 1 (Initiative Measure No. 120). If any provision of RCW 9.02.100 through 9.02.170 and 9.02.900 through 9.02.902 or its application to any person or circumstance is held invalid, the remainder of RCW 9.02.100 through 9.02.170 and 9.02.900 through 9.02.902 or the application of the provision to other persons or circumstances is not affected. [1992 c 1 § 11 (Initiative Measure No. 120, approved November 5, 1991).] 9.02.150 9.02.150 Refusing to perform. No person or private medical facility may be required by law or contract in any circumstances to participate in the performance of an abortion if such person or private medical facility objects to so doing. No person may be discriminated against in employment or professional privileges because of the person’s participation or refusal to participate in the termination of a pregnancy. [1992 c 1 § 6 (Initiative Measure No. 120, approved November 5, 1991).] 9.02.160 9.02.160 State-provided benefits. If the state provides, directly or by contract, maternity care benefits, services, or information to women through any program administered or funded in whole or in part by the state, the state shall also provide women otherwise eligible for any such program with substantially equivalent benefits, services, or information to permit them to voluntarily terminate their pregnancies. [1992 c 1 § 7 (Initiative Measure No. 120, approved November 5, 1991).] 9.02.170 9.02.170 Definitions. For purposes of this chapter: (1) "Viability" means the point in the pregnancy when, in the judgment of the physician on the particular facts of the case before such physician, there is a reasonable likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures. (2) "Abortion" means any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth. (3) "Pregnancy" means the reproductive process beginning with the implantation of an embryo. (4) "Physician" means a physician licensed to practice under chapter 18.57 or 18.71 RCW in the state of Washington. (5) "Health care provider" means a physician or a person acting under the general direction of a physician. (6) "State" means the state of Washington and counties, cities, towns, municipal corporations, and quasi-municipal corporations in the state of Washington. (7) "Private medical facility" means any medical facility that is not owned or operated by the state. [1992 c 1 § 8 (Initiative Measure No. 120, approved November 5, 1991).] 9.02.900 9.02.900 Construction—1992 c 1 (Initiative Measure No. 120). RCW 9.02.100 through 9.02.170 and 9.02.900 through 9.02.902 shall not be construed to define the state’s interest in the fetus for any purpose other than the specific provisions of RCW 9.02.100 through 9.02.170 and 9.02.900 (2006 Ed.) 9.02.902 9.02.902 Short title—1992 c 1 (Initiative Measure No. 120). RCW 9.02.100 through 9.02.170 and 9.02.900 through 9.02.902 shall be known and may be cited as the Reproductive Privacy Act. [1992 c 1 § 12 (Initiative Measure No. 120, approved November 5, 1991).] Chapter 9.03 Chapter 9.03 RCW ABANDONED REFRIGERATION EQUIPMENT Sections 9.03.010 9.03.020 9.03.030 9.03.040 Abandoning, discarding refrigeration equipment. Permitting unused equipment to remain on premises. Violation of RCW 9.03.010 or 9.03.020. Keeping or storing equipment for sale. 9.03.010 9.03.010 Abandoning, discarding refrigeration equipment. Any person who discards or abandons or leaves in any place accessible to children any refrigerator, icebox, or deep freeze locker having a capacity of one and one-half cubic feet or more, which is no longer in use, and which has not had the door removed or a portion of the latch mechanism removed to prevent latching or locking of the door, is guilty of a misdemeanor. [1955 c 298 § 1.] 9.03.020 9.03.020 Permitting unused equipment to remain on premises. Any owner, lessee, or manager who knowingly permits such an unused refrigerator, icebox, or deep freeze locker to remain on the premises under his control without having the door removed or a portion of the latch mechanism removed to prevent latching or locking of the door is guilty of a misdemeanor. [1955 c 298 § 2.] 9.03.030 9.03.030 Violation of RCW 9.03.010 or 9.03.020. Guilt of a violation of RCW 9.03.010 or 9.03.020 shall not, in itself, render one guilty of manslaughter, battery, or other crime against a person who may suffer death or injury from entrapment in such refrigerator, icebox, or deep freeze locker. [1955 c 298 § 3.] 9.03.040 9.03.040 Keeping or storing equipment for sale. Any person who keeps or stores refrigerators, iceboxes, or deep freeze lockers for the purpose of selling or offering them for sale shall not be guilty of a violation of this chapter if he takes reasonable precautions to effectively secure the door of any refrigerator, icebox, or deep freeze locker held for purpose of sale so as to prevent entrance of children small enough to fit into such articles. [1955 c 298 § 4.] [Title 9 RCW—page 3] Chapter 9.04 Title 9 RCW: Crimes and Punishments Chapter 9.04 RCW ADVERTISING, CRIMES RELATING TO Chapter 9.04 Sections 9.04.010 9.04.040 9.04.050 9.04.060 9.04.070 9.04.080 9.04.090 False advertising. Advertising cures of lost sexual potency—Evidence. False, misleading, deceptive advertising. False, misleading, deceptive advertising—Action to restrain and prevent. False, misleading, deceptive advertising—Penalty. False, misleading, deceptive advertising—Assurance of discontinuance of unlawful practice. Advertising fuel prices by service stations. Apple advertising: Chapter 15.24 RCW. Attaching advertisements to utility poles—Penalty: RCW 70.54.090. Attorneys at law, advertising: Rules of court: RPC 7.2. Banks and trust companies: advertising legal services: RCW 30.04.260. using words indicating: RCW 30.04.020. Buildings, placing advertising matter on: Chapter 9A.48 RCW. Charitable solicitations, regulation, application of chapter 9.04 RCW: RCW 19.09.340. Contraceptives or means of abortion, advertising: RCW 9.68.030. Dentistry, advertising restrictions: RCW 18.32.665, 18.32.755. Egg law, advertising violations: Chapter 69.25 RCW. Elections, advertising violations: initiative or referendum petition signers: RCW 29A.84.250. recall petition signers: RCW 29A.84.220. Employment agencies, false advertising: Chapter 19.31 RCW. Food, drugs, and cosmetics: Chapter 69.04 RCW. Hearing instrument dispensing, advertising, etc.—Application: RCW 18.35.180. Indecent articles: RCW 9.68.030. Insurance, unlawful advertising practices: Chapter 48.30 RCW. Optometry advertising: RCW 18.53.140, 18.53.150. State parks, advertising prohibited: RCW 79A.05.165. 9.04.010 9.04.010 False advertising. Any person, firm, corporation or association who, with intent to sell or in any wise dispose of merchandise, securities, service, or anything offered by such person, firm, corporation or association, directly or indirectly, to the public for sale or distribution, or with intent to increase the consumption thereof, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or an interest therein, makes, publishes, disseminates, circulates, or places before the public, or causes, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public in this state, in a newspaper or other publication, or in the form of a book, notice, hand-bill, poster, bill, circular, pamphlet, or letter, or in any other way, an advertisement of any sort regarding merchandise, securities, service, or anything so offered to the public, which advertisement contains any assertion, representation or statement of fact which is untrue, deceptive or misleading, shall be guilty of a misdemeanor: PROVIDED, That the provisions of this section shall not apply to any owner, publisher, agent, or employee of a newspaper for the publication of such advertisement published in good faith and without knowledge of the falsity thereof. [1913 c 34 § 1; RRS § 2622-1.] 9.04.040 9.04.040 Advertising cures of lost sexual potency— Evidence. Any advertisement in any newspaper, periodical, [Title 9 RCW—page 4] pamphlet, circular or other written or printed paper, containing the words, "lost manhood", "lost vitality", "lost vigor", "monthly regulators for women", or words synonymous therewith, shall be prima facie evidence of intent to violate *RCW 9.04.030 and 9.04.040 by the person or persons so advertising, or causing to be advertised, or publishing or permitting to be published, or distributing, circulating and displaying or causing to be distributed, circulated or displayed, any such advertisement. [1921 c 168 § 2; RRS § 2462-1.] *Reviser’s note: RCW 9.04.030 was repealed by 1987 c 456 § 32. 9.04.050 9.04.050 False, misleading, deceptive advertising. It shall be unlawful for any person to publish, disseminate or display, or cause directly or indirectly, to be published, disseminated or displayed in any manner or by any means, including solicitation or dissemination by mail, telephone, electronic communication, or door-to-door contacts, any false, deceptive or misleading advertising, with knowledge of the facts which render the advertising false, deceptive or misleading, for any business, trade or commercial purpose or for the purpose of inducing, or which is likely to induce, directly or indirectly, the public to purchase, consume, lease, dispose of, utilize or sell any property or service, or to enter into any obligation or transaction relating thereto: PROVIDED, That nothing in this section shall apply to any radio or television broadcasting station which broadcasts, or to any publisher, printer or distributor of any newspaper, magazine, billboard or other advertising medium who publishes, prints or distributes, such advertising in good faith without knowledge of its false, deceptive or misleading character. [2000 c 33 § 1; 1961 c 189 § 1.] Severability—1961 c 189: "If any provision of this act is declared unconstitutional, or the applicability thereof to any person or circumstances is held invalid, the constitutionality of the remainder of the act and the applicability thereof to other persons and circumstances shall not be affected thereby." [1961 c 189 § 5.] Blind made products, false advertising: RCW 19.06.030, 19.06.040. Highway advertising control act of 1961, Scenic Vistas Act of 1971: Chapter 47.42 RCW. 9.04.060 9.04.060 False, misleading, deceptive advertising— Action to restrain and prevent. The attorney general or the prosecuting attorneys of the several counties may bring an action in the superior court to restrain and prevent any person from violating any provision of RCW 9.04.050 through 9.04.080. [1961 c 189 § 2.] 9.04.070 9.04.070 False, misleading, deceptive advertising— Penalty. Any person who violates any order or injunction issued pursuant to RCW 9.04.050 through 9.04.080 shall be subject to a fine of not more than five thousand dollars or imprisonment for not more than ninety days or both. [1999 c 143 § 1; 1961 c 189 § 3.] 9.04.080 9.04.080 False, misleading, deceptive advertising— Assurance of discontinuance of unlawful practice. In the enforcement of RCW 9.04.050 through 9.04.080 the official enforcing RCW 9.04.050 through 9.04.080 may accept an assurance of discontinuance of any act or practice deemed in violation of RCW 9.04.050 through 9.04.080, from any person engaging in, or who has engaged in such act or practice. (2006 Ed.) Sabotage Any such assurance shall be in writing and be filed with and subject to the approval of the superior court of the county in which the alleged violator resides or has his principal place of business, or in Thurston county. A violation of such assurance shall constitute prima facie proof of a violation of RCW 9.04.050 through 9.04.080: PROVIDED, That after commencement of any action by a prosecuting attorney, as provided herein, the attorney general may not accept an assurance of discontinuance without the consent of the prosecuting attorney. [1961 c 189 § 4.] 9.04.090 9.04.090 Advertising fuel prices by service stations. It is unlawful for any dealer or service station, as both are defined in *RCW 82.36.010, to advertise by publication, dissemination, display, or whatever means: (1) A price per unit of fuel that is expressed in a unit of measurement different from that employed by the pump or other device used to dispense the fuel, unless the price is advertised for both units of measurement in the same fashion; or (2) A price per unit of fuel that is conditioned upon the purchase of another product, unless the conditional language, name, and price of the other product are clearly expressed in the advertisement in characters at least one-half the height of the characters used to advertise the fuel price. Violation of this section is a misdemeanor and is subject to the provisions of RCW 9.04.060 through 9.04.080. [1983 c 114 § 1.] *Reviser’s note: RCW 82.36.010 was amended by 1998 c 176 § 6, deleting the definition of "service station." Chapter 9.05 Chapter 9.05 RCW SABOTAGE (Formerly: Anarchy and sabotage) Assemblages of saboteurs. Criminal sabotage defined—Penalty. Provisions cumulative. Freedom of speech: State Constitution Art. 1 § 5. Subversive activities: Chapter 9.81 RCW. Treason: State Constitution Art. 1 § 27; chapter 9.82 RCW. 9.05.030 9.05.030 Assemblages of saboteurs. Whenever two or more persons assemble for the purpose of committing criminal sabotage, as defined in RCW 9.05.060, such an assembly is unlawful, and every person voluntarily and knowingly participating therein by his or her presence, aid, or instigation, is guilty of a class B felony and shall be punished by imprisonment in a state correctional facility for not more than ten years, or by a fine of not more than five thousand dollars, or both. [2003 c 53 § 6; 1999 c 191 § 1; 1992 c 7 § 2; 1909 c 249 § 314; 1903 c 45 § 4; RRS § 2566.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.05.060 9.05.060 Criminal sabotage defined—Penalty. (1) Whoever, with intent that his or her act shall, or with reason to believe that it may, injure, interfere with, interrupt, supplant, nullify, impair, or obstruct the owner’s or operator’s management, operation, or control of any agricultural, stock(2006 Ed.) raising, lumbering, mining, quarrying, fishing, manufacturing, transportation, mercantile, or building enterprise, or any other public or private business or commercial enterprise, wherein any person is employed for wage, shall willfully damage or destroy, or attempt or threaten to damage or destroy, any property whatsoever, or shall unlawfully take or retain, or attempt or threaten unlawfully to take or retain, possession or control of any property, instrumentality, machine, mechanism, or appliance used in such business or enterprise, shall be guilty of criminal sabotage. (2) Criminal sabotage is a class B felony punishable according to chapter 9A.20 RCW. [2003 c 53 § 7; 1999 c 191 § 2; 1919 c 173 § 1; RRS § 2563-3.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Endangering life by breach of labor contract: RCW 49.44.080. Excessive steam in boilers: RCW 70.54.080. Malicious injury to railroad property: RCW 81.60.070. Malicious mischief—Injury to property: Chapter 9A.48 RCW. Sabotaging rolling stock: RCW 81.60.080. 9.05.090 9.05.090 Provisions cumulative. RCW 9.05.030 and 9.05.060 shall not be construed to repeal or amend any existing penal statute. [1999 c 191 § 3; 1919 c 173 § 4; RRS § 2563-6.] Chapter 9.08 Chapter 9.08 RCW ANIMALS, CRIMES RELATING TO Sections 9.08.030 9.08.065 9.08.070 9.08.072 Sections 9.05.030 9.05.060 9.05.090 Chapter 9.08 9.08.074 9.08.076 9.08.078 9.08.080 9.08.090 False certificate of registration of animals—False representation as to breed. Definitions. Pet animals—Taking, concealing, injuring, killing, etc.—Penalty. Transferring stolen pet animal to a research institution—Penalty. Transferring stolen pet animal to a person who has previously sold a stolen pet animal to a research institution—Penalty. Transferring stolen pet animal to a research institution by a U.S.D.A. licensed dealer—Penalty. Illegal sale, receipt, or transfer of pet animals—Separate offenses. Acts against animal facilities—Intent. Acts against animal facilities. Accelerant detection dogs harming: RCW 9A.76.200. immunity of handler: RCW 4.24.410. Animals and livestock: Title 16 RCW. Bees: Chapter 15.60 RCW. Brands and marks, generally: Chapter 9.16 RCW. Bulls running at large: RCW 16.24.180 through 16.24.210. Carrier or racing pigeons—Injury to: RCW 9.61.190 and 9.61.200. "Coyote getters," use permitted: RCW 9.41.185. Cruelty to animals, generally: Chapter 16.52 RCW. stock in transit: RCW 81.56.120. Destroying animals in state parks: RCW 79A.05.165. Disposal of dead animals: Chapter 16.68 RCW. Dog law: Chapters 16.08, 16.10 RCW. Dog licensing control zones: Chapter 16.10 RCW. counties: Chapter 36.49 RCW. unclassified cities: RCW 35.30.010. [Title 9 RCW—page 5] 9.08.030 Title 9 RCW: Crimes and Punishments Game code: Title 77 RCW. Guard animals, registration: RCW 43.44.120. Guide dogs: Chapter 70.84 RCW. Horses, mules, and asses running at large: Chapter 16.24 RCW. Indictment or information in crimes involving animals: RCW 10.37.070. Ladybugs, beneficial insects: Chapter 15.61 RCW. Police dogs harming: RCW 9A.76.200. immunity of handler: RCW 4.24.410. Police horses, harming: RCW 9A.76.200. Quarantine of diseased domestic animals: Chapter 16.36 RCW. collar, tag, license, tattoo, or other identifying device or mark; (c) Willfully or recklessly kills or injures any pet animal, unless excused by law. (2) Nothing in this section shall prohibit a person from also being convicted of separate offenses under RCW 9A.56.030, 9A.56.040, or 9A.56.050 for theft or under RCW 9A.56.150, 9A.56.160, or 9A.56.170 for possession of stolen property. [2003 c 53 § 9; 1989 c 359 § 2; 1982 c 114 § 1.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Application of Consumer Protection Act: RCW 19.86.145. Race horses: Chapter 67.16 RCW. Service dogs: Chapter 70.84 RCW. Stealing horses or cattle: Chapter 9A.56 RCW. Transporting in unsafe manner: RCW 16.52.080. 9.08.030 9.08.030 False certificate of registration of animals— False representation as to breed. Every person who, by color or aid of any false pretense, representation, token or writing shall obtain from any club, association, society or company for the improvement of the breed of cattle, horses, sheep, swine, fowls or other domestic animals or birds, a certificate of registration of any animal or bird in a herdbook, or other register of any such association, society or company, or a transfer of any such registration, and every person who shall knowingly represent an animal or bird for breeding purposes to be of a greater degree of any particular strain of blood than such animal actually possesses, shall be guilty of a gross misdemeanor. [1909 c 249 § 341; RRS § 2593.] 9.08.065 9.08.065 Definitions. As used in RCW 9.08.070 through 9.08.078: (1) "Pet animal" means a tamed or domesticated animal legally retained by a person and kept as a companion. "Pet animal" does not include livestock raised for commercial purposes. (2) "Research institution" means a facility licensed by the United States department of agriculture to use animals in biomedical or product research. (3) "U.S.D.A. licensed dealer" means a person who is licensed or required to be licensed by the United States department of agriculture to commercially buy, receive, sell, negotiate for sale, or transport animals. [2003 c 53 § 8; 1989 c 359 § 1.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.08.072 9.08.072 Transferring stolen pet animal to a research institution—Penalty. (1) It is unlawful for any person to receive with intent to sell to a research institution in the state of Washington, or sell or otherwise directly transfer to a research institution in the state of Washington, a pet animal that the person knows or has reason to know has been stolen or fraudulently obtained. This section does not apply to U.S.D.A. licensed dealers. (2) The first conviction under this section is a gross misdemeanor punishable according to chapter 9A.20 RCW and by a mandatory fine of not less than five hundred dollars per pet animal. (3) A second or subsequent conviction under this section is a class C felony punishable according to chapter 9A.20 RCW and by a mandatory fine of not less than one thousand dollars per pet animal. (4) Nothing in this section shall prohibit a person from also being convicted of separate offenses under RCW 9A.56.030, 9A.56.040, or 9A.56.050 for theft or under RCW 9A.56.150, 9A.56.160, or 9A.56.170 for possession of stolen property. [2003 c 53 § 10.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.08.074 9.08.074 Transferring stolen pet animal to a person who has previously sold a stolen pet animal to a research institution—Penalty. (1) It is unlawful for any person, who knows or has reason to know that a pet animal has been stolen or fraudulently obtained, to sell or otherwise transfer the pet animal to another who the person knows or has reason to know has previously sold a stolen or fraudulently obtained pet animal to a research institution in the state of Washington. (2) A conviction under this section is a class C felony punishable according to chapter 9A.20 RCW and by a mandatory fine of not less than one thousand dollars per pet animal. [2003 c 53 § 11.] 9.08.070 9.08.070 Pet animals—Taking, concealing, injuring, killing, etc.—Penalty. (1) Any person who, with intent to deprive or defraud the owner thereof, does any of the following shall be guilty of a gross misdemeanor punishable according to chapter 9A.20 RCW and by a mandatory fine of not less than five hundred dollars per pet animal, except as provided by subsection (2) of this section: (a) Takes, leads away, confines, secretes or converts any pet animal, except in cases in which the value of the pet animal exceeds two hundred fifty dollars; (b) Conceals the identity of any pet animal or its owner by obscuring, altering, or removing from the pet animal any [Title 9 RCW—page 6] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.08.076 Transferring stolen pet animal to a research institution by a U.S.D.A. licensed dealer—Penalty. (1) It is unlawful for a U.S.D.A. licensed dealer to receive with intent to sell, or sell or transfer directly or through a third party, to a research institution in the state of Washington, a pet animal that the dealer knows or has reason to know has been stolen or fraudulently obtained. (2) A conviction under this section is a class C felony punishable according to chapter 9A.20 RCW and by a man9.08.076 (2006 Ed.) Barratry datory fine of not less than one thousand dollars per pet animal. [2003 c 53 § 12.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Chapter 9.16 Severability—1991 c 325: See note following RCW 9.08.080. Civil liability for acts against animal facilities: RCW 4.24.570 through 4.24.580. Chapter 9.12 9.08.078 9.08.078 Illegal sale, receipt, or transfer of pet animals—Separate offenses. (1) The sale, receipt, or transfer of each individual pet animal in violation of RCW 9.08.070 through 9.08.078 constitutes a separate offense. (2) The provisions of RCW 9.08.070 through 9.08.078 shall not apply to the lawful acts of any employee, agent, or director of any humane society, animal control agency, or animal shelter operated by or on behalf of any government agency, operating under law. [2003 c 53 § 13.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.08.080 9.08.080 Acts against animal facilities—Intent. There has been an increasing number of illegal acts committed against animal production and research facilities involving injury or loss of life to animals or humans, criminal trespass, and damage to property. These actions not only abridge the property rights of the owners, operators, and employees of the facility, they may also damage the public interest by jeopardizing crucial animal production or agricultural, scientific, or biomedical research. These actions may also threaten the public safety by exposing communities to public health concerns and creating traffic hazards. These actions substantially disrupt or damage research and result in the potential loss of physical and intellectual property. While the criminal code, particularly the malicious mischief crimes, adequately covers those who intentionally and without authority damage or destroy farm animals, the code does not adequately cover similar misconduct directed against research and educational facilities. Therefore, it is in the interest of the people of the state of Washington to protect the welfare of humans and animals, as well as the productive use of private or public funds, to promote and protect scientific and medical research, foster education, and preserve and enhance agricultural production. It is the intent of the legislature that the courts in deciding applications for injunctive relief under RCW 4.24.580 give full consideration to the constitutional rights of persons to speak freely, to picket, and to conduct other lawful activities. [1991 c 325 § 1.] Severability—1991 c 325: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1991 c 325 § 6.] Civil liability for acts against animal facilities: RCW 4.24.570 through 4.24.580. 9.08.090 9.08.090 Acts against animal facilities. A person is guilty of a class C felony: If he or she, without authorization, knowingly takes, releases, destroys, contaminates, or damages any animal or animals kept in a research or educational facility where the animal or animals are used or to be used for medical research purposes or other research purposes or for educational purposes; or if he or she, without authorization, knowingly destroys or damages any records, equipment, research product, or other thing pertaining to such animal or animals. [1991 c 325 § 2.] (2006 Ed.) Chapter 9.12 RCW BARRATRY Sections 9.12.010 9.12.020 Barratry. Buying, demanding, or promising reward by district judge or deputy. 9.12.010 9.12.010 Barratry. Every person who brings on his or her own behalf, or instigates, incites, or encourages another to bring, any false suit at law or in equity in any court of this state, with intent thereby to distress or harass a defendant in the suit, or who serves or sends any paper or document purporting to be or resembling a judicial process, that is not in fact a judicial process, is guilty of a misdemeanor; and in case the person offending is an attorney, he or she may, in addition thereto be disbarred from practicing law within this state. [2001 c 310 § 3. Prior: 1995 c 285 § 27; 1915 c 165 § 1; 1909 c 249 § 118; Code 1881 § 901; 1873 p 204 § 100; 1854 p 92 § 91; RRS § 2370.] Purpose—Effective date—2001 c 310: See notes following RCW 2.48.180. Effective date—1995 c 285: See RCW 48.30A.900. Attorneys at law: Chapter 2.44 RCW. State bar act: Chapter 2.48 RCW. 9.12.020 9.12.020 Buying, demanding, or promising reward by district judge or deputy. Every district judge or deputy who shall, directly or indirectly, buy or be interested in buying anything in action for the purpose of commencing a suit thereon before a district judge, or who shall give or promise any valuable consideration to any person as an inducement to bring, or as a consideration for having brought, a suit before a district judge, shall be guilty of a misdemeanor. [1987 c 202 § 138; 1909 c 249 § 119; RRS § 2371.] Intent—1987 c 202: See note following RCW 2.04.190. Chapter 9.16 RCW BRANDS AND MARKS, CRIMES RELATING TO Chapter 9.16 Sections 9.16.005 9.16.010 9.16.020 9.16.030 9.16.035 9.16.041 9.16.050 9.16.060 9.16.070 9.16.080 9.16.100 9.16.110 9.16.120 9.16.130 9.16.140 9.16.150 Definitions. Removing lawful brands. Imitating lawful brand. Counterfeit mark—Intellectual property. Counterfeiting—Penalties. Counterfeit items—Seizure and forfeiture. When deemed affixed. Fraudulent registration of trademark. Form and similitude defined. Petroleum products improperly labeled or graded—Penalty. Use of the words "sterling silver," etc. Use of words "coin silver," etc. Use of the word "sterling" on mounting. Use of the words "coin silver" on mounting. Unlawfully marking article made of gold. "Marked, stamped or branded" defined. Animals and livestock: Title 16 RCW. Defacement of motor serial numbers: RCW 9A.56.180. Egg law: Chapter 69.25 RCW. [Title 9 RCW—page 7] 9.16.005 Title 9 RCW: Crimes and Punishments Fertilizers, minerals, and limes, brand alteration, etc.: Chapter 15.54 RCW. Food, drugs, and cosmetics: Chapter 69.04 RCW. Forest products, marks and brands: Chapter 76.36 RCW. Honey act, misbranding, etc.: Chapter 69.28 RCW. Poisons, misbranding: Chapters 69.36, 69.40 RCW. Trademark registration: Chapters 19.76, 19.77 RCW. Watches, removal of serial number: Chapter 19.60 RCW. 9.16.005 9.16.005 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Counterfeit mark" means: (a) Any unauthorized reproduction or copy of intellectual property; or (b) Intellectual property affixed to any item knowingly sold, offered for sale, manufactured, or distributed, or identifying services offered or rendered, without the authority of the owner of the intellectual property. (2) "Intellectual property" means any trademark, service mark, trade name, label, term, device, design, or work adopted or used by a person to identify such person’s goods or services. Intellectual property does not have exclusive use rights to trade names registered under chapter 19.80 RCW. (3) "Retail value" means the counterfeiter’s regular selling price for the item or service bearing or identified by the counterfeit mark. In the case of items bearing a counterfeit mark which are components of a finished product, the retail value shall be the counterfeiter’s regular selling price of the finished product on or in which the component would be utilized. [1999 c 322 § 1.] 9.16.010 9.16.010 Removing lawful brands. Every person who shall willfully deface, obliterate, remove, or alter any mark or brand placed by or with the authority of the owner thereof on any shingle bolt, log or stick of timber, or on any horse, mare, gelding, mule, cow, steer, bull, sheep, goat or hog, shall be punished by imprisonment in a state correctional facility for not more than five years, or by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both fine and imprisonment. [1992 c 7 § 3; 1909 c 249 § 342; Code 1881 § 839; 1873 p 191 § 54; RRS § 2594.] Forest product brands and marks, falsifying, etc.: RCW 76.36.110, 76.36.120. 9.16.020 9.16.020 Imitating lawful brand. Every person who, in any county, places upon any property, any brand or mark in the likeness or similitude of another brand or mark filed with the county auditor of such county by the owner thereof as a brand or mark for the designation or identification of a like kind of property, is: (1) If done with intent to confuse or commingle such property with, or to appropriate to his or her own use, the property of such other owner, guilty of a felony, and be punished by imprisonment in a state correctional facility for not more than five years, or by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both fine and imprisonment; or (2) If done without such intent, guilty of a misdemeanor. [1992 c 7 § 4; 1909 c 249 § 343; RRS § 2595.] [Title 9 RCW—page 8] 9.16.030 Counterfeit mark—Intellectual property. Any person who willfully and knowingly, and for financial gain, manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell or distribute any item, or offers any services, bearing or identified by a counterfeit mark, is guilty of the crime of counterfeiting. Any state or federal certificate of registration of any intellectual property is prima facie evidence of the facts stated in the certificate. [1999 c 322 § 2; 1909 c 249 § 344; Code 1881 § 854; 1873 p 194 § 63; 1854 p 85 § 87; RRS § 2596.] 9.16.030 9.16.035 Counterfeiting—Penalties. (1) Counterfeiting is a misdemeanor, except as provided in subsections (2), (3) and (4) of this section. (2) Counterfeiting is a gross misdemeanor if: (a) The defendant has previously been convicted under RCW 9.16.030; or (b) The violation involves more than one hundred but fewer than one thousand items bearing a counterfeit mark or the total retail value of all items bearing a counterfeit mark or the total retail value of all items bearing, or services identified by, a counterfeit mark is more than one thousand dollars but less than ten thousand dollars. (3) Counterfeiting is a class C felony if: (a) The defendant has been previously convicted of two or more offenses under RCW 9.16.030; (b) The violation involves the manufacture or production of items bearing counterfeit marks; or (c) The violation involves one thousand or more items bearing a counterfeit mark or the total retail value of all items bearing, or services identified by, a counterfeit mark is ten thousand dollars or more. (4) Counterfeiting is a class C felony if: (a) The violation involves the manufacture, production, or distribution of items bearing counterfeit marks; and (b) The defendant knew or should have known that the counterfeit items, by their intended use, endangered the health or safety of others. (5) For purposes of this section, the quantity or retail value of items or services shall include the aggregate quantity or retail value of all items bearing, or services identified by, every counterfeit mark the defendant manufactures, uses, displays, advertises, distributes, possesses, or possesses with intent to sell. (6) A person guilty of counterfeiting shall be fined an amount up to three times the retail value of the items bearing, or services identified by, a counterfeit mark, unless extenuating circumstances are shown by the defendant. (7) The penalties provided for in this section are cumulative and do not affect any other civil and criminal penalties provided by law. [1999 c 322 § 3.] 9.16.035 9.16.041 Counterfeit items—Seizure and forfeiture. (1) Any items bearing a counterfeit mark, and all personal property employed or used in connection with counterfeiting, including but not limited to, any items, objects, tools, machines, equipment, instruments, or vehicles of any kind, shall be seized by any law enforcement officer. All seized personal property referenced in this subsection shall be forfeited in accordance with RCW 10.105.010. 9.16.041 (2006 Ed.) Brands and Marks, Crimes Relating to (2) Upon request of the intellectual property owner, all seized items bearing a counterfeit mark shall be released to the intellectual property owner for destruction or disposition. (3) If the intellectual property owner does not request release of seized items bearing a counterfeit mark, such items shall be destroyed unless the intellectual property owner consents to another disposition. [1999 c 322 § 4.] 9.16.140 or distributing company or association, of the gasoline or oil so offered for sale or sold. (2)(a) Except as provided in (b) of this subsection, any person, firm, or corporation violating this section is guilty of a misdemeanor. (b) A second and each subsequent violation of this section is a gross misdemeanor. [2003 c 53 § 14; 1927 c 222 § 1; RRS § 2637-1.] 9.16.050 9.16.050 When deemed affixed. A label, trademark, term, design, device or form of advertisement shall be deemed to be affixed to any goods, wares, merchandise, mixture, preparation or compound whenever it is in any manner placed in or upon either the article itself, or the box, bale, barrel, bottle, case, cask or other vessel or package, or the cover, wrapper, stopper, brand, label or other thing in, by or with which the goods are packed, enclosed or otherwise prepared for sale or distribution. [1909 c 249 § 346; RRS § 2598.] 9.16.060 9.16.060 Fraudulent registration of trademark. Every person who shall for himself, or on behalf of any other person, corporation, association or union, procure the filing of any label, trademark, term, design, device or form of advertisement, with the secretary of state by any fraudulent means, shall be guilty of a misdemeanor. [1909 c 249 § 347; RRS § 2599.] Trademark registration: Chapter 19.77 RCW. 9.16.070 9.16.070 Form and similitude defined. A plate, label, trademark, term, design, device or form of advertisement is in the form and similitude of the genuine instrument imitated if the finished parts of the engraving thereupon shall resemble or conform to the similar parts of the genuine instrument. [1909 c 249 § 348; RRS § 2600.] 9.16.080 9.16.080 Petroleum products improperly labeled or graded—Penalty. (1) It shall be unlawful for any person, firm, or corporation: (a) To use, adopt, place upon, or permit to be used, adopted or placed upon, any barrel, tank, drum or other container of gasoline or lubricating oil for internal combustion engines, sold or offered for sale, or upon any pump or other device used in delivering the same, any trade name, trademark, designation or other descriptive matter, which is not the true and correct trade name, trademark, designation or other descriptive matter of the gasoline or lubricating oil so sold or offered for sale; (b) To sell, or offer for sale, or have in his or her or its possession with intent to sell, any gasoline or lubricating oil, contained in, or taken from, or through any barrel, tank, drum, or other container or pump or other device, so unlawfully labeled or marked, as hereinabove provided; (c) To sell, or offer for sale, or have in his or her or its possession with intent to sell any gasoline or lubricating oil for internal combustion engines and to represent to the purchaser, or prospective purchaser, that such gasoline or lubricating oil so sold or offered for sale, is of a quality, grade or standard, or the product of a particular gasoline or lubricating oil manufacturing, refining or distributing company or association, other than the true quality, grade, standard, or the product of a particular gasoline or oil manufacturing, refining (2006 Ed.) Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.16.100 9.16.100 Use of the words "sterling silver," etc. Every person who shall make, sell or offer to sell or dispose of, or have in his possession with intent to sell or dispose of any metal article marked, stamped or branded with the words "sterling," "sterling silver," or "solid silver," unless nine hundred twenty-five one-thousandths of the component parts of the metal of which such article and all parts thereof is manufactured is pure silver, shall be guilty of a gross misdemeanor. [1909 c 249 § 428; RRS § 2680.] 9.16.110 9.16.110 Use of words "coin silver," etc. Every person who shall make, sell or offer to sell or dispose of, or have in his possession with intent to dispose of any metal article marked, stamped or branded with the words "coin," or "coin silver," unless nine hundred one-thousandths of the component parts of the metal of which such article and all parts thereof is manufactured, is pure silver, shall be guilty of a gross misdemeanor. [1909 c 249 § 429; RRS § 2681.] 9.16.120 9.16.120 Use of the word "sterling" on mounting. Every person who shall make, sell, offer to sell or dispose of, or have in his possession with intent to sell or dispose of, any article comprised of leather, shell, ivory, celluloid, pearl, glass, porcelain, pottery, steel or wood, to which is applied or attached a metal mounting marked, stamped or branded with the words "sterling," or "sterling silver," unless nine hundred twenty-five one-thousandths of the component parts of the metal of which such metal mounting is manufactured is pure silver, shall be guilty of a gross misdemeanor. [1909 c 249 § 430; RRS § 2682.] 9.16.130 9.16.130 Use of the words "coin silver" on mounting. Every person who shall make, sell, offer to sell or dispose of, or have in his possession with intent to sell or dispose of, any article comprised of leather, shell, ivory, celluloid, pearl, glass, porcelain, pottery, steel or wood, to which is applied or attached a metal mounting marked, stamped or branded with the words "coin" or "coin silver," unless nine hundred onethousandths of the component parts of the metal of which such metal mounting is manufactured is pure silver, shall be guilty of a gross misdemeanor. [1909 c 249 § 431; RRS § 2683.] 9.16.140 9.16.140 Unlawfully marking article made of gold. Every person who shall make, sell, offer to sell or dispose of, or have in his possession with intent to sell or dispose of, any article constructed wholly or in part of gold, or of an alloy of gold, and marked, stamped or branded in such manner as to indicate that the gold or alloy of gold in such article is of a [Title 9 RCW—page 9] 9.16.150 Title 9 RCW: Crimes and Punishments greater degree or carat of fineness, by more than one carat, than the actual carat or fineness of such gold or alloy of gold, shall be guilty of a gross misdemeanor. [1909 c 249 § 432; RRS § 2684.] bid upon such public work or improvement in such sum as to eliminate full and unrestricted competition thereon. (2) A person violating this section is guilty of a gross misdemeanor. [2003 c 53 § 15; 1921 c 12 § 1; RRS § 23331.] 9.16.150 9.16.150 "Marked, stamped or branded" defined. An article shall be deemed to be "marked, stamped or branded" whenever such article, or any box, package, cover or wrapper in which the same is enclosed, encased or prepared for sale or delivery, or any card, label or placard with which the same may be exhibited or displayed, is so marked, stamped or branded. [1909 c 249 § 433; RRS § 2685.] Chapter 9.18 Chapter 9.18 RCW BIDDING OFFENSES (Formerly: Bribery and grafting) Sections 9.18.080 9.18.120 9.18.130 9.18.150 Offender a competent witness. Suppression of competitive bidding. Collusion to prevent competitive bidding—Penalty. Agreements outside state. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.18.130 9.18.130 Collusion to prevent competitive bidding— Penalty. (1) It shall be unlawful for any person for himself or herself or as an agent or officer of any other person, persons, or corporation to in any manner enter into collusion or an understanding with any other person, persons, or corporation to prevent or eliminate full and unrestricted competition upon any public work or improvement mentioned in RCW 9.18.120. (2) A person violating this section is guilty of a gross misdemeanor. [2003 c 53 § 16; 1921 c 12 § 2; RRS § 23332.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.18.150 9.18.080 9.18.080 Offender a competent witness. Every person offending against any of the provisions of law relating to bribery or corruption shall be a competent witness against another so offending and shall not be excused from giving testimony tending to criminate himself. [1909 c 249 § 78; RRS § 2330. Cf. 1907 c 60 §§ 1, 2; RRS §§ 2149, 2150.] Bribery and corruption: Chapter 9A.68 RCW. Incriminating testimony not to be used: RCW 10.52.090. 9.18.150 Agreements outside state. It shall be no defense to a prosecution under RCW 9.18.120 through 9.18.150 that a payment or promise of payment of any money, check, draft, or anything of value, or any other understanding or arrangement to eliminate unrestricted competitive bids was had or made outside of the state of Washington, if such work or improvement for which bids are called is to be done or performed within the state. [1921 c 12 § 4; RRS § 2333-4.] Rights of accused persons: State Constitution Art. 1 § 9. Chapter 9.24 RCW CORPORATIONS, CRIMES RELATING TO Chapter 9.24 9.18.120 9.18.120 Suppression of competitive bidding. (1) When any competitive bid or bids are to be or have been solicited, requested, or advertised for by the state of Washington, or any county, city, town or other municipal corporation therein, or any department of either thereof, for any work or improvement to be done or constructed for or by such state, county, city, town, or other municipal corporation, or any department of either thereof, it shall be unlawful for any person acting for himself or herself or as agent of another, or as agent for or as a member of any partnership, unincorporated firm or association, or as an officer or agent of any corporation, to offer, give, or promise to give, any money, check, draft, property, or other thing of value, to another or to any firm, association, or corporation for the purpose of inducing such other person, firm, association, or corporation, either to refrain from submitting any bids upon such public work or improvement, or to enter into any agreement, understanding or arrangement whereby full and unrestricted competition for the securing of such public work will be suppressed, prevented, or eliminated; and it shall be unlawful for any person to solicit, accept, or receive any money, check, draft, property, or other thing of value upon a promise or understanding, express or implied, that he or she individually or as an agent or officer of another person, persons, or corporation, will refrain from bidding upon such public work or improvement, or that he or she will on behalf of himself or herself or such others submit or permit another to submit for him or her any [Title 9 RCW—page 10] Sections 9.24.010 9.24.020 9.24.030 9.24.040 9.24.050 9.24.060 9.24.070 9.24.080 9.24.090 9.24.100 9.24.110 9.24.120 9.24.125 Fraud in stock subscription. Fraudulent issue of stock, scrip, etc. Insolvent bank receiving deposit. Corporation doing business without license. False report of corporation. Warehouseman or carrier refusing to issue receipt. Fictitious bill of lading or receipt. Warehouseman or carrier fraudulently mixing goods. Duplicate receipt. Bill of lading or receipt must be canceled on redelivery of property. Regulating sale of passage tickets. Redemption of unused passage ticket. Filing false statements—Penalty. Banks and trust companies, penalties: RCW 30.04.020, 30.04.050, 30.04.060, 30.04.230, 30.04.240, 30.04.260, 30.04.310, 30.12.090 through 30.12.120, 30.12.190, 30.16.010, 30.44.110, 30.44.120. Business corporations: Title 23B RCW. Child labor: RCW 26.28.060, 26.28.070, chapter 49.12 RCW. Conspiracy, forfeiture of right to do business: RCW 9A.08.030, 9A.28.040. Corporations, criminal process against: Chapter 10.01 RCW. Credit unions, penalties: Chapter 31.12 RCW. Discrimination in employment: Chapter 49.60 RCW. Fraud: Chapter 9A.60 RCW. Hours of labor: Chapter 49.28 RCW. Industrial welfare: Chapter 49.12 RCW. (2006 Ed.) Corporations, Crimes Relating to 9.24.090 Insurance companies, penalties: RCW 48.01.080, 48.06.190, 48.07.060, 48.08.040, 48.08.050, 48.09.340, 48.17.480, 48.18.180, 48.30.110, 48.30.190, 48.30.210 through 48.30.230, 48.44.060. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Labor conditions of: Chapter 49.12 RCW. prohibited practices: Chapter 49.44 RCW. 9.24.030 Insolvent bank receiving deposit. Every owner, officer, stockholder, agent or employee of any person, firm, corporation or association engaged, wholly or in part, in the business of banking or receiving money or negotiable paper or securities on deposit or in trust, who shall accept or receive, with or without interest, any deposit, or who shall consent thereto or connive thereat, when he or she knows or has good reason to believe that such person, firm, corporation or association is unsafe or insolvent, is guilty of a class B felony and shall be punished by imprisonment in a state correctional facility for not more than ten years, or by a fine of not more than ten thousand dollars. [2003 c 53 § 18; 1992 c 7 § 6; 1909 c 249 § 388; 1893 c 111 § 1; RRS § 2640. Formerly RCW 9.45.140.] Legal services, advertising of—Penalty: RCW 30.04.260. Minors, wages, working conditions, permits: RCW 49.12.121, 49.12.123. Mutual savings banks, penalties: RCW 32.04.100 through 32.04.130, 32.24.080. Public service companies: Title 80 RCW. Railroad rolling stock, penalties: RCW 81.60.080. Savings and loan associations, prohibited acts: Chapter 33.36 RCW. Trading stamps, penalties: RCW 19.84.040. Transportation companies: Title 81 RCW. Unemployment compensation, penalties: Chapter 50.36 RCW. Uniform Fraudulent Conveyance Act: Chapter 19.40 RCW. Wages—Payment—Collection: Chapter 49.48 RCW. Workers’ compensation, penalties: RCW 51.16.140, chapter 51.48 RCW. 9.24.010 Fraud in stock subscription. Every person who shall sign the name of a fictitious person to any subscription for or any agreement to take stock in any corporation existing or proposed, and every person who shall sign to any such subscription or agreement the name of any person, knowing that such person does not intend in good faith to comply with the terms thereof, or upon any understanding or agreement that the terms of such subscription or agreement are not to be complied with or enforced, shall be guilty of a gross misdemeanor. [1909 c 249 § 386; RRS § 2638. Formerly RCW 9.44.090.] 9.24.010 9.24.020 Fraudulent issue of stock, scrip, etc. Every officer, agent or other person in the service of a joint stock company or corporation, domestic or foreign, who, willfully and knowingly with intent to defraud: (1) Sells, pledges, or issues, or causes to be sold, pledged, or issued, or signs or executes, or causes to be signed or executed, with intent to sell, pledge, or issue, or cause to be sold, pledged, or issued, any certificate or instrument purporting to be a certificate or evidence of ownership of any share or shares of such company or corporation, or any conveyance or encumbrance of real or personal property, contract, bond, or evidence of debt, or writing purporting to be a conveyance or encumbrance of real or personal property, contract, bond or evidence of debt of such company or corporation, without being first duly authorized by such company or corporation, or contrary to the charter or laws under which such company or corporation exists, or in excess of the power of such company or corporation, or of the limit imposed by law or otherwise upon its power to create or issue stock or evidence of debt; or, (2) Reissues, sells, pledges, disposes of, or causes to be reissued, sold, pledged, or disposed of, any surrendered or canceled certificate or other evidence of the transfer of ownership of any such share or shares is guilty of a class B felony and shall be punished by imprisonment in a state correctional facility for not more than ten years, or by a fine of not more than five thousand dollars, or by both. [2003 c 53 § 17; 1992 c 7 § 5; 1909 c 249 § 387; RRS § 2639. Formerly RCW 9.37.070.] 9.24.020 (2006 Ed.) 9.24.030 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Application to mutual savings banks: RCW 32.04.120. Receiving deposits by bank after insolvency: State Constitution Art. 12 § 12, RCW 30.44.120. 9.24.040 Corporation doing business without license. Every corporation, whether domestic or foreign, and every person representing or pretending to represent such corporation as an officer, agent or employee thereof, who shall transact, solicit or advertise for any business in this state, before such corporation shall have obtained from the officer lawfully authorized to issue the same, a certificate that such corporation is authorized to transact business in this state, shall be guilty of a gross misdemeanor. [1909 c 249 § 389; RRS § 2641. Formerly RCW 9.45.130.] 9.24.040 Application to mutual savings banks: RCW 32.04.120. 9.24.050 False report of corporation. Every director, officer or agent of any corporation or joint stock association, and every person engaged in organizing or promoting any enterprise, who shall knowingly make or publish or concur in making or publishing any written prospectus, report, exhibit or statement of its affairs or pecuniary condition, containing any material statement that is false or exaggerated, is guilty of a class B felony and shall be punished by imprisonment in a state correctional facility for not more than ten years, or by a fine of not more than five thousand dollars. [2003 c 53 § 19; 1992 c 7 § 7; 1909 c 249 § 390; RRS § 2642. Formerly RCW 9.38.040.] 9.24.050 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Application to mutual savings banks: RCW 32.04.120. 9.24.060 Warehouseman or carrier refusing to issue receipt. See RCW 22.32.010. 9.24.060 9.24.070 Fictitious bill of lading or receipt. RCW 22.32.020. 9.24.070 See 9.24.080 Warehouseman or carrier fraudulently mixing goods. See RCW 22.32.030. 9.24.080 9.24.090 Duplicate receipt. See RCW 22.32.040. 9.24.090 [Title 9 RCW—page 11] 9.24.100 Title 9 RCW: Crimes and Punishments 9.24.100 Bill of lading or receipt must be canceled on redelivery of property. See RCW 22.32.050. 9.24.100 9.24.110 Regulating sale of passage tickets. RCW 81.56.150. See 9.24.120 Redemption of unused passage ticket. RCW 81.56.160. See 9.24.110 9.24.120 9.24.125 Filing false statements—Penalty. See RCW 43.07.210. 9.24.125 Chapter 9.26A Chapter 9.26A RCW TELECOMMUNICATIONS CRIME (Formerly: Credit cards, crimes relating to) Sections 9.26A.090 9.26A.100 9.26A.110 9.26A.115 9.26A.120 9.26A.130 9.26A.140 9.26A.900 Telephone company credit cards—Prohibited acts. Definitions. Fraud in obtaining telecommunications service—Penalty. Fraud in obtaining telecommunications service—Use of telecommunications device—Penalty. Fraud in operating coin-box telephone or other receptacle. Penalty for manufacture or sale of slugs to be used for coin. Unauthorized sale or procurement of telephone records— Penalties—Definitions. Severability—1990 c 11. Civil cause of action: RCW 9A.56.268. Telecommunications crimes: RCW 9A.56.262 through 9A.56.266. 9.26A.090 Telephone company credit cards—Prohibited acts. Every person who sells, rents, lends, gives, advertises for sale or rental, or publishes the credit card number of an existing, canceled, revoked, expired, or nonexistent telephone company credit card, or the numbering or coding that is employed in the issuance of telephone company credit cards or access devices, with the intent that it be used or with knowledge or reason to believe that it will be used to avoid the payment of any lawful charge, shall be guilty of a gross misdemeanor. [1990 c 11 § 3; 1974 ex.s. c 160 § 1.] 9.26A.090 9.26A.100 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Access device" shall have the same meaning as that contained in RCW 9A.56.010. (2) "Computer" means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but does not mean an automated typewriter or typesetter, portable hand held calculator, or other similar device. (3) "Computer trespass" shall have the same meaning as that contained in chapter 9A.52 RCW. (4) "Credit card number" means the card number or coding appearing on a credit card or other form of authorization, including an identification card or plate issued to a person by any telecommunications provider that permits the person to whom it has been issued to obtain telecommunications service on credit. The term includes the number or description of the card or plate, even if the card or plate itself is not produced at the time the telecommunications service is obtained. 9.26A.100 [Title 9 RCW—page 12] (5) "Publish" means the communication or dissemination of information to any one or more persons: (a) Orally, in person, or by telephone, radio, or television; (b) in a writing of any kind, including without limitation a letter or memorandum, circular or handbill, newspaper or magazine article, or book; or (c) electronically, including by the use of recordings, computer networks, bulletin boards, or other means of electronic storage and retrieval. (6) "Telecommunications" shall have the same meaning as that contained in RCW 80.04.010 and includes telecommunications service that originates, terminates, or both originates and terminates in this state. (7) "Telecommunications company" shall have the same meaning as that contained in RCW 80.04.010. (8) "Telecommunications device" means any operating procedure or code, instrument, apparatus, or equipment designed or adapted for a particular use, and which is intended or can be used in violation of this chapter, and includes, but is not limited to, computer hardware, software, and programs; electronic mail system; voice mail system; private branch exchange; or any other means of facilitating telecommunications service. (9) "Telephone company" means any local exchange company, as defined in RCW 80.04.010. [1990 c 11 § 1.] 9.26A.110 9.26A.110 Fraud in obtaining telecommunications service—Penalty. (1) Every person who, with intent to evade the provisions of any order or rule of the Washington utilities and transportation commission or of any tariff, price list, contract, or any other filing lawfully submitted to the commission by any telephone, telegraph, or telecommunications company, or with intent to defraud, obtains telephone, telegraph, or telecommunications service from any telephone, telegraph, or telecommunications company through: (a) The use of a false or fictitious name or telephone number; (b) the unauthorized use of the name or telephone number of another; (c) the physical or electronic installation of, rearrangement of, or tampering with any equipment, or use of a telecommunications device; (d) the commission of computer trespass; or (e) any other trick, deceit, or fraudulent device, is guilty of a misdemeanor. (2) If the value of the telephone, telegraph, or telecommunications service that any person obtains in violation of this section during a period of ninety days exceeds fifty dollars in the aggregate, then such person is guilty of a gross misdemeanor. (3) If the value of the telephone, telegraph, or telecommunications service that any person obtains in violation of this section during a period of ninety days exceeds two hundred fifty dollars in the aggregate, then such person is guilty of a class C felony punishable according to chapter 9A.20 RCW. (4) For any act that constitutes a violation of both this section and RCW 9.26A.115 the provisions of RCW 9.26A.115 shall be exclusive. [2003 c 53 § 20; 1990 c 11 § 2; 1981 c 252 § 1; 1977 ex.s. c 42 § 1; 1974 ex.s. c 160 § 2; 1972 ex.s. c 75 § 1; 1955 c 114 § 1. Formerly RCW 9.45.240.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Injunctive relief for violations: RCW 7.40.230. (2006 Ed.) Telecommunications Crime 9.26A.115 9.26A.115 Fraud in obtaining telecommunications service—Use of telecommunications device—Penalty. Every person is guilty of a class B felony punishable according to chapter 9A.20 RCW who: (1) Makes, possesses, sells, gives, or otherwise transfers to another a telecommunications device with intent to use it or with knowledge or reason to believe it is intended to be used to avoid any lawful telephone or telegraph toll charge or to conceal the existence or place of origin or destination of any telephone or telegraph message; or (2) Sells, gives, or otherwise transfers to another plans or instructions for making or assembling a telecommunications device described in subsection (1) of this section with knowledge or reason to believe that the plans may be used to make or assemble such device. [2003 c 53 § 21.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.26A.120 9.26A.120 Fraud in operating coin-box telephone or other receptacle. Any person who shall knowingly and wilfully operate, or cause to be operated, or who shall attempt to operate, or attempt to cause to be operated, [any] coin-box telephone or other receptacle designed to receive lawful coin of the United States of America in connection with the sale, use or enjoyment of property or service, by means of a slug or any false, counterfeited, mutilated, sweated or foreign coin, or by any means, method, trick or device whatsoever not lawfully authorized by the owner, lessee, or licensee of such machine, coin-box telephone or other receptacle designed to receive lawful coin of the United States of America in connection with the sale, use or enjoyment of property or service, any goods, wares, merchandise, gas, electric current, article of value, or the use or enjoyment of any telephone or telegraph facilities or service without depositing in and surrendering to such machine, coin-box telephone or receptacle lawful coin of the United States of America to the amount required therefor by the owner, lessee or licensee of such machine, coin-box telephone or receptacle, shall be guilty of a misdemeanor. [1929 c 184 § 1; RRS § 5842-1. Formerly RCW 9.45.180.] 9.26A.130 9.26A.130 Penalty for manufacture or sale of slugs to be used for coin. Any person who, with intent to cheat or defraud the owner, lessee, licensee or other person entitled to the contents of any coin-box telephone or other receptacle, depository or contrivance, designed to receive lawful coin of the United States of America in connection with the sale, use or enjoyment of property or service, or who, knowing or having cause to believe, that the same is intended for unlawful use, shall manufacture for sale, or sell or give away any slug, device, or substance whatsoever intended or calculated to be placed or deposited in any coin-box telephone or other such receptacle, depository or contrivance, shall be guilty of a misdemeanor. [1929 c 184 § 2; RRS § 5842-2. Formerly RCW 9.45.190.] 9.26A.140 9.26A.140 Unauthorized sale or procurement of telephone records—Penalties—Definitions. (1) A person is guilty of the unauthorized sale or procurement of telephone records if the person: (2006 Ed.) 9.26A.900 (a) Intentionally sells the telephone record of any resident of this state without the authorization of the customer to whom the record pertains; (b) By fraudulent, deceptive, or false means obtains the telephone record of any resident of this state to whom the record pertains; (c) Knowingly purchases the telephone record of any resident of this state without the authorization of the customer to whom the record pertains; or (d) Knowingly receives the telephone record of any resident of this state without the authorization of the customer to whom the record pertains. (2) This section does not apply to: (a) Any action by a government agency, or any officer, employee, or agent of such agency, to obtain telephone records in connection with the performance of the official duties of the agency; (b) A telecommunications company that obtains, uses, discloses, or permits access to any telephone record, either directly or indirectly through its agents, that is: (i) With the lawful consent of the customer or subscriber; (ii) Authorized by law; (iii) Necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service, or to protect users of those services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services; or (iv) In connection with the sale or transfer of all or part of its business, or the purchase or acquisition of a portion or all of a business, or the migration of a customer from one carrier to another. (3) A violation of subsection (1)(a), (b), or (c) of this section is a class C felony. A violation of subsection (1)(d) of this section is a gross misdemeanor. (4) A person who violates this section is subject to legal action for injunctive relief and either actual damages, including mental pain and suffering, or liquidated damages of five thousand dollars per violation, whichever is greater. Reasonable attorneys’ fees and other costs of litigation are also recoverable. (5) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise. (a) "Telecommunications company" has the meaning provided in RCW 9.26A.100 and includes "radio communications service companies" as defined in RCW 80.04.010. (b) "Telephone record" means information retained by a telecommunications company that relates to the telephone number dialed by the customer or the incoming number or call directed to a customer, or other data related to such calls typically contained on a customer telephone bill such as the time the call started and ended, the duration of the call, the time of day the call was made, and any charges applied. "Telephone record" does not include any information collected and retained by customers using caller identification or other similar technologies. (c) "Procure" means to obtain by any means, whether electronically, in writing, or in oral form, with or without consideration. [2006 c 193 § 1.] 9.26A.900 Severability—1990 c 11. If any provision of this act or its application to any person or circumstance is 9.26A.900 [Title 9 RCW—page 13] Chapter 9.27 Title 9 RCW: Crimes and Punishments held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1990 c 11 § 6.] Chapter 9.27 Chapter 9.27 RCW INTERFERENCE WITH COURT Sections 9.27.015 Interference, obstruction of any court, building, or residence— Violations. 9.35.001 9.35.001 Finding—Intent. The legislature finds that financial information is personal and sensitive information that if unlawfully obtained by others may do significant harm to a person’s privacy, financial security, and other interests. The legislature finds that unscrupulous persons find ever more clever ways, including identity theft, to improperly obtain and use financial information. The legislature intends to penalize unscrupulous people for improperly obtaining financial information. [1999 c 368 § 1.] 9.35.005 Disturbing school or school meeting: RCW 28A.635.030. 9.27.015 9.27.015 Interference, obstruction of any court, building, or residence—Violations. Whoever, interfering with, obstructing, or impeding the administration of justice, pickets or parades in or near a building housing a court of the state of Washington or any political subdivision thereof, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be guilty of a gross misdemeanor. Nothing in this section shall interfere with or prevent the exercise by any court of the state of Washington or any political subdivision thereof of its power to punish for contempt. [1971 ex.s. c 302 § 16.] Severability—1971 ex.s. c 302: See note following RCW 9.41.010. Chapter 9.31 Chapter 9.31 RCW ESCAPED PRISONER RECAPTURED (Formerly: Escape) Sections 9.31.090 Escaped prisoner recaptured. Escape: RCW 9A.76.110 through 9A.76.130. Limitation of action against officer for permitting escape: RCW 4.16.110. Parole-revoked offender as escapee: RCW 9.95.130. Prisoners—Correctional institutions: Chapter 9.94 RCW. 9.31.090 9.31.090 Escaped prisoner recaptured. Every person in custody, under sentence of imprisonment for any crime, who shall escape from custody, may be recaptured and imprisoned for a term equal to the unexpired portion of the original term. [1909 c 249 § 89; RRS § 2341.] Indeterminate sentences: Chapter 9.95 RCW. Chapter 9.35 Chapter 9.35 RCW IDENTITY CRIMES Sections 9.35.001 9.35.005 9.35.010 9.35.020 9.35.030 9.35.040 9.35.800 9.35.900 9.35.901 9.35.902 9.35.005 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Financial information" means any of the following information identifiable to the individual that concerns the amount and conditions of an individual’s assets, liabilities, or credit: (a) Account numbers and balances; (b) Transactional information concerning an account; and (c) Codes, passwords, social security numbers, tax identification numbers, driver’s license or permit numbers, state identicard numbers issued by the department of licensing, and other information held for the purpose of account access or transaction initiation. (2) "Financial information repository" means a person engaged in the business of providing services to customers who have a credit, deposit, trust, stock, or other financial account or relationship with the person. (3) "Means of identification" means information or an item that is not describing finances or credit but is personal to or identifiable with an individual or other person, including: A current or former name of the person, telephone number, an electronic address, or identifier of the individual or a member of his or her family, including the ancestor of the person; information relating to a change in name, address, telephone number, or electronic address or identifier of the individual or his or her family; a social security, driver’s license, or tax identification number of the individual or a member of his or her family; and other information that could be used to identify the person, including unique biometric data. (4) "Person" means a person as defined in RCW 9A.04.110. (5) "Victim" means a person whose means of identification or financial information has been used or transferred with the intent to commit, or to aid or abet, any unlawful activity. [2001 c 217 § 1.] Captions not law—2001 c 217: "Captions used in this act are not any part of the law." [2001 c 217 § 14.] 9.35.010 Finding—Intent. Definitions. Improperly obtaining financial information. Identity theft. Soliciting undesired mail. Information available to victim. Application of Consumer Protection Act. Effective date—1999 c 368. Captions not law—1999 c 368. Severability—1999 c 368. Block of information appearing as result of identity theft: RCW 19.182.160. [Title 9 RCW—page 14] 9.35.010 Improperly obtaining financial information. (1) No person may obtain or attempt to obtain, or cause to be disclosed or attempt to cause to be disclosed to any person, financial information from a financial information repository, financial services provider, merchant, corporation, trust, partnership, or unincorporated association: (a) By knowingly making a false, fictitious, or fraudulent statement or representation to an officer, employee, or agent of a financial information repository with the intent to deceive the officer, employee, or agent into relying on that (2006 Ed.) Identity Crimes statement or representation for purposes of releasing the financial information; (b) By knowingly making a false, fictitious, or fraudulent statement or representation to a customer of a financial information repository, financial services provider, merchant, corporation, trust, partnership, or unincorporated association with the intent to deceive the customer into releasing financial information or authorizing the release of such information; (c) By knowingly providing any document to an officer, employee, or agent of a financial information repository, financial services provider, merchant, corporation, trust, partnership, or unincorporated association, knowing that the document is forged, counterfeit, lost, or stolen; was fraudulently obtained; or contains a false, fictitious, or fraudulent statement or representation, if the document is provided with the intent to deceive the officer, employee, or agent to release the financial information. (2) No person may request another person to obtain financial information from a financial information repository, financial services provider, merchant, corporation, trust, partnership, or unincorporated association and knows or should have known that the person will obtain or attempt to obtain the information from the financial institution repository, financial services provider, merchant, corporation, trust, partnership, or unincorporated association in any manner described in subsection (1) of this section. (3) No provision of this section shall be construed so as to prevent any action by a law enforcement agency, or any officer, employee, or agent of such agency, or any action of an agent of the financial information repository, financial services provider, merchant, corporation, trust, partnership, or unincorporated association when working in conjunction with a law enforcement agency. (4) This section does not apply to: (a) Efforts by the financial information repository to test security procedures or systems of the financial institution repository for maintaining the confidentiality of customer information; (b) Investigation of alleged employee misconduct or negligence; or (c) Efforts to recover financial or personal information of the financial institution obtained or received by another person in any manner described in subsection (1) or (2) of this section. (5) Violation of this section is a class C felony. (6) A person who violates this section is liable for five hundred dollars or actual damages, whichever is greater, and reasonable attorneys’ fees. [2001 c 217 § 8; 1999 c 368 § 2.] Captions not law—2001 c 217: See note following RCW 9.35.005. 9.35.020 9.35.020 Identity theft. (1) No person may knowingly obtain, possess, use, or transfer a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime. (2) Violation of this section when the accused or an accomplice uses the victim’s means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value in excess of one thousand five hundred dollars in value shall constitute (2006 Ed.) 9.35.040 identity theft in the first degree. Identity theft in the first degree is a class B felony punishable according to chapter 9A.20 RCW. (3) Violation of this section when the accused or an accomplice uses the victim’s means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree. Identity theft in the second degree is a class C felony punishable according to chapter 9A.20 RCW. (4) A person who violates this section is liable for civil damages of one thousand dollars or actual damages, whichever is greater, including costs to repair the victim’s credit record, and reasonable attorneys’ fees as determined by the court. (5) In a proceeding under this section, the crime will be considered to have been committed in any locality where the person whose means of identification or financial information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in that locality. (6) The provisions of this section do not apply to any person who obtains another person’s driver’s license or other form of identification for the sole purpose of misrepresenting his or her age. (7) In a proceeding under this section in which a person’s means of identification or financial information was used without that person’s authorization, and when there has been a conviction, the sentencing court may issue such orders as are necessary to correct a public record that contains false information resulting from a violation of this section. [2004 c 273 § 2; 2003 c 53 § 22; 2001 c 217 § 9; 1999 c 368 § 3.] Finding—Purpose—2004 c 273: "The legislature finds that identity theft and the other types of fraud is a significant problem in the state of Washington, costing our citizens and businesses millions each year. The most common method of accomplishing identity theft and other fraudulent activity is by securing a fraudulently issued driver’s license. It is the purpose of this act to significantly reduce identity theft and other fraud by preventing the fraudulent issuance of driver’s licenses and identicards." [2004 c 273 § 1.] Effective date—2004 c 273: "This act takes effect July 1, 2004." [2004 c 273 § 5.] Captions not law—2001 c 217: See note following RCW 9.35.005. 9.35.030 9.35.030 Soliciting undesired mail. (1) It is unlawful for any person to knowingly use a means of identification or financial information of another person to solicit undesired mail with the intent to annoy, harass, intimidate, torment, or embarrass that person. (2) Violation of this section is a misdemeanor. (3) Additionally, a person who violates this section is liable for civil damages of five hundred dollars or actual damages, including costs to repair the person’s credit record, whichever is greater, and reasonable attorneys’ fees as determined by the court. [2001 c 217 § 10; 2000 c 77 § 1.] Captions not law—2001 c 217: See note following RCW 9.35.005. 9.35.040 9.35.040 Information available to victim. (1) A person, financial information repository, financial service provider, merchant, corporation, trust, partnership, or unincorpo[Title 9 RCW—page 15] 9.35.800 Title 9 RCW: Crimes and Punishments rated association possessing information relating to an actual or potential violation of this chapter, and who may have entered into a transaction, provided credit, products, goods, or services, accepted payment, or otherwise done business with a person who has used the victim’s means of identification, must, upon written request of the victim, provide copies of all relevant application and transaction information related to the transaction being alleged as a potential or actual violation of this chapter. Nothing in this section requires the information provider to disclose information that it is otherwise prohibited from disclosing by law, except that a law that prohibits disclosing a person’s information to third parties shall not be used to deny disclosure of such information to the victim under this section. (2) Unless the information provider is otherwise willing to verify the victim’s identification, the victim shall provide the following as proof of positive identification: (a) The showing of a government-issued photo identification card or, if providing proof by mail, a copy of a government-issued photo identification card; (b) A copy of a filed police report evidencing the victim’s claim; and (c) A written statement from the state patrol showing that the state patrol has on file documentation of the victim’s identity pursuant to the personal identification procedures in RCW 43.43.760. (3) The provider may require compensation for the reasonable cost of providing the information requested. (4) No person, financial information repository, financial service provider, merchant, corporation, trust, partnership, or unincorporated association may be held liable for an action taken in good faith to provide information regarding potential or actual violations of this chapter to other financial information repositories, financial service providers, merchants, law enforcement authorities, victims, or any persons alleging to be a victim who comply with subsection (2) of this section which evidences the alleged victim’s claim for the purpose of identification and prosecution of violators of this chapter, or to assist a victim in recovery of fines, restitution, rehabilitation of the victim’s credit, or such other relief as may be appropriate. (5) A person, financial information repository, financial service provider, merchant, corporation, trust, partnership, or unincorporated association may decline to provide information pursuant to this section when, in the exercise of good faith and reasonable judgment, it believes this section does not require disclosure of the information. (6) Nothing in this section creates an obligation on the part of a person, financial information repository, financial services provider, merchant, corporation, trust, partnership, or unincorporated association to retain or maintain information or records that they are not otherwise required to retain or maintain in the ordinary course of its business. (7) The legislature finds that the practices covered by this section are matters vitally affecting the public interest for the purpose of applying the Consumer Protection Act, chapter 19.86 RCW. Violations of this section are not reasonable in relation to the development and preservation of business. It is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the Consumer Protection Act, chapter 19.86 RCW. The burden [Title 9 RCW—page 16] of proof in an action alleging a violation of this section shall be by a preponderance of the evidence, and the applicable statute of limitation shall be as set forth in RCW 19.182.120. For purposes of a judgment awarded pursuant to an action by a consumer under chapter 19.86 RCW, the consumer shall be awarded actual damages. However, where there has been willful failure to comply with any requirement imposed under this section, the consumer shall be awarded actual damages, a monetary penalty of one thousand dollars, and the costs of the action together with reasonable attorneys’ fees as determined by the court. [2001 c 217 § 2.] Captions not law—2001 c 217: See note following RCW 9.35.005. 9.35.800 9.35.800 Application of Consumer Protection Act. The legislature finds that the practices covered by RCW 9.35.010 and 9.35.020 are matters vitally affecting the public interest for the purpose of applying the Consumer Protection Act, chapter 19.86 RCW. Violations of RCW 9.35.010 or 9.35.020 are not reasonable in relation to the development and preservation of business. A violation of RCW 9.35.010 or 9.35.020 is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the Consumer Protection Act, chapter 19.86 RCW. Nothing in RCW 9.35.010 or 9.35.020 limits a victim’s ability to receive treble damages under RCW 19.86.090. [2001 c 217 § 7.] Captions not law—2001 c 217: See note following RCW 9.35.005. 9.35.900 9.35.900 Effective date—1999 c 368. This act takes effect January 1, 2000. [1999 c 368 § 4.] 9.35.901 9.35.901 Captions not law—1999 c 368. Captions used in this chapter are not part of the law. [1999 c 368 § 5.] 9.35.902 9.35.902 Severability—1999 c 368. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1999 c 368 § 6.] Chapter 9.38 Chapter 9.38 RCW FALSE REPRESENTATIONS Sections 9.38.010 9.38.015 9.38.020 9.38.060 False representation concerning credit. False statement by deposit account applicant. False representation concerning title. Digital signature violations. Domestic insurers, corrupt practices: RCW 48.06.190. Elections falsification by voters: Chapter 29A.84 RCW. initiative and referendum petitions: RCW 29A.84.230. recall petitions: Chapter 29A.56 RCW. Employment, obtaining by false recommendation: RCW 49.44.040. Food, drugs, and cosmetics: Chapter 69.04 RCW. Fraud: Chapter 9A.60 RCW. Honey act, falsification: RCW 69.28.180. Insurance, unfair practices: Chapter 48.30 RCW. Liquor permit falsification: RCW 66.20.200. Marriage affidavit: RCW 26.04.210. (2006 Ed.) Fire, Crimes Relating to Motor vehicles, certificates of ownership: RCW 46.12.210, 46.12.220. 9.40.100 Pharmacy licensing: RCW 18.64.250. 9.40.105 Public assistance falsification: RCW 74.08.055. Warehouse receipts and documents, falsifying: Chapter 22.32 RCW. 9.40.110 9.40.120 9.40.130 9.40.110 Tampering with fire alarm or fire fighting equipment—False alarm—Penalties. Tampering with fire alarm or fire fighting equipment—Intent to commit arson—Penalty. Incendiary devices—Definitions. Incendiary devices—Penalty. Incendiary devices—Exceptions. 9.38.010 9.38.010 False representation concerning credit. Every person who, with intent thereby to obtain credit or financial rating, shall wilfully make any false statement in writing of his assets or liabilities to any person with whom he may be either actually or prospectively engaged in any business transaction or to any commercial agency or other person engaged in the business of collecting or disseminating information concerning financial or commercial ratings, shall be guilty of a misdemeanor. [1909 c 249 § 368; RRS § 2620.] Arson: Chapter 9A.48 RCW. Burning without permit in fire protection district—Penalty: RCW 52.12.101, 52.12.105. County fire regulations: RCW 36.43.040. Doors of buildings used by public: RCW 70.54.070. Explosives, crimes relating to: Chapter 70.74 RCW. Forest fire protection: Chapter 76.04 RCW. Fraudulent destruction of insured property: RCW 48.30.220. Special rights of action: Chapter 4.24 RCW. 9.38.015 9.38.015 False statement by deposit account applicant. (1) It is a gross misdemeanor for a deposit account applicant to knowingly make any false statement to a financial institution regarding: (a) The applicant’s identity; (b) Past convictions for crimes involving fraud or deception; or (c) Outstanding judgments on checks or drafts issued by the applicant. (2) Each violation of subsection (1) of this section after the third violation is a class C felony punishable as provided in chapter 9A.20 RCW. [1995 c 186 § 4.] Severability—1995 c 186: See RCW 30.22.901. 9.38.020 9.38.020 False representation concerning title. Every person who shall maliciously or fraudulently execute or file for record any instrument, or put forward any claim, by which the right or title of another to any real or personal property is, or purports to be transferred, encumbered or clouded, shall be guilty of a gross misdemeanor. [2000 c 250 § 9A-821; 1909 c 249 § 369; RRS § 2621.] Effective date—2000 c 250: See RCW 62A.9A-701. 9.38.060 9.38.060 Digital signature violations. (1) A person shall not knowingly misrepresent the person’s identity or authorization to obtain a public key certificate used to reference a private key for creating a digital signature. (2) A person shall not knowingly forge a digital signature as defined in RCW 19.34.020(16). (3) A person shall not knowingly present a public key certificate for which the person is not the owner of the corresponding private key in order to obtain unauthorized access to information or engage in an unauthorized transaction. (4) The definitions in RCW 19.34.020 apply to this section. (5) A person who violates this section is guilty of a class C felony punishable under chapter 9A.20 RCW. [2001 c 39 § 1.] Chapter 9.40 Chapter 9.40 RCW FIRE, CRIMES RELATING TO Sections 9.40.040 (2006 Ed.) Operating engine or boiler without spark arrester. State parks, fire violations: RCW 79A.05.165. 9.40.040 9.40.040 Operating engine or boiler without spark arrester. Every person who shall operate or permit to be operated in dangerous proximity to any brush, grass or other inflammable material, any spark-emitting engine or boiler which is not equipped with a modern spark-arrester, in good condition, shall be guilty of a misdemeanor. [1929 c 172 § 1; 1909 c 249 § 272; RRS § 2524.] 9.40.100 9.40.100 Tampering with fire alarm or fire fighting equipment—False alarm—Penalties. Any person who willfully and without cause tampers with, molests, injures or breaks any public or private fire alarm apparatus, emergency phone, radio, or other wire or signal, or any fire fighting equipment, or who willfully and without having reasonable grounds for believing a fire exists, sends, gives, transmits, or sounds any false alarm of fire, by shouting in a public place or by means of any public or private fire alarm system or signal, or by telephone, is guilty of a misdemeanor. This provision shall not prohibit the testing of fire alarm systems by persons authorized to do so, by a fire department or the chief of the Washington state patrol, through the director of fire protection. [2003 c 53 § 23; 1995 c 369 § 3; 1990 c 177 § 1; 1986 c 266 § 80; 1967 c 204 § 1.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Effective date—1995 c 369: See note following RCW 43.43.930. Severability—1990 c 177: See RCW 18.160.902. Severability—1986 c 266: See note following RCW 38.52.005. 9.40.105 9.40.105 Tampering with fire alarm or fire fighting equipment—Intent to commit arson—Penalty. Any person who willfully and without cause tampers with, molests, injures, or breaks any public or private fire alarm apparatus, emergency phone, radio, or other wire or signal, or any fire fighting equipment with the intent to commit arson, is guilty of a class B felony punishable according to chapter 9A.20 RCW. [2003 c 53 § 24.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.40.110 9.40.110 Incendiary devices—Definitions. For the purposes of RCW 9.40.110 through 9.40.130, as now or hereafter amended, unless the context indicates otherwise: [Title 9 RCW—page 17] 9.40.120 Title 9 RCW: Crimes and Punishments (1) "Disposes of" means to give, give away, loan, offer, offer for sale, sell, or transfer. (2) "Incendiary device" means any material, substance, device, or combination thereof which is capable of supplying the initial ignition and/or fuel for a fire and is designed to be used as an instrument of wilful destruction. However, no device commercially manufactured primarily for the purpose of illumination shall be deemed to be an incendiary device for purposes of this section. [1971 ex.s. c 302 § 3; 1969 ex.s. c 79 § 2.] 9.41.129 9.41.135 9.41.140 9.41.170 9.41.185 9.41.190 9.41.220 9.41.225 9.41.230 9.41.240 9.41.250 9.41.260 9.41.270 Severability—1971 ex.s. c 302: See note following RCW 9.41.010. 9.41.280 Recordkeeping requirements. Verification of licenses and registration—Notice to federal government. Alteration of identifying marks—Exceptions. Alien’s license to carry firearms—Exception. Coyote getters. Unlawful firearms—Exceptions. Unlawful firearms and parts contraband. Use of machine gun in felony—Penalty. Aiming or discharging firearms, dangerous weapons. Possession of pistol by person from eighteen to twenty-one. Dangerous weapons—Penalty. Dangerous exhibitions. Weapons apparently capable of producing bodily harm— Unlawful carrying or handling—Penalty—Exceptions. Possessing dangerous weapons on school facilities—Penalty—Exceptions. State preemption. Weapons prohibited in certain places—Local laws and ordinances—Exceptions—Penalty. Information pamphlet. Fireworks. Surrender of weapons or licenses—Prohibition on future possession or licensing. Penalty. 9.40.120 Incendiary devices—Penalty. Every person who possesses, manufactures, or disposes of an incendiary device knowing it to be such is guilty of a class B felony punishable according to chapter 9A.20 RCW, and upon conviction, shall be punished by imprisonment in a state prison for a term of not more than ten years. [2003 c 53 § 25; 1999 c 352 § 5; 1971 ex.s. c 302 § 4; 1969 ex.s. c 79 § 3.] 9.41.290 9.41.300 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Application—1999 c 352 §§ 3-5: See note following RCW 9.94A.515. Severability—1971 ex.s. c 302: See note following RCW 9.41.010. Explosives: Chapter 70.74 RCW. 9.40.120 9.41.310 9.41.320 9.41.800 9.41.810 Carrying loaded firearm in vehicle: RCW 77.15.460. Possessing a stolen firearm: RCW 9A.56.310. Shooting firearm from, across, or along public highway: RCW 77.15.460. Theft of a firearm: RCW 9A.56.300. 9.40.130 Incendiary devices—Exceptions. RCW 9.40.120, as now or hereafter amended, shall not prohibit the authorized use or possession of any material, substance, or device described therein by a member of the armed forces of the United States or by firemen, or peace officers, nor shall these sections prohibit the use or possession of any material, substance, or device described therein when used solely for scientific research or educational purposes or for any lawful purpose. RCW 9.40.120, as now or hereafter amended, shall not prohibit the manufacture or disposal of an incendiary device for the parties or purposes described in this section. [1971 ex.s. c 302 § 5; 1969 ex.s. c 79 § 4.] 9.40.130 Severability—1971 ex.s. c 302: See note following RCW 9.41.010. Chapter 9.41 RCW FIREARMS AND DANGEROUS WEAPONS Chapter 9.41 Sections 9.41.010 9.41.040 9.41.042 9.41.045 9.41.047 9.41.050 9.41.060 9.41.070 9.41.073 9.41.075 9.41.080 9.41.090 9.41.094 9.41.097 9.41.0975 9.41.098 9.41.100 9.41.110 9.41.120 9.41.122 9.41.124 Terms defined. Unlawful possession of firearms—Ownership, possession by certain persons—Penalties. Children—Permissible firearm possession. Possession by offenders. Restoration of possession rights. Carrying firearms. Exceptions to restrictions on carrying firearms. Concealed pistol license—Application—Fee—Renewal. Concealed pistol license—Reciprocity. Concealed pistol license—Revocation. Delivery to ineligible persons. Dealer deliveries regulated—Hold on delivery. Waiver of confidentiality. Supplying information on persons purchasing pistols or applying for concealed pistol licenses. Officials and agencies—Immunity, writ of mandamus. Forfeiture of firearms—Disposition—Confiscation. Dealer licensing and registration required. Dealer’s licenses, by whom granted, conditions, fees— Employees, fingerprinting and background checks—Wholesale sales excepted—Permits prohibited. Firearms as loan security. Out-of-state purchasing. Purchasing by nonresidents. [Title 9 RCW—page 18] 9.41.010 9.41.010 Terms defined. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Firearm" means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder. (2) "Pistol" means any firearm with a barrel less than sixteen inches in length, or is designed to be held and fired by the use of a single hand. (3) "Rifle" means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned, made or remade, and intended to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger. (4) "Short-barreled rifle" means a rifle having one or more barrels less than sixteen inches in length and any weapon made from a rifle by any means of modification if such modified weapon has an overall length of less than twenty-six inches. (5) "Shotgun" means a weapon with one or more barrels, designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned, made or remade, and intended to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger. (6) "Short-barreled shotgun" means a shotgun having one or more barrels less than eighteen inches in length and any weapon made from a shotgun by any means of modification if such modified weapon has an overall length of less than twenty-six inches. (7) "Machine gun" means any firearm known as a machine gun, mechanical rifle, submachine gun, or any other mechanism or instrument not requiring that the trigger be pressed for each shot and having a reservoir clip, disc, drum, (2006 Ed.) Firearms and Dangerous Weapons belt, or other separable mechanical device for storing, carrying, or supplying ammunition which can be loaded into the firearm, mechanism, or instrument, and fired therefrom at the rate of five or more shots per second. (8) "Antique firearm" means a firearm or replica of a firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898, including any matchlock, flintlock, percussion cap, or similar type of ignition system and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade. (9) "Loaded" means: (a) There is a cartridge in the chamber of the firearm; (b) Cartridges are in a clip that is locked in place in the firearm; (c) There is a cartridge in the cylinder of the firearm, if the firearm is a revolver; (d) There is a cartridge in the tube or magazine that is inserted in the action; or (e) There is a ball in the barrel and the firearm is capped or primed if the firearm is a muzzle loader. (10) "Dealer" means a person engaged in the business of selling firearms at wholesale or retail who has, or is required to have, a federal firearms license under 18 U.S.C. Sec. 923(a). A person who does not have, and is not required to have, a federal firearms license under 18 U.S.C. Sec. 923(a), is not a dealer if that person makes only occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or sells all or part of his or her personal collection of firearms. (11) "Crime of violence" means: (a) Any of the following felonies, as now existing or hereafter amended: Any felony defined under any law as a class A felony or an attempt to commit a class A felony, criminal solicitation of or criminal conspiracy to commit a class A felony, manslaughter in the first degree, manslaughter in the second degree, indecent liberties if committed by forcible compulsion, kidnapping in the second degree, arson in the second degree, assault in the second degree, assault of a child in the second degree, extortion in the first degree, burglary in the second degree, residential burglary, and robbery in the second degree; (b) Any conviction for a felony offense in effect at any time prior to June 6, 1996, which is comparable to a felony classified as a crime of violence in (a) of this subsection; and (c) Any federal or out-of-state conviction for an offense comparable to a felony classified as a crime of violence under (a) or (b) of this subsection. (12) "Serious offense" means any of the following felonies or a felony attempt to commit any of the following felonies, as now existing or hereafter amended: (a) Any crime of violence; (b) Any felony violation of the uniform controlled substances act, chapter 69.50 RCW, that is classified as a class B felony or that has a maximum term of imprisonment of at least ten years; (c) Child molestation in the second degree; (d) Incest when committed against a child under age fourteen; (2006 Ed.) 9.41.010 (e) Indecent liberties; (f) Leading organized crime; (g) Promoting prostitution in the first degree; (h) Rape in the third degree; (i) Drive-by shooting; (j) Sexual exploitation; (k) Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner; (l) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner; (m) Any other class B felony offense with a finding of sexual motivation, as "sexual motivation" is defined under RCW 9.94A.030; (n) Any other felony with a deadly weapon verdict under RCW 9.94A.602; or (o) Any felony offense in effect at any time prior to June 6, 1996, that is comparable to a serious offense, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a serious offense. (13) "Law enforcement officer" includes a general authority Washington peace officer as defined in RCW 10.93.020, or a specially commissioned Washington peace officer as defined in RCW 10.93.020. "Law enforcement officer" also includes a limited authority Washington peace officer as defined in RCW 10.93.020 if such officer is duly authorized by his or her employer to carry a concealed pistol. (14) "Felony" means any felony offense under the laws of this state or any federal or out-of-state offense comparable to a felony offense under the laws of this state. (15) "Sell" refers to the actual approval of the delivery of a firearm in consideration of payment or promise of payment of a certain price in money. (16) "Barrel length" means the distance from the bolt face of a closed action down the length of the axis of the bore to the crown of the muzzle, or in the case of a barrel with attachments to the end of any legal device permanently attached to the end of the muzzle. (17) "Family or household member" means "family" or "household member" as used in RCW 10.99.020. [2001 c 300 § 2; 1997 c 338 § 46; 1996 c 295 § 1. Prior: 1994 sp.s. c 7 § 401; 1994 c 121 § 1; prior: 1992 c 205 § 117; 1992 c 145 § 5; 1983 c 232 § 1; 1971 ex.s. c 302 § 1; 1961 c 124 § 1; 1935 c 172 § 1; RRS § 2516-1.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: "Sections 401 through 410, 413 through 416, 418 through 437, and 439 through 460 of this act shall take effect July 1, 1994." [1994 sp.s. c 7 § 916.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. Severability—1983 c 232: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or [Title 9 RCW—page 19] 9.41.040 Title 9 RCW: Crimes and Punishments the application of the provision to other persons or circumstances is not affected." [1983 c 232 § 14.] Severability—1971 ex.s. c 302: "If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1971 ex.s. c 302 § 35.] Severability—1961 c 124: "If any part of this act is for any reason declared void, such invalidity shall not affect the validity of the remaining portions of this act." [1961 c 124 § 13.] Preemption and general repealer—1961 c 124: "All laws or parts of laws of the state of Washington, its subdivisions and municipalities inconsistent herewith are hereby preempted and repealed." [1961 c 124 § 14.] Short title—1935 c 172: "This act may be cited as the ’Uniform Firearms Act.’" [1935 c 172 § 18.] Severability—1935 c 172: "If any part of this act is for any reason declared void, such invalidity shall not affect the validity of the remaining portions of this act." [1935 c 172 § 17.] Construction—1935 c 172: "This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it." [1935 c 172 § 19.] 9.41.040 9.41.040 Unlawful possession of firearms—Ownership, possession by certain persons—Penalties. (1)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense as defined in this chapter. (b) Unlawful possession of a firearm in the first degree is a class B felony punishable according to chapter 9A.20 RCW. (2)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person does not qualify under subsection (1) of this section for the crime of unlawful possession of a firearm in the first degree and the person owns, has in his or her possession, or has in his or her control any firearm: (i) After having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any felony not specifically listed as prohibiting firearm possession under subsection (1) of this section, or any of the following crimes when committed by one family or household member against another, committed on or after July 1, 1993: Assault in the fourth degree, coercion, stalking, reckless endangerment, criminal trespass in the first degree, or violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence (RCW 26.50.060, 26.50.070, 26.50.130, or 10.99.040); (ii) After having previously been involuntarily committed for mental health treatment under RCW 71.05.320, *71.34.090, chapter 10.77 RCW, or equivalent statutes of another jurisdiction, unless his or her right to possess a firearm has been restored as provided in RCW 9.41.047; (iii) If the person is under eighteen years of age, except as provided in RCW 9.41.042; and/or (iv) If the person is free on bond or personal recognizance pending trial, appeal, or sentencing for a serious offense as defined in RCW 9.41.010. (b) Unlawful possession of a firearm in the second degree is a class C felony punishable according to chapter 9A.20 RCW. [Title 9 RCW—page 20] (3) Notwithstanding RCW 9.41.047 or any other provisions of law, as used in this chapter, a person has been "convicted", whether in an adult court or adjudicated in a juvenile court, at such time as a plea of guilty has been accepted, or a verdict of guilty has been filed, notwithstanding the pendency of any future proceedings including but not limited to sentencing or disposition, post-trial or post-factfinding motions, and appeals. Conviction includes a dismissal entered after a period of probation, suspension or deferral of sentence, and also includes equivalent dispositions by courts in jurisdictions other than Washington state. A person shall not be precluded from possession of a firearm if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. Where no record of the court’s disposition of the charges can be found, there shall be a rebuttable presumption that the person was not convicted of the charge. (4) Notwithstanding subsection (1) or (2) of this section, a person convicted or found not guilty by reason of insanity of an offense prohibiting the possession of a firearm under this section other than murder, manslaughter, robbery, rape, indecent liberties, arson, assault, kidnapping, extortion, burglary, or violations with respect to controlled substances under RCW 69.50.401 and 69.50.410, who received a probationary sentence under RCW 9.95.200, and who received a dismissal of the charge under RCW 9.95.240, shall not be precluded from possession of a firearm as a result of the conviction or finding of not guilty by reason of insanity. Notwithstanding any other provisions of this section, if a person is prohibited from possession of a firearm under subsection (1) or (2) of this section and has not previously been convicted or found not guilty by reason of insanity of a sex offense prohibiting firearm ownership under subsection (1) or (2) of this section and/or any felony defined under any law as a class A felony or with a maximum sentence of at least twenty years, or both, the individual may petition a court of record to have his or her right to possess a firearm restored: (a) Under RCW 9.41.047; and/or (b)(i) If the conviction or finding of not guilty by reason of insanity was for a felony offense, after five or more consecutive years in the community without being convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525; or (ii) If the conviction or finding of not guilty by reason of insanity was for a nonfelony offense, after three or more consecutive years in the community without being convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525 and the individual has completed all conditions of the sentence. (5) In addition to any other penalty provided for by law, if a person under the age of eighteen years is found by a court to have possessed a firearm in a vehicle in violation of sub(2006 Ed.) Firearms and Dangerous Weapons 9.41.047 section (1) or (2) of this section or to have committed an offense while armed with a firearm during which offense a motor vehicle served an integral function, the court shall notify the department of licensing within twenty-four hours and the person’s privilege to drive shall be revoked under RCW 46.20.265. (6) Nothing in chapter 129, Laws of 1995 shall ever be construed or interpreted as preventing an offender from being charged and subsequently convicted for the separate felony crimes of theft of a firearm or possession of a stolen firearm, or both, in addition to being charged and subsequently convicted under this section for unlawful possession of a firearm in the first or second degree. Notwithstanding any other law, if the offender is convicted under this section for unlawful possession of a firearm in the first or second degree and for the felony crimes of theft of a firearm or possession of a stolen firearm, or both, then the offender shall serve consecutive sentences for each of the felony crimes of conviction listed in this subsection. (7) Each firearm unlawfully possessed under this section shall be a separate offense. [2005 c 453 § 1; 2003 c 53 § 26; 1997 c 338 § 47; 1996 c 295 § 2. Prior: 1995 c 129 § 16 (Initiative Measure No. 159); 1994 sp.s. c 7 § 402; prior: 1992 c 205 § 118; 1992 c 168 § 2; 1983 c 232 § 2; 1961 c 124 § 3; 1935 c 172 § 4; RRS § 2516-4.] (4) Hunting or trapping under a valid license issued to the person under Title 77 RCW; (5) In an area where the discharge of a firearm is permitted, is not trespassing, and the person either: (a) Is at least fourteen years of age, has been issued a hunter safety certificate, and is using a lawful firearm other than a pistol; or (b) is under the supervision of a parent, guardian, or other adult approved for the purpose by the parent or guardian; (6) Traveling with any unloaded firearm in the person’s possession to or from any activity described in subsection (1), (2), (3), (4), or (5) of this section; (7) On real property under the control of his or her parent, other relative, or legal guardian and who has the permission of the parent or legal guardian to possess a firearm; (8) At his or her residence and who, with the permission of his or her parent or legal guardian, possesses a firearm for the purpose of exercising the rights specified in RCW 9A.16.020(3); or (9) Is a member of the armed forces of the United States, national guard, or organized reserves, when on duty. [2003 c 53 § 27; 1999 c 143 § 2; 1994 sp.s. c 7 § 403.] *Reviser’s note: RCW 71.34.090 was recodified as RCW 71.34.750 pursuant to 2005 c 371 § 6. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Severability—2005 c 453: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2005 c 453 § 7.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. Severability—1992 c 168: See note following RCW 9.41.070. Severability—1983 c 232: See note following RCW 9.41.010. 9.41.042 9.41.042 Children—Permissible firearm possession. RCW 9.41.040(2)(a)(iii) shall not apply to any person under the age of eighteen years who is: (1) In attendance at a hunter’s safety course or a firearms safety course; (2) Engaging in practice in the use of a firearm or target shooting at an established range authorized by the governing body of the jurisdiction in which such range is located or any other area where the discharge of a firearm is not prohibited; (3) Engaging in an organized competition involving the use of a firearm, or participating in or practicing for a performance by an organized group that uses firearms as a part of the performance; (2006 Ed.) Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. 9.41.045 9.41.045 Possession by offenders. As a sentence condition and requirement, offenders under the supervision of the department of corrections pursuant to chapter 9.94A RCW shall not own, use, or possess firearms or ammunition. In addition to any penalty imposed pursuant to RCW 9.41.040 when applicable, offenders found to be in actual or constructive possession of firearms or ammunition shall be subject to the appropriate violation process and sanctions as provided for in RCW 9.94A.634. Firearms or ammunition owned, used, or possessed by offenders may be confiscated by community corrections officers and turned over to the Washington state patrol for disposal as provided in RCW 9.41.098. [1991 c 221 § 1.] 9.41.047 9.41.047 Restoration of possession rights. (1) At the time a person is convicted or found not guilty by reason of insanity of an offense making the person ineligible to possess a firearm, or at the time a person is committed by court order under RCW 71.05.320, *71.34.090, or chapter 10.77 RCW for mental health treatment, the convicting or committing court shall notify the person, orally and in writing, that the person must immediately surrender any concealed pistol license and that the person may not possess a firearm unless his or her right to do so is restored by a court of record. For purposes of this section a convicting court includes a court in which a person has been found not guilty by reason of insanity. The convicting or committing court also shall forward a copy of the person’s driver’s license or identicard, or comparable information, to the department of licensing, along with the date of conviction or commitment. (2) Upon receipt of the information provided for by subsection (1) of this section, the department of licensing shall [Title 9 RCW—page 21] 9.41.050 Title 9 RCW: Crimes and Punishments determine if the convicted or committed person has a concealed pistol license. If the person does have a concealed pistol license, the department of licensing shall immediately notify the license-issuing authority which, upon receipt of such notification, shall immediately revoke the license. (3)(a) A person who is prohibited from possessing a firearm, by reason of having been involuntarily committed for mental health treatment under RCW 71.05.320, *71.34.090, chapter 10.77 RCW, or equivalent statutes of another jurisdiction may, upon discharge, petition a court of record to have his or her right to possess a firearm restored. At the time of commitment, the court shall specifically state to the person that he or she is barred from possession of firearms. (b) The secretary of social and health services shall develop appropriate rules to create an approval process under this subsection. The rules must provide for the restoration of the right to possess a firearm upon a showing in a court of competent jurisdiction that the person is no longer required to participate in an inpatient or outpatient treatment program, is no longer required to take medication to treat any condition related to the commitment, and does not present a substantial danger to himself or herself, others, or the public. Unlawful possession of a firearm under this subsection shall be punished as a class C felony under chapter 9A.20 RCW. (c) A person petitioning the court under this subsection (3) shall bear the burden of proving by a preponderance of the evidence that the circumstances resulting in the commitment no longer exist and are not reasonably likely to recur. If a preponderance of the evidence in the record supports a finding that the person petitioning the court has engaged in violence and that it is more likely than not that the person will engage in violence after his or her right to possess a firearm is restored, the person shall bear the burden of proving by clear, cogent, and convincing evidence that he or she does not present a substantial danger to the safety of others. (4) No person who has been found not guilty by reason of insanity may petition a court for restoration of the right to possess a firearm unless the person meets the requirements for the restoration of the right to possess a firearm under RCW 9.41.040(4). [2005 c 453 § 2; 1996 c 295 § 3. Prior: 1994 sp.s. c 7 § 404.] *Reviser’s note: RCW 71.34.090 was recodified as RCW 71.34.750 pursuant to 2005 c 371 § 6. Severability—2005 c 453: See note following RCW 9.41.040. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.050 9.41.050 Carrying firearms. (1)(a) Except in the person’s place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol. (b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be pun[Title 9 RCW—page 22] ished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction. (2)(a) A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol and: (i) The pistol is on the licensee’s person, (ii) the licensee is within the vehicle at all times that the pistol is there, or (iii) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle. (b) A violation of this subsection is a misdemeanor. (3)(a) A person at least eighteen years of age who is in possession of an unloaded pistol shall not leave the unloaded pistol in a vehicle unless the unloaded pistol is locked within the vehicle and concealed from view from outside the vehicle. (b) A violation of this subsection is a misdemeanor. (4) Nothing in this section permits the possession of firearms illegal to possess under state or federal law. [2003 c 53 § 28; 1997 c 200 § 1; 1996 c 295 § 4; 1994 sp.s. c 7 § 405; 1982 1st ex.s. c 47 § 3; 1961 c 124 § 4; 1935 c 172 § 5; RRS § 2516-5.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9.41.060 9.41.060 Exceptions to restrictions on carrying firearms. The provisions of RCW 9.41.050 shall not apply to: (1) Marshals, sheriffs, prison or jail wardens or their deputies, or other law enforcement officers of this state or another state; (2) Members of the armed forces of the United States or of the national guard or organized reserves, when on duty; (3) Officers or employees of the United States duly authorized to carry a concealed pistol; (4) Any person engaged in the business of manufacturing, repairing, or dealing in firearms, or the agent or representative of the person, if possessing, using, or carrying a pistol in the usual or ordinary course of the business; (5) Regularly enrolled members of any organization duly authorized to purchase or receive pistols from the United States or from this state; (6) Regularly enrolled members of clubs organized for the purpose of target shooting, when those members are at or are going to or from their places of target practice; (7) Regularly enrolled members of clubs organized for the purpose of modern and antique firearm collecting, when those members are at or are going to or from their collector’s gun shows and exhibits; (8) Any person engaging in a lawful outdoor recreational activity such as hunting, fishing, camping, hiking, or horseback riding, only if, considering all of the attendant circumstances, including but not limited to whether the person has a valid hunting or fishing license, it is reasonable to conclude that the person is participating in lawful outdoor activities or is traveling to or from a legitimate outdoor recreation area; (9) Any person while carrying a pistol unloaded and in a closed opaque case or secure wrapper; or (2006 Ed.) Firearms and Dangerous Weapons (10) Law enforcement officers retired for service or physical disabilities, except for those law enforcement officers retired because of mental or stress-related disabilities. This subsection applies only to a retired officer who has: (a) Obtained documentation from a law enforcement agency within Washington state from which he or she retired that is signed by the agency’s chief law enforcement officer and that states that the retired officer was retired for service or physical disability; and (b) not been convicted or found not guilty by reason of insanity of a crime making him or her ineligible for a concealed pistol license. [2005 c 453 § 3; 1998 c 253 § 2; 1996 c 295 § 5; 1995 c 392 § 1; 1994 sp.s. c 7 § 406; 1961 c 124 § 5; 1935 c 172 § 6; RRS § 2516-6.] Severability—2005 c 453: See note following RCW 9.41.040. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.070 9.41.070 Concealed pistol license—Application— Fee—Renewal. (1) The chief of police of a municipality or the sheriff of a county shall within thirty days after the filing of an application of any person, issue a license to such person to carry a pistol concealed on his or her person within this state for five years from date of issue, for the purposes of protection or while engaged in business, sport, or while traveling. However, if the applicant does not have a valid permanent Washington driver’s license or Washington state identification card or has not been a resident of the state for the previous consecutive ninety days, the issuing authority shall have up to sixty days after the filing of the application to issue a license. The issuing authority shall not refuse to accept completed applications for concealed pistol licenses during regular business hours. The applicant’s constitutional right to bear arms shall not be denied, unless: (a) He or she is ineligible to possess a firearm under the provisions of RCW 9.41.040 or 9.41.045; (b) The applicant’s concealed pistol license is in a revoked status; (c) He or she is under twenty-one years of age; (d) He or she is subject to a court order or injunction regarding firearms pursuant to RCW 9A.46.080, 10.14.080, 10.99.040, 10.99.045, 26.09.050, 26.09.060, 26.10.040, 26.10.115, 26.26.130, 26.50.060, 26.50.070, or 26.26.590; (e) He or she is free on bond or personal recognizance pending trial, appeal, or sentencing for a felony offense; (f) He or she has an outstanding warrant for his or her arrest from any court of competent jurisdiction for a felony or misdemeanor; or (g) He or she has been ordered to forfeit a firearm under RCW 9.41.098(1)(e) within one year before filing an application to carry a pistol concealed on his or her person. No person convicted of a felony may have his or her right to possess firearms restored or his or her privilege to carry a concealed pistol restored, unless the person has been granted relief from disabilities by the secretary of the treasury under 18 U.S.C. Sec. 925(c), or RCW 9.41.040 (3) or (4) applies. (2) The issuing authority shall check with the national crime information center, the Washington state patrol elec(2006 Ed.) 9.41.070 tronic data base, the department of social and health services electronic data base, and with other agencies or resources as appropriate, to determine whether the applicant is ineligible under RCW 9.41.040 or 9.41.045 to possess a firearm and therefore ineligible for a concealed pistol license. This subsection applies whether the applicant is applying for a new concealed pistol license or to renew a concealed pistol license. (3) Any person whose firearms rights have been restricted and who has been granted relief from disabilities by the secretary of the treasury under 18 U.S.C. Sec. 925(c) or who is exempt under 18 U.S.C. Sec. 921(a)(20)(A) shall have his or her right to acquire, receive, transfer, ship, transport, carry, and possess firearms in accordance with Washington state law restored except as otherwise prohibited by this chapter. (4) The license application shall bear the full name, residential address, telephone number at the option of the applicant, date and place of birth, race, gender, description, not more than two complete sets of fingerprints, and signature of the licensee, and the licensee’s driver’s license number or state identification card number if used for identification in applying for the license. A signed application for a concealed pistol license shall constitute a waiver of confidentiality and written request that the department of social and health services, mental health institutions, and other health care facilities release information relevant to the applicant’s eligibility for a concealed pistol license to an inquiring court or law enforcement agency. The application for an original license shall include two complete sets of fingerprints to be forwarded to the Washington state patrol. The license and application shall contain a warning substantially as follows: CAUTION: Although state and local laws do not differ, federal law and state law on the possession of firearms differ. If you are prohibited by federal law from possessing a firearm, you may be prosecuted in federal court. A state license is not a defense to a federal prosecution. The license shall contain a description of the major differences between state and federal law and an explanation of the fact that local laws and ordinances on firearms are preempted by state law and must be consistent with state law. The application shall contain questions about the applicant’s eligibility under RCW 9.41.040 to possess a pistol, the applicant’s place of birth, and whether the applicant is a United States citizen. The applicant shall not be required to produce a birth certificate or other evidence of citizenship. A person who is not a citizen of the United States shall meet the additional requirements of RCW 9.41.170 and produce proof of compliance with RCW 9.41.170 upon application. The license shall be in triplicate and in a form to be prescribed by the department of licensing. The original thereof shall be delivered to the licensee, the duplicate shall within seven days be sent to the director of licensing and the triplicate shall be preserved for six years, by the authority issuing the license. [Title 9 RCW—page 23] 9.41.073 Title 9 RCW: Crimes and Punishments The department of licensing shall make available to law enforcement and corrections agencies, in an on-line format, all information received under this subsection. (5) The nonrefundable fee, paid upon application, for the original five-year license shall be thirty-six dollars plus additional charges imposed by the Federal Bureau of Investigation that are passed on to the applicant. No other state or local branch or unit of government may impose any additional charges on the applicant for the issuance of the license. The fee shall be distributed as follows: (a) Fifteen dollars shall be paid to the state general fund; (b) Four dollars shall be paid to the agency taking the fingerprints of the person licensed; (c) Fourteen dollars shall be paid to the issuing authority for the purpose of enforcing this chapter; and (d) Three dollars to the firearms range account in the general fund. (6) The nonrefundable fee for the renewal of such license shall be thirty-two dollars. No other branch or unit of government may impose any additional charges on the applicant for the renewal of the license. The renewal fee shall be distributed as follows: (a) Fifteen dollars shall be paid to the state general fund; (b) Fourteen dollars shall be paid to the issuing authority for the purpose of enforcing this chapter; and (c) Three dollars to the firearms range account in the general fund. (7) The nonrefundable fee for replacement of lost or damaged licenses is ten dollars to be paid to the issuing authority. (8) Payment shall be by cash, check, or money order at the option of the applicant. Additional methods of payment may be allowed at the option of the issuing authority. (9) A licensee may renew a license if the licensee applies for renewal within ninety days before or after the expiration date of the license. A license so renewed shall take effect on the expiration date of the prior license. A licensee renewing after the expiration date of the license must pay a late renewal penalty of ten dollars in addition to the renewal fee specified in subsection (6) of this section. The fee shall be distributed as follows: (a) Three dollars shall be deposited in the *state wildlife fund and used exclusively first for the printing and distribution of a pamphlet on the legal limits of the use of firearms, firearms safety, and the preemptive nature of state law, and subsequently the support of volunteer instructors in the basic firearms safety training program conducted by the department of fish and wildlife. The pamphlet shall be given to each applicant for a license; and (b) Seven dollars shall be paid to the issuing authority for the purpose of enforcing this chapter. (10) Notwithstanding the requirements of subsections (1) through (9) of this section, the chief of police of the municipality or the sheriff of the county of the applicant’s residence may issue a temporary emergency license for good cause pending review under subsection (1) of this section. However, a temporary emergency license issued under this subsection shall not exempt the holder of the license from any records check requirement. Temporary emergency licenses shall be easily distinguishable from regular licenses. [Title 9 RCW—page 24] (11) A political subdivision of the state shall not modify the requirements of this section or chapter, nor may a political subdivision ask the applicant to voluntarily submit any information not required by this section. (12) A person who knowingly makes a false statement regarding citizenship or identity on an application for a concealed pistol license is guilty of false swearing under RCW 9A.72.040. In addition to any other penalty provided for by law, the concealed pistol license of a person who knowingly makes a false statement shall be revoked, and the person shall be permanently ineligible for a concealed pistol license. (13) A person may apply for a concealed pistol license: (a) To the municipality or to the county in which the applicant resides if the applicant resides in a municipality; (b) To the county in which the applicant resides if the applicant resides in an unincorporated area; or (c) Anywhere in the state if the applicant is a nonresident. [2002 c 302 § 703; 1999 c 222 § 2; 1996 c 295 § 6; 1995 c 351 § 1. Prior: 1994 sp.s. c 7 § 407; 1994 c 190 § 2; 1992 c 168 § 1; 1990 c 195 § 6; prior: 1988 c 263 § 10; 1988 c 223 § 1; 1988 c 219 § 1; 1988 c 36 § 1; 1985 c 428 § 3; 1983 c 232 § 3; 1979 c 158 § 1; 1971 ex.s. c 302 § 2; 1961 c 124 § 6; 1935 c 172 § 7; RRS § 2516-7.] *Reviser’s note: The "state wildlife fund" created in RCW 77.12.170 was renamed the "state wildlife account" by 2005 c 224 § 4 and by 2005 c 225 § 4. Application—Construction—Short title—Severability—2002 c 302: See RCW 26.26.903, 26.26.911, and 26.26.912. Finding—Hunter education program: "The legislature finds that the hunter education program offers classes that all new hunters in the state are legally required to complete, but that budget reductions have limited the assistance that may be provided to the volunteers who conduct these classes. A portion of the funds for this program is provided by statute exclusively for printing and distributing the hunter safety pamphlet. While this pamphlet should remain the highest spending priority for these funds, there is a surplus in the account which could assist with other activities by the volunteers conducting the hunter education program." [1999 c 222 § 1.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Severability—1992 c 168: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1992 c 168 § 4.] Severability—1985 c 428: See note following RCW 9.41.290. Severability—1983 c 232: See note following RCW 9.41.010. Severability—1971 ex.s. c 302: See note following RCW 9.41.010. 9.41.073 9.41.073 Concealed pistol license—Reciprocity. (1)(a) A person licensed to carry a pistol in a state the laws of which recognize and give effect in that state to a concealed pistol license issued under the laws of the state of Washington is authorized to carry a concealed pistol in this state if: (i) The licensing state does not issue concealed pistol licenses to persons under twenty-one years of age; and (ii) The licensing state requires mandatory fingerprintbased background checks of criminal and mental health history for all persons who apply for a concealed pistol license. (b) This section applies to a license holder from another state only while the license holder is not a resident of this state. A license holder from another state must carry the handgun in compliance with the laws of this state. (2006 Ed.) Firearms and Dangerous Weapons (2) The attorney general shall periodically publish a list of states the laws of which recognize and give effect in that state to a concealed pistol license issued under the laws of the state of Washington and which meet the requirements of subsection (1)(a)(i) and (ii) of this section. [2004 c 148 § 1.] 9.41.075 Concealed pistol license—Revocation. (1) The license shall be revoked by the license-issuing authority immediately upon: (a) Discovery by the issuing authority that the person was ineligible under RCW 9.41.070 for a concealed pistol license when applying for the license or license renewal; (b) Conviction of the licensee, or the licensee being found not guilty by reason of insanity, of an offense, or commitment of the licensee for mental health treatment, that makes a person ineligible under RCW 9.41.040 to possess a firearm; (c) Conviction of the licensee for a third violation of this chapter within five calendar years; or (d) An order that the licensee forfeit a firearm under RCW 9.41.098(1)(d). (2)(a) Unless the person may lawfully possess a pistol without a concealed pistol license, an ineligible person to whom a concealed pistol license was issued shall, within fourteen days of license revocation, lawfully transfer ownership of any pistol acquired while the person was in possession of the license. (b) Upon discovering a person issued a concealed pistol license was ineligible for the license, the issuing authority shall contact the department of licensing to determine whether the person purchased a pistol while in possession of the license. If the person did purchase a pistol while in possession of the concealed pistol license, if the person may not lawfully possess a pistol without a concealed pistol license, the issuing authority shall require the person to present satisfactory evidence of having lawfully transferred ownership of the pistol. The issuing authority shall require the person to produce the evidence within fifteen days of the revocation of the license. (3) When a licensee is ordered to forfeit a firearm under RCW 9.41.098(1)(d), the issuing authority shall: (a) On the first forfeiture, revoke the license for one year; (b) On the second forfeiture, revoke the license for two years; or (c) On the third or subsequent forfeiture, revoke the license for five years. Any person whose license is revoked as a result of a forfeiture of a firearm under RCW 9.41.098(1)(d) may not reapply for a new license until the end of the revocation period. (4) The issuing authority shall notify, in writing, the department of licensing of the revocation of a license. The department of licensing shall record the revocation. [2005 c 453 § 4; 1994 sp.s. c 7 § 408.] 9.41.075 Severability—2005 c 453: See note following RCW 9.41.040. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.080 Delivery to ineligible persons. No person may deliver a firearm to any person whom he or she has rea9.41.080 (2006 Ed.) 9.41.090 sonable cause to believe is ineligible under RCW 9.41.040 to possess a firearm. Any person violating this section is guilty of a class C felony, punishable under chapter 9A.20 RCW. [1994 sp.s. c 7 § 409; 1935 c 172 § 8; RRS § 2516-8.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.090 9.41.090 Dealer deliveries regulated—Hold on delivery. (1) In addition to the other requirements of this chapter, no dealer may deliver a pistol to the purchaser thereof until: (a) The purchaser produces a valid concealed pistol license and the dealer has recorded the purchaser’s name, license number, and issuing agency, such record to be made in triplicate and processed as provided in subsection (5) of this section. For purposes of this subsection (1)(a), a "valid concealed pistol license" does not include a temporary emergency license, and does not include any license issued before July 1, 1996, unless the issuing agency conducted a records search for disqualifying crimes under RCW 9.41.070 at the time of issuance; (b) The dealer is notified in writing by the chief of police or the sheriff of the jurisdiction in which the purchaser resides that the purchaser is eligible to possess a pistol under RCW 9.41.040 and that the application to purchase is approved by the chief of police or sheriff; or (c) Five business days, meaning days on which state offices are open, have elapsed from the time of receipt of the application for the purchase thereof as provided herein by the chief of police or sheriff designated in subsection (5) of this section, and, when delivered, the pistol shall be securely wrapped and shall be unloaded. However, if the purchaser does not have a valid permanent Washington driver’s license or state identification card or has not been a resident of the state for the previous consecutive ninety days, the waiting period under this subsection (1)(c) shall be up to sixty days. (2)(a) Except as provided in (b) of this subsection, in determining whether the purchaser meets the requirements of RCW 9.41.040, the chief of police or sheriff, or the designee of either, shall check with the national crime information center, the Washington state patrol electronic data base, the department of social and health services electronic data base, and with other agencies or resources as appropriate, to determine whether the applicant is ineligible under RCW 9.41.040 to possess a firearm. (b) Once the system is established, a dealer shall use the state system and national instant criminal background check system, provided for by the Brady Handgun Violence Prevention Act (18 U.S.C. Sec. 921 et seq.), to make criminal background checks of applicants to purchase firearms. However, a chief of police or sheriff, or a designee of either, shall continue to check the department of social and health services’ electronic data base and with other agencies or resources as appropriate, to determine whether applicants are ineligible under RCW 9.41.040 to possess a firearm. (3) In any case under subsection (1)(c) of this section where the applicant has an outstanding warrant for his or her arrest from any court of competent jurisdiction for a felony or misdemeanor, the dealer shall hold the delivery of the pistol until the warrant for arrest is served and satisfied by appropri[Title 9 RCW—page 25] 9.41.094 Title 9 RCW: Crimes and Punishments ate court appearance. The local jurisdiction for purposes of the sale shall confirm the existence of outstanding warrants within seventy-two hours after notification of the application to purchase a pistol is received. The local jurisdiction shall also immediately confirm the satisfaction of the warrant on request of the dealer so that the hold may be released if the warrant was for an offense other than an offense making a person ineligible under RCW 9.41.040 to possess a pistol. (4) In any case where the chief or sheriff of the local jurisdiction has reasonable grounds based on the following circumstances: (a) Open criminal charges, (b) pending criminal proceedings, (c) pending commitment proceedings, (d) an outstanding warrant for an offense making a person ineligible under RCW 9.41.040 to possess a pistol, or (e) an arrest for an offense making a person ineligible under RCW 9.41.040 to possess a pistol, if the records of disposition have not yet been reported or entered sufficiently to determine eligibility to purchase a pistol, the local jurisdiction may hold the sale and delivery of the pistol beyond five days up to thirty days in order to confirm existing records in this state or elsewhere. After thirty days, the hold will be lifted unless an extension of the thirty days is approved by a local district court or municipal court for good cause shown. A dealer shall be notified of each hold placed on the sale by local law enforcement and of any application to the court for additional hold period to confirm records or confirm the identity of the applicant. (5) At the time of applying for the purchase of a pistol, the purchaser shall sign in triplicate and deliver to the dealer an application containing his or her full name, residential address, date and place of birth, race, and gender; the date and hour of the application; the applicant’s driver’s license number or state identification card number; a description of the pistol including the make, model, caliber and manufacturer’s number if available at the time of applying for the purchase of a pistol. If the manufacturer’s number is not available, the application may be processed, but delivery of the pistol to the purchaser may not occur unless the manufacturer’s number is recorded on the application by the dealer and transmitted to the chief of police of the municipality or the sheriff of the county in which the purchaser resides; and a statement that the purchaser is eligible to possess a pistol under RCW 9.41.040. The application shall contain a warning substantially as follows: CAUTION: Although state and local laws do not differ, federal law and state law on the possession of firearms differ. If you are prohibited by federal law from possessing a firearm, you may be prosecuted in federal court. State permission to purchase a firearm is not a defense to a federal prosecution. The purchaser shall be given a copy of the department of fish and wildlife pamphlet on the legal limits of the use of firearms, firearms safety, and the fact that local laws and ordinances on firearms are preempted by state law and must be consistent with state law. The dealer shall, by the end of the business day, sign and attach his or her address and deliver a copy of the application and such other documentation as required under subsection (1) of this section to the chief of police of the municipality or [Title 9 RCW—page 26] the sheriff of the county of which the purchaser is a resident. The triplicate shall be retained by the dealer for six years. The dealer shall deliver the pistol to the purchaser following the period of time specified in this section unless the dealer is notified of an investigative hold under subsection (4) of this section in writing by the chief of police of the municipality or the sheriff of the county, whichever is applicable, denying the purchaser’s application to purchase and the grounds thereof. The application shall not be denied unless the purchaser is not eligible to possess a pistol under RCW 9.41.040 or 9.41.045, or federal law. The chief of police of the municipality or the sheriff of the county shall retain or destroy applications to purchase a pistol in accordance with the requirements of 18 U.S.C. Sec. 922. (6) A person who knowingly makes a false statement regarding identity or eligibility requirements on the application to purchase a pistol is guilty of false swearing under RCW 9A.72.040. (7) This section does not apply to sales to licensed dealers for resale or to the sale of antique firearms. [1996 c 295 § 8. Prior: 1994 sp.s. c 7 § 410; 1994 c 264 § 1; 1988 c 36 § 2; 1985 c 428 § 4; 1983 c 232 § 4; 1969 ex.s. c 227 § 1; 1961 c 124 § 7; 1935 c 172 § 9; RRS § 2516-9.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Severability—1985 c 428: See note following RCW 9.41.290. Severability—1983 c 232: See note following RCW 9.41.010. 9.41.094 9.41.094 Waiver of confidentiality. A signed application to purchase a pistol shall constitute a waiver of confidentiality and written request that the department of social and health services, mental health institutions, and other health care facilities release, to an inquiring court or law enforcement agency, information relevant to the applicant’s eligibility to purchase a pistol to an inquiring court or law enforcement agency. [1994 sp.s. c 7 § 411.] Finding—Intent—Severability—Effective dates—Contingent expiration date—1994 sp.s. c 7: See notes following RCW 43.70.540. 9.41.097 9.41.097 Supplying information on persons purchasing pistols or applying for concealed pistol licenses. (1) The department of social and health services, mental health institutions, and other health care facilities shall, upon request of a court or law enforcement agency, supply such relevant information as is necessary to determine the eligibility of a person to possess a pistol or to be issued a concealed pistol license under RCW 9.41.070 or to purchase a pistol under RCW 9.41.090. (2) Mental health information received by: (a) The department of licensing pursuant to RCW 9.41.047 or 9.41.170; (b) an issuing authority pursuant to RCW 9.41.047 or 9.41.070; (c) a chief of police or sheriff pursuant to RCW 9.41.090 or 9.41.170; (d) a court or law enforcement agency pursuant to subsection (1) of this section, shall not be disclosed except as provided in RCW 42.56.240(4). [2005 c 274 § 202; 1994 sp.s. c 7 § 412; 1983 c 232 § 5.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. (2006 Ed.) Firearms and Dangerous Weapons Finding—Intent—Severability—Effective dates—Contingent expiration date—1994 sp.s. c 7: See notes following RCW 43.70.540. Severability—1983 c 232: See note following RCW 9.41.010. 9.41.0975 9.41.0975 Officials and agencies—Immunity, writ of mandamus. (1) The state, local governmental entities, any public or private agency, and the employees of any state or local governmental entity or public or private agency, acting in good faith, are immune from liability: (a) For failure to prevent the sale or transfer of a firearm to a person whose receipt or possession of the firearm is unlawful; (b) For preventing the sale or transfer of a firearm to a person who may lawfully receive or possess a firearm; (c) For issuing a concealed pistol license to a person ineligible for such a license; (d) For failing to issue a concealed pistol license to a person eligible for such a license; (e) For revoking or failing to revoke an issued concealed pistol license; (f) For errors in preparing or transmitting information as part of determining a person’s eligibility to receive or possess a firearm, or eligibility for a concealed pistol license; (g) For issuing a dealer’s license to a person ineligible for such a license; or (h) For failing to issue a dealer’s license to a person eligible for such a license. (2) An application may be made to a court of competent jurisdiction for a writ of mandamus: (a) Directing an issuing agency to issue a concealed pistol license wrongfully refused; (b) Directing a law enforcement agency to approve an application to purchase wrongfully denied; (c) Directing that erroneous information resulting either in the wrongful refusal to issue a concealed pistol license or in the wrongful denial of a purchase application be corrected; or (d) Directing a law enforcement agency to approve a dealer’s license wrongfully denied. The application for the writ may be made in the county in which the application for a concealed pistol license or to purchase a pistol was made, or in Thurston county, at the discretion of the petitioner. A court shall provide an expedited hearing for an application brought under this subsection (2) for a writ of mandamus. A person granted a writ of mandamus under this subsection (2) shall be awarded reasonable attorneys’ fees and costs. [1996 c 295 § 9; 1994 sp.s. c 7 § 413.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.098 9.41.098 Forfeiture of firearms—Disposition—Confiscation. (1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be: (a) Found concealed on a person not authorized by RCW 9.41.060 or 9.41.070 to carry a concealed pistol: PROVIDED, That it is an absolute defense to forfeiture if the person possessed a valid Washington concealed pistol license (2006 Ed.) 9.41.098 within the preceding two years and has not become ineligible for a concealed pistol license in the interim. Before the firearm may be returned, the person must pay the past due renewal fee and the current renewal fee; (b) Commercially sold to any person without an application as required by RCW 9.41.090; (c) In the possession of a person prohibited from possessing the firearm under RCW 9.41.040 or 9.41.045; (d) In the possession or under the control of a person at the time the person committed or was arrested for committing a felony or committing a nonfelony crime in which a firearm was used or displayed; (e) In the possession of a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, as defined in chapter 46.61 RCW; (f) In the possession of a person free on bail or personal recognizance pending trial, appeal, or sentencing for a felony or for a nonfelony crime in which a firearm was used or displayed, except that violations of Title 77 RCW shall not result in forfeiture under this section; (g) In the possession of a person found to have been mentally incompetent while in possession of a firearm when apprehended or who is thereafter committed pursuant to chapter 10.77 or 71.05 RCW; (h) Used or displayed by a person in the violation of a proper written order of a court of general jurisdiction; or (i) Used in the commission of a felony or of a nonfelony crime in which a firearm was used or displayed. (2) Upon order of forfeiture, the court in its discretion may order destruction of any forfeited firearm. A court may temporarily retain forfeited firearms needed for evidence. (a) Except as provided in (b), (c), and (d) of this subsection, firearms that are: (i) Judicially forfeited and no longer needed for evidence; or (ii) forfeited due to a failure to make a claim under RCW 63.32.010 or 63.40.010; may be disposed of in any manner determined by the local legislative authority. Any proceeds of an auction or trade may be retained by the legislative authority. This subsection (2)(a) applies only to firearms that come into the possession of the law enforcement agency after June 30, 1993. By midnight, June 30, 1993, every law enforcement agency shall prepare an inventory, under oath, of every firearm that has been judicially forfeited, has been seized and may be subject to judicial forfeiture, or that has been, or may be, forfeited due to a failure to make a claim under RCW 63.32.010 or 63.40.010. (b) Except as provided in (c) of this subsection, of the inventoried firearms a law enforcement agency shall destroy illegal firearms, may retain a maximum of ten percent of legal forfeited firearms for agency use, and shall either: (i) Comply with the provisions for the auction of firearms in RCW 9.41.098 that were in effect immediately preceding May 7, 1993; or (ii) Trade, auction, or arrange for the auction of, rifles and shotguns. In addition, the law enforcement agency shall either trade, auction, or arrange for the auction of, short firearms, or shall pay a fee of twenty-five dollars to the state treasurer for every short firearm neither auctioned nor traded, to a maximum of fifty thousand dollars. The fees shall be accompanied by an inventory, under oath, of every short fire[Title 9 RCW—page 27] 9.41.100 Title 9 RCW: Crimes and Punishments arm listed in the inventory required by (a) of this subsection, that has been neither traded nor auctioned. The state treasurer shall credit the fees to the firearms range account established in RCW 79A.25.210. All trades or auctions of firearms under this subsection shall be to licensed dealers. Proceeds of any auction less costs, including actual costs of storage and sale, shall be forwarded to the firearms range account established in RCW 79A.25.210. (c) Antique firearms and firearms recognized as curios, relics, and firearms of particular historical significance by the United States treasury department *bureau of alcohol, tobacco, and firearms are exempt from destruction and shall be disposed of by auction or trade to licensed dealers. (d) Firearms in the possession of the Washington state patrol on or after May 7, 1993, that are judicially forfeited and no longer needed for evidence, or forfeited due to a failure to make a claim under RCW 63.35.020, must be disposed of as follows: (i) Firearms illegal for any person to possess must be destroyed; (ii) the Washington state patrol may retain a maximum of ten percent of legal firearms for agency use; and (iii) all other legal firearms must be auctioned or traded to licensed dealers. The Washington state patrol may retain any proceeds of an auction or trade. (3) The court shall order the firearm returned to the owner upon a showing that there is no probable cause to believe a violation of subsection (1) of this section existed or the firearm was stolen from the owner or the owner neither had knowledge of nor consented to the act or omission involving the firearm which resulted in its forfeiture. (4) A law enforcement officer of the state or of any county or municipality may confiscate a firearm found to be in the possession of a person under circumstances specified in subsection (1) of this section. After confiscation, the firearm shall not be surrendered except: (a) To the prosecuting attorney for use in subsequent legal proceedings; (b) for disposition according to an order of a court having jurisdiction as provided in subsection (1) of this section; or (c) to the owner if the proceedings are dismissed or as directed in subsection (3) of this section. [2003 c 39 § 5; 1996 c 295 § 10; 1994 sp.s. c 7 § 414; 1993 c 243 § 1; 1989 c 222 § 8; 1988 c 223 § 2. Prior: 1987 c 506 § 91; 1987 c 373 § 7; 1986 c 153 § 1; 1983 c 232 § 6.] *Reviser’s note: The bureau of alcohol, tobacco and firearms of the department of the treasury was transferred to the department of justice on November 25, 2002. See 6 U.S.C. Sec. 531, Public Law 107-296. The "bureau of alcohol, tobacco and firearms" was renamed the "bureau of alcohol, tobacco, firearms and explosives." Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Effective date—1993 c 243: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [May 7, 1993]." [1993 c 243 § 2.] Severability—1989 c 222: See RCW 63.35.900. Legislative findings and intent—1987 c 506: See note following RCW 77.04.020. Legislative finding, purpose—Severability—1987 c 373: See notes following RCW 46.61.502. Severability—1983 c 232: See note following RCW 9.41.010. [Title 9 RCW—page 28] 9.41.100 9.41.100 Dealer licensing and registration required. Every dealer shall be licensed as provided in RCW 9.41.110 and shall register with the department of revenue as provided in chapters 82.04 and 82.32 RCW. [1994 sp.s. c 7 § 415; 1935 c 172 § 10; RRS § 2516-10.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.110 9.41.110 Dealer’s licenses, by whom granted, conditions, fees—Employees, fingerprinting and background checks—Wholesale sales excepted—Permits prohibited. (1) No dealer may sell or otherwise transfer, or expose for sale or transfer, or have in his or her possession with intent to sell, or otherwise transfer, any pistol without being licensed as provided in this section. (2) No dealer may sell or otherwise transfer, or expose for sale or transfer, or have in his or her possession with intent to sell, or otherwise transfer, any firearm other than a pistol without being licensed as provided in this section. (3) No dealer may sell or otherwise transfer, or expose for sale or transfer, or have in his or her possession with intent to sell, or otherwise transfer, any ammunition without being licensed as provided in this section. (4) The duly constituted licensing authorities of any city, town, or political subdivision of this state shall grant licenses in forms prescribed by the director of licensing effective for not more than one year from the date of issue permitting the licensee to sell firearms within this state subject to the following conditions, for breach of any of which the license shall be forfeited and the licensee subject to punishment as provided in RCW 9.41.010 through 9.41.810. A licensing authority shall forward a copy of each license granted to the department of licensing. The department of licensing shall notify the department of revenue of the name and address of each dealer licensed under this section. (5)(a) A licensing authority shall, within thirty days after the filing of an application of any person for a dealer’s license, determine whether to grant the license. However, if the applicant does not have a valid permanent Washington driver’s license or Washington state identification card, or has not been a resident of the state for the previous consecutive ninety days, the licensing authority shall have up to sixty days to determine whether to issue a license. No person shall qualify for a license under this section without first receiving a federal firearms license and undergoing fingerprinting and a background check. In addition, no person ineligible to possess a firearm under RCW 9.41.040 or ineligible for a concealed pistol license under RCW 9.41.070 shall qualify for a dealer’s license. (b) A dealer shall require every employee who may sell a firearm in the course of his or her employment to undergo fingerprinting and a background check. An employee must be eligible to possess a firearm, and must not have been convicted of a crime that would make the person ineligible for a concealed pistol license, before being permitted to sell a firearm. Every employee shall comply with requirements concerning purchase applications and restrictions on delivery of pistols that are applicable to dealers. (2006 Ed.) Firearms and Dangerous Weapons (6)(a) Except as otherwise provided in (b) of this subsection, the business shall be carried on only in the building designated in the license. For the purpose of this section, advertising firearms for sale shall not be considered the carrying on of business. (b) A dealer may conduct business temporarily at a location other than the building designated in the license, if the temporary location is within Washington state and is the location of a gun show sponsored by a national, state, or local organization, or an affiliate of any such organization, devoted to the collection, competitive use, or other sporting use of firearms in the community. Nothing in this subsection (6)(b) authorizes a dealer to conduct business in or from a motorized or towed vehicle. In conducting business temporarily at a location other than the building designated in the license, the dealer shall comply with all other requirements imposed on dealers by RCW 9.41.090, 9.41.100, and 9.41.110. The license of a dealer who fails to comply with the requirements of RCW 9.41.080 and 9.41.090 and subsection (8) of this section while conducting business at a temporary location shall be revoked, and the dealer shall be permanently ineligible for a dealer’s license. (7) The license or a copy thereof, certified by the issuing authority, shall be displayed on the premises in the area where firearms are sold, or at the temporary location, where it can easily be read. (8)(a) No pistol may be sold: (i) In violation of any provisions of RCW 9.41.010 through 9.41.810; nor (ii) may a pistol be sold under any circumstances unless the purchaser is personally known to the dealer or shall present clear evidence of his or her identity. (b) A dealer who sells or delivers any firearm in violation of RCW 9.41.080 is guilty of a class C felony. In addition to any other penalty provided for by law, the dealer is subject to mandatory permanent revocation of his or her dealer’s license and permanent ineligibility for a dealer’s license. (c) The license fee for pistols shall be one hundred twenty-five dollars. The license fee for firearms other than pistols shall be one hundred twenty-five dollars. The license fee for ammunition shall be one hundred twenty-five dollars. Any dealer who obtains any license under subsection (1), (2), or (3) of this section may also obtain the remaining licenses without payment of any fee. The fees received under this section shall be deposited in the account under RCW 69.50.520. (9)(a) A true record in triplicate shall be made of every pistol sold, in a book kept for the purpose, the form of which may be prescribed by the director of licensing and shall be personally signed by the purchaser and by the person effecting the sale, each in the presence of the other, and shall contain the date of sale, the caliber, make, model and manufacturer’s number of the weapon, the name, address, occupation, and place of birth of the purchaser and a statement signed by the purchaser that he or she is not ineligible under RCW 9.41.040 to possess a firearm. (b) One copy shall within six hours be sent by certified mail to the chief of police of the municipality or the sheriff of the county of which the purchaser is a resident; the duplicate the dealer shall within seven days send to the director of licensing; the triplicate the dealer shall retain for six years. (2006 Ed.) 9.41.129 (10) Subsections (2) through (9) of this section shall not apply to sales at wholesale. (11) The dealer’s licenses authorized to be issued by this section are general licenses covering all sales by the licensee within the effective period of the licenses. The department shall provide a single application form for dealer’s licenses and a single license form which shall indicate the type or types of licenses granted. (12) Except as provided in RCW 9.41.090, every city, town, and political subdivision of this state is prohibited from requiring the purchaser to secure a permit to purchase or from requiring the dealer to secure an individual permit for each sale. [1994 sp.s. c 7 § 416; 1979 c 158 § 2; 1969 ex.s. c 227 § 4; 1963 c 163 § 1; 1961 c 124 § 8; 1935 c 172 § 11; RRS § 2516-11.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.120 9.41.120 Firearms as loan security. No person other than a duly licensed dealer shall make any loan secured by a mortgage, deposit or pledge of a pistol. Any licensed dealer receiving a pistol as a deposit or pledge for a loan shall keep such records and make such reports as are provided by law for pawnbrokers and secondhand dealers in cities of the first class. A duly licensed dealer may mortgage any pistol or stock of pistols but shall not deposit or pledge the same with any other person. [1961 c 124 § 9; 1935 c 172 § 12; RRS § 2516-12.] Pawnbrokers and second-hand dealers: Chapter 19.60 RCW. 9.41.122 9.41.122 Out-of-state purchasing. Residents of Washington may purchase rifles and shotguns in a state other than Washington: PROVIDED, That such residents conform to the applicable provisions of the federal Gun Control Act of 1968, Title IV, Pub. L. 90-351 as administered by the United States secretary of the treasury: AND PROVIDED FURTHER, That such residents are eligible to purchase or possess such weapons in Washington and in the state in which such purchase is made. [1970 ex.s. c 74 § 1. Formerly RCW 19.70.010.] 9.41.124 9.41.124 Purchasing by nonresidents. Residents of a state other than Washington may purchase rifles and shotguns in Washington: PROVIDED, That such residents conform to the applicable provisions of the federal Gun Control Act of 1968, Title IV, Pub. L. 90-351 as administered by the United States secretary of the treasury: AND PROVIDED FURTHER, That such residents are eligible to purchase or possess such weapons in Washington and in the state in which such persons reside. [1970 ex.s. c 74 § 2. Formerly RCW 19.70.020.] 9.41.129 9.41.129 Recordkeeping requirements. The department of licensing may keep copies or records of applications for concealed pistol licenses provided for in RCW 9.41.070, copies or records of applications for alien firearm licenses, copies or records of applications to purchase pistols provided for in RCW 9.41.090, and copies or records of pistol transfers [Title 9 RCW—page 29] 9.41.135 Title 9 RCW: Crimes and Punishments provided for in RCW 9.41.110. The copies and records shall not be disclosed except as provided in RCW 42.56.240(4). [2005 c 274 § 203; 1994 sp.s. c 7 § 417.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Finding—Intent—Severability—Effective dates—Contingent expiration date—1994 sp.s. c 7: See notes following RCW 43.70.540. 9.41.135 9.41.135 Verification of licenses and registration— Notice to federal government. (1) At least once every twelve months, the department of licensing shall obtain a list of dealers licensed under 18 U.S.C. Sec. 923(a) with business premises in the state of Washington from the United States bureau of alcohol, tobacco, and firearms. The department of licensing shall verify that all dealers on the list provided by the bureau of alcohol, tobacco, and firearms are licensed and registered as required by RCW 9.41.100. (2) At least once every twelve months, the department of licensing shall obtain from the department of revenue and the department of revenue shall transmit to the department of licensing a list of dealers registered with the department of revenue, and a list of dealers whose names and addresses were forwarded to the department of revenue by the department of licensing under RCW 9.41.110, who failed to register with the department of revenue as required by RCW 9.41.100. (3) At least once every twelve months, the department of licensing shall notify the bureau of alcohol, tobacco, and firearms of all dealers licensed under 18 U.S.C. Sec. 923(a) with business premises in the state of Washington who have not complied with the licensing or registration requirements of RCW 9.41.100. In notifying the bureau of alcohol, tobacco, and firearms, the department of licensing shall not specify whether a particular dealer has failed to comply with licensing requirements or has failed to comply with registration requirements. [1995 c 318 § 6; 1994 sp.s. c 7 § 418.] Effective date—1995 c 318: See note following RCW 82.04.030. Finding—Intent—Severability—Effective dates—Contingent expiration date—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.140 9.41.140 Alteration of identifying marks—Exceptions. No person may change, alter, remove, or obliterate the name of the maker, model, manufacturer’s number, or other mark of identification on any firearm. Possession of any firearm upon which any such mark shall have been changed, altered, removed, or obliterated, shall be prima facie evidence that the possessor has changed, altered, removed, or obliterated the same. This section shall not apply to replacement barrels in old firearms, which barrels are produced by current manufacturers and therefor do not have the markings on the barrels of the original manufacturers who are no longer in business. This section also shall not apply if the changes do not make the firearm illegal for the person to possess under state or federal law. [1994 sp.s. c 7 § 419; 1961 c 124 § 10; 1935 c 172 § 14; RRS § 2516-14.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. [Title 9 RCW—page 30] 9.41.170 9.41.170 Alien’s license to carry firearms—Exception. (1) It is a class C felony for any person who is not a citizen of the United States to carry or possess any firearm, without first having obtained an alien firearm license from the director of licensing. In order to be eligible for a license, an alien must provide proof that he or she is lawfully present in the United States, which the director of licensing shall verify through the appropriate authorities. Except as provided in subsection (2)(a) of this section, and subject to the additional requirements of subsection (2)(b) of this section, the director of licensing may issue an alien firearm license only upon receiving from the consul domiciled in this state representing the country of the alien, a certified copy of the alien’s criminal history in the alien’s country indicating the alien is not ineligible under RCW 9.41.040 to own, possess, or control a firearm, and the consul’s attestation that the alien is a responsible person. (2)(a) Subject to the additional requirements of (b) of this subsection, the director of licensing may issue an alien firearm license without a certified copy of the alien’s criminal history or the consul’s attestation required by subsection (1) of this section, if the alien has been a resident of this state for at least two years and: (i) The alien is from a country without a consul domiciled within this state, or (ii) the consul has failed to provide, within ninety days after a request by the alien, the criminal history or attestation required by subsection (1) of this section. (b) Before issuing an alien firearm license under subsection (1) of this section or this subsection (2), the director of licensing shall ask the local law enforcement agency of the jurisdiction in which the alien resides to complete a background and fingerprint check to determine the alien’s eligibility under RCW 9.41.040 to own, possess, or control a firearm. The law enforcement agency shall complete a background check within thirty days after the request, unless the alien does not have a valid Washington driver’s license or Washington state identification card. In the latter case, the law enforcement agency shall complete the background check within sixty days after the request. A signed application for an alien firearm license shall constitute a waiver of confidentiality and written request that the department of social and health services, mental health institutions, and other health care facilities release information relevant to the applicant’s eligibility for an alien firearm license to an inquiring law enforcement agency. (3) The alien firearm license shall be valid for five years from the date of issue so long as the alien is lawfully present in the United States. The nonrefundable fee, paid upon application, for the five-year license shall be fifty-five dollars plus additional charges imposed by the Federal Bureau of Investigation that are passed on to the applicant. The fee shall be distributed as follows: (a) Fifteen dollars shall be paid to the department of licensing; (b) Twenty-five dollars shall be paid to the Washington state patrol; and (c) Fifteen dollars shall be paid to the local law enforcement agency conducting the background check. (4) This section shall not apply to Canadian citizens resident in a province which has an enactment or public policy providing substantially similar privilege to residents of the (2006 Ed.) Firearms and Dangerous Weapons state of Washington and who are carrying or possessing weapons for the purpose of using them in the hunting of game while such persons are in the act of hunting, or while on a hunting trip, or while such persons are competing in a bona fide trap or skeet shoot or any other organized contest where rifles, pistols, or shotguns are used. Nothing in this section shall be construed to allow aliens to hunt or fish in this state without first having obtained a regular hunting or fishing license. [1996 c 295 § 11; 1994 c 190 § 1; 1979 c 158 § 3; 1969 ex.s. c 90 § 1; 1953 c 109 § 1. Prior: 1911 c 52 § 1; RRS § 2517-1.] 9.41.185 Coyote getters. The use of "coyote getters" or similar spring-triggered shell devices shall not constitute a violation of any of the laws of the state of Washington when the use of such "coyote getters" is authorized by the state department of agriculture and/or the state department of fish and wildlife in cooperative programs with the United States Fish and Wildlife Service, for the purpose of controlling or eliminating coyotes harmful to livestock and game animals on range land or forest areas. [1999 c 143 § 3; 1988 c 36 § 3; 1965 c 46 § 1.] 9.41.185 9.41.190 Unlawful firearms—Exceptions. (1) It is unlawful for any person to manufacture, own, buy, sell, loan, furnish, transport, or have in possession or under control, any machine gun, short-barreled shotgun, or short-barreled rifle; or any part designed and intended solely and exclusively for use in a machine gun, short-barreled shotgun, or short-barreled rifle, or in converting a weapon into a machine gun, short-barreled shotgun, or short-barreled rifle; or to assemble or repair any machine gun, short-barreled shotgun, or shortbarreled rifle. (2) This section shall not apply to: (a) Any peace officer in the discharge of official duty or traveling to or from official duty, or to any officer or member of the armed forces of the United States or the state of Washington in the discharge of official duty or traveling to or from official duty; or (b) A person, including an employee of such person if the employee has undergone fingerprinting and a background check, who or which is exempt from or licensed under federal law, and engaged in the production, manufacture, repair, or testing of machine guns, short-barreled shotguns, or shortbarreled rifles: (i) To be used or purchased by the armed forces of the United States; (ii) To be used or purchased by federal, state, county, or municipal law enforcement agencies; or (iii) For exportation in compliance with all applicable federal laws and regulations. (3) It shall be an affirmative defense to a prosecution brought under this section that the machine gun, short-barreled shotgun, or short-barreled rifle was acquired prior to July 1, 1994, and is possessed in compliance with federal law. (4) Any person violating this section is guilty of a class C felony. [1994 sp.s. c 7 § 420; 1982 1st ex.s. c 47 § 2; 1933 c 64 § 1; RRS § 2518-1.] 9.41.230 Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Severability—1982 1st ex.s. c 47: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1982 1st ex.s. c 47 § 31.] 9.41.220 9.41.220 Unlawful firearms and parts contraband. All machine guns, short-barreled shotguns, or short-barreled rifles, or any part designed and intended solely and exclusively for use in a machine gun, short-barreled shotgun, or short-barreled rifle, or in converting a weapon into a machine gun, short-barreled shotgun, or short-barreled rifle, illegally held or illegally possessed are hereby declared to be contraband, and it shall be the duty of all peace officers, and/or any officer or member of the armed forces of the United States or the state of Washington, to seize said machine gun, short-barreled shotgun, or short-barreled rifle, or parts thereof, wherever and whenever found. [1994 sp.s. c 7 § 421; 1933 c 64 § 4; RRS § 2518-4.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.190 Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. (2006 Ed.) 9.41.225 9.41.225 Use of machine gun in felony—Penalty. It is unlawful for a person, in the commission or furtherance of a felony other than a violation of RCW 9.41.190, to discharge a machine gun or to menace or threaten with a machine gun, another person. A violation of this section shall be punished as a class A felony under chapter 9A.20 RCW. [1989 c 231 § 3.] Intent—1989 c 231: "The legislature is concerned about the increasing number of drug dealers, gang members, and other dangerous criminals who are increasingly being found in possession of machine guns. The legislature recognizes that possession of machine guns by dangerous criminals represents a serious threat to law enforcement officers and the general public. The use of a machine gun in furtherance of a felony is a particularly heinous crime because of the potential for great harm or death to a large number of people. It is the intent of the legislature to protect the public safety by deterring the illegal use of machine guns in the furtherance of a felony by creating a separate offense with severe penalties for such use of a machine gun." [1989 c 231 § 1.] 9.41.230 9.41.230 Aiming or discharging firearms, dangerous weapons. (1) For conduct not amounting to a violation of chapter 9A.36 RCW, any person who: (a) Aims any firearm, whether loaded or not, at or towards any human being; (b) Willfully discharges any firearm, air gun, or other weapon, or throws any deadly missile in a public place, or in any place where any person might be endangered thereby. A public place shall not include any location at which firearms are authorized to be lawfully discharged; or (c) Except as provided in RCW 9.41.185, sets a so-called trap, spring pistol, rifle, or other dangerous weapon, although no injury results, is guilty of a gross misdemeanor punishable under chapter 9A.20 RCW. (2) If an injury results from a violation of subsection (1) of this section, the person violating subsection (1) of this section shall be subject to the applicable provisions of chapters 9A.32 and 9A.36 RCW. [1994 sp.s. c 7 § 422; 1909 c 249 § 307; 1888 p 100 §§ 2, 3; RRS § 2559.] [Title 9 RCW—page 31] 9.41.240 Title 9 RCW: Crimes and Punishments Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Discharging firearm at railroad rolling stock: RCW 81.60.070. 9.41.240 9.41.240 Possession of pistol by person from eighteen to twenty-one. Unless an exception under RCW 9.41.042, 9.41.050, or 9.41.060 applies, a person at least eighteen years of age, but less than twenty-one years of age, may possess a pistol only: (1) In the person’s place of abode; (2) At the person’s fixed place of business; or (3) On real property under his or her control. [1994 sp.s. c 7 § 423; 1971 c 34 § 1; 1909 c 249 § 308; 1883 p 67 § 1; RRS § 2560.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.250 9.41.250 Dangerous weapons—Penalty. Every person who: (1) Manufactures, sells, or disposes of or possesses any instrument or weapon of the kind usually known as slung shot, sand club, or metal knuckles, or spring blade knife, or any knife the blade of which is automatically released by a spring mechanism or other mechanical device, or any knife having a blade which opens, or falls, or is ejected into position by the force of gravity, or by an outward, downward, or centrifugal thrust or movement; (2) Furtively carries with intent to conceal any dagger, dirk, pistol, or other dangerous weapon; or (3) Uses any contrivance or device for suppressing the noise of any firearm, is guilty of a gross misdemeanor punishable under chapter 9A.20 RCW. [1994 sp.s. c 7 § 424; 1959 c 143 § 1; 1957 c 93 § 1; 1909 c 249 § 265; 1886 p 81 § 1; Code 1881 § 929; RRS § 2517.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.260 9.41.260 Dangerous exhibitions. Every proprietor, lessee, or occupant of any place of amusement, or any plat of ground or building, who allows it to be used for the exhibition of skill in throwing any sharp instrument or in shooting any bow gun or firearm of any description, at or toward any human being, is guilty of a misdemeanor punishable under chapter 9A.20 RCW. [1994 sp.s. c 7 § 425; 1909 c 249 § 283; RRS § 2535.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Fireworks: Chapter 70.77 RCW. 9.41.270 9.41.270 Weapons apparently capable of producing bodily harm—Unlawful carrying or handling—Penalty—Exceptions. (1) It shall be unlawful for any person to [Title 9 RCW—page 32] carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons. (2) Any person violating the provisions of subsection (1) above shall be guilty of a gross misdemeanor. If any person is convicted of a violation of subsection (1) of this section, the person shall lose his or her concealed pistol license, if any. The court shall send notice of the revocation to the department of licensing, and the city, town, or county which issued the license. (3) Subsection (1) of this section shall not apply to or affect the following: (a) Any act committed by a person while in his or her place of abode or fixed place of business; (b) Any person who by virtue of his or her office or public employment is vested by law with a duty to preserve public safety, maintain public order, or to make arrests for offenses, while in the performance of such duty; (c) Any person acting for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person; (d) Any person making or assisting in making a lawful arrest for the commission of a felony; or (e) Any person engaged in military activities sponsored by the federal or state governments. [1994 sp.s. c 7 § 426; 1969 c 8 § 1.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.41.280 9.41.280 Possessing dangerous weapons on school facilities—Penalty—Exceptions. (1) It is unlawful for a person to carry onto, or to possess on, public or private elementary or secondary school premises, school-provided transportation, or areas of facilities while being used exclusively by public or private schools: (a) Any firearm; (b) Any other dangerous weapon as defined in RCW 9.41.250; (c) Any device commonly known as "nun-chu-ka sticks", consisting of two or more lengths of wood, metal, plastic, or similar substance connected with wire, rope, or other means; (d) Any device, commonly known as "throwing stars", which are multi-pointed, metal objects designed to embed upon impact from any aspect; or (e) Any air gun, including any air pistol or air rifle, designed to propel a BB, pellet, or other projectile by the discharge of compressed air, carbon dioxide, or other gas. (2) Any such person violating subsection (1) of this section is guilty of a gross misdemeanor. If any person is convicted of a violation of subsection (1)(a) of this section, the person shall have his or her concealed pistol license, if any revoked for a period of three years. Anyone convicted under this subsection is prohibited from applying for a concealed pistol license for a period of three years. The court shall send (2006 Ed.) Firearms and Dangerous Weapons notice of the revocation to the department of licensing, and the city, town, or county which issued the license. Any violation of subsection (1) of this section by elementary or secondary school students constitutes grounds for expulsion from the state’s public schools in accordance with RCW 28A.600.010. An appropriate school authority shall promptly notify law enforcement and the student’s parent or guardian regarding any allegation or indication of such violation. Upon the arrest of a person at least twelve years of age and not more than twenty-one years of age for violating subsection (1)(a) of this section, the person shall be detained or confined in a juvenile or adult facility for up to seventy-two hours. The person shall not be released within the seventytwo hours until after the person has been examined and evaluated by the *county-designated mental health professional unless the court in its discretion releases the person sooner after a determination regarding probable cause or on probation bond or bail. Within twenty-four hours of the arrest, the arresting law enforcement agency shall refer the person to the *county-designated mental health professional for examination and evaluation under chapter 71.05 or 71.34 RCW and inform a parent or guardian of the person of the arrest, detention, and examination. The *county-designated mental health professional shall examine and evaluate the person subject to the provisions of chapter 71.05 or 71.34 RCW. The examination shall occur at the facility in which the person is detained or confined. If the person has been released on probation, bond, or bail, the examination shall occur wherever is appropriate. The *county-designated mental health professional may determine whether to refer the person to the county-designated chemical dependency specialist for examination and evaluation in accordance with chapter 70.96A RCW. The county-designated chemical dependency specialist shall examine the person subject to the provisions of chapter 70.96A RCW. The examination shall occur at the facility in which the person is detained or confined. If the person has been released on probation, bond, or bail, the examination shall occur wherever is appropriate. Upon completion of any examination by the *countydesignated mental health professional or the county-designated chemical dependency specialist, the results of the examination shall be sent to the court, and the court shall consider those results in making any determination about the person. The *county-designated mental health professional and county-designated chemical dependency specialist shall, to the extent permitted by law, notify a parent or guardian of the person that an examination and evaluation has taken place and the results of the examination. Nothing in this subsection prohibits the delivery of additional, appropriate mental health examinations to the person while the person is detained or confined. If the *county-designated mental health professional determines it is appropriate, the *county-designated mental health professional may refer the person to the local regional support network for follow-up services or the department of social and health services or other community providers for other services to the family and individual. (3) Subsection (1) of this section does not apply to: (2006 Ed.) 9.41.290 (a) Any student or employee of a private military academy when on the property of the academy; (b) Any person engaged in military, law enforcement, or school district security activities; (c) Any person who is involved in a convention, showing, demonstration, lecture, or firearms safety course authorized by school authorities in which the firearms of collectors or instructors are handled or displayed; (d) Any person while the person is participating in a firearms or air gun competition approved by the school or school district; (e) Any person in possession of a pistol who has been issued a license under RCW 9.41.070, or is exempt from the licensing requirement by RCW 9.41.060, while picking up or dropping off a student; (f) Any nonstudent at least eighteen years of age legally in possession of a firearm or dangerous weapon that is secured within an attended vehicle or concealed from view within a locked unattended vehicle while conducting legitimate business at the school; (g) Any nonstudent at least eighteen years of age who is in lawful possession of an unloaded firearm, secured in a vehicle while conducting legitimate business at the school; or (h) Any law enforcement officer of the federal, state, or local government agency. (4) Subsections (1)(c) and (d) of this section do not apply to any person who possesses nun-chu-ka sticks, throwing stars, or other dangerous weapons to be used in martial arts classes authorized to be conducted on the school premises. (5) Except as provided in subsection (3)(b), (c), (f), and (h) of this section, firearms are not permitted in a public or private school building. (6) "GUN-FREE ZONE" signs shall be posted around school facilities giving warning of the prohibition of the possession of firearms on school grounds. [1999 c 167 § 1; 1996 c 295 § 13; 1995 c 87 § 1; 1994 sp.s. c 7 § 427; 1993 c 347 § 1; 1989 c 219 § 1; 1982 1st ex.s. c 47 § 4.] *Reviser’s note: The term "county designated mental health professional" as defined in RCW 71.05.020 was changed to "designated mental health professional" by 2005 c 504 § 104. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9.41.290 9.41.290 State preemption. The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the [Title 9 RCW—page 33] 9.41.300 Title 9 RCW: Crimes and Punishments code, charter, or home rule status of such city, town, county, or municipality. [1994 sp.s. c 7 § 428; 1985 c 428 § 1; 1983 c 232 § 12.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Severability—1985 c 428: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 428 § 6.] Application—1983 c 232 § 12: "Section 12 of this act shall not apply to any offense committed prior to July 24, 1983." [1983 c 232 § 13.] Severability—1983 c 232: See note following RCW 9.41.010. 9.41.300 9.41.300 Weapons prohibited in certain places— Local laws and ordinances—Exceptions—Penalty. (1) It is unlawful for any person to enter the following places when he or she knowingly possesses or knowingly has under his or her control a weapon: (a) The restricted access areas of a jail, or of a law enforcement facility, or any place used for the confinement of a person (i) arrested for, charged with, or convicted of an offense, (ii) held for extradition or as a material witness, or (iii) otherwise confined pursuant to an order of a court, except an order under chapter 13.32A or 13.34 RCW. Restricted access areas do not include common areas of egress or ingress open to the general public; (b) Those areas in any building which are used in connection with court proceedings, including courtrooms, jury rooms, judge’s chambers, offices and areas used to conduct court business, waiting areas, and corridors adjacent to areas used in connection with court proceedings. The restricted areas do not include common areas of ingress and egress to the building that is used in connection with court proceedings, when it is possible to protect court areas without restricting ingress and egress to the building. The restricted areas shall be the minimum necessary to fulfill the objective of this subsection (1)(b). In addition, the local legislative authority shall provide either a stationary locked box sufficient in size for pistols and key to a weapon owner for weapon storage, or shall designate an official to receive weapons for safekeeping, during the owner’s visit to restricted areas of the building. The locked box or designated official shall be located within the same building used in connection with court proceedings. The local legislative authority shall be liable for any negligence causing damage to or loss of a weapon either placed in a locked box or left with an official during the owner’s visit to restricted areas of the building. The local judicial authority shall designate and clearly mark those areas where weapons are prohibited, and shall post notices at each entrance to the building of the prohibition against weapons in the restricted areas; (c) The restricted access areas of a public mental health facility certified by the department of social and health services for inpatient hospital care and state institutions for the care of the mentally ill, excluding those facilities solely for evaluation and treatment. Restricted access areas do not include common areas of egress and ingress open to the general public; [Title 9 RCW—page 34] (d) That portion of an establishment classified by the state liquor control board as off-limits to persons under twenty-one years of age; or (e) The restricted access areas of a commercial service airport designated in the airport security plan approved by the federal transportation security administration, including passenger screening checkpoints at or beyond the point at which a passenger initiates the screening process. These areas do not include airport drives, general parking areas and walkways, and shops and areas of the terminal that are outside the screening checkpoints and that are normally open to unscreened passengers or visitors to the airport. Any restricted access area shall be clearly indicated by prominent signs indicating that firearms and other weapons are prohibited in the area. (2) Cities, towns, counties, and other municipalities may enact laws and ordinances: (a) Restricting the discharge of firearms in any portion of their respective jurisdictions where there is a reasonable likelihood that humans, domestic animals, or property will be jeopardized. Such laws and ordinances shall not abridge the right of the individual guaranteed by Article I, section 24 of the state Constitution to bear arms in defense of self or others; and (b) Restricting the possession of firearms in any stadium or convention center, operated by a city, town, county, or other municipality, except that such restrictions shall not apply to: (i) Any pistol in the possession of a person licensed under RCW 9.41.070 or exempt from the licensing requirement by RCW 9.41.060; or (ii) Any showing, demonstration, or lecture involving the exhibition of firearms. (3)(a) Cities, towns, and counties may enact ordinances restricting the areas in their respective jurisdictions in which firearms may be sold, but, except as provided in (b) of this subsection, a business selling firearms may not be treated more restrictively than other businesses located within the same zone. An ordinance requiring the cessation of business within a zone shall not have a shorter grandfather period for businesses selling firearms than for any other businesses within the zone. (b) Cities, towns, and counties may restrict the location of a business selling firearms to not less than five hundred feet from primary or secondary school grounds, if the business has a storefront, has hours during which it is open for business, and posts advertisements or signs observable to passersby that firearms are available for sale. A business selling firearms that exists as of the date a restriction is enacted under this subsection (3)(b) shall be grandfathered according to existing law. (4) Violations of local ordinances adopted under subsection (2) of this section must have the same penalty as provided for by state law. (5) The perimeter of the premises of any specific location covered by subsection (1) of this section shall be posted at reasonable intervals to alert the public as to the existence of any law restricting the possession of firearms on the premises. (6) Subsection (1) of this section does not apply to: (2006 Ed.) Firearms and Dangerous Weapons (a) A person engaged in military activities sponsored by the federal or state governments, while engaged in official duties; (b) Law enforcement personnel, except that subsection (1)(b) of this section does apply to a law enforcement officer who is present at a courthouse building as a party to an action under chapter 10.14, 10.99, or 26.50 RCW, or an action under Title 26 RCW where any party has alleged the existence of domestic violence as defined in RCW 26.50.010; or (c) Security personnel while engaged in official duties. (7) Subsection (1)(a) of this section does not apply to a person licensed pursuant to RCW 9.41.070 who, upon entering the place or facility, directly and promptly proceeds to the administrator of the facility or the administrator’s designee and obtains written permission to possess the firearm while on the premises or checks his or her firearm. The person may reclaim the firearms upon leaving but must immediately and directly depart from the place or facility. (8) Subsection (1)(c) of this section does not apply to any administrator or employee of the facility or to any person who, upon entering the place or facility, directly and promptly proceeds to the administrator of the facility or the administrator’s designee and obtains written permission to possess the firearm while on the premises. (9) Subsection (1)(d) of this section does not apply to the proprietor of the premises or his or her employees while engaged in their employment. (10) Any person violating subsection (1) of this section is guilty of a gross misdemeanor. (11) "Weapon" as used in this section means any firearm, explosive as defined in RCW 70.74.010, or instrument or weapon listed in RCW 9.41.250. [2004 c 116 § 1; 2004 c 16 § 1; 1994 sp.s. c 7 § 429; 1993 c 396 § 1; 1985 c 428 § 2.] Reviser’s note: This section was amended by 2004 c 16 § 1 and by 2004 c 116 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Severability—1985 c 428: See note following RCW 9.41.290. 9.41.310 9.41.310 Information pamphlet. After a public hearing, the department of fish and wildlife shall publish a pamphlet on firearms safety and the legal limits of the use of firearms. The pamphlet shall include current information on firearms laws and regulations and state preemption of local firearms laws. This pamphlet may be used in the department’s hunter safety education program and shall be provided to the department of licensing for distribution to firearms dealers and persons authorized to issue concealed pistol licenses. The department of fish and wildlife shall reimburse the department of licensing for costs associated with distribution of the pamphlet. [1994 c 264 § 2; 1988 c 36 § 4; 1985 c 428 § 5.] Severability—1985 c 428: See note following RCW 9.41.290. 9.41.320 9.41.320 Fireworks. Nothing in this chapter shall prohibit the possession, sale, or use of fireworks when pos(2006 Ed.) 9.41.800 sessed, sold, or used in compliance with chapter 70.77 RCW. [1994 c 133 § 16.] Severability—Effective date—1994 c 133: See notes following RCW 70.77.146. 9.41.800 9.41.800 Surrender of weapons or licenses—Prohibition on future possession or licensing. (1) Any court when entering an order authorized under RCW 9A.46.080, 10.14.080, 10.99.040, 10.99.045, 26.09.050, 26.09.060, 26.10.040, 26.10.115, 26.26.130, 26.50.060, 26.50.070, or 26.26.590 shall, upon a showing by clear and convincing evidence, that a party has: Used, displayed, or threatened to use a firearm or other dangerous weapon in a felony, or previously committed any offense that makes him or her ineligible to possess a firearm under the provisions of RCW 9.41.040: (a) Require the party to surrender any firearm or other dangerous weapon; (b) Require the party to surrender any concealed pistol license issued under RCW 9.41.070; (c) Prohibit the party from obtaining or possessing a firearm or other dangerous weapon; (d) Prohibit the party from obtaining or possessing a concealed pistol license. (2) Any court when entering an order authorized under RCW 9A.46.080, 10.14.080, 10.99.040, 10.99.045, 26.09.050, 26.09.060, 26.10.040, 26.10.115, 26.26.130, 26.50.060, 26.50.070, or 26.26.590 may, upon a showing by a preponderance of the evidence but not by clear and convincing evidence, that a party has: Used, displayed, or threatened to use a firearm or other dangerous weapon in a felony, or previously committed any offense that makes him or her ineligible to possess a pistol under the provisions of RCW 9.41.040: (a) Require the party to surrender any firearm or other dangerous weapon; (b) Require the party to surrender a concealed pistol license issued under RCW 9.41.070; (c) Prohibit the party from obtaining or possessing a firearm or other dangerous weapon; (d) Prohibit the party from obtaining or possessing a concealed pistol license. (3) The court may order temporary surrender of a firearm or other dangerous weapon without notice to the other party if it finds, on the basis of the moving affidavit or other evidence, that irreparable injury could result if an order is not issued until the time for response has elapsed. (4) In addition to the provisions of subsections (1), (2), and (3) of this section, the court may enter an order requiring a party to comply with the provisions in subsection (1) of this section if it finds that the possession of a firearm or other dangerous weapon by any party presents a serious and imminent threat to public health or safety, or to the health or safety of any individual. (5) The requirements of subsections (1), (2), and (4) of this section may be for a period of time less than the duration of the order. (6) The court may require the party to surrender any firearm or other dangerous weapon in his or her immediate possession or control or subject to his or her immediate possession or control to the sheriff of the county having jurisdiction of the proceeding, the chief of police of the municipality hav[Title 9 RCW—page 35] 9.41.810 Title 9 RCW: Crimes and Punishments ing jurisdiction, or to the restrained or enjoined party’s counsel or to any person designated by the court. [2002 c 302 § 704; 1996 c 295 § 14; 1994 sp.s. c 7 § 430.] Application—Construction—Short title—Severability—2002 c 302: See RCW 26.26.903, 26.26.911, and 26.26.912. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9.45.126 9.45.160 9.45.170 9.45.210 9.45.220 9.45.260 9.45.270 Measurement of commodities—Inducing violations—Penalty. Fraud in liquor warehouse receipts. Penalty. Altering sample or certificate of assay. Making false sample or assay of ore. Fire protection sprinkler system contractors—Wrongful acts. Fraudulent filing of vehicle report of sale. Bank or trust company falsification or destruction of records: RCW 30.12.090, 30.12.100. preferential transfers: RCW 30.44.110. receiving deposits when insolvent: RCW 30.44.120. using name of unlawfully: RCW 30.04.020. 9.41.810 Penalty. Any violation of any provision of this chapter, except as otherwise provided, shall be a misdemeanor and punishable accordingly. [1984 c 258 § 312; 1983 c 232 § 11; 1983 c 3 § 7; 1961 c 124 § 12; 1935 c 172 § 16; RRS § 2516-16. Formerly RCW 9.41.160.] "Bushing" by motor vehicle dealers: RCW 46.70.180(4). Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Election fraud: Chapter 29A.84 RCW. Employment agent, fraud: RCW 49.44.050. 9.41.810 Cemeteries, representing fund as perpetual: RCW 68.40.085. Cigarette tax fraud: RCW 82.24.110. Domestic insurers, illegal or corrupt practices: RCW 48.06.190, 48.07.060, 48.08.040. Intent—1984 c 258: See note following RCW 3.46.120. Falsification of books of credit union: Chapter 31.12 RCW. Severability—1983 c 232: See note following RCW 9.41.010. Fish and wildlife, false or misleading information: RCW 77.15.270. Food, drugs, and cosmetics: RCW 69.04.040, 69.04.060, 69.04.070. Chapter 9.44 Chapter 9.44 RCW PETITION MISCONDUCT Fraud by engraver of public bonds: RCW 39.44.101. Fraudulent conveyances: Chapter 19.40 RCW. Sections 9.44.080 Fraud: Chapter 9A.60 RCW. Misconduct in signing a petition. 9.44.080 9.44.080 Misconduct in signing a petition. In a situation not covered by *RCW 29.79.440, 29.79.490, 29.82.170, or 29.82.220, every person who shall willfully sign the name of another person or of a fictitious person, or for any consideration, gratuity or reward shall sign his own name to or withdraw his name from any referendum or other petition circulated in pursuance of any law of this state or any municipal ordinance; or in signing his name to such petition shall willfully subscribe to any false statement concerning his age, citizenship, residence or other qualifications to sign the same; or knowing that any such petition contains any such false or wrongful signature or statement, shall file the same, or put the same off with intent that it should be filed, as a true and genuine petition, shall be guilty of a misdemeanor. [1999 c 143 § 4; 1909 c 249 § 337; RRS § 2589.] *Reviser’s note: RCW 29.79.440, 29.79.490, 29.82.170, and 29.82.220 were recodified as RCW 29A.84.230, 29A.84.250, 29A.84.240, and 29A.84.220, respectively, pursuant to 2003 c 111 § 2401, effective July 1, 2004. Insurance agent, etc., appropriating funds, etc.: RCW 48.17.480. fraud and unfair practices: Chapter 48.30 RCW. Insured property, fraudulent injury or destruction: RCW 48.30.220. Intent to defraud: RCW 10.58.040. Land registration fraud: RCW 65.12.750. Motor vehicle certificates of ownership, falsifying: RCW 46.12.210, 46.12.220. dealers: RCW 46.70.180. fuel tax fraud: RCW 82.36.330, 82.36.380 through 82.36.400. Mutual savings banks falsification of books, etc.: RCW 32.04.100. transfers due to insolvency: RCW 32.24.080. Obtaining employment by false recommendation: RCW 49.44.040. Ownership of property, proof of: RCW 10.58.060. Public assistance fraud: RCW 74.08.055, 74.08.331. Savings and loan associations falsification of books, etc.: RCW 33.36.040. illegal loans and purchasing at discount by employees: RCW 33.36.010, 33.36.020. preferential transfers of property: RCW 33.36.030. Sporting contest fraud: RCW 67.24.010. Forgery: RCW 9A.60.020. State employees’ retirement, falsification of statements, etc.: RCW 41.40.055. Initiative and referendum petition forgery: RCW 29A.84.230, 29A.84.250. State patrol retirement fund, falsifications: RCW 43.43.320. Recall petition forgery: RCW 29A.84.240, 29A.84.220. Tax assessed property, removal to avoid payment: RCW 84.56.120, 84.56.200. Chapter 9.45 Chapter 9.45 RCW FRAUDS AND SWINDLES Sections 9.45.020 9.45.060 9.45.070 9.45.080 9.45.090 9.45.100 9.45.122 9.45.124 Substitution of child. Encumbered, leased, or rented personal property—Construction. Mock auctions. Fraudulent removal of property. Knowingly receiving fraudulent conveyance. Fraud in assignment for benefit of creditors. Measurement of commodities—Public policy. Measurement of commodities—Measuring inaccurately— Altering measuring devices—Penalty. [Title 9 RCW—page 36] Teachers’ retirement, falsification of statements, etc.: RCW 41.32.055. Wages, rebating, etc., by employers: RCW 49.52.050, 49.52.090. Warehouseman or common carrier issuing false documents: Chapter 22.32 RCW. 9.45.020 9.45.020 Substitution of child. Every person to whom a child has been confided for nursing, education or any other purpose, who, with intent to deceive a person, guardian or relative of such child, shall substitute or produce to such parent, guardian or relative, another child or person in the place of the child so confided, is guilty of a class B felony and shall be punished by imprisonment in a state correctional facility (2006 Ed.) Frauds and Swindles for not more than ten years. [2003 c 53 § 29; 1992 c 7 § 9; 1909 c 249 § 123; RRS § 2375.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.45.060 9.45.060 Encumbered, leased, or rented personal property—Construction. Every person being in possession thereof, who shall sell, remove, conceal, convert to his own use, or destroy or connive at or consent to the sale, removal, conversion, concealment or destruction of any personal property or any part thereof, upon which a security agreement, mortgage, lien, conditional sales contract, rental agreement, or lease exists, with intent to hinder, delay, or defraud the secured party of such security agreement, or the holder of such mortgage, lien, or conditional sales contract or the lessor under such lease or rentor of [under] such rental agreement, or any assignee of such security agreement, mortgage, lien, conditional sales contract, rental agreement or lease shall be guilty of a gross misdemeanor. In any prosecution under this section any allegation containing a description of the security agreement, mortgage, lien, conditional sales contract, rental agreement, or lease by reference to the date thereof and names of the parties thereto, shall be sufficiently definite and certain. The provisions of this section shall be cumulative and nonexclusive and shall not affect any other criminal provision. [1971 c 61 § 1; 1965 ex.s. c 109 § 1; 1909 c 249 § 377; RRS § 2629.] Destruction or removal of fixtures, etc., from mortgaged real property: RCW 61.12.030. Larceny, sale of mortgaged property: Chapter 9A.56 RCW. 9.45.070 9.45.070 Mock auctions. Every person who shall obtain any money or property from another or shall obtain the signature of another to any writing the false making of which would be forgery, by color or aid of any false or fraudulent sale of property or pretended sale of property by auction, or by any of the practices known as mock auction, shall be punished by imprisonment in a state correctional facility for not more than five years or in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both fine and imprisonment. Every person who shall buy or sell or pretend to buy or sell any goods, wares or merchandise, exposed to sale by auction, if an actual sale, purchase and change of ownership therein does not thereupon take place, shall be guilty of a misdemeanor. [1992 c 7 § 10; 1909 c 249 § 378; RRS § 2630.] Auctioneering without license: RCW 36.71.070. Auctioneers: Chapter 18.11 RCW. 9.45.080 9.45.080 Fraudulent removal of property. Every person who, with intent to defraud a prior or subsequent purchaser thereof, or prevent any of his property being made liable for the payment of any of his debts, or levied upon by an execution or warrant of attachment, shall remove any of his property, or secrete, assign, convey or otherwise dispose of the same, or with intent to defraud a creditor shall remove, secrete, assign, convey or otherwise dispose of any of his books or accounts, vouchers or writings in any way relating to his business affairs, or destroy, obliterate, alter or erase any (2006 Ed.) 9.45.124 of such books of account, accounts, vouchers or writing or any entry, memorandum or minute therein contained, shall be guilty of a gross misdemeanor. [1909 c 249 § 379; RRS § 2631.] 9.45.090 Knowingly receiving fraudulent conveyance. Every person who shall receive any property or conveyance thereof from another, knowing that the same is transferred or delivered to him in violation of, or with the intent to violate RCW 9.45.080, shall be guilty of a misdemeanor. [1909 c 249 § 380; RRS § 2632.] 9.45.090 9.45.100 9.45.100 Fraud in assignment for benefit of creditors. Every person who, having made, or being about to make, a general assignment of his property to pay his debts, shall by color or aid of any false or fraudulent representation, pretense, token or writing induce any creditor to participate in the benefits of such assignments, or to give any release or discharge of his claim or any part thereof, or shall connive at the payment in whole or in part of any false, fraudulent or fictitious claim, shall be guilty of a gross misdemeanor. [1909 c 249 § 381; RRS § 2633.] Assignment for benefit of creditors: Chapter 7.08 RCW. Banks and trust companies, preferential transfers: RCW 30.44.110. Mutual savings banks, transfer of assets due to insolvency: RCW 32.24.080. 9.45.122 Measurement of commodities—Public policy. Because of the widespread importance to the marketing of goods, raw materials, and agricultural products such as, but not limited to, grains, timber, logs, wood chips, scrap metal, oil, gas, petroleum products, coal, fish and other commodities, that qualitative and quantitative measurements of such goods, materials and products be accurately and honestly made, it is declared to be the public policy of this state that certain conduct with respect to said measurement be declared unlawful. [1967 c 200 § 1.] 9.45.122 Severability—1967 c 200: "If any provision of this act, or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable." [1967 c 200 § 13.] Weights and measures: Chapter 19.94 RCW. 9.45.124 9.45.124 Measurement of commodities—Measuring inaccurately—Altering measuring devices—Penalty. Every person, corporation, or association whether profit or nonprofit, who shall ask or receive, or conspire to ask or receive, directly or indirectly, any compensation, gratuity, or reward or any promise thereof, on any agreement or understanding that he or she shall (1) intentionally make an inaccurate visual or mechanical measurement or an intentionally inaccurate recording of any visual or mechanical measurement of goods, raw materials, and agricultural products (whether severed or unsevered from the land) which he or she has or will have the duty to measure, or shall (2) intentionally change, alter or affect, for the purpose of making an inaccurate measurement, any equipment or other device which is designed to measure, either qualitatively or quantitatively, such goods, raw materials, and agricultural products, or shall intentionally alter the recordation of such measurements, is guilty of a class B felony, punishable by imprisonment in a [Title 9 RCW—page 37] 9.45.126 Title 9 RCW: Crimes and Punishments state correctional facility for not more than ten years, or by a fine of not more than five thousand dollars, or both. [2003 c 53 § 30; 1992 c 7 § 11; 1967 c 200 § 2.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.45.126 Measurement of commodities—Inducing violations—Penalty. Every person who shall give, offer or promise, or conspire to give, offer or promise, directly or indirectly, any compensation, gratuity or reward to any person, corporation, independent contractor, or agent, employee or servant thereof with intent to violate RCW 9.45.124, is guilty of a class B felony, punishable by imprisonment in a state correctional facility for not more than ten years, or by a fine of not more than five thousand dollars, or both. [2003 c 53 § 31; 1992 c 7 § 12; 1967 c 200 § 3.] year nor more than five years, or by a fine of not less than fifty nor more than one thousand dollars, or by both such fine and imprisonment. [2003 c 53 § 33; 1890 p 99 § 3; RRS § 2713.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.45.126 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.45.160 Fraud in liquor warehouse receipts. It shall be unlawful for any person, firm, association or corporation to make, utter, circulate, sell or offer for sale any certificate of any warehouse, distillery or depository for intoxicating liquors unless the identical liquor mentioned in such certificate is in the possession of the warehouse, distillery or depository mentioned in such certificate fully paid for, so that the owners and holder of such certificate will be entitled to obtain such intoxicating liquors without the payment of any additional sum except the tax of the government and the tax of the state, county and city in which such warehouse, distillery or depository may be located, and any storage charges. [1909 c 202 § 1. No RRS.] 9.45.160 9.45.170 Penalty. Any person violating any of the provisions of RCW 9.45.160, shall, upon conviction thereof, be punished by imprisonment in the penitentiary for not more than five years nor less than one year, or imprisonment in the county jail for any length of time not exceeding one year. [1909 c 202 § 2. No RRS.] 9.45.170 9.45.210 Altering sample or certificate of assay. Any person who shall interfere with or in any manner change samples of ores or bullion produced for sampling, or change or alter samples or packages of ores or bullion which have been purchased for assaying, or who shall change or alter any certificate of sampling or assaying, with intent to cheat, wrong or defraud, is guilty of a class C felony, punishable by imprisonment in a state correctional facility for not less than one year nor more than five years, or by a fine of not less than fifty nor more than one thousand dollars, or by both such fine and imprisonment. [2003 c 53 § 32; 1890 p 99 § 2; RRS § 2712.] 9.45.210 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.45.220 Making false sample or assay of ore. Any person who shall, with intent to cheat, wrong or defraud, make or publish a false sample of ore or bullion, or who shall make or publish or cause to be published a false assay of ore or bullion, is guilty of a class C felony, punishable by imprisonment in a state correctional facility for not less than one 9.45.220 [Title 9 RCW—page 38] 9.45.260 Fire protection sprinkler system contractors—Wrongful acts. Any fire protection sprinkler system contractor, defined under RCW 18.160.010, who willfully and maliciously constructs, installs, or maintains a fire protection sprinkler system in any structure so as to threaten the safety of any occupant or user of the structure in the event of a fire, is guilty of a class C felony. This section may not be construed to create any criminal liability for a prime contractor or an owner of a structure unless it is proved that the prime contractor or owner had actual knowledge of an illegal construction, installation, or maintenance of a fire protection sprinkler system by a fire protection sprinkler system contractor. [1992 c 116 § 1.] 9.45.260 Fire protection sprinkler system contractors, licensing and regulation: Chapter 18.160 RCW. 9.45.270 Fraudulent filing of vehicle report of sale. Every person who files a vehicle report of sale without the knowledge of the transferee shall be guilty of fraudulent filing of vehicle report of sale and shall be punished as follows: (1) Where the victim incurred damages in an amount less than two hundred fifty dollars, the defendant is guilty of a gross misdemeanor. (2) Where the victim incurred damages in an amount exceeding two hundred fifty dollars, the defendant is guilty of a class C felony. (3) Where the victim incurred damages in an amount exceeding one thousand five hundred dollars, the defendant is guilty of a class B felony. [2006 c 291 § 1.] 9.45.270 Chapter 9.46 Chapter 9.46 RCW GAMBLING—1973 ACT Sections 9.46.010 9.46.0201 9.46.0205 9.46.0209 9.46.0213 9.46.0217 9.46.0221 9.46.0225 9.46.0229 9.46.0233 9.46.0237 9.46.0241 9.46.0245 9.46.0249 9.46.0253 9.46.0257 9.46.0261 9.46.0265 9.46.0269 9.46.0273 9.46.0277 9.46.0282 9.46.0285 9.46.0289 9.46.0305 9.46.0311 Legislative declaration. "Amusement game." "Bingo." "Bona fide charitable or nonprofit organization." "Bookmaking." "Commercial stimulant." "Commission." "Contest of chance." "Fishing derby." "Fund raising event." "Gambling." "Gambling device." "Gambling information." "Gambling premises." "Gambling record." "Lottery." "Member," "bona fide member." "Player." "Professional gambling." "Punch boards," "pull-tabs." "Raffle." "Social card game." "Thing of value." "Whoever," "person." Dice or coin contests for music, food, or beverage payment. Charitable, nonprofit organizations—Authorized gambling activities. (2006 Ed.) Gambling—1973 Act 9.46.0315 9.46.0321 9.46.0325 9.46.0331 9.46.0335 9.46.0341 9.46.0345 9.46.0351 9.46.0356 9.46.0361 9.46.039 9.46.040 9.46.050 9.46.060 9.46.070 9.46.0701 9.46.071 9.46.072 9.46.075 9.46.077 9.46.080 9.46.085 9.46.090 9.46.095 9.46.100 9.46.110 9.46.113 9.46.116 9.46.120 9.46.130 9.46.140 9.46.150 9.46.153 9.46.155 9.46.158 9.46.160 9.46.170 9.46.180 9.46.185 9.46.190 9.46.192 9.46.193 9.46.195 9.46.196 9.46.1961 9.46.1962 9.46.198 9.46.200 9.46.210 9.46.215 9.46.217 9.46.220 9.46.221 9.46.222 9.46.225 9.46.231 9.46.235 9.46.240 (2006 Ed.) Raffles—No license required, when. Bingo, raffles, amusement games—No license required, when. Social card games, punch boards, pull-tabs authorized. Amusement games authorized—Minimum rules. Sports pools authorized. Golfing sweepstakes authorized. Bowling sweepstakes authorized. Social card, dice games—Use of premises of charitable, nonprofit organizations. Promotional contests of chance authorized. Turkey shoots authorized. Greyhound racing prohibited. Gambling commission—Members—Appointment—Vacancies, filling. Gambling commission—Chairman—Quorum—Meetings— Compensation and travel expenses—Bond—Removal. Gambling commission—Counsel—Audits—Payment for. Gambling commission—Powers and duties. Charitable or nonprofit organizations—Sharing facilities. Information for pathological gamblers—Fee increases. Pathological gambling behavior—Warning. Gambling commission—Denial, suspension, or revocation of license, permit—Other provisions not applicable. Gambling commission—Vacation of certain suspensions upon payment of monetary penalty. Gambling commission—Administrator—Staff—Rules and regulations—Service contracts. Gambling commission—Members and employees—Activities prohibited. Gambling commission—Reports. Gambling commission—Proceedings against, jurisdiction— Immunity from liability. Gambling revolving fund—Created—Receipts—Disbursements—Use. Taxation of gambling activities—Limitations—Restrictions on punch boards and pull-tabs—Lien. Taxation of gambling activities—Disbursement. Fees on pull-tab and punchboard sales. Restrictions on management or operation personnel—Restriction on leased premises. Inspection and audit of premises, paraphernalia, books, and records—Reports for the commission. Gambling commission—Investigations—Inspections—Hearing and subpoena power—Administrative law judges. Injunctions—Voiding of licenses, permits, or certificates. Applicants and licensees—Responsibilities and duties— Waiver of liability—Investigation statement as privileged. Applicants and licensees—Bribes to public officials, employees, agents—Penalty. Applicants, licensees, operators—Commission approval for hiring certain persons. Conducting activity without license. False or misleading entries or statements, refusal to produce records. Causing person to violate chapter. Causing person to violate rule or regulation. Violations relating to fraud or deceit. Cities and towns—Ordinance enacting certain sections of chapter—Limitations—Penalties. Cities and towns—Ordinance adopting certain sections of chapter—Jurisdiction of courts. Obstruction of public servant—Penalty. Cheating—Defined. Cheating in the first degree. Cheating in the second degree. Working in gambling activity without license as violation— Penalty. Action for money damages due to violations—Interest— Attorneys’ fees—Evidence for exoneration. Enforcement—Commission as a law enforcement agency. Ownership or interest in gambling device—Penalty—Exceptions. Gambling records—Penalty—Exceptions. Professional gambling in the first degree. Professional gambling in the second degree. Professional gambling in the third degree. Professional gambling—Penalties not applicable to authorized activities. Gambling devices, real and personal property—Seizure and forfeiture. Slot machines, antique—Defenses concerning—Presumption created. Gambling information, transmitting or receiving. 9.46.250 9.46.260 9.46.270 9.46.285 9.46.291 9.46.293 9.46.295 9.46.300 9.46.310 9.46.350 9.46.360 9.46.36001 9.46.400 9.46.410 9.46.420 9.46.900 9.46.901 9.46.902 9.46.903 9.46.010 Gambling property or premises—Common nuisances, abatement—Termination of interests, licenses—Enforcement. Proof of possession as evidence of knowledge of its character. Taxing authority, exclusive. Licensing and regulation authority, exclusive. State lottery exemption. Fishing derbies exempted. Licenses, scope of authority—Exception. Licenses and reports—Public inspection—Exceptions and requirements—Charges. Licenses for manufacture, sale, distribution, or supply of gambling devices. Civil action to collect fees, interest, penalties, or tax—Writ of attachment—Records as evidence. Indian tribes—Compact negotiation process. Tribal actions—Federal jurisdiction. Wildlife raffle. Use of public assistance electronic benefit cards prohibited— Licensee to report violations. RCW 9.46.410 to be negotiated with Indian tribes. Severability—1973 1st ex.s. c 218. Intent—1987 c 4. Construction—1987 c 4. Intent—1994 c 218. State lottery commission—Sale of tickets or shares—Other law inapplicable: RCW 67.70.210. 9.46.010 9.46.010 Legislative declaration. The public policy of the state of Washington on gambling is to keep the criminal element out of gambling and to promote the social welfare of the people by limiting the nature and scope of gambling activities and by strict regulation and control. It is hereby declared to be the policy of the legislature, recognizing the close relationship between professional gambling and organized crime, to restrain all persons from seeking profit from professional gambling activities in this state; to restrain all persons from patronizing such professional gambling activities; to safeguard the public against the evils induced by common gamblers and common gambling houses engaged in professional gambling; and at the same time, both to preserve the freedom of the press and to avoid restricting participation by individuals in activities and social pastimes, which activities and social pastimes are more for amusement rather than for profit, do not maliciously affect the public, and do not breach the peace. The legislature further declares that the raising of funds for the promotion of bona fide charitable or nonprofit organizations is in the public interest as is participation in such activities and social pastimes as are hereinafter in this chapter authorized. The legislature further declares that the conducting of bingo, raffles, and amusement games and the operation of punch boards, pull-tabs, card games and other social pastimes, when conducted pursuant to the provisions of this chapter and any rules and regulations adopted pursuant thereto, are hereby authorized, as are only such lotteries for which no valuable consideration has been paid or agreed to be paid as hereinafter in this chapter provided. The legislature further declares that fishing derbies shall not constitute any form of gambling and shall not be considered as a lottery, a raffle, or an amusement game and shall not be subject to the provisions of this chapter or any rules and regulations adopted hereunder. The legislature further declares that raffles authorized by the fish and wildlife commission involving hunting big game animals or wild turkeys shall not be subject to the provisions [Title 9 RCW—page 39] 9.46.0201 Title 9 RCW: Crimes and Punishments of this chapter or any rules and regulations adopted hereunder, with the exception of this section and RCW 9.46.400. All factors incident to the activities authorized in this chapter shall be closely controlled, and the provisions of this chapter shall be liberally construed to achieve such end. [1996 c 101 § 2; 1994 c 218 § 2; 1975 1st ex.s. c 259 § 1; 1974 ex.s. c 155 § 1; 1974 ex.s. c 135 § 1; 1973 1st ex.s. c 218 § 1.] Findings—1996 c 101: See note following RCW 77.32.530. Effective date—1994 c 218: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [April 1, 1994]." [1994 c 218 § 20.] Severability—1974 ex.s. c 155: "If any provision of this 1974 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1974 ex.s. c 155 § 13; 1974 ex.s. c 135 § 13.] Section 14 of the act, which provided for an effective date and that the act would be subject to referendum petition, was vetoed by the governor. The veto and the related message can be found in chapter 155, Laws of 1974 ex. sess. 9.46.0201 9.46.0201 "Amusement game." "Amusement game," as used in this chapter, means a game played for entertainment in which: (1) The contestant actively participates; (2) The outcome depends in a material degree upon the skill of the contestant; (3) Only merchandise prizes are awarded; (4) The outcome is not in the control of the operator; (5) The wagers are placed, the winners are determined, and a distribution of prizes or property is made in the presence of all persons placing wagers at such game; and (6) Said game is conducted or operated by any agricultural fair, person, association, or organization in such manner and at such locations as may be authorized by rules and regulations adopted by the commission pursuant to this chapter as now or hereafter amended. Cake walks as commonly known and fish ponds as commonly known shall be treated as amusement games for all purposes under this chapter. [1987 c 4 § 2. Formerly RCW 9.46.020(1), part.] 9.46.0205 9.46.0205 "Bingo." "Bingo," as used in this chapter, means a game conducted only in the county within which the organization is principally located in which prizes are awarded on the basis of designated numbers or symbols on a card conforming to numbers or symbols selected at random and in which no cards are sold except at the time and place of said game, when said game is conducted by a bona fide charitable or nonprofit organization, or if an agricultural fair authorized under chapters 15.76 and 36.37 RCW, which does not conduct bingo on more than twelve consecutive days in any calendar year, and except in the case of any agricultural fair as authorized under chapters 15.76 and 36.37 RCW, no person other than a bona fide member or an employee of said organization takes any part in the management or operation of said game, and no person who takes any part in the management or operation of said game takes any part in the management or operation of any game conducted by any other organization or any other branch of the same organization, unless approved by the commission, and no part of the pro[Title 9 RCW—page 40] ceeds thereof inure to the benefit of any person other than the organization conducting said game. For the purposes of this section, the organization shall be deemed to be principally located in the county within which it has its primary business office. If the organization has no business office, the organization shall be deemed to be located in the county of principal residence of its chief executive officer: PROVIDED, That any organization which is conducting any licensed and established bingo game in any locale as of January 1, 1981, shall be exempt from the requirement that such game be conducted in the county in which the organization is principally located. [2002 c 369 § 1; 1987 c 4 § 3. Formerly RCW 9.46.020(2).] 9.46.0209 9.46.0209 "Bona fide charitable or nonprofit organization." "Bona fide charitable or nonprofit organization," as used in this chapter, means: (1) Any organization duly existing under the provisions of chapter 24.12, 24.20, or 24.28 RCW, any agricultural fair authorized under the provisions of chapters 15.76 or 36.37 RCW, or any nonprofit corporation duly existing under the provisions of chapter 24.03 RCW for charitable, benevolent, eleemosynary, educational, civic, patriotic, political, social, fraternal, athletic or agricultural purposes only, or any nonprofit organization, whether incorporated or otherwise, when found by the commission to be organized and operating for one or more of the aforesaid purposes only, all of which in the opinion of the commission have been organized and are operated primarily for purposes other than the operation of gambling activities authorized under this chapter; or (2) any corporation which has been incorporated under Title 36 U.S.C. and whose principal purposes are to furnish volunteer aid to members of the armed forces of the United States and also to carry on a system of national and international relief and to apply the same in mitigating the sufferings caused by pestilence, famine, fire, floods, and other national calamities and to devise and carry on measures for preventing the same. Such an organization must have been organized and continuously operating for at least twelve calendar months immediately preceding making application for any license to operate a gambling activity, or the operation of any gambling activity authorized by this chapter for which no license is required. It must have not less than fifteen bona fide active members each with the right to an equal vote in the election of the officers, or board members, if any, who determine the policies of the organization in order to receive a gambling license. An organization must demonstrate to the commission that it has made significant progress toward the accomplishment of the purposes of the organization during the twelve consecutive month period preceding the date of application for a license or license renewal. The fact that contributions to an organization do not qualify for charitable contribution deduction purposes or that the organization is not otherwise exempt from payment of federal income taxes pursuant to the internal revenue code of 1954, as amended, shall constitute prima facie evidence that the organization is not a bona fide charitable or nonprofit organization for the purposes of this section. Any person, association or organization which pays its employees, including members, compensation other than is reasonable therefor under the local prevailing wage scale shall be deemed paying compensation based in part or whole upon receipts relating to gambling activities authorized under (2006 Ed.) Gambling—1973 Act this chapter and shall not be a bona fide charitable or nonprofit organization for the purposes of this chapter. For the purposes of RCW 9.46.0315 and 9.46.110, a bona fide nonprofit organization also includes a credit union organized and operating under state or federal law. All revenue less prizes and expenses received from raffles conducted by credit unions must be devoted to purposes authorized under this section for charitable and nonprofit organizations. [2000 c 233 § 1; 1987 c 4 § 4. Formerly RCW 9.46.020(3).] 9.46.0213 9.46.0213 "Bookmaking." "Bookmaking," as used in this chapter, means accepting bets, upon the outcome of future contingent events, as a business or in which the bettor is charged a fee or "vigorish" for the opportunity to place a bet. [1991 c 261 § 1; 1987 c 4 § 5. Formerly RCW 9.46.020(4).] 9.46.0217 9.46.0217 "Commercial stimulant." "Commercial stimulant," as used in this chapter, means an activity is operated as a commercial stimulant, for the purposes of this chapter, only when it is an activity operated in connection with an established business, with the purpose of increasing the volume of sales of food or drink for consumption on that business premises. The commission may by rule establish guidelines and criteria for applying this definition to its applicants and licensees for gambling activities authorized by this chapter as commercial stimulants. [1994 c 120 § 1; 1987 c 4 § 6. Formerly RCW 9.46.020(5).] 9.46.0221 9.46.0221 "Commission." "Commission," as used in this chapter, means the Washington state gambling commission created in RCW 9.46.040. [1987 c 4 § 7. Formerly RCW 9.46.020(6).] 9.46.0225 9.46.0225 "Contest of chance." "Contest of chance," as used in this chapter, means any contest, game, gaming scheme, or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein. [1987 c 4 § 8. Formerly RCW 9.46.020(7).] 9.46.0229 9.46.0229 "Fishing derby." "Fishing derby," as used in this chapter, means a fishing contest, with or without the payment or giving of an entry fee or other consideration by some or all of the contestants, wherein prizes are awarded for the species, size, weight, or quality of fish caught in a bona fide fishing or recreational event. [1987 c 4 § 9. Formerly RCW 9.46.020(8).] 9.46.0233 9.46.0233 "Fund raising event." (1) "Fund raising event," as used in this chapter, means a fund raising event conducted during any seventy-two consecutive hours but exceeding twenty-four consecutive hours and not more than once in any calendar year or a fund raising event conducted not more than twice each calendar year for not more than twenty-four consecutive hours each time by a bona fide charitable or nonprofit organization as defined in RCW 9.46.0209 other than any agricultural fair referred to thereunder, upon authorization therefor by the commission, which the legislature hereby authorizes to issue a license therefor, with or (2006 Ed.) 9.46.0233 without fee, permitting the following activities, or any of them, during such event: Bingo, amusement games, contests of chance, lotteries, and raffles. However: (a) Gross wagers and bets or revenue generated from participants under subsection (2) of this section received by the organization less the amount of money paid by the organization as winnings, or as payment for services or equipment rental under subsection (2) of this section, and for the purchase cost of prizes given as winnings do not exceed ten thousand dollars during the total calendar days of such fund raising event in the calendar year; (b) such activities shall not include any mechanical gambling or lottery device activated by the insertion of a coin or by the insertion of any object purchased by any person taking a chance by gambling in respect to the device; (c) only bona fide members of the organization who are not paid for such service or persons licensed or approved by the commission under subsection (2) of this section shall participate in the management or operation of the activities, and all income therefrom, after deducting the cost of prizes and other expenses, shall be devoted solely to the lawful purposes of the organization; and (d) such organization shall notify the appropriate local law enforcement agency of the time and place where such activities shall be conducted. The commission shall require an annual information report setting forth in detail the expenses incurred and the revenue received relative to the activities permitted. (2) Bona fide charitable or nonprofit organizations may hire a person or vendor, who is licensed or approved by the commission, to organize and conduct a fund raising event on behalf of the sponsoring organization subject to the following restrictions: (a) The person or vendor may not provide the facility for the event; (b) The person or vendor may use paid personnel and may be compensated by a fixed fee determined prior to the event, but may not share in the proceeds of the event; (c) All wagers must be made with scrip or chips having no cash value. At the end of the event, participants may be given the opportunity to purchase or otherwise redeem their scrip or chips for merchandise prizes; (d) The value of all purchased prizes must not exceed ten percent of the gross revenue from the event; and (e) Only members and guests of the sponsoring organization may participate in the event. (3) Bona fide charitable or nonprofit organizations holding a license to conduct a fund raising event may join together to jointly conduct a fund raising event if: (a) Approval to do so is received from the commission; and (b) The method of dividing the income and expenditures and the method of recording and handling of funds are disclosed to the commission in the application for approval of the joint fund raising event and are approved by the commission. The gross wagers and bets or revenue generated from participants under subsection (2) of this section received by the organizations less the amount of money paid by the organizations as winnings, or as payment for services or equipment rental under subsection (2) of this section, and for the purchase costs of prizes given as winnings may not exceed ten thousand dollars during the total calendar days of such [Title 9 RCW—page 41] 9.46.0237 Title 9 RCW: Crimes and Punishments event. The net receipts each organization receives shall count against the organization’s annual limit stated in this subsection. A joint fund raising event shall count against only the lead organization or organizations receiving fifty percent or more of the net receipts for the purposes of the number of such events an organization may conduct each year. The commission may issue a joint license for a joint fund raising event and charge a license fee for such license according to a schedule of fees adopted by the commission which reflects the added cost to the commission of licensing more than one licensee for the event. [2000 c 178 § 1; 1987 c 4 § 24. Formerly RCW 9.46.020(23).] 9.46.0237 9.46.0237 "Gambling." "Gambling," as used in this chapter, means staking or risking something of value upon the outcome of a contest of chance or a future contingent event not under the person’s control or influence, upon an agreement or understanding that the person or someone else will receive something of value in the event of a certain outcome. Gambling does not include fishing derbies as defined by this chapter, parimutuel betting and handicapping contests as authorized by chapter 67.16 RCW, bona fide business transactions valid under the law of contracts, including, but not limited to, contracts for the purchase or sale at a future date of securities or commodities, and agreements to compensate for loss caused by the happening of chance, including, but not limited to, contracts of indemnity or guarantee and life, health, or accident insurance. In addition, a contest of chance which is specifically excluded from the definition of lottery under this chapter shall not constitute gambling. [2005 c 351 § 1; 1987 c 4 § 10. Formerly RCW 9.46.020(9).] 9.46.0241 9.46.0241 "Gambling device." "Gambling device," as used in this chapter, means: (1) Any device or mechanism the operation of which a right to money, credits, deposits or other things of value may be created, in return for a consideration, as the result of the operation of an element of chance, including, but not limited to slot machines, video pull-tabs, video poker, and other electronic games of chance; (2) any device or mechanism which, when operated for a consideration, does not return the same value or thing of value for the same consideration upon each operation thereof; (3) any device, mechanism, furniture, fixture, construction or installation designed primarily for use in connection with professional gambling; and (4) any subassembly or essential part designed or intended for use in connection with any such device, mechanism, furniture, fixture, construction or installation. In the application of this definition, a pinball machine or similar mechanical amusement device which confers only an immediate and unrecorded right of replay on players thereof, which does not contain any mechanism which varies the chance of winning free games or the number of free games which may be won or a mechanism or a chute for dispensing coins or a facsimile thereof, and which prohibits multiple winnings depending upon the number of coins inserted and requires the playing of five balls individually upon the insertion of a nickel or dime, as the case may be, to complete any one operation thereof, shall not be deemed a gambling device: PROVIDED, That owning, possessing, [Title 9 RCW—page 42] buying, selling, renting, leasing, financing, holding a security interest in, storing, repairing and transporting such pinball machines or similar mechanical amusement devices shall not be deemed engaging in professional gambling for the purposes of this chapter and shall not be a violation of this chapter: PROVIDED FURTHER, That any fee for the purchase or rental of any such pinball machines or similar amusement devices shall have no relation to the use to which such machines are put but be based only upon the market value of any such machine, regardless of the location of or type of premises where used, and any fee for the storing, repairing and transporting thereof shall have no relation to the use to which such machines are put, but be commensurate with the cost of labor and other expenses incurred in any such storing, repairing and transporting. [1994 c 218 § 8; 1987 c 4 § 11. Formerly RCW 9.46.020(10).] Effective date—1994 c 218: See note following RCW 9.46.010. 9.46.0245 9.46.0245 "Gambling information." "Gambling information," as used in this chapter, means any wager made in the course of and any information intended to be used for professional gambling. In the application of this definition, information as to wagers, betting odds and changes in betting odds shall be presumed to be intended for use in professional gambling. This section shall not apply to newspapers of general circulation or commercial radio and television stations licensed by the federal communications commission. [1987 c 4 § 12. Formerly RCW 9.46.020(11).] 9.46.0249 9.46.0249 "Gambling premises." "Gambling premises," as used in this chapter, means any building, room, enclosure, vehicle, vessel or other place used or intended to be used for professional gambling. In the application of this definition, any place where a gambling device is found shall be presumed to be intended to be used for professional gambling. [1987 c 4 § 13. Formerly RCW 9.46.020(12).] 9.46.0253 9.46.0253 "Gambling record." "Gambling record," as used in this chapter, means any record, receipt, ticket, certificate, token, slip or notation given, made, used or intended to be used in connection with professional gambling. [1987 c 4 § 14. Formerly RCW 9.46.020(13).] 9.46.0257 9.46.0257 "Lottery." "Lottery," as used in this chapter, means a scheme for the distribution of money or property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance. [1987 c 4 § 15. Formerly RCW 9.46.020(14).] 9.46.0261 9.46.0261 "Member," "bona fide member." "Member" and "bona fide member," as used in this chapter, mean a person accepted for membership in an organization eligible to be licensed by the commission under this chapter upon application, with such action being recorded in the official minutes of a regular meeting or who has held full and regular membership status in the organization for a period of not less than twelve consecutive months prior to participating in the management or operation of any gambling activity. Such membership must in no way be dependent upon, or in any (2006 Ed.) Gambling—1973 Act way related to, the payment of consideration to participate in any gambling activity. Member or bona fide member shall include only members of an organization’s specific chapter or unit licensed by the commission or otherwise actively conducting the gambling activity: PROVIDED, That: (1) Members of chapters or local units of a state, regional or national organization may be considered members of the parent organization for the purpose of a gambling activity conducted by the parent organization, if the rules of the parent organization so permit; (2) Members of a bona fide auxiliary to a principal organization may be considered members of the principal organization for the purpose of a gambling activity conducted by the principal organization. Members of the principal organization may also be considered members of its auxiliary for the purpose of a gambling activity conducted by the auxiliary; and (3) Members of any chapter or local unit within the jurisdiction of the next higher level of the parent organization, and members of a bona fide auxiliary to that chapter or unit, may assist any other chapter or local unit of that same organization licensed by the commission in the conduct of gambling activities. No person shall be a member of any organization if that person’s primary purpose for membership is to become, or continue to be, a participant in, or an operator or manager of, any gambling activity or activities. [1987 c 4 § 16. Formerly RCW 9.46.020(15).] 9.46.0265 9.46.0265 "Player." "Player," as used in this chapter, means a natural person who engages, on equal terms with the other participants, and solely as a contestant or bettor, in any form of gambling in which no person may receive or become entitled to receive any profit therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct or operation of a particular gambling activity. A natural person who gambles at a social game of chance on equal terms with the other participants shall not be considered as rendering material assistance to the establishment, conduct or operation of the social game merely by performing, without fee or remuneration, acts directed toward the arrangement or facilitation of the game, such as inviting persons to play, permitting the use of premises for the game, or supplying cards or other equipment to be used in the games. A person who engages in "bookmaking" as defined in this chapter is not a "player." A person who pays a fee or "vigorish" enabling him or her to place a wager with a bookmaker, or pays a fee other than as authorized by this chapter to participate in a card game, contest of chance, lottery, or gambling activity, is not a player. [1997 c 118 § 2; 1991 c 261 § 2; 1987 c 4 § 17. Formerly RCW 9.46.020(16).] 9.46.0269 9.46.0269 "Professional gambling." (1) A person is engaged in "professional gambling" for the purposes of this chapter when: (a) Acting other than as a player or in the manner authorized by this chapter, the person knowingly engages in conduct which materially aids any form of gambling activity; or (2006 Ed.) 9.46.0277 (b) Acting other than in a manner authorized by this chapter, the person pays a fee to participate in a card game, contest of chance, lottery, or other gambling activity; or (c) Acting other than as a player or in the manner authorized by this chapter, the person knowingly accepts or receives money or other property pursuant to an agreement or understanding with any other person whereby he or she participates or is to participate in the proceeds of gambling activity; or (d) The person engages in bookmaking; or (e) The person conducts a lottery; or (f) The person violates RCW 9.46.039. (2) Conduct under subsection (1)(a) of this section, except as exempted under this chapter, includes but is not limited to conduct directed toward the creation or establishment of the particular game, contest, scheme, device or activity involved, toward the acquisition or maintenance of premises, paraphernalia, equipment or apparatus therefor, toward the solicitation or inducement of persons to participate therein, toward the actual conduct of the playing phases thereof, toward the arrangement of any of its financial or recording phases, or toward any other phase of its operation. If a person having substantial proprietary or other authoritative control over any premises shall permit the premises to be used with the person’s knowledge for the purpose of conducting gambling activity other than gambling activities authorized by this chapter, and acting other than as a player, and the person permits such to occur or continue or makes no effort to prevent its occurrence or continuation, the person shall be considered as being engaged in professional gambling: PROVIDED, That the proprietor of a bowling establishment who awards prizes obtained from player contributions, to players successfully knocking down pins upon the contingency of identifiable pins being placed in a specified position or combination of positions, as designated by the posted rules of the bowling establishment, where the proprietor does not participate in the proceeds of the "prize fund" shall not be construed to be engaging in "professional gambling" within the meaning of this chapter: PROVIDED FURTHER, That the books and records of the games shall be open to public inspection. [1997 c 78 § 1; 1996 c 252 § 2; 1987 c 4 § 18. Formerly RCW 9.46.020(17).] 9.46.0273 9.46.0273 "Punch boards," "pull-tabs." "Punch boards" and "pull-tabs," as used in this chapter, shall be given their usual and ordinary meaning as of July 16, 1973, except that such definition may be revised by the commission pursuant to rules and regulations promulgated pursuant to this chapter. [1987 c 4 § 19. Formerly RCW 9.46.020(18).] 9.46.0277 9.46.0277 "Raffle." "Raffle," as used in this chapter, means a game in which tickets bearing an individual number are sold for not more than twenty-five dollars each and in which a prize or prizes are awarded on the basis of a drawing from the tickets by the person or persons conducting the game, when the game is conducted by a bona fide charitable or nonprofit organization, no person other than a bona fide member of the organization takes any part in the management or operation of the game, and no part of the proceeds thereof inure to the benefit of any person other than the organization [Title 9 RCW—page 43] 9.46.0282 Title 9 RCW: Crimes and Punishments conducting the game. [1995 2nd sp.s. c 4 § 1; 1987 c 4 § 20. Formerly RCW 9.46.020(19).] 9.46.0282 9.46.0282 "Social card game." "Social card game" as used in this chapter means a card game that constitutes gambling and is authorized by the commission under RCW 9.46.070. Authorized card games may include a housebanked or a player-funded banked card game. No one may participate in the card game or have an interest in the proceeds of the card game who is not a player or a person licensed by the commission to participate in social card games. There shall be two or more participants in the card game who are players or persons licensed by the commission. The card game must be played in accordance with the rules adopted by the commission under RCW 9.46.070, which shall include but not be limited to rules for the collection of fees, limitation of wagers, and management of player funds. The number of tables authorized shall be set by the commission but shall not exceed a total of fifteen separate tables per establishment. [1997 c 118 § 1.] 9.46.0285 9.46.0285 "Thing of value." "Thing of value," as used in this chapter, means any money or property, any token, object or article exchangeable for money or property, or any form of credit or promise, directly or indirectly, contemplating transfer of money or property or of any interest therein, or involving extension of a service, entertainment or a privilege of playing at a game or scheme without charge. [1987 c 4 § 22. Formerly RCW 9.46.020(21).] 9.46.0289 9.46.0289 "Whoever," "person." "Whoever" and "person," as used in this chapter, include natural persons, corporations and partnerships and associations of persons; and when any corporate officer, director or stockholder or any partner authorizes, participates in, or knowingly accepts benefits from any violation of this chapter committed by his or her corporation or partnership, he or she shall be punishable for such violation as if it had been directly committed by him or her. [1987 c 4 § 23. Formerly RCW 9.46.020(22).] 9.46.0305 9.46.0305 Dice or coin contests for music, food, or beverage payment. The legislature hereby authorizes the wagering on the outcome of the roll of dice or the flipping of or matching of coins on the premises of an establishment engaged in the business of selling food or beverages for consumption on the premises to determine which of the participants will pay for coin-operated music on the premises or certain items of food or beverages served or sold by such establishment and therein consumed. Such establishments are hereby authorized to possess dice and dice cups on their premises, but only for use in such limited wagering. Persons engaged in such limited form of wagering shall not be subject to the criminal or civil penalties otherwise provided for in this chapter: PROVIDED, That minors shall be barred from engaging in the wagering activities allowed by this chapter. [1987 c 4 § 25. Formerly RCW 9.46.020(1), part.] 9.46.0311 9.46.0311 Charitable, nonprofit organizations— Authorized gambling activities. The legislature hereby authorizes bona fide charitable or nonprofit organizations to [Title 9 RCW—page 44] conduct bingo games, raffles, amusement games, and fund raising events, and to utilize punch boards and pull-tabs and to allow their premises and facilities to be used by only members, their guests, and members of a chapter or unit organized under the same state, regional, or national charter or constitution, to play social card games authorized by the commission, when licensed, conducted or operated pursuant to the provisions of this chapter and rules and regulations adopted pursuant thereto. [1987 c 4 § 26. Formerly RCW 9.46.030(1).] 9.46.0315 9.46.0315 Raffles—No license required, when. Bona fide charitable or bona fide nonprofit organizations organized primarily for purposes other than the conduct of raffles, are hereby authorized to conduct raffles without obtaining a license to do so from the commission when such raffles are held in accordance with all other requirements of this chapter, other applicable laws, and rules of the commission; when gross revenues from all such raffles held by the organization during the calendar year do not exceed five thousand dollars; and when tickets to such raffles are sold only to, and winners are determined only from among, the regular members of the organization conducting the raffle. The organization may provide unopened containers of beverages containing alcohol as raffle prizes if the appropriate permit has been obtained from the liquor control board: PROVIDED, That the term members for this purpose shall mean only those persons who have become members prior to the commencement of the raffle and whose qualification for membership was not dependent upon, or in any way related to, the purchase of a ticket, or tickets, for such raffles. [1991 c 192 § 4; 1987 c 4 § 27. Formerly RCW 9.46.030(2).] 9.46.0321 9.46.0321 Bingo, raffles, amusement games—No license required, when. Bona fide charitable or bona fide nonprofit organizations organized primarily for purposes other than the conduct of such activities are hereby authorized to conduct bingo, raffles, and amusement games, without obtaining a license to do so from the commission but only when: (1) Such activities are held in accordance with all other requirements of this chapter, other applicable laws, and rules of the commission; (2) Said activities are, alone or in any combination, conducted no more than twice each calendar year and over a period of no more than twelve consecutive days each time, notwithstanding the limitations of RCW 9.46.0205: PROVIDED, That a raffle conducted under this subsection may be conducted for a period longer than twelve days; (3) Only bona fide members of that organization, who are not paid for such services, participate in the management or operation of the activities; (4) Gross revenues to the organization from all the activities together do not exceed five thousand dollars during any calendar year; (5) All revenue therefrom, after deducting the cost of prizes and other expenses of the activity, is devoted solely to the purposes for which the organization qualifies as a bona fide charitable or nonprofit organization; (6) The organization gives notice at least five days in advance of the conduct of any of the activities to the local (2006 Ed.) Gambling—1973 Act police agency of the jurisdiction within which the activities are to be conducted of the organization’s intent to conduct the activities, the location of the activities, and the date or dates they will be conducted; and (7) The organization conducting the activities maintains records for a period of one year from the date of the event which accurately show at a minimum the gross revenue from each activity, details of the expenses of conducting the activities, and details of the uses to which the gross revenue therefrom is put. [1987 c 4 § 28. Formerly RCW 9.46.030(3).] 9.46.0325 9.46.0325 Social card games, punch boards, pull-tabs authorized. The legislature hereby authorizes any person, association or organization operating an established business primarily engaged in the selling of food or drink for consumption on the premises to conduct social card games and to utilize punch boards and pull-tabs as a commercial stimulant to such business when licensed and utilized or operated pursuant to the provisions of this chapter and rules and regulations adopted pursuant thereto. [1987 c 4 § 29. Formerly RCW 9.46.030(4).] 9.46.0331 9.46.0331 Amusement games authorized—Minimum rules. The legislature hereby authorizes any person to conduct or operate amusement games when licensed and operated pursuant to the provisions of this chapter and rules and regulations adopted by the commission at such locations as the commission may authorize. The rules shall provide for at least the following: (1) Persons other than bona fide charitable or bona fide nonprofit organizations shall conduct amusement games only after obtaining a special amusement game license from the commission. (2) Amusement games may be conducted under such a license only as a part of, and upon the site of: (a) Any agricultural fair as authorized under chapter 15.76 or 36.37 RCW; or (b) A civic center of a county, city, or town; or (c) A world’s fair or similar exposition that is approved by the bureau of international expositions at Paris, France; or (d) A community-wide civic festival held not more than once annually and sponsored or approved by the city, town, or county in which it is held; or (e) A commercial exposition organized and sponsored by an organization or association representing the retail sales and service operators conducting business in a shopping center or other commercial area developed and operated for retail sales and service, but only upon a parking lot or similar area located in said shopping center or commercial area for a period of no more than seventeen consecutive days by any licensee during any calendar year; or (f) An amusement park. An amusement park is a group of activities, at a permanent location, to which people go to be entertained through a combination of various mechanical or aquatic rides, theatrical productions, motion picture, and/or slide show presentations with food and drink service. The amusement park must include at least five different mechanical, or aquatic rides, three additional activities, and the gross receipts must be primarily from these amusement activities; or (2006 Ed.) 9.46.0335 (g) Within a regional shopping center. A regional shopping center is a shopping center developed and operated for retail sales and service by retail sales and service operators and consisting of more than six hundred thousand gross square feet not including parking areas. Amusement games conducted as a part of, and upon the site of, a regional shopping center shall not be subject to the prohibition on revenue sharing set forth in RCW 9.46.120(2); or (h) A location that possesses a valid license from the Washington state liquor [control] board and prohibits minors on their premises; or (i) Movie theaters, bowling alleys, miniature golf course facilities, and amusement centers. For the purposes of this section an amusement center shall be defined as a permanent location whose primary source of income is from the operation of ten or more amusement devices; or (j) Any business whose primary activity is to provide food service for on premises consumption and who offers family entertainment which includes at least three of the following activities: Amusement devices; theatrical productions; mechanical rides; motion pictures; and slide show presentations. (3) No amusement games may be conducted in any location except in conformance with local zoning, fire, health, and similar regulations. In no event may the licensee conduct any amusement games at any of the locations set out in subsection (2) of this section without first having obtained the written permission to do so from the person or organization owning the premises or an authorized agent thereof, and from the persons sponsoring the fair, exhibition, commercial exhibition, or festival, or from the city or town operating the civic center, in connection with which the games are to be operated. (4) In no event may a licensee conduct any amusement games at the location described in subsection (2)(g) of this section, without, at the location of such games, providing adult supervision during all hours the licensee is open for business at such location, prohibiting school-age minors from entry during school hours, maintaining full-time personnel whose responsibilities include maintaining security and daily machine maintenance, and providing for hours for the close of business at such location that are no later than 10:00 p.m. on Fridays and Saturdays and on all other days that are the same as those of the regional shopping center in which the licensee is located. (5) In no event may a licensee conduct any amusement game at a location described in subsection (2)(i) or (j) of this section, without, at the location of such games, providing adult supervision during all hours the licensee is open for business at such location, prohibiting school-age minors from playing licensed amusement games during school hours, maintaining full-time personnel whose responsibilities include maintaining security and daily machine maintenance, and prohibiting minors from playing the amusement games after 10:00 p.m. on any day. [1991 c 287 § 1; 1987 c 4 § 30. Formerly RCW 9.46.030(5).] 9.46.0335 Sports pools authorized. The legislature hereby authorizes any person, association, or organization to conduct sports pools without a license to do so from the commission but only when the outcome of which is dependent 9.46.0335 [Title 9 RCW—page 45] 9.46.0341 Title 9 RCW: Crimes and Punishments upon the score, or scores, of a certain athletic contest and which is conducted only in the following manner: (1) A board or piece of paper is divided into one hundred equal squares, each of which constitutes a chance to win in the sports pool and each of which is offered directly to prospective contestants at one dollar or less; (2) The purchaser of each chance or square signs his or her name on the face of each square or chance he or she purchases; and (3) At some time not later than prior to the start of the subject athletic contest the pool is closed and no further chances in the pool are sold; (4) After the pool is closed a prospective score is assigned by random drawing to each square; (5) All money paid by entrants to enter the pool less taxes is paid out as the prize or prizes to those persons holding squares assigned the winning score or scores from the subject athletic contest; (6) The sports pool board is available for inspection by any person purchasing a chance thereon, the commission, or by any law enforcement agency upon demand at all times prior to the payment of the prize; (7) The person or organization conducting the pool is conducting no other sports pool on the same athletic event; and (8) The sports pool conforms to any rules and regulations of the commission applicable thereto. [1987 c 4 § 31. Formerly RCW 9.46.030(6).] 9.46.0341 Golfing sweepstakes authorized. The legislature hereby authorizes bona fide charitable or nonprofit organizations to conduct, without the necessity of obtaining a permit or license to do so from the commission, golfing sweepstakes permitting wagers of money, and the same shall not constitute such gambling or lottery as otherwise prohibited in this chapter, or be subject to civil or criminal penalties thereunder, but this only when the outcome of such golfing sweepstakes is dependent upon the score, or scores, or the playing ability, or abilities, of a golfing contest between individual players or teams of such players, conducted in the following manner: (1) Wagers are placed by buying tickets on any players in a golfing contest to "win," "place," or "show" and those holding tickets on the three winners may receive a payoff similar to the system of betting identified as parimutuel, such moneys placed as wagers to be used primarily as winners’ proceeds, except moneys used to defray the expenses of such golfing sweepstakes or otherwise used to carry out the purposes of such organization; or (2) Participants in any golfing contest(s) pay a like sum of money into a common fund on the basis of attaining a stated number of points ascertainable from the score of such participants, and those participants attaining such stated number of points share equally in the moneys in the common fund, without any percentage of such moneys going to the sponsoring organization; or (3) An auction is held in which persons may bid on the players or teams of players in the golfing contest, and the person placing the highest bid on the player or team that wins the golfing contest receives the proceeds of the auction, except moneys used to defray the expenses of the golfing sweep9.46.0341 [Title 9 RCW—page 46] stakes or otherwise used to carry out the purposes of the organizations; and (4) Participation is limited to members of the sponsoring organization and their bona fide guests. [1997 c 38 § 1; 1987 c 4 § 32. Formerly RCW 9.46.030(7).] 9.46.0345 9.46.0345 Bowling sweepstakes authorized. The legislature hereby authorizes bowling establishments to conduct, without the necessity of obtaining a permit or license to do so, as a commercial stimulant, a bowling activity which permits bowlers to purchase tickets from the establishment for a predetermined and posted amount of money, which tickets are then selected by the luck of the draw and the holder of the matching ticket so drawn has an opportunity to bowl a strike and if successful receives a predetermined and posted monetary prize: PROVIDED, That all sums collected by the establishment from the sale of tickets shall be returned to purchasers of tickets and no part of the proceeds shall inure to any person other than the participants winning in the game or a recognized charity. The tickets shall be sold, and accounted for, separately from all other sales of the establishment. The price of any single ticket shall not exceed one dollar. Accounting records shall be available for inspection during business hours by any person purchasing a chance thereon, by the commission or its representatives, or by any law enforcement agency. [1987 c 4 § 33. Formerly RCW 9.46.030(8).] 9.46.0351 9.46.0351 Social card, dice games—Use of premises of charitable, nonprofit organizations. (1) The legislature hereby authorizes any bona fide charitable or nonprofit organization which is licensed pursuant to RCW 66.24.400, and its officers and employees, to allow the use of the premises, furnishings, and other facilities not gambling devices of such organization by members of the organization, and members of a chapter or unit organized under the same state, regional, or national charter or constitution, who engage as players in the following types of gambling activities only: (a) Social card games; and (b) Social dice games, which shall be limited to contests of chance, the outcome of which are determined by one or more rolls of dice. (2) Bona fide charitable or nonprofit organizations shall not be required to be licensed by the commission in order to allow use of their premises in accordance with this section. However, the following conditions must be met: (a) No organization, corporation, or person shall collect or obtain or charge any percentage of or shall collect or obtain any portion of the money or thing of value wagered or won by any of the players: PROVIDED, That a player may collect his or her winnings; and (b) No organization, corporation, or person shall collect or obtain any money or thing of value from, or charge or impose any fee upon, any person which either enables him or her to play or results in or from his or her playing: PROVIDED, That this subsection shall not preclude collection of a membership fee which is unrelated to participation in gambling activities authorized under this section. [1999 c 143 § 5; 1987 c 4 § 34. Formerly RCW 9.46.030(9).] (2006 Ed.) Gambling—1973 Act 9.46.0356 9.46.0356 Promotional contests of chance authorized. (1) The legislature authorizes a business to conduct a promotional contest of chance as defined in this section, in this state, or partially in this state, whereby the elements of prize and chance are present but in which the element of consideration is not present. (2) Promotional contests of chance under this section are not gambling as defined in RCW 9.46.0237. (3) Promotional contests of chance shall be conducted as advertising and promotional undertakings solely for the purpose of advertising or promoting the services, goods, wares, and merchandise of a business. (4) No person eligible to receive a prize in a promotional contest of chance may be required to: (a) Pay any consideration to the promoter or operator of the business in order to participate in the contest; or (b) Purchase any service, goods, wares, merchandise, or anything of value from the business, however, for other than contests entered through a direct mail solicitation, the promoter or sponsor may give additional entries or chances upon purchase of service, goods, wares, or merchandise if the promoter or sponsor provides an alternate method of entry requiring no consideration. (5)(a) As used in this section, "consideration" means anything of pecuniary value required to be paid to the promoter or sponsor in order to participate in a promotional contest. Such things as visiting a business location, placing or answering a telephone call, completing an entry form or customer survey, or furnishing a stamped, self-addressed envelope do not constitute consideration. (b) Coupons or entry blanks obtained by purchase of a bona fide newspaper or magazine or in a program sold in conjunction with a regularly scheduled sporting event are not consideration. (6) Unless authorized by the commission, equipment or devices made for use in a gambling activity are prohibited from use in a promotional contest. (7) This section shall not be construed to permit noncompliance with chapter 19.170 RCW, promotional advertising of prizes, and chapter 19.86 RCW, unfair business practices. [2000 c 228 § 1.] 9.46.0361 9.46.0361 Turkey shoots authorized. The legislature hereby authorizes bona fide charitable or nonprofit organizations to conduct, without the necessity of obtaining a permit or license to do so from the commission, turkey shoots permitting wagers of money. Such contests shall not constitute such gambling or lottery as otherwise prohibited in this chapter, or be subject to civil or criminal penalties. Such organizations must be organized for purposes other than the conduct of turkey shoots. Such turkey shoots shall be held in accordance with all other requirements of this chapter, other applicable laws, and rules that may be adopted by the commission. Gross revenues from all such turkey shoots held by the organization during the calendar year shall not exceed five thousand dollars. Turkey shoots conducted under this section shall meet the following requirements: (1) The target shall be divided into one hundred or fewer equal sections, with each section constituting a chance to (2006 Ed.) 9.46.040 win. Each chance shall be offered directly to a prospective contestant for one dollar or less; (2) The purchaser of each chance shall sign his or her name on the face of the section he or she purchases; (3) The person shooting at the target shall not be a participant in the contest, but shall be a member of the organization conducting the contest; (4) Participation in the contest shall be limited to members of the organization which is conducting the contest and their guests; (5) The target shall contain the following information: (a) Distance from the shooting position to the target; (b) The gauge of the shotgun; (c) The type of choke on the barrel; (d) The size of shot that will be used; and (e) The prize or prizes that are to be awarded in the contest; (6) The targets, shotgun, and ammunition shall be available for inspection by any person purchasing a chance thereon, the commission, or by any law enforcement agency upon demand, at all times before the prizes are awarded; (7) The turkey shoot shall award the prizes based upon the greatest number of shots striking a section; (8) No turkey shoot may offer as a prize the right to advance or continue on to another turkey shoot or turkey shoot target; and (9) Only bona fide members of the organization who are not paid for such service may participate in the management or operation of the turkey shoot, and all income therefrom, after deducting the cost of prizes and other expenses, shall be devoted solely to the lawful purposes of the organization. [1987 c 4 § 36. Formerly RCW 9.46.030(12).] 9.46.039 9.46.039 Greyhound racing prohibited. (1) A person may not hold, conduct, or operate live greyhound racing for public exhibition, parimutuel betting, or special exhibition events, if such activities are conducted for gambling purposes. A person may not transmit or receive intrastate or interstate simulcasting of greyhound racing for commercial, parimutuel, or exhibition purposes, if such activities are conducted for gambling purposes. (2) A person who violates this section is guilty of a class B felony, under RCW 9.46.220, professional gambling in the first degree, and is subject to the penalty under RCW 9A.20.021. [1996 c 252 § 1.] 9.46.040 9.46.040 Gambling commission—Members— Appointment—Vacancies, filling. There shall be a commission, known as the "Washington state gambling commission", consisting of five members appointed by the governor with the consent of the senate. The members of the commission shall be appointed within thirty days of July 16, 1973 for terms beginning July 1, 1973, and expiring as follows: One member of the commission for a term expiring July 1, 1975; one member of the commission for a term expiring July 1, 1976; one member of the commission for a term expiring July 1, 1977; one member of the commission for a term expiring July 1, 1978; and one member of the commission for a term expiring July 1, 1979; each as the governor so determines. Their successors, all of whom shall be citizen members [Title 9 RCW—page 47] 9.46.050 Title 9 RCW: Crimes and Punishments appointed by the governor with the consent of the senate, upon being appointed and qualified, shall serve six year terms: PROVIDED, That no member of the commission who has served a full six year term shall be eligible for reappointment. In case of a vacancy, it shall be filled by appointment by the governor for the unexpired portion of the term in which said vacancy occurs. No vacancy in the membership of the commission shall impair the right of the remaining member or members to act, except as in RCW 9.46.050(2) provided. In addition to the members of the commission there shall be four ex officio members without vote from the legislature consisting of: (1) Two members of the senate, one from the majority political party and one from the minority political party, both to be appointed by the president of the senate; (2) two members of the house of representatives, one from the majority political party and one from the minority political party, both to be appointed by the speaker of the house of representatives; such appointments shall be for the term of two years or for the period in which the appointee serves as a legislator, whichever expires first; members may be reappointed; vacancies shall be filled in the same manner as original appointments are made. Such ex officio members who shall collect data deemed essential to future legislative proposals and exchange information with the board shall be deemed engaged in legislative business while in attendance upon the business of the board and shall be limited to such allowances therefor as otherwise provided in RCW 44.04.120, the same to be paid from the "gambling revolving fund" as being expenses relative to commission business. [1974 ex.s. c 155 § 12; 1974 ex.s. c 135 § 12; 1973 1st ex.s. c 218 § 4.] Severability—1974 ex.s. c 155: See note following RCW 9.46.010. 9.46.050 9.46.050 Gambling commission—Chairman—Quorum—Meetings—Compensation and travel expenses— Bond—Removal. (1) Upon appointment of the initial membership the commission shall meet at a time and place designated by the governor and proceed to organize, electing one of such members as chairman of the commission who shall serve until July 1, 1974; thereafter a chairman shall be elected annually. (2) A majority of the members shall constitute a quorum of the commission: PROVIDED, That all actions of the commission relating to the regulation of licensing under this chapter shall require an affirmative vote by three or more members of the commission. (3) The principal office of the commission shall be at the state capitol, and meetings shall be held at least quarterly and at such other times as may be called by the chairman or upon written request to the chairman of a majority of the commission. (4) Members shall be compensated in accordance with RCW 43.03.250 and shall receive reimbursement for travel expenses incurred in the performance of their duties as provided in RCW 43.03.050 and 43.03.060. (5) Before entering upon the duties of his office, each of the members of the commission shall enter into a surety bond executed by a surety company authorized to do business in this state, payable to the state of Washington, to be approved [Title 9 RCW—page 48] by the governor, in the penal sum of fifty thousand dollars, conditioned upon the faithful performance of his duties, and shall take and subscribe to the oath of office prescribed for elective state officers, which oath and bond shall be filed with the secretary of state. The premium for said bond shall be paid by the commission. (6) Any member of the commission may be removed for inefficiency, malfeasance, or misfeasance in office, upon specific written charges filed by the governor, who shall transmit such written charges to the member accused and to the chief justice of the supreme court. The chief justice shall thereupon designate a tribunal composed of three judges of the superior court to hear and adjudicate the charges. Such tribunal shall fix the time of the hearing, which shall be public, and the procedure for the hearing, and the decision of such tribunal shall be final. Removal of any member of the commission by the tribunal shall disqualify such member for reappointment. [1984 c 287 § 9; 1975-’76 2nd ex.s. c 34 § 7; 1973 1st ex.s. c 218 § 5.] Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. 9.46.060 9.46.06 0 G ambling commiss io n—Counsel— Audits—Payment for. (1) The attorney general shall be general counsel for the state gambling commission and shall assign such assistants as may be necessary in carrying out the purposes and provisions of this chapter, which shall include instituting and prosecuting any actions and proceedings necessary thereto. (2) The state auditor shall audit the books, records, and affairs of the commission annually. The commission shall pay to the state treasurer for the credit of the state auditor such funds as may be necessary to defray the costs of such audits. The commission may provide for additional audits by certified public accountants. All such audits shall be public records of the state. The payment for legal services and audits as authorized in this section shall be paid upon authorization of the commission from moneys in the gambling revolving fund. [1973 1st ex.s. c 218 § 6.] 9.46.070 9.46.070 Gambling commission—Powers and duties. The commission shall have the following powers and duties: (1) To authorize and issue licenses for a period not to exceed one year to bona fide charitable or nonprofit organizations approved by the commission meeting the requirements of this chapter and any rules and regulations adopted pursuant thereto permitting said organizations to conduct bingo games, raffles, amusement games, and social card games, to utilize punch boards and pull-tabs in accordance with the provisions of this chapter and any rules and regulations adopted pursuant thereto and to revoke or suspend said licenses for violation of any provisions of this chapter or any rules and regulations adopted pursuant thereto: PROVIDED, That the commission shall not deny a license to an otherwise qualified applicant in an effort to limit the number of licenses to be issued: PROVIDED FURTHER, That the commission or director shall not issue, deny, suspend, or revoke any license because of considerations of race, sex, creed, color, or (2006 Ed.) Gambling—1973 Act national origin: AND PROVIDED FURTHER, That the commission may authorize the director to temporarily issue or suspend licenses subject to final action by the commission; (2) To authorize and issue licenses for a period not to exceed one year to any person, association, or organization operating a business primarily engaged in the selling of items of food or drink for consumption on the premises, approved by the commission meeting the requirements of this chapter and any rules and regulations adopted pursuant thereto permitting said person, association, or organization to utilize punch boards and pull-tabs and to conduct social card games as a commercial stimulant in accordance with the provisions of this chapter and any rules and regulations adopted pursuant thereto and to revoke or suspend said licenses for violation of any provisions of this chapter and any rules and regulations adopted pursuant thereto: PROVIDED, That the commission shall not deny a license to an otherwise qualified applicant in an effort to limit the number of licenses to be issued: PROVIDED FURTHER, That the commission may authorize the director to temporarily issue or suspend licenses subject to final action by the commission; (3) To authorize and issue licenses for a period not to exceed one year to any person, association, or organization approved by the commission meeting the requirements of this chapter and meeting the requirements of any rules and regulations adopted by the commission pursuant to this chapter as now or hereafter amended, permitting said person, association, or organization to conduct or operate amusement games in such manner and at such locations as the commission may determine; (4) To authorize, require, and issue, for a period not to exceed one year, such licenses as the commission may by rule provide, to any person, association, or organization to engage in the selling, distributing, or otherwise supplying or in the manufacturing of devices for use within this state for those activities authorized by this chapter; (5) To establish a schedule of annual license fees for carrying on specific gambling activities upon the premises, and for such other activities as may be licensed by the commission, which fees shall provide to the commission not less than an amount of money adequate to cover all costs incurred by the commission relative to licensing under this chapter and the enforcement by the commission of the provisions of this chapter and rules and regulations adopted pursuant thereto: PROVIDED, That all licensing fees shall be submitted with an application therefor and such portion of said fee as the commission may determine, based upon its cost of processing and investigation, shall be retained by the commission upon the withdrawal or denial of any such license application as its reasonable expense for processing the application and investigation into the granting thereof: PROVIDED FURTHER, That if in a particular case the basic license fee established by the commission for a particular class of license is less than the commission’s actual expenses to investigate that particular application, the commission may at any time charge to that applicant such additional fees as are necessary to pay the commission for those costs. The commission may decline to proceed with its investigation and no license shall be issued until the commission has been fully paid therefor by the applicant: AND PROVIDED FURTHER, That the commission may establish fees for the furnishing by it to licensees of (2006 Ed.) 9.46.070 identification stamps to be affixed to such devices and equipment as required by the commission and for such other special services or programs required or offered by the commission, the amount of each of these fees to be not less than is adequate to offset the cost to the commission of the stamps and of administering their dispersal to licensees or the cost of administering such other special services, requirements or programs; (6) To prescribe the manner and method of payment of taxes, fees and penalties to be paid to or collected by the commission; (7) To require that applications for all licenses contain such information as may be required by the commission: PROVIDED, That all persons (a) having a managerial or ownership interest in any gambling activity, or the building in which any gambling activity occurs, or the equipment to be used for any gambling activity, or (b) participating as an employee in the operation of any gambling activity, shall be listed on the application for the license and the applicant shall certify on the application, under oath, that the persons named on the application are all of the persons known to have an interest in any gambling activity, building, or equipment by the person making such application: PROVIDED FURTHER, That the commission shall require fingerprinting and national criminal history background checks on any persons seeking licenses, certifications, or permits under this chapter or of any person holding an interest in any gambling activity, building, or equipment to be used therefor, or of any person participating as an employee in the operation of any gambling activity. All national criminal history background checks shall be conducted using fingerprints submitted to the United States department of justice-federal bureau of investigation. The commission must establish rules to delineate which persons named on the application are subject to national criminal history background checks. In identifying these persons, the commission must take into consideration the nature, character, size, and scope of the gambling activities requested by the persons making such applications; (8) To require that any license holder maintain records as directed by the commission and submit such reports as the commission may deem necessary; (9) To require that all income from bingo games, raffles, and amusement games be recorded and reported as established by rule or regulation of the commission to the extent deemed necessary by considering the scope and character of the gambling activity in such a manner that will disclose gross income from any gambling activity, amounts received from each player, the nature and value of prizes, and the fact of distributions of such prizes to the winners thereof; (10) To regulate and establish maximum limitations on income derived from bingo. In establishing limitations pursuant to this subsection the commission shall take into account (i) the nature, character, and scope of the activities of the licensee; (ii) the source of all other income of the licensee; and (iii) the percentage or extent to which income derived from bingo is used for charitable, as distinguished from nonprofit, purposes. However, the commission’s powers and duties granted by this subsection are discretionary and not mandatory; (11) To regulate and establish the type and scope of and manner of conducting the gambling activities authorized by [Title 9 RCW—page 49] 9.46.0701 Title 9 RCW: Crimes and Punishments this chapter, including but not limited to, the extent of wager, money, or other thing of value which may be wagered or contributed or won by a player in any such activities; (12) To regulate the collection of and the accounting for the fee which may be imposed by an organization, corporation, or person licensed to conduct a social card game on a person desiring to become a player in a social card game in accordance with RCW 9.46.0282; (13) To cooperate with and secure the cooperation of county, city, and other local or state agencies in investigating any matter within the scope of its duties and responsibilities; (14) In accordance with RCW 9.46.080, to adopt such rules and regulations as are deemed necessary to carry out the purposes and provisions of this chapter. All rules and regulations shall be adopted pursuant to the administrative procedure act, chapter 34.05 RCW; (15) To set forth for the perusal of counties, city-counties, cities and towns, model ordinances by which any legislative authority thereof may enter into the taxing of any gambling activity authorized by this chapter; (16) To establish and regulate a maximum limit on salaries or wages which may be paid to persons employed in connection with activities conducted by bona fide charitable or nonprofit organizations and authorized by this chapter, where payment of such persons is allowed, and to regulate and establish maximum limits for other expenses in connection with such authorized activities, including but not limited to rent or lease payments. However, the commissioner’s powers and duties granted by this subsection are discretionary and not mandatory. In establishing these maximum limits the commission shall take into account the amount of income received, or expected to be received, from the class of activities to which the limits will apply and the amount of money the games could generate for authorized charitable or nonprofit purposes absent such expenses. The commission may also take into account, in its discretion, other factors, including but not limited to, the local prevailing wage scale and whether charitable purposes are benefited by the activities; (17) To authorize, require, and issue for a period not to exceed one year such licenses or permits, for which the commission may by rule provide, to any person to work for any operator of any gambling activity authorized by this chapter in connection with that activity, or any manufacturer, supplier, or distributor of devices for those activities in connection with such business. The commission shall not require that persons working solely as volunteers in an authorized activity conducted by a bona fide charitable or bona fide nonprofit organization, who receive no compensation of any kind for any purpose from that organization, and who have no managerial or supervisory responsibility in connection with that activity, be licensed to do such work. The commission may require that licensees employing such unlicensed volunteers submit to the commission periodically a list of the names, addresses, and dates of birth of the volunteers. If any volunteer is not approved by the commission, the commission may require that the licensee not allow that person to work in connection with the licensed activity; (18) To publish and make available at the office of the commission or elsewhere to anyone requesting it a list of the [Title 9 RCW—page 50] commission licensees, including the name, address, type of license, and license number of each licensee; (19) To establish guidelines for determining what constitutes active membership in bona fide nonprofit or charitable organizations for the purposes of this chapter; and (20) To perform all other matters and things necessary to carry out the purposes and provisions of this chapter. [2002 c 119 § 1; 1999 c 143 § 6; 1993 c 344 § 1; 1987 c 4 § 38; 1981 c 139 § 3. Prior: 1977 ex.s. c 326 § 3; 1977 ex.s. c 76 § 2; 1975-’76 2nd ex.s. c 87 § 4; 1975 1st ex.s. c 259 § 4; 1974 ex.s. c 155 § 4; 1974 ex.s. c 135 § 4; 1973 2nd ex.s. c 41 § 4; 1973 1st ex.s. c 218 § 7.] Effective date—1993 c 344: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect June 1, 1993." [1993 c 344 § 2.] Severability—1981 c 139: "If any provision of this amendatory act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1981 c 139 § 19.] Severability—1974 ex.s. c 155: See note following RCW 9.46.010. Enforcement—Commission as a law enforcement agency: RCW 9.46.210. 9.46.0701 9.46.0701 Charitable or nonprofit organizations— Sharing facilities. The commission may allow existing licensees under RCW 9.46.070(1) to share facilities at one location. [2002 c 369 § 2.] 9.46.071 9.46.071 Information for pathological gamblers— Fee increases. (1) The legislature recognizes that some individuals in this state are problem or pathological gamblers. Because the state promotes and regulates gambling through the activities of the state lottery commission, the Washington horse racing commission, and the Washington state gambling commission, the state has the responsibility to continue to provide resources for the support of services for problem and pathological gamblers. Therefore, the Washington state gambling commission, the Washington horse racing commission, and the state lottery commission shall jointly develop informational signs concerning problem and pathological gambling which include a toll-free hot line number for problem and pathological gamblers. The signs shall be placed in the establishments of gambling licensees, horse racing licensees, and lottery retailers. In addition, the Washington state gambling commission, the Washington horse racing commission, and the state lottery commission may also contract with other qualified entities to provide public awareness, training, and other services to ensure the intent of this section is fulfilled. (2)(a) During any period in which RCW 82.04.285(2) is in effect, the commission may not increase fees payable by licensees under its jurisdiction for the purpose of funding services for problem and pathological gambling. Any fee imposed or increased by the commission, for the purpose of funding these services, before July 1, 2005, shall have no force and effect after July 1, 2005. (b) During any period in which RCW 82.04.285(2) is not in effect: (i) The commission, the Washington state horse racing commission, and the state lottery commission may contract for services, in addition to those authorized in subsection (1) (2006 Ed.) Gambling—1973 Act of this section, to assist in providing for treatment of problem and pathological gambling; and (ii) The commission may increase fees payable by licenses [licensees] under its jurisdiction for the purpose of funding the services authorized in this section for problem and pathological gamblers. [2005 c 369 § 9; 2003 c 75 § 1; 1994 c 218 § 6.] Findings—Intent—Severability—Effective date—2005 c 369: See notes following RCW 43.20A.890. Effective date—1994 c 218: See note following RCW 9.46.010. 9.46.072 9.46.072 Pathological gambling behavior—Warning. An entity licensed under RCW 9.46.070(1) which conducts or allows its premises to be used for conducting bingo on more than three occasions per week shall include the following statement in any advertising or promotion of gambling activity conducted by the licensee: "CAUTION: Participation in gambling activity may result in pathological gambling behavior causing emotional and financial harm. For help, call 1800-547-6133." For purposes of this section, "advertising" includes print media, point-of-sale advertising, electronic media, billboards, and radio advertising. [2002 c 369 § 3.] 9.46.075 9.46.075 Gambling commission—Denial, suspension, or revocation of license, permit—Other provisions not applicable. The commission may deny an application, or suspend or revoke any license or permit issued by it, for any reason or reasons, it deems to be in the public interest. These reasons shall include, but not be limited to, cases wherein the applicant or licensee, or any person with any interest therein: (1) Has violated, failed or refused to comply with the provisions, requirements, conditions, limitations or duties imposed by chapter 9.46 RCW and any amendments thereto, or any rules adopted by the commission pursuant thereto, or when a violation of any provision of chapter 9.46 RCW, or any commission rule, has occurred upon any premises occupied or operated by any such person or over which he or she has substantial control; (2) Knowingly causes, aids, abets, or conspires with another to cause, any person to violate any of the laws of this state or the rules of the commission; (3) Has obtained a license or permit by fraud, misrepresentation, concealment, or through inadvertence or mistake; (4) Has been convicted of, or forfeited bond upon a charge of, or pleaded guilty to, forgery, larceny, extortion, conspiracy to defraud, wilful failure to make required payments or reports to a governmental agency at any level, or filing false reports therewith, or of any similar offense or offenses, or of bribing or otherwise unlawfully influencing a public official or employee of any state or the United States, or of any crime, whether a felony or misdemeanor involving any gambling activity or physical harm to individuals or involving moral turpitude; (5) Denies the commission or its authorized representatives, including authorized local law enforcement agencies, access to any place where a licensed activity is conducted or who fails promptly to produce for inspection or audit any (2006 Ed.) 9.46.080 book, record, document or item required by law or commission rule; (6) Shall fail to display its license on the premises where the licensed activity is conducted at all times during the operation of the licensed activity; (7) Makes a misrepresentation of, or fails to disclose, a material fact to the commission; (8) Fails to prove, by clear and convincing evidence, that he, she or it is qualified in accordance with the provisions of this chapter; (9) Is subject to current prosecution or pending charges, or a conviction which is under appeal, for any of the offenses included under subsection (4) of this section: PROVIDED, That at the request of an applicant for an original license, the commission may defer decision upon the application during the pendency of such prosecution or appeal; (10) Has pursued or is pursuing economic gain in an occupational manner or context which is in violation of the criminal or civil public policy of this state if such pursuit creates probable cause to believe that the participation of such person in gambling or related activities would be inimical to the proper operation of an authorized gambling or related activity in this state. For the purposes of this section, occupational manner or context shall be defined as the systematic planning, administration, management or execution of an activity for financial gain; (11) Is a career offender or a member of a career offender cartel or an associate of a career offender or career offender cartel in such a manner which creates probable cause to believe that the association is of such a nature as to be inimical to the policy of this chapter or to the proper operation of the authorized gambling or related activities in this state. For the purposes of this section, career offender shall be defined as any person whose behavior is pursued in an occupational manner or context for the purpose of economic gain utilizing such methods as are deemed criminal violations of the public policy of this state. A career offender cartel shall be defined as any group of persons who operate together as career offenders. For the purpose of reviewing any application for a license and for considering the denial, suspension or revocation of any license the gambling commission may consider any prior criminal conduct of the applicant or licensee and the provisions of RCW 9.95.240 and of chapter 9.96A RCW shall not apply to such cases. [1981 c 139 § 4; 1975 1st ex.s. c 166 § 12.] Severability—1981 c 139: See note following RCW 9.46.070. Severability—1975 1st ex.s. c 166: See note following RCW 9.46.090. 9.46.077 9.46.077 Gambling commission—Vacation of certain suspensions upon payment of monetary penalty. The commission, when suspending any license for a period of thirty days or less, may further provide in the order of suspension that such suspension shall be vacated upon payment to the commission of a monetary penalty in an amount then fixed by the commission. [1981 c 139 § 5.] Severability—1981 c 139: See note following RCW 9.46.070. 9.46.080 9.46.080 Gambling commission—Administrator— Staff—Rules and regulations—Service contracts. The [Title 9 RCW—page 51] 9.46.085 Title 9 RCW: Crimes and Punishments commission shall employ a full time director, who shall be the administrator for the commission in carrying out its powers and duties and who shall issue rules and regulations adopted by the commission governing the activities authorized hereunder and shall supervise commission employees in carrying out the purposes and provisions of this chapter. In addition, the director shall employ a deputy director, not more than three assistant directors, together with such investigators and enforcement officers and such staff as the commission determines is necessary to carry out the purposes and provisions of this chapter. The director, the deputy director, the assistant directors, and personnel occupying positions requiring the performing of undercover investigative work shall be exempt from the provisions of chapter 41.06 RCW, as now law or hereafter amended. Neither the director nor any commission employee working therefor shall be an officer or manager of any bona fide charitable or bona fide nonprofit organization, or of any organization which conducts gambling activity in this state. The director, subject to the approval of the commission, is authorized to enter into agreements on behalf of the commission for mutual assistance and services, based upon actual costs, with any state or federal agency or with any city, town, or county, and such state or local agency is authorized to enter into such an agreement with the commission. If a needed service is not available from another agency of state government within a reasonable time, the director may obtain that service from private industry. [1994 c 218 § 14; 1981 c 139 § 6; 1977 ex.s. c 326 § 4; 1974 ex.s. c 155 § 7; 1974 ex.s. c 135 § 7; 1973 1st ex.s. c 218 § 8.] Effective date—1994 c 218: See note following RCW 9.46.010. Severability—1981 c 139: See note following RCW 9.46.070. Severability—1974 ex.s. c 155: See note following RCW 9.46.010. 9.46.085 9.46.085 Gambling commission—Members and employees—Activities prohibited. A member or employee of the gambling commission shall not: (1) Serve as an officer or manager of any corporation or organization which conducts a lottery or gambling activity; (2) Receive or share in, directly or indirectly, the gross profits of any gambling activity regulated by the commission; (3) Be beneficially interested in any contract for the manufacture or sale of gambling devices, the conduct of [a] gambling activity, or the provision of independent consultant services in connection with a gambling activity. [1986 c 4 § 1.] 9.46.090 9.46.090 Gambling commission—Reports. Subject to RCW 40.07.040, the commission shall, from time to time, make reports to the governor and the legislature covering such matters in connection with this chapter as the governor and the legislature may require. These reports shall be public documents and contain such general information and remarks as the commission deems pertinent thereto and any information requested by either the governor or members of the legislature: PROVIDED, That the commission appointed pursuant to RCW 9.46.040 may conduct a thorough study of the types of gambling activity permitted and the types of gambling activity prohibited by this chapter and may make recommendations to the legislature as to: (1) Gambling activity [Title 9 RCW—page 52] that ought to be permitted; (2) gambling activity that ought to be prohibited; (3) the types of licenses and permits that ought to be required; (4) the type and amount of tax that ought to be applied to each type of permitted gambling activity; (5) any changes which may be made to the law of this state which further the purposes and policies set forth in RCW 9.46.010 as now law or hereafter amended; and (6) any other matter that the commission may deem appropriate. Members of the commission and its staff may contact the legislature, or any of its members, at any time, to advise it of recommendations of the commission. [1987 c 505 § 3; 1981 c 139 § 7; 1977 c 75 § 4; 1975 1st ex.s. c 166 § 4; 1973 1st ex.s. c 218 § 9.] Severability—1981 c 139: See note following RCW 9.46.070. Severability—1975 1st ex.s. c 166: "If any provision of this 1975 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1975 1st ex.s. c 166 § 15.] 9.46.095 9.46.095 Gambling commission—Proceedings against, jurisdiction—Immunity from liability. No court of the state of Washington other than the superior court of Thurston county shall have jurisdiction over any action or proceeding against the commission or any member thereof for anything done or omitted to be done in or arising out of the performance of his or her duties under this title: PROVIDED, That an appeal from an adjudicative proceeding involving a final decision of the commission to deny, suspend, or revoke a license shall be governed by chapter 34.05 RCW, the Administrative Procedure Act. Neither the commission nor any member or members thereof shall be personally liable in any action at law for damages sustained by any person because of any acts performed or done, or omitted to be done, by the commission or any member of the commission, or any employee of the commission, in the performance of his or her duties and in the administration of this title. [1989 c 175 § 41; 1981 c 139 § 17.] Effective date—1989 c 175: See note following RCW 34.05.010. Severability—1981 c 139: See note following RCW 9.46.070. 9.46.100 9.46.100 Gambling revolving fund—Created— Receipts—Disbursements—Use. There is hereby created the gambling revolving fund which shall consist of all moneys receivable for licensing, penalties, forfeitures, and all other moneys, income, or revenue received by the commission. The state treasurer shall be custodian of the fund. All moneys received by the commission or any employee thereof, except for change funds and an amount of petty cash as fixed by rule or regulation of the commission, shall be deposited each day in a depository approved by the state treasurer and transferred to the state treasurer to be credited to the gambling revolving fund. Disbursements from the revolving fund shall be on authorization of the commission or a duly authorized representative thereof. In order to maintain an effective expenditure and revenue control the gambling revolving fund shall be subject in all respects to chapter 43.88 RCW but no appropriation shall be required to permit expenditures and payment of obligations from such fund. All expenses relative to commission business, including but not limited to salaries and expenses of the director and other commission employees shall be paid from the gambling revolving fund. (2006 Ed.) Gambling—1973 Act During the 2003-2005 fiscal biennium, the legislature may transfer from the gambling revolving fund to the problem gambling treatment account, contingent on enactment of chapter ..., Laws of 2004 (*Second Substitute House Bill No. 2776, problem gambling treatment). Also during the 20032005 fiscal biennium, the legislature may transfer from the gambling revolving fund to the state general fund such amounts as reflect the excess nontribal fund balance of the fund. The commission shall not increase fees during the 2003-2005 fiscal biennium for the purpose of restoring the excess fund balance transferred under this section. [2004 c 276 § 903; 2002 c 371 § 901; 1991 sp.s. c 16 § 917; 1985 c 405 § 505; 1977 ex.s. c 326 § 5; 1973 1st ex.s. c 218 § 10.] *Reviser’s note: Second Substitute House Bill No. 2776 was not enacted during the 2004 legislative session. Severability—Effective date—2004 c 276: See notes following RCW 43.330.167. Severability—2002 c 371: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2002 c 371 § 926.] Effective date—2002 c 371: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [April 5, 2002]." [2002 c 371 § 927.] Severability—1991 sp.s. c 16: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1991 sp.s. c 16 § 926.] Effective date—1991 sp.s. c 16: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1991 except for section 916, which shall take effect immediately." [1991 sp.s. c 16 § 927.] Severability—1985 c 405: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 405 § 510.] 9.46.110 9.46.110 Taxation of gambling activities—Limitations—Restrictions on punch boards and pull-tabs— Lien. (1) The legislative authority of any county, citycounty, city, or town, by local law and ordinance, and in accordance with the provisions of this chapter and rules adopted under this chapter, may provide for the taxing of any gambling activity authorized by this chapter within its jurisdiction, the tax receipts to go to the county, city-county, city, or town so taxing the activity. Any such tax imposed by a county alone shall not apply to any gambling activity within a city or town located in the county but the tax rate established by a county, if any, shall constitute the tax rate throughout the unincorporated areas of such county. (2) The operation of punch boards and pull-tabs are subject to the following conditions: (a) Chances may only be sold to adults; (b) The price of a single chance may not exceed one dollar; (c) No punch board or pull-tab license may award as a prize upon a winning number or symbol being drawn the opportunity of taking a chance upon any other punch board or pull-tab; (d) All prizes available to be won must be described on an information flare. All merchandise prizes must be on display within the immediate area of the premises in which any (2006 Ed.) 9.46.110 such punch board or pull-tab is located. Upon a winning number or symbol being drawn, a merchandise prize must be immediately removed from the display and awarded to the winner. All references to cash or merchandise prizes, with a value over twenty dollars, must be removed immediately from the information flare when won, or such omission shall be deemed a fraud for the purposes of this chapter; and (e) When any person wins money or merchandise from any punch board or pull-tab over an amount determined by the commission, every licensee shall keep a public record of the award for at least ninety days containing such information as the commission shall deem necessary. (3)(a) Taxation of bingo and raffles shall never be in an amount greater than five percent of the gross receipts from a bingo game or raffle less the amount awarded as cash or merchandise prizes. (b) Taxation of amusement games shall only be in an amount sufficient to pay the actual costs of enforcement of the provisions of this chapter by the county, city or town law enforcement agency and in no event shall such taxation exceed two percent of the gross receipts from the amusement game less the amount awarded as prizes. (c) No tax shall be imposed under the authority of this chapter on bingo or amusement games when such activities or any combination thereof are conducted by any bona fide charitable or nonprofit organization as defined in this chapter, which organization has no paid operating or management personnel and has gross receipts from bingo or amusement games, or a combination thereof, not exceeding five thousand dollars per year, less the amount awarded as cash or merchandise prizes. (d) No tax shall be imposed on the first ten thousand dollars of gross receipts less the amount awarded as cash or merchandise prizes from raffles conducted by any bona fide charitable or nonprofit organization as defined in this chapter. (e) Taxation of punch boards and pull-tabs for bona fide charitable or nonprofit organizations is based on gross receipts from the operation of the games less the amount awarded as cash or merchandise prizes, and shall not exceed a rate of ten percent. At the option of the county, city-county, city, or town, the taxation of punch boards and pull-tabs for commercial stimulant operators may be based on gross receipts from the operation of the games, and may not exceed a rate of five percent, or may be based on gross receipts from the operation of the games less the amount awarded as cash or merchandise prizes, and may not exceed a rate of ten percent. (f) Taxation of social card games may not exceed twenty percent of the gross revenue from such games. (4) Taxes imposed under this chapter become a lien upon personal and real property used in the gambling activity in the same manner as provided for under RCW 84.60.010. The lien shall attach on the date the tax becomes due and shall relate back and have priority against real and personal property to the same extent as ad valorem taxes. [1999 c 221 § 1; 1997 c 394 § 4; 1994 c 301 § 2; 1991 c 161 § 1; 1987 c 4 § 39. Prior: 1985 c 468 § 2; 1985 c 172 § 1; 1981 c 139 § 8; 1977 ex.s. c 198 § 1; 1974 ex.s. c 155 § 8; 1974 ex.s. c 135 § 8; 1973 1st ex.s. c 218 § 11.] Effective date—1999 c 221: "This act takes effect January 1, 2000." [1999 c 221 § 2.] [Title 9 RCW—page 53] 9.46.113 Title 9 RCW: Crimes and Punishments Severability—1981 c 139: See note following RCW 9.46.070. Severability—1974 ex.s. c 155: See note following RCW 9.46.010. 9.46.113 9.46.113 Taxation of gambling activities—Disbursement. Any county, city or town which collects a tax on gambling activities authorized pursuant to RCW 9.46.110 shall use the revenue from such tax primarily for the purpose of enforcement of the provisions of this chapter by the county, city or town law enforcement agency. [1975 1st ex.s. c 166 § 11.] Severability—1975 1st ex.s. c 166: See note following RCW 9.46.090. 9.46.116 9.46.116 Fees on pull-tab and punchboard sales. The commission shall charge fees or increased fees on pull tabs sold over-the-counter and on sales from punchboards and pull tab devices at levels necessary to assure that the increased revenues are equal or greater to the amount of revenue lost by removing the special tax on coin-operated gambling devices by the 1984 repeal of *RCW 9.46.115. [1985 c 7 § 2; 1984 c 135 § 2.] *Reviser’s note: RCW 9.46.115 was repealed by 1984 c 135 § 1, effective July 1, 1984. Effective date—1984 c 135: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1984." [1984 c 135 § 3.] 9.46.120 9.46.120 Restrictions on management or operation personnel—Restriction on leased premises. (1) Except in the case of an agricultural fair as authorized under chapters 15.76 and 36.37 RCW, no person other than a member of a bona fide charitable or nonprofit organization (and their employees) or any other person, association or organization (and their employees) approved by the commission, shall take any part in the management or operation of any gambling activity authorized under this chapter unless approved by the commission. No person who takes any part in the management or operation of any such gambling activity shall take any part in the management or operation of any gambling activity conducted by any other organization or any other branch of the same organization unless approved by the commission. No part of the proceeds of the activity shall inure to the benefit of any person other than the organization conducting such gambling activities or if such gambling activities be for the charitable benefit of any specific persons designated in the application for a license, then only for such specific persons as so designated. (2) No bona fide charitable or nonprofit organization or any other person, association or organization shall conduct any gambling activity authorized under this chapter in any leased premises if rental for such premises is unreasonable or to be paid, wholly or partly, on the basis of a percentage of the receipts or profits derived from such gambling activity. [1997 c 394 § 3; 1987 c 4 § 40; 1973 1st ex.s. c 218 § 12.] 9.46.130 9.46.130 Inspection and audit of premises, paraphernalia, books, and records—Reports for the commission. The premises and paraphernalia, and all the books and records of any person, association or organization conducting gambling activities authorized under this chapter and any person, association or organization receiving profits there[Title 9 RCW—page 54] from or having any interest therein shall be subject to inspection and audit at any reasonable time, with or without notice, upon demand, by the commission or its designee, the attorney general or his designee, the chief of the Washington state patrol or his designee or the prosecuting attorney, sheriff or director of public safety or their designees of the county wherein located, or the chief of police or his designee of any city or town in which said organization is located, for the purpose of determining compliance or noncompliance with the provisions of this chapter and any rules or regulations or local ordinances adopted pursuant thereto. A reasonable time for the purpose of this section shall be: (1) If the items or records to be inspected or audited are located anywhere upon a premises any portion of which is regularly open to the public or members and guests, then at any time when the premises are so open, or at which they are usually open; or (2) if the items or records to be inspected or audited are not located upon a premises set out in subsection (1) above, then any time between the hours of 8:00 a.m. and 9:00 p.m., Monday through Friday. The commission shall be provided at such reasonable intervals as the commission shall determine with a report, under oath, detailing all receipts and disbursements in connection with such gambling activities together with such other reasonable information as required in order to determine whether such activities comply with the purposes of this chapter or any local ordinances relating thereto. [1981 c 139 § 10; 1975 1st ex.s. c 166 § 7; 1973 1st ex.s. c 218 § 13.] Severability—1981 c 139: See note following RCW 9.46.070. Severability—1975 1st ex.s. c 166: See note following RCW 9.46.090. 9.46.140 9.46.140 Gambling commission—Investigations— Inspections—Hearing and subpoena power—Administrative law judges. (1) The commission or its authorized representative may: (a) Make necessary public or private investigations within or outside of this state to determine whether any person has violated or is about to violate this chapter or any rule or order hereunder, or to aid in the enforcement of this chapter or in the prescribing of rules and forms hereunder; and (b) Inspect the books, documents, and records of any person lending money to or in any manner financing any license holder or applicant for a license or receiving any income or profits from the use of such license for the purpose of determining compliance or noncompliance with the provisions of this chapter or the rules and regulations adopted pursuant thereto. (2) For the purpose of any investigation or proceeding under this chapter, the commission or an administrative law judge appointed under chapter 34.12 RCW may conduct hearings, administer oaths or affirmations, or upon the commission’s or administrative law judge’s motion or upon request of any party may subpoena witnesses, compel attendance, take depositions, take evidence, or require the production of any matter which is relevant to the investigation or proceeding, including but not limited to the existence, description, nature, custody, condition, or location of any books, documents, or other tangible things, or the identity or location of persons having knowledge or relevant facts, or (2006 Ed.) Gambling—1973 Act any other matter reasonably calculated to lead to the discovery of material evidence. (3) Upon failure to obey a subpoena or to answer questions propounded by the administrative law judge and upon reasonable notice to all persons affected thereby, the director may apply to the superior court for an order compelling compliance. (4) The administrative law judges appointed under chapter 34.12 RCW may conduct hearings respecting the suspension, revocation, or denial of licenses, who may administer oaths, admit or deny admission of evidence, compel the attendance of witnesses, issue subpoenas, issue orders, and exercise all other powers and perform all other functions set out in RCW 34.05.446, 34.05.449, and 34.05.452. (5) Except as otherwise provided in this chapter, all proceedings under this chapter shall be in accordance with the Administrative Procedure Act, chapter 34.05 RCW. [1989 c 175 § 42; 1981 c 67 § 16; 1977 ex.s. c 326 § 7; 1975 1st ex.s. c 166 § 8; 1973 1st ex.s. c 218 § 14.] Effective date—1989 c 175: See note following RCW 34.05.010. Effective dates—Severability—1981 c 67: See notes following RCW 34.12.010. Severability—1975 1st ex.s. c 166: See note following RCW 9.46.090. 9.46.150 9.46.150 Injunctions—Voiding of licenses, permits, or certificates. (1) Any activity conducted in violation of any provision of this chapter may be enjoined in an action commenced by the commission through the attorney general or by the prosecuting attorney or legal counsel of any city or town in which the prohibited activity may occur. (2) When a violation of any provision of this chapter or any rule or regulation adopted pursuant hereto has occurred on any property or premises for which one or more licenses, permits, or certificates issued by this state, or any political subdivision or public agency thereof are in effect, all such licenses, permits and certificates may be voided and no license, permit, or certificate so voided shall be issued or reissued for such property or premises for a period of up to sixty days thereafter. [1973 1st ex.s. c 218 § 15.] 9.46.153 9.46.153 Applicants and licensees—Responsibilities and duties—Waiver of liability—Investigation statement as privileged. (1) It shall be the affirmative responsibility of each applicant and licensee to establish by clear and convincing evidence the necessary qualifications for licensure of each person required to be qualified under this chapter, as well as the qualifications of the facility in which the licensed activity will be conducted; (2) All applicants and licensees shall consent to inspections, searches and seizures and the supplying of handwriting examples as authorized by this chapter and rules adopted hereunder; (3) All licensees, and persons having any interest in licensees, including but not limited to employees and agents of licensees, and other persons required to be qualified under this chapter or rules of the commission shall have a duty to inform the commission or its staff of any action or omission which they believe would constitute a violation of this chapter or rules adopted pursuant thereto. No person who so informs the commission or the staff shall be discriminated (2006 Ed.) 9.46.158 against by an applicant or licensee because of the supplying of such information; (4) All applicants, licensees, persons who are operators or directors thereof and persons who otherwise have a substantial interest therein shall have the continuing duty to provide any assistance or information required by the commission and to investigations conducted by the commission. If, upon issuance of a formal request to answer or produce information, evidence or testimony, any applicant, licensee or officer or director thereof or person with a substantial interest therein, refuses to comply, the applicant or licensee may be denied or revoked by the commission; (5) All applicants and licensees shall waive any and all liability as to the state of Washington, its agencies, employees and agents for any damages resulting from any disclosure or publication in any manner, other than a wilfully unlawful disclosure or publication, of any information acquired by the commission during its licensing or other investigations or inquiries or hearings; (6) Each applicant or licensee may be photographed for investigative and identification purposes in accordance with rules of the commission; (7) An application to receive a license under this chapter or rules adopted pursuant thereto constitutes a request for determination of the applicant’s and those person’s with an interest in the applicant, general character, integrity and ability to engage or participate in, or be associated with, gambling or related activities impacting this state. Any written or oral statement made in the course of an official investigation, proceeding or process of the commission by any member, employee or agent thereof or by any witness, testifying under oath, which is relevant to the investigation, proceeding or process, is absolutely privileged and shall not impose any liability for slander, libel or defamation, or constitute any grounds for recovery in any civil action. [1981 c 139 § 14.] Severability—1981 c 139: See note following RCW 9.46.070. 9.46.155 9.46.155 Applicants and licensees—Bribes to public officials, employees, agents—Penalty. (1) No applicant or licensee shall give or provide, or offer to give or provide, directly or indirectly, to any public official or employee or agent of this state, or any of its agencies or political subdivisions, any compensation or reward, or share of the money or property paid or received through gambling activities, in consideration for obtaining any license, authorization, permission or privilege to participate in any gaming operations except as authorized by this chapter or rules adopted pursuant thereto. (2) Violation of this section is a class C felony for which a person, upon conviction, shall be punished by imprisonment for not more than five years or a fine of not more than one hundred thousand dollars, or both. [2003 c 53 § 34; 1981 c 139 § 15.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1981 c 139: See note following RCW 9.46.070. 9.46.158 9.46.158 Applicants, licensees, operators—Commission approval for hiring certain persons. No applicant for a license from, nor licensee of, the commission, nor any oper[Title 9 RCW—page 55] 9.46.160 Title 9 RCW: Crimes and Punishments ator of any gambling activity, shall, without advance approval of the commission, knowingly permit any person to participate in the management or operation of any activity for which a license from the commission is required or which is otherwise authorized by this chapter if that person: (1) Has been convicted of, or forfeited bond upon a charge of, or pleaded guilty to, forgery, larceny, extortion, conspiracy to defraud, wilful failure to make required payments or reports to a governmental agency at any level, or filing false reports therewith, or of any similar offense or offenses, or of any crime, whether a felony or misdemeanor involving any gambling activity or physical harm to individuals or involving moral turpitude; or (2) Has violated, failed, or refused to comply with provisions, requirements, conditions, limitations or duties imposed by this chapter, and any amendments thereto, or any rules adopted by the commission pursuant thereto, or has permitted, aided, abetted, caused, or conspired with another to cause, any person to violate any of the provisions of this chapter or rules of the commission. [1981 c 139 § 18.] Severability—1981 c 139: See note following RCW 9.46.070. 9.46.160 9.46.160 Conducting activity without license. Any person who conducts any activity for which a license is required by this chapter, or by rule of the commission, without the required license issued by the commission shall be guilty of a class B felony. If any corporation conducts any activity for which a license is required by this chapter, or by rule of the commission, without the required license issued by the commission, it may be punished by forfeiture of its corporate charter, in addition to the other penalties set forth in this section. [1991 c 261 § 3; 1975 1st ex.s. c 166 § 9; 1973 1st ex.s. c 218 § 16.] Severability—1975 1st ex.s. c 166: See note following RCW 9.46.090. 9.46.170 9.46.170 False or misleading entries or statements, refusal to produce records. Whoever, in any application for a license or in any book or record required to be maintained by the commission or in any report required to be submitted to the commission, shall make any false or misleading statement, or make any false or misleading entry or wilfully fail to maintain or make any entry required to be maintained or made, or who wilfully refuses to produce for inspection by the commission, or its designee, any book, record, or document required to be maintained or made by federal or state law, shall be guilty of a gross misdemeanor subject to the penalty set forth in RCW 9A.20.021. [1991 c 261 § 4; 1973 1st ex.s. c 218 § 17.] 9.46.180 9.46.180 Causing person to violate chapter. Any person who knowingly causes, aids, abets, or conspires with another to cause any person to violate any provision of this chapter shall be guilty of a class B felony subject to the penalty in RCW 9A.20.021. [1991 c 261 § 5; 1977 ex.s. c 326 § 8; 1973 1st ex.s. c 218 § 18.] gross misdemeanor subject to the penalty set forth in RCW 9A.20.021. [1991 c 261 § 6; 1977 ex.s. c 326 § 9.] 9.46.190 9.46.190 Violations relating to fraud or deceit. Any person or association or organization operating any gambling activity who or which, directly or indirectly, shall in the course of such operation: (1) Employ any device, scheme, or artifice to defraud; or (2) Make any untrue statement of a material fact, or omit to state a material fact necessary in order to make the statement made not misleading, in the light of the circumstances under which said statement is made; or (3) Engage in any act, practice or course of operation as would operate as a fraud or deceit upon any person; Shall be guilty of a gross misdemeanor subject to the penalty set forth in RCW 9A.20.021. [1991 c 261 § 7; 1977 ex.s. c 326 § 10; 1973 1st ex.s. c 218 § 19.] 9.46.192 9.46.192 Cities and towns—Ordinance enacting certain sections of chapter—Limitations—Penalties. Every city or town is authorized to enact as an ordinance of that city or town any or all of the sections of this chapter the violation of which constitutes a misdemeanor or gross misdemeanor. The city or town may not modify the language of any section of this chapter in enacting such section except as necessary to put the section in the proper form of an ordinance or to provide for a sentence [to] be served in the appropriate detention facility. The ordinance must provide for the same maximum penalty for its violation as may be imposed under the section in this chapter. [1977 ex.s. c 326 § 11.] 9.46.193 9.46.193 Cities and towns—Ordinance adopting certain sections of chapter—Jurisdiction of courts. District courts operating under the provisions of chapters 3.30 through 3.74 RCW, except municipal departments of such courts operating under chapter 3.46 RCW and municipal courts operating under chapter 3.50 RCW, shall have concurrent jurisdiction with the superior court to hear, try, and determine misdemeanor and gross misdemeanor violations of this chapter and violations of any ordinance passed under authority of this chapter by any city or town. Municipal courts operating under chapters 35.20 or 3.50 RCW and municipal departments of the district court operating under chapter 3.46 RCW, shall have concurrent jurisdiction with the superior court to hear, try, and determine violations of any ordinance passed under authority of this chapter by the city or town in which the court is located. Notwithstanding any other provision of law, each of these courts shall have the jurisdiction and power to impose up to the maximum penalties provided for the violation of the ordinances adopted under the authority of this chapter. Review of the judgments of these courts shall be as provided in other criminal actions. [1977 ex.s. c 326 § 12.] 9.46.195 9.46.185 9.46.185 Causing person to violate rule or regulation. Any person who knowingly causes, aids, abets, or conspires with another to cause any person to violate any rule or regulation adopted pursuant to this chapter shall be guilty of a [Title 9 RCW—page 56] 9.46.195 Obstruction of public servant—Penalty. No person shall intentionally obstruct or attempt to obstruct a public servant in the administration or enforcement of this chapter by using or threatening to use physical force or by means of any unlawful act. Any person who violates this sec(2006 Ed.) Gambling—1973 Act tion shall be guilty of a misdemeanor. [1974 ex.s. c 155 § 11; 1974 ex.s. c 135 § 11.] Severability—1974 ex.s. c 155: See note following RCW 9.46.010. 9.46.196 9.46.196 Cheating—Defined. "Cheating," as used in this chapter, means to: (1) Employ or attempt to employ any device, scheme, or artifice to defraud any other participant or any operator; (2) Engage in any act, practice, or course of operation as would operate as a fraud or deceit upon any other participant or any operator; (3) Engage in any act, practice, or course of operation while participating in a gambling activity with the intent of cheating any other participant or the operator to gain an advantage in the game over the other participant or operator; or (4) Cause, aid, abet, or conspire with another person to cause any other person to violate subsections (1) through (3) of this section. [2002 c 253 § 1; 1991 c 261 § 8; 1977 ex.s. c 326 § 13.] 9.46.1961 9.46.1961 Cheating in the first degree. (1) A person is guilty of cheating in the first degree if he or she engages in cheating and: (a) Knowingly causes, aids, abets, or conspires with another to engage in cheating; or (b) Holds a license or similar permit issued by the state of Washington to conduct, manage, or act as an employee in an authorized gambling activity. (2) Cheating in the first degree is a class C felony subject to the penalty set forth in RCW 9A.20.021. In addition to any other penalties imposed by law for a conviction of a violation of this section the court may impose an additional penalty of up to twenty thousand dollars. [2002 c 253 § 2.] 9.46.1962 9.46.1962 Cheating in the second degree. (1) A person is guilty of cheating in the second degree if he or she engages in cheating and his or her conduct does not constitute cheating in the first degree. (2) Cheating in the second degree is a gross misdemeanor subject to the penalty set forth in RCW 9A.20.021. [2002 c 253 § 3.] 9.46.198 9.46.198 Working in gambling activity without license as violation—Penalty. Any person who works as an employee or agent or in a similar capacity for another person in connection with the operation of an activity for which a license is required under this chapter or by commission rule without having obtained the applicable license required by the commission under RCW 9.46.070(17) shall be guilty of a gross misdemeanor and shall, upon conviction, be punished by not more than one year in the county jail or a fine of not more than five thousand dollars, or both. [1999 c 143 § 7; 1977 ex.s. c 326 § 14.] 9.46.200 9.46.200 Action for money damages due to violations—Interest—Attorneys’ fees—Evidence for exoneration. In addition to any other penalty provided for in this chapter, every person, directly or indirectly controlling the operation of any gambling activity authorized by this chapter, (2006 Ed.) 9.46.210 including a director, officer, and/or manager of any association, organization or corporation conducting the same, whether charitable, nonprofit, or profit, shall be liable, jointly and severally, for money damages suffered by any person because of any violation of this chapter, together with interest on any such amount of money damages at six percent per annum from the date of the loss, and reasonable attorneys’ fees: PROVIDED, That if any such director, officer, and/or manager did not know any such violation was taking place and had taken all reasonable care to prevent any such violation from taking place, and if such director, officer and/or manager shall establish by a preponderance of the evidence that he did not have such knowledge and that he had exercised all reasonable care to prevent the violations he shall not be liable hereunder. Any civil action under this section may be considered a class action. [1987 c 4 § 41; 1974 ex.s. c 155 § 10; 1974 ex.s. c 135 § 10; 1973 1st ex.s. c 218 § 20.] Severability—1974 ex.s. c 155: See note following RCW 9.46.010. 9.46.210 9.46.210 Enforcement—Commission as a law enforcement agency. (1) It shall be the duty of all peace officers, law enforcement officers, and law enforcement agencies within this state to investigate, enforce, and prosecute all violations of this chapter. (2) In addition to the authority granted by subsection (1) of this section law enforcement agencies of cities and counties shall investigate and report to the commission all violations of the provisions of this chapter and of the rules of the commission found by them and shall assist the commission in any of its investigations and proceedings respecting any such violations. Such law enforcement agencies shall not be deemed agents of the commission. (3) In addition to its other powers and duties, the commission shall have the power to enforce the penal provisions of *chapter 218, Laws of 1973 1st ex. sess. and as it may be amended, and the penal laws of this state relating to the conduct of or participation in gambling activities and the manufacturing, importation, transportation, distribution, possession, and sale of equipment or paraphernalia used or for use in connection therewith. The director, the deputy director, both assistant directors, and each of the commission’s investigators, enforcement officers, and inspectors shall have the power, under the supervision of the commission, to enforce the penal provisions of *chapter 218, Laws of 1973 1st ex. sess. and as it may be amended, and the penal laws of this state relating to the conduct of or participation in gambling activities and the manufacturing, importation, transportation, distribution, possession, and sale of equipment or paraphernalia used or for use in connection therewith. They shall have the power and authority to apply for and execute all warrants and serve process of law issued by the courts in enforcing the penal provisions of *chapter 218, Laws of 1973 1st ex. sess. and as it may be amended, and the penal laws of this state relating to the conduct of or participation in gambling activities and the manufacturing, importation, transportation, distribution, possession, and sale of equipment or paraphernalia used or for use in connection therewith. They shall have the power to arrest without a warrant, any person or persons found in the act of violating any of the penal provisions of *chapter 218, Laws of 1973 1st ex. sess. and as it may be [Title 9 RCW—page 57] 9.46.215 Title 9 RCW: Crimes and Punishments amended, and the penal laws of this state relating to the conduct of or participation in gambling activities and the manufacturing, importation, transportation, distribution, possession, and sale of equipment or paraphernalia used or for use in connection therewith. To the extent set forth above, the commission shall be a law enforcement agency of this state with the power to investigate for violations of and to enforce the provisions of this chapter, as now law or hereafter amended, and to obtain information from and provide information to all other law enforcement agencies. (4) Criminal history record information that includes nonconviction data, as defined in RCW 10.97.030, may be disseminated by a criminal justice agency to the Washington state gambling commission for any purpose associated with the investigation for suitability for involvement in gambling activities authorized under this chapter. The Washington state gambling commission shall only disseminate nonconviction data obtained under this section to criminal justice agencies. [2000 c 46 § 1; 1981 c 139 § 11; 1977 ex.s. c 326 § 15; 1975 1st ex.s. c 166 § 10; 1974 ex.s. c 155 § 9; 1974 ex.s. c 135 § 9; 1973 1st ex.s. c 218 § 21.] *Reviser’s note: 1973 1st ex.s. c 218 consisted entirely of chapter 9.46 RCW and the repeal of various former laws regulating gambling. Severability—1981 c 139: See note following RCW 9.46.070. Severability—1975 1st ex.s. c 166: See note following RCW 9.46.090. Severability—1974 ex.s. c 155: See note following RCW 9.46.010. 9.46.215 9.46.215 Ownership or interest in gambling device— Penalty—Exceptions. (1) Whoever knowingly owns, manufactures, possesses, buys, sells, rents, leases, finances, holds a security interest in, stores, repairs, or transports any gambling device or offers or solicits any interest therein, whether through an agent or employee or otherwise, is guilty of a class C felony and shall be fined not more than one hundred thousand dollars or imprisoned not more than five years or both. (2) This section does not apply to persons licensed by the commission, or who are otherwise authorized by this chapter, or by commission rule, to conduct gambling activities without a license, respecting devices that are to be used, or are being used, solely in that activity for which the license was issued, or for which the person has been otherwise authorized if: (a) The person is acting in conformance with this chapter and the rules adopted under this chapter; and (b) The devices are a type and kind traditionally and usually employed in connection with the particular activity. (3) This section also does not apply to any act or acts by the persons in furtherance of the activity for which the license was issued, or for which the person is authorized, when the activity is conducted in compliance with this chapter and in accordance with the rules adopted under this chapter. (4) In the enforcement of this section direct possession of any such a gambling device is presumed to be knowing possession thereof. [2003 c 53 § 35; 1994 c 218 § 9.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Effective date—1994 c 218: See note following RCW 9.46.010. 9.46.217 9.46.217 Gambling records—Penalty—Exceptions. Whoever knowingly prints, makes, possesses, stores, or [Title 9 RCW—page 58] transports any gambling record, or buys, sells, offers, or solicits any interest therein, whether through an agent or employee or otherwise, is guilty of a gross misdemeanor. However, this section does not apply to records relating to and kept for activities authorized by this chapter when the records are of the type and kind traditionally and usually employed in connection with the particular activity. This section also does not apply to any act or acts in furtherance of the activities when conducted in compliance with this chapter and in accordance with the rules adopted under this chapter. In the enforcement of this section direct possession of any such a gambling record is presumed to be knowing possession thereof. [1994 c 218 § 10.] Effective date—1994 c 218: See note following RCW 9.46.010. 9.46.220 9.46.220 Professional gambling in the first degree. (1) A person is guilty of professional gambling in the first degree if he or she engages in, or knowingly causes, aids, abets, or conspires with another to engage in professional gambling as defined in this chapter, and: (a) Acts in concert with or conspires with five or more people; or (b) Personally accepts wagers exceeding five thousand dollars during any thirty-day period on future contingent events; or (c) The operation for whom the person works, or with which the person is involved, accepts wagers exceeding five thousand dollars during any thirty-day period on future contingent events; or (d) Operates, manages, or profits from the operation of a premises or location where persons are charged a fee to participate in card games, lotteries, or other gambling activities that are not authorized by this chapter or licensed by the commission. (2) However, this section shall not apply to those activities enumerated in RCW 9.46.0305 through 9.46.0361 or to any act or acts in furtherance of such activities when conducted in compliance with the provisions of this chapter and in accordance with the rules adopted pursuant to this chapter. (3) Professional gambling in the first degree is a class B felony subject to the penalty set forth in RCW 9A.20.021. [1997 c 78 § 2; 1994 c 218 § 11; 1991 c 261 § 10; 1987 c 4 § 42; 1973 1st ex.s. c 218 § 22.] Effective date—1994 c 218: See note following RCW 9.46.010. 9.46.221 9.46.221 Professional gambling in the second degree. (1) A person is guilty of professional gambling in the second degree if he or she engages in or knowingly causes, aids, abets, or conspires with another to engage in professional gambling as defined in this chapter, and: (a) Acts in concert with or conspires with less than five people; or (b) Accepts wagers exceeding two thousand dollars during any thirty-day period on future contingent events; or (c) The operation for whom the person works, or with which the person is involved, accepts wagers exceeding two thousand dollars during any thirty-day period on future contingent events; or (d) Maintains a "gambling premises" as defined in this chapter; or (2006 Ed.) Gambling—1973 Act (e) Maintains gambling records as defined in RCW 9.46.0253. (2) However, this section shall not apply to those activities enumerated in RCW 9.46.0305 through 9.46.0361 or to any act or acts in furtherance of such activities when conducted in compliance with the provisions of this chapter and in accordance with the rules adopted pursuant to this chapter. (3) Professional gambling in the second degree is a class C felony subject to the penalty set forth in RCW 9A.20.021. [1997 c 78 § 3; 1994 c 218 § 12; 1991 c 261 § 11.] Effective date—1994 c 218: See note following RCW 9.46.010. 9.46.222 9.46.222 Professional gambling in the third degree. (1) A person is guilty of professional gambling in the third degree if he or she engages in, or knowingly causes, aids, abets, or conspires with another to engage in professional gambling as defined in this chapter, and: (a) His or her conduct does not constitute first or second degree professional gambling; (b) He or she operates any of the unlicensed gambling activities authorized by this chapter in a manner other than as prescribed by this chapter; or (c) He or she is directly employed in but not managing or directing any gambling operation. (2) This section shall not apply to those activities enumerated in RCW 9.46.0305 through 9.46.0361 or to any acts in furtherance of such activities when conducted in compliance with the provisions of this chapter and the rules adopted pursuant to this chapter. (3) Professional gambling in the third degree is a gross misdemeanor subject to the penalty established in RCW 9A.20.021. [1994 c 218 § 13; 1991 c 261 § 12.] Effective date—1994 c 218: See note following RCW 9.46.010. 9.46.225 9.46.225 Professional gambling—Penalties not applicable to authorized activities. The penalties provided for professional gambling in this chapter shall not apply to the activities authorized by this chapter when conducted in compliance with the provisions of this chapter and in accordance with the rules and regulations of the commission. [1987 c 4 § 37. Formerly RCW 9.46.030(11).] 9.46.231 9.46.231 Gambling devices, real and personal property—Seizure and forfeiture. (1) The following are subject to seizure and forfeiture and no property right exists in them: (a) All gambling devices as defined in this chapter; (b) All furnishings, fixtures, equipment, and stock, including without limitation furnishings and fixtures adaptable to nongambling uses and equipment and stock for printing, recording, computing, transporting, or safekeeping, used in connection with professional gambling or maintaining a gambling premises; (c) All conveyances, including aircraft, vehicles, or vessels, that are used, or intended for use, in any manner to facilitate the sale, delivery, receipt, or operation of any gambling device, or the promotion or operation of a professional gambling activity, except that: (i) A conveyance used by any person as a common carrier in the transaction of business as a common carrier is not subject to forfeiture under this section unless it appears that (2006 Ed.) 9.46.231 the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter; (ii) A conveyance is not subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner’s knowledge or consent; (iii) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission; and (iv) If the owner of a conveyance has been arrested under this chapter the conveyance in which the person is arrested may not be subject to forfeiture unless it is seized or process is issued for its seizure within ten days of the owner’s arrest; (d) All books, records, and research products and materials, including formulas, microfilm, tapes, and electronic data that are used, or intended for use, in violation of this chapter; (e) All moneys, negotiable instruments, securities, or other tangible or intangible property of value at stake or displayed in or in connection with professional gambling activity or furnished or intended to be furnished by any person to facilitate the promotion or operation of a professional gambling activity; (f) All tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to professional gambling activity and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this chapter. A forfeiture of money, negotiable instruments, securities, or other tangible or intangible property encumbered by a bona fide security interest is subject to the interest of the secured party if, at the time the security interest was created, the secured party neither had knowledge of nor consented to the act or omission. Personal property may not be forfeited under this subsection (1)(f), to the extent of the interest of an owner, by reason of any act or omission that that owner establishes was committed or omitted without the owner’s knowledge or consent; and (g) All real property, including any right, title, and interest in the whole of any lot or tract of land, and any appurtenances or improvements that: (i) Have been used with the knowledge of the owner for the manufacturing, processing, delivery, importing, or exporting of any illegal gambling equipment, or operation of a professional gambling activity that would constitute a felony violation of this chapter; or (ii) Have been acquired in whole or in part with proceeds traceable to a professional gambling activity, if the activity is not less than a class C felony. Real property forfeited under this chapter that is encumbered by a bona fide security interest remains subject to the interest of the secured party if the secured party, at the time the security interest was created, neither had knowledge of nor consented to the act or omission. Property may not be forfeited under this subsection, to the extent of the interest of an owner, by reason of any act or omission committed or omitted without the owner’s knowledge or consent. (2)(a) A law enforcement officer of this state may seize real or personal property subject to forfeiture under this chapter upon process issued by any superior court having jurisdiction over the property. Seizure of real property includes the [Title 9 RCW—page 59] 9.46.231 Title 9 RCW: Crimes and Punishments filing of a lis pendens by the seizing agency. Real property seized under this section may not be transferred or otherwise conveyed until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later, but real property seized under this section may be transferred or conveyed to any person or entity who acquires title by foreclosure or deed in lieu of foreclosure of a bona fide security interest. (b) Seizure of personal property without process may be made if: (i) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant; (ii) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter; (iii) A law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or (iv) The law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this chapter. (3) In the event of seizure under subsection (2) of this section, proceedings for forfeiture are deemed commenced by the seizure. The law enforcement agency under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, including any community property interest, of the seizure and intended forfeiture of the seized property. Service of notice of seizure of real property must be made according to the rules of civil procedure. However, the state may not obtain a default judgment with respect to real property against a party who is served by substituted service absent an affidavit stating that a good faith effort has been made to ascertain if the defaulted party is incarcerated within the state, and that there is no present basis to believe that the party is incarcerated within the state. Notice of seizure in the case of property subject to a security interest that has been perfected by filing a financing statement in accordance with *chapter 62A.9 RCW, or a certificate of title, must be made by service upon the secured party or the secured party’s assignee at the address shown on the financing statement or the certificate of title. The notice of seizure in other cases may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail is deemed complete upon mailing within the fifteen-day period following the seizure. (4) If no person notifies the seizing law enforcement agency in writing of the person’s claim of ownership or right to possession of items specified in subsection (1) of this section within forty-five days of the seizure in the case of personal property and ninety days in the case of real property, the item seized is deemed forfeited. The community property interest in real property of a person whose spouse committed a violation giving rise to seizure of the real property may not be forfeited if the person did not participate in the violation. (5) If any person notifies the seizing law enforcement agency in writing of the person’s claim of ownership or right to possession of items specified in subsection (1) of this section within forty-five days of the seizure in the case of per[Title 9 RCW—page 60] sonal property and ninety days in the case of real property, the person or persons must be afforded a reasonable opportunity to be heard as to the claim or right. The hearing must be before the chief law enforcement officer of the seizing agency or the chief law enforcement officer’s designee, except if the seizing agency is a state agency as defined in RCW 34.12.020(4), the hearing must be before the chief law enforcement officer of the seizing agency or an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of competent jurisdiction. Removal of any matter involving personal property may only be accomplished according to the rules of civil procedure. The person seeking removal of the matter must serve process against the state, county, political subdivision, or municipality that operates the seizing agency, and any other party of interest, in accordance with RCW 4.28.080 or 4.92.020, within fortyfive days after the person seeking removal has notified the seizing law enforcement agency of the person’s claim of ownership or right to possession. The court to which the matter is to be removed must be the district court if the aggregate value of personal property is within the jurisdictional limit set forth in RCW 3.66.020. A hearing before the seizing agency and any appeal therefrom must be under Title 34 RCW. In a court hearing between two or more claimants to the article or articles involved, the prevailing party is entitled to a judgment for costs and reasonable attorneys’ fees. In cases involving personal property, the burden of producing evidence is upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of the property. In cases involving property seized under subsection (1)(a) of this section, the only issues to be determined by the tribunal are whether the item seized is a gambling device, and whether the device is an antique device as defined by RCW 9.46.235. In cases involving real property, the burden of producing evidence is upon the law enforcement agency. The burden of proof that the seized real property is subject to forfeiture is upon the law enforcement agency. The seizing law enforcement agency shall promptly return the article or articles to the claimant upon a final determination by the administrative law judge or court that the claimant is the present lawful owner or is lawfully entitled to possession thereof of items specified in subsection (1) of this section. (6) If property is forfeited under this chapter the seizing law enforcement agency may: (a) Retain it for official use or upon application by any law enforcement agency of this state release the property to the agency for training or use in enforcing this chapter; (b) Sell that which is not required to be destroyed by law and which is not harmful to the public; or (c) Destroy any articles that may not be lawfully possessed within the state of Washington, or that have a fair market value of less than one hundred dollars. (7)(a) If property is forfeited, the seizing agency shall keep a record indicating the identity of the prior owner, if known, a description of the property, the disposition of the property, the value of the property at the time of seizure, and the amount of proceeds realized from disposition of the property. The net proceeds of forfeited property is the value of the forfeitable interest in the property after deducting the cost of (2006 Ed.) Gambling—1973 Act satisfying any bona fide security interest to which the property is subject at the time of seizure, and in the case of sold property, after deducting the cost of sale, including reasonable fees or commissions paid to independent selling agents. (b) Each seizing agency shall retain records of forfeited property for at least seven years. (8) The seizing law enforcement agency shall retain forfeited property and net proceeds exclusively for the expansion and improvement of gambling-related law enforcement activity. Money retained under this section may not be used to supplant preexisting funding sources. (9) Gambling devices that are possessed, transferred, sold, or offered for sale in violation of this chapter are contraband and must be seized and summarily forfeited to the state. Gambling equipment that is seized or comes into the possession of a law enforcement agency, the owners of which are unknown, are contraband and must be summarily forfeited to the state. (10) Upon the entry of an order of forfeiture of real property, the court shall forward a copy of the order to the assessor of the county in which the property is located. The superior court shall enter orders for the forfeiture of real property, subject to court rules. The seizing agency shall file such an order in the county auditor’s records in the county in which the real property is located. (11)(a) A landlord may assert a claim against proceeds from the sale of assets seized and forfeited under subsection (6)(b) of this section, only if: (i) A law enforcement officer, while acting in his or her official capacity, directly caused damage to the complaining landlord’s property while executing a search of a tenant’s residence; and (ii) The landlord has applied any funds remaining in the tenant’s deposit, to which the landlord has a right under chapter 59.18 RCW, to cover the damage directly caused by a law enforcement officer before asserting a claim under this section. (A) Only if the funds applied under (a)(ii) of this subsection are insufficient to satisfy the damage directly caused by a law enforcement officer, may the landlord seek compensation for the damage by filing a claim against the governmental entity under whose authority the law enforcement agency operates within thirty days after the search; and (B) Only if the governmental entity denies or fails to respond to the landlord’s claim within sixty days of the date of filing, may the landlord collect damages under this subsection by filing within thirty days of denial or the expiration of the sixty-day period, whichever occurs first, a claim with the seizing law enforcement agency. The seizing law enforcement agency shall notify the landlord of the status of the claim by the end of the thirty-day period. This section does not require the claim to be paid by the end of the sixty-day or thirty-day period. (b) For any claim filed under (a)(ii) of this subsection, the law enforcement agency shall pay the claim unless the agency provides substantial proof that the landlord either: (i) Knew or consented to actions of the tenant in violation of this chapter; or (ii) Failed to respond to a notification of the illegal activity, provided by a law enforcement agency within seven days of receipt of notification of the illegal activity. (2006 Ed.) 9.46.240 (12) The landlord’s claim for damages under subsection (11) of this section may not include a claim for loss of business and is limited to: (a) Damage to tangible property and clean-up costs; (b) The lesser of the cost of repair or fair market value of the damage directly caused by a law enforcement officer; (c) The proceeds from the sale of the specific tenant’s property seized and forfeited under subsection (6)(b) of this section; and (d) The proceeds available after the seizing law enforcement agency satisfies any bona fide security interest in the tenant’s property and costs related to sale of the tenant’s property as provided by subsection (7)(a) of this section. (13) Subsections (11) and (12) of this section do not limit any other rights a landlord may have against a tenant to collect for damages. However, if a law enforcement agency satisfies a landlord’s claim under subsection (11) of this section, the rights the landlord has against the tenant for damages directly caused by a law enforcement officer under the terms of the landlord and tenant’s contract are subrogated to the law enforcement agency. (14) Liability is not imposed by this section upon any authorized state, county, or municipal officer, including a commission special agent, in the lawful performance of his or her duties. [1997 c 128 § 1; 1994 c 218 § 7.] *Reviser’s note: Chapter 62A.9 RCW was repealed in its entirety by 2000 c 250 § 9A-901, effective July 1, 2001. For later enactment, see chapter 62A.9A RCW. Effective date—1994 c 218: See note following RCW 9.46.010. 9.46.235 9.46.235 Slot machines, antique—Defenses concerning—Presumption created. (1) For purposes of a prosecution under RCW 9.46.215 or a seizure, confiscation, or destruction order under RCW 9.46.231, it shall be a defense that the gambling device involved is an antique slot machine and that the antique slot machine was not operated for gambling purposes while in the owner’s or defendant’s possession. Operation of an antique slot machine shall be only by free play or with coins provided at no cost by the owner. No slot machine, having been seized under this chapter, may be altered, destroyed, or disposed of without affording the owner thereof an opportunity to present a defense under this section. If the defense is applicable, the antique slot machine shall be returned to the owner or defendant, as the court may direct. (2) RCW 9.46.231 shall have no application to any antique slot machine that has not been operated for gambling purposes while in the owner’s possession. (3) For the purposes of this section, a slot machine shall be conclusively presumed to be an antique slot machine if it is at least twenty-five years old. (4) RCW 9.46.231 and 9.46.215 do not apply to gambling devices on board a passenger cruise ship which has been registered and bonded with the federal maritime commission, if the gambling devices are not operated for gambling purposes within the state. [1994 c 218 § 15; 1987 c 191 § 1; 1977 ex.s. c 165 § 1.] Effective date—1994 c 218: See note following RCW 9.46.010. 9.46.240 9.46.240 Gambling information, transmitting or receiving. Whoever knowingly transmits or receives gam[Title 9 RCW—page 61] 9.46.250 Title 9 RCW: Crimes and Punishments bling information by telephone, telegraph, radio, semaphore, the internet, a telecommunications transmission system, or similar means, or knowingly installs or maintains equipment for the transmission or receipt of gambling information shall be guilty of a class C felony subject to the penalty set forth in RCW 9A.20.021. However, this section shall not apply to such information transmitted or received or equipment installed or maintained relating to activities authorized by this chapter or to any act or acts in furtherance thereof when conducted in compliance with the provisions of this chapter and in accordance with the rules adopted under this chapter. [2006 c 290 § 2; 1991 c 261 § 9; 1987 c 4 § 44; 1973 1st ex.s. c 218 § 24.] State policy—2006 c 290: "It is the policy of this state to prohibit all forms and means of gambling, except where carefully and specifically authorized and regulated. With the advent of the internet and other technologies and means of communication that were not contemplated when either the gambling act was enacted in 1973, or the lottery commission was created in 1982, it is appropriate for this legislature to reaffirm the policy prohibiting gambling that exploits such new technologies." [2006 c 290 § 1.] 9.46.250 9.46.250 Gambling property or premises—Common nuisances, abatement—Termination of interests, licenses—Enforcement. (1) All gambling premises are common nuisances and shall be subject to abatement by injunction or as otherwise provided by law. The plaintiff in any action brought under this subsection against any gambling premises, need not show special injury and may, in the discretion of the court, be relieved of all requirements as to giving security. (2) When any property or premise held under a mortgage, contract or leasehold is determined by a court having jurisdiction to be a gambling premises, all rights and interests of the holder therein shall terminate and the owner shall be entitled to immediate possession at his election: PROVIDED, HOWEVER, That this subsection shall not apply to those premises in which activities authorized by this chapter or any act or acts in furtherance thereof are carried on when conducted in compliance with the provisions of this chapter and in accordance with the rules and regulations adopted pursuant thereto. (3) When any property or premises for which one or more licenses issued by the commission are in effect, is determined by a court having jurisdiction to be a gambling premise, all such licenses may be voided and no longer in effect, and no license so voided shall be issued or reissued for such property or premises for a period of up to sixty days thereafter. Enforcement of this subsection shall be the duty of all peace officers and all taxing and licensing officials of this state and its political subdivisions and other public agencies. This subsection shall not apply to property or premises in which activities authorized by this chapter, or any act or acts in furtherance thereof, are carried on when conducted in compliance with the provisions of this chapter and in accordance with the rules and regulations adopted pursuant thereto. [1987 c 4 § 45; 1973 1st ex.s. c 218 § 25.] 9.46.260 9.46.260 Proof of possession as evidence of knowledge of its character. Proof of possession of any device used for professional gambling or any record relating to professional gambling specified in RCW 9.46.215 is prima facie [Title 9 RCW—page 62] evidence of possession thereof with knowledge of its character or contents. [1994 c 218 § 16; 1973 1st ex.s. c 218 § 26.] Effective date—1994 c 218: See note following RCW 9.46.010. 9.46.270 9.46.270 Taxing authority, exclusive. This chapter shall constitute the exclusive legislative authority for the taxing by any city, town, city-county or county of any gambling activity and its application shall be strictly construed to those activities herein permitted and to those persons, associations or organizations herein permitted to engage therein. [1973 1st ex.s. c 218 § 27.] 9.46.285 9.46.285 Licensing and regulation authority, exclusive. This chapter constitutes the exclusive legislative authority for the licensing and regulation of any gambling activity and the state preempts such licensing and regulatory functions, except as to the powers and duties of any city, town, city-county, or county which are specifically set forth in this chapter. Any ordinance, resolution, or other legislative act by any city, town, city-county, or county relating to gambling in existence on September 27, 1973 shall be as of that date null and void and of no effect. Any such city, town, citycounty, or county may thereafter enact only such local law as is consistent with the powers and duties expressly granted to and imposed upon it by chapter 9.46 RCW and which is not in conflict with that chapter or with the rules of the commission. [1973 2nd ex.s. c 41 § 8.] 9.46.291 9.46.291 State lottery exemption. The provisions of this chapter shall not apply to the conducting, operating, participating, or selling or purchasing of tickets or shares in the "lottery" or "state lottery" as defined in RCW 67.70.010 when such conducting, operating, participating, or selling or purchasing is in conformity to the provisions of chapter 67.70 RCW and to the rules adopted thereunder. [1982 2nd ex.s. c 7 § 39.] Construction—Severability—1982 2nd ex.s. c 7: See RCW 67.70.902 and 67.70.903. 9.46.293 9.46.293 Fishing derbies exempted. Any fishing derby, defined under RCW 9.46.0229, shall not be subject to any other provisions of this chapter or to any rules or regulations of the commission. [1989 c 8 § 1; 1975 1st ex.s. c 166 § 13.] Severability—1975 1st ex.s. c 166: See note following RCW 9.46.090. 9.46.295 9.46.295 Licenses, scope of authority—Exception. Any license to engage in any of the gambling activities authorized by this chapter as now exists or as hereafter amended, and issued under the authority thereof shall be legal authority to engage in the gambling activities for which issued throughout the incorporated and unincorporated area of any county, except that a city located therein with respect to that city, or a county with respect to all areas within that county except for such cities, may absolutely prohibit, but may not change the scope of license, any or all of the gambling activities for which the license was issued. [1974 ex.s. c 155 § 6; 1974 ex.s. c 135 § 6.] Severability—1974 ex.s. c 155: See note following RCW 9.46.010. (2006 Ed.) Gambling—1973 Act 9.46.300 9.46.300 Licenses and reports—Public inspection— Exceptions and requirements—Charges. All applications for licenses made to the commission, with the exception of any portions of the applications describing the arrest or conviction record of any person, and all reports required by the commission to be filed by its licensees on a periodic basis concerning the operation of the licensed activity or concerning any organization, association, or business in connection with which a licensed activity is operated, in the commission files, shall be open to public inspection at the commission’s offices upon a prior written request of the commission. The staff of the commission may decline to allow an inspection until such time as the inspection will not unduly interfere with the other duties of the staff. The commission may charge the person making a request for an inspection an amount necessary to offset the costs to the commission of providing the inspection and copies of any requested documents. [1977 ex.s. c 326 § 17.] 9.46.310 9.46.310 Licenses for manufacture, sale, distribution, or supply of gambling devices. No person shall manufacture, and no person shall sell, distribute, furnish or supply to any other person, any gambling device, including but not limited to punchboards and pull tabs, in this state, or for use within this state, without first obtaining a license to do so from the commission under the provisions of this chapter. Such licenses shall not be issued by the commission except respecting devices which are designed and permitted for use in connection with activities authorized under this chapter: PROVIDED, That this requirement for licensure shall apply only insofar as the commission has adopted, or may adopt, rules implementing it as to particular categories of gambling devices and related equipment. [1981 c 139 § 13.] Severability—1981 c 139: See note following RCW 9.46.070. 9.46.350 9.46.350 Civil action to collect fees, interest, penalties, or tax—Writ of attachment—Records as evidence. At any time within five years after any amount of fees, interest, penalties, or tax which is imposed pursuant to this chapter, or rules adopted pursuant thereto, shall become due and payable, the attorney general, on behalf of the commission, may bring a civil action in the courts of this state, or any other state, or of the United States, to collect the amount delinquent, together with penalties and interest: PROVIDED, That where the tax is one imposed by a county, city or town under RCW 9.46.110, any such action shall be brought by that county, city or town on its own behalf. An action may be brought whether or not the person owing the amount is at such time a licensee pursuant to the provisions of this chapter. If such an action is brought in the courts of this state, a writ of attachment may be issued and no bond or affidavit prior to the issuance thereof shall be required. In all actions in this state, the records of the commission, or the appropriate county, city or town, shall be prima facie evidence of the determination of the tax due or the amount of the delinquency. [1981 c 139 § 16.] Severability—1981 c 139: See note following RCW 9.46.070. (2006 Ed.) 9.46.360 9.46.360 9.46.360 Indian tribes—Compact negotiation process. (1) The negotiation process for compacts with federally recognized Indian tribes for conducting class III gaming, as defined in the Indian Gaming Regulatory Act, 25 U.S.C. Sec. 2701 et seq., on federal Indian lands is governed by this section. (2) The gambling commission through the director or the director’s designee shall negotiate compacts for class III gaming on behalf of the state with federally recognized Indian tribes in the state of Washington. (3) When a tentative agreement with an Indian tribe on a proposed compact is reached, the director shall immediately transmit a copy of the proposed compact to all voting and ex officio members of the gambling commission and to the standing committees designated pursuant to subsection (5) of this section. (4) Notwithstanding RCW 9.46.040, the four ex officio members of the gambling commission shall be deemed voting members of the gambling commission for the sole purpose of voting on proposed compacts submitted under this section. (5) Within thirty days after receiving a proposed compact from the director, one standing committee from each house of the legislature shall hold a public hearing on the proposed compact and forward its respective comments to the gambling commission. The president of the senate shall designate the senate standing committee that is to carry out the duties of this section, and the speaker of the house of representatives shall designate the house standing committee that is to carry out the duties of this section. The designated committees shall continue to perform under this section until the president of the senate or the speaker of the house of representatives, as the case may be, designates a different standing committee. (6) The gambling commission may hold public hearings on the proposed compact any time after receiving a copy of the compact from the director. Within forty-five days after receiving the proposed compact from the director, the gambling commission, including the four ex officio members, shall vote on whether to return the proposed compact to the director with instructions for further negotiation or to forward the proposed compact to the governor for review and final execution. (7) Notwithstanding provisions in this section to the contrary, if the director forwards a proposed compact to the gambling commission and the designated standing committees within ten days before the beginning of a regular session of the legislature, or during a regular or special session of the legislature, the thirty-day time limit set forth in subsection (5) of this section and the forty-five day limit set forth in subsection (6) of this section are each forty-five days and sixty days, respectively. (8) Funding for the negotiation process under this section must come from the gambling revolving fund. (9) In addition to the powers granted under this chapter, the commission, consistent with the terms of any compact, is authorized and empowered to enforce the provisions of any compact between a federally recognized Indian tribe and the state of Washington. [1992 c 172 § 2.] Severability—1992 c 172: See note following RCW 43.06.010. [Title 9 RCW—page 63] 9.46.36001 Title 9 RCW: Crimes and Punishments 9.46.36001 9.46.36001 Tribal actions—Federal jurisdiction. (Expires July 30, 2007.) Until July 30, 2007, the state consents to the jurisdiction of the federal courts in actions brought by a tribe pursuant to the Indian Gaming Regulatory Act of 1988 or seeking enforcement of a state/tribal compact adopted under the Indian Gaming Regulatory Act, conditioned upon the tribe entering into such a compact and providing similar consent. This limited waiver of sovereign immunity shall not extend to actions other than those expressly set forth herein and properly filed on or before July 29, 2007. This section expires July 30, 2007. [2001 c 236 § 1.] 9.46.400 9.46.400 Wildlife raffle. Any raffle authorized by the fish and wildlife commission involving hunting big game animals or wild turkeys shall not be subject to any provisions of this chapter other than RCW 9.46.010 and this section or to any rules or regulations of the gambling commission. [1996 c 101 § 3.] Findings—1996 c 101: See note following RCW 77.32.530. 9.46.410 9.46.410 Use of public assistance electronic benefit cards prohibited—Licensee to report violations. (1) Any licensee authorized under this chapter is prohibited from allowing the use of public assistance electronic benefit cards for the purpose of participating in any of the activities authorized under this chapter. (2) Any licensee authorized under this chapter shall report to the department of social and health services any known violations of RCW 74.08.580. [2002 c 252 § 2.] 9.46.420 9.46.420 RCW 9.46.410 to be negotiated with Indian tribes. The commission shall consider the provisions of RCW 9.46.410 as elements to be negotiated with federally recognized Indian tribes as provided in RCW 9.46.360. [2002 c 252 § 3.] 9.46.900 9.46.900 Severability—1973 1st ex.s. c 218. If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances is not affected. [1973 1st ex.s. c 218 § 31.] Reviser’s note: See note following RCW 9.46.010. 9.46.901 9.46.901 Intent—1987 c 4. The separation of definitions and authorized activities provisions of the state’s gambling statutes into shorter sections is intended to improve the readability and facilitate the future amendment of these sections. This separation shall not change the meaning of any of the provisions involved. [1987 c 4 § 1.] 9.46.902 9.46.902 Construction—1987 c 4. This act shall not be construed as affecting any existing right acquired or liability or obligation incurred under the sections amended or repealed in this act or under any rule, regulation, or order adopted under those sections, nor as affecting any proceeding instituted under those sections. [1987 c 4 § 48.] policy on gambling regarding the frequency of state lottery drawings, the means of addressing problem and compulsive gambling, and the enforcement of the state’s gambling laws. Chapter 218, Laws of 1994 is intended to clarify the specific types of games prohibited in chapter 9.46 RCW and is not intended to add to existing law regarding prohibited activities. The legislature recognizes that slot machines, video pulltabs, video poker, and other electronic games of chance have been considered to be gambling devices before April 1, 1994. [1994 c 218 § 1.] Effective date—1994 c 218: See note following RCW 9.46.010. Chapter 9.47 Chapter 9.47 RCW GAMBLING Sections 9.47.080 9.47.090 9.47.100 9.47.120 Bucket shop defined. Maintaining bucket shop—Penalty. Written statement to be furnished—Presumption. Bunco steering. Action to recover leased premises used for gambling: RCW 4.24.080. money lost at gambling: RCW 4.24.070, 4.24.090. Baseball, bribery and illegal practices: RCW 67.04.010, 67.04.020, 67.04.050. Gaming apparatus, search and seizure: RCW 10.79.015. Sporting contests, fraud: RCW 67.24.010. 9.47.080 9.47.080 Bucket shop defined. A bucket shop is hereby defined to be a shed, tent, tenement, booth, building, float or vessel, or any part thereof, wherein may be made contracts respecting the purchase or sale upon margin or credit of any commodities, securities, or property, or option for the purchase thereof, wherein both parties intend that such contract shall or may be terminated, closed and settled; either, (1) Upon the basis of the market prices quoted or made on any board of trade or exchange upon which such commodities, securities, or property may be dealt in; or, (2) When the market prices for such commodities, securities or property shall reach a certain figure in any such board of trade or exchange; or, (3) On the basis of the difference in the market prices at which said commodities, securities or property are, or purport to be, bought and sold. [1909 c 249 § 223; RRS § 2475.] Securities and investments: Title 21 RCW. 9.47.090 9.47.090 Maintaining bucket shop—Penalty. Every person, whether in his or her own behalf, or as agent, servant or employee of another person, within or outside of this state, who shall open, conduct or carry on any bucket shop, or make or offer to make any contract described in RCW 9.47.080, or with intent to make such a contract, or assist therein, shall receive, exhibit, or display any statement of market prices of any commodities, securities, or property, is guilty of a class C felony and shall be punished by imprisonment in a state correctional facility for not more than five years. [2003 c 53 § 36; 1992 c 7 § 13; 1909 c 249 § 224; RRS § 2476.] 9.46.903 9.46.903 Intent—1994 c 218. The legislature intends with chapter 218, Laws of 1994 to clarify the state’s public [Title 9 RCW—page 64] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. (2006 Ed.) Inhaling Toxic Fumes 9.47.100 Written statement to be furnished—Presumption. Every person, whether in his own behalf, or as the servant, agent or employee of another person, within or outside of this state, who shall buy or sell for another, or execute any order for the purchase or sale of any commodities, securities or property, upon margin or credit, whether for immediate or future delivery, shall, upon written demand therefor, furnish such principal or customer with a written statement containing the names of the persons from whom such property was bought, or to whom it has been sold, as the case may be, the time when, the place where, the amount of, and the price at which the same was either bought or sold; and if such person shall refuse or neglect to furnish such statement within forty-eight hours after such written demand, such refusal shall be prima facie evidence as against him that such purchase or sale was made in violation of RCW 9.47.090. [1909 c 249 § 225; RRS § 2477.] 9.47.100 9.47.120 9.47.120 Bunco steering. Every person who shall entice, or induce another, upon any pretense, to go to any place where any gambling game, scheme or device, or any trick, sleight of hand performance, fraud or fraudulent scheme, cards, dice or device, is being conducted or operated; or while in such place shall entice or induce another to bet, wager or hazard any money or property, or representative of either, upon any such game, scheme, device, trick, sleight of hand performance, fraud or fraudulent scheme, cards, dice, or device, or to execute any obligation for the payment of money, or delivery of property, or to lose, advance, or loan any money or property, or representative of either, is guilty of a class B felony and shall be punished by imprisonment in a state correctional facility for not more than ten years. [2003 c 53 § 37; 1992 c 7 § 14; 1909 c 249 § 227; RRS § 2479.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Swindling: Chapter 9A.60 RCW. Chapter 9.47A Chapter 9.47A RCW INHALING TOXIC FUMES (Formerly: Glue sniffing) Sections 9.47A.010 9.47A.020 9.47A.030 9.47A.040 9.47A.050 Definition. Unlawful inhalation—Exception. Possession of certain substances prohibited, when. Sale of certain substances prohibited, when. Penalty. 9.47A.010 Definition. As used in this chapter, the phrase "substance containing a solvent having the property of releasing toxic vapors or fumes" shall mean and include any substance containing one or more of the following chemical compounds: (1) Acetone; (2) Amylacetate; (3) Benzol or benzene; (4) Butyl acetate; (5) Butyl alcohol; (6) Carbon tetrachloride; (7) Chloroform; (8) Cyclohexanone; (9) Ethanol or ethyl alcohol; 9.47A.010 (2006 Ed.) Chapter 9.51 (10) Ethyl acetate; (11) Hexane; (12) Isopropanol or isopropyl alcohol; (13) Isopropyl acetate; (14) Methyl "cellosolve" acetate; (15) Methyl ethyl ketone; (16) Methyl isobutyl ketone; (17) Toluol or toluene; (18) Trichloroethylene; (19) Tricresyl phosphate; (20) Xylol or xylene; or (21) Any other solvent, material substance, chemical, or combination thereof, having the property of releasing toxic vapors. [1984 c 68 § 1; 1969 ex.s. c 149 § 1.] 9.47A.020 9.47A.020 Unlawful inhalation—Exception. It is unlawful for any person to intentionally smell or inhale the fumes of any type of substance as defined in RCW 9.47A.010 or to induce any other person to do so, for the purpose of causing a condition of, or inducing symptoms of intoxication, elation, euphoria, dizziness, excitement, irrational behavior, exhilaration, paralysis, stupefaction, or dulling of the senses of the nervous system, or for the purpose of, in any manner, changing, distorting, or disturbing the audio, visual, or mental processes. This section does not apply to the inhalation of any anesthesia for medical or dental purposes. [1984 c 68 § 2; 1969 ex.s. c 149 § 2.] 9.47A.030 9.47A.030 Possession of certain substances prohibited, when. No person may, for the purpose of violating RCW 9.47A.020, use, or possess for the purpose of so using, any substance containing a solvent having the property of releasing toxic vapors or fumes. [1984 c 68 § 3; 1969 ex.s. c 149 § 3.] 9.47A.040 9.47A.040 Sale of certain substances prohibited, when. No person may sell, offer to sell, deliver, or give to any other person any container of a substance containing a solvent having the property of releasing toxic vapors or fumes, if he has knowledge that the product sold, offered for sale, delivered, or given will be used for the purpose set forth in RCW 9.47A.020. [1984 c 68 § 4; 1969 ex.s. c 149 § 4.] 9.47A.050 9.47A.050 Penalty. Any person who violates this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than thirty days, or by both. [1969 ex.s. c 149 § 5.] Chapter 9.51 Chapter 9.51 RCW JURIES, CRIMES RELATING TO Sections 9.51.010 9.51.020 9.51.030 9.51.040 9.51.050 9.51.060 Misconduct of officer drawing jury. Soliciting jury duty. Misconduct of officer in charge of jury. Grand juror acting after challenge allowed. Disclosing transaction of grand jury. Disclosure of deposition returned by grand jury. Grand juries: Chapter 10.27 RCW. Juries: Chapter 2.36 RCW. [Title 9 RCW—page 65] 9.51.010 Title 9 RCW: Crimes and Punishments Juror asking or receiving bribe: RCW 9A.72.100. Trial district courts: Chapter 12.12 RCW. generally: Chapter 4.44 RCW. 9.51.010 Misconduct of officer drawing jury. Every person charged by law with the preparation of any jury list or list of names from which any jury is to be drawn, and every person authorized by law to assist at the drawing of a grand or petit jury to attend a court or term of court or to try any cause or issue, who shall— (1) Place in any such list any name at the request or solicitation, direct or indirect, of any person; or (2) Designedly put upon the list of jurors, as having been drawn, any name which was not lawfully drawn for that purpose; or (3) Designedly omit to place upon such list any name which was lawfully drawn; or (4) Designedly sign or certify a list of such jurors as having been drawn which were not lawfully drawn; or (5) Designedly and wrongfully withdraw from the box or other receptacle for the ballots containing the names of such jurors any paper or ballot lawfully placed or belonging there and containing the name of a juror, or omit to place therein any name lawfully drawn or designated, or place therein a paper or ballot containing the name of a person not lawfully drawn and designated as a juror; or (6) In drawing or impanelling such jury, do any act which is unfair, partial or improper in any respect; Shall be guilty of a gross misdemeanor. [1909 c 249 § 75; Code 1881 § 922; 1854 p 94 § 107; RRS § 2327.] 9.51.010 9.51.020 9.51.020 Soliciting jury duty. Every person who shall, directly or indirectly, solicit or request any person charged with the duty of preparing any jury list to put his name, or the name of any other person, on any such list, shall be guilty of a gross misdemeanor. [1909 c 249 § 76; 1888 p 114 § 1; RRS § 2328.] 9.51.030 Misconduct of officer in charge of jury. Every person to whose charge a jury shall be committed by a court or magistrate, who shall knowingly, without leave of such court or magistrate, permit them or any one of them to receive any communication from any person, to make any communication to any person, to obtain or receive any book, paper or refreshment, or to leave the jury room, shall be guilty of a gross misdemeanor. [1909 c 249 § 77; RRS § 2329.] 9.51.030 cial duty, shall disclose the fact that a presentment has been made or indictment found or ordered against any person, before such person shall be in custody; and every grand juror, clerk or stenographer who, except when lawfully required by a court or officer, shall disclose any evidence adduced before the grand jury, or any proceeding, discussion or vote of the grand jury or any member thereof, shall be guilty of a misdemeanor. [1909 c 249 § 126; Code 1881 § 991; 1854 p 111 § 56; RRS § 2378.] 9.51.060 9.51.060 Disclosure of deposition returned by grand jury. Every clerk of any court or other officer who shall wilfully permit any deposition, or the transcript of any testimony, returned by a grand jury and filed with such clerk or officer, to be inspected by any person except the court, the deputies or assistants of such clerk, and the prosecuting attorney and his deputies, until after the arrest of the defendant, shall be guilty of a misdemeanor. [1909 c 249 § 127; RRS § 2379.] Chapter 9.54 Chapter 9.54 RCW STOLEN PROPERTY RESTORATION Sections 9.54.130 Restoration of stolen property—Duty of officers. Theft and robbery: Chapter 9A.56 RCW. 9.54.130 9.54.130 Restoration of stolen property—Duty of officers. The officer arresting any person charged as principal or accessory in any robbery or larceny shall use reasonable diligence to secure the property alleged to have been stolen, and after seizure shall be answerable therefor while it remains in his hands, and shall annex a schedule thereof to his return of the warrant. Whenever the prosecuting attorney shall require such property for use as evidence upon the examination or trial, such officer, upon his demand, shall deliver it to him and take his receipt therefor, after which such prosecuting attorney shall be answerable for the same. [1909 c 249 § 357; RRS § 2609.] Chapter 9.55 RCW LEGISLATURE, CRIMES RELATING TO Chapter 9.55 Sections 9.55.020 Witness refusing to attend legislature or committee or to testify. 9.51.040 9.51.040 Grand juror acting after challenge allowed. Every grand juror who, with knowledge that a challenge interposed against him by a defendant has been allowed, shall be present at, or take part, or attempt to take part, in the consideration of the charge against the defendant who interposed such challenge, or the deliberations of the grand jury thereon, shall be guilty of a misdemeanor. [1909 c 249 § 121; RRS § 2373.] 9.51.050 9.51.050 Disclosing transaction of grand jury. Every judge, grand juror, prosecuting attorney, clerk, stenographer or other officer who, except in the due discharge of his offi[Title 9 RCW—page 66] 9.55.020 9.55.020 Witness refusing to attend legislature or committee or to testify. Every person duly summoned to attend as a witness before either house of the legislature of this state, or any committee thereof authorized to summon witnesses, who shall refuse or neglect, without lawful excuse, to attend pursuant to such summons, or who shall wilfully refuse to be sworn or to affirm or to answer any material or proper question or to produce, upon reasonable notice, any material or proper books, papers or documents in his possession or under his control, shall be guilty of a gross misdemeanor. [1909 c 249 § 86; RRS § 2338.] (2006 Ed.) Libel and Slander Candidate buying liquor for another person on election day: RCW 66.44.265. Legislative inquiry: Chapter 44.16 RCW. Chapter 9.58 Chapter 9.58 RCW LIBEL AND SLANDER Sections 9.58.010 9.58.020 9.58.030 9.58.040 9.58.050 9.58.060 9.58.070 9.58.080 9.58.090 Libel, what constitutes. How justified or excused—Malice, when presumed. Publication defined. Liability of editors and others. Report of proceedings privileged. Venue punishment restricted. Privileged communications. Furnishing libelous information. Threatening to publish libel. Blacklisting: RCW 49.44.010. 9.58.090 serial, and every owner, operator, proprietor or person exercising control over any broadcasting station or reproducting [reproducing] record of human voice or who broadcasts over the radio or reproduces the human voice or aids or abets either directly or indirectly in such broadcast or reproduction shall be chargeable with the publication of any matter so disseminated: PROVIDED, That in any prosecution or action for libel it shall be an absolute defense if the defendant shows that the matter complained of was published without his knowledge or fault and against his wishes by another who had no authority from him to make such publication and was promptly retracted by the defendant with an equal degree of publicity upon written request of the complainant. [1935 c 117 § 2; 1909 c 249 § 175; Code 1881 §§ 1230, 1231; 1879 p 144 § 1; 1869 p 383 §§ 1, 2; RRS § 2427.] Radio and television broadcasting: Chapter 19.64 RCW. Judge or justice using unfit language: RCW 42.20.110. Sufficiency of indictment or information for libel: RCW 10.37.120. 9.58.010 9.58.010 Libel, what constitutes. Every malicious publication by writing, printing, picture, effigy, sign[,] radio broadcasting or which shall in any other manner transmit the human voice or reproduce the same from records or other appliances or means, which shall tend:— (1) To expose any living person to hatred, contempt, ridicule or obloquy, or to deprive him of the benefit of public confidence or social intercourse; or (2) To expose the memory of one deceased to hatred, contempt, ridicule or obloquy; or (3) To injure any person, corporation or association of persons in his or their business or occupation, shall be libel. Every person who publishes a libel shall be guilty of a gross misdemeanor. [1935 c 117 § 1; 1909 c 249 § 172; 1891 c 69 § 3; Code 1881 §§ 1230, 1231; 1879 p 144 § 1; 1869 p 383 §§ 1, 2; RRS § 2424.] 9.58.050 9.58.050 Report of proceedings privileged. No prosecution for libel shall be maintained against a reporter, editor, proprietor, or publisher of a newspaper for the publication therein of a fair and true report of any judicial, legislative or other public and official proceeding, or of any statement, speech, argument or debate in the course of the same, without proving actual malice in making the report. The editor or proprietor of a book, newspaper or serial shall be proceeded against in the county where such book, newspaper or serial is published. [1909 c 249 § 176; RRS § 2428.] 9.58.060 9.58.060 Venue punishment restricted. Every other person publishing a libel in this state may be proceeded against in any county where such libelous matter was published or circulated, but a person shall not be proceeded against for the publication of the same libel against the same person in more than one county. [1909 c 249 § 177; RRS § 2429.] 9.58.020 9.58.020 How justified or excused—Malice, when presumed. Every publication having the tendency or effect mentioned in RCW 9.58.010 shall be deemed malicious unless justified or excused. Such publication is justified whenever the matter charged as libelous charges the commission of a crime, is a true and fair statement, and was published with good motives and for justifiable ends. It is excused when honestly made in belief of its truth and fairness and upon reasonable grounds for such belief, and consists of fair comments upon the conduct of any person in respect of public affairs, made after a fair and impartial investigation. [1909 c 249 § 173; Code 1881 § 1233; 1879 p 144 § 4; 1869 p 384 § 3; RRS § 2425.] 9.58.030 9.58.030 Publication defined. Any method by which matter charged as libelous may be communicated to another shall be deemed a publication thereof. [1909 c 249 § 174; Code 1881 § 1234; 1869 p 384 § 5; RRS § 2426.] 9.58.070 9.58.070 Privileged communications. Every communication made to a person entitled to or concerned in such communication, by one also concerned in or entitled to make it, or who stood in such relation to the former as to offer a reasonable ground for supposing his motive to be innocent, shall be presumed not to be malicious, and shall be termed a privileged communication. [1909 c 249 § 178; RRS § 2430.] 9.58.080 9.58.080 Furnishing libelous information. Every person who shall wilfully state, deliver or transmit by any means whatever, to any manager, editor, publisher, reporter or other employee of a publisher of any newspaper, magazine, publication, periodical or serial, any statement concerning any person or corporation, which, if published therein, would be a libel, shall be guilty of a misdemeanor. [1909 c 249 § 179; RRS § 2431.] 9.58.090 9.58.040 9.58.040 Liability of editors and others. Every editor or proprietor of a book, newspaper or serial, and every manager of a copartnership or corporation by which any book, newspaper or serial is issued, is chargeable with the publication of any matter contained in any such book, newspaper or (2006 Ed.) 9.58.090 Threatening to publish libel. Every person who shall threaten another with the publication of a libel concerning the latter, or his spouse, parent, child, or other member of his family, and every person who offers to prevent the publication of a libel upon another person upon condition of the payment of, or with intent to extort money or other valu[Title 9 RCW—page 67] Chapter 9.61 Title 9 RCW: Crimes and Punishments able consideration from any person, shall be guilty of a gross misdemeanor. [1909 c 249 § 180; RRS § 2432.] Effective date—1987 c 456 §§ 9-31: See RCW 7.80.901. 9.61.200 Extortion, blackmail, and coercion: Chapter 9A.56 RCW. Chapter 9.61 RCW MALICIOUS MISCHIEF—INJURY TO PROPERTY Chapter 9.61 Sections 9.61.140 9.61.150 9.61.160 9.61.190 9.61.200 9.61.230 9.61.240 9.61.250 9.61.260 Endangering life and property by explosives—Penalty. Damaging building, etc., by explosion—Penalty. Threats to bomb or injure property—Penalty. Carrier or racing pigeons—Injury to. Carrier or racing pigeons—Removal or alteration of identification. Telephone harassment. Telephone harassment—Permitting telephone to be used. Telephone harassment—Offense, where deemed committed. Cyberstalking. Endangering life by breach of labor contract: RCW 49.44.080. Insured property, injury or destruction: RCW 48.30.220. Malicious mischief: RCW 9A.48.070 through 9A.48.100. Mutilation or destruction of property by school official: RCW 28A.635.070. Nuisance: Chapter 9.66 RCW. Ownership of property—Proof of: RCW 10.58.060. Public library property, intentional injury: RCW 27.12.330. 9.61.140 Endangering life and property by explosives—Penalty. See RCW 70.74.270. 9.61.140 9.61.150 Damaging building, etc., by explosion— Penalty. See RCW 70.74.280. 9.61.150 Gas bombs, stink bombs, etc.: RCW 70.74.310. 9.61.160 Threats to bomb or injure property—Penalty. (1) It shall be unlawful for any person to threaten to bomb or otherwise injure any public or private school building, any place of worship or public assembly, any governmental property, or any other building, common carrier, or structure, or any place used for human occupancy; or to communicate or repeat any information concerning such a threatened bombing or injury, knowing such information to be false and with intent to alarm the person or persons to whom the information is communicated or repeated. (2) It shall not be a defense to any prosecution under this section that the threatened bombing or injury was a hoax. (3) A violation of this section is a class B felony punishable according to chapter 9A.20 RCW. [2003 c 53 § 38; 1977 ex.s. c 231 § 1; 1959 c 141 § 1.] 9.61.160 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.61.200 Carrier or racing pigeons—Removal or alteration of identification. It is a class 2 civil infraction for any person other than the owner thereof or his authorized agent to remove or alter any stamp, leg band, ring, or other mark of identification attached to any Antwerp Messenger or Racing Pigeon. [1987 c 456 § 26; 1963 c 69 § 2.] Legislative finding—1987 c 456: See RCW 7.80.005. Effective date—1987 c 456 §§ 9-31: See RCW 7.80.901. 9.61.230 9.61.230 Telephone harassment. (1) Every person who, with intent to harass, intimidate, torment or embarrass any other person, shall make a telephone call to such other person: (a) Using any lewd, lascivious, profane, indecent, or obscene words or language, or suggesting the commission of any lewd or lascivious act; or (b) Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues; or (c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household; is guilty of a gross misdemeanor, except as provided in subsection (2) of this section. (2) The person is guilty of a class C felony punishable according to chapter 9A.20 RCW if either of the following applies: (a) That person has previously been convicted of any crime of harassment, as defined in RCW 9A.46.060, with the same victim or member of the victim’s family or household or any person specifically named in a no-contact or noharassment order in this or any other state; or (b) That person harasses another person under subsection (1)(c) of this section by threatening to kill the person threatened or any other person. [2003 c 53 § 39; 1992 c 186 § 6; 1985 c 288 § 11; 1967 c 16 § 1.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1992 c 186: See note following RCW 9A.46.110. Effective date—Severability—1985 c 288: See RCW 9A.46.905 and 9A.46.910. Severability—1967 c 16: "If any portion of this act is held to be unconstitutional or void, such decision shall not affect the validity of the remaining parts of this act." [1967 c 16 § 4.] Communicating with child for immoral purposes: RCW 9.68A.090. Interference with telephone message: RCW 9A.48.070, 9A.48.080. 9.61.240 9.61.190 9.61.190 Carrier or racing pigeons—Injury to. It is a class 1 civil infraction for any person, other than the owner thereof or his authorized agent, to knowingly shoot, kill, maim, injure, molest, entrap, or detain any Antwerp Messenger or Racing Pigeon, commonly called "carrier or racing pigeons", having the name of its owner stamped upon its wing or tail or bearing upon its leg a band or ring with the name or initials of the owner or an identification or registration number stamped thereon. [1987 c 456 § 25; 1963 c 69 § 1.] Legislative finding—1987 c 456: See RCW 7.80.005. [Title 9 RCW—page 68] 9.61.240 Telephone harassment—Permitting telephone to be used. Any person who knowingly permits any telephone under his control to be used for any purpose prohibited by RCW 9.61.230 shall be guilty of a misdemeanor. [1967 c 16 § 2.] 9.61.250 9.61.250 Telephone harassment—Offense, where deemed committed. Any offense committed by use of a telephone as set forth in RCW 9.61.230 may be deemed to have been committed either at the place from which the telephone call or calls were made or at the place where the telephone call or calls were received. [1967 c 16 § 3.] (2006 Ed.) Malicious Prosecution—Abuse of Process 9.61.260 9.61.260 Cyberstalking. (1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party: (a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act; (b) Anonymously or repeatedly whether or not conversation occurs; or (c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household. (2) Cyberstalking is a gross misdemeanor, except as provided in subsection (3) of this section. (3) Cyberstalking is a class C felony if either of the following applies: (a) The perpetrator has previously been convicted of the crime of harassment, as defined in RCW 9A.46.060, with the same victim or a member of the victim’s family or household or any person specifically named in a no-contact order or noharassment order in this or any other state; or (b) The perpetrator engages in the behavior prohibited under subsection (1)(c) of this section by threatening to kill the person threatened or any other person. (4) Any offense committed under this section may be deemed to have been committed either at the place from which the communication was made or at the place where the communication was received. (5) For purposes of this section, "electronic communication" means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means. "Electronic communication" includes, but is not limited to, electronic mail, internet-based communications, pager service, and electronic text messaging. [2004 c 94 § 1.] Severability—2004 c 94: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2004 c 94 § 6.] Effective dates—2004 c 94: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 24, 2004], except for section 3 of this act, which takes effect July 1, 2004." [2004 c 94 § 7.] Chapter 9.62 RCW MALICIOUS PROSECUTION—ABUSE OF PROCESS Chapter 9.62 Sections 9.62.010 9.62.020 Malicious prosecution. Instituting suit in name of another. 9.66.010 1992 c 7 § 15; 1909 c 249 § 117; Code 1881 § 899; 1873 p 203 § 98; 1854 p 92 § 89; RRS § 2369.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.62.020 Instituting suit in name of another. Every person who shall institute or prosecute any action or other proceeding in the name of another, without his consent and contrary to law, shall be guilty of a gross misdemeanor. [1909 c 249 § 124; RRS § 2376.] 9.62.020 Chapter 9.66 Chapter 9.66 RCW NUISANCE Sections 9.66.010 9.66.020 9.66.030 9.66.040 9.66.050 Public nuisance. Unequal damage. Maintaining or permitting nuisance. Abatement of nuisance. Deposit of unwholesome substance. Cemeteries established illegally: RCW 68.56.040. Furnishing impure water: RCW 70.54.020. Malicious mischief—Injury to property: Chapters 9.61, 9A.48 RCW. Mausoleums and columbariums constructed illegally: RCW 68.28.060. Nuisances: Chapter 7.48 RCW. Poisoning food or water: RCW 69.40.030. Sexually transmitted disease control, penalty: RCW 70.24.080. 9.66.010 9.66.010 Public nuisance. A public nuisance is a crime against the order and economy of the state. Every place (1) Wherein any fighting between people or animals or birds shall be conducted; or, (2) Wherein any intoxicating liquors are kept for unlawful use, sale or distribution; or, (3) Where vagrants resort; and Every act unlawfully done and every omission to perform a duty, which act or omission (1) Shall annoy, injure or endanger the safety, health, comfort, or repose of any considerable number of persons; or, (2) Shall offend public decency; or, (3) Shall unlawfully interfere with, befoul, obstruct, or tend to obstruct, or render dangerous for passage, a lake, navigable river, bay, stream, canal or basin, or a public park, square, street, alley, highway, or municipal transit vehicle or station; or, (4) Shall in any way render a considerable number of persons insecure in life or the use of property; Shall be a public nuisance. [1994 c 45 § 3; 1971 ex.s. c 280 § 22; 1909 c 249 § 248; 1895 c 14 § 1; Code 1881 § 1246; RRS § 2500.] Findings—Declaration—Severability—1994 c 45: See notes following RCW 7.48.140. 9.62.010 9.62.010 Malicious prosecution. Every person who shall, maliciously and without probable cause therefor, cause or attempt to cause another to be arrested or proceeded against for any crime of which he or she is innocent: (1) If such crime be a felony, is guilty of a class C felony and shall be punished by imprisonment in a state correctional facility for not more than five years; and (2) If such crime be a gross misdemeanor or misdemeanor, shall be guilty of a misdemeanor. [2003 c 53 § 40; (2006 Ed.) Severability—Construction—1971 ex.s. c 280: "If any provision of this 1971 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected: PROVIDED, That should provisions of this 1971 amendatory act pertaining to the playing of bingo, or holding raffles, permitting the operation of amusement games be held invalid or unconstitutional by the supreme court of the state of Washington as being violative of Article II, section 24, of the Constitution of the state of Washington, then the provisions hereof relating to each such item as aforesaid specifically declared invalid or unconstitutional by such court shall remain inoperative unless and until the qualified electors of this state shall approve an [Title 9 RCW—page 69] 9.66.020 Title 9 RCW: Crimes and Punishments amendment to Article II, section 24, of the Constitution which may remove any constitutional restrictions against the legislature enacting such laws." [1971 ex.s. c 280 § 21.] Chapter 9.68 Chapter 9.68 RCW OBSCENITY AND PORNOGRAPHY Boxing and wrestling regulated: Chapter 67.08 RCW. Sections Devices simulating traffic control signs declared public nuisance: RCW 47.36.180. 9.68.015 9.68.030 9.68.050 9.68.060 Highway obstructions: Chapter 47.32 RCW. Navigation, obstructing: Chapter 88.28 RCW. Parimutuel betting on horse races permitted: RCW 67.16.060. 9.66.020 9.66.020 Unequal damage. An act which affects a considerable number of persons in any of the ways specified in RCW 9.66.010 is not less a public nuisance because the extent of the damage is unequal. [1909 c 249 § 249; Code 1881 § 1236; 1875 p 79 § 2; RRS § 2501.] 9.66.030 9.66.030 Maintaining or permitting nuisance. Every person who shall commit or maintain a public nuisance, for which no special punishment is prescribed; or who shall wilfully omit or refuse to perform any legal duty relating to the removal of such nuisance; and every person who shall let, or permit to be used, any building or boat, or portion thereof, knowing that it is intended to be, or is being used, for committing or maintaining any such nuisance, shall be guilty of a misdemeanor. [1909 c 249 § 250; Code 1881 § 1248; 1875 p 81 § 14; RRS § 2502.] 9.66.040 9.66.040 Abatement of nuisance. Any court or magistrate before whom there may be pending any proceeding for a violation of RCW 9.66.030, shall, in addition to any fine or other punishment which it may impose for such violation, order such nuisance abated, and all property unlawfully used in the maintenance thereof destroyed by the sheriff at the cost of the defendant: PROVIDED, That if the conviction was had in a district court, the district judge shall not issue the order and warrant of abatement, but on application therefor, shall transfer the cause to the superior court which shall proceed to try the issue of abatement in the same manner as if the action had been originally commenced therein. [1987 c 202 § 140; 1957 c 45 § 4; 1909 c 249 § 251; Code 1881 §§ 1244, 1245; 1875 p 80 §§ 10, 11; RRS § 2503.] Intent—1987 c 202: See note following RCW 2.04.190. Jurisdiction to abate a nuisance: State Constitution Art. 4 § 6 (Amendment 28). 9.66.050 9.66.050 Deposit of unwholesome substance. Every person who shall deposit, leave or keep, on or near a highway or route of public travel, on land or water, any unwholesome substance; or who shall establish, maintain or carry on, upon or near a highway or route of public travel, on land or water, any business, trade or manufacture which is noisome or detrimental to the public health; or who shall deposit or cast into any lake, creek or river, wholly or partly in this state, the offal from or the dead body of any animal, shall be guilty of a gross misdemeanor. [1909 c 249 § 285; RRS § 2537.] Discharging ballast: RCW 88.28.060. Disposal of dead animals: Chapter 16.68 RCW. Water pollution: Chapter 35.88 RCW, RCW 70.54.010 through 70.54.030, chapter 90.48 RCW. [Title 9 RCW—page 70] 9.68.070 9.68.080 9.68.090 9.68.100 9.68.110 9.68.120 9.68.130 9.68.140 Obscene literature, shows, etc.—Exemptions. Indecent articles, etc. "Erotic material"—Definitions. "Erotic material"—Determination by court—Labeling—Penalties. Prosecution for violation of RCW 9.68.060—Defense. Unlawful acts. Civil liability of wholesaler or wholesaler-distributor. Exceptions to RCW 9.68.050 through 9.68.120. Motion picture operator or projectionist exempt, when. Provisions of RCW 9.68.050 through 9.68.120 exclusive. "Sexually explicit material"—Defined—Unlawful display. Promoting pornography—Class C felony—Penalties. Indictment or information, obscene literature: RCW 10.37.130. Injunctions, obscene materials: Chapter 7.42 RCW. Public indecency: Chapter 9A.88 RCW. Telephone calls using obscene language: RCW 9.61.230 through 9.61.250. 9.68.015 9.68.015 Obscene literature, shows, etc.—Exemptions. Nothing in chapter 260, Laws of 1959 shall apply to the circulation of any such material by any recognized historical society or museum, the state law library, any county law library, the state library, the public library, any library of any college or university, or to any archive or library under the supervision and control of the state, county, municipality, or other political subdivision. [1959 c 260 § 2.] 9.68.030 9.68.030 Indecent articles, etc. Every person who shall expose for sale, loan or distribution, any instrument or article, or any drug or medicine, for causing unlawful abortion; or shall write, print, distribute or exhibit any card, circular, pamphlet, advertisement or notice of any kind, stating when, where, how or of whom such article or medicine can be obtained, shall be guilty of a misdemeanor. [1971 ex.s. c 185 § 2; 1909 c 249 § 208; RRS § 2460.] 9.68.050 9.68.050 "Erotic material"—Definitions. For the purposes of RCW 9.68.050 through 9.68.120: (1) "Minor" means any person under the age of eighteen years; (2) "Erotic material" means printed material, photographs, pictures, motion pictures, sound recordings, and other material the dominant theme of which taken as a whole appeals to the prurient interest of minors in sex; which is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters or sado-masochistic abuse; and is utterly without redeeming social value; (3) "Person" means any individual, corporation, or other organization; (4) "Dealers", "distributors", and "exhibitors" mean persons engaged in the distribution, sale, or exhibition of printed material, photographs, pictures, motion pictures, or sound recordings. [1992 c 5 § 1; 1969 ex.s. c 256 § 13.] Severability—1969 ex.s. c 256: "If any provision of this 1969 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provisions to other persons or circumstances, is not affected." [1969 ex.s. c 256 § 21.] (2006 Ed.) Obscenity and Pornography 9.68.060 9.68.060 "Erotic material"—Determination by court—Labeling—Penalties. (1) When it appears that material which may be deemed erotic is being sold, distributed, or exhibited in this state, the prosecuting attorney of the county in which the sale, distribution, or exhibition is taking place may apply to the superior court for a hearing to determine the character of the material with respect to whether it is erotic material. (2) Notice of the hearing shall immediately be served upon the dealer, distributor, or exhibitor selling or otherwise distributing or exhibiting the alleged erotic material. The superior court shall hold a hearing not later than five days from the service of notice to determine whether the subject matter is erotic material within the meaning of RCW 9.68.050. (3) If the superior court rules that the subject material is erotic material, then, following such adjudication: (a) If the subject material is written or printed, or is a sound recording, the court shall issue an order requiring that an "adults only" label be placed on the publication or sound recording, if such publication or sound recording is going to continue to be distributed. Whenever the superior court orders a publication or sound recording to have an "adults only" label placed thereon, such label shall be impressed on the front cover of all copies of such erotic publication or sound recording sold or otherwise distributed in the state of Washington. Such labels shall be in forty-eight point bold face type located in a conspicuous place on the front cover of the publication or sound recording. All dealers and distributors are hereby prohibited from displaying erotic publications or sound recordings in their store windows, on outside newsstands on public thoroughfares, or in any other manner so as to make an erotic publication or the contents of an erotic sound recording readily accessible to minors. (b) If the subject material is a motion picture, the court shall issue an order requiring that such motion picture shall be labeled "adults only". The exhibitor shall prominently display a sign saying "adults only" at the place of exhibition, and any advertising of the motion picture shall contain a statement that it is for adults only. Such exhibitor shall also display a sign at the place where admission tickets are sold stating that it is unlawful for minors to misrepresent their age. (4) Failure to comply with a court order issued under the provisions of this section shall subject the dealer, distributor, or exhibitor to contempt proceedings. (5) Any person who, after the court determines material to be erotic, sells, distributes, or exhibits the erotic material to a minor shall be guilty of violating RCW 9.68.050 through 9.68.120, such violation to carry the following penalties: (a) For the first offense a misdemeanor and upon conviction shall be fined not more than five hundred dollars, or imprisoned in the county jail not more than six months; (b) For the second offense a gross misdemeanor and upon conviction shall be fined not more than one thousand dollars, or imprisoned not more than one year; (c) For all subsequent offenses a class B felony and upon conviction shall be fined not more than five thousand dollars, or imprisoned not less than one year. [2003 c 53 § 41; 1992 c 5 § 2; 1969 ex.s. c 256 § 14.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. (2006 Ed.) 9.68.100 Severability—1969 ex.s. c 256: See note following RCW 9.68.050. 9.68.070 9.6 8.0 70 Pros ecuti on f o r vio la tio n o f R CW 9.68.060—Defense. In any prosecution for violation of RCW 9.68.060, it shall be a defense that: (1) If the violation pertains to a motion picture or sound recording, the minor was accompanied by a parent, parent’s spouse, or guardian; or (2) Such minor exhibited to the defendant a draft card, driver’s license, birth certificate, or other official or an apparently official document purporting to establish such minor was over the age of eighteen years; or (3) Such minor was accompanied by a person who represented himself to be a parent, or the spouse of a parent, or a guardian of such minor, and the defendant in good faith relied upon such representation. [1992 c 5 § 4; 1969 ex.s. c 256 § 15.] Severability—1969 ex.s. c 256: See note following RCW 9.68.050. 9.68.080 9.68.080 Unlawful acts. (1) It shall be unlawful for any minor to misrepresent his true age or his true status as the child, stepchild or ward of a person accompanying him, for the purpose of purchasing or obtaining access to any material described in RCW 9.68.050. (2) It shall be unlawful for any person accompanying such minor to misrepresent his true status as parent, spouse of a parent or guardian of any minor for the purpose of enabling such minor to purchase or obtain access to material described in RCW 9.68.050. [1969 ex.s. c 256 § 16.] Severability—1969 ex.s. c 256: See note following RCW 9.68.050. 9.68.090 9.68.090 Civil liability of wholesaler or wholesalerdistributor. No retailer, wholesaler, or exhibitor is to be deprived of service from a wholesaler or wholesaler-distributor of books, magazines, motion pictures, sound recordings, or other materials or subjected to loss of his franchise or right to deal or exhibit as a result of his attempts to comply with this statute. Any publisher, distributor, or other person, or combination of such persons, which withdraws or attempts to withdraw a franchise or other right to sell at retail, wholesale or exhibit materials on account of the retailer’s, wholesaler’s or exhibitor’s attempts to comply with RCW 9.68.050 through 9.68.120 shall incur civil liability to such retailer, wholesaler or exhibitor for threefold the actual damages resulting from such withdrawal or attempted withdrawal. [1992 c 5 § 3; 1969 ex.s. c 256 § 17.] Severability—1969 ex.s. c 256: See note following RCW 9.68.050. 9.68.100 9.68.100 Exceptions to RCW 9.68.050 through 9.68.120. Nothing in RCW 9.68.050 through 9.68.120 shall apply to the circulation of any such material by any recognized historical society or museum, the state law library, any county law library, the state library, the public library, any library of any college or university, or to any archive or library under the supervision and control of the state, county, municipality, or other political subdivision. [1969 ex.s. c 256 § 18.] Severability—1969 ex.s. c 256: See note following RCW 9.68.050. [Title 9 RCW—page 71] 9.68.110 Title 9 RCW: Crimes and Punishments 9.68.110 9.68.110 Motion picture operator or projectionist exempt, when. The provisions of RCW 9.68.050 through 9.68.120 shall not apply to acts done in the scope of his employment by a motion picture operator or projectionist employed by the owner or manager of a theatre or other place for the showing of motion pictures, unless the motion picture operator or projectionist has a financial interest in such theatre or place wherein he is so employed or unless he caused to be performed or exhibited such performance or motion picture without the knowledge and consent of the manager or owner of the theatre or other place of showing. [1969 ex.s. c 256 § 19.] Severability—1969 ex.s. c 256: See note following RCW 9.68.050. 9.68.120 9.68.120 Provisions of RCW 9.68.050 through 9.68.120 exclusive. The provisions of RCW 9.68.050 through 9.68.120 shall be exclusive. [1969 ex.s. c 256 § 20.] Severability—1969 ex.s. c 256: See note following RCW 9.68.050. 9.68.130 9.68.130 "Sexually explicit material"—Defined— Unlawful display. (1) A person is guilty of unlawful display of sexually explicit material if he knowingly exhibits such material on a viewing screen so that the sexually explicit material is easily visible from a public thoroughfare, park or playground or from one or more family dwelling units. (2) "Sexually explicit material" as that term is used in this section means any pictorial material displaying direct physical stimulation of unclothed genitals, masturbation, sodomy (i.e. bestiality or oral or anal intercourse), flagellation or torture in the context of a sexual relationship, or emphasizing the depiction of adult human genitals: PROVIDED HOWEVER, That works of art or of anthropological significance shall not be deemed to be within the foregoing definition. (3) Any person who violates subsection (1) of this section shall be guilty of a misdemeanor. [1975 1st ex.s. c 156 § 1.] 9.68.140 9.68.140 Promoting pornography—Class C felony— Penalties. A person who, for profit-making purposes and with knowledge, sells, exhibits, displays, or produces any lewd matter as defined in RCW 7.48A.010 is guilty of promoting pornography. Promoting pornography is a class C felony and shall bear the punishment and fines prescribed for that class of felony. In imposing the criminal penalty, the court shall consider the wilfulness of the defendant’s conduct and the profits made by the defendant attributable to the felony. All fines assessed under this chapter shall be paid into the general treasury of the state. [1985 c 235 § 3; 1982 c 184 § 8.] Severability—1985 c 235: See note following RCW 7.48A.040. Severability—1982 c 184: See RCW 7.48A.900. Class C felony—Authorized sentence: RCW 9A.20.020. Chapter 9.68A RCW SEXUAL EXPLOITATION OF CHILDREN Chapter 9.68A (Formerly: Child pornography) Sections 9.68A.001 Legislative finding. [Title 9 RCW—page 72] 9.68A.011 9.68A.040 9.68A.050 9.68A.060 9.68A.070 9.68A.080 9.68A.090 9.68A.100 9.68A.105 9.68A.110 9.68A.120 9.68A.130 9.68A.150 9.68A.910 9.68A.911 Definitions. Sexual exploitation of a minor—Elements of crime—Penalty. Dealing in depictions of minor engaged in sexually explicit conduct. Sending, bringing into state depictions of minor engaged in sexually explicit conduct. Possession of depictions of minor engaged in sexually explicit conduct. Reporting of depictions of minor engaged in sexually explicit conduct—Civil immunity. Communication with minor for immoral purposes—Penalties. Patronizing juvenile prostitute. Additional fee assessment. Certain defenses barred, permitted. Seizure and forfeiture of property. Recovery of costs of suit by minor. Allowing minor on premises of live erotic performance—Definitions—Penalty. Severability—1984 c 262. Severability—1989 c 32. 9.68A.001 9.68A.001 Legislative finding. The legislature finds that the prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The care of children is a sacred trust and should not be abused by those who seek commercial gain or personal gratification based on the exploitation of children. The legislature further finds that the protection of children from sexual exploitation can be accomplished without infringing on a constitutionally protected activity. The definition of "sexually explicit conduct" and other operative definitions demarcate a line between protected and prohibited conduct and should not inhibit legitimate scientific, medical, or educational activities. [1984 c 262 § 1.] 9.68A.011 9.68A.011 Definitions. Unless the context clearly indicates otherwise, the definitions in this section apply throughout this chapter. (1) To "photograph" means to make a print, negative, slide, digital image, motion picture, or videotape. A "photograph" means anything tangible or intangible produced by photographing. (2) "Visual or printed matter" means any photograph or other material that contains a reproduction of a photograph. (3) "Sexually explicit conduct" means actual or simulated: (a) Sexual intercourse, including genital-genital, oralgenital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals; (b) Penetration of the vagina or rectum by any object; (c) Masturbation; (d) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer; (e) Exhibition of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer; (f) Defecation or urination for the purpose of sexual stimulation of the viewer; and (g) Touching of a person’s clothed or unclothed genitals, pubic area, buttocks, or breast area for the purpose of sexual stimulation of the viewer. (4) "Minor" means any person under eighteen years of age. (5) "Live performance" means any play, show, skit, dance, or other exhibition performed or presented to or before (2006 Ed.) Sexual Exploitation of Children an audience of one or more, with or without consideration. [2002 c 70 § 1; 1989 c 32 § 1; 1984 c 262 § 2.] 9.68A.040 9.68A.040 Sexual exploitation of a minor—Elements of crime—Penalty. (1) A person is guilty of sexual exploitation of a minor if the person: (a) Compels a minor by threat or force to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance; (b) Aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance; or (c) Being a parent, legal guardian, or person having custody or control of a minor, permits the minor to engage in sexually explicit conduct, knowing that the conduct will be photographed or part of a live performance. (2) Sexual exploitation of a minor is a class B felony punishable under chapter 9A.20 RCW. [1989 c 32 § 2; 1984 c 262 § 3.] 9.68A.050 9.68A.050 Dealing in depictions of minor engaged in sexually explicit conduct. A person who: (1) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or sells any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct; or (2) Possesses with intent to develop, duplicate, publish, print, disseminate, exchange, or sell any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct is guilty of a class C felony punishable under chapter 9A.20 RCW. [1989 c 32 § 3; 1984 c 262 § 4.] 9.68A.060 9.68A.060 Sending, bringing into state depictions of minor engaged in sexually explicit conduct. A person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, any visual or printed matter that depicts a minor engaged in sexually explicit conduct is guilty of a class C felony punishable under chapter 9A.20 RCW. [1989 c 32 § 4; 1984 c 262 § 5.] 9.68A.105 (2) If, in the course of repairing, modifying, or maintaining a computer that has been submitted either privately or commercially for repair, modification, or maintenance, a person has reasonable cause to believe that the computer stores visual or printed matter that depicts a minor engaged in sexually explicit conduct, the person performing the repair, modification, or maintenance may report such incident, or cause a report to be made, to the proper law enforcement agency. (3) A person who makes a report in good faith under this section is immune from civil liability resulting from the report. [2002 c 70 § 2; 1989 c 32 § 6; 1984 c 262 § 7.] 9.68A.090 9.68A.090 Communication with minor for immoral purposes—Penalties. (1) Except as provided in subsection (2) of this section, a person who communicates with a minor for immoral purposes, or a person who communicates with someone the person believes to be a minor for immoral purposes, is guilty of a gross misdemeanor. (2) A person who communicates with a minor for immoral purposes is guilty of a class C felony punishable according to chapter 9A.20 RCW if the person has previously been convicted under this section or of a felony sexual offense under chapter 9.68A, 9A.44, or 9A.64 RCW or of any other felony sexual offense in this or any other state or if the person communicates with a minor or with someone the person believes to be a minor for immoral purposes through the sending of an electronic communication. [2006 c 139 § 1. Prior: 2003 c 53 § 42; 2003 c 26 § 1; 1989 c 32 § 7; 1986 c 319 § 2; 1984 c 262 § 8.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.68A.100 9.68A.100 Patronizing juvenile prostitute. A person is guilty of patronizing a juvenile prostitute if that person engages or agrees or offers to engage in sexual conduct with a minor in return for a fee, and is guilty of a class C felony punishable under chapter 9A.20 RCW. In addition to any other penalty provided under chapter 9A.20 RCW, a person guilty of patronizing a juvenile prostitute is subject to the provisions under RCW 9A.88.130 and 9A.88.140. [1999 c 327 § 4; 1989 c 32 § 8; 1984 c 262 § 9.] Findings—Intent—1999 c 327: See note following RCW 9A.88.130. 9.68A.070 9.68A.070 Possession of depictions of minor engaged in sexually explicit conduct. A person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class B felony. [2006 c 139 § 3; 1990 c 155 § 1; 1989 c 32 § 5; 1984 c 262 § 6.] Effective date—1990 c 155 §§ 1 and 2: "Sections 1 and 2 of this act shall be effective July 1, 1990." [1990 c 155 § 3.] 9.68A.080 9.68A.080 Reporting of depictions of minor engaged in sexually explicit conduct—Civil immunity. (1) A person who, in the course of processing or producing visual or printed matter either privately or commercially, has reasonable cause to believe that the visual or printed matter submitted for processing or producing depicts a minor engaged in sexually explicit conduct shall immediately report such incident, or cause a report to be made, to the proper law enforcement agency. Persons failing to do so are guilty of a gross misdemeanor. (2006 Ed.) Additional requirements: RCW 9A.88.130. Vehicle impoundment: RCW 9A.88.140. 9.68A.105 9.68A.105 Additional fee assessment. (1)(a) In addition to penalties set forth in RCW 9.68A.100, a person who is either convicted or given a deferred sentence or a deferred prosecution as a result of an arrest for violating RCW 9.68A.100 or a comparable county or municipal ordinance shall be assessed a two hundred fifty dollar fee. (b) The court may not suspend payment of all or part of the fee unless it finds that the person does not have the ability to pay. (c) When a minor has been adjudicated a juvenile offender for an offense which, if committed by an adult, would constitute a violation of RCW 9.68A.100 or a comparable county or municipal ordinance, the court shall assess the fee under (a) of this subsection. The court may not sus[Title 9 RCW—page 73] 9.68A.110 Title 9 RCW: Crimes and Punishments pend payment of all or part of the fee unless it finds that the minor does not have the ability to pay the fee. (2) The fee assessed under subsection (1) of this section shall be collected by the clerk of the court and distributed each month to the state treasurer for deposit in the prostitution prevention and intervention account under RCW 43.63A.740 for the purpose of funding prostitution prevention and intervention activities. [1995 c 353 § 12.] 9.68A.110 9.68A.110 Certain defenses barred, permitted. (1) In a prosecution under RCW 9.68A.040, it is not a defense that the defendant was involved in activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses. Law enforcement and prosecution agencies shall not employ minors to aid in the investigation of a violation of RCW 9.68A.090 or 9.68A.100. This chapter does not apply to lawful conduct between spouses. (2) In a prosecution under RCW 9.68A.050, 9.68A.060, 9.68A.070, or 9.68A.080, it is not a defense that the defendant did not know the age of the child depicted in the visual or printed matter: PROVIDED, That it is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense the defendant was not in possession of any facts on the basis of which he or she should reasonably have known that the person depicted was a minor. (3) In a prosecution under RCW 9.68A.040 or 9.68A.090, it is not a defense that the defendant did not know the alleged victim’s age: PROVIDED, That it is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense, the defendant made a reasonable bona fide attempt to ascertain the true age of the minor by requiring production of a driver’s license, marriage license, birth certificate, or other governmental or educational identification card or paper and did not rely solely on the oral allegations or apparent age of the minor. (4) In a prosecution under RCW 9.68A.050, 9.68A.060, or 9.68A.070, it shall be an affirmative defense that the defendant was a law enforcement officer in the process of conducting an official investigation of a sex-related crime against a minor, or that the defendant was providing individual case treatment as a recognized medical facility or as a psychiatrist or psychologist licensed under Title 18 RCW. (5) In a prosecution under RCW 9.68A.050, 9.68A.060, or 9.68A.070, the state is not required to establish the identity of the alleged victim. [1992 c 178 § 1; 1989 c 32 § 9; 1986 c 319 § 3; 1984 c 262 § 10.] Severability—1992 c 178: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1992 c 178 § 2.] 9.68A.120 9.68A.120 Seizure and forfeiture of property. The following are subject to seizure and forfeiture: (1) All visual or printed matter that depicts a minor engaged in sexually explicit conduct. (2) All raw materials, equipment, and other tangible personal property of any kind used or intended to be used to manufacture or process any visual or printed matter that depicts a minor engaged in sexually explicit conduct, and all conveyances, including aircraft, vehicles, or vessels that are used or intended for use to transport, or in any manner to [Title 9 RCW—page 74] facilitate the transportation of, visual or printed matter in violation of RCW 9.68A.050 or 9.68A.060, but: (a) No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter; (b) No property is subject to forfeiture under this section by reason of any act or omission established by the owner of the property to have been committed or omitted without the owner’s knowledge or consent; (c) A forfeiture of property encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission; and (d) When the owner of a conveyance has been arrested under this chapter the conveyance may not be subject to forfeiture unless it is seized or process is issued for its seizure within ten days of the owner’s arrest. (3) All personal property, moneys, negotiable instruments, securities, or other tangible or intangible property furnished or intended to be furnished by any person in exchange for visual or printed matter depicting a minor engaged in sexually explicit conduct, or constituting proceeds traceable to any violation of this chapter. (4) Property subject to forfeiture under this chapter may be seized by any law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property. Seizure without process may be made if: (a) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant; (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter; (c) A law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or (d) The law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this chapter. (5) In the event of seizure under subsection (4) of this section, proceedings for forfeiture shall be deemed commenced by the seizure. The law enforcement agency under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, of the seizure and intended forfeiture of the seized property. The notice may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen day period following the seizure. (6) If no person notifies the seizing law enforcement agency in writing of the person’s claim of ownership or right to possession of seized items within forty-five days of the seizure, the item seized shall be deemed forfeited. (7) If any person notifies the seizing law enforcement agency in writing of the person’s claim of ownership or right to possession of seized items within forty-five days of the sei(2006 Ed.) Duty of Witnesses zure, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The hearing shall be before an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of competent jurisdiction if the aggregate value of the article or articles involved is more than five hundred dollars. The hearing before an administrative law judge and any appeal therefrom shall be under Title 34 RCW. In a court hearing between two or more claimants to the article or articles involved, the prevailing party shall be entitled to a judgment for costs and reasonable attorney’s fees. The burden of producing evidence shall be upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of the seized items. The seizing law enforcement agency shall promptly return the article or articles to the claimant upon a determination by the administrative law judge or court that the claimant is lawfully entitled to possession thereof of the seized items. (8) If property is sought to be forfeited on the ground that it constitutes proceeds traceable to a violation of this chapter, the seizing law enforcement agency must prove by a preponderance of the evidence that the property constitutes proceeds traceable to a violation of this chapter. (9) When property is forfeited under this chapter the seizing law enforcement agency may: (a) Retain it for official use or upon application by any law enforcement agency of this state release the property to that agency for the exclusive use of enforcing this chapter; (b) Sell that which is not required to be destroyed by law and which is not harmful to the public. The proceeds and all moneys forfeited under this chapter shall be used for payment of all proper expenses of the investigation leading to the seizure, including any money delivered to the subject of the investigation by the law enforcement agency, and of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, actual costs of the prosecuting or city attorney, and court costs. Fifty percent of the money remaining after payment of these expenses shall be deposited in the public safety and education account established under RCW 43.08.250 and fifty percent shall be deposited in the general fund of the state, county, or city of the seizing law enforcement agency; or (c) Request the appropriate sheriff or director of public safety to take custody of the property and remove it for disposition in accordance with law. [1999 c 143 § 8; 1984 c 262 § 11.] 9.68A.130 9.68A.130 Recovery of costs of suit by minor. A minor prevailing in a civil action arising from violation of this chapter is entitled to recover the costs of the suit, including an award of reasonable attorneys’ fees. [1984 c 262 § 12.] 9.68A.150 9.68A.150 Allowing minor on premises of live erotic performance—Definitions—Penalty. (1) No person may knowingly allow a minor to be on the premises of a commercial establishment open to the public if there is a live performance containing matter which is erotic material. (2006 Ed.) 9.69.100 (2) Any person who is convicted of violating this section is guilty of a gross misdemeanor. (3) For the purposes of this section: (a) "Minor" means any person under the age of eighteen years. (b) "Erotic materials" means live performance: (i) Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest of minors; and (ii) Which explicitly depicts or describes patently offensive representations or descriptions of sexually explicit conduct as defined in RCW 9.68A.011; and (iii) Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value for minors. (c) "Live performance" means any play, show, skit, dance, or other exhibition performed or presented to, or before an audience of one or more, with or without consideration. (d) "Person" means any individual, partnership, firm, association, corporation, or other legal entity. [2003 c 53 § 43; 1987 c 396 § 2.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1987 c 396: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1987 c 396 § 4.] 9.68A.910 9.68A.910 Severability—1984 c 262. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1984 c 262 § 15.] 9.68A.911 9.68A.911 Severability—1989 c 32. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1989 c 32 § 10.] Chapter 9.69 Chapter 9.69 RCW DUTY OF WITNESSES Sections 9.69.100 Duty of witness of offense against child or any violent offense—Penalty. Labor and industries officer, disobeying subpoena to appear before: RCW 43.22.300. Legislative hearings, failure to obey subpoena or testify: RCW 44.16.120 through 44.16.150. Obstructing governmental operation: Chapter 9A.76 RCW. Wills, fraudulently failing to deliver: RCW 11.20.010. 9.69.100 9.69.100 Duty of witness of offense against child or any violent offense—Penalty. (1) A person who witnesses the actual commission of: (a) A violent offense as defined in RCW 9.94A.030 or preparations for the commission of such an offense; (b) A sexual offense against a child or an attempt to commit such a sexual offense; or [Title 9 RCW—page 75] Chapter 9.72 Title 9 RCW: Crimes and Punishments (c) An assault of a child that appears reasonably likely to cause substantial bodily harm to the child, shall as soon as reasonably possible notify the prosecuting attorney, law enforcement, medical assistance, or other public officials. (2) This section shall not be construed to affect privileged relationships as provided by law. (3) The duty to notify a person or agency under this section is met if a person notifies or attempts to provide such notice by telephone or any other means as soon as reasonably possible. (4) Failure to report as required by subsection (1) of this section is a gross misdemeanor. However, a person is not required to report under this section where that person has a reasonable belief that making such a report would place that person or another family or household member in danger of immediate physical harm. [1987 c 503 § 18; 1985 c 443 § 21; 1970 ex.s. c 49 § 8.] Severability—Effective date—1987 c 503: See RCW 74.14B.901 and 74.14B.902. Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. Severability—1970 ex.s. c 49: "If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1970 ex.s. c 49 § 9.] Abuse of children: Chapter 26.44 RCW. Chapter 9.72 Chapter 9.72 RCW PERJURY ing attorney. [1987 c 202 § 141; 1909 c 249 § 107; RRS § 2359.] Intent—1987 c 202: See note following RCW 2.04.190. Chapter 9.73 Sections 9.73.010 9.73.020 9.73.030 9.73.040 9.73.050 9.73.060 9.73.070 9.73.080 9.73.090 9.73.095 9.73.100 9.73.110 9.73.120 9.73.130 9.73.140 9.73.200 9.73.210 Sections Committal of witness—Detention of documents. 9.73.220 9.73.230 Banks and trust companies false swearing in bank or trust company examinations: RCW 30.04.060. knowingly subscribing to false statement: RCW 30.12.090. 9.73.240 9.72.090 Elections absentee voting, falsification of qualifications: RCW 29A.84.680. falsification by voter: Chapter 29A.84 RCW. initiative and referendum petition signer, false statement: RCW 29A.84.230. recall petition signer, false statement: RCW 29A.84.240. Land registration falsification: RCW 65.12.740. Marriage affidavit falsification: RCW 26.04.210. Perjury and interference with official proceedings: Chapter 9A.72 RCW. Public assistance, falsification of application: RCW 74.08.055. Sufficiency of indictment or information charging perjury: RCW 10.37.140. Taxation, false property listing: RCW 84.40.120. 9.72.090 9.72.090 Committal of witness—Detention of documents. Whenever it shall appear probable to a judge, magistrate, or other officer lawfully authorized to conduct any hearing, proceeding or investigation, that a person who has testified before such judge, magistrate, or officer has committed perjury in any testimony so given, or offered any false evidence, he or she may, by order or process for that purpose, immediately commit such person to jail or take a recognizance for such person’s appearance to answer such charge. In such case such judge, magistrate, or officer may detain any book, paper, document, record or other instrument produced before him or her or direct it to be delivered to the prosecut[Title 9 RCW—page 76] Chapter 9.73 RCW PRIVACY, VIOLATING RIGHT OF 9.73.260 Divulging telegram. Opening sealed letter. Intercepting, recording, or divulging private communication— Consent required—Exceptions. Intercepting private communication—Court order permitting interception—Grounds for issuance—Duration—Renewal. Admissibility of intercepted communication in evidence. Violating right of privacy—Civil action—Liability for damages. Persons and activities excepted from chapter. Penalties. Certain emergency response personnel exempted from RCW 9.73.030 through 9.73.080—Standards—Court authorizations—Admissibility. Intercepting, recording, or divulging offender conversations— Conditions—Notice. Recordings available to defense counsel. Intercepting, recording, or disclosing private communications—Not unlawful for building owner—Conditions. Reports—Required, when, contents. Recording private communications—Authorization—Application for, contents. Recording private communications—Authorization of or application for—Inventory, contents, service—Availability of recording, applications, and orders. Intercepting, transmitting, or recording conversations concerning controlled substances—Findings. Intercepting, transmitting, or recording conversations concerning controlled substances—Authorization—Monthly report—Admissibility—Destruction of information. Judicial authorizations—Availability of judge required. Intercepting, transmitting, or recording conversations concerning controlled substances—Conditions—Written reports required—Judicial review—Notice—Admissibility—Penalties. Intercepting, transmitting, or recording conversations concerning controlled substances—Concurrent power of attorney general to investigate and prosecute. Pen registers, trap and trace devices. 9.73.010 9.73.010 Divulging telegram. Every person who shall wrongfully obtain or attempt to obtain, any knowledge of a telegraphic message, by connivance with the clerk, operator, messenger or other employee of a telegraph company, and every clerk, operator, messenger or other employee of such company who shall wilfully divulge to any but the person for whom it was intended, any telegraphic message or dispatch intrusted to him for transmission or delivery, or the nature or contents thereof, or shall wilfully refuse, neglect or delay duly to transmit or deliver the same, shall be guilty of a misdemeanor. [1909 c 249 § 410; Code 1881 § 2342; RRS § 2662.] Intercepting, delaying telegram: RCW 9A.48.070, 9A.48.080. 9.73.020 9.73.020 Opening sealed letter. Every person who shall wilfully open or read, or cause to be opened or read, any sealed message, letter or telegram intended for another person, or publish the whole or any portion of such a message, letter or telegram, knowing it to have been opened or read without authority, shall be guilty of a misdemeanor. [1909 c 249 § 411; RRS § 2663.] (2006 Ed.) Privacy, Violating Right of 9.73.030 9.73.030 Intercepting, recording, or divulging private communication—Consent required—Exceptions. (1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any: (a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication; (b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation. (2) Notwithstanding subsection (1) of this section, wire communications or conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, or (d) which relate to communications by a hostage holder or barricaded person as defined in RCW 70.85.100, whether or not conversation ensues, may be recorded with the consent of one party to the conversation. (3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded. (4) An employee of any regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full-time or contractual or part-time basis, shall be deemed to have consent to record and divulge communications or conversations otherwise prohibited by this chapter if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers. Withdrawal of the consent after the communication has been made shall not prohibit any such employee of a newspaper, magazine, wire service, or radio or television station from divulging the communication or conversation. [1986 c 38 § 1; 1985 c 260 § 2; 1977 ex.s. c 363 § 1; 1967 ex.s. c 93 § 1.] Reviser’s note: This section was amended by 1985 c 260 § 2 and by 1986 c 38 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Severability—1967 ex.s. c 93: "If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1967 ex.s. c 93 § 7.] 9.73.040 9.73.040 Intercepting private communication— Court order permitting interception—Grounds for issuance—Duration—Renewal. (1) An ex parte order for the (2006 Ed.) 9.73.060 interception of any communication or conversation listed in RCW 9.73.030 may be issued by any superior court judge in the state upon verified application of either the state attorney general or any county prosecuting attorney setting forth fully facts and circumstances upon which the application is based and stating that: (a) There are reasonable grounds to believe that national security is endangered, that a human life is in danger, that arson is about to be committed, or that a riot is about to be committed, and (b) There are reasonable grounds to believe that evidence will be obtained essential to the protection of national security, the preservation of human life, or the prevention of arson or a riot, and (c) There are no other means readily available for obtaining such information. (2) Where statements are solely upon the information and belief of the applicant, the grounds for the belief must be given. (3) The applicant must state whether any prior application has been made to obtain such communications on the same instrument or for the same person and if such prior application exists the applicant shall disclose the current status thereof. (4) The application and any order issued under RCW 9.73.030 through 9.73.080 shall identify as fully as possible the particular equipment, lines or location from which the information is to be obtained and the purpose thereof. (5) The court may examine upon oath or affirmation the applicant and any witness the applicant desires to produce or the court requires to be produced. (6) Orders issued under this section shall be effective for fifteen days, after which period the court which issued the order may upon application of the officer who secured the original order renew or continue the order for an additional period not to exceed fifteen days. (7) No order issued under this section shall authorize or purport to authorize any activity which would violate any laws of the United States. [1967 ex.s. c 93 § 2.] Severability—1967 ex.s. c 93: See note following RCW 9.73.030. 9.73.050 9.73.050 Admissibility of intercepted communication in evidence. Any information obtained in violation of RCW 9.73.030 or pursuant to any order issued under the provisions of RCW 9.73.040 shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except with the permission of the person whose rights have been violated in an action brought for damages under the provisions of RCW 9.73.030 through 9.73.080, or in a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security. [1967 ex.s. c 93 § 3.] Severability—1967 ex.s. c 93: See note following RCW 9.73.030. 9.73.060 9.73.060 Violating right of privacy—Civil action— Liability for damages. Any person who, directly or by means of a detective agency or any other agent, violates the provisions of this chapter shall be subject to legal action for damages, to be brought by any other person claiming that a violation of this statute has injured his business, his person, or [Title 9 RCW—page 77] 9.73.070 Title 9 RCW: Crimes and Punishments his reputation. A person so injured shall be entitled to actual damages, including mental pain and suffering endured by him on account of violation of the provisions of this chapter, or liquidated damages computed at the rate of one hundred dollars a day for each day of violation, not to exceed one thousand dollars, and a reasonable attorney’s fee and other costs of litigation. [1977 ex.s. c 363 § 2; 1967 ex.s. c 93 § 4.] Severability—1967 ex.s. c 93: See note following RCW 9.73.030. 9.73.070 9.73.070 Persons and activities excepted from chapter. (1) The provisions of this chapter shall not apply to any activity in connection with services provided by a common carrier pursuant to its tariffs on file with the Washington utilities and transportation commission or the Federal Communication Commission and any activity of any officer, agent or employee of a common carrier who performs any act otherwise prohibited by this law in the construction, maintenance, repair and operations of the common carrier’s communications services, facilities, or equipment or incident to the use of such services, facilities or equipment. Common carrier as used in this section means any person engaged as a common carrier or public service company for hire in intrastate, interstate or foreign communication by wire or radio or in intrastate, interstate or foreign radio transmission of energy. (2) The provisions of this chapter shall not apply to: (a) Any common carrier automatic number, caller, or location identification service that has been approved by the Washington utilities and transportation commission; or (b) A 911 or enhanced 911 emergency service as defined in RCW 82.14B.020, for purposes of aiding public health or public safety agencies to respond to calls placed for emergency assistance. [1994 c 49 § 1. Prior: 1991 c 329 § 8; 1991 c 312 § 1; 1967 ex.s. c 93 § 5.] Severability—1967 ex.s. c 93: See note following RCW 9.73.030. 9.73.080 9.73.080 Penalties. (1) Except as otherwise provided in this chapter, any person who violates RCW 9.73.030 is guilty of a gross misdemeanor. (2) Any person who knowingly alters, erases, or wrongfully discloses any recording in violation of RCW 9.73.090(1)(c) is guilty of a gross misdemeanor. [2000 c 195 § 3; 1989 c 271 § 209; 1967 ex.s. c 93 § 6.] Intent—2000 c 195: See note following RCW 9.73.090. Severability—1989 c 271: See note following RCW 9.94A.510. Severability—1967 ex.s. c 93: See note following RCW 9.73.030. 9.73.090 9.73.090 Certain emergency response personnel exempted from RCW 9.73.030 through 9.73.080—Standards—Court authorizations—Admissibility. (1) The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police, fire, emergency medical service, emergency communication center, and poison center personnel in the following instances: (a) Recording incoming telephone calls to police and fire stations, licensed emergency medical service providers, emergency communication centers, and poison centers; (b) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appear[Title 9 RCW—page 78] ance in court. Such video and/or sound recordings shall conform strictly to the following: (i) The arrested person shall be informed that such recording is being made and the statement so informing him shall be included in the recording; (ii) The recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof; (iii) At the commencement of the recording the arrested person shall be fully informed of his constitutional rights, and such statements informing him shall be included in the recording; (iv) The recordings shall only be used for valid police or court activities; (c) Sound recordings that correspond to video images recorded by video cameras mounted in law enforcement vehicles. All law enforcement officers wearing a sound recording device that makes recordings corresponding to videos recorded by video cameras mounted in law enforcement vehicles must be in uniform. A sound recording device that makes a recording pursuant to this subsection (1)(c) must be operated simultaneously with the video camera when the operating system has been activated for an event. No sound recording device may be intentionally turned off by the law enforcement officer during the recording of an event. Once the event has been captured, the officer may turn off the audio recording and place the system back into "pre-event" mode. No sound or video recording made under this subsection (1)(c) may be duplicated and made available to the public by a law enforcement agency subject to this section until final disposition of any criminal or civil litigation which arises from the event or events which were recorded. Such sound recordings shall not be divulged or used by any law enforcement agency for any commercial purpose. A law enforcement officer shall inform any person being recorded by sound under this subsection (1)(c) that a sound recording is being made and the statement so informing the person shall be included in the sound recording, except that the law enforcement officer is not required to inform the person being recorded if the person is being recorded under exigent circumstances. A law enforcement officer is not required to inform a person being recorded by video under this subsection (1)(c) that the person is being recorded by video. (2) It shall not be unlawful for a law enforcement officer acting in the performance of the officer’s official duties to intercept, record, or disclose an oral communication or conversation where the officer is a party to the communication or conversation or one of the parties to the communication or conversation has given prior consent to the interception, recording, or disclosure: PROVIDED, That prior to the interception, transmission, or recording the officer shall obtain written or telephonic authorization from a judge or magistrate, who shall approve the interception, recording, or disclosure of communications or conversations with a nonconsenting party for a reasonable and specified period of time, if there is probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony: PROVIDED HOWEVER, That if such authorization is given by telephone the authorization and officer’s statement justifying such authorization must be electronically (2006 Ed.) Privacy, Violating Right of recorded by the judge or magistrate on a recording device in the custody of the judge or magistrate at the time transmitted and the recording shall be retained in the court records and reduced to writing as soon as possible thereafter. Any recording or interception of a communication or conversation incident to a lawfully recorded or intercepted communication or conversation pursuant to this subsection shall be lawful and may be divulged. All recordings of communications or conversations made pursuant to this subsection shall be retained for as long as any crime may be charged based on the events or communications or conversations recorded. (3) Communications or conversations authorized to be intercepted, recorded, or disclosed by this section shall not be inadmissible under RCW 9.73.050. (4) Authorizations issued under subsection (2) of this section shall be effective for not more than seven days, after which period the issuing authority may renew or continue the authorization for additional periods not to exceed seven days. (5) If the judge or magistrate determines that there is probable cause to believe that the communication or conversation concerns the unlawful manufacture, delivery, sale, or possession with intent to manufacture, deliver, or sell, controlled substances as defined in chapter 69.50 RCW, or legend drugs as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW, the judge or magistrate may authorize the interception, transmission, recording, or disclosure of communications or conversations under subsection (2) of this section even though the true name of the nonconsenting party, or the particular time and place for the interception, transmission, recording, or disclosure, is not known at the time of the request, if the authorization describes the nonconsenting party and subject matter of the communication or conversation with reasonable certainty under the circumstances. Any such communication or conversation may be intercepted, transmitted, recorded, or disclosed as authorized notwithstanding a change in the time or location of the communication or conversation after the authorization has been obtained or the presence of or participation in the communication or conversation by any additional party not named in the authorization. Authorizations issued under this subsection shall be effective for not more than fourteen days, after which period the issuing authority may renew or continue the authorization for an additional period not to exceed fourteen days. [2006 c 38 § 1; 2000 c 195 § 2; 1989 c 271 § 205; 1986 c 38 § 2; 1977 ex.s. c 363 § 3; 1970 ex.s. c 48 § 1.] Intent—2000 c 195: "The legislature intends, by the enactment of this act, to provide a very limited exception to the restrictions on disclosure of intercepted communications." [2000 c 195 § 1.] Severability—1989 c 271: See note following RCW 9.94A.510. Severability—1970 ex.s. c 48: "If a court of competent jurisdiction shall adjudge to be invalid or unconstitutional any clause, sentence, paragraph, section or part of this act, such judgment or decree shall not affect, impair, invalidate or nullify the remainder of this act, but the effect thereof shall be confined to the clause, sentence, paragraph, section or part of this chapter so adjudged to be invalid or unconstitutional." [1970 ex.s. c 48 § 3.] 9.73.095 9.73.095 Intercepting, recording, or divulging offender conversations—Conditions—Notice. (1) RCW 9.73.030 through 9.73.080 and 9.73.260 shall not apply to employees of the department of corrections in the following (2006 Ed.) 9.73.095 instances: Intercepting, recording, or divulging any telephone calls from an offender or resident of a state correctional facility; or intercepting, recording, or divulging any monitored nontelephonic conversations in offender living units, cells, rooms, dormitories, and common spaces where offenders may be present. For the purposes of this section, "state correctional facility" means a facility that is under the control and authority of the department of corrections, and used for the incarceration, treatment, or rehabilitation of convicted felons. (2)(a) All personal calls made by offenders shall be made using a calling system approved by the secretary of corrections which is at least as secure as the system it replaces. In approving one or more calling systems, the secretary of corrections shall consider the safety of the public, the ability to reduce telephone fraud, and the ability of offender families to select a low-cost option. (b) The calls shall be "operator announcement" type calls. The operator shall notify the receiver of the call that the call is coming from a prison offender, and that it will be recorded and may be monitored. (3) The department of corrections shall adhere to the following procedures and restrictions when intercepting, recording, or divulging any telephone calls from an offender or resident of a state correctional facility as provided for by this section. The department shall also adhere to the following procedures and restrictions when intercepting, recording, or divulging any monitored nontelephonic conversations in offender living units, cells, rooms, dormitories, and common spaces where offenders may be present: (a) Unless otherwise provided for in this section, after intercepting or recording any conversation, only the superintendent and his or her designee shall have access to that recording. (b) The contents of any intercepted and recorded conversation shall be divulged only as is necessary to safeguard the orderly operation of the correctional facility, in response to a court order, or in the prosecution or investigation of any crime. (c) All conversations that are recorded under this section, unless being used in the ongoing investigation or prosecution of a crime, or as is necessary to assure the orderly operation of the correctional facility, shall be destroyed one year after the intercepting and recording. (4) So as to safeguard the sanctity of the attorney-client privilege, the department of corrections shall not intercept, record, or divulge any conversation between an offender or resident and an attorney. The department shall develop policies and procedures to implement this section. The department’s policies and procedures implemented under this section shall also recognize the privileged nature of confessions made by an offender to a member of the clergy or a priest in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs as provided in RCW 5.60.060(3). (5) The department shall notify in writing all offenders, residents, and personnel of state correctional facilities that their nontelephonic conversations may be intercepted, recorded, or divulged in accordance with the provisions of this section. [Title 9 RCW—page 79] 9.73.100 Title 9 RCW: Crimes and Punishments (6) The department shall notify all visitors to state correctional facilities who may enter offender living units, cells, rooms, dormitories, or common spaces where offenders may be present, that their conversations may intercepted, recorded, or divulged in accordance with the provisions of this section. The notice required under this subsection shall be accomplished through a means no less conspicuous than a general posting in a location likely to be seen by visitors entering the facility. [2004 c 13 § 2; 1998 c 217 § 2; 1996 c 197 § 1; 1989 c 271 § 210.] Findings—Intent—2004 c 13: "The legislature finds that the current telephone service for offender calls from department of corrections facilities is based on outdated technology that provides neither the most secure nor the most accountable system available and is provided at a high cost to the offenders’ families. The legislature, in budget provisions, has required the secretary of corrections to investigate other systems as offender telephone service contracts came due for renewal. The legislature now finds that the current statute prevents the secretary of corrections from using systems that provide greater security, more offender accountability, and lower costs. Therefore, the legislature intends to remove this barrier while retaining the intent of the statute to provide safe, accountable, and affordable telephone services." [2004 c 13 § 1.] Effective dates—1996 c 197: "(1) Sections 1 and 3 of this act shall take effect August 1, 1996. (2) Section 2 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [March 28, 1996]." [1996 c 197 § 4.] Severability—1989 c 271: See note following RCW 9.94A.510. Local government reimbursement claims: RCW 4.92.280. 9.73.100 9.73.100 Recordings available to defense counsel. Video and/or sound recordings obtained by police personnel under the authority of RCW 9.73.090 and 9.73.100 shall be made available for hearing and/or viewing by defense counsel at the request of defense counsel whenever a criminal charge has been filed against the subject of the video and/or sound recordings. [1970 ex.s. c 48 § 2.] Severability—1970 ex.s. c 48: See note following RCW 9.73.090. 9.73.110 9.73.110 Intercepting, recording, or disclosing private communications—Not unlawful for building owner—Conditions. It shall not be unlawful for the owner or person entitled to use and possession of a building, as defined in RCW 9A.04.110(5), or the agent of such person, to intercept, record, or disclose communications or conversations which occur within such building if the persons engaged in such communication or conversation are engaged in a criminal act at the time of such communication or conversation by virtue of unlawful entry or remaining unlawfully in such building. [1977 ex.s. c 363 § 4.] 9.73.120 9.73.120 Reports—Required, when, contents. (1) Within thirty days after the expiration of an authorization or an extension or renewal thereof issued pursuant to RCW 9.73.090(2) as now or hereafter amended, the issuing or denying judge shall make a report to the administrator for the courts stating that: (a) An authorization, extension or renewal was applied for; (b) The kind of authorization applied for; (c) The authorization was granted as applied for, was modified, or was denied; [Title 9 RCW—page 80] (d) The period of recording authorized by the authorization and the number and duration of any extensions or renewals of the authorization; (e) The offense specified in the authorization or extension or renewal of authorization; (f) The identity of the person authorizing the application and of the investigative or law enforcement officer and agency for whom it was made; (g) Whether an arrest resulted from the communication which was the subject of the authorization; and (h) The character of the facilities from which or the place where the communications were to be recorded. (2) In addition to reports required to be made by applicants pursuant to federal law, all judges of the superior court authorized to issue authority pursuant to this chapter shall make annual reports on the operation of this chapter to the administrator for the courts. The reports made under this subsection must include information on authorizations for the installation and use of pen registers and trap and trace devices under RCW 9.73.260. The reports by the judges shall contain (a) the number of applications made; (b) the number of authorizations issued; (c) the respective periods of such authorizations; (d) the number and duration of any renewals thereof; (e) the crimes in connection with which the communications or conversations were sought; (f) the names of the applicants; and (g) such other and further particulars as the administrator for the courts may require, except that the administrator for the courts shall not require the reporting of information that might lead to the disclosure of the identity of a confidential informant. The chief justice of the supreme court shall annually report to the governor and the legislature on such aspects of the operation of this chapter as appropriate including any recommendations as to legislative changes or improvements to effectuate the purposes of this chapter and to assure and protect individual rights. [1998 c 217 § 3; 1989 c 271 § 207; 1977 ex.s. c 363 § 5.] Severability—1989 c 271: See note following RCW 9.94A.510. Local government reimbursement claims: RCW 4.92.280. 9.73.130 9.73.130 Recording private communications— Authorization—Application for, contents. Each application for an authorization to record communications or conversations pursuant to RCW 9.73.090 as now or hereafter amended shall be made in writing upon oath or affirmation and shall state: (1) The authority of the applicant to make such application; (2) The identity and qualifications of the investigative or law enforcement officers or agency for whom the authority to record a communication or conversation is sought and the identity of whoever authorized the application; (3) A particular statement of the facts relied upon by the applicant to justify his belief that an authorization should be issued, including: (a) The identity of the particular person, if known, committing the offense and whose communications or conversations are to be recorded; (b) The details as to the particular offense that has been, is being, or is about to be committed; (2006 Ed.) Privacy, Violating Right of (c) The particular type of communication or conversation to be recorded and a showing that there is probable cause to believe such communication will be communicated on the wire communication facility involved or at the particular place where the oral communication is to be recorded; (d) The character and location of the particular wire communication facilities involved or the particular place where the oral communication is to be recorded; (e) A statement of the period of time for which the recording is required to be maintained, if the character of the investigation is such that the authorization for recording should not automatically terminate when the described type of communication or conversation has been first obtained, a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur thereafter; (f) A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ; (4) Where the application is for the renewal or extension of an authorization, a particular statement of facts showing the results thus far obtained from the recording, or a reasonable explanation of the failure to obtain such results; (5) A complete statement of the facts concerning all previous applications, known to the individual authorizing and to the individual making the application, made to any court for authorization to record a wire or oral communication involving any of the same facilities or places specified in the application or involving any person whose communication is to be intercepted, and the action taken by the court on each application; and (6) Such additional testimony or documentary evidence in support of the application as the judge may require. [1977 ex.s. c 363 § 6.] 9.73.140 Recording private communications— Authorization of or application for—Inventory, contents, service—Availability of recording, applications, and orders. Within a reasonable time but not later than thirty days after the termination of the period of the authorization or of extensions or renewals thereof, or the date of the denial of an authorization applied for under RCW 9.73.090 as now or hereafter amended, the issuing authority shall cause to be served on the person named in the authorization or application for an authorization, and such other parties to the recorded communications as the judge may in his discretion determine to be in the interest of justice, an inventory which shall include: (1) Notice of the entry of the authorization or the application for an authorization which has been denied under RCW 9.73.090 as now or hereafter amended; (2) The date of the entry of the authorization or the denial of an authorization applied for under RCW 9.73.090 as now or hereafter amended; (3) The period of authorized or disapproved recording; and (4) The fact that during the period wire or oral communications were or were not recorded. The issuing authority, upon the filing of a motion, may in its discretion make available to such person or his attorney 9.73.140 (2006 Ed.) 9.73.210 for inspection such portions of the recorded communications, applications and orders as the court determines to be in the interest of justice. On an ex parte showing of good cause to the court the serving of the inventory required by this section may be postponed or dispensed with. [1977 ex.s. c 363 § 7.] 9.73.200 9.73.200 Intercepting, transmitting, or recording conversations concerning controlled substances—Findings. The legislature finds that the unlawful manufacturing, selling, and distributing of controlled substances is becoming increasingly prevalent and violent. Attempts by law enforcement officers to prevent the manufacture, sale, and distribution of drugs is resulting in numerous life-threatening situations since drug dealers are using sophisticated weapons and modern technological devices to deter the efforts of law enforcement officials to enforce the controlled substance statutes. Dealers of unlawful drugs are employing a wide variety of violent methods to realize the enormous profits of the drug trade. Therefore, the legislature finds that conversations regarding illegal drug operations should be intercepted, transmitted, and recorded in certain circumstances without prior judicial approval in order to protect the life and safety of law enforcement personnel and to enhance prosecution of drug offenses, and that that interception and transmission can be done without violating the constitutional guarantees of privacy. [1989 c 271 § 201.] Severability—1989 c 271: See note following RCW 9.94A.510. 9.73.210 9.73.210 Intercepting, transmitting, or recording conversations concerning controlled substances—Authorization—Monthly report—Admissibility—Destruction of information. (1) If a police commander or officer above the rank of first line supervisor has reasonable suspicion that the safety of the consenting party is in danger, law enforcement personnel may, for the sole purpose of protecting the safety of the consenting party, intercept, transmit, or record a private conversation or communication concerning the unlawful manufacture, delivery, sale, or possession with intent to manufacture, deliver, or sell, controlled substances as defined in chapter 69.50 RCW, or legend drugs as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW. (2) Before any interception, transmission, or recording of a private conversation or communication pursuant to this section, the police commander or officer making the determination required by subsection (1) of this section shall complete a written authorization which shall include (a) the date and time the authorization is given; (b) the persons, including the consenting party, expected to participate in the conversation or communication, to the extent known; (c) the expected date, location, and approximate time of the conversation or communication; and (d) the reasons for believing the consenting party’s safety will be in danger. (3) A monthly report shall be filed by the law enforcement agency with the administrator for the courts indicating the number of authorizations made under this section, the date and time of each authorization, and whether an interception, transmission, or recording was made with respect to each authorization. [Title 9 RCW—page 81] 9.73.220 Title 9 RCW: Crimes and Punishments (4) Any information obtained pursuant to this section is inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except: (a) With the permission of the person whose communication or conversation was intercepted, transmitted, or recorded without his or her knowledge; (b) In a civil action for personal injury or wrongful death arising out of the same incident, where the cause of action is based upon an act of physical violence against the consenting party; or (c) In a criminal prosecution, arising out of the same incident for a serious violent offense as defined in RCW 9.94A.030 in which a party who consented to the interception, transmission, or recording was a victim of the offense. (5) Nothing in this section bars the admission of testimony of a participant in the communication or conversation unaided by information obtained pursuant to this section. (6) The authorizing agency shall immediately destroy any written, transcribed, or recorded information obtained from an interception, transmission, or recording authorized under this section unless the agency determines there has been a personal injury or death or a serious violent offense which may give rise to a civil action or criminal prosecution in which the information may be admissible under subsection (4)(b) or (c) of this section. (7) Nothing in this section authorizes the interception, recording, or transmission of a telephonic communication or conversation. [1989 c 271 § 202.] Severability—1989 c 271: See note following RCW 9.94A.510. 9.73.220 9.73.220 Judicial authorizations—Availability of judge required. In each superior court judicial district in a county with a population of two hundred ten thousand or more there shall be available twenty-four hours a day at least one superior court or district court judge or magistrate designated to receive telephonic requests for authorizations that may be issued pursuant to this chapter. The presiding judge of each such superior court in conjunction with the district court judges in that superior court judicial district shall establish a coordinated schedule of rotation for all of the superior and district court judges and magistrates in the superior court judicial district for purposes of ensuring the availability of at least one judge or magistrate at all times. During the period that each judge or magistrate is designated, he or she shall be equipped with an electronic paging device when not present at his or her usual telephone. It shall be the designated judge’s or magistrate’s responsibility to ensure that all attempts to reach him or her for purposes of requesting authorization pursuant to this chapter are forwarded to the electronic page number when the judge or magistrate leaves the place where he or she would normally receive such calls. [1991 c 363 § 9; 1989 c 271 § 203.] Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. Severability—1989 c 271: See note following RCW 9.94A.510. 9.73.230 9.73.230 Intercepting, transmitting, or recording conversations concerning controlled substances—Conditions—Written reports required—Judicial review— Notice—Admissibility—Penalties. (1) As part of a bona [Title 9 RCW—page 82] fide criminal investigation, the chief law enforcement officer of a law enforcement agency or his or her designee above the rank of first line supervisor may authorize the interception, transmission, or recording of a conversation or communication by officers under the following circumstances: (a) At least one party to the conversation or communication has consented to the interception, transmission, or recording; (b) Probable cause exists to believe that the conversation or communication involves the unlawful manufacture, delivery, sale, or possession with intent to manufacture, deliver, or sell, controlled substances as defined in chapter 69.50 RCW, or legend drugs as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW; and (c) A written report has been completed as required by subsection (2) of this section. (2) The agency’s chief officer or designee authorizing an interception, transmission, or recording under subsection (1) of this section, shall prepare and sign a written report at the time of authorization indicating: (a) The circumstances that meet the requirements of subsection (1) of this section; (b) The names of the authorizing and consenting parties, except that in those cases where the consenting party is a confidential informant, the name of the confidential informant need not be divulged; (c) The names of the officers authorized to intercept, transmit, and record the conversation or communication; (d) The identity of the particular person or persons, if known, who may have committed or may commit the offense; (e) The details of the particular offense or offenses that may have been or may be committed and the expected date, location, and approximate time of the conversation or communication; and (f) Whether there was an attempt to obtain authorization pursuant to RCW 9.73.090(2) and, if there was such an attempt, the outcome of the attempt. (3) An authorization under this section is valid in all jurisdictions within Washington state and for the interception of communications from additional persons if the persons are brought into the conversation or transaction by the nonconsenting party or if the nonconsenting party or such additional persons cause or invite the consenting party to enter another jurisdiction. (4) The recording of any conversation or communication under this section shall be done in such a manner that protects the recording from editing or other alterations. (5) An authorization made under this section is valid for no more than twenty-four hours from the time it is signed by the authorizing officer, and each authorization shall independently meet all of the requirements of this section. The authorizing officer shall sign the written report required under subsection (2) of this section, certifying the exact date and time of his or her signature. An authorization under this section may be extended not more than twice for an additional consecutive twenty-four hour period based upon the same probable cause regarding the same suspected transaction. Each such extension shall be signed by the authorizing officer. (2006 Ed.) Privacy, Violating Right of (6) Within fifteen days after the signing of an authorization that results in any interception, transmission, or recording of a conversation or communication pursuant to this section, the law enforcement agency which made the interception, transmission, or recording shall submit a report including the original authorization under subsection (2) of this section to a judge of a court having jurisdiction which report shall identify (a) the persons, including the consenting party, who participated in the conversation, and (b) the date, location, and approximate time of the conversation. In those cases where the consenting party is a confidential informant, the name of the confidential informant need not be divulged. A monthly report shall be filed by the law enforcement agency with the administrator for the courts indicating the number of authorizations granted, the date and time of each authorization, interceptions made, arrests resulting from an interception, and subsequent invalidations. (7)(a) Within two judicial days of receipt of a report under subsection (6) of this section, the court shall make an ex parte review of the authorization, but not of the evidence, and shall make a determination whether the requirements of subsection (1) of this section were met. If the court determines that any of the requirements of subsection (1) of this section were not met, the court shall order that any recording and any copies or transcriptions of the conversation or communication be destroyed. Destruction of recordings, copies, or transcriptions shall be stayed pending any appeal of a finding that the requirements of subsection (1) of this section were not met. (b) Absent a continuation under (c) of this subsection, six months following a determination under (a) of this subsection that probable cause did not exist, the court shall cause a notice to be mailed to the last known address of any nonconsenting party to the conversation or communication that was the subject of the authorization. The notice shall indicate the date, time, and place of any interception, transmission, or recording made pursuant to the authorization. The notice shall also identify the agency that sought the authorization and shall indicate that a review under (a) of this subsection resulted in a determination that the authorization was made in violation of this section. (c) An authorizing agency may obtain six-month extensions to the notice requirement of (b) of this subsection in cases of active, ongoing criminal investigations that might be jeopardized by sending the notice. (8) In any subsequent judicial proceeding, evidence obtained through the interception or recording of a conversation or communication pursuant to this section shall be admissible only if: (a) The court finds that the requirements of subsection (1) of this section were met and the evidence is used in prosecuting an offense listed in subsection (1)(b) of this section; or (b) The evidence is admitted with the permission of the person whose communication or conversation was intercepted, transmitted, or recorded; or (c) The evidence is admitted in a prosecution for a "serious violent offense" as defined in RCW 9.94A.030 in which a party who consented to the interception, transmission, or recording was a victim of the offense; or (2006 Ed.) 9.73.260 (d) The evidence is admitted in a civil suit for personal injury or wrongful death arising out of the same incident, in which a party who consented to the interception, transmission, or recording was a victim of a serious violent offense as defined in RCW 9.94A.030. Nothing in this subsection bars the admission of testimony of a party or eyewitness to the intercepted, transmitted, or recorded conversation or communication when that testimony is unaided by information obtained solely by violation of RCW 9.73.030. (9) Any determination of invalidity of an authorization under this section shall be reported by the court to the administrative office of the courts. (10) Any person who intentionally intercepts, transmits, or records or who intentionally authorizes the interception, transmission, or recording of a conversation or communication in violation of this section, is guilty of a class C felony punishable according to chapter 9A.20 RCW. (11) An authorizing agency is liable for twenty-five thousand dollars in exemplary damages, in addition to any other damages authorized by this chapter or by other law, to a person whose conversation or communication was intercepted, transmitted, or recorded pursuant to an authorization under this section if: (a) In a review under subsection (7) of this section, or in a suppression of evidence proceeding, it has been determined that the authorization was made without the probable cause required by subsection (1)(b) of this section; and (b) The authorization was also made without a reasonable suspicion that the conversation or communication would involve the unlawful acts identified in subsection (1)(b) of this section. [2005 c 282 § 17; 1989 c 271 § 204.] Severability—1989 c 271: See note following RCW 9.94A.510. 9.73.240 9.73.240 Intercepting, transmitting, or recording conversations concerning controlled substances—Concurrent power of attorney general to investigate and prosecute. (1) The attorney general shall have concurrent authority and power with the prosecuting attorneys to investigate violations of RCW 9.73.200 through 9.73.230 or RCW 9.73.090 and initiate and conduct prosecutions of any violations upon request of any of the following: (a) The person who was the nonconsenting party to the intercepted, transmitted, or recorded conversation or communication; or (b) The county prosecuting attorney of the jurisdiction in which the offense has occurred. (2) The request shall be communicated in writing to the attorney general. [1989 c 271 § 206.] Severability—1989 c 271: See note following RCW 9.94A.510. 9.73.260 9.73.260 Pen registers, trap and trace devices. (1) As used in this section: (a) "Wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities for the [Title 9 RCW—page 83] 9.73.260 Title 9 RCW: Crimes and Punishments transmission of intrastate, interstate, or foreign communications, and such term includes any electronic storage of such communication. (b) "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system, but does not include: (i) Any wire or oral communication; (ii) Any communication made through a tone-only paging device; or (iii) Any communication from a tracking device. (c) "Electronic communication service" means any service that provides to users thereof the ability to send or receive wire or electronic communications. (d) "Pen register" means a device that records or decodes electronic or other impulses that identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached, but such term does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business. (e) "Trap and trace device" means a device that captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted. (2) No person may install or use a pen register or trap and trace device without a prior court order issued under this section except as provided under subsection (6) of this section or RCW 9.73.070. (3) A law enforcement officer may apply for and the superior court may issue orders and extensions of orders authorizing the installation and use of pen registers and trap and trace devices as provided in this section. The application shall be under oath and shall include the identity of the officer making the application and the identity of the law enforcement agency conducting the investigation. The applicant must certify that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency. (4) If the court finds that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation and finds that there is probable cause to believe that the pen register or trap and trace device will lead to obtaining evidence of a crime, contraband, fruits of crime, things criminally possessed, weapons, or other things by means of which a crime has been committed or reasonably appears about to be committed, or will lead to learning the location of a person who is unlawfully restrained or reasonably believed to be a witness in a criminal investigation or for whose arrest there is probable cause, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device. The order shall specify: (a) The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached; [Title 9 RCW—page 84] (b) The identity, if known, of the person who is the subject of the criminal investigation; (c) The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order; and (d) A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates. The order shall direct, if the applicant has requested, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device. An order issued under this section shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed sixty days. An extension of the original order may only be granted upon: A new application for an order under subsection (3) of this section; and a showing that there is a probability that the information or items sought under this subsection are more likely to be obtained under the extension than under the original order. No extension beyond the first extension shall be granted unless: There is a showing that there is a high probability that the information or items sought under this subsection are much more likely to be obtained under the second or subsequent extension than under the original order; and there are extraordinary circumstances such as a direct and immediate danger of death or serious bodily injury to a law enforcement officer. The period of extension shall be for a period not to exceed sixty days. An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that the order be sealed until otherwise ordered by the court and that the person owning or leasing the line to which the pen register or trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person, unless or until otherwise ordered by the court. (5) Upon the presentation of an order, entered under subsection (4) of this section, by an officer of a law enforcement agency authorized to install and use a pen register under this chapter, a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish such law enforcement officer forthwith all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if such assistance is directed by a court order as provided in subsection (4) of this section. Upon the request of an officer of a law enforcement agency authorized to receive the results of a trap and trace device under this chapter, a provider of a wire or electronic communication service, landlord, custodian, or other person shall install such device forthwith on the appropriate line and shall furnish such law enforcement officer all additional information, facilities, and technical assistance including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to (2006 Ed.) Subversive Activities whom the installation and use is to take place, if such installation and assistance is directed by a court order as provided in subsection (4) of this section. Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the officer of a law enforcement agency, designated in the court order, at reasonable intervals during regular business hours for the duration of the order. A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance pursuant to this subsection shall be reasonably compensated by the law enforcement agency that requests the facilities or assistance for such reasonable expenses incurred in providing such facilities and assistance. No cause of action shall lie in any court against any provider of a wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order under this section. A good faith reliance on a court order under this section, a request pursuant to this section, a legislative authorization, or a statutory authorization is a complete defense against any civil or criminal action brought under this chapter or any other law. (6)(a) Notwithstanding any other provision of this chapter, a law enforcement officer and a prosecuting attorney or deputy prosecuting attorney who jointly and reasonably determine that there is probable cause to believe that an emergency situation exists that involves immediate danger of death or serious bodily injury to any person that requires the installation and use of a pen register or a trap and trace device before an order authorizing such installation and use can, with due diligence, be obtained, and there are grounds upon which an order could be entered under this chapter to authorize such installation and use, may have installed and use a pen register or trap and trace device if, within forty-eight hours after the installation has occurred, or begins to occur, an order approving the installation or use is issued in accordance with subsection (4) of this section. In the absence of an authorizing order, such use shall immediately terminate when the information sought is obtained, when the application for the order is denied or when forty-eight hours have lapsed since the installation of the pen register or trap and trace device, whichever is earlier. If an order approving the installation or use is not obtained within forty-eight hours, any information obtained is not admissible as evidence in any legal proceeding. The knowing installation or use by any law enforcement officer of a pen register or trap and trace device pursuant to this subsection without application for the authorizing order within forty-eight hours of the installation shall constitute a violation of this chapter and be punishable as a gross misdemeanor. A provider of a wire or electronic service, landlord, custodian, or other person who furnished facilities or technical assistance pursuant to this subsection shall be reasonably compensated by the law enforcement agency that requests the facilities or assistance for such reasonable expenses incurred in providing such facilities and assistance. (b) A law enforcement agency that authorizes the installation of a pen register or trap and trace device under this subsection (6) shall file a monthly report with the administrator for the courts. The report shall indicate the number of authorizations made, the date and time of each authorization, whether a court authorization was sought within forty-eight (2006 Ed.) 9.81.010 hours, and whether a subsequent court authorization was granted. [1998 c 217 § 1.] Local government reimbursement claims: RCW 4.92.280. Chapter 9.81 Chapter 9.81 RCW SUBVERSIVE ACTIVITIES Sections 9.81.010 9.81.020 9.81.030 9.81.040 9.81.050 9.81.060 9.81.070 9.81.080 9.81.082 9.81.083 9.81.090 9.81.110 9.81.120 Definitions. Subversive activities made felony—Penalty. Membership in subversive organization is felony—Penalty. Disqualification from voting or holding public office. Dissolution of subversive organizations—Disposition of property. Public employment—Subversive person ineligible. Public employment—Determining eligibility—Inquiries— Oath. Public employment—Inquiries may be dispensed with, when. Membership in subversive organization described. Communist party declared a subversive organization. Public employees—Discharge of subversive persons—Procedure—Hearing—Appeal. Misstatements are punishable as perjury—Penalty. Constitutional rights—Censorship or infringement. Anarchy and sabotage: Chapter 9.05 RCW. Freedom of speech: State Constitution Art. 1 § 5. Treason: State Constitution Art. 1 § 27; chapter 9.82 RCW. 9.81.010 9.81.010 Definitions. (1) "Organization" means an organization, corporation, company, partnership, association, trust, foundation, fund, club, society, committee, political party, or any group of persons, whether or not incorporated, permanently or temporarily associated together for joint action or advancement of views on any subject or subjects. (2) "Subversive organization" means any organization which engages in or advocates, abets, advises, or teaches, or a purpose of which is to engage in or advocate, abet, advise, or teach activities intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the state of Washington, or of any political subdivision of either of them, by revolution, force or violence. (3) "Foreign subversive organization" means any organization directed, dominated or controlled directly or indirectly by a foreign government which engages in or advocates, abets, advises, or teaches, or a purpose of which is to engage in or to advocate, abet, advise, or teach, activities intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of the constitutional form of the government of the United States, or of the state of Washington, or of any political subdivision of either of them, and to establish in place thereof any form of government the direction and control of which is to be vested in, or exercised by or under, the domination or control of any foreign government, organization, or individual. (4) "Foreign government" means the government of any country or nation other than the government of the United States of America or of one of the states thereof. (5) "Subversive person" means any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional [Title 9 RCW—page 85] 9.81.020 Title 9 RCW: Crimes and Punishments form of the government of the United States, or of the state of Washington, or any political subdivision of either of them by revolution, force, or violence; or who with knowledge that the organization is an organization as described in subsections (2) and (3) hereof, becomes or remains a member of a subversive organization or a foreign subversive organization. [1953 c 142 § 1; 1951 c 254 § 1.] Short title—1951 c 254: "This act may be cited as the Subversive Activities Act." [1951 c 254 § 20.] Severability—1951 c 254: "If any provision, phrase, or clause of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions, phrases, or clauses or applications of this act which can be given effect without the invalid provision, phrase, or clause or application, and to this end the provisions, phrases and clauses of this act are declared to be severable." [1951 c 254 § 18.] 9.81.040 Disqualification from voting or holding public office. Any person who shall be convicted or shall plead guilty of violating any of the provisions of RCW 9.81.020 and 9.81.030, in addition to all other penalties therein provided, shall from the date of such conviction be barred from (1) Holding any office, elective or appointive, or any other position of profit or trust in, or employment by the government of the state of Washington or of any agency thereof or of any county, municipal corporation or other political subdivision of said state; (2) Filing or standing for election to any public office in the state of Washington; or (3) Voting in any election held in this state. [1951 c 254 § 4.] 9.81.040 9.81.020 9.81.020 Subversive activities made felony—Penalty. (1) It is a class B felony for any person knowingly and willfully to: (a) Commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the state of Washington or any political subdivision of either of them, by revolution, force or violence; or (b) Advocate, abet, advise, or teach by any means any person to commit, attempt to commit, or assist in the commission of any such act under such circumstances as to constitute a clear and present danger to the security of the United States, or of the state of Washington or of any political subdivision of either of them; or (c) Conspire with one or more persons to commit any such act; or (d) Assist in the formation or participate in the management or to contribute to the support of any subversive organization or foreign subversive organization knowing the organization to be a subversive organization or a foreign subversive organization; or (e) Destroy any books, records or files, or secrete any funds in this state of a subversive organization or a foreign subversive organization, knowing the organization to be such. (2) Any person upon a plea of guilty or upon conviction of violating any of the provisions of this section shall be fined not more than ten thousand dollars, or imprisoned for not more than ten years, or both, at the discretion of the court. [2003 c 53 § 44; 1951 c 254 § 2.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.81.030 9.81.030 Membership in subversive organization is felony—Penalty. It is a class C felony for any person after June 1, 1951, to become, or after September 1, 1951, to remain a member of a subversive organization or a foreign subversive organization knowing the organization to be a subversive organization or foreign subversive organization. Any person upon a plea of guilty or upon conviction of violating this section shall be fined not more than five thousand dollars, or imprisoned for not more than five years, or both, at the discretion of the court. [2003 c 53 § 45; 1951 c 254 § 3.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. [Title 9 RCW—page 86] 9.81.050 Dissolution of subversive organizations— Disposition of property. It shall be unlawful for any subversive organization or foreign subversive organization to exist or function in the state of Washington and any organization which by a court of competent jurisdiction is found to have violated the provisions of this section shall be dissolved, and if it be a corporation organized and existing under the laws of the state of Washington a finding by a court of competent jurisdiction that it has violated the provisions of this section shall constitute legal cause for forfeiture of its charter and its charter shall be forfeited and all funds, books, records and files of every kind and all other property of any organization found to have violated the provisions of this section shall be seized by and for the state of Washington, the funds to be deposited in the state treasury and the books, records, files and other property to be turned over to the attorney general of Washington. [1951 c 254 § 5.] 9.81.050 9.81.060 Public employment—Subversive person ineligible. No subversive person, as defined in this chapter, shall be eligible for employment in, or appointment to any office, or any position of trust or profit in the government, or in the administration of the business, of this state, or of any county, municipality, or other political subdivision of this state. [1951 c 254 § 11.] 9.81.060 9.81.070 Public employment—Determining eligibility—Inquiries—Oath. Every person and every board, commission, council, department, court or other agency of the state of Washington or any political subdivision thereof, who or which appoints or employs or supervises in any manner the appointment or employment of public officials or employees shall establish by rules, regulations or otherwise, procedures designed to ascertain whether any person is a subversive person. In securing any facts necessary to ascertain the information herein required, the applicant shall be required to sign a written statement containing answers to such inquiries as may be material, which statement shall contain notice that it is subject to the penalties of perjury. Every such person, board, commission, council, department, court, or other agency shall require every employee or applicant for employment to state under oath whether or not he or she is a member of the Communist party or other subversive organization, and refusal to answer on any grounds shall be cause for immediate termination of such employee’s employment or for 9.81.070 (2006 Ed.) Treason refusal to accept his or her application for employment. [1955 c 377 § 1; 1951 c 254 § 12.] Application forms, licenses—Mention of race or religion prohibited—Penalty: RCW 43.01.100. Discrimination in employment: Chapter 49.60 RCW. 9.81.080 Public employment—Inquiries may be dispensed with, when. The inquiries prescribed in preceding sections, other than the written statement to be executed by an applicant for employment and the requirement set forth in RCW 9.81.070, relative to membership in the communist party or other subversive organization, shall not be required as a prerequisite to the employment of any persons in any case in which the employing authority may determine, and by rule or regulation specify the reasons why, the nature of the work to be performed is such that employment of such persons will not be dangerous to the health of the citizens or the security of the governments of the United States, the state of Washington, or any political subdivision thereof. [1955 c 377 § 2; 1951 c 254 § 13.] 9.81.080 9.81.082 Membership in subversive organization described. For the purpose of *this act, membership in a subversive organization shall be membership in any organization after it has been placed on the list of organizations designated by the attorney general of the United States as being subversive pursuant to executive order No. 9835. [1955 c 377 § 3.] Chapter 9.82 by the classified service in this section referred to, shall establish rules or procedures similar to those required herein for classified services for a hearing for any person charged with being a subversive person, as defined in this chapter, after notice and opportunity to be heard. Every employing authority discharging any person pursuant to any provision of this chapter, shall promptly report to the special assistant attorney general in charge of subversive activities the fact of and the circumstances surrounding such discharge. Any person discharged under the provisions of this chapter shall have the right within thirty days thereafter to appeal to the superior court of the county wherein said person may reside or wherein he may have been employed for determination by said court as to whether or not the discharge appealed from was justified under the provisions of this chapter. The court shall regularly hear and determine such appeals and the decision of the superior court may be appealed to the supreme court or the court of appeals of the state of Washington as in civil cases. Any person appealing to the superior court may be entitled to trial by jury if he or she so elects. [1971 c 81 § 44; 1951 c 254 § 15.] 9.81.082 *Reviser’s note: The term "this act" as used in RCW 9.81.082 appeared in 1955 c 377 § 3 which did not contain any language incorporating it as part of 1951 c 254 nor as part of chapter 9.81 RCW. 9.81.083 Communist party declared a subversive organization. The Communist party is a subversive organization within the purview of chapter 9.81 RCW and membership in the Communist party is a subversive activity thereunder. [1955 c 377 § 4.] 9.81.083 9.81.090 9.81.090 Public employees—Discharge of subversive persons—Procedure—Hearing—Appeal. Reasonable grounds on all the evidence to believe that any person is a subversive person, as defined in this chapter, shall be cause for discharge from any appointive office or other position of profit or trust in the government of or in the administration of the business of this state, or of any county, municipality or other political subdivision of this state, or any agency thereof. The attorney general and the personnel director, and the civil service commission of any county, city or other political subdivision of this state, shall, by appropriate rules or regulations, prescribe that persons charged with being subversive persons, as defined in this chapter, shall have the right of reasonable notice, date, time and place of hearing, opportunity to be heard by himself and witnesses on his behalf, to be represented by counsel, to be confronted by witnesses against him, the right to cross-examination, and such other rights which are in accordance with the procedures prescribed by law for the discharge of such person for other reasons. Every person and every board, commission, council, department, or other agency of the state of Washington or any political subdivision thereof having responsibility for the appointment, employment or supervision of public employees not covered (2006 Ed.) 9.81.110 Misstatements are punishable as perjury— Penalty. Every written statement made pursuant to this chapter by an applicant for appointment or employment, or by any employee, shall be deemed to have been made under oath if it contains a declaration preceding the signature of the maker to the effect that it is made under the penalties of perjury. Any person who wilfully makes a material misstatement of fact (1) in any such written statement, or (2) in any affidavit made pursuant to the provisions of this chapter, or (3) under oath in any hearing conducted by any agency of the state, or of any of its political subdivisions pursuant to this chapter, or (4) in any written statement by an applicant for appointment or employment or by an employee in any state aid or private institution of learning in this state, intended to determine whether or not such applicant or employee is a subversive person as defined in this chapter, which statement contains notice that it is subject to the penalties of perjury, shall be subject to the penalties of perjury, as prescribed in chapter 9.41 RCW. [1951 c 254 § 17.] 9.81.110 9.81.120 Constitutional rights—Censorship or infringement. Nothing in this chapter shall be construed to authorize, require or establish any military or civilian censorship or in any way to limit or infringe upon freedom of the press or freedom of speech or assembly within the meaning and the manner as guaranteed by the Constitution of the United States or of the state of Washington and no regulation shall be promulgated hereunder having that effect. [1951 c 254 § 19.] 9.81.120 Chapter 9.82 Chapter 9.82 RCW TREASON Sections 9.82.010 9.82.020 9.82.030 Defined—Penalty. Levying war. Misprision of treason. Anarchy and sabotage: Chapter 9.05 RCW. Subversive activities: Chapter 9.81 RCW. [Title 9 RCW—page 87] 9.82.010 Title 9 RCW: Crimes and Punishments 9.82.010 Defined—Penalty. (1) Treason against the people of the state consists in— (a) Levying war against the people of the state, or (b) Adhering to its enemies, or (c) Giving them aid and comfort. (2) Treason is a class A felony and punishable by death. (3) No person shall be convicted for treason unless upon the testimony of two witnesses to the same overt act or by confession in open court. [2003 c 53 § 46; 1909 c 249 § 65; RRS § 2317.] 9.82.010 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Treason defined and evidence required: State Constitution Art. 1 § 27. 9.82.020 Levying war. To constitute levying war against the state an actual act of war must be committed. To conspire to levy war is not enough. When persons arise in insurrection with intent to prevent, in general, by force and intimidation, the execution of a statute of this state, or to force its repeal, they shall be guilty of levying war. But an endeavor, although by numbers and force of arms, to resist the execution of a law in a single instance, and for a private purpose, is not levying war. [1909 c 249 § 66; RRS § 2318.] 9.82.020 9.82.030 9.82.030 Misprision of treason. Every person having knowledge of the commission of treason, who conceals the same, and does not, as soon as may be, disclose such treason to the governor or a justice of the supreme court or a judge of either the court of appeals or the superior court, shall be guilty of misprision of treason and punished by a fine of not more than one thousand dollars, or by imprisonment in a state correctional facility for not more than five years or in a county jail for not more than one year. [1992 c 7 § 16; 1971 c 81 § 45; 1909 c 249 § 67; RRS § 2319.] Chapter 9.86 Chapter 9.86 RCW FLAGS, CRIMES RELATING TO Sections 9.86.010 9.86.020 9.86.030 9.86.040 "Flag," etc., defined. Improper use of flag prohibited. Desecration of flag. Application of provisions. or of this state, or authorized by any law of the United States or of this state; or (b) Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement; or (c) Expose to public view for sale, manufacture, or otherwise, or to sell, give, or have in possession for sale, for gift or for use for any purpose, any substance, being an article of merchandise, or receptacle, or thing for holding or carrying merchandise, upon or to which shall have been produced or attached any such flag, standard, color, ensign or shield, in order to advertise, call attention to, decorate, mark or distinguish such article or substance. (2) A violation of this section is a gross misdemeanor. [2003 c 53 § 47; 1919 c 107 § 2; 1909 c 249 § 423; 1901 c 154 § 1; RRS § 2675-2.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.86.030 9.86.030 Desecration of flag. (1) No person shall knowingly cast contempt upon any flag, standard, color, ensign or shield, as defined in RCW 9.86.010, by publicly mutilating, defacing, defiling, burning, or trampling upon the flag, standard, color, ensign or shield. (2) A violation of this section is a gross misdemeanor. [2003 c 53 § 48; 1969 ex.s. c 110 § 1; 1919 c 107 § 3; 1909 c 249 § 423; RRS § 2675-3.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.86.040 9.86.040 Application of provisions. This chapter shall not apply to any act permitted by the statutes of the United States or of this state, or by the United States army and navy regulations, nor shall it apply to any printed or written document or production, stationery, ornament, picture or jewelry whereon shall be depicted said flag, standard, color, ensign or shield with no design or words thereon and disconnected with any advertisement. [1919 c 107 § 4; RRS § 2675-4.] Chapter 9.91 Display of flags: RCW 1.20.015. Flag exercises in schools: RCW 28A.230.140. State flag: RCW 1.20.010. 9.86.010 "Flag," etc., defined. The words flag, standard, color, ensign or shield, as used in this chapter, shall include any flag, standard, color, ensign or shield, or copy, picture or representation thereof, made of any substance or represented or produced thereon, and of any size, evidently purporting to be such flag, standard, color, ensign or shield of the United States or of this state, or a copy, picture or representation thereof. [1919 c 107 § 1; RRS § 2675-1.] 9.86.010 9.86.020 Improper use of flag prohibited. (1) No person shall, in any manner, for exhibition or display: (a) Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States 9.86.020 [Title 9 RCW—page 88] Chapter 9.91 RCW MISCELLANEOUS CRIMES Sections 9.91.010 9.91.020 9.91.025 9.91.060 9.91.110 9.91.130 9.91.140 9.91.142 9.91.144 9.91.150 9.91.155 9.91.160 9.91.170 9.91.175 9.91.180 Denial of civil rights—Terms defined. Operating railroad, steamboat, vehicle, etc., while intoxicated. Unlawful bus conduct. Leaving children unattended in parked automobile. Metal buyers—Records of purchases—Penalty. Disposal of trash in charity donation receptacle. Food stamps—Unlawful sale. Food stamps—Trafficking. Food stamps—Unlawful redemption. Tree spiking. Tree spiking—Action for damages. Personal protection spray devices. Interfering with dog guide or service animal. Interfering with search and rescue dog. Violent video or computer games. Accountancy practice laws, penalty: RCW 18.04.370. Aeronautics laws and rules, penalty: RCW 47.68.240. Agriculture agricultural enabling act, penalties: RCW 15.66.210. (2006 Ed.) Miscellaneous Crimes apple advertising laws and rules, penalty: RCW 15.24.200. farm labor contractors, violations, penalty: RCW 19.30.150. fertilizers, minerals, and limes, penalty: RCW 15.54.470. honey, penalty for violation of law regulating: RCW 69.28.180, 69.28.185. horticultural plants and certification act, prohibited acts: Chapter 15.13 RCW. marketing act, penalties: RCW 15.66.210. peaches, standards of grades and packs, inspections, penalty for violations: RCW 15.17.290. soft tree fruits, penalty: RCW 15.28.270. standards of grades and packs, penalties: Chapter 15.17 RCW. Aircraft and airman licensing violations: RCW 14.16.060. Airport zoning violations: RCW 14.12.210. Alcoholic beverages, violations and penalties: Chapter 66.44 RCW. All-terrain vehicles additional violations, penalty: RCW 46.09.130. operating violations, penalty: RCW 46.09.120, 46.09.190. Amateur radio operators, special motor vehicle license plates, violation of act: RCW 46.16.350. Ambulances and drivers, first aid requirements, penalty: RCW 70.54.060, 70.54.065. Chapter 9.91 Boxing, wrestling, and martial arts, penalties for violations of provisions relating to: RCW 67.08.130, 67.08.140, 67.08.150. Brands and marks on animals, obliteration, etc., penalty: RCW 16.57.120, 16.57.320, 16.57.360. Building permit, issuance to person not complying with industrial insurance payroll estimate requirement: RCW 51.12.070. Buildings, public doors, safety requirements, penalty: RCW 70.54.070. earthquake standards for construction, penalty: RCW 70.86.040. Capitol grounds traffic regulations, penalty for violations: RCW 46.08.170. Caustic poisons act, penalty for violation: RCW 69.36.060. Cemeteries embalmers and funeral director laws, penalty: RCW 18.39.220. endowment care cemeteries, penalties: RCW 68.40.085, 68.40.090. establishment in violation of laws regulating, penalty: RCW 68.56.040. mausoleums and columbariums, penalty for violation of construction laws: RCW 68.28.060. property, penalties for violations concerning: RCW 68.24.130, 68.24.140, 68.24.150, 68.24.190, 68.56.010. Charitable trusts, penalty for violations: RCW 11.110.140. Children (see Minors) Animals: Title 16 RCW. Antitrust, consumer protection: Chapter 19.86 RCW. Chiropody licensing laws, penalty: RCW 18.22.220. Architects licensing laws, penalty: RCW 18.08.460. Cities and towns budgets in cities over 300,000, penalty for violation of regulations: RCW 35.32A.090. cities of the first class, powers to prescribe crimes by ordinance: RCW 35.22.280. cities of the second class, powers to prescribe penalties for violation of ordinances: RCW 35.23.440. city fire fighters, city police, civil service provisions, penalty for violations: RCW 41.08.210. commission form, free services to officers and employees prohibited, penalty: RCW 35.17.150. operation of vehicles, etc., on bicycle paths prohibited, penalty: RCW 35.75.020. pollution of water supply, penalty: RCW 35.88.040. towns, power to prescribe penalties for violation of ordinances: RCW 35.27.370. unclassified cities, powers to prescribe penalties for violation of ordinances: RCW 35.30.010. Auctioneering, county licensing laws, penalty: RCW 36.71.070. Ballots (see also Elections) counterfeiting or unlawful possession, penalty: RCW 29A.84.540. divulging ballot count, penalty: RCW 29A.84.730. tampering with, penalty: RCW 29A.84.420. unlawful printing or distribution of official ballots, penalty: RCW 29A.84.410. Banks and trust companies advertising legal services, penalty: RCW 30.04.260. certification of checks, penalty for violation of regulations: RCW 30.16.010. commission, etc., to officer or employee to procure loan prohibited, penalty: RCW 30.12.110. companies, commingling trust property, penalty: RCW 30.04.240. examinations, penalty for falsification: RCW 30.04.060. false entries or statements, penalty: RCW 30.12.090. general penalties for violation of laws concerning: RCW 30.04.310, 30.12.190. general penalty for violation of rules and regulations: RCW 30.04.050. holding companies regulations, penalty: RCW 30.04.230. loans from trust funds prohibited, penalty: RCW 30.12.120. preferential transfers in contemplation of insolvency, penalty: RCW 30.44.110. receiving deposits when insolvent prohibited, penalty: RCW 30.44.120. records, destroying or secreting, penalty: RCW 30.12.100. unlawful use of words indicating, penalty: RCW 30.04.020. Barbering licensing regulations, penalty: RCW 18.16.210. Baseball minors, penalty for violations concerning: RCW 67.04.150. penalties for bribery or fraud concerning: RCW 67.04.010, 67.04.020, 67.04.050. Beauty culture licensing laws, penalty: RCW 18.16.210. Bicycles, bicycle paths, operation of vehicles on prohibited: RCW 35.75.020. Bids on state purchases, interfering with: RCW 43.19.1939. Birthing centers licensing, penalty for unlicensed operation: RCW 18.46.120. Chiropractic licensing laws, penalty: RCW 18.25.090. Civil defense, enforcement of orders, rules, and regulations, penalty: RCW 38.52.150. Civil service for sheriff’s office employees, penalty: RCW 41.14.220. Collection agency and out-of-state collection agency laws, penalty: RCW 19.16.430, 19.16.450. Colleges interfering by force or violence with any administrator, faculty member or student unlawful—Penalty: RCW 28B.10.570, 28B.10.572. intimidating any administrator, faculty member or student by threat of force or violence unlawful—Penalty: RCW 28B.10.571 and 28B.10.572. Commercial feed law, crimes against: Chapter 15.53 RCW. Commercial sprayers and dusters, violations, penalty: Chapter 17.21 RCW. Commission merchants, violations, penalty: RCW 20.01.460. Consumer protection, crimes and penalties relating to: Chapter 19.86 RCW. Control of pet animals infested with diseases communicable to humans, violation, penalty: RCW 16.70.050. Controlled atmosphere storage, penalty: RCW 15.30.250. Controlled substances: Chapter 69.50 RCW. Blind made products, false advertising: RCW 19.06.030, 19.06.040. Conveyances, fraudulent: Chapter 19.40 RCW. Boarding homes’ licensing act, violations of: Chapter 18.20 RCW. Bodies (see Human remains) Cosmetology laws, penalty: RCW 18.16.210. Boilers or unfired pressure vessels, inspection certificate required, penalty: RCW 70.79.320. Bonds issued by state, etc., fraud of engraver, penalty: RCW 39.44.101. (2006 Ed.) Counties budget laws, penalty for violation: RCW 36.40.240. building codes and fire regulations, penalty for violation: RCW 36.43.040. dog license tax violation, penalty: RCW 36.49.070. [Title 9 RCW—page 89] Chapter 9.91 Title 9 RCW: Crimes and Punishments garbage disposal regulations, penalty for violations: RCW 36.58.020. hawkers and auctioneers, penalty for selling without license: RCW 36.71.060. officers failing to pay over fees, penalty: RCW 36.18.170. officers taking illegal fees, penalty: RCW 36.18.160. parks, playgrounds, or other recreational facilities, violation of rules and regulations adopted by county commissioners, penalty: RCW 36.68.080. roads and bridges general penalty for violation of provisions concerning: RCW 36.75.290. use of oil or other material restricted, penalty: RCW 36.86.060. trading stamp licenses, penalty: RCW 19.83.050. violation of regulations for taking of census for classification of counties: RCW 36.13.070. Credit unions: Chapter 31.12 RCW. Cruelty to animals, penalties: Chapter 16.52 RCW. Dental hygienist licensing laws, penalties: RCW 18.29.100. Dentistry practice laws, penalties: RCW 18.32.390, 18.32.675, 18.32.735, 18.32.745, 18.32.755. Diking and drainage improvement districts, damaging improvements, penalty: RCW 85.08.690. Discrimination, interference with human rights commission, penalty: RCW 49.60.310. Diseased domestic animals, quarantine, penalty: RCW 16.36.110. Diseases, dangerous, contagious, or infectious, penalty for violations concerning control of: RCW 70.05.120, 70.24.080, 70.54.050. Disposal of dead animals, violations, penalty: RCW 16.68.180. Dog law: Chapter 16.08 RCW. Doors of buildings used by public, safety requirements, penalty: RCW 70.54.070. Drugs: Chapters 69.41, 69.50 RCW. Earthquake standards for construction for public buildings, penalty: RCW 70.86.040. Elections absentee voting law, penalty for violations: RCW 29A.84.680. bribery or coercion of voters, penalty: RCW 29A.84.620. canvassing of votes law, penalty for violations: RCW 29A.60.200. counterfeiting or unlawful possession of ballots, penalty: RCW 29A.84.540. destroying or defacing election supplies and notices, etc., penalty: RCW 29A.84.550. divulging ballot count, penalty: RCW 29A.84.730. exit polling: RCW 29A.84.510. general penalty for violations: Chapter 29A.84 RCW. influencing voters to vote or not to vote by unlawful means, penalty: RCW 29A.84.630. initiative and referendum law, penalties for violations: RCW 29A.84.230, 29A.84.210, 29A.84.250. officer tampering with ballots, penalty: RCW 29A.84.420. printing or distributing official ballots unlawfully, penalty: RCW 29A.84.410. recall petition law, penalties for violations: RCW 29A.84.240, 29A.84.020, 29A.84.220. registration law violations, penalties: RCW 29A.84.110, 29A.84.130. repeating or voting twice, penalties concerning: RCW 29A.84.650, 29A.84.655. solicitation of bribe by voter in primary election, penalty: RCW 29A.84.640. tampering with or delaying returns, penalty: RCW 29A.84.740. unqualified voter voting, penalty: RCW 29A.84.660. violations by officers generally, penalty: RCW 29A.84.720. voting machines, penalty for tampering with: RCW 29A.84.560. voting violations, penalty: RCW 29A.84.670. Electrical construction, penalty: RCW 19.29.060. Electricians and electrical installation laws, schedule of penalties—Appeal: RCW 19.28.131. Embalmer and funeral director laws, penalty: RCW 18.39.220. Endowment care cemeteries, penalties for violations of laws: RCW 68.40.085, 68.40.090. [Title 9 RCW—page 90] Engineer and land surveyor laws, penalty: RCW 18.43.120. Escrow agent, unlicensed: RCW 18.44.171. Explosives and devices regulated, penalties: Chapter 70.74 RCW. Facsimile signatures and seals, fraud in use of: RCW 39.62.040. Family abandonment, penalty: RCW 26.20.030. Family nonsupport, penalty: RCW 26.20.035. Farm labor contractors regulations, penalty: RCW 19.30.150. Filing false or forged instruments, penalty: RCW 40.16.030. Fire department vehicles and firemen’s private cars lighting and identification, penalty: RCW 46.37.188. Fire protection districts, burning permits, penalty for violation: RCW 52.12.101, 52.12.105. Firearms in vehicle, penalty: RCW 77.15.460. Fires, actions for spreading and kindling: RCW 4.24.040, 4.24.050. Firewood on state lands, permit required to remove, penalty: RCW 79.15.440. Fireworks laws or rules, penalty: RCW 70.77.540. unlawful acts relating to: Chapter 70.77 RCW. Fish, shellfish, and wildlife false or misleading information and reports, penalty: RCW 77.15.270. trafficking in, prohibited: RCW 77.15.260. Flood control districts, interest in contracts, penalty: RCW 86.09.286. Food and beverage workers’ permit required, penalty: RCW 69.06.060. Food, drugs, and cosmetics, penalties for violations of act: RCW 69.04.040, 69.04.060, 69.04.070. Food fish and shellfish commercial licenses and permits required—Exemption: RCW 77.65.010. fish guards required on diversion devices, penalties, remedies for failure: RCW 77.57.010. fishways required over dams, etc., penalties: RCW 77.57.030. hatchery or cultural facility to be provided if fishways impractical, penalty: RCW 77.57.050. Food locker laws, penalty: RCW 19.32.180. Forcible entry and detainer, penalty: RCW 59.12.230. Forest products, false or forged brands, etc., penalties: RCW 76.36.110, 76.36.120. Forest protection: Chapter 76.04 RCW. Fraudulent conveyances: Chapter 19.40 RCW. Gambling, civil action: RCW 4.24.070. Game and game fish, unlawful acts: Chapter 77.50 RCW. Gas or stink bombs, etc., prohibited, penalty: RCW 70.74.310. Girls’ training school (see Maple Lane School) Grain and terminal warehouses, commodity inspections, laws and regulations, penalties for violations: RCW 22.09.310, 22.09.770, 22.09.890. Healing professions, rebating: RCW 19.68.010. Health care services, prohibited acts: Chapter 48.44 RCW. Highways closure violations, penalty: RCW 47.48.040. county or city road funds, illegal use of, penalty: RCW 47.08.110. limited access facilities, violations concerning, penalty: RCW 47.52.120. littering with glass, debris, etc., penalty, removal: RCW 46.61.645. permitting escape of load from vehicle: RCW 46.61.655. pipe lines, etc., across or on highways, penalties for construction without franchise or permit: RCW 47.44.060. removal of native flora, etc., penalty: RCW 47.40.080. traffic control devices violations: Chapter 47.36 RCW. traffic signs, etc., penalty for defacing, etc.: RCW 46.61.080. Highways and toll bridges, general penalty for violations of title: RCW 47.04.090. Honey penalty for violation of law regulating: RCW 69.28.180. prohibited acts: RCW 69.28.080, 69.28.090. (2006 Ed.) Miscellaneous Crimes Chapter 9.91 Horse racing, penalty for violations of laws and regulations: RCW 67.16.060. Legislative hearings, failure of subpoenaed witness to attend or testify, etc., penalties: RCW 44.16.120 through 44.16.150. Hospital licensing required, penalty: RCW 70.41.170. Hotels fraud in obtaining accommodations, etc., penalty: RCW 19.48.110. sanitation and safety requirements, penalty: RCW 70.62.280. Lie detector and similar tests as condition of employment—Penalty: RCW 49.44.120. Human remains, penalties for violations concerning: Chapter 68.50 RCW. Industrial insurance, attorney’s fees: RCW 51.52.120, 51.52.132. Initiative and referendum laws, penalties: RCW 29A.84.230, 29A.84.210, 29A.84.250. Insane (see Mentally ill) Insect pest control rules, violations: RCW 17.24.100. Insurance code agents, brokers, solicitors and adjusters, license required: RCW 48.17.060. agents, solicitors or brokers, reporting and accounting premiums, penalty: RCW 48.17.480. destruction or injury of property to defraud or prejudice the insurer, penalty: RCW 48.30.220. domestic insurers corrupt practices as to votes relative to shareholders meetings, etc., penalty: RCW 48.07.060. illegal dividends or reductions, penalty: RCW 48.08.040. impairment of capital, penalty: RCW 48.08.050. penalty for exhibiting false account, etc.: RCW 48.06.190. solicitation permit required, penalty: RCW 48.06.030. false claims or proof, etc., penalty: RCW 48.30.230. fraud and unfair practices violations: Chapter 48.30 RCW. general penalty for violations: RCW 48.01.080. health care services, penalty for violation: RCW 48.44.060. illegal dealing in premiums, penalty: RCW 48.30.190. misrepresentation in application for insurance, penalty: RCW 48.30.210. mutual insurers, impairment of surplus, penalty: RCW 48.09.340. political contributions, penalty: RCW 48.30.110. premiums to be specified in the policy, penalty for violation: RCW 48.18.180. Insurance, destruction, secretion, abandonment, etc., of property: RCW 48.30.220. Intoxicating liquor (see Liquor control) Ionizing radiation, prohibited acts: Chapter 70.98 RCW. Irrigation and rehabilitation districts, violation of rules: RCW 87.84.090. Judges or justices, addressing persons in unfit, etc., language, penalty: RCW 42.20.110. Labor and industries disobeying subpoena to appear before officer, penalty: RCW 43.22.300. hotel inspections, penalty for falsifying or hindering, etc.: RCW 70.62.280. misuse of reports of employers, penalty: RCW 43.22.290. refusal of entry to factory, etc., penalty: RCW 43.22.310. Labor disputes, obtaining out-of-state personnel for certain purposes: RCW 49.44.100. Labor laws blacklisting prohibited, penalty: RCW 49.44.010. bribery of labor representative, penalties: RCW 49.44.020, 49.44.030. female and child labor, penalties for violations: RCW 26.28.070, 49.12.175. hours of labor, penalties for violations: Chapter 49.28 RCW. minimum wage and hours act violations, penalty: RCW 49.46.100. obtaining labor by false recommendation, penalty: RCW 49.44.040. prohibited practices, penalties for violations: Chapter 49.44 RCW. prosecution, etc., for forming or joining labor union, etc., prohibited: RCW 49.36.030. seasonal labor, fraud by employees to secure advances, penalty: RCW 49.40.030. underground workers safety and health, penalties: RCW 49.24.060, 49.24.380. wage payment and collection, penalties for violations: RCW 49.48.020, 49.48.040, 49.48.060, 49.52.050, 49.52.090. Land title registration, penalties for violations: RCW 65.12.730, 65.12.740, 65.12.750, 65.12.760. (2006 Ed.) Limited access facilities (see Highways) Liquor control consumption or serving in clubs, penalty: RCW 66.24.481. penalties for violations of laws or regulations: Chapter 66.44 RCW. purchase, attempt, by minor: RCW 66.44.280 through 66.44.292. records of sales confidential, penalty: RCW 66.16.090. transfer of identification card prohibited, penalties: RCW 66.20.200. Littering, depositing glass, debris, etc., on highways, beaches, waters, penalty, removal: RCW 46.61.645. Livestock—Removal from common range, duty, penalty: RCW 16.24.230. Logs, transporting without county log tolerance permit: RCW 46.44.047. Maple Lane School, unauthorized entrance to grounds or enticing girls away, etc., penalty: RCW 72.20.065. Marine biological preserve, penalty for violation: RCW 28B.20.320. Marriage certificates, penalty for failure to record: RCW 26.04.110. license requirements, penalty for violations: RCW 26.04.200, 26.04.210, 26.04.240. Mausoleums and columbariums, penalty for violation of laws concerning construction of: RCW 68.28.060. Mentally ill, private establishments for, licensing violations: RCW 71.12.460. Military affairs offenses defined, penalties: Chapter 38.32 RCW, RCW 38.40.040, 38.40.050, 38.40.110, 38.40.120. Milk and milk products used for animal food, prohibited acts: Chapter 15.37 RCW. Mining leases and contracts, disclosure of information obtained through state’s right of entry: RCW 79.14.440. Minors child labor prohibited, penalty: RCW 26.28.070 (see also Labor laws). enforcement of support for: RCW 74.20.060. firearms: RCW 9.41.040, 9.41.042, 9.41.240. juvenile offenders: Chapter 13.04 RCW. procuring or possessing tobacco, penalties: RCW 26.28.080, 70.155.080. Motor vehicles: RCW 46.63.020. Municipal corporations approving or paying false claim against: RCW 42.24.110. making false claim against: RCW 42.24.100. Municipal officers, violation of code of ethics, penalty: RCW 42.23.050. Mutual savings banks concealing or destroying evidence, penalty: RCW 32.04.110. falsification of books, etc., penalty: RCW 32.04.100. general penalty when penalty not specifically provided: RCW 32.04.130. specific penalties of RCW 9.24.030, 9.24.040, and 9.24.050 invoked: RCW 32.04.120. transfer of property or assets due to insolvency or in contemplation of insolvency, penalty for violation of regulation: RCW 32.24.080. Narcotic drugs: Chapter 69.50 RCW. Native flora on state lands or on land adjoining highways and parks, penalty for removal, etc.: RCW 47.40.080. Navigation Pilotage Act: RCW 88.16.120, 88.16.130, 88.16.150. violations generally: Chapter 88.08 RCW. Nuisances, civil remedies: Chapter 7.48 RCW. Nursing homes, penalty for unlicensed operation: RCW 18.51.150. Occupational motor vehicle operators’ licenses, violation of restrictions: RCW 46.20.410. Offering false or forged instruments for filing: RCW 40.16.030. Oil and gas conservation, general penalty for violations of laws or regulations: RCW 78.52.550. Operation of unlicensed camper: RCW 46.16.505. Optometry laws, penalty for violations: RCW 18.53.150. [Title 9 RCW—page 91] Chapter 9.91 Title 9 RCW: Crimes and Punishments Osteopathy violations, penalties: RCW 18.57.160. Parks and recreation, violations in parks specified, penalty: RCW 79A.05.165. Party line telephones, refusal to yield in emergency, penalty: RCW 70.85.020, 70.85.030. Patent medicine peddlers licensing, penalty for unlicensed sales: RCW 18.64.047. Real estate brokers and salesperson laws, penalty: RCW 18.85.340. mortgages, removal of property from mortgaged premises, penalty: RCW 61.12.030. Rebating, etc., by practitioners of healing professions, penalty: RCW 19.68.010. Recall petition laws, penalties: RCW 29A.84.240, 29A.84.020, 29A.84.220. Pawnbrokers and second-hand dealers laws, penalties: RCW 19.60.066. Recreational devices, inspection of, penalty: RCW 79A.40.020, 79A.40.040. Peaches, standards, inspection, penalty for violations: RCW 15.17.290. Referendum and initiative laws, penalties: RCW 29A.84.230, 29A.84.210, 29A.84.250. Peddlers, penalty for selling without license: RCW 36.71.060. Persons infected with disease, exposure to others, penalty: RCW 70.54.050. Pesticides, prohibited acts: Chapter 15.58 RCW. Pharmacy licensing laws and regulations, penalties: RCW 18.64.140, 18.64.250. Physical therapy practice regulations, penalties: RCW 18.74.090. Podiatric medicine and surgery, general penalty: RCW 18.22.220. Poisons: Chapters 69.36, 69.40 RCW. Pollution of water (see Water pollution) Pool tables or billiard tables or bowling alley for hire, license required, penalty: RCW 67.14.060. Port district regulations adopted by city or county, violations, penalty: RCW 53.08.220. Port districts, violations of rules relating to toll tunnels and bridges, penalty: RCW 53.34.190. Psychologists licensing and practice law, violations, penalty: RCW 18.83.180. Public assistance falsification of application, etc., penalty: RCW 74.08.055. fraudulent practices: RCW 74.08.331. records to be confidential, etc., penalty: RCW 74.04.060. Rules of the road: Chapter 46.61 RCW. Savings and loan associations advertising as without license: RCW 33.08.010. concealing facts or destroying evidence, etc., penalty: RCW 33.36.060. false statements concerning financial standings, penalty: RCW 33.36.050. falsification of books, etc., penalty: RCW 33.36.040. making prohibited loans or investments, penalty: RCW 33.36.010. preferential transfer of property due to insolvency, penalty: RCW 33.36.030. purchase at discount prohibited to officers, etc., penalty: RCW 33.36.020. Schools compulsory attendance, penalties: RCW 28A.225.090. disclosing examination questions, penalty: RCW 28A.635.040. disturbing meetings, penalty: RCW 28A.635.030. failure to deliver books, etc., to successor, penalty: RCW 28A.635.070. grafting by school officials, penalty: RCW 28A.635.050. interfering by force or violence with any administrator, faculty member, or student unlawful—Penalty: RCW 28B.10.570, 28B.10.572. intimidating any administrator, faculty member or student by threat of force or violence unlawful—Penalty: RCW 28B.10.571 and 28B.10.572. Securities act violations, penalty: RCW 21.20.400 through 21.20.420. Sexual psychopaths: Chapter 71.06 RCW. Public libraries, penalties for injuring property or retaining books: RCW 27.12.330, 27.12.340. Sexually transmitted diseases, penalty for violation of control of: RCW 70.24.080. Public officers, misconduct, penalties: Chapter 42.20 RCW. Shellfish, sanitary control, penalties for violation of law regulating: RCW 69.30.140. Public records, etc., crimes concerning, penalties: Chapter 40.16 RCW. Public service companies auto and transport companies, penalty for violation: RCW 81.68.080. motor freight carriers, penalties for violations: RCW 81.80.230, 81.80.355. passengers for hire, failure to file bond or insurance policy, penalty: RCW 46.72.100. railroads employee requirements, penalties for violations: Chapter 81.40 RCW. equipment, penalties for violations: RCW 81.44.085, 81.44.100, 81.44.105. operating requirements, penalties for violations: RCW 81.48.010, 81.48.020, 81.48.060. property damaged, sabotaged or stolen, penalties: RCW 81.60.070, 81.60.080. rights-of-way and crossings, etc., penalties: RCW 81.53.210, 81.54.030. shippers and passengers, penalties: RCW 81.56.100, 81.56.120, 81.56.150. regulatory fees, penalty: RCW 81.24.080. securities, penalty: RCW 81.08.120. street railways, penalties for violations: RCW 81.64.130, 81.64.150. transfers of property, penalty: RCW 81.12.060. violations of laws and regulations, general penalties: RCW 81.04.380, 81.04.390. Sheriff’s office employees, civil service for, penalty: RCW 41.14.220. Public utilities pipeline transporters, safety rules, penalty: RCW 80.28.210. regulatory fees, penalty: RCW 80.24.050. transfers of property, penalty: RCW 80.12.060. violations of laws and regulations, general penalties: RCW 80.04.380, 80.04.390. Taxation cigarette tax, penalties: RCW 82.24.100, 82.24.110. general penalties: RCW 82.32.290. motor vehicle fuel tax, penalties: RCW 82.36.330, 82.36.380, 82.36.390, 82.36.400. personal property, disclosure of information unlawful: RCW 84.40.340. property taxes listing of property: RCW 84.40.120. removal of property to avoid collection of, penalties: RCW 84.56.120, 84.56.200. Public works, falsification of records, etc., penalty: RCW 39.04.110, 39.12.050. Purchasing, state, interfering with bids: RCW 43.19.1939. [Title 9 RCW—page 92] Ski lifts and other recreational conveyances: RCW 79A.40.040. Snowmobile act additional violations—Penalty: RCW 46.10.130. operating violations, general penalty: RCW 46.10.090, 46.10.190. Solid waste collection, unlawful acts: Chapter 81.77 RCW. Sporting contest, fraud, penalty: RCW 67.24.010. State bonds, fraud by engraver: RCW 39.44.101. State employees’ retirement, falsification of statements, etc., penalty: RCW 41.40.055. State lands firewood removal, permit required, penalty: RCW 79.15.440. removing flora, etc., penalty: RCW 47.40.080. trespass, etc.: Chapter 79.02 RCW. State treasurer, penalty for embezzlement: RCW 43.08.140. Steam boilers, safety requirements, penalty: RCW 70.54.080. Stink or gas bombs prohibited, penalty: RCW 70.74.310. Support of dependent children—Alternative method—1971 act: Chapter 74.20A RCW. Swimming pools, violation of health laws and regulations: RCW 70.90.205. (2006 Ed.) Miscellaneous Crimes retail sales tax, penalties: RCW 82.08.050, 82.08.120. use tax, penalty: RCW 82.12.040. Teachers abuse of a misdemeanor: RCW 28A.635.010. retirement, falsification of statements, etc., penalty: RCW 41.32.055. Telephones, party line, refusal to yield in emergency, penalty: RCW 70.85.020, 70.85.030. Television reception improvement districts, penalty for false statement as to tax exemption: RCW 36.95.190. Tires pneumatic, passenger car, selling or offering for sale if under prescribed standards, penalty: RCW 46.37.423. regrooved, selling or offering for sale if under prescribed standards, penalty: RCW 46.37.424. selling or operating vehicle with tires not meeting standards of state patrol, penalty: RCW 46.37.425. Tobacco, etc., minors procuring or possessing, penalties: RCW 26.28.080, 70.155.080. Toll facilities, operation of motor vehicle on, prohibited acts: RCW 46.61.690. Trading stamps and premiums, penalty for violations: RCW 19.84.040. Unclaimed Property Act, penalties for violations: RCW 63.29.340, 63.29.350. Unemployment compensation, penalties for violations: Chapter 50.36 RCW. Use of lists of registered voters, violations relating to, penalty: RCW 29A.08.720. Veterinarian laws and rules, penalty: RCW 18.92.230, 18.92.240. Vital statistics requirements, penalty for violation: RCW 70.58.280. Vouchers, public, false certification, penalty: RCW 42.24.100. Wages (see Labor laws) Warehouses, grain and terminal, commodity inspections, penalties for violation: RCW 22.09.310, 22.09.340, 22.09.890. Warehousing deposits, general penalties: Chapter 22.32 RCW. Washington Caustic Poison Act of 1929: Chapter 69.36 RCW. Washington Criminal Code: Title 9A RCW. Washington fresh fruit sales limitation act, violations: RCW 15.21.060. Washington state patrol retirement fund, falsification of records, etc., to defraud, penalty: RCW 43.43.320. Water pollution control, penalty for violations: RCW 90.48.140. drinking water pollution, etc.: Chapter 70.54 RCW. pollution of water supply in cities and towns, penalty: RCW 35.88.040. Weed districts, prevention of agent’s right of entry, penalty: RCW 17.04.280. Weights and measures law and rules, penalties for violations: RCW 19.94.490 through 19.94.510. Wills, failing to deliver, penalty: RCW 11.20.010. Workers’ compensation, penalties for violations of regulations concerning: Chapter 51.48 RCW, RCW 51.16.140. X-rays, use in shoe fitting prohibited: RCW 70.98.170. 9.91.010 Denial of civil rights—Terms defined. Terms used in this section shall have the following definitions: (1)(a) "Every person" shall be construed to include any owner, lessee, proprietor, manager, agent or employee whether one or more natural persons, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees, receivers, of this state and its political subdivisions, boards and commissions, engaged in or exercising control over the operation of any place of public resort, accommodation, assemblage or amusement. (b) "Deny" is hereby defined to include any act which directly or indirectly, or by subterfuge, by a person or his 9.91.010 (2006 Ed.) 9.91.010 agent or employee, results or is intended or calculated to result in whole or in part in any discrimination, distinction, restriction, or unequal treatment, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement except for conditions and limitations established by law and applicable alike to all persons, regardless of race, creed or color. (c) "Full enjoyment of" shall be construed to include the right to purchase any service, commodity or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage or amusement, without acts directly or indirectly causing persons of any particular race, creed or color, to be treated as not welcome, accepted, desired or solicited. (d) "Any place of public resort, accommodation, assemblage or amusement" is hereby defined to include, but not to be limited to, any public place, licensed or unlicensed, kept for gain, hire or reward, or where charges are made for admission, service, occupancy or use of any property or facilities, whether conducted for the entertainment, housing or lodging of transient guests, or for the benefit, use or accommodation of those seeking health, recreation or rest, or for the sale of goods and merchandise, or for the rendering of personal services, or for public conveyance or transportation on land, water or in the air, including the stations and terminals thereof and the garaging of vehicles, or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports or recreation of any kind is offered with or without charge, or where medical service or care is made available, or where the public gathers, congregates, or assembles for amusement, recreation or public purposes, or public halls, public elevators and public washrooms of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants, or any public library or any educational institution wholly or partially supported by public funds, or schools of special instruction, or nursery schools, or day care centers or children’s camps; nothing herein contained shall be construed to include, or apply to, any institute, bona fide club, or place of accommodation, which is by its nature distinctly private provided that where public use is permitted that use shall be covered by this section; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution; and the right of a natural parent in loco parentis to direct the education and upbringing of a child under his control is hereby affirmed. (2) Every person who denies to any other person because of race, creed, or color, the full enjoyment of any of the accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage, or amusement, shall be guilty of a misdemeanor. [1953 c 87 § 1; 1909 c 249 § 434; RRS § 2686.] Application forms, licenses—Mention of race or religion prohibited—Penalty: RCW 43.01.100. Interference with board against discrimination: RCW 49.60.310. [Title 9 RCW—page 93] 9.91.020 Title 9 RCW: Crimes and Punishments 9.91.020 9.91.020 Operating railroad, steamboat, vehicle, etc., while intoxicated. Every person who, being employed upon any railway, as engineer, motorman, gripman, conductor, switch tender, fireman, bridge tender, flagger, or signalman, or having charge of stations, starting, regulating or running trains upon a railway, or being employed as captain, engineer or other officer of a vessel propelled by steam, or being the driver of any animal or vehicle upon any public highway, street, or other public place, is intoxicated while engaged in the discharge of any such duties, shall be guilty of a gross misdemeanor. [2000 c 239 § 3; 1915 c 165 § 2; 1909 c 249 § 275; RRS § 2527.] Reviser’s note: Caption for 1915 c 165 § 2 reads as follows: "Section 2527 [Rem. & Bal.] Intoxication of employees." See State v. Crothers, 118 Wash. 226. Captions not law—2000 c 239: See note following RCW 49.17.350. Hunting while intoxicated—Penalty: RCW 77.15.675. Operating vehicle under influence of intoxicants or drugs: RCW 46.20.285, 46.61.502. Operating vessel in reckless manner or while under influence of alcohol or drugs: RCW 79A.60.040. Railroads, employees, equipment, operations: Chapters 81.40, 81.44, 81.48 RCW. in RCW 35.58.272, or a regional transit authority authorized by chapter 81.112 RCW for the purpose of providing public transportation services, including, but not limited to, park and ride lots, transit centers and tunnels, and bus shelters. (3) Unlawful bus conduct is a misdemeanor. [2004 c 118 § 1; 1994 c 45 § 4; 1992 c 77 § 1; 1984 c 167 § 1.] Findings—Declaration—Severability—1994 c 45: See notes following RCW 7.48.140. Drinking in public conveyance: RCW 66.44.250. 9.91.060 9.91.060 Leaving children unattended in parked automobile. Every person having the care and custody, whether temporary or permanent, of minor children under the age of twelve years, who shall leave such children in a parked automobile unattended by an adult while such person enters a tavern or other premises where vinous, spirituous, or malt liquors are dispensed for consumption on the premises shall be guilty of a gross misdemeanor. [1999 c 143 § 9; 1951 c 270 § 17.] Leaving children unattended in standing vehicle with motor running: RCW 46.61.685. 9.91.110 9.91.025 9.91.025 Unlawful bus conduct. (1) A person is guilty of unlawful bus conduct if while on or in a municipal transit vehicle as defined by RCW 46.04.355 or in or at a municipal transit station and with knowledge that the conduct is prohibited, he or she: (a) Except while in or at a municipal transit station, smokes or carries a lighted or smoldering pipe, cigar, or cigarette; (b) Discards litter other than in designated receptacles; (c) Plays any radio, recorder, or other sound-producing equipment except that nothing herein prohibits the use of the equipment when connected to earphones that limit the sound to individual listeners or the use of a communication device by an employee of the owner or operator of the municipal transit vehicle or municipal transit station; (d) Spits or expectorates; (e) Carries any flammable liquid, explosive, acid, or other article or material likely to cause harm to others except that nothing herein prevents a person from carrying a cigarette, cigar, or pipe lighter or carrying a firearm or ammunition in a way that is not otherwise prohibited by law; (f) Intentionally obstructs or impedes the flow of municipal transit vehicles or passenger traffic, hinders or prevents access to municipal transit vehicles or stations, or otherwise unlawfully interferes with the provision or use of public transportation services; (g) Intentionally disturbs others by engaging in loud, raucous, unruly, harmful, or harassing behavior; or (h) Destroys, defaces, or otherwise damages property of a municipality as defined in RCW 35.58.272 or a regional transit authority authorized by chapter 81.112 RCW employed in the provision or use of public transportation services. (2) For the purposes of this section, "municipal transit station" means all facilities, structures, lands, interest in lands, air rights over lands, and rights of way of all kinds that are owned, leased, held, or used by a municipality as defined [Title 9 RCW—page 94] 9.91.110 Metal buyers—Records of purchases—Penalty. (1) It shall be unlawful for any person, firm or corporation engaged in the business of buying or otherwise obtaining new, used or secondhand metals to purchase or otherwise obtain such metals unless a permanent record of the purchase of such metals is maintained: PROVIDED, That no such record need be kept of purchases made by or from a manufacturer, remanufacturer or distributor appointed by a manufacturer of such metals. For the purpose of this section the term "metals" shall mean copper, copper wire, copper cable, copper pipe, copper sheets and tubing, copper bus, aluminum wire, brass pipe, lead, electrolytic nickel and zinc. (2) The permanent record required by subsection (1) of this section shall contain the following: (a) a general description of all property purchased; (b) the type and quantity or weight; (c) the name, address, driver’s license number, and signature of the seller or the person making delivery; and, (d) a description of any motor vehicle and the license number thereof used in the delivery of such metals. The information so recorded shall be retained by the purchaser for a period of not less than one year. (3) Any violation of this section is punishable, upon conviction, by a fine of not more than five hundred dollars or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment. [1971 ex.s. c 302 § 18.] Severability—1971 ex.s. c 302: See note following RCW 9.41.010. 9.91.130 9.91.130 Disposal of trash in charity donation receptacle. (1) It is unlawful for any person to throw, drop, deposit, discard, or otherwise dispose of any trash, including, but not limited to items that have deteriorated to the extent that they are no longer of monetary value or of use for the purpose they were intended; garbage, including any organic matter; or litter, in or around a receptacle provided by a charitable organization, as defined in RCW 19.09.020(2), for the (2006 Ed.) Miscellaneous Crimes donation of clothing, property, or other thing of monetary value to be used for the charitable purposes of such organization. (2) Charitable organizations must post a clearly visible notice on the donation receptacles warning of the existence and content of this section and the penalties for violation of its provisions, as well as a general identification of the items which are appropriate to be deposited in the receptacle. (3) Any person violating the provisions of this section shall be guilty of a misdemeanor, and the fine for such violation shall be not less than fifty dollars for each offense. (4) Nothing in this section shall preclude a charitable organization which maintains the receptacle from pursuing a civil action and seeking whatever damages were sustained by reason of the violation of the provisions of this section. For a second or subsequent violation of this section, such person shall be liable for treble the amount of damages done by the person, but in no event less than two hundred dollars, and such damages may be recovered in a civil action before any district court judge. [1987 c 385 § 1.] Severability—1987 c 385: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1987 c 385 § 2.] 9.91.140 9.91.140 Food stamps—Unlawful sale. A person who sells food stamps obtained through the program established under RCW 74.04.500 or food stamp benefits transferred electronically, or food purchased therewith, is guilty of the following: (1) A gross misdemeanor if the value of the stamps, benefits, or food transferred exceeds one hundred dollars; or (2) A misdemeanor if the value of the stamps, benefits, or food transferred is one hundred dollars or less. [2003 c 53 § 49; 1998 c 79 § 1; 1996 c 78 § 1; 1988 c 62 § 1.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.91.142 9.91.142 Food stamps—Trafficking. A person who purchases, or who otherwise acquires and sells, or who traffics in, food stamps as defined by the federal food stamp act, as amended, 7 U.S.C. Sec. 2011 et seq., or food stamp benefits transferred electronically, is guilty of the following: (1) A class C felony punishable according to chapter 9A.20 RCW if the face value of the stamps or benefits exceeds one hundred dollars; or (2) A gross misdemeanor if the face value of the stamps or benefits is one hundred dollars or less. [2003 c 53 § 50.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.91.144 9.91.144 Food stamps—Unlawful redemption. A person who, in violation of 7 U.S.C. Sec. 2024(c), obtains and presents food stamps as defined by the federal food stamp act, as amended, 7 U.S.C. Sec. 2011 et seq., or food stamp benefits transferred electronically, for redemption or causes such stamps or benefits to be presented for redemption through the program established under RCW 74.04.500 is guilty of a class C felony punishable according to chapter 9A.20 RCW. [2003 c 53 § 51.] (2006 Ed.) 9.91.160 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.91.150 9.91.150 Tree spiking. (1) Any person who maliciously drives or places in any tree, forest material, forest debris, or other wood material any iron, steel, ceramic, or other substance sufficiently hard to injure saws or wood processing or manufacturing equipment, for the purpose of hindering logging or timber harvesting activities, is guilty of a class C felony under chapter 9A.20 RCW. (2) Any person who, with the intent to use it in a violation of subsection (1) of this section, possesses any iron, steel, ceramic, or other substance sufficiently hard to injure saws or wood processing or manufacturing equipment is guilty of a gross misdemeanor under chapter 9A.20 RCW. (3) As used in this section the terms "forest debris" and "forest material" have the same meanings as under RCW 76.04.005. [1988 c 224 § 1.] 9.91.155 9.91.155 Tree spiking—Action for damages. Any person who is damaged by any act prohibited in RCW 9.91.150 may bring a civil action to recover damages sustained, including a reasonable attorney’s fee. A party seeking civil damages under this section may recover upon proof of a violation of the provisions of RCW 9.91.150 by a preponderance of the evidence. [1988 c 224 § 2.] 9.91.160 9.91.160 Personal protection spray devices. (1) It is unlawful for a person under eighteen years old, unless the person is at least fourteen years old and has the permission of a parent or guardian to do so, to purchase or possess a personal protection spray device. A violation of this subsection is a misdemeanor. (2) No town, city, county, special purpose district, quasimunicipal corporation or other unit of government may prohibit a person eighteen years old or older, or a person fourteen years old or older who has the permission of a parent or guardian to do so, from purchasing or possessing a personal protection spray device or from using such a device in a manner consistent with the authorized use of force under RCW 9A.16.020. No town, city, county, special purpose district, quasi-municipal corporation, or other unit of government may prohibit a person eighteen years old or older from delivering a personal protection spray device to a person authorized to possess such a device. (3) For purposes of this section: (a) "Personal protection spray device" means a commercially available dispensing device designed and intended for use in self-defense and containing a nonlethal sternutator or lacrimator agent, including but not limited to: (i) Tear gas, the active ingredient of which is either chloracetophenone (CN) or O-chlorobenzylidene malonotrile (CS); or (ii) Other agent commonly known as mace, pepper mace, or pepper gas. (b) "Delivering" means actual, constructive, or attempted transferring from one person to another. (4) Nothing in this section authorizes the delivery, purchase, possession, or use of any device or chemical agent that is otherwise prohibited by state law. [1994 sp.s. c 7 § 514.] [Title 9 RCW—page 95] 9.91.170 Title 9 RCW: Crimes and Punishments Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. 9.91.170 9.91.170 Interfering with dog guide or service animal. (1)(a) Any person who has received notice that his or her behavior is interfering with the use of a dog guide or service animal who continues with reckless disregard to interfere with the use of a dog guide or service animal by obstructing, intimidating, or otherwise jeopardizing the safety of the dog guide or service animal user or his or her dog guide or service animal is guilty of a misdemeanor, except as provided in (b) of this subsection. (b) A second or subsequent violation of this subsection is a gross misdemeanor. (2)(a) Any person who, with reckless disregard, allows his or her dog to interfere with the use of a dog guide or service animal by obstructing, intimidating, or otherwise jeopardizing the safety of the dog guide or service animal user or his or her dog guide or service animal is guilty of a misdemeanor, except as provided in (b) of this subsection. (b) A second or subsequent violation of this subsection is a gross misdemeanor. (3) Any person who, with reckless disregard, injures, disables, or causes the death of a dog guide or service animal is guilty of a gross misdemeanor. (4) Any person who, with reckless disregard, allows his or her dog to injure, disable, or cause the death of a dog guide or service animal is guilty of a gross misdemeanor. (5) Any person who intentionally injures, disables, or causes the death of a dog guide or service animal is guilty of a class C felony punishable according to chapter 9A.20 RCW. (6) Any person who wrongfully obtains or exerts unauthorized control over a dog guide or service animal with the intent to deprive the dog guide or service animal user of his or her dog guide or service animal is guilty of theft in the first degree, RCW 9A.56.030. (7)(a) In any case in which the defendant is convicted of a violation of this section, he or she shall also be ordered to make full restitution for all damages, including incidental and consequential expenses incurred by the dog guide or service animal user and the dog guide or service animal which arise out of or are related to the criminal offense. (b) Restitution for a conviction under this section shall include, but is not limited to: (i) The value of the replacement of an incapacitated or deceased dog guide or service animal, the training of a replacement dog guide or service animal, or retraining of the affected dog guide or service animal and all related veterinary and care expenses; and (ii) Medical expenses of the dog guide or service animal user, training of the dog guide or service animal user, and compensation for wages or earned income lost by the dog guide or service animal user. (8) Nothing in this section shall affect any civil remedies available for violation of this section. (9) For purposes of this section, the following definitions apply: (a) "Dog guide" means a dog that is trained for the purpose of guiding blind persons or a dog trained for the purpose of assisting hearing impaired persons. [Title 9 RCW—page 96] (b) "Service animal" means an animal that is trained for the purposes of assisting or accommodating a disabled person’s sensory, mental, or physical disability. (c) "Notice" means a verbal or otherwise communicated warning prescribing the behavior of another person and a request that the person stop their behavior. (d) "Value" means the value to the dog guide or service animal user and does not refer to cost or fair market value. [2003 c 53 § 52; 2001 c 112 § 2.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Short title—2001 c 112: "This act may be known and cited as Layla’s Law." [2001 c 112 § 1.] 9.91.175 9.91.175 Interfering with search and rescue dog. (1)(a)(i) Any person who has received notice that his or her behavior is interfering with the use of an on-duty search and rescue dog who continues with reckless disregard to interfere with the use of an on-duty search and rescue dog by obstructing, intimidating, or otherwise jeopardizing the safety of the search and rescue dog user or his or her search and rescue dog is guilty of a misdemeanor punishable according to chapter 9A.20 RCW, except when (a)(ii) of this subsection applies. (ii) A second or subsequent violation of (a)(i) of this subsection is a gross misdemeanor punishable according to chapter 9A.20 RCW. (b)(i) Any person who, with reckless disregard, allows his or her dog to interfere with the use of an on-duty search and rescue dog by obstructing, intimidating, or otherwise jeopardizing the safety of the search and rescue dog user or his or her search and rescue dog is guilty of a misdemeanor punishable according to chapter 9A.20 RCW, except when (b)(ii) of this subsection applies. (ii) A second or subsequent violation of (b)(i) of this subsection is a gross misdemeanor punishable according to chapter 9A.20 RCW. (2)(a) Any person who, with reckless disregard, injures, disables, or causes the death of an on-duty search and rescue dog is guilty of a gross misdemeanor punishable according to chapter 9A.20 RCW. (b) Any person who, with reckless disregard, allows his or her dog to injure, disable, or cause the death of an on-duty search and rescue dog is guilty of a gross misdemeanor punishable according to chapter 9A.20 RCW. (3) Any person who intentionally injures, disables, or causes the death of an on-duty search and rescue dog is guilty of a class C felony. (4) Any person who wrongfully obtains or exerts unauthorized control over an on-duty search and rescue dog with the intent to deprive the dog user of his or her search and rescue dog is guilty of theft in the first degree under RCW 9A.56.030. (5)(a) In any case in which the defendant is convicted of a violation of this section, he or she shall also be ordered to make full restitution for all damages, including incidental and consequential expenses incurred by the search and rescue dog user and the dog that arise out of, or are related to, the criminal offense. (b) Restitution for a conviction under this section shall include, but is not limited to: (2006 Ed.) Punishment (i) The value of the replacement of an incapacitated or deceased dog, the training of a replacement search and rescue dog, or retraining of the affected dog and all related veterinary and care expenses; and (ii) Medical expenses of the search and rescue dog user, training of the dog user, and compensation for any wages or earned income lost by the search and rescue dog user as a result of a violation of subsection (1), (2), (3), or (4) of this section. (6) Nothing in this section affects any civil remedies available for violation of this section. (7) For purposes of this section, "search and rescue dog" means a dog that is trained for the purpose of search and rescue of persons lost or missing. [2005 c 212 § 1.] 9.92.060 9.92.120 9.92.130 9.92.140 9.92.151 9.92.200 9.92.900 Conviction of public officer forfeits trust. City jail prisoners may be compelled to work. County jail prisoners may be compelled to work. Early release for good behavior. Chapter not to affect dispositions under juvenile justice act. RCW 9.92.050 through 9.92.090 inapplicable to felonies committed on or after July 1, 1984. Court to fix maximum sentence: RCW 9.95.010. Excessive bail or fines, cruel punishment prohibited: State Constitution Art. 1 § 14. Juvenile offenders—Commitment: Chapter 13.04 RCW. 9.92.005 Penalty assessments in addition to fine or bail forfeiture—Crime victims compensation account. See RCW 7.68.035. 9.92.005 9.92.010 Punishment of felony when not fixed by statute. Every person convicted of a felony for which no maximum punishment is specially prescribed by any statutory provision in force at the time of conviction and sentence, shall be punished by confinement or fine which shall not exceed confinement in a state correctional institution for a term of ten years, or by a fine in an amount fixed by the court of not more than twenty thousand dollars, or by both such confinement and fine and the offense shall be classified as a class B felony. [1996 c 44 § 2; 1982 1st ex.s. c 47 § 5; 1909 c 249 § 13; RRS § 2265.] 9.92.010 9.91.180 Violent video or computer games. (1) A person who sells, rents, or permits to be sold or rented, any video or computer game they know to be a violent video or computer game to any minor has committed a class 1 civil infraction as provided in RCW 7.80.120. (2) "Minor" means a person under seventeen years of age. (3) "Person" means a retailer engaged in the business of selling or renting video or computer games including any individual, partnership, corporation, or association who is subject to the tax on retailers under RCW 82.04.250. (4) "Violent video or computer game" means a video or computer game that contains realistic or photographic-like depictions of aggressive conflict in which the player kills, injures, or otherwise causes physical harm to a human form in the game who is depicted, by dress or other recognizable symbols, as a public law enforcement officer. [2003 c 365 § 2.] 9.91.180 Findings—2003 c 365: "The legislature finds that there has been an increase in studies showing a correlation between exposure to violent video and computer games and various forms of hostile and antisocial behavior. The entertainment software industry’s ratings and content descriptors of video and computer games reflect that some video and computer games are suitable only for adults due to graphic depictions of sex and/or violence. Furthermore, some video and computer games focus on violence specifically against public law enforcement officers such as police and fire fighters. The legislature encourages retailers and parents to utilize the rating system. In addition, the legislature finds there is a compelling interest to curb hostile and antisocial behavior in Washington’s youth and to foster respect for public law enforcement officers." [2003 c 365 § 1.] Chapter 9.92 Chapter 9.92 RCW PUNISHMENT Sections 9.92.005 9.92.010 9.92.020 9.92.030 9.92.040 9.92.060 9.92.062 9.92.064 9.92.066 9.92.070 9.92.080 9.92.090 9.92.100 9.92.110 (2006 Ed.) Penalty assessments in addition to fine or bail forfeiture— Crime victims compensation account. Punishment of felony when not fixed by statute. Punishment of gross misdemeanor when not fixed by statute. Punishment of misdemeanor when not fixed by statute. Punishment for contempt. Suspending sentences. Suspended sentence—Termination date—Application. Suspended sentence—Termination date, establishment— Modification of terms. Termination of suspended sentence—Restoration of civil rights—Vacation of conviction. Payment of fine and costs in installments. Sentence on two or more convictions or counts. Habitual criminals. Prevention of procreation. Convicts protected—Forfeitures abolished. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. Classification of crimes: Chapter 9A.20 RCW. 9.92.020 Punishment of gross misdemeanor when not fixed by statute. Every person convicted of a gross misdemeanor for which no punishment is prescribed in any statute in force at the time of conviction and sentence, shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than one year, or by a fine in an amount fixed by the court of not more than five thousand dollars, or by both such imprisonment and fine. [1982 1st ex.s. c 47 § 6; 1909 c 249 § 15; RRS § 2267.] 9.92.020 Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9.92.030 Punishment of misdemeanor when not fixed by statute. Every person convicted of a misdemeanor for which no punishment is prescribed by any statute in force at the time of conviction and sentence, shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than ninety days, or by a fine in an amount fixed by the court of not more than one thousand dollars or both such imprisonment and fine. [1982 1st ex.s. c 47 § 7; 1909 c 249 § 14; Code 1881 § 785; RRS § 2266.] 9.92.030 Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9.92.040 Punishment for contempt. A criminal act which at the same time constitutes contempt of court, and has been punished as such, may also be punished as a crime, but in such case the punishment for contempt may be considered in mitigation. [1909 c 249 § 21; RRS § 2273.] 9.92.040 Contempt: Chapter 7.21 RCW. 9.92.060 Suspending sentences. (1) Whenever any person is convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, rape of a 9.92.060 [Title 9 RCW—page 97] 9.92.062 Title 9 RCW: Crimes and Punishments child, or rape, the superior court may, in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by the superior court, and that the sentenced person be placed under the charge of a community corrections officer employed by the department of corrections, or if the county elects to assume responsibility for the supervision of all superior court misdemeanant probationers a probation officer employed or contracted for by the county, upon such terms as the superior court may determine. (2) As a condition to suspension of sentence, the superior court shall require the payment of the penalty assessment required by RCW 7.68.035. In addition, the superior court may require the convicted person to make such monetary payments, on such terms as the superior court deems appropriate under the circumstances, as are necessary: (a) To comply with any order of the court for the payment of family support; (b) to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question or when the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement; (c) to pay any fine imposed and not suspended and the court or other costs incurred in the prosecution of the case, including reimbursement of the state for costs of extradition if return to this state by extradition was required; and (d) to contribute to a county or interlocal drug fund. (3) As a condition of the suspended sentence, the superior court may order the probationer to report to the secretary of corrections or such officer as the secretary may designate and as a condition of the probation to follow the instructions of the secretary. If the county legislative authority has elected to assume responsibility for the supervision of superior court misdemeanant probationers within its jurisdiction, the superior court misdemeanant probationer shall report to a probation officer employed or contracted for by the county. In cases where a superior court misdemeanant probationer is sentenced in one county, but resides within another county, there must be provisions for the probationer to report to the agency having supervision responsibility for the probationer’s county of residence. (4) If restitution to the victim has been ordered under subsection (2)(b) of this section and the superior court has ordered supervision, the officer supervising the probationer shall make a reasonable effort to ascertain whether restitution has been made as ordered. If the superior court has ordered supervision and restitution has not been made, the officer shall inform the prosecutor of that violation of the terms of the suspended sentence not less than three months prior to the termination of the suspended sentence. (5) The provisions of RCW 9.94A.501 apply to sentences imposed under this section. [2005 c 362 § 2; 1996 c 298 § 5; 1995 1st sp.s. c 19 § 30; 1987 c 202 § 142; 1982 1st ex.s. c 47 § 8; 1982 1st ex.s. c 8 § 4; 1979 c 29 § 1; 1967 c 200 § 7; 1957 c 227 § 1; 1949 c 76 § 1; 1921 c 69 § 1; 1909 c 249 § 28; 1905 c 24 § 1; Rem. Supp. 1949 § 2280.] Effective date—2005 c 362: See note following RCW 9.94A.501. Findings—Purpose—Short title—Severability—Effective date— 1995 1st sp.s. c 19: See notes following RCW 72.09.450. [Title 9 RCW—page 98] Intent—1987 c 202: See note following RCW 2.04.190. Applicability—1984 c 209: See RCW 9.92.900. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. Intent—Reports—1982 1st ex.s. c 8: See note following RCW 7.68.035. Severability—1967 c 200: See note following RCW 9.45.122. Probation: RCW 9.95.200 through 9.95.250. Probation and parole services, provision by counties: RCW 36.01.070. Restitution alternative to fine: RCW 9A.20.030. condition of probation: RCW 9.95.210. disposition when victim not found or dead: RCW 7.68.290. 9.92.062 Suspended sentence—Termination date— Application. In all cases prior to August 9, 1971 wherein the execution of sentence has been suspended pursuant to RCW 9.92.060, such person may apply to the court by which he was convicted and sentenced to establish a definite termination date for the suspended sentence. The court shall set a date no later than the time the original sentence would have elapsed and may provide for an earlier termination of the suspended sentence. [1971 ex.s. c 188 § 1.] 9.92.062 Applicability—1984 c 209: See RCW 9.92.900. 9.92.064 Suspended sentence—Termination date, establishment—Modification of terms. In the case of a person granted a suspended sentence under the provisions of RCW 9.92.060, the court shall establish a definite termination date for the suspended sentence. The court shall set a date no later than the time the original sentence would have elapsed and may provide for an earlier termination of the suspended sentence. Prior to the entry of an order formally terminating a suspended sentence the court may modify the terms and conditions of the suspension or extend the period of the suspended sentence. [1982 1st ex.s. c 47 § 9; 1971 ex.s. c 188 § 2.] 9.92.064 Applicability—1984 c 209: See RCW 9.92.900. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9.92.066 Termination of suspended sentence—Restoration of civil rights—Vacation of conviction. (1) Upon termination of any suspended sentence under RCW 9.92.060 or 9.95.210, such person may apply to the court for restoration of his or her civil rights. Thereupon the court may in its discretion enter an order directing that such defendant shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he or she has been convicted. (2)(a) Upon termination of a suspended sentence under RCW 9.92.060 or 9.95.210, the person may apply to the sentencing court for a vacation of the person’s record of conviction under RCW 9.94A.640. The court may, in its discretion, clear the record of conviction if it finds the person has met the equivalent of the tests in RCW 9.94A.640(2) as those tests would be applied to a person convicted of a crime committed before July 1, 1984. (b) The clerk of the court in which the vacation order is entered shall immediately transmit the order vacating the conviction to the Washington state patrol identification section and to the local police agency, if any, which holds criminal history information for the person who is the subject of 9.92.066 (2006 Ed.) Punishment the conviction. The Washington state patrol and any such local police agency shall immediately update their records to reflect the vacation of the conviction, and shall transmit the order vacating the conviction to the federal bureau of investigation. A conviction that has been vacated under this section may not be disseminated or disclosed by the state patrol or local law enforcement agency to any person, except other criminal justice enforcement agencies. [2003 c 66 § 2; 1971 ex.s. c 188 § 3.] Applicability—1984 c 209: See RCW 9.92.900. 9.92.070 9.92.070 Payment of fine and costs in installments. Hereafter whenever any judge of any superior court or a district or municipal judge shall sentence any person to pay any fine and costs, the judge may, in the judge’s discretion, provide that such fine and costs may be paid in certain designated installments, or within certain designated period or periods; and if such fine and costs shall be paid by the defendant in accordance with such order no commitment or imprisonment of the defendant shall be made for failure to pay such fine or costs. PROVIDED, that the provisions of this section shall not apply to any sentence given for the violation of any of the liquor laws of this state. [1987 c 3 § 4; 1923 c 15 § 1; RRS § 2280-1.] Severability—1987 c 3: See note following RCW 3.46.020. Applicability—1984 c 209: See RCW 9.92.900. Collection and disposition of fines and costs: Chapter 10.82 RCW. Payment of fine and costs in installments: RCW 10.01.170. 9.92.080 9.92.080 Sentence on two or more convictions or counts. (1) Whenever a person while under sentence of felony shall commit another felony and be sentenced to another term of imprisonment, such latter term shall not begin until the expiration of all prior terms: PROVIDED, That any person granted probation pursuant to the provisions of RCW 9.95.210 and/or 9.92.060 shall not be considered to be under sentence of a felony for the purposes of this subsection. (2) Whenever a person is convicted of two or more offenses which arise from a single act or omission, the sentences imposed therefor shall run concurrently, unless the court, in pronouncing sentence, expressly orders the service of said sentences to be consecutive. (3) In all other cases, whenever a person is convicted of two or more offenses arising from separate and distinct acts or omissions, and not otherwise governed by the provisions of subsections (1) and (2) of this section, the sentences imposed therefor shall run consecutively, unless the court, in pronouncing the second or other subsequent sentences, expressly orders concurrent service thereof. (4) The sentencing court may require the secretary of corrections, or his designee, to provide information to the court concerning the existence of all prior judgments against the defendant, the terms of imprisonment imposed, and the status thereof. [1981 c 136 § 35; 1971 ex.s. c 295 § 1; 1925 ex.s. c 109 § 2; 1909 c 249 § 33; RRS § 2285.] Applicability—1984 c 209: See RCW 9.92.900. Effective date—1981 c 136: See RCW 72.09.900. 9.92.090 9.92.090 Habitual criminals. Every person convicted in this state of any crime of which fraud or intent to defraud (2006 Ed.) 9.92.130 is an element, or of petit larceny, or of any felony, who shall previously have been convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been twice convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be adjudged to be an habitual criminal and shall be punished by imprisonment in a state correctional facility for not less than ten years. Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been four times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be punished by imprisonment in a state correctional facility for life. [1992 c 7 § 18; 1909 c 249 § 34; 1903 c 86 §§ 1, 2; RRS § 2286.] Applicability—1984 c 209: See RCW 9.92.900. 9.92.100 9.92.100 Prevention of procreation. Whenever any person shall be adjudged guilty of carnal abuse of a female person under the age of ten years, or of rape, or shall be adjudged to be an habitual criminal, the court may, in addition to such other punishment or confinement as may be imposed, direct an operation to be performed upon such person, for the prevention of procreation. [1909 c 249 § 35; RRS § 2287.] 9.92.110 9.92.110 Convicts protected—Forfeitures abolished. Every person sentenced to imprisonment in any penal institution shall be under the protection of the law, and any unauthorized injury to his person shall be punished in the same manner as if he were not so convicted or sentenced. A conviction of crime shall not work a forfeiture of any property, real or personal, or of any right or interest therein. All forfeitures in the nature of deodands, or in case of suicide or where a person flees from justice, are abolished. [1909 c 249 § 36; RRS § 2288.] Inheritance rights of slayers: Chapter 11.84 RCW. 9.92.120 9.92.120 Conviction of public officer forfeits trust. The conviction of a public officer of any felony or malfeasance in office shall entail, in addition to such other penalty as may be imposed, the forfeiture of his office, and shall disqualify him from ever afterward holding any public office in this state. [1909 c 249 § 37; RRS § 2289.] Forfeiture or impeachment, rights preserved: RCW 42.04.040. Misconduct of public officers: Chapter 42.20 RCW. Vacancy of public office, causes: RCW 42.12.010. 9.92.130 9.92.130 City jail prisoners may be compelled to work. When a person has been sentenced by any municipal or district judge in this state to a term of imprisonment in a city jail, whether in default of payment of a fine or otherwise, such person may be compelled on each day of such term, except Sundays, to perform eight hours’ labor upon the [Title 9 RCW—page 99] 9.92.140 Title 9 RCW: Crimes and Punishments streets, public buildings, and grounds of such city. [1987 c 202 § 144; Code 1881 § 2075; RRS § 10189.] Intent—1987 c 202: See note following RCW 2.04.190. 9.92.060, 9.92.062, 9.92.064, 9.92.066, 9.92.070, 9.92.080, and 9.92.090. [1984 c 209 § 2; 1981 c 137 § 31.] *Reviser’s note: RCW 9.92.050 was repealed by 1992 c 7 § 64. Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.92.140 9.92.140 County jail prisoners may be compelled to work. When a person has been sentenced by a district judge or a judge of the superior court to a term of imprisonment in the county jail, whether in default of payment of a fine, or costs or otherwise; such person may be compelled to work eight hours, each day of such term, in and about the county buildings, public roads, streets and grounds: PROVIDED, This section and RCW 9.92.130 shall not apply to persons committed in default of bail. [1987 c 202 § 145; Code 1881 § 2076; 1867 p 56 § 24; 1858 p 10 § 1; RRS § 10190.] Intent—1987 c 202: See note following RCW 2.04.190. Employment of prisoners: RCW 36.28.100. Working out fine: Chapter 10.82 RCW. Severability—1981 c 137: See RCW 9.94A.910. Chapter 9.94 RCW PRISONERS—CORRECTIONAL INSTITUTIONS Chapter 9.94 Sections 9.94.010 9.94.030 9.94.040 9.94.041 9.94.043 9.94.045 9.94.047 9.92.151 9.92.151 Early release for good behavior. (1) Except as provided in subsection (2) of this section, the sentence of a prisoner confined in a county jail facility for a felony, gross misdemeanor, or misdemeanor conviction may be reduced by earned release credits in accordance with procedures that shall be developed and promulgated by the correctional agency having jurisdiction. The earned early release time shall be for good behavior and good performance as determined by the correctional agency having jurisdiction. Any program established pursuant to this section shall allow an offender to earn early release credits for presentence incarceration. The correctional agency shall not credit the offender with earned early release credits in advance of the offender actually earning the credits. In the case of an offender convicted of a serious violent offense or a sex offense that is a class A felony committed on or after July 1, 1990, the aggregate earned early release time may not exceed fifteen percent of the sentence. In no other case may the aggregate earned early release time exceed one-third of the total sentence. (2) An offender serving a term of confinement imposed under RCW 9.94A.670(4)(a) is not eligible for earned release credits under this section. [2004 c 176 § 5; 1990 c 3 § 201; 1989 c 248 § 1.] Severability—Effective date—2004 c 176: See notes following RCW 9.94A.515. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Application—1989 c 248: "This act applies only to sentences imposed for crimes committed on or after July 1, 1989." [1989 c 248 § 5.] 9.92.200 9.92.200 Chapter not to affect dispositions under juvenile justice act. No provision of this chapter shall authorize a court to suspend or defer the imposition or the execution of a disposition under chapter 13.40 RCW, as now law or hereafter amended. [1981 c 299 § 21.] 9.94.049 9.94.050 9.94.070 Prison riot—Penalty. Holding person hostage—Interference with officer’s duties. Weapons—Possession, etc., by prisoner prohibited—Penalty. Narcotic drugs, controlled substances—Possession, etc., by prisoners—Penalty. Deadly weapons—Possession on premises by person not a prisoner—Penalty. Narcotic drugs or controlled substances—Possession by person not a prisoner—Penalty. Posting of perimeter of premises of institutions covered by RCW 9.94.040 through 9.94.049. "Correctional institution" and "state correctional institution" defined. Correctional employees. Persistent prison misbehavior. Convict-made goods, restriction on sale of: Chapter 72.60 RCW. Obstructing governmental operation: Chapter 9A.76 RCW. State institutions: Title 72 RCW. 9.94.010 9.94.010 Prison riot—Penalty. (1) Whenever two or more inmates of a correctional institution assemble for any purpose, and act in such a manner as to disturb the good order of the institution and contrary to the commands of the officers of the institution, by the use of force or violence, or the threat thereof, and whether acting in concert or not, they shall be guilty of prison riot. (2) Every inmate of a correctional institution who is guilty of prison riot or of voluntarily participating therein by being present at, or by instigating, aiding, or abetting the same, is guilty of a class B felony and shall be punished by imprisonment in a state correctional institution for not less than one year nor more than ten years, which shall be in addition to the sentence being served. [2003 c 53 § 53; 1995 c 314 § 1; 1955 c 241 § 1.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.94.030 9.94.030 Holding person hostage—Interference with officer’s duties. Whenever any inmate of a correctional institution shall hold, or participate in holding, any person as a hostage, by force or violence, or the threat thereof, or shall prevent, or participate in preventing an officer of such institution from carrying out his or her duties, by force or violence, or the threat thereof, he or she shall be guilty of a class B felony and upon conviction shall be punished by imprisonment in a state correctional institution for not less than one year nor more than ten years. [2003 c 53 § 54; 1995 c 314 § 3; 1992 c 7 § 20; 1957 c 112 § 1; 1955 c 241 § 3.] 9.92.900 9.92.900 RCW *9.92.050 through 9.92.090 inapplicable to felonies committed on or after July 1, 1984. The following sections of law do not apply to any felony offense committed on or after July 1, 1984: RCW *9.92.050, [Title 9 RCW—page 100] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Interfering with public officer: Chapter 9A.76 RCW. Kidnapping: Chapter 9A.40 RCW. (2006 Ed.) Prisoners—Correctional Institutions 9.94.040 9.94.040 Weapons—Possession, etc., by prisoner prohibited—Penalty. (1) Every person serving a sentence in any state correctional institution who, without legal authorization, while in the institution or while being conveyed to or from the institution, or while under the custody or supervision of institution officials, officers, or employees, or while on any premises subject to the control of the institution, knowingly possesses or carries upon his or her person or has under his or her control any weapon, firearm, or any instrument which, if used, could produce serious bodily injury to the person of another, is guilty of a class B felony. (2) Every person confined in a county or local correctional institution who, without legal authorization, while in the institution or while being conveyed to or from the institution, or while under the custody or supervision of institution officials, officers, or employees, or while on any premises subject to the control of the institution, knowingly possesses or has under his or her control any weapon, firearm, or any instrument that, if used, could produce serious bodily injury to the person of another, is guilty of a class C felony. (3) The sentence imposed under this section shall be in addition to any sentence being served. [2005 c 361 § 1; 1995 c 314 § 4; 1979 c 121 § 1; 1977 ex.s. c 43 § 1; 1975-’76 2nd ex.s. c 38 § 18. Prior: 1955 c 241 § 4.] Severability—1979 c 121: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1979 c 121 § 8.] Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. 9.94.041 9.94.041 Narcotic drugs, controlled substances— Possession, etc., by prisoners—Penalty. (1) Every person serving a sentence in any state correctional institution who, without legal authorization, while in the institution or while being conveyed to or from the institution, or while under the custody or supervision of institution officials, officers, or employees, or while on any premises subject to the control of the institution, knowingly possesses or carries upon his or her person or has under his or her control any narcotic drug or controlled substance as defined in chapter 69.50 RCW is guilty of a class C felony. (2) Every person confined in a county or local correctional institution who, without legal authorization, while in the institution or while being conveyed to or from the institution, or while under the custody or supervision of institution officials, officers, or employees, or while on any premises subject to the control of the institution, knowingly possesses or has under his or her control any narcotic drug or controlled substance, as defined in chapter 69.50 RCW, is guilty of a class C felony. (3) The sentence imposed under this section shall be in addition to any sentence being served. [1995 c 314 § 5; 1979 c 121 § 2.] 9.94.043 9.94.043 Deadly weapons—Possession on premises by person not a prisoner—Penalty. A person, other than a person serving a sentence in a penal institution of this state, is guilty of possession of contraband on the premises of a state correctional institution in the first degree if, without authorization to do so, the person knowingly possesses or has under (2006 Ed.) 9.94.050 his or her control a deadly weapon on or in the buildings or adjacent grounds subject to the care, control, or supervision of a state correctional institution. Deadly weapon is used as defined in RCW 9A.04.110: PROVIDED, That such correctional buildings, grounds, or property are properly posted pursuant to RCW 9.94.047, and such person has knowingly entered thereon: PROVIDED FURTHER, That the provisions of this section do not apply to a person licensed pursuant to RCW 9.41.070 who, upon entering the correctional institution premises, proceeds directly along an access road to the administration building and promptly checks his or her firearm(s) with the appropriate authorities. The person may reclaim his or her firearm(s) upon leaving, but he or she must immediately and directly depart from the premises. Possession of contraband on the premises of a state correctional institution in the first degree is a class B felony. [1979 c 121 § 3.] 9.94.045 9.94.045 Narcotic drugs or controlled substances— Possession by person not a prisoner—Penalty. A person, other than a person serving a sentence in a penal institution of this state, is guilty of possession of contraband on the premises of a state correctional institution in the second degree if, without authorization to do so, the person knowingly possesses or has under his or her control any narcotic drug or controlled substance, as defined in chapter 69.50 RCW, on or in the buildings, grounds, or any other real property subject to the care, control, or supervision of a state correctional institution. Possession of contraband on the premises of a state correctional institution in the second degree is a class C felony. [1979 c 121 § 4.] 9.94.047 9.94.047 Posting of perimeter of premises of institutions covered by RCW 9.94.040 through 9.94.049. The perimeter of the premises of correctional institutions covered by RCW 9.94.040 through 9.94.049 shall be posted at reasonable intervals to alert the public as to the existence of RCW 9.94.040 through 9.94.049. [1979 c 121 § 5.] 9.94.049 9.94.049 "Correctional institution" and "state correctional institution" defined. (1) For the purposes of this chapter, the term "correctional institution" means any place designated by law for the keeping of persons held in custody under process of law, or under lawful arrest, including state prisons, county and local jails, and other facilities operated by the department of corrections or local governmental units primarily for the purposes of punishment, correction, or rehabilitation following conviction of a criminal offense. (2) For the purposes of RCW 9.94.043 and 9.94.045, "state correctional institution" means all state correctional facilities under the supervision of the secretary of the department of corrections used solely for the purpose of confinement of convicted felons. [1995 c 314 § 6; 1992 c 7 § 21; 1985 c 350 § 3; 1979 c 121 § 6.] 9.94.050 9.94.050 Correctional employees. Any correctional employee, while acting in the supervision and transportation of prisoners, and in the apprehension of prisoners who have [Title 9 RCW—page 101] 9.94.070 Title 9 RCW: Crimes and Punishments escaped, shall have the powers and duties of a peace officer. [1992 c 7 § 22; 1955 c 241 § 5.] 9.94.070 Persistent prison misbehavior. (1) An inmate of a state correctional institution who is serving a sentence for an offense committed on or after August 1, 1995, commits the crime of persistent prison misbehavior if the inmate knowingly commits a serious infraction, that does not constitute a class A or class B felony, after losing all potential earned early release time credit. (2) "Serious infraction" means misconduct that has been designated as a serious infraction by department of corrections rules adopted under RCW 72.09.130. (3) "State correctional institution" has the same meaning as in RCW 9.94.049. (4) The crime of persistent prison misbehavior is a class C felony punishable as provided in RCW 9A.20.021. The sentence imposed for this crime must be served consecutive to any sentence being served at the time the crime is committed. [1995 c 385 § 1.] 9.94.070 Chapter 9.94A Chapter 9.94A RCW SENTENCING REFORM ACT OF 1981 Sections 9.94A.010 9.94A.015 9.94A.020 9.94A.030 9.94A.035 9.94A.190 9.94A.340 9.94A.345 9.94A.401 9.94A.411 9.94A.421 9.94A.431 9.94A.441 9.94A.450 9.94A.460 9.94A.470 9.94A.475 9.94A.480 9.94A.500 9.94A.501 9.94A.505 9.94A.510 9.94A.515 9.94A.517 9.94A.518 9.94A.520 9.94A.525 9.94A.530 9.94A.533 9.94A.535 9.94A.537 9.94A.540 9.94A.545 9.94A.550 9.94A.555 9.94A.561 9.94A.562 9.94A.565 9.94A.570 9.94A.575 9.94A.580 9.94A.585 Purpose. Finding—Intent—2000 c 28. Short title. Definitions. Classification of felonies not in Title 9A RCW. Terms of more than one year or less than one year—Where served—Reimbursement of costs. Equal application. Timing. Introduction. Evidentiary sufficiency. Plea agreements—Discussions—Contents of agreements. Plea agreements—Information to court—Approval or disapproval—Sentencing judge not bound. Plea agreements—Criminal history. Plea dispositions. Sentence recommendations. Armed offenders. Plea agreements and sentences for certain offenders—Public records. Judicial records for sentences of certain offenders. Sentencing hearing—Presentencing procedures—Disclosure of mental health services information. Risk assessment—Risk categories—Department must supervise specified offenders. Sentences. Table 1—Sentencing grid. Table 2—Crimes included within each seriousness level. Table 3—Drug offense sentencing grid. Table 4—Drug offenses seriousness level. Offense seriousness level. Offender score. Standard sentence range. Adjustments to standard sentences. Departures from the guidelines. Aggravating circumstances—Sentences above standard range. Mandatory minimum terms. Community custody. Fines. Findings and intent—1994 c 1. Offender notification and warning. Court-ordered treatment—Required notices. Governor’s powers. Persistent offenders. Power to defer or suspend sentences abolished—Exceptions. Specialized training. Which sentences appealable—Procedure—Grounds for reversal—Written opinions. [Title 9 RCW—page 102] 9.94A.589 9.94A.595 9.94A.599 9.94A.602 9.94A.603 9.94A.605 9.94A.607 9.94A.610 9.94A.612 9.94A.614 9.94A.616 9.94A.618 9.94A.620 9.94A.625 9.94A.628 9.94A.631 9.94A.634 9.94A.637 9.94A.640 9.94A.650 9.94A.660 9.94A.670 9.94A.680 9.94A.685 9.94A.690 9.94A.700 9.94A.705 9.94A.710 9.94A.712 9.94A.713 9.94A.715 9.94A.720 9.94A.722 9.94A.723 9.94A.725 9.94A.728 9.94A.7281 9.94A.7282 9.94A.731 9.94A.734 9.94A.737 9.94A.740 9.94A.745 9.94A.74501 9.94A.74502 9.94A.74503 9.94A.74504 9.94A.750 9.94A.753 9.94A.760 9.94A.7601 9.94A.7602 9.94A.7603 9.94A.7604 9.94A.7605 9.94A.7606 9.94A.7607 9.94A.7608 9.94A.7609 Consecutive or concurrent sentences. Anticipatory offenses. Presumptive ranges that exceed the statutory maximum. Deadly weapon special verdict—Definition. Felony alcohol violators—Treatment during incarceration— Conditions. Methamphetamine—Manufacturing with child on premises—Special allegation. Chemical dependency. Drug offenders—Notice of release or escape. Prisoner escape, parole, release, placement, or furlough— Notification procedures. Prisoner escape, release, or furlough—Homicide, violent, and sex offenses—Rights of victims and witnesses. Prisoner escape, release, or furlough—Requests for notification. Prisoner escape, release, or furlough—Notification as additional requirement. Prisoner escape, release, or furlough—Consequences of failure to notify. Tolling of term of confinement, supervision. Postrelease supervision—Violations—Expenses. Violation of condition or requirement of sentence—Arrest by community corrections officer—Confinement in county jail. Noncompliance with condition or requirement of sentence— Procedure—Penalty. Discharge upon completion of sentence—Certificate of discharge—Obligations, counseling after discharge. Vacation of offender’s record of conviction. First-time offender waiver. Drug offender sentencing alternative. Special sex offender sentencing alternative. Alternatives to total confinement. Alien offenders. Work ethic camp program—Eligibility—Sentencing. Community placement. Community placement for specified offenders. Community custody for sex offenders. Sentencing of nonpersistent offenders. Nonpersistent offenders—Conditions. Community custody for specified offenders—Conditions. Supervision of offenders. Court-ordered treatment—Required disclosures. Court-ordered treatment—Offender’s failure to inform. Offender work crews. Earned release time. Legislative declaration—Earned release time not an entitlement. Earned release study. Term of partial confinement, work release, home detention. Home detention—Conditions. Community custody—Violations. Community placement, custody violators—Arrest, detention, financial responsibility. Interstate compact for adult offender supervision. State council. Compact administrator. Other compacts and agreements—Withdrawal from current compact. Supervision of transferred offenders—Processing transfer applications. Restitution. Restitution—Application dates. Legal financial obligations. "Earnings," "disposable earnings," and "obligee" defined. Legal financial obligation—Notice of payroll deduction— Issuance and content. Legal financial obligations—Payroll deductions—Maximum amounts withheld, apportionment. Legal financial obligations—Notice of payroll deduction— Employer or entity rights and responsibilities. Motion to quash, modify, or terminate payroll deduction— Grounds for relief. Legal financial obligations—Order to withhold and deliver— Issuance and contents. Legal financial obligations—Order to withhold and deliver— Duties and rights of person or entity served. Legal financial obligations—Financial institutions—Service on main office or branch, effect—Collection actions against community bank account, court hearing. Legal financial obligations—Notice of debt—Service or mailing—Contents—Action on, when. (2006 Ed.) Sentencing Reform Act of 1981 9.94A.761 9.94A.7701 9.94A.7702 9.94A.7703 9.94A.7704 9.94A.7705 9.94A.7706 9.94A.7707 9.94A.7708 9.94A.7709 9.94A.771 9.94A.772 9.94A.775 9.94A.780 9.94A.800 9.94A.810 9.94A.820 9.94A.830 9.94A.835 9.94A.836 9.94A.837 9.94A.838 9.94A.840 9.94A.843 9.94A.844 9.94A.8445 9.94A.846 9.94A.850 9.94A.855 9.94A.860 9.94A.865 9.94A.870 9.94A.875 9.94A.880 9.94A.885 9.94A.890 9.94A.905 9.94A.910 9.94A.920 9.94A.921 9.94A.922 9.94A.923 9.94A.924 9.94A.925 9.94A.930 Legal financial obligations—Exemption from notice of payroll deduction or order to withhold and deliver. Legal financial obligations—Wage assignments—Petition or motion. Legal financial obligations—Wage assignments—Answer. Legal financial obligations—Wage assignments—Amounts to be withheld. Legal financial obligations—Wage assignments—Rules. Legal financial obligations—Wage assignments—Employer responsibilities. Legal financial obligations—Wage assignments—Form and rules. Legal financial obligations—Wage assignments—Service. Legal financial obligations—Wage assignments—Hearing— Scope of relief. Legal financial obligations—Wage assignments—Recovery of costs, attorneys’ fees. Legal financial obligations—Wage assignments—Sentences imposed before July 1, 1989. Legal financial obligations—Monthly payment, starting dates—Construction. Legal financial obligations—Termination of supervision— Monitoring of payments. Offender supervision assessments. Sex offender treatment in correctional facility. Transition and relapse prevention strategies. Sex offender treatment in the community. Legislative finding and intent—Commitment of felony sexual offenders after July 1, 1987. Special allegation—Sexual motivation—Procedures. Special allegation—Offense was predatory—Procedures. Special allegation—Victim was under fifteen years of age— Procedures. Special allegation—Victim had diminished capacity—Procedures. Sex offenders—Release from total confinement—Notification of prosecutor. Sex offenders—Release of information—Immunity. Sex offenders—Discretionary decisions—Immunity. Community protection zones—Preemption of local regulations—Retrospective application. Sex offenders—Release of information. Sentencing guidelines commission—Established—Powers and duties. Sentencing guidelines commission—Research staff—Data, information, assistance—Bylaws—Salary of executive officer. Sentencing guidelines commission—Membership— Appointments—Terms of office—Expenses and compensation. Standard sentence ranges—Revisions or modifications— Submission to legislature. Emergency due to inmate population exceeding correctional facility capacity. Emergency in county jails population exceeding capacity. Clemency and pardons board—Membership—Terms— Chairman—Bylaws—Travel expenses—Staff. Clemency and pardons board—Petitions for review—Hearing. Abused victim—Resentencing for murder of abuser. Effective date of RCW 9.94A.080 through 9.94A.130, 9.94A.150 through 9.94A.230, 9.94A.250, 9.94A.260— Sentences apply to felonies committed after June 30, 1984. Severability—1981 c 137. Headings and captions not law—2000 c 28. Effective date—2000 c 28. Severability—2000 c 28. Nonentitlement. Severability—2002 c 290. Application—2003 c 379 §§ 13-27. Recodification. Juvenile disposition standards commission—Functions transferred to sentencing guidelines commission: RCW 13.40.005. 9.94A.010 9.94A.010 Purpose. The purpose of this chapter is to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences, and to: (2006 Ed.) 9.94A.030 (1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender’s criminal history; (2) Promote respect for the law by providing punishment which is just; (3) Be commensurate with the punishment imposed on others committing similar offenses; (4) Protect the public; (5) Offer the offender an opportunity to improve him or herself; (6) Make frugal use of the state’s and local governments’ resources; and (7) Reduce the risk of reoffending by offenders in the community. [1999 c 196 § 1; 1981 c 137 § 1.] Severability—1999 c 196: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1999 c 196 § 20.] Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Report on Sentencing Reform Act of 1981: "The legislative budget committee shall prepare a report to be filed at the beginning of the 1987 session of the legislature. The report shall include a complete assessment of the impact of the Sentencing Reform Act of 1981. Such report shall include the effectiveness of the guidelines and impact on prison and jail populations and community correction programs." [1983 c 163 § 6.] 9.94A.015 9.94A.015 Finding—Intent—2000 c 28. The sentencing reform act has been amended many times since its enactment in 1981. While each amendment promoted a valid public purpose, some sections of the act have become unduly lengthy and repetitive. The legislature finds that it is appropriate to adopt clarifying amendments to make the act easier to use and understand. The legislature does not intend chapter 28, Laws of 2000 to make, and no provision of chapter 28, Laws of 2000 shall be construed as making, a substantive change in the sentencing reform act. The legislature does intend to clarify that persistent offenders are not eligible for extraordinary medical placement. [2000 c 28 § 1.] Technical correction bill—2000 c 28: "If any amendments to RCW 9.94A.120, or any sections enacted or affected by chapter 28, Laws of 2000, are enacted in a 2000 legislative session that do not take cognizance of chapter 28, Laws of 2000, the code reviser shall prepare a bill for introduction in the 2001 legislative session that incorporates any such amendments into the reorganization adopted by chapter 28, Laws of 2000 and corrects any incorrect cross-references." [2000 c 28 § 45.] 9.94A.020 9.94A.020 Short title. This chapter may be known and cited as the sentencing reform act of 1981. [1981 c 137 § 2.] 9.94A.030 9.94A.030 Definitions. (Effective until July 1, 2007.) Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Board" means the indeterminate sentence review board created under chapter 9.95 RCW. (2) "Collect," or any derivative thereof, "collect and remit," or "collect and deliver," when used with reference to the department, means that the department, either directly or through a collection agreement authorized by RCW 9.94A.760, is responsible for monitoring and enforcing the offender’s sentence with regard to the legal financial obliga[Title 9 RCW—page 103] 9.94A.030 Title 9 RCW: Crimes and Punishments tion, receiving payment thereof from the offender, and, consistent with current law, delivering daily the entire payment to the superior court clerk without depositing it in a departmental account. (3) "Commission" means the sentencing guidelines commission. (4) "Community corrections officer" means an employee of the department who is responsible for carrying out specific duties in supervision of sentenced offenders and monitoring of sentence conditions. (5) "Community custody" means that portion of an offender’s sentence of confinement in lieu of earned release time or imposed pursuant to RCW 9.94A.505(2)(b), 9.94A.650 through 9.94A.670, 9.94A.690, 9.94A.700 through 9.94A.715, or 9.94A.545, served in the community subject to controls placed on the offender’s movement and activities by the department. For offenders placed on community custody for crimes committed on or after July 1, 2000, the department shall assess the offender’s risk of reoffense and may establish and modify conditions of community custody, in addition to those imposed by the court, based upon the risk to community safety. (6) "Community custody range" means the minimum and maximum period of community custody included as part of a sentence under RCW 9.94A.715, as established by the commission or the legislature under RCW 9.94A.850, for crimes committed on or after July 1, 2000. (7) "Community placement" means that period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two. (8) "Community protection zone" means the area within eight hundred eighty feet of the facilities and grounds of a public or private school. (9) "Community restitution" means compulsory service, without compensation, performed for the benefit of the community by the offender. (10) "Community supervision" means a period of time during which a convicted offender is subject to crime-related prohibitions and other sentence conditions imposed by a court pursuant to this chapter or RCW 16.52.200(6) or 46.61.524. Where the court finds that any offender has a chemical dependency that has contributed to his or her offense, the conditions of supervision may, subject to available resources, include treatment. For purposes of the interstate compact for out-of-state supervision of parolees and probationers, RCW 9.95.270, community supervision is the functional equivalent of probation and should be considered the same as probation by other states. (11) "Confinement" means total or partial confinement. (12) "Conviction" means an adjudication of guilt pursuant to Titles 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty. (13) "Crime-related prohibition" means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an [Title 9 RCW—page 104] offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct. However, affirmative acts necessary to monitor compliance with the order of a court may be required by the department. (14) "Criminal history" means the list of a defendant’s prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere. (a) The history shall include, where known, for each conviction (i) whether the defendant has been placed on probation and the length and terms thereof; and (ii) whether the defendant has been incarcerated and the length of incarceration. (b) A conviction may be removed from a defendant’s criminal history only if it is vacated pursuant to RCW 9.96.060, 9.94A.640, 9.95.240, or a similar out-of-state statute, or if the conviction has been vacated pursuant to a governor’s pardon. (c) The determination of a defendant’s criminal history is distinct from the determination of an offender score. A prior conviction that was not included in an offender score calculated pursuant to a former version of the sentencing reform act remains part of the defendant’s criminal history. (15) "Day fine" means a fine imposed by the sentencing court that equals the difference between the offender’s net daily income and the reasonable obligations that the offender has for the support of the offender and any dependents. (16) "Day reporting" means a program of enhanced supervision designed to monitor the offender’s daily activities and compliance with sentence conditions, and in which the offender is required to report daily to a specific location designated by the department or the sentencing court. (17) "Department" means the department of corrections. (18) "Determinate sentence" means a sentence that states with exactitude the number of actual years, months, or days of total confinement, of partial confinement, of community supervision, the number of actual hours or days of community restitution work, or dollars or terms of a legal financial obligation. The fact that an offender through earned release can reduce the actual period of confinement shall not affect the classification of the sentence as a determinate sentence. (19) "Disposable earnings" means that part of the earnings of an offender remaining after the deduction from those earnings of any amount required by law to be withheld. For the purposes of this definition, "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonuses, or otherwise, and, notwithstanding any other provision of law making the payments exempt from garnishment, attachment, or other process to satisfy a court-ordered legal financial obligation, specifically includes periodic payments pursuant to pension or retirement programs, or insurance policies of any type, but does not include payments made under Title 50 RCW, except as provided in RCW 50.40.020 and 50.40.050, or Title 74 RCW. (20) "Drug offender sentencing alternative" is a sentencing option available to persons convicted of a felony offense other than a violent offense or a sex offense and who are eligible for the option under RCW 9.94A.660. (21) "Drug offense" means: (a) Any felony violation of chapter 69.50 RCW except possession of a controlled substance (RCW 69.50.4013) or (2006 Ed.) Sentencing Reform Act of 1981 forged prescription for a controlled substance (RCW 69.50.403); (b) Any offense defined as a felony under federal law that relates to the possession, manufacture, distribution, or transportation of a controlled substance; or (c) Any out-of-state conviction for an offense that under the laws of this state would be a felony classified as a drug offense under (a) of this subsection. (22) "Earned release" means earned release from confinement as provided in RCW 9.94A.728. (23) "Escape" means: (a) Sexually violent predator escape (RCW 9A.76.115), escape in the first degree (RCW 9A.76.110), escape in the second degree (RCW 9A.76.120), willful failure to return from furlough (*RCW 72.66.060), willful failure to return from work release (*RCW 72.65.070), or willful failure to be available for supervision by the department while in community custody (RCW 72.09.310); or (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as an escape under (a) of this subsection. (24) "Felony traffic offense" means: (a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), eluding a police officer (RCW 46.61.024), or felony hit-and-run injury-accident (RCW 46.52.020(4)); or (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a felony traffic offense under (a) of this subsection. (25) "Fine" means a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specific period of time. (26) "First-time offender" means any person who has no prior convictions for a felony and is eligible for the first-time offender waiver under RCW 9.94A.650. (27) "Home detention" means a program of partial confinement available to offenders wherein the offender is confined in a private residence subject to electronic surveillance. (28) "Legal financial obligation" means a sum of money that is ordered by a superior court of the state of Washington for legal financial obligations which may include restitution to the victim, statutorily imposed crime victims’ compensation fees as assessed pursuant to RCW 7.68.035, court costs, county or interlocal drug funds, court-appointed attorneys’ fees, and costs of defense, fines, and any other financial obligation that is assessed to the offender as a result of a felony conviction. Upon conviction for vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b), or vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial obligations may also include payment to a public agency of the expense of an emergency response to the incident resulting in the conviction, subject to RCW 38.52.430. (29) "Most serious offense" means any of the following felonies or a felony attempt to commit any of the following felonies: (a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony; (b) Assault in the second degree; (2006 Ed.) 9.94A.030 (c) Assault of a child in the second degree; (d) Child molestation in the second degree; (e) Controlled substance homicide; (f) Extortion in the first degree; (g) Incest when committed against a child under age fourteen; (h) Indecent liberties; (i) Kidnapping in the second degree; (j) Leading organized crime; (k) Manslaughter in the first degree; (l) Manslaughter in the second degree; (m) Promoting prostitution in the first degree; (n) Rape in the third degree; (o) Robbery in the second degree; (p) Sexual exploitation; (q) Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner; (r) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner; (s) Any other class B felony offense with a finding of sexual motivation; (t) Any other felony with a deadly weapon verdict under RCW 9.94A.602; (u) Any felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense under this subsection, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection; (v)(i) A prior conviction for indecent liberties under **RCW 9A.88.100(1) (a), (b), and (c), chapter 260, Laws of 1975 1st ex. sess. as it existed until July 1, 1979, RCW 9A.44.100(1) (a), (b), and (c) as it existed from July 1, 1979, until June 11, 1986, and RCW 9A.44.100(1) (a), (b), and (d) as it existed from June 11, 1986, until July 1, 1988; (ii) A prior conviction for indecent liberties under RCW 9A.44.100(1)(c) as it existed from June 11, 1986, until July 1, 1988, if: (A) The crime was committed against a child under the age of fourteen; or (B) the relationship between the victim and perpetrator is included in the definition of indecent liberties under RCW 9A.44.100(1)(c) as it existed from July 1, 1988, through July 27, 1997, or RCW 9A.44.100(1) (d) or (e) as it existed from July 25, 1993, through July 27, 1997. (30) "Nonviolent offense" means an offense which is not a violent offense. (31) "Offender" means a person who has committed a felony established by state law and is eighteen years of age or older or is less than eighteen years of age but whose case is under superior court jurisdiction under RCW 13.04.030 or has been transferred by the appropriate juvenile court to a criminal court pursuant to RCW 13.40.110. Throughout this chapter, the terms "offender" and "defendant" are used interchangeably. (32) "Partial confinement" means confinement for no more than one year in a facility or institution operated or utilized under contract by the state or any other unit of govern[Title 9 RCW—page 105] 9.94A.030 Title 9 RCW: Crimes and Punishments ment, or, if home detention or work crew has been ordered by the court, in an approved residence, for a substantial portion of each day with the balance of the day spent in the community. Partial confinement includes work release, home detention, work crew, and a combination of work crew and home detention. (33) "Persistent offender" is an offender who: (a)(i) Has been convicted in this state of any felony considered a most serious offense; and (ii) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.525; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted; or (b)(i) Has been convicted of: (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; (B) any of the following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, assault of a child in the second degree, or burglary in the first degree; or (C) an attempt to commit any crime listed in this subsection (33)(b)(i); and (ii) Has, before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection or any federal or outof-state offense or offense under prior Washington law that is comparable to the offenses listed in (b)(i) of this subsection. A conviction for rape of a child in the first degree constitutes a conviction under (b)(i) of this subsection only when the offender was sixteen years of age or older when the offender committed the offense. A conviction for rape of a child in the second degree constitutes a conviction under (b)(i) of this subsection only when the offender was eighteen years of age or older when the offender committed the offense. (34) "Postrelease supervision" is that portion of an offender’s community placement that is not community custody. (35) "Predatory" means: (a) The perpetrator of the crime was a stranger to the victim, as defined in this section; (b) the perpetrator established or promoted a relationship with the victim prior to the offense and the victimization of the victim was a significant reason the perpetrator established or promoted the relationship; or (c) the perpetrator was: (i) A teacher, counselor, volunteer, or other person in authority in any public or private school and the victim was a student of the school under his or her authority or supervision. For purposes of this subsection, "school" does not include homebased instruction as defined in RCW 28A.225.010; (ii) a coach, trainer, volunteer, or other person in authority in any recreational activity and the victim was a participant in the activity under his or her authority or supervision; or (iii) a [Title 9 RCW—page 106] pastor, elder, volunteer, or other person in authority in any church or religious organization, and the victim was a member or participant of the organization under his or her authority. (36) "Private school" means a school regulated under chapter 28A.195 or 28A.205 RCW. (37) "Public school" has the same meaning as in RCW 28A.150.010. (38) "Restitution" means a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specified period of time as payment of damages. The sum may include both public and private costs. (39) "Risk assessment" means the application of an objective instrument supported by research and adopted by the department for the purpose of assessing an offender’s risk of reoffense, taking into consideration the nature of the harm done by the offender, place and circumstances of the offender related to risk, the offender’s relationship to any victim, and any information provided to the department by victims. The results of a risk assessment shall not be based on unconfirmed or unconfirmable allegations. (40) "Serious traffic offense" means: (a) Driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502), actual physical control while under the influence of intoxicating liquor or any drug (RCW 46.61.504), reckless driving (RCW 46.61.500), or hitand-run an attended vehicle (RCW 46.52.020(5)); or (b) Any federal, out-of-state, county, or municipal conviction for an offense that under the laws of this state would be classified as a serious traffic offense under (a) of this subsection. (41) "Serious violent offense" is a subcategory of violent offense and means: (a)(i) Murder in the first degree; (ii) Homicide by abuse; (iii) Murder in the second degree; (iv) Manslaughter in the first degree; (v) Assault in the first degree; (vi) Kidnapping in the first degree; (vii) Rape in the first degree; (viii) Assault of a child in the first degree; or (ix) An attempt, criminal solicitation, or criminal conspiracy to commit one of these felonies; or (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a serious violent offense under (a) of this subsection. (42) "Sex offense" means: (a)(i) A felony that is a violation of chapter 9A.44 RCW other than ***RCW 9A.44.130(11); (ii) A violation of RCW 9A.64.020; (iii) A felony that is a violation of chapter 9.68A RCW other than RCW 9.68A.080; or (iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes; (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense in (a) of this subsection; (c) A felony with a finding of sexual motivation under RCW 9.94A.835 or 13.40.135; or (2006 Ed.) Sentencing Reform Act of 1981 (d) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a sex offense under (a) of this subsection. (43) "Sexual motivation" means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification. (44) "Standard sentence range" means the sentencing court’s discretionary range in imposing a nonappealable sentence. (45) "Statutory maximum sentence" means the maximum length of time for which an offender may be confined as punishment for a crime as prescribed in chapter 9A.20 RCW, RCW 9.92.010, the statute defining the crime, or other statute defining the maximum penalty for a crime. (46) "Stranger" means that the victim did not know the offender twenty-four hours before the offense. (47) "Total confinement" means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, or pursuant to RCW 72.64.050 and 72.64.060. (48) "Transition training" means written and verbal instructions and assistance provided by the department to the offender during the two weeks prior to the offender’s successful completion of the work ethic camp program. The transition training shall include instructions in the offender’s requirements and obligations during the offender’s period of community custody. (49) "Victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged. (50) "Violent offense" means: (a) Any of the following felonies: (i) Any felony defined under any law as a class A felony or an attempt to commit a class A felony; (ii) Criminal solicitation of or criminal conspiracy to commit a class A felony; (iii) Manslaughter in the first degree; (iv) Manslaughter in the second degree; (v) Indecent liberties if committed by forcible compulsion; (vi) Kidnapping in the second degree; (vii) Arson in the second degree; (viii) Assault in the second degree; (ix) Assault of a child in the second degree; (x) Extortion in the first degree; (xi) Robbery in the second degree; (xii) Drive-by shooting; (xiii) Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner; and (xiv) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner; (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a violent offense in (a) of this subsection; and (2006 Ed.) 9.94A.030 (c) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a violent offense under (a) or (b) of this subsection. (51) "Work crew" means a program of partial confinement consisting of civic improvement tasks for the benefit of the community that complies with RCW 9.94A.725. (52) "Work ethic camp" means an alternative incarceration program as provided in RCW 9.94A.690 designed to reduce recidivism and lower the cost of corrections by requiring offenders to complete a comprehensive array of realworld job and vocational experiences, character-building work ethics training, life management skills development, substance abuse rehabilitation, counseling, literacy training, and basic adult education. (53) "Work release" means a program of partial confinement available to offenders who are employed or engaged as a student in a regular course of study at school. [2006 c 139 § 5; (2006 c 139 § 4 expired July 1, 2006); 2006 c 124 § 1; 2006 c 122 § 7; (2006 c 122 § 6 expired July 1, 2006); 2005 c 436 § 1; 2003 c 53 § 55. Prior: 2002 c 175 § 5; 2002 c 107 § 2; prior: 2001 2nd sp.s. c 12 § 301; 2001 c 300 § 3; 2001 c 7 § 2; prior: 2001 c 287 § 4; 2001 c 95 § 1; 2000 c 28 § 2; 1999 c 352 § 8; 1999 c 197 § 1; 1999 c 196 § 2; 1998 c 290 § 3; prior: 1997 c 365 § 1; 1997 c 340 § 4; 1997 c 339 § 1; 1997 c 338 § 2; 1997 c 144 § 1; 1997 c 70 § 1; prior: 1996 c 289 § 1; 1996 c 275 § 5; prior: 1995 c 268 § 2; 1995 c 108 § 1; 1995 c 101 § 2; 1994 c 261 § 16; prior: 1994 c 1 § 3 (Initiative Measure No. 593, approved November 2, 1993); 1993 c 338 § 2; 1993 c 251 § 4; 1993 c 164 § 1; prior: 1992 c 145 § 6; 1992 c 75 § 1; prior: 1991 c 348 § 4; 1991 c 290 § 3; 1991 c 181 § 1; 1991 c 32 § 1; 1990 c 3 § 602; prior: 1989 c 394 § 1; 1989 c 252 § 2; prior: 1988 c 157 § 1; 1988 c 154 § 2; 1988 c 153 § 1; 1988 c 145 § 11; prior: 1987 c 458 § 1; 1987 c 456 § 1; 1987 c 187 § 3; 1986 c 257 § 17; 1985 c 346 § 5; 1984 c 209 § 3; 1983 c 164 § 9; 1983 c 163 § 1; 1982 c 192 § 1; 1981 c 137 § 3.] Reviser’s note: *(1) RCW 72.66.060 and 72.65.070 were repealed by 2001 c 264 § 7. Cf. 2001 c 264 § 8. **(2) RCW 9A.88.100 was recodified as RCW 9A.44.100 pursuant to 1979 ex.s. c 244 § 17. ***(3) RCW 9A.44.130 was amended by 2006 c 129 § 2, changing subsection (11) to subsection (12). (4) 2005 c 436 § 6 (an expiration date section) was repealed by 2006 c 131 § 2. (5) This section was amended by 2006 c 122 § 7, 2006 c 124 § 1, and by 2006 c 139 § 5, each without reference to the other and without cognizance of its amendment by 2005 c 436 § 1. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—2006 c 139 § 5: "Section 5 of this act takes effect July 1, 2006." [2006 c 139 § 7.] Expiration date—2006 c 139 § 4: "Section 4 of this act expires July 1, 2006." [2006 c 139 § 6.] Effective date—2006 c 124: "Except for section 2 of this act, this act takes effect July 1, 2006." [2006 c 124 § 5.] Effective date—2006 c 122 §§ 5 and 7: See note following RCW 9.94A.712. Expiration date—2006 c 122 §§ 4 and 6: See note following RCW 9.94A.712. Effective date—2006 c 122 §§ 1-4 and 6: See note following RCW 9.94A.836. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Effective date—2002 c 175: See note following RCW 7.80.130. [Title 9 RCW—page 107] 9.94A.030 Title 9 RCW: Crimes and Punishments Finding—2002 c 107: "The legislature considers the majority opinions in State v. Cruz, 139 Wn.2d 186 (1999), and State v. Smith, Cause No. 70683-2 (September 6, 2001), to be wrongly decided, since neither properly interpreted legislative intent. When the legislature enacted the sentencing reform act, chapter 9.94A RCW, and each time the legislature has amended the act, the legislature intended that an offender’s criminal history and offender score be determined using the statutory provisions that were in effect on the day the current offense was committed. Although certain prior convictions previously were not counted in the offender score or included in the criminal history pursuant to former versions of RCW 9.94A.525, or RCW 9.94A.030, those prior convictions need not be "revived" because they were never vacated. As noted in the minority opinions in Cruz and Smith, such application of the law does not involve retroactive application or violate ex postfacto prohibitions. Additionally, the Washington state supreme court has repeatedly held in the past that the provisions of the sentencing reform act act upon and punish only current conduct; the sentencing reform act does not act upon or alter the punishment for prior convictions. See In re Personal Restraint Petition of Williams, 111 Wn.2d 353, (1988). The legislature has never intended to create in an offender a vested right with respect to whether a prior conviction is excluded when calculating an offender score or with respect to how a prior conviction is counted in the offender score for a current offense." [2002 c 107 § 1.] Application—2002 c 107: "RCW 9.94A.030(13) (b) and (c) and 9.94A.525(18) apply only to current offenses committed on or after June 13, 2002. No offender who committed his or her current offense prior to June 13, 2002, may be subject to resentencing as a result of this act." [2002 c 107 § 4.] Application—2001 2nd sp.s. c 12 §§ 301-363: "(1) Sections 301 through 363 of this act shall not affect the validity of any sentence imposed under any other law for any offense committed before, on, or after September 1, 2001. (2) Sections 301 through 363 of this act shall apply to offenses committed on or after September 1, 2001." [2001 2nd sp.s. c 12 § 503.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Effective dates—2001 c 287: See note following RCW 9A.76.115. Effective date—2001 c 95: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2001." [2001 c 95 § 3.] Finding—Intent—2001 c 7: "The legislature finds that an ambiguity may exist regarding whether out-of-state convictions or convictions under prior Washington law, for sex offenses that are comparable to current Washington offenses, count when determining whether an offender is a persistent offender. This act is intended to clarify the legislature’s intent that out-ofstate convictions for comparable sex offenses and prior Washington convictions for comparable sex offenses shall be used to determine whether an offender meets the definition of a persistent offender." [2001 c 7 § 1.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Severability—1999 c 197: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1999 c 197 § 14.] Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Application—Effective date—Severability—1998 c 290: See notes following RCW 69.50.401. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—1996 c 275: See note following RCW 9.94A.505. Application—1996 c 275 §§ 1-5: See note following RCW 9.94A.505. Purpose—1995 c 268: "In order to eliminate a potential ambiguity over the scope of the term "sex offense," this act clarifies that for general purposes the definition of "sex offense" does not include any misdemeanors or gross misdemeanors. For purposes of the registration of sex offenders pursuant to RCW 9A.44.130, however, the definition of "sex offense" is expanded to [Title 9 RCW—page 108] include those gross misdemeanors that constitute attempts, conspiracies, and solicitations to commit class C felonies." [1995 c 268 § 1.] Effective date—1995 c 108: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [April 19, 1995]." [1995 c 108 § 6.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. Severability—Short title—Captions—1994 c 1: See notes following RCW 9.94A.555. Severability—Effective date—1993 c 338: See notes following RCW 72.09.400. Finding—Intent—1993 c 251: See note following RCW 38.52.430. Effective date—1991 c 348: See note following RCW 46.61.520. Effective date—Application—1990 c 3 §§ 601-605: See note following RCW 9.94A.835. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Purpose—1989 c 252: "The purpose of this act is to create a system that: (1) Assists the courts in sentencing felony offenders regarding the offenders’ legal financial obligations; (2) holds offenders accountable to victims, counties, cities, the state, municipalities, and society for the assessed costs associated with their crimes; and (3) provides remedies for an individual or other entities to recoup or at least defray a portion of the loss associated with the costs of felonious behavior." [1989 c 252 § 1.] Prospective application—1989 c 252: "Except for sections 18, 22, 23, and 24 of this act, this act applies prospectively only and not retrospectively. It applies only to offenses committed on or after the effective date of this act." [1989 c 252 § 27.] Effective dates—1989 c 252: "(1) Sections 1 through 17, 19 through 21, 25, 26, and 28 of this act shall take effect July 1, 1990 unless otherwise directed by law. (2) Sections 18, 22, 23, and 24 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1989." [1989 c 252 § 30.] Severability—1989 c 252: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 c 252 § 31.] Application—1988 c 157: "This act applies to crimes committed after July 1, 1988." [1988 c 157 § 7.] Effective date—1988 c 153: "This act shall take effect July 1, 1988." [1988 c 153 § 16.] Application of increased sanctions—1988 c 153: "Increased sanctions authorized by this act are applicable only to those persons committing offenses after July 1, 1988." [1988 c 153 § 15.] Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. Severability—1987 c 458: See note following RCW 48.21.160. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: "Sections 17 through 35 of this act shall take effect July 1, 1986." [1986 c 257 § 38.] Effective dates—1984 c 209: See note following RCW 9.92.150. Effective date—1983 c 163: See note following RCW 9.94A.505. 9.94A.030 Definitions. (Effective July 1, 2007.) Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Board" means the indeterminate sentence review board created under chapter 9.95 RCW. (2) "Collect," or any derivative thereof, "collect and remit," or "collect and deliver," when used with reference to the department, means that the department, either directly or through a collection agreement authorized by RCW 9.94A.760, is responsible for monitoring and enforcing the offender’s sentence with regard to the legal financial obliga9.94A.030 (2006 Ed.) Sentencing Reform Act of 1981 tion, receiving payment thereof from the offender, and, consistent with current law, delivering daily the entire payment to the superior court clerk without depositing it in a departmental account. (3) "Commission" means the sentencing guidelines commission. (4) "Community corrections officer" means an employee of the department who is responsible for carrying out specific duties in supervision of sentenced offenders and monitoring of sentence conditions. (5) "Community custody" means that portion of an offender’s sentence of confinement in lieu of earned release time or imposed pursuant to RCW 9.94A.505(2)(b), 9.94A.650 through 9.94A.670, 9.94A.690, 9.94A.700 through 9.94A.715, or 9.94A.545, served in the community subject to controls placed on the offender’s movement and activities by the department. For offenders placed on community custody for crimes committed on or after July 1, 2000, the department shall assess the offender’s risk of reoffense and may establish and modify conditions of community custody, in addition to those imposed by the court, based upon the risk to community safety. (6) "Community custody range" means the minimum and maximum period of community custody included as part of a sentence under RCW 9.94A.715, as established by the commission or the legislature under RCW 9.94A.850, for crimes committed on or after July 1, 2000. (7) "Community placement" means that period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two. (8) "Community protection zone" means the area within eight hundred eighty feet of the facilities and grounds of a public or private school. (9) "Community restitution" means compulsory service, without compensation, performed for the benefit of the community by the offender. (10) "Community supervision" means a period of time during which a convicted offender is subject to crime-related prohibitions and other sentence conditions imposed by a court pursuant to this chapter or RCW 16.52.200(6) or 46.61.524. Where the court finds that any offender has a chemical dependency that has contributed to his or her offense, the conditions of supervision may, subject to available resources, include treatment. For purposes of the interstate compact for out-of-state supervision of parolees and probationers, RCW 9.95.270, community supervision is the functional equivalent of probation and should be considered the same as probation by other states. (11) "Confinement" means total or partial confinement. (12) "Conviction" means an adjudication of guilt pursuant to Titles 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty. (13) "Crime-related prohibition" means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an (2006 Ed.) 9.94A.030 offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct. However, affirmative acts necessary to monitor compliance with the order of a court may be required by the department. (14) "Criminal history" means the list of a defendant’s prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere. (a) The history shall include, where known, for each conviction (i) whether the defendant has been placed on probation and the length and terms thereof; and (ii) whether the defendant has been incarcerated and the length of incarceration. (b) A conviction may be removed from a defendant’s criminal history only if it is vacated pursuant to RCW 9.96.060, 9.94A.640, 9.95.240, or a similar out-of-state statute, or if the conviction has been vacated pursuant to a governor’s pardon. (c) The determination of a defendant’s criminal history is distinct from the determination of an offender score. A prior conviction that was not included in an offender score calculated pursuant to a former version of the sentencing reform act remains part of the defendant’s criminal history. (15) "Day fine" means a fine imposed by the sentencing court that equals the difference between the offender’s net daily income and the reasonable obligations that the offender has for the support of the offender and any dependents. (16) "Day reporting" means a program of enhanced supervision designed to monitor the offender’s daily activities and compliance with sentence conditions, and in which the offender is required to report daily to a specific location designated by the department or the sentencing court. (17) "Department" means the department of corrections. (18) "Determinate sentence" means a sentence that states with exactitude the number of actual years, months, or days of total confinement, of partial confinement, of community supervision, the number of actual hours or days of community restitution work, or dollars or terms of a legal financial obligation. The fact that an offender through earned release can reduce the actual period of confinement shall not affect the classification of the sentence as a determinate sentence. (19) "Disposable earnings" means that part of the earnings of an offender remaining after the deduction from those earnings of any amount required by law to be withheld. For the purposes of this definition, "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonuses, or otherwise, and, notwithstanding any other provision of law making the payments exempt from garnishment, attachment, or other process to satisfy a court-ordered legal financial obligation, specifically includes periodic payments pursuant to pension or retirement programs, or insurance policies of any type, but does not include payments made under Title 50 RCW, except as provided in RCW 50.40.020 and 50.40.050, or Title 74 RCW. (20) "Drug offender sentencing alternative" is a sentencing option available to persons convicted of a felony offense other than a violent offense or a sex offense and who are eligible for the option under RCW 9.94A.660. (21) "Drug offense" means: (a) Any felony violation of chapter 69.50 RCW except possession of a controlled substance (RCW 69.50.4013) or [Title 9 RCW—page 109] 9.94A.030 Title 9 RCW: Crimes and Punishments forged prescription for a controlled substance (RCW 69.50.403); (b) Any offense defined as a felony under federal law that relates to the possession, manufacture, distribution, or transportation of a controlled substance; or (c) Any out-of-state conviction for an offense that under the laws of this state would be a felony classified as a drug offense under (a) of this subsection. (22) "Earned release" means earned release from confinement as provided in RCW 9.94A.728. (23) "Escape" means: (a) Sexually violent predator escape (RCW 9A.76.115), escape in the first degree (RCW 9A.76.110), escape in the second degree (RCW 9A.76.120), willful failure to return from furlough (*RCW 72.66.060), willful failure to return from work release (*RCW 72.65.070), or willful failure to be available for supervision by the department while in community custody (RCW 72.09.310); or (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as an escape under (a) of this subsection. (24) "Felony traffic offense" means: (a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), eluding a police officer (RCW 46.61.024), felony hit-and-run injury-accident (RCW 46.52.020(4)), felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)), or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)); or (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a felony traffic offense under (a) of this subsection. (25) "Fine" means a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specific period of time. (26) "First-time offender" means any person who has no prior convictions for a felony and is eligible for the first-time offender waiver under RCW 9.94A.650. (27) "Home detention" means a program of partial confinement available to offenders wherein the offender is confined in a private residence subject to electronic surveillance. (28) "Legal financial obligation" means a sum of money that is ordered by a superior court of the state of Washington for legal financial obligations which may include restitution to the victim, statutorily imposed crime victims’ compensation fees as assessed pursuant to RCW 7.68.035, court costs, county or interlocal drug funds, court-appointed attorneys’ fees, and costs of defense, fines, and any other financial obligation that is assessed to the offender as a result of a felony conviction. Upon conviction for vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b), or vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial obligations may also include payment to a public agency of the expense of an emergency response to the incident resulting in the conviction, subject to RCW 38.52.430. (29) "Most serious offense" means any of the following felonies or a felony attempt to commit any of the following felonies: [Title 9 RCW—page 110] (a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony; (b) Assault in the second degree; (c) Assault of a child in the second degree; (d) Child molestation in the second degree; (e) Controlled substance homicide; (f) Extortion in the first degree; (g) Incest when committed against a child under age fourteen; (h) Indecent liberties; (i) Kidnapping in the second degree; (j) Leading organized crime; (k) Manslaughter in the first degree; (l) Manslaughter in the second degree; (m) Promoting prostitution in the first degree; (n) Rape in the third degree; (o) Robbery in the second degree; (p) Sexual exploitation; (q) Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner; (r) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner; (s) Any other class B felony offense with a finding of sexual motivation; (t) Any other felony with a deadly weapon verdict under RCW 9.94A.602; (u) Any felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense under this subsection, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection; (v)(i) A prior conviction for indecent liberties under **RCW 9A.88.100(1) (a), (b), and (c), chapter 260, Laws of 1975 1st ex. sess. as it existed until July 1, 1979, RCW 9A.44.100(1) (a), (b), and (c) as it existed from July 1, 1979, until June 11, 1986, and RCW 9A.44.100(1) (a), (b), and (d) as it existed from June 11, 1986, until July 1, 1988; (ii) A prior conviction for indecent liberties under RCW 9A.44.100(1)(c) as it existed from June 11, 1986, until July 1, 1988, if: (A) The crime was committed against a child under the age of fourteen; or (B) the relationship between the victim and perpetrator is included in the definition of indecent liberties under RCW 9A.44.100(1)(c) as it existed from July 1, 1988, through July 27, 1997, or RCW 9A.44.100(1) (d) or (e) as it existed from July 25, 1993, through July 27, 1997. (30) "Nonviolent offense" means an offense which is not a violent offense. (31) "Offender" means a person who has committed a felony established by state law and is eighteen years of age or older or is less than eighteen years of age but whose case is under superior court jurisdiction under RCW 13.04.030 or has been transferred by the appropriate juvenile court to a criminal court pursuant to RCW 13.40.110. Throughout this (2006 Ed.) Sentencing Reform Act of 1981 chapter, the terms "offender" and "defendant" are used interchangeably. (32) "Partial confinement" means confinement for no more than one year in a facility or institution operated or utilized under contract by the state or any other unit of government, or, if home detention or work crew has been ordered by the court, in an approved residence, for a substantial portion of each day with the balance of the day spent in the community. Partial confinement includes work release, home detention, work crew, and a combination of work crew and home detention. (33) "Persistent offender" is an offender who: (a)(i) Has been convicted in this state of any felony considered a most serious offense; and (ii) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.525; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted; or (b)(i) Has been convicted of: (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; (B) any of the following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, assault of a child in the second degree, or burglary in the first degree; or (C) an attempt to commit any crime listed in this subsection (33)(b)(i); and (ii) Has, before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection or any federal or outof-state offense or offense under prior Washington law that is comparable to the offenses listed in (b)(i) of this subsection. A conviction for rape of a child in the first degree constitutes a conviction under (b)(i) of this subsection only when the offender was sixteen years of age or older when the offender committed the offense. A conviction for rape of a child in the second degree constitutes a conviction under (b)(i) of this subsection only when the offender was eighteen years of age or older when the offender committed the offense. (34) "Postrelease supervision" is that portion of an offender’s community placement that is not community custody. (35) "Predatory" means: (a) The perpetrator of the crime was a stranger to the victim, as defined in this section; (b) the perpetrator established or promoted a relationship with the victim prior to the offense and the victimization of the victim was a significant reason the perpetrator established or promoted the relationship; or (c) the perpetrator was: (i) A teacher, counselor, volunteer, or other person in authority in any public or private school and the victim was a student of the school under his or her authority or supervision. For pur(2006 Ed.) 9.94A.030 poses of this subsection, "school" does not include homebased instruction as defined in RCW 28A.225.010; (ii) a coach, trainer, volunteer, or other person in authority in any recreational activity and the victim was a participant in the activity under his or her authority or supervision; or (iii) a pastor, elder, volunteer, or other person in authority in any church or religious organization, and the victim was a member or participant of the organization under his or her authority. (36) "Private school" means a school regulated under chapter 28A.195 or 28A.205 RCW. (37) "Public school" has the same meaning as in RCW 28A.150.010. (38) "Restitution" means a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specified period of time as payment of damages. The sum may include both public and private costs. (39) "Risk assessment" means the application of an objective instrument supported by research and adopted by the department for the purpose of assessing an offender’s risk of reoffense, taking into consideration the nature of the harm done by the offender, place and circumstances of the offender related to risk, the offender’s relationship to any victim, and any information provided to the department by victims. The results of a risk assessment shall not be based on unconfirmed or unconfirmable allegations. (40) "Serious traffic offense" means: (a) Nonfelony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502), nonfelony actual physical control while under the influence of intoxicating liquor or any drug (RCW 46.61.504), reckless driving (RCW 46.61.500), or hit-and-run an attended vehicle (RCW 46.52.020(5)); or (b) Any federal, out-of-state, county, or municipal conviction for an offense that under the laws of this state would be classified as a serious traffic offense under (a) of this subsection. (41) "Serious violent offense" is a subcategory of violent offense and means: (a)(i) Murder in the first degree; (ii) Homicide by abuse; (iii) Murder in the second degree; (iv) Manslaughter in the first degree; (v) Assault in the first degree; (vi) Kidnapping in the first degree; (vii) Rape in the first degree; (viii) Assault of a child in the first degree; or (ix) An attempt, criminal solicitation, or criminal conspiracy to commit one of these felonies; or (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a serious violent offense under (a) of this subsection. (42) "Sex offense" means: (a)(i) A felony that is a violation of chapter 9A.44 RCW other than ***RCW 9A.44.130(11); (ii) A violation of RCW 9A.64.020; (iii) A felony that is a violation of chapter 9.68A RCW other than RCW 9.68A.080; or (iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes; [Title 9 RCW—page 111] 9.94A.030 Title 9 RCW: Crimes and Punishments (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense in (a) of this subsection; (c) A felony with a finding of sexual motivation under RCW 9.94A.835 or 13.40.135; or (d) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a sex offense under (a) of this subsection. (43) "Sexual motivation" means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification. (44) "Standard sentence range" means the sentencing court’s discretionary range in imposing a nonappealable sentence. (45) "Statutory maximum sentence" means the maximum length of time for which an offender may be confined as punishment for a crime as prescribed in chapter 9A.20 RCW, RCW 9.92.010, the statute defining the crime, or other statute defining the maximum penalty for a crime. (46) "Stranger" means that the victim did not know the offender twenty-four hours before the offense. (47) "Total confinement" means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, or pursuant to RCW 72.64.050 and 72.64.060. (48) "Transition training" means written and verbal instructions and assistance provided by the department to the offender during the two weeks prior to the offender’s successful completion of the work ethic camp program. The transition training shall include instructions in the offender’s requirements and obligations during the offender’s period of community custody. (49) "Victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged. (50) "Violent offense" means: (a) Any of the following felonies: (i) Any felony defined under any law as a class A felony or an attempt to commit a class A felony; (ii) Criminal solicitation of or criminal conspiracy to commit a class A felony; (iii) Manslaughter in the first degree; (iv) Manslaughter in the second degree; (v) Indecent liberties if committed by forcible compulsion; (vi) Kidnapping in the second degree; (vii) Arson in the second degree; (viii) Assault in the second degree; (ix) Assault of a child in the second degree; (x) Extortion in the first degree; (xi) Robbery in the second degree; (xii) Drive-by shooting; (xiii) Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner; and (xiv) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by [Title 9 RCW—page 112] RCW 46.61.502, or by the operation of any vehicle in a reckless manner; (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a violent offense in (a) of this subsection; and (c) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a violent offense under (a) or (b) of this subsection. (51) "Work crew" means a program of partial confinement consisting of civic improvement tasks for the benefit of the community that complies with RCW 9.94A.725. (52) "Work ethic camp" means an alternative incarceration program as provided in RCW 9.94A.690 designed to reduce recidivism and lower the cost of corrections by requiring offenders to complete a comprehensive array of realworld job and vocational experiences, character-building work ethics training, life management skills development, substance abuse rehabilitation, counseling, literacy training, and basic adult education. (53) "Work release" means a program of partial confinement available to offenders who are employed or engaged as a student in a regular course of study at school. [2006 c 139 § 5; (2006 c 139 § 4 expired July 1, 2006); 2006 c 124 § 1; 2006 c 122 § 7; (2006 c 122 § 6 expired July 1, 2006); 2006 c 73 § 5; 2005 c 436 § 1; 2003 c 53 § 55. Prior: 2002 c 175 § 5; 2002 c 107 § 2; prior: 2001 2nd sp.s. c 12 § 301; 2001 c 300 § 3; 2001 c 7 § 2; prior: 2001 c 287 § 4; 2001 c 95 § 1; 2000 c 28 § 2; 1999 c 352 § 8; 1999 c 197 § 1; 1999 c 196 § 2; 1998 c 290 § 3; prior: 1997 c 365 § 1; 1997 c 340 § 4; 1997 c 339 § 1; 1997 c 338 § 2; 1997 c 144 § 1; 1997 c 70 § 1; prior: 1996 c 289 § 1; 1996 c 275 § 5; prior: 1995 c 268 § 2; 1995 c 108 § 1; 1995 c 101 § 2; 1994 c 261 § 16; prior: 1994 c 1 § 3 (Initiative Measure No. 593, approved November 2, 1993); 1993 c 338 § 2; 1993 c 251 § 4; 1993 c 164 § 1; prior: 1992 c 145 § 6; 1992 c 75 § 1; prior: 1991 c 348 § 4; 1991 c 290 § 3; 1991 c 181 § 1; 1991 c 32 § 1; 1990 c 3 § 602; prior: 1989 c 394 § 1; 1989 c 252 § 2; prior: 1988 c 157 § 1; 1988 c 154 § 2; 1988 c 153 § 1; 1988 c 145 § 11; prior: 1987 c 458 § 1; 1987 c 456 § 1; 1987 c 187 § 3; 1986 c 257 § 17; 1985 c 346 § 5; 1984 c 209 § 3; 1983 c 164 § 9; 1983 c 163 § 1; 1982 c 192 § 1; 1981 c 137 § 3.] Reviser’s note: *(1) RCW 72.66.060 and 72.65.070 were repealed by 2001 c 264 § 7. Cf. 2001 c 264 § 8. **(2) RCW 9A.88.100 was recodified as RCW 9A.44.100 pursuant to 1979 ex.s. c 244 § 17. ***(3) RCW 9A.44.130 was amended by 2006 c 129 § 2 changing subsection (11) to subsection (12). (4) 2005 c 436 § 6 (an expiration date section) was repealed by 2006 c 131 § 2. (5) This section was amended by 2006 c 73 § 5, 2006 c 122 § 7, 2006 c 124 § 1, and by 2006 c 139 § 5, each without reference to the other and without cognizance of its amendment by 2005 c 436 § 1. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—2006 c 139 § 5: "Section 5 of this act takes effect July 1, 2006." [2006 c 139 § 7.] Expiration date—2006 c 139 § 4: "Section 4 of this act expires July 1, 2006." [2006 c 139 § 6.] Effective date—2006 c 124: "Except for section 2 of this act, this act takes effect July 1, 2006." [2006 c 124 § 5.] Effective date—2006 c 122 §§ 5 and 7: See note following RCW 9.94A.712. Expiration date—2006 c 122 §§ 4 and 6: See note following RCW 9.94A.712. (2006 Ed.) Sentencing Reform Act of 1981 Effective date—2006 c 122 §§ 1-4 and 6: See note following RCW 9.94A.836. Effective date—2006 c 73: See note following RCW 46.61.502. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Effective date—2002 c 175: See note following RCW 7.80.130. Finding—2002 c 107: "The legislature considers the majority opinions in State v. Cruz, 139 Wn.2d 186 (1999), and State v. Smith, Cause No. 70683-2 (September 6, 2001), to be wrongly decided, since neither properly interpreted legislative intent. When the legislature enacted the sentencing reform act, chapter 9.94A RCW, and each time the legislature has amended the act, the legislature intended that an offender’s criminal history and offender score be determined using the statutory provisions that were in effect on the day the current offense was committed. Although certain prior convictions previously were not counted in the offender score or included in the criminal history pursuant to former versions of RCW 9.94A.525, or RCW 9.94A.030, those prior convictions need not be "revived" because they were never vacated. As noted in the minority opinions in Cruz and Smith, such application of the law does not involve retroactive application or violate ex postfacto prohibitions. Additionally, the Washington state supreme court has repeatedly held in the past that the provisions of the sentencing reform act act upon and punish only current conduct; the sentencing reform act does not act upon or alter the punishment for prior convictions. See In re Personal Restraint Petition of Williams, 111 Wn.2d 353, (1988). The legislature has never intended to create in an offender a vested right with respect to whether a prior conviction is excluded when calculating an offender score or with respect to how a prior conviction is counted in the offender score for a current offense." [2002 c 107 § 1.] Application—2002 c 107: "RCW 9.94A.030(13) (b) and (c) and 9.94A.525(18) apply only to current offenses committed on or after June 13, 2002. No offender who committed his or her current offense prior to June 13, 2002, may be subject to resentencing as a result of this act." [2002 c 107 § 4.] Application—2001 2nd sp.s. c 12 §§ 301-363: "(1) Sections 301 through 363 of this act shall not affect the validity of any sentence imposed under any other law for any offense committed before, on, or after September 1, 2001. (2) Sections 301 through 363 of this act shall apply to offenses committed on or after September 1, 2001." [2001 2nd sp.s. c 12 § 503.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Effective dates—2001 c 287: See note following RCW 9A.76.115. Effective date—2001 c 95: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2001." [2001 c 95 § 3.] Finding—Intent—2001 c 7: "The legislature finds that an ambiguity may exist regarding whether out-of-state convictions or convictions under prior Washington law, for sex offenses that are comparable to current Washington offenses, count when determining whether an offender is a persistent offender. This act is intended to clarify the legislature’s intent that out-ofstate convictions for comparable sex offenses and prior Washington convictions for comparable sex offenses shall be used to determine whether an offender meets the definition of a persistent offender." [2001 c 7 § 1.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Severability—1999 c 197: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1999 c 197 § 14.] Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Application—Effective date—Severability—1998 c 290: See notes following RCW 69.50.401. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—1996 c 275: See note following RCW 9.94A.505. (2006 Ed.) 9.94A.035 Application—1996 c 275 §§ 1-5: See note following RCW 9.94A.505. Purpose—1995 c 268: "In order to eliminate a potential ambiguity over the scope of the term "sex offense," this act clarifies that for general purposes the definition of "sex offense" does not include any misdemeanors or gross misdemeanors. For purposes of the registration of sex offenders pursuant to RCW 9A.44.130, however, the definition of "sex offense" is expanded to include those gross misdemeanors that constitute attempts, conspiracies, and solicitations to commit class C felonies." [1995 c 268 § 1.] Effective date—1995 c 108: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [April 19, 1995]." [1995 c 108 § 6.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. Severability—Short title—Captions—1994 c 1: See notes following RCW 9.94A.555. Severability—Effective date—1993 c 338: See notes following RCW 72.09.400. Finding—Intent—1993 c 251: See note following RCW 38.52.430. Effective date—1991 c 348: See note following RCW 46.61.520. Effective date—Application—1990 c 3 §§ 601-605: See note following RCW 9.94A.835. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Purpose—1989 c 252: "The purpose of this act is to create a system that: (1) Assists the courts in sentencing felony offenders regarding the offenders’ legal financial obligations; (2) holds offenders accountable to victims, counties, cities, the state, municipalities, and society for the assessed costs associated with their crimes; and (3) provides remedies for an individual or other entities to recoup or at least defray a portion of the loss associated with the costs of felonious behavior." [1989 c 252 § 1.] Prospective application—1989 c 252: "Except for sections 18, 22, 23, and 24 of this act, this act applies prospectively only and not retrospectively. It applies only to offenses committed on or after the effective date of this act." [1989 c 252 § 27.] Effective dates—1989 c 252: "(1) Sections 1 through 17, 19 through 21, 25, 26, and 28 of this act shall take effect July 1, 1990 unless otherwise directed by law. (2) Sections 18, 22, 23, and 24 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1989." [1989 c 252 § 30.] Severability—1989 c 252: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 c 252 § 31.] Application—1988 c 157: "This act applies to crimes committed after July 1, 1988." [1988 c 157 § 7.] Effective date—1988 c 153: "This act shall take effect July 1, 1988." [1988 c 153 § 16.] Application of increased sanctions—1988 c 153: "Increased sanctions authorized by this act are applicable only to those persons committing offenses after July 1, 1988." [1988 c 153 § 15.] Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. Severability—1987 c 458: See note following RCW 48.21.160. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: "Sections 17 through 35 of this act shall take effect July 1, 1986." [1986 c 257 § 38.] Effective dates—1984 c 209: See note following RCW 9.92.150. Effective date—1983 c 163: See note following RCW 9.94A.505. 9.94A.035 9.94A.035 Classification of felonies not in Title 9A RCW. For a felony defined by a statute of this state that is not in Title 9A RCW, unless otherwise provided: (1) If the maximum sentence of imprisonment authorized by law upon a first conviction of such felony is twenty [Title 9 RCW—page 113] 9.94A.190 Title 9 RCW: Crimes and Punishments years or more, such felony shall be treated as a class A felony for purposes of this chapter; (2) If the maximum sentence of imprisonment authorized by law upon a first conviction of such felony is eight years or more, but less than twenty years, such felony shall be treated as a class B felony for purposes of this chapter; (3) If the maximum sentence of imprisonment authorized by law upon a first conviction of such felony is less than eight years, such felony shall be treated as a class C felony for purposes of this chapter. [1996 c 44 § 1.] 9.94A.190 9.94A.190 Terms of more than one year or less than one year—Where served—Reimbursement of costs. (1) A sentence that includes a term or terms of confinement totaling more than one year shall be served in a facility or institution operated, or utilized under contract, by the state. Except as provided in subsection (3) or (5) of this section, a sentence of not more than one year of confinement shall be served in a facility operated, licensed, or utilized under contract, by the county, or if home detention or work crew has been ordered by the court, in the residence of either the offender or a member of the offender’s immediate family. (2) If a county uses a state partial confinement facility for the partial confinement of a person sentenced to confinement for not more than one year, the county shall reimburse the state for the use of the facility as provided in this subsection. The office of financial management shall set the rate of reimbursement based upon the average per diem cost per offender in the facility. The office of financial management shall determine to what extent, if any, reimbursement shall be reduced or eliminated because of funds provided by the legislature to the department for the purpose of covering the cost of county use of state partial confinement facilities. The office of financial management shall reestablish reimbursement rates each even-numbered year. (3) A person who is sentenced for a felony to a term of not more than one year, and who is committed or returned to incarceration in a state facility on another felony conviction, either under the indeterminate sentencing laws, chapter 9.95 RCW, or under this chapter shall serve all terms of confinement, including a sentence of not more than one year, in a facility or institution operated, or utilized under contract, by the state, consistent with the provisions of RCW 9.94A.589. (4) Notwithstanding any other provision of this section, a sentence imposed pursuant to RCW 9.94A.660 which has a standard sentence range of over one year, regardless of length, shall be served in a facility or institution operated, or utilized under contract, by the state. (5) Sentences imposed pursuant to RCW 9.94A.712 shall be served in a facility or institution operated, or utilized under contract, by the state. [2001 2nd sp.s. c 12 § 313; 2000 c 28 § 4; 1995 c 108 § 4; 1991 c 181 § 5; 1988 c 154 § 5; 1986 c 257 § 21; 1984 c 209 § 10; 1981 c 137 § 19.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Effective date—1995 c 108: See note following RCW 9.94A.030. Severability—1986 c 257: See note following RCW 9A.56.010. [Title 9 RCW—page 114] Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.340 9.94A.340 Equal application. The sentencing guidelines and prosecuting standards apply equally to offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or the previous record of the defendant. [1983 c 115 § 5.] 9.94A.345 9.94A.345 Timing. Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed. [2000 c 26 § 2.] Intent—2000 c 26: "RCW 9.94A.345 is intended to cure any ambiguity that might have led to the Washington supreme court’s decision in State v. Cruz, Cause No. 67147-8 (October 7, 1999). A decision as to whether a prior conviction shall be included in an individual’s offender score should be determined by the law in effect on the day the current offense was committed. RCW 9.94A.345 is also intended to clarify the applicability of statutes creating new sentencing alternatives or modifying the availability of existing alternatives." [2000 c 26 § 1.] 9.94A.401 9.94A.401 Introduction. These standards are intended solely for the guidance of prosecutors in the state of Washington. They are not intended to, do not and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party in litigation with the state. [1983 c 115 § 14. Formerly RCW 9.94A.430.] 9.94A.411 9.94A.411 Evidentiary sufficiency. (Effective until July 1, 2007.) (1) Decision not to prosecute. STANDARD: A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists, in situations where prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law. GUIDELINE/COMMENTARY: Examples The following are examples of reasons not to prosecute which could satisfy the standard. (a) Contrary to Legislative Intent - It may be proper to decline to charge where the application of criminal sanctions would be clearly contrary to the intent of the legislature in enacting the particular statute. (b) Antiquated Statute - It may be proper to decline to charge where the statute in question is antiquated in that: (i) It has not been enforced for many years; and (ii) Most members of society act as if it were no longer in existence; and (iii) It serves no deterrent or protective purpose in today’s society; and (iv) The statute has not been recently reconsidered by the legislature. This reason is not to be construed as the basis for declining cases because the law in question is unpopular or because it is difficult to enforce. (c) De Minimis Violation - It may be proper to decline to charge where the violation of law is only technical or insub(2006 Ed.) Sentencing Reform Act of 1981 stantial and where no public interest or deterrent purpose would be served by prosecution. (d) Confinement on Other Charges - It may be proper to decline to charge because the accused has been sentenced on another charge to a lengthy period of confinement; and (i) Conviction of the new offense would not merit any additional direct or collateral punishment; (ii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and (iii) Conviction of the new offense would not serve any significant deterrent purpose. (e) Pending Conviction on Another Charge - It may be proper to decline to charge because the accused is facing a pending prosecution in the same or another county; and (i) Conviction of the new offense would not merit any additional direct or collateral punishment; (ii) Conviction in the pending prosecution is imminent; (iii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and (iv) Conviction of the new offense would not serve any significant deterrent purpose. (f) High Disproportionate Cost of Prosecution - It may be proper to decline to charge where the cost of locating or transporting, or the burden on, prosecution witnesses is highly disproportionate to the importance of prosecuting the offense in question. This reason should be limited to minor cases and should not be relied upon in serious cases. (g) Improper Motives of Complainant - It may be proper to decline charges because the motives of the complainant are improper and prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law. (h) Immunity - It may be proper to decline to charge where immunity is to be given to an accused in order to prosecute another where the accused’s information or testimony will reasonably lead to the conviction of others who are responsible for more serious criminal conduct or who represent a greater danger to the public interest. (i) Victim Request - It may be proper to decline to charge because the victim requests that no criminal charges be filed and the case involves the following crimes or situations: (i) Assault cases where the victim has suffered little or no injury; (ii) Crimes against property, not involving violence, where no major loss was suffered; (iii) Where doing so would not jeopardize the safety of society. Care should be taken to insure that the victim’s request is freely made and is not the product of threats or pressure by the accused. The presence of these factors may also justify the decision to dismiss a prosecution which has been commenced. Notification The prosecutor is encouraged to notify the victim, when practical, and the law enforcement personnel, of the decision not to prosecute. (2) Decision to prosecute. (a) STANDARD: Crimes against persons will be filed if sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised (2006 Ed.) 9.94A.411 under the evidence, would justify conviction by a reasonable and objective fact-finder. With regard to offenses prohibited by RCW 9A.44.040, 9A.44.050, 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, 9A.44.089, and 9A.64.020 the prosecutor should avoid prefiling agreements or diversions intended to place the accused in a program of treatment or counseling, so that treatment, if determined to be beneficial, can be provided pursuant to RCW 9.94A.670. Crimes against property/other crimes will be filed if the admissible evidence is of such convincing force as to make it probable that a reasonable and objective fact-finder would convict after hearing all the admissible evidence and the most plausible defense that could be raised. See table below for the crimes within these categories. CATEGORIZATION OF CRIMES FOR PROSECUTING STANDARDS CRIMES AGAINST PERSONS Aggravated Murder 1st Degree Murder 2nd Degree Murder 1st Degree Manslaughter 2nd Degree Manslaughter 1st Degree Kidnapping 2nd Degree Kidnapping 1st Degree Assault 2nd Degree Assault 3rd Degree Assault 1st Degree Assault of a Child 2nd Degree Assault of a Child 3rd Degree Assault of a Child 1st Degree Rape 2nd Degree Rape 3rd Degree Rape 1st Degree Rape of a Child 2nd Degree Rape of a Child 3rd Degree Rape of a Child 1st Degree Robbery 2nd Degree Robbery 1st Degree Arson 1st Degree Burglary 1st Degree Identity Theft 2nd Degree Identity Theft 1st Degree Extortion 2nd Degree Extortion Indecent Liberties Incest Vehicular Homicide Vehicular Assault 1st Degree Child Molestation 2nd Degree Child Molestation 3rd Degree Child Molestation 1st Degree Promoting Prostitution Intimidating a Juror Communication with a Minor Intimidating a Witness Intimidating a Public Servant Bomb Threat (if against person) Unlawful Imprisonment Promoting a Suicide Attempt Riot (if against person) [Title 9 RCW—page 115] 9.94A.411 Title 9 RCW: Crimes and Punishments Stalking Custodial Assault Domestic Violence Court Order Violation (RCW 10.99.040, 10.99.050, 26.09.300, 26.10.220, 26.26.138, 26.50.110, 26.52.070, or 74.34.145) Counterfeiting (if a violation of RCW 9.16.035(4)) CRIMES AGAINST PROPERTY/OTHER CRIMES 2nd Degree Arson 1st Degree Escape 2nd Degree Escape 2nd Degree Burglary 1st Degree Theft 2nd Degree Theft 1st Degree Perjury 2nd Degree Perjury 1st Degree Introducing Contraband 2nd Degree Introducing Contraband 1st Degree Possession of Stolen Property 2nd Degree Possession of Stolen Property Bribery Bribing a Witness Bribe received by a Witness Bomb Threat (if against property) 1st Degree Malicious Mischief 2nd Degree Malicious Mischief 1st Degree Reckless Burning Taking a Motor Vehicle without Authorization Forgery 2nd Degree Promoting Prostitution Tampering with a Witness Trading in Public Office Trading in Special Influence Receiving/Granting Unlawful Compensation Bigamy Eluding a Pursuing Police Vehicle Willful Failure to Return from Furlough Escape from Community Custody Riot (if against property) 1st Degree Theft of Livestock 2nd Degree Theft of Livestock ALL OTHER UNCLASSIFIED FELONIES Selection of Charges/Degree of Charge (i) The prosecutor should file charges which adequately describe the nature of defendant’s conduct. Other offenses may be charged only if they are necessary to ensure that the charges: (A) Will significantly enhance the strength of the state’s case at trial; or (B) Will result in restitution to all victims. (ii) The prosecutor should not overcharge to obtain a guilty plea. Overcharging includes: (A) Charging a higher degree; (B) Charging additional counts. This standard is intended to direct prosecutors to charge those crimes which demonstrate the nature and seriousness of a defendant’s criminal conduct, but to decline to charge crimes which are not necessary to such an indication. Crimes which do not merge as a matter of law, but which arise from the same course of conduct, do not all have to be charged. [Title 9 RCW—page 116] (b) GUIDELINES/COMMENTARY: (i) Police Investigation A prosecuting attorney is dependent upon law enforcement agencies to conduct the necessary factual investigation which must precede the decision to prosecute. The prosecuting attorney shall ensure that a thorough factual investigation has been conducted before a decision to prosecute is made. In ordinary circumstances the investigation should include the following: (A) The interviewing of all material witnesses, together with the obtaining of written statements whenever possible; (B) The completion of necessary laboratory tests; and (C) The obtaining, in accordance with constitutional requirements, of the suspect’s version of the events. If the initial investigation is incomplete, a prosecuting attorney should insist upon further investigation before a decision to prosecute is made, and specify what the investigation needs to include. (ii) Exceptions In certain situations, a prosecuting attorney may authorize filing of a criminal complaint before the investigation is complete if: (A) Probable cause exists to believe the suspect is guilty; and (B) The suspect presents a danger to the community or is likely to flee if not apprehended; or (C) The arrest of the suspect is necessary to complete the investigation of the crime. In the event that the exception to the standard is applied, the prosecuting attorney shall obtain a commitment from the law enforcement agency involved to complete the investigation in a timely manner. If the subsequent investigation does not produce sufficient evidence to meet the normal charging standard, the complaint should be dismissed. (iii) Investigation Techniques The prosecutor should be fully advised of the investigatory techniques that were used in the case investigation including: (A) Polygraph testing; (B) Hypnosis; (C) Electronic surveillance; (D) Use of informants. (iv) Pre-Filing Discussions with Defendant Discussions with the defendant or his/her representative regarding the selection or disposition of charges may occur prior to the filing of charges, and potential agreements can be reached. (v) Pre-Filing Discussions with Victim(s) Discussions with the victim(s) or victims’ representatives regarding the selection or disposition of charges may occur before the filing of charges. The discussions may be considered by the prosecutor in charging and disposition decisions, and should be considered before reaching any agreement with the defendant regarding these decisions. [2006 c 271 § 1. Prior: 2000 c 119 § 28; 2000 c 28 § 17; prior: 1999 c 322 § 6; 1999 c 196 § 11; 1996 c 93 § 2; 1995 c 288 § 3; prior: 1992 c 145 § 11; 1992 c 75 § 5; 1989 c 332 § 2; 1988 c 145 § 13; 1986 c 257 § 30; 1983 c 115 § 15. Formerly RCW 9.94A.440.] Application—2000 c 119: See note following RCW 26.50.021. (2006 Ed.) Sentencing Reform Act of 1981 Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. 9.94A.411 9.94A.411 Evidentiary sufficiency. (Effective July 1, 2007.) (1) Decision not to prosecute. STANDARD: A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists, in situations where prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law. GUIDELINE/COMMENTARY: Examples The following are examples of reasons not to prosecute which could satisfy the standard. (a) Contrary to Legislative Intent - It may be proper to decline to charge where the application of criminal sanctions would be clearly contrary to the intent of the legislature in enacting the particular statute. (b) Antiquated Statute - It may be proper to decline to charge where the statute in question is antiquated in that: (i) It has not been enforced for many years; and (ii) Most members of society act as if it were no longer in existence; and (iii) It serves no deterrent or protective purpose in today’s society; and (iv) The statute has not been recently reconsidered by the legislature. This reason is not to be construed as the basis for declining cases because the law in question is unpopular or because it is difficult to enforce. (c) De Minimis Violation - It may be proper to decline to charge where the violation of law is only technical or insubstantial and where no public interest or deterrent purpose would be served by prosecution. (d) Confinement on Other Charges - It may be proper to decline to charge because the accused has been sentenced on another charge to a lengthy period of confinement; and (i) Conviction of the new offense would not merit any additional direct or collateral punishment; (ii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and (iii) Conviction of the new offense would not serve any significant deterrent purpose. (e) Pending Conviction on Another Charge - It may be proper to decline to charge because the accused is facing a pending prosecution in the same or another county; and (i) Conviction of the new offense would not merit any additional direct or collateral punishment; (ii) Conviction in the pending prosecution is imminent; (iii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and (2006 Ed.) 9.94A.411 (iv) Conviction of the new offense would not serve any significant deterrent purpose. (f) High Disproportionate Cost of Prosecution - It may be proper to decline to charge where the cost of locating or transporting, or the burden on, prosecution witnesses is highly disproportionate to the importance of prosecuting the offense in question. This reason should be limited to minor cases and should not be relied upon in serious cases. (g) Improper Motives of Complainant - It may be proper to decline charges because the motives of the complainant are improper and prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law. (h) Immunity - It may be proper to decline to charge where immunity is to be given to an accused in order to prosecute another where the accused’s information or testimony will reasonably lead to the conviction of others who are responsible for more serious criminal conduct or who represent a greater danger to the public interest. (i) Victim Request - It may be proper to decline to charge because the victim requests that no criminal charges be filed and the case involves the following crimes or situations: (i) Assault cases where the victim has suffered little or no injury; (ii) Crimes against property, not involving violence, where no major loss was suffered; (iii) Where doing so would not jeopardize the safety of society. Care should be taken to insure that the victim’s request is freely made and is not the product of threats or pressure by the accused. The presence of these factors may also justify the decision to dismiss a prosecution which has been commenced. Notification The prosecutor is encouraged to notify the victim, when practical, and the law enforcement personnel, of the decision not to prosecute. (2) Decision to prosecute. (a) STANDARD: Crimes against persons will be filed if sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify conviction by a reasonable and objective fact-finder. With regard to offenses prohibited by RCW 9A.44.040, 9A.44.050, 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, 9A.44.089, and 9A.64.020 the prosecutor should avoid prefiling agreements or diversions intended to place the accused in a program of treatment or counseling, so that treatment, if determined to be beneficial, can be provided pursuant to RCW 9.94A.670. Crimes against property/other crimes will be filed if the admissible evidence is of such convincing force as to make it probable that a reasonable and objective fact-finder would convict after hearing all the admissible evidence and the most plausible defense that could be raised. See table below for the crimes within these categories. CATEGORIZATION OF CRIMES FOR PROSECUTING STANDARDS CRIMES AGAINST PERSONS Aggravated Murder [Title 9 RCW—page 117] 9.94A.411 Title 9 RCW: Crimes and Punishments 1st Degree Murder 2nd Degree Murder 1st Degree Manslaughter 2nd Degree Manslaughter 1st Degree Kidnapping 2nd Degree Kidnapping 1st Degree Assault 2nd Degree Assault 3rd Degree Assault 1st Degree Assault of a Child 2nd Degree Assault of a Child 3rd Degree Assault of a Child 1st Degree Rape 2nd Degree Rape 3rd Degree Rape 1st Degree Rape of a Child 2nd Degree Rape of a Child 3rd Degree Rape of a Child 1st Degree Robbery 2nd Degree Robbery 1st Degree Arson 1st Degree Burglary 1st Degree Identity Theft 2nd Degree Identity Theft 1st Degree Extortion 2nd Degree Extortion Indecent Liberties Incest Vehicular Homicide Vehicular Assault 1st Degree Child Molestation 2nd Degree Child Molestation 3rd Degree Child Molestation 1st Degree Promoting Prostitution Intimidating a Juror Communication with a Minor Intimidating a Witness Intimidating a Public Servant Bomb Threat (if against person) Unlawful Imprisonment Promoting a Suicide Attempt Riot (if against person) Stalking Custodial Assault Domestic Violence Court Order Violation (RCW 10.99.040, 10.99.050, 26.09.300, 26.10.220, 26.26.138, 26.50.110, 26.52.070, or 74.34.145) Counterfeiting (if a violation of RCW 9.16.035(4)) Felony Driving a Motor Vehicle While Under the Influence of Intoxicating Liquor or Any Drug (RCW 46.61.502(6)) Felony Physical Control of a Motor Vehicle While Under the Influence of Intoxicating Liquor or Any Drug (RCW 46.61.504(6)) CRIMES AGAINST PROPERTY/OTHER CRIMES 2nd Degree Arson 1st Degree Escape 2nd Degree Escape 2nd Degree Burglary 1st Degree Theft [Title 9 RCW—page 118] 2nd Degree Theft 1st Degree Perjury 2nd Degree Perjury 1st Degree Introducing Contraband 2nd Degree Introducing Contraband 1st Degree Possession of Stolen Property 2nd Degree Possession of Stolen Property Bribery Bribing a Witness Bribe received by a Witness Bomb Threat (if against property) 1st Degree Malicious Mischief 2nd Degree Malicious Mischief 1st Degree Reckless Burning Taking a Motor Vehicle without Authorization Forgery 2nd Degree Promoting Prostitution Tampering with a Witness Trading in Public Office Trading in Special Influence Receiving/Granting Unlawful Compensation Bigamy Eluding a Pursuing Police Vehicle Willful Failure to Return from Furlough Escape from Community Custody Riot (if against property) 1st Degree Theft of Livestock 2nd Degree Theft of Livestock ALL OTHER UNCLASSIFIED FELONIES Selection of Charges/Degree of Charge (i) The prosecutor should file charges which adequately describe the nature of defendant’s conduct. Other offenses may be charged only if they are necessary to ensure that the charges: (A) Will significantly enhance the strength of the state’s case at trial; or (B) Will result in restitution to all victims. (ii) The prosecutor should not overcharge to obtain a guilty plea. Overcharging includes: (A) Charging a higher degree; (B) Charging additional counts. This standard is intended to direct prosecutors to charge those crimes which demonstrate the nature and seriousness of a defendant’s criminal conduct, but to decline to charge crimes which are not necessary to such an indication. Crimes which do not merge as a matter of law, but which arise from the same course of conduct, do not all have to be charged. (b) GUIDELINES/COMMENTARY: (i) Police Investigation A prosecuting attorney is dependent upon law enforcement agencies to conduct the necessary factual investigation which must precede the decision to prosecute. The prosecuting attorney shall ensure that a thorough factual investigation has been conducted before a decision to prosecute is made. In ordinary circumstances the investigation should include the following: (A) The interviewing of all material witnesses, together with the obtaining of written statements whenever possible; (B) The completion of necessary laboratory tests; and (2006 Ed.) Sentencing Reform Act of 1981 (C) The obtaining, in accordance with constitutional requirements, of the suspect’s version of the events. If the initial investigation is incomplete, a prosecuting attorney should insist upon further investigation before a decision to prosecute is made, and specify what the investigation needs to include. (ii) Exceptions In certain situations, a prosecuting attorney may authorize filing of a criminal complaint before the investigation is complete if: (A) Probable cause exists to believe the suspect is guilty; and (B) The suspect presents a danger to the community or is likely to flee if not apprehended; or (C) The arrest of the suspect is necessary to complete the investigation of the crime. In the event that the exception to the standard is applied, the prosecuting attorney shall obtain a commitment from the law enforcement agency involved to complete the investigation in a timely manner. If the subsequent investigation does not produce sufficient evidence to meet the normal charging standard, the complaint should be dismissed. (iii) Investigation Techniques The prosecutor should be fully advised of the investigatory techniques that were used in the case investigation including: (A) Polygraph testing; (B) Hypnosis; (C) Electronic surveillance; (D) Use of informants. (iv) Pre-Filing Discussions with Defendant Discussions with the defendant or his/her representative regarding the selection or disposition of charges may occur prior to the filing of charges, and potential agreements can be reached. (v) Pre-Filing Discussions with Victim(s) Discussions with the victim(s) or victims’ representatives regarding the selection or disposition of charges may occur before the filing of charges. The discussions may be considered by the prosecutor in charging and disposition decisions, and should be considered before reaching any agreement with the defendant regarding these decisions. [2006 c 271 § 1; 2006 c 73 § 13. Prior: 2000 c 119 § 28; 2000 c 28 § 17; prior: 1999 c 322 § 6; 1999 c 196 § 11; 1996 c 93 § 2; 1995 c 288 § 3; prior: 1992 c 145 § 11; 1992 c 75 § 5; 1989 c 332 § 2; 1988 c 145 § 13; 1986 c 257 § 30; 1983 c 115 § 15. Formerly RCW 9.94A.440.] Reviser’s note: This section was amended by 2006 c 73 § 13 and by 2006 c 271 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—2006 c 73: See note following RCW 46.61.502. Application—2000 c 119: See note following RCW 26.50.021. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. Severability—1986 c 257: See note following RCW 9A.56.010. (2006 Ed.) 9.94A.431 Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. 9.94A.421 9.94A.421 Plea agreements—Discussions—Contents of agreements. The prosecutor and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea to a charged offense or to a lesser or related offense, the prosecutor will do any of the following: (1) Move for dismissal of other charges or counts; (2) Recommend a particular sentence within the sentence range applicable to the offense or offenses to which the offender pled guilty; (3) Recommend a particular sentence outside of the sentence range; (4) Agree to file a particular charge or count; (5) Agree not to file other charges or counts; or (6) Make any other promise to the defendant, except that in no instance may the prosecutor agree not to allege prior convictions. In a case involving a crime against persons as defined in RCW 9.94A.411, the prosecutor shall make reasonable efforts to inform the victim of the violent offense of the nature of and reasons for the plea agreement, including all offenses the prosecutor has agreed not to file, and ascertain any objections or comments the victim has to the plea agreement. The court shall not participate in any discussions under this section. [1995 c 288 § 1; 1981 c 137 § 8. Formerly RCW 9.94A.080.] Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.431 9.94A.431 Plea agreements—Information to court— Approval or disapproval—Sentencing judge not bound. (1) If a plea agreement has been reached by the prosecutor and the defendant pursuant to RCW 9.94A.421, they shall at the time of the defendant’s plea state to the court, on the record, the nature of the agreement and the reasons for the agreement. The prosecutor shall inform the court on the record whether the victim or victims of all crimes against persons, as defined in RCW 9.94A.411, covered by the plea agreement have expressed any objections to or comments on the nature of and reasons for the plea agreement. The court, at the time of the plea, shall determine if the agreement is consistent with the interests of justice and with the prosecuting standards. If the court determines it is not consistent with the interests of justice and with the prosecuting standards, the court shall, on the record, inform the defendant and the prosecutor that they are not bound by the agreement and that the defendant may withdraw the defendant’s plea of guilty, if one has been made, and enter a plea of not guilty. (2) The sentencing judge is not bound by any recommendations contained in an allowed plea agreement and the defendant shall be so informed at the time of plea. [1995 c 288 § 2; 1984 c 209 § 4; 1981 c 137 § 9. Formerly RCW 9.94A.090.] Effective dates—1984 c 209: See note following RCW 9.94A.030. Effective date—1981 c 137: See RCW 9.94A.905. [Title 9 RCW—page 119] 9.94A.441 Title 9 RCW: Crimes and Punishments 9.94A.441 9.94A.441 Plea agreements—Criminal history. The prosecuting attorney and the defendant shall each provide the court with their understanding of what the defendant’s criminal history is prior to a plea of guilty pursuant to a plea agreement. All disputed issues as to criminal history shall be decided at the sentencing hearing. [1981 c 137 § 10. Formerly RCW 9.94A.100.] Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.450 9.94A.450 Plea dispositions. STANDARD: (1) Except as provided in subsection (2) of this section, a defendant will normally be expected to plead guilty to the charge or charges which adequately describe the nature of his or her criminal conduct or go to trial. (2) In certain circumstances, a plea agreement with a defendant in exchange for a plea of guilty to a charge or charges that may not fully describe the nature of his or her criminal conduct may be necessary and in the public interest. Such situations may include the following: (a) Evidentiary problems which make conviction on the original charges doubtful; (b) The defendant’s willingness to cooperate in the investigation or prosecution of others whose criminal conduct is more serious or represents a greater public threat; (c) A request by the victim when it is not the result of pressure from the defendant; (d) The discovery of facts which mitigate the seriousness of the defendant’s conduct; (e) The correction of errors in the initial charging decision; (f) The defendant’s history with respect to criminal activity; (g) The nature and seriousness of the offense or offenses charged; (h) The probable effect on witnesses. [1983 c 115 § 16.] 9.94A.460 9.94A.460 Sentence recommendations. STANDARD: The prosecutor may reach an agreement regarding sentence recommendations. The prosecutor shall not agree to withhold relevant information from the court concerning the plea agreement. [1983 c 115 § 17.] 9.94A.470 9.94A.470 Armed offenders. Notwithstanding the current placement or listing of crimes in categories or classifications of prosecuting standards for deciding to prosecute under RCW 9.94A.411(2), any and all felony crimes involving any deadly weapon special verdict under RCW 9.94A.602, any deadly weapon enhancements under RCW 9.94A.533 (3) or (4), or both, and any and all felony crimes as defined in RCW 9.94A.533 (3)(f) or (4)(f), or both, which are excluded from the deadly weapon enhancements shall all be treated as crimes against a person and subject to the prosecuting standards for deciding to prosecute under RCW 9.94A.411(2) as crimes against persons. [2002 c 290 § 14; 1995 c 129 § 4 (Initiative Measure No. 159).] Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. [Title 9 RCW—page 120] Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. 9.94A.475 9.94A.475 Plea agreements and sentences for certain offenders—Public records. Any and all recommended sentencing agreements or plea agreements and the sentences for any and all felony crimes shall be made and retained as public records if the felony crime involves: (1) Any violent offense as defined in this chapter; (2) Any most serious offense as defined in this chapter; (3) Any felony with a deadly weapon special verdict under RCW 9.94A.602; (4) Any felony with any deadly weapon enhancements under RCW 9.94A.533 (3) or (4), or both; and/or (5) The felony crimes of possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first or second degree, and/or use of a machine gun in a felony. [2002 c 290 § 15; 1997 c 338 § 48; 1995 c 129 § 5 (Initiative Measure No. 159). Formerly RCW 9.94A.103.] Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. 9.94A.480 9.94A.480 Judicial records for sentences of certain offenders. (1) A current, newly created or reworked judgment and sentence document for each felony sentencing shall record any and all recommended sentencing agreements or plea agreements and the sentences for any and all felony crimes kept as public records under RCW 9.94A.475 shall contain the clearly printed name and legal signature of the sentencing judge. The judgment and sentence document as defined in this section shall also provide additional space for the sentencing judge’s reasons for going either above or below the presumptive sentence range for any and all felony crimes covered as public records under RCW 9.94A.475. Both the sentencing judge and the prosecuting attorney’s office shall each retain or receive a completed copy of each sentencing document as defined in this section for their own records. (2) The sentencing guidelines commission shall be sent a completed copy of the judgment and sentence document upon conviction for each felony sentencing under subsection (1) of this section and shall compile a yearly and cumulative judicial record of each sentencing judge in regards to his or her sentencing practices for any and all felony crimes involving: (a) Any violent offense as defined in this chapter; (b) Any most serious offense as defined in this chapter; (c) Any felony with any deadly weapon special verdict under RCW 9.94A.602; (d) Any felony with any deadly weapon enhancements under RCW 9.94A.533 (3) or (4), or both; and/or (e) The felony crimes of possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a fire(2006 Ed.) Sentencing Reform Act of 1981 arm, unlawful possession of a firearm in the first or second degree, and/or use of a machine gun in a felony. (3) The sentencing guidelines commission shall compare each individual judge’s sentencing practices to the standard or presumptive sentence range for any and all felony crimes listed in subsection (2) of this section for the appropriate offense level as defined in RCW 9.94A.515 or 9.94A.518, offender score as defined in RCW 9.94A.525, and any applicable deadly weapon enhancements as defined in RCW 9.94A.533 (3) or (4), or both. These comparative records shall be retained and made available to the public for review in a current, newly created or reworked official published document by the sentencing guidelines commission. (4) Any and all felony sentences which are either above or below the standard or presumptive sentence range in subsection (3) of this section shall also mark whether the prosecuting attorney in the case also recommended a similar sentence, if any, which was either above or below the presumptive sentence range and shall also indicate if the sentence was in conjunction with an approved alternative sentencing option including a first-time offender waiver, sex offender sentencing alternative, or other prescribed sentencing option. (5) If any completed judgment and sentence document as defined in subsection (1) of this section is not sent to the sentencing guidelines commission as required in subsection (2) of this section, the sentencing guidelines commission shall have the authority and shall undertake reasonable and necessary steps to assure that all past, current, and future sentencing documents as defined in subsection (1) of this section are received by the sentencing guidelines commission. [2002 c 290 § 16; 1997 c 338 § 49; 1995 c 129 § 6 (Initiative Measure No. 159). Formerly RCW 9.94A.105.] Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. 9.94A.500 9.94A.500 Sentencing hearing—Presentencing procedures—Disclosure of mental health services information. (1) Before imposing a sentence upon a defendant, the court shall conduct a sentencing hearing. The sentencing hearing shall be held within forty court days following conviction. Upon the motion of either party for good cause shown, or on its own motion, the court may extend the time period for conducting the sentencing hearing. Except in cases where the defendant shall be sentenced to a term of total confinement for life without the possibility of release or, when authorized by RCW 10.95.030 for the crime of aggravated murder in the first degree, sentenced to death, the court may order the department to complete a risk assessment report. If available before sentencing, the report shall be provided to the court. Unless specifically waived by the court, the court shall order the department to complete a chemical dependency screening report before imposing a sentence upon a defendant who has been convicted of a violation of the uniform (2006 Ed.) 9.94A.500 controlled substances act under chapter 69.50 RCW, a criminal solicitation to commit such a violation under chapter 9A.28 RCW, or any felony where the court finds that the offender has a chemical dependency that has contributed to his or her offense. In addition, the court shall, at the time of plea or conviction, order the department to complete a presentence report before imposing a sentence upon a defendant who has been convicted of a felony sexual offense. The department of corrections shall give priority to presentence investigations for sexual offenders. If the court determines that the defendant may be a mentally ill person as defined in RCW 71.24.025, although the defendant has not established that at the time of the crime he or she lacked the capacity to commit the crime, was incompetent to commit the crime, or was insane at the time of the crime, the court shall order the department to complete a presentence report before imposing a sentence. The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history, and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed. If the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist. All of this information shall be part of the record. Copies of all risk assessment reports and presentence reports presented to the sentencing court and all written findings of facts and conclusions of law as to sentencing entered by the court shall be sent to the department by the clerk of the court at the conclusion of the sentencing and shall accompany the offender if the offender is committed to the custody of the department. Court clerks shall provide, without charge, certified copies of documents relating to criminal convictions requested by prosecuting attorneys. (2) To prevent wrongful disclosure of information related to mental health services, as defined in RCW 71.05.445 and 71.34.345, a court may take only those steps necessary during a sentencing hearing or any hearing in which the department presents information related to mental health services to the court. The steps may be taken on motion of the defendant, the prosecuting attorney, or on the court’s own motion. The court may seal the portion of the record relating to information relating to mental health services, exclude the public from the hearing during presentation or discussion of information relating to mental health services, or grant other relief to achieve the result intended by this subsection, but nothing in this subsection shall be construed to prevent the subsequent release of information related to mental health services as authorized by RCW 71.05.445, 71.34.345, or 72.09.585. Any person who otherwise is permitted to attend any hearing pursuant to chapter 7.69 or 7.69A RCW shall not be excluded from the hearing solely because the department intends to disclose or discloses information related to mental health services. [2006 c 339 § 303; 2000 c 75 § 8. Prior: 1999 c 197 § 3; 1999 c 196 § 4; 1998 c 260 § 2; 1988 c 60 § 1; 1986 c 257 § 34; 1985 c 443 § 6; 1984 c 209 § 5; 1981 c 137 § 11. Formerly RCW 9.94A.110.] [Title 9 RCW—page 121] 9.94A.501 Title 9 RCW: Crimes and Punishments Intent—Part headings not law—2006 c 339: See notes following RCW 70.96A.325. Intent—2000 c 75: See note following RCW 71.05.445. Severability—1999 c 197: See note following RCW 9.94A.030. Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Intent—1998 c 260: "It is the intent of the legislature to decrease the likelihood of recidivism and reincarceration by mentally ill offenders under correctional supervision in the community by authorizing: (1) The courts to request presentence reports from the department of corrections when a relationship between mental illness and criminal behavior is suspected, and to order a mental status evaluation and treatment for offenders whose criminal behavior is influenced by a mental illness; and (2) Community corrections officers to work with community mental health providers to support participation in treatment by mentally ill offenders on community placement or community supervision." [1998 c 260 § 1.] Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. Effective dates—1984 c 209: See note following RCW 9.94A.030. Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.501 9.94A.501 Risk assessment—Risk categories— Department must supervise specified offenders. (Expires July 1, 2010.) (1) When the department performs a risk assessment pursuant to RCW 9.94A.500, or to determine a person’s conditions of supervision, the risk assessment shall classify the offender or a probationer sentenced in superior court into one of at least four risk categories. (2) The department shall supervise every offender sentenced to a term of community custody, community placement, or community supervision and every misdemeanor and gross misdemeanor probationer ordered by a superior court to probation under the supervision of the department pursuant to RCW 9.92.060, 9.95.204, or 9.95.210: (a) Whose risk assessment places that offender or probationer in one of the two highest risk categories; or (b) Regardless of the offender’s or probationer’s risk category if: (i) The offender’s or probationer’s current conviction is for: (A) A sex offense; (B) A violent offense; (C) A crime against persons as defined in RCW 9.94A.411; (D) A felony that is domestic violence as defined in RCW 10.99.020; (E) A violation of RCW 9A.52.025 (residential burglary); (F) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or (G) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor); (ii) The offender or probationer has a prior conviction for: (A) A sex offense; (B) A violent offense; [Title 9 RCW—page 122] (C) A crime against persons as defined in RCW 9.94A.411; (D) A felony that is domestic violence as defined in RCW 10.99.020; (E) A violation of RCW 9A.52.025 (residential burglary); (F) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or (G) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor); (iii) The conditions of the offender’s community custody, community placement, or community supervision or the probationer’s supervision include chemical dependency treatment; (iv) The offender was sentenced under RCW 9.94A.650 or 9.94A.670; or (v) The offender is subject to supervision pursuant to RCW 9.94A.745. (3) The department is not authorized to, and may not, supervise any offender sentenced to a term of community custody, community placement, or community supervision or any probationer unless the offender or probationer is one for whom supervision is required under subsection (2) of this section. (4) This section expires July 1, 2010. [2005 c 362 § 1; 2003 c 379 § 3.] Effective date—2005 c 362: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 10, 2005]." [2005 c 362 § 5.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Conditions of probation: RCW 9.95.210. Misdemeanant probation services—County supervision: RCW 9.95.204. Suspending sentences: RCW 9.92.060. 9.94A.505 9.94A.505 Sentences. (Effective until July 1, 2007.) (1) When a person is convicted of a felony, the court shall impose punishment as provided in this chapter. (2)(a) The court shall impose a sentence as provided in the following sections and as applicable in the case: (i) Unless another term of confinement applies, the court shall impose a sentence within the standard sentence range established in RCW 9.94A.510 or 9.94A.517; (ii) RCW 9.94A.700 and 9.94A.705, relating to community placement; (iii) RCW 9.94A.710 and 9.94A.715, relating to community custody; (iv) RCW 9.94A.545, relating to community custody for offenders whose term of confinement is one year or less; (v) RCW 9.94A.570, relating to persistent offenders; (vi) RCW 9.94A.540, relating to mandatory minimum terms; (vii) RCW 9.94A.650, relating to the first-time offender waiver; (viii) RCW 9.94A.660, relating to the drug offender sentencing alternative; (ix) RCW 9.94A.670, relating to the special sex offender sentencing alternative; (2006 Ed.) Sentencing Reform Act of 1981 (x) RCW 9.94A.712, relating to certain sex offenses; (xi) RCW 9.94A.535, relating to exceptional sentences; (xii) RCW 9.94A.589, relating to consecutive and concurrent sentences. (b) If a standard sentence range has not been established for the offender’s crime, the court shall impose a determinate sentence which may include not more than one year of confinement; community restitution work; until July 1, 2000, a term of community supervision not to exceed one year and on and after July 1, 2000, a term of community custody not to exceed one year, subject to conditions and sanctions as authorized in RCW 9.94A.710 (2) and (3); and/or other legal financial obligations. The court may impose a sentence which provides more than one year of confinement if the court finds reasons justifying an exceptional sentence as provided in RCW 9.94A.535. (3) If the court imposes a sentence requiring confinement of thirty days or less, the court may, in its discretion, specify that the sentence be served on consecutive or intermittent days. A sentence requiring more than thirty days of confinement shall be served on consecutive days. Local jail administrators may schedule court-ordered intermittent sentences as space permits. (4) If a sentence imposed includes payment of a legal financial obligation, it shall be imposed as provided in RCW 9.94A.750, 9.94A.753, 9.94A.760, and 43.43.7541. (5) Except as provided under RCW 9.94A.750(4) and 9.94A.753(4), a court may not impose a sentence providing for a term of confinement or community supervision, community placement, or community custody which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW. (6) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced. (7) The court shall order restitution as provided in RCW 9.94A.750 and 9.94A.753. (8) As a part of any sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions as provided in this chapter. (9) The court may order an offender whose sentence includes community placement or community supervision to undergo a mental status evaluation and to participate in available outpatient mental health treatment, if the court finds that reasonable grounds exist to believe that the offender is a mentally ill person as defined in RCW 71.24.025, and that this condition is likely to have influenced the offense. An order requiring mental status evaluation or treatment must be based on a presentence report and, if applicable, mental status evaluations that have been filed with the court to determine the offender’s competency or eligibility for a defense of insanity. The court may order additional evaluations at a later date if deemed appropriate. (10) In any sentence of partial confinement, the court may require the offender to serve the partial confinement in work release, in a program of home detention, on work crew, or in a combined program of work crew and home detention. (11) In sentencing an offender convicted of a crime of domestic violence, as defined in RCW 10.99.020, if the offender has a minor child, or if the victim of the offense for (2006 Ed.) 9.94A.505 which the offender was convicted has a minor child, the court may, as part of any term of community supervision, community placement, or community custody, order the offender to participate in a domestic violence perpetrator program approved under RCW 26.50.150. [2002 c 290 § 17; 2002 c 289 § 6; 2002 c 175 § 6; 2001 2nd sp.s. c 12 § 312; 2001 c 10 § 2. Prior: 2000 c 226 § 2; 2000 c 43 § 1; 2000 c 28 § 5; prior: 1999 c 324 § 2; 1999 c 197 § 4; 1999 c 196 § 5; 1999 c 147 § 3; 1998 c 260 § 3; prior: 1997 c 340 § 2; 1997 c 338 § 4; 1997 c 144 § 2; 1997 c 121 § 2; 1997 c 69 § 1; prior: 1996 c 275 § 2; 1996 c 215 § 5; 1996 c 199 § 1; 1996 c 93 § 1; 1995 c 108 § 3; prior: 1994 c 1 § 2 (Initiative Measure No. 593, approved November 2, 1993); 1993 c 31 § 3; prior: 1992 c 145 § 7; 1992 c 75 § 2; 1992 c 45 § 5; prior: 1991 c 221 § 2; 1991 c 181 § 3; 1991 c 104 § 3; 1990 c 3 § 705; 1989 c 252 § 4; prior: 1988 c 154 § 3; 1988 c 153 § 2; 1988 c 143 § 21; prior: 1987 c 456 § 2; 1987 c 402 § 1; prior: 1986 c 301 § 4; 1986 c 301 § 3; 1986 c 257 § 20; 1984 c 209 § 6; 1983 c 163 § 2; 1982 c 192 § 4; 1981 c 137 § 12. Formerly RCW 9.94A.120.] Reviser’s note: This section was amended by 2002 c 175 § 6, 2002 c 289 § 6, and by 2002 c 290 § 17, each without reference to the other. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Severability—Effective date—2002 c 289: See notes following RCW 43.43.753. Effective date—2002 c 175: See note following RCW 7.80.130. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Intent—2001 c 10: "It is the intent of the legislature to incorporate into the reorganization of chapter 9.94A RCW adopted by chapter 28, Laws of 2000 amendments adopted to RCW 9.94A.120 during the 2000 legislative session that did not take cognizance of the reorganization. In addition, it is the intent of the legislature to correct any additional incorrect cross-references and to simplify the codification of provisions within chapter 9.94A RCW. The legislature does not intend to make, and no provision of this act may be construed as making, a substantive change in the sentencing reform act." [2001 c 10 § 1.] Effective date—2001 c 10: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2001." [2001 c 10 § 7.] Finding—Intent—2000 c 226: "The legislature finds that supervision of offenders in the community and an offender’s payment of restitution enhances public safety, improves offender accountability, is an important component of providing justice to victims, and strengthens the community. The legislature intends that all terms and conditions of an offender’s supervision in the community, including the length of supervision and payment of legal financial obligations, not be curtailed by an offender’s absence from supervision for any reason including confinement in any correctional institution. The legislature, through this act, revises the results of In re Sappenfield, 980 P.2d 1271 (1999) and declares that an offender’s absence from supervision or subsequent incarceration acts to toll the jurisdiction of the court or department over an offender for the purpose of enforcing legal financial obligations." [2000 c 226 § 1.] Severability—2000 c 226: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2000 c 226 § 6.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. [Title 9 RCW—page 123] 9.94A.505 Title 9 RCW: Crimes and Punishments Drug offender options—Report: "The Washington state institute for public policy, in consultation with the sentencing guidelines commission shall evaluate the impact of implementing the drug offender options provided for in RCW 9.94A.120(6). The commission shall submit a final report to the legislature by December 1, 2004. The report shall describe the changes in sentencing practices related to the use of punishment options for drug offenders and include the impact of sentencing alternatives on state prison populations, the savings in state resources, the effectiveness of drug treatment services, and the impact on recidivism rates." [1999 c 197 § 12.] Severability—1999 c 197: See note following RCW 9.94A.030. Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Intent—1998 c 260: See note following RCW 9.94A.500. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—1996 c 275: "The legislature finds that improving the supervision of convicted sex offenders in the community upon release from incarceration is a substantial public policy goal, in that effective supervision accomplishes many purposes including protecting the community, supporting crime victims, assisting offenders to change, and providing important information to decision makers." [1996 c 275 § 1.] Application—1996 c 275 §§ 1-5: "Sections 1 through 5, chapter 275, Laws of 1996 apply to crimes committed on or after June 6, 1996." [1996 c 275 § 14.] Severability—1996 c 199: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1996 c 199 § 9.] Effective date—1995 c 108: See note following RCW 9.94A.030. Severability—Short title—Captions—1994 c 1: See notes following RCW 9.94A.555. Severability—Application—1992 c 45: See notes following RCW 9.94A.840. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. Effective date—Application of increased sanctions—1988 c 153: See notes following RCW 9.94A.030. Applicability—1988 c 143 §§ 21-24: "Increased sanctions authorized by sections 21 through 24 of this act are applicable only to those persons committing offenses after March 21, 1988." [1988 c 143 § 25.] Effective date—1987 c 402: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1987." [1987 c 402 § 3.] Effective date—1986 c 301 § 4: "Section 4 of this act shall take effect July 1, 1987." [1986 c 301 § 8.] Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. Effective date—1983 c 163: "Sections 1 through 5 of this act shall take effect on July 1, 1984." [1983 c 163 § 7.] Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.505 9.94A.505 Sentences. (Effective July 1, 2007.) (1) When a person is convicted of a felony, the court shall impose punishment as provided in this chapter. (2)(a) The court shall impose a sentence as provided in the following sections and as applicable in the case: [Title 9 RCW—page 124] (i) Unless another term of confinement applies, the court shall impose a sentence within the standard sentence range established in RCW 9.94A.510 or 9.94A.517; (ii) RCW 9.94A.700 and 9.94A.705, relating to community placement; (iii) RCW 9.94A.710 and 9.94A.715, relating to community custody; (iv) RCW 9.94A.545, relating to community custody for offenders whose term of confinement is one year or less; (v) RCW 9.94A.570, relating to persistent offenders; (vi) RCW 9.94A.540, relating to mandatory minimum terms; (vii) RCW 9.94A.650, relating to the first-time offender waiver; (viii) RCW 9.94A.660, relating to the drug offender sentencing alternative; (ix) RCW 9.94A.670, relating to the special sex offender sentencing alternative; (x) RCW 9.94A.712, relating to certain sex offenses; (xi) RCW 9.94A.535, relating to exceptional sentences; (xii) RCW 9.94A.589, relating to consecutive and concurrent sentences; (xiii) RCW 9.94A.603, relating to felony driving while under the influence of intoxicating liquor or any drug and felony physical control of a vehicle while under the influence of intoxicating liquor or any drug. (b) If a standard sentence range has not been established for the offender’s crime, the court shall impose a determinate sentence which may include not more than one year of confinement; community restitution work; until July 1, 2000, a term of community supervision not to exceed one year and on and after July 1, 2000, a term of community custody not to exceed one year, subject to conditions and sanctions as authorized in RCW 9.94A.710 (2) and (3); and/or other legal financial obligations. The court may impose a sentence which provides more than one year of confinement if the court finds reasons justifying an exceptional sentence as provided in RCW 9.94A.535. (3) If the court imposes a sentence requiring confinement of thirty days or less, the court may, in its discretion, specify that the sentence be served on consecutive or intermittent days. A sentence requiring more than thirty days of confinement shall be served on consecutive days. Local jail administrators may schedule court-ordered intermittent sentences as space permits. (4) If a sentence imposed includes payment of a legal financial obligation, it shall be imposed as provided in RCW 9.94A.750, 9.94A.753, 9.94A.760, and 43.43.7541. (5) Except as provided under RCW 9.94A.750(4) and 9.94A.753(4), a court may not impose a sentence providing for a term of confinement or community supervision, community placement, or community custody which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW. (6) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced. (7) The court shall order restitution as provided in RCW 9.94A.750 and 9.94A.753. (2006 Ed.) Sentencing Reform Act of 1981 (8) As a part of any sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions as provided in this chapter. (9) The court may order an offender whose sentence includes community placement or community supervision to undergo a mental status evaluation and to participate in available outpatient mental health treatment, if the court finds that reasonable grounds exist to believe that the offender is a mentally ill person as defined in RCW 71.24.025, and that this condition is likely to have influenced the offense. An order requiring mental status evaluation or treatment must be based on a presentence report and, if applicable, mental status evaluations that have been filed with the court to determine the offender’s competency or eligibility for a defense of insanity. The court may order additional evaluations at a later date if deemed appropriate. (10) In any sentence of partial confinement, the court may require the offender to serve the partial confinement in work release, in a program of home detention, on work crew, or in a combined program of work crew and home detention. (11) In sentencing an offender convicted of a crime of domestic violence, as defined in RCW 10.99.020, if the offender has a minor child, or if the victim of the offense for which the offender was convicted has a minor child, the court may, as part of any term of community supervision, community placement, or community custody, order the offender to participate in a domestic violence perpetrator program approved under RCW 26.50.150. [2006 c 73 § 6. Prior: 2002 c 290 § 17; 2002 c 289 § 6; 2002 c 175 § 6; 2001 2nd sp.s. c 12 § 312; 2001 c 10 § 2; prior: 2000 c 226 § 2; 2000 c 43 § 1; 2000 c 28 § 5; prior: 1999 c 324 § 2; 1999 c 197 § 4; 1999 c 196 § 5; 1999 c 147 § 3; 1998 c 260 § 3; prior: 1997 c 340 § 2; 1997 c 338 § 4; 1997 c 144 § 2; 1997 c 121 § 2; 1997 c 69 § 1; prior: 1996 c 275 § 2; 1996 c 215 § 5; 1996 c 199 § 1; 1996 c 93 § 1; 1995 c 108 § 3; prior: 1994 c 1 § 2 (Initiative Measure No. 593, approved November 2, 1993); 1993 c 31 § 3; prior: 1992 c 145 § 7; 1992 c 75 § 2; 1992 c 45 § 5; prior: 1991 c 221 § 2; 1991 c 181 § 3; 1991 c 104 § 3; 1990 c 3 § 705; 1989 c 252 § 4; prior: 1988 c 154 § 3; 1988 c 153 § 2; 1988 c 143 § 21; prior: 1987 c 456 § 2; 1987 c 402 § 1; prior: 1986 c 301 § 4; 1986 c 301 § 3; 1986 c 257 § 20; 1984 c 209 § 6; 1983 c 163 § 2; 1982 c 192 § 4; 1981 c 137 § 12. Formerly RCW 9.94A.120.] Effective date—2006 c 73: See note following RCW 46.61.502. Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Severability—Effective date—2002 c 289: See notes following RCW 43.43.753. Effective date—2002 c 175: See note following RCW 7.80.130. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Intent—2001 c 10: "It is the intent of the legislature to incorporate into the reorganization of chapter 9.94A RCW adopted by chapter 28, Laws of 2000 amendments adopted to RCW 9.94A.120 during the 2000 legislative session that did not take cognizance of the reorganization. In addition, it is the intent of the legislature to correct any additional incorrect cross-references and to simplify the codification of provisions within chapter 9.94A RCW. The legislature does not intend to make, and no provision of this act (2006 Ed.) 9.94A.505 may be construed as making, a substantive change in the sentencing reform act." [2001 c 10 § 1.] Effective date—2001 c 10: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2001." [2001 c 10 § 7.] Finding—Intent—2000 c 226: "The legislature finds that supervision of offenders in the community and an offender’s payment of restitution enhances public safety, improves offender accountability, is an important component of providing justice to victims, and strengthens the community. The legislature intends that all terms and conditions of an offender’s supervision in the community, including the length of supervision and payment of legal financial obligations, not be curtailed by an offender’s absence from supervision for any reason including confinement in any correctional institution. The legislature, through this act, revises the results of In re Sappenfield, 980 P.2d 1271 (1999) and declares that an offender’s absence from supervision or subsequent incarceration acts to toll the jurisdiction of the court or department over an offender for the purpose of enforcing legal financial obligations." [2000 c 226 § 1.] Severability—2000 c 226: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2000 c 226 § 6.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Drug offender options—Report: "The Washington state institute for public policy, in consultation with the sentencing guidelines commission shall evaluate the impact of implementing the drug offender options provided for in RCW 9.94A.120(6). The commission shall submit a final report to the legislature by December 1, 2004. The report shall describe the changes in sentencing practices related to the use of punishment options for drug offenders and include the impact of sentencing alternatives on state prison populations, the savings in state resources, the effectiveness of drug treatment services, and the impact on recidivism rates." [1999 c 197 § 12.] Severability—1999 c 197: See note following RCW 9.94A.030. Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Intent—1998 c 260: See note following RCW 9.94A.500. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—1996 c 275: "The legislature finds that improving the supervision of convicted sex offenders in the community upon release from incarceration is a substantial public policy goal, in that effective supervision accomplishes many purposes including protecting the community, supporting crime victims, assisting offenders to change, and providing important information to decision makers." [1996 c 275 § 1.] Application—1996 c 275 §§ 1-5: "Sections 1 through 5, chapter 275, Laws of 1996 apply to crimes committed on or after June 6, 1996." [1996 c 275 § 14.] Severability—1996 c 199: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1996 c 199 § 9.] Effective date—1995 c 108: See note following RCW 9.94A.030. Severability—Short title—Captions—1994 c 1: See notes following RCW 9.94A.555. Severability—Application—1992 c 45: See notes following RCW 9.94A.840. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. Effective date—Application of increased sanctions—1988 c 153: See notes following RCW 9.94A.030. [Title 9 RCW—page 125] 9.94A.510 Title 9 RCW: Crimes and Punishments Applicability—1988 c 143 §§ 21-24: "Increased sanctions authorized by sections 21 through 24 of this act are applicable only to those persons committing offenses after March 21, 1988." [1988 c 143 § 25.] Effective date—1987 c 402: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1987." [1987 c 402 § 3.] Effective date—1986 c 301 § 4: "Section 4 of this act shall take effect July 1, 1987." [1986 c 301 § 8.] Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. Effective date—1983 c 163: "Sections 1 through 5 of this act shall take effect on July 1, 1984." [1983 c 163 § 7.] Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.510 9.94A.510 Table 1—Sentencing grid. TABLE 1 Sentencing Grid SERIOUSNESS LEVEL 0 1 3 4 5 6 7 8 9 or more XVILife Sentence without Parole/Death Penalty XV 23y4m 24y4m 25y4m 26y4m 27y4m 28y4m 30y4m 32y10m36y 240- 250- 261- 271- 320 333 347 361 XIV 14y4m 15y4m 16y2m 17y 281- 291- 312- 338- 370- 40y 411- 144- 154- 165- 175- 195- 216- 257- 298- 234 244 254 265 275 295 316 357 397 XIII 12y 13y 14y 15y 16y 17y 19y 21y 25y 29y 123164 134178 144192 154205 165219 175233 195260 216288 257342 298397 9y11m 10y9m 11y8m 12y6m 13y5m 15y9m 17y3m 20y3m 23y3m 93- 102- 111- 120- 129- 138- 162- 178- 209- 240- 123 136 147 160 171 184 216 236 277 318 8y4m 86- 9y2m 95- 9y11m 10y9m 11y7m 14y2m 15y5m 17y11m20y5m 102- 111120- 146- 159- 185- 210- 102 114 125 136 158 194 5y 5y6m 6y 6y6m 7y 7y6m 9y6m 10y6m 12y6m 14y6m 51- 57- 62- 67- 77- 98- 75 3y6m 82 4y 89 96 4y6m 5y 102 5y6m 130 144 7y6m 8y6m 171 198 10y6m 12y6m 31- 36- 41- 46- 51- 57- 77- 87- 108- 41 48 54 61 68 75 102 116 144 171 2y6m 3y 3y6m 4y 4y6m 6y6m 7y6m 8y6m 10y6m 2634 3141 3648 4154 4661 6789 87116 108144 2y 2y6m 3y 3y6m 4y 5y6m 6y6m 7y6m 8y6m 21- 26- 31- 36- 41- 57- 67- 77- 87- 48 54 75 89 3y6m 36- 4y6m 5y6m 4657- 68 IX 3y VIII 2y 2127 VII 18m 1520 VI 13m 12+- 147 72- 27 34 41 18m 15- 2y 21- 2y6m 3y 2631- 211 108- 77102 245 129- 280 149- 129- 102 116 6y6m 67- 7y6m 77- 14 20 27 34 41 48 61 75 89 102 9m 13m 15m 18m 2y2m 3y2m 4y 5y 6y 7y 6- 12+- 13- 15- 22- 33- 41- 51- 62- 72- 12 14 17 20 29 43 54 68 82 96 IV 6m 3- 9m 6- 13m 12+- 15m 13- 18m 15- 2y2m 22- 3y2m 4y2m 3343- 5y2m 53- 6y2m 63- 12 14 17 20 29 43 70 84 5m 8m 11m 14m 20m 2y2m 3y2m 4y2m 5y 3- 4- 9- 12+- 17- 22- 43- 51- V 9 III 2m 1- [Title 9 RCW—page 126] 16 22 29 43 57 68 8m 13m 16m 20m 2y2m 3y2m 4y2m 0-90 2- 3- 4- 12+- 14- 17- 22- 33- 43- Days 6 9 12 14 18 22 29 43 57 0-60 0-90 3m 2- 4m 2- 5m 3- 8m 4- 13m 12+- 16m 14- 20m 17- 2y2m 22- Days Days 5 6 8 12 14 18 22 29 I Numbers in the first horizontal row of each seriousness category represent sentencing midpoints in years(y) and months(m). Numbers in the second and third rows represent standard sentence ranges in months, or in days if so designated. 12+ equals one year and one day. [2002 c 290 § 10. Prior: 2000 c 132 § 2; 2000 c 28 § 11; prior: 1999 c 352 § 2; 1999 c 324 § 3; prior: 1998 c 235 § 1; 1998 c 211 § 3; prior: 1997 c 365 § 3; 1997 c 338 § 50; 1996 c 205 § 5; 1995 c 129 § 2 (Initiative Measure No. 159); (1994 sp.s. c 7 § 512 repealed by 1995 c 129 § 19 (Initiative Measure No. 159)); 1992 c 145 § 9; 1991 c 32 § 2; 1990 c 3 § 701; prior: 1989 c 271 § 101; 1989 c 124 § 1; 1988 c 218 § 1; 1986 c 257 § 22; 1984 c 209 § 16; 1983 c 115 § 2. Formerly RCW 9.94A.310.] Intent—2002 c 290: See note following RCW 9.94A.517. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Effective date—1998 c 211: See note following RCW 46.61.5055. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. 134- X 12 6m Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. 220 XI 7y6m 78- 12 4m 374 388 416 450 493 548 17y11m 18y9m 20y5m 22y2m 25y7m 29y 123- XII 9y 8 Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. OFFENDER SCORE 2 3 II 57 33- Findings and intent—1995 c 129: "(1) The people of the state of Washington find and declare that: (a) Armed criminals pose an increasing and major threat to public safety and can turn any crime into serious injury or death. (b) Criminals carry deadly weapons for several key reasons including: Forcing the victim to comply with their demands; injuring or killing anyone who tries to stop the criminal acts; and aiding the criminal in escaping. (c) Current law does not sufficiently stigmatize the carrying and use of deadly weapons by criminals, and far too often there are no deadly weapon enhancements provided for many felonies, including murder, arson, manslaughter, and child molestation and many other sex offenses including child luring. (d) Current law also fails to distinguish between gun-carrying criminals and criminals carrying knives or clubs. (2) By increasing the penalties for carrying and using deadly weapons by criminals and closing loopholes involving armed criminals, the people intend to: (a) Stigmatize the carrying and use of any deadly weapons for all felonies with proper deadly weapon enhancements. (b) Reduce the number of armed offenders by making the carrying and use of the deadly weapon not worth the sentence received upon conviction. (c) Distinguish between the gun predators and criminals carrying other deadly weapons and provide greatly increased penalties for gun predators and for those offenders committing crimes to acquire firearms. (d) Bring accountability and certainty into the sentencing system by tracking individual judges and holding them accountable for their sentencing practices in relation to the state’s sentencing guidelines for serious crimes." [1995 c 129 § 1 (Initiative Measure No. 159).] Short title—1995 c 129: "This act shall be known and cited as the hard time for armed crime act." [1995 c 129 § 21 (Initiative Measure No. 159).] Severability—1995 c 129: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1995 c 129 § 22 (Initiative Measure No. 159).] Captions not law—1995 c 129: "Captions as used in this act do not constitute any part of the law." [1995 c 129 § 23 (Initiative Measure No. 159).] (2006 Ed.) Sentencing Reform Act of 1981 Finding—Intent—Severability—Effective dates—Contingent expiration date—1994 sp.s. c 7: See notes following RCW 43.70.540. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Application—1989 c 271 §§ 101-111: "Sections 101-111 of this act apply to crimes committed on or after July 1, 1989." [1989 c 271 § 114.] Severability—1989 c 271: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 c 271 § 606.] Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.94A.515 9.94A.515 Table 2—Crimes included within each seriousness level. (Effective until July 1, 2007.) XVI XV XIV XIII XII XI X IX (2006 Ed.) TABLE 2 CRIMES INCLUDED WITHIN EACH SERIOUSNESS LEVEL Aggravated Murder 1 (RCW 10.95.020) Homicide by abuse (RCW 9A.32.055) Malicious explosion 1 (RCW 70.74.280(1)) Murder 1 (RCW 9A.32.030) Murder 2 (RCW 9A.32.050) Trafficking 1 (RCW 9A.40.100(1)) Malicious explosion 2 (RCW 70.74.280(2)) Malicious placement of an explosive 1 (RCW 70.74.270(1)) Assault 1 (RCW 9A.36.011) Assault of a Child 1 (RCW 9A.36.120) Malicious placement of an imitation device 1 (RCW 70.74.272(1)(a)) Rape 1 (RCW 9A.44.040) Rape of a Child 1 (RCW 9A.44.073) Trafficking 2 (RCW 9A.40.100(2)) Manslaughter 1 (RCW 9A.32.060) Rape 2 (RCW 9A.44.050) Rape of a Child 2 (RCW 9A.44.076) Child Molestation 1 (RCW 9A.44.083) Indecent Liberties (with forcible compulsion) (RCW 9A.44.100(1)(a)) Kidnapping 1 (RCW 9A.40.020) Leading Organized Crime (RCW 9A.82.060(1)(a)) Malicious explosion 3 (RCW 70.74.280(3)) Sexually Violent Predator Escape (RCW 9A.76.115) Abandonment of Dependent Person 1 (RCW 9A.42.060) Assault of a Child 2 (RCW 9A.36.130) 9.94A.515 Criminal Mistreatment 1 (RCW 9A.42.020) Explosive devices prohibited (RCW 70.74.180) Hit and Run—Death (RCW 46.52.020(4)(a)) Homicide by Watercraft, by being under the influence of intoxicating liquor or any drug (RCW 79A.60.050) Inciting Criminal Profiteering (RCW 9A.82.060(1)(b)) Malicious placement of an explosive 2 (RCW 70.74.270(2)) Robbery 1 (RCW 9A.56.200) Sexual Exploitation (RCW 9.68A.040) Vehicular Homicide, by being under the influence of intoxicating liquor or any drug (RCW 46.61.520) VIII Arson 1 (RCW 9A.48.020) Homicide by Watercraft, by the operation of any vessel in a reckless manner (RCW 79A.60.050) Manslaughter 2 (RCW 9A.32.070) Promoting Prostitution 1 (RCW 9A.88.070) Theft of Ammonia (RCW 69.55.010) Vehicular Homicide, by the operation of any vehicle in a reckless manner (RCW 46.61.520) VII Burglary 1 (RCW 9A.52.020) Child Molestation 2 (RCW 9A.44.086) Civil Disorder Training (RCW 9A.48.120) Dealing in depictions of minor engaged in sexually explicit conduct (RCW 9.68A.050) Drive-by Shooting (RCW 9A.36.045) Homicide by Watercraft, by disregard for the safety of others (RCW 79A.60.050) Indecent Liberties (without forcible compulsion) (RCW 9A.44.100(1) (b) and (c)) Introducing Contraband 1 (RCW 9A.76.140) Malicious placement of an explosive 3 (RCW 70.74.270(3)) Negligently Causing Death By Use of a Signal Preemption Device (RCW 46.37.675) Sending, bringing into state depictions of minor engaged in sexually explicit conduct (RCW 9.68A.060) [Title 9 RCW—page 127] 9.94A.515 Title 9 RCW: Crimes and Punishments Unlawful Possession of a Firearm in the first degree (RCW 9.41.040(1)) Use of a Machine Gun in Commission of a Felony (RCW 9.41.225) Vehicular Homicide, by disregard for the safety of others (RCW 46.61.520) VI Bail Jumping with Murder 1 (RCW 9A.76.170(3)(a)) Bribery (RCW 9A.68.010) Incest 1 (RCW 9A.64.020(1)) Intimidating a Judge (RCW 9A.72.160) Intimidating a Juror/Witness (RCW 9A.72.110, 9A.72.130) Malicious placement of an imitation device 2 (RCW 70.74.272(1)(b)) Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct (RCW 9.68A.070) Rape of a Child 3 (RCW 9A.44.079) Theft of a Firearm (RCW 9A.56.300) Unlawful Storage of Ammonia (RCW 69.55.020) V Abandonment of Dependent Person 2 (RCW 9A.42.070) Advancing money or property for extortionate extension of credit (RCW 9A.82.030) Bail Jumping with class A Felony (RCW 9A.76.170(3)(b)) Child Molestation 3 (RCW 9A.44.089) Criminal Mistreatment 2 (RCW 9A.42.030) Custodial Sexual Misconduct 1 (RCW 9A.44.160) Domestic Violence Court Order Violation (RCW 10.99.040, 10.99.050, 26.09.300, 26.10.220, 26.26.138, 26.50.110, 26.52.070, or 74.34.145) Extortion 1 (RCW 9A.56.120) Extortionate Extension of Credit (RCW 9A.82.020) Extortionate Means to Collect Extensions of Credit (RCW 9A.82.040) Incest 2 (RCW 9A.64.020(2)) Kidnapping 2 (RCW 9A.40.030) Perjury 1 (RCW 9A.72.020) Persistent prison misbehavior (RCW 9.94.070) Possession of a Stolen Firearm (RCW 9A.56.310) Rape 3 (RCW 9A.44.060) Rendering Criminal Assistance 1 (RCW 9A.76.070) [Title 9 RCW—page 128] Sexual Misconduct with a Minor 1 (RCW 9A.44.093) Sexually Violating Human Remains (RCW 9A.44.105) Stalking (RCW 9A.46.110) Taking Motor Vehicle Without Permission 1 (RCW 9A.56.070) IV Arson 2 (RCW 9A.48.030) Assault 2 (RCW 9A.36.021) Assault 3 (of a Peace Officer with a Projectile Stun Gun) (RCW 9A.36.031(1)(h)) Assault by Watercraft (RCW 79A.60.060) Bribing a Witness/Bribe Received by Witness (RCW 9A.72.090, 9A.72.100) Cheating 1 (RCW 9.46.1961) Commercial Bribery (RCW 9A.68.060) Counterfeiting (RCW 9.16.035(4)) Endangerment with a Controlled Substance (RCW 9A.42.100) Escape 1 (RCW 9A.76.110) Hit and Run—Injury (RCW 46.52.020(4)(b)) Hit and Run with Vessel—Injury Accident (RCW 79A.60.200(3)) Identity Theft 1 (RCW 9.35.020(2)) Indecent Exposure to Person Under Age Fourteen (subsequent sex offense) (RCW 9A.88.010) Influencing Outcome of Sporting Event (RCW 9A.82.070) Malicious Harassment (RCW 9A.36.080) Residential Burglary (RCW 9A.52.025) Robbery 2 (RCW 9A.56.210) Theft of Livestock 1 (RCW 9A.56.080) Threats to Bomb (RCW 9.61.160) Trafficking in Stolen Property 1 (RCW 9A.82.050) Unlawful factoring of a credit card or payment card transaction (RCW 9A.56.290(4)(b)) Unlawful transaction of health coverage as a health care service contractor (RCW 48.44.016(3)) Unlawful transaction of health coverage as a health maintenance organization (RCW 48.46.033(3)) Unlawful transaction of insurance business (RCW 48.15.023(3)) (2006 Ed.) Sentencing Reform Act of 1981 Unlicensed practice as an insurance professional (RCW 48.17.063(3)) Use of Proceeds of Criminal Profiteering (RCW 9A.82.080 (1) and (2)) Vehicular Assault, by being under the influence of intoxicating liquor or any drug, or by the operation or driving of a vehicle in a reckless manner (RCW 46.61.522) Willful Failure to Return from Furlough (*RCW 72.66.060) III Animal Cruelty 1 (Sexual Conduct or Contact) (RCW 16.52.205(3)) Assault 3 (Except Assault 3 of a Peace Officer With a Projectile Stun Gun) (RCW 9A.36.031 except subsection (1)(h)) Assault of a Child 3 (RCW 9A.36.140) Bail Jumping with class B or C Felony (RCW 9A.76.170(3)(c)) Burglary 2 (RCW 9A.52.030) Communication with a Minor for Immoral Purposes (RCW 9.68A.090) Criminal Gang Intimidation (RCW 9A.46.120) Custodial Assault (RCW 9A.36.100) Cyberstalking (subsequent conviction or threat of death) (RCW 9.61.260(3)) Escape 2 (RCW 9A.76.120) Extortion 2 (RCW 9A.56.130) Harassment (RCW 9A.46.020) Intimidating a Public Servant (RCW 9A.76.180) Introducing Contraband 2 (RCW 9A.76.150) Malicious Injury to Railroad Property (RCW 81.60.070) Negligently Causing Substantial Bodily Harm By Use of a Signal Preemption Device (RCW 46.37.674) Organized Retail Theft 1 (RCW 9A.56.350(2)) Patronizing a Juvenile Prostitute (RCW 9.68A.100) Perjury 2 (RCW 9A.72.030) Possession of Incendiary Device (RCW 9.40.120) Possession of Machine Gun or ShortBarreled Shotgun or Rifle (RCW 9.41.190) Promoting Prostitution 2 (RCW 9A.88.080) (2006 Ed.) 9.94A.515 [Retail] Theft with Extenuating Circumstances 1 (RCW 9A.56.360(2)) Securities Act violation (RCW 21.20.400) Tampering with a Witness (RCW 9A.72.120) Telephone Harassment (subsequent conviction or threat of death) (RCW 9.61.230(2)) Theft of Livestock 2 (RCW 9A.56.083) Theft with the Intent to Resell 1 (RCW 9A.56.340(2)) Trafficking in Stolen Property 2 (RCW 9A.82.055) Unlawful Imprisonment (RCW 9A.40.040) Unlawful possession of firearm in the second degree (RCW 9.41.040(2)) Vehicular Assault, by the operation or driving of a vehicle with disregard for the safety of others (RCW 46.61.522) Willful Failure to Return from Work Release (*RCW 72.65.070) II Computer Trespass 1 (RCW 9A.52.110) Counterfeiting (RCW 9.16.035(3)) Escape from Community Custody (RCW 72.09.310) Failure to Register as a Sex Offender (second or subsequent offense) (RCW 9A.44.130(10)(a)) Health Care False Claims (RCW 48.80.030) Identity Theft 2 (RCW 9.35.020(3)) Improperly Obtaining Financial Information (RCW 9.35.010) Malicious Mischief 1 (RCW 9A.48.070) Organized Retail Theft 2 (RCW 9A.56.350(3)) Possession of Stolen Property 1 (RCW 9A.56.150) [Retail] Theft with Extenuating Circumstances 2 (RCW 9A.56.360(3)) Theft 1 (RCW 9A.56.030) Theft of Rental, Leased, or Lease-purchased Property (valued at one thousand five hundred dollars or more) (RCW 9A.56.096(5)(a)) Theft with the Intent to Resell 2 (RCW 9A.56.340(3)) Trafficking in Insurance Claims (RCW 48.30A.015) [Title 9 RCW—page 129] 9.94A.515 Title 9 RCW: Crimes and Punishments Unlawful factoring of a credit card or payment card transaction (RCW 9A.56.290(4)(a)) Unlawful Practice of Law (RCW 2.48.180) Unlicensed Practice of a Profession or Business (RCW 18.130.190(7)) Voyeurism (RCW 9A.44.115) I Attempting to Elude a Pursuing Police Vehicle (RCW 46.61.024) False Verification for Welfare (RCW 74.08.055) Forgery (RCW 9A.60.020) Fraudulent Creation or Revocation of a Mental Health Advance Directive (RCW 9A.60.060) Malicious Mischief 2 (RCW 9A.48.080) Mineral Trespass (RCW 78.44.330) Possession of Stolen Property 2 (RCW 9A.56.160) Reckless Burning 1 (RCW 9A.48.040) Taking Motor Vehicle Without Permission 2 (RCW 9A.56.075) Theft 2 (RCW 9A.56.040) Theft of Rental, Leased, or Lease-purchased Property (valued at two hundred fifty dollars or more but less than one thousand five hundred dollars) (RCW 9A.56.096(5)(b)) Transaction of insurance business beyond the scope of licensure (RCW 48.17.063(4)) Unlawful Issuance of Checks or Drafts (RCW 9A.56.060) Unlawful Possession of Fictitious Identification (RCW 9A.56.320) Unlawful Possession of Instruments of Financial Fraud (RCW 9A.56.320) Unlawful Possession of Payment Instruments (RCW 9A.56.320) Unlawful Possession of a Personal Identification Device (RCW 9A.56.320) Unlawful Production of Payment Instruments (RCW 9A.56.320) Unlawful Trafficking in Food Stamps (RCW 9.91.142) Unlawful Use of Food Stamps (RCW 9.91.144) Vehicle Prowl 1 (RCW 9A.52.095) [2006 c 277 § 6; 2006 c 228 § 9; 2006 c 191 § 2; 2006 c 139 § 2; 2006 c 128 § 3. Prior: (2006 c 125 § 5 repealed by 2006 c 126 § 7); 2005 c 458 § 2; 2005 c 183 § 9; prior: 2004 c 176 § 2; 2004 c 94 § 3; (2004 c 94 § 2 expired July 1, 2004); prior: 2003 c 335 § 5; (2003 c 335 § 4 expired July 1, 2004); 2003 [Title 9 RCW—page 130] c 283 § 33; (2003 c 283 § 32 expired July 1, 2004); 2003 c 267 § 3; (2003 c 267 § 2 expired July 1, 2004); 2003 c 250 § 14; (2003 c 250 § 13 expired July 1, 2004); 2003 c 119 § 8; (2003 c 119 § 7 expired July 1, 2004); 2003 c 53 § 56; 2003 c 52 § 4; (2003 c 52 § 3 expired July 1, 2004); prior: 2002 c 340 § 2; 2002 c 324 § 2; 2002 c 290 § 7; (2002 c 290 § 2 expired July 1, 2003); 2002 c 253 § 4; 2002 c 229 § 2; 2002 c 134 § 2; 2002 c 133 § 4; prior: 2001 2nd sp.s. c 12 § 361; 2001 c 300 § 4; 2001 c 217 § 12; 2001 c 17 § 1; prior: 2001 c 310 § 4; 2001 c 287 § 3; 2001 c 224 § 3; 2001 c 222 § 24; 2001 c 207 § 3; 2000 c 225 § 5; 2000 c 119 § 17; 2000 c 66 § 2; prior: 1999 c 352 § 3; 1999 c 322 § 5; 1999 c 45 § 4; prior: 1998 c 290 § 4; 1998 c 219 § 4; 1998 c 82 § 1; 1998 c 78 § 1; prior: 1997 c 365 § 4; 1997 c 346 § 3; 1997 c 340 § 1; 1997 c 338 § 51; 1997 c 266 § 15; 1997 c 120 § 5; prior: 1996 c 302 § 6; 1996 c 205 § 3; 1996 c 36 § 2; prior: 1995 c 385 § 2; 1995 c 285 § 28; 1995 c 129 § 3 (Initiative Measure No. 159); prior: (1994 sp.s. c 7 § 510 repealed by 1995 c 129 § 19 (Initiative Measure No. 159)); 1994 c 275 § 20; 1994 c 53 § 2; prior: 1992 c 145 § 4; 1992 c 75 § 3; 1991 c 32 § 3; 1990 c 3 § 702; prior: 1989 2nd ex.s. c 1 § 3; 1989 c 412 § 3; 1989 c 405 § 1; 1989 c 271 § 102; 1989 c 99 § 1; prior: 1988 c 218 § 2; 1988 c 145 § 12; 1988 c 62 § 2; prior: 1987 c 224 § 1; 1987 c 187 § 4; 1986 c 257 § 23; 1984 c 209 § 17; 1983 c 115 § 3. Formerly RCW 9.94A.320.] Reviser’s note: *(1) RCW 72.66.060 and 72.65.070 were repealed by 2001 c 264 § 7. Cf. 2001 c 264 § 8. (2) This section was amended by 2006 c 128 § 3, 2006 c 139 § 2, 2006 c 191 § 2, 2006 c 228 § 9, and by 2006 c 277 § 6, each without reference to the other. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). (3) In keeping with the directive of 1999 c 352 § 6, the offenses within each seriousness level have been maintained in alphabetical order. Intent—Severability—Effective date—2006 c 125: See notes following RCW 9A.44.190. Severability—2004 c 176: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2004 c 176 § 8.] Effective date—2004 c 176: "Sections 2 through 6 of this act take effect July 1, 2005." [2004 c 176 § 9.] Expiration date—2004 c 94 § 2: "Section 2 of this act expires July 1, 2004." [2004 c 94 § 8.] Severability—Effective dates—2004 c 94: See notes following RCW 9.61.260. Effective date—2003 c 335 § 5: "Section 5 of this act takes effect July 1, 2004." [2003 c 335 § 8.] Expiration date—2003 c 335 § 4: "Section 4 of this act expires July 1, 2004." [2003 c 335 § 7.] Effective date—2003 c 283 § 33: "Section 33 of this act takes effect July 1, 2004." [2003 c 283 § 37.] Expiration date—2003 c 283 § 32: "Section 32 of this act expires July 1, 2004." [2003 c 283 § 36.] Severability—Part headings not law—2003 c 283: See RCW 71.32.900 and 71.32.901. Effective date—2003 c 267 § 3: "Section 3 of this act takes effect July 1, 2004." [2003 c 267 § 9.] Expiration date—2003 c 267 § 2: "Section 2 of this act expires July 1, 2004." [2003 c 267 § 8.] Effective date—2003 c 250 § 14: "Section 14 of this act takes effect July 1, 2004." [2003 c 250 § 17.] Expiration date—2003 c 250 § 13: "Section 13 of this act expires July 1, 2004." [2003 c 250 § 16.] Severability—2003 c 250: See note following RCW 48.01.080. (2006 Ed.) Sentencing Reform Act of 1981 9.94A.515 Effective date—2003 c 119 § 8: "Section 8 of this act takes effect July 1, 2004." [2003 c 119 § 10.] Contingent expiration date—1994 sp.s. c 7: See note following RCW 43.70.540. Expiration date—2003 c 119 § 7: "Section 7 of this act expires July 1, 2004." [2003 c 119 § 9.] Finding—Intent—Severability—Effective dates—1994 sp.s. c 7: See notes following RCW 43.70.540. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Short title—Effective date—1994 c 275: See notes following RCW 46.04.015. Effective date—2003 c 52 § 4: "Section 4 of this act takes effect July 1, 2004." [2003 c 52 § 6.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Expiration date—2003 c 52 § 3: "Section 3 of this act expires July 1, 2004." [2003 c 52 § 5.] Effective date—1989 2nd ex.s. c 1: See note following RCW 9A.52.025. Study and report—2002 c 324: See note following RCW 9A.56.070. Effective date—2002 c 290 §§ 7-11 and 14-23: "Sections 7 through 11 and 14 through 23 of this act take effect July 1, 2003." [2003 c 379 § 10; 2002 c 290 § 31.] Finding—Intent—1989 c 271 §§ 102, 109, and 110: See note following RCW 9A.36.050. Application—1989 c 271 §§ 101-111: See note following RCW 9.94A.510. Effective date—2002 c 290 §§ 2 and 3: "Sections 2 and 3 of this act take effect July 1, 2002, and apply to crimes committed on or after July 1, 2002." [2002 c 290 § 29.] Expiration date—2002 c 290 § 2: "Section 2 of this act expires July 1, 2003." [2003 c 379 § 9; 2002 c 290 § 30.] Intent—2002 c 290: See note following RCW 9.94A.517. Effective date—2002 c 229: See note following RCW 9A.42.100. Effective date—2002 c 134: See note following RCW 69.50.440. Effective date—2002 c 133: See note following RCW 69.55.010. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Purpose—Effective date—2001 c 310: See notes following RCW 2.48.180. Effective dates—2001 c 287: See note following RCW 9A.76.115. Purpose—Effective date—2001 c 224: See notes following RCW 9A.68.060. Severability—1989 c 271: See note following RCW 9.94A.510. Application—1989 c 99: "This act applies to crimes committed after July 1, 1989." [1989 c 99 § 2.] Effective date—1989 c 99: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1989." [1989 c 99 § 3.] Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. Effective date—Application—1987 c 224: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect on July 1, 1987. It shall apply to crimes committed on or after July 1, 1987." [1987 c 224 § 2.] Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.94A.515 Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9.94A.515 Table 2—Crimes included within each seriousness level. (Effective July 1, 2007.) Captions not law—2001 c 217: See note following RCW 9.35.005. Purpose—Effective date—2001 c 207: See notes following RCW 18.130.190. Severability—2000 c 225: See note following RCW 69.55.010. Effective date—2000 c 119 § 17: "Section 17 of this act takes effect July 1, 2000." [2000 c 119 § 30.] XVI XV Application—2000 c 119: See note following RCW 26.50.021. Alphabetization—1999 c 352: "The code reviser shall alphabetize the offenses within each seriousness level in RCW 9.94A.320, including any offenses added in the 1999 legislative session." [1999 c 352 § 6.] Application—1999 c 352 §§ 3-5: "The amendments made by sections 3 through 5, chapter 352, Laws of 1999 shall apply to offenses committed on or after July 25, 1999, except that the amendments made by chapter 352, Laws of 1999 to seriousness level V in RCW 9.94A.320 shall apply to offenses committed on or after July 1, 2000." [1999 c 352 § 7.] XIV XIII Application—Effective date—Severability—1998 c 290: See notes following RCW 69.50.401. Application—1998 c 78: "This act applies to crimes committed on or after July 1, 1998." [1998 c 78 § 2.] XII Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Findings—Intent—Severability—1997 c 266: See notes following RCW 28A.600.455. Severability—1996 c 302: See note following RCW 9A.42.010. Effective date—1995 c 285: See RCW 48.30A.900. Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. (2006 Ed.) XI TABLE 2 CRIMES INCLUDED WITHIN EACH SERIOUSNESS LEVEL Aggravated Murder 1 (RCW 10.95.020) Homicide by abuse (RCW 9A.32.055) Malicious explosion 1 (RCW 70.74.280(1)) Murder 1 (RCW 9A.32.030) Murder 2 (RCW 9A.32.050) Trafficking 1 (RCW 9A.40.100(1)) Malicious explosion 2 (RCW 70.74.280(2)) Malicious placement of an explosive 1 (RCW 70.74.270(1)) Assault 1 (RCW 9A.36.011) Assault of a Child 1 (RCW 9A.36.120) Malicious placement of an imitation device 1 (RCW 70.74.272(1)(a)) Rape 1 (RCW 9A.44.040) Rape of a Child 1 (RCW 9A.44.073) Trafficking 2 (RCW 9A.40.100(2)) Manslaughter 1 (RCW 9A.32.060) Rape 2 (RCW 9A.44.050) [Title 9 RCW—page 131] 9.94A.515 Title 9 RCW: Crimes and Punishments Rape of a Child 2 (RCW 9A.44.076) X Child Molestation 1 (RCW 9A.44.083) Indecent Liberties (with forcible compulsion) (RCW 9A.44.100(1)(a)) Kidnapping 1 (RCW 9A.40.020) Leading Organized Crime (RCW 9A.82.060(1)(a)) Malicious explosion 3 (RCW 70.74.280(3)) Sexually Violent Predator Escape (RCW 9A.76.115) IX Abandonment of Dependent Person 1 (RCW 9A.42.060) Assault of a Child 2 (RCW 9A.36.130) Criminal Mistreatment 1 (RCW 9A.42.020) Explosive devices prohibited (RCW 70.74.180) Hit and Run—Death (RCW 46.52.020(4)(a)) Homicide by Watercraft, by being under the influence of intoxicating liquor or any drug (RCW 79A.60.050) Inciting Criminal Profiteering (RCW 9A.82.060(1)(b)) Malicious placement of an explosive 2 (RCW 70.74.270(2)) Robbery 1 (RCW 9A.56.200) Sexual Exploitation (RCW 9.68A.040) Vehicular Homicide, by being under the influence of intoxicating liquor or any drug (RCW 46.61.520) VIII Arson 1 (RCW 9A.48.020) Homicide by Watercraft, by the operation of any vessel in a reckless manner (RCW 79A.60.050) Manslaughter 2 (RCW 9A.32.070) Promoting Prostitution 1 (RCW 9A.88.070) Theft of Ammonia (RCW 69.55.010) Vehicular Homicide, by the operation of any vehicle in a reckless manner (RCW 46.61.520) VII Burglary 1 (RCW 9A.52.020) Child Molestation 2 (RCW 9A.44.086) Civil Disorder Training (RCW 9A.48.120) Dealing in depictions of minor engaged in sexually explicit conduct (RCW 9.68A.050) Drive-by Shooting (RCW 9A.36.045) [Title 9 RCW—page 132] Homicide by Watercraft, by disregard for the safety of others (RCW 79A.60.050) Indecent Liberties (without forcible compulsion) (RCW 9A.44.100(1) (b) and (c)) Introducing Contraband 1 (RCW 9A.76.140) Malicious placement of an explosive 3 (RCW 70.74.270(3)) Negligently Causing Death By Use of a Signal Preemption Device (RCW 46.37.675) Sending, bringing into state depictions of minor engaged in sexually explicit conduct (RCW 9.68A.060) Unlawful Possession of a Firearm in the first degree (RCW 9.41.040(1)) Use of a Machine Gun in Commission of a Felony (RCW 9.41.225) Vehicular Homicide, by disregard for the safety of others (RCW 46.61.520) VI Bail Jumping with Murder 1 (RCW 9A.76.170(3)(a)) Bribery (RCW 9A.68.010) Incest 1 (RCW 9A.64.020(1)) Intimidating a Judge (RCW 9A.72.160) Intimidating a Juror/Witness (RCW 9A.72.110, 9A.72.130) Malicious placement of an imitation device 2 (RCW 70.74.272(1)(b)) Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct (RCW 9.68A.070) Rape of a Child 3 (RCW 9A.44.079) Theft of a Firearm (RCW 9A.56.300) Unlawful Storage of Ammonia (RCW 69.55.020) V Abandonment of Dependent Person 2 (RCW 9A.42.070) Advancing money or property for extortionate extension of credit (RCW 9A.82.030) Bail Jumping with class A Felony (RCW 9A.76.170(3)(b)) Child Molestation 3 (RCW 9A.44.089) Criminal Mistreatment 2 (RCW 9A.42.030) Custodial Sexual Misconduct 1 (RCW 9A.44.160) Domestic Violence Court Order Violation (RCW 10.99.040, 10.99.050, 26.09.300, 26.10.220, 26.26.138, 26.50.110, 26.52.070, or 74.34.145) (2006 Ed.) Sentencing Reform Act of 1981 Driving While Under the Influence (RCW 46.61.502(6)) Extortion 1 (RCW 9A.56.120) Extortionate Extension of Credit (RCW 9A.82.020) Extortionate Means to Collect Extensions of Credit (RCW 9A.82.040) Incest 2 (RCW 9A.64.020(2)) Kidnapping 2 (RCW 9A.40.030) Perjury 1 (RCW 9A.72.020) Persistent prison misbehavior (RCW 9.94.070) Physical Control of a Vehicle While Under the Influence (RCW 46.61.504(6)) Possession of a Stolen Firearm (RCW 9A.56.310) Rape 3 (RCW 9A.44.060) Rendering Criminal Assistance 1 (RCW 9A.76.070) Sexual Misconduct with a Minor 1 (RCW 9A.44.093) Sexually Violating Human Remains (RCW 9A.44.105) Stalking (RCW 9A.46.110) Taking Motor Vehicle Without Permission 1 (RCW 9A.56.070) IV Arson 2 (RCW 9A.48.030) Assault 2 (RCW 9A.36.021) Assault 3 (of a Peace Officer with a Projectile Stun Gun) (RCW 9A.36.031(1)(h)) Assault by Watercraft (RCW 79A.60.060) Bribing a Witness/Bribe Received by Witness (RCW 9A.72.090, 9A.72.100) Cheating 1 (RCW 9.46.1961) Commercial Bribery (RCW 9A.68.060) Counterfeiting (RCW 9.16.035(4)) Endangerment with a Controlled Substance (RCW 9A.42.100) Escape 1 (RCW 9A.76.110) Hit and Run—Injury (RCW 46.52.020(4)(b)) Hit and Run with Vessel—Injury Accident (RCW 79A.60.200(3)) Identity Theft 1 (RCW 9.35.020(2)) Indecent Exposure to Person Under Age Fourteen (subsequent sex offense) (RCW 9A.88.010) Influencing Outcome of Sporting Event (RCW 9A.82.070) (2006 Ed.) 9.94A.515 Malicious Harassment (RCW 9A.36.080) Residential Burglary (RCW 9A.52.025) Robbery 2 (RCW 9A.56.210) Theft of Livestock 1 (RCW 9A.56.080) Threats to Bomb (RCW 9.61.160) Trafficking in Stolen Property 1 (RCW 9A.82.050) Unlawful factoring of a credit card or payment card transaction (RCW 9A.56.290(4)(b)) Unlawful transaction of health coverage as a health care service contractor (RCW 48.44.016(3)) Unlawful transaction of health coverage as a health maintenance organization (RCW 48.46.033(3)) Unlawful transaction of insurance business (RCW 48.15.023(3)) Unlicensed practice as an insurance professional (RCW 48.17.063(3)) Use of Proceeds of Criminal Profiteering (RCW 9A.82.080 (1) and (2)) Vehicular Assault, by being under the influence of intoxicating liquor or any drug, or by the operation or driving of a vehicle in a reckless manner (RCW 46.61.522) Willful Failure to Return from Furlough (*RCW 72.66.060) III Animal Cruelty 1 (Sexual Conduct or Contact) (RCW 16.52.205(3)) Assault 3 (Except Assault 3 of a Peace Officer With a Projectile Stun Gun) (RCW 9A.36.031 except subsection (1)(h)) Assault of a Child 3 (RCW 9A.36.140) Bail Jumping with class B or C Felony (RCW 9A.76.170(3)(c)) Burglary 2 (RCW 9A.52.030) Communication with a Minor for Immoral Purposes (RCW 9.68A.090) Criminal Gang Intimidation (RCW 9A.46.120) Custodial Assault (RCW 9A.36.100) Cyberstalking (subsequent conviction or threat of death) (RCW 9.61.260(3)) Escape 2 (RCW 9A.76.120) Extortion 2 (RCW 9A.56.130) Harassment (RCW 9A.46.020) Intimidating a Public Servant (RCW 9A.76.180) [Title 9 RCW—page 133] 9.94A.515 Title 9 RCW: Crimes and Punishments Introducing Contraband 2 (RCW 9A.76.150) Malicious Injury to Railroad Property (RCW 81.60.070) Negligently Causing Substantial Bodily Harm By Use of a Signal Preemption Device (RCW 46.37.674) Organized Retail Theft 1 (RCW 9A.56.350(2)) Patronizing a Juvenile Prostitute (RCW 9.68A.100) Perjury 2 (RCW 9A.72.030) Possession of Incendiary Device (RCW 9.40.120) Possession of Machine Gun or ShortBarreled Shotgun or Rifle (RCW 9.41.190) Promoting Prostitution 2 (RCW 9A.88.080) [Retail] Theft with Extenuating Circumstances 1 (RCW 9A.56.360(2)) Securities Act violation (RCW 21.20.400) Tampering with a Witness (RCW 9A.72.120) Telephone Harassment (subsequent conviction or threat of death) (RCW 9.61.230(2)) Theft of Livestock 2 (RCW 9A.56.083) Theft with the Intent to Resell 1 (RCW 9A.56.340(2)) Trafficking in Stolen Property 2 (RCW 9A.82.055) Unlawful Imprisonment (RCW 9A.40.040) Unlawful possession of firearm in the second degree (RCW 9.41.040(2)) Vehicular Assault, by the operation or driving of a vehicle with disregard for the safety of others (RCW 46.61.522) Willful Failure to Return from Work Release (*RCW 72.65.070) II Computer Trespass 1 (RCW 9A.52.110) Counterfeiting (RCW 9.16.035(3)) Escape from Community Custody (RCW 72.09.310) Failure to Register as a Sex Offender (second or subsequent offense) (RCW 9A.44.130(10)(a)) Health Care False Claims (RCW 48.80.030) Identity Theft 2 (RCW 9.35.020(3)) [Title 9 RCW—page 134] Improperly Obtaining Financial Information (RCW 9.35.010) Malicious Mischief 1 (RCW 9A.48.070) Organized Retail Theft 2 (RCW 9A.56.350(3)) Possession of Stolen Property 1 (RCW 9A.56.150) [Retail] Theft with Extenuating Circumstances 2 (RCW 9A.56.360(3)) Theft 1 (RCW 9A.56.030) Theft of Rental, Leased, or Lease-purchased Property (valued at one thousand five hundred dollars or more) (RCW 9A.56.096(5)(a)) Theft with the Intent to Resell 2 (RCW 9A.56.340(3)) Trafficking in Insurance Claims (RCW 48.30A.015) Unlawful factoring of a credit card or payment card transaction (RCW 9A.56.290(4)(a)) Unlawful Practice of Law (RCW 2.48.180) Unlicensed Practice of a Profession or Business (RCW 18.130.190(7)) Voyeurism (RCW 9A.44.115) I Attempting to Elude a Pursuing Police Vehicle (RCW 46.61.024) False Verification for Welfare (RCW 74.08.055) Forgery (RCW 9A.60.020) Fraudulent Creation or Revocation of a Mental Health Advance Directive (RCW 9A.60.060) Malicious Mischief 2 (RCW 9A.48.080) Mineral Trespass (RCW 78.44.330) Possession of Stolen Property 2 (RCW 9A.56.160) Reckless Burning 1 (RCW 9A.48.040) Taking Motor Vehicle Without Permission 2 (RCW 9A.56.075) Theft 2 (RCW 9A.56.040) Theft of Rental, Leased, or Lease-purchased Property (valued at two hundred fifty dollars or more but less than one thousand five hundred dollars) (RCW 9A.56.096(5)(b)) Transaction of insurance business beyond the scope of licensure (RCW 48.17.063(4)) Unlawful Issuance of Checks or Drafts (RCW 9A.56.060) Unlawful Possession of Fictitious Identification (RCW 9A.56.320) (2006 Ed.) Sentencing Reform Act of 1981 9.94A.515 Unlawful Possession of Instruments of Financial Fraud (RCW 9A.56.320) Unlawful Possession of Payment Instruments (RCW 9A.56.320) Unlawful Possession of a Personal Identification Device (RCW 9A.56.320) Unlawful Production of Payment Instruments (RCW 9A.56.320) Unlawful Trafficking in Food Stamps (RCW 9.91.142) Unlawful Use of Food Stamps (RCW 9.91.144) Vehicle Prowl 1 (RCW 9A.52.095) Effective date—2004 c 176: "Sections 2 through 6 of this act take effect July 1, 2005." [2004 c 176 § 9.] [2006 c 277 § 6; 2006 c 228 § 9; 2006 c 191 § 2; 2006 c 139 § 2; 2006 c 128 § 3; 2006 c 73 § 12. Prior: (2006 c 125 § 5 repealed by 2006 c 126 § 7); 2005 c 458 § 2; 2005 c 183 § 9; prior: 2004 c 176 § 2; 2004 c 94 § 3; (2004 c 94 § 2 expired July 1, 2004); prior: 2003 c 335 § 5; (2003 c 335 § 4 expired July 1, 2004); 2003 c 283 § 33; (2003 c 283 § 32 expired July 1, 2004); 2003 c 267 § 3; (2003 c 267 § 2 expired July 1, 2004); 2003 c 250 § 14; (2003 c 250 § 13 expired July 1, 2004); 2003 c 119 § 8; (2003 c 119 § 7 expired July 1, 2004); 2003 c 53 § 56; 2003 c 52 § 4; (2003 c 52 § 3 expired July 1, 2004); prior: 2002 c 340 § 2; 2002 c 324 § 2; 2002 c 290 § 7; (2002 c 290 § 2 expired July 1, 2003); 2002 c 253 § 4; 2002 c 229 § 2; 2002 c 134 § 2; 2002 c 133 § 4; prior: 2001 2nd sp.s. c 12 § 361; 2001 c 300 § 4; 2001 c 217 § 12; 2001 c 17 § 1; prior: 2001 c 310 § 4; 2001 c 287 § 3; 2001 c 224 § 3; 2001 c 222 § 24; 2001 c 207 § 3; 2000 c 225 § 5; 2000 c 119 § 17; 2000 c 66 § 2; prior: 1999 c 352 § 3; 1999 c 322 § 5; 1999 c 45 § 4; prior: 1998 c 290 § 4; 1998 c 219 § 4; 1998 c 82 § 1; 1998 c 78 § 1; prior: 1997 c 365 § 4; 1997 c 346 § 3; 1997 c 340 § 1; 1997 c 338 § 51; 1997 c 266 § 15; 1997 c 120 § 5; prior: 1996 c 302 § 6; 1996 c 205 § 3; 1996 c 36 § 2; prior: 1995 c 385 § 2; 1995 c 285 § 28; 1995 c 129 § 3 (Initiative Measure No. 159); prior: (1994 sp.s. c 7 § 510 repealed by 1995 c 129 § 19 (Initiative Measure No. 159)); 1994 c 275 § 20; 1994 c 53 § 2; prior: 1992 c 145 § 4; 1992 c 75 § 3; 1991 c 32 § 3; 1990 c 3 § 702; prior: 1989 2nd ex.s. c 1 § 3; 1989 c 412 § 3; 1989 c 405 § 1; 1989 c 271 § 102; 1989 c 99 § 1; prior: 1988 c 218 § 2; 1988 c 145 § 12; 1988 c 62 § 2; prior: 1987 c 224 § 1; 1987 c 187 § 4; 1986 c 257 § 23; 1984 c 209 § 17; 1983 c 115 § 3. Formerly RCW 9.94A.320.] Effective date—2003 c 267 § 3: "Section 3 of this act takes effect July 1, 2004." [2003 c 267 § 9.] Reviser’s note: *(1) RCW 72.66.060 and 72.65.070 were repealed by 2001 c 264 § 7. Cf. 2001 c 264 § 8. (2) This section was amended by 2006 c 73 § 12, 2006 c 128 § 3, 2006 c 139 § 2, 2006 c 191 § 2, 2006 c 228 § 9, and by 2006 c 277 § 6, each without reference to the other. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). (3) In keeping with the directive of 1999 c 352 § 6, the offenses within each seriousness level have been maintained in alphabetical order. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Intent—Severability—Effective date—2006 c 125: See notes following RCW 9A.44.190. Effective date—2006 c 73: See note following RCW 46.61.502. Severability—2004 c 176: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2004 c 176 § 8.] (2006 Ed.) Expiration date—2004 c 94 § 2: "Section 2 of this act expires July 1, 2004." [2004 c 94 § 8.] Severability—Effective dates—2004 c 94: See notes following RCW 9.61.260. Effective date—2003 c 335 § 5: "Section 5 of this act takes effect July 1, 2004." [2003 c 335 § 8.] Expiration date—2003 c 335 § 4: "Section 4 of this act expires July 1, 2004." [2003 c 335 § 7.] Effective date—2003 c 283 § 33: "Section 33 of this act takes effect July 1, 2004." [2003 c 283 § 37.] Expiration date—2003 c 283 § 32: "Section 32 of this act expires July 1, 2004." [2003 c 283 § 36.] Severability—Part headings not law—2003 c 283: See RCW 71.32.900 and 71.32.901. Expiration date—2003 c 267 § 2: "Section 2 of this act expires July 1, 2004." [2003 c 267 § 8.] Effective date—2003 c 250 § 14: "Section 14 of this act takes effect July 1, 2004." [2003 c 250 § 17.] Expiration date—2003 c 250 § 13: "Section 13 of this act expires July 1, 2004." [2003 c 250 § 16.] Severability—2003 c 250: See note following RCW 48.01.080. Effective date—2003 c 119 § 8: "Section 8 of this act takes effect July 1, 2004." [2003 c 119 § 10.] Expiration date—2003 c 119 § 7: "Section 7 of this act expires July 1, 2004." [2003 c 119 § 9.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Effective date—2003 c 52 § 4: "Section 4 of this act takes effect July 1, 2004." [2003 c 52 § 6.] Expiration date—2003 c 52 § 3: "Section 3 of this act expires July 1, 2004." [2003 c 52 § 5.] Study and report—2002 c 324: See note following RCW 9A.56.070. Effective date—2002 c 290 §§ 7-11 and 14-23: "Sections 7 through 11 and 14 through 23 of this act take effect July 1, 2003." [2003 c 379 § 10; 2002 c 290 § 31.] Effective date—2002 c 290 §§ 2 and 3: "Sections 2 and 3 of this act take effect July 1, 2002, and apply to crimes committed on or after July 1, 2002." [2002 c 290 § 29.] Expiration date—2002 c 290 § 2: "Section 2 of this act expires July 1, 2003." [2003 c 379 § 9; 2002 c 290 § 30.] Intent—2002 c 290: See note following RCW 9.94A.517. Effective date—2002 c 229: See note following RCW 9A.42.100. Effective date—2002 c 134: See note following RCW 69.50.440. Effective date—2002 c 133: See note following RCW 69.55.010. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Purpose—Effective date—2001 c 310: See notes following RCW 2.48.180. Effective dates—2001 c 287: See note following RCW 9A.76.115. Purpose—Effective date—2001 c 224: See notes following RCW 9A.68.060. Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. Captions not law—2001 c 217: See note following RCW 9.35.005. Purpose—Effective date—2001 c 207: See notes following RCW 18.130.190. Severability—2000 c 225: See note following RCW 69.55.010. [Title 9 RCW—page 135] 9.94A.517 Title 9 RCW: Crimes and Punishments Effective date—2000 c 119 § 17: "Section 17 of this act takes effect July 1, 2000." [2000 c 119 § 30.] Application—2000 c 119: See note following RCW 26.50.021. Alphabetization—1999 c 352: "The code reviser shall alphabetize the offenses within each seriousness level in RCW 9.94A.320, including any offenses added in the 1999 legislative session." [1999 c 352 § 6.] Application—1999 c 352 §§ 3-5: "The amendments made by sections 3 through 5, chapter 352, Laws of 1999 shall apply to offenses committed on or after July 25, 1999, except that the amendments made by chapter 352, Laws of 1999 to seriousness level V in RCW 9.94A.320 shall apply to offenses committed on or after July 1, 2000." [1999 c 352 § 7.] Application—Effective date—Severability—1998 c 290: See notes following RCW 69.50.401. Application—1998 c 78: "This act applies to crimes committed on or after July 1, 1998." [1998 c 78 § 2.] Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Findings—Intent—Severability—1997 c 266: See notes following RCW 28A.600.455. Severability—1996 c 302: See note following RCW 9A.42.010. Effective date—1995 c 285: See RCW 48.30A.900. Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. Contingent expiration date—1994 sp.s. c 7: See note following RCW 43.70.540. Finding—Intent—Severability—Effective dates—1994 sp.s. c 7: See notes following RCW 43.70.540. Short title—Effective date—1994 c 275: See notes following RCW 46.04.015. 9.94A.517 9.94A.517 Table 3—Drug offense sentencing grid. (1) TABLE 3 DRUG OFFENSE SENTENCING GRID Seriousness Level III II I Offender Score 0 to 2 51 to 68 months 12+ to 20 months 0 to 6 months Offender Score 3 to 5 68+ to 100 months 20+ to 60 months 6+ to 18 months Offender Score 6 to 9 or more 100+ to 120 months 60+ to 120 months 12+ to 24 months References to months represent the standard sentence ranges. 12+ equals one year and one day. (2) The court may utilize any other sanctions or alternatives as authorized by law, including but not limited to the special drug offender sentencing alternative under RCW 9.94A.660 or drug court under RCW 2.28.170. (3) Nothing in this section creates an entitlement for a criminal defendant to any specific sanction, alternative, sentence option, or substance abuse treatment. [2002 c 290 § 8.] Intent—2002 c 290: "It is the intent of the legislature to increase the use of effective substance abuse treatment for defendants and offenders in Washington in order to make frugal use of state and local resources, thus reducing recidivism and increasing the likelihood that defendants and offenders will become productive and law-abiding persons. The legislature recognizes that substance abuse treatment can be effective if it is well planned and involves adequate monitoring, and that substance abuse and addiction is a public safety and public health issue that must be more effectively addressed if recidivism is to be reduced. The legislature intends that sentences for drug offenses accurately reflect the adverse impact of substance abuse and addiction on public safety, that the public must have protection from violent offenders, and further intends that such sentences be based on policies that are supported by research and public policy goals established by the legislature." [2002 c 290 § 1.] Effective date—1989 2nd ex.s. c 1: See note following RCW 9A.52.025. Effectiveness report: "The Washington state institute for public policy shall evaluate the effectiveness of the drug offense sentencing grid in reducing recidivism and its financial impact. The Washington state institute for public policy shall present a preliminary report to the legislature by December 1, 2007, and shall present a final report regarding long-term recidivism and its financial impacts to the legislature by December 1, 2008." [2002 c 290 § 24.] Finding—Intent—1989 c 271 §§ 102, 109, and 110: See note following RCW 9A.36.050. Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Application—1989 c 271 §§ 101-111: See note following RCW 9.94A.510. Severability—1989 c 271: See note following RCW 9.94A.510. Application—1989 c 99: "This act applies to crimes committed after July 1, 1989." [1989 c 99 § 2.] Effective date—1989 c 99: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1989." [1989 c 99 § 3.] Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. Effective date—Application—1987 c 224: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect on July 1, 1987. It shall apply to crimes committed on or after July 1, 1987." [1987 c 224 § 2.] Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. [Title 9 RCW—page 136] 9.94A.518 9.94A.518 Table 4—Drug offenses seriousness level. TABLE 4 DRUG OFFENSES INCLUDED WITHIN EACH SERIOUSNESS LEVEL III Any felony offense under chapter 69.50 RCW with a deadly weapon special verdict under RCW 9.94A.602 Controlled Substance Homicide (RCW 69.50.415) Delivery of imitation controlled substance by person eighteen or over to person under eighteen (RCW 69.52.030(2)) Involving a minor in drug dealing (RCW 69.50.4015) Manufacture of methamphetamine (RCW 69.50.401(2)(b)) (2006 Ed.) Sentencing Reform Act of 1981 Over 18 and deliver heroin, methamphetamine, a narcotic from Schedule I or II, or flunitrazepam from Schedule IV to someone under 18 (RCW 69.50.406) Over 18 and deliver narcotic from Schedule III, IV, or V or a nonnarcotic, except flunitrazepam or methamphetamine, from Schedule I-V to someone under 18 and 3 years junior (RCW 69.50.406) Possession of Ephedrine, Pseudoephedrine, or Anhydrous Ammonia with intent to manufacture methamphetamine * (RCW 69.50.440) Selling for profit (controlled or counterfeit) any controlled substance (RCW 69.50.410) II Create, deliver, or possess a counterfeit controlled substance (RCW 69.50.4011) Deliver or possess with intent to deliver methamphetamine (RCW 69.50.401(2)(b)) Delivery of a material in lieu of a controlled substance (RCW 69.50.4012) Maintaining a Dwelling or Place for Controlled Substances (RCW 69.50.402(1)(f)) Manufacture, deliver, or possess with intent to deliver amphetamine (RCW 69.50.401(2)(b)) Manufacture, deliver, or possess with intent to deliver narcotics from Schedule I or II or flunitrazepam from Schedule IV (RCW 69.50.401(2)(a)) Manufacture, deliver, or possess with intent to deliver narcotics from Schedule III, IV, or V or nonnarcotics from Schedule I-V (except marijuana, amphetamine, methamphetamines, or flunitrazepam) (RCW 69.50.401(2) (c) through (e)) Manufacture, distribute, or possess with intent to distribute an imitation controlled substance (RCW 69.52.030(1)) I Forged Prescription (RCW 69.41.020) Forged Prescription for a Controlled Substance (RCW 69.50.403) Manufacture, deliver, or possess with intent to deliver marijuana (RCW 69.50.401(2)(c)) (2006 Ed.) 9.94A.525 Possess Controlled Substance that is a Narcotic from Schedule III, IV, or V or Nonnarcotic from Schedule I-V (RCW 69.50.4013) Possession of Controlled Substance that is either heroin or narcotics from Schedule I or II (RCW 69.50.4013) Unlawful Use of Building for Drug Purposes (RCW 69.53.010) [2003 c 53 § 57; 2002 c 290 § 9.] *Reviser’s note: cf. 2002 c 134 § 1. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. 9.94A.520 9.94A.520 Offense seriousness level. The offense seriousness level is determined by the offense of conviction. [1990 c 3 § 703; 1983 c 115 § 6. Formerly RCW 9.94A.350.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 9.94A.525 9.94A.525 Offender score. (Effective until July 1, 2007.) The offender score is measured on the horizontal axis of the sentencing grid. The offender score rules are as follows: The offender score is the sum of points accrued under this section rounded down to the nearest whole number. (1) A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed. Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed "other current offenses" within the meaning of RCW 9.94A.589. (2) Class A and sex prior felony convictions shall always be included in the offender score. Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction. Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction. Serious traffic convictions shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender spent five years in the community without committing any crime that subsequently results in a conviction. This subsection applies to both adult and juvenile prior convictions. [Title 9 RCW—page 137] 9.94A.525 Title 9 RCW: Crimes and Punishments (3) Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. Federal convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. If there is no clearly comparable offense under Washington law or the offense is one that is usually considered subject to exclusive federal jurisdiction, the offense shall be scored as a class C felony equivalent if it was a felony under the relevant federal statute. (4) Score prior convictions for felony anticipatory offenses (attempts, criminal solicitations, and criminal conspiracies) the same as if they were convictions for completed offenses. (5)(a) In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except: (i) Prior offenses which were found, under RCW 9.94A.589(1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score. The current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently or prior juvenile offenses for which sentences were served consecutively, whether those offenses shall be counted as one offense or as separate offenses using the "same criminal conduct" analysis found in RCW 9.94A.589(1)(a), and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used. The current sentencing court may presume that such other prior offenses were not the same criminal conduct from sentences imposed on separate dates, or in separate counties or jurisdictions, or in separate complaints, indictments, or informations; (ii) In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense. Use the conviction for the offense that yields the highest offender score. (b) As used in this subsection (5), "served concurrently" means that: (i) The latter sentence was imposed with specific reference to the former; (ii) the concurrent relationship of the sentences was judicially imposed; and (iii) the concurrent timing of the sentences was not the result of a probation or parole revocation on the former offense. (6) If the present conviction is one of the anticipatory offenses of criminal attempt, solicitation, or conspiracy, count each prior conviction as if the present conviction were for a completed offense. When these convictions are used as criminal history, score them the same as a completed crime. (7) If the present conviction is for a nonviolent offense and not covered by subsection (11) or (12) of this section, count one point for each adult prior felony conviction and one point for each juvenile prior violent felony conviction and 1/2 point for each juvenile prior nonviolent felony conviction. (8) If the present conviction is for a violent offense and not covered in subsection (9), (10), (11), or (12) of this section, count two points for each prior adult and juvenile violent felony conviction, one point for each prior adult nonviolent felony conviction, and 1/2 point for each prior juvenile nonviolent felony conviction. [Title 9 RCW—page 138] (9) If the present conviction is for a serious violent offense, count three points for prior adult and juvenile convictions for crimes in this category, two points for each prior adult and juvenile violent conviction (not already counted), one point for each prior adult nonviolent felony conviction, and 1/2 point for each prior juvenile nonviolent felony conviction. (10) If the present conviction is for Burglary 1, count prior convictions as in subsection (8) of this section; however count two points for each prior adult Burglary 2 or residential burglary conviction, and one point for each prior juvenile Burglary 2 or residential burglary conviction. (11) If the present conviction is for a felony traffic offense count two points for each adult or juvenile prior conviction for Vehicular Homicide or Vehicular Assault; for each felony offense count one point for each adult and 1/2 point for each juvenile prior conviction; for each serious traffic offense, other than those used for an enhancement pursuant to RCW 46.61.520(2), count one point for each adult and 1/2 point for each juvenile prior conviction. (12) If the present conviction is for manufacture of methamphetamine count three points for each adult prior manufacture of methamphetamine conviction and two points for each juvenile manufacture of methamphetamine offense. If the present conviction is for a drug offense and the offender has a criminal history that includes a sex offense or serious violent offense, count three points for each adult prior felony drug offense conviction and two points for each juvenile drug offense. All other adult and juvenile felonies are scored as in subsection (8) of this section if the current drug offense is violent, or as in subsection (7) of this section if the current drug offense is nonviolent. (13) If the present conviction is for Escape from Community Custody, RCW 72.09.310, count only prior escape convictions in the offender score. Count adult prior escape convictions as one point and juvenile prior escape convictions as 1/2 point. (14) If the present conviction is for Escape 1, RCW 9A.76.110, or Escape 2, RCW 9A.76.120, count adult prior convictions as one point and juvenile prior convictions as 1/2 point. (15) If the present conviction is for Burglary 2 or residential burglary, count priors as in subsection (7) of this section; however, count two points for each adult and juvenile prior Burglary 1 conviction, two points for each adult prior Burglary 2 or residential burglary conviction, and one point for each juvenile prior Burglary 2 or residential burglary conviction. (16) If the present conviction is for a sex offense, count priors as in subsections (7) through (15) of this section; however count three points for each adult and juvenile prior sex offense conviction. (17) If the present conviction is for failure to register as a sex offender under RCW 9A.44.130(10), count priors as in subsections (7) through (15) of this section; however count three points for each adult and juvenile prior sex offense conviction, excluding prior convictions for failure to register as a sex offender under RCW 9A.44.130(10), which shall count as one point. (2006 Ed.) Sentencing Reform Act of 1981 (18) If the present conviction is for an offense committed while the offender was under community placement, add one point. (19) The fact that a prior conviction was not included in an offender’s offender score or criminal history at a previous sentencing shall have no bearing on whether it is included in the criminal history or offender score for the current offense. Accordingly, prior convictions that were not counted in the offender score or included in criminal history under repealed or previous versions of the sentencing reform act shall be included in criminal history and shall count in the offender score if the current version of the sentencing reform act requires including or counting those convictions. [2006 c 128 § 6. Prior: 2002 c 290 § 3; 2002 c 107 § 3; 2001 c 264 § 5; 2000 c 28 § 15; prior: 1999 c 352 § 10; 1999 c 331 § 1; 1998 c 211 § 4; 1997 c 338 § 5; prior: 1995 c 316 § 1; 1995 c 101 § 1; prior: 1992 c 145 § 10; 1992 c 75 § 4; 1990 c 3 § 706; 1989 c 271 § 103; prior: 1988 c 157 § 3; 1988 c 153 § 12; 1987 c 456 § 4; 1986 c 257 § 25; 1984 c 209 § 19; 1983 c 115 § 7. Formerly RCW 9.94A.360.] Effective date—2002 c 290 §§ 2 and 3: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Finding—Application—2002 c 107: See notes following RCW 9.94A.030. Effective date—2001 c 264: See note following RCW 9A.76.110. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Effective date—1999 c 331: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 14, 1999]." [1999 c 331 § 5.] Effective date—1998 c 211: See note following RCW 46.61.5055. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Application—1989 c 271 §§ 101-111: See note following RCW 9.94A.510. Severability—1989 c 271: See note following RCW 9.94A.510. Application—1988 c 157: See note following RCW 9.94A.030. Effective date—Application of increased sanctions—1988 c 153: See notes following RCW 9.94A.030. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.94A.525 9.94A.525 Offender score. (Effective July 1, 2007.) The offender score is measured on the horizontal axis of the sentencing grid. The offender score rules are as follows: The offender score is the sum of points accrued under this section rounded down to the nearest whole number. (1) A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed. Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed "other current offenses" within the meaning of RCW 9.94A.589. (2006 Ed.) 9.94A.525 (2)(a) Class A and sex prior felony convictions shall always be included in the offender score. (b) Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction. (c) Except as provided in (e) of this subsection, class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction. (d) Except as provided in (e) of this subsection, serious traffic convictions shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender spent five years in the community without committing any crime that subsequently results in a conviction. (e) If the present conviction is felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)), prior convictions of felony driving while under the influence of intoxicating liquor or any drug, felony physical control of a vehicle while under the influence of intoxicating liquor or any drug, and serious traffic offenses shall be included in the offender score if: (i) The prior convictions were committed within five years since the last date of release from confinement (including full-time residential treatment) or entry of judgment and sentence; or (ii) the prior convictions would be considered "prior offenses within ten years" as defined in RCW 46.61.5055. (f) This subsection applies to both adult and juvenile prior convictions. (3) Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. Federal convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law. If there is no clearly comparable offense under Washington law or the offense is one that is usually considered subject to exclusive federal jurisdiction, the offense shall be scored as a class C felony equivalent if it was a felony under the relevant federal statute. (4) Score prior convictions for felony anticipatory offenses (attempts, criminal solicitations, and criminal conspiracies) the same as if they were convictions for completed offenses. (5)(a) In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except: (i) Prior offenses which were found, under RCW 9.94A.589(1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score. The current sentencing court shall [Title 9 RCW—page 139] 9.94A.525 Title 9 RCW: Crimes and Punishments determine with respect to other prior adult offenses for which sentences were served concurrently or prior juvenile offenses for which sentences were served consecutively, whether those offenses shall be counted as one offense or as separate offenses using the "same criminal conduct" analysis found in RCW 9.94A.589(1)(a), and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used. The current sentencing court may presume that such other prior offenses were not the same criminal conduct from sentences imposed on separate dates, or in separate counties or jurisdictions, or in separate complaints, indictments, or informations; (ii) In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense. Use the conviction for the offense that yields the highest offender score. (b) As used in this subsection (5), "served concurrently" means that: (i) The latter sentence was imposed with specific reference to the former; (ii) the concurrent relationship of the sentences was judicially imposed; and (iii) the concurrent timing of the sentences was not the result of a probation or parole revocation on the former offense. (6) If the present conviction is one of the anticipatory offenses of criminal attempt, solicitation, or conspiracy, count each prior conviction as if the present conviction were for a completed offense. When these convictions are used as criminal history, score them the same as a completed crime. (7) If the present conviction is for a nonviolent offense and not covered by subsection (11) or (12) of this section, count one point for each adult prior felony conviction and one point for each juvenile prior violent felony conviction and 1/2 point for each juvenile prior nonviolent felony conviction. (8) If the present conviction is for a violent offense and not covered in subsection (9), (10), (11), or (12) of this section, count two points for each prior adult and juvenile violent felony conviction, one point for each prior adult nonviolent felony conviction, and 1/2 point for each prior juvenile nonviolent felony conviction. (9) If the present conviction is for a serious violent offense, count three points for prior adult and juvenile convictions for crimes in this category, two points for each prior adult and juvenile violent conviction (not already counted), one point for each prior adult nonviolent felony conviction, and 1/2 point for each prior juvenile nonviolent felony conviction. (10) If the present conviction is for Burglary 1, count prior convictions as in subsection (8) of this section; however count two points for each prior adult Burglary 2 or residential burglary conviction, and one point for each prior juvenile Burglary 2 or residential burglary conviction. (11) If the present conviction is for a felony traffic offense count two points for each adult or juvenile prior conviction for Vehicular Homicide or Vehicular Assault; for each felony offense count one point for each adult and 1/2 point for each juvenile prior conviction; for each serious traffic offense, other than those used for an enhancement pursuant to RCW 46.61.520(2), count one point for each adult and 1/2 point for each juvenile prior conviction. [Title 9 RCW—page 140] (12) If the present conviction is for manufacture of methamphetamine count three points for each adult prior manufacture of methamphetamine conviction and two points for each juvenile manufacture of methamphetamine offense. If the present conviction is for a drug offense and the offender has a criminal history that includes a sex offense or serious violent offense, count three points for each adult prior felony drug offense conviction and two points for each juvenile drug offense. All other adult and juvenile felonies are scored as in subsection (8) of this section if the current drug offense is violent, or as in subsection (7) of this section if the current drug offense is nonviolent. (13) If the present conviction is for Escape from Community Custody, RCW 72.09.310, count only prior escape convictions in the offender score. Count adult prior escape convictions as one point and juvenile prior escape convictions as 1/2 point. (14) If the present conviction is for Escape 1, RCW 9A.76.110, or Escape 2, RCW 9A.76.120, count adult prior convictions as one point and juvenile prior convictions as 1/2 point. (15) If the present conviction is for Burglary 2 or residential burglary, count priors as in subsection (7) of this section; however, count two points for each adult and juvenile prior Burglary 1 conviction, two points for each adult prior Burglary 2 or residential burglary conviction, and one point for each juvenile prior Burglary 2 or residential burglary conviction. (16) If the present conviction is for a sex offense, count priors as in subsections (7) through (15) of this section; however count three points for each adult and juvenile prior sex offense conviction. (17) If the present conviction is for failure to register as a sex offender under RCW 9A.44.130(10), count priors as in subsections (7) through (15) of this section; however count three points for each adult and juvenile prior sex offense conviction, excluding prior convictions for failure to register as a sex offender under RCW 9A.44.130(10), which shall count as one point. (18) If the present conviction is for an offense committed while the offender was under community placement, add one point. (19) The fact that a prior conviction was not included in an offender’s offender score or criminal history at a previous sentencing shall have no bearing on whether it is included in the criminal history or offender score for the current offense. Accordingly, prior convictions that were not counted in the offender score or included in criminal history under repealed or previous versions of the sentencing reform act shall be included in criminal history and shall count in the offender score if the current version of the sentencing reform act requires including or counting those convictions. [2006 c 128 § 6; 2006 c 73 § 7. Prior: 2002 c 290 § 3; 2002 c 107 § 3; 2001 c 264 § 5; 2000 c 28 § 15; prior: 1999 c 352 § 10; 1999 c 331 § 1; 1998 c 211 § 4; 1997 c 338 § 5; prior: 1995 c 316 § 1; 1995 c 101 § 1; prior: 1992 c 145 § 10; 1992 c 75 § 4; 1990 c 3 § 706; 1989 c 271 § 103; prior: 1988 c 157 § 3; 1988 c 153 § 12; 1987 c 456 § 4; 1986 c 257 § 25; 1984 c 209 § 19; 1983 c 115 § 7. Formerly RCW 9.94A.360.] Reviser’s note: This section was amended by 2006 c 73 § 7 and by 2006 c 128 § 6, each without reference to the other. Both amendments are (2006 Ed.) Sentencing Reform Act of 1981 incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—2006 c 73: See note following RCW 46.61.502. Effective date—2002 c 290 §§ 2 and 3: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Finding—Application—2002 c 107: See notes following RCW 9.94A.030. Effective date—2001 c 264: See note following RCW 9A.76.110. 9.94A.533 c 131 § 1; 1986 c 257 § 26; 1984 c 209 § 20; 1983 c 115 § 8. Formerly RCW 9.94A.370.] *Reviser’s note: RCW 9.94A.535 was amended by 2005 c 68 § 3, changing subsection (2) to subsection (3). Intent—Severability—Effective date—2005 c 68: See notes following RCW 9.94A.537. Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Effective date—1999 c 331: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 14, 1999]." [1999 c 331 § 5.] Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1998 c 211: See note following RCW 46.61.5055. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Application—1989 c 271 §§ 101-111: See note following RCW 9.94A.510. Severability—1989 c 271: See note following RCW 9.94A.510. Application—1988 c 157: See note following RCW 9.94A.030. Effective date—Application of increased sanctions—1988 c 153: See notes following RCW 9.94A.030. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.94A.530 9.94A.530 Standard sentence range. (1) The intersection of the column defined by the offender score and the row defined by the offense seriousness score determines the standard sentence range (see RCW 9.94A.510, (Table 1) and RCW 9.94A.517, (Table 3)). The additional time for deadly weapon findings or for other adjustments as specified in RCW 9.94A.533 shall be added to the entire standard sentence range. The court may impose any sentence within the range that it deems appropriate. All standard sentence ranges are expressed in terms of total confinement. (2) In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. Acknowledgement includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence, except as otherwise specified in RCW 9.94A.537. (3) In determining any sentence above the standard sentence range, the court shall follow the procedures set forth in RCW 9.94A.537. Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the standard sentence range except upon stipulation or when specifically provided for in *RCW 9.94A.535(2) (d), (e), (g), and (h). [2005 c 68 § 2; 2002 c 290 § 18; 2000 c 28 § 12; 1999 c 143 § 16; 1996 c 248 § 1; 1989 c 124 § 2; 1987 (2006 Ed.) Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.94A.533 9.94A.533 Adjustments to standard sentences. (1) The provisions of this section apply to the standard sentence ranges determined by RCW 9.94A.510 or 9.94A.517. (2) For persons convicted of the anticipatory offenses of criminal attempt, solicitation, or conspiracy under chapter 9A.28 RCW, the standard sentence range is determined by locating the sentencing grid sentence range defined by the appropriate offender score and the seriousness level of the completed crime, and multiplying the range by seventy-five percent. (3) The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010 and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any firearm enhancements based on the classification of the completed felony crime. If the offender is being sentenced for more than one offense, the firearm enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a firearm enhancement. If the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010 and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection as eligible for any firearm enhancements, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section based on the felony crime of conviction as classified under RCW 9A.28.020: (a) Five years for any felony defined under any law as a class A felony or with a statutory maximum sentence of at least twenty years, or both, and not covered under (f) of this subsection; (b) Three years for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both, and not covered under (f) of this subsection; (c) Eighteen months for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both, and not covered under (f) of this subsection; (d) If the offender is being sentenced for any firearm enhancements under (a), (b), and/or (c) of this subsection and the offender has previously been sentenced for any deadly weapon enhancements after July 23, 1995, under (a), (b), and/or (c) of this subsection or subsection (4)(a), (b), and/or [Title 9 RCW—page 141] 9.94A.533 Title 9 RCW: Crimes and Punishments (c) of this section, or both, all firearm enhancements under this subsection shall be twice the amount of the enhancement listed; (e) Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter. However, whether or not a mandatory minimum term has expired, an offender serving a sentence under this subsection may be granted an extraordinary medical placement when authorized under RCW 9.94A.728(4); (f) The firearm enhancements in this section shall apply to all felony crimes except the following: Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony; (g) If the standard sentence range under this section exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender. If the addition of a firearm enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced. (4) The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a deadly weapon other than a firearm as defined in RCW 9.41.010 and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any deadly weapon enhancements based on the classification of the completed felony crime. If the offender is being sentenced for more than one offense, the deadly weapon enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a deadly weapon enhancement. If the offender or an accomplice was armed with a deadly weapon other than a firearm as defined in RCW 9.41.010 and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection as eligible for any deadly weapon enhancements, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section based on the felony crime of conviction as classified under RCW 9A.28.020: (a) Two years for any felony defined under any law as a class A felony or with a statutory maximum sentence of at least twenty years, or both, and not covered under (f) of this subsection; (b) One year for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both, and not covered under (f) of this subsection; (c) Six months for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both, and not covered under (f) of this subsection; (d) If the offender is being sentenced under (a), (b), and/or (c) of this subsection for any deadly weapon enhancements and the offender has previously been sentenced for any deadly weapon enhancements after July 23, 1995, under (a), (b), and/or (c) of this subsection or subsection (3)(a), (b), [Title 9 RCW—page 142] and/or (c) of this section, or both, all deadly weapon enhancements under this subsection shall be twice the amount of the enhancement listed; (e) Notwithstanding any other provision of law, all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter. However, whether or not a mandatory minimum term has expired, an offender serving a sentence under this subsection may be granted an extraordinary medical placement when authorized under RCW 9.94A.728(4); (f) The deadly weapon enhancements in this section shall apply to all felony crimes except the following: Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony; (g) If the standard sentence range under this section exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender. If the addition of a deadly weapon enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced. (5) The following additional times shall be added to the standard sentence range if the offender or an accomplice committed the offense while in a county jail or state correctional facility and the offender is being sentenced for one of the crimes listed in this subsection. If the offender or an accomplice committed one of the crimes listed in this subsection while in a county jail or state correctional facility, and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section: (a) Eighteen months for offenses committed under RCW 69.50.401(2) (a) or (b) or 69.50.410; (b) Fifteen months for offenses committed under RCW 69.50.401(2) (c), (d), or (e); (c) Twelve months for offenses committed under RCW 69.50.4013. For the purposes of this subsection, all of the real property of a state correctional facility or county jail shall be deemed to be part of that facility or county jail. (6) An additional twenty-four months shall be added to the standard sentence range for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435 or 9.94A.605. All enhancements under this subsection shall run consecutively to all other sentencing provisions, for all offenses sentenced under this chapter. (7) An additional two years shall be added to the standard sentence range for vehicular homicide committed while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502 for each prior offense as defined in RCW 46.61.5055. (2006 Ed.) Sentencing Reform Act of 1981 (8)(a) The following additional times shall be added to the standard sentence range for felony crimes committed on or after July 1, 2006, if the offense was committed with sexual motivation, as that term is defined in RCW 9.94A.030. If the offender is being sentenced for more than one offense, the sexual motivation enhancement must be added to the total period of total confinement for all offenses, regardless of which underlying offense is subject to a sexual motivation enhancement. If the offender committed the offense with sexual motivation and the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section based on the felony crime of conviction as classified under RCW 9A.28.020: (i) Two years for any felony defined under the law as a class A felony or with a statutory maximum sentence of at least twenty years, or both; (ii) Eighteen months for any felony defined under any law as a class B felony or with a statutory maximum sentence of ten years, or both; (iii) One year for any felony defined under any law as a class C felony or with a statutory maximum sentence of five years, or both; (iv) If the offender is being sentenced for any sexual motivation enhancements under (i), (ii), and/or (iii) of this subsection and the offender has previously been sentenced for any sexual motivation enhancements on or after July 1, 2006, under (i), (ii), and/or (iii) of this subsection, all sexual motivation enhancements under this subsection shall be twice the amount of the enhancement listed; (b) Notwithstanding any other provision of law, all sexual motivation enhancements under this subsection are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other sexual motivation enhancements, for all offenses sentenced under this chapter. However, whether or not a mandatory minimum term has expired, an offender serving a sentence under this subsection may be granted an extraordinary medical placement when authorized under RCW 9.94A.728(4); (c) The sexual motivation enhancements in this subsection apply to all felony crimes; (d) If the standard sentence range under this subsection exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence unless the offender is a persistent offender. If the addition of a sexual motivation enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced; (e) The portion of the total confinement sentence which the offender must serve under this subsection shall be calculated before any earned early release time is credited to the offender; (f) Nothing in this subsection prevents a sentencing court from imposing a sentence outside the standard sentence range pursuant to RCW 9.94A.535. [2006 c 339 § 301; 2006 c 123 § 1; 2003 c 53 § 58; 2002 c 290 § 11.] Reviser’s note: This section was amended by 2006 c 123 § 1 and by 2006 c 339 § 301, each without reference to the other. Both amendments are (2006 Ed.) 9.94A.535 incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Intent—Part headings not law—2006 c 339: See notes following RCW 70.96A.325. Effective date—2006 c 123: "This act takes effect July 1, 2006." [2006 c 123 § 4.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. 9.94A.535 9.94A.535 Departures from the guidelines. The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. Facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined pursuant to the provisions of RCW 9.94A.537. Whenever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard sentence range shall be a determinate sentence. If the sentencing court finds that an exceptional sentence outside the standard sentence range should be imposed, the sentence is subject to review only as provided for in RCW 9.94A.585(4). A departure from the standards in RCW 9.94A.589 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in this section, and may be appealed by the offender or the state as set forth in RCW 9.94A.585 (2) through (6). (1) Mitigating Circumstances - Court to Consider The court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences. (a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident. (b) Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage or injury sustained. (c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct. (d) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime. (e) The defendant’s capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired. Voluntary use of drugs or alcohol is excluded. (f) The offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim. (g) The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly [Title 9 RCW—page 143] 9.94A.535 Title 9 RCW: Crimes and Punishments excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010. (h) The defendant or the defendant’s children suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse. (2) Aggravating Circumstances - Considered and Imposed by the Court The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances: (a) The defendant and the state both stipulate that justice is best served by the imposition of an exceptional sentence outside the standard range, and the court finds the exceptional sentence to be consistent with and in furtherance of the interests of justice and the purposes of the sentencing reform act. (b) The defendant’s prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010. (c) The defendant has committed multiple current offenses and the defendant’s high offender score results in some of the current offenses going unpunished. (d) The failure to consider the defendant’s prior criminal history which was omitted from the offender score calculation pursuant to RCW 9.94A.525 results in a presumptive sentence that is clearly too lenient. (3) Aggravating Circumstances - Considered by a Jury Imposed by the Court Except for circumstances listed in subsection (2) of this section, the following circumstances are an exclusive list of factors that can support a sentence above the standard range. Such facts should be determined by procedures specified in RCW 9.94A.537. (a) The defendant’s conduct during the commission of the current offense manifested deliberate cruelty to the victim. (b) The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance. (c) The current offense was a violent offense, and the defendant knew that the victim of the current offense was pregnant. (d) The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors: (i) The current offense involved multiple victims or multiple incidents per victim; (ii) The current offense involved attempted or actual monetary loss substantially greater than typical for the offense; (iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time; or (iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense. (e) The current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statu[Title 9 RCW—page 144] tory definition: The presence of ANY of the following may identify a current offense as a major VUCSA: (i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so; (ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; (iii) The current offense involved the manufacture of controlled substances for use by other parties; (iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy; (v) The current offense involved a high degree of sophistication or planning, occurred over a lengthy period of time, or involved a broad geographic area of disbursement; or (vi) The offender used his or her position or status to facilitate the commission of the current offense, including positions of trust, confidence or fiduciary responsibility (e.g., pharmacist, physician, or other medical professional). (f) The current offense included a finding of sexual motivation pursuant to RCW 9.94A.835. (g) The offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time. (h) The current offense involved domestic violence, as defined in RCW 10.99.020, and one or more of the following was present: (i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time; (ii) The offense occurred within sight or sound of the victim’s or the offender’s minor children under the age of eighteen years; or (iii) The offender’s conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim. (i) The offense resulted in the pregnancy of a child victim of rape. (j) The defendant knew that the victim of the current offense was a youth who was not residing with a legal custodian and the defendant established or promoted the relationship for the primary purpose of victimization. (k) The offense was committed with the intent to obstruct or impair human or animal health care or agricultural or forestry research or commercial production. (l) The current offense is trafficking in the first degree or trafficking in the second degree and any victim was a minor at the time of the offense. (m) The offense involved a high degree of sophistication or planning. (n) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense. (o) The defendant committed a current sex offense, has a history of sex offenses, and is not amenable to treatment. (p) The offense involved an invasion of the victim’s privacy. (q) The defendant demonstrated or displayed an egregious lack of remorse. (2006 Ed.) Sentencing Reform Act of 1981 9.94A.540 (r) The offense involved a destructive and foreseeable impact on persons other than the victim. (s) The defendant committed the offense to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group. (t) The defendant committed the current offense shortly after being released from incarceration. (u) The current offense is a burglary and the victim of the burglary was present in the building or residence when the crime was committed. (v) The offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim’s status as a law enforcement officer is not an element of the offense. (w) The defendant committed the offense against a victim who was acting as a good samaritan. (x) The defendant committed the offense against a public official or officer of the court in retaliation of the public official’s performance of his or her duty to the criminal justice system. (y) The victim’s injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense. This aggravator is not an exception to RCW 9.94A.530(2). [2005 c 68 § 3; 2003 c 267 § 4; 2002 c 169 § 1; 2001 2nd sp.s. c 12 § 314; 2000 c 28 § 8; 1999 c 330 § 1; 1997 c 52 § 4. Prior: 1996 c 248 § 2; 1996 c 121 § 1; 1995 c 316 § 2; 1990 c 3 § 603; 1989 c 408 § 1; 1987 c 131 § 2; 1986 c 257 § 27; 1984 c 209 § 24; 1983 c 115 § 10. Formerly RCW 9.94A.390.] special interrogatory. If a jury is waived, proof shall be to the court beyond a reasonable doubt, unless the defendant stipulates to the aggravating facts. (3) Evidence regarding any facts supporting aggravating circumstances under RCW 9.94A.535(3) (a) through (y) shall be presented to the jury during the trial of the alleged crime, unless the state alleges the aggravating circumstances listed in RCW 9.94A.535(3) (e)(iv), (h)(i), (o), or (t). If one of these aggravating circumstances is alleged, the trial court may conduct a separate proceeding if the evidence supporting the aggravating fact is not part of the res geste of the charged crime, if the evidence is not otherwise admissible in trial of the charged crime, and if the court finds that the probative value of the evidence to the aggravated fact is substantially outweighed by its prejudicial effect on the jury’s ability to determine guilt or innocence for the underlying crime. (4) If the court conducts a separate proceeding to determine the existence of aggravating circumstances, the proceeding shall immediately follow the trial on the underlying conviction, if possible. If any person who served on the jury is unable to continue, the court shall substitute an alternate juror. (5) If the jury finds, unanimously and beyond a reasonable doubt, one or more of the facts alleged by the state in support of an aggravated sentence, the court may sentence the offender pursuant to RCW 9.94A.535 to a term of confinement up to the maximum allowed under RCW 9A.20.021 for the underlying conviction if it finds, considering the purposes of this chapter, that the facts found are substantial and compelling reasons justifying an exceptional sentence. [2005 c 68 § 4.] Intent—Severability—Effective date—2005 c 68: See notes following RCW 9.94A.537. Intent—2005 c 68: "The legislature intends to conform the sentencing reform act, chapter 9.94A RCW, to comply with the ruling in Blakely v. Washington, 542 U.S. ... (2004). In that case, the United States supreme court held that a criminal defendant has a Sixth Amendment right to have a jury determine beyond a reasonable doubt any aggravating fact, other than the fact of a prior conviction, that is used to impose greater punishment than the standard range or standard conditions. The legislature intends that aggravating facts, other than the fact of a prior conviction, will be placed before the jury. The legislature intends that the sentencing court will then decide whether or not the aggravating fact is a substantial and compelling reason to impose greater punishment. The legislature intends to create a new criminal procedure for imposing greater punishment than the standard range or conditions and to codify existing common law aggravating factors, without expanding or restricting existing statutory or common law aggravating circumstances. The legislature does not intend the codification of common law aggravating factors to expand or restrict currently available statutory or common law aggravating circumstances. The legislature does not intend to alter how mitigating facts are to be determined under the sentencing reform act, and thus intends that mitigating facts will be found by the sentencing court by a preponderance of the evidence. While the legislature intends to bring the sentencing reform act into compliance as previously indicated, the legislature recognizes the need to restore the judicial discretion that has been limited as a result of the Blakely decision." [2005 c 68 § 1.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Effective date—1996 c 121: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [March 21, 1996]." [1996 c 121 § 2.] Effective date—Application—1990 c 3 §§ 601 through 605:See note following RCW 9.94A.835. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17 through 35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.94A.537 9.94A.537 Aggravating circumstances—Sentences above standard range. (1) At any time prior to trial or entry of the guilty plea if substantial rights of the defendant are not prejudiced, the state may give notice that it is seeking a sentence above the standard sentencing range. The notice shall state aggravating circumstances upon which the requested sentence will be based. (2) The facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt. The jury’s verdict on the aggravating factor must be unanimous, and by (2006 Ed.) Severability—2005 c 68: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2005 c 68 § 6.] Effective date—2005 c 68: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [April 15, 2005]." [2005 c 68 § 7.] 9.94A.540 9.94A.540 Mandatory minimum terms. (1) Except to the extent provided in subsection (3) of this section, the fol[Title 9 RCW—page 145] 9.94A.545 Title 9 RCW: Crimes and Punishments lowing minimum terms of total confinement are mandatory and shall not be varied or modified under RCW 9.94A.535: (a) An offender convicted of the crime of murder in the first degree shall be sentenced to a term of total confinement not less than twenty years. (b) An offender convicted of the crime of assault in the first degree or assault of a child in the first degree where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement not less than five years. (c) An offender convicted of the crime of rape in the first degree shall be sentenced to a term of total confinement not less than five years. (d) An offender convicted of the crime of sexually violent predator escape shall be sentenced to a minimum term of total confinement not less than sixty months. (2) During such minimum terms of total confinement, no offender subject to the provisions of this section is eligible for community custody, earned release time, furlough, home detention, partial confinement, work crew, work release, or any other form of early release authorized under RCW 9.94A.728, or any other form of authorized leave of absence from the correctional facility while not in the direct custody of a corrections officer. The provisions of this subsection shall not apply: (a) In the case of an offender in need of emergency medical treatment; (b) for the purpose of commitment to an inpatient treatment facility in the case of an offender convicted of the crime of rape in the first degree; or (c) for an extraordinary medical placement when authorized under RCW 9.94A.728(4). (3)(a) Subsection (1) of this section shall not be applied in sentencing of juveniles tried as adults pursuant to RCW 13.04.030(1)(e)(i). (b) This subsection (3) applies only to crimes committed on or after July 24, 2005. [2005 c 437 § 2; 2001 2nd sp.s. c 12 § 315; 2000 c 28 § 7. Formerly RCW 9.94A.590.] subject to conditions and sanctions as authorized in RCW 9.94A.715 and 9.94A.720. An offender shall be on community custody as of the date of sentencing. However, during the time for which the offender is in total or partial confinement pursuant to the sentence or a violation of the sentence, the period of community custody shall toll. (2) If the offender is guilty of failure to register under RCW 9A.44.130(10)(a), the court shall impose a term of community custody under RCW 9.94A.715. [2006 c 128 § 4; 2003 c 379 § 8; 2000 c 28 § 13; 1999 c 196 § 10; 1988 c 143 § 23; 1984 c 209 § 22. Formerly RCW 9.94A.383.] Findings—Intent—2005 c 437: "(1) The legislature finds that emerging research on brain development indicates that adolescent brains, and thus adolescent intellectual and emotional capabilities, differ significantly from those of mature adults. It is appropriate to take these differences into consideration when sentencing juveniles tried as adults. The legislature further finds that applying mandatory minimum sentences for juveniles tried as adults prevents trial court judges from taking these differences into consideration in appropriate circumstances. (2) The legislature intends to eliminate the application of mandatory minimum sentences under RCW 9.94A.540 to juveniles tried as adults, and to continue to apply all other adult sentencing provisions to juveniles tried as adults." [2005 c 437 § 1.] Effective dates—1984 c 209: See note following RCW 9.94A.030. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.545 9.94A.545 Community custody. (1) Except as provided in RCW 9.94A.650 and in subsection (2) of this section, on all sentences of confinement for one year or less, in which the offender is convicted of a sex offense, a violent offense, a crime against a person under RCW 9.94A.411, or felony violation of chapter 69.50 or 69.52 RCW or an attempt, conspiracy, or solicitation to commit such a crime, the court may impose up to one year of community custody, [Title 9 RCW—page 146] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Effective date—1999 c 196 § 10: "Section 10 of this act takes effect July 1, 2000, and applies only to offenses committed on or after July 1, 2000." [1999 c 196 § 19.] Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Applicability—1988 c 143 §§ 21-24: See note following RCW 9.94A.505. Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.94A.550 9.94A.550 Fines. Unless otherwise provided by a statute of this state, on all sentences under this chapter the court may impose fines according to the following ranges: Class A felonies Class B felonies Class C felonies $0 - 50,000 $0 - 20,000 $0 - 10,000 [2003 c 53 § 59; 1984 c 209 § 23. Formerly RCW 9.94A.386.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9.94A.555 9.94A.555 Findings and intent—1994 c 1. (1) The people of the state of Washington find and declare that: (a) Community protection from persistent offenders is a priority for any civilized society. (b) Nearly fifty percent of the criminals convicted in Washington state have active prior criminal histories. (c) Punishments for criminal offenses should be proportionate to both the seriousness of the crime and the prior criminal history. (d) The public has the right and the responsibility to determine when to impose a life sentence. (2) By sentencing three-time, most serious offenders to prison for life without the possibility of parole, the people intend to: (a) Improve public safety by placing the most dangerous criminals in prison. (b) Reduce the number of serious, repeat offenders by tougher sentencing. (c) Set proper and simplified sentencing practices that both the victims and persistent offenders can understand. (d) Restore public trust in our criminal justice system by directly involving the people in the process. [1994 c 1 § 1 (2006 Ed.) Sentencing Reform Act of 1981 (Initiative Measure No. 593, approved November 2, 1993). Formerly RCW 9.94A.392.] Severability—1994 c 1: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1994 c 1 § 6 (Initiative Measure No. 593, approved November 2, 1993).] Short title—1994 c 1: "This act shall be known and may be cited as the persistent offender accountability act." [1994 c 1 § 7 (Initiative Measure No. 593, approved November 2, 1993).] Captions—1994 c 1: "Captions as used in this act do not constitute any part of the law." [1994 c 1 § 8 (Initiative Measure No. 593, approved November 2, 1993).] 9.94A.561 9.94A.561 Offender notification and warning. A sentencing judge, law enforcement agency, or state or local correctional facility may, but is not required to, give offenders who have been convicted of an offense that is a most serious offense as defined in RCW 9.94A.030 either written or oral notice, or both, of the sanctions imposed upon persistent offenders. General notice of these sanctions and the conditions under which they may be imposed may, but need not, be given in correctional facilities maintained by state or local agencies. This section is enacted to provide authority, but not requirement, for the giving of such notice in every conceivable way without incurring liability to offenders or third parties. [1994 c 1 § 4 (Initiative Measure No. 593, approved November 2, 1993). Formerly RCW 9.94A.393.] Severability—Short title—Captions—1994 c 1: See notes following RCW 9.94A.555. 9.94A.562 9.94A.562 Court-ordered treatment—Required notices. When any person is convicted in a superior court, the judgment and sentence shall include a statement that if the offender is or becomes subject to court-ordered mental health or chemical dependency treatment, the offender must notify the department and the offender’s treatment information must be shared with the department of corrections for the duration of the offender’s incarceration and supervision. Upon a petition by an offender who does not have a history of one or more violent acts, as defined in RCW 71.05.020, the court may, for good cause, find that public safety is not enhanced by the sharing of this offender’s information. [2004 c 166 § 11.] Severability—Effective dates—2004 c 166: See notes following RCW 71.05.040. 9.94A.580 offenders subject to total confinement for life without the possibility of parole who are released through executive action during his or her tenure. These reports shall continue for not less than ten years after the release of the offender or upon the death of the released offender. [1994 c 1 § 5 (Initiative Measure No. 593, approved November 2, 1993). Formerly RCW 9.94A.394.] Severability—Short title—Captions—1994 c 1: See notes following RCW 9.94A.555. 9.94A.570 9.94A.570 Persistent offenders. Notwithstanding the statutory maximum sentence or any other provision of this chapter, a persistent offender shall be sentenced to a term of total confinement for life without the possibility of release or, when authorized by RCW 10.95.030 for the crime of aggravated murder in the first degree, sentenced to death. In addition, no offender subject to this section may be eligible for community custody, earned release time, furlough, home detention, partial confinement, work crew, work release, or any other form of release as defined under RCW 9.94A.728 (1), (2), (3), (4), (6), (8), or (9), or any other form of authorized leave from a correctional facility while not in the direct custody of a corrections officer or officers, except: (1) In the case of an offender in need of emergency medical treatment; or (2) for the purpose of commitment to an inpatient treatment facility in the case of an offender convicted of the crime of rape in the first degree. [2000 c 28 § 6. Formerly RCW 9.94A.560.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.575 9.94A.575 Power to defer or suspend sentences abolished—Exceptions. The power to defer or suspend the imposition or execution of sentence is hereby abolished in respect to sentences prescribed for felonies committed after June 30, 1984, except for offenders sentenced under RCW 9.94A.670, the special sex offender sentencing alternative, whose sentence may be suspended. [2000 c 28 § 9; 1999 c 143 § 12; 1984 c 209 § 7; 1981 c 137 § 13. Formerly RCW 9.94A.130.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Effective dates—1984 c 209: See note following RCW 9.94A.030. Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.565 9.94A.565 Governor’s powers. (1) Nothing in chapter 1, Laws of 1994 shall ever be interpreted or construed as to reduce or eliminate the power of the governor to grant a pardon or clemency to any offender on an individual case-bycase basis. However, the people recommend that any offender subject to total confinement for life without the possibility of parole not be considered for release until the offender has reached the age of at least sixty years old and has been judged to be no longer a threat to society. The people further recommend that sex offenders be held to the utmost scrutiny under this subsection regardless of age. (2) Nothing in this section shall ever be interpreted or construed to grant any release for the purpose of reducing prison overcrowding. Furthermore, the governor shall provide twice yearly reports on the activities and progress of (2006 Ed.) 9.94A.580 9.94A.580 Specialized training. The department is authorized to determine whether any person subject to the confines of a correctional facility would substantially benefit from successful participation in: (1) Literacy training, (2) employment skills training, or (3) educational efforts to identify and control sources of anger and, upon a determination that the person would, may require such successful participation as a condition for eligibility to obtain early release from the confines of a correctional facility. The department shall adopt rules and procedures to administer this section. [1994 sp.s. c 7 § 533. Formerly RCW 9.94A.132.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. [Title 9 RCW—page 147] 9.94A.585 Title 9 RCW: Crimes and Punishments 9.94A.585 9.94A.585 Which sentences appealable—Procedure—Grounds for reversal—Written opinions. (1) A sentence within the standard sentence range, under RCW 9.94A.510 or 9.94A.517, for an offense shall not be appealed. For purposes of this section, a sentence imposed on a firsttime offender under RCW 9.94A.650 shall also be deemed to be within the standard sentence range for the offense and shall not be appealed. (2) A sentence outside the standard sentence range for the offense is subject to appeal by the defendant or the state. The appeal shall be to the court of appeals in accordance with rules adopted by the supreme court. (3) Pending review of the sentence, the sentencing court or the court of appeals may order the defendant confined or placed on conditional release, including bond. (4) To reverse a sentence which is outside the standard sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient. (5) A review under this section shall be made solely upon the record that was before the sentencing court. Written briefs shall not be required and the review and decision shall be made in an expedited manner according to rules adopted by the supreme court. (6) The court of appeals shall issue a written opinion in support of its decision whenever the judgment of the sentencing court is reversed and may issue written opinions in any other case where the court believes that a written opinion would provide guidance to sentencing courts and others in implementing this chapter and in developing a common law of sentencing within the state. (7) The department may petition for a review of a sentence committing an offender to the custody or jurisdiction of the department. The review shall be limited to errors of law. Such petition shall be filed with the court of appeals no later than ninety days after the department has actual knowledge of terms of the sentence. The petition shall include a certification by the department that all reasonable efforts to resolve the dispute at the superior court level have been exhausted. [2002 c 290 § 19; 2000 c 28 § 10; 1989 c 214 § 1; 1984 c 209 § 13; 1982 c 192 § 7; 1981 c 137 § 21. Formerly RCW 9.94A.210.] Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Effective dates—1984 c 209: See note following RCW 9.94A.030. Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.589 9.94A.589 Consecutive or concurrent sentences. (1)(a) Except as provided in (b) or (c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same crim[Title 9 RCW—page 148] inal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535. "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. This definition applies in cases involving vehicular assault or vehicular homicide even if the victims occupied the same vehicle. (b) Whenever a person is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level under RCW 9.94A.515 shall be determined using the offender’s prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero. The standard sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection. All sentences imposed under (b) of this subsection shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection. (c) If an offender is convicted under RCW 9.41.040 for unlawful possession of a firearm in the first or second degree and for the felony crimes of theft of a firearm or possession of a stolen firearm, or both, the standard sentence range for each of these current offenses shall be determined by using all other current and prior convictions, except other current convictions for the felony crimes listed in this subsection (1)(c), as if they were prior convictions. The offender shall serve consecutive sentences for each conviction of the felony crimes listed in this subsection (1)(c), and for each firearm unlawfully possessed. (2)(a) Except as provided in (b) of this subsection, whenever a person while under sentence for conviction of a felony commits another felony and is sentenced to another term of confinement, the latter term shall not begin until expiration of all prior terms. (b) Whenever a second or later felony conviction results in community supervision with conditions not currently in effect, under the prior sentence or sentences of community supervision the court may require that the conditions of community supervision contained in the second or later sentence begin during the immediate term of community supervision and continue throughout the duration of the consecutive term of community supervision. (3) Subject to subsections (1) and (2) of this section, whenever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively. (4) Whenever any person granted probation under RCW 9.95.210 or 9.92.060, or both, has the probationary sentence revoked and a prison sentence imposed, that sentence shall run consecutively to any sentence imposed pursuant to this (2006 Ed.) Sentencing Reform Act of 1981 chapter, unless the court pronouncing the subsequent sentence expressly orders that they be served concurrently. (5) In the case of consecutive sentences, all periods of total confinement shall be served before any partial confinement, community restitution, community supervision, or any other requirement or conditions of any of the sentences. Except for exceptional sentences as authorized under RCW 9.94A.535, if two or more sentences that run consecutively include periods of community supervision, the aggregate of the community supervision period shall not exceed twentyfour months. [2002 c 175 § 7; 2000 c 28 § 14; 1999 c 352 § 11; 1998 c 235 § 2; 1996 c 199 § 3; 1995 c 167 § 2; 1990 c 3 § 704. Prior: 1988 c 157 § 5; 1988 c 143 § 24; 1987 c 456 § 5; 1986 c 257 § 28; 1984 c 209 § 25; 1983 c 115 § 11. Formerly RCW 9.94A.400.] Effective date—2002 c 175: See note following RCW 7.80.130. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Severability—1996 c 199: See note following RCW 9.94A.505. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Application—1988 c 157: See note following RCW 9.94A.030. Applicability—1988 c 143 §§ 21-24: See note following RCW 9.94A.505. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.94A.595 Anticipatory offenses. For persons convicted of the anticipatory offenses of criminal attempt, solicitation, or conspiracy under chapter 9A.28 RCW, the presumptive sentence is determined by locating the sentencing grid sentence range defined by the appropriate offender score and the seriousness level of the crime, and multiplying the range by 75 percent. [2000 c 28 § 16; 1986 c 257 § 29; 1984 c 209 § 26; 1983 c 115 § 12. Formerly RCW 9.94A.410.] 9.94A.595 Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.94A.599 Presumptive ranges that exceed the statutory maximum. If the presumptive sentence duration given in the sentencing grid exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence. If the addition of a firearm or deadly weapon enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced. [1998 c 235 § 3; 1983 c 115 § 13. Formerly RCW 9.94A.420.] 9.94A.599 9.94A.602 Deadly weapon special verdict—Definition. In a criminal case wherein there has been a special allegation and evidence establishing that the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused or an accomplice was 9.94A.602 (2006 Ed.) 9.94A.605 armed with a deadly weapon at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find[s] the defendant guilty, also find a special verdict as to whether or not the defendant or an accomplice was armed with a deadly weapon at the time of the commission of the crime. For purposes of this section, a deadly weapon is an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are included in the term deadly weapon: Blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas. [1983 c 163 § 3. Formerly RCW 9.94A.125.] Effective date—1983 c 163: See note following RCW 9.94A.505. 9.94A.603 9.94A.603 Felony alcohol violators—Treatment during incarceration—Conditions. (Effective July 1, 2007.) (1) When sentencing an offender convicted of a violation of RCW 46.61.502(6) or 46.61.504(6), the court, in addition to imposing the provisions of this chapter, shall order the offender to undergo alcohol or chemical dependency treatment services during incarceration. The offender shall be liable for the cost of treatment unless the court finds the offender indigent and no third-party insurance coverage is available. (2) The provisions under RCW 46.61.5055 (8) and (9) regarding the suspension, revocation, or denial of the offender’s license, permit, or nonresident privilege to drive shall apply to an offender convicted of a violation of RCW 46.61.502(6) or 46.61.504(6). (3) The provisions under RCW 46.20.720 and 46.61.5055(5) regarding ignition interlock devices shall apply to an offender convicted of a violation of RCW 46.61.502(6) or 46.61.504(6). [2006 c 73 § 4.] Effective date—2006 c 73: See note following RCW 46.61.502. 9.94A.605 9.94A.605 Methamphetamine—Manufacturing with child on premises—Special allegation. In a criminal case where: (1) The defendant has been convicted of (a) manufacture of a controlled substance under RCW 69.50.401 relating to manufacture of methamphetamine; or (b) possession of ephedrine or any of its salts or isomers or salts of isomers, pseudoephedrine or any of its salts or isomers or salts of isomers, pressurized ammonia gas, or pressurized ammonia gas solution with intent to manufacture methamphetamine, as defined in RCW 69.50.440; and (2) There has been a special allegation pleaded and proven beyond a reasonable doubt that the defendant committed the crime when a person under the age of eighteen was present in or upon the premises of manufacture; the court shall make a finding of fact of the special allegation, or if a jury trial is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to the special allegation. [2003 c 53 § 60; 2002 c 134 § 3; 2000 c 132 § 1. Formerly RCW 9.94A.128.] [Title 9 RCW—page 149] 9.94A.607 Title 9 RCW: Crimes and Punishments Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Effective date—2002 c 134: See note following RCW 69.50.440. 9.94A.612 9.94A.607 9.94A.607 Chemical dependency. (1) Where the court finds that the offender has a chemical dependency that has contributed to his or her offense, the court may, as a condition of the sentence and subject to available resources, order the offender to participate in rehabilitative programs or otherwise to perform affirmative conduct reasonably related to the circumstances of the crime for which the offender has been convicted and reasonably necessary or beneficial to the offender and the community in rehabilitating the offender. (2) This section applies to sentences which include any term other than, or in addition to, a term of total confinement, including suspended sentences. [1999 c 197 § 2. Formerly RCW 9.94A.129.] Severability—1999 c 197: See note following RCW 9.94A.030. 9.94A.610 9.94A.610 Drug offenders—Notice of release or escape. (1) At the earliest possible date, and in no event later than ten days before release except in the event of escape or emergency furloughs as defined in RCW 72.66.010, the department of corrections shall send written notice of parole, community placement, work release placement, furlough, or escape about a specific inmate convicted of a serious drug offense to the following if such notice has been requested in writing about a specific inmate convicted of a serious drug offense: (a) Any witnesses who testified against the inmate in any court proceedings involving the serious drug offense; and (b) Any person specified in writing by the prosecuting attorney. Information regarding witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the inmate. (2) If an inmate convicted of a serious drug offense escapes from a correctional facility, the department of corrections shall immediately notify, by the most reasonable and expedient means available, the chief of police of the city and the sheriff of the county in which the inmate resided immediately before the inmate’s arrest and conviction. If previously requested, the department shall also notify the witnesses who are entitled to notice under this section. If the inmate is recaptured, the department shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the department learns of such recapture. (3) If any witness is under the age of sixteen, the notice required by this section shall be sent to the parents or legal guardian of the child. (4) The department of corrections shall send the notices required by this section to the last address provided to the department by the requesting party. The requesting party shall furnish the department with a current address. (5) For purposes of this section, "serious drug offense" means an offense under RCW 69.50.401(2) (a) or (b) or 69.50.4011(2) (a) or (b). [2003 c 53 § 61; 1996 c 205 § 4; 1991 c 147 § 1. Formerly RCW 9.94A.154.] [Title 9 RCW—page 150] 9.94A.612 Prisoner escape, parole, release, placement, or furlough—Notification procedures. (1) At the earliest possible date, and in no event later than thirty days before release except in the event of escape or emergency furloughs as defined in RCW 72.66.010, the department of corrections shall send written notice of parole, release, community placement, work release placement, furlough, or escape about a specific inmate convicted of a violent offense, a sex offense as defined by RCW 9.94A.030, or a felony harassment offense as defined by RCW 9A.46.060 or 9A.46.110, to the following: (a) The chief of police of the city, if any, in which the inmate will reside or in which placement will be made in a work release program; and (b) The sheriff of the county in which the inmate will reside or in which placement will be made in a work release program. The sheriff of the county where the offender was convicted shall be notified if the department does not know where the offender will reside. The department shall notify the state patrol of the release of all sex offenders, and that information shall be placed in the Washington crime information center for dissemination to all law enforcement. (2) The same notice as required by subsection (1) of this section shall be sent to the following if such notice has been requested in writing about a specific inmate convicted of a violent offense, a sex offense as defined by RCW 9.94A.030, or a felony harassment offense as defined by RCW 9A.46.060 or 9A.46.110: (a) The victim of the crime for which the inmate was convicted or the victim’s next of kin if the crime was a homicide; (b) Any witnesses who testified against the inmate in any court proceedings involving the violent offense; (c) Any person specified in writing by the prosecuting attorney; and (d) Any person who requests such notice about a specific inmate convicted of a sex offense as defined by RCW 9.94A.030 from the department of corrections at least sixty days prior to the expected release date of the offender. Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the inmate. Whenever the department of corrections mails notice pursuant to this subsection and the notice is returned as undeliverable, the department shall attempt alternative methods of notification, including a telephone call to the person’s last known telephone number. (3) The existence of the notice requirements contained in subsections (1) and (2) of this section shall not require an extension of the release date in the event that the release plan changes after notification. (4) If an inmate convicted of a violent offense, a sex offense as defined by RCW 9.94A.030, or a felony harassment offense as defined by RCW 9A.46.060 or 9A.46.110, escapes from a correctional facility, the department of corrections shall immediately notify, by the most reasonable and (2006 Ed.) Sentencing Reform Act of 1981 expedient means available, the chief of police of the city and the sheriff of the county in which the inmate resided immediately before the inmate’s arrest and conviction. If previously requested, the department shall also notify the witnesses and the victim of the crime for which the inmate was convicted or the victim’s next of kin if the crime was a homicide. If the inmate is recaptured, the department shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the department learns of such recapture. (5) If the victim, the victim’s next of kin, or any witness is under the age of sixteen, the notice required by this section shall be sent to the parents or legal guardian of the child. (6) The department of corrections shall send the notices required by this chapter to the last address provided to the department by the requesting party. The requesting party shall furnish the department with a current address. (7) The department of corrections shall keep, for a minimum of two years following the release of an inmate, the following: (a) A document signed by an individual as proof that that person is registered in the victim or witness notification program; and (b) A receipt showing that an individual registered in the victim or witness notification program was mailed a notice, at the individual’s last known address, upon the release or movement of an inmate. (8) For purposes of this section the following terms have the following meanings: (a) "Violent offense" means a violent offense under RCW 9.94A.030; (b) "Next of kin" means a person’s spouse, parents, siblings and children. (9) Nothing in this section shall impose any liability upon a chief of police of a city or sheriff of a county for failing to request in writing a notice as provided in subsection (1) of this section. [1996 c 215 § 4. Prior: 1994 c 129 § 3; 1994 c 77 § 1; prior: 1992 c 186 § 7; 1992 c 45 § 2; 1990 c 3 § 121; 1989 c 30 § 1; 1985 c 346 § 1. Formerly RCW 9.94A.155.] Findings—Intent—1994 c 129: See note following RCW 4.24.550. Severability—1992 c 186: See note following RCW 9A.46.110. Severability—Application—1992 c 45: See notes following RCW 9.94A.840. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 9.94A.614 Prisoner escape, release, or furlough— Homicide, violent, and sex offenses—Rights of victims and witnesses. The department of corrections shall provide the victims and next of kin in the case of a homicide and witnesses involved in violent offense cases or sex offenses as defined by RCW 9.94A.030 where a judgment and sentence was entered after October 1, 1983, a statement of the rights of victims and witnesses to request and receive notification under RCW 9.94A.612 and 9.94A.616. [1989 c 30 § 2; 1985 c 346 § 2. Formerly RCW 9.94A.156.] 9.94A.614 9.94A.616 Prisoner escape, release, or furlough— Requests for notification. Requests for notification under RCW 9.94A.612 shall be made by sending a written request by certified mail directly to the department of corrections and 9.94A.616 (2006 Ed.) 9.94A.625 giving the defendant’s name, the name of the county in which the trial took place, and the month of the trial. Notification information and necessary forms shall be available through the department of corrections, county prosecutors’ offices, and other agencies as deemed appropriate by the department of corrections. [1985 c 346 § 3. Formerly RCW 9.94A.157.] 9.94A.618 9.94A.618 Prisoner escape, release, or furlough— Notification as additional requirement. The notification requirements of RCW 9.94A.612 are in addition to any requirements in RCW 43.43.745 or other law. [1985 c 346 § 4. Formerly RCW 9.94A.158.] 9.94A.620 9.94A.620 Prisoner escape, release, or furlough— Consequences of failure to notify. Civil liability shall not result from failure to provide notice required under RCW 9.94A.612 through 9.94A.618, 9.94A.030, and 43.43.745 unless the failure is the result of gross negligence. [1985 c 346 § 7. Formerly RCW 9.94A.159.] 9.94A.625 9.94A.625 Tolling of term of confinement, supervision. (1) A term of confinement ordered in a sentence pursuant to this chapter shall be tolled by any period of time during which the offender has absented himself or herself from confinement without the prior approval of the entity in whose custody the offender has been placed. A term of partial confinement shall be tolled during any period of time spent in total confinement pursuant to a new conviction or pursuant to sanctions for violation of sentence conditions on a separate felony conviction. (2) Any term of community custody, community placement, or community supervision shall be tolled by any period of time during which the offender has absented himself or herself from supervision without prior approval of the entity under whose supervision the offender has been placed. (3) Any period of community custody, community placement, or community supervision shall be tolled during any period of time the offender is in confinement for any reason. However, if an offender is detained pursuant to RCW 9.94A.740 or 9.94A.631 and is later found not to have violated a condition or requirement of community custody, community placement, or community supervision, time spent in confinement due to such detention shall not toll the period of community custody, community placement, or community supervision. (4) For terms of confinement or community custody, community placement, or community supervision, the date for the tolling of the sentence shall be established by the entity responsible for the confinement or supervision. [2000 c 226 § 5. Prior: 1999 c 196 § 7; 1999 c 143 § 14; 1993 c 31 § 2; 1988 c 153 § 9; 1981 c 137 § 17. Formerly RCW 9.94A.170.] Effective date—2000 c 226 § 5: "Section 5 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 30, 2000]." [2000 c 226 § 7.] Finding—Intent—Severability—2000 c 226: See notes following RCW 9.94A.505. Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. [Title 9 RCW—page 151] 9.94A.628 Title 9 RCW: Crimes and Punishments Effective date—Application of increased sanctions—1988 c 153: See notes following RCW 9.94A.030. Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.628 9.94A.628 Postrelease supervision—Violations— Expenses. If the offender violates any condition of postrelease supervision, a hearing may be conducted in the same manner as provided in RCW 9.94A.634. Jurisdiction shall be with the court of the county in which the offender was sentenced. However, the court may order a change of venue to the offender’s county of residence or where the violation occurred, for the purpose of holding a violation hearing. After the hearing, the court may order the offender to be confined for up to sixty days per violation in the county jail. Reimbursement to a city or county for the care of offenders who are detained solely for violating a condition of postrelease supervision shall be under RCW 70.48.440. A county shall be reimbursed for indigent defense costs for offenders who are detained solely for violating a condition of postrelease supervision in accordance with regulations to be promulgated by the office of financial management. An offender may be held in jail at state expense pending the hearing, and any time served while awaiting the hearing shall be credited against confinement imposed for a violation. The court shall retain jurisdiction for the purpose of holding the violation hearing and imposing a sanction. [1988 c 153 § 8. Formerly RCW 9.94A.175.] Effective date—Application of increased sanctions—1988 c 153: See notes following RCW 9.94A.030. 9.94A.631 9.94A.631 Violation of condition or requirement of sentence—Arrest by community corrections officer— Confinement in county jail. If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, an offender may be required to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property. A community corrections officer may also arrest an offender for any crime committed in his or her presence. The facts and circumstances of the conduct of the offender shall be reported by the community corrections officer, with recommendations, to the court. If a community corrections officer arrests or causes the arrest of an offender under this section, the offender shall be confined and detained in the county jail of the county in which the offender was taken into custody, and the sheriff of that county shall receive and keep in the county jail, where room is available, all prisoners delivered to the jail by the community corrections officer, and such offenders shall not be released from custody on bail or personal recognizance, except upon approval of the court, pursuant to a written order. [1984 c 209 § 11. Formerly RCW 9.94A.195.] Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.94A.634 9.94A.634 Noncompliance with condition or requirement of sentence—Procedure—Penalty. (1) If an offender violates any condition or requirement of a sentence, the court [Title 9 RCW—page 152] may modify its order of judgment and sentence and impose further punishment in accordance with this section. (2) In cases where conditions from a second or later sentence of community supervision begin prior to the term of the second or later sentence, the court shall treat a violation of such conditions as a violation of the sentence of community supervision currently being served. (3) If an offender fails to comply with any of the requirements or conditions of a sentence the following provisions apply: (a)(i) Following the violation, if the offender and the department make a stipulated agreement, the department may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, jail time, or other sanctions available in the community. (ii) Within seventy-two hours of signing the stipulated agreement, the department shall submit a report to the court and the prosecuting attorney outlining the violation or violations, and sanctions imposed. Within fifteen days of receipt of the report, if the court is not satisfied with the sanctions, the court may schedule a hearing and may modify the department’s sanctions. If this occurs, the offender may withdraw from the stipulated agreement. (iii) If the offender fails to comply with the sanction administratively imposed by the department, the court may take action regarding the original noncompliance. Offender failure to comply with the sanction administratively imposed by the department may be considered an additional violation. (b) In the absence of a stipulated agreement, or where the court is not satisfied with the department’s sanctions as provided in (a) of this subsection, the court, upon the motion of the state, or upon its own motion, shall require the offender to show cause why the offender should not be punished for the noncompliance. The court may issue a summons or a warrant of arrest for the offender’s appearance; (c) The state has the burden of showing noncompliance by a preponderance of the evidence. If the court finds that the violation has occurred, it may order the offender to be confined for a period not to exceed sixty days for each violation, and may (i) convert a term of partial confinement to total confinement, (ii) convert community restitution obligation to total or partial confinement, (iii) convert monetary obligations, except restitution and the crime victim penalty assessment, to community restitution hours at the rate of the state minimum wage as established in RCW 49.46.020 for each hour of community restitution, or (iv) order one or more of the penalties authorized in (a)(i) of this subsection. Any time served in confinement awaiting a hearing on noncompliance shall be credited against any confinement order by the court; (d) If the court finds that the violation was not willful, the court may modify its previous order regarding payment of legal financial obligations and regarding community restitution obligations; and (e) If the violation involves a failure to undergo or comply with mental status evaluation and/or outpatient mental health treatment, the community corrections officer shall consult with the treatment provider or proposed treatment provider. Enforcement of orders concerning outpatient men(2006 Ed.) Sentencing Reform Act of 1981 tal health treatment must reflect the availability of treatment and must pursue the least restrictive means of promoting participation in treatment. If the offender’s failure to receive care essential for health and safety presents a risk of serious physical harm or probable harmful consequences, the civil detention and commitment procedures of chapter 71.05 RCW shall be considered in preference to incarceration in a local or state correctional facility. (4) The community corrections officer may obtain information from the offender’s mental health treatment provider on the offender’s status with respect to evaluation, application for services, registration for services, and compliance with the supervision plan, without the offender’s consent, as described under RCW 71.05.630. (5) An offender under community placement or community supervision who is civilly detained under chapter 71.05 RCW, and subsequently discharged or conditionally released to the community, shall be under the supervision of the department of corrections for the duration of his or her period of community placement or community supervision. During any period of inpatient mental health treatment that falls within the period of community placement or community supervision, the inpatient treatment provider and the supervising community corrections officer shall notify each other about the offender’s discharge, release, and legal status, and shall share other relevant information. (6) Nothing in this section prohibits the filing of escape charges if appropriate. [2002 c 175 § 8; 1998 c 260 § 4. Prior: 1995 c 167 § 1; 1995 c 142 § 1; 1989 c 252 § 7; prior: 1988 c 155 § 2; 1988 c 153 § 11; 1984 c 209 § 12; 1981 c 137 § 20. Formerly RCW 9.94A.200.] Effective date—2002 c 175: See note following RCW 7.80.130. Intent—1998 c 260: See note following RCW 9.94A.500. Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. Effective date—Application of increased sanctions—1988 c 153: See notes following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.92.150. Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.637 Discharge upon completion of sentence— Certificate of discharge—Obligations, counseling after discharge. (1)(a) When an offender has completed all requirements of the sentence, including any and all legal financial obligations, and while under the custody and supervision of the department, the secretary or the secretary’s designee shall notify the sentencing court, which shall discharge the offender and provide the offender with a certificate of discharge by issuing the certificate to the offender in person or by mailing the certificate to the offender’s last known address. (b)(i) When an offender has reached the end of his or her supervision with the department and has completed all the requirements of the sentence except his or her legal financial obligations, the secretary’s designee shall provide the county clerk with a notice that the offender has completed all nonfinancial requirements of the sentence. (ii) When the department has provided the county clerk with notice that an offender has completed all the requirements of the sentence and the offender subsequently satisfies all legal financial obligations under the sentence, the county 9.94A.637 (2006 Ed.) 9.94A.637 clerk shall notify the sentencing court, including the notice from the department, which shall discharge the offender and provide the offender with a certificate of discharge by issuing the certificate to the offender in person or by mailing the certificate to the offender’s last known address. (c) When an offender who is subject to requirements of the sentence in addition to the payment of legal financial obligations either is not subject to supervision by the department or does not complete the requirements while under supervision of the department, it is the offender’s responsibility to provide the court with verification of the completion of the sentence conditions other than the payment of legal financial obligations. When the offender satisfies all legal financial obligations under the sentence, the county clerk shall notify the sentencing court that the legal financial obligations have been satisfied. When the court has received both notification from the clerk and adequate verification from the offender that the sentence requirements have been completed, the court shall discharge the offender and provide the offender with a certificate of discharge by issuing the certificate to the offender in person or by mailing the certificate to the offender’s last known address. (2) The court shall send a copy of every signed certificate of discharge to the auditor for the county in which the court resides and to the department. The department shall create and maintain a data base containing the names of all felons who have been issued certificates of discharge, the date of discharge, and the date of conviction and offense. (3) An offender who is not convicted of a violent offense or a sex offense and is sentenced to a term involving community supervision may be considered for a discharge of sentence by the sentencing court prior to the completion of community supervision, provided that the offender has completed at least one-half of the term of community supervision and has met all other sentence requirements. (4) Except as provided in subsection (5) of this section, the discharge shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certificate of discharge shall so state. Nothing in this section prohibits the use of an offender’s prior record for purposes of determining sentences for later offenses as provided in this chapter. Nothing in this section affects or prevents use of the offender’s prior conviction in a later criminal prosecution either as an element of an offense or for impeachment purposes. A certificate of discharge is not based on a finding of rehabilitation. (5) Unless otherwise ordered by the sentencing court, a certificate of discharge shall not terminate the offender’s obligation to comply with an order issued under chapter 10.99 RCW that excludes or prohibits the offender from having contact with a specified person or coming within a set distance of any specified location that was contained in the judgment and sentence. An offender who violates such an order after a certificate of discharge has been issued shall be subject to prosecution according to the chapter under which the order was originally issued. (6) Upon release from custody, the offender may apply to the department for counseling and help in adjusting to the community. This voluntary help may be provided for up to one year following the release from custody. [2004 c 121 § 2; 2003 c 379 § 19; 2002 c 16 § 2; 2000 c 119 § 3; 1994 c 271 [Title 9 RCW—page 153] 9.94A.640 Title 9 RCW: Crimes and Punishments § 901; 1984 c 209 § 14; 1981 c 137 § 22. Formerly RCW 9.94A.220.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Intent—Purpose—2003 c 379 §§ 13-27: See note following RCW 9.94A.760. Intent—2002 c 16: "The legislature recognizes that an individual’s right to vote is a hallmark of a free and inclusive society and that it is in the best interests of society to provide reasonable opportunities and processes for an offender to regain the right to vote after completion of all of the requirements of his or her sentence. The legislature intends to clarify the method by which the court may fulfill its already existing direction to provide discharged offenders with their certificates of discharge." [2002 c 16 § 1.] Application—2000 c 119: See note following RCW 26.50.021. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Effective dates—1984 c 209: See note following RCW 9.94A.030. Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.640 9.94A.640 Vacation of offender’s record of conviction. (Effective until July 1, 2007.) (1) Every offender who has been discharged under RCW 9.94A.637 may apply to the sentencing court for a vacation of the offender’s record of conviction. If the court finds the offender meets the tests prescribed in subsection (2) of this section, the court may clear the record of conviction by: (a) Permitting the offender to withdraw the offender’s plea of guilty and to enter a plea of not guilty; or (b) if the offender has been convicted after a plea of not guilty, by the court setting aside the verdict of guilty; and (c) by the court dismissing the information or indictment against the offender. (2) An offender may not have the record of conviction cleared if: (a) There are any criminal charges against the offender pending in any court of this state or another state, or in any federal court; (b) the offense was a violent offense as defined in RCW 9.94A.030; (c) the offense was a crime against persons as defined in RCW 43.43.830; (d) the offender has been convicted of a new crime in this state, another state, or federal court since the date of the offender’s discharge under RCW 9.94A.637; (e) the offense is a class B felony and less than ten years have passed since the date the applicant was discharged under RCW 9.94A.637; and (f) the offense was a class C felony and less than five years have passed since the date the applicant was discharged under RCW 9.94A.637. (3) Once the court vacates a record of conviction under subsection (1) of this section, the fact that the offender has been convicted of the offense shall not be included in the offender’s criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender’s prior conviction in a later criminal prosecution. [1987 c 486 § 7; 1981 c 137 § 23. Formerly RCW 9.94A.230.] Effective date—1981 c 137: See RCW 9.94A.905. [Title 9 RCW—page 154] 9.94A.640 Vacation of offender’s record of conviction. (Effective July 1, 2007.) (1) Every offender who has been discharged under RCW 9.94A.637 may apply to the sentencing court for a vacation of the offender’s record of conviction. If the court finds the offender meets the tests prescribed in subsection (2) of this section, the court may clear the record of conviction by: (a) Permitting the offender to withdraw the offender’s plea of guilty and to enter a plea of not guilty; or (b) if the offender has been convicted after a plea of not guilty, by the court setting aside the verdict of guilty; and (c) by the court dismissing the information or indictment against the offender. (2) An offender may not have the record of conviction cleared if: (a) There are any criminal charges against the offender pending in any court of this state or another state, or in any federal court; (b) the offense was a violent offense as defined in RCW 9.94A.030; (c) the offense was a crime against persons as defined in RCW 43.43.830; (d) the offender has been convicted of a new crime in this state, another state, or federal court since the date of the offender’s discharge under RCW 9.94A.637; (e) the offense is a class B felony and less than ten years have passed since the date the applicant was discharged under RCW 9.94A.637; (f) the offense was a class C felony, other than a class C felony described in RCW 46.61.502(6) or 46.61.504(6), and less than five years have passed since the date the applicant was discharged under RCW 9.94A.637; or (g) the offense was a class C felony descr ibed in RCW 46.61.502( 6) or 46.61.504(6) and less than ten years have passed since the applicant was discharged under RCW 9.94A.637. (3) Once the court vacates a record of conviction under subsection (1) of this section, the fact that the offender has been convicted of the offense shall not be included in the offender’s criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender’s prior conviction in a later criminal prosecution. [2006 c 73 § 8; 1987 c 486 § 7; 1981 c 137 § 23. Formerly RCW 9.94A.230.] 9.94A.640 Effective date—2006 c 73: See note following RCW 46.61.502. Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.650 9.94A.650 First-time offender waiver. (Effective until July 1, 2007.) (1) This section applies to offenders who have never been previously convicted of a felony in this state, federal court, or another state, and who have never participated in a program of deferred prosecution for a felony, and who are convicted of a felony that is not: (a) Classified as a violent offense or a sex offense under this chapter; (b) Manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance classified in Schedule I or II that is a narcotic drug or flunitrazepam classified in Schedule IV; (c) Manufacture, delivery, or possession with intent to deliver a methamphetamine, its salts, isomers, and salts of its isomers as defined in RCW 69.50.206(d)(2); or (2006 Ed.) Sentencing Reform Act of 1981 (d) The selling for profit of any controlled substance or counterfeit substance classified in Schedule I, RCW 69.50.204, except leaves and flowering tops of marihuana. (2) In sentencing a first-time offender the court may waive the imposition of a sentence within the standard sentence range and impose a sentence which may include up to ninety days of confinement in a facility operated or utilized under contract by the county and a requirement that the offender refrain from committing new offenses. The sentence may also include a term of community supervision or community custody as specified in subsection (3) of this section, which, in addition to crime-related prohibitions, may include requirements that the offender perform any one or more of the following: (a) Devote time to a specific employment or occupation; (b) Undergo available outpatient treatment for up to the period specified in subsection (3) of this section, or inpatient treatment not to exceed the standard range of confinement for that offense; (c) Pursue a prescribed, secular course of study or vocational training; (d) Remain within prescribed geographical boundaries and notify the community corrections officer prior to any change in the offender’s address or employment; (e) Report as directed to a community corrections officer; or (f) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030 and/or perform community restitution work. (3) The terms and statuses applicable to sentences under subsection (2) of this section are: (a) For sentences imposed on or after July 25, 1999, for crimes committed before July 1, 2000, up to one year of community supervision. If treatment is ordered, the period of community supervision may include up to the period of treatment, but shall not exceed two years; and (b) For crimes committed on or after July 1, 2000, up to one year of community custody unless treatment is ordered, in which case the period of community custody may include up to the period of treatment, but shall not exceed two years. Any term of community custody imposed under this section is subject to conditions and sanctions as authorized in this section and in RCW 9.94A.715 (2) and (3). (4) The department shall discharge from community supervision any offender sentenced under this section before July 25, 1999, who has served at least one year of community supervision and has completed any treatment ordered by the court. [2002 c 175 § 9; 2000 c 28 § 18.] Effective date—2002 c 175: See note following RCW 7.80.130. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.650 9.94A.650 First-time offender waiver. (Effective July 1, 2007.) (1) This section applies to offenders who have never been previously convicted of a felony in this state, federal court, or another state, and who have never participated in a program of deferred prosecution for a felony, and who are convicted of a felony that is not: (a) Classified as a violent offense or a sex offense under this chapter; (2006 Ed.) 9.94A.650 (b) Manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance classified in Schedule I or II that is a narcotic drug or flunitrazepam classified in Schedule IV; (c) Manufacture, delivery, or possession with intent to deliver a methamphetamine, its salts, isomers, and salts of its isomers as defined in RCW 69.50.206(d)(2); (d) The selling for profit of any controlled substance or counterfeit substance classified in Schedule I, RCW 69.50.204, except leaves and flowering tops of marihuana; or (e) Felony driving while under the influence of intoxicating liquor or any drug or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug. (2) In sentencing a first-time offender the court may waive the imposition of a sentence within the standard sentence range and impose a sentence which may include up to ninety days of confinement in a facility operated or utilized under contract by the county and a requirement that the offender refrain from committing new offenses. The sentence may also include a term of community supervision or community custody as specified in subsection (3) of this section, which, in addition to crime-related prohibitions, may include requirements that the offender perform any one or more of the following: (a) Devote time to a specific employment or occupation; (b) Undergo available outpatient treatment for up to the period specified in subsection (3) of this section, or inpatient treatment not to exceed the standard range of confinement for that offense; (c) Pursue a prescribed, secular course of study or vocational training; (d) Remain within prescribed geographical boundaries and notify the community corrections officer prior to any change in the offender’s address or employment; (e) Report as directed to a community corrections officer; or (f) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030 and/or perform community restitution work. (3) The terms and statuses applicable to sentences under subsection (2) of this section are: (a) For sentences imposed on or after July 25, 1999, for crimes committed before July 1, 2000, up to one year of community supervision. If treatment is ordered, the period of community supervision may include up to the period of treatment, but shall not exceed two years; and (b) For crimes committed on or after July 1, 2000, up to one year of community custody unless treatment is ordered, in which case the period of community custody may include up to the period of treatment, but shall not exceed two years. Any term of community custody imposed under this section is subject to conditions and sanctions as authorized in this section and in RCW 9.94A.715 (2) and (3). (4) The department shall discharge from community supervision any offender sentenced under this section before July 25, 1999, who has served at least one year of community supervision and has completed any treatment ordered by the court. [2006 c 73 § 9; 2002 c 175 § 9; 2000 c 28 § 18.] Effective date—2006 c 73: See note following RCW 46.61.502. Effective date—2002 c 175: See note following RCW 7.80.130. [Title 9 RCW—page 155] 9.94A.660 Title 9 RCW: Crimes and Punishments Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.660 9.94A.660 Drug offender sentencing alternative. (Effective until July 1, 2007.) (1) An offender is eligible for the special drug offender sentencing alternative if: (a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533 (3) or (4); (b) The offender has no current or prior convictions for a sex offense at any time or violent offense within ten years before conviction of the current offense, in this state, another state, or the United States; (c) For a violation of the Uniform Controlled Substances Act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance; (d) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order and does not become subject to a deportation order during the period of the sentence; (e) The standard sentence range for the current offense is greater than one year; and (f) The offender has not received a drug offender sentencing alternative more than once in the prior ten years before the current offense. (2) A motion for a sentence under this section may be made by the court, the offender, or the state. If the sentencing court determines that the offender is eligible for this alternative, the court may order an examination of the offender. The examination shall, at a minimum, address the following issues: (a) Whether the offender suffers from drug addiction; (b) Whether the addiction is such that there is a probability that criminal behavior will occur in the future; (c) Whether effective treatment for the offender’s addiction is available from a provider that has been licensed or certified by the division of alcohol and substance abuse of the department of social and health services; and (d) Whether the offender and the community will benefit from the use of the alternative. (3) The examination report must contain: (a) Information on the issues required to be addressed in subsection (2) of this section; and (b) A proposed treatment plan that must, at a minimum, contain: (i) A proposed treatment provider that has been licensed or certified by the division of alcohol and substance abuse of the department of social and health services; (ii) The recommended frequency and length of treatment, including both residential chemical dependency treatment and treatment in the community; (iii) A proposed monitoring plan, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others; and (iv) Recommended crime-related prohibitions and affirmative conditions. [Title 9 RCW—page 156] (4) After receipt of the examination report, if the court determines that a sentence under this section is appropriate, the court shall waive imposition of a sentence within the standard sentence range and impose a sentence consisting of either a prison-based alternative under subsection (5) of this section or a residential chemical dependency treatment-based alternative under subsection (6) of this section. The residential chemical dependency treatment-based alternative is only available if the midpoint of the standard range is twenty-four months or less. (5) The prison-based alternative shall include: (a) A period of total confinement in a state facility for one-half of the midpoint of the standard sentence range or twelve months, whichever is greater. During incarceration in the state facility, offenders sentenced under this subsection shall undergo a comprehensive substance abuse assessment and receive, within available resources, treatment services appropriate for the offender. The treatment services shall be designed by the division of alcohol and substance abuse of the department of social and health services, in cooperation with the department of corrections; (b) The remainder of the midpoint of the standard range as a term of community custody which must include appropriate substance abuse treatment in a program that has been approved by the division of alcohol and substance abuse of the department of social and health services. If the department finds that conditions have been willfully violated, the offender may be reclassified to serve the remaining balance of the original sentence. An offender who fails to complete the program or who is administratively terminated from the program shall be reclassified to serve the unexpired term of his or her sentence as ordered by the sentencing court; (c) Crime-related prohibitions including a condition not to use illegal controlled substances; (d) A requirement to submit to urinalysis or other testing to monitor that status; and (e) A term of community custody pursuant to RCW 9.94A.715 to be imposed upon failure to complete or administrative termination from the special drug offender sentencing alternative program. (6) The residential chemical dependency treatmentbased alternative shall include: (a) A term of community custody equal to one-half of the midpoint of the standard sentence range or two years, whichever is greater, conditioned on the offender entering and remaining in residential chemical dependency treatment certified under chapter 70.96A RCW for a period set by the court between three and six months. If the court imposes a term of community custody, the department shall, within available resources, make chemical dependency assessment and treatment services available to the offender during the term of community custody. The court shall impose, as conditions of community custody, treatment and other conditions as proposed in the plan under subsection (3)(b) of this section. The department may impose conditions and sanctions as authorized in RCW 9.94A.715 (2), (3), (6), and (7), 9.94A.737, and 9.94A.740. The court shall schedule a progress hearing during the period of residential chemical dependency treatment, and schedule a treatment termination hearing for three months before the expiration of the term of community custody; (2006 Ed.) Sentencing Reform Act of 1981 (b) Before the progress hearing and treatment termination hearing, the treatment provider and the department shall submit written reports to the court and parties regarding the offender’s compliance with treatment and monitoring requirements, and recommendations regarding termination from treatment. At the hearing, the court may: (i) Authorize the department to terminate the offender’s community custody status on the expiration date determined under (a) of this subsection; or (ii) Continue the hearing to a date before the expiration date of community custody, with or without modifying the conditions of community custody; or (iii) Impose a term of total confinement equal to one-half the midpoint of the standard sentence range, followed by a term of community custody under RCW 9.94A.715; (c) If the court imposes a term of total confinement under (b)(iii) of this subsection, the department shall, within available resources, make chemical dependency assessment and treatment services available to the offender during the terms of total confinement and community custody. (7) If the court imposes a sentence under this section, the court may prohibit the offender from using alcohol or controlled substances and may require that the monitoring for controlled substances be conducted by the department or by a treatment alternatives to street crime program or a comparable court or agency-referred program. The offender may be required to pay thirty dollars per month while on community custody to offset the cost of monitoring. In addition, the court may impose any of the following conditions: (a) Devote time to a specific employment or training; (b) Remain within prescribed geographical boundaries and notify the court or the community corrections officer before any change in the offender’s address or employment; (c) Report as directed to a community corrections officer; (d) Pay all court-ordered legal financial obligations; (e) Perform community restitution work; (f) Stay out of areas designated by the sentencing court; (g) Such other conditions as the court may require such as affirmative conditions. (8)(a) The court may bring any offender sentenced under this section back into court at any time on its own initiative to evaluate the offender’s progress in treatment or to determine if any violations of the conditions of the sentence have occurred. (b) If the offender is brought back to court, the court may modify the terms of the community custody or impose sanctions under (c) of this subsection. (c) The court may order the offender to serve a term of total confinement within the standard range of the offender’s current offense at any time during the period of community custody if the offender violates the conditions of the sentence or if the offender is failing to make satisfactory progress in treatment. (d) An offender ordered to serve a term of total confinement under (c) of this subsection shall receive credit for any time previously served under this section. (9) If an offender sentenced to the prison-based alternative under subsection (5) of this section is found by the United States attorney general to be subject to a deportation order, a hearing shall be held by the department unless (2006 Ed.) 9.94A.660 waived by the offender, and, if the department finds that the offender is subject to a valid deportation order, the department may administratively terminate the offender from the program and reclassify the offender to serve the remaining balance of the original sentence. (10) An offender sentenced under this section shall be subject to all rules relating to earned release time with respect to any period served in total confinement. (11) Costs of examinations and preparing treatment plans under subsections (2) and (3) of this section may be paid, at the option of the county, from funds provided to the county from the criminal justice treatment account under RCW 70.96A.350. [2006 c 339 § 302; 2005 c 460 § 1. Prior: 2002 c 290 § 20; 2002 c 175 § 10; 2001 c 10 § 4; 2000 c 28 § 19.] Intent—Part headings not law—2006 c 339: See notes following RCW 70.96A.325. Application—2005 c 460: "This act applies to sentences imposed on or after October 1, 2005." [2005 c 460 § 2.] Effective date—2005 c 460: "This act takes effect October 1, 2005." [2005 c 460 § 3.] Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Effective date—2002 c 175: See note following RCW 7.80.130. Intent—Effective date—2001 c 10: See notes following RCW 9.94A.505. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.660 9.94A.660 Drug offender sentencing alternative. (Effective July 1, 2007.) (1) An offender is eligible for the special drug offender sentencing alternative if: (a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533 (3) or (4); (b) The offender is convicted of a felony that is not a felony driving while under the influence of intoxicating liquor or any drug under RCW 46.61.502(6) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug under RCW 46.61.504(6); (c) The offender has no current or prior convictions for a sex offense at any time or violent offense within ten years before conviction of the current offense, in this state, another state, or the United States; (d) For a violation of the Uniform Controlled Substances Act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance; (e) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order and does not become subject to a deportation order during the period of the sentence; (f) The standard sentence range for the current offense is greater than one year; and (g) The offender has not received a drug offender sentencing alternative more than once in the prior ten years before the current offense. [Title 9 RCW—page 157] 9.94A.660 Title 9 RCW: Crimes and Punishments (2) A motion for a sentence under this section may be made by the court, the offender, or the state. If the sentencing court determines that the offender is eligible for this alternative, the court may order an examination of the offender. The examination shall, at a minimum, address the following issues: (a) Whether the offender suffers from drug addiction; (b) Whether the addiction is such that there is a probability that criminal behavior will occur in the future; (c) Whether effective treatment for the offender’s addiction is available from a provider that has been licensed or certified by the division of alcohol and substance abuse of the department of social and health services; and (d) Whether the offender and the community will benefit from the use of the alternative. (3) The examination report must contain: (a) Information on the issues required to be addressed in subsection (2) of this section; and (b) A proposed treatment plan that must, at a minimum, contain: (i) A proposed treatment provider that has been licensed or certified by the division of alcohol and substance abuse of the department of social and health services; (ii) The recommended frequency and length of treatment, including both residential chemical dependency treatment and treatment in the community; (iii) A proposed monitoring plan, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others; and (iv) Recommended crime-related prohibitions and affirmative conditions. (4) After receipt of the examination report, if the court determines that a sentence under this section is appropriate, the court shall waive imposition of a sentence within the standard sentence range and impose a sentence consisting of either a prison-based alternative under subsection (5) of this section or a residential chemical dependency treatment-based alternative under subsection (6) of this section. The residential chemical dependency treatment-based alternative is only available if the midpoint of the standard range is twenty-four months or less. (5) The prison-based alternative shall include: (a) A period of total confinement in a state facility for one-half of the midpoint of the standard sentence range or twelve months, whichever is greater. During incarceration in the state facility, offenders sentenced under this subsection shall undergo a comprehensive substance abuse assessment and receive, within available resources, treatment services appropriate for the offender. The treatment services shall be designed by the division of alcohol and substance abuse of the department of social and health services, in cooperation with the department of corrections; (b) The remainder of the midpoint of the standard range as a term of community custody which must include appropriate substance abuse treatment in a program that has been approved by the division of alcohol and substance abuse of the department of social and health services. If the department finds that conditions have been willfully violated, the offender may be reclassified to serve the remaining balance of the original sentence. An offender who fails to complete the program or who is administratively terminated from the [Title 9 RCW—page 158] program shall be reclassified to serve the unexpired term of his or her sentence as ordered by the sentencing court; (c) Crime-related prohibitions including a condition not to use illegal controlled substances; (d) A requirement to submit to urinalysis or other testing to monitor that status; and (e) A term of community custody pursuant to RCW 9.94A.715 to be imposed upon failure to complete or administrative termination from the special drug offender sentencing alternative program. (6) The residential chemical dependency treatmentbased alternative shall include: (a) A term of community custody equal to one-half of the midpoint of the standard sentence range or two years, whichever is greater, conditioned on the offender entering and remaining in residential chemical dependency treatment certified under chapter 70.96A RCW for a period set by the court between three and six months. If the court imposes a term of community custody, the department shall, within available resources, make chemical dependency assessment and treatment services available to the offender during the term of community custody. The court shall impose, as conditions of community custody, treatment and other conditions as proposed in the plan under subsection (3)(b) of this section. The department may impose conditions and sanctions as authorized in RCW 9.94A.715 (2), (3), (6), and (7), 9.94A.737, and 9.94A.740. The court shall schedule a progress hearing during the period of residential chemical dependency treatment, and schedule a treatment termination hearing for three months before the expiration of the term of community custody; (b) Before the progress hearing and treatment termination hearing, the treatment provider and the department shall submit written reports to the court and parties regarding the offender’s compliance with treatment and monitoring requirements, and recommendations regarding termination from treatment. At the hearing, the court may: (i) Authorize the department to terminate the offender’s community custody status on the expiration date determined under (a) of this subsection; or (ii) Continue the hearing to a date before the expiration date of community custody, with or without modifying the conditions of community custody; or (iii) Impose a term of total confinement equal to one-half the midpoint of the standard sentence range, followed by a term of community custody under RCW 9.94A.715; (c) If the court imposes a term of total confinement under (b)(iii) of this subsection, the department shall, within available resources, make chemical dependency assessment and treatment services available to the offender during the terms of total confinement and community custody. (7) If the court imposes a sentence under this section, the court may prohibit the offender from using alcohol or controlled substances and may require that the monitoring for controlled substances be conducted by the department or by a treatment alternatives to street crime program or a comparable court or agency-referred program. The offender may be required to pay thirty dollars per month while on community custody to offset the cost of monitoring. In addition, the court may impose any of the following conditions: (a) Devote time to a specific employment or training; (2006 Ed.) Sentencing Reform Act of 1981 (b) Remain within prescribed geographical boundaries and notify the court or the community corrections officer before any change in the offender’s address or employment; (c) Report as directed to a community corrections officer; (d) Pay all court-ordered legal financial obligations; (e) Perform community restitution work; (f) Stay out of areas designated by the sentencing court; (g) Such other conditions as the court may require such as affirmative conditions. (8)(a) The court may bring any offender sentenced under this section back into court at any time on its own initiative to evaluate the offender’s progress in treatment or to determine if any violations of the conditions of the sentence have occurred. (b) If the offender is brought back to court, the court may modify the terms of the community custody or impose sanctions under (c) of this subsection. (c) The court may order the offender to serve a term of total confinement within the standard range of the offender’s current offense at any time during the period of community custody if the offender violates the conditions of the sentence or if the offender is failing to make satisfactory progress in treatment. (d) An offender ordered to serve a term of total confinement under (c) of this subsection shall receive credit for any time previously served under this section. (9) If an offender sentenced to the prison-based alternative under subsection (5) of this section is found by the United States attorney general to be subject to a deportation order, a hearing shall be held by the department unless waived by the offender, and, if the department finds that the offender is subject to a valid deportation order, the department may administratively terminate the offender from the program and reclassify the offender to serve the remaining balance of the original sentence. (10) An offender sentenced under this section shall be subject to all rules relating to earned release time with respect to any period served in total confinement. (11) Costs of examinations and preparing treatment plans under subsections (2) and (3) of this section may be paid, at the option of the county, from funds provided to the county from the criminal justice treatment account under RCW 70.96A.350. [2006 c 339 § 302; 2006 c 73 § 10; 2005 c 460 § 1. Prior: 2002 c 290 § 20; 2002 c 175 § 10; 2001 c 10 § 4; 2000 c 28 § 19.] Reviser’s note: This section was amended by 2006 c 73 § 10 and by 2006 c 339 § 302, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Intent—Part headings not law—2006 c 339: See notes following RCW 70.96A.325. Effective date—2006 c 73: See note following RCW 46.61.502. Application—2005 c 460: "This act applies to sentences imposed on or after October 1, 2005." [2005 c 460 § 2.] Effective date—2005 c 460: "This act takes effect October 1, 2005." [2005 c 460 § 3.] Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Effective date—2002 c 175: See note following RCW 7.80.130. (2006 Ed.) 9.94A.670 Intent—Effective date—2001 c 10: See notes following RCW 9.94A.505. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.670 9.94A.670 Special sex offender sentencing alternative. (1) Unless the context clearly requires otherwise, the definitions in this subsection apply to this section only. (a) "Sex offender treatment provider" or "treatment provider" means a certified sex offender treatment provider or a certified affiliate sex offender treatment provider as defined in RCW 18.155.020. (b) "Substantial bodily harm" means bodily injury that involves a temporary but substantial disfigurement, or that causes a temporary but substantial loss or impairment of the function of any body part or organ, or that causes a fracture of any body part or organ. (c) "Victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a result of the crime charged. "Victim" also means a parent or guardian of a victim who is a minor child unless the parent or guardian is the perpetrator of the offense. (2) An offender is eligible for the special sex offender sentencing alternative if: (a) The offender has been convicted of a sex offense other than a violation of RCW 9A.44.050 or a sex offense that is also a serious violent offense. If the conviction results from a guilty plea, the offender must, as part of his or her plea of guilty, voluntarily and affirmatively admit he or she committed all of the elements of the crime to which the offender is pleading guilty. This alternative is not available to offenders who plead guilty to the offense charged under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and State v. Newton, 87 Wash.2d 363, 552 P.2d 682 (1976); (b) The offender has no prior convictions for a sex offense as defined in RCW 9.94A.030 or any other felony sex offenses in this or any other state; (c) The offender has no prior adult convictions for a violent offense that was committed within five years of the date the current offense was committed; (d) The offense did not result in substantial bodily harm to the victim; (e) The offender had an established relationship with, or connection to, the victim such that the sole connection with the victim was not the commission of the crime; and (f) The offender’s standard sentence range for the offense includes the possibility of confinement for less than eleven years. (3) If the court finds the offender is eligible for this alternative, the court, on its own motion or the motion of the state or the offender, may order an examination to determine whether the offender is amenable to treatment. (a) The report of the examination shall include at a minimum the following: (i) The offender’s version of the facts and the official version of the facts; (ii) The offender’s offense history; (iii) An assessment of problems in addition to alleged deviant behaviors; (iv) The offender’s social and employment situation; and [Title 9 RCW—page 159] 9.94A.670 Title 9 RCW: Crimes and Punishments (v) Other evaluation measures used. The report shall set forth the sources of the examiner’s information. (b) The examiner shall assess and report regarding the offender’s amenability to treatment and relative risk to the community. A proposed treatment plan shall be provided and shall include, at a minimum: (i) Frequency and type of contact between offender and therapist; (ii) Specific issues to be addressed in the treatment and description of planned treatment modalities; (iii) Monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others; (iv) Anticipated length of treatment; and (v) Recommended crime-related prohibitions and affirmative conditions, which must include, to the extent known, an identification of specific activities or behaviors that are precursors to the offender’s offense cycle, including, but not limited to, activities or behaviors such as viewing or listening to pornography or use of alcohol or controlled substances. (c) The court on its own motion may order, or on a motion by the state shall order, a second examination regarding the offender’s amenability to treatment. The examiner shall be selected by the party making the motion. The offender shall pay the cost of any second examination ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost. (4) After receipt of the reports, the court shall consider whether the offender and the community will benefit from use of this alternative, consider whether the alternative is too lenient in light of the extent and circumstances of the offense, consider whether the offender has victims in addition to the victim of the offense, consider whether the offender is amenable to treatment, consider the risk the offender would present to the community, to the victim, or to persons of similar age and circumstances as the victim, and consider the victim’s opinion whether the offender should receive a treatment disposition under this section. The court shall give great weight to the victim’s opinion whether the offender should receive a treatment disposition under this section. If the sentence imposed is contrary to the victim’s opinion, the court shall enter written findings stating its reasons for imposing the treatment disposition. The fact that the offender admits to his or her offense does not, by itself, constitute amenability to treatment. If the court determines that this alternative is appropriate, the court shall then impose a sentence or, pursuant to RCW 9.94A.712, a minimum term of sentence, within the standard sentence range. If the sentence imposed is less than eleven years of confinement, the court may suspend the execution of the sentence and impose the following conditions of suspension: (a) The court shall order the offender to serve a term of confinement of up to twelve months or the maximum term within the standard range, whichever is less. The court may order the offender to serve a term of confinement greater than twelve months or the maximum term within the standard range based on the presence of an aggravating circumstance listed in RCW 9.94A.535(3). In no case shall the term of confinement exceed the statutory maximum sentence for the offense. The court may order the offender to serve all or part [Title 9 RCW—page 160] of his or her term of confinement in partial confinement. An offender sentenced to a term of confinement under this subsection is not eligible for earned release under RCW 9.92.151 or 9.94A.728. (b) The court shall place the offender on community custody for the length of the suspended sentence, the length of the maximum term imposed pursuant to RCW 9.94A.712, or three years, whichever is greater, and require the offender to comply with any conditions imposed by the department under RCW 9.94A.720. (c) The court shall order treatment for any period up to five years in duration. The court, in its discretion, shall order outpatient sex offender treatment or inpatient sex offender treatment, if available. A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment. The offender shall not change sex offender treatment providers or treatment conditions without first notifying the prosecutor, the community corrections officer, and the court. If any party or the court objects to a proposed change, the offender shall not change providers or conditions without court approval after a hearing. (d) As conditions of the suspended sentence, the court shall impose specific prohibitions and affirmative conditions relating to the known precursor activities or behaviors identified in the proposed treatment plan under subsection (3)(b)(v) of this section or identified in an annual review under subsection (7)(b) of this section. (5) As conditions of the suspended sentence, the court may impose one or more of the following: (a) Crime-related prohibitions; (b) Require the offender to devote time to a specific employment or occupation; (c) Require the offender to remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender’s address or employment; (d) Require the offender to report as directed to the court and a community corrections officer; (e) Require the offender to pay all court-ordered legal financial obligations as provided in RCW 9.94A.030; (f) Require the offender to perform community restitution work; or (g) Require the offender to reimburse the victim for the cost of any counseling required as a result of the offender’s crime. (6) At the time of sentencing, the court shall set a treatment termination hearing for three months prior to the anticipated date for completion of treatment. (7)(a) The sex offender treatment provider shall submit quarterly reports on the offender’s progress in treatment to the court and the parties. The report shall reference the treatment plan and include at a minimum the following: Dates of attendance, offender’s compliance with requirements, treatment activities, the offender’s relative progress in treatment, and any other material specified by the court at sentencing. (b) The court shall conduct a hearing on the offender’s progress in treatment at least once a year. At least fourteen days prior to the hearing, notice of the hearing shall be given to the victim. The victim shall be given the opportunity to make statements to the court regarding the offender’s super(2006 Ed.) Sentencing Reform Act of 1981 vision and treatment. At the hearing, the court may modify conditions of community custody including, but not limited to, crime-related prohibitions and affirmative conditions relating to activities and behaviors identified as part of, or relating to precursor activities and behaviors in, the offender’s offense cycle or revoke the suspended sentence. (8) At least fourteen days prior to the treatment termination hearing, notice of the hearing shall be given to the victim. The victim shall be given the opportunity to make statements to the court regarding the offender’s supervision and treatment. Prior to the treatment termination hearing, the treatment provider and community corrections officer shall submit written reports to the court and parties regarding the offender’s compliance with treatment and monitoring requirements, and recommendations regarding termination from treatment, including proposed community custody conditions. The court may order an evaluation regarding the advisability of termination from treatment by a sex offender treatment provider who may not be the same person who treated the offender under subsection (4) of this section or any person who employs, is employed by, or shares profits with the person who treated the offender under subsection (4) of this section unless the court has entered written findings that such evaluation is in the best interest of the victim and that a successful evaluation of the offender would otherwise be impractical. The offender shall pay the cost of the evaluation. At the treatment termination hearing the court may: (a) Modify conditions of community custody, and either (b) terminate treatment, or (c) extend treatment in two-year increments for up to the remaining period of community custody. (9)(a) If a violation of conditions other than a second violation of the prohibitions or affirmative conditions relating to precursor behaviors or activities imposed under subsection (4)(d) or (7)(b) of this section occurs during community custody, the department shall either impose sanctions as provided for in RCW 9.94A.737(2)(a) or refer the violation to the court and recommend revocation of the suspended sentence as provided for in subsections (6) and (8) of this section. (b) If a second violation of the prohibitions or affirmative conditions relating to precursor behaviors or activities imposed under subsection (4)(d) or (7)(b) of this section occurs during community custody, the department shall refer the violation to the court and recommend revocation of the suspended sentence as provided in subsection (10) of this section. (10) The court may revoke the suspended sentence at any time during the period of community custody and order execution of the sentence if: (a) The offender violates the conditions of the suspended sentence, or (b) the court finds that the offender is failing to make satisfactory progress in treatment. All confinement time served during the period of community custody shall be credited to the offender if the suspended sentence is revoked. (11) The offender’s sex offender treatment provider may not be the same person who examined the offender under subsection (3) of this section or any person who employs, is employed by, or shares profits with the person who examined the offender under subsection (3) of this section, unless the court has entered written findings that such treatment is in the best interests of the victim and that successful treatment of (2006 Ed.) 9.94A.680 the offender would otherwise be impractical. Examinations and treatment ordered pursuant to this subsection shall only be conducted by certified sex offender treatment providers or certified affiliate sex offender treatment providers under chapter 18.155 RCW unless the court finds that: (a) The offender has already moved to another state or plans to move to another state for reasons other than circumventing the certification requirements; or (b)(i) No certified sex offender treatment providers or certified affiliate sex offender treatment providers are available for treatment within a reasonable geographical distance of the offender’s home; and (ii) The evaluation and treatment plan comply with this section and the rules adopted by the department of health. (12) If the offender is less than eighteen years of age when the charge is filed, the state shall pay for the cost of initial evaluation and treatment. [2006 c 133 § 1. Prior: 2004 c 176 § 4; 2004 c 38 § 9; 2002 c 175 § 11; 2001 2nd sp.s. c 12 § 316; 2000 c 28 § 20.] Severability—Effective date—2004 c 176: See notes following RCW 9.94A.515. Effective date—2004 c 38: See note following RCW 18.155.075. Effective date—2002 c 175: See note following RCW 7.80.130. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.680 Alternatives to total confinement. Alternatives to total confinement are available for offenders with sentences of one year or less. These alternatives include the following sentence conditions that the court may order as substitutes for total confinement: (1) One day of partial confinement may be substituted for one day of total confinement; (2) In addition, for offenders convicted of nonviolent offenses only, eight hours of community restitution may be substituted for one day of total confinement, with a maximum conversion limit of two hundred forty hours or thirty days. Community restitution hours must be completed within the period of community supervision or a time period specified by the court, which shall not exceed twenty-four months, pursuant to a schedule determined by the department; and (3) For offenders convicted of nonviolent and nonsex offenses, the court may authorize county jails to convert jail confinement to an available county supervised community option and may require the offender to perform affirmative conduct pursuant to RCW 9.94A.607. For sentences of nonviolent offenders for one year or less, the court shall consider and give priority to available alternatives to total confinement and shall state its reasons in writing on the judgment and sentence form if the alternatives are not used. [2002 c 175 § 12; 1999 c 197 § 6. Prior: 1988 c 157 § 4; 1988 c 155 § 3; 1984 c 209 § 21; 1983 c 115 § 9. Formerly RCW 9.94A.380.] 9.94A.680 Effective date—2002 c 175: See note following RCW 7.80.130. Severability—1999 c 197: See note following RCW 9.94A.030. Application—1988 c 157: See note following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. [Title 9 RCW—page 161] 9.94A.685 Title 9 RCW: Crimes and Punishments 9.94A.685 9.94A.685 Alien offenders. (1) Subject to the limitations of this section, any alien offender committed to the custody of the department under the sentencing reform act of 1981, chapter 9.94A RCW, who has been found by the United States attorney general to be subject to a final order of deportation or exclusion, may be placed on conditional release status and released to the immigration and naturalization service for deportation at any time prior to the expiration of the offender’s term of confinement. Conditional release shall continue until the expiration of the statutory maximum sentence provided by law for the crime or crimes of which the offender was convicted. If the offender has multiple current convictions, the statutory maximum sentence allowed by law for each crime shall run concurrently. (2) No offender may be released under this section unless the secretary or the secretary’s designee find [finds] that such release is in the best interests of the state of Washington. Further, releases under this section may occur only with the approval of the sentencing court and the prosecuting attorney of the county of conviction. (3) No offender may be released under this section who is serving a sentence for a violent offense or sex offense, as defined in RCW 9.94A.030, or any other offense that is a crime against a person. (4) The unserved portion of the term of confinement of any offender released under this section shall be tolled at the time the offender is released to the immigration and naturalization service for deportation. Upon the release of an offender to the immigration and naturalization service, the department shall issue a warrant for the offender’s arrest within the United States. This warrant shall remain in effect until the expiration of the offender’s conditional release. (5) Upon arrest of an offender, the department shall seek extradition as necessary and the offender shall be returned to the department for completion of the unserved portion of the offender’s term of total confinement. The offender shall also be required to fully comply with all the terms and conditions of the sentence. (6) Alien offenders released to the immigration and naturalization service for deportation under this section are not thereby relieved of their obligation to pay restitution or other legal financial obligations ordered by the sentencing court. (7) Any offender released pursuant to this section who returns illegally to the United States may not thereafter be released again pursuant to this section. (8) The secretary is authorized to take all reasonable actions to implement this section and shall assist federal authorities in prosecuting alien offenders who may illegally reenter the United States and enter the state of Washington. [1993 c 419 § 1. Formerly RCW 9.94A.280.] (iii) Is not currently subject to a sentence for, or being prosecuted for, a violation of the uniform controlled substances act or a criminal solicitation to commit such a violation under chapter 9A.28 or 69.50 RCW. (b) The length of the work ethic camp shall be at least one hundred twenty days and not more than one hundred eighty days. (2) If the sentencing court determines that the offender is eligible for the work ethic camp and is likely to qualify under subsection (3) of this section, the judge shall impose a sentence within the standard sentence range and may recommend that the offender serve the sentence at a work ethic camp. In sentencing an offender to the work ethic camp, the court shall specify: (a) That upon completion of the work ethic camp the offender shall be released on community custody for any remaining time of total confinement; (b) the applicable conditions of supervision on community custody status as required by RCW 9.94A.700(4) and authorized by RCW 9.94A.700(5); and (c) that violation of the conditions may result in a return to total confinement for the balance of the offender’s remaining time of confinement. (3) The department shall place the offender in the work ethic camp program, subject to capacity, unless: (a) The department determines that the offender has physical or mental impairments that would prevent participation and completion of the program; (b) the department determines that the offender’s custody level prevents placement in the program; (c) the offender refuses to agree to the terms and conditions of the program; (d) the offender has been found by the United States attorney general to be subject to a deportation detainer or order; or (e) the offender has participated in the work ethic camp program in the past. (4) An offender who fails to complete the work ethic camp program, who is administratively terminated from the program, or who otherwise violates any conditions of supervision, as defined by the department, shall be reclassified to serve the unexpired term of his or her sentence as ordered by the sentencing court and shall be subject to all rules relating to earned release time. (5) During the last two weeks prior to release from the work ethic camp program the department shall provide the offender with comprehensive transition training. [2000 c 28 § 21; 1999 c 197 § 5; 1995 1st sp.s. c 19 § 20; 1993 c 338 § 4. Formerly RCW 9.94A.137.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Severability—1999 c 197: See note following RCW 9.94A.030. Findings—Purpose—Short title—Severability—Effective date— 1995 1st sp.s. c 19: See notes following RCW 72.09.450. Findings—Intent—1993 c 338: See RCW 72.09.400. Severability—Effective date—1993 c 338: See notes following RCW 72.09.400. 9.94A.690 9.94A.690 Work ethic camp program—Eligibility— Sentencing. (Effective until July 1, 2007.) (1)(a) An offender is eligible to be sentenced to a work ethic camp if the offender: (i) Is sentenced to a term of total confinement of not less than twelve months and one day or more than thirty-six months; (ii) Has no current or prior convictions for any sex offenses or for violent offenses; and [Title 9 RCW—page 162] 9.94A.690 9.94A.690 Work ethic camp program—Eligibility— Sentencing. (Effective July 1, 2007.) (1)(a) An offender is eligible to be sentenced to a work ethic camp if the offender: (i) Is sentenced to a term of total confinement of not less than twelve months and one day or more than thirty-six months; (ii) Has no current or prior convictions for any sex offenses or for violent offenses; and (2006 Ed.) Sentencing Reform Act of 1981 (iii) Is not currently subject to a sentence for, or being prosecuted for, a violation of felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)), a violation of physical control of a vehicle while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)), a violation of the uniform controlled substances act, or a criminal solicitation to commit such a violation under chapter 9A.28 or 69.50 RCW. (b) The length of the work ethic camp shall be at least one hundred twenty days and not more than one hundred eighty days. (2) If the sentencing court determines that the offender is eligible for the work ethic camp and is likely to qualify under subsection (3) of this section, the judge shall impose a sentence within the standard sentence range and may recommend that the offender serve the sentence at a work ethic camp. In sentencing an offender to the work ethic camp, the court shall specify: (a) That upon completion of the work ethic camp the offender shall be released on community custody for any remaining time of total confinement; (b) the applicable conditions of supervision on community custody status as required by RCW 9.94A.700(4) and authorized by RCW 9.94A.700(5); and (c) that violation of the conditions may result in a return to total confinement for the balance of the offender’s remaining time of confinement. (3) The department shall place the offender in the work ethic camp program, subject to capacity, unless: (a) The department determines that the offender has physical or mental impairments that would prevent participation and completion of the program; (b) the department determines that the offender’s custody level prevents placement in the program; (c) the offender refuses to agree to the terms and conditions of the program; (d) the offender has been found by the United States attorney general to be subject to a deportation detainer or order; or (e) the offender has participated in the work ethic camp program in the past. (4) An offender who fails to complete the work ethic camp program, who is administratively terminated from the program, or who otherwise violates any conditions of supervision, as defined by the department, shall be reclassified to serve the unexpired term of his or her sentence as ordered by the sentencing court and shall be subject to all rules relating to earned release time. (5) During the last two weeks prior to release from the work ethic camp program the department shall provide the offender with comprehensive transition training. [2006 c 73 § 11; 2000 c 28 § 21; 1999 c 197 § 5; 1995 1st sp.s. c 19 § 20; 1993 c 338 § 4. Formerly RCW 9.94A.137.] Effective date—2006 c 73: See note following RCW 46.61.502. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Severability—1999 c 197: See note following RCW 9.94A.030. Findings—Purpose—Short title—Severability—Effective date— 1995 1st sp.s. c 19: See notes following RCW 72.09.450. Findings—Intent—1993 c 338: See RCW 72.09.400. Severability—Effective date—1993 c 338: See notes following RCW 72.09.400. 9.94A.700 9.94A.700 Community placement. When a court sentences an offender to a term of total confinement in the custody of the department for any of the offenses specified in (2006 Ed.) 9.94A.700 this section, the court shall also sentence the offender to a term of community placement as provided in this section. Except as provided in RCW 9.94A.501, the department shall supervise any sentence of community placement imposed under this section. (1) The court shall order a one-year term of community placement for the following: (a) A sex offense or a serious violent offense committed after July 1, 1988, but before July 1, 1990; or (b) An offense committed on or after July 1, 1988, but before July 25, 1999, that is: (i) Assault in the second degree; (ii) Assault of a child in the second degree; (iii) A crime against persons where it is determined in accordance with RCW 9.94A.602 that the offender or an accomplice was armed with a deadly weapon at the time of commission; or (iv) A felony offense under chapter 69.50 or 69.52 RCW not sentenced under RCW 9.94A.660. (2) The court shall sentence the offender to a term of community placement of two years or up to the period of earned release awarded pursuant to RCW 9.94A.728, whichever is longer, for: (a) An offense categorized as a sex offense committed on or after July 1, 1990, but before June 6, 1996, including those sex offenses also included in other offense categories; (b) A serious violent offense other than a sex offense committed on or after July 1, 1990, but before July 1, 2000; or (c) A vehicular homicide or vehicular assault committed on or after July 1, 1990, but before July 1, 2000. (3) The community placement ordered under this section shall begin either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned release. When the court sentences an offender to the statutory maximum sentence then the community placement portion of the sentence shall consist entirely of the community custody to which the offender may become eligible. Any period of community custody actually served shall be credited against the community placement portion of the sentence. (4) Unless a condition is waived by the court, the terms of any community placement imposed under this section shall include the following conditions: (a) The offender shall report to and be available for contact with the assigned community corrections officer as directed; (b) The offender shall work at department-approved education, employment, or community restitution, or any combination thereof; (c) The offender shall not possess or consume controlled substances except pursuant to lawfully issued prescriptions; (d) The offender shall pay supervision fees as determined by the department; and (e) The residence location and living arrangements shall be subject to the prior approval of the department during the period of community placement. (5) As a part of any terms of community placement imposed under this section, the court may also order one or more of the following special conditions: [Title 9 RCW—page 163] 9.94A.705 Title 9 RCW: Crimes and Punishments (a) The offender shall remain within, or outside of, a specified geographical boundary; (b) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals; (c) The offender shall participate in crime-related treatment or counseling services; (d) The offender shall not consume alcohol; or (e) The offender shall comply with any crime-related prohibitions. (6) An offender convicted of a felony sex offense against a minor victim after June 6, 1996, shall comply with any terms and conditions of community placement imposed by the department relating to contact between the sex offender and a minor victim or a child of similar age or circumstance as a previous victim. (7) Prior to or during community placement, upon recommendation of the department, the sentencing court may remove or modify any conditions of community placement so as not to be more restrictive. [2003 c 379 § 4; 2002 c 175 § 13; 2000 c 28 § 22.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Effective date—2002 c 175: See note following RCW 7.80.130. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.705 9.94A.705 Community placement for specified offenders. Except for persons sentenced under RCW 9.94A.700(2) or 9.94A.710, when a court sentences a person to a term of total confinement to the custody of the department for a violent offense, any crime against persons under RCW 9.94A.411(2), or any felony offense under chapter 69.50 or 69.52 RCW not sentenced under RCW 9.94A.660, committed on or after July 25, 1999, but before July 1, 2000, the court shall in addition to the other terms of the sentence, sentence the offender to a one-year term of community placement beginning either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned release in accordance with RCW 9.94A.728 (1) and (2). When the court sentences the offender under this section to the statutory maximum period of confinement, then the community placement portion of the sentence shall consist entirely of such community custody to which the offender may become eligible, in accordance with RCW 9.94A.728 (1) and (2). Any period of community custody actually served shall be credited against the community placement portion of the sentence. Except as provided in RCW 9.94A.501, the department shall supervise any sentence of community placement or community custody imposed under this section. [2003 c 379 § 5; 2000 c 28 § 23.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.710 9.94A.710 Community custody for sex offenders. (1) When a court sentences a person to the custody of the department for an offense categorized as a sex offense, including those sex offenses also included in other offense categories, committed on or after June 6, 1996, and before July 1, 2000, [Title 9 RCW—page 164] the court shall, in addition to other terms of the sentence, sentence the offender to community custody for three years or up to the period of earned release awarded pursuant to RCW 9.94A.728, whichever is longer. The community custody shall begin either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned release. (2) Unless a condition is waived by the court, the terms of community custody imposed under this section shall be the same as those provided for in RCW 9.94A.700(4) and may include those provided for in RCW 9.94A.700(5). As part of any sentence that includes a term of community custody imposed under this section, the court shall also require the offender to comply with any conditions imposed by the department under RCW 9.94A.720. (3) At any time prior to the completion of a sex offender’s term of community custody, if the court finds that public safety would be enhanced, the court may impose and enforce an order extending any or all of the conditions imposed pursuant to this section for a period up to the maximum allowable sentence for the crime as it is classified in chapter 9A.20 RCW, regardless of the expiration of the offender’s term of community custody. If a violation of a condition extended under this subsection occurs after the expiration of the offender’s term of community custody, it shall be deemed a violation of the sentence for the purposes of RCW 9.94A.631 and may be punishable as contempt of court as provided for in RCW 7.21.040. [2000 c 28 § 24.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.712 Sentencing of nonpersistent offenders. (1) An offender who is not a persistent offender shall be sentenced under this section if the offender: (a) Is convicted of: (i) Rape in the first degree, rape in the second degree, rape of a child in the first degree, child molestation in the first degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; (ii) Any of the following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, assault of a child in the second degree, or burglary in the first degree; or (iii) An attempt to commit any crime listed in this subsection (1)(a); committed on or after September 1, 2001; or (b) Has a prior conviction for an offense listed in RCW 9.94A.030(33)(b), and is convicted of any sex offense which was committed after September 1, 2001. For purposes of this subsection (1)(b), failure to register is not a sex offense. (2) An offender convicted of rape of a child in the first or second degree or child molestation in the first degree who was seventeen years of age or younger at the time of the offense shall not be sentenced under this section. (3)(a) Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to a maximum term and a minimum term. 9.94A.712 (2006 Ed.) Sentencing Reform Act of 1981 (b) The maximum term shall consist of the statutory maximum sentence for the offense. (c)(i) Except as provided in (c)(ii) of this subsection, the minimum term shall be either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence. (ii) If the offense that caused the offender to be sentenced under this section was rape of a child in the first degree, rape of a child in the second degree, or child molestation in the first degree, and there has been a finding that the offense was predatory under RCW 9.94A.836, the minimum term shall be either the maximum of the standard sentence range for the offense or twenty-five years, whichever is greater. If the offense that caused the offender to be sentenced under this section was rape in the first degree, rape in the second degree, indecent liberties by forcible compulsion, or kidnapping in the first degree with sexual motivation, and there has been a finding that the victim was under the age of fifteen at the time of the offense under RCW 9.94A.837, the minimum term shall be either the maximum of the standard sentence range for the offense or twenty-five years, whichever is greater. If the offense that caused the offender to be sentenced under this section is rape in the first degree, rape in the second degree with forcible compulsion, indecent liberties with forcible compulsion, or kidnapping in the first degree with sexual motivation, and there has been a finding under RCW 9.94A.838 that the victim was, at the time of the offense, developmentally disabled, mentally disordered, or a frail elder or vulnerable adult, the minimum sentence shall be either the maximum of the standard sentence range for the offense or twenty-five years, whichever is greater. (d) The minimum terms in (c)(ii) of this subsection do not apply to a juvenile tried as an adult pursuant to RCW 13.04.030(1)(e) (i) or (v). The minimum term for such a juvenile shall be imposed under (c)(i) of this subsection. (4) A person sentenced under subsection (3) of this section shall serve the sentence in a facility or institution operated, or utilized under contract, by the state. (5) When a court sentences a person to the custody of the department under this section, the court shall, in addition to the other terms of the sentence, sentence the offender to community custody under the supervision of the department and the authority of the board for any period of time the person is released from total confinement before the expiration of the maximum sentence. (6)(a)(i) Unless a condition is waived by the court, the conditions of community custody shall include those provided for in RCW 9.94A.700(4). The conditions may also include those provided for in RCW 9.94A.700(5). The court may also order the offender to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender’s risk of reoffending, or the safety of the community, and the department and the board shall enforce such conditions pursuant to RCW 9.94A.713, 9.95.425, and 9.95.430. (ii) If the offense that caused the offender to be sentenced under this section was an offense listed in subsection (1)(a) of this section and the victim of the offense was under eighteen years of age at the time of the offense, the court shall, as a (2006 Ed.) 9.94A.713 condition of community custody, prohibit the offender from residing in a community protection zone. (b) As part of any sentence under this section, the court shall also require the offender to comply with any conditions imposed by the board under RCW 9.94A.713 and 9.95.420 through 9.95.435. [2006 c 124 § 3; (2006 c 124 § 2 expired July 1, 2006); 2006 c 122 § 5; (2006 c 122 § 4 expired July 1, 2006); 2005 c 436 § 2; 2004 c 176 § 3. Prior: 2001 2nd sp.s. c 12 § 303.] Reviser’s note: (1) 2005 c 436 § 6 (an expiration date section) was repealed by 2006 c 131 § 2. (2) This section was amended by 2006 c 122 § 5 and by 2006 c 124 § 3, each without reference to the other and without cognizance of its amendment by 2005 c 436 § 2. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Expiration date—2006 c 124 § 2: "Section 2 of this act expires July 1, 2006." [2006 c 124 § 4.] Effective date—2006 c 124: See note following RCW 9.94A.030. Effective date—2006 c 122 §§ 5 and 7: "Sections 5 and 7 of this act take effect July 1, 2006." [2006 c 122 § 9.] Expiration date—2006 c 122 §§ 4 and 6: "Sections 4 and 6 of this act expire July 1, 2006." [2006 c 122 § 8.] Effective date—2006 c 122 §§ 1-4 and 6: See note following RCW 9.94A.836. Severability—Effective date—2004 c 176: See notes following RCW 9.94A.515. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.94A.713 9.94A.713 Nonpersistent offenders—Conditions. (1) When an offender is sentenced under RCW 9.94A.712, the department shall assess the offender’s risk of recidivism and shall recommend to the board any additional or modified conditions of the offender’s community custody based upon the risk to community safety. In addition, the department shall make a recommendation with regard to, and the board may require the offender to participate in, rehabilitative programs, or otherwise perform affirmative conduct, and obey all laws. The department may recommend and, if recommended, the board may impose electronic monitoring as a condition of community custody for the offender. Within the resources made available by the department for this purpose, the department shall carry out any monitoring imposed under this section using the most appropriate technology given the individual circumstances of the offender. As used in this section, "electronic monitoring" means the monitoring of an offender using an electronic offender tracking system including, but not limited to, a system using radio frequency or active or passive global positioning technology. The board must consider and may impose department-recommended conditions. (2) The department may not recommend and the board may not impose conditions that are contrary to those ordered by the court and may not contravene or decrease courtimposed conditions. The board shall notify the offender in writing of any such conditions or modifications. (3) In setting, modifying, and enforcing conditions of community custody, the department shall be deemed to be performing a quasi-judicial function. [Title 9 RCW—page 165] 9.94A.715 Title 9 RCW: Crimes and Punishments (4) If an offender violates conditions imposed by the court, the department, or the board during community custody, the board or the department may transfer the offender to a more restrictive confinement status and impose other available sanctions as provided in RCW 9.95.435. (5) By the close of the next business day, after receiving notice of a condition imposed by the board or the department, an offender may request an administrative hearing under rules adopted by the board. The condition shall remain in effect unless the hearing examiner finds that it is not reasonably related to any of the following: (a) The crime of conviction; (b) The offender’s risk of reoffending; or (c) The safety of the community. (6) An offender released by the board under RCW 9.95.420 shall be subject to the supervision of the department until the expiration of the maximum term of the sentence. The department shall monitor the offender’s compliance with conditions of community custody imposed by the court, department, or board, and promptly report any violations to the board. Any violation of conditions of community custody established or modified by the board shall be subject to the provisions of RCW 9.95.425 through 9.95.440. (7) If the department finds that an emergency exists requiring the immediate imposition of conditions of release in addition to those set by the board under RCW 9.95.420 and subsection (1) of this section in order to prevent the offender from committing a crime, the department may impose additional conditions. The department may not impose conditions that are contrary to those set by the board or the court and may not contravene or decrease court-imposed or boardimposed conditions. Conditions imposed under this subsection shall take effect immediately after notice to the offender by personal service, but shall not remain in effect longer than seven working days unless approved by the board under subsection (1) of this section within seven working days. [2006 c 130 § 1; 2001 2nd sp.s. c 12 § 304.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.94A.715 9.94A.715 Community custody for specified offenders—Conditions. (1) When a court sentences a person to the custody of the department for a sex offense not sentenced under RCW 9.94A.712, a violent offense, any crime against persons under RCW 9.94A.411(2), or a felony offense under chapter 69.50 or 69.52 RCW, committed on or after July 1, 2000, or when a court sentences a person to a term of confinement of one year or less for a violation of RCW 9A.44.130(10)(a) committed on or after June 7, 2006, the court shall in addition to the other terms of the sentence, sentence the offender to community custody for the community custody range established under RCW 9.94A.850 or up to the period of earned release awarded pursuant to RCW 9.94A.728 (1) and (2), whichever is longer. The community custody shall begin: (a) Upon completion of the term of confinement; (b) at such time as the offender is transferred to community custody in lieu of earned release in accordance with RCW 9.94A.728 (1) and (2); or (c) with regard to offenders sentenced under RCW 9.94A.660, upon failure to [Title 9 RCW—page 166] complete or administrative termination from the special drug offender sentencing alternative program. Except as provided in RCW 9.94A.501, the department shall supervise any sentence of community custody imposed under this section. (2)(a) Unless a condition is waived by the court, the conditions of community custody shall include those provided for in RCW 9.94A.700(4). The conditions may also include those provided for in RCW 9.94A.700(5). The court may also order the offender to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender’s risk of reoffending, or the safety of the community, and the department shall enforce such conditions pursuant to subsection (6) of this section. (b) As part of any sentence that includes a term of community custody imposed under this subsection, the court shall also require the offender to comply with any conditions imposed by the department under RCW 9.94A.720. The department shall assess the offender’s risk of reoffense and may establish and modify additional conditions of the offender’s community custody based upon the risk to community safety. In addition, the department may require the offender to participate in rehabilitative programs, or otherwise perform affirmative conduct, and to obey all laws. The department may impose electronic monitoring as a condition of community custody for an offender sentenced to a term of community custody under this section pursuant to a conviction for a sex offense. Within the resources made available by the department for this purpose, the department shall carry out any electronic monitoring imposed under this section using the most appropriate technology given the individual circumstances of the offender. As used in this section, "electronic monitoring" means the monitoring of an offender using an electronic offender tracking system including, but not limited to, a system using radio frequency or active or passive global positioning system technology. (c) The department may not impose conditions that are contrary to those ordered by the court and may not contravene or decrease court imposed conditions. The department shall notify the offender in writing of any such conditions or modifications. In setting, modifying, and enforcing conditions of community custody, the department shall be deemed to be performing a quasi-judicial function. (3) If an offender violates conditions imposed by the court or the department pursuant to this section during community custody, the department may transfer the offender to a more restrictive confinement status and impose other available sanctions as provided in RCW 9.94A.737 and 9.94A.740. (4) Except for terms of community custody under RCW 9.94A.670, the department shall discharge the offender from community custody on a date determined by the department, which the department may modify, based on risk and performance of the offender, within the range or at the end of the period of earned release, whichever is later. (5) At any time prior to the completion or termination of a sex offender’s term of community custody, if the court finds that public safety would be enhanced, the court may impose and enforce an order extending any or all of the conditions imposed pursuant to this section for a period up to the maximum allowable sentence for the crime as it is classified (2006 Ed.) Sentencing Reform Act of 1981 in chapter 9A.20 RCW, regardless of the expiration of the offender’s term of community custody. If a violation of a condition extended under this subsection occurs after the expiration of the offender’s term of community custody, it shall be deemed a violation of the sentence for the purposes of RCW 9.94A.631 and may be punishable as contempt of court as provided for in RCW 7.21.040. If the court extends a condition beyond the expiration of the term of community custody, the department is not responsible for supervision of the offender’s compliance with the condition. (6) Within the funds available for community custody, the department shall determine conditions and duration of community custody on the basis of risk to community safety, and shall supervise offenders during community custody on the basis of risk to community safety and conditions imposed by the court. The secretary shall adopt rules to implement the provisions of this subsection. (7) By the close of the next business day after receiving notice of a condition imposed or modified by the department, an offender may request an administrative review under rules adopted by the department. The condition shall remain in effect unless the reviewing officer finds that it is not reasonably related to any of the following: (a) The crime of conviction; (b) the offender’s risk of reoffending; or (c) the safety of the community. [2006 c 130 § 2; 2006 c 128 § 5; 2003 c 379 § 6; 2001 2nd sp.s. c 12 § 302; 2001 c 10 § 5; 2000 c 28 § 25.] Reviser’s note: This section was amended by 2006 c 128 § 5 and by 2006 c 130 § 2, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Intent—Effective date—2001 c 10: See notes following RCW 9.94A.505. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.720 9.94A.720 Supervision of offenders. (1)(a) Except as provided in RCW 9.94A.501, all offenders sentenced to terms involving community supervision, community restitution, community placement, or community custody shall be under the supervision of the department and shall follow explicitly the instructions and conditions of the department. The department may require an offender to perform affirmative acts it deems appropriate to monitor compliance with the conditions of the sentence imposed. The department may only supervise the offender’s compliance with payment of legal financial obligations during any period in which the department is authorized to supervise the offender in the community under RCW 9.94A.501. (b) The instructions shall include, at a minimum, reporting as directed to a community corrections officer, remaining within prescribed geographical boundaries, notifying the community corrections officer of any change in the offender’s address or employment, and paying the supervision fee assessment. (c) For offenders sentenced to terms involving community custody for crimes committed on or after June 6, 1996, (2006 Ed.) 9.94A.722 the department may include, in addition to the instructions in (b) of this subsection, any appropriate conditions of supervision, including but not limited to, prohibiting the offender from having contact with any other specified individuals or specific class of individuals. (d) For offenders sentenced to terms of community custody for crimes committed on or after July 1, 2000, the department may impose conditions as specified in RCW 9.94A.715. The conditions authorized under (c) of this subsection may be imposed by the department prior to or during an offender’s community custody term. If a violation of conditions imposed by the court or the department pursuant to RCW 9.94A.710 occurs during community custody, it shall be deemed a violation of community placement for the purposes of RCW 9.94A.740 and shall authorize the department to transfer an offender to a more restrictive confinement status as provided in RCW 9.94A.737. At any time prior to the completion of an offender’s term of community custody, the department may recommend to the court that any or all of the conditions imposed by the court or the department pursuant to RCW 9.94A.710 or 9.94A.715 be continued beyond the expiration of the offender’s term of community custody as authorized in RCW 9.94A.715 (3) or (5). The department may require offenders to pay for special services rendered on or after July 25, 1993, including electronic monitoring, day reporting, and telephone reporting, dependent upon the offender’s ability to pay. The department may pay for these services for offenders who are not able to pay. (2) No offender sentenced to terms involving community supervision, community restitution, community custody, or community placement under the supervision of the department may own, use, or possess firearms or ammunition. Offenders who own, use, or are found to be in actual or constructive possession of firearms or ammunition shall be subject to the violation process and sanctions under RCW 9.94A.634, 9.94A.737, and 9.94A.740. "Constructive possession" as used in this subsection means the power and intent to control the firearm or ammunition. "Firearm" as used in this subsection has the same definition as in RCW 9.41.010. [2003 c 379 § 7; 2002 c 175 § 14; 2000 c 28 § 26.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Effective date—2002 c 175: See note following RCW 7.80.130. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.722 9.94A.722 Court-ordered treatment—Required disclosures. When an offender receiving court-ordered mental health or chemical dependency treatment or treatment ordered by the department of corrections presents for treatment from a mental health or chemical dependency treatment provider, the offender must disclose to the mental health or chemical dependency treatment provider whether he or she is subject to supervision by the department of corrections. If an offender has received relief from disclosure pursuant to RCW 9.94A.562, 70.96A.155, or 71.05.132, the offender must provide the mental health or chemical dependency treatment provider with a copy of the order granting the relief. [2004 c 166 § 9.] [Title 9 RCW—page 167] 9.94A.723 Title 9 RCW: Crimes and Punishments Severability—Effective dates—2004 c 166: See notes following RCW 71.05.040. 9.94A.723 9.94A.723 Court-ordered treatment—Offender’s failure to inform. An offender’s failure to inform the department of court-ordered treatment upon request by the department is a violation of the conditions of supervision if the offender is in the community and an infraction if the offender is in confinement, and the violation or infraction is subject to sanctions. [2004 c 166 § 7.] Severability—Effective dates—2004 c 166: See notes following RCW 71.05.040. 9.94A.725 9.94A.725 Offender work crews. Participation in a work crew is conditioned upon the offender’s acceptance into the program, abstinence from alcohol and controlled substances as demonstrated by urinalysis and breathalyzer monitoring, with the cost of monitoring to be paid by the offender, unless indigent; and upon compliance with the rules of the program, which rules require the offender to work to the best of his or her abilities and provide the program with accurate, verified residence information. Work crew may be imposed simultaneously with electronic home detention. Where work crew is imposed as part of a sentence of nine months or more, the offender must serve a minimum of thirty days of total confinement before being eligible for work crew. Work crew tasks shall be performed for a minimum of thirty-five hours per week. Only those offenders sentenced to a facility operated or utilized under contract by a county or the state, or sanctioned under RCW 9.94A.737, are eligible to participate on a work crew. Offenders sentenced for a sex offense are not eligible for the work crew program. An offender who has successfully completed four weeks of work crew at thirty-five hours per week shall thereafter receive credit toward the work crew sentence for hours worked at approved, verified employment. Such employment credit may be earned for up to twenty-four hours actual employment per week provided, however, that every such offender shall continue active participation in work crew projects according to a schedule approved by a work crew supervisor until the work crew sentence has been served. The hours served as part of a work crew sentence may include substance abuse counseling and/or job skills training. The civic improvement tasks performed by offenders on work crew shall be unskilled labor for the benefit of the community as determined by the head of the county executive branch or his or her designee. Civic improvement tasks shall not be done on private property unless it is owned or operated by a nonprofit entity, except that, for emergency purposes only, work crews may perform snow removal on any private property. The civic improvement tasks shall have minimal negative impact on existing private industries or the labor force in the county where the service or labor is performed. The civic improvement tasks shall not affect employment opportunities for people with developmental disabilities contracted through sheltered workshops as defined in RCW 82.04.385. In case any dispute arises as to a civic improvement task having more than minimum negative impact on existing private industries or labor force in the county where their service or labor is performed, the matter shall be [Title 9 RCW—page 168] referred by an interested party, as defined in RCW 39.12.010(4), for arbitration to the director of the department of labor and industries of the state. Whenever an offender receives credit against a work crew sentence for hours of approved, verified employment, the offender shall pay to the agency administering the program the monthly assessment of an amount not less than ten dollars per month nor more than fifty dollars per month. This assessment shall be considered payment of the costs of providing the work crew program to an offender. The court may exempt a person from the payment of all or any part of the assessment based upon any of the following factors: (1) The offender has diligently attempted but has been unable to obtain employment that provides the offender sufficient income to make such payment. (2) The offender is a student in a school, college, university, or a course of vocational or technical training designed to fit the student for gainful employment. (3) The offender has an employment handicap, as determined by an examination acceptable to or ordered by the court. (4) The offender is responsible for the support of dependents and the payment of the assessment constitutes an undue hardship. (5) Other extenuating circumstances as determined by the court. [2000 c 28 § 27; 1991 c 181 § 2. Formerly RCW 9.94A.135.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.728 9.94A.728 Earned release time. No person serving a sentence imposed pursuant to this chapter and committed to the custody of the department shall leave the confines of the correctional facility or be released prior to the expiration of the sentence except as follows: (1) Except as otherwise provided for in subsection (2) of this section, the term of the sentence of an offender committed to a correctional facility operated by the department may be reduced by earned release time in accordance with procedures that shall be developed and promulgated by the correctional agency having jurisdiction in which the offender is confined. The earned release time shall be for good behavior and good performance, as determined by the correctional agency having jurisdiction. The correctional agency shall not credit the offender with earned release credits in advance of the offender actually earning the credits. Any program established pursuant to this section shall allow an offender to earn early release credits for presentence incarceration. If an offender is transferred from a county jail to the department, the administrator of a county jail facility shall certify to the department the amount of time spent in custody at the facility and the amount of earned release time. An offender who has been convicted of a felony committed after July 23, 1995, that involves any applicable deadly weapon enhancements under RCW 9.94A.533 (3) or (4), or both, shall not receive any good time credits or earned release time for that portion of his or her sentence that results from any deadly weapon enhancements. (a) In the case of an offender convicted of a serious violent offense, or a sex offense that is a class A felony, committed on or after July 1, 1990, and before July 1, 2003, the (2006 Ed.) Sentencing Reform Act of 1981 aggregate earned release time may not exceed fifteen percent of the sentence. In the case of an offender convicted of a serious violent offense, or a sex offense that is a class A felony, committed on or after July 1, 2003, the aggregate earned release time may not exceed ten percent of the sentence. (b)(i) In the case of an offender who qualifies under (b)(ii) of this subsection, the aggregate earned release time may not exceed fifty percent of the sentence. (ii) An offender is qualified to earn up to fifty percent of aggregate earned release time under this subsection (1)(b) if he or she: (A) Is classified in one of the two lowest risk categories under (b)(iii) of this subsection; (B) Is not confined pursuant to a sentence for: (I) A sex offense; (II) A violent offense; (III) A crime against persons as defined in RCW 9.94A.411; (IV) A felony that is domestic violence as defined in RCW 10.99.020; (V) A violation of RCW 9A.52.025 (residential burglary); (VI) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or (VII) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor); and (C) Has no prior conviction for: (I) A sex offense; (II) A violent offense; (III) A crime against persons as defined in RCW 9.94A.411; (IV) A felony that is domestic violence as defined in RCW 10.99.020; (V) A violation of RCW 9A.52.025 (residential burglary); (VI) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or (VII) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor). (iii) For purposes of determining an offender’s eligibility under this subsection (1)(b), the department shall perform a risk assessment of every offender committed to a correctional facility operated by the department who has no current or prior conviction for a sex offense, a violent offense, a crime against persons as defined in RCW 9.94A.411, a felony that is domestic violence as defined in RCW 10.99.020, a violation of RCW 9A.52.025 (residential burglary), a violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine, or a violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor). The department must classify each assessed offender in one of four risk categories between highest and lowest risk. (iv) The department shall recalculate the earned release time and reschedule the expected release dates for each qualified offender under this subsection (1)(b). (2006 Ed.) 9.94A.728 (v) This subsection (1)(b) applies retroactively to eligible offenders serving terms of total confinement in a state correctional facility as of July 1, 2003. (vi) This subsection (1)(b) does not apply to offenders convicted after July 1, 2010. (c) In no other case shall the aggregate earned release time exceed one-third of the total sentence; (2)(a) A person convicted of a sex offense or an offense categorized as a serious violent offense, assault in the second degree, vehicular homicide, vehicular assault, assault of a child in the second degree, any crime against persons where it is determined in accordance with RCW 9.94A.602 that the offender or an accomplice was armed with a deadly weapon at the time of commission, or any felony offense under chapter 69.50 or 69.52 RCW, committed before July 1, 2000, may become eligible, in accordance with a program developed by the department, for transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section; (b) A person convicted of a sex offense, a violent offense, any crime against persons under RCW 9.94A.411(2), or a felony offense under chapter 69.50 or 69.52 RCW, committed on or after July 1, 2000, may become eligible, in accordance with a program developed by the department, for transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section; (c) The department shall, as a part of its program for release to the community in lieu of earned release, require the offender to propose a release plan that includes an approved residence and living arrangement. All offenders with community placement or community custody terms eligible for release to community custody status in lieu of earned release shall provide an approved residence and living arrangement prior to release to the community; (d) The department may deny transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section if the department determines an offender’s release plan, including proposed residence location and living arrangements, may violate the conditions of the sentence or conditions of supervision, place the offender at risk to violate the conditions of the sentence, place the offender at risk to reoffend, or present a risk to victim safety or community safety. The department’s authority under this section is independent of any court-ordered condition of sentence or statutory provision regarding conditions for community custody or community placement; (e) An offender serving a term of confinement imposed under RCW 9.94A.670(4)(a) is not eligible for earned release credits under this section; (3) An offender may leave a correctional facility pursuant to an authorized furlough or leave of absence. In addition, offenders may leave a correctional facility when in the custody of a corrections officer or officers; (4)(a) The secretary may authorize an extraordinary medical placement for an offender when all of the following conditions exist: (i) The offender has a medical condition that is serious enough to require costly care or treatment; [Title 9 RCW—page 169] 9.94A.7281 Title 9 RCW: Crimes and Punishments (ii) The offender poses a low risk to the community because he or she is physically incapacitated due to age or the medical condition; and (iii) Granting the extraordinary medical placement will result in a cost savings to the state. (b) An offender sentenced to death or to life imprisonment without the possibility of release or parole is not eligible for an extraordinary medical placement. (c) The secretary shall require electronic monitoring for all offenders in extraordinary medical placement unless the electronic monitoring equipment interferes with the function of the offender’s medical equipment or results in the loss of funding for the offender’s medical care. The secretary shall specify who shall provide the monitoring services and the terms under which the monitoring shall be performed. (d) The secretary may revoke an extraordinary medical placement under this subsection at any time; (5) The governor, upon recommendation from the clemency and pardons board, may grant an extraordinary release for reasons of serious health problems, senility, advanced age, extraordinary meritorious acts, or other extraordinary circumstances; (6) No more than the final six months of the sentence may be served in partial confinement designed to aid the offender in finding work and reestablishing himself or herself in the community; (7) The governor may pardon any offender; (8) The department may release an offender from confinement any time within ten days before a release date calculated under this section; and (9) An offender may leave a correctional facility prior to completion of his or her sentence if the sentence has been reduced as provided in RCW 9.94A.870. Notwithstanding any other provisions of this section, an offender sentenced for a felony crime listed in RCW 9.94A.540 as subject to a mandatory minimum sentence of total confinement shall not be released from total confinement before the completion of the listed mandatory minimum sentence for that felony crime of conviction unless allowed under RCW 9.94A.540, however persistent offenders are not eligible for extraordinary medical placement. [2004 c 176 § 6; 2003 c 379 § 1. Prior: 2002 c 290 § 21; 2002 c 50 § 2; 2000 c 28 § 28; prior: 1999 c 324 § 1; 1999 c 37 § 1; 1996 c 199 § 2; 1995 c 129 § 7 (Initiative Measure No. 159); 1992 c 145 § 8; 1990 c 3 § 202; 1989 c 248 § 2; prior: 1988 c 153 § 3; 1988 c 3 § 1; 1984 c 209 § 8; 1982 c 192 § 6; 1981 c 137 § 15. Formerly RCW 9.94A.150.] Severability—Effective date—2004 c 176: See notes following RCW 9.94A.515. Severability—2003 c 379: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2003 c 379 § 28.] Effective dates—2003 c 379: "(1) Sections 1 through 12, 20, and 28 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect July 1, 2003. (2) Sections 13 through 19 and 21 through 27 of this act take effect October 1, 2003." [2003 c 379 § 29.] Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. [Title 9 RCW—page 170] Intent—2002 c 50: "The legislature has determined in RCW 9.94A.728(2) that the department of corrections may transfer offenders to community custody status in lieu of earned release time in accordance with a program developed by the department of corrections. It is the legislature’s intent, in response to: In re: Capello 106 Wn.App. 576 (2001), to clarify the law to reflect that the secretary of the department has, and has had since enactment of the community placement act of 1988, the authority to require all offenders, eligible for release to community custody status in lieu of earned release, to provide a release plan that includes an approved residence and living arrangement prior to any transfer to the community." [2002 c 50 § 1.] Application—2002 c 50: "This act applies to all offenders with community placement or community custody terms currently incarcerated either before, on, or after March 14, 2002." [2002 c 50 § 3.] Severability—2002 c 50: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2002 c 50 § 4.] Effective date—2002 c 50: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 14, 2002]." [2002 c 50 § 5.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Severability—1996 c 199: See note following RCW 9.94A.505. Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Application—1989 c 248: See note following RCW 9.92.151. Effective date—Application of increased sanctions—1988 c 153: See notes following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.7281 9.94A.7281 Legislative declaration—Earned release time not an entitlement. The legislature declares that the changes to the maximum percentages of earned release time in chapter 379, Laws of 2003 do not create any expectation that the percentage of earned release time cannot be revised and offenders have no reason to conclude that the maximum percentage of earned release time is an entitlement or creates any liberty interest. The legislature retains full control over the right to revise the percentages of earned release time available to offenders at any time. This section applies to persons convicted on or after July 1, 2003. [2003 c 379 § 2.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. 9.94A.7282 9.94A.7282 Earned release study. The Washington state institute for public policy shall study the results of the changes in earned release under section 1, chapter 379, Laws of 2003. The study shall determine whether the changes in earned release affect the rate of recidivism or the type of offenses committed by persons whose release dates were affected by the changes in chapter 379, Laws of 2003. The Washington state institute for public policy shall report its findings to the governor and the appropriate committees of the legislature no later than December 1, 2008. [2003 c 379 § 12.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. (2006 Ed.) Sentencing Reform Act of 1981 9.94A.731 9.94A.731 Term of partial confinement, work release, home detention. (1) An offender sentenced to a term of partial confinement shall be confined in the facility for at least eight hours per day or, if serving a work crew sentence shall comply with the conditions of that sentence as set forth in RCW *9.94A.030(31) and 9.94A.725. The offender shall be required as a condition of partial confinement to report to the facility at designated times. During the period of partial confinement, an offender may be required to comply with crime-related prohibitions and affirmative conditions imposed by the court or the department pursuant to this chapter. (2) An offender in a county jail ordered to serve all or part of a term of less than one year in work release, work crew, or a program of home detention who violates the rules of the work release facility, work crew, or program of home detention or fails to remain employed or enrolled in school may be transferred to the appropriate county detention facility without further court order but shall, upon request, be notified of the right to request an administrative hearing on the issue of whether or not the offender failed to comply with the order and relevant conditions. Pending such hearing, or in the absence of a request for the hearing, the offender shall serve the remainder of the term of confinement as total confinement. This subsection shall not affect transfer or placement of offenders committed to the department. (3) Participation in work release shall be conditioned upon the offender attending work or school at regularly defined hours and abiding by the rules of the work release facility. [2003 c 254 § 2; 2000 c 28 § 29; 1999 c 143 § 15; 1991 c 181 § 4; 1988 c 154 § 4; 1987 c 456 § 3; 1981 c 137 § 18. Formerly RCW 9.94A.180.] *Reviser’s note: RCW 9.94A.030 was amended by 2005 c 436 § 1, changing subsection (31) to subsection (32). Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.734 9.94A.734 Home detention—Conditions. (1) Home detention may not be imposed for offenders convicted of: (a) A violent offense; (b) Any sex offense; (c) Any drug offense; (d) Reckless burning in the first or second degree as defined in RCW 9A.48.040 or 9A.48.050; (e) Assault in the third degree as defined in RCW 9A.36.031; (f) Assault of a child in the third degree; (g) Unlawful imprisonment as defined in RCW 9A.40.040; or (h) Harassment as defined in RCW 9A.46.020. Home detention may be imposed for offenders convicted of possession of a controlled substance under RCW 69.50.4013 or forged prescription for a controlled substance under RCW 69.50.403 if the offender fulfills the participation conditions set forth in this section and is monitored for drug use by a treatment alternatives to street crime program or a comparable court or agency-referred program. (2) Home detention may be imposed for offenders convicted of burglary in the second degree as defined in RCW (2006 Ed.) 9.94A.737 9A.52.030 or residential burglary conditioned upon the offender: (a) Successfully completing twenty-one days in a work release program; (b) Having no convictions for burglary in the second degree or residential burglary during the preceding two years and not more than two prior convictions for burglary or residential burglary; (c) Having no convictions for a violent felony offense during the preceding two years and not more than two prior convictions for a violent felony offense; (d) Having no prior charges of escape; and (e) Fulfilling the other conditions of the home detention program. (3) Participation in a home detention program shall be conditioned upon: (a) The offender obtaining or maintaining current employment or attending a regular course of school study at regularly defined hours, or the offender performing parental duties to offspring or minors normally in the custody of the offender; (b) Abiding by the rules of the home detention program; and (c) Compliance with court-ordered legal financial obligations. The home detention program may also be made available to offenders whose charges and convictions do not otherwise disqualify them if medical or health-related conditions, concerns or treatment would be better addressed under the home detention program, or where the health and welfare of the offender, other inmates, or staff would be jeopardized by the offender’s incarceration. Participation in the home detention program for medical or health-related reasons is conditioned on the offender abiding by the rules of the home detention program and complying with court-ordered restitution. [2003 c 53 § 62; 2000 c 28 § 30; 1995 c 108 § 2. Formerly RCW 9.94A.185.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Effective date—1995 c 108: See note following RCW 9.94A.030. 9.94A.737 9.94A.737 Community custody—Violations. (1) If an offender violates any condition or requirement of community custody, the department may transfer the offender to a more restrictive confinement status to serve up to the remaining portion of the sentence, less credit for any period actually spent in community custody or in detention awaiting disposition of an alleged violation and subject to the limitations of subsection (2) of this section. (2)(a) For a sex offender sentenced to a term of community custody under RCW 9.94A.670 who violates any condition of community custody, the department may impose a sanction of up to sixty days’ confinement in a local correctional facility for each violation. If the department imposes a sanction, the department shall submit within seventy-two hours a report to the court and the prosecuting attorney outlining the violation or violations and the sanctions imposed. (b) For a sex offender sentenced to a term of community custody under RCW 9.94A.710 who violates any condition of community custody after having completed his or her [Title 9 RCW—page 171] 9.94A.740 Title 9 RCW: Crimes and Punishments maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in a local correctional facility for each violation. (c) For an offender sentenced to a term of community custody under RCW 9.94A.505(2)(b), 9.94A.650, or 9.94A.715, or under RCW 9.94A.545, for a crime committed on or after July 1, 2000, who violates any condition of community custody after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in total confinement for each violation. The department may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other sanctions available in the community. (d) For an offender sentenced to a term of community placement under RCW 9.94A.705 who violates any condition of community placement after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in total confinement for each violation. The department may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other sanctions available in the community. (3) If an offender is accused of violating any condition or requirement of community custody, he or she is entitled to a hearing before the department prior to the imposition of sanctions. The hearing shall be considered as offender disciplinary proceedings and shall not be subject to chapter 34.05 RCW. The department shall develop hearing procedures and a structure of graduated sanctions. (4) The hearing procedures required under subsection (3) of this section shall be developed by rule and include the following: (a) Hearing officers shall report through a chain of command separate from that of community corrections officers; (b) The department shall provide the offender with written notice of the violation, the evidence relied upon, and the reasons the particular sanction was imposed. The notice shall include a statement of the rights specified in this subsection, and the offender’s right to file a personal restraint petition under court rules after the final decision of the department; (c) The hearing shall be held unless waived by the offender, and shall be electronically recorded. For offenders not in total confinement, the hearing shall be held within fifteen working days, but not less than twenty-four hours, after notice of the violation. For offenders in total confinement, the hearing shall be held within five working days, but not less than twenty-four hours, after notice of the violation; (d) The offender shall have the right to: (i) Be present at the hearing; (ii) have the assistance of a person qualified to assist the offender in the hearing, appointed by the hearing officer if the offender has a language or communications barrier; (iii) testify or remain silent; (iv) call witnesses and [Title 9 RCW—page 172] present documentary evidence; and (v) question witnesses who appear and testify; and (e) The sanction shall take effect if affirmed by the hearing officer. Within seven days after the hearing officer’s decision, the offender may appeal the decision to a panel of three reviewing officers designated by the secretary or by the secretary’s designee. The sanction shall be reversed or modified if a majority of the panel finds that the sanction was not reasonably related to any of the following: (i) The crime of conviction; (ii) the violation committed; (iii) the offender’s risk of reoffending; or (iv) the safety of the community. (5) For purposes of this section, no finding of a violation of conditions may be based on unconfirmed or unconfirmable allegations. (6) The department shall work with the Washington association of sheriffs and police chiefs to establish and operate an electronic monitoring program for low-risk offenders who violate the terms of their community custody. Between January 1, 2006, and December 31, 2006, the department shall endeavor to place at least one hundred low-risk community custody violators on the electronic monitoring program per day if there are at least that many low-risk offenders who qualify for the electronic monitoring program. (7) Local governments, their subdivisions and employees, the department and its employees, and the Washington association of sheriffs and police chiefs and its employees shall be immune from civil liability for damages arising from incidents involving low-risk offenders who are placed on electronic monitoring unless it is shown that an employee acted with gross negligence or bad faith. [2005 c 435 § 3; 2002 c 175 § 15; 1999 c 196 § 8; 1996 c 275 § 3; 1988 c 153 § 4. Formerly RCW 9.94A.205.] Finding—Intent—2005 c 435: "The legislature believes that electronic monitoring, as an alternative to incarceration, is a proper and costeffective method of punishment and supervision for many criminal offenders. The legislature further finds that advancements in electronic monitoring technology have made the technology more common and acceptable to criminal justice system personnel, policymakers, and the general public. In an effort to reduce prison and jail populations, many states are increasing their utilization of electronic monitoring. However, Washington state’s use of electronic monitoring has been relatively stagnate. The intent of this act is to determine what electronic monitoring policies and programs have been implemented in the other forty-nine states, in order that Washington state can learn from the other states’ experiences." [2005 c 435 § 1.] Effective date—2002 c 175: See note following RCW 7.80.130. Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Finding—1996 c 275: See note following RCW 9.94A.505. Application—1996 c 275 §§ 1-5: See note following RCW 9.94A.505. Effective date—Application of increased sanctions—1988 c 153: See notes following RCW 9.94A.030. 9.94A.740 9.94A.740 Community placement, custody violators—Arrest, detention, financial responsibility. (1) The secretary may issue warrants for the arrest of any offender who violates a condition of community placement or community custody. The arrest warrants shall authorize any law enforcement or peace officer or community corrections officer of this state or any other state where such offender may be located, to arrest the offender and place him or her in total confinement pending disposition of the alleged viola(2006 Ed.) Sentencing Reform Act of 1981 tion. The department shall compensate the local jurisdiction at the office of financial management’s adjudicated rate, in accordance with RCW 70.48.440. A community corrections officer, if he or she has reasonable cause to believe an offender in community placement or community custody has violated a condition of community placement or community custody, may suspend the person’s community placement or community custody status and arrest or cause the arrest and detention in total confinement of the offender, pending the determination of the secretary as to whether the violation has occurred. The community corrections officer shall report to the secretary all facts and circumstances and the reasons for the action of suspending community placement or community custody status. A violation of a condition of community placement or community custody shall be deemed a violation of the sentence for purposes of RCW 9.94A.631. The authority granted to community corrections officers under this section shall be in addition to that set forth in RCW 9.94A.631. (2) Inmates, as defined in RCW 72.09.015, who have been transferred to community custody and who are detained in a local correctional facility are the financial responsibility of the department of corrections, except as provided in subsection (3) of this section. The community custody inmate shall be removed from the local correctional facility, except as provided in subsection (3) of this section, not later than eight days, excluding weekends and holidays, following admittance to the local correctional facility and notification that the inmate is available for movement to a state correctional institution. (3) The department may negotiate with local correctional authorities for an additional period of detention; however, sex offenders sanctioned for community custody violations under RCW 9.94A.737(2) to a term of confinement shall remain in the local correctional facility for the complete term of the sanction. For confinement sanctions imposed under RCW 9.94A.737(2)(a), the local correctional facility shall be financially responsible. For confinement sanctions imposed under RCW 9.94A.737(2)(b), the department of corrections shall be financially responsible for that portion of the sanction served during the time in which the sex offender is on community custody in lieu of earned release, and the local correctional facility shall be financially responsible for that portion of the sanction served by the sex offender after the time in which the sex offender is on community custody in lieu of earned release. The department, in consultation with the Washington association of sheriffs and police chiefs and those counties in which the sheriff does not operate a correctional facility, shall establish a methodology for determining the department’s local correctional facilities bed utilization rate, for each county in calendar year 1998, for offenders being held for violations of conditions of community custody, community placement, or community supervision. For confinement sanctions imposed under RCW 9.94A.737(2) (c) or (d), the local correctional facility shall continue to be financially responsible to the extent of the calendar year 1998 bed utilization rate. If the department’s use of bed space in local correctional facilities of any county for confinement sanctions imposed on offenders sentenced to a term of community custody under RCW 9.94A.737(2) (c) or (d) exceeds the 1998 bed utilization rate for the county, the department shall compensate the county for the excess use at the per diem rate equal to the (2006 Ed.) 9.94A.745 lowest rate charged by the county under its contract with a municipal government during the year in which the use occurs. [1999 c 196 § 9; 1996 c 275 § 4; 1988 c 153 § 5. Formerly RCW 9.94A.207.] Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Finding—1996 c 275: See note following RCW 9.94A.505. Application—1996 c 275 §§ 1-5: See note following RCW 9.94A.505. Effective date—Application of increased sanctions—1988 c 153: See notes following RCW 9.94A.030. 9.94A.745 Interstate compact for adult offender supervision. The interstate compact for adult offender supervision is hereby entered into and enacted into law with all jurisdictions legally joining therein, in the form substantially as follows: 9.94A.745 ARTICLE I PURPOSE (a) The compacting states to this interstate compact recognize that each state is responsible for the supervision of adult offenders in the community who are authorized pursuant to the bylaws and rules of this compact to travel across state lines both to and from each compacting state in such a manner as to track the location of offenders, transfer supervision authority in an orderly and efficient manner, and, when necessary, return offenders to the originating jurisdictions. The compacting states also recognize that congress, by enacting the crime control act, 4 U.S.C. Sec. 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime. (b) It is the purpose of this compact and the interstate commission created hereunder, through means of joint and cooperative action among the compacting states: To provide the framework for the promotion of public safety and protect the rights of victims through the control and regulation of the interstate movement of offenders in the community; to provide for the effective tracking, supervision, and rehabilitation of these offenders by the sending and receiving states; and to equitably distribute the costs, benefits and obligations of the compact among the compacting states. (c) In addition, this compact will: Create an interstate commission which will establish uniform procedures to manage the movement between states of adults placed under community supervision and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies which will promulgate rules to achieve the purpose of this compact; ensure an opportunity for input and timely notice to victims and to jurisdictions where defined offenders are authorized to travel or to relocate across state lines; establish a system of uniform data collection, access to information on active cases by authorized criminal justice officials, and regular reporting of compact activities to heads of state councils, state executive, judicial, and legislative branches and criminal justice administrators; monitor compliance with rules governing interstate movement of offenders and initiate interventions to address and correct noncompliance; and coordinate training and education regarding regulations of interstate movement of offenders for officials involved in such activity. [Title 9 RCW—page 173] 9.94A.745 Title 9 RCW: Crimes and Punishments (d) The compacting states recognize that there is no "right" of any offender to live in another state and that duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any offender under supervision subject to the provisions of this compact and bylaws and rules promulgated hereunder. It is the policy of the compacting states that the activities conducted by the interstate commission created herein are the formation of public policies and are therefore public business. ARTICLE II DEFINITIONS As used in this compact, unless the context clearly requires a different construction: (a) "Adult" means both individuals legally classified as adults and juveniles treated as adults by court order, statute, or operation of law. (b) "Bylaws" means those bylaws established by the interstate commission for its governance, or for directing or controlling the interstate commission’s actions or conduct. (c) "Compact administrator" means the individual in each compacting state appointed pursuant to the terms of this compact responsible for the administration and management of the state’s supervision and transfer of offenders subject to the terms of this compact, the rules adopted by the interstate commission and policies adopted by the state council under this compact. (d) "Compacting state" means any state which has enacted the enabling legislation for this compact. (e) "Commissioner" means the voting representative of each compacting state appointed pursuant to article III of this compact. (f) "Interstate commission" means the interstate commission for adult offender supervision established by this compact. (g) "Member" means the commissioner of a compacting state or designee, who shall be a person officially connected with the commissioner. (h) "Noncompacting state" means any state which has not enacted the enabling legislation for this compact. (i) "Offender" means an adult placed under, or subject, to supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies. (j) "Person" means any individual, corporation, business enterprise, or other legal entity, either public or private. (k) "Rules" means acts of the interstate commission, duly promulgated pursuant to article VIII of this compact, substantially affecting interested parties in addition to the interstate commission, which shall have the force and effect of law in the compacting states. (l) "State" means a state of the United States, the District of Columbia and any other territorial possessions of the United States. (m) "State council" means the resident members of the state council for interstate adult offender supervision created by each state under article IV of this compact. (n) "Victim" means a person who has sustained emotional, psychological, physical, or financial injury to person [Title 9 RCW—page 174] or property as a result of criminal conduct against the person or a member of the person’s family. ARTICLE III THE COMPACT COMMISSION (a) The compacting states hereby create the "interstate commission for adult offender supervision." The interstate commission shall be a body corporate and joint agency of the compacting states. The interstate commission shall have all the responsibilities, powers and duties set forth herein; including the power to sue and be sued, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact. (b) The interstate commission shall consist of commissioners selected and appointed by resident members of a state council for interstate adult offender supervision for each state. In addition to the commissioners who are the voting representatives of each state, the interstate commission shall include individuals who are not commissioners but who are members of interested organizations. Such noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general and crime victims. All noncommissioner members of the interstate commission shall be ex officio, nonvoting members. The interstate commission may provide in its bylaws for such additional, ex officio, nonvoting members as it deems necessary. (c) Each compacting state represented at any meeting of the interstate commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the interstate commission. (d) The interstate commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of twenty-seven or more compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public. (e) The interstate commission shall establish an executive committee which shall include commission officers, members and others as shall be determined by the bylaws. The executive committee shall have the power to act on behalf of the interstate commission during periods when the interstate commission is not in session, with the exception of rulemaking and/or amendment to the compact. The executive committee oversees the day-to-day activities managed by the executive director and interstate commission staff; administers enforcement and compliance with the provisions of the compact, its bylaws and as directed by the interstate commission and performs other duties as directed by the commission or set forth in the bylaws. ARTICLE IV THE STATE COUNCIL (a) Each member state shall create a state council for interstate adult offender supervision which shall be responsible for the appointment of the commissioner who shall serve on the interstate commission from that state. Each state council shall appoint as its commissioner the compact administrator from that state to serve on the interstate commission in (2006 Ed.) Sentencing Reform Act of 1981 such capacity under or pursuant to applicable law of the member state. While each member state may determine the membership of its own state council, its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims’ groups, and compact administrators. (b) Each compacting state retains the right to determine the qualifications of the compact administrator who shall be appointed by the state council or by the governor in consultation with the legislature and the judiciary. (c) In addition to appointment of its commissioner to the national interstate commission, each state council shall exercise oversight and advocacy concerning its participation in interstate commission activities and other duties as may be determined by each member state including, but not limited to, development of policy concerning operations and procedures of the compact within that state. ARTICLE V POWERS AND DUTIES OF THE INTERSTATE COMMISSION The interstate commission shall have the following powers: (a) To adopt a seal and suitable bylaws governing the management and operation of the interstate commission; (b) To promulgate rules which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact; (c) To oversee, supervise and coordinate the interstate movement of offenders subject to the terms of this compact and any bylaws adopted and rules promulgated by the compact commission; (d) To enforce compliance with compact provisions, interstate commission rules, and bylaws, using all necessary and proper means, including, but not limited to, the use of judicial process; (e) To establish and maintain offices; (f) To purchase and maintain insurance and bonds; (g) To borrow, accept, or contract for services of personnel, including, but not limited to, members and their staffs; (h) To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by article III of this compact which shall have the power to act on behalf of the interstate commission in carrying out its powers and duties hereunder; (i) To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties and determine their qualifications; and to establish the interstate commission’s personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation, and qualifications of personnel; (j) To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of same; (k) To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal, or mixed; (2006 Ed.) 9.94A.745 (l) To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed; (m) To establish a budget and make expenditures and levy dues as provided in article X of this compact; (n) To sue and be sued; (o) To provide for dispute resolution among compacting states; (p) To perform such functions as may be necessary or appropriate to achieve the purposes of this compact; (q) To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the interstate commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the interstate commission; (r) To coordinate education, training and public awareness regarding the interstate movement of offenders for officials involved in such activity; (s) To establish uniform standards for the reporting, collecting, and exchanging of data. ARTICLE VI ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION (a) Bylaws. The interstate commission shall, by a majority of the members, within twelve months of the first interstate commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to: (1) Establishing the fiscal year of the interstate commission; (2) Establishing an executive committee and such other committees as may be necessary, providing reasonable standards and procedures: (i) For the establishment of committees, and (ii) Governing any general or specific delegation of any authority or function of the interstate commission; (3) Providing reasonable procedures for calling and conducting meetings of the interstate commission, and ensuring reasonable notice of each such meeting; (4) Establishing the titles and responsibilities of the officers of the interstate commission; (5) Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the interstate commission. Notwithstanding any civil service or other similar laws of any compacting state, the bylaws shall exclusively govern the personnel policies and programs of the interstate commission; (6) Providing a mechanism for winding up the operations of the interstate commission and the equitable return of any surplus funds that may exist upon the termination of the compact after the payment and/or reserving of all of its debts and obligations; (7) Providing transition rules for "start up" administration of the compact; (8) Establishing standards and procedures for compliance and technical assistance in carrying out the compact. (b) Officers and staff. (1) The interstate commission shall, by a majority of the members, elect from among its members a chairperson and a vice chairperson, each of whom [Title 9 RCW—page 175] 9.94A.745 Title 9 RCW: Crimes and Punishments shall have such authorities and duties as may be specified in the bylaws. The chairperson or, in his or her absence or disability, the vice-chairperson shall preside at all meetings of the interstate commission. The officers so elected shall serve without compensation or remuneration from the interstate commission: PROVIDED, That subject to the availability of budgeted funds, the officers shall be reimbursed for any actual and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the interstate commission. (2) The interstate commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the interstate commission may deem appropriate. The executive director shall serve as secretary to the interstate commission, and hire and supervise such other staff as may be authorized by the interstate commission, but shall not be a member. (c) Corporate records of the interstate commission. The interstate commission shall maintain its corporate books and records in accordance with the bylaws. (d) Qualified immunity, defense and indemnification. (1) The members, officers, executive director and employees of the interstate commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities: PROVIDED, That nothing in this subsection (d)(1) shall be construed to protect any such person from suit and/or liability for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of any such person. (2) The interstate commission shall defend the commissioner of a compacting state, or his or her representatives or employees, or the interstate commission’s representatives or employees in any civil action seeking to impose liability, arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities: PROVIDED, That the actual or alleged act, error or omission did not result from intentional wrongdoing on the part of such person. (3) The interstate commission shall indemnify and hold the commissioner of a compacting state, the appointed designee or employees, or the interstate commission’s representatives or employees harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities, provided, that the actual or alleged act, error or omission did not result from gross negligence or intentional wrongdoing on the part of such person. [Title 9 RCW—page 176] ARTICLE VII ACTIVITIES OF THE INTERSTATE COMMISSION (a) The interstate commission shall meet and take such actions as are consistent with the provisions of this compact. (b) Except as otherwise provided in this compact and unless a greater percentage is required by the bylaws, in order to constitute an act of the interstate commission, such act shall have been taken at a meeting of the interstate commission and shall have received an affirmative vote of a majority of the members present. (c) Each member of the interstate commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the interstate commission. A member shall vote in person on behalf of the state and shall not delegate a vote to another member state. However, a state council shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the member state at a specified meeting. The bylaws may provide for members’ participation in meetings by telephone or other means of telecommunication or electronic communication. Any voting conducted by telephone or other means of telecommunication or electronic communication shall be subject to the same quorum requirements of meetings where members are present in person. (d) The interstate commission shall meet at least once during each calendar year. The chairperson of the interstate commission may call additional meetings at any time and, upon the request of a majority of the members, shall call additional meetings. (e) The interstate commission’s bylaws shall establish conditions and procedures under which the interstate commission shall make its information and official records available to the public for inspection or copying. The interstate commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests. In promulgating such rules, the interstate commission may make available to law enforcement agencies records and information otherwise exempt from disclosure, and may enter into agreements with law enforcement agencies to receive or exchange information or records subject to nondisclosure and confidentiality provisions. (f) Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The interstate commission shall promulgate rules consistent with the principles contained in the "government in sunshine act," 5 U.S.C. Sec. 552(b), as may be amended. The interstate commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to: (1) Relate solely to the interstate commission’s internal personnel practices and procedures; (2) Disclose matters specifically exempted from disclosure by statute; (3) Disclose trade secrets or commercial or financial information which is privileged or confidential; (4) Involve accusing any person of a crime, or formally censuring any person; (2006 Ed.) Sentencing Reform Act of 1981 (5) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; (6) Disclose investigatory records compiled for law enforcement purposes; (7) Disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of or for the use of, the interstate commission with respect to a regulated entity for the purpose of regulation or supervision of such entity; (8) Disclose information, the premature disclosure of which would significantly endanger the life of a person or the stability of a regulated entity; (9) Specifically relate to the interstate commission’s issuance of a subpoena, or its participation in a civil action or proceeding. (g) For every meeting closed pursuant to this provision, the interstate commission’s chief legal officer shall publicly certify that, in his or her opinion, the meeting may be closed to the public, and shall reference each relevant provision authorizing closure of the meeting. The interstate commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes. (h) The interstate commission shall collect standardized data concerning the interstate movement of offenders as directed through its bylaws and rules which shall specify the data to be collected, the means of collection and data exchange and reporting requirements. ARTICLE VIII RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION (a) The interstate commission shall promulgate rules in order to effectively and efficiently achieve the purposes of the compact including transition rules governing administration of the compact during the period in which it is being considered and enacted by the states. (b) Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the federal administrative procedure act, 5 U.S.C. Sec. 551 et seq., and the federal advisory committee act, 5 U.S.C.S. app. 2, section 1 et seq., as may be amended (hereinafter "APA"). All rules and amendments shall become binding as of the date specified in each rule or amendment. (c) If a majority of the legislatures of the compacting states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, then such rule shall have no further force and effect in any compacting state. (d) When promulgating a rule, the interstate commission shall: (1) Publish the proposed rule stating with particularity the text of the rule which is proposed and the reason for the proposed rule; (2006 Ed.) 9.94A.745 (2) Allow persons to submit written data, facts, opinions and arguments, which information shall be publicly available; (3) Provide an opportunity for an informal hearing; and (4) Promulgate a final rule and its effective date, if appropriate, based on the rulemaking record. Not later than sixty days after a rule is promulgated, any interested person may file a petition in the United States district court for the District of Columbia or in the federal district court where the interstate commission’s principal office is located for judicial review of such rule. If the court finds that the interstate commission’s action is not supported by substantial evidence, (as defined in the APA), in the rulemaking record, the court shall hold the rule unlawful and set it aside. (e) Subjects to be addressed within twelve months after the first meeting must at a minimum include: (1) Notice to victims and opportunity to be heard; (2) Offender registration and compliance; (3) Violations/returns; (4) Transfer procedures and forms; (5) Eligibility for transfer; (6) Collection of restitution and fees from offenders; (7) Data collection and reporting; (8) The level of supervision to be provided by the receiving state; (9) Transition rules governing the operation of the compact and the interstate commission during all or part of the period between the effective date of the compact and the date on which the last eligible state adopts the compact; (10) Mediation, arbitration and dispute resolution. (f) The existing rules governing the operation of the previous compact superseded by this act shall be null and void twelve months after the first meeting of the interstate commission created hereunder. (g) Upon determination by the interstate commission that an emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, in no event later than ninety days after the effective date of the rule. ARTICLE IX OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION BY THE INTERSTATE COMMISSION (a) Oversight. (1) The interstate commission shall oversee the interstate movement of adult offenders in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states. (2) The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact’s purposes and intent. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the interstate commission, the interstate commission shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes. [Title 9 RCW—page 177] 9.94A.745 Title 9 RCW: Crimes and Punishments (b) Dispute resolution. (1) The compacting states shall report to the interstate commission on issues or activities of concern to them, and cooperate with and support the interstate commission in the discharge of its duties and responsibilities. (2) The interstate commission shall attempt to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and noncompacting states. The interstate commission shall enact a bylaw or promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states. (c) Enforcement. The interstate commission, in the reasonable exercise of its discretion, shall enforce the provisions of this compact using any or all means set forth in article XII(b) of this compact. ARTICLE X FINANCE (a) The interstate commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities. (b) The interstate commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the interstate commission and its staff which must be in a total amount sufficient to cover the interstate commission’s annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the interstate commission, taking into consideration the population of the state and the volume of interstate movement of offenders in each compacting state and shall promulgate a rule binding upon all compacting states which governs said assessment. (c) The interstate commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the interstate commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state. (d) The interstate commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the interstate commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the interstate commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the interstate commission. ARTICLE XI COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT (a) Any state, as defined in article II of this compact, is eligible to become a compacting state. (b) The compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five of the states. The initial effective date shall be the later of July 1, 2001, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter it shall become effective and binding, as to any other compacting state, upon enactment of the compact into law by that state. The governors of [Title 9 RCW—page 178] nonmember states or their designees will be invited to participate in interstate commission activities on a nonvoting basis prior to adoption of the compact by all states and territories of the United States. (c) Amendments to the compact may be proposed by the interstate commission for enactment by the compacting states. No amendment shall become effective and binding upon the interstate commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states. ARTICLE XII WITHDRAWAL, DEFAULT, TERMINATION, AND JUDICIAL ENFORCEMENT (a) Withdrawal. (1) Once effective, the compact shall continue in force and remain binding upon each and every compacting state: PROVIDED, That a compacting state may withdraw from the compact ("withdrawing state") by enacting a statute specifically repealing the statute which enacted the compact into law. (2) The effective date of withdrawal is the effective date of the repeal. (3) The withdrawing state shall immediately notify the chairperson of the interstate commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The interstate commission shall notify the other compacting states of the withdrawing state’s intent to withdraw within sixty days of its receipt thereof. (4) The withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal. (5) Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the interstate commission. (b) Default. (1) If the interstate commission determines that any compacting state has at any time defaulted ("defaulting state") in the performance of any of its obligations or responsibilities under this compact, the bylaws or any duly promulgated rules, the interstate commission may impose any or all of the following penalties: (i) Fines, fees and costs in such amounts as are deemed to be reasonable as fixed by the interstate commission; (ii) Remedial training and technical assistance as directed by the interstate commission; (iii) Suspension and termination of membership in the compact. Suspension shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted. Immediate notice of suspension shall be given by the interstate commission to the governor, the chief justice or chief judicial officer of the state, the majority and minority leaders of the defaulting state’s legislature, and the state council. (2) The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, interstate commission bylaws, or duly promulgated rules. The interstate commission shall immediately notify the defaulting state in writing of the penalty imposed by the interstate com(2006 Ed.) Sentencing Reform Act of 1981 mission on the defaulting state pending a cure of the default. The interstate commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the interstate commission, in addition to any other penalties imposed herein, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges and benefits conferred by this compact shall be terminated from the effective date of suspension. Within sixty days of the effective date of termination of a defaulting state, the interstate commission shall notify the governor, the chief justice or chief judicial officer and the majority and minority leaders of the defaulting state’s legislature and the state council of such termination. (3) The defaulting state is responsible for all assessments, obligations and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination. (4) The interstate commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon between the interstate commission and the defaulting state. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the interstate commission pursuant to the rules. (c) Judicial enforcement. The interstate commission may, by majority vote of the members, initiate legal action in the United States district court for the District of Columbia or, at the discretion of the interstate commission, in the federal district where the interstate commission has its offices to enforce compliance with the provisions of the compact, its duly promulgated rules and bylaws, against any compacting state in default. In the event judicial enforcement is necessary the prevailing party shall be awarded all costs of such litigation including reasonable attorneys’ fees. (d) Dissolution of compact. (1) The compact dissolves effective upon the date of the withdrawal or default of the compacting state which reduces membership in the compact to one compacting state. (2) Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the interstate commission shall be wound up and any surplus funds shall be distributed in accordance with the bylaws. ARTICLE XIII SEVERABILITY AND CONSTRUCTION (a) The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable. (b) The provisions of this compact shall be liberally constructed to effectuate its purposes. ARTICLE XIV BINDING EFFECT OF COMPACT AND OTHER LAWS (a) Other laws. (1) Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact. (2006 Ed.) 9.94A.74501 (2) All compacting states’ laws conflicting with this compact are superseded to the extent of the conflict. (b) Binding effect of the compact. (1) All lawful actions of the interstate commission, including all rules and bylaws promulgated by the interstate commission, are binding upon the compacting states. (2) All agreements between the interstate commission and the compacting states are binding in accordance with their terms. (3) Upon the request of a party to a conflict over meaning or interpretation of interstate commission actions, and upon a majority vote of the compacting states, the interstate commission may issue advisory opinions regarding such meaning or interpretation. (4) In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers or jurisdiction sought to be conferred by such provision upon the interstate commission shall be ineffective and such obligations, duties, powers or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers or jurisdiction are delegated by law in effect at the time this compact becomes effective. [2001 c 35 § 2.] Short title—2001 c 35: "This act shall be known and may be cited as the "interstate compact for adult offender supervision."" [2001 c 35 § 1.] Effective date—2001 c 35: "(1) This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2001. *(2) The interstate compact for adult offender supervision becomes effective and binding July 1, 2001, or on the date of enactment of the interstate compact for adult offender supervision by thirty-five jurisdictions, whichever is later. In determining that the compact has become effective and binding, the code reviser may rely on the written representation of the national institute of corrections of the United States department of justice." [2001 c 35 § 6.] *Reviser’s note: The interstate compact was enacted and signed into law by the thirty-fifth state on June 19, 2002. 9.94A.74501 State council. (1) The sentencing guidelines commission shall serve as the state council for interstate adult offender supervision as required under article IV of RCW 9.94A.745, the interstate compact for adult offender supervision. To assist the commission in performing its functions as the state council, the department of corrections shall provide staffing and support services. The commission may form a subcommittee, including members representing the legislative, judicial, and executive branches of state government, victims’ groups, and the secretary of corrections, to perform the functions of the state council. Any such subcommittee shall include representation of both houses and at least two of the four largest political caucuses in the legislature. (2) The commission, or a subcommittee if formed for that purpose, shall: (a) Review department operations and procedures under RCW 9.94A.745, and recommend policies to the compact administrator, including policies to be pursued in the administrator’s capacity as the state’s representative on the interstate commission created under article III of RCW 9.94A.745; (b) Report annually to the legislature on interstate supervision operations and procedures under RCW 9.94A.745, including recommendations for policy changes; and 9.94A.74501 [Title 9 RCW—page 179] 9.94A.74502 Title 9 RCW: Crimes and Punishments (c) Not later than December 1, 2004, report to the legislature on the effectiveness of its functioning as the state council under article IV of RCW 9.94A.745, and recommend any legislation it deems appropriate. (3) The commission, or a subcommittee if formed for that purpose, shall appoint one of its members, or an employee of the department designated by the secretary, to represent the state at meetings of the interstate commission created under article III of RCW 9.94A.745 when the compact administrator cannot attend. [2001 c 35 § 3.] 9.94A.74502 9.94A.74502 Compact administrator. The secretary of corrections, or an employee of the department designated by the secretary, shall serve as the compact administrator under article IV of RCW 9.94A.745, the interstate compact for adult offender supervision. The legislature intends that the compact administrator, representing the state on the interstate commission created under article III of RCW 9.94A.745, will take an active role to assure that the interstate compact operates to protect the safety of the people and communities of the state. [2001 c 35 § 4.] 9.94A.74503 9.94A.74503 Other compacts and agreements— Withdrawal from current compact. (1) The state shall continue to meet its obligations under RCW 9.95.270, the interstate compact for the supervision of parolees and probationers, to those states which continue to meet their obligations to the state of Washington under the interstate compact for the supervision of parolees and probationers, and have not approved the interstate compact for adult offender supervision after July 1, 2001. (2) If a state withdraws from the interstate compact for adult offender supervision under article XII(a) of RCW 9.94A.745, the state council for interstate adult offender supervision created by RCW 9.94A.74501 shall seek to negotiate an agreement with the withdrawing state fulfilling the purposes of RCW 9.94A.745, subject to the approval of the legislature. (3) Nothing in chapter 35, Laws of 2001 limits the secretary’s authority to enter into agreements with other jurisdictions for supervision of offenders. [2001 c 35 § 5.] 9.94A.74504 9.94A.74504 Supervision of transferred offenders— Processing transfer applications. (1) The department may supervise nonfelony offenders transferred to Washington pursuant to RCW 9.94A.745, the interstate compact for adult offender supervision, and shall supervise these offenders according to the provisions of this chapter. (2) The department shall process applications for interstate transfer of felony and nonfelony offenders pursuant to RCW 9.94A.745, the interstate compact for adult offender supervision, and may charge offenders a reasonable fee for processing the application. [2005 c 400 § 1.] Application—2005 c 400: "This act applies to offenders sentenced before, on, or after July 1, 2005." [2005 c 400 § 8.] Effective date—2005 c 400: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2005." [2005 c 400 § 9.] [Title 9 RCW—page 180] 9.94A.750 9.94A.750 Restitution. This section applies to offenses committed on or before July 1, 1985. (1) If restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within one hundred eighty days. The court may continue the hearing beyond the one hundred eighty days for good cause. The court shall then set a minimum monthly payment that the offender is required to make towards the restitution that is ordered. The court should take into consideration the total amount of the restitution owed, the offender’s present, past, and future ability to pay, as well as any assets that the offender may have. (2) During the period of supervision, the community corrections officer may examine the offender to determine if there has been a change in circumstances that warrants an amendment of the monthly payment schedule. The community corrections officer may recommend a change to the schedule of payment and shall inform the court of the recommended change and the reasons for the change. The sentencing court may then reset the monthly minimum payments based on the report from the community corrections officer of the change in circumstances. (3) Except as provided in subsection (6) of this section, restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense. The amount of restitution shall not exceed double the amount of the offender’s gain or the victim’s loss from the commission of the offense. (4) For the purposes of this section, the offender shall remain under the court’s jurisdiction for a term of ten years following the offender’s release from total confinement or ten years subsequent to the entry of the judgment and sentence, whichever period is longer. Prior to the expiration of the initial ten-year period, the superior court may extend jurisdiction under the criminal judgment an additional ten years for payment of restitution. The portion of the sentence concerning restitution may be modified as to amount, terms and conditions during either the initial ten-year period or subsequent ten-year period if the criminal judgment is extended, regardless of the expiration of the offender’s term of community supervision and regardless of the statutory maximum sentence for the crime. The court may not reduce the total amount of restitution ordered because the offender may lack the ability to pay the total amount. The offender’s compliance with the restitution shall be supervised by the department only during any period which the department is authorized to supervise the offender in the community under RCW 9.94A.728, 9.94A.501, or in which the offender is in confinement in a state correctional institution or a correctional facility pursuant to a transfer agreement with the department, and the department shall supervise the offender’s compliance during any such period. The department is responsible for supervision of the offender only during confinement and authorized supervision and not during any subsequent period in which the offender remains under the court’s jurisdiction. The county clerk is authorized to collect unpaid restitution at (2006 Ed.) Sentencing Reform Act of 1981 any time the offender remains under the jurisdiction of the court for purposes of his or her legal financial obligations. (5) Restitution may be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property or as provided in subsection (6) of this section. In addition, restitution may be ordered to pay for an injury, loss, or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement. (6) Restitution for the crime of rape of a child in the first, second, or third degree, in which the victim becomes pregnant, shall include: (a) All of the victim’s medical expenses that are associated with the rape and resulting pregnancy; and (b) child support for any child born as a result of the rape if child support is ordered pursuant to a proceeding in superior court or administrative order for support for that child. The clerk must forward any restitution payments made on behalf of the victim’s child to the Washington state child support registry under chapter 26.23 RCW. Identifying information about the victim and child shall not be included in the order. The offender shall receive a credit against any obligation owing under the administrative or superior court order for support of the victim’s child. For the purposes of this subsection, the offender shall remain under the court’s jurisdiction until the offender has satisfied support obligations under the superior court or administrative order but not longer than a maximum term of twenty-five years following the offender’s release from total confinement or twenty-five years subsequent to the entry of the judgment and sentence, whichever period is longer. The court may not reduce the total amount of restitution ordered because the offender may lack the ability to pay the total amount. The department shall supervise the offender’s compliance with the restitution ordered under this subsection. (7) In addition to any sentence that may be imposed, an offender who has been found guilty of an offense involving fraud or other deceptive practice or an organization which has been found guilty of any such offense may be ordered by the sentencing court to give notice of the conviction to the class of persons or to the sector of the public affected by the conviction or financially interested in the subject matter of the offense by mail, by advertising in designated areas or through designated media, or by other appropriate means. (8) This section does not limit civil remedies or defenses available to the victim or offender including support enforcement remedies for support ordered under subsection (6) of this section for a child born as a result of a rape of a child victim. The court shall identify in the judgment and sentence the victim or victims entitled to restitution and what amount is due each victim. The state or victim may enforce the courtordered restitution in the same manner as a judgment in a civil action. Restitution collected through civil enforcement must be paid through the registry of the court and must be distributed proportionately according to each victim’s loss when there is more than one victim. [2003 c 379 § 15; 2000 c 28 § 32. Prior: 1997 c 121 § 3; 1997 c 52 § 1; 1995 c 231 § 1; 1994 c 271 § 601; 1989 c 252 § 5; 1987 c 281 § 3; 1982 c 192 § 5; 1981 c 137 § 14. Formerly RCW 9.94A.140.] (2006 Ed.) 9.94A.753 Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Intent—Purpose—2003 c 379 §§ 13-27: See note following RCW 9.94A.760. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Retroactive application—1995 c 231 §§ 1 and 2: "Sections 1 and 2 of this act shall apply retroactively to allow courts to set restitution in cases sentenced prior to July 23, 1995, if: (1) The court failed to set restitution within sixty days of sentencing as required by RCW 9.94A.140 prior to July 23, 1995; (2) The defendant was sentenced no more than three hundred sixty-five days before July 23, 1995; and (3) The defendant is not unfairly prejudiced by the delay. In those cases, the court may set restitution within one hundred eighty days of July 23, 1995, or at a later hearing set by the court for good cause." [1995 c 231 § 5.] Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. Effective date—1987 c 281: See note following RCW 7.68.020. 9.94A.753 9.94A.753 Restitution—Application dates. This section applies to offenses committed after July 1, 1985. (1) When restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within one hundred eighty days except as provided in subsection (7) of this section. The court may continue the hearing beyond the one hundred eighty days for good cause. The court shall then set a minimum monthly payment that the offender is required to make towards the restitution that is ordered. The court should take into consideration the total amount of the restitution owed, the offender’s present, past, and future ability to pay, as well as any assets that the offender may have. (2) During the period of supervision, the community corrections officer may examine the offender to determine if there has been a change in circumstances that warrants an amendment of the monthly payment schedule. The community corrections officer may recommend a change to the schedule of payment and shall inform the court of the recommended change and the reasons for the change. The sentencing court may then reset the monthly minimum payments based on the report from the community corrections officer of the change in circumstances. (3) Except as provided in subsection (6) of this section, restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense. The amount of restitution shall not exceed double the amount of the offender’s gain or the victim’s loss from the commission of the crime. (4) For the purposes of this section, for an offense committed prior to July 1, 2000, the offender shall remain under the court’s jurisdiction for a term of ten years following the offender’s release from total confinement or ten years subsequent to the entry of the judgment and sentence, whichever period ends later. Prior to the expiration of the initial ten-year [Title 9 RCW—page 181] 9.94A.760 Title 9 RCW: Crimes and Punishments period, the superior court may extend jurisdiction under the criminal judgment an additional ten years for payment of restitution. For an offense committed on or after July 1, 2000, the offender shall remain under the court’s jurisdiction until the obligation is completely satisfied, regardless of the statutory maximum for the crime. The portion of the sentence concerning restitution may be modified as to amount, terms, and conditions during any period of time the offender remains under the court’s jurisdiction, regardless of the expiration of the offender’s term of community supervision and regardless of the statutory maximum sentence for the crime. The court may not reduce the total amount of restitution ordered because the offender may lack the ability to pay the total amount. The offender’s compliance with the restitution shall be supervised by the department only during any period which the department is authorized to supervise the offender in the community under RCW 9.94A.728, 9.94A.501, or in which the offender is in confinement in a state correctional institution or a correctional facility pursuant to a transfer agreement with the department, and the department shall supervise the offender’s compliance during any such period. The department is responsible for supervision of the offender only during confinement and authorized supervision and not during any subsequent period in which the offender remains under the court’s jurisdiction. The county clerk is authorized to collect unpaid restitution at any time the offender remains under the jurisdiction of the court for purposes of his or her legal financial obligations. (5) Restitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property or as provided in subsection (6) of this section unless extraordinary circumstances exist which make restitution inappropriate in the court’s judgment and the court sets forth such circumstances in the record. In addition, restitution shall be ordered to pay for an injury, loss, or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement. (6) Restitution for the crime of rape of a child in the first, second, or third degree, in which the victim becomes pregnant, shall include: (a) All of the victim’s medical expenses that are associated with the rape and resulting pregnancy; and (b) child support for any child born as a result of the rape if child support is ordered pursuant to a civil superior court or administrative order for support for that child. The clerk must forward any restitution payments made on behalf of the victim’s child to the Washington state child support registry under chapter 26.23 RCW. Identifying information about the victim and child shall not be included in the order. The offender shall receive a credit against any obligation owing under the administrative or superior court order for support of the victim’s child. For the purposes of this subsection, the offender shall remain under the court’s jurisdiction until the offender has satisfied support obligations under the superior court or administrative order for the period provided in RCW 4.16.020 or a maximum term of twenty-five years following the offender’s release from total confinement or twenty-five years subsequent to the entry of the judgment and sentence, whichever period is longer. The court may not reduce the [Title 9 RCW—page 182] total amount of restitution ordered because the offender may lack the ability to pay the total amount. The department shall supervise the offender’s compliance with the restitution ordered under this subsection. (7) Regardless of the provisions of subsections (1) through (6) of this section, the court shall order restitution in all cases where the victim is entitled to benefits under the crime victims’ compensation act, chapter 7.68 RCW. If the court does not order restitution and the victim of the crime has been determined to be entitled to benefits under the crime victims’ compensation act, the department of labor and industries, as administrator of the crime victims’ compensation program, may petition the court within one year of entry of the judgment and sentence for entry of a restitution order. Upon receipt of a petition from the department of labor and industries, the court shall hold a restitution hearing and shall enter a restitution order. (8) In addition to any sentence that may be imposed, an offender who has been found guilty of an offense involving fraud or other deceptive practice or an organization which has been found guilty of any such offense may be ordered by the sentencing court to give notice of the conviction to the class of persons or to the sector of the public affected by the conviction or financially interested in the subject matter of the offense by mail, by advertising in designated areas or through designated media, or by other appropriate means. (9) This section does not limit civil remedies or defenses available to the victim, survivors of the victim, or offender including support enforcement remedies for support ordered under subsection (6) of this section for a child born as a result of a rape of a child victim. The court shall identify in the judgment and sentence the victim or victims entitled to restitution and what amount is due each victim. The state or victim may enforce the court-ordered restitution in the same manner as a judgment in a civil action. Restitution collected through civil enforcement must be paid through the registry of the court and must be distributed proportionately according to each victim’s loss when there is more than one victim. [2003 c 379 § 16. Prior: 2000 c 226 § 3; 2000 c 28 § 33; prior: 1997 c 121 § 4; 1997 c 52 § 2; prior: 1995 c 231 § 2; 1995 c 33 § 4; 1994 c 271 § 602; 1989 c 252 § 6; 1987 c 281 § 4; 1985 c 443 § 10. Formerly RCW 9.94A.142.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Intent—Purpose—2003 c 379 §§ 13-27: See note following RCW 9.94A.760. Finding—Intent—Severability—2000 c 226: See notes following RCW 9.94A.505. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Retroactive application—1995 c 231 §§ 1 and 2: See note following RCW 9.94A.750. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. Effective date—1987 c 281: See note following RCW 7.68.020. Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. 9.94A.760 Legal financial obligations. (1) Whenever a person is convicted in superior court, the court may order 9.94A.760 (2006 Ed.) Sentencing Reform Act of 1981 the payment of a legal financial obligation as part of the sentence. The court must on either the judgment and sentence or on a subsequent order to pay, designate the total amount of a legal financial obligation and segregate this amount among the separate assessments made for restitution, costs, fines, and other assessments required by law. On the same order, the court is also to set a sum that the offender is required to pay on a monthly basis towards satisfying the legal financial obligation. If the court fails to set the offender monthly payment amount, the department shall set the amount if the department has active supervision of the offender, otherwise the county clerk shall set the amount. Upon receipt of an offender’s monthly payment, restitution shall be paid prior to any payments of other monetary obligations. After restitution is satisfied, the county clerk shall distribute the payment proportionally among all other fines, costs, and assessments imposed, unless otherwise ordered by the court. (2) If the court determines that the offender, at the time of sentencing, has the means to pay for the cost of incarceration, the court may require the offender to pay for the cost of incarceration at a rate of fifty dollars per day of incarceration, if incarcerated in a prison, or the court may require the offender to pay the actual cost of incarceration per day of incarceration, if incarcerated in a county jail. In no case may the court require the offender to pay more than one hundred dollars per day for the cost of incarceration. Payment of other court-ordered financial obligations, including all legal financial obligations and costs of supervision shall take precedence over the payment of the cost of incarceration ordered by the court. All funds recovered from offenders for the cost of incarceration in the county jail shall be remitted to the county and the costs of incarceration in a prison shall be remitted to the department. (3) The court may add to the judgment and sentence or subsequent order to pay a statement that a notice of payroll deduction is to be issued immediately. If the court chooses not to order the immediate issuance of a notice of payroll deduction at sentencing, the court shall add to the judgment and sentence or subsequent order to pay a statement that a notice of payroll deduction may be issued or other incomewithholding action may be taken, without further notice to the offender if a monthly court-ordered legal financial obligation payment is not paid when due, and an amount equal to or greater than the amount payable for one month is owed. If a judgment and sentence or subsequent order to pay does not include the statement that a notice of payroll deduction may be issued or other income-withholding action may be taken if a monthly legal financial obligation payment is past due, the department or the county clerk may serve a notice on the offender stating such requirements and authorizations. Service shall be by personal service or any form of mail requiring a return receipt. (4) Independent of the department or the county clerk, the party or entity to whom the legal financial obligation is owed shall have the authority to use any other remedies available to the party or entity to collect the legal financial obligation. These remedies include enforcement in the same manner as a judgment in a civil action by the party or entity to whom the legal financial obligation is owed. Restitution collected through civil enforcement must be paid through the registry of the court and must be distributed proportionately (2006 Ed.) 9.94A.760 according to each victim’s loss when there is more than one victim. The judgment and sentence shall identify the party or entity to whom restitution is owed so that the state, party, or entity may enforce the judgment. If restitution is ordered pursuant to RCW 9.94A.750(6) or 9.94A.753(6) to a victim of rape of a child or a victim’s child born from the rape, the Washington state child support registry shall be identified as the party to whom payments must be made. Restitution obligations arising from the rape of a child in the first, second, or third degree that result in the pregnancy of the victim may be enforced for the time periods provided under RCW 9.94A.750(6) and 9.94A.753(6). All other legal financial obligations for an offense committed prior to July 1, 2000, may be enforced at any time during the ten-year period following the offender’s release from total confinement or within ten years of entry of the judgment and sentence, whichever period ends later. Prior to the expiration of the initial ten-year period, the superior court may extend the criminal judgment an additional ten years for payment of legal financial obligations including crime victims’ assessments. All other legal financial obligations for an offense committed on or after July 1, 2000, may be enforced at any time the offender remains under the court’s jurisdiction. For an offense committed on or after July 1, 2000, the court shall retain jurisdiction over the offender, for purposes of the offender’s compliance with payment of the legal financial obligations, until the obligation is completely satisfied, regardless of the statutory maximum for the crime. The department may only supervise the offender’s compliance with payment of the legal financial obligations during any period in which the department is authorized to supervise the offender in the community under RCW 9.94A.728, 9.94A.501, or in which the offender is confined in a state correctional institution or a correctional facility pursuant to a transfer agreement with the department, and the department shall supervise the offender’s compliance during any such period. The department is not responsible for supervision of the offender during any subsequent period of time the offender remains under the court’s jurisdiction. The county clerk is authorized to collect unpaid legal financial obligations at any time the offender remains under the jurisdiction of the court for purposes of his or her legal financial obligations. (5) In order to assist the court in setting a monthly sum that the offender must pay during the period of supervision, the offender is required to report to the department for purposes of preparing a recommendation to the court. When reporting, the offender is required, under oath, to respond truthfully and honestly to all questions concerning present, past, and future earning capabilities and the location and nature of all property or financial assets. The offender is further required to bring all documents requested by the department. (6) After completing the investigation, the department shall make a report to the court on the amount of the monthly payment that the offender should be required to make towards a satisfied legal financial obligation. (7)(a) During the period of supervision, the department may make a recommendation to the court that the offender’s monthly payment schedule be modified so as to reflect a change in financial circumstances. If the department sets the [Title 9 RCW—page 183] 9.94A.760 Title 9 RCW: Crimes and Punishments monthly payment amount, the department may modify the monthly payment amount without the matter being returned to the court. During the period of supervision, the department may require the offender to report to the department for the purposes of reviewing the appropriateness of the collection schedule for the legal financial obligation. During this reporting, the offender is required under oath to respond truthfully and honestly to all questions concerning earning capabilities and the location and nature of all property or financial assets. The offender shall bring all documents requested by the department in order to prepare the collection schedule. (b) Subsequent to any period of supervision, or if the department is not authorized to supervise the offender in the community, the county clerk may make a recommendation to the court that the offender’s monthly payment schedule be modified so as to reflect a change in financial circumstances. If the county clerk sets the monthly payment amount, or if the department set the monthly payment amount and the department has subsequently turned the collection of the legal financial obligation over to the county clerk, the clerk may modify the monthly payment amount without the matter being returned to the court. During the period of repayment, the county clerk may require the offender to report to the clerk for the purpose of reviewing the appropriateness of the collection schedule for the legal financial obligation. During this reporting, the offender is required under oath to respond truthfully and honestly to all questions concerning earning capabilities and the location and nature of all property or financial assets. The offender shall bring all documents requested by the county clerk in order to prepare the collection schedule. (8) After the judgment and sentence or payment order is entered, the department is authorized, for any period of supervision, to collect the legal financial obligation from the offender. Subsequent to any period of supervision or, if the department is not authorized to supervise the offender in the community, the county clerk is authorized to collect unpaid legal financial obligations from the offender. Any amount collected by the department shall be remitted daily to the county clerk for the purpose of disbursements. The department and the county clerks are authorized, but not required, to accept credit cards as payment for a legal financial obligation, and any costs incurred related to accepting credit card payments shall be the responsibility of the offender. (9) The department or any obligee of the legal financial obligation may seek a mandatory wage assignment for the purposes of obtaining satisfaction for the legal financial obligation pursuant to RCW 9.94A.7701. Any party obtaining a wage assignment shall notify the county clerk. The county clerks shall notify the department, or the administrative office of the courts, whichever is providing the monthly billing for the offender. (10) The requirement that the offender pay a monthly sum towards a legal financial obligation constitutes a condition or requirement of a sentence and the offender is subject to the penalties for noncompliance as provided in RCW 9.94A.634, 9.94A.737, or 9.94A.740. (11)(a) Until January 1, 2004, the department shall mail individualized monthly billings to the address known by the [Title 9 RCW—page 184] department for each offender with an unsatisfied legal financial obligation. (b) Beginning January 1, 2004, the administrative office of the courts shall mail individualized monthly billings to the address known by the office for each offender with an unsatisfied legal financial obligation. (c) The billing shall direct payments, other than outstanding cost of supervision assessments under RCW 9.94A.780, parole assessments under RCW 72.04A.120, and cost of probation assessments under RCW 9.95.214, to the county clerk, and cost of supervision, parole, or probation assessments to the department. (d) The county clerk shall provide the administrative office of the courts with notice of payments by such offenders no less frequently than weekly. (e) The county clerks, the administrative office of the courts, and the department shall maintain agreements to implement this subsection. (12) The department shall arrange for the collection of unpaid legal financial obligations during any period of supervision in the community through the county clerk. The department shall either collect unpaid legal financial obligations or arrange for collections through another entity if the clerk does not assume responsibility or is unable to continue to assume responsibility for collection pursuant to subsection (4) of this section. The costs for collection services shall be paid by the offender. (13) The county clerk may access the records of the employment security department for the purposes of verifying employment or income, seeking any assignment of wages, or performing other duties necessary to the collection of an offender’s legal financial obligations. (14) Nothing in this chapter makes the department, the state, the counties, or any state or county employees, agents, or other persons acting on their behalf liable under any circumstances for the payment of these legal financial obligations or for the acts of any offender who is no longer, or was not, subject to supervision by the department for a term of community custody, community placement, or community supervision, and who remains under the jurisdiction of the court for payment of legal financial obligations. [2005 c 263 § 1; 2004 c 121 § 3; 2003 c 379 § 14; 2001 c 10 § 3. Prior: 2000 c 226 § 4; 2000 c 28 § 31; 1999 c 196 § 6; prior: 1997 c 121 § 5; 1997 c 52 § 3; 1995 c 231 § 3; 1991 c 93 § 2; 1989 c 252 § 3. Formerly RCW 9.94A.145.] Intent—Purpose—2003 c 379 §§ 13-27: "The legislature intends to revise and improve the processes for billing and collecting legal financial obligations. The purpose of sections 13 through 27, chapter 379, Laws of 2003 is to respond to suggestions and requests made by county government officials, and in particular county clerks, to assume the collection of such obligations in cooperation and coordination with the department of corrections and the administrative office for [of] the courts. The legislature undertakes this effort following a collaboration between local officials, the department of corrections, and the administrative office for [of] the courts. The intent of sections 13 through 27, chapter 379, Laws of 2003 is to promote an increased and more efficient collection of legal financial obligations and, as a result, improve the likelihood that the affected agencies will increase the collections which will provide additional benefits to all parties and, in particular, crime victims whose restitution is dependent upon the collections." [2003 c 379 § 13.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Intent—Effective date—2001 c 10: See notes following RCW 9.94A.505. (2006 Ed.) Sentencing Reform Act of 1981 Finding—Intent—Severability—2000 c 226: See notes following RCW 9.94A.505. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Retroactive application—Captions not law—1991 c 93: See notes following RCW 9.94A.7601. Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. 9.94A.7601 9.94A.7601 "Earnings," "disposable earnings," and "obligee" defined. As used in this chapter, the term "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, hours, or otherwise, and notwithstanding any other provision of law making such payments exempt from garnishment, attachment, or other process to satisfy court-ordered legal financial obligations, specifically includes periodic payments pursuant to pension or retirement programs, or insurance policies of any type. Earnings shall specifically include all gain derived from capital, from labor, or from both, not including profit gained through sale or conversion of capital assets. The term "disposable earnings" means that part of the earnings of any individual remaining after the deduction from those earnings of any amount required by law to be withheld. The term "obligee" means the department, party, or entity to whom the legal financial obligation is owed, or the department, party, or entity to whom the right to receive or collect support has been assigned. [1991 c 93 § 1. Formerly RCW 9.94A.200005.] Retroactive application—1991 c 93: "The provisions of this act are retroactive and apply to any actions commenced but not final before May 9, 1991." [1991 c 93 § 15.] 9.94A.7604 (c) A statement that the total amount withheld on all payroll deduction notices for payment of court-ordered legal financial obligations combined shall not exceed twenty-five percent of the offender/employee’s disposable earnings; and (d) The address to which the payments are to be mailed or delivered. (3) An informational copy of the notice of payroll deduction shall be mailed to the offender’s last known address by regular mail or shall be personally served. (4) Neither the department nor any agents of the department shall be held liable for actions taken under RCW 9.94A.760 and 9.94A.7601 through 9.94A.761. [1991 c 93 § 3. Formerly RCW 9.94A.200010.] Retroactive application—Captions not law—1991 c 93: See notes following RCW 9.94A.7601. 9.94A.7603 9.94A.7603 Legal financial obligations—Payroll deductions—Maximum amounts withheld, apportionment. (1) The total amount to be withheld from the offender/employee’s earnings each month, or from each earnings disbursement, shall not exceed twenty-five percent of the disposable earnings of the offender. (2) If the offender is subject to two or more notices of payroll deduction for payment of a court-ordered legal financial obligation from different obligees, the employer or entity shall, if the nonexempt portion of the offender’s earnings is not sufficient to respond fully to all notices of payroll deduction, apportion the offender’s nonexempt disposable earnings between or among the various obligees equally. [1991 c 93 § 4. Formerly RCW 9.94A.200015.] Retroactive application—Captions not law—1991 c 93: See notes following RCW 9.94A.7601. 9.94A.7604 Captions not law—1991 c 93: "Captions as used in this act constitute no part of the law." [1991 c 93 § 12.] 9.94A.7602 9.94A.7602 Legal financial obligation—Notice of payroll deduction—Issuance and content. (1) The department may issue a notice of payroll deduction in a criminal action if: (a) The court at sentencing orders its immediate issuance; or (b) The offender is more than thirty days past due in monthly payments in an amount equal to or greater than the amount payable for one month, provided: (i) The judgment and sentence or subsequent order to pay contains a statement that a notice of payroll deduction may be issued without further notice to the offender; or (ii) The department has served a notice on the offender stating such requirements and authorization. Service of such notice shall be made by personal service or any form of mail requiring a return receipt. (2) The notice of payroll deduction is to be in writing and include: (a) The name, social security number, and identifying court case number of the offender/employee; (b) The amount to be deducted from the offender/employee’s disposable earnings each month, or alternative amounts and frequencies as may be necessary to facilitate processing of the payroll deduction by the employer; (2006 Ed.) 9.94A.7604 Legal financial obligations—Notice of payroll deduction—Employer or entity rights and responsibilities. (1) An employer or entity upon whom a notice of payroll deduction is served, shall make an answer to the department within twenty days after the date of service. The answer shall confirm compliance and institution of the payroll deduction or explain the circumstances if no payroll deduction is in effect. The answer shall also state whether the offender is employed by or receives earnings from the employer or entity, whether the employer or entity anticipates paying earnings, and the amount of earnings. If the offender is no longer employed, or receiving earnings from the employer or entity, the answer shall state the present employer or entity’s name and address, if known. (2) Service of a notice of payroll deduction upon an employer or entity requires an employer or entity to immediately make a mandatory payroll deduction from the offender/employee’s unpaid disposable earnings. The employer or entity shall thereafter at each pay period deduct the amount stated in the notice divided by the number of pay periods per month. The employer or entity must remit the proper amounts to the appropriate clerk of the court on each date the offender/employee is due to be paid. (3) The employer or entity may combine amounts withheld from the earnings of more than one employee in a single payment to the clerk of the court, listing separately the amount of the payment that is attributable to each individual employee. [Title 9 RCW—page 185] 9.94A.7605 Title 9 RCW: Crimes and Punishments (4) The employer or entity may deduct a processing fee from the remainder of the employee’s earnings after withholding under the notice of payroll deduction, even if the remainder is exempt under RCW 9.94A.761. The processing fee may not exceed: (a) Ten dollars for the first disbursement made by the employer to the clerk of the court; and (b) One dollar for each subsequent disbursement made under the notice of payroll deduction. (5) The notice of payroll deduction shall remain in effect until released by the department or the court enters an order terminating the notice. (6) An employer shall be liable to the obligee for the amount of court-ordered legal financial obligation moneys that should have been withheld from the offender/employee’s earnings, if the employer: (a) Fails or refuses, after being served with a notice of payroll deduction, to deduct and promptly remit from unpaid earnings the amounts of money required in the notice; or (b) Fails or refuses to submit an answer to the notice of payroll deduction after being served. In such cases, liability may be established in superior court. Awards in superior court shall include costs, interest under RCW 19.52.020 and 4.56.110, reasonable attorney fees, and staff costs as part of the award. (7) No employer who complies with a notice of payroll deduction under this chapter may be liable to the employee for wrongful withholding. (8) No employer may discipline or discharge an employee or refuse to hire a person by reason of an action authorized in this chapter. If an employer disciplines or discharges an employee or refuses to hire a person in violation of this section, the employee or person shall have a cause of action against the employer. The employer shall be liable for double the amount of lost wages and any other damages suffered as a result of the violation and for costs and reasonable attorney fees, and shall be subject to a civil penalty of not more than two thousand five hundred dollars for each violation. The employer may also be ordered to hire, rehire, or reinstate the aggrieved individual. [1991 c 93 § 5. Formerly RCW 9.94A.200020.] Retroactive application—Captions not law—1991 c 93: See notes following RCW 9.94A.7601. 9.94A.7605 9.94A.7605 Motion to quash, modify, or terminate payroll deduction—Grounds for relief. (1) The offender subject to a payroll deduction under this chapter, may file a motion in superior court to quash, modify, or terminate the payroll deduction. The court may grant relief if: (a) It is demonstrated that the payroll deduction causes extreme hardship or substantial injustice; or (b) In cases where the court did not immediately order the issuance of a notice of payroll deduction at sentencing, that a court-ordered legal financial obligation payment was not more than thirty days past due in an amount equal to or greater than the amount payable for one month. (2) Satisfactions by the offender of all past-due payments subsequent to the issuance of the notice of payroll deduction is not grounds to quash, modify, or terminate the notice of payroll deduction. If a notice of payroll deduction has been in operation for twelve consecutive months and the offender’s [Title 9 RCW—page 186] payment towards a court-ordered legal financial obligation is current, upon motion of the offender, the court may order the department to terminate the payroll deduction, unless the department can show good cause as to why the notice of payroll deduction should remain in effect. [1991 c 93 § 6. Formerly RCW 9.94A.200025.] Retroactive application—Captions not law—1991 c 93: See notes following RCW 9.94A.7601. 9.94A.7606 9.94A.7606 Legal financial obligations—Order to withhold and deliver—Issuance and contents. (1) The department may issue to any person or entity an order to withhold and deliver property of any kind, including but not restricted to, earnings that are due, owing, or belonging to the offender, if the department has reason to believe that there is in the possession of such person or entity, property that is due, owing, or belonging to the offender. Such order to withhold and deliver may be issued when a court-ordered legal financial obligation payment is past due: (a) If an offender’s judgment and sentence or a subsequent order to pay includes a statement that other incomewithholding action under this chapter may be taken without further notice to the offender. (b) If a judgment and sentence or a subsequent order to pay does not include the statement that other income-withholding action under this chapter may be taken without further notice to the offender but the department has served a notice on the offender stating such requirements and authorizations. The service shall have been made by personal service or any form of mail requiring a return receipt. (2) The order to withhold and deliver shall: (a) Include the amount of the court-ordered legal financial obligation; (b) Contain a summary of moneys that may be exempt from the order to withhold and deliver and a summary of the civil liability upon failure to comply with the order; and (c) Be served by personal service or by any form of mail requiring a return receipt. (3) The department shall also, on or before the date of service of the order to withhold and deliver, mail or cause to be mailed by any form of mail requiring a return receipt, a copy of the order to withhold and deliver to the offender at the offender’s last known post office address, or, in the alternative, a copy of the order shall be personally served on the offender on or before the date of service of the order or within two days thereafter. The copy of the order shall be mailed or served together with an explanation of the right to petition for judicial review. If the copy is not mailed or served as this section provides, or if any irregularity appears with respect to the mailing or service, the superior court, in its discretion on motion of the offender promptly made and supported by affidavit showing that the offender has suffered substantial injury due to the failure to mail the copy, may set aside the order to withhold and deliver. [1991 c 93 § 7. Formerly RCW 9.94A.200030.] Retroactive application—Captions not law—1991 c 93: See notes following RCW 9.94A.7601. 9.94A.7607 9.94A.7607 Legal financial obligations—Order to withhold and deliver—Duties and rights of person or (2006 Ed.) Sentencing Reform Act of 1981 entity served. (1) A person or entity upon whom service has been made is hereby required to: (a) Answer the order to withhold and deliver within twenty days, exclusive of the day of service, under oath and in writing, and shall make true answers to the matters inquired of in the order; and (b) Provide further and additional answers when requested by the department. (2) Any person or entity in possession of any property that may be subject to the order to withhold and deliver shall: (a)(i) Immediately withhold such property upon receipt of the order to withhold and deliver; (ii) Deliver the property to the appropriate clerk of the court as soon as the twenty-day answer period expires; (iii) Continue to withhold earnings payable to the offender at each succeeding disbursement interval and deliver amounts withheld from earnings to the appropriate clerk of the court within ten days of the date earnings are payable to the offender; (iv) Inform the department of the date the amounts were withheld as requested under this section; or (b) Furnish the appropriate clerk of the court a good and sufficient bond, satisfactory to the clerk, conditioned upon final determination of liability. (3) Where money is due and owing under any contract of employment, expressed or implied, or is held by any person or entity subject to withdrawal by the offender, the money shall be delivered by remittance payable to the order of the appropriate clerk of the court. (4) Delivery to the appropriate clerk of the court of the money or other property held or claimed shall satisfy the requirement and serve as full acquittance of the order to withhold and deliver. (5) The person or entity required to withhold and deliver the earnings of a debtor under this action may deduct a processing fee from the remainder of the offender’s earnings, even if the remainder would otherwise be exempt under RCW 9.94A.761. The processing fee may not exceed: (a) Ten dollars for the first disbursement to the appropriate clerk of the court; and (b) One dollar for each subsequent disbursement. (6) A person or entity shall be liable to the obligee in an amount equal to one hundred percent of the value of the court-ordered legal financial obligation that is the basis of the order to withhold and deliver, or the amount that should have been withheld, whichever amount is less, together with costs, interest, and reasonable attorneys’ fees if that person or entity fails or refuses to deliver property under the order. The department is authorized to issue a notice of debt pursuant to and to take appropriate action to collect the debt under this chapter if a judgment has been entered as the result of an action by the court against a person or entity based on a violation of this section. (7) Persons or entities delivering money or property to the appropriate clerk of the court under this chapter shall not be held liable for wrongful delivery. (8) Persons or entities withholding money or property under this chapter shall not be held liable for wrongful withholding. [1991 c 93 § 8. Formerly RCW 9.94A.200035.] Retroactive application—Captions not law—1991 c 93: See notes following RCW 9.94A.7601. (2006 Ed.) 9.94A.7609 9.94A.7608 9.94A.7608 Legal financial obligations—Financial institutions—Service on main office or branch, effect— Collection actions against community bank account, court hearing. An order to withhold and deliver or any other income-withholding action authorized by this chapter may be served on the main office of a bank, savings and loan association, or credit union or on a branch office of the financial institution. Service on the main office shall be effective to attach the deposits of an offender in the financial institution and compensation payable for personal services due the offender from the financial institution. Service on a branch office shall be effective to attach the deposits, accounts, credits, or other personal property of the offender, excluding compensation payable for personal services, in the possession or control of the particular branch served. Notwithstanding any other provision of RCW 9.94A.760 and 9.94A.7601 through 9.94A.761, if the department initiates collection action against a joint bank account, with or without the right of survivorship, or any other funds which are subject to the community property laws of this state, notice shall be given to all affected parties that the account or funds are subject to potential withholding. Such notice shall be by first class mail, return receipt required, or by personal service and be given at least twenty calendar days before withholding is made. Upon receipt of such notice, the nonobligated person shall have ten calendar days to file a petition with the department contesting the withholding of his or her interest in the account or funds. The department shall provide notice of the right of the filing of the petition with the notice provided in this paragraph. If the petition is not filed within the period provided for herein, the department is authorized to proceed with the collection action. [1991 c 93 § 9. Formerly RCW 9.94A.200040.] Retroactive application—Captions not law—1991 c 93: See notes following RCW 9.94A.7601. 9.94A.7609 9.94A.7609 Legal financial obligations—Notice of debt—Service or mailing—Contents—Action on, when. (1) The department may issue a notice of debt in order to enforce and collect a court-ordered legal financial obligation debt through either a notice of payroll deduction or an order to withhold and deliver. (2) The notice of debt may be personally served upon the offender or be mailed to the offender at his or her last known address by any form of mail requiring a return receipt, demanding payment within twenty days of the date of receipt. (3) The notice of debt shall include: (a) A statement of the total court-ordered legal financial obligation and the amount to be paid each month. (b) A statement that earnings are subject to a notice of payroll deduction. (c) A statement that earnings or property, or both, are subject to an order to withhold and deliver. (d) A statement that the net proceeds will be applied to the satisfaction of the court-ordered legal financial obligation. (4) Action to collect a court-ordered legal financial obligation by notice of payroll deduction or an order to withhold and deliver shall be lawful after twenty days from the date of service upon the offender or twenty days from the receipt or refusal by the offender of the notice of debt. [Title 9 RCW—page 187] 9.94A.761 Title 9 RCW: Crimes and Punishments (5) The notice of debt will take effect only if the offender’s monthly court-ordered legal financial obligation payment is not paid when due, and an amount equal to or greater than the amount payable for one month is owned. (6) The department shall not be required to issue or serve the notice of debt in order to enforce and collect a courtordered legal financial obligation debt through either a notice of payroll deduction or an order to withhold and deliver if either the offender’s judgment and sentence or a subsequent order to pay includes a statement that income-withholding action under this chapter may be taken without further notice to the o ffender. [199 1 c 93 § 1 0. Form erly RCW 9.94A.200045.] Retroactive application—Captions not law—1991 c 93: See notes following RCW 9.94A.7601. 9.94A.761 9.94A.761 Legal financial obligations—Exemption from notice of payroll deduction or order to withhold and deliver. Whenever a notice of payroll deduction or order to withhold and deliver is served upon a person or entity asserting a court-ordered legal financial obligation debt against earnings and there is in the possession of the person or entity any of the earnings, RCW 6.27.150 shall not apply, but seventy-five percent of the disposable earnings shall be exempt and may be disbursed to the offender whether such earnings are paid, or to be paid weekly, monthly, or at other intervals and whether there is due the offender earnings for one week or for a longer period. The notice of payroll deduction or order to withhold and deliver shall continue to operate and require said person or entity to withhold the nonexempt portion of earnings, at each succeeding earnings disbursement interval until the entire amount of the court-ordered legal financial obligation debt has been withheld. [1991 c 93 § 11. Formerly RCW 9.94A.200050.] Retroactive application—Captions not law—1991 c 93: See notes following RCW 9.94A.7601. 9.94A.7701 9.94A.7701 Legal financial obligations—Wage assignments—Petition or motion. A petition or motion seeking a mandatory wage assignment in a criminal action may be filed by the department or any obligee if the offender is more than thirty days past due in monthly payments in an amount equal to or greater than the amount payable for one month. The petition or motion shall include a sworn statement by the secretary or designee, or if filed solely by an obligee, by such obligee, stating the facts authorizing the issuance of the wage assignment order, including: (1) That the offender, stating his or her name and last known residence, is more than thirty days past due in payments in an amount equal to or greater than the amount payable for one month; (2) a description of the terms of the judgment and sentence and/or payment order requiring payment of a court-ordered legal financial obligation, the total amount remaining unpaid, and the amount past due; (3) the name and address of the offender’s employer; (4) that notice by personal service, or any form of mail requiring a return receipt, has been provided to the offender at least fifteen days prior to the filing of a mandatory wage assignment, unless the judgment and sentence or the order for payment states that the department or obligee may seek a mandatory wage assignment without notice to the defendant. A copy of the judgment and sentence [Title 9 RCW—page 188] or payment order shall be attached to the petition or motion seeking the wage assignment. [1989 c 252 § 9. Formerly RCW 9.94A.2001.] Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. 9.94A.7702 9.94A.7702 Legal financial obligations—Wage assignments—Answer. Upon receipt of a petition or motion seeking a mandatory wage assignment that complies with RCW 9.94A.7701, the court shall issue a wage assignment order as provided in RCW 9.94A.7704 and including the information required in RCW 9.94A.7701, directed to the employer, and commanding the employer to answer the order on the forms served with the order that comply with RCW 9.94A.7706 within twenty days after service of the order upon the employer. [1989 c 252 § 10. Formerly RCW 9.94A.2002.] Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. 9.94A.7703 9.94A.7703 Legal financial obligations—Wage assignments—Amounts to be withheld. (1) The wage assignment order in RCW 9.94A.7702 shall include: (a) The maximum amount or current amount owed on a courtordered legal financial obligation, if any, to be withheld from the defendant’s earnings each month, or from each earnings disbursement; and (b) the total amount of the arrearage or reimbursement judgment previously entered by the court, if any, together with interest, if any. (2) The total amount to be withheld from the defendant’s earnings each month, or from each earnings disbursement, shall not exceed twenty-five percent of the disposable earnings of the defendant. If the amounts to be paid toward the arrearage are specified in the payment order, then the maximum amount to be withheld is the sum of the current amount owed and the amount ordered to be paid toward the arrearage, or twenty-five percent of the disposable earnings of the defendant, whichever is less. (3) If the defendant is subject to two or more attachments for payment of a court-ordered legal financial obligation on account of different obligees, the employer shall, if the nonexempt portion of the defendant’s earnings is not sufficient to respond fully to all the attachments, apportion the defendant’s nonexempt disposable earnings between or among the various obligees equally. Any obligee may seek a court order reapportioning the defendant’s nonexempt disposable earnings upon notice to all interested parties. Notice shall be by personal service, or in the manner provided by the civil rules of superior court or applicable statute. [1989 c 252 § 11. Formerly RCW 9.94A.2003.] Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. 9.94A.7704 9.94A.7704 Legal financial obligations—Wage assignments—Rules. The department shall develop a form and adopt rules for the wage assignment order. [1989 c 252 § 12. Formerly RCW 9.94A.2004.] Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. (2006 Ed.) Sentencing Reform Act of 1981 9.94A.7705 9.94A.7705 Legal financial obligations—Wage assignments—Employer responsibilities. (1) An employer upon whom service of a wage assignment order has been made shall answer the order by sworn affidavit within twenty days after the date of service. The answer shall state whether the offender is employed by or receives earnings from the employer, whether the employer will honor the wage assignment order, and whether there are multiple attachments against the offender. (2) If the employer possesses any earnings due and owing to the offender, the earnings subject to the wage assignment order shall be withheld immediately upon receipt of the wage assignment order. The employer shall deliver the withheld earnings to the clerk of the court pursuant to the wage assignment order. The employer shall make the first delivery no sooner than twenty days after receipt of the wage assignment order. (3) The employer shall continue to withhold the ordered amounts from nonexempt earnings of the offender until notified that the wage assignment has been modified or terminated. The employer shall promptly notify the clerk of the court who entered the order when the employee is no longer employed. (4) The employer may deduct a processing fee from the remainder of the employee’s earnings after withholding under the wage assignment order, even if the remainder is exempt under RCW 9.94A.7703. The processing fee may not exceed: (a) Ten dollars for the first disbursement made by the employer to the clerk of the court; and (b) one dollar for each subsequent disbursement made under the wage assignment order. (5) An employer who fails to withhold earnings as required by a wage assignment order issued under this chapter may be held liable for the amounts disbursed to the offender in violation of the wage assignment order, and may be found by the court to be in contempt of court and may be punished as provided by law. (6) No employer who complies with a wage assignment order issued under this chapter may be liable to the employee for wrongful withholding. (7) No employer may discharge, discipline, or refuse to hire an employee because of the entry or service of a wage assignment order issued and executed under this chapter. A person who violates this subsection may be found by the court to be in contempt of court and may be punished as provided by law. (8) An employer shall deliver a copy of the wage assignment order to the obligor as soon as is reasonably possible. [1989 c 252 § 13. Formerly RCW 9.94A.2005.] 9.94A.7709 9.94A.7707 9.94A.7707 Legal financial obligations—Wage assignments—Service. (1) Service of the wage assignment order on the employer is invalid unless it is served with five answer forms in substantial conformance with RCW 9.94A.7706, together with stamped envelopes addressed to, respectively, the clerk of the court where the order was issued, the obligee’s attorney, the petitioner, the department, and the obligor. The petitioner shall also include an extra copy of the wage assignment order for the employer to deliver to the obligor. Service on the employer shall be in person or by any form of mail requiring a return receipt. (2) On or before the date of service of the wage assignment order on the employer, the petitioner shall mail or cause to be mailed by certified mail a copy of the wage assignment order to the obligor at the obligor’s last known post office address; or, in the alternative, a copy of the wage assignment order shall be served on the obligor in the same manner as a summons in a civil action on, before, or within two days after the date of service of the order on the employer. This requirement is not jurisdictional, but if the copy is not mailed or served as this subsection provides, or if any irregularity appears with respect to the mailing of service, the superior court, in its discretion, may quash the wage assignment order, upon motion of the obligor promptly made and supported by an affidavit showing that the defendant has suffered substantial injury due to the failure to mail or serve the copy. [1989 c 252 § 15. Formerly RCW 9.94A.2007.] Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. 9.94A.7708 9.94A.7708 Legal financial obligations—Wage assignments—Hearing—Scope of relief. In a hearing to quash, modify, or terminate the wage assignment order, the court may grant relief only upon a showing that the wage assignment order causes extreme hardship or substantial injustice. Satisfactions by the defendant of all past-due payments subsequent to the issuance of the wage assignment order is not grounds to quash, modify, or terminate the wage assignment order. If a wage assignment order has been in operation for twelve consecutive months and the obligor’s payment towards a court-ordered legal financial obligation is current, the court may terminate the order upon motion of the obligor unless the obligee or the department can show good cause as to why the wage assignment order should remain in effect. The department shall notify the employer of any modification or termination of the wage assignment order. [1989 c 252 § 16. Formerly RCW 9.94A.2008.] Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. 9.94A.7709 9.94A.7706 Legal financial obligations—Wage assignments—Form and rules. The department shall develop a form and adopt rules for the wage assignment answer, and instructions for employers for preparing such answer. [1989 c 252 § 14. Formerly RCW 9.94A.2006.] 9.94A.7709 Legal financial obligations—Wage assignments—Recovery of costs, attorneys’ fees. In any action to enforce legal financial obligations under this chapter, the prevailing party is entitled to a recovery of costs, including an award for reasonable attorneys’ fees. An obligor may not be considered a prevailing party under this section unless the obligee has acted in bad faith in connection with the proceeding in question. [1989 c 252 § 17. Formerly RCW 9.94A.2009.] Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. 9.94A.7706 (2006 Ed.) [Title 9 RCW—page 189] 9.94A.771 Title 9 RCW: Crimes and Punishments 9.94A.771 9.94A.771 Legal financial obligations—Wage assignments—Sentences imposed before July 1, 1989. For those individuals who, as a condition and term of their sentence imposed on or before July 1, 1989, have had financial obligations imposed, and who are not in compliance with the court order requiring payment of that legal financial obligation, no action shall be brought before the court from July 1, 1989, through and including December 31, 1989, to impose a penalty for their failure to pay. All individuals who, after December 31, 1989, have not taken the opportunity to bring their legal financial obligation current, shall be proceeded against pursuant to RCW 9.94A.634. [1989 c 252 § 18. Formerly RCW 9.94A.201.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. scribed under subsection (2) of this section, which shall be for the duration of the terms of supervision and which shall be considered as payment or part payment of the cost of providing supervision to the offender. The department may exempt or defer a person from the payment of all or any part of the assessment based upon any of the following factors: (a) The offender has diligently attempted but has been unable to obtain employment that provides the offender sufficient income to make such payments. (b) The offender is a student in a school, college, university, or a course of vocational or technical training designed to fit the student for gainful employment. (c) The offender has an employment handicap, as determined by an examination acceptable to or ordered by the department. (d) The offender’s age prevents him or her from obtaining employment. (e) The offender is responsible for the support of dependents and the payment of the assessment constitutes an undue hardship on the offender. (f) Other extenuating circumstances as determined by the department. (2) The department of corrections shall adopt a rule prescribing the amount of the assessment. The department may, if it finds it appropriate, prescribe a schedule of assessments that shall vary in accordance with the intensity or cost of the supervision. The department may not prescribe any assessment that is less than ten dollars nor more than fifty dollars. (3) All amounts required to be paid under this section shall be collected by the department of corrections and deposited by the department in the dedicated fund established pursuant to RCW 72.11.040. (4) This section shall not apply to probation services provided under an interstate compact pursuant to chapter 9.95 RCW or to probation services provided for persons placed on probation prior to June 10, 1982. (5) If a county clerk assumes responsibility for collection of unpaid legal financial obligations under RCW 9.94A.760, or under any agreement with the department under that section, whether before or after the completion of any period of community placement, community custody, or community supervision, the clerk may impose a monthly or annual assessment for the cost of collections. The amount of the assessment shall not exceed the actual cost of collections. The county clerk may exempt or defer payment of all or part of the assessment based upon any of the factors listed in subsection (1) of this section. The offender shall pay the assessment under this subsection to the county clerk who shall apply it to the cost of collecting legal financial obligations under RCW 9.94A.760. [2003 c 379 § 18; 1991 c 104 § 1; 1989 c 252 § 8; 1984 c 209 § 15; 1982 c 207 § 2. Formerly RCW 9.94A.270.] Intent—Purpose—2003 c 379 §§ 13-27: See note following RCW 9.94A.760. Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. 9.94A.772 9.94A.772 Legal financial obligations—Monthly payment, starting dates—Construction. Notwithstanding any other provision of state law, monthly payment or starting dates set by the court, the county clerk, or the department before or after October 1, 2003, shall not be construed as a limitation on the due date or amount of legal financial obligations, which may be immediately collected by civil means and shall not be construed as a limitation for purposes of credit reporting. Monthly payments and commencement dates are to be construed to be applicable solely as a limitation upon the deprivation of an offender’s liberty for nonpayment. [2004 c 121 § 4; 2003 c 379 § 22.] Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Intent—Purpose—2003 c 379 §§ 13-27: See note following RCW 9.94A.760. 9.94A.775 9.94A.775 Legal financial obligations—Termination of supervision—Monitoring of payments. If an offender with an unsatisfied legal financial obligation is not subject to supervision by the department for a term of community placement, community custody, or community supervision, or has not completed payment of all legal financial obligations included in the sentence at the expiration of his or her term of community placement, community custody, or community supervision, the department shall notify the administrative office of the courts of the termination of the offender’s supervision and provide information to the administrative office of the courts to enable the county clerk to monitor payment of the remaining obligations. The county clerk is authorized to monitor payment after such notification. The secretary of corrections and the administrator for the courts shall enter into an interagency agreement to facilitate the electronic transfer of information about offenders, unpaid obligations, and payees to carry out the purposes of this section. [2003 c 379 § 17.] 9.94A.780 9.94A.780 Offender supervision assessments. (1) Whenever a punishment imposed under this chapter requires supervision services to be provided, the offender shall pay to the department of corrections the monthly assessment, pre[Title 9 RCW—page 190] Intent—Purpose—2003 c 379 §§ 13-27: See note following RCW 9.94A.760. Purpose—Prospective application—Effective dates—Severability—1989 c 252: See notes following RCW 9.94A.030. Effective dates—1984 c 209: See note following RCW 9.94A.030. (2006 Ed.) Sentencing Reform Act of 1981 9.94A.800 9.94A.800 Sex offender treatment in correctional facility. (1) When an offender commits any felony sex offense on or after July 1, 1987, and on or before July 1, 1990, and is sentenced to a term of confinement of more than one year but less than six years, the sentencing court may, on its own motion or on the motion of the offender or the state, request the department to evaluate whether the offender is amenable to treatment and the department may place the offender in a treatment program within a correctional facility operated by the department. Except for an offender who has been convicted of a violation of RCW 9A.44.040 or 9A.44.050, if the offender completes the treatment program before the expiration of his or her term of confinement, the department may request the court to convert the balance of confinement to community supervision and to place conditions on the offender including crime-related prohibitions and requirements that the offender perform any one or more of the following: (a) Devote time to a specific employment or occupation; (b) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender’s address or employment; (c) Report as directed to the court and a community corrections officer; (d) Undergo available outpatient treatment. If the offender violates any of the terms of his or her community supervision, the court may order the offender to serve out the balance of his or her community supervision term in confinement in the custody of the department. Nothing in this subsection shall confer eligibility for such programs for offenders convicted and sentenced for a sex offense committed prior to July 1, 1987. (2) Offenders convicted and sentenced for a sex offense committed prior to July 1, 1987, may, subject to available funds, request an evaluation by the department to determine whether they are amenable to treatment. If the offender is determined to be amenable to treatment, the offender may request placement in a treatment program within a correctional facility operated by the department. Placement in such treatment program is subject to available funds. [2000 c 28 § 34.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.810 9.94A.810 Transition and relapse prevention strategies. Within the funds available for this purpose, the department shall develop and monitor transition and relapse prevention strategies, including risk assessment and release plans, to reduce risk to the community after sex offenders’ terms of confinement in the custody of the department. [2000 c 28 § 35.] Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.820 9.94A.820 Sex offender treatment in the community. (1) Sex offender examinations and treatment ordered as a special condition of community placement or community custody under this chapter shall be conducted only by certified sex offender treatment providers or certified affiliate sex offender treatment providers under chapter 18.155 RCW unless the court or the department finds that: (a) The (2006 Ed.) 9.94A.835 offender has already moved to another state or plans to move to another state for reasons other than circumventing the certification requirements; (b) the treatment provider is employed by the department; or (c)(i) no certified sex offender treatment providers or certified affiliate sex offender treatment providers are available to provide treatment within a reasonable geographic distance of the offender’s home, as determined in rules adopted by the secretary; and (ii) the evaluation and treatment plan comply with the rules adopted by the department of health. A treatment provider selected by an offender under (c) of this subsection, who is not certified by the department of health shall consult with a certified sex offender treatment provider during the offender’s period of treatment to ensure compliance with the rules adopted by the department of health. The frequency and content of the consultation shall be based on the recommendation of the certified sex offender treatment provider. (2) A sex offender’s failure to participate in treatment required as a condition of community placement or community custody is a violation that will not be excused on the basis that no treatment provider was located within a reasonable geographic distance of the offender’s home. [2004 c 38 § 10; 2000 c 28 § 36.] Effective date—2004 c 38: See note following RCW 18.155.075. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. 9.94A.830 Legislative finding and intent—Commitment of felony sexual offenders after July 1, 1987. The legislature finds that the sexual offender treatment programs at western and eastern state hospitals, while not proven to be totally effective, may be of some benefit in positively affecting the behavior of certain sexual offenders. Given the significance of the problems of sexual assault and sexual abuse of children, it is therefore appropriate to review and revise these treatment efforts. At the same time, concerns regarding the lack of adequate security at the existing programs must be satisfactorily addressed. In an effort to promote public safety, it is the intent of the legislature to transfer the responsibility for felony sexual offenders from the department of social and health services to the department of corrections. Therefore, no person committing a felony sexual offense on or after July 1, 1987, may be committed under *RCW 9.94A.505(7)(b) to the department of social and health services at eastern state hospital or western state hospital. Any person committed to the department of social and health services under *RCW 9.94A.505(7)(b) for an offense committed before July 1, 1987, and still in the custody of the department of social and health services on June 30, 1993, shall be transferred to the custody of the department of corrections. Any person eligible for evaluation or treatment under *RCW 9.94A.505(7)(b) shall be committed to the department of corrections. [1987 c 402 § 2; 1986 c 301 § 1. Formerly RCW 9.94A.123.] 9.94A.830 *Reviser’s note: RCW 9.94A.505 (formerly RCW 9.94A.120) was amended by 1995 c 108 § 3, which deleted subsection (7)(b). Effective date—1987 c 402: See note following RCW 9.94A.505. 9.94A.835 Special allegation—Sexual motivation— Procedures. (1) The prosecuting attorney shall file a special 9.94A.835 [Title 9 RCW—page 191] 9.94A.836 Title 9 RCW: Crimes and Punishments allegation of sexual motivation in every criminal case, felony, gross misdemeanor, or misdemeanor, other than sex offenses as defined in *RCW 9.94A.030(38) (a) or (c) when sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify a finding of sexual motivation by a reasonable and objective factfinder. (2) In a criminal case wherein there has been a special allegation the state shall prove beyond a reasonable doubt that the accused committed the crime with a sexual motivation. The court shall make a finding of fact of whether or not a sexual motivation was present at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to whether or not the defendant committed the crime with a sexual motivation. This finding shall not be applied to sex offenses as defined in *RCW 9.94A.030(38) (a) or (c). (3) The prosecuting attorney shall not withdraw the special allegation of sexual motivation without approval of the court through an order of dismissal of the special allegation. The court shall not dismiss this special allegation unless it finds that such an order is necessary to correct an error in the initial charging decision or unless there are evidentiary problems which make proving the special allegation doubtful. [2006 c 123 § 2; 1999 c 143 § 11; 1990 c 3 § 601. Formerly RCW 9.94A.127.] *Reviser’s note: RCW 9.94A.030 was amended many times in 2006. The definition of "sex offense" is now found in subsection (42). Effective date—2006 c 123: See note following RCW 9.94A.533. Effective date—Application—1990 c 3 §§ 601-605: "(1) Sections 601 through 605 of this act, for purposes of sentencing adult or juvenile offenders, shall take effect July 1, 1990, and shall apply to crimes or offenses committed on or after July 1, 1990. (2) For purposes of defining a "sexually violent offense" pursuant to section 1002(4) of this act, sections 601 through 605 of this act shall take effect July 1, 1990, and shall apply to crimes committed on, before, or after July 1, 1990." [1990 c 3 § 606.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 9.94A.836 9.94A.836 Special allegation—Offense was predatory—Procedures. (1) In a prosecution for rape of a child in the first degree, rape of a child in the second degree, or child molestation in the first degree, the prosecuting attorney shall file a special allegation that the offense was predatory whenever sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify a finding by a reasonable and objective fact-finder that the offense was predatory, unless the prosecuting attorney determines, after consulting with a victim, that filing a special allegation under this section is likely to interfere with the ability to obtain a conviction. (2) Once a special allegation has been made under this section, the state has the burden to prove beyond a reasonable doubt that the offense was predatory. If a jury is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to whether the offense was predatory. If no jury is had, the court shall make a finding of fact as to whether the offense was predatory. [Title 9 RCW—page 192] (3) The prosecuting attorney shall not withdraw a special allegation filed under this section without the approval of the court through an order of dismissal of the allegation. The court may not dismiss the special allegation unless it finds that the order is necessary to correct an error in the initial charging decision or that there are evidentiary problems that make proving the special allegation doubtful. [2006 c 122 § 1.] Effective date—2006 c 122 §§ 1-4 and 6: "Sections 1 through 4 and 6 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately [March 20, 2006]." [2006 c 122 § 10.] 9.94A.837 9.94A.837 Special allegation—Victim was under fifteen years of age—Procedures. (1) In a prosecution for rape in the first degree, rape in the second degree, indecent liberties by forcible compulsion, or kidnapping in the first degree with sexual motivation, the prosecuting attorney shall file a special allegation that the victim of the offense was under fifteen years of age at the time of the offense whenever sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify a finding by a reasonable and objective fact-finder that the victim was under fifteen years of age at the time of the offense, unless the prosecuting attorney determines, after consulting with a victim, that filing a special allegation under this section is likely to interfere with the ability to obtain a conviction. (2) Once a special allegation has been made under this section, the state has the burden to prove beyond a reasonable doubt that the victim was under fifteen years of age at the time of the offense. If a jury is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to whether the victim was under the age of fifteen at the time of the offense. If no jury is had, the court shall make a finding of fact as to whether the victim was under the age of fifteen at the time of the offense. (3) The prosecuting attorney shall not withdraw a special allegation filed under this section without the approval of the court through an order of dismissal of the allegation. The court may not dismiss the special allegation unless it finds that the order is necessary to correct an error in the initial charging decision or that there are evidentiary problems that make proving the special allegation doubtful. [2006 c 122 § 2.] Effective date—2006 c 122 §§ 1-4 and 6: See note following RCW 9.94A.836. 9.94A.838 9.94A.838 Special allegation—Victim had diminished capacity—Procedures. (1) In a prosecution for rape in the first degree, rape in the second degree with forcible compulsion, indecent liberties with forcible compulsion, or kidnapping in the first degree with sexual motivation, the prosecuting attorney shall file a special allegation that the victim of the offense was, at the time of the offense, developmentally disabled, mentally disordered, or a frail elder or vulnerable adult, whenever sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the (2006 Ed.) Sentencing Reform Act of 1981 evidence, would justify a finding by a reasonable and objective fact-finder that the victim was, at the time of the offense, developmentally disabled, mentally disordered, or a frail elder or vulnerable adult, unless the prosecuting attorney determines, after consulting with a victim, that filing a special allegation under this section is likely to interfere with the ability to obtain a conviction. (2) Once a special allegation has been made under this section, the state has the burden to prove beyond a reasonable doubt that the victim was, at the time of the offense, developmentally disabled, mentally disordered, or a frail elder or vulnerable adult. If a jury is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to whether the victim was, at the time of the offense, developmentally disabled, mentally disordered, or a frail elder or vulnerable adult. If no jury is had, the court shall make a finding of fact as to whether the victim was, at the time of the offense, developmentally disabled, mentally disordered, or a frail elder or vulnerable adult. (3) The prosecuting attorney shall not withdraw a special allegation filed under this section without the approval of the court through an order of dismissal of the allegation. The court may not dismiss the special allegation unless it finds that the order is necessary to correct an error in the initial charging decision or that there are evidentiary problems that make proving the special allegation doubtful. (4) For purposes of this section, "developmentally disabled," "mentally disordered," and "frail elder or vulnerable adult" have the same meaning as in RCW 9A.44.010. [2006 c 122 § 3.] Effective date—2006 c 122 §§ 1-4 and 6: See note following RCW 9.94A.836. 9.94A.840 9.94A.840 Sex offenders—Release from total confinement—Notification of prosecutor. (1)(a) When it appears that a person who has been convicted of a sexually violent offense may meet the criteria of a sexually violent predator as defined in *RCW 71.09.020(1), the agency with jurisdiction over the person shall refer the person in writing to the prosecuting attorney of the county where that person was convicted, three months prior to the anticipated release from total confinement. (b) The agency shall inform the prosecutor of the following: (i) The person’s name, identifying factors, anticipated future residence, and offense history; and (ii) Documentation of institutional adjustment and any treatment received. (2) This section applies to acts committed before, on, or after March 26, 1992. (3) The agency with jurisdiction, its employees, and officials shall be immune from liability for any good-faith conduct under this section. (4) As used in this section, "agency with jurisdiction" means that agency with the authority to direct the release of a person serving a sentence or term of confinement and includes the department of corrections, the indeterminate sentence review board, and the department of social and health services. [1992 c 45 § 1; 1990 c 3 § 122. Formerly RCW 9.94A.151.] (2006 Ed.) 9.94A.8445 *Reviser’s note: RCW 71.09.020 was amended by 2001 2nd sp.s. c 12 § 102, changing subsection (1) to subsection (12). RCW 71.09.020 was subsequently amended by 2002 c 58 § 2, changing subsection (12) to subsection (16). Severability—1992 c 45: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1992 c 45 § 8.] Application—1992 c 45: "This act applies to sex offenses committed on, before, or after March 26, 1992." [1992 c 45 § 10.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 9.94A.843 Sex offenders—Release of information— Immunity. The department, its employees, and officials, shall be immune from liability for release of information regarding sex offenders that complies with RCW 4.24.550. [1990 c 3 § 123. Formerly RCW 9.94A.152.] 9.94A.843 Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 9.94A.844 9.94A.844 Sex offenders—Discretionary decisions— Immunity. Law enforcement agencies and the department of corrections are immune from civil liability for damages from discretionary decisions made under chapter 436, Laws of 2005 if they make a good faith effort to comply with chapter 436, Laws of 2005. [2005 c 436 § 5.] Reviser’s note: 2005 c 436 § 6 (an expiration date section) was repealed by 2006 c 131 § 2. 9.94A.8445 9.94A.8445 Community protection zones—Preemption of local regulations—Retrospective application. (Contingent expiration date.) (1) Sections 1 through 3 and 5 of chapter 436, Laws of 2005, supersede and preempt all rules, regulations, codes, statutes, or ordinances of all cities, counties, municipalities, and local agencies regarding the same subject matter. The state preemption created in this section applies to all rules, regulations, codes, statutes, and ordinances pertaining to residency restrictions for persons convicted of any sex offense at any time. (2) This section does not apply to rules, regulations, codes, statutes, or ordinances adopted by cities, counties, municipalities, or local agencies prior to March 1, 2006, except as required by an order issued by a court of competent jurisdiction pursuant to litigation regarding the rules, regulations, codes, statutes, or ordinances. [2006 c 131 § 1.] Contingent expiration date—2006 c 131 § 1: "(1) If the association of Washington cities submits consensus statewide standards to the governor and the legislature on or before December 31, 2007, section 1 of this act expires July 1, 2008, and may only be revived by an affirmative act of the legislature through duly enacted legislation. (2) If the association of Washington cities does not submit consensus statewide standards to the governor and legislature on or before December 31, 2007, section 1 of this act does not expire." [2006 c 131 § 4.] Residency restrictions on sex offenders—Statewide standards— 2006 c 131: "(1) The association of Washington cities, working with the cities and towns of Washington state, shall develop statewide standards for cities and towns to use when determining whether to impose residency restrictions on sex offenders within their jurisdiction. (2) The association of Washington cities shall work in consultation with a representative from each of the following agencies and organizations: (a) The attorney general of Washington; (b) The Washington state association of counties; (c) The department of corrections; (d) The Washington state coalition of sexual assault programs; (e) The Washington association of sheriffs and police chiefs; and [Title 9 RCW—page 193] 9.94A.846 Title 9 RCW: Crimes and Punishments (f) Any other agencies and organizations as deemed appropriate by the association of Washington cities, such as the Washington association of prosecuting attorneys, the juvenile rehabilitation administration of the department of social and health services, the indeterminate sentence review board, the Washington association for the treatment of sexual abusers, and the department of community, trade, and economic development. (3) The statewide standards for whether to impose residency restrictions on sex offenders should consider the following elements: (a) An identification of areas in which sex offenders should not reside due to concerns regarding public safety and welfare; (b) An identification of areas in which sex offenders may reside, taking into consideration factors such as: (i) How many housing units must reasonably be available in order to accommodate registered sex offenders in a city or town; (ii) The average response time of emergency services to the areas; (iii) The proximity of risk potential activities to the areas; and (iv) The proximity of medical care, mental health care providers, and sex offender treatment providers to the areas; (c) A prohibition against completely precluding sex offender residences within a city or town, implicating a sex offender’s right to travel, or enacting a criminal regulatory measure; (d) Appropriate civil remedies for violations of a local ordinance; and (e) Unique local conditions that should be given due deference, such as proximity to state facilities that house or treat sex offenders. (4) The association of Washington cities, on behalf of the cities and towns in Washington, shall present consensus statewide standards, along with any consensus recommendations and proposed legislation, to the governor and the legislature no later than December 31, 2007. The standards and any recommendations or proposed legislation must reflect a consensus among the association of Washington cities and the entities in subsection (2)(a) through (e) of this section. These entities must participate in good faith in activities carried out under this section with a goal of achieving consensus standards." [2006 c 131 § 3.] 9.94A.846 9.94A.846 Sex offenders—Release of information. In addition to any other information required to be released under other provisions of this chapter, the department may, pursuant to RCW 4.24.550, release information concerning convicted sex offenders confined to the department of corrections. [1990 c 3 § 124. Formerly RCW 9.94A.153.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 9.94A.850 9.94A.850 Sentencing guidelines commission— Established—Powers and duties. (1) A sentencing guidelines commission is established as an agency of state government. (2) The legislature finds that the commission, having accomplished its original statutory directive to implement this chapter, and having expertise in sentencing practice and policies, shall: (a) Evaluate state sentencing policy, to include whether the sentencing ranges and standards are consistent with and further: (i) The purposes of this chapter as defined in RCW 9.94A.010; and (ii) The intent of the legislature to emphasize confinement for the violent offender and alternatives to confinement for the nonviolent offender. The commission shall provide the governor and the legislature with its evaluation and recommendations under this subsection not later than December 1, 1996, and every two years thereafter; (b) Recommend to the legislature revisions or modifications to the standard sentence ranges, state sentencing policy, prosecuting standards, and other standards. If implementation of the revisions or modifications would result in exceed[Title 9 RCW—page 194] ing the capacity of correctional facilities, then the commission shall accompany its recommendation with an additional list of standard sentence ranges which are consistent with correction capacity; (c) Study the existing criminal code and from time to time make recommendations to the legislature for modification; (d)(i) Serve as a clearinghouse and information center for the collection, preparation, analysis, and dissemination of information on state and local adult and juvenile sentencing practices; (ii) develop and maintain a computerized adult and juvenile sentencing information system by individual superior court judge consisting of offender, offense, history, and sentence information entered from judgment and sentence forms for all adult felons; and (iii) conduct ongoing research regarding adult and juvenile sentencing guidelines, use of total confinement and alternatives to total confinement, plea bargaining, and other matters relating to the improvement of the adult criminal justice system and the juvenile justice system; (e) Assume the powers and duties of the juvenile disposition standards commission after June 30, 1996; (f) Evaluate the effectiveness of existing disposition standards and related statutes in implementing policies set forth in RCW 13.40.010 generally, specifically review the guidelines relating to the confinement of minor and first-time offenders as well as the use of diversion, and review the application of current and proposed juvenile sentencing standards and guidelines for potential adverse impacts on the sentencing outcomes of racial and ethnic minority youth; (g) Solicit the comments and suggestions of the juvenile justice community concerning disposition standards, and make recommendations to the legislature regarding revisions or modifications of the standards. The evaluations shall be submitted to the legislature on December 1 of each odd-numbered year. The department of social and health services shall provide the commission with available data concerning the implementation of the disposition standards and related statutes and their effect on the performance of the department’s responsibilities relating to juvenile offenders, and with recommendations for modification of the disposition standards. The administrative office of the courts shall provide the commission with available data on diversion, including the use of youth court programs, and dispositions of juvenile offenders under chapter 13.40 RCW; and (h) Not later than December 1, 1997, and at least every two years thereafter, based on available information, report to the governor and the legislature on: (i) Racial disproportionality in juvenile and adult sentencing, and, if available, the impact that diversions, such as youth courts, have on racial disproportionality in juvenile prosecution, adjudication, and sentencing; (ii) The capacity of state and local juvenile and adult facilities and resources; and (iii) Recidivism information on adult and juvenile offenders. (3) Each of the commission’s recommended standard sentence ranges shall include one or more of the following: Total confinement, partial confinement, community supervision, community restitution, and a fine. (2006 Ed.) Sentencing Reform Act of 1981 (4) The standard sentence ranges of total and partial confinement under this chapter, except as provided in RCW 9.94A.517, are subject to the following limitations: (a) If the maximum term in the range is one year or less, the minimum term in the range shall be no less than one-third of the maximum term in the range, except that if the maximum term in the range is ninety days or less, the minimum term may be less than one-third of the maximum; (b) If the maximum term in the range is greater than one year, the minimum term in the range shall be no less than seventy-five percent of the maximum term in the range, except that for murder in the second degree in seriousness level XIV under RCW 9.94A.510, the minimum term in the range shall be no less than fifty percent of the maximum term in the range; and (c) The maximum term of confinement in a range may not exceed the statutory maximum for the crime as provided in RCW 9A.20.021. (5)(a) Not later than December 31, 1999, the commission shall propose to the legislature the initial community custody ranges to be included in sentences under RCW 9.94A.715 for crimes committed on or after July 1, 2000. Not later than December 31 of each year, the commission may propose modifications to the ranges. The ranges shall be based on the principles in RCW 9.94A.010, and shall take into account the funds available to the department for community custody. The minimum term in each range shall not be less than onehalf of the maximum term. (b) The legislature may, by enactment of a legislative bill, adopt or modify the community custody ranges proposed by the commission. If the legislature fails to adopt or modify the initial ranges in its next regular session after they are proposed, the proposed ranges shall take effect without legislative approval for crimes committed on or after July 1, 2000. (c) When the commission proposes modifications to ranges pursuant to this subsection, the legislature may, by enactment of a bill, adopt or modify the ranges proposed by the commission for crimes committed on or after July 1 of the year after they were proposed. Unless the legislature adopts or modifies the commission’s proposal in its next regular session, the proposed ranges shall not take effect. (6) The commission shall exercise its duties under this section in conformity with chapter 34.05 RCW. [2005 c 282 § 19. Prior: 2002 c 290 § 22; 2002 c 237 § 16; 2002 c 175 § 16; 2000 c 28 § 41; prior: 1999 c 352 § 1; 1999 c 196 § 3; prior: 1997 c 365 § 2; 1997 c 338 § 3; 1996 c 232 § 1; 1995 c 269 § 303; 1994 c 87 § 1; 1986 c 257 § 18; 1982 c 192 § 2; 1981 c 137 § 4. Formerly RCW 9.94A.040.] Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Effective date—2002 c 175: See note following RCW 7.80.130. Technical correction bill—2000 c 28: See note following RCW 9.94A.015. Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. (2006 Ed.) 9.94A.860 Effective dates—1996 c 232: "(1) Sections 1 through 8 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately [March 28, 1996]. (2) Section 9 of this act takes effect July 1, 1996." [1996 c 232 § 12.] Effective date—1995 c 269: "Sections 101, 201, 302, 303, 401, 402, 501 through 505, 601, 701, 801, 901, 1001, 1101, 1201 through 1203, 1301, 1302, 1401 through 1407, 1501, 1601, 1701, 1801, 1901, 1902, 2001, 2101, 2102, 2201 through 2204, 2301, 2302, 2401, 2501, 2601 through 2608, 2701, 2801 through 2804, 2901 through 2909, 3001, 3101, 3201, 3301, 3401, and 3501 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1995." [1995 c 269 § 3604.] Part headings not law—Severability—1995 c 269: See notes following RCW 13.40.005. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. 9.94A.855 9.94A.855 Sentencing guidelines commission— Research staff—Data, information, assistance— Bylaws—Salary of executive officer. The commission shall appoint a research staff of sufficient size and with sufficient resources to accomplish its duties. The commission may request from the office of financial management, the indeterminate sentence review board, the administrative office of the courts, the department of corrections, and the department of social and health services such data, information, and data processing assistance as it may need to accomplish its duties, and such services shall be provided without cost to the commission. The commission shall adopt its own bylaws. The salary for a full-time executive officer, if any, shall be fixed by the governor pursuant to RCW 43.03.040. [2005 c 282 § 20; 1999 c 143 § 10; 1982 c 192 § 3; 1981 c 137 § 5. Formerly RCW 9.94A.050.] 9.94A.860 9.94A.860 Sentencing guidelines commission—Membership—Appointments—Terms of office—Expenses and compensation. (1) The commission consists of twenty voting members, one of whom the governor shall designate as chairperson. With the exception of ex officio voting members, the voting members of the commission shall be appointed by the governor, subject to confirmation by the senate. (2) The voting membership consists of the following: (a) The head of the state agency having general responsibility for adult correction programs, as an ex officio member; (b) The director of financial management or designee, as an ex officio member; (c) The chair of the indeterminate sentence review board, as an ex officio member; (d) The head of the state agency, or the agency head’s designee, having responsibility for juvenile corrections programs, as an ex officio member; (e) Two prosecuting attorneys; (f) Two attorneys with particular expertise in defense work; (g) Four persons who are superior court judges; (h) One person who is the chief law enforcement officer of a county or city; (i) Four members of the public who are not prosecutors, defense attorneys, judges, or law enforcement officers, one of whom is a victim of crime or a crime victims’ advocate; [Title 9 RCW—page 195] 9.94A.865 Title 9 RCW: Crimes and Punishments (j) One person who is an elected official of a county government, other than a prosecuting attorney or sheriff; (k) One person who is an elected official of a city government; (l) One person who is an administrator of juvenile court services. In making the appointments, the governor shall endeavor to assure that the commission membership includes adequate representation and expertise relating to both the adult criminal justice system and the juvenile justice system. In making the appointments, the governor shall seek the recommendations of Washington prosecutors in respect to the prosecuting attorney members, of the Washington state bar association in respect to the defense attorney members, of the association of superior court judges in respect to the members who are judges, of the Washington association of sheriffs and police chiefs in respect to the member who is a law enforcement officer, of the Washington state association of counties in respect to the member who is a county official, of the association of Washington cities in respect to the member who is a city official, of the office of crime victims advocacy and other organizations of crime victims in respect to the member who is a victim of crime or a crime victims’ advocate, and of the Washington association of juvenile court administrators in respect to the member who is an administrator of juvenile court services. (3)(a) All voting members of the commission, except ex officio voting members, shall serve terms of three years and until their successors are appointed and confirmed. (b) The governor shall stagger the terms of the members appointed under subsection (2)(j), (k), and (l) of this section by appointing one of them for a term of one year, one for a term of two years, and one for a term of three years. (4) The speaker of the house of representatives and the president of the senate may each appoint two nonvoting members to the commission, one from each of the two largest caucuses in each house. The members so appointed shall serve two-year terms, or until they cease to be members of the house from which they were appointed, whichever occurs first. (5) The members of the commission shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060. Legislative members shall be reimbursed by their respective houses as provided under RCW 44.04.120. Members shall be compensated in accordance with RCW 43.03.250. [2001 2nd sp.s. c 12 § 311; 1996 c 232 § 3; 1993 c 11 § 1; 1988 c 157 § 2; 1984 c 287 § 10; 1981 c 137 § 6. Formerly RCW 9.94A.060.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective dates—1996 c 232: See note following RCW 9.94A.850. Effective date—1993 c 11: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [April 12, 1993]." [1993 c 11 § 2.] Application—1988 c 157: See note following RCW 9.94A.030. Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. [Title 9 RCW—page 196] 9.94A.865 9.94A.865 Standard sentence ranges—Revisions or modifications—Submission to legislature. Revisions or modifications of standard sentence ranges or other standards, together with any additional list of standard sentence ranges, shall be submitted to the legislature at least every two years. [1986 c 257 § 19; 1981 c 137 § 7. Formerly RCW 9.94A.070.] Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. 9.94A.870 9.94A.870 Emergency due to inmate population exceeding correctional facility capacity. If the governor finds that an emergency exists in that the population of a state residential correctional facility exceeds its reasonable, maximum capacity, then the governor may do any one or more of the following: (1) Call the sentencing guidelines commission into an emergency meeting for the purpose of evaluating the standard ranges and other standards. The commission may adopt any revision or amendment to the standard ranges or other standards that it believes appropriate to deal with the emergency situation. The revision or amendment shall be adopted in conformity with chapter 34.05 RCW and shall take effect on the date prescribed by the commission. The legislature shall approve or modify the commission’s revision or amendment at the next legislative session after the revision or amendment takes effect. Failure of the legislature to act shall be deemed as approval of the revision or amendment; (2) Call the clemency and pardons board into an emergency meeting for the purpose of recommending whether the governor’s commutation or pardon power should be exercised to meet the present emergency. [1999 c 143 § 13; 1984 c 246 § 1; 1983 c 163 § 4; 1981 c 137 § 16. Formerly RCW 9.94A.160.] Severability—1984 c 246: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1984 c 246 § 12.] Effective date—1983 c 163: See note following RCW 9.94A.505. Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.875 9.94A.875 Emergency in county jails population exceeding capacity. If the governor finds that an emergency exists in that the populations of county jails exceed their reasonable, maximum capacity in a significant manner as a result of increases in the sentenced felon population due to implementation of chapter 9.94A RCW, the governor may do any one or more of the following: (1) Call the sentencing guidelines commission into an emergency meeting for the purpose of evaluating the standard ranges and other standards. The commission may adopt any revision or amendment to the standard ranges or other standards that it believes appropriate to deal with the emergency situation. The revision or amendment shall be adopted in conformity with chapter 34.05 RCW and shall take effect on the date prescribed by the commission. The legislature shall approve or modify the commission’s revision or amendment at the next legislative session after the revision or amendment takes effect. Failure of the legislature to act shall be deemed as approval of the revision or amendment. The (2006 Ed.) Sentencing Reform Act of 1981 commission shall also analyze how alternatives to total confinement are being provided and used and may recommend other emergency measures that may relieve the overcrowding. (2) Call the clemency and pardons board into an emergency meeting for the purpose of recommending whether the governor’s commutation or pardon power should be exercised to meet the present emergency. [1984 c 209 § 9. Formerly RCW 9.94A.165.] Effective dates—1984 c 209: See note following RCW 9.94A.030. 9.94A.880 9.94A.880 Clemency and pardons board—Membership—Terms—Chairman—Bylaws—Travel expenses— Staff. (1) The clemency and pardons board is established as a board within the office of the governor. The board consists of five members appointed by the governor, subject to confirmation by the senate. (2) Members of the board shall serve terms of four years and until their successors are appointed and confirmed. However, the governor shall stagger the terms by appointing one of the initial members for a term of one year, one for a term of two years, one for a term of three years, and two for terms of four years. (3) The board shall elect a chairman from among its members and shall adopt bylaws governing the operation of the board. (4) Members of the board shall receive no compensation but shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060 as now existing or hereafter amended. (5) The attorney general shall provide a staff as needed for the operation of the board. [1981 c 137 § 25. Formerly RCW 9.94A.250.] Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.885 9.94A.885 Clemency and pardons board—Petitions for review—Hearing. (1) The clemency and pardons board shall receive petitions from individuals, organizations, and the department for review and commutation of sentences and pardoning of offenders in extraordinary cases, and shall make recommendations thereon to the governor. (2) The board shall receive petitions from individuals or organizations for the restoration of civil rights lost by operation of state law as a result of convictions for federal offenses or out-of-state felonies. The board may issue certificates of restoration limited to the elective rights to vote and to engage in political office. Any certifications granted by the board must be filed with the secretary of state to be effective. In all other cases, the board shall make recommendations to the governor. (3) The board shall not recommend that the governor grant clemency under subsection (1) of this section until a public hearing has been held on the petition. The prosecuting attorney of the county where the conviction was obtained shall be notified at least thirty days prior to the scheduled hearing that a petition has been filed and the date and place at which the hearing on the petition will be held. The board may waive the thirty-day notice requirement in cases where it determines that waiver is necessary to permit timely action on the petition. A copy of the petition shall be sent to the (2006 Ed.) 9.94A.890 prosecuting attorney. The prosecuting attorney shall make reasonable efforts to notify victims, survivors of victims, witnesses, and the law enforcement agency or agencies that conducted the investigation, of the date and place of the hearing. Information regarding victims, survivors of victims, or witnesses receiving this notice are confidential and shall not be available to the offender. The board shall consider written, oral, audio, or videotaped statements regarding the petition received, personally or by representation, from the individuals who receive notice pursuant to this section. This subsection is intended solely for the guidance of the board. Nothing in this section is intended or may be relied upon to create a right or benefit, substantive or procedural, enforceable at law by any person. [1999 c 323 § 3; 1989 c 214 § 2; 1981 c 137 § 26. Formerly RCW 9.94A.260.] Intent—1999 c 323: "The pardoning power is vested in the governor under such regulations and restrictions as may be prescribed by law. To assist the governor in gathering the facts necessary to the wise exercise of this power, the legislature created the clemency and pardons board. In recognition of the severe and detrimental impact of crime on victims, survivors of victims, and witnesses of crime, an intelligent recommendation on an application for clemency is dependent upon input from the victims and survivors of victims of crimes. It is the intent of the legislature to ensure that all victims and survivors of victims of crimes are afforded a meaningful role in the clemency process. The impact of the crime on the community must also be assessed when passing upon an application for clemency. The prosecuting attorney who obtained the conviction and the law enforcement agency that conducted the investigation are uniquely situated to provide an accurate account of the offense and the impact felt by the community as a result of the offense. It is the intent of the legislature to ensure that the prosecuting attorney who obtained the conviction and the law enforcement agency that conducted the investigation are afforded a meaningful role in the clemency process." [1999 c 323 § 1.] Effective date—1981 c 137: See RCW 9.94A.905. 9.94A.890 9.94A.890 Abused victim—Resentencing for murder of abuser. (1) The sentencing court or the court’s successor shall consider recommendations from the indeterminate sentence review board for resentencing offenders convicted of murder if the indeterminate sentence review board advises the court of the following: (a) The offender was convicted for a murder committed prior to July 23, 1989; (b) RCW 9.94A.535(1)(h), if effective when the offender committed the crime, would have provided a basis for the offender to seek a mitigated sentence; and (c) Upon review of the sentence, the indeterminate sentence review board believes that the sentencing court, when originally sentencing the offender for the murder, did not consider evidence that the victim subjected the offender or the offender’s children to a continuing pattern of sexual or physical abuse and the murder was in response to that abuse. (2) The court may resentence the offender in light of RCW 9.94A.535(1)(h) and impose an exceptional mitigating sentence pursuant to that provision. Prior to resentencing, the court shall consider any other recommendation and evidence concerning the issue of whether the offender committed the crime in response to abuse. (3) The court shall render its decision regarding reducing the inmate’s sentence no later than six months after receipt of the indeterminate sentence review board’s recommendation to reduce the sentence imposed. [2000 c 28 § 42; 1993 c 144 § 5. Formerly RCW 9.94A.395.] [Title 9 RCW—page 197] 9.94A.905 Title 9 RCW: Crimes and Punishments Technical correction bill—2000 c 28: See note following RCW 9.94A.015. be, under the jurisdiction of the court for collection of legal financial obligations. [2003 c 379 § 24.] Effective date—1993 c 144: See note following RCW 9.95.045. Severability—Effective dates—2003 c 379: See notes following RCW 9.94A.728. Intent—Purpose—2003 c 379 §§ 13-27: See note following RCW 9.94A.760. 9.94A.905 9.94A.905 Effective date of *RCW 9.94A.080 through 9.94A.130, 9.94A.150 through 9.94A.230, 9.94A.250, 9.94A.260—Sentences apply to felonies committed after June 30, 1984. *RCW 9.94A.080 through 9.94A.130, 9.94A.150 through 9.94A.230, and 9.94A.250 and 9.94A.260 shall take effect on July 1, 1984. The sentences required under this chapter shall be prescribed in each sentence which occurs for a felony committed after June 30, 1984. [1981 c 137 § 28.] *Reviser’s note: The majority of chapter 9.94A RCW was recodified by 2001 c 10 § 6. See Comparative Table for chapter 9.94A RCW in the Table of Disposition of Former RCW Sections, Volume 0. 9.94A.910 9.94A.910 Severability—1981 c 137. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1981 c 137 § 41.] 9.94A.920 9.94A.920 Headings and captions not law—2000 c 28. Part headings and section captions used in this act do not constitute any part of the law. [2000 c 28 § 43.] 9.94A.921 9.94A.921 Effective date—2000 c 28. Sections 1 through 42 of this act take effect July 1, 2001. [2000 c 28 § 46.] 9.94A.922 9.94A.922 Severability—2000 c 28. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2000 c 28 § 47.] 9.94A.923 9.94A.923 Nonentitlement. Nothing in chapter 290, Laws of 2002 creates an entitlement for a criminal defendant to any specific sanction, alternative, sentence option, or substance abuse treatment. [2002 c 290 § 26.] Effective date—2002 c 290 §§ 1, 4-6, 12, 13, 26, and 27: See note following RCW 70.96A.350. Intent—2002 c 290: See note following RCW 9.94A.517. Severability—2002 c 290: See RCW 9.94A.924. 9.94A.924 9.94A.924 Severability—2002 c 290. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2002 c 290 § 28.] 9.94A.930 Recodification. The code reviser shall recodify sections within chapter 9.94A RCW, and correct any cross-references to any such recodified sections, as necessary to simplify the organization of chapter 9.94A RCW. [2001 c 10 § 6.] 9.94A.930 Chapter 9.95 (Formerly: Prison terms, paroles, and probation) Sections 9.95.0001 9.95.001 9.95.002 9.95.003 9.95.005 9.95.007 9.95.009 9.95.010 9.95.011 9.95.013 9.95.015 9.95.017 9.95.020 9.95.028 9.95.030 9.95.031 9.95.032 9.95.040 9.95.045 9.95.047 9.95.052 9.95.055 9.95.060 9.95.062 9.95.063 9.95.064 9.95.070 9.95.080 9.95.090 9.95.100 9.95.110 9.95.115 9.95.116 9.95.117 9.95.119 9.94A.925 9.94A.925 Application—2003 c 379 §§ 13-27. The provisions of sections 13 through 27, chapter 379, Laws of 2003 apply to all offenders currently, or in the future, subject to sentences with unsatisfied legal financial obligations. The provisions of sections 13 through 27, chapter 379, Laws of 2003 do not change the amount of any legal financial obligation or the maximum term for which any offender is, or may [Title 9 RCW—page 198] Chapter 9.95 RCW INDETERMINATE SENTENCES 9.95.120 9.95.121 9.95.122 9.95.123 9.95.124 Definitions. Board of prison terms and paroles redesignated as indeterminate sentence review board. Board considered parole board. Appointment of board members—Qualifications—Salaries and travel expenses—Employees. Board meetings—Quarters at institutions. Transaction of board’s business in panels—Action by full board. Board of prison terms and paroles—Existence ceases July 1, 1986—Reductions in membership—Continuation of functions. Court to fix maximum sentence. Minimum terms. Application of sentencing reform act to board decision. Finding of fact or special verdict establishing defendant armed with deadly weapon. Criteria for confinement and parole. Duties of superintendent of correctional institution. Statement of prosecuting attorney provided to department, when. Statement to indeterminate sentence review board. Statement of prosecuting attorney. Statement of prosecuting attorney—Delivery of statement. Terms fixed by board—Minimums for certain cases. Abused victim—Reduction in sentence for murder of abuser— Petition for review. Abused victim—Considerations of board in reviewing petition. Redetermination and refixing of minimum term of confinement. Reduction of sentences during war emergency. When sentence begins to run. Stay of judgment—When prohibited—Credit for jail time pending appeal. Conviction upon new trial—Former imprisonment deductible. Conditions of release. Reductions for good behavior. Revocation and redetermination of minimum for infractions. Labor required. Prisoner released on serving maximum term. Parole. Parole of life term prisoners—Crimes committed before July 1, 1984. Duration of confinement—Mandatory life sentences—Crimes committed before July 1, 1984. Parolees subject to supervision of department of corrections— Progress reports. Plans and recommendations for conditions of supervision of parolees. Suspension, revision of parole—Community corrections officers—Hearing—Retaking violators—Reinstatement. On-site revocation hearing—Procedure when waived. On-site revocation hearing—Representation for alleged violators—Compensation. On-site revocation hearing—Conduct—Witnesses—Subpoenas, enforcement. On-site revocation hearing—Attorney general’s recommendations—Procedural rules. (2006 Ed.) Indeterminate Sentences 9.95.125 9.95.126 9.95.130 9.95.140 9.95.143 9.95.150 9.95.155 9.95.160 9.95.170 9.95.190 9.95.195 9.95.200 9.95.204 9.95.206 9.95.210 9.95.212 9.95.214 9.95.215 9.95.220 9.95.230 9.95.240 9.95.250 9.95.260 9.95.265 9.95.267 9.95.270 9.95.280 9.95.290 9.95.300 9.95.310 9.95.320 9.95.330 9.95.340 9.95.350 9.95.360 9.95.370 9.95.420 9.95.425 9.95.430 9.95.435 9.95.440 9.95.900 On-site parole revocation hearing—Board’s decision—Reinstatement or revocation of parole. On-site revocation hearing—Cooperation in providing facilities. Parole-revoked offender as escapee. Record of parolees—Privacy—Sexual offender information release—Immunity from liability—Cooperation by officials and employees. Court-ordered treatment—Required disclosures. Rules and regulations. Rule making regarding sex offenders. Governor’s powers not affected—Revocation of paroles granted by board. Board to inform itself as to each convict—Records from department of corrections. Application of RCW 9.95.010 through 9.95.170 to inmates previously committed. Final discharge of parolee—Restoration of civil rights—Governor’s pardoning power not affected. Probation by court—Investigation by secretary of corrections. Misdemeanant probation services—County supervision. Misdemeanant probation services—Offender classification system—Supervision standards. Conditions of probation. Standards for supervision of misdemeanant probationers. Assessment for supervision of misdemeanant probationers. Counties may provide probation and parole services. Violation of probation—Rearrest—Imprisonment. Court revocation or termination of probation. Dismissal of information or indictment after probation completed—Vacation of conviction. Community corrections officers. Indeterminate sentence review board—Supervision of conditionally pardoned persons—Hearing. Report to governor and legislature. Transfer of certain powers and duties of board to secretary of corrections. Compacts for out-of-state supervision of parolees or probationers—Uniform act. Return of parole violators from another state—Deputizing outof-state officers. Return of parole violators from another state—Deputization procedure. Return of parole violators from another state—Contracts to share costs. Assistance for parolees, work release, and discharged prisoners—Declaration of purpose. Assistance for parolees, work release, and discharged prisoners—Subsistence payments—Terms and conditions. Assistance for parolees, work release, and discharged prisoners—Department may accept gifts and make expenditures. Assistance for parolees, work release, and discharged prisoners—Use and repayment of funds belonging to absconders. Assistance for parolees, work release, and discharged prisoners—Use and accounting of funds or property. Assistance for parolees, work release, and discharged prisoners—Community services revolving fund. Assistance for parolees and discharged prisoners—Repayment agreement. Sex offenders—End of sentence review—Victim input. Sex offenders—Postrelease violations. Sex offenders—Postrelease arrest. Sex offenders—Postrelease transfer to more restrictive confinement. Sex offenders—Reinstatement of release. Application of certain laws to felonies committed before, on, or after certain dates. Commitments: Chapter 10.70 RCW. Counties may provide probation and parole services: RCW 36.01.070. 9.95.003 9.95.0001 Definitions. (1) "Board" means the indeterminate sentence review board. (2) "Community custody" means that portion of an offender’s sentence subject to controls including crimerelated prohibitions and affirmative conditions from the court, the board, or the department of corrections based on risk to community safety, that is served under supervision in the community, and which may be modified or revoked for violations of release conditions. (3) "Crime-related prohibition" has the meaning defined in RCW 9.94A.030. (4) "Department" means the department of corrections. (5) "Parole" means that portion of a person’s sentence for a crime committed before July 1, 1984, served on conditional release in the community subject to board controls and revocation and under supervision of the department. (6) "Secretary" means the secretary of the department of corrections or his or her designee. [2001 2nd sp.s. c 12 § 317.] 9.95.0001 Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.001 9.95.001 Board of prison terms and paroles redesignated as indeterminate sentence review board. On July 1, 1986, the board of prison terms and paroles shall be redesignated the indeterminate sentence review board. The newly designated board shall retain the same membership and staff as the previously designated board of prison terms and paroles. References to "the board" or "board of prison terms and paroles" contained in this chapter, chapters 7.68, 9.95, 9.96, 71.06, and 72.04A RCW, and RCW 9A.44.045 and 72.68.031 are deemed to refer to the indeterminate sentence review board. [1986 c 224 § 2; (i) 1935 c 114 § 1; RRS § 10249-1. (ii) 1947 c 47 § 1; Rem. Supp. 1947 § 10249-1a. Formerly RCW 43.67.010.] Effective date—1986 c 224: "Sections 1 through 13 of this act shall take effect July 1, 1986." [1986 c 224 § 16.] Severability—1986 c 224: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1986 c 224 § 17.] 9.95.002 9.95.002 Board considered parole board. The indeterminate sentence review board, in fulfilling its duties under the provisions of chapter 12, Laws of 2001 2nd sp. sess., shall be considered a parole board as that concept was treated in law under the state’s indeterminate sentencing statutes. [2001 2nd sp.s. c 12 § 363.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Form of sentence to penitentiary: RCW 10.64.060. 9.95.003 Leaves of absence for inmates: RCW 72.01.370, 72.01.380. Probation and parole, transfer of certain powers, duties: Chapter 72.04A RCW. Victims of crimes, reimbursement by convicted person as condition of work release or parole: RCW 7.68.120. Western interstate corrections compact, board members may hold hearings: RCW 72.70.040. (2006 Ed.) 9.95.003 Appointment of board members—Qualifications—Salaries and travel expenses—Employees. The board shall consist of a chairman and two other members, each of whom shall be appointed by the governor with the consent of the senate. Each member shall hold office for a term of five years, and until his or her successor is appointed and qualified. The terms shall expire on April 15th of the [Title 9 RCW—page 199] 9.95.005 Title 9 RCW: Crimes and Punishments expiration year. Vacancies in the membership of the board shall be filled by appointment by the governor with the consent of the senate. In the event of the inability of any member to act, the governor shall appoint some competent person to act in his stead during the continuance of such inability. The members shall not be removable during their respective terms except for cause determined by the superior court of Thurston county. The governor in appointing the members shall designate one of them to serve as chairman at the governor’s pleasure. The members of the board and its officers and employees shall not engage in any other business or profession or hold any other public office without the prior approval of the executive ethics board indicating compliance with RCW 42.52.020, 42.52.030, 42.52.040 and 42.52.120; nor shall they, at the time of appointment or employment or during their incumbency, serve as the representative of any political party on an executive committee or other governing body thereof, or as an executive officer or employee of any political committee or association. The members of the board shall each severally receive salaries fixed by the governor in accordance with the provisions of RCW 43.03.040, and in addition shall receive travel expenses incurred in the discharge of their official duties in accordance with RCW 43.03.050 and 43.03.060. The board may employ, and fix, with the approval of the governor, the compensation of and prescribe the duties of a secretary and such officers, employees, and assistants as may be necessary, and provide necessary quarters, supplies, and equipment. [1997 c 350 § 2; 1986 c 224 § 3; 1975-’76 2nd ex.s. c 34 § 8; 1969 c 98 § 9; 1959 c 32 § 1; 1955 c 340 § 9. Prior: 1945 c 155 § 1, part; 1935 c 114 § 8, part; Rem. Supp. 1945 § 10249-8, part. Formerly RCW 43.67.020.] Effective date—Severability—1986 c 224: See notes following RCW 9.95.001. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. Severability—Effective date—1969 c 98: See notes following RCW 9.95.120. 9.95.005 9.95.005 Board meetings—Quarters at institutions. The board shall meet at major state correctional institutions at such times as may be necessary for a full and complete study of the cases of all convicted persons whose durations of confinement are to be determined by it; whose community custody supervision is under the board’s authority; or whose applications for parole come before it. Other times and places of meetings may also be fixed by the board. The superintendents of the different institutions shall provide suitable quarters for the board and assistants while in the discharge of their duties. [2001 2nd sp.s. c 12 § 318; 1986 c 224 § 4; 1959 c 32 § 2; 1955 c 340 § 10. Prior: 1945 c 155 § 1, part; 1935 c 114 § 8, part; Rem. Supp. 1945 § 10249-8, part. Formerly RCW 43.67.030.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—Severability—1986 c 224: See notes following RCW 9.95.001. [Title 9 RCW—page 200] 9.95.007 9.95.007 Transaction of board’s business in panels— Action by full board. The board may meet and transact business in panels. Each board panel shall consist of at least two members of the board. In all matters concerning the internal affairs of the board and policy-making decisions, a majority of the full board must concur in such matters. The chairman of the board with the consent of a majority of the board may designate any two members to exercise all the powers and duties of the board in connection with any hearing before the board. If the two members so designated cannot unanimously agree as to the disposition of the hearing assigned to them, such hearing shall be reheard by the full board. All actions of the full board shall be by concurrence of a majority of the board members. [1986 c 224 § 5; 1975-’76 2nd ex.s. c 63 § 1; 1959 c 32 § 3. Formerly RCW 43.67.035.] Effective date—Severability—1986 c 224: See notes following 9.95.001. 9.95.009 9.95.009 Board of prison terms and paroles—Existence ceases July 1, 1986—Reductions in membership— Continuation of functions. (1) On July 1, 1986, the board of prison terms and paroles shall be redesignated as the indeterminate sentence review board. The board’s membership shall be reduced as follows: On July 1, 1986, and on July 1st of each year until 1998, the number of board members shall be reduced in a manner commensurate with the board’s remaining workload as determined by the office of financial management based upon its population forecast for the indeterminate sentencing system and in conjunction with the budget process. To meet the statutory obligations of the indeterminate sentence review board, the number of board members shall not be reduced to fewer than three members, although the office of financial management may designate some or all members as part-time members and specify the extent to which they shall be less than full-time members. Any reduction shall take place by the expiration, on that date, of the term or terms having the least time left to serve. (2) After July 1, 1984, the board shall continue its functions with respect to persons convicted of crimes committed prior to July 1, 1984, and committed to the department of corrections. When making decisions on duration of confinement, including those relating to persons committed under a mandatory life sentence, and parole release under RCW 9.95.100 and 9.95.110, the board shall consider the purposes, standards, and sentencing ranges adopted pursuant to RCW 9.94A.850 and the minimum term recommendations of the sentencing judge and prosecuting attorney, and shall attempt to make decisions reasonably consistent with those ranges, standards, purposes, and recommendations: PROVIDED, That the board and its successors shall give adequate written reasons whenever a minimum term or parole release decision is made which is outside the sentencing ranges adopted pursuant to RCW 9.94A.850. In making such decisions, the board and its successors shall consider the different charging and disposition practices under the indeterminate sentencing system. (3) Notwithstanding the provisions of subsection (2) of this section, the indeterminate sentence review board shall give public safety considerations the highest priority when making all discretionary decisions on the remaining indeterminate population regarding the ability for parole, parole (2006 Ed.) Indeterminate Sentences release, and conditions of parole. [1990 c 3 § 707; 1989 c 259 § 1; 1986 c 224 § 6; 1985 c 279 § 1; 1982 c 192 § 8; 1981 c 137 § 24.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Effective date—Severability—1986 c 224: See notes following RCW 9.95.001. Severability—1981 c 137: See RCW 9.94A.910. 9.95.010 9.95.010 Court to fix maximum sentence. When a person, whose crime was committed before July 1, 1984, is convicted of any felony, except treason, murder in the first degree, or carnal knowledge of a child under ten years, and a new trial is not granted, the court shall sentence such person to the penitentiary, or, if the law allows and the court sees fit to exercise such discretion, to the reformatory, and shall fix the maximum term of such person’s sentence only. The maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term. If the law does not provide a maximum term for the crime of which such person was convicted the court shall fix such maximum term, which may be for any number of years up to and including life imprisonment but in any case where the maximum term is fixed by the court it shall be fixed at not less than twenty years. [2001 2nd sp.s. c 12 § 319; 1955 c 133 § 2. Prior: 1947 c 92 § 1, part; 1935 c 114 § 2, part; Rem. Supp. 1947 § 10249-2, part.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Punishment: Chapter 9.92 RCW. 9.95.011 9.95.011 Minimum terms. (1) When the court commits a convicted person to the department of corrections on or after July 1, 1986, for an offense committed before July 1, 1984, the court shall, at the time of sentencing or revocation of probation, fix the minimum term. The term so fixed shall not exceed the maximum sentence provided by law for the offense of which the person is convicted. The court shall attempt to set the minimum term reasonably consistent with the purposes, standards, and sentencing ranges adopted under RCW 9.94A.850, but the court is subject to the same limitations as those placed on the board under RCW 9.92.090, 9.95.040 (1) through (4), 9.95.115, 9A.32.040, 9A.44.045, and chapter 69.50 RCW. The court’s minimum term decision is subject to review to the same extent as a minimum term decision by the parole board before July 1, 1986. Thereafter, the expiration of the minimum term set by the court minus any time credits earned under RCW 9.95.070 and 9.95.110 constitutes the parole eligibility review date, at which time the board may consider the convicted person for parole under RCW 9.95.100 and 9.95.110 and chapter 72.04A RCW. Nothing in this section affects the board’s authority to reduce or increase the minimum term, once set by the court, under RCW 9.95.040, 9.95.052, 9.95.055, 9.95.070, 9.95.080, 9.95.100, 9.95.115, 9.95.125, or 9.95.047. (2006 Ed.) 9.95.015 (2)(a) Except as provided in (b) of this subsection, not less than ninety days prior to the expiration of the minimum term of a person sentenced under RCW 9.94A.712, for a sex offense committed on or after September 1, 2001, less any time credits permitted by statute, the board shall review the person for conditional release to community custody as provided in RCW 9.95.420. If the board does not release the person, it shall set a new minimum term not to exceed an additional two years. The board shall review the person again not less than ninety days prior to the expiration of the new minimum term. (b) If at the time a person sentenced under RCW 9.94A.712 for a sex offense committed on or after September 1, 2001, arrives at a department of corrections facility, the offender’s minimum term has expired or will expire within one hundred twenty days of the offender’s arrival, then no later than one hundred twenty days after the offender’s arrival at a department of corrections facility, but after the board receives the results from the end of sentence review process and the recommendations for additional or modified conditions of community custody from the department, the board shall review the person for conditional release to community custody as provided in RCW 9.95.420. If the board does not release the person, it shall set a new minimum term not to exceed an additional two years. The board shall review the person again not less than ninety days prior to the expiration of the new minimum term. [2002 c 174 § 2; 2001 2nd sp.s. c 12 § 320; 1993 c 144 § 3; 1986 c 224 § 7.] Effective date—2002 c 174: See note following RCW 9.95.420. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—1993 c 144: See note following RCW 9.95.045. Effective date—Severability—1986 c 224: See notes following RCW 9.95.001. 9.95.013 9.95.013 Application of sentencing reform act to board decision. The board shall apply all of the statutory requirements of RCW 9.95.009(2), requiring decisions of the board to be reasonably consistent with the ranges, standards, and purposes of the sentencing reform act, chapter 9.94A RCW, and the minimum term recommendations of the sentencing judge and the prosecuting attorney, to every person who, on July 23, 1989, is incarcerated and has been adjudged under the provisions of RCW 9.92.090. [1989 c 259 § 5.] 9.95.015 9.95.015 Finding of fact or special verdict establishing defendant armed with deadly weapon. In every criminal case wherein conviction would require the board to determine the duration of confinement, or the court to make such determination for persons committed after July 1, 1986, for crimes committed before July 1, 1984, and wherein there has been an allegation and evidence establishing that the accused was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused was armed with a deadly weapon, as defined by RCW 9.95.040, at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the defendant was armed with a deadly weapon, as [Title 9 RCW—page 201] 9.95.017 Title 9 RCW: Crimes and Punishments defined in RCW 9.95.040, at the time of the commission of the crime. [1986 c 224 § 8; 1961 c 138 § 1.] Effective date—Severability—1986 c 224: See notes following RCW 9.95.001. 9.95.017 9.95.017 Criteria for confinement and parole. (1) The board shall cause to be prepared criteria for duration of confinement, release on parole, and length of parole for persons committed to prison for crimes committed before July 1, 1984. The proposed criteria should take into consideration RCW 9.95.009(2). Before submission to the governor, the board shall solicit comments and review on their proposed criteria for parole release. (2) Persons committed to the department of corrections and who are under the authority of the board for crimes committed on or after September 1, 2001, are subject to the provisions for duration of confinement, release to community custody, and length of community custody established in RCW 9.94A.712, 9.94A.713, 72.09.335, and 9.95.420 through 9.95.440. [2003 c 218 § 2; 2001 2nd sp.s. c 12 § 321; 1986 c 224 § 11.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—Severability—1986 c 224: See notes following RCW 9.95.001. the board with such information. The sentencing judge and prosecuting attorney shall indicate to the board, for its guidance, what, in their judgment, should be the duration of the convicted person’s imprisonment. [1999 c 143 § 17; 1984 c 114 § 2; 1955 c 133 § 4. Prior: 1947 c 92 § 1, part; 1935 c 114 § 2, part; Rem. Supp. 1947 § 10249-2, part.] 9.95.031 Statement of prosecuting attorney. Whenever any person shall be convicted of a crime and who shall be sentenced to imprisonment or confinement in a state correctional facility, it shall be the duty of the prosecuting attorney who prosecuted such convicted person to make a statement of the facts respecting the crime for which the prisoner was tried and convicted, and include in such statement all information that the prosecuting attorney can give in regard to the career of the prisoner before the commission of the crime for which the prisoner was convicted and sentenced, stating to the best of the prosecuting attorney’s knowledge whether the prisoner was industrious and of good character, and all other facts and circumstances that may tend to throw any light upon the question as to whether such prisoner is capable of again becoming a good citizen. [1992 c 7 § 23; 1929 c 158 § 1; RRS § 10254.] 9.95.031 Reviser’s note: This section and RCW 9.95.032 antedate the 1935 act (1935 c 114) that created the board of prison terms and paroles. They were not expressly repealed thereby, although part of section 2 of the 1935 act (RCW 9.95.030) contains similar provisions. The effect of 1935 c 114 (as amended) upon other unrepealed prior laws is discussed in Lindsey v. Superior Court, 33 Wn. (2d) 94 at pp 99-100. 9.95.020 9.95.020 Duties of superintendent of correctional institution. If the sentence of a person so convicted is not suspended by the court, the superintendent of a major state correctional institution shall receive such person, if committed to his or her institution, and imprison the person until released under the provisions of this chapter, under RCW 9.95.420, upon the completion of the statutory maximum sentence, or through the action of the governor. [2001 2nd sp.s. c 12 § 322; 1955 c 133 § 3. Prior: 1947 c 92 § 1, part; 1935 c 114 § 2, part; Rem. Supp. 1947 § 10249-2, part.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.028 9.95.028 Statement of prosecuting attorney provided to department, when. It is the intent of the legislature to expedite the inmate classification process of the department of corrections. The statement of the prosecuting attorney regarding a convicted criminal defendant should be prepared and made available to the department at the time the convicted person is placed in the custody of the department. [1984 c 114 § 1.] 9.95.030 9.95.030 Statement to indeterminate sentence review board. At the time the convicted person is transported to the custody of the department of corrections, the indeterminate sentence review board shall obtain from the sentencing judge and the prosecuting attorney, a statement of all the facts concerning the convicted person’s crime and any other information of which they may be possessed relative to him, and the sentencing judge and the prosecuting attorney shall furnish [Title 9 RCW—page 202] 9.95.032 Statement of prosecuting attorney—Delivery of statement. Such statement shall be signed by the prosecuting attorney and approved by the judge by whom the judgment was rendered and shall be delivered to the sheriff, traveling guard, department of corrections personnel, or other officer executing the sentence, and a copy of such statement shall be furnished to the defendant or his or her attorney. Such officer shall deliver the statement, at the time of the prisoner’s commitment, to the superintendent of the institution to which such prisoner has been committed. The superintendent shall make such statement available for use by the board. [2001 2nd sp.s. c 12 § 323; 1984 c 114 § 3; 1929 c 158 § 2; RRS § 10255.] 9.95.032 Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.040 Terms fixed by board—Minimums for certain cases. The board shall fix the duration of confinement for persons committed by the court before July 1, 1986, for crimes committed before July 1, 1984. Within six months after the admission of the convicted person to a state correctional facility, the board shall fix the duration of confinement. The term of imprisonment so fixed shall not exceed the maximum provided by law for the offense of which the person was convicted or the maximum fixed by the court where the law does not provide for a maximum term. Subject to RCW 9.95.047, the following limitations are placed on the board or the court for persons committed to a state correctional facility on or after July 1, 1986, for crimes committed before July 1, 1984, with regard to fixing the dura9.95.040 (2006 Ed.) Indeterminate Sentences tion of confinement in certain cases, notwithstanding any provisions of law specifying a lesser sentence: (1) For a person not previously convicted of a felony but armed with a deadly weapon at the time of the commission of the offense, the duration of confinement shall not be fixed at less than five years. (2) For a person previously convicted of a felony either in this state or elsewhere and who was armed with a deadly weapon at the time of the commission of the offense, the duration of confinement shall not be fixed at less than seven and one-half years. The words "deadly weapon," as used in this section include, but are not limited to, any instrument known as a blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas. (3) For a person convicted of being an habitual criminal within the meaning of the statute which provides for mandatory life imprisonment for such habitual criminals, the duration of confinement shall not be fixed at less than fifteen years. (4) Any person convicted of embezzling funds from any institution of public deposit of which the person was an officer or stockholder, the duration of confinement shall be fixed at not less than five years. Except when an inmate of a state correctional facility has been convicted of murder in the first or second degree, the board may parole an inmate prior to the expiration of a mandatory minimum term, provided such inmate has demonstrated a meritorious effort in rehabilitation and at least twothirds of the board members concur in such action: PROVIDED, That any inmate who has a mandatory minimum term and is paroled prior to the expiration of such term according to the provisions of this chapter shall not receive a conditional release from supervision while on parole until after the mandatory minimum term has expired. An inmate serving a sentence fixed under this chapter, whether or not a mandatory minimum term has expired, may be granted an extraordinary medical placement by the secretary of corrections when authorized under RCW 9.94A.728(4). [1999 c 324 § 4. Prior: 1993 c 144 § 4; 1993 c 140 § 1; 1992 c 7 § 24; 1986 c 224 § 9; 1975-’76 2nd ex.s. c 63 § 2; 1961 c 138 § 2; 1955 c 133 § 5; prior: 1947 c 92 § 1, part; 1935 c 114 § 2, part; Rem. Supp. 1947 § 10249-2, part.] Effective date—1993 c 144: See note following RCW 9.95.045. Effective date—Severability—1986 c 224: See notes following RCW 9.95.001. 9.95.045 Abused victim—Reduction in sentence for murder of abuser—Petition for review. (1) An inmate convicted of murder may petition the indeterminate sentence review board to review the inmate’s sentence if the petition alleges the following: (a) The inmate was sentenced for a murder committed prior to July 23, 1989, which was the effective date of section 1, chapter 408, Laws of 1989, as codified in RCW 9.94A.535(1)(h). RCW 9.94A.535(1)(h) provides that the 9.95.045 (2006 Ed.) 9.95.047 sentencing court may consider as a mitigating factor evidence that the defendant or the defendant’s children suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense was a response to that abuse; (b) RCW 9.94A.535(1)(h), if effective when the defendant committed the crime, would have provided a basis for the defendant to seek a mitigated sentence; and (c) The sentencing court when determining what sentence to impose, did not consider evidence that the victim subjected the defendant or the defendant’s children to a continuing pattern of sexual or physical abuse and the murder was in response to that abuse. (2) An inmate who seeks to have his or her sentence reviewed under this section must petition the board for review no later than October 1, 1993. The petition may be by letter requesting review. (3)(a) If the inmate was convicted of a murder committed prior to July 1, 1984, and the inmate is under the jurisdiction of the indeterminate sentence review board, the board shall conduct the review as provided in RCW 9.95.047. If the inmate was sentenced pursuant to chapter 9.94A RCW for a murder committed after June 30, 1984, but before July 23, 1989, the board shall conduct the review and may make appropriate recommendations to the sentencing court as provided in RCW 9.94A.890. The board shall complete its review of the petitions and submit recommendations to the sentencing courts or their successors by October 1, 1994. (b) When reviewing petitions, the board shall solicit recommendations from the prosecuting attorneys of the counties where the petitioners were convicted, and shall accept input from other interested parties. [1993 c 144 § 1.] Effective date—1993 c 144: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [April 30, 1993]." [1993 c 144 § 7.] 9.95.047 9.95.047 Abused victim—Considerations of board in reviewing petition. (1) If an inmate under the board’s jurisdiction files a petition for review under RCW 9.95.045, the board shall review the duration of the inmate’s confinement, including review of the minimum term and parole eligibility review dates. The board shall consider whether: (a) The petitioner was convicted for a murder committed prior to the effective date of RCW 9.94A.535(1)(h); (b) RCW 9.94A.535(1)(h), if effective when the petitioner committed the crime, would have provided a basis for the petitioner to seek a mitigated sentence; and (c) The sentencing court and prosecuting attorney, when making their minimum term recommendations, considered evidence that the victim subjected the petitioner or the petitioner’s children to a continuing pattern of sexual or physical abuse and the murder was in response to that abuse. (2) The board may reset the minimum term and parole eligibility review date of a petitioner convicted of murder if the board finds that had RCW 9.94A.535(1)(h) been effective when the petitioner committed the crime, the petitioner may have received an exceptional mitigating sentence. [1993 c 144 § 2.] Effective date—1993 c 144: See note following RCW 9.95.045. [Title 9 RCW—page 203] 9.95.052 Title 9 RCW: Crimes and Punishments 9.95.052 9.95.052 Redetermination and refixing of minimum term of confinement. At any time after the board (or the court after July 1, 1986) has determined the minimum term of confinement of any person subject to confinement in a state correctional institution for a crime committed before July 1, 1984, the board may request the superintendent of such correctional institution to conduct a full review of such person’s prospects for rehabilitation and report to the board the facts of such review and the resulting findings. Upon the basis of such report and such other information and investigation that the board deems appropriate, the board may redetermine and refix such convicted person’s minimum term of confinement whether the term was set by the board or the court. The board shall not reduce a person’s minimum term of confinement unless the board has received from the department of corrections all institutional conduct reports relating to the person. [2001 2nd sp.s. c 12 § 324; 1986 c 224 § 10; 1983 c 196 § 1; 1972 ex.s. c 67 § 1.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—Severability—1986 c 224: See notes following RCW 9.95.001. 9.95.055 9.95.055 Reduction of sentences during war emergency. The indeterminate sentence review board is hereby granted authority, in the event of a declaration by the governor that a war emergency exists, including a general mobilization, and for the duration thereof only, to reduce downward the minimum term, as set by the board, of any inmate under the jurisdiction of the board confined in a state correctional facility, who will be accepted by and inducted into the armed services: PROVIDED, That a reduction downward shall not be made under this section for those inmates who: (1) Are confined for (a) treason; (b) murder in the first degree; or (c) rape of a child in the first degree where the victim is under ten years of age or an equivalent offense under prior law; (2) are being considered for civil commitment as a sexually violent predator under chapter 71.09 RCW; or (3) were sentenced under RCW 9.94A.712 for a crime committed on or after September 1, 2001. [2003 c 218 § 3; 2001 2nd sp.s. c 12 § 325; 1992 c 7 § 25; 1951 c 239 § 1.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.060 9.95.060 When sentence begins to run. When a convicted person seeks appellate review of his or her conviction and is at liberty on bond pending the determination of the proceeding by the supreme court or the court of appeals, credit on his or her sentence will begin from the date such convicted person is returned to custody. The date of return to custody shall be certified to the department of corrections, the indeterminate sentence review board, and the prosecuting attorney of the county in which such convicted person was convicted and sentenced, by the sheriff of such county. If such convicted person does not seek review of the conviction, but is at liberty for a period of time subsequent to the signing of the judgment and sentence, or becomes a fugitive, credit [Title 9 RCW—page 204] on his sentence will begin from the date such convicted person is returned to custody. The date of return to custody shall be certified as provided in this section. In all other cases, credit on a sentence will begin from the date the judgment and sentence is signed by the court. [1999 c 143 § 18; 1988 c 202 § 15; 1981 c 136 § 36; 1979 c 141 § 1; 1971 c 81 § 46; 1967 c 200 § 10; 1955 c 133 § 7. Prior: 1947 c 92 § 1, part; 1935 c 114 § 2, part; Rem. Supp. §10249-2, part.] Severability—1988 c 202: See note following RCW 2.24.050. Effective date—1981 c 136: See RCW 72.09.900. 9.95.062 9.95.062 Stay of judgment—When prohibited— Credit for jail time pending appeal. (1) Notwithstanding CrR 3.2 or RAP 7.2, an appeal by a defendant in a criminal action shall not stay the execution of the judgment of conviction, if the court determines by a preponderance of the evidence that: (a) The defendant is likely to flee or to pose a danger to the safety of any other person or the community if the judgment is stayed; or (b) The delay resulting from the stay will unduly diminish the deterrent effect of the punishment; or (c) A stay of the judgment will cause unreasonable trauma to the victims of the crime or their families; or (d) The defendant has not undertaken to the extent of the defendant’s financial ability to pay the financial obligations under the judgment or has not posted an adequate performance bond to assure payment. (2) An appeal by a defendant convicted of one of the following offenses shall not stay execution of the judgment of conviction: Rape in the first or second degree (RCW 9A.44.040 and 9A.44.050); rape of a child in the first, second, or third degree (RCW 9A.44.073, 9A.44.076, and 9A.44.079); child molestation in the first, second, or third degree (RCW 9A.44.083, 9A.44.086, and 9A.44.089); sexual misconduct with a minor in the first or second degree (RCW 9A.44.093 and 9A.44.096); indecent liberties (RCW 9A.44.100); incest (RCW 9A.64.020); luring (RCW 9A.40.090); any class A or B felony that is a sexually motivated offense as defined in RCW 9.94A.030; a felony violation of RCW 9.68A.090; or any offense that is, under chapter 9A.28 RCW, a criminal attempt, solicitation, or conspiracy to commit one of those offenses. (3) In case the defendant has been convicted of a felony, and has been unable to obtain release pending the appeal by posting an appeal bond, cash, adequate security, release on personal recognizance, or any other conditions imposed by the court, the time the defendant has been imprisoned pending the appeal shall be deducted from the term for which the defendant was sentenced, if the judgment is affirmed. [1996 c 275 § 9; 1989 c 276 § 1; 1969 ex.s. c 4 § 1; 1969 c 103 § 1; 1955 c 42 § 2. Prior: 1893 c 61 § 30; RRS § 1745. Formerly RCW 10.73.030, part.] Finding—1996 c 275: See note following RCW 9.94A.505. Severability—1989 c 276: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 c 276 § 6.] 9.95.063 9.95.063 Conviction upon new trial—Former imprisonment deductible. If a defendant who has been imprisoned (2006 Ed.) Indeterminate Sentences during the pendency of any post-trial proceeding in any state or federal court shall be again convicted upon a new trial resulting from any such proceeding, the period of his former imprisonment shall be deducted by the superior court from the period of imprisonment to be fixed on the last verdict of conviction. [1971 ex.s. c 86 § 1; 1971 c 81 § 47; 1955 c 42 § 4. Prior: 1893 c 61 § 34; RRS § 1750. Formerly RCW 10.73.070, part.] 9.95.064 9.95.064 Conditions of release. (1) In order to minimize the trauma to the victim, the court may attach conditions on release of an offender under RCW 9.95.062, convicted of a crime committed before July 1, 1984, regarding the whereabouts of the defendant, contact with the victim, or other conditions. (2) Offenders released under RCW 9.95.420 are subject to crime-related prohibitions and affirmative conditions established by the court, the department of corrections, or the board pursuant to RCW 9.94A.715 and 9.94A.712, 9.94A.713, 72.09.335, and 9.95.420 through 9.95.440. [2001 2nd sp.s. c 12 § 326; 1989 c 276 § 4.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Severability—1989 c 276: See note following RCW 9.95.062. 9.95.070 9.95.070 Reductions for good behavior. (1) Every prisoner, convicted of a crime committed before July 1, 1984, who has a favorable record of conduct at a state correctional institution, and who performs in a faithful, diligent, industrious, orderly and peaceable manner the work, duties, and tasks assigned to him or her to the satisfaction of the superintendent of the institution, and in whose behalf the superintendent of the institution files a report certifying that his or her conduct and work have been meritorious and recommending allowance of time credits to him or her, shall upon, but not until, the adoption of such recommendation by the indeterminate sentence review board, be allowed time credit reductions from the term of imprisonment fixed by the board. (2) Offenders sentenced under RCW 9.94A.712 for a crime committed on or after September 1, 2001, are subject to the earned release provisions for sex offenders established in RCW 9.94A.728. [2003 c 218 § 4; 2001 2nd sp.s. c 12 § 327; 1999 c 143 § 19; 1955 c 133 § 8. Prior: 1947 c 92 § 1, part; 1935 c 114 § 2, part; Rem. Supp. 1947 § 10249-2, part.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.080 9.95.080 Revocation and redetermination of minimum for infractions. In case any person convicted of a crime committed before July 1, 1984, and under the jurisdiction of the indeterminate sentence review board undergoing sentence in a state correctional institution commits any infractions of the rules and regulations of the institution, the board may revoke any order theretofore made determining the length of time such convicted person shall be imprisoned, including the forfeiture of all or a portion of credits earned or to be earned, pursuant to the provisions of RCW 9.95.110, (2006 Ed.) 9.95.110 and make a new order determining the length of time the person shall serve, not exceeding the maximum penalty provided by law for the crime for which the person was convicted, or the maximum fixed by the court. Such revocation and redetermination shall not be had except upon a hearing before the indeterminate sentence review board. At such hearing the convicted person shall be present and entitled to be heard and may present evidence and witnesses in his or her behalf. [2001 2nd sp.s. c 12 § 328; 1992 c 7 § 26; 1972 ex.s. c 68 § 1; 1961 c 106 § 1; 1955 c 133 § 9. Prior: 1947 c 92 § 1, part; 1935 c 114 § 2, part; Rem. Supp. 1947 § 10249-2, part.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.090 9.95.090 Labor required. (1) The board shall require of every able bodied offender confined in a state correctional institution for a crime committed before July 1, 1984, as many hours of faithful labor in each and every day during his or her term of imprisonment as shall be prescribed by the rules and regulations of the institution in which he or she is confined. (2) Offenders sentenced under RCW 9.94A.712 for crimes committed on or after July 1, 2001, shall perform work or other programming as required by the department of corrections during their term of confinement. [2001 2nd sp.s. c 12 § 329; 1999 c 143 § 20; 1955 c 133 § 10. Prior: 1947 c 92 § 1, part; 1935 c 114 § 2, part; Rem. Supp. §10249-2, part.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Labor by prisoners: Chapter 72.64 RCW. 9.95.100 9.95.100 Prisoner released on serving maximum term. Any person convicted of a felony committed before July 1, 1984, and undergoing sentence in a state correctional institution, not sooner released under the provisions of this chapter, shall, in accordance with the provisions of law, be discharged from custody on serving the maximum punishment provided by law for the offense of which such person was convicted, or the maximum term fixed by the court where the law does not provide for a maximum term. The board shall not, however, until his or her maximum term expires, release a prisoner, unless in its opinion his or her rehabilitation has been complete and he or she is a fit subject for release. [2001 2nd sp.s. c 12 § 330; 1955 c 133 § 11. Prior: (i) 1947 c 92 § 1, part; 1935 c 114 § 2, part; Rem. Supp. 1947 § 10249-2, part. (ii) 1939 c 142 § 1, part; 1935 c 114 § 4, part; RRS § 10249-4, part.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.110 9.95.110 Parole. (1) The board may permit an offender convicted of a crime committed before July 1, 1984, to leave the buildings and enclosures of a state correctional institution on parole, after such convicted person has served the period [Title 9 RCW—page 205] 9.95.115 Title 9 RCW: Crimes and Punishments of confinement fixed for him or her by the board, less time credits for good behavior and diligence in work: PROVIDED, That in no case shall an inmate be credited with more than one-third of his or her sentence as fixed by the board. The board may establish rules and regulations under which an offender may be allowed to leave the confines of a state correctional institution on parole, and may return such person to the confines of the institution from which he or she was paroled, at its discretion. (2) The board may permit an offender convicted of a crime committed on or after September 1, 2001, and sentenced under RCW 9.94A.712, to leave a state correctional institution on community custody according to the provisions of RCW 9.94A.712, 9.94A.713, 72.09.335, and 9.95.420 through 9.95.440. The person may be returned to the institution following a violation of his or her conditions of release to community custody pursuant to the hearing provisions of RCW 9.95.435. [2003 c 218 § 7; 2001 2nd sp.s. c 12 § 331; 1999 c 143 § 21; 1955 c 133 § 12. Prior: 1939 c 142 § 1, part; 1935 c 114 § 4, part; RRS § 10249-4, part.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.115 9.95.115 Parole of life term prisoners—Crimes committed before July 1, 1984. The indeterminate sentence review board is hereby granted authority to parole any person sentenced to the custody of the department of corrections, under a mandatory life sentence for a crime committed before July 1, 1984, except those persons sentenced to life without the possibility of parole. No such person shall be granted parole unless the person has been continuously confined therein for a period of twenty consecutive years less earned good time: PROVIDED, That no such person shall be released under parole who is subject to civil commitment as a sexually violent predator under chapter 71.09 RCW. [2001 2nd sp.s. c 12 § 332; 1989 c 259 § 3; 1951 c 238 § 1.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.116 9.95.116 Duration of confinement—Mandatory life sentences—Crimes committed before July 1, 1984. (1) The board shall fix the duration of confinement for persons committed to the custody of the department of corrections under a mandatory life sentence for a crime or crimes committed before July 1, 1984. However, no duration of confinement shall be fixed for those persons committed under a life sentence without the possibility of parole. The duration of confinement for persons covered by this section shall be fixed no later than July 1, 1992, or within six months after the admission or readmission of the convicted person to the custody of the department of corrections, whichever is later. (2) Prior to fixing a duration of confinement under this section, the board shall request from the sentencing judge and the prosecuting attorney an updated statement in accordance with RCW 9.95.030. In addition to the report and recommen[Title 9 RCW—page 206] dations of the prosecuting attorney and sentencing judge, the board shall also consider any victim impact statement submitted by a victim, survivor, or a representative, and any statement submitted by an investigative law enforcement officer. The board shall provide the convicted person with copies of any new statement and an opportunity to comment thereon prior to fixing the duration of confinement. [1989 c 259 § 2.] 9.95.117 9.95.117 Parolees subject to supervision of department of corrections—Progress reports. See RCW 72.04A.080. 9.95.119 9.95.119 Plans and recommendations for conditions of supervision of parolees. See RCW 72.04A.070. 9.95.120 9.95.120 Suspension, revision of parole—Community corrections officers—Hearing—Retaking violators— Reinstatement. Whenever the board or a community corrections officer of this state has reason to believe a person convicted of a crime committed before July 1, 1984, has breached a condition of his or her parole or violated the law of any state where he or she may then be or the rules and regulations of the board, any community corrections officer of this state may arrest or cause the arrest and detention and suspension of parole of such convicted person pending a determination by the board whether the parole of such convicted person shall be revoked. All facts and circumstances surrounding the violation by such convicted person shall be reported to the board by the community corrections officer, with recommendations. The board, after consultation with the secretary of corrections, shall make all rules and regulations concerning procedural matters, which shall include the time when state community corrections officers shall file with the board reports required by this section, procedures pertaining thereto and the filing of such information as may be necessary to enable the board to perform its functions under this section. On the basis of the report by the community corrections officer, or at any time upon its own discretion, the board may revise or modify the conditions of parole or order the suspension of parole by the issuance of a written order bearing its seal, which order shall be sufficient warrant for all peace officers to take into custody any convicted person who may be on parole and retain such person in their custody until arrangements can be made by the board for his or her return to a state correctional institution for convicted felons. Any such revision or modification of the conditions of parole or the order suspending parole shall be personally served upon the parolee. Any parolee arrested and detained in physical custody by the authority of a state community corrections officer, or upon the written order of the board, shall not be released from custody on bail or personal recognizance, except upon approval of the board and the issuance by the board of an order of reinstatement on parole on the same or modified conditions of parole. All chiefs of police, marshals of cities and towns, sheriffs of counties, and all police, prison, and peace officers and constables shall execute any such order in the same manner as any ordinary criminal process. (2006 Ed.) Indeterminate Sentences Whenever a paroled prisoner is accused of a violation of his or her parole, other than the commission of, and conviction for, a felony or misdemeanor under the laws of this state or the laws of any state where he or she may then be, he or she shall be entitled to a fair and impartial hearing of such charges within thirty days from the time that he or she is served with charges of the violation of conditions of parole after his or her arrest and detention. The hearing shall be held before one or more members of the board at a place or places, within this state, reasonably near the site of the alleged violation or violations of parole. In the event that the board suspends a parole by reason of an alleged parole violation or in the event that a parole is suspended pending the disposition of a new criminal charge, the board shall have the power to nullify the order of suspension and reinstate the individual to parole under previous conditions or any new conditions that the board may determine advisable. Before the board shall nullify an order of suspension and reinstate a parole they shall have determined that the best interests of society and the individual shall best be served by such reinstatement rather than a return to a correctional institution. [2003 c 218 § 5; 2001 2nd sp.s. c 12 § 333; 1999 c 143 § 22; 1981 c 136 § 37; 1979 c 141 § 2; 1969 c 98 § 2; 1961 c 106 § 2; 1955 c 133 § 13. Prior: 1939 c 142 § 1, part; 1935 c 114 § 4, part; RRS § 10249-4, part.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—1981 c 136: See RCW 72.09.900. Severability—1969 c 98: "If any provision of this act, or its application to any person or circumstance is invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1969 c 98 § 10.] Effective date—1969 c 98: "This act shall take effect on July 1, 1969." [1969 c 98 § 11.] Violations of parole or probation—Revision of parole conditions—Rearrest—Detention: RCW 72.04A.090. 9.95.121 9.95.121 On-site revocation hearing—Procedure when waived. (1) For offenders convicted of crimes committed before July 1, 1984, within fifteen days from the date of notice to the department of corrections of the arrest and detention of the alleged parole violator, he or she shall be personally served by a state community corrections officer with a copy of the factual allegations of the violation of the conditions of parole, and, at the same time shall be advised of his or her right to an on-site parole revocation hearing and of his or her rights and privileges as provided in RCW 9.95.120 through 9.95.126. The alleged parole violator, after service of the allegations of violations of the conditions of parole and the advice of rights may waive the on-site parole revocation hearing as provided in RCW 9.95.120, and admit one or more of the alleged violations of the conditions of parole. If the board accepts the waiver it shall either, (a) reinstate the parolee on parole under the same or modified conditions, or (b) revoke the parole of the parolee and enter an order of parole revocation and return to state custody. A determination of a new minimum sentence shall be made within thirty days of return to state custody which shall not exceed the maximum sentence as provided by law for the crime of which (2006 Ed.) 9.95.123 the parolee was originally convicted or the maximum fixed by the court. If the waiver made by the parolee is rejected by the board it shall hold an on-site parole revocation hearing under the provisions of RCW 9.95.120 through 9.95.126. (2) Offenders sentenced under RCW 9.94A.712 are subject to the violation hearing process established in RCW 9.95.435. [2001 2nd sp.s. c 12 § 334; 1981 c 136 § 38; 1979 c 141 § 3; 1969 c 98 § 3.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—1981 c 136: See RCW 72.09.900. Severability—Effective date—1969 c 98: See notes following RCW 9.95.120. 9.95.122 9.95.122 On-site revocation hearing—Representation for alleged violators—Compensation. (1) At any onsite parole revocation hearing for a person convicted of a crime committed before July 1, 1984, the alleged parole violator shall be entitled to be represented by an attorney of his or her own choosing and at his or her own expense, except, upon the presentation of satisfactory evidence of indigency and the request for the appointment of an attorney by the alleged parole violator, the board may cause the appointment of an attorney to represent the alleged parole violator to be paid for at state expense, and, in addition, the board may assume all or such other expenses in the presentation of evidence on behalf of the alleged parole violator as it may have authorized: PROVIDED, That funds are available for the payment of attorneys’ fees and expenses. Attorneys for the representation of alleged parole violators in on-site hearings shall be appointed by the superior courts for the counties wherein the on-site parole revocation hearing is to be held and such attorneys shall be compensated in such manner and in such amount as shall be fixed in a schedule of fees adopted by rule of the board. (2) The rights of offenders sentenced under RCW 9.94A.712 are defined in RCW 9.95.435. [2001 2nd sp.s. c 12 § 335; 1999 c 143 § 23; 1969 c 98 § 4.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Severability—Effective date—1969 c 98: See notes following RCW 9.95.120. 9.95.123 9.95.123 On-site revocation hearing—Conduct— Witnesses—Subpoenas, enforcement. In conducting onsite parole or community custody revocation hearings or community custody violations hearings, the board shall have the authority to administer oaths and affirmations, examine witnesses, receive evidence, and issue subpoenas for the compulsory attendance of witnesses and the production of evidence for presentation at such hearings. Subpoenas issued by the board shall be effective throughout the state. Witnesses in attendance at any on-site parole or community custody revocation hearing shall be paid the same fees and allowances, in the same manner and under the same conditions as provided for witnesses in the courts of the state in [Title 9 RCW—page 207] 9.95.124 Title 9 RCW: Crimes and Punishments accordance with chapter 2.40 RCW. If any person fails or refuses to obey a subpoena issued by the board, or obeys the subpoena but refuses to testify concerning any matter under examination at the hearing, the board may petition the superior court of the county where the hearing is being conducted for enforcement of the subpoena: PROVIDED, That an offer to pay statutory fees and mileage has been made to the witness at the time of the service of the subpoena. The petition shall be accompanied by a copy of the subpoena and proof of service, and shall set forth in what specific manner the subpoena has not been complied with, and shall ask an order of the court to compel the witness to appear and testify before the board. The court, upon such petition, shall enter an order directing the witness to appear before the court at a time and place to be fixed in such order and then and there to show cause why he or she has not responded to the subpoena or has refused to testify. A copy of the order shall be served upon the witness. If it appears to the court that the subpoena was properly issued and that the particular questions which the witness refuses to answer are reasonable and relevant, the court shall enter an order that the witness appear at the time and place fixed in the order and testify or produce the required papers, and on failing to obey the order, the witness shall be dealt with as for contempt of court. [2001 2nd sp.s. c 12 § 336; 1999 c 143 § 24; 1969 c 98 § 5.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Severability—Effective date—1969 c 98: See notes following RCW 9.95.120. 9.95.124 9.95.124 On-site revocation hearing—Attorney general’s recommendations—Procedural rules. At all on-site parole revocation hearings for offenders convicted of crimes committed before July 1, 1984, the community corrections officers of the department of corrections, having made the allegations of the violations of the conditions of parole, may be represented by the attorney general. The attorney general may make independent recommendations to the board about whether the violations constitute sufficient cause for the revocation of the parole and the return of the parolee to a state correctional institution for convicted felons. The hearings shall be open to the public unless the board for specifically stated reasons closes the hearing in whole or in part. The hearings shall be recorded either manually or by a mechanical recording device. An alleged parole violator may be requested to testify and any such testimony shall not be used against him or her in any criminal prosecution. The board shall adopt rules governing the formal and informal procedures authorized by this chapter and make rules of practice before the board in on-site parole revocation hearings, together with forms and instructions. [2001 2nd sp.s. c 12 § 337; 1999 c 143 § 25; 1983 c 196 § 2; 1981 c 136 § 39; 1979 c 141 § 4; 1969 c 98 § 6.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—1981 c 136: See RCW 72.09.900. [Title 9 RCW—page 208] Severability—Effective date—1969 c 98: See notes following RCW 9.95.120. 9.95.125 9.95.125 On-site parole revocation hearing—Board’s decision—Reinstatement or revocation of parole. After the on-site parole revocation hearing for a person convicted of a crime committed before July 1, 1984, has been concluded, the members of the board having heard the matter shall enter their decision of record within ten days, and make findings and conclusions upon the allegations of the violations of the conditions of parole. If the member, or members having heard the matter, should conclude that the allegations of violation of the conditions of parole have not been proven by a preponderance of the evidence, or, those which have been proven by a preponderance of the evidence are not sufficient cause for the revocation of parole, then the parolee shall be reinstated on parole on the same or modified conditions of parole. For parole violations not resulting in new convictions, modified conditions of parole may include sanctions according to an administrative sanction grid. If the member or members having heard the matter should conclude that the allegations of violation of the conditions of parole have been proven by a preponderance of the evidence and constitute sufficient cause for the revocation of parole, then such member or members shall enter an order of parole revocation and return the parole violator to state custody. Within thirty days of the return of such parole violator to a state correctional institution the board shall enter an order determining a new minimum term not exceeding the maximum penalty provided by law for the crime for which the parole violator was originally convicted or the maximum fixed by the court. [2001 2nd sp.s. c 12 § 338; 1993 c 140 § 2; 1969 c 98 § 7.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Severability—Effective date—1969 c 98: See notes following RCW 9.95.120. 9.95.126 9.95.126 On-site revocation hearing—Cooperation in providing facilities. All officers and employees of the state, counties, cities and political subdivisions of this state shall cooperate with the board in making available suitable facilities for conducting parole or community custody revocation hearings. [2001 2nd sp.s. c 12 § 339; 1969 c 98 § 8.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Severability—Effective date—1969 c 98: See notes following RCW 9.95.120. 9.95.130 9.95.130 Parole-revoked offender as escapee. From and after the suspension, cancellation, or revocation of the parole of any offender convicted of a crime committed before July 1, 1984, and until his or her return to custody the offender shall be deemed an escapee and a fugitive from justice. The indeterminate sentence review board may deny credit against the maximum sentence any time during which he or she is an escapee and fugitive from justice. [2001 2nd (2006 Ed.) Indeterminate Sentences sp.s. c 12 § 340; 1993 c 140 § 3; 1955 c 133 § 14. Prior: 1939 c 142 § 1, part; 1935 c 114 § 4, part; RRS § 10249-4, part.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.140 9.95.140 Record of parolees—Privacy—Sexual offender information release—Immunity from liability— Cooperation by officials and employees. (1) The board shall cause a complete record to be kept of every prisoner under the jurisdiction of the board released on parole or community custody. Such records shall be organized in accordance with the most modern methods of filing and indexing so that there will be always immediately available complete information about each such prisoner. Subject to information sharing provisions related to mentally ill offenders, the end of sentence review committee, and the department of corrections, the board may make rules as to the privacy of such records and their use by others than the board and its staff. Sex offenders convicted of crimes committed before July 1, 1984, who are under the board’s jurisdiction shall be subject to the determinations of the end of sentence review committee regarding risk level and subject to sex offender registration and community notification. The board shall be immune from liability for the release of information concerning sex offenders as provided in RCW 4.24.550. The superintendents of state correctional facilities and all officers and employees thereof and all other public officials shall at all times cooperate with the board and furnish to the board, its officers, and employees such information as may be necessary to enable it to perform its functions, and such superintendents and other employees shall at all times give the members of the board, its officers, and employees free access to all prisoners confined in the state correctional facilities. (2) Offenders sentenced under RCW 9.94A.712 shall be subject to the determinations of the end of sentence review committee regarding risk level and subject to sex offender registration and community notification. (3) The end of sentence review committee shall make law enforcement notifications for offenders under board jurisdiction on the same basis that it notifies law enforcement regarding offenders sentenced under chapter 9.94A RCW for crimes committed after July 1, 1984. [2001 2nd sp.s. c 12 § 341; 1992 c 7 § 27; 1990 c 3 § 126; 1955 c 133 § 15. Prior: 1939 c 142 § 1, part; 1935 c 114 § 4, part; RRS § 10249-4, part.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.190 ment from a mental health or chemical dependency treatment provider, the offender must disclose to the mental health or chemical dependency treatment provider whether he or she is subject to supervision by the department of corrections. If an offender has received relief from disclosure pursuant to RCW 9.94A.562, 70.96A.155, or 71.05.132, the offender must provide the mental health or chemical dependency treatment provider with a copy of the order granting the relief. [2004 c 166 § 10.] Severability—Effective dates—2004 c 166: See notes following RCW 71.05.040. 9.95.150 9.95.150 Rules and regulations. The board shall make all necessary rules and regulations to carry out the provisions of this chapter not inconsistent therewith, and may provide the forms of all documents necessary therefor. [1999 c 143 § 26; 1955 c 133 § 16. Prior: 1939 c 142 § 1, part; 1935 c 114 § 4, part; RRS § 10249-4, part.] 9.95.155 9.95.155 Rule making regarding sex offenders. RCW 72.09.337. See 9.95.160 9.95.160 Governor’s powers not affected—Revocation of paroles granted by board. This chapter shall not limit or circumscribe the powers of the governor to commute the sentence of, or grant a pardon to, any convicted person, and the governor may cancel or revoke the parole granted to any convicted person by the board. The written order of the governor canceling or revoking such parole shall have the same force and effect and be executed in like manner as an order of the board. [1999 c 143 § 27; 1955 c 133 § 17. Prior: 1939 c 142 § 1, part; 1935 c 114 § 4, part; RRS § 10249-4, part.] 9.95.170 9.95.170 Board to inform itself as to each convict— Records from department of corrections. To assist it in fixing the duration of a convicted person’s term of confinement, and in fixing the condition for release from custody on parole, it shall not only be the duty of the board to thoroughly inform itself as to the facts of such convicted person’s crime but also to inform itself as thoroughly as possible as to such convict as a personality. The department of corrections and the institutions under its control shall make available to the board on request its case investigations, any file or other record, in order to assist the board in developing information for carrying out the purpose of this section. [1999 c 143 § 28; 1981 c 136 § 40; 1979 c 141 § 5; 1967 c 134 § 13; 1935 c 114 § 3; RRS § 10249-3.] Effective date—1981 c 136: See RCW 72.09.900. 9.95.190 Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Washington state patrol identification and criminal history section: RCW 43.43.700 through 43.43.765. 9.95.143 9.95.143 Court-ordered treatment—Required disclosures. When an offender receiving court-ordered mental health or chemical dependency treatment or treatment ordered by the department of corrections presents for treat(2006 Ed.) 9.95.190 Application of RCW 9.95.010 through 9.95.170 to inmates previously committed. The provisions of RCW 9.95.010 through 9.95.170, inclusive, shall apply to all convicted persons serving time in a state correctional facility for crimes committed before July 1, 1984, to the end that at all times the same provisions relating to sentences, imprisonments, and paroles of prisoners shall apply to all inmates thereof. [2001 2nd sp.s. c 12 § 342; 1992 c 7 § 28; 1983 c 3 § 10; 1955 c 133 § 18. Prior: (i) 1939 c 142 § 1, part; [Title 9 RCW—page 209] 9.95.195 Title 9 RCW: Crimes and Punishments 1935 c 114 § 4, part; RRS § 10249-4, part. (ii) 1947 c 92 § 2, part; Rem. Supp. 1947 § 10249-2a, part.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.195 9.95.195 Final discharge of parolee—Restoration of civil rights—Governor’s pardoning power not affected. See RCW 9.96.050. 9.95.200 9.95.200 Probation by court—Investigation by secretary of corrections. After conviction by plea or verdict of guilty of any crime, the court upon application or its own motion, may summarily grant or deny probation, or at a subsequent time fixed may hear and determine, in the presence of the defendant, the matter of probation of the defendant, and the conditions of such probation, if granted. The court may, in its discretion, prior to the hearing on the granting of probation, refer the matter to the secretary of corrections or such officers as the secretary may designate for investigation and report to the court at a specified time, upon the circumstances surrounding the crime and concerning the defendant, his prior record, and his family surroundings and environment. [1981 c 136 § 41; 1979 c 141 § 6; 1967 c 134 § 15; 1957 c 227 § 3. Prior: 1949 c 59 § 1; 1939 c 125 § 1, part; 1935 c 114 § 5; Rem. Supp. 1949 § 10249-5a.] Rules of court: ER 410. Effective date—1981 c 136: See RCW 72.09.900. Severability—1939 c 125: "If any section or provision of this act shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of this act as a whole, or of any section, provision or part thereof not adjudged invalid or unconstitutional." [1939 c 125 § 3 p 356.] Suspending sentences: RCW 9.92.060. 9.95.204 9.95.204 Misdemeanant probation services—County supervision. (1) When a superior court places a defendant convicted of a misdemeanor or gross misdemeanor on probation and orders supervision under RCW 9.92.060 or 9.95.210, the department of corrections has initial responsibility for supervision of that defendant. (2) A county legislative authority may assume responsibility for the supervision of all defendants within its jurisdiction who have been convicted of a misdemeanor or gross misdemeanor and sentenced to probation by a superior court. The assumption of responsibility shall be made by contract with the department of corrections on a biennial basis. (3) If a county assumes supervision responsibility, the county shall supervise all superior court misdemeanant probationers within that county for the duration of the biennium, as set forth in the contract with the department of corrections. (4) A contract between a county legislative authority and the department of corrections for the transfer of supervision responsibility must include, at a minimum, the following provisions: (a) The county’s agreement to supervise all misdemeanant probationers who are sentenced by a superior court within that county and who reside within that county; (b) A reciprocal agreement regarding the supervision of superior court misdemeanant probationers sentenced in one county but who reside in another county; [Title 9 RCW—page 210] (c) The county’s agreement to comply with the minimum standards for classification and supervision of offenders as required under RCW 9.95.206; (d) The amount of funds available from the department of corrections to the county for supervision of superior court misdemeanant probationers, calculated according to a formula established by the department of corrections; (e) A method for the payment of funds by the department of corrections to the county; (f) The county’s agreement that any funds received by the county under the contract will be expended only to cover costs of supervision of superior court misdemeanant probationers; (g) The county’s agreement to account to the department of corrections for the expenditure of all funds received under the contract and to submit to audits for compliance with the supervision standards and financial requirements of this section; (h) Provisions regarding rights and remedies in the event of a possible breach of contract or default by either party; and (i) Provisions allowing for voluntary termination of the contract by either party, with good cause, after sixty days’ written notice. (5) If the contract between the county and the department of corrections is terminated for any reason, the department of corrections shall reassume responsibility for supervision of superior court misdemeanant probationers within that county. In such an event, the department of corrections retains any and all rights and remedies available by law and under the contract. (6) The state of Washington, the department of corrections and its employees, community corrections officers, and volunteers who assist community corrections officers are not liable for any harm caused by the actions of a superior court misdemeanant probationer who is under the supervision of a county. A county, its probation department and employees, probation officers, and volunteers who assist probation officers are not liable for any harm caused by the actions of a superior court misdemeanant probationer who is under the supervision of the department of corrections. This subsection applies regardless of whether the supervising entity is in compliance with the standards of supervision at the time of the misdemeanant probationer’s actions. (7) The state of Washington, the department of corrections and its employees, community corrections officers, any county under contract with the department of corrections pursuant to this section and its employees, probation officers, and volunteers who assist community corrections officers and probation officers in the superior court misdemeanant probation program are not liable for civil damages resulting from any act or omission in the rendering of superior court misdemeanant probation activities unless the act or omission constitutes gross negligence. For purposes of this section, "volunteers" is defined according to RCW 51.12.035. (8) The provisions of RCW 9.94A.501 apply to sentences imposed under this section. (9)(a) If a misdemeanant probationer requests permission to travel or transfer to another state, the assigned probation officer employed or contracted for by the county shall determine whether such request is subject to RCW 9.94A.745, the interstate compact for adult offender supervi(2006 Ed.) Indeterminate Sentences sion. If such request is subject to the compact, the probation officer shall: (i) Notify the department of corrections of the probationer’s request; (ii) Provide the department of corrections with the supporting documentation it requests for processing an application for transfer; (iii) Notify the probationer of the fee due to the department of corrections for processing an application under the compact; (iv) Cease supervision of the probationer while another state supervises the probationer pursuant to the compact; (v) Resume supervision if the probationer returns to this state before the term of probation expires. (b) The probationer shall receive credit for time served while being supervised by another state. [2005 c 400 § 2; 2005 c 362 § 3; 1996 c 298 § 1.] Reviser’s note: This section was amended by 2005 c 362 § 3 and by 2005 c 400 § 2, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Application—Effective date—2005 c 400: See notes following RCW 9.94A.74504. Effective date—2005 c 362: See note following RCW 9.94A.501. 9.95.206 9.95.206 Misdemeanant probation services— Offender classification system—Supervision standards. (1) Probation supervision of misdemeanant offenders sentenced in a superior court must be based upon an offender classification system and supervision standards. (2) Any entity under contract with the department of corrections pursuant to RCW 9.95.204 shall establish and maintain a classification system that: (a) Provides for a standardized assessment of offender risk; (b) Differentiates between higher and lower risk offenders based on criminal history and current offense; (c) Assigns cases to a level of supervision based on assessed risk; (d) Provides, at a minimum, three levels of supervision; (e) Provides for periodic review of an offender’s classification level during the term of supervision; and (f) Structures the discretion and decision making of supervising officers. (3) Any entity under contract with the department of corrections pursuant to RCW 9.95.204 may establish and maintain supervision standards that: (a) Identify the frequency and nature of offender contact within each of at least three classification levels; (b) Provide for a minimum of one face-to-face contact each month with offenders classified at the highest level of risk; (c) Provide for a minimum of one personal contact per quarter for lower-risk offenders; (d) Provide for specific reporting requirements for offenders within each level of the classification system; (e) Assign higher-risk offenders to staff trained to deal with higher-risk offenders; (f) Verify compliance with sentence conditions imposed by the court; and (2006 Ed.) 9.95.210 (g) Report to the court violations of sentence conditions as appropriate. (4) Under no circumstances may an entity under contract with the department of corrections pursuant to RCW 9.95.204 establish or maintain supervision that is less stringent than that offered by the department. (5) The minimum supervision standards established and maintained by the department of corrections shall provide for no less than one contact per quarter for misdemeanant probationers under its jurisdiction. The contact shall be a personal interaction accomplished either face-to-face or by telephone, unless the department finds that the individual circumstances of the offender do not require personal interaction to meet the objectives of the supervision. The circumstances under which the department may find that an offender does not require personal interaction are limited to the following: (a) The offender has no special conditions or crime-related prohibitions imposed by the court other than legal financial obligations; and (b) the offender poses minimal risk to public safety. (6) The classification system and supervision standards must be established and met within the resources available as provided for by the legislature and the cost of supervision assessments collected, and may be enhanced by funds otherwise generated by the supervising entity. [1996 c 298 § 2.] 9.95.210 9.95.210 Conditions of probation. (1) In granting probation, the superior court may suspend the imposition or the execution of the sentence and may direct that the suspension may continue upon such conditions and for such time as it shall designate, not exceeding the maximum term of sentence or two years, whichever is longer. (2) In the order granting probation and as a condition thereof, the superior court may in its discretion imprison the defendant in the county jail for a period not exceeding one year and may fine the defendant any sum not exceeding the statutory limit for the offense committed, and court costs. As a condition of probation, the superior court shall require the payment of the penalty assessment required by RCW 7.68.035. The superior court may also require the defendant to make such monetary payments, on such terms as it deems appropriate under the circumstances, as are necessary: (a) To comply with any order of the court for the payment of family support; (b) to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question or when the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement; (c) to pay such fine as may be imposed and court costs, including reimbursement of the state for costs of extradition if return to this state by extradition was required; (d) following consideration of the financial condition of the person subject to possible electronic monitoring, to pay for the costs of electronic monitoring if that monitoring was required by the court as a condition of release from custody or as a condition of probation; (e) to contribute to a county or interlocal drug fund; and (f) to make restitution to a public agency for the costs of an emergency response under RCW 38.52.430, and [Title 9 RCW—page 211] 9.95.212 Title 9 RCW: Crimes and Punishments may require bonds for the faithful observance of any and all conditions imposed in the probation. (3) The superior court shall order restitution in all cases where the victim is entitled to benefits under the crime victims’ compensation act, chapter 7.68 RCW. If the superior court does not order restitution and the victim of the crime has been determined to be entitled to benefits under the crime victims’ compensation act, the department of labor and industries, as administrator of the crime victims’ compensation program, may petition the superior court within one year of imposition of the sentence for entry of a restitution order. Upon receipt of a petition from the department of labor and industries, the superior court shall hold a restitution hearing and shall enter a restitution order. (4) In granting probation, the superior court may order the probationer to report to the secretary of corrections or such officer as the secretary may designate and as a condition of the probation to follow the instructions of the secretary. If the county legislative authority has elected to assume responsibility for the supervision of superior court misdemeanant probationers within its jurisdiction, the superior court misdemeanant probationer shall report to a probation officer employed or contracted for by the county. In cases where a superior court misdemeanant probationer is sentenced in one county, but resides within another county, there must be provisions for the probationer to report to the agency having supervision responsibility for the probationer’s county of residence. (5) If the probationer has been ordered to make restitution and the superior court has ordered supervision, the officer supervising the probationer shall make a reasonable effort to ascertain whether restitution has been made. If the superior court has ordered supervision and restitution has not been made as ordered, the officer shall inform the prosecutor of that violation of the terms of probation not less than three months prior to the termination of the probation period. The secretary of corrections will promulgate rules and regulations for the conduct of the person during the term of probation. For defendants found guilty in district court, like functions as the secretary performs in regard to probation may be performed by probation officers employed for that purpose by the county legislative authority of the county wherein the court is located. (6) The provisions of RCW 9.94A.501 apply to sentences imposed under this section. [2005 c 362 § 4; 1996 c 298 § 3; 1995 1st sp.s. c 19 § 29; 1995 c 33 § 6; 1993 c 251 § 3; 1992 c 86 § 1; 1987 c 202 § 146; 1984 c 46 § 1; 1983 c 156 § 4; 1982 1st ex.s. c 47 § 10; 1982 1st ex.s. c 8 § 5; 1981 c 136 § 42; 1980 c 19 § 1. Prior: 1979 c 141 § 7; 1979 c 29 § 2; 1969 c 29 § 1; 1967 c 200 § 8; 1967 c 134 § 16; 1957 c 227 § 4; prior: 1949 c 77 § 1; 1939 c 125 § 1, part; Rem. Supp. 1949 § 10249-5b.] Effective date—2005 c 362: See note following RCW 9.94A.501. Findings—Purpose—Short title—Severability—Effective date— 1995 1st sp.s. c 19: See notes following RCW 72.09.450. Severability—1939 c 125: See note following RCW 9.95.200. Restitution alternative to fine: RCW 9A.20.030. condition to suspending sentence: RCW 9.92.060. disposition when victim not found or dead: RCW 7.68.290. Termination of suspended sentence, restoration of civil rights: RCW 9.92.066. Violations of probation conditions, rearrest, detention: RCW 72.04A.090. 9.95.212 9.95.212 Standards for supervision of misdemeanant probationers. The Washington state law and justice advisory council, appointed under RCW 72.09.300(7), shall by October 1, 1995, develop proposed standards for the supervision of misdemeanant probationers sentenced by superior courts under RCW 9.92.060 or 9.95.210. In developing the standards, the council shall consider realistic current funding levels or reasonable expansions thereof, the recommendations of the department of corrections, county probation departments, superior and district court judges, and the misdemeanant corrections association. The supervision standards shall establish classifications of misdemeanant probationers based upon the seriousness of the offense, the perceived risks to the community, and other relevant factors. The standards may provide discretion to officials supervising misdemeanant probationers to adjust the supervision standards, for good cause, based upon individual circumstances surrounding the probationer. The supervision standards shall include provisions for reciprocal supervision of offenders who are sentenced in counties other than their counties of residence. [1998 c 245 § 2; 1995 1st sp.s. c 19 § 31.] Findings—Purpose—Short title—Severability—Effective date— 1995 1st sp.s. c 19: See notes following RCW 72.09.450. 9.95.214 9.95.214 Assessment for supervision of misdemeanant probationers. Whenever a defendant convicted of a misdemeanor or gross misdemeanor is placed on probation under RCW 9.92.060 or 9.95.210, and the defendant is supervised by the department of corrections or a county probation department, the department or county probation department may assess and collect from the defendant for the duration of the term of supervision a monthly assessment not to exceed one hundred dollars per month. This assessment shall be paid to the agency supervising the defendant and shall be applied, along with funds appropriated by the legislature, toward the payment or part payment of the cost of supervising the defendant. The department or county probation department shall suspend such assessment while the defendant is being supervised by another state pursuant to RCW 9.94A.745, the interstate compact for adult offender supervision. [2005 c 400 § 3; 1996 c 298 § 4; 1995 1st sp.s. c 19 § 32.] Application—Effective date—2005 c 400: See notes following RCW 9.94A.74504. Findings—Purpose—Short title—Severability—Effective date— 1995 1st sp.s. c 19: See notes following RCW 72.09.450. 9.95.215 Finding—Intent—1993 c 251: See note following RCW 38.52.430. Intent—1987 c 202: See note following RCW 2.04.190. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. Intent—Reports—1982 1st ex.s. c 8: See note following RCW 7.68.035. Effective date—1981 c 136: See RCW 72.09.900. [Title 9 RCW—page 212] 9.95.215 Counties may provide probation and parole services. See RCW 36.01.070. 9.95.220 9.95.220 Violation of probation—Rearrest—Imprisonment. Whenever the state parole officer or other officer under whose supervision the probationer has been placed (2006 Ed.) Indeterminate Sentences shall have reason to believe such probationer is violating the terms of his probation, or engaging in criminal practices, or is abandoned to improper associates, or living a vicious life, he shall cause the probationer to be brought before the court wherein the probation was granted. For this purpose any peace officer or state parole officer may rearrest any such person without warrant or other process. The court may thereupon in its discretion without notice revoke and terminate such probation. In the event the judgment has been pronounced by the court and the execution thereof suspended, the court may revoke such suspension, whereupon the judgment shall be in full force and effect, and the defendant shall be delivered to the sheriff to be transported to the penitentiary or reformatory as the case may be. If the judgment has not been pronounced, the court shall pronounce judgment after such revocation of probation and the defendant shall be delivered to the sheriff to be transported to the penitentiary or reformatory, in accordance with the sentence imposed. [1957 c 227 § 5. Prior: 1939 c 125 § 1, part; RRS § 10249-5c.] Severability—1939 c 125: See note following RCW 9.95.200. 9.95.230 9.95.230 Court revocation or termination of probation. The court shall have authority at any time prior to the entry of an order terminating probation to (1) revoke, modify, or change its order of suspension of imposition or execution of sentence; (2) it may at any time, when the ends of justice will be subserved thereby, and when the reformation of the probationer shall warrant it, terminate the period of probation, and discharge the person so held. [1982 1st ex.s. c 47 § 11; 1957 c 227 § 6. Prior: 1939 c 125 § 1, part; RRS § 102495d.] Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. Severability—1939 c 125: See note following RCW 9.95.200. 9.95.240 9.95.240 Dismissal of information or indictment after probation completed—Vacation of conviction. (1) Every defendant who has fulfilled the conditions of his or her probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, may at any time prior to the expiration of the maximum period of punishment for the offense for which he or she has been convicted be permitted in the discretion of the court to withdraw his or her plea of guilty and enter a plea of not guilty, or if he or she has been convicted after a plea of not guilty, the court may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he or she has been convicted. The probationer shall be informed of this right in his or her probation papers: PROVIDED, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed. (2)(a) After the period of probation has expired, the defendant may apply to the sentencing court for a vacation of the defendant’s record of conviction under RCW 9.94A.640. The court may, in its discretion, clear the record of conviction if it finds the defendant has met the equivalent of the tests in (2006 Ed.) 9.95.260 RCW 9.94A.640(2) as those tests would be applied to a person convicted of a crime committed before July 1, 1984. (b) The clerk of the court in which the vacation order is entered shall immediately transmit the order vacating the conviction to the Washington state patrol identification section and to the local police agency, if any, which holds criminal history information for the person who is the subject of the conviction. The Washington state patrol and any such local police agency shall immediately update their records to reflect the vacation of the conviction, and shall transmit the order vacating the conviction to the federal bureau of investigation. A conviction that has been vacated under this section may not be disseminated or disclosed by the state patrol or local law enforcement agency to any person, except other criminal justice enforcement agencies. [2003 c 66 § 1; 1957 c 227 § 7. Prior: 1939 c 125 § 1, part; RRS § 10249-5e.] Severability—1939 c 125: See note following RCW 9.95.200. Gambling commission—Denial, suspension, or revocation of license, permit—Other provisions not applicable: RCW 9.46.075. Juvenile courts, probation officers: RCW 13.04.040, 13.04.050. State lottery commission—Denial, suspension, and revocation of licenses— Other provisions not applicable: RCW 67.70.090. 9.95.250 9.95.250 Community corrections officers. In order to carry out the provisions of this chapter 9.95 RCW the parole officers working under the supervision of the secretary of corrections shall be known as community corrections officers. [2001 2nd sp.s. c 12 § 343; 1981 c 136 § 43; 1979 c 141 § 8; 1967 c 134 § 17; 1957 c 227 § 8. Prior: 1939 c 125 § 1, part; RRS § 10249-5f.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—1981 c 136: See RCW 72.09.900. Severability—1939 c 125: See note following RCW 9.95.200. Juvenile courts, probation officers: RCW 13.04.040, 13.04.050. 9.95.260 Indeterminate sentence review board— Supervision of conditionally pardoned persons—Hearing. (1) The indeterminate sentence review board shall, when requested by the governor, pass on the representations made in support of applications for pardons for convicted persons and make recommendations thereon to the governor. (2) It will be the duty of the secretary of corrections to exercise supervision over such convicted persons as have been conditionally pardoned by the governor, to the end that such persons shall faithfully comply with the conditions of such pardons. The indeterminate sentence review board shall also pass on any representations made in support of applications for restoration of civil rights of convicted persons, and make recommendations to the governor. The department of corrections shall prepare materials and make investigations requested by the indeterminate sentence review board in order to assist the board in passing on the representations made in support of applications for pardon or for the restoration of civil rights. (3) The board shall make no recommendations to the governor in support of an application for pardon until a public hear ing has been held u nd er th is section or R CW 9.94A.885(3) upon the application. The prosecuting attorney 9.95.260 [Title 9 RCW—page 213] 9.95.265 Title 9 RCW: Crimes and Punishments of the county where the conviction was obtained shall be notified at least thirty days prior to the scheduled hearing that an application for pardon has been filed and the date and place at which the hearing on the application for pardon will be held. The board may waive the thirty-day notice requirement in cases where it determines that waiver is necessary to permit timely action on the petition. A copy of the application for pardon shall be sent to the prosecuting attorney. The prosecuting attorney shall make reasonable efforts to notify victims, survivors of victims, witnesses, and the law enforcement agency or agencies that conducted the investigation of the date and place of the hearing. Information regarding victims, survivors of victims, or witnesses receiving this notice are confidential and shall not be available to the offender. The board shall consider written, oral, audio, or videotaped statements regarding the application for pardon received, personally or by representation, from the individuals who receive notice pursuant to this section. This subsection is intended solely for the guidance of the board. Nothing in this section is intended or may be relied upon to create a right or benefit, substantive or procedural, enforceable at law by any person. [1999 c 323 § 4; 1999 c 143 § 29; 1981 c 136 § 44; 1979 c 141 § 9; 1967 c 134 § 14; 1935 c 114 § 7; RRS § 10249-7.] Reviser’s note: This section was amended by 1999 c 143 § 29 and by 1999 c 323 § 4, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Intent—1999 c 323: See note following RCW 9.94A.885. Effective date—1981 c 136: See RCW 72.09.900. 9.95.265 9.95.265 Report to governor and legislature. The board shall transmit to the governor and to the legislature, as often as the governor may require it, a report of its work, in which shall be given such information as may be relevant. [1999 c 143 § 30; 1977 c 75 § 5; 1955 c 340 § 11. Prior: 1945 c 155 § 1, part; 1935 c 114 § 8, part; Rem. Supp. 1945 § 10249-8, part. Formerly RCW 43.67.040.] 9.95.267 9.95.267 Transfer of certain powers and duties of board to secretary of corrections. See RCW 72.04A.050. 9.95.270 9.95.270 Compacts for out-of-state supervision of parolees or probationers—Uniform act. The governor of this state is hereby authorized to execute a compact on behalf of the state of Washington with any of the United States legally joining therein in the form substantially as follows: A compact entered into by and among the contracting states, signatories hereto, with the consent of the congress of the United States of America, granted by an act entitled "An Act granting the consent of congress to any two or more states to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and for other purposes." The contracting states solemnly agree: (1) That it shall be competent for the duly constituted judicial and administrative authorities of a state, party to this compact, (herein called "sending state"), to permit any person convicted of an offense within such state and placed on probation or released on parole to reside in any other state party [Title 9 RCW—page 214] to this compact, (herein called "receiving state"), while on probation or parole, if (a) Such person is in fact a resident of or has his family residing within the receiving state and can obtain employment there; (b) Though not a resident of the receiving state and not having his family residing there, the receiving state consents to such person being sent there. Before granting such permission, opportunity shall be granted to the receiving state to investigate the home and prospective employment of such person. A resident of the receiving state, within the meaning of this section, is one who has been an actual inhabitant of such state continuously for more than one year prior to his coming to the sending state and has not resided within the sending state more than six continuous months immediately preceding the commission of the offense for which he has been convicted. (2) That each receiving state will assume the duties of visitation of and supervision over probationers or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own probationers and parolees. (3) That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state: PROVIDED, HOWEVER, That if at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense. (4) That the duly accredited officers of the sending state will be permitted to transport prisoners being retaken through any and all states parties to this compact, without interference. (5) That the governor of each state may designate an officer who, acting jointly with like officers of other contracting states, if and when appointed, shall promulgate such rules and regulations as may be deemed necessary to more effectively carry out the terms of this compact. (6) That this compact shall become operative immediately upon its execution by any state as between it and any other state or states so executing. When executed it shall have the full force and effect of law within such state, the form of execution to be in accordance with the laws of the executing state. (7) That this compact shall continue in force and remain binding upon each executing state until renounced by it. The duties and obligations hereunder of a renouncing state shall continue as to parolees or probationers residing therein at the time of withdrawal until retaken or finally discharged by the sending state. Renunciation of this compact shall be by the (2006 Ed.) Indeterminate Sentences same authority which executed it, by sending six months’ notice in writing of its intention to withdraw from the compact to the other states, party hereto. [1937 c 92 § 1; RRS § 10249-11.] Severability—1937 c 92: "If any section, sentence, subdivision or clause of this act is for any reason held invalid or to be unconstitutional, such decision shall not affect the validity of the remaining portions of this act." [1937 c 92 § 2 p 382.] This applies to RCW 9.95.270. Short title—1937 c 92: "This act may be cited as the Uniform Act for Out-of-State Supervision." [1937 c 92 § 3 p 382.] This applies to RCW 9.95.270. Interstate compact on juveniles: Chapter 13.24 RCW. 9.95.280 9.95.280 Return of parole violators from another state—Deputizing out-of-state officers. The board may deputize any person (regularly employed by another state) to act as an officer and agent of this state in effecting the return of any person convicted of a crime committed before July 1, 1984, who has violated the terms and conditions of parole or probation as granted by this state. In any matter relating to the return of such a person, any agent so deputized shall have all the powers of a police officer of this state. [2001 2nd sp.s. c 12 § 344; 1999 c 143 § 31; 1955 c 183 § 1.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.290 9.95.290 Return of parole violators from another state—Deputization procedure. Any deputization pursuant to this statute with regard to an offender convicted of a crime committed before July 1, 1984, shall be in writing and any person authorized to act as an agent of this state pursuant hereto shall carry formal evidence of his or her deputization and shall produce the same upon demand. [2001 2nd sp.s. c 12 § 345; 1955 c 183 § 2.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.300 9.95.300 Return of parole violators from another state—Contracts to share costs. The board may enter into contracts with similar officials of any other state or states for the purpose of sharing an equitable portion of the cost of effecting the return of any person who has violated the terms and conditions of parole, probation, or community custody as granted by this state. [2001 2nd sp.s. c 12 § 346; 1999 c 143 § 32; 1955 c 183 § 3.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.310 9.95.310 Assistance for parolees, work release, and discharged prisoners—Declaration of purpose. The purpose of RCW 9.95.310 through 9.95.370 is to provide necessary assistance, other than assistance which is authorized to be provided under the vocational rehabilitation laws, Title 28A RCW, under the public assistance laws, Title 74 RCW or the employment security department or other state agency, for parolees, inmates assigned to work/training release facili(2006 Ed.) 9.95.340 ties, discharged prisoners and persons convicted of a felony committed before July 1, 1984, and granted probation in need and whose capacity to earn a living under these circumstances is impaired; and to help such persons attain self-care and/or self-support for rehabilitation and restoration to independence as useful citizens as rapidly as possible thereby reducing the number of returnees to the institutions of this state to the benefit of such person and society as a whole. [2001 2nd sp.s. c 12 § 347; 1986 c 125 § 1; 1971 ex.s. c 31 § 1; 1961 c 217 § 2.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.320 9.95.320 Assistance for parolees, work release, and discharged prisoners—Subsistence payments—Terms and conditions. The secretary of corrections or his or her designee may provide to any parolee, inmate assigned to a work/training release facility, discharged prisoner and persons convicted of a felony committed before July 1, 1984, and granted probation in need and without necessary means, from any funds legally available therefor, such reasonable sums as he or she deems necessary for the subsistence of such person and his or her family until such person has become gainfully employed. Such aid may be made under such terms and conditions, and through local parole or probation officers if necessary, as the secretary of corrections or his or her designee may require and shall be supplementary to any moneys which may be provided under public assistance or from any other source. [2001 2nd sp.s. c 12 § 348; 1986 c 125 § 2; 1981 c 136 § 45; 1971 ex.s. c 31 § 2; 1961 c 217 § 3.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—1981 c 136: See RCW 72.09.900. 9.95.330 9.95.330 Assistance for parolees, work release, and discharged prisoners—Department may accept gifts and make expenditures. The department of corrections may accept any devise, bequest, gift, grant, or contribution made for the purposes of RCW 9.95.310 through 9.95.370 and the secretary of corrections or his designee may make expenditures, or approve expenditures by local parole or probation officers, therefrom for the purposes of RCW 9.95.310 through 9.95.370 in accordance with the rules of the department of corrections. [1981 c 136 § 46; 1971 ex.s. c 31 § 3; 1961 c 217 § 4.] Effective date—1981 c 136: See RCW 72.09.900. 9.95.340 9.95.340 Assistance for parolees, work release, and discharged prisoners—Use and repayment of funds belonging to absconders. Any funds in the hands of the department of corrections, or which may come into its hands, which belong to discharged prisoners, inmates assigned to work/training release facilities, parolees or persons convicted of a felony and granted probation who absconded, or whose whereabouts are unknown, shall be deposited in the community services revolving fund. Said funds shall be used to defray the expenses of clothing and other necessities and for [Title 9 RCW—page 215] 9.95.350 Title 9 RCW: Crimes and Punishments made for the purposes of RCW 9.95.310 through 9.95.370. All expenditures from this revolving fund shall be made by check or voucher signed by the secretary of corrections or his or her designee. The community services revolving fund shall be deposited by the department of corrections in such banks or financial institutions as it may select which shall give to the department a surety bond executed by a surety company authorized to do business in this state, or collateral eligible as security for deposit of state funds in at least the full amount of deposit. This section applies to persons convicted of a felony committed before July 1, 1984. [2001 2nd sp.s. c 12 § 351; 1986 c 125 § 5; 1981 c 136 § 49; 1971 ex.s. c 31 § 6; 1961 c 217 § 7.] transporting discharged prisoners, inmates assigned to work/training release facilities, parolees and persons convicted of a felony and granted probation who are without means to secure the same. All payments disbursed from these funds shall be repaid, whenever possible, by discharged prisoners, inmates assigned to work/training release facilities, parolees and persons convicted of a felony and granted probation for whose benefit they are made. Whenever any money belonging to such persons is so paid into the revolving fund, it shall be repaid to them in accordance with law if a claim therefor is filed with the department of corrections within five years of deposit into said fund and upon a clear showing of a legal right of such claimant to such money. This section applies to persons convicted of a felony committed before July 1, 1984. [2001 2nd sp.s. c 12 § 349; 1986 c 125 § 3; 1981 c 136 § 47; 1971 ex.s. c 31 § 4; 1961 c 217 § 5.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—1981 c 136: See RCW 72.09.900. 9.95.350 9.95.350 Assistance for parolees, work release, and discharged prisoners—Use and accounting of funds or property. All money or other property paid or delivered to a community corrections officer or employee of the department of corrections by or for the benefit of any discharged prisoner, inmate assigned to a work/training release facility, parolee or persons convicted of a felony and granted probation shall be immediately transmitted to the department of corrections and it shall enter the same upon its books to his or her credit. Such money or other property shall be used only under the direction of the department of corrections. If such person absconds, the money shall be deposited in the revolving fund created by RCW 9.95.360, and any other property, if not called for within one year, shall be sold by the department of corrections and the proceeds credited to the revolving fund. If any person, files a claim within five years after the deposit or crediting of such funds, and satisfies the department of corrections that he or she is entitled thereto, the department may make a finding to that effect and may make payment to the claimant in the amount to which he or she is entitled. This section applies to persons convicted of a felony committed before July 1, 1984. [2001 2nd sp.s. c 12 § 350; 1986 c 125 § 4; 1981 c 136 § 48; 1971 ex.s. c 31 § 5; 1961 c 217 § 6.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—1981 c 136: See RCW 72.09.900. 9.95.360 9.95.360 Assistance for parolees, work release, and discharged prisoners—Community services revolving fund. The department of corrections shall create, maintain, and administer outside the state treasury a permanent revolving fund to be known as the "community services revolving fund" into which shall be deposited all moneys received by it under RCW 9.95.310 through 9.95.370 and any appropriation [Title 9 RCW—page 216] Effective date—1981 c 136: See RCW 72.09.900. 9.95.370 9.95.370 Assistance for parolees and discharged prisoners—Repayment agreement. The secretary of corrections or his or her designee shall enter into a written agreement with every person receiving funds under RCW 9.95.310 through 9.95.370 that such person will repay such funds under the terms and conditions in said agreement. No person shall receive funds until such an agreement is validly made. This section applies to persons convicted of a felony committed before July 1, 1984. [2001 2nd sp.s. c 12 § 352; 1981 c 136 § 50; 1971 ex.s. c 31 § 7; 1961 c 217 § 8.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—1981 c 136: See RCW 72.09.900. 9.95.420 9.95.420 Sex offenders—End of sentence review— Victim input. (1)(a) Except as provided in (c) of this subsection, before the expiration of the minimum term, as part of the end of sentence review process under RCW 72.09.340, 72.09.345, and where appropriate, 72.09.370, the department shall conduct, and the offender shall participate in, an examination of the offender, incorporating methodologies that are recognized by experts in the prediction of sexual dangerousness, and including a prediction of the probability that the offender will engage in sex offenses if released. (b) The board may contract for an additional, independent examination, subject to the standards in this section. (c) If at the time the sentence is imposed by the superior court the offender’s minimum term has expired or will expire within one hundred twenty days of the sentencing hearing, the department shall conduct, within ninety days of the offender’s arrival at a department of corrections facility, and the offender shall participate in, an examination of the offender, incorporating methodologies that are recognized by experts in the prediction of sexual dangerousness, and including a prediction of the probability that the offender will engage in sex offenses if released. (2) The board shall impose the conditions and instructions provided for in RCW 9.94A.720. The board shall consider the department’s recommendations and may impose (2006 Ed.) Indeterminate Sentences conditions in addition to those recommended by the department. The board may impose or modify conditions of community custody following notice to the offender. (3)(a) Except as provided in (b) of this subsection, no later than ninety days before expiration of the minimum term, but after the board receives the results from the end of sentence review process and the recommendations for additional or modified conditions of community custody from the department, the board shall conduct a hearing to determine whether it is more likely than not that the offender will engage in sex offenses if released on conditions to be set by the board. The board may consider an offender’s failure to participate in an evaluation under subsection (1) of this section in determining whether to release the offender. The board shall order the offender released, under such affirmative and other conditions as the board determines appropriate, unless the board determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the offender will commit sex offenses if released. If the board does not order the offender released, the board shall establish a new minimum term, not to exceed an additional two years. (b) If at the time the offender’s minimum term has expired or will expire within one hundred twenty days of the offender’s arrival at a department of correction’s facility, then no later than one hundred twenty days after the offender’s arrival at a department of corrections facility, but after the board receives the results from the end of sentence review process and the recommendations for additional or modified conditions of community custody from the department, the board shall conduct a hearing to determine whether it is more likely than not that the offender will engage in sex offenses if released on conditions to be set by the board. The board may consider an offender’s failure to participate in an evaluation under subsection (1) of this section in determining whether to release the offender. The board shall order the offender released, under such affirmative and other conditions as the board determines appropriate, unless the board determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the offender will commit sex offenses if released. If the board does not order the offender released, the board shall establish a new minimum term, not to exceed an additional two years. (4) In a hearing conducted under subsection (3) of this section, the board shall provide opportunities for the victims of any crimes for which the offender has been convicted to present oral, video, written, or in-person testimony to the board. The procedures for victim input shall be developed by rule. To facilitate victim involvement, county prosecutor’s offices shall ensure that any victim impact statements and known contact information for victims of record are forwarded as part of the judgment and sentence. [2006 c 313 § 2; 2002 c 174 § 1; 2001 2nd sp.s. c 12 § 306.] Effective date—2002 c 174: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 27, 2002]." [2002 c 174 § 3.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. (2006 Ed.) 9.95.435 9.95.425 9.95.425 Sex offenders—Postrelease violations. (1) Whenever the board or a community corrections officer of this state has reason to believe an offender released under RCW 9.95.420 has violated a condition of community custody or the laws of this state, any community corrections officer may arrest or cause the arrest and detention of the offender pending a determination by the board whether sanctions should be imposed or the offender’s community custody should be revoked. The community corrections officer shall report all facts and circumstances surrounding the alleged violation to the board, with recommendations. (2) If the board or the department causes the arrest or detention of an offender for a violation that does not amount to a new crime and the offender is arrested or detained by local law enforcement or in a local jail, the board or department, whichever caused the arrest or detention, shall be financially responsible for local costs. Jail bed costs shall be allocated at the rate established under RCW 9.94A.740(3). [2001 2nd sp.s. c 12 § 307.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.430 9.95.430 Sex offenders—Postrelease arrest. Any offender released under RCW 9.95.420 who is arrested and detained in physical custody by the authority of a community corrections officer, or upon the written order of the board, shall not be released from custody on bail or personal recognizance, except upon approval of the board and the issuance by the board of an order reinstating the offender’s release on the same or modified conditions. All chiefs of police, marshals of cities and towns, sheriffs of counties, and all police, prison, and peace officers and constables shall execute any such order in the same manner as any ordinary criminal process. [2001 2nd sp.s. c 12 § 308.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.435 9.95.435 Sex offenders—Postrelease transfer to more restrictive confinement. (1) If an offender released by the board under RCW 9.95.420 violates any condition or requirement of community custody, the board may transfer the offender to a more restrictive confinement status to serve up to the remaining portion of the sentence, less credit for any period actually spent in community custody or in detention awaiting disposition of an alleged violation and subject to the limitations of subsection (2) of this section. (2) Following the hearing specified in subsection (3) of this section, the board may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other sanctions available in the community, or may suspend or revoke the release to community custody whenever an offender released by the board under RCW 9.95.420 violates any condition or requirement of community custody. [Title 9 RCW—page 217] 9.95.440 Title 9 RCW: Crimes and Punishments (3) If an offender released by the board under RCW 9.95.420 is accused of violating any condition or requirement of community custody, he or she is entitled to a hearing before the board or a designee of the board prior to the imposition of sanctions. The hearing shall be considered as offender disciplinary proceedings and shall not be subject to chapter 34.05 RCW. The board shall develop hearing procedures and a structure of graduated sanctions consistent with the hearing procedures and graduated sanctions developed pursuant to RCW 9.94A.737. The board may suspend the offender’s release to community custody and confine the offender in a correctional institution owned, operated by, or operated under contract with the state prior to the hearing unless the offender has been arrested and confined for a new criminal offense. (4) The hearing procedures required under subsection (3) of this section shall be developed by rule and include the following: (a) Hearings shall be conducted by members or designees of the board unless the board enters into an agreement with the department to use the hearing officers established under RCW 9.94A.737; (b) The board shall provide the offender with written notice of the violation, the evidence relied upon, and the reasons the particular sanction was imposed. The notice shall include a statement of the rights specified in this subsection, and the offender’s right to file a personal restraint petition under court rules after the final decision of the board; (c) The hearing shall be held unless waived by the offender, and shall be electronically recorded. For offenders not in total confinement, the hearing shall be held within thirty days of service of notice of the violation, but not less than twenty-four hours after notice of the violation. For offenders in total confinement, the hearing shall be held within thirty days of service of notice of the violation, but not less than twenty-four hours after notice of the violation. The board or its designee shall make a determination whether probable cause exists to believe the violation or violations occurred. The determination shall be made within forty-eight hours of receipt of the allegation; (d) The offender shall have the right to: (i) Be present at the hearing; (ii) have the assistance of a person qualified to assist the offender in the hearing, appointed by the hearing examiner if the offender has a language or communications barrier; (iii) testify or remain silent; (iv) call witnesses and present documentary evidence; (v) question witnesses who appear and testify; and (vi) be represented by counsel if revocation of the release to community custody upon a finding of violation is a probable sanction for the violation. The board may not revoke the release to community custody of any offender who was not represented by counsel at the hearing, unless the offender has waived the right to counsel; and (e) The sanction shall take effect if affirmed by the hearing examiner. (5) Within seven days after the hearing examiner’s decision, the offender may appeal the decision to a panel of three reviewing examiners designated by the chair of the board or by the chair’s designee. The sanction shall be reversed or modified if a majority of the panel finds that the sanction was not reasonably related to any of the following: (a) The crime [Title 9 RCW—page 218] of conviction; (b) the violation committed; (c) the offender’s risk of reoffending; or (d) the safety of the community. (6) For purposes of this section, no finding of a violation of conditions may be based on unconfirmed or unconfirmable allegations. [2003 c 218 § 1; 2002 c 175 § 17; 2001 2nd sp.s. c 12 § 309.] Effective date—2002 c 175: See note following RCW 7.80.130. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.440 9.95.440 Sex offenders—Reinstatement of release. In the event the board suspends the release status of an offender released under RCW 9.95.420 by reason of an alleged violation of a condition of release, or pending disposition of a new criminal charge, the board may nullify the suspension order and reinstate release under previous conditions or any new conditions the board determines advisable under RCW 9.94A.713(5). Before the board may nullify a suspension order and reinstate release, it shall determine that the best interests of society and the offender shall be served by such reinstatement rather than return to confinement. [2003 c 218 § 6; 2001 2nd sp.s. c 12 § 310.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9.95.900 9.95.900 Application of certain laws to felonies committed before, on, or after certain dates. (1) Except as provided in subsection (2) of this section, the following sections of law do not apply to any felony offense committed on or after July 1, 1984: RCW 9.95.010, 9.95.011, 9.95.013, 9.95.015, 9.95.017, 9.95.040, 9.95.045, 9.95.047, 9.95.052, 9.95.080, 9.95.100, 9.95.115, 9.95.116, 9.95.120, 9.95.124, 9.95.125, 9.95.130, 9.95.190, 9.95.200, 9.95.204, 9.95.206, 9.95.210, 9.95.212, 9.95.214, 9.95.220, 9.95.230, 9.95.240, 9.95.250, 9.95.260, 9.95.265, 9.95.280, 9.95.290, 9.95.310, 9.95.320, 9.95.330, 9.95.340, 9.95.350, 9.95.360, 9.95.370, 72.04A.070, and 72.04A.080. (2) The following sections apply to any felony offense committed before July 1, 1984, and to any offense sentenced under RCW 9.94A.712 and committed on or after July 1, 2001: RCW 9.95.003, 9.95.005, 9.95.007, 9.95.020, 9.95.030, 9.95.031, 9.95.032, 9.95.055, 9.95.060, 9.95.062, 9.95.063, 9.95.064, 9.95.070, 9.95.090, 9.95.110, 9.95.121, 9.95.122, 9.95.123, 9.95.126, 9.95.140, 9.95.150, 9.95.160, 9.95.170, 9.95.300, and 9.96.050. [2001 2nd sp.s. c 12 § 353; 1981 c 137 § 32.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Severability—1981 c 137: See RCW 9.94A.910. Chapter 9.96 Chapter 9.96 RCW RESTORATION OF CIVIL RIGHTS Sections 9.96.010 Restoration of civil rights. (2006 Ed.) Restoration of Civil Rights 9.96.020 9.96.030 9.96.040 9.96.050 9.96.060 Form of certificate. Certified copy—Recording and indexing. Copy of instrument restoring civil rights as evidence. Final discharge of parolee—Restoration of civil rights—Governor’s pardoning power not affected. Misdemeanor offenses—Vacating records. Governor pardoning power: State Constitution Art. 3 § 9. records to be kept: RCW 43.06.020. remission of fines and forfeitures: State Constitution Art. 3 § 11. Report of indeterminate sentence review board: RCW 9.95.260. Restoration of employment rights: Chapter 9.96A RCW. Termination of suspended sentence, restoration of civil rights: RCW 9.92.066. Voting rights, loss of: State Constitution Art. 6 § 3, RCW 29A.08.520. 9.96.010 9.96.010 Restoration of civil rights. Whenever the governor shall grant a pardon to a person convicted of an infamous crime, or whenever the maximum term of imprisonment for which any such person was committed is about to expire or has expired, and such person has not otherwise had his civil rights restored, the governor shall have the power, in his discretion, to restore to such person his civil rights in the manner as in this chapter provided. [1961 c 187 § 2; 1931 c 19 § 1; 1929 c 26 § 2; RRS § 10250.] 9.96.020 9.96.020 Form of certificate. Whenever the governor shall determine to restore his civil rights to any person convicted of an infamous crime in any superior court of this state, he shall execute and file in the office of the secretary of state an instrument in writing in substantially the following form: "To the People of the State of Washington Greeting: I, the undersigned Governor of the State of Washington, by virtue of the power vested in my office by the constitution and laws of the State of Washington, do by these presents restore to . . . . . . . . . his civil rights forfeited by him (or her) by reason of his (or her) conviction of the crime of . . . . . . . . . (naming it) in the Superior Court for the County of . . . . . . . . ., on to-wit: The . . . . day of . . . . . ., 19 . . . Dated the . . . . day of . . . . . ., 19 . . . (Signed) . . . . . . . . . . . . . . . . . . . . . . . Governor of Washington." [1931 c 19 § 2; 1929 c 26 § 3; RRS § 10251.] 9.96.030 9.96.030 Certified copy—Recording and indexing. Upon the filing of an instrument restoring civil rights in his office, it shall be the duty of the secretary of state to transmit a duly certified copy thereof to the clerk of the superior court named therein, who shall record the same in the journal of the court and index the same in the execution docket of the cause in which the conviction was had. [1931 c 19 § 3; 1929 c 26 § 4; RRS § 10252.] 9.96.040 9.96.040 Copy of instrument restoring civil rights as evidence. See RCW 5.44.090. 9.96.050 9.96.050 Final discharge of parolee—Restoration of civil rights—Governor’s pardoning power not affected. When a prisoner on parole has performed all obligations of (2006 Ed.) 9.96.060 his or her release, including any and all legal financial obligations, for such time as shall satisfy the indeterminate sentence review board that his or her final release is not incompatible with the best interests of society and the welfare of the paroled individual, the board may make a final order of discharge and issue a certificate of discharge to the prisoner. The certificate of discharge shall be issued to the offender in person or by mail to the prisoner’s last known address. The board shall send a copy of every signed certificate of discharge to the auditor for the county in which the offender was sentenced and to the department of corrections. The department shall create and maintain a data base containing the names of all felons who have been issued certificates of discharge, the date of discharge, and the date of conviction and offense. The board retains the jurisdiction to issue a certificate of discharge after the expiration of the prisoner’s or parolee’s maximum statutory sentence. If not earlier granted, the board shall make a final order of discharge three years from the date of parole unless the parolee is on suspended or revoked status at the expiration of the three years. Such discharge, regardless of when issued, shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certification of discharge shall so state. This restoration of civil rights shall not restore the right to receive, possess, own, or transport firearms. The discharge provided for in this section shall be considered as a part of the sentence of the convicted person and shall not in any manner be construed as affecting the powers of the governor to pardon any such person. [2002 c 16 § 3; 1993 c 140 § 4; 1980 c 75 § 1; 1961 c 187 § 1.] Intent—2002 c 16: See note following RCW 9.94A.637. 9.96.060 9.96.060 Misdemeanor offenses—Vacating records. (1) Every person convicted of a misdemeanor or gross misdemeanor offense who has completed all of the terms of the sentence for the misdemeanor or gross misdemeanor offense may apply to the sentencing court for a vacation of the applicant’s record of conviction for the offense. If the court finds the applicant meets the tests prescribed in subsection (2) of this section, the court may in its discretion vacate the record of conviction by: (a)(i) Permitting the applicant to withdraw the applicant’s plea of guilty and to enter a plea of not guilty; or (ii) if the applicant has been convicted after a plea of not guilty, the court setting aside the verdict of guilty; and (b) the court dismissing the information, indictment, complaint, or citation against the applicant and vacating the judgment and sentence. (2) An applicant may not have the record of conviction for a misdemeanor or gross misdemeanor offense vacated if any one of the following is present: (a) There are any criminal charges against the applicant pending in any court of this state or another state, or in any federal court; (b) The offense was a violent offense as defined in RCW 9.94A.030 or an attempt to commit a violent offense; (c) The offense was a violation of RCW 46.61.502 (driving while under the influence), 46.61.504 (actual physical control while under the influence), or 9.91.020 (operating a railroad, etc. while intoxicated); [Title 9 RCW—page 219] Chapter 9.96A Title 9 RCW: Crimes and Punishments (d) The offense was any misdemeanor or gross misdemeanor violation, including attempt, of chapter 9.68 RCW (obscenity and pornography), chapter 9.68A RCW (sexual exploitation of children), or chapter 9A.44 RCW (sex offenses); (e) The applicant was convicted of a misdemeanor or gross misdemeanor offense as defined in RCW 10.99.020, or the court determines after a review of the court file that the offense was committed by one family member or household member against another, or the court, after considering the damage to person or property that resulted in the conviction, any prior convictions for crimes defined in RCW 10.99.020, or for comparable offenses in another state or in federal court, and the totality of the records under review by the court regarding the conviction being considered for vacation, determines that the offense involved domestic violence, and any one of the following factors exist: (i) The applicant has not provided written notification of the vacation petition to the prosecuting attorney’s office that prosecuted the offense for which vacation is sought, or has not provided that notification to the court; (ii) The applicant has previously had a conviction for domestic violence. For purposes of this subsection, however, if the current application is for more than one conviction that arose out of a single incident, none of those convictions counts as a previous conviction; (iii) The applicant has signed an affidavit under penalty of perjury affirming that the applicant has not previously had a conviction for a domestic violence offense, and a criminal history check reveals that the applicant has had such a conviction; or (iv) Less than five years have elapsed since the person completed the terms of the original conditions of the sentence, including any financial obligations and successful completion of any treatment ordered as a condition of sentencing; (f) For any offense other than those described in (e) of this subsection, less than three years have passed since the person completed the terms of the sentence, including any financial obligations; (g) The offender has been convicted of a new crime in this state, another state, or federal court since the date of conviction; (h) The applicant has ever had the record of another conviction vacated; or (i) The applicant is currently restrained, or has been restrained within five years prior to the vacation application, by a domestic violence protection order, a no-contact order, an antiharassment order, or a civil restraining order which restrains one party from contacting the other party. (3) Once the court vacates a record of conviction under subsection (1) of this section, the person shall be released from all penalties and disabilities resulting from the offense and the fact that the person has been convicted of the offense shall not be included in the person’s criminal history for purposes of determining a sentence in any subsequent conviction. For all purposes, including responding to questions on employment or housing applications, a person whose conviction has been vacated under subsection (1) of this section may state that he or she has never been convicted of that crime. [Title 9 RCW—page 220] Nothing in this section affects or prevents the use of an offender’s prior conviction in a later criminal prosecution. (4) All costs incurred by the court and probation services shall be paid by the person making the motion to vacate the record unless a determination is made pursuant to chapter 10.101 RCW that the person making the motion is indigent, at the time the motion is brought. (5) The clerk of the court in which the vacation order is entered shall immediately transmit the order vacating the conviction to the Washington state patrol identification section and to the local police agency, if any, which holds criminal history information for the person who is the subject of the conviction. The Washington state patrol and any such local police agency shall immediately update their records to reflect the vacation of the conviction, and shall transmit the order vacating the conviction to the federal bureau of investigation. A conviction that has been vacated under this section may not be disseminated or disclosed by the state patrol or local law enforcement agency to any person, except other criminal justice enforcement agencies. [2001 c 140 § 1.] Chapter 9.96A RCW RESTORATION OF EMPLOYMENT RIGHTS Chapter 9.96A Sections 9.96A.010 9.96A.020 9.96A.030 9.96A.040 9.96A.050 9.96A.060 9.96A.900 Legislative declaration. Employment, occupational licensing by public entity—Prior felony conviction no disqualification—Exceptions. Exclusion—Law enforcement agencies. Violations—Adjudication pursuant to administrative procedure act. Provisions of chapter prevailing. Exclusion—Employees dealing with children or vulnerable persons. Effective date—1973 c 135. Gambling commission—Denial, suspension, or revocation of license, permit—Other provisions not applicable: RCW 9.46.075. Restoration of civil rights: Chapter 9.96 RCW. State lottery commission—Denial, suspension, and revocation of licenses— Other provisions not applicable: RCW 67.70.090. 9.96A.010 Legislative declaration. The legislature declares that it is the policy of the state of Washington to encourage and contribute to the rehabilitation of felons and to assist them in the assumption of the responsibilities of citizenship, and the opportunity to secure employment or to pursue, practice or engage in a meaningful and profitable trade, occupation, vocation, profession or business is an essential ingredient to rehabilitation and the assumption of the responsibilities of citizenship. [1973 c 135 § 1.] 9.96A.010 9.96A.020 9.96A.020 Employment, occupational licensing by public entity—Prior felony conviction no disqualification—Exceptions. (1) Subject to the exceptions in subsections (3) and (4) of this section, and unless there is another provision of law to the contrary, a person is not disqualified from employment by the state of Washington or any of its counties, cities, towns, municipal corporations, or quasimunicipal corporations, nor is a person disqualified to practice, pursue or engage in any occupation, trade, vocation, or business for which a license, permit, certificate or registration is required to be issued by the state of Washington or any of its counties, cities, towns, municipal corporations, or quasi(2006 Ed.) Prisoners—Untried Indictments, Informations, Complaints municipal corporations solely because of a prior conviction of a felony. However, this section does not preclude the fact of any prior conviction of a crime from being considered. (2) A person may be denied employment by the state of Washington or any of its counties, cities, towns, municipal corporations, or quasi-municipal corporations, or a person may be denied a license, permit, certificate or registration to pursue, practice or engage in an occupation, trade, vocation, or business by reason of the prior conviction of a felony if the felony for which he or she was convicted directly relates to the position of employment sought or to the specific occupation, trade, vocation, or business for which the license, permit, certificate or registration is sought, and the time elapsed since the conviction is less than ten years. However, for positions in the county treasurer’s office, a person may be disqualified from employment because of a prior guilty plea or conviction of a felony involving embezzlement or theft, even if the time elapsed since the guilty plea or conviction is ten years or more. (3) A person is disqualified for any certificate required or authorized under chapters 28A.405 or 28A.410 RCW, because of a prior guilty plea or the conviction of a felony involving sexual exploitation of a child under chapter 9.68A RCW, sexual offenses under chapter 9A.44 RCW where a minor is the victim, promoting prostitution of a minor under chapter 9A.88 RCW, or a violation of similar laws of another jurisdiction, even if the time elapsed since the guilty plea or conviction is ten years or more. (4) A person is disqualified from employment by school districts, educational service districts, and their contractors hiring employees who will have regularly scheduled unsupervised access to children, because of a prior guilty plea or conviction of a felony involving sexual exploitation of a child under chapter 9.68A RCW, sexual offenses under chapter 9A.44 RCW where a minor is the victim, promoting prostitution of a minor under chapter 9A.88 RCW, or a violation of similar laws of another jurisdiction, even if the time elapsed since the guilty plea or conviction is ten years or more. (5) Subsections (3) and (4) of this section only apply to a person applying for a certificate or for employment on or after July 25, 1993. [1999 c 16 § 1; 1993 c 71 § 1; 1973 c 135 § 2.] Intent—1993 c 71: "The legislature reaffirms its singular intent that this act shall not affect the duties imposed or powers conferred on the office of the superintendent of public instruction by RCW 28A.410.090." [1993 c 71 § 2.] 9.96A.030 9.96A.030 Exclusion—Law enforcement agencies. This chapter shall not be applicable to any law enforcement agency; however, nothing herein shall be construed to preclude a law enforcement agency in its discretion from adopting the policy set forth in this chapter. [1973 c 135 § 3.] 9.96A.040 9.96A.040 Violations—Adjudication pursuant to administrative procedure act. Any complaints or grievances concerning the violation of this chapter shall be processed and adjudicated in accordance with the procedures set forth in chapter 34.05 RCW, the administrative procedure act. [1973 c 135 § 4.] (2006 Ed.) 9.98.010 9.96A.050 Provisions of chapter prevailing. The provisions of this chapter shall prevail over any other provisions of law which purport to govern the denial of licenses, permits, certificates, registrations, or other means to engage in a business, on the grounds of a lack of good moral character, or which purport to govern the suspension or revocation of such a license, permit, certificate, or registration on the grounds of conviction of a crime. [1973 c 135 § 5.] 9.96A.050 9.96A.060 Exclusion—Employees dealing with children or vulnerable persons. This chapter is not applicable to the department of social and health services when employing a person, who in the course of his or her employment, has or may have unsupervised access to any person who is under the age of eighteen, who is under the age of twenty-one and has been sentenced to a term of confinement under the supervision of the department of social and health services under chapter 13.40 RCW, who is a vulnerable adult under chapter 74.34 RCW, or who is a vulnerable person. For purposes of this section "vulnerable person" means an adult of any age who lacks the functional, mental, or physical ability to care for himself or herself. [2001 c 296 § 2.] 9.96A.060 Intent—2001 c 296: "It is the intent of the legislature to authorize the department of social and health services to investigate the background of current and future department employees to the same extent and with the same effect as it has authorized the state to investigate the background and exclude from the provision of service current and future care providers, contractors, volunteers, and others. The department of social and health services must coordinate with the department of personnel to develop rules that address the procedures for undertaking background checks, and specifically what action would be taken against a current employee who is disqualified from his or her current position because of a background check not previously performed." [2001 c 296 § 1.] 9.96A.900 Effective date—1973 c 135. This act shall take effect on July 1, 1973. [1973 c 135 § 7.] 9.96A.900 Chapter 9.98 RCW PRISONERS—UNTRIED INDICTMENTS, INFORMATIONS, COMPLAINTS Chapter 9.98 Sections 9.98.010 9.98.020 9.98.030 9.98.040 Disposition of untried indictment, information, complaint— Procedure—Escape, effect. Loss of jurisdiction and failure of indictment, information, complaint—Dismissal. Chapter not applicable to mentally ill. Court not prohibited from ordering prisoner to trial. 9.98.010 Disposition of untried indictment, information, complaint—Procedure—Escape, effect. (1) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred twenty days after he shall have caused to be delivered to the prosecuting attorney and the superior court of the county in which the indictment, information, or complaint is pending written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint: PROVIDED, That for good cause shown in open court, the prisoner or his counsel shall have the right to be present, the court having 9.98.010 [Title 9 RCW—page 221] 9.98.020 Title 9 RCW: Crimes and Punishments jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the indeterminate sentence review board relating to the prisoner. (2) The written notice and request for final disposition referred to in subsection (1) hereof shall be given or sent by the prisoner to the superintendent having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting attorney and superior court by certified mail, return receipt requested. (3) The superintendent having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment, information, or complaint against him concerning which the superintendent has knowledge and of his right to make a request for final disposition thereof. (4) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in subsection (1) hereof shall void the request. [1999 c 143 § 33; 1959 c 56 § 1.] 9.98.020 9.98.020 Loss of jurisdiction and failure of indictment, information, complaint—Dismissal. In the event that the action is not brought to trial within the period of time as herein provided, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. [1959 c 56 § 2.] 9.98.030 9.98.030 Chapter not applicable to mentally ill. The provisions of this chapter shall not apply to any person adjudged to be mentally ill. [1959 c 56 § 3.] 9.98.040 9.98.040 Court not prohibited from ordering prisoner to trial. This chapter shall not be construed as preempting the right of the superior court on the motion of the county prosecuting attorney from ordering the superintendent of a state penal or correctional institution to cause a prisoner to be transported to the superior court of the county for trial upon any untried indictment, information or complaint. [1959 c 56 § 4.] Chapter 9.100 Chapter 9.100 RCW AGREEMENT ON DETAINERS Sections 9.100.010 9.100.020 9.100.030 9.100.040 9.100.050 9.100.060 9.100.070 9.100.080 Agreement on detainers—Text. Appropriate court defined. Courts, state and political subdivisions enjoined to enforce agreement. Escape—Effect. Giving over inmate authorized. Administrator—Appointment. Request for temporary custody—Notice to prisoner and governor—Advising prisoner of rights. Copies of chapter—Transmission. [Title 9 RCW—page 222] Untried indictments, informations, complaints—Disposition: Chapter 9.98 RCW. 9.100.010 Agreement on detainers—Text. The agreement on detainers is hereby enacted into law and entered into by this state with all other jurisdictions legally joining therein in the form substantially as follows: 9.100.010 TEXT OF THE AGREEMENT ON DETAINERS The contracting states solemnly agree that: ARTICLE I The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures. ARTICLE II As used in this agreement: (a) "State" shall mean a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico. (b) "Sending state" shall mean a state in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to Article III hereof or at the time that a request for custody or availability is initiated pursuant to Article IV hereof. (c) "Receiving state" shall mean the state in which trial is to be had on an indictment, information or complaint pursuant to Article III or Article IV hereof. ARTICLE III (a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: PROVIDED, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term (2006 Ed.) Agreement on Detainers of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. (b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of correction or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested. (c) The warden, commissioner of correction or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based. (d) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of correction or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner’s written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. (e) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) hereof, and a waiver of extradition to the receiving state to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law. (f) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in paragraph (a) hereof shall void the request. ARTICLE IV (a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any (2006 Ed.) 9.100.010 party state made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated: PROVIDED, That the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request: PROVIDED FURTHER, That there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner. (b) Upon receipt of the officer’s written request as provided in paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request or availability and of the reasons therefor. (c) In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. (d) Nothing contained in this Article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery. (e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. ARTICLE V (a) In response to a request made under Article III or Article IV hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in Article III of this agreement. In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner’s presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian. [Title 9 RCW—page 223] 9.100.020 Title 9 RCW: Crimes and Punishments (b) The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand: (i) Proper identification and evidence of his authority to act for the state into whose temporary custody the prisoner is to be given. (ii) A duly certified copy of the indictment, information or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made. (c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect. (d) The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for his attendance at court and while being transported to or from any place at which his presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution. (e) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state. (f) During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow. (g) For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law. (h) From the time that a party state receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one or more untried indictments, informations or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner. The provisions of this paragraph shall govern unless the states concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves. Nothing herein contained shall be construed to alter or effect [affect] any internal relationship among the departments, agencies and officers of and in the government of a party state, or [Title 9 RCW—page 224] between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor. ARTICLE VI (a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter. (b) No provision of this agreement, and no remedy made available by this agreement, shall apply to any person who is adjudged to be mentally ill. ARTICLE VII Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide within and without the state, information necessary to the effective operation of this agreement. ARTICLE VIII This agreement shall enter into full force and effect as to a party state when such state has enacted the same into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by inmates or by state officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof. ARTICLE IX This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party hereto, the agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. [1967 c 34 § 1.] 9.100.020 9.100.020 Appropriate court defined. The phrase "appropriate court" as used in the agreement on detainers shall, with reference to the courts of this state, mean any court with criminal jurisdiction. [1967 c 34 § 2.] 9.100.030 9.100.030 Courts, state and political subdivisions enjoined to enforce agreement. All courts, departments, agencies, officers and employees of this state and its political subdivisions are hereby directed to enforce the agreement on detainers and to cooperate with one another and with other party states in enforcing the agreement and effectuating its purposes. [1967 c 34 § 3.] (2006 Ed.) Agreement on Detainers 9.100.080 9.100.040 Escape—Effect. Escape from custody while in another state pursuant to the agreement on detainers shall constitute an offense against the laws of this state to the same extent and degree as an escape from the institution in which the prisoner was confined immediately prior to having been sent to another state pursuant to the provisions of the agreement on detainers and shall be punishable in the same manner as an escape from said institution. [1967 c 34 § 4.] 9.100.040 9.100.050 Giving over inmate authorized. It shall be lawful and mandatory upon the warden or other official in charge of a penal or correctional institution in this state to give over the person of any inmate thereof whenever so required by the operation of the agreement on detainers. [1967 c 34 § 5.] 9.100.050 9.100.060 Administrator—Appointment. The governor is hereby authorized and empowered to designate and appoint a state officer to act as the administrator who shall perform the duties and functions and exercise the powers conferred upon such person by Article VII of the agreement on detainers. [1967 c 34 § 6.] 9.100.060 9.100.070 Request for temporary custody—Notice to prisoner and governor—Advising prisoner of rights. In order to implement Article IV(a) of the agreement on detainers, and in furtherance of its purposes, the appropriate authorities having custody of the prisoner shall, promptly upon receipt of the officer’s written request, notify the prisoner and the governor in writing that a request for temporary custody has been made and such notification shall describe the source and contents of said request. The authorities having custody of the prisoner shall also advise him in writing of his rights to counsel, to make representations to the governor within thirty days, and to contest the legality of his delivery. [1967 c 34 § 7.] 9.100.070 9.100.080 Copies of chapter—Transmission. Copies of this chapter shall, upon its approval, be transmitted by the secretary of state to the governor of each state, to the attorney general and the secretary of state of the United States, and the council of state governments. [1967 c 34 § 8.] 9.100.080 (2006 Ed.) [Title 9 RCW—page 225] Title 9A WASHINGTON CRIMINAL CODE Title 9A Chapters 9A.04 Preliminary article. 9A.08 Principles of liability. 9A.12 Insanity. 9A.16 Defenses. 9A.20 Classification of crimes. 9A.28 Anticipatory offenses. 9A.32 Homicide. 9A.36 Assault—Physical harm. 9A.40 Kidnapping, unlawful imprisonment, and custodial interference. 9A.42 Criminal mistreatment. 9A.44 Sex offenses. 9A.46 Harassment. 9A.48 Arson, reckless burning, and malicious mischief. 9A.49 Lasers. 9A.50 Interference with health care facilities or providers. 9A.52 Burglary and trespass. 9A.56 Theft and robbery. 9A.60 Fraud. 9A.61 Defrauding a public utility. 9A.64 Family offenses. 9A.68 Bribery and corrupt influence. 9A.72 Perjury and interference with official proceedings. 9A.76 Obstructing governmental operation. 9A.80 Abuse of office. 9A.82 Criminal profiteering act. 9A.83 Money laundering. 9A.84 Public disturbance. 9A.88 Indecent exposure—Prostitution. 9A.98 Laws repealed. Crimes and punishments: Title 9 RCW. Explosives: Chapter 70.74 RCW. Harassment: Chapter 10.14 RCW. Chapter 9A.04 Chapter 9A.04 RCW PRELIMINARY ARTICLE Sections 9A.04.010 9A.04.020 9A.04.030 9A.04.040 9A.04.050 9A.04.060 9A.04.070 9A.04.080 9A.04.090 9A.04.100 9A.04.110 9A.04.010 Title, effective date, application, severability, captions. Purposes—Principles of construction. State criminal jurisdiction. Classes of crimes. People capable of committing crimes—Capability of children. Common law to supplement statute. Who amenable to criminal statutes. Limitation of actions. Application of general provisions of the code. Proof beyond a reasonable doubt. Definitions. 9A.04.010 Title, effective date, application, severability, captions. (1) This title shall be known and may be cited as the Washington Criminal Code and shall become effective on July 1, 1976. (2006 Ed.) (2) The provisions of this title shall apply to any offense committed on or after July 1, 1976, which is defined in this title or the general statutes, unless otherwise expressly provided or unless the context otherwise requires, and shall also apply to any defense to prosecution for such an offense. (3) The provisions of this title do not apply to or govern the construction of and punishment for any offense committed prior to July 1, 1976, or to the construction and application of any defense to a prosecution for such an offense. Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this title had not been enacted. (4) If any provision of this title, or its application to any person or circumstance is held invalid, the remainder of the title, or the application of the provision to other persons or circumstances is not affected, and to this end the provisions of this title are declared to be severable. (5) Chapter, section, and subsection captions are for organizational purposes only and shall not be construed as part of this title. [1975 1st ex.s. c 260 § 9A.04.010.] Legislative direction for codification—1975 1st ex.s. c 260: "The provisions of this act shall constitute a new Title in the Revised Code of Washington to be designated as Title 9A RCW." [1975 1st ex.s. c 260 § 9A.92.900.] 9A.04.020 Purposes—Principles of construction. (1) The general purposes of the provisions governing the definition of offenses are: (a) To forbid and prevent conduct that inflicts or threatens substantial harm to individual or public interests; (b) To safeguard conduct that is without culpability from condemnation as criminal; (c) To give fair warning of the nature of the conduct declared to constitute an offense; (d) To differentiate on reasonable grounds between serious and minor offenses, and to prescribe proportionate penalties for each. (2) The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title. [1975 1st ex.s. c 260 § 9A.04.020.] 9A.04.020 9A.04.030 State criminal jurisdiction. The following persons are liable to punishment: (1) A person who commits in the state any crime, in whole or in part. (2) A person who commits out of the state any act which, if committed within it, would be theft and is afterward found in the state with any of the stolen property. (3) A person who being out of the state, counsels, causes, procures, aids, or abets another to commit a crime in this state. 9A.04.030 [Title 9A RCW—page 1] 9A.04.040 Title 9A RCW: Washington Criminal Code (4) A person who, being out of the state, abducts or kidnaps by force or fraud, any person, contrary to the laws of the place where the act is committed, and brings, sends, or conveys such person into this state. (5) A person who commits an act without the state which affects persons or property within the state, which, if committed within the state, would be a crime. (6) A person who, being out of the state, makes a statement, declaration, verification, or certificate under RCW 9A.72.085 which, if made within the state, would be perjury. (7) A person who commits an act onboard a conveyance within the state of Washington, including the airspace over the state of Washington, that subsequently lands, docks, or stops within the state which, if committed within the state, would be a crime. [1999 c 349 § 1; 1981 c 187 § 2; 1975 1st ex.s. c 260 § 9A.04.030.] 9A.04.040 9A.04.040 Classes of crimes. (1) An offense defined by this title or by any other statute of this state, for which a sentence of imprisonment is authorized, constitutes a crime. Crimes are classified as felonies, gross misdemeanors, or misdemeanors. (2) A crime is a felony if it is so designated in this title or by any other statute of this state or if persons convicted thereof may be sentenced to imprisonment for a term in excess of one year. A crime is a misdemeanor if it is so designated in this title or by any other statute of this state or if persons convicted thereof may be sentenced to imprisonment for no more than ninety days. Every other crime is a gross misdemeanor. [1975 1st ex.s. c 260 § 9A.04.040.] 9A.04.050 9A.04.050 People capable of committing crimes— Capability of children. Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong. Whenever in legal proceedings it becomes necessary to determine the age of a child, he may be produced for inspection, to enable the court or jury to determine the age thereby; and the court may also direct his examination by one or more physicians, whose opinion shall be competent evidence upon the question of his age. [1975 1st ex.s. c 260 § 9A.04.050.] 9A.04.060 9A.04.060 Common law to supplement statute. The provisions of the common law relating to the commission of crime and the punishment thereof, insofar as not inconsistent with the Constitution and statutes of this state, shall supplement all penal statutes of this state and all persons offending against the same shall be tried in the courts of this state having jurisdiction of the offense. [1975 1st ex.s. c 260 § 9A.04.060.] 9A.04.070 9A.04.070 Who amenable to criminal statutes. Every person, regardless of whether or not he is an inhabitant of this state, may be tried and punished under the laws of this state for an offense committed by him therein, except when such offense is cognizable exclusively in the courts of the United States. [1975 1st ex.s. c 260 § 9A.04.070.] [Title 9A RCW—page 2] 9A.04.080 9A.04.080 Limitation of actions. (1) Prosecutions for criminal offenses shall not be commenced after the periods prescribed in this section. (a) The following offenses may be prosecuted at any time after their commission: (i) Murder; (ii) Homicide by abuse; (iii) Arson if a death results; (iv) Vehicular homicide; (v) Vehicular assault if a death results; (vi) Hit-and-run injury-accident if a death results (RCW 46.52.020(4)). (b) The following offenses shall not be prosecuted more than ten years after their commission: (i) Any felony committed by a public officer if the commission is in connection with the duties of his or her office or constitutes a breach of his or her public duty or a violation of the oath of office; (ii) Arson if no death results; or (iii) Violations of RCW 9A.44.040 or 9A.44.050 if the rape is reported to a law enforcement agency within one year of its commission; except that if the victim is under fourteen years of age when the rape is committed and the rape is reported to a law enforcement agency within one year of its commission, the violation may be prosecuted up to three years after the victim’s eighteenth birthday or up to ten years after the rape’s commission, whichever is later. If a violation of RCW 9A.44.040 or 9A.44.050 is not reported within one year, the rape may not be prosecuted: (A) More than three years after its commission if the violation was committed against a victim fourteen years of age or older; or (B) more than three years after the victim’s eighteenth birthday or more than seven years after the rape’s commission, whichever is later, if the violation was committed against a victim under fourteen years of age. (c) Violations of the following statutes shall not be prosecuted more than three years after the victim’s eighteenth birthday or more than seven years after their commission, whichever is later: RCW 9A.44.073, 9A.44.076, 9A.44.083, 9A.44.086, *9A.44.070, 9A.44.080, 9A.44.100(1)(b), or 9A.64.020. (d) The following offenses shall not be prosecuted more than six years after their commission: Violations of RCW 9A.82.060 or 9A.82.080. (e) The following offenses shall not be prosecuted more than five years after their commission: Any class C felony under chapter 74.09, 82.36, or 82.38 RCW. (f) Bigamy shall not be prosecuted more than three years after the time specified in RCW 9A.64.010. (g) A violation of RCW 9A.56.030 must not be prosecuted more than three years after the discovery of the offense when the victim is a tax exempt corporation under 26 U.S.C. Sec. 501(c)(3). (h) No other felony may be prosecuted more than three years after its commission; except that in a prosecution under RCW 9A.44.115, if the person who was viewed, photographed, or filmed did not realize at the time that he or she was being viewed, photographed, or filmed, the prosecution must be commenced within two years of the time the person who was viewed or in the photograph or film first learns that he or she was viewed, photographed, or filmed. (2006 Ed.) Preliminary Article (i) No gross misdemeanor may be prosecuted more than two years after its commission. (j) No misdemeanor may be prosecuted more than one year after its commission. (2) The periods of limitation prescribed in subsection (1) of this section do not run during any time when the person charged is not usually and publicly resident within this state. (3) In any prosecution for a sex offense as defined in RCW 9.94A.030, the periods of limitation prescribed in subsection (1) of this section run from the date of commission or one year from the date on which the identity of the suspect is conclusively established by deoxyribonucleic acid testing, whichever is later. (4) If, before the end of a period of limitation prescribed in subsection (1) of this section, an indictment has been found or a complaint or an information has been filed, and the indictment, complaint, or information is set aside, then the period of limitation is extended by a period equal to the length of time from the finding or filing to the setting aside. [2006 c 132 § 1; 1998 c 221 § 2. Prior: 1997 c 174 § 1; 1997 c 97 § 1; prior: 1995 c 287 § 5; 1995 c 17 § 1; 1993 c 214 § 1; 1989 c 317 § 3; 1988 c 145 § 14; prior: 1986 c 257 § 13; 1986 c 85 § 1; prior: 1985 c 455 § 19; 1985 c 186 § 1; 1984 c 270 § 18; 1982 c 129 § 1; 1981 c 203 § 1; 1975 1st ex.s. c 260 § 9A.04.080.] *Reviser’s note: RCW 9A.44.070 and 9A.44.080 were repealed by 1988 c 145 § 24. Intent—1989 c 317: See note following RCW 4.16.340. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—Severability—1985 c 455: See RCW 9A.82.902 and 9A.82.904. Severability—Effective date—1984 c 270: See RCW 9A.82.900 and 9A.82.901. Severability—1982 c 129: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1982 c 129 § 11.] 9A.04.090 9A.04.090 Application of general provisions of the code. The provisions of chapters 9A.04 through 9A.28 RCW of this title are applicable to offenses defined by this title or another statute, unless this title or such other statute specifically provides otherwise. [1975 1st ex.s. c 260 § 9A.04.090.] 9A.04.100 9A.04.100 Proof beyond a reasonable doubt. (1) Every person charged with the commission of a crime is presumed innocent unless proved guilty. No person may be convicted of a crime unless each element of such crime is proved by competent evidence beyond a reasonable doubt. (2) When a crime has been proven against a person, and there exists a reasonable doubt as to which of two or more degrees he is guilty, he shall be convicted only of the lowest degree. [1975 1st ex.s. c 260 § 9A.04.100.] 9A.04.110 9A.04.110 Definitions. In this title unless a different meaning plainly is required: (1) "Acted" includes, where relevant, omitted to act; (2) "Actor" includes, where relevant, a person failing to act; (2006 Ed.) 9A.04.110 (3) "Benefit" is any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary; (4)(a) "Bodily injury," "physical injury," or "bodily harm" means physical pain or injury, illness, or an impairment of physical condition; (b) "Substantial bodily harm" means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part; (c) "Great bodily harm" means bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ; (5) "Building", in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building; (6) "Deadly weapon" means any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance, including a "vehicle" as defined in this section, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm; (7) "Dwelling" means any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging; (8) "Government" includes any branch, subdivision, or agency of the government of this state and any county, city, district, or other local governmental unit; (9) "Governmental function" includes any activity which a public servant is legally authorized or permitted to undertake on behalf of a government; (10) "Indicted" and "indictment" include "informed against" and "information", and "informed against" and "information" include "indicted" and "indictment"; (11) "Judge" includes every judicial officer authorized alone or with others, to hold or preside over a court; (12) "Malice" and "maliciously" shall import an evil intent, wish, or design to vex, annoy, or injure another person. Malice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty; (13) "Officer" and "public officer" means a person holding office under a city, county, or state government, or the federal government who performs a public function and in so doing is vested with the exercise of some sovereign power of government, and includes all assistants, deputies, clerks, and employees of any public officer and all persons lawfully exercising or assuming to exercise any of the powers or functions of a public officer; (14) "Omission" means a failure to act; (15) "Peace officer" means a duly appointed city, county, or state law enforcement officer; [Title 9A RCW—page 3] Chapter 9A.08 Title 9A RCW: Washington Criminal Code (16) "Pecuniary benefit" means any gain or advantage in the form of money, property, commercial interest, or anything else the primary significance of which is economic gain; (17) "Person", "he", and "actor" include any natural person and, where relevant, a corporation, joint stock association, or an unincorporated association; (18) "Place of work" includes but is not limited to all the lands and other real property of a farm or ranch in the case of an actor who owns, operates, or is employed to work on such a farm or ranch; (19) "Prison" means any place designated by law for the keeping of persons held in custody under process of law, or under lawful arrest, including but not limited to any state correctional institution or any county or city jail; (20) "Prisoner" includes any person held in custody under process of law, or under lawful arrest; (21) "Projectile stun gun" means an electronic device that projects wired probes attached to the device that emit an electrical charge and that is designed and primarily employed to incapacitate a person or animal; (22) "Property" means anything of value, whether tangible or intangible, real or personal; (23) "Public servant" means any person other than a witness who presently occupies the position of or has been elected, appointed, or designated to become any officer or employee of government, including a legislator, judge, judicial officer, juror, and any person participating as an advisor, consultant, or otherwise in performing a governmental function; (24) "Signature" includes any memorandum, mark, or sign made with intent to authenticate any instrument or writing, or the subscription of any person thereto; (25) "Statute" means the Constitution or an act of the legislature or initiative or referendum of this state; (26) "Threat" means to communicate, directly or indirectly the intent: (a) To cause bodily injury in the future to the person threatened or to any other person; or (b) To cause physical damage to the property of a person other than the actor; or (c) To subject the person threatened or any other person to physical confinement or restraint; or (d) To accuse any person of a crime or cause criminal charges to be instituted against any person; or (e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or (f) To reveal any information sought to be concealed by the person threatened; or (g) To testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or (h) To take wrongful action as an official against anyone or anything, or wrongfully withhold official action, or cause such action or withholding; or (i) To bring about or continue a strike, boycott, or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or [Title 9A RCW—page 4] (j) To do any other act which is intended to harm substantially the person threatened or another with respect to his health, safety, business, financial condition, or personal relationships; (27) "Vehicle" means a "motor vehicle" as defined in the vehicle and traffic laws, any aircraft, or any vessel equipped for propulsion by mechanical means or by sail; (28) Words in the present tense shall include the future tense; and in the masculine shall include the feminine and neuter genders; and in the singular shall include the plural; and in the plural shall include the singular. [2005 c 458 § 3; 1988 c 158 § 1; 1987 c 324 § 1; 1986 c 257 § 3; 1975 1st ex.s. c 260 § 9A.04.110.] Effective date—1988 c 158: "This act shall take effect July 1, 1988." [1988 c 158 § 4.] Effective date—1987 c 324: "Section 3 of this act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately. The remainder of this act shall take effect July 1, 1988." [1987 c 324 § 4.] Effective date—1986 c 257 §§ 3-10: "Sections 3 through 10 of this act shall take effect on July 1, 1988." [1987 c 324 § 3; 1986 c 257 § 12.] Severability—1986 c 257: See note following RCW 9A.56.010. Chapter 9A.08 Chapter 9A.08 RCW PRINCIPLES OF LIABILITY Sections 9A.08.010 9A.08.020 9A.08.030 General requirements of culpability. Liability for conduct of another—Complicity. Corporate and personal liability. 9A.08.010 9A.08.010 General requirements of culpability. (1) Kinds of Culpability Defined. (a) INTENT. A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime. (b) KNOWLEDGE. A person knows or acts knowingly or with knowledge when: (i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or (ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense. (c) RECKLESSNESS. A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation. (d) CRIMINAL NEGLIGENCE. A person is criminally negligent or acts with criminal negligence when he fails to be aware of a substantial risk that a wrongful act may occur and his failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable man would exercise in the same situation. (2) Substitutes for Criminal Negligence, Recklessness, and Knowledge. When a statute provides that criminal negligence suffices to establish an element of an offense, such element also is established if a person acts intentionally, knowingly, or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts intentionally or knowingly. When acting knowingly suffices (2006 Ed.) Insanity to establish an element, such element also is established if a person acts intentionally. (3) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether the offense is committed intentionally, knowingly, recklessly, or with criminal negligence, its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense. (4) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements plainly appears. [1975 1st ex.s. c 260 § 9A.08.010.] 9A.08.020 9A.08.020 Liability for conduct of another—Complicity. (1) A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. (2) A person is legally accountable for the conduct of another person when: (a) Acting with the kind of culpability that is sufficient for the commission of the crime, he causes an innocent or irresponsible person to engage in such conduct; or (b) He is made accountable for the conduct of such other person by this title or by the law defining the crime; or (c) He is an accomplice of such other person in the commission of the crime. (3) A person is an accomplice of another person in the commission of a crime if: (a) With knowledge that it will promote or facilitate the commission of the crime, he (i) solicits, commands, encourages, or requests such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it; or (b) His conduct is expressly declared by law to establish his complicity. (4) A person who is legally incapable of committing a particular crime himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity. (5) Unless otherwise provided by this title or by the law defining the crime, a person is not an accomplice in a crime committed by another person if: (a) He is a victim of that crime; or (b) He terminates his complicity prior to the commission of the crime, and either gives timely warning to the law enforcement authorities or otherwise makes a good faith effort to prevent the commission of the crime. (6) A person legally accountable for the conduct of another person may be convicted on proof of the commission of the crime and of his complicity therein, though the person claimed to have committed the crime has not been prosecuted or convicted or has been convicted of a different crime or degree of crime or has an immunity to prosecution or conviction or has been acquitted. [1975-’76 2nd ex.s. c 38 § 1; 1975 1st ex.s. c 260 § 9A.08.020.] (2006 Ed.) Chapter 9A.12 Effective date—1975-’76 2nd ex.s. c 38: "This 1976 amendatory act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect on July 1, 1976." [1975-’76 2nd ex.s. c 38 § 21.] Severability—1975-’76 2nd ex.s. c 38: "If any provision of this 1976 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1975-’76 2nd ex.s. c 38 § 20.] 9A.08.030 9A.08.030 Corporate and personal liability. (1) As used in this section: (a) "Agent" means any director, officer, or employee of a corporation, or any other person who is authorized to act on behalf of the corporation; (b) "Corporation" includes a joint stock association; (c) "High managerial agent" means an officer or director of a corporation or any other agent in a position of comparable authority with respect to the formulation of corporate policy or the supervision in a managerial capacity of subordinate employees. (2) A corporation is guilty of an offense when: (a) The conduct constituting the offense consists of an omission to discharge a specific duty of performance imposed on corporations by law; or (b) The conduct constituting the offense is engaged in, authorized, solicited, requested, commanded, or tolerated by the board of directors or by a high managerial agent acting within the scope of his employment and on behalf of the corporation; or (c) The conduct constituting the offense is engaged in by an agent of the corporation, other than a high managerial agent, while acting within the scope of his employment and in behalf of the corporation and (i) the offense is a gross misdemeanor or misdemeanor, or (ii) the offense is one defined by a statute which clearly indicates a legislative intent to impose such criminal liability on a corporation. (3) A person is criminally liable for conduct constituting an offense which he performs or causes to be performed in the name of or on behalf of a corporation to the same extent as if such conduct were performed in his own name or behalf. (4) Whenever a duty to act is imposed by law upon a corporation, any agent of the corporation who knows he has or shares primary responsibility for the discharge of the duty is criminally liable for a reckless or, if a high managerial agent, criminally negligent omission to perform the required act to the same extent as if the duty were by law imposed directly upon such agent. (5) Every corporation, whether foreign or domestic, which shall violate any provision of RCW 9A.28.040, shall forfeit every right and franchise to do business in this state. The attorney general shall begin and conduct all actions and proceedings necessary to enforce the provisions of this subsection. [1975 1st ex.s. c 260 § 9A.08.030.] Chapter 9A.12 RCW Chapter 9A.12 INSANITY Sections 9A.12.010 Insanity. [Title 9A RCW—page 5] 9A.12.010 Title 9A RCW: Washington Criminal Code 9A.12.010 9A.12.010 Insanity. To establish the defense of insanity, it must be shown that: (1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that: (a) He was unable to perceive the nature and quality of the act with which he is charged; or (b) He was unable to tell right from wrong with reference to the particular act charged. (2) The defense of insanity must be established by a preponderance of the evidence. [1975 1st ex.s. c 260 § 9A.12.010.] Chapter 9A.16 Chapter 9A.16 RCW DEFENSES Sections 9A.16.010 9A.16.020 9A.16.030 9A.16.040 9A.16.050 9A.16.060 9A.16.070 9A.16.080 9A.16.090 9A.16.100 9A.16.110 9A.16.120 Definitions. Use of force—When lawful. Homicide—When excusable. Justifiable homicide or use of deadly force by public officer, peace officer, person aiding. Homicide—By other person—When justifiable. Duress. Entrapment. Action for being detained on mercantile establishment premises for investigation—"Reasonable grounds" as defense. Intoxication. Use of force on children—Policy—Actions presumed unreasonable. Defending against violent crime—Reimbursement. Outdoor music festival, campground—Detention. on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public; (5) Whenever used by a carrier of passengers or the carrier’s authorized agent or servant, or other person assisting them at their request in expelling from a carriage, railway car, vessel, or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, if such vehicle has first been stopped and the force used is not more than is necessary to expel the offender with reasonable regard to the offender’s personal safety; (6) Whenever used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to any person, or in enforcing necessary restraint for the protection or restoration to health of the person, during such period only as is necessary to obtain legal authority for the restraint or custody of the person. [1986 c 149 § 2; 1979 ex.s. c 244 § 7; 1977 ex.s. c 80 § 13; 1975 1st ex.s. c 260 § 9A.16.020.] Effective date—1979 ex.s. c 244: See RCW 9A.44.902. Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. 9A.16.030 9A.16.030 Homicide—When excusable. Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent. [1979 ex.s. c 244 § 8; 1975 1st ex.s. c 260 § 9A.16.030.] Effective date—1979 ex.s. c 244: See RCW 9A.44.902. 9A.16.010 9A.16.010 Definitions. In this chapter, unless a different meaning is plainly required: (1) "Necessary" means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended. (2) "Deadly force" means the intentional application of force through the use of firearms or any other means reasonably likely to cause death or serious physical injury. [1986 c 209 § 1; 1975 1st ex.s. c 260 § 9A.16.010.] 9A.16.020 9A.16.020 Use of force—When lawful. The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases: (1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer’s direction; (2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody; (3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary; (4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person’s presence [Title 9A RCW—page 6] 9A.16.040 9A.16.040 Justifiable homicide or use of deadly force by public officer, peace officer, person aiding. (1) Homicide or the use of deadly force is justifiable in the following cases: (a) When a public officer is acting in obedience to the judgment of a competent court; or (b) When necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty. (c) When necessarily used by a peace officer or person acting under the officer’s command and in the officer’s aid: (i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony; (ii) To prevent the escape of a person from a federal or state correctional facility or in retaking a person who escapes from such a facility; or (iii) To prevent the escape of a person from a county or city jail or holding facility if the person has been arrested for, charged with, or convicted of a felony; or (iv) To lawfully suppress a riot if the actor or another participant is armed with a deadly weapon. (2) In considering whether to use deadly force under subsection (1)(c) of this section, to arrest or apprehend any person for the commission of any crime, the peace officer must have probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to the officer or a threat of serious physical harm to others. Among the cir(2006 Ed.) Defenses cumstances which may be considered by peace officers as a "threat of serious physical harm" are the following: (a) The suspect threatens a peace officer with a weapon or displays a weapon in a manner that could reasonably be construed as threatening; or (b) There is probable cause to believe that the suspect has committed any crime involving the infliction or threatened infliction of serious physical harm. Under these circumstances deadly force may also be used if necessary to prevent escape from the officer, where, if feasible, some warning is given. (3) A public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable pursuant to this section. (4) This section shall not be construed as: (a) Affecting the permissible use of force by a person acting under the authority of RCW 9A.16.020 or 9A.16.050; or (b) Preventing a law enforcement agency from adopting standards pertaining to its use of deadly force that are more restrictive than this section. [1986 c 209 § 2; 1975 1st ex.s. c 260 § 9A.16.040.] Legislative recognition: "The legislature recognizes that RCW 9A.16.040 establishes a dual standard with respect to the use of deadly force by peace officers and private citizens, and further recognizes that private citizens’ permissible use of deadly force under the authority of RCW 9.01.200, 9A.16.020, or 9A.16.050 is not restricted and remains broader than the limitations imposed on peace officers." [1986 c 209 § 3.] 9A.16.050 9A.16.050 Homicide—By other person—When justifiable. Homicide is also justifiable when committed either: (1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or (2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is. [1975 1st ex.s. c 260 § 9A.16.050.] 9A.16.100 (4) The defense of duress is not established solely by a showing that a married person acted on the command of his or her spouse. [1999 c 60 § 1; 1975 1st ex.s. c 260 § 9A.16.060.] 9A.16.070 9A.16.070 Entrapment. (1) In any prosecution for a crime, it is a defense that: (a) The criminal design originated in the mind of law enforcement officials, or any person acting under their direction, and (b) The actor was lured or induced to commit a crime which the actor had not otherwise intended to commit. (2) The defense of entrapment is not established by a showing only that law enforcement officials merely afforded the actor an opportunity to commit a crime. [1975 1st ex.s. c 260 § 9A.16.070.] 9A.16.080 9A.16.080 Action for being detained on mercantile establishment premises for investigation—"Reasonable grounds" as defense. In any criminal action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer, by the owner of the mercantile establishment, or by the owner’s authorized employee or agent, and that such peace officer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit theft or shoplifting on such premises of such merchandise. As used in this section, "reasonable grounds" shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a "reasonable time" shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise. [1975 1st ex.s. c 260 § 9A.16.080.] 9A.16.090 9A.16.060 9A.16.060 Duress. (1) In any prosecution for a crime, it is a defense that: (a) The actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he or she or another would be liable to immediate death or immediate grievous bodily injury; and (b) That such apprehension was reasonable upon the part of the actor; and (c) That the actor would not have participated in the crime except for the duress involved. (2) The defense of duress is not available if the crime charged is murder, manslaughter, or homicide by abuse. (3) The defense of duress is not available if the actor intentionally or recklessly places himself or herself in a situation in which it is probable that he or she will be subject to duress. (2006 Ed.) 9A.16.090 Intoxication. No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such mental state. [1975 1st ex.s. c 260 § 9A.16.090.] 9A.16.100 9A.16.100 Use of force on children—Policy—Actions presumed unreasonable. It is the policy of this state to protect children from assault and abuse and to encourage parents, teachers, and their authorized agents to use methods of correction and restraint of children that are not dangerous to the children. However, the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child. Any use of force on a child by any other person is unlawful unless it is reasonable and moderate and is [Title 9A RCW—page 7] 9A.16.110 Title 9A RCW: Washington Criminal Code authorized in advance by the child’s parent or guardian for purposes of restraining or correcting the child. The following actions are presumed unreasonable when used to correct or restrain a child: (1) Throwing, kicking, burning, or cutting a child; (2) striking a child with a closed fist; (3) shaking a child under age three; (4) interfering with a child’s breathing; (5) threatening a child with a deadly weapon; or (6) doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks. The age, size, and condition of the child and the location of the injury shall be considered when determining whether the bodily harm is reasonable or moderate. This list is illustrative of unreasonable actions and is not intended to be exclusive. [1986 c 149 § 1.] 9A.16.110 9A.16.110 Defending against violent crime—Reimbursement. (1) No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030. (2) When a person charged with a crime listed in subsection (1) of this section is found not guilty by reason of selfdefense, the state of Washington shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense. This reimbursement is not an independent cause of action. To award these reasonable costs the trier of fact must find that the defendant’s claim of self-defense was sustained by a preponderance of the evidence. If the trier of fact makes a determination of self-defense, the judge shall determine the amount of the award. (3) Notwithstanding a finding that a defendant’s actions were justified by self-defense, if the trier of fact also determines that the defendant was engaged in criminal conduct substantially related to the events giving rise to the charges filed against the defendant the judge may deny or reduce the amount of the award. In determining the amount of the award, the judge shall also consider the seriousness of the initial criminal conduct. Nothing in this section precludes the legislature from using the sundry claims process to grant an award where none was granted under this section or to grant a higher award than one granted under this section. (4) Whenever the issue of self-defense under this section is decided by a judge, the judge shall consider the same questions as must be answered in the special verdict under subsection (4) [(5)] of this section. (5) Whenever the issue of self-defense under this section has been submitted to a jury, and the jury has found the defendant not guilty, the court shall instruct the jury to return a special verdict in substantially the following form: answer yes or no 1. 2. Was the finding of not guilty based upon self-defense? If your answer to question 1 is no, do not answer the remaining question. [Title 9A RCW—page 8] ..... 3. a. b. c. d. e. f. If your answer to question 1 is yes, was the defendant: Protecting himself or herself? Protecting his or her family? Protecting his or her property? Coming to the aid of another who was in imminent danger of a heinous crime? Coming to the aid of another who was the victim of a heinous crime? Engaged in criminal conduct substantially related to the events giving rise to the crime with which the defendant is charged? ..... ..... ..... ..... ..... ..... [1995 c 44 § 1; 1989 c 94 § 1; 1977 ex.s. c 206 § 8. Formerly RCW 9.01.200.] Use of deadly force—Legislative recognition: See note following RCW 9A.16.040. 9A.16.120 9A.16.120 Outdoor music festival, campground— Detention. (1) In a criminal action brought against the detainer by reason of a person having been detained on or in the immediate vicinity of the premises of an outdoor music festival or related campground for the purpose of pursuing an investigation or questioning by a law enforcement officer as to the lawfulness of the consumption or possession of alcohol or illegal drugs, it is a defense that the detained person was detained in a reasonable manner and for not more than a reasonable time to permit the investigation or questioning by a law enforcement officer, and that a peace officer, owner, operator, employee, or agent of the outdoor music festival had reasonable grounds to believe that the person so detained was unlawfully consuming or attempting to unlawfully consume or possess, alcohol or illegal drugs on the premises. (2) For the purposes of this section: (a) "Illegal drug" means a controlled substance under chapter 69.50 RCW for which the person detained does not have a valid prescription or that is not being consumed in accordance with the prescription directions and warnings, or a legend drug under chapter 69.41 RCW for which the person does not have a valid prescription or that is not being consumed in accordance with the prescription directions and warnings. (b) "Outdoor music festival" has the same meaning as in RCW 70.108.020, except that no minimum time limit is required. (c) "Reasonable grounds" include, but are not limited to: (i) Exhibiting the effects of having consumed liquor, which means that a person has the odor of liquor on his or her breath, or that by speech, manner, appearance, behavior, lack of coordination, or otherwise exhibits that he or she has consumed liquor, and either: (A) Is in possession of or in close proximity to a container that has or recently had liquor in it; or (B) Is shown by other evidence to have recently consumed liquor; or (ii) Exhibiting the effects of having consumed an illegal drug, which means that a person by speech, manner, appearance, behavior, lack of coordination, or otherwise exhibits that he or she has consumed an illegal drug, and either: (2006 Ed.) Classification of Crimes (A) Is in possession of an illegal drug; or (B) Is shown by other evidence to have recently consumed an illegal drug. (d) "Reasonable time" means the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to allow a law enforcement officer to determine the lawfulness of the consumption or possession of alcohol or illegal drugs. "Reasonable time" may not exceed one hour. [2003 c 219 § 1.] Chapter 9A.20 Chapter 9A.20 RCW CLASSIFICATION OF CRIMES Sections 9A.20.010 9A.20.020 9A.20.021 9A.20.030 9A.20.040 Classification and designation of crimes. Authorized sentences for crimes committed before July 1, 1984. Maximum sentences for crimes committed July 1, 1984, and after. Alternative to a fine—Restitution. Prosecutions related to felonies defined outside Title 9A RCW. Assessments required of convicted persons offender supervision: RCW 9.94A.780. parolees: RCW 72.04A.120. probationers: RCW 10.64.120. 9A.20.010 Classification and designation of crimes. (1) Classified Felonies. (a) The particular classification of each felony defined in Title 9A RCW is expressly designated in the section defining it. (b) For purposes of sentencing, classified felonies are designated as one of three classes, as follows: (i) Class A felony; or (ii) Class B felony; or (iii) Class C felony. (2) Misdemeanors and Gross Misdemeanors. (a) Any crime punishable by a fine of not more than one thousand dollars, or by imprisonment in a county jail for not more than ninety days, or by both such fine and imprisonment is a misdemeanor. Whenever the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed, the committing of such act shall be a misdemeanor. (b) All crimes other than felonies and misdemeanors are gross misdemeanors. [1984 c 258 § 808; 1975 1st ex.s. c 260 § 9A.20.010.] 9A.20.021 (c) For a class C felony, by imprisonment in a state correctional institution for a maximum term of not more than five years, or by a fine in an amount fixed by the court of not more than ten thousand dollars, or by both such imprisonment and fine. (2) Gross Misdemeanor. Every person convicted of a gross misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than one year, or by a fine in an amount fixed by the court of not more than five thousand dollars, or by both such imprisonment and fine. (3) Misdemeanor. Every person convicted of a misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than ninety days, or by a fine in an amount fixed by the court of not more than one thousand dollars, or by both such imprisonment and fine. (4) This section applies to only those crimes committed prior to July 1, 1984. [1982 c 192 § 9; 1981 c 137 § 37; 1975’76 2nd ex.s. c 38 § 2; 1975 1st ex.s. c 260 § 9A.20.020.] Severability—1981 c 137: See RCW 9.94A.910. Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. Penalty assessments in addition to fine or bail forfeiture—Crime victim and witness programs in county: RCW 7.68.035. 9A.20.010 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 9A.20.020 Authorized sentences for crimes committed before July 1, 1984. (1) Felony. Every person convicted of a classified felony shall be punished as follows: (a) For a class A felony, by imprisonment in a state correctional institution for a maximum term fixed by the court of not less than twenty years, or by a fine in an amount fixed by the court of not more than fifty thousand dollars, or by both such imprisonment and fine; (b) For a class B felony, by imprisonment in a state correctional institution for a maximum term of not more than ten years, or by a fine in an amount fixed by the court of not more than twenty thousand dollars, or by both such imprisonment and fine; 9A.20.020 (2006 Ed.) 9A.20.021 9A.20.021 Maximum sentences for crimes committed July 1, 1984, and after. (1) Felony. Unless a different maximum sentence for a classified felony is specifically established by a statute of this state, no person convicted of a classified felony shall be punished by confinement or fine exceeding the following: (a) For a class A felony, by confinement in a state correctional institution for a term of life imprisonment, or by a fine in an amount fixed by the court of fifty thousand dollars, or by both such confinement and fine; (b) For a class B felony, by confinement in a state correctional institution for a term of ten years, or by a fine in an amount fixed by the court of twenty thousand dollars, or by both such confinement and fine; (c) For a class C felony, by confinement in a state correctional institution for five years, or by a fine in an amount fixed by the court of ten thousand dollars, or by both such confinement and fine. (2) Gross misdemeanor. Every person convicted of a gross misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than one year, or by a fine in an amount fixed by the court of not more than five thousand dollars, or by both such imprisonment and fine. (3) Misdemeanor. Every person convicted of a misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than ninety days, or by a fine in an amount fixed by the court of not more than one thousand dollars, or by both such imprisonment and fine. (4) This section applies to only those crimes committed on or after July 1, 1984. [2003 c 288 § 7; 2003 c 53 § 63; 1982 c 192 § 10.] Reviser’s note: This section was amended by 2003 c 53 § 63 and by 2003 c 288 § 7, each without reference to the other. Both amendments are [Title 9A RCW—page 9] 9A.20.030 Title 9A RCW: Washington Criminal Code incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Penalty assessments in addition to fine or bail forfeiture—Crime victim and witness programs in county: RCW 7.68.035. 9A.20.030 9A.20.030 Alternative to a fine—Restitution. (1) If a person has gained money or property or caused a victim to lose money or property through the commission of a crime, upon conviction thereof or when the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement, the court, in lieu of imposing the fine authorized for the offense under RCW 9A.20.020, may order the defendant to pay an amount, fixed by the court, not to exceed double the amount of the defendant’s gain or victim’s loss from the commission of a crime. Such amount may be used to provide restitution to the victim at the order of the court. It shall be the duty of the prosecuting attorney to investigate the alternative of restitution, and to recommend it to the court, when the prosecuting attorney believes that restitution is appropriate and feasible. If the court orders restitution, the court shall make a finding as to the amount of the defendant’s gain or victim’s loss from the crime, and if the record does not contain sufficient evidence to support such finding the court may conduct a hearing upon the issue. For purposes of this section, the terms "gain" or "loss" refer to the amount of money or the value of property or services gained or lost. (2) Notwithstanding any other provision of law, this section also applies to any corporation or joint stock association found guilty of any crime. [1982 1st ex.s. c 47 § 12; 1979 c 29 § 3; 1975 1st ex.s. c 260 § 9A.20.030.] Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. Restitution condition of probation: RCW 9.95.210. condition to suspending sentence: RCW 9.92.060. disposition when victim dead or not found: RCW 7.68.290. 9A.20.040 9A.20.040 Prosecutions related to felonies defined outside Title 9A RCW. In any prosecution under this title where the grade or degree of a crime is determined by reference to the degree of a felony for which the defendant or another previously had been sought, arrested, charged, convicted, or sentenced, if such felony is defined by a statute of this state which is not in Title 9A RCW, unless otherwise provided: (1) If the maximum sentence of imprisonment authorized by law upon conviction of such felony is twenty years or more, such felony shall be treated as a class A felony for purposes of this title; (2) If the maximum sentence of imprisonment authorized by law upon conviction of such felony is eight years or more, but less than twenty years, such felony shall be treated as a class B felony for purposes of this title; (3) If the maximum sentence of imprisonment authorized by law upon conviction of such felony is less than eight years, such felony shall be treated as a class C felony for purposes of this title. [1975 1st ex.s. c 260 § 9A.20.040.] [Title 9A RCW—page 10] Chapter 9A.28 Chapter 9A.28 RCW ANTICIPATORY OFFENSES Sections 9A.28.010 9A.28.020 9A.28.030 9A.28.040 Prosecutions based on felonies defined outside Title 9A RCW. Criminal attempt. Criminal solicitation. Criminal conspiracy. 9A.28.010 9A.28.010 Prosecutions based on felonies defined outside Title 9A RCW. In any prosecution under this title for attempt, solicitation, or conspiracy to commit a felony defined by a statute of this state which is not in this title, unless otherwise provided: (1) If the maximum sentence of imprisonment authorized by law upon conviction of such felony is twenty years or more, such felony shall be treated as a class A felony for purposes of this title; (2) If the maximum sentence of imprisonment authorized by law upon conviction of such felony is eight years or more but less than twenty years, such felony shall be treated as a class B felony for purposes of this title; (3) If the maximum sentence of imprisonment authorized by law upon conviction of such felony is less than eight years, such felony shall be treated as a class C felony for purposes of this title. [1975 1st ex.s. c 260 § 9A.28.010.] 9A.28.020 9A.28.020 Criminal attempt. (1) A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime. (2) If the conduct in which a person engages otherwise constitutes an attempt to commit a crime, it is no defense to a prosecution of such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission. (3) An attempt to commit a crime is a: (a) Class A felony when the crime attempted is murder in the first degree, murder in the second degree, arson in the first degree, child molestation in the first degree, indecent liberties by forcible compulsion, rape in the first degree, rape in the second degree, rape of a child in the first degree, or rape of a child in the second degree; (b) Class B felony when the crime attempted is a class A felony other than an offense listed in (a) of this subsection; (c) Class C felony when the crime attempted is a class B felony; (d) Gross misdemeanor when the crime attempted is a class C felony; (e) Misdemeanor when the crime attempted is a gross misdemeanor or misdemeanor. [2001 2nd sp.s. c 12 § 354; 1994 c 271 § 101; 1981 c 203 § 3; 1975 1st ex.s. c 260 § 9A.28.020.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Purpose—1994 c 271: "The purpose of chapter 271, Laws of 1994 is to make certain technical corrections and correct oversights discovered only after unanticipated circumstances have arisen. These changes are necessary to give full expression to the original intent of the legislature." [1994 c 271 § 1.] (2006 Ed.) Homicide Severability—1994 c 271: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1994 c 271 § 1103.] 9A.28.030 9A.28.030 Criminal solicitation. (1) A person is guilty of criminal solicitation when, with intent to promote or facilitate the commission of a crime, he offers to give or gives money or other thing of value to another to engage in specific conduct which would constitute such crime or which would establish complicity of such other person in its commission or attempted commission had such crime been attempted or committed. (2) Criminal solicitation shall be punished in the same manner as criminal attempt under RCW 9A.28.020. [1975 1st ex.s. c 260 § 9A.28.030.] 9A.32.040 9A.32.010 Homicide defined. Homicide is the killing of a human being by the act, procurement, or omission of another, death occurring at any time, and is either (1) murder, (2) homicide by abuse, (3) manslaughter, (4) excusable homicide, or (5) justifiable homicide. [1997 c 196 § 3; 1987 c 187 § 2; 1983 c 10 § 1; 1975 1st ex.s. c 260 § 9A.32.010.] 9A.32.010 Excusable homicide: RCW 9A.16.030. Justifiable homicide: RCW 9A.16.040 and 9A.16.050. 9A.32.020 Premeditation—Limitations. (1) As used in this chapter, the premeditation required in order to support a conviction of the crime of murder in the first degree must involve more than a moment in point of time. (2) Nothing contained in this chapter shall affect RCW 46.61.520. [1975 1st ex.s. c 260 § 9A.32.020.] 9A.32.020 9A.32.030 Murder in the first degree. (1) A person is guilty of murder in the first degree when: (a) With a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person; or (b) Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person; or (c) He or she commits or attempts to commit the crime of either (1) robbery in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first or second degree, or (5) kidnapping in the first or second degree, and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants: Except that in any prosecution under this subdivision (1)(c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant: (i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and (ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and (iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and (iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. (2) Murder in the first degree is a class A felony. [1990 c 200 § 1; 1975-’76 2nd ex.s. c 38 § 3; 1975 1st ex.s. c 260 § 9A.32.030.] 9A.32.030 9A.28.040 9A.28.040 Criminal conspiracy. (1) A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement. (2) It shall not be a defense to criminal conspiracy that the person or persons with whom the accused is alleged to have conspired: (a) Has not been prosecuted or convicted; or (b) Has been convicted of a different offense; or (c) Is not amenable to justice; or (d) Has been acquitted; or (e) Lacked the capacity to commit an offense; or (f) Is a law enforcement officer or other government agent who did not intend that a crime be committed. (3) Criminal conspiracy is a: (a) Class A felony when an object of the conspiratorial agreement is murder in the first degree; (b) Class B felony when an object of the conspiratorial agreement is a class A felony other than murder in the first degree; (c) Class C felony when an object of the conspiratorial agreement is a class B felony; (d) Gross misdemeanor when an object of the conspiratorial agreement is a class C felony; (e) Misdemeanor when an object of the conspiratorial agreement is a gross misdemeanor or misdemeanor. [1997 c 17 § 1; 1975 1st ex.s. c 260 § 9A.28.040.] Chapter 9A.32 Chapter 9A.32 RCW HOMICIDE Sections 9A.32.010 9A.32.020 9A.32.030 9A.32.040 9A.32.050 9A.32.055 9A.32.060 9A.32.070 Homicide defined. Premeditation—Limitations. Murder in the first degree. Murder in the first degree—Sentence. Murder in the second degree. Homicide by abuse. Manslaughter in the first degree. Manslaughter in the second degree. Capital punishment—Aggravated first degree murder: Chapter 10.95 RCW. Controlled substances homicide: RCW 69.50.415. (2006 Ed.) Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. 9A.32.040 Murder in the first degree—Sentence. Notwithstanding RCW 9A.32.030(2), any person convicted of the crime of murder in the first degree shall be sentenced to life imprisonment. [1982 c 10 § 2. Prior: (1) 1981 c 138 § 21; 1977 ex.s. c 206 § 3; 1975 1st ex.s. c 260 § 9A.32.040. (2) 1981 c 136 § 55 repealed by 1982 c 10 § 18.] 9A.32.040 [Title 9A RCW—page 11] 9A.32.050 Title 9A RCW: Washington Criminal Code Severability—1982 c 10: See note following RCW 6.13.080. Severability—1981 c 138: See RCW 10.95.900. Effective date—1981 c 136: See RCW 72.09.900. Capital punishment—Aggravated first degree murder: Chapter 10.95 RCW. 9A.32.050 9A.32.050 Murder in the second degree. (1) A person is guilty of murder in the second degree when: (a) With intent to cause the death of another person but without premeditation, he or she causes the death of such person or of a third person; or (b) He or she commits or attempts to commit any felony, including assault, other than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision (1)(b) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant: (i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and (ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and (iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and (iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. (2) Murder in the second degree is a class A felony. [2003 c 3 § 2; 1975-’76 2nd ex.s. c 38 § 4; 1975 1st ex.s. c 260 § 9A.32.050.] Findings—Intent—2003 c 3: "The legislature finds that the 1975 legislature clearly and unambiguously stated that any felony, including assault, can be a predicate offense for felony murder. The intent was evident: Punish, under the applicable murder statutes, those who commit a homicide in the course and in furtherance of a felony. This legislature reaffirms that original intent and further intends to honor and reinforce the court’s decisions over the past twenty-eight years interpreting "in furtherance of" as requiring the death to be sufficiently close in time and proximity to the predicate felony. The legislature does not agree with or accept the court’s findings of legislative intent in State v. Andress, Docket No. 71170-4 (October 24, 2002), and reasserts that assault has always been and still remains a predicate offense for felony murder in the second degree. To prevent a miscarriage of the legislature’s original intent, the legislature finds in light of State v. Andress, Docket No. 71170-4 (October 24, 2002), that it is necessary to amend RCW 9A.32.050. This amendment is intended to be curative in nature. The legislature urges the supreme court to apply this interpretation retroactively to July 1, 1976." [2003 c 3 § 1.] Effective date—2003 c 3: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [February 12, 2003]." [2003 c 3 § 3.] Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. 9A.32.055 9A.32.055 Homicide by abuse. (1) A person is guilty of homicide by abuse if, under circumstances manifesting an extreme indifference to human life, the person causes the death of a child or person under sixteen years of age, a developmentally disabled person, or a dependent adult, and the [Title 9A RCW—page 12] person has previously engaged in a pattern or practice of assault or torture of said child, person under sixteen years of age, developmentally disabled person, or dependent person. (2) As used in this section, "dependent adult" means a person who, because of physical or mental disability, or because of extreme advanced age, is dependent upon another person to provide the basic necessities of life. (3) Homicide by abuse is a class A felony. [1987 c 187 § 1.] 9A.32.060 9A.32.060 Manslaughter in the first degree. (1) A person is guilty of manslaughter in the first degree when: (a) He recklessly causes the death of another person; or (b) He intentionally and unlawfully kills an unborn quick child by inflicting any injury upon the mother of such child. (2) Manslaughter in the first degree is a class A felony. [1997 c 365 § 5; 1975 1st ex.s. c 260 § 9A.32.060.] 9A.32.070 9A.32.070 Manslaughter in the second degree. (1) A person is guilty of manslaughter in the second degree when, with criminal negligence, he causes the death of another person. (2) Manslaughter in the second degree is a class B felony. [1997 c 365 § 6; 1975 1st ex.s. c 260 § 9A.32.070.] Chapter 9A.36 Chapter 9A.36 RCW ASSAULT—PHYSICAL HARM Sections 9A.36.011 9A.36.021 9A.36.031 9A.36.041 9A.36.045 9A.36.050 9A.36.060 9A.36.070 9A.36.078 9A.36.080 9A.36.083 9A.36.090 9A.36.100 9A.36.120 9A.36.130 9A.36.140 9A.36.150 9A.36.160 9A.36.161 Assault in the first degree. Assault in the second degree. Assault in the third degree. Assault in the fourth degree. Drive-by shooting. Reckless endangerment. Promoting a suicide attempt. Coercion. Malicious harassment—Finding. Malicious harassment—Definition and criminal penalty. Malicious harassment—Civil action. Threats against governor or family. Custodial assault. Assault of a child in the first degree. Assault of a child in the second degree. Assault of a child in the third degree. Interfering with the reporting of domestic violence. Failing to summon assistance. Failing to summon assistance—Penalty. 9A.36.011 9A.36.011 Assault in the first degree. (1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm: (a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or (b) Administers, exposes, or transmits to or causes to be taken by another, poison, the human immunodeficiency virus as defined in chapter 70.24 RCW, or any other destructive or noxious substance; or (c) Assaults another and inflicts great bodily harm. (2) Assault in the first degree is a class A felony. [1997 c 196 § 1; 1986 c 257 § 4.] Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 3-10: See note following RCW 9A.04.110. (2006 Ed.) Assault—Physical Harm 9A.36.021 Assault in the second degree. (1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or (b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; or (c) Assaults another with a deadly weapon; or (d) With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or (e) With intent to commit a felony, assaults another; or (f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture. (2)(a) Except as provided in (b) of this subsection, assault in the second degree is a class B felony. (b) Assault in the second degree with a finding of sexual motivation under RCW 9.94A.835 or 13.40.135 is a class A felony. [2003 c 53 § 64; 2001 2nd sp.s. c 12 § 355; 1997 c 196 § 2. Prior: 1988 c 266 § 2; 1988 c 206 § 916; 1988 c 158 § 2; 1987 c 324 § 2; 1986 c 257 § 5.] 9A.36.021 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—1988 c 266: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1988." [1988 c 266 § 3.] Effective date—1988 c 206 §§ 916, 917: "Sections 916 and 917 of this act shall take effect July 1, 1988." [1988 c 206 § 922.] Severability—1988 c 206: See RCW 70.24.900. Effective date—1988 c 158: See note following RCW 9A.04.110. Effective date—1987 c 324: See note following RCW 9A.04.110. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 3-10: See note following RCW 9A.04.110. 9A.36.031 Assault in the third degree. (1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree: (a) With intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension or detention of himself or another person, assaults another; or (b) Assaults a person employed as a transit operator or driver, the immediate supervisor of a transit operator or driver, a mechanic, or a security officer, by a public or private transit company or a contracted transit service provider, while that person is performing his or her official duties at the time of the assault; or (c) Assaults a school bus driver, the immediate supervisor of a driver, a mechanic, or a security officer, employed by a school district transportation service or a private company under contract for transportation services with a school district, while the person is performing his or her official duties at the time of the assault; or 9A.36.045 (d) With criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm; or (e) Assaults a fire fighter or other employee of a fire department, county fire marshal’s office, county fire prevention bureau, or fire protection district who was performing his or her official duties at the time of the assault; or (f) With criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering; or (g) Assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault; or (h) Assaults a peace officer with a projectile stun gun; or (i) Assaults a nurse, physician, or health care provider who was performing his or her nursing or health care duties at the time of the assault. For purposes of this subsection: "Nurse" means a person licensed under chapter 18.79 RCW; "physician" means a person licensed under chapter 18.57 or 18.71 RCW; and "health care provider" means a person certified under chapter 18.71 or 18.73 RCW who performs emergency medical services or a person regulated under Title 18 RCW and employed by, or contracting with, a hospital licensed under chapter 70.41 RCW. (2) Assault in the third degree is a class C felony. [2005 c 458 § 1; 1999 c 328 § 1; 1998 c 94 § 1; 1997 c 172 § 1; 1996 c 266 § 1; 1990 c 236 § 1; 1989 c 169 § 1; 1988 c 158 § 3; 1986 c 257 § 6.] Effective date—1988 c 158: See note following RCW 9A.04.110. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 3-10: See note following RCW 9A.04.110. 9A.36.041 9A.36.041 Assault in the fourth degree. (1) A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another. (2) Assault in the fourth degree is a gross misdemeanor. [1987 c 188 § 2; 1986 c 257 § 7.] Effective date—1986 c 257 §§ 3-10: See note following RCW 9A.04.110. 9A.36.031 (2006 Ed.) Effective date—1987 c 188: See note following RCW 9A.36.100. Severability—1986 c 257: See note following RCW 9A.56.010. 9A.36.045 9A.36.045 Drive-by shooting. (1) A person is guilty of drive-by shooting when he or she recklessly discharges a firearm as defined in RCW 9.41.010 in a manner which creates a substantial risk of death or serious physical injury to another person and the discharge is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge. (2) A person who unlawfully discharges a firearm from a moving motor vehicle may be inferred to have engaged in reckless conduct, unless the discharge is shown by evidence satisfactory to the trier of fact to have been made without such recklessness. (3) Drive-by shooting is a class B felony. [1997 c 338 § 44; 1995 c 129 § 8 (Initiative Measure No. 159); (1994 sp.s. [Title 9A RCW—page 13] 9A.36.050 Title 9A RCW: Washington Criminal Code c 7 § 511 repealed by 1995 c 129 § 19 (Initiative Measure No. 159)); 1989 c 271 § 109.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. Finding—Intent—Severability—Effective dates—Contingent expiration date—1994 sp.s. c 7: See notes following RCW 43.70.540. Finding—Intent—1989 c 271 §§ 102, 109, and 110: See note following RCW 9A.36.050. Application—1989 c 271 §§ 101-111: See note following RCW 9.94A.510. Severability—1989 c 271: See note following RCW 9.94A.510. 9A.36.050 9A.36.050 Reckless endangerment. (1) A person is guilty of reckless endangerment when he or she recklessly engages in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person. (2) Reckless endangerment is a gross misdemeanor. [1997 c 338 § 45; 1989 c 271 § 110; 1975 1st ex.s. c 260 § 9A.36.050.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Intent—1989 c 271 §§ 102, 109, and 110: "The legislature finds that increased trafficking in illegal drugs has increased the likelihood of "drive-by shootings." It is the intent of the legislature in sections 102, 109, and 110 of this act to categorize such reckless and criminal activity into a separate crime and to provide for an appropriate punishment." [1989 c 271 § 108.] Application—1989 c 271 §§ 101-111: See note following RCW 9.94A.510. Severability—1989 c 271: See note following RCW 9.94A.510. Criminal history and driving record: RCW 46.61.513. 9A.36.060 9A.36.060 Promoting a suicide attempt. (1) A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide. (2) Promoting a suicide attempt is a class C felony. [1975 1st ex.s. c 260 § 9A.36.060.] 9A.36.070 9A.36.070 Coercion. (1) A person is guilty of coercion if by use of a threat he compels or induces a person to engage in conduct which the latter has a legal right to abstain from, or to abstain from conduct which he has a legal right to engage in. (2) "Threat" as used in this section means: (a) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or (b) Threats as defined in *RCW 9A.04.110(25) (a), (b), or (c). (3) Coercion is a gross misdemeanor. [1975 1st ex.s. c 260 § 9A.36.070.] *Reviser’s note: RCW 9A.04.110 was amended by 2005 c 458 § 3, changing subsection (25) to subsection (26). [Title 9A RCW—page 14] 9A.36.078 9A.36.078 Malicious harassment—Finding. The legislature finds that crimes and threats against persons because of their race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicaps are serious and increasing. The legislature also finds that crimes and threats are often directed against interracial couples and their children or couples of mixed religions, colors, ancestries, or national origins because of bias and bigotry against the race, color, religion, ancestry, or national origin of one person in the couple or family. The legislature finds that the state interest in preventing crimes and threats motivated by bigotry and bias goes beyond the state interest in preventing other felonies or misdemeanors such as criminal trespass, malicious mischief, assault, or other crimes that are not motivated by hatred, bigotry, and bias, and that prosecution of those other crimes inadequately protects citizens from crimes and threats motivated by bigotry and bias. Therefore, the legislature finds that protection of those citizens from threats of harm due to bias and bigotry is a compelling state interest. The legislature also finds that in many cases, certain discrete words or symbols are used to threaten the victims. Those discrete words or symbols have historically or traditionally been used to connote hatred or threats towards members of the class of which the victim or a member of the victim’s family or household is a member. In particular, the legislature finds that cross burnings historically and traditionally have been used to threaten, terrorize, intimidate, and harass African Americans and their families. Cross burnings often preceded lynchings, murders, burning of homes, and other acts of terror. Further, Nazi swastikas historically and traditionally have been used to threaten, terrorize, intimidate, and harass Jewish people and their families. Swastikas symbolize the massive destruction of the Jewish population, commonly known as the holocaust. Therefore, the legislature finds that any person who burns or attempts to burn a cross or displays a swastika on the property of the victim or burns a cross or displays a swastika as part of a series of acts directed towards a particular person, the person’s family or household members, or a particular group, knows or reasonably should know that the cross burning or swastika may create a reasonable fear of harm in the mind of the person, the person’s family and household members, or the group. The legislature also finds that a hate crime committed against a victim because of the victim’s gender may be identified in the same manner that a hate crime committed against a victim of another protected group is identified. Affirmative indications of hatred towards gender as a class is the predominant factor to consider. Other factors to consider include the perpetrator’s use of language, slurs, or symbols expressing hatred towards the victim’s gender as a class; the severity of the attack including mutilation of the victim’s sexual organs; a history of similar attacks against victims of the same gender by the perpetrator or a history of similar incidents in the same area; a lack of provocation; an absence of any other apparent motivation; and common sense. [1993 c 127 § 1.] Severability—1993 c 127: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1993 c 127 § 7.] (2006 Ed.) Assault—Physical Harm 9A.36.080 9A.36.080 Malicious harassment—Definition and criminal penalty. (1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap: (a) Causes physical injury to the victim or another person; (b) Causes physical damage to or destruction of the property of the victim or another person; or (c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a "reasonable person" is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat. (2) In any prosecution for malicious harassment, unless evidence exists which explains to the trier of fact’s satisfaction that the person did not intend to threaten the victim or victims, the trier of fact may infer that the person intended to threaten a specific victim or group of victims because of the person’s perception of the victim’s or victims’ race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap if the person commits one of the following acts: (a) Burns a cross on property of a victim who is or whom the actor perceives to be of African American heritage; or (b) Defaces property of a victim who is or whom the actor perceives to be of Jewish heritage by defacing the property with a swastika. This subsection only applies to the creation of a reasonable inference for evidentiary purposes. This subsection does not restrict the state’s ability to prosecute a person under subsection (1) of this section when the facts of a particular case do not fall within (a) or (b) of this subsection. (3) It is not a defense that the accused was mistaken that the victim was a member of a certain race, color, religion, ancestry, national origin, gender, or sexual orientation, or had a mental, physical, or sensory handicap. (4) Evidence of expressions or associations of the accused may not be introduced as substantive evidence at trial unless the evidence specifically relates to the crime charged. Nothing in this chapter shall affect the rules of evidence governing impeachment of a witness. (5) Every person who commits another crime during the commission of a crime under this section may be punished and prosecuted for the other crime separately. (6) "Sexual orientation" for the purposes of this section means heterosexuality, homosexuality, or bisexuality. (7) Malicious harassment is a class C felony. (2006 Ed.) 9A.36.100 (8) The penalties provided in this section for malicious harassment do not preclude the victims from seeking any other remedies otherwise available under law. (9) Nothing in this section confers or expands any civil rights or protections to any group or class identified under this section, beyond those rights or protections that exist under the federal or state Constitution or the civil laws of the state of Washington. [1993 c 127 § 2; 1989 c 95 § 1; 1984 c 268 § 1; 1981 c 267 § 1.] Severability—1993 c 127: See note following RCW 9A.36.078. Construction—1989 c 95: "The provisions of this act shall be liberally construed in order to effectuate its purpose." [1989 c 95 § 3.] Severability—1989 c 95: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 c 95 § 4.] Harassment: Chapters 9A.46 and 10.14 RCW. 9A.36.083 9A.36.083 Malicious harassment—Civil action. In addition to the criminal penalty provided in RCW 9A.36.080 for committing a crime of malicious harassment, the victim may bring a civil cause of action for malicious harassment against the harasser. A person may be liable to the victim of malicious harassment for actual damages, punitive damages of up to ten thousand dollars, and reasonable attorneys’ fees and costs incurred in bringing the action. [1993 c 127 § 3.] Severability—1993 c 127: See note following RCW 9A.36.078. 9A.36.090 9A.36.090 Threats against governor or family. (1) Whoever knowingly and wilfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the governor of the state or his immediate family, the governor-elect, the lieutenant governor, other officer next in the order of succession to the office of governor of the state, or the lieutenant governor-elect, or knowingly and wilfully otherwise makes any such threat against the governor, governor-elect, lieutenant governor, other officer next in the order of succession to the office of governor, or lieutenant governor-elect, shall be guilty of a class C felony. (2) As used in this section, the term "governor-elect" and "lieutenant governor-elect" means such persons as are the successful candidates for the offices of governor and lieutenant governor, respectively, as ascertained from the results of the general election. As used in this section, the phrase "other officer next in the order of succession to the office of governor" means the person other than the lieutenant governor next in order of succession to the office of governor under Article 3, section 10 of the state Constitution. (3) The Washington state patrol may investigate for violations of this section. [1982 c 185 § 1.] Reviser’s note: 1982 c 185 § 2 directed that this section constitute a new chapter in Title 9 RCW. Since this placement appears inappropriate, this section has been codified as part of chapter 9A.36 RCW. 9A.36.100 9A.36.100 Custodial assault. (1) A person is guilty of custodial assault if that person is not guilty of an assault in the first or second degree and where the person: (a) Assaults a full or part-time staff member or volunteer, any educational personnel, any personal service provider, or [Title 9A RCW—page 15] 9A.36.120 Title 9A RCW: Washington Criminal Code any vendor or agent thereof at any juvenile corrections institution or local juvenile detention facilities who was performing official duties at the time of the assault; (b) Assaults a full or part-time staff member or volunteer, any educational personnel, any personal service provider, or any vendor or agent thereof at any adult corrections institution or local adult detention facilities who was performing official duties at the time of the assault; (c)(i) Assaults a full or part-time community correction officer while the officer is performing official duties; or (ii) Assaults any other full or part-time employee who is employed in a community corrections office while the employee is performing official duties; or (d) Assaults any volunteer who was assisting a person described in (c) of this subsection at the time of the assault. (2) Custodial assault is a class C felony. [1988 c 151 § 1; 1987 c 188 § 1.] Effective date—1987 c 188: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1987." [1987 c 188 § 3.] 9A.36.120 9A.36.120 Assault of a child in the first degree. (1) A person eighteen years of age or older is guilty of the crime of assault of a child in the first degree if the child is under the age of thirteen and the person: (a) Commits the crime of assault in the first degree, as defined in RCW 9A.36.011, against the child; or (b) Intentionally assaults the child and either: (i) Recklessly inflicts great bodily harm; or (ii) Causes substantial bodily harm, and the person has previously engaged in a pattern or practice either of (A) assaulting the child which has resulted in bodily harm that is greater than transient physical pain or minor temporary marks, or (B) causing the child physical pain or agony that is equivalent to that produced by torture. (2) Assault of a child in the first degree is a class A felony. [1992 c 145 § 1.] 9A.36.130 9A.36.130 Assault of a child in the second degree. (1) A person eighteen years of age or older is guilty of the crime of assault of a child in the second degree if the child is under the age of thirteen and the person: (a) Commits the crime of assault in the second degree, as defined in RCW 9A.36.021, against a child; or (b) Intentionally assaults the child and causes bodily harm that is greater than transient physical pain or minor temporary marks, and the person has previously engaged in a pattern or practice either of (i) assaulting the child which has resulted in bodily harm that is greater than transient pain or minor temporary marks, or (ii) causing the child physical pain or agony that is equivalent to that produced by torture. (2) Assault of a child in the second degree is a class B felony. [1992 c 145 § 2.] 9A.36.140 9A.36.140 Assault of a child in the third degree. (1) A person eighteen years of age or older is guilty of the crime of assault of a child in the third degree if the child is under the age of thirteen and the person commits the crime of assault in the third degree as defined in RCW 9A.36.031(1) (d) or (f) against the child. [Title 9A RCW—page 16] (2) Assault of a child in the third degree is a class C felony. [1992 c 145 § 3.] 9A.36.150 9A.36.150 Interfering with the reporting of domestic violence. (1) A person commits the crime of interfering with the reporting of domestic violence if the person: (a) Commits a crime of domestic violence, as defined in RCW 10.99.020; and (b) Prevents or attempts to prevent the victim of or a witness to that domestic violence crime from calling a 911 emergency communication system, obtaining medical assistance, or making a report to any law enforcement official. (2) Commission of a crime of domestic violence under subsection (1) of this section is a necessary element of the crime of interfering with the reporting of domestic violence. (3) Interference with the reporting of domestic violence is a gross misdemeanor. [1996 c 248 § 3.] 9A.36.160 9A.36.160 Failing to summon assistance. A person is guilty of the crime of failing to summon assistance if: (1) He or she was present when a crime was committed against another person; and (2) He or she knows that the other person has suffered substantial bodily harm as a result of the crime committed against the other person and that the other person is in need of assistance; and (3) He or she could reasonably summon assistance for the person in need without danger to himself or herself and without interference with an important duty owed to a third party; and (4) He or she fails to summon assistance for the person in need; and (5) Another person is not summoning or has not summoned assistance for the person in need of such assistance. [2005 c 209 § 1.] 9A.36.161 9A.36.161 Failing to summon assistance—Penalty. A violation of RCW 9A.36.160 is a misdemeanor. [2005 c 209 § 2.] Chapter 9A.40 RCW KIDNAPPING, UNLAWFUL IMPRISONMENT, AND CUSTODIAL INTERFERENCE Chapter 9A.40 Sections 9A.40.010 9A.40.020 9A.40.030 9A.40.040 9A.40.060 9A.40.070 9A.40.080 9A.40.090 9A.40.100 Definitions. Kidnapping in the first degree. Kidnapping in the second degree. Unlawful imprisonment. Custodial interference in the first degree. Custodial interference in the second degree. Custodial interference—Assessment of costs—Defense— Consent defense, restricted. Luring. Trafficking. 9A.40.010 9A.40.010 Definitions. The following definitions apply in this chapter: (1) "Restrain" means to restrict a person’s movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is "without consent" if it is accomplished by (a) physical force, (2006 Ed.) Kidnapping, Unlawful Imprisonment, and Custodial Interference intimidation, or deception, or (b) any means including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and if the parent, guardian, or other person or institution having lawful control or custody of him has not acquiesced. (2) "Abduct" means to restrain a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force; (3) "Relative" means an ancestor, descendant, or sibling, including a relative of the same degree through marriage or adoption, or a spouse. [1975 1st ex.s. c 260 § 9A.40.010.] 9A.40.020 Kidnapping in the first degree. (1) A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent: (a) To hold him for ransom or reward, or as a shield or hostage; or (b) To facilitate commission of any felony or flight thereafter; or (c) To inflict bodily injury on him; or (d) To inflict extreme mental distress on him or a third person; or (e) To interfere with the performance of any governmental function. (2) Kidnapping in the first degree is a class A felony. [1975 1st ex.s. c 260 § 9A.40.020.] 9A.40.020 9A.40.030 Kidnapping in the second degree. (1) A person is guilty of kidnapping in the second degree if he or she intentionally abducts another person under circumstances not amounting to kidnapping in the first degree. (2) In any prosecution for kidnapping in the second degree, it is a defense if established by the defendant by a preponderance of the evidence that (a) the abduction does not include the use of or intent to use or threat to use deadly force, and (b) the actor is a relative of the person abducted, and (c) the actor’s sole intent is to assume custody of that person. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, any other crime. (3)(a) Except as provided in (b) of this subsection, kidnapping in the second degree is a class B felony. (b) Kidnapping in the second degree with a finding of sexual motivation under RCW 9.94A.835 or 13.40.135 is a class A felony. [2003 c 53 § 65; 2001 2nd sp.s. c 12 § 356; 1975 1st ex.s. c 260 § 9A.40.030.] 9A.40.030 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. 9A.40.040 Unlawful imprisonment. (1) A person is guilty of unlawful imprisonment if he knowingly restrains another person. (2) Unlawful imprisonment is a class C felony. [1975 1st ex.s. c 260 § 9A.40.040.] 9A.40.040 9A.40.060 Custodial interference in the first degree. (1) A relative of a child under the age of eighteen or of an 9A.40.060 (2006 Ed.) 9A.40.070 incompetent person is guilty of custodial interference in the first degree if, with the intent to deny access to the child or incompetent person by a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person, the relative takes, entices, retains, detains, or conceals the child or incompetent person from a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person and: (a) Intends to hold the child or incompetent person permanently or for a protracted period; or (b) Exposes the child or incompetent person to a substantial risk of illness or physical injury; or (c) Causes the child or incompetent person to be removed from the state of usual residence; or (d) Retains, detains, or conceals the child or incompetent person in another state after expiration of any authorized visitation period with intent to intimidate or harass a parent, guardian, institution, agency, or other person having lawful right to physical custody or to prevent a parent, guardian, institution, agency, or other person with lawful right to physical custody from regaining custody. (2) A parent of a child is guilty of custodial interference in the first degree if the parent takes, entices, retains, detains, or conceals the child, with the intent to deny access, from the other parent having the lawful right to time with the child pursuant to a court-ordered parenting plan, and: (a) Intends to hold the child permanently or for a protracted period; or (b) Exposes the child to a substantial risk of illness or physical injury; or (c) Causes the child to be removed from the state of usual residence. (3) A parent or other person acting under the directions of the parent is guilty of custodial interference in the first degree if the parent or other person intentionally takes, entices, retains, or conceals a child, under the age of eighteen years and for whom no lawful custody order or parenting plan has been entered by a court of competent jurisdiction, from the other parent with intent to deprive the other parent from access to the child permanently or for a protracted period. (4) Custodial interference in the first degree is a class C felony. [1998 c 55 § 1; 1994 c 162 § 1; 1984 c 95 § 1.] Severability—1984 c 95: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1984 c 95 § 8.] 9A.40.070 9A.40.070 Custodial interference in the second degree. (1) A relative of a person is guilty of custodial interference in the second degree if, with the intent to deny access to such person by a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person, the relative takes, entices, retains, detains, or conceals the person from a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person. This subsection shall not apply to a parent’s noncompliance with a court-ordered parenting plan. (2) A parent of a child is guilty of custodial interference in the second degree if: (a) The parent takes, entices, retains, detains, or conceals the child, with the intent to deny access, from the other parent having the lawful right to time with the [Title 9A RCW—page 17] 9A.40.080 Title 9A RCW: Washington Criminal Code child pursuant to a court-ordered parenting plan; or (b) the parent has not complied with the residential provisions of a court-ordered parenting plan after a finding of contempt under RCW 26.09.160(3); or (c) if the court finds that the parent has engaged in a pattern of willful violations of the court-ordered residential provisions. (3) Nothing in subsection (2)(b) of this section prohibits conviction of custodial interference in the second degree under subsection (2)(a) or (c) of this section in absence of findings of contempt. (4)(a) The first conviction of custodial interference in the second degree is a gross misdemeanor. (b) The second or subsequent conviction of custodial interference in the second degree is a class C felony. [2003 c 53 § 66; 1989 c 318 § 2; 1984 c 95 § 2.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1989 c 318: See note following RCW 26.09.160. Severability—1984 c 95: See note following RCW 9A.40.060. 9A.40.080 9A.40.080 Custodial interference—Assessment of costs—Defense—Consent defense, restricted. (1) Any reasonable expenses incurred in locating or returning a child or incompetent person shall be assessed against a defendant convicted under RCW 9A.40.060 or 9A.40.070. (2) In any prosecution of custodial interference in the first or second degree, it is a complete defense, if established by the defendant by a preponderance of the evidence, that: (a) The defendant’s purpose was to protect the child, incompetent person, or himself or herself from imminent physical harm, that the belief in the existence of the imminent physical harm was reasonable, and that the defendant sought the assistance of the police, sheriff’s office, protective agencies, or the court of any state before committing the acts giving rise to the charges or within a reasonable time thereafter; (b) The complainant had, prior to the defendant committing the acts giving rise to the crime, for a protracted period of time, failed to exercise his or her rights to physical custody or access to the child under a court-ordered parenting plan or order granting visitation rights, provided that such failure was not the direct result of the defendant’s denial of access to such person; (c) The acts giving rise to the charges were consented to by the complainant; or (d) The offender, after providing or making a good faith effort to provide notice to the person entitled to access to the child, failed to provide access to the child due to reasons that a reasonable person would believe were directly related to the welfare of the child, and allowed access to the child in accordance with the court order within a reasonable period of time. The burden of proof that the denial of access was reasonable is upon the person denying access to the child. (3) Consent of a child less than sixteen years of age or of an incompetent person does not constitute a defense to an action under RCW 9A.40.060 or 9A.40.070. [1989 c 318 § 5; 1984 c 95 § 3.] Severability—1989 c 318: See note following RCW 26.09.160. Severability—1984 c 95: See note following RCW 9A.40.060. Child custody, action by relative: RCW 26.09.255. [Title 9A RCW—page 18] 9A.40.090 Luring. A person commits the crime of luring if the person: (1)(a) Orders, lures, or attempts to lure a minor or a person with a developmental disability into any area or structure that is obscured from or inaccessible to the public or into a motor vehicle; (b) Does not have the consent of the minor’s parent or guardian or of the guardian of the person with a developmental disability; and (c) Is unknown to the child or developmentally disabled person. (2) It is a defense to luring, which the defendant must prove by a preponderance of the evidence, that the defendant’s actions were reasonable under the circumstances and the defendant did not have any intent to harm the health, safety, or welfare of the minor or the person with the developmental disability. (3) For purposes of this section: (a) "Minor" means a person under the age of sixteen; (b) "Person with a developmental disability" means a person with a developmental disability as defined in RCW 71A.10.020. (4) Luring is a class C felony. [1995 c 156 § 1; 1993 c 509 § 1.] 9A.40.090 9A.40.100 Trafficking. (1)(a) A person is guilty of trafficking in the first degree when: (i) Such person: (A) Recruits, harbors, transports, provides, or obtains by any means another person knowing that force, fraud, or coercion as defined in RCW 9A.36.070 will be used to cause the person to engage in forced labor or involuntary servitude; or (B) Benefits financially or by receiving anything of value from participation in a venture that has engaged in acts set forth in (a)(i)(A) of this subsection; and (ii) The acts or venture set forth in (a)(i) of this subsection: (A) Involve committing or attempting to commit kidnapping; (B) Involve a finding of sexual motivation under RCW 9.94A.835; or (C) Result in a death. (b) Trafficking in the first degree is a class A felony. (2)(a) A person is guilty of trafficking in the second degree when such person: (i) Recruits, harbors, transports, provides, or obtains by any means another person knowing that force, fraud, or coercion as defined in RCW 9A.36.070 will be used to cause the person to engage in forced labor or involuntary servitude; or (ii) Benefits financially or by receiving anything of value from participation in a venture that has engaged in acts set forth in (a)(i) of this subsection. (b) Trafficking in the second degree is a class A felony. [2003 c 267 § 1.] 9A.40.100 Chapter 9A.42 Chapter 9A.42 RCW CRIMINAL MISTREATMENT Sections 9A.42.005 Findings and intent—Christian Science treatment—Rules of evidence. (2006 Ed.) Criminal Mistreatment 9A.42.010 9A.42.020 9A.42.030 9A.42.035 9A.42.037 9A.42.039 9A.42.040 9A.42.045 9A.42.050 9A.42.060 9A.42.070 9A.42.080 9A.42.090 9A.42.100 9A.42.110 Definitions. Criminal mistreatment in the first degree. Criminal mistreatment in the second degree. Criminal mistreatment in the third degree. Criminal mistreatment in the fourth degree. Arresting officer, notification by. Withdrawal of life support systems. Palliative care. Defense of financial inability. Abandonment of a dependent person in the first degree— Exception. Abandonment of a dependent person in the second degree— Exception. Abandonment of a dependent person in the third degree— Exception. Abandonment of a dependent person—Defense. Endangerment with a controlled substance. Leaving a child in the care of a sex offender. 9A.42.005 Findings and intent—Christian Science treatment—Rules of evidence. The legislature finds that there is a significant need to protect children and dependent persons, including frail elder and vulnerable adults, from abuse and neglect by their parents, by persons entrusted with their physical custody, or by persons employed to provide them with the basic necessities of life. The legislature further finds that such abuse and neglect often takes the forms of either withholding from them the basic necessities of life, including food, water, shelter, clothing, and health care, or abandoning them, or both. Therefore, it is the intent of the legislature that criminal penalties be imposed on those guilty of such abuse or neglect. It is the intent of the legislature that a person who, in good faith, is furnished Christian Science treatment by a duly accredited Christian Science practitioner in lieu of medical care is not considered deprived of medically necessary health care or abandoned. Prosecutions under this chapter shall be consistent with the rules of evidence, including hearsay, under law. [1997 c 392 § 507.] 9A.42.005 Short title—Findings—Construction—Conflict with federal requirements—Part headings and captions not law—1997 c 392: See notes following RCW 74.39A.009. 9A.42.010 Definitions. As used in this chapter: (1) "Basic necessities of life" means food, water, shelter, clothing, and medically necessary health care, including but not limited to health-related treatment or activities, hygiene, oxygen, and medication. (2)(a) "Bodily injury" means physical pain or injury, illness, or an impairment of physical condition; (b) "Substantial bodily harm" means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part; (c) "Great bodily harm" means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily part or organ. (3) "Child" means a person under eighteen years of age. (4) "Dependent person" means a person who, because of physical or mental disability, or because of extreme advanced age, is dependent upon another person to provide the basic necessities of life. A resident of a nursing home, as defined in RCW 18.51.010, a resident of an adult family home, as defined in RCW 70.128.010, and a frail elder or vulnerable 9A.42.010 (2006 Ed.) 9A.42.030 adult, as defined in RCW 74.34.020(13), is presumed to be a dependent person for purposes of this chapter. (5) "Employed" means hired by a dependent person, another person acting on behalf of a dependent person, or by an organization or governmental entity, to provide to a dependent person any of the basic necessities of life. A person may be "employed" regardless of whether the person is paid for the services or, if paid, regardless of who pays for the person’s services. (6) "Parent" has its ordinary meaning and also includes a guardian and the authorized agent of a parent or guardian. (7) "Abandons" means leaving a child or other dependent person without the means or ability to obtain one or more of the basic necessities of life. (8) "Good samaritan" means any individual or group of individuals who: (a) Is not related to the dependent person; (b) voluntarily provides assistance or services of any type to the dependent person; (c) is not paid, given gifts, or made a beneficiary of any assets valued at five hundred dollars or more, for any reason, by the dependent person, the dependent person’s family, or the dependent person’s estate; and (d) does not commit or attempt to commit any other crime against the dependent person or the dependent person’s estate. [2006 c 228 § 1; 1997 c 392 § 508; 1996 c 302 § 1; 1986 c 250 § 1.] Short title—Findings—Construction—Conflict with federal requirements—Part headings and captions not law—1997 c 392: See notes following RCW 74.39A.009. Severability—1996 c 302: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1996 c 302 § 7.] 9A.42.020 9A.42.020 Criminal mistreatment in the first degree. (1) A parent of a child, the person entrusted with the physical custody of a child or dependent person, a person who has assumed the responsibility to provide to a dependent person the basic necessities of life, or a person employed to provide to the child or dependent person the basic necessities of life is guilty of criminal mistreatment in the first degree if he or she recklessly, as defined in RCW 9A.08.010, causes great bodily harm to a child or dependent person by withholding any of the basic necessities of life. (2) Criminal mistreatment in the first degree is a class B felony. [2006 c 228 § 2; 1997 c 392 § 510; 1986 c 250 § 2.] Short title—Findings—Construction—Conflict with federal requirements—Part headings and captions not law—1997 c 392: See notes following RCW 74.39A.009. 9A.42.030 9A.42.030 Criminal mistreatment in the second degree. (1) A parent of a child, the person entrusted with the physical custody of a child or dependent person, a person who has assumed the responsibility to provide to a dependent person the basic necessities of life, or a person employed to provide to the child or dependent person the basic necessities of life is guilty of criminal mistreatment in the second degree if he or she recklessly, as defined in RCW 9A.08.010, either (a) creates an imminent and substantial risk of death or great bodily harm, or (b) causes substantial bodily harm by withholding any of the basic necessities of life. (2) Criminal mistreatment in the second degree is a class C felony. [2006 c 228 § 3; 1997 c 392 § 511; 1986 c 250 § 3.] [Title 9A RCW—page 19] 9A.42.035 Title 9A RCW: Washington Criminal Code Short title—Findings—Construction—Conflict with federal requirements—Part headings and captions not law—1997 c 392: See notes following RCW 74.39A.009. that improved coordination between the department of social and health services and public safety agencies at an earlier point will lead to better treatment of children and families and will reduce the likelihood of serious harm." [2002 c 219 § 1.] 9A.42.035 9A.42.035 Criminal mistreatment in the third degree. (1) A person is guilty of the crime of criminal mistreatment in the third degree if the person is the parent of a child, is a person entrusted with the physical custody of a child or other dependent person, is a person who has assumed the responsibility to provide to a dependent person the basic necessities of life, or is a person employed to provide to the child or dependent person the basic necessities of life, and either: (a) With criminal negligence, creates an imminent and substantial risk of substantial bodily harm to a child or dependent person by withholding any of the basic necessities of life; or (b) With criminal negligence, causes substantial bodily harm to a child or dependent person by withholding any of the basic necessities of life. (2) For purposes of this section, "a person who has assumed the responsibility to provide to a dependent person the basic necessities of life" means a person other than: (a) A government agency that regularly provides assistance or services to dependent persons, including but not limited to the department of social and health services; or (b) a good samaritan as defined in RCW 9A.42.010. (3) Criminal mistreatment in the third degree is a gross misdemeanor. [2006 c 228 § 4; 2000 c 76 § 1.] 9A.42.037 9A.42.037 Criminal mistreatment in the fourth degree. (1) A person is guilty of the crime of criminal mistreatment in the fourth degree if the person is the parent of a child, is a person entrusted with the physical custody of a child or other dependent person, is a person who has assumed the responsibility to provide to a dependent person the basic necessities of life, or is a person employed to provide to the child or dependent person the basic necessities of life, and either: (a) With criminal negligence, creates an imminent and substantial risk of bodily injury to a child or dependent person by withholding any of the basic necessities of life; or (b) With criminal negligence, causes bodily injury or extreme emotional distress manifested by more than transient physical symptoms to a child or dependent person by withholding the basic necessities of life. (2) For purposes of this section, "a person who has assumed the responsibility to provide to a dependent person the basic necessities of life" means a person other than: (a) A government agency that regularly provides assistance or services to dependent persons, including but not limited to the department of social and health services; or (b) a good samaritan as defined in RCW 9A.42.010. (3) Criminal mistreatment in the fourth degree is a misdemeanor. [2006 c 228 § 5; 2002 c 219 § 2.] Intent—Finding—2002 c 219: "The legislature recognizes that responses by the department of social and health services and public safety agencies have varied between jurisdictions when allegations of withholding of the basic necessities of life are made. The legislature intends to improve the capacity of the department of social and health services and public safety agencies to respond to situations where the basic necessities of life are withheld by allowing an earlier intervention in such cases. The legislature finds [Title 9A RCW—page 20] 9A.42.039 9A.42.039 Arresting officer, notification by. (1) When a law enforcement officer arrests a person for criminal mistreatment of a child, the officer must notify child protective services. (2) When a law enforcement officer arrests a person for criminal mistreatment of a dependent person other than a child, the officer must notify adult protective services. [2002 c 219 § 5.] Intent—Finding—2002 c 219: See note following RCW 9A.42.037. 9A.42.040 9A.42.040 Withdrawal of life support systems. RCW 9A.42.020, 9A.42.030, 9A.42.035, and 9A.42.037 do not apply to decisions to withdraw life support systems made in accordance with chapter 7.70 or 70.122 RCW by the dependent person, his or her legal surrogate, or others with a legal duty to care for the dependent person. [2002 c 219 § 3; 2000 c 76 § 2; 1986 c 250 § 4.] Intent—Finding—2002 c 219: See note following RCW 9A.42.037. 9A.42.045 9A.42.045 Palliative care. RCW 9A.42.020, 9A.42.030, 9A.42.035, and 9A.42.037 do not apply when a terminally ill or permanently unconscious person or his or her legal surrogate, as set forth in chapter 7.70 RCW, requests, and the person receives, palliative care from a licensed home health agency, hospice agency, nursing home, or hospital providing care under the medical direction of a physician. As used in this section, the terms "terminally ill" and "permanently unconscious" have the same meaning as "terminal condition" and "permanent unconscious condition" in chapter 70.122 RCW. [2002 c 219 § 4; 2000 c 76 § 3; 1997 c 392 § 512.] Intent—Finding—2002 c 219: See note following RCW 9A.42.037. Short title—Findings—Construction—Conflict with federal requirements—Part headings and captions not law—1997 c 392: See notes following RCW 74.39A.009. 9A.42.050 9A.42.050 Defense of financial inability. In any prosecution for criminal mistreatment, it shall be a defense that the withholding of the basic necessities of life is due to financial inability only if the person charged has made a reasonable effort to obtain adequate assistance. This defense is available to a person employed to provide the basic necessities of life only when the agreed-upon payment has not been made. [1997 c 392 § 509; 1986 c 250 § 5.] Short title—Findings—Construction—Conflict with federal requirements—Part headings and captions not law—1997 c 392: See notes following RCW 74.39A.009. 9A.42.060 9A.42.060 Abandonment of a dependent person in the first degree—Exception. (1) Except as provided in subsection (2) of this section, a person is guilty of the crime of abandonment of a dependent person in the first degree if: (a) The person is the parent of a child, a person entrusted with the physical custody of a child or other dependent person, a person who has assumed the responsibility to provide to a dependent person the basic necessities of life, or a person (2006 Ed.) Criminal Mistreatment employed to provide to the child or other dependent person any of the basic necessities of life; (b) The person recklessly abandons the child or other dependent person; and (c) As a result of being abandoned, the child or other dependent person suffers great bodily harm. (2) A parent of a newborn who transfers the newborn to a qualified person at an appropriate location pursuant to RCW 13.34.360 is not subject to criminal liability under this section. (3) Abandonment of a dependent person in the first degree is a class B felony. [2006 c 228 § 6; 2002 c 331 § 3; 1996 c 302 § 2.] Intent—Effective date—2002 c 331: See notes following RCW 13.34.360. Severability—1996 c 302: See note following RCW 9A.42.010. 9A.42.070 9A.42.070 Abandonment of a dependent person in the second degree—Exception. (1) Except as provided in subsection (2) of this section, a person is guilty of the crime of abandonment of a dependent person in the second degree if: (a) The person is the parent of a child, a person entrusted with the physical custody of a child or other dependent person, a person who has assumed the responsibility to provide to a dependent person the basic necessities of life, or a person employed to provide to the child or other dependent person any of the basic necessities of life; and (b) The person recklessly abandons the child or other dependent person; and: (i) As a result of being abandoned, the child or other dependent person suffers substantial bodily harm; or (ii) Abandoning the child or other dependent person creates an imminent and substantial risk that the child or other dependent person will die or suffer great bodily harm. (2) A parent of a newborn who transfers the newborn to a qualified person at an appropriate location pursuant to RCW 13.34.360 is not subject to criminal liability under this section. (3) Abandonment of a dependent person in the second degree is a class C felony. [2006 c 228 § 7; 2002 c 331 § 4; 1996 c 302 § 3.] Intent—Effective date—2002 c 331: See notes following RCW 13.34.360. 9A.42.110 (ii) Abandoning the child or other dependent person creates an imminent and substantial risk that the child or other person will suffer substantial bodily harm. (2) A parent of a newborn who transfers the newborn to a qualified person at an appropriate location pursuant to RCW 13.34.360 is not subject to criminal liability under this section. (3) Abandonment of a dependent person in the third degree is a gross misdemeanor. [2006 c 228 § 8; 2002 c 331 § 5; 1996 c 302 § 4.] Intent—Effective date—2002 c 331: See notes following RCW 13.34.360. Severability—1996 c 302: See note following RCW 9A.42.010. 9A.42.090 9A.42.090 Abandonment of a dependent person— Defense. It is an affirmative defense to the charge of abandonment of a dependent person, that the person employed to provide any of the basic necessities of life to the child or other dependent person, gave reasonable notice of termination of services and the services were not terminated until after the termination date specified in the notice. The notice must be given to the child or dependent person, and to other persons or organizations that have requested notice of termination of services furnished to the child or other dependent person. The department of social and health services and the department of health shall adopt rules establishing procedures for termination of services to children and other dependent persons. [1996 c 302 § 5.] Severability—1996 c 302: See note following RCW 9A.42.010. 9A.42.100 9A.42.100 Endangerment with a controlled substance. A person is guilty of the crime of endangerment with a controlled substance if the person knowingly or intentionally permits a dependent child or dependent adult to be exposed to, ingest, inhale, or have contact with methamphetamine or ephedrine, pseudoephedrine, or anhydrous ammonia, including their salts, isomers, and salts of isomers, that are being used in the manufacture of methamphetamine, including its salts, isomers, and salts of isomers. Endangerment with a controlled substance is a class B felony. [2005 c 218 § 4; 2002 c 229 § 1.] Effective date—2002 c 229: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 28, 2002]." [2002 c 229 § 4.] Severability—1996 c 302: See note following RCW 9A.42.010. 9A.42.110 9A.42.080 9A.42.080 Abandonment of a dependent person in the third degree—Exception. (1) Except as provided in subsection (2) of this section, a person is guilty of the crime of abandonment of a dependent person in the third degree if: (a) The person is the parent of a child, a person entrusted with the physical custody of a child or other dependent person, a person who has assumed the responsibility to provide to a dependent person the basic necessities of life, or a person employed to provide to the child or dependent person any of the basic necessities of life; and (b) The person recklessly abandons the child or other dependent person; and: (i) As a result of being abandoned, the child or other dependent person suffers bodily harm; or (2006 Ed.) 9A.42.110 Leaving a child in the care of a sex offender. (1) A person is guilty of the crime of leaving a child in the care of a sex offender if the person is (a) the parent of a child; (b) entrusted with the physical custody of a child; or (c) employed to provide to the child the basic necessities of life, and leaves the child in the care or custody of another person who is not a parent, guardian, or lawful custodian of the child, knowing that the person is registered or required to register as a sex offender under the laws of this state, or a law or ordinance in another jurisdiction with similar requirements, because of a sex offense against a child. (2) It is an affirmative defense to the charge of leaving a child in the care of a sex offender under this section, that the defendant must prove by a preponderance of the evidence, that a court has entered an order allowing the offender to have [Title 9A RCW—page 21] Chapter 9A.44 Title 9A RCW: Washington Criminal Code unsupervised contact with children, or that the offender is allowed to have unsupervised contact with the child in question under a family reunification plan, which has been approved by a court, the department of corrections, or the department of social and health services in accordance with department policies. (3) Leaving a child in the care of a sex offender is a misdemeanor. [2002 c 170 § 1.] Chapter 9A.44 Chapter 9A.44 RCW SEX OFFENSES Sections 9A.44.010 9A.44.020 9A.44.030 9A.44.040 9A.44.045 9A.44.050 9A.44.060 9A.44.073 9A.44.076 9A.44.079 9A.44.083 9A.44.086 9A.44.089 9A.44.093 9A.44.096 9A.44.100 9A.44.105 9A.44.115 9A.44.120 9A.44.130 9A.44.135 9A.44.140 9A.44.145 9A.44.150 9A.44.160 9A.44.170 9A.44.180 9A.44.190 9A.44.193 9A.44.196 9A.44.900 9A.44.901 9A.44.902 9A.44.903 Definitions. Testimony—Evidence—Written motion—Admissibility. Defenses to prosecution under this chapter. Rape in the first degree. First degree rape—Penalties. Rape in the second degree. Rape in the third degree. Rape of a child in the first degree. Rape of a child in the second degree. Rape of a child in the third degree. Child molestation in the first degree. Child molestation in the second degree. Child molestation in the third degree. Sexual misconduct with a minor in the first degree. Sexual misconduct with a minor in the second degree. Indecent liberties. Sexually violating human remains. Voyeurism. Admissibility of child’s statement—Conditions. Registration of sex offenders and kidnapping offenders—Procedures—Definition—Penalties. Address verification. Registration of sex offenders and kidnapping offenders—End of duty to register—Expiration of subsection. Notification to offenders of changed requirements. Testimony of child by closed-circuit television. Custodial sexual misconduct in the first degree. Custodial sexual misconduct in the second degree. Custodial sexual misconduct—Defense. Criminal trespass against children—Definitions. Criminal trespass against children—Covered entities. Criminal trespass against children. Decodifications and additions to this chapter. Construction—Sections decodified and added to this chapter. Effective date—1979 ex.s. c 244. Section captions—1988 c 145. Council for the prevention of child abuse and neglect: Chapter 43.121 RCW. Witnesses: Rules of court: ER 601 through 615. 9A.44.010 Definitions. As used in this chapter: (1) "Sexual intercourse" (a) has its ordinary meaning and occurs upon any penetration, however slight, and (b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and (c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex. (2) "Sexual contact" means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party. (3) "Married" means one who is legally married to another, but does not include a person who is living separate 9A.44.010 [Title 9A RCW—page 22] and apart from his or her spouse and who has filed in an appropriate court for legal separation or for dissolution of his or her marriage. (4) "Mental incapacity" is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause. (5) "Physically helpless" means a person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act. (6) "Forcible compulsion" means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped. (7) "Consent" means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact. (8) "Significant relationship" means a situation in which the perpetrator is: (a) A person who undertakes the responsibility, professionally or voluntarily, to provide education, health, welfare, or organized recreational activities principally for minors; (b) A person who in the course of his or her employment supervises minors; or (c) A person who provides welfare, health or residential assistance, personal care, or organized recreational activities to frail elders or vulnerable adults, including a provider, employee, temporary employee, volunteer, or independent contractor who supplies services to long-term care facilities licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW, but not including a consensual sexual partner. (9) "Abuse of a supervisory position" means: (a) To use a direct or indirect threat or promise to exercise authority to the detriment or benefit of a minor; or (b) To exploit a significant relationship in order to obtain the consent of a minor. (10) "Developmentally disabled," for purposes of RCW 9A.44.050(1)(c) and 9A.44.100(1)(c), means a person with a developmental disability as defined in RCW 71A.10.020. (11) "Person with supervisory authority," for purposes of RCW 9A.44.050(1) (c) or (e) and 9A.44.100(1) (c) or (e), means any proprietor or employee of any public or private care or treatment facility who directly supervises developmentally disabled, mentally disordered, or chemically dependent persons at the facility. (12) "Mentally disordered person" for the purposes of RCW 9A.44.050(1)(e) and 9A.44.100(1)(e) means a person with a "mental disorder" as defined in RCW 71.05.020. (13) "Chemically dependent person" for purposes of RCW 9A.44.050(1)(e) and 9A.44.100(1)(e) means a person who is "chemically dependent" as defined in RCW 70.96A.020(4). (14) "Health care provider" for purposes of RCW 9A.44.050 and 9A.44.100 means a person who is, holds himself or herself out to be, or provides services as if he or she (2006 Ed.) Sex Offenses were: (a) A member of a health care profession under chapter 18.130 RCW; or (b) registered under chapter 18.19 RCW or licensed under chapter 18.225 RCW, regardless of whether the health care provider is licensed, certified, or registered by the state. (15) "Treatment" for purposes of RCW 9A.44.050 and 9A.44.100 means the active delivery of professional services by a health care provider which the health care provider holds himself or herself out to be qualified to provide. (16) "Frail elder or vulnerable adult" means a person sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself. "Frail elder or vulnerable adult" also includes a person found incapacitated under chapter 11.88 RCW, a person over eighteen years of age who has a developmental disability under chapter 71A.10 RCW, a person admitted to a long-term care facility that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and a person receiving services from a home health, hospice, or home care agency licensed or required to be licensed under chapter 70.127 RCW. [2005 c 262 § 1; 2001 c 251 § 28. Prior: 1997 c 392 § 513; 1997 c 112 § 37; 1994 c 271 § 302; 1993 c 477 § 1; 1988 c 146 § 3; 1988 c 145 § 1; 1981 c 123 § 1; 1975 1st ex.s. c 14 § 1. Formerly RCW 9.79.140.] Severability—2001 c 251: See RCW 18.225.900. Short title—Findings—Construction—Conflict with federal requirements—Part headings and captions not law—1997 c 392: See notes following RCW 74.39A.009. Intent—1994 c 271: "The legislature hereby reaffirms its desire to protect the children of Washington from sexual abuse and further reaffirms its condemnation of child sexual abuse that takes the form of causing one child to engage in sexual contact with another child for the sexual gratification of the one causing such activities to take place." [1994 c 271 § 301.] Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Severability—Effective dates—1988 c 146: See notes following RCW 9A.44.050. Effective date—1988 c 145: "This act shall take effect July 1, 1988." [1988 c 145 § 26.] Savings—Application—1988 c 145: "This act shall not have the effect of terminating or in any way modifying any liability, civil or criminal, which is already in existence on July 1, 1988, and shall apply only to offenses committed on or after July 1, 1988." [1988 c 145 § 25.] 9A.44.020 9A.44.020 Testimony—Evidence—Written motion—Admissibility. (1) In order to convict a person of any crime defined in this chapter it shall not be necessary that the testimony of the alleged victim be corroborated. (2) Evidence of the victim’s past sexual behavior including but not limited to the victim’s marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim’s consent except as provided in subsection (3) of this section, but when the perpetrator and the victim have engaged in sexual intercourse with each other in the past, and when the past behavior is material to the issue of consent, evidence concerning the past behavior between the perpetrator and the victim may be admissible on the issue of consent to the offense. (3) In any prosecution for the crime of rape or for an attempt to commit, or an assault with an intent to commit any (2006 Ed.) 9A.44.030 such crime evidence of the victim’s past sexual behavior including but not limited to the victim’s marital behavior, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is not admissible if offered to attack the credibility of the victim and is admissible on the issue of consent only pursuant to the following procedure: (a) A written pretrial motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the past sexual behavior of the victim proposed to be presented and its relevancy on the issue of the consent of the victim. (b) The written motion shall be accompanied by an affidavit or affidavits in which the offer of proof shall be stated. (c) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and the hearing shall be closed except to the necessary witnesses, the defendant, counsel, and those who have a direct interest in the case or in the work of the court. (d) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered by the defendant regarding the past sexual behavior of the victim is relevant to the issue of the victim’s consent; is not inadmissible because its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice; and that its exclusion would result in denial of substantial justice to the defendant; the court shall make an order stating what evidence may be introduced by the defendant, which order may include the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court. (4) Nothing in this section shall be construed to prohibit cross-examination of the victim on the issue of past sexual behavior when the prosecution presents evidence in its case in chief tending to prove the nature of the victim’s past sexual behavior, but the court may require a hearing pursuant to subsection (3) of this section concerning such evidence. [1975 1st ex.s. c 14 § 2. Formerly RCW 9.79.150.] 9A.44.030 9A.44.030 Defenses to prosecution under this chapter. (1) In any prosecution under this chapter in which lack of consent is based solely upon the victim’s mental incapacity or upon the victim’s being physically helpless, it is a defense which the defendant must prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. (2) In any prosecution under this chapter in which the offense or degree of the offense depends on the victim’s age, it is no defense that the perpetrator did not know the victim’s age, or that the perpetrator believed the victim to be older, as the case may be: PROVIDED, That it is a defense which the defendant must prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed the alleged victim to be the age identified in subsection (3) of this section based upon declarations as to age by the alleged victim. (3) The defense afforded by subsection (2) of this section requires that for the following defendants, the reasonable belief be as indicated: [Title 9A RCW—page 23] 9A.44.040 Title 9A RCW: Washington Criminal Code (a) For a defendant charged with rape of a child in the first degree, that the victim was at least twelve, or was less than twenty-four months younger than the defendant; (b) For a defendant charged with rape of a child in the second degree, that the victim was at least fourteen, or was less than thirty-six months younger than the defendant; (c) For a defendant charged with rape of a child in the third degree, that the victim was at least sixteen, or was less than forty-eight months younger than the defendant; (d) For a defendant charged with sexual misconduct with a minor in the first degree, that the victim was at least eighteen, or was less than sixty months younger than the defendant; (e) For a defendant charged with child molestation in the first degree, that the victim was at least twelve, or was less than thirty-six months younger than the defendant; (f) For a defendant charged with child molestation in the second degree, that the victim was at least fourteen, or was less than thirty-six months younger than the defendant; (g) For a defendant charged with child molestation in the third degree, that the victim was at least sixteen, or was less than thirty-six months younger than the defendant; (h) For a defendant charged with sexual misconduct with a minor in the second degree, that the victim was at least eighteen, or was less than sixty months younger than the defendant. [1988 c 145 § 20; 1975 1st ex.s. c 14 § 3. Formerly RCW 9.79.160.] Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. 9A.44.040 9A.44.040 Rape in the first degree. (1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory: (a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or (b) Kidnaps the victim; or (c) Inflicts serious physical injury, including but not limited to physical injury which renders the victim unconscious; or (d) Feloniously enters into the building or vehicle where the victim is situated. (2) Rape in the first degree is a class A felony. [1998 c 242 § 1. Prior: 1983 c 118 § 1; 1983 c 73 § 1; 1982 c 192 § 11; 1982 c 10 § 3; prior: (1) 1981 c 137 § 36; 1979 ex.s. c 244 § 1; 1975 1st ex.s. c 247 § 1; 1975 1st ex.s. c 14 § 4. (2) 1981 c 136 § 57 repealed by 1982 c 10 § 18. Formerly RCW 9.79.170.] Severability—1983 c 73: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1983 c 73 § 2.] Severability—1982 c 10: See note following RCW 6.13.080. Severability—1981 c 137: See RCW 9.94A.910. Effective date—1981 c 136: See RCW 72.09.900. 9A.44.045 9A.44.045 First degree rape—Penalties. No person convicted of rape in the first degree shall be granted a deferred or suspended sentence except for the purpose of commitment to an inpatient treatment facility: PROVIDED, That every person convicted of rape in the first degree shall [Title 9A RCW—page 24] be confined for a minimum of three years: PROVIDED FURTHER, That the *board of prison terms and paroles shall have authority to set a period of confinement greater than three years but shall never reduce the minimum three-year period of confinement; nor shall the board release the convicted person during the first three years of confinement as a result of any type of good time calculation; nor shall the department of corrections permit the convicted person to participate in any work release program or furlough program during the first three years of confinement. This section applies only to offenses committed prior to July 1, 1984. [1982 c 192 § 12.] *Reviser’s note: The "board of prison terms and paroles" was redesignated the "indeterminate sentence review board" by 1986 c 224, effective July 1, 1986. 9A.44.050 Rape in the second degree. (1) A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person: (a) By forcible compulsion; (b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated; (c) When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim; (d) When the perpetrator is a health care provider, the victim is a client or patient, and the sexual intercourse occurs during a treatment session, consultation, interview, or examination. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual intercourse with the knowledge that the sexual intercourse was not for the purpose of treatment; (e) When the victim is a resident of a facility for mentally disordered or chemically dependent persons and the perpetrator is a person who is not married to the victim and has supervisory authority over the victim; or (f) When the victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who has a significant relationship with the victim. (2) Rape in the second degree is a class A felony. [1997 c 392 § 514; 1993 c 477 § 2; 1990 c 3 § 901; 1988 c 146 § 1; 1983 c 118 § 2; 1979 ex.s. c 244 § 2; 1975 1st ex.s. c 14 § 5. Formerly RCW 9.79.180.] 9A.44.050 Short title—Findings—Construction—Conflict with federal requirements—Part headings and captions not law—1997 c 392: See notes following RCW 74.39A.009. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Severability—1988 c 146: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1988 c 146 § 5.] Effective dates—1988 c 146: "Section 4 of this act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately [March 21, 1988]. The remainder of this act shall take effect July 1, 1988." [1988 c 146 § 6.] 9A.44.060 Rape in the third degree. (1) A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such per9A.44.060 (2006 Ed.) Sex Offenses son engages in sexual intercourse with another person, not married to the perpetrator: (a) Where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct, or (b) Where there is threat of substantial unlawful harm to property rights of the victim. (2) Rape in the third degree is a class C felony. [1999 c 143 § 34; 1979 ex.s. c 244 § 3; 1975 1st ex.s. c 14 § 6. Formerly RCW 9.79.190.] 9A.44.073 9A.44.073 Rape of a child in the first degree. (1) A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim. (2) Rape of a child in the first degree is a class A felony. [1988 c 145 § 2.] Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. 9A.44.076 9A.44.076 Rape of a child in the second degree. (1) A person is guilty of rape of a child in the second degree when the person has sexual intercourse with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim. (2) Rape of a child in the second degree is a class A felony. [1990 c 3 § 903; 1988 c 145 § 3.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. 9A.44.079 9A.44.079 Rape of a child in the third degree. (1) A person is guilty of rape of a child in the third degree when the person has sexual intercourse with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least fortyeight months older than the victim. (2) Rape of a child in the third degree is a class C felony. [1988 c 145 § 4.] Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. 9A.44.083 9A.44.083 Child molestation in the first degree. (1) A person is guilty of child molestation in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim. (2) Child molestation in the first degree is a class A felony. [1994 c 271 § 303; 1990 c 3 § 902; 1988 c 145 § 5.] Intent—1994 c 271: See note following RCW 9A.44.010. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. (2006 Ed.) 9A.44.093 Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. 9A.44.086 9A.44.086 Child molestation in the second degree. (1) A person is guilty of child molestation in the second degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim. (2) Child molestation in the second degree is a class B felony. [1994 c 271 § 304; 1988 c 145 § 6.] Intent—1994 c 271: See note following RCW 9A.44.010. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. 9A.44.089 9A.44.089 Child molestation in the third degree. (1) A person is guilty of child molestation in the third degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim. (2) Child molestation in the third degree is a class C felony. [1994 c 271 § 305; 1988 c 145 § 7.] Intent—1994 c 271: See note following RCW 9A.44.010. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. 9A.44.093 9A.44.093 Sexual misconduct with a minor in the first degree. (1) A person is guilty of sexual misconduct with a minor in the first degree when: (a) The person has, or knowingly causes another person under the age of eighteen to have, sexual intercourse with another person who is at least sixteen years old but less than eighteen years old and not married to the perpetrator, if the perpetrator is at least sixty months older than the victim, is in a significant relationship to the victim, and abuses a supervisory position within that relationship in order to engage in or cause another person under the age of eighteen to engage in sexual intercourse with the victim; (b) the person is a school employee who has, or knowingly causes another person under the age of eighteen to have, sexual intercourse with a registered student of the school who is at least sixteen years old and not married to the employee, if the employee is at least sixty months older than the student; or (c) the person is a foster parent who has, or knowingly causes another person under the age of eighteen to have, sexual intercourse with his or her foster child who is at least sixteen. (2) Sexual misconduct with a minor in the first degree is a class C felony. (3) For the purposes of this section, "school employee" means an employee of a common school defined in RCW 28A.150.020, or a grade kindergarten through twelve employee of a private school under chapter 28A.195 RCW, who is not enrolled as a student of the common school or pri[Title 9A RCW—page 25] 9A.44.096 Title 9A RCW: Washington Criminal Code vate school. [2005 c 262 § 2; 2001 2nd sp.s. c 12 § 357; 1994 c 271 § 306; 1988 c 145 § 8.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Intent—1994 c 271: See note following RCW 9A.44.010. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. 9A.44.096 9A.44.096 Sexual misconduct with a minor in the second degree. (1) A person is guilty of sexual misconduct with a minor in the second degree when: (a) The person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another person who is at least sixteen years old but less than eighteen years old and not married to the perpetrator, if the perpetrator is at least sixty months older than the victim, is in a significant relationship to the victim, and abuses a supervisory position within that relationship in order to engage in or cause another person under the age of eighteen to engage in sexual contact with the victim; (b) the person is a school employee who has, or knowingly causes another person under the age of eighteen to have, sexual contact with a registered student of the school who is at least sixteen years old and not married to the employee, if the employee is at least sixty months older than the student; or (c) the person is a foster parent who has, or knowingly causes another person under the age of eighteen to have, sexual contact with his or her foster child who is at least sixteen. (2) Sexual misconduct with a minor in the second degree is a gross misdemeanor. (3) For the purposes of this section, "school employee" means an employee of a common school defined in RCW 28A.150.020, or a grade kindergarten through twelve employee of a private school under chapter 28A.195 RCW, who is not enrolled as a student of the common school or private school. [2005 c 262 § 3; 2001 2nd sp.s. c 12 § 358; 1994 c 271 § 307; 1988 c 145 § 9.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Intent—1994 c 271: See note following RCW 9A.44.010. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. 9A.44.100 9A.44.100 Indecent liberties. (1) A person is guilty of indecent liberties when he or she knowingly causes another person who is not his or her spouse to have sexual contact with him or her or another: (a) By forcible compulsion; (b) When the other person is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless; [Title 9A RCW—page 26] (c) When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim; (d) When the perpetrator is a health care provider, the victim is a client or patient, and the sexual contact occurs during a treatment session, consultation, interview, or examination. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual contact with the knowledge that the sexual contact was not for the purpose of treatment; (e) When the victim is a resident of a facility for mentally disordered or chemically dependent persons and the perpetrator is a person who is not married to the victim and has supervisory authority over the victim; or (f) When the victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who has a significant relationship with the victim. (2)(a) Except as provided in (b) of this subsection, indecent liberties is a class B felony. (b) Indecent liberties by forcible compulsion is a class A felony. [2003 c 53 § 67; 2001 2nd sp.s. c 12 § 359; 1997 c 392 § 515; 1993 c 477 § 3; 1988 c 146 § 2; 1988 c 145 § 10; 1986 c 131 § 1; 1975 1st ex.s. c 260 § 9A.88.100. Formerly RCW 9A.88.100.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Short title—Findings—Construction—Conflict with federal requirements—Part headings and captions not law—1997 c 392: See notes following RCW 74.39A.009. Severability—Effective dates—1988 c 146: See notes following RCW 9A.44.050. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. 9A.44.105 9A.44.105 Sexually violating human remains. (1) Any person who has sexual intercourse or sexual contact with a dead human body is guilty of a class C felony. (2) As used in this section: (a) "Sexual intercourse" (i) has its ordinary meaning and occurs upon any penetration, however slight; and (ii) also means any penetration of the vagina or anus however slight, by an object, when committed on a dead human body, except when such penetration is accomplished as part of a procedure authorized or required under chapter 68.50 RCW or other law; and (iii) also means any act of sexual contact between the sex organs of a person and the mouth or anus of a dead human body. (b) "Sexual contact" means any touching by a person of the sexual or other intimate parts of a dead human body done for the purpose of gratifying the sexual desire of the person. [1994 c 53 § 1.] 9A.44.115 9A.44.115 Voyeurism. (1) As used in this section: (a) "Intimate areas" means any portion of a person’s body or undergarments that is covered by clothing and intended to be protected from public view; (2006 Ed.) Sex Offenses (b) "Photographs" or "films" means the making of a photograph, motion picture film, videotape, digital image, or any other recording or transmission of the image of a person; (c) "Place where he or she would have a reasonable expectation of privacy" means: (i) A place where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another; or (ii) A place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance; (d) "Surveillance" means secret observation of the activities of another person for the purpose of spying upon and invading the privacy of the person; (e) "Views" means the intentional looking upon of another person for more than a brief period of time, in other than a casual or cursory manner, with the unaided eye or with a device designed or intended to improve visual acuity. (2) A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films: (a) Another person without that person’s knowledge and consent while the person being viewed, photographed, or filmed is in a place where he or she would have a reasonable expectation of privacy; or (b) The intimate areas of another person without that person’s knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place. (3) Voyeurism is a class C felony. (4) This section does not apply to viewing, photographing, or filming by personnel of the department of corrections or of a local jail or correctional facility for security purposes or during investigation of alleged misconduct by a person in the custody of the department of corrections or the local jail or correctional facility. (5) If a person is convicted of a violation of this section, the court may order the destruction of any photograph, motion picture film, digital image, videotape, or any other recording of an image that was made by the person in violation of this section. [2003 c 213 § 1; 1998 c 221 § 1.] Effective date—2003 c 213: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 12, 2003]." [2003 c 213 § 2.] 9A.44.120 9A.44.120 Admissibility of child’s statement—Conditions. A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings, including juvenile offense adjudications, in the courts of the state of Washington if: (1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and (2) The child either: (2006 Ed.) 9A.44.130 (a) Testifies at the proceedings; or (b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act. A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party his or her intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement. [1995 c 76 § 1; 1991 c 169 § 1; 1985 c 404 § 1; 1982 c 129 § 2.] Severability—1982 c 129: See note following RCW 9A.04.080. 9A.44.130 9A.44.130 Registration of sex offenders and kidnapping offenders—Procedures—Definition—Penalties. (Effective until September 1, 2006.) (1) Any adult or juvenile residing whether or not the person has a fixed residence, or who is a student, is employed, or carries on a vocation in this state who has been found to have committed or has been convicted of any sex offense or kidnapping offense, or who has been found not guilty by reason of insanity under chapter 10.77 RCW of committing any sex offense or kidnapping offense, shall register with the county sheriff for the county of the person’s residence, or if the person is not a resident of Washington, the county of the person’s school, or place of employment or vocation, or as otherwise specified in this section. Where a person required to register under this section is in custody of the state department of corrections, the state department of social and health services, a local division of youth services, or a local jail or juvenile detention facility as a result of a sex offense or kidnapping offense, the person shall also register at the time of release from custody with an official designated by the agency that has jurisdiction over the person. In addition, any such adult or juvenile: (a) Who is admitted to a public or private institution of higher education shall, within ten days of enrolling or by the first business day after arriving at the institution, whichever is earlier, notify the sheriff for the county of the person’s residence of the person’s intent to attend the institution; (b) who gains employment at a public or private institution of higher education shall, within ten days of accepting employment or by the first business day after commencing work at the institution, whichever is earlier, notify the sheriff for the county of the person’s residence of the person’s employment by the institution; or (c) whose enrollment or employment at a public or private institution of higher education is terminated shall, within ten days of such termination, notify the sheriff for the county of the person’s residence of the person’s termination of enrollment or employment at the institution. Persons required to register under this section who are enrolled in a public or private institution of higher education on June 11, 1998, must notify the county sheriff immediately. The sheriff shall notify the institution’s department of public safety and shall provide that department with the same information provided to a county sheriff under subsection (3) of this section. (2) This section may not be construed to confer any powers pursuant to RCW 4.24.550 upon the public safety department of any public or private institution of higher education. [Title 9A RCW—page 27] 9A.44.130 Title 9A RCW: Washington Criminal Code (3)(a) The person shall provide the following information when registering: (i) Name; (ii) complete residential address; (iii) date and place of birth; (iv) place of employment; (v) crime for which convicted; (vi) date and place of conviction; (vii) aliases used; (viii) social security number; (ix) photograph; and (x) fingerprints. (b) Any person who lacks a fixed residence shall provide the following information when registering: (i) Name; (ii) date and place of birth; (iii) place of employment; (iv) crime for which convicted; (v) date and place of conviction; (vi) aliases used; (vii) social security number; (viii) photograph; (ix) fingerprints; and (x) where he or she plans to stay. (4)(a) Offenders shall register with the county sheriff within the following deadlines. For purposes of this section the term "conviction" refers to adult convictions and juvenile adjudications for sex offenses or kidnapping offenses: (i) OFFENDERS IN CUSTODY. (A) Sex offenders who committed a sex offense on, before, or after February 28, 1990, and who, on or after July 28, 1991, are in custody, as a result of that offense, of the state department of corrections, the state department of social and health services, a local division of youth services, or a local jail or juvenile detention facility, and (B) kidnapping offenders who on or after July 27, 1997, are in custody of the state department of corrections, the state department of social and health services, a local division of youth services, or a local jail or juvenile detention facility, must register at the time of release from custody with an official designated by the agency that has jurisdiction over the offender. The agency shall within three days forward the registration information to the county sheriff for the county of the offender’s anticipated residence. The offender must also register within twenty-four hours from the time of release with the county sheriff for the county of the person’s residence, or if the person is not a resident of Washington, the county of the person’s school, or place of employment or vocation. The agency that has jurisdiction over the offender shall provide notice to the offender of the duty to register. Failure to register at the time of release and within twenty-four hours of release constitutes a violation of this section and is punishable as provided in subsection (11) of this section. When the agency with jurisdiction intends to release an offender with a duty to register under this section, and the agency has knowledge that the offender is eligible for developmental disability services from the department of social and health services, the agency shall notify the division of developmental disabilities of the release. Notice shall occur not more than thirty days before the offender is to be released. The agency and the division shall assist the offender in meeting the initial registration requirement under this section. Failure to provide such assistance shall not constitute a defense for any violation of this section. (ii) OFFENDERS NOT IN CUSTODY BUT UNDER STATE OR LOCAL JURISDICTION. Sex offenders who, on July 28, 1991, are not in custody but are under the jurisdiction of the indeterminate sentence review board or under the department of correction’s active supervision, as defined by the department of corrections, the state department of social and health services, or a local division of youth services, for sex offenses committed before, on, or after February 28, 1990, must register within ten days of July 28, 1991. Kidnap[Title 9A RCW—page 28] ping offenders who, on July 27, 1997, are not in custody but are under the jurisdiction of the indeterminate sentence review board or under the department of correction’s active supervision, as defined by the department of corrections, the state department of social and health services, or a local division of youth services, for kidnapping offenses committed before, on, or after July 27, 1997, must register within ten days of July 27, 1997. A change in supervision status of a sex offender who was required to register under this subsection (4)(a)(ii) as of July 28, 1991, or a kidnapping offender required to register as of July 27, 1997, shall not relieve the offender of the duty to register or to reregister following a change in residence. The obligation to register shall only cease pursuant to RCW 9A.44.140. (iii) OFFENDERS UNDER FEDERAL JURISDICTION. Sex offenders who, on or after July 23, 1995, and kidnapping offenders who, on or after July 27, 1997, as a result of that offense are in the custody of the United States bureau of prisons or other federal or military correctional agency for sex offenses committed before, on, or after February 28, 1990, or kidnapping offenses committed on, before, or after July 27, 1997, must register within twenty-four hours from the time of release with the county sheriff for the county of the person’s residence, or if the person is not a resident of Washington, the county of the person’s school, or place of employment or vocation. Sex offenders who, on July 23, 1995, are not in custody but are under the jurisdiction of the United States bureau of prisons, United States courts, United States parole commission, or military parole board for sex offenses committed before, on, or after February 28, 1990, must register within ten days of July 23, 1995. Kidnapping offenders who, on July 27, 1997, are not in custody but are under the jurisdiction of the United States bureau of prisons, United States courts, United States parole commission, or military parole board for kidnapping offenses committed before, on, or after July 27, 1997, must register within ten days of July 27, 1997. A change in supervision status of a sex offender who was required to register under this subsection (4)(a)(iii) as of July 23, 1995, or a kidnapping offender required to register as of July 27, 1997 shall not relieve the offender of the duty to register or to reregister following a change in residence, or if the person is not a resident of Washington, the county of the person’s school, or place of employment or vocation. The obligation to register shall only cease pursuant to RCW 9A.44.140. (iv) OFFENDERS WHO ARE CONVICTED BUT NOT CONFINED. Sex offenders who are convicted of a sex offense on or after July 28, 1991, for a sex offense that was committed on or after February 28, 1990, and kidnapping offenders who are convicted on or after July 27, 1997, for a kidnapping offense that was committed on or after July 27, 1997, but who are not sentenced to serve a term of confinement immediately upon sentencing, shall report to the county sheriff to register immediately upon completion of being sentenced. (v) OFFENDERS WHO ARE NEW RESIDENTS OR RETURNING WASHINGTON RESIDENTS. Sex offenders and kidnapping offenders who move to Washington state from another state or a foreign country that are not under the jurisdiction of the state department of corrections, the indeterminate sentence review board, or the state department of (2006 Ed.) Sex Offenses social and health services at the time of moving to Washington, must register within three business days of establishing residence or reestablishing residence if the person is a former Washington resident. The duty to register under this subsection applies to sex offenders convicted under the laws of another state or a foreign country, federal or military statutes, or Washington state for offenses committed on or after February 28, 1990, and to kidnapping offenders convicted under the laws of another state or a foreign country, federal or military statutes, or Washington state for offenses committed on or after July 27, 1997. Sex offenders and kidnapping offenders from other states or a foreign country who, when they move to Washington, are under the jurisdiction of the department of corrections, the indeterminate sentence review board, or the department of social and health services must register within twenty-four hours of moving to Washington. The agency that has jurisdiction over the offender shall notify the offender of the registration requirements before the offender moves to Washington. (vi) OFFENDERS FOUND NOT GUILTY BY REASON OF INSANITY. Any adult or juvenile who has been found not guilty by reason of insanity under chapter 10.77 RCW of (A) committing a sex offense on, before, or after February 28, 1990, and who, on or after July 23, 1995, is in custody, as a result of that finding, of the state department of social and health services, or (B) committing a kidnapping offense on, before, or after July 27, 1997, and who on or after July 27, 1997, is in custody, as a result of that finding, of the state department of social and health services, must register within twenty-four hours from the time of release with the county sheriff for the county of the person’s residence. The state department of social and health services shall provide notice to the adult or juvenile in its custody of the duty to register. Any adult or juvenile who has been found not guilty by reason of insanity of committing a sex offense on, before, or after February 28, 1990, but who was released before July 23, 1995, or any adult or juvenile who has been found not guilty by reason of insanity of committing a kidnapping offense but who was released before July 27, 1997, shall be required to register within twenty-four hours of receiving notice of this registration requirement. The state department of social and health services shall make reasonable attempts within available resources to notify sex offenders who were released before July 23, 1995, and kidnapping offenders who were released before July 27, 1997. Failure to register within twenty-four hours of release, or of receiving notice, constitutes a violation of this section and is punishable as provided in subsection (11) of this section. (vii) OFFENDERS WHO LACK A FIXED RESIDENCE. Any person who lacks a fixed residence and leaves the county in which he or she is registered and enters and remains within a new county for twenty-four hours is required to register with the county sheriff not more than twenty-four hours after entering the county and provide the information required in subsection (3)(b) of this section. (viii) OFFENDERS WHO LACK A FIXED RESIDENCE AND WHO ARE UNDER SUPERVISION. Offenders who lack a fixed residence and who are under the supervision of the department shall register in the county of their supervision. (2006 Ed.) 9A.44.130 (ix) OFFENDERS WHO MOVE TO, WORK, CARRY ON A VOCATION, OR ATTEND SCHOOL IN ANOTHER STATE. Offenders required to register in Washington, who move to another state, or who work, carry on a vocation, or attend school in another state shall register a new address, fingerprints, and photograph with the new state within ten days after establishing residence, or after beginning to work, carry on a vocation, or attend school in the new state. The person must also send written notice within ten days of moving to the new state or to a foreign country to the county sheriff with whom the person last registered in Washington state. The county sheriff shall promptly forward this information to the Washington state patrol. (b) Failure to register within the time required under this section constitutes a per se violation of this section and is punishable as provided in subsection (11) of this section. The county sheriff shall not be required to determine whether the person is living within the county. (c) An arrest on charges of failure to register, service of an information, or a complaint for a violation of this section, or arraignment on charges for a violation of this section, constitutes actual notice of the duty to register. Any person charged with the crime of failure to register under this section who asserts as a defense the lack of notice of the duty to register shall register immediately following actual notice of the duty through arrest, service, or arraignment. Failure to register as required under this subsection (4)(c) constitutes grounds for filing another charge of failing to register. Registering following arrest, service, or arraignment on charges shall not relieve the offender from criminal liability for failure to register prior to the filing of the original charge. (d) The deadlines for the duty to register under this section do not relieve any sex offender of the duty to register under this section as it existed prior to July 28, 1991. (5)(a) If any person required to register pursuant to this section changes his or her residence address within the same county, the person must send signed written notice of the change of address to the county sheriff within seventy-two hours of moving. If any person required to register pursuant to this section moves to a new county, the person must send signed written notice of the change of address at least fourteen days before moving to the county sheriff in the new county of residence and must register with that county sheriff within twenty-four hours of moving. The person must also send signed written notice within ten days of the change of address in the new county to the county sheriff with whom the person last registered. The county sheriff with whom the person last registered shall promptly forward the information concerning the change of address to the county sheriff for the county of the person’s new residence. Upon receipt of notice of change of address to a new state, the county sheriff shall promptly forward the information regarding the change of address to the agency designated by the new state as the state’s offender registration agency. (b) It is an affirmative defense to a charge that the person failed to send a notice at least fourteen days in advance of moving as required under (a) of this subsection that the person did not know the location of his or her new residence at least fourteen days before moving. The defendant must establish the defense by a preponderance of the evidence and, to prevail on the defense, must also prove by a preponderance [Title 9A RCW—page 29] 9A.44.130 Title 9A RCW: Washington Criminal Code that the defendant sent the required notice within twenty-four hours of determining the new address. (6)(a) Any person required to register under this section who lacks a fixed residence shall provide signed written notice to the sheriff of the county where he or she last registered within forty-eight hours excluding weekends and holidays after ceasing to have a fixed residence. The notice shall include the information required by subsection (3)(b) of this section, except the photograph and fingerprints. The county sheriff may, for reasonable cause, require the offender to provide a photograph and fingerprints. The sheriff shall forward this information to the sheriff of the county in which the person intends to reside, if the person intends to reside in another county. (b) A person who lacks a fixed residence must report weekly, in person, to the sheriff of the county where he or she is registered. The weekly report shall be on a day specified by the county sheriff’s office, and shall occur during normal business hours. The county sheriff’s office may require the person to list the locations where the person has stayed during the last seven days. The lack of a fixed residence is a factor that may be considered in determining an offender’s risk level and shall make the offender subject to disclosure of information to the public at large pursuant to RCW 4.24.550. (c) If any person required to register pursuant to this section does not have a fixed residence, it is an affirmative defense to the charge of failure to register, that he or she provided written notice to the sheriff of the county where he or she last registered within forty-eight hours excluding weekends and holidays after ceasing to have a fixed residence and has subsequently complied with the requirements of subsections (4)(a)(vii) or (viii) and (6) of this section. To prevail, the person must prove the defense by a preponderance of the evidence. (7) All offenders who are required to register pursuant to this section who have a fixed residence and who are designated as a risk level II or III must report, in person, every ninety days to the sheriff of the county where he or she is registered. Reporting shall be on a day specified by the county sheriff’s office, and shall occur during normal business hours. An offender who complies with the ninety-day reporting requirement with no violations for a period of at least five years in the community may petition the superior court to be relieved of the duty to report every ninety days. The petition shall be made to the superior court in the county where the offender resides or reports under this section. The prosecuting attorney of the county shall be named and served as respondent in any such petition. The court shall relieve the petitioner of the duty to report if the petitioner shows, by a preponderance of the evidence, that the petitioner has complied with the reporting requirement for a period of at least five years and that the offender has not been convicted of a criminal violation of this section for a period of at least five years, and the court determines that the reporting no longer serves a public safety purpose. Failure to report, as specified, constitutes a violation of this section and is punishable as provided in subsection (11) of this section. (8) A sex offender subject to registration requirements under this section who applies to change his or her name under RCW 4.24.130 or any other law shall submit a copy of the application to the county sheriff of the county of the per[Title 9A RCW—page 30] son’s residence and to the state patrol not fewer than five days before the entry of an order granting the name change. No sex offender under the requirement to register under this section at the time of application shall be granted an order changing his or her name if the court finds that doing so will interfere with legitimate law enforcement interests, except that no order shall be denied when the name change is requested for religious or legitimate cultural reasons or in recognition of marriage or dissolution of marriage. A sex offender under the requirement to register under this section who receives an order changing his or her name shall submit a copy of the order to the county sheriff of the county of the person’s residence and to the state patrol within five days of the entry of the order. (9) The county sheriff shall obtain a photograph of the individual and shall obtain a copy of the individual’s fingerprints. A photograph may be taken at any time to update an individual’s file. (10) For the purpose of RCW 9A.44.130, 10.01.200, 43.43.540, 70.48.470, and 72.09.330: (a) "Sex offense" means: (i) Any offense defined as a sex offense by RCW 9.94A.030; (ii) Any violation under RCW 9A.44.096 (sexual misconduct with a minor in the second degree); (iii) Any violation under RCW 9.68A.090 (communication with a minor for immoral purposes); (iv) Any federal or out-of-state conviction for an offense that under the laws of this state would be classified as a sex offense under this subsection; and (v) Any gross misdemeanor that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a sex offense under RCW 9.94A.030 or this subsection. (b) "Kidnapping offense" means: (i) The crimes of kidnapping in the first degree, kidnapping in the second degree, and unlawful imprisonment, as defined in chapter 9A.40 RCW, where the victim is a minor and the offender is not the minor’s parent; (ii) any offense that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a kidnapping offense under this subsection (10)(b); and (iii) any federal or out-of-state conviction for an offense that under the laws of this state would be classified as a kidnapping offense under this subsection (10)(b). (c) "Employed" or "carries on a vocation" means employment that is full-time or part-time for a period of time exceeding fourteen days, or for an aggregate period of time exceeding thirty days during any calendar year. A person is employed or carries on a vocation whether the person’s employment is financially compensated, volunteered, or for the purpose of government or educational benefit. (d) "Student" means a person who is enrolled, on a fulltime or part-time basis, in any public or private educational institution. An educational institution includes any secondary school, trade or professional institution, or institution of higher education. (11)(a) A person who knowingly fails to comply with any of the requirements of this section is guilty of a class C felony if the crime for which the individual was convicted was a felony sex offense as defined in subsection (10)(a) of (2006 Ed.) Sex Offenses this section or a federal or out-of-state conviction for an offense that under the laws of this state would be a felony sex offense as defined in subsection (10)(a) of this section. (b) If the crime for which the individual was convicted was other than a felony or a federal or out-of-state conviction for an offense that under the laws of this state would be other than a felony, violation of this section is a gross misdemeanor. (12)(a) A person who knowingly fails to comply with any of the requirements of this section is guilty of a class C felony if the crime for which the individual was convicted was a felony kidnapping offense as defined in subsection (10)(b) of this section or a federal or out-of-state conviction for an offense that under the laws of this state would be a felony kidnapping offense as defined in subsection (10)(b) of this section. (b) If the crime for which the individual was convicted was other than a felony or a federal or out-of-state conviction for an offense that under the laws of this state would be other than a felony, violation of this section is a gross misdemeanor. [2006 c 129 § 1; 2006 c 128 § 1; 2006 c 126 § 1. Prior: 2003 c 215 § 1; 2003 c 53 § 68; 2002 c 31 § 1; prior: 2001 c 169 § 1; 2001 c 95 § 2; 2000 c 91 § 2; prior: 1999 sp.s. c 6 § 2; 1999 c 352 § 9; prior: 1998 c 220 § 1; 1998 c 139 § 1; prior: 1997 c 340 § 3; 1997 c 113 § 3; 1996 c 275 § 11; prior: 1995 c 268 § 3; 1995 c 248 § 1; 1995 c 195 § 1; 1994 c 84 § 2; 1991 c 274 § 2; 1990 c 3 § 402.] Reviser’s note: This section was amended by 2006 c 126 § 1, 2006 c 128 § 1, and by 2006 c 129 § 1, each without reference to the other. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). 9A.44.130 address shall have an affirmative duty to report to the appropriate county sheriff, based on the level of risk of offending." [1999 sp.s. c 6 § 1.] Effective date—1999 sp.s. c 6: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [June 7, 1999]." [1999 sp.s. c 6 § 3.] Severability—1998 c 220: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1998 c 220 § 7.] Findings—1997 c 113: See note following RCW 4.24.550. Finding—1996 c 275: See note following RCW 9.94A.505. Purpose—1995 c 268: See note following RCW 9.94A.030. Intent—1994 c 84: "This act is intended to clarify existing law and is not intended to reflect a substantive change in the law." [1994 c 84 § 1.] Finding and intent—1991 c 274: "The legislature finds that sex offender registration has assisted law enforcement agencies in protecting their communities. This act is intended to clarify and amend the deadlines for sex offenders to register. This act’s clarification or amendment of RCW 9A.44.130 does not relieve the obligation of sex offenders to comply with the registration requirements of RCW 9A.44.130 as that statute exists before July 28, 1991." [1991 c 274 § 1.] Finding—Policy—1990 c 3 § 402: "The legislature finds that sex offenders often pose a high risk of reoffense, and that law enforcement’s efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses, are impaired by the lack of information available to law enforcement agencies about convicted sex offenders who live within the law enforcement agency’s jurisdiction. Therefore, this state’s policy is to assist local law enforcement agencies’ efforts to protect their communities by regulating sex offenders by requiring sex offenders to register with local law enforcement agencies as provided in RCW 9A.44.130." [1990 c 3 § 401.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 9A.44.130 Expiration date—2006 c 129 § 1: "Section 1 of this act expires September 1, 2006." [2006 c 129 § 3.] Expiration date—2006 c 128 § 1: "Section 1 of this act expires September 1, 2006." [2006 c 128 § 7.] Expiration date—2006 c 126 § 1: "Section 1 of this act expires September 1, 2006." [2006 c 126 § 8.] Effective date—2006 c 126 §§ 1 and 3-7: "Sections 1 and 3 through 7 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately [March 20, 2006]." [2006 c 126 § 9.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Application—2002 c 31: "This act applies to all persons convicted of communication with a minor either on, before, or after July 1, 2001, unless otherwise relieved of the duty to register under RCW 9A.44.140." [2002 c 31 § 2.] Severability—2002 c 31: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2002 c 31 § 3.] Effective date—2002 c 31: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 12, 2002]." [2002 c 31 § 4.] Effective date—2001 c 95: See note following RCW 9.94A.030. Intent—1999 sp.s. c 6: "It is the intent of this act to revise the law on registration of sex and kidnapping offenders in response to the case of State v. Pickett, Docket number 41562-0-I. The legislature intends that all sex and kidnapping offenders whose history requires them to register shall do so regardless of whether the person has a fixed residence. The lack of a residential address is not to be construed to preclude registration as a sex or kidnapping offender. The legislature intends that persons who lack a residential (2006 Ed.) 9A.44.130 Registration of sex offenders and kidnapping offenders—Procedures—Definition—Penalties. (Effective September 1, 2006.) (1)(a) Any adult or juvenile residing whether or not the person has a fixed residence, or who is a student, is employed, or carries on a vocation in this state who has been found to have committed or has been convicted of any sex offense or kidnapping offense, or who has been found not guilty by reason of insanity under chapter 10.77 RCW of committing any sex offense or kidnapping offense, shall register with the county sheriff for the county of the person’s residence, or if the person is not a resident of Washington, the county of the person’s school, or place of employment or vocation, or as otherwise specified in this section. Where a person required to register under this section is in custody of the state department of corrections, the state department of social and health services, a local division of youth services, or a local jail or juvenile detention facility as a result of a sex offense or kidnapping offense, the person shall also register at the time of release from custody with an official designated by the agency that has jurisdiction over the person. (b) Any adult or juvenile who is required to register under (a) of this subsection: (i) Who is attending, or planning to attend, a public or private school regulated under Title 28A RCW or chapter 72.40 RCW shall, within ten days of enrolling or prior to arriving at the school to attend classes, whichever is earlier, notify the sheriff for the county of the person’s residence of the person’s intent to attend the school, and the sheriff shall promptly notify the principal of the school; [Title 9A RCW—page 31] 9A.44.130 Title 9A RCW: Washington Criminal Code (ii) Who is admitted to a public or private institution of higher education shall, within ten days of enrolling or by the first business day after arriving at the institution, whichever is earlier, notify the sheriff for the county of the person’s residence of the person’s intent to attend the institution; (iii) Who gains employment at a public or private institution of higher education shall, within ten days of accepting employment or by the first business day after commencing work at the institution, whichever is earlier, notify the sheriff for the county of the person’s residence of the person’s employment by the institution; or (iv) Whose enrollment or employment at a public or private institution of higher education is terminated shall, within ten days of such termination, notify the sheriff for the county of the person’s residence of the person’s termination of enrollment or employment at the institution. (c) Persons required to register under this section who are enrolled in a public or private institution of higher education on June 11, 1998, or a public or private school regulated under Title 28A RCW or chapter 72.40 RCW on September 1, 2006, must notify the county sheriff immediately. (d) The sheriff shall notify the school’s principal or institution’s department of public safety and shall provide that department with the same information provided to a county sheriff under subsection (3) of this section. (e)(i) A principal receiving notice under this subsection must disclose the information received from the sheriff under (b) of this subsection as follows: (A) If the student who is required to register as a sex offender is classified as a risk level II or III, the principal shall provide the information received to every teacher of any student required to register under (a) of this subsection and to any other personnel who, in the judgment of the principal, supervises the student or for security purposes should be aware of the student’s record; (B) If the student who is required to register as a sex offender is classified as a risk level I, the principal shall provide the information received only to personnel who, in the judgment of the principal, for security purposes should be aware of the student’s record. (ii) Any information received by a principal or school personnel under this subsection is confidential and may not be further disseminated except as provided in RCW 28A.225.330, other statutes or case law, and the family and educational and privacy rights act of 1994, 20 U.S.C. Sec. 1232g et seq. (2) This section may not be construed to confer any powers pursuant to RCW 4.24.550 upon the public safety department of any public or private school or institution of higher education. (3)(a) The person shall provide the following information when registering: (i) Name; (ii) complete residential address; (iii) date and place of birth; (iv) place of employment; (v) crime for which convicted; (vi) date and place of conviction; (vii) aliases used; (viii) social security number; (ix) photograph; and (x) fingerprints. (b) Any person who lacks a fixed residence shall provide the following information when registering: (i) Name; (ii) date and place of birth; (iii) place of employment; (iv) crime for which convicted; (v) date and place of conviction; (vi) [Title 9A RCW—page 32] aliases used; (vii) social security number; (viii) photograph; (ix) fingerprints; and (x) where he or she plans to stay. (4)(a) Offenders shall register with the county sheriff within the following deadlines. For purposes of this section the term "conviction" refers to adult convictions and juvenile adjudications for sex offenses or kidnapping offenses: (i) OFFENDERS IN CUSTODY. (A) Sex offenders who committed a sex offense on, before, or after February 28, 1990, and who, on or after July 28, 1991, are in custody, as a result of that offense, of the state department of corrections, the state department of social and health services, a local division of youth services, or a local jail or juvenile detention facility, and (B) kidnapping offenders who on or after July 27, 1997, are in custody of the state department of corrections, the state department of social and health services, a local division of youth services, or a local jail or juvenile detention facility, must register at the time of release from custody with an official designated by the agency that has jurisdiction over the offender. The agency shall within three days forward the registration information to the county sheriff for the county of the offender’s anticipated residence. The offender must also register within twenty-four hours from the time of release with the county sheriff for the county of the person’s residence, or if the person is not a resident of Washington, the county of the person’s school, or place of employment or vocation. The agency that has jurisdiction over the offender shall provide notice to the offender of the duty to register. Failure to register at the time of release and within twenty-four hours of release constitutes a violation of this section and is punishable as provided in subsection (11) of this section. When the agency with jurisdiction intends to release an offender with a duty to register under this section, and the agency has knowledge that the offender is eligible for developmental disability services from the department of social and health services, the agency shall notify the division of developmental disabilities of the release. Notice shall occur not more than thirty days before the offender is to be released. The agency and the division shall assist the offender in meeting the initial registration requirement under this section. Failure to provide such assistance shall not constitute a defense for any violation of this section. (ii) OFFENDERS NOT IN CUSTODY BUT UNDER STATE OR LOCAL JURISDICTION. Sex offenders who, on July 28, 1991, are not in custody but are under the jurisdiction of the indeterminate sentence review board or under the department of corrections’ active supervision, as defined by the department of corrections, the state department of social and health services, or a local division of youth services, for sex offenses committed before, on, or after February 28, 1990, must register within ten days of July 28, 1991. Kidnapping offenders who, on July 27, 1997, are not in custody but are under the jurisdiction of the indeterminate sentence review board or under the department of corrections’ active supervision, as defined by the department of corrections, the state department of social and health services, or a local division of youth services, for kidnapping offenses committed before, on, or after July 27, 1997, must register within ten days of July 27, 1997. A change in supervision status of a sex offender who was required to register under this subsection (4)(a)(ii) as of July 28, 1991, or a kidnapping offender (2006 Ed.) Sex Offenses required to register as of July 27, 1997, shall not relieve the offender of the duty to register or to reregister following a change in residence. The obligation to register shall only cease pursuant to RCW 9A.44.140. (iii) OFFENDERS UNDER FEDERAL JURISDICTION. Sex offenders who, on or after July 23, 1995, and kidnapping offenders who, on or after July 27, 1997, as a result of that offense are in the custody of the United States bureau of prisons or other federal or military correctional agency for sex offenses committed before, on, or after February 28, 1990, or kidnapping offenses committed on, before, or after July 27, 1997, must register within twenty-four hours from the time of release with the county sheriff for the county of the person’s residence, or if the person is not a resident of Washington, the county of the person’s school, or place of employment or vocation. Sex offenders who, on July 23, 1995, are not in custody but are under the jurisdiction of the United States bureau of prisons, United States courts, United States parole commission, or military parole board for sex offenses committed before, on, or after February 28, 1990, must register within ten days of July 23, 1995. Kidnapping offenders who, on July 27, 1997, are not in custody but are under the jurisdiction of the United States bureau of prisons, United States courts, United States parole commission, or military parole board for kidnapping offenses committed before, on, or after July 27, 1997, must register within ten days of July 27, 1997. A change in supervision status of a sex offender who was required to register under this subsection (4)(a)(iii) as of July 23, 1995, or a kidnapping offender required to register as of July 27, 1997 shall not relieve the offender of the duty to register or to reregister following a change in residence, or if the person is not a resident of Washington, the county of the person’s school, or place of employment or vocation. The obligation to register shall only cease pursuant to RCW 9A.44.140. (iv) OFFENDERS WHO ARE CONVICTED BUT NOT CONFINED. Sex offenders who are convicted of a sex offense on or after July 28, 1991, for a sex offense that was committed on or after February 28, 1990, and kidnapping offenders who are convicted on or after July 27, 1997, for a kidnapping offense that was committed on or after July 27, 1997, but who are not sentenced to serve a term of confinement immediately upon sentencing, shall report to the county sheriff to register immediately upon completion of being sentenced. (v) OFFENDERS WHO ARE NEW RESIDENTS OR RETURNING WASHINGTON RESIDENTS. Sex offenders and kidnapping offenders who move to Washington state from another state or a foreign country that are not under the jurisdiction of the state department of corrections, the indeterminate sentence review board, or the state department of social and health services at the time of moving to Washington, must register within three business days of establishing residence or reestablishing residence if the person is a former Washington resident. The duty to register under this subsection applies to sex offenders convicted under the laws of another state or a foreign country, federal or military statutes for offenses committed before, on, or after February 28, 1990, or Washington state for offenses committed before, on, or after February 28, 1990, and to kidnapping offenders convicted under the laws of another state or a foreign country, (2006 Ed.) 9A.44.130 federal or military statutes, or Washington state for offenses committed before, on, or after July 27, 1997. Sex offenders and kidnapping offenders from other states or a foreign country who, when they move to Washington, are under the jurisdiction of the department of corrections, the indeterminate sentence review board, or the department of social and health services must register within twenty-four hours of moving to Washington. The agency that has jurisdiction over the offender shall notify the offender of the registration requirements before the offender moves to Washington. (vi) OFFENDERS FOUND NOT GUILTY BY REASON OF INSANITY. Any adult or juvenile who has been found not guilty by reason of insanity under chapter 10.77 RCW of (A) committing a sex offense on, before, or after February 28, 1990, and who, on or after July 23, 1995, is in custody, as a result of that finding, of the state department of social and health services, or (B) committing a kidnapping offense on, before, or after July 27, 1997, and who on or after July 27, 1997, is in custody, as a result of that finding, of the state department of social and health services, must register within twenty-four hours from the time of release with the county sheriff for the county of the person’s residence. The state department of social and health services shall provide notice to the adult or juvenile in its custody of the duty to register. Any adult or juvenile who has been found not guilty by reason of insanity of committing a sex offense on, before, or after February 28, 1990, but who was released before July 23, 1995, or any adult or juvenile who has been found not guilty by reason of insanity of committing a kidnapping offense but who was released before July 27, 1997, shall be required to register within twenty-four hours of receiving notice of this registration requirement. The state department of social and health services shall make reasonable attempts within available resources to notify sex offenders who were released before July 23, 1995, and kidnapping offenders who were released before July 27, 1997. Failure to register within twenty-four hours of release, or of receiving notice, constitutes a violation of this section and is punishable as provided in subsection (11) of this section. (vii) OFFENDERS WHO LACK A FIXED RESIDENCE. Any person who lacks a fixed residence and leaves the county in which he or she is registered and enters and remains within a new county for twenty-four hours is required to register with the county sheriff not more than twenty-four hours after entering the county and provide the information required in subsection (3)(b) of this section. (viii) OFFENDERS WHO LACK A FIXED RESIDENCE AND WHO ARE UNDER SUPERVISION. Offenders who lack a fixed residence and who are under the supervision of the department shall register in the county of their supervision. (ix) OFFENDERS WHO MOVE TO, WORK, CARRY ON A VOCATION, OR ATTEND SCHOOL IN ANOTHER STATE. Offenders required to register in Washington, who move to another state, or who work, carry on a vocation, or attend school in another state shall register a new address, fingerprints, and photograph with the new state within ten days after establishing residence, or after beginning to work, carry on a vocation, or attend school in the new state. The person must also send written notice within ten days of moving to the new state or to a foreign country to the county sher[Title 9A RCW—page 33] 9A.44.130 Title 9A RCW: Washington Criminal Code iff with whom the person last registered in Washington state. The county sheriff shall promptly forward this information to the Washington state patrol. (b) Failure to register within the time required under this section constitutes a per se violation of this section and is punishable as provided in subsection (11) of this section. The county sheriff shall not be required to determine whether the person is living within the county. (c) An arrest on charges of failure to register, service of an information, or a complaint for a violation of this section, or arraignment on charges for a violation of this section, constitutes actual notice of the duty to register. Any person charged with the crime of failure to register under this section who asserts as a defense the lack of notice of the duty to register shall register immediately following actual notice of the duty through arrest, service, or arraignment. Failure to register as required under this subsection (4)(c) constitutes grounds for filing another charge of failing to register. Registering following arrest, service, or arraignment on charges shall not relieve the offender from criminal liability for failure to register prior to the filing of the original charge. (d) The deadlines for the duty to register under this section do not relieve any sex offender of the duty to register under this section as it existed prior to July 28, 1991. (5)(a) If any person required to register pursuant to this section changes his or her residence address within the same county, the person must send signed written notice of the change of address to the county sheriff within seventy-two hours of moving. If any person required to register pursuant to this section moves to a new county, the person must send signed written notice of the change of address at least fourteen days before moving to the county sheriff in the new county of residence and must register with that county sheriff within twenty-four hours of moving. The person must also send signed written notice within ten days of the change of address in the new county to the county sheriff with whom the person last registered. The county sheriff with whom the person last registered shall promptly forward the information concerning the change of address to the county sheriff for the county of the person’s new residence. Upon receipt of notice of change of address to a new state, the county sheriff shall promptly forward the information regarding the change of address to the agency designated by the new state as the state’s offender registration agency. (b) It is an affirmative defense to a charge that the person failed to send a notice at least fourteen days in advance of moving as required under (a) of this subsection that the person did not know the location of his or her new residence at least fourteen days before moving. The defendant must establish the defense by a preponderance of the evidence and, to prevail on the defense, must also prove by a preponderance that the defendant sent the required notice within twenty-four hours of determining the new address. (6)(a) Any person required to register under this section who lacks a fixed residence shall provide signed written notice to the sheriff of the county where he or she last registered within forty-eight hours excluding weekends and holidays after ceasing to have a fixed residence. The notice shall include the information required by subsection (3)(b) of this section, except the photograph and fingerprints. The county sheriff may, for reasonable cause, require the offender to pro[Title 9A RCW—page 34] vide a photograph and fingerprints. The sheriff shall forward this information to the sheriff of the county in which the person intends to reside, if the person intends to reside in another county. (b) A person who lacks a fixed residence must report weekly, in person, to the sheriff of the county where he or she is registered. The weekly report shall be on a day specified by the county sheriff’s office, and shall occur during normal business hours. The county sheriff’s office may require the person to list the locations where the person has stayed during the last seven days. The lack of a fixed residence is a factor that may be considered in determining an offender’s risk level and shall make the offender subject to disclosure of information to the public at large pursuant to RCW 4.24.550. (c) If any person required to register pursuant to this section does not have a fixed residence, it is an affirmative defense to the charge of failure to register, that he or she provided written notice to the sheriff of the county where he or she last registered within forty-eight hours excluding weekends and holidays after ceasing to have a fixed residence and has subsequently complied with the requirements of subsections (4)(a)(vii) or (viii) and (6) of this section. To prevail, the person must prove the defense by a preponderance of the evidence. (7) All offenders who are required to register pursuant to this section who have a fixed residence and who are designated as a risk level II or III must report, in person, every ninety days to the sheriff of the county where he or she is registered. Reporting shall be on a day specified by the county sheriff’s office, and shall occur during normal business hours. An offender who complies with the ninety-day reporting requirement with no violations for a period of at least five years in the community may petition the superior court to be relieved of the duty to report every ninety days. The petition shall be made to the superior court in the county where the offender resides or reports under this section. The prosecuting attorney of the county shall be named and served as respondent in any such petition. The court shall relieve the petitioner of the duty to report if the petitioner shows, by a preponderance of the evidence, that the petitioner has complied with the reporting requirement for a period of at least five years and that the offender has not been convicted of a criminal violation of this section for a period of at least five years, and the court determines that the reporting no longer serves a public safety purpose. Failure to report, as specified, constitutes a violation of this section and is punishable as provided in subsection (11) of this section. (8) A sex offender subject to registration requirements under this section who applies to change his or her name under RCW 4.24.130 or any other law shall submit a copy of the application to the county sheriff of the county of the person’s residence and to the state patrol not fewer than five days before the entry of an order granting the name change. No sex offender under the requirement to register under this section at the time of application shall be granted an order changing his or her name if the court finds that doing so will interfere with legitimate law enforcement interests, except that no order shall be denied when the name change is requested for religious or legitimate cultural reasons or in recognition of marriage or dissolution of marriage. A sex offender under the requirement to register under this section (2006 Ed.) Sex Offenses who receives an order changing his or her name shall submit a copy of the order to the county sheriff of the county of the person’s residence and to the state patrol within five days of the entry of the order. (9) The county sheriff shall obtain a photograph of the individual and shall obtain a copy of the individual’s fingerprints. A photograph may be taken at any time to update an individual’s file. (10) For the purpose of RCW 9A.44.130, 10.01.200, 43.43.540, 70.48.470, and 72.09.330: (a) "Sex offense" means: (i) Any offense defined as a sex offense by RCW 9.94A.030; (ii) Any violation under RCW 9A.44.096 (sexual misconduct with a minor in the second degree); (iii) Any violation under RCW 9.68A.090 (communication with a minor for immoral purposes); (iv) Any federal or out-of-state conviction for an offense that under the laws of this state would be classified as a sex offense under this subsection; and (v) Any gross misdemeanor that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a sex offense under RCW 9.94A.030 or this subsection. (b) "Kidnapping offense" means: (i) The crimes of kidnapping in the first degree, kidnapping in the second degree, and unlawful imprisonment, as defined in chapter 9A.40 RCW, where the victim is a minor and the offender is not the minor’s parent; (ii) any offense that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a kidnapping offense under this subsection (10)(b); and (iii) any federal or out-of-state conviction for an offense that under the laws of this state would be classified as a kidnapping offense under this subsection (10)(b). (c) "Employed" or "carries on a vocation" means employment that is full-time or part-time for a period of time exceeding fourteen days, or for an aggregate period of time exceeding thirty days during any calendar year. A person is employed or carries on a vocation whether the person’s employment is financially compensated, volunteered, or for the purpose of government or educational benefit. (d) "Student" means a person who is enrolled, on a fulltime or part-time basis, in any public or private educational institution. An educational institution includes any secondary school, trade or professional institution, or institution of higher education. (11)(a) A person who knowingly fails to comply with any of the requirements of this section is guilty of a class C felony if the crime for which the individual was convicted was a felony sex offense as defined in subsection (10)(a) of this section or a federal or out-of-state conviction for an offense that under the laws of this state would be a felony sex offense as defined in subsection (10)(a) of this section. (b) If the crime for which the individual was convicted was other than a felony or a federal or out-of-state conviction for an offense that under the laws of this state would be other than a felony, violation of this section is a gross misdemeanor. (12)(a) A person who knowingly fails to comply with any of the requirements of this section is guilty of a class C (2006 Ed.) 9A.44.130 felony if the crime for which the individual was convicted was a felony kidnapping offense as defined in subsection (10)(b) of this section or a federal or out-of-state conviction for an offense that under the laws of this state would be a felony kidnapping offense as defined in subsection (10)(b) of this section. (b) If the crime for which the individual was convicted was other than a felony or a federal or out-of-state conviction for an offense that under the laws of this state would be other than a felony, violation of this section is a gross misdemeanor. (13) Except as may otherwise be provided by law, nothing in this section shall impose any liability upon a peace officer, including a county sheriff, or law enforcement agency, for failing to release information authorized under this section. [2006 c 129 § 2; 2006 c 128 § 2; 2006 c 127 § 2; 2006 c 126 § 2; 2005 c 380 § 1. Prior: 2003 c 215 § 1; 2003 c 53 § 68; 2002 c 31 § 1; prior: 2001 c 169 § 1; 2001 c 95 § 2; 2000 c 91 § 2; prior: 1999 sp.s. c 6 § 2; 1999 c 352 § 9; prior: 1998 c 220 § 1; 1998 c 139 § 1; prior: 1997 c 340 § 3; 1997 c 113 § 3; 1996 c 275 § 11; prior: 1995 c 268 § 3; 1995 c 248 § 1; 1995 c 195 § 1; 1994 c 84 § 2; 1991 c 274 § 2; 1990 c 3 § 402.] Reviser’s note: This section was amended by 2006 c 126 § 2, 2006 c 127 § 2, 2006 c 128 § 2, and by 2006 c 129 § 2, each without reference to the other. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—2006 c 129 § 2: "Section 2 of this act takes effect September 1, 2006." [2006 c 129 § 4.] Effective date—2006 c 128 § 2: "Section 2 of this act takes effect September 1, 2006." [2006 c 128 § 8.] Severability—2006 c 127: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2006 c 127 § 1.] Effective date—2006 c 127: "This act takes effect September 1, 2006." [2006 c 127 § 3.] Effective date—2006 c 126 § 2: "Section 2 of this act takes effect September 1, 2006." [2006 c 126 § 10.] Effective date—2005 c 380: "This act takes effect September 1, 2006." [2005 c 380 § 4.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Application—2002 c 31: "This act applies to all persons convicted of communication with a minor either on, before, or after July 1, 2001, unless otherwise relieved of the duty to register under RCW 9A.44.140." [2002 c 31 § 2.] Severability—2002 c 31: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2002 c 31 § 3.] Effective date—2002 c 31: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 12, 2002]." [2002 c 31 § 4.] Effective date—2001 c 95: See note following RCW 9.94A.030. Intent—1999 sp.s. c 6: "It is the intent of this act to revise the law on registration of sex and kidnapping offenders in response to the case of State v. Pickett, Docket number 41562-0-I. The legislature intends that all sex and kidnapping offenders whose history requires them to register shall do so regardless of whether the person has a fixed residence. The lack of a residential address is not to be construed to preclude registration as a sex or kidnapping offender. The legislature intends that persons who lack a residential address shall have an affirmative duty to report to the appropriate county sheriff, based on the level of risk of offending." [1999 sp.s. c 6 § 1.] [Title 9A RCW—page 35] 9A.44.135 Title 9A RCW: Washington Criminal Code Effective date—1999 sp.s. c 6: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [June 7, 1999]." [1999 sp.s. c 6 § 3.] Severability—1998 c 220: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1998 c 220 § 7.] Findings—1997 c 113: See note following RCW 4.24.550. Finding—1996 c 275: See note following RCW 9.94A.505. Purpose—1995 c 268: See note following RCW 9.94A.030. Intent—1994 c 84: "This act is intended to clarify existing law and is not intended to reflect a substantive change in the law." [1994 c 84 § 1.] Finding and intent—1991 c 274: "The legislature finds that sex offender registration has assisted law enforcement agencies in protecting their communities. This act is intended to clarify and amend the deadlines for sex offenders to register. This act’s clarification or amendment of RCW 9A.44.130 does not relieve the obligation of sex offenders to comply with the registration requirements of RCW 9A.44.130 as that statute exists before July 28, 1991." [1991 c 274 § 1.] Finding—Policy—1990 c 3 § 402: "The legislature finds that sex offenders often pose a high risk of reoffense, and that law enforcement’s efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses, are impaired by the lack of information available to law enforcement agencies about convicted sex offenders who live within the law enforcement agency’s jurisdiction. Therefore, this state’s policy is to assist local law enforcement agencies’ efforts to protect their communities by regulating sex offenders by requiring sex offenders to register with local law enforcement agencies as provided in RCW 9A.44.130." [1990 c 3 § 401.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 9A.44.135 9A.44.135 Address verification. (1) When an offender registers with the county sheriff pursuant to RCW 9A.44.130, the county sheriff shall notify the police chief or town marshal of the jurisdiction in which the offender has registered to live. If the offender registers to live in an unincorporated area of the county, the sheriff shall make reasonable attempts to verify that the offender is residing at the registered address. If the offender registers to live in an incorporated city or town, the police chief or town marshal shall make reasonable attempts to verify that the offender is residing at the registered address. Reasonable attempts at verifying an address shall include at a minimum: (a) For offenders who have not been previously designated sexually violent predators under chapter 71.09 RCW or an equivalent procedure in another jurisdiction, each year the chief law enforcement officer of the jurisdiction where the offender is registered to live shall send by certified mail, with return receipt requested, a nonforwardable verification form to the offender at the offender’s last registered address. (b) For offenders who have been previously designated sexually violent predators under chapter 71.09 RCW or the equivalent procedure in another jurisdiction, even if the designation has subsequently been removed, every ninety days the county sheriff shall send by certified mail, with return receipt requested, a nonforwardable verification form to the offender at the offender’s last registered address. (c) The offender must sign the verification form, state on the form whether he or she still resides at the last registered address, and return the form to the chief law enforcement officer of the jurisdiction where the offender is registered to live within ten days after receipt of the form. [Title 9A RCW—page 36] (2) The chief law enforcement officer of the jurisdiction where the offender has registered to live shall make reasonable attempts to locate any sex offender who fails to return the verification form or who cannot be located at the registered address. If the offender fails to return the verification form or the offender is not at the last registered address, the chief law enforcement officer of the jurisdiction where the offender has registered to live shall promptly forward this information to the county sheriff and to the Washington state patrol for inclusion in the central registry of sex offenders. (3) When an offender notifies the county sheriff of a change to his or her residence address pursuant to RCW 9A.44.130, and the new address is in a different law enforcement jurisdiction, the county sheriff shall notify the police chief or town marshal of the jurisdiction from which the offender has moved. [2000 c 91 § 1; 1999 c 196 § 15; 1998 c 220 § 2; 1995 c 248 § 3.] Construction—Short title—1999 c 196: See RCW 72.09.904 and 72.09.905. Severability—1999 c 196: See note following RCW 9.94A.010. Severability—1998 c 220: See note following RCW 9A.44.130. 9A.44.140 Registration of sex offenders and kidnapping offenders—End of duty to register—Expiration of subsection. (1) The duty to register under RCW 9A.44.130 shall end: (a) For a person convicted of a class A felony or an offense listed in subsection (5) of this section, or a person convicted of any sex offense or kidnapping offense who has one or more prior convictions for a sex offense or kidnapping offense: Such person may only be relieved of the duty to register under subsection (3) or (4) of this section. (b) For a person convicted of a class B felony, and the person does not have one or more prior convictions for a sex offense or kidnapping offense and the person’s current offense is not listed in subsection (5) of this section: Fifteen years after the last date of release from confinement, if any, (including full-time residential treatment) pursuant to the conviction, or entry of the judgment and sentence, if the person has spent fifteen consecutive years in the community without being convicted of any new offenses. (c) For a person convicted of a class C felony, a violation of RCW 9.68A.090 or 9A.44.096, or an attempt, solicitation, or conspiracy to commit a class C felony, and the person does not have one or more prior convictions for a sex offense or kidnapping offense and the person’s current offense is not listed in subsection (5) of this section: Ten years after the last date of release from confinement, if any, (including full-time residential treatment) pursuant to the conviction, or entry of the judgment and sentence, if the person has spent ten consecutive years in the community without being convicted of any new offenses. (2) The provisions of subsection (1) of this section shall apply equally to a person who has been found not guilty by reason of insanity under chapter 10.77 RCW of a sex offense or kidnapping offense. (3)(a) Except as provided in (b) of this subsection, any person having a duty to register under RCW 9A.44.130 may petition the superior court to be relieved of that duty, if the person has spent ten consecutive years in the community without being convicted of any new offenses. The petition 9A.44.140 (2006 Ed.) Sex Offenses shall be made to the court in which the petitioner was convicted of the offense that subjects him or her to the duty to register, or, in the case of convictions in other states, a foreign country, or a federal or military court, to the court in Thurston county. The prosecuting attorney of the county shall be named and served as the respondent in any such petition. The court shall consider the nature of the registrable offense committed, and the criminal and relevant noncriminal behavior of the petitioner both before and after conviction, and may consider other factors. Except as provided in subsection (4) of this section, the court may relieve the petitioner of the duty to register only if the petitioner shows, with clear and convincing evidence, that future registration of the petitioner will not serve the purposes of RCW 9A.44.130, 10.01.200, 43.43.540, 46.20.187, 70.48.470, and 72.09.330. (b)(i) The court may not relieve a person of the duty to register if the person has been determined to be a sexually violent predator as defined in RCW 71.09.020, or has been convicted of a sex offense or kidnapping offense that is a class A felony and that was committed with forcible compulsion on or after June 8, 2000. (ii) The court may not relieve a person of the duty to register if the person has been convicted of one aggravated offense or more than one sexually violent offense, as defined in subsection (5) of this section, and the offense or offenses were committed on or after March 12, 2002. (c) Any person subject to (b) of this subsection or subsection (5) of this section may petition the court to be exempted from any community notification requirements that the person may be subject to fifteen years after the later of the entry of the judgment and sentence or the last date of release from confinement, including full-time residential treatment, pursuant to the conviction, if the person has spent the time in the community without being convicted of any new offense. (4) An offender having a duty to register under RCW 9A.44.130 for a sex offense or kidnapping offense committed when the offender was a juvenile may petition the superior court to be relieved of that duty. The court shall consider the nature of the registrable offense committed, and the criminal and relevant noncriminal behavior of the petitioner both before and after adjudication, and may consider other factors. (a) The court may relieve the petitioner of the duty to register for a sex offense or kidnapping offense that was committed while the petitioner was fifteen years of age or older only if the petitioner shows, with clear and convincing evidence, that future registration of the petitioner will not serve the purposes of RCW 9A.44.130, 10.01.200, 43.43.540, 46.20.187, 70.48.470, and 72.09.330. (b) The court may relieve the petitioner of the duty to register for a sex offense or kidnapping offense that was committed while the petitioner was under the age of fifteen if the petitioner (i) has not been adjudicated of any additional sex offenses or kidnapping offenses during the twenty-four months following the adjudication for the offense giving rise to the duty to register, and (ii) proves by a preponderance of the evidence that future registration of the petitioner will not serve the purposes of RCW 9A.44.130, 10.01.200, 43.43.540, 46.20.187, 70.48.470, and 72.09.330. This subsection shall not apply to juveniles prosecuted as adults. (2006 Ed.) 9A.44.140 (5)(a) A person who has been convicted of an aggravated offense, or has been convicted of one or more prior sexually violent offenses or criminal offenses against a victim who is a minor, as defined in (b) of this subsection may only be relieved of the duty to register under subsection (3)(b) of this section. This provision shall apply to convictions for crimes committed on or after July 22, 2001. (b) Unless the context clearly requires otherwise, the following definitions apply only to the federal lifetime registration requirements under this subsection: (i) "Aggravated offense" means an adult conviction that meets the definition of 18 U.S.C. Sec. 2241, which is limited to the following: (A) Any sex offense involving sexual intercourse or sexual contact where the victim is under twelve years of age; (B) RCW 9A.44.040 (rape in the first degree), RCW 9A.44.073 (rape of a child in the first degree), or RCW 9A.44.083 (child molestation in the first degree); (C) Any of the following offenses when committed by forcible compulsion or by the offender administering, by threat or force or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance that substantially impairs the ability of that person to appraise or control conduct: RCW 9A.44.050 (rape in the second degree), RCW 9A.44.100 (indecent liberties), RCW 9A.44.160 (custodial sexual misconduct in the first degree), RCW 9A.64.020 (incest), or RCW 9.68A.040 (sexual exploitation of a minor); (D) Any of the following offenses when committed by forcible compulsion or by the offender administering, by threat or force or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance that substantially impairs the ability of that person to appraise or control conduct, if the victim is twelve years of age or over but under sixteen years of age and the offender is eighteen years of age or over and is more than forty-eight months older than the victim: RCW 9A.44.076 (rape of a child in the second degree), RCW 9A.44.079 (rape of a child in the third degree), RCW 9A.44.086 (child molestation in the second degree), or RCW 9A.44.089 (child molestation in the third degree); (E) A felony with a finding of sexual motivation under RCW 9.94A.835 where the victim is under twelve years of age or that is committed by forcible compulsion or by the offender administering, by threat or force or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance that substantially impairs the ability of that person to appraise or control conduct; (F) An offense that is, under chapter 9A.28 RCW, an attempt or solicitation to commit such an offense; or (G) An offense defined by federal law or the laws of another state that is equivalent to the offenses listed in (b)(i)(A) through (F) of this subsection. (ii) "Sexually violent offense" means an adult conviction that meets the definition of 42 U.S.C. Sec. 14071(a)(1)(A), which is limited to the following: (A) An aggravated offense; (B) An offense that is not an aggravated offense but meets the definition of 18 U.S.C. Sec. 2242, which is limited to RCW 9A.44.050(1) (b) through (f) (rape in the second degree) and RCW 9A.44.100(1) (b) through (f) (indecent liberties); [Title 9A RCW—page 37] 9A.44.145 Title 9A RCW: Washington Criminal Code (C) A felony with a finding of sexual motivation under RCW 9.94A.835 where the victim is incapable of appraising the nature of the conduct or physically incapable of declining participation in, or communicating unwillingness to engage in, the conduct; (D) An offense that is, under chapter 9A.28 RCW, an attempt or solicitation to commit such an offense; or (E) An offense defined by federal law or the laws of another state that is equivalent to the offenses listed in (b)(ii)(A) through (D) of this subsection. (iii) "Criminal offense against a victim who is a minor" means, in addition to any aggravated offense or sexually violent offense where the victim was under eighteen years of age, an adult conviction for the following offenses where the victim is under eighteen years of age: (A) RCW 9A.44.060 (rape in the third degree), RCW 9A.44.076 (rape of a child in the second degree), RCW 9A.44.079 (rape of a child in the third degree), RCW 9A.44.086 (child molestation in the second degree), RCW 9A.44.089 (child molestation in the third degree), RCW 9A.44.093 (sexual misconduct with a minor in the first degree), RCW 9A.44.096 (sexual misconduct with a minor in the second degree), RCW 9A.44.160 (custodial sexual misconduct in the first degree), RCW 9A.64.020 (incest), RCW 9.68A.040 (sexual exploitation of a minor), RCW 9.68A.090 (communication with a minor for immoral purposes), or RCW 9.68A.100 (patronizing a juvenile prostitute); (B) RCW 9A.40.020 (kidnapping in the first degree), RCW 9A.40.030 (kidnapping in the second degree), or RCW 9A.40.040 (unlawful imprisonment), where the victim is a minor and the offender is not the minor’s parent; (C) A felony with a finding of sexual motivation under RCW 9.94A.835 where the victim is a minor; (D) An offense that is, under chapter 9A.28 RCW, an attempt or solicitation to commit such an offense; or (E) An offense defined by federal law or the laws of another state that is equivalent to the offenses listed in (b)(iii)(A) through (D) of this subsection. (6) Unless relieved of the duty to register pursuant to this section, a violation of RCW 9A.44.130 is an ongoing offense for purposes of the statute of limitations under RCW 9A.04.080. (7) Nothing in RCW 9.94A.637 relating to discharge of an offender shall be construed as operating to relieve the offender of his or her duty to register pursuant to RCW 9A.44.130. (8) For purposes of determining whether a person has been convicted of more than one sex offense, failure to register as a sex offender or kidnapping offender is not a sex or kidnapping offense. [2002 c 25 § 1; 2001 c 170 § 2; 2000 c 91 § 3; 1998 c 220 § 3; 1997 c 113 § 4; 1996 c 275 § 12. Prior: 1995 c 268 § 4; 1995 c 248 § 2; 1995 c 195 § 2; 1991 c 274 § 3; 1990 c 3 § 408.] Expiration of subsection: "RCW 9A.44.140(3)(b)(ii) expires July 1, 2012." [2002 c 25 § 2.] Effective date—2002 c 25: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 12, 2002]." [2002 c 25 § 3.] Intent—2001 c 170: "The legislature intends to amend the lifetime sex offender registration requirement so that it is narrowly tailored to meet the requirements of the Jacob Wetterling act." [2001 c 170 § 1.] [Title 9A RCW—page 38] Severability—1998 c 220: See note following RCW 9A.44.130. Findings—1997 c 113: See note following RCW 4.24.550. Finding—1996 c 275: See note following RCW 9.94A.505. Purpose—1995 c 268: See note following RCW 9.94A.030. Finding and intent—1991 c 274: See note following RCW 9A.44.130. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 9A.44.145 9A.44.145 Notification to offenders of changed requirements. The state patrol shall notify registered sex and kidnapping offenders of any change to the registration requirements. [1998 c 139 § 2.] 9A.44.150 9A.44.150 Testimony of child by closed-circuit television. (1) On motion of the prosecuting attorney in a criminal proceeding, the court may order that a child under the age of ten may testify in a room outside the presence of the defendant and the jury while one-way closed-circuit television equipment simultaneously projects the child’s testimony into another room so the defendant and the jury can watch and hear the child testify if: (a) The testimony will: (i) Describe an act or attempted act of sexual contact performed with or on the child witness by another person or with or on a child other than the child witness by another person; (ii) Describe an act or attempted act of physical abuse against the child witness by another person or against a child other than the child witness by another person; or (iii) Describe a violent offense as defined by RCW 9.94A.030 committed against a person known by or familiar to the child witness or by a person known by or familiar to the child witness; (b) The testimony is taken during the criminal proceeding; (c) The court finds by substantial evidence, in a hearing conducted outside the presence of the jury, that requiring the child witness to testify in the presence of the defendant will cause the child to suffer serious emotional or mental distress that will prevent the child from reasonably communicating at the trial. If the defendant is excluded from the presence of the child, the jury must also be excluded; (d) As provided in subsection (1)(a) and (b) of this section, the court may allow a child witness to testify in the presence of the defendant but outside the presence of the jury, via closed-circuit television, if the court finds, upon motion and hearing outside the presence of the jury, that the child will suffer serious emotional distress that will prevent the child from reasonably communicating at the trial in front of the jury, or, that although the child may be able to reasonably communicate at trial in front of the jury, the child will suffer serious emotional or mental distress from testifying in front of the jury. If the child is able to communicate in front of the defendant but not the jury the defendant will remain in the room with the child while the jury is excluded from the room; (e) The court finds that the prosecutor has made all reasonable efforts to prepare the child witness for testifying, including informing the child or the child’s parent or guardian about community counseling services, giving court tours, and explaining the trial process. If the prosecutor fails to demonstrate that preparations were implemented or the pros(2006 Ed.) Sex Offenses ecutor in good faith attempted to implement them, the court shall deny the motion; (f) The court balances the strength of the state’s case without the testimony of the child witness against the defendant’s constitutional rights and the degree of infringement of the closed-circuit television procedure on those rights; (g) The court finds that no less restrictive method of obtaining the testimony exists that can adequately protect the child witness from the serious emotional or mental distress; (h) When the court allows the child witness to testify outside the presence of the defendant, the defendant can communicate constantly with the defense attorney by electronic transmission and be granted reasonable court recesses during the child’s testimony for person-to-person consultation with the defense attorney; (i) The court can communicate with the attorneys by an audio system so that the court can rule on objections and otherwise control the proceedings; (j) All parties in the room with the child witness are on camera and can be viewed by all other parties. If viewing all participants is not possible, the court shall describe for the viewers the location of the prosecutor, defense attorney, and other participants in relation to the child; (k) The court finds that the television equipment is capable of making an accurate reproduction and the operator of the equipment is competent to operate the equipment; and (l) The court imposes reasonable guidelines upon the parties for conducting the filming to avoid trauma to the child witness or abuse of the procedure for tactical advantage. The prosecutor, defense attorney, and a neutral and trained victim’s advocate, if any, shall always be in the room where the child witness is testifying. The court in the court’s discretion depending on the circumstances and whether the jury or defendant or both are excluded from the room where the child is testifying, may remain or may not remain in the room with the child. (2) During the hearing conducted under subsection (1) of this section to determine whether the child witness may testify outside the presence of the defendant and/or the jury, the court may conduct the observation and examination of the child outside the presence of the defendant if: (a) The prosecutor alleges and the court concurs that the child witness will be unable to testify in front of the defendant or will suffer severe emotional or mental distress if forced to testify in front of the defendant; (b) The defendant can observe and hear the child witness by closed-circuit television; (c) The defendant can communicate constantly with the defense attorney during the examination of the child witness by electronic transmission and be granted reasonable court recesses during the child’s examination for person-to-person consultation with the defense attorney; and (d) The court finds the closed-circuit television is capable of making an accurate reproduction and the operator of the equipment is competent to operate the equipment. Whenever possible, all the parties in the room with the child witness shall be on camera so that the viewers can see all the parties. If viewing all participants is not possible, then the court shall describe for the viewers the location of the prosecutor, defense attorney, and other participants in relation to the child. (2006 Ed.) 9A.44.150 (3) The court shall make particularized findings on the record articulating the factors upon which the court based its decision to allow the child witness to testify via closed-circuit television pursuant to this section. The factors the court may consider include, but are not limited to, a consideration of the child’s age, physical health, emotional stability, expressions by the child of fear of testifying in open court or in front of the defendant, the relationship of the defendant to the child, and the court’s observations of the child’s inability to reasonably communicate in front of the defendant or in open court. The court’s findings shall identify the impact the factors have upon the child’s ability to testify in front of the jury or the defendant or both and the specific nature of the emotional or mental trauma the child would suffer. The court shall determine whether the source of the trauma is the presence of the defendant, the jury, or both, and shall limit the use of the closed-circuit television accordingly. (4) This section does not apply if the defendant is an attorney pro se unless the defendant has a court-appointed attorney assisting the defendant in the defense. (5) This section may not preclude the presence of both the child witness and the defendant in the courtroom together for purposes of establishing or challenging the identification of the defendant when identification is a legitimate issue in the proceeding. (6) The Washington supreme court may adopt rules of procedure regarding closed-circuit television procedures. (7) All recorded tapes of testimony produced by closedcircuit television equipment shall be subject to any protective order of the court for the purpose of protecting the privacy of the child witness. (8) Nothing in this section creates a right of the child witness to a closed-circuit television procedure in lieu of testifying in open court. (9) The state shall bear the costs of the closed-circuit television procedure. (10) A child witness may or may not be a victim in the proceeding. (11) Nothing in this section precludes the court, under other circumstances arising under subsection (1)(a) of this section, from allowing a child to testify outside the presence of the defendant and the jury so long as the testimony is presented in accordance with the standards and procedures required in this section. [2005 c 455 § 1; 1990 c 150 § 2.] Legislative declaration—1990 c 150: "The legislature declares that protection of child witnesses in sexual assault and physical abuse cases is a substantial and compelling interest of the state. Sexual and physical abuse cases are some of the most difficult cases to prosecute, in part because frequently no witnesses exist except the child victim. When abuse is prosecuted, a child victim may suffer serious emotional and mental trauma from exposure to the abuser or from testifying in open court. In rare cases, the child is so traumatized that the child is unable to testify at trial and is unavailable as a witness or the child’s ability to communicate in front of the jury or defendant is so reduced that the truth-seeking function of trial is impaired. In other rare cases, the child is able to proceed to trial but suffers long-lasting trauma as a result of testifying in court or in front of the defendant. The creation of procedural devices designed to enhance the truth-seeking process and to shield child victims from the trauma of exposure to the abuser and the courtroom is a compelling state interest." [1990 c 150 § 1.] Severability—1990 c 150: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1990 c 150 § 3.] [Title 9A RCW—page 39] 9A.44.160 Title 9A RCW: Washington Criminal Code 9A.44.160 9A.44.160 Custodial sexual misconduct in the first degree. (1) A person is guilty of custodial sexual misconduct in the first degree when the person has sexual intercourse with another person: (a) When: (i) The victim is a resident of a state, county, or city adult or juvenile correctional facility, including but not limited to jails, prisons, detention centers, or work release facilities, or is under correctional supervision; and (ii) The perpetrator is an employee or contract personnel of a correctional agency and the perpetrator has, or the victim reasonably believes the perpetrator has, the ability to influence the terms, conditions, length, or fact of incarceration or correctional supervision; or (b) When the victim is being detained, under arrest[,] or in the custody of a law enforcement officer and the perpetrator is a law enforcement officer. (2) Consent of the victim is not a defense to a prosecution under this section. (3) Custodial sexual misconduct in the first degree is a class C felony. [1999 c 45 § 1.] 9A.44.170 9A.44.170 Custodial sexual misconduct in the second degree. (1) A person is guilty of custodial sexual misconduct in the second degree when the person has sexual contact with another person: (a) When: (i) The victim is a resident of a state, county, or city adult or juvenile correctional facility, including but not limited to jails, prisons, detention centers, or work release facilities, or is under correctional supervision; and (ii) The perpetrator is an employee or contract personnel of a correctional agency and the perpetrator has, or the victim reasonably believes the perpetrator has, the ability to influence the terms, conditions, length, or fact of incarceration or correctional supervision; or (b) When the victim is being detained, under arrest, or in the custody of a law enforcement officer and the perpetrator is a law enforcement officer. (2) Consent of the victim is not a defense to a prosecution under this section. (3) Custodial sexual misconduct in the second degree is a gross misdemeanor. [1999 c 45 § 2.] 9A.44.180 9A.44.180 Custodial sexual misconduct—Defense. It is an affirmative defense to prosecution under RCW 9A.44.160 or 9A.44.170, to be proven by the defendant by a preponderance of the evidence, that the act of sexual intercourse or sexual contact resulted from forcible compulsion by the other person. [1999 c 45 § 3.] 9A.44.190 9A.44.190 Criminal trespass against children—Definitions. As used in this section and RCW 9A.44.193 and 9A.44.196: (1) "Covered entity" means any public facility or private facility whose primary purpose, at any time, is to provide for the education, care, or recreation of a child or children, including but not limited to community and recreational centers, playgrounds, schools, swimming pools, and state or municipal parks. [Title 9A RCW—page 40] (2) "Child" means a person under the age of eighteen, unless the context clearly indicates that the term is otherwise defined in statute. (3) "Public facility" means a facility operated by a unit of local or state government, or by a nonprofit organization. (4) "Schools" means public and private schools, but does not include home-based instruction as defined in RCW 28A.225.010. (5) "Covered offender" means a person required to register under RCW 9A.44.130 who is eighteen years of age or older, who is not under the jurisdiction of the juvenile rehabilitation authority or currently serving a special sex offender disposition alternative, whose risk level classification has been assessed at a risk level II or a risk level III pursuant to RCW 72.09.345, and who, at any time, has been convicted of one or more of the following offenses: (a) Rape of a child in the first, second, and third degree; child molestation in the first, second, and third degree; indecent liberties against a child under age fifteen; sexual misconduct with a minor in the first and second degree; incest in the first and second degree; luring with sexual motivation; possession of depictions of minors engaged in sexually explicit conduct; dealing in depictions of minors engaged in sexually explicit conduct; bringing into the state depictions of minors engaged in sexually explicit conduct; sexual exploitation of a minor; communicating with a minor for immoral purposes; patronizing a juvenile prostitute; (b) Any felony in effect at any time prior to March 20, 2006, that is comparable to an offense listed in (a) of this subsection, including, but not limited to, statutory rape in the first and second degrees [degree] and carnal knowledge; (c) Any felony offense for which: (i) There was a finding that the offense was committed with sexual motivation; and (ii) The victim of the offense was less than sixteen years of age at the time of the offense; (d) An attempt, conspiracy, or solicitation to commit any of the offenses listed in (a) through (c) of this subsection; (e) Any conviction from any other jurisdiction which is comparable to any of the offenses listed in (a) through (d) of this subsection. [2006 c 126 § 4; 2006 c 125 § 2.] Effective date—2006 c 126 §§ 1 and 3-7: See note following RCW 9A.44.130. Intent—2006 c 125: "It is the intent of the legislature to give public and private entities that provide services to children the tools necessary to prevent convicted child sex offenders from contacting children when those children are within the legal premises of the covered public and private entities." [2006 c 126 § 3; 2006 c 125 § 1.] Severability—2006 c 125: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2006 c 125 § 6.] Effective date—2006 c 125: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 20, 2006]." [2006 c 125 § 7.] 9A.44.193 9A.44.193 Criminal trespass against children—Covered entities. (1) An owner, manager, or operator of a covered entity may order a covered offender from the legal premises of a covered entity as provided under this section. To do this, the owner, manager, or operator of a covered entity (2006 Ed.) Harassment must first provide the covered offender, or cause the covered offender to be provided, personal service of a written notice that informs the covered offender that: (a) The covered offender must leave the legal premises of the covered entity and may not return without the written permission of the covered entity; and (b) If the covered offender refuses to leave the legal premises of the covered entity, or thereafter returns and enters within the legal premises of the covered entity without written permission, the offender may be charged and prosecuted for a felony offense as provided in RCW 9A.44.196. (2) A covered entity may give written permission of entry and use to a covered offender to enter and remain on the legal premises of the covered entity at particular times and for lawful purposes, including, but not limited to, conducting business, voting, or participating in educational or recreational activities. Any written permission of entry and use of the legal premises of a covered entity must be clearly stated in a written document and must be personally served on the covered offender. If the covered offender violates the conditions of entry and use contained in a written document personally served on the offender by the covered entity, the covered offender may be charged and prosecuted for a felony offense as provided in RCW 9A.44.196. (3) An owner, employee, or agent of a covered entity shall be immune from civil liability for damages arising from excluding or failing to exclude a covered offender from a covered entity or from imposing or failing to impose conditions of entry and use on a covered offender. (4) A person provided with written notice from a covered entity under this section may file a petition with the district court alleging that he or she does not meet the definition of "covered offender" in RCW 9A.44.190. The district court must conduct a hearing on the petition within thirty days of the petition being filed. In the hearing on the petition, the person has the burden of proving that he or she is not a covered offender. If the court finds, by a preponderance of the evidence, that the person is not a covered offender, the court shall order the covered entity to rescind the written notice and shall order the covered entity to pay the person’s costs and reasonable attorneys’ fees. [2006 c 126 § 5; 2006 c 125 § 3.] Effective date—2006 c 126 §§ 1 and 3-7: See note following RCW 9A.44.130. Intent—Severability—Effective date—2006 c 125: See notes following RCW 9A.44.190. 9A.44.196 9A.44.196 Criminal trespass against children. (1) A person is guilty of the crime of criminal trespass against children if he or she: (a) Is a covered offender as defined in RCW 9A.44.190; and (b)(i) Is personally served with written notice complying with the requirements of RCW 9A.44.193 that excludes the covered offender from the legal premises of the covered entity and remains upon or reenters the legal premises of the covered entity; or (ii) Is personally served with written notice complying with the requirements of RCW 9A.44.193 that imposes conditions of entry and use on the covered offender and violates the conditions of entry and use. (2006 Ed.) 9A.46.010 (2) Criminal trespass against children is a class C felony. [2006 c 126 § 6; 2006 c 125 § 4.] Effective date—2006 c 126 §§ 1 and 3-7: See note following RCW 9A.44.130. Intent—Severability—Effective date—2006 c 125: See notes following RCW 9A.44.190. 9A.44.900 9A.44.900 Decodifications and additions to this chapter. RCW 9.79.140, 9.79.150, 9.79.160, 9.79.170 as now or hereafter amended, 9.79.180 as now or hereafter amended, 9.79.190 as now or hereafter amended, 9.79.200 as now or hereafter amended, 9.79.210 as now or hereafter amended, 9.79.220 as now or hereafter amended, 9A.88.020, and 9A.88.100 are each decodified and are each added to Title 9A RCW as a new chapter with the designation chapter 9A.44 RCW. [1979 ex.s. c 244 § 17.] 9A.44.901 9A.44.901 Construction—Sections decodified and added to this chapter. The sections decodified by RCW 9A.44.900 and added to Title 9A RCW as a new chapter with the designation chapter 9A.44 RCW shall be construed as part of Title 9A RCW. [1979 ex.s. c 244 § 18.] 9A.44.902 9A.44.902 Effective date—1979 ex.s. c 244. This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect on July 1, 1979. [1979 ex.s. c 244 § 19.] 9A.44.903 9A.44.903 Section captions—1988 c 145. Section captions as used in this chapter do not constitute any part of the law. [1988 c 145 § 22.] Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. Chapter 9A.46 Chapter 9A.46 RCW HARASSMENT Sections 9A.46.010 9A.46.020 9A.46.030 9A.46.040 9A.46.050 9A.46.060 9A.46.070 9A.46.080 9A.46.090 9A.46.100 9A.46.110 9A.46.120 9A.46.900 9A.46.905 9A.46.910 Legislative finding. Definition—Penalties. Place where committed. Court-ordered requirements upon person charged with crime—Violation. Arraignment—No-contact order. Crimes included in harassment. Enforcement of orders restricting contact. Order restricting contact—Violation. Nonliability of peace officer. "Convicted," time when. Stalking. Criminal gang intimidation. Short title. Effective date—1985 c 288. Severability—1985 c 288. Disclosure of information to person threatened or harassed by mentally ill person: RCW 71.05.390. Harassment: RCW 9A.36.080, chapter 10.14 RCW. 9A.46.010 9A.46.010 Legislative finding. The legislature finds that the prevention of serious, personal harassment is an important government objective. Toward that end, this chapter is aimed at making unlawful the repeated invasions of a person’s privacy by acts and threats which show a pattern of [Title 9A RCW—page 41] 9A.46.020 Title 9A RCW: Washington Criminal Code harassment designed to coerce, intimidate, or humiliate the victim. The legislature further finds that the protection of such persons from harassment can be accomplished without infringing on constitutionally protected speech or activity. [1985 c 288 § 1.] 9A.46.020 9A.46.020 Definition—Penalties. (1) A person is guilty of harassment if: (a) Without lawful authority, the person knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or (ii) To cause physical damage to the property of a person other than the actor; or (iii) To subject the person threatened or any other person to physical confinement or restraint; or (iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and (b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. "Words or conduct" includes, in addition to any other form of communication or conduct, the sending of an electronic communication. (2)(a) Except as provided in (b) of this subsection, a person who harasses another is guilty of a gross misdemeanor. (b) A person who harasses another is guilty of a class C felony if either of the following applies: (i) The person has previously been convicted in this or any other state of any crime of harassment, as defined in RCW 9A.46.060, of the same victim or members of the victim’s family or household or any person specifically named in a no-contact or noharassment order; or (ii) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person. (3) The penalties provided in this section for harassment do not preclude the victim from seeking any other remedy otherwise available under law. [2003 c 53 § 69; 1999 c 27 § 2; 1997 c 105 § 1; 1992 c 186 § 2; 1985 c 288 § 2.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Intent—1999 c 27: "It is the intent of chapter 27, Laws of 1999 to clarify that electronic communications are included in the types of conduct and actions that can constitute the crimes of harassment and stalking. It is not the intent of the legislature, by adoption of chapter 27, Laws of 1999, to restrict in any way the types of conduct or actions that can constitute harassment or stalking." [1999 c 27 § 1.] Severability—1992 c 186: See note following RCW 9A.46.110. 9A.46.030 9A.46.030 Place where committed. Any harassment offense committed as set forth in RCW 9A.46.020 or 9A.46.110 may be deemed to have been committed where the conduct occurred or at the place from which the threat or threats were made or at the place where the threats were received. [1992 c 186 § 3; 1985 c 288 § 3.] Severability—1992 c 186: See note following RCW 9A.46.110. 9A.46.040 9A.46.040 Court-ordered requirements upon person charged with crime—Violation. (1) Because of the likelihood of repeated harassment directed at those who have been [Title 9A RCW—page 42] victims of harassment in the past, when any defendant charged with a crime involving harassment is released from custody before trial on bail or personal recognizance, the court authorizing the release may require that the defendant: (a) Stay away from the home, school, business, or place of employment of the victim or victims of the alleged offense or other location, as shall be specifically named by the court in the order; (b) Refrain from contacting, intimidating, threatening, or otherwise interfering with the victim or victims of the alleged offense and such other persons, including but not limited to members of the family or household of the victim, as shall be specifically named by the court in the order. (2) An intentional violation of a court order issued under this section is a misdemeanor. The written order releasing the defendant shall contain the court’s directives and shall bear the legend: Violation of this order is a criminal offense under chapter 9A.46 RCW. A certified copy of the order shall be provided to the victim by the clerk of the court. [1985 c 288 § 4.] 9A.46.050 9A.46.050 Arraignment—No-contact order. A defendant who is charged by citation, complaint, or information with an offense involving harassment and not arrested shall appear in court for arraignment in person as soon as practicable, but in no event later than fourteen days after the next day on which court is in session following the issuance of the citation or the filing of the complaint or information. At that appearance, the court shall determine the necessity of imposing a no-contact or no-harassment order, and consider the provisions of RCW 9.41.800, or other conditions of pretrial release according to the procedures established by court rule for preliminary appearance or an arraignment. [1994 sp.s. c 7 § 447; 1985 c 288 § 5.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9A.46.060 9A.46.060 Crimes included in harassment. As used in this chapter, "harassment" may include but is not limited to any of the following crimes: (1) Harassment (RCW 9A.46.020); (2) Malicious harassment (RCW 9A.36.080); (3) Telephone harassment (RCW 9.61.230); (4) Assault in the first degree (RCW 9A.36.011); (5) Assault of a child in the first degree (RCW 9A.36.120); (6) Assault in the second degree (RCW 9A.36.021); (7) Assault of a child in the second degree (RCW 9A.36.130); (8) Assault in the fourth degree (RCW 9A.36.041); (9) Reckless endangerment (RCW 9A.36.050); (10) Extortion in the first degree (RCW 9A.56.120); (11) Extortion in the second degree (RCW 9A.56.130); (12) Coercion (RCW 9A.36.070); (13) Burglary in the first degree (RCW 9A.52.020); (14) Burglary in the second degree (RCW 9A.52.030); (15) Criminal trespass in the first degree (RCW 9A.52.070); (2006 Ed.) Harassment (16) Criminal trespass in the second degree (RCW 9A.52.080); (17) Malicious mischief in the first degree (RCW 9A.48.070); (18) Malicious mischief in the second degree (RCW 9A.48.080); (19) Malicious mischief in the third degree (RCW 9A.48.090); (20) Kidnapping in the first degree (RCW 9A.40.020); (21) Kidnapping in the second degree (RCW 9A.40.030); (22) Unlawful imprisonment (RCW 9A.40.040); (23) Rape in the first degree (RCW 9A.44.040); (24) Rape in the second degree (RCW 9A.44.050); (25) Rape in the third degree (RCW 9A.44.060); (26) Indecent liberties (RCW 9A.44.100); (27) Rape of a child in the first degree (RCW 9A.44.073); (28) Rape of a child in the second degree (RCW 9A.44.076); (29) Rape of a child in the third degree (RCW 9A.44.079); (30) Child molestation in the first degree (RCW 9A.44.083); (31) Child molestation in the second degree (RCW 9A.44.086); (32) Child molestation in the third degree (RCW 9A.44.089); (33) Stalking (RCW 9A.46.110); (34) Cyberstalking (RCW 9.61.260); (35) Residential burglary (RCW 9A.52.025); (36) Violation of a temporary, permanent, or final protective order issued pursuant to chapter 7.90, 9A.46, 10.14, 10.99, 26.09, or 26.50 RCW; (37) Unlawful discharge of a laser in the first degree (RCW 9A.49.020); and (38) Unlawful discharge of a laser in the second degree (RCW 9A.49.030). [2006 c 138 § 21; 2004 c 94 § 4; 1999 c 180 § 7; 1997 c 338 § 52. Prior: 1994 c 271 § 802; 1994 c 121 § 2; prior: 1992 c 186 § 4; 1992 c 145 § 12; 1988 c 145 § 15; 1985 c 288 § 6.] Short title—2006 c 138: See RCW 7.90.900. Severability—Effective dates—2004 c 94: See notes following RCW 9.61.260. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Severability—1992 c 186: See note following RCW 9A.46.110. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. 9A.46.070 9A.46.070 Enforcement of orders restricting contact. Any law enforcement agency in this state may enforce this chapter as it relates to orders restricting the defendants’ ability to have contact with the victim or others. [1985 c 288 § 7.] (2006 Ed.) 9A.46.110 9A.46.080 9A.46.080 Order restricting contact—Violation. The victim shall be informed by local law enforcement agencies or the prosecuting attorney of the final disposition of the case in which the victim is involved. If a defendant is found guilty of a crime of harassment and a condition of the sentence restricts the defendant’s ability to have contact with the victim or witnesses, the condition shall be recorded and a written certified copy of that order shall be provided to the victim or witnesses by the clerk of the court. Willful violation of a court order issued under this section is a misdemeanor. The written order shall contain the court’s directives and shall bear the legend: Violation of this order is a criminal offense under chapter 9A.46 RCW and will subject a violator to arrest. [1985 c 288 § 8.] 9A.46.090 9A.46.090 Nonliability of peace officer. A peace officer shall not be held liable in any civil action for an arrest based on probable cause, enforcement in good faith of a court order, or any other action or omission in good faith under this chapter arising from an alleged incident of harassment brought by any party to the incident. [1985 c 288 § 9.] 9A.46.100 9A.46.100 "Convicted," time when. As used in RCW 9.61.230, 9.61.260, 9A.46.020, or 9A.46.110, a person has been "convicted" at such time as a plea of guilty has been accepted or a verdict of guilty has been filed, notwithstanding the pendency of any future proceedings including but not limited to sentencing, posttrial motions, and appeals. [2004 c 94 § 5; 1992 c 186 § 5; 1985 c 288 § 10.] Severability—Effective dates—2004 c 94: See notes following RCW 9.61.260. Severability—1992 c 186: See note following RCW 9A.46.110. 9A.46.110 9A.46.110 Stalking. (1) A person commits the crime of stalking if, without lawful authority and under circumstances not amounting to a felony attempt of another crime: (a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and (b) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person. The feeling of fear must be one that a reasonable person in the same situation would experience under all the circumstances; and (c) The stalker either: (i) Intends to frighten, intimidate, or harass the person; or (ii) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person. (2)(a) It is not a defense to the crime of stalking under subsection (1)(c)(i) of this section that the stalker was not given actual notice that the person did not want the stalker to contact or follow the person; and (b) It is not a defense to the crime of stalking under subsection (1)(c)(ii) of this section that the stalker did not intend to frighten, intimidate, or harass the person. (3) It shall be a defense to the crime of stalking that the defendant is a licensed private investigator acting within the capacity of his or her license as provided by chapter 18.165 RCW. [Title 9A RCW—page 43] 9A.46.120 Title 9A RCW: Washington Criminal Code (4) Attempts to contact or follow the person after being given actual notice that the person does not want to be contacted or followed constitutes prima facie evidence that the stalker intends to intimidate or harass the person. "Contact" includes, in addition to any other form of contact or communication, the sending of an electronic communication to the person. (5)(a) Except as provided in (b) of this subsection, a person who stalks another person is guilty of a gross misdemeanor. (b) A person who stalks another is guilty of a class C felony if any of the following applies: (i) The stalker has previously been convicted in this state or any other state of any crime of harassment, as defined in RCW 9A.46.060, of the same victim or members of the victim’s family or household or any person specifically named in a protective order; (ii) the stalking violates any protective order protecting the person being stalked; (iii) the stalker has previously been convicted of a gross misdemeanor or felony stalking offense under this section for stalking another person; (iv) the stalker was armed with a deadly weapon, as defined in RCW 9.94A.602, while stalking the person; (v) the stalker’s victim is or was a law enforcement officer, judge, juror, attorney, victim advocate, legislator, community correction’s officer, or an employee of the child protective, child welfare, or adult protective services division within the department of social and health services, and the stalker stalked the victim to retaliate against the victim for an act the victim performed during the course of official duties or to influence the victim’s performance of official duties; or (vi) the stalker’s victim is a current, former, or prospective witness in an adjudicative proceeding, and the stalker stalked the victim to retaliate against the victim as a result of the victim’s testimony or potential testimony. (6) As used in this section: (a) "Follows" means deliberately maintaining visual or physical proximity to a specific person over a period of time. A finding that the alleged stalker repeatedly and deliberately appears at the person’s home, school, place of employment, business, or any other location to maintain visual or physical proximity to the person is sufficient to find that the alleged stalker follows the person. It is not necessary to establish that the alleged stalker follows the person while in transit from one location to another. (b) "Harasses" means unlawful harassment as defined in RCW 10.14.020. (c) "Protective order" means any temporary or permanent court order prohibiting or limiting violence against, harassment of, contact or communication with, or physical proximity to another person. (d) "Repeatedly" means on two or more separate occasions. [2006 c 95 § 3; 2003 c 53 § 70. Prior: 1999 c 143 § 35; 1999 c 27 § 3; 1994 c 271 § 801; 1992 c 186 § 1.] Findings—Intent—2006 c 95: See note following RCW 74.04.790. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Intent—1999 c 27: See note following RCW 9A.46.020. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Severability—1992 c 186: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or [Title 9A RCW—page 44] the application of the provision to other persons or circumstances is not affected." [1992 c 186 § 10.] 9A.46.120 9A.46.120 Criminal gang intimidation. A person commits the offense of criminal gang intimidation if the person threatens another person with bodily injury because the other person refuses to join or has attempted to withdraw from a gang, as defined in RCW 28A.600.455, if the person who threatens the victim or the victim attends or is registered in a public or alternative school. Criminal gang intimidation is a class C felony. [1997 c 266 § 3.] Findings—Intent—Severability—1997 c 266: See notes following RCW 28A.600.455. 9A.46.900 9A.46.900 Short title. This act shall be known as the anti-harassment act of 1985. [1985 c 288 § 12.] 9A.46.905 9A.46.905 Effective date—1985 c 288. This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect May 1, 1985. [1985 c 288 § 15.] 9A.46.910 9A.46.910 Severability—1985 c 288. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1985 c 288 § 14.] Chapter 9A.48 Chapter 9A.48 RCW ARSON, RECKLESS BURNING, AND MALICIOUS MISCHIEF Sections 9A.48.010 9A.48.020 9A.48.030 9A.48.040 9A.48.050 9A.48.060 9A.48.070 9A.48.080 9A.48.090 9A.48.100 9A.48.110 9A.48.120 Definitions. Arson in the first degree. Arson in the second degree. Reckless burning in the first degree. Reckless burning in the second degree. Reckless burning—Defense. Malicious mischief in the first degree. Malicious mischief in the second degree. Malicious mischief in the third degree. Malicious mischief—"Physical damage" defined. Defacing a state monument. Civil disorder training. Explosives: Chapter 70.74 RCW. 9A.48.010 9A.48.010 Definitions. (1) For the purpose of this chapter, unless the context indicates otherwise: (a) "Building" has the definition in RCW 9A.04.110(5), and where a building consists of two or more units separately secured or occupied, each unit shall not be treated as a separate building; (b) "Damages", in addition to its ordinary meaning, includes any charring, scorching, burning, or breaking, or agricultural or industrial sabotage, and shall include any diminution in the value of any property as a consequence of an act; (c) "Property of another" means property in which the actor possesses anything less than exclusive ownership. (2) To constitute arson it is not necessary that a person other than the actor has ownership in the building or structure (2006 Ed.) Arson, Reckless Burning, and Malicious Mischief damaged or set on fire. [2002 c 32 § 1; 1975-’76 2nd ex.s. c 38 § 6; 1975 1st ex.s. c 260 § 9A.48.010.] Effective date—2002 c 32: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 12, 2002]." [2002 c 32 § 2.] Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. 9A.48.090 (a) No person other than the defendant had a possessory, or pecuniary interest in the damaged or endangered property, or if other persons had such an interest, all of them consented to the defendant’s conduct; and (b) The defendant’s sole intent was to destroy or damage the property for a lawful purpose. [1975 1st ex.s. c 260 § 9A.48.060.] 9A.48.070 9A.48.020 9A.48.020 Arson in the first degree. (1) A person is guilty of arson in the first degree if he knowingly and maliciously: (a) Causes a fire or explosion which is manifestly dangerous to any human life, including firemen; or (b) Causes a fire or explosion which damages a dwelling; or (c) Causes a fire or explosion in any building in which there shall be at the time a human being who is not a participant in the crime; or (d) Causes a fire or explosion on property valued at ten thousand dollars or more with intent to collect insurance proceeds. (2) Arson in the first degree is a class A felony. [1981 c 203 § 2; 1975 1st ex.s. c 260 § 9A.48.020.] 9A.48.070 Malicious mischief in the first degree. (1) A person is guilty of malicious mischief in the first degree if he knowingly and maliciously: (a) Causes physical damage to the property of another in an amount exceeding one thousand five hundred dollars; (b) Causes an interruption or impairment of service rendered to the public by physically damaging or tampering with an emergency vehicle or property of the state, a political subdivision thereof, or a public utility or mode of public transportation, power, or communication; or (c) Causes an impairment of the safety, efficiency, or operation of an aircraft by physically damaging or tampering with the aircraft or aircraft equipment, fuel, lubricant, or parts. (2) Malicious mischief in the first degree is a class B felony. [1983 1st ex.s. c 4 § 1; 1975 1st ex.s. c 260 § 9A.48.070.] 9A.48.030 9A.48.030 Arson in the second degree. (1) A person is guilty of arson in the second degree if he knowingly and maliciously causes a fire or explosion which damages a building, or any structure or erection appurtenant to or joining any building, or any wharf, dock, machine, engine, automobile, or other motor vehicle, watercraft, aircraft, bridge, or trestle, or hay, grain, crop, or timber, whether cut or standing or any range land, or pasture land, or any fence, or any lumber, shingle, or other timber products, or any property. (2) Arson in the second degree is a class B felony. [1975 1st ex.s. c 260 § 9A.48.030.] 9A.48.040 9A.48.040 Reckless burning in the first degree. (1) A person is guilty of reckless burning in the first degree if he recklessly damages a building or other structure or any vehicle, railway car, aircraft or watercraft or any hay, grain, crop, or timber whether cut or standing, by knowingly causing a fire or explosion. (2) Reckless burning in the first degree is a class C felony. [1975 1st ex.s. c 260 § 9A.48.040.] Severability—1983 1st ex.s. c 4: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1983 1st ex.s. c 4 § 6.] 9A.48.080 9A.48.080 Malicious mischief in the second degree. (1) A person is guilty of malicious mischief in the second degree if he or she knowingly and maliciously: (a) Causes physical damage to the property of another in an amount exceeding two hundred fifty dollars; or (b) Creates a substantial risk of interruption or impairment of service rendered to the public, by physically damaging or tampering with an emergency vehicle or property of the state, a political subdivision thereof, or a public utility or mode of public transportation, power, or communication. (2) Malicious mischief in the second degree is a class C felony. [1994 c 261 § 17; 1979 c 145 § 2; 1975 1st ex.s. c 260 § 9A.48.080.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. Action by owner of stolen livestock: RCW 4.24.320. 9A.48.090 9A.48.050 9A.48.050 Reckless burning in the second degree. (1) A person is guilty of reckless burning in the second degree if he knowingly causes a fire or explosion, whether on his own property or that of another, and thereby recklessly places a building or other structure, or any vehicle, railway car, aircraft, or watercraft, or any hay, grain, crop or timber, whether cut or standing, in danger of destruction or damage. (2) Reckless burning in the second degree is a gross misdemeanor. [1975 1st ex.s. c 260 § 9A.48.050.] 9A.48.060 9A.48.060 Reckless burning—Defense. In any prosecution for the crime of reckless burning in the first or second degrees, it shall be a defense if the defendant establishes by a preponderance of the evidence that: (2006 Ed.) 9A.48.090 Malicious mischief in the third degree. (1) A person is guilty of malicious mischief in the third degree if he or she: (a) Knowingly and maliciously causes physical damage to the property of another, under circumstances not amounting to malicious mischief in the first or second degree; or (b) Writes, paints, or draws any inscription, figure, or mark of any type on any public or private building or other structure or any real or personal property owned by any other person unless the person has obtained the express permission of the owner or operator of the property, under circumstances not amounting to malicious mischief in the first or second degree. (2)(a) Malicious mischief in the third degree under subsection (1)(a) of this section is a gross misdemeanor if the [Title 9A RCW—page 45] 9A.48.100 Title 9A RCW: Washington Criminal Code damage to the property is in an amount exceeding fifty dollars. (b) Malicious mischief in the third degree under subsection (1)(a) of this section is a misdemeanor if the damage to the property is fifty dollars or less. (c) Malicious mischief in the third degree under subsection (1)(b) of this section is a gross misdemeanor. [2003 c 53 § 71; 1996 c 35 § 1; 1975 1st ex.s. c 260 § 9A.48.090.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. so long as it is not done for the purpose of furthering a civil disorder. (5) For the purposes of this section: (a) "Civil disorder" means any public disturbance involving acts of violence that is intended to cause an immediate danger of, or to result in, significant injury to the person of any other individual. (b) "Law enforcement officer" means any law enforcement officer as defined in RCW 9A.76.020(2) including members of the Washington national guard, as defined in RCW 38.04.010. [2002 c 340 § 1.] 9A.48.100 9A.48.100 Malicious mischief—"Physical damage" defined. For the purposes of RCW 9A.48.070 through 9A.48.090 inclusive: (1) "Physical damage", in addition to its ordinary meaning, shall include the total or partial alteration, damage, obliteration, or erasure of records, information, data, computer programs, or their computer representations, which are recorded for use in computers or the impairment, interruption, or interference with the use of such records, information, data, or computer programs, or the impairment, interruption, or interference with the use of any computer or services provided by computers. "Physical damage" also includes any diminution in the value of any property as the consequence of an act; (2) If more than one item of property is physically damaged as a result of a common scheme or plan by a person and the physical damage to the property would, when considered separately, constitute mischief in the third degree because of value, then the value of the damages may be aggregated in one count. If the sum of the value of all the physical damages exceeds two hundred fifty dollars, the defendant may be charged with and convicted of malicious mischief in the second degree. [1984 c 273 § 4; 1981 c 260 § 2. Prior: 1979 ex.s. c 244 § 11; 1979 c 145 § 3; 1977 ex.s. c 174 § 1; 1975 1st ex.s. c 260 § 9A.48.100.] Effective date—1979 ex.s. c 244: See RCW 9A.44.902. Chapter 9A.49 Chapter 9A.49 RCW LASERS Sections 9A.49.001 9A.49.010 9A.49.020 9A.49.030 9A.49.040 9A.49.050 Findings. Definitions. Unlawful discharge of a laser in the first degree. Unlawful discharge of a laser in the second degree. Civil infraction, when. Exclusions. 9A.49.001 9A.49.001 Findings. The legislature finds that lasers are becoming both less expensive and more accessible in our technologically advanced society. Laser devices are being used by individuals in a manner so as to intimidate and harass. This creates an especially serious problem for law enforcement officers who reasonably believe they are the target of a laser sighting device on a firearm. Additionally, emergency service providers, service providers, and others who operate aircraft or motor vehicles may be negatively affected to the point of jeopardizing their safety as well as the safety of others. In order to address the misuse of lasers, the legislature hereby finds it necessary to criminalize the discharge of lasers under certain circumstances. [1999 c 180 § 1.] Action by owner of stolen livestock: RCW 4.24.320. 9A.49.010 Computer trespass: RCW 9A.52.110 through 9A.52.130. 9A.48.110 9A.48.110 Defacing a state monument. (1) A person is guilty of defacing a state monument if he or she knowingly defaces a monument or memorial on the state capitol campus or other state property. (2) Defacing a state monument is a misdemeanor. [1995 c 66 § 1.] 9A.48.120 9A.48.120 Civil disorder training. (1) A person is guilty of civil disorder training if he or she teaches or demonstrates to any other person the use, application, or making of any device or technique capable of causing significant bodily injury or death to persons, knowing, or having reason to know or intending that same will be unlawfully employed for use in, or in furtherance of, a civil disorder. (2) Civil disorder training is a class B felony. (3) Nothing in this section makes unlawful any act of any law enforcement officer that is performed in the lawful performance of his or her official duties. (4) Nothing in this section makes unlawful any act of firearms training, target shooting, or other firearms activity, [Title 9A RCW—page 46] 9A.49.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Aircraft" means any contrivance known or hereafter invented, used, or designed for navigation of or flight in air. (2) "Laser" means any device designed or used to amplify electromagnetic radiation by simulated [stimulated] emission which is visible to the human eye. (3) "Laser sighting system or device" means any system or device which is integrated with or affixed to a firearm and which emits a laser light beam that is used by the shooter to assist in the sight alignment of that firearm. [1999 c 180 § 2.] 9A.49.020 9A.49.020 Unlawful discharge of a laser in the first degree. (1) A person is guilty of unlawful discharge of a laser in the first degree if he or she knowingly and maliciously discharges a laser, under circumstances not amounting to malicious mischief in the first degree: (a) At a law enforcement officer or other employee of a law enforcement agency who is performing his or her official duties in uniform or exhibiting evidence of his or her authority, and in a manner that would support that officer’s or (2006 Ed.) Interference With Health Care Facilities or Providers employee’s reasonable belief that he or she is targeted with a laser sighting device or system; or (b) At a law enforcement officer or other employee of a law enforcement agency who is performing his or her official duties, causing an impairment of the safety or operation of a law enforcement vehicle or causing an interruption or impairment of service rendered to the public by negatively affecting the officer or employee; or (c) At a pilot, causing an impairment of the safety or operation of an aircraft or causing an interruption or impairment of service rendered to the public by negatively affecting the pilot; or (d) At a fire fighter or other employee of a fire department, county fire marshal’s office, county fire prevention bureau, or fire protection district who is performing his or her official duties, causing an impairment of the safety or operation of an emergency vehicle or causing an interruption or impairment of service rendered to the public by negatively affecting the fire fighter or employee; or (e) At a transit operator or driver of a public or private transit company while that person is performing his or her official duties, causing an impairment of the safety or operation of a transit vehicle or causing an interruption or impairment of service rendered to the public by negatively affecting the operator or driver; or (f) At a school bus driver employed by a school district or private company while the driver is performing his or her official duties, causing an impairment of the safety or operation of a school bus or causing an interruption or impairment of service by negatively affecting the bus driver. (2) Except as provided in RCW 9A.49.040, unlawful discharge of a laser in the first degree is a class C felony. [1999 c 180 § 3.] 9A.49.030 9A.49.030 Unlawful discharge of a laser in the second degree. (1) A person is guilty of unlawful discharge of a laser in the second degree if he or she knowingly and maliciously discharges a laser, under circumstances not amounting to unlawful discharge of a laser in the first degree or malicious mischief in the first or second degree: (a) At a person, not described in RCW 9A.49.020(1) (a) through (f), who is operating a motor vehicle at the time, causing an impairment of the safety or operation of a motor vehicle by negatively affecting the driver; or (b) At a person described in RCW 9A.49.020(1) (b) through (f), causing a substantial risk of an impairment or interruption as described in RCW 9A.49.020(1) (b) through (f); or (c) At a person in order to intimidate or threaten that person. (2) Except as provided in RCW 9A.49.040, unlawful discharge of a laser in the second degree is a gross misdemeanor. [1999 c 180 § 4.] 9A.49.040 9A.49.040 Civil infraction, when. Unlawful discharge of a laser in the first degree or second degree is a civil infraction if committed by a juvenile who has not before committed either offense. The monetary penalty imposed upon a juvenile may not exceed one hundred dollars. [1999 c 180 § 5.] (2006 Ed.) 9A.50.020 9A.49.050 9A.49.050 Exclusions. This chapter does not apply to the conduct of a laser development activity by or on behalf of the United States armed forces. [1999 c 180 § 6.] Chapter 9A.50 RCW INTERFERENCE WITH HEALTH CARE FACILITIES OR PROVIDERS Chapter 9A.50 Sections 9A.50.005 9A.50.010 9A.50.020 9A.50.030 9A.50.040 9A.50.050 9A.50.060 9A.50.070 9A.50.900 9A.50.901 9A.50.902 Finding. Definitions. Interference with health care facility. Penalty. Civil remedies. Civil damages. Informational picketing. Protection of health care patients and providers. Construction. Severability—1993 c 128. Effective date—1993 c 128. 9A.50.005 9A.50.005 Finding. The legislature finds that seeking or obtaining health care is fundamental to public health and safety. [1993 c 128 § 1.] 9A.50.010 9A.50.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Health care facility" means a facility that provides health care services directly to patients, including but not limited to, a hospital, clinic, health care provider’s office, health maintenance organization, diagnostic or treatment center, neuropsychiatric or mental health facility, hospice, or nursing home. (2) "Health care provider" has the same meaning as defined in RCW 7.70.020 (1) and (2), and also means an officer, director, employee, or agent of a health care facility who sues or testifies regarding matters within the scope of his or her employment. (3) "Aggrieved" means: (a) A person, physically present at the health care facility when the prohibited actions occur, whose access is or is about to be obstructed or impeded; (b) A person, physically present at the health care facility when the prohibited actions occur, whose care is or is about to be disrupted; (c) The health care facility, its employees, or agents; (d) The owner of the health care facility or the building or property upon which the health care facility is located. [1993 c 128 § 2.] 9A.50.020 9A.50.020 Interference with health care facility. It is unlawful for a person except as otherwise protected by state or federal law, alone or in concert with others, to willfully or recklessly interfere with access to or from a health care facility or willfully or recklessly disrupt the normal functioning of such facility by: (1) Physically obstructing or impeding the free passage of a person seeking to enter or depart from the facility or from the common areas of the real property upon which the facility is located; (2) Making noise that unreasonably disturbs the peace within the facility; [Title 9A RCW—page 47] 9A.50.030 Title 9A RCW: Washington Criminal Code (3) Trespassing on the facility or the common areas of the real property upon which the facility is located; (4) Telephoning the facility repeatedly, or knowingly permitting any telephone under his or her control to be used for such purpose; or (5) Threatening to inflict injury on the owners, agents, patients, employees, or property of the facility or knowingly permitting any telephone under his or her control to be used for such purpose. [1993 c 128 § 3.] 9A.50.030 9A.50.030 Penalty. A violation of RCW 9A.50.020 is a gross misdemeanor. A person convicted of violating RCW 9A.50.020 shall be punished as follows: (1) For a first offense, a fine of not less than two hundred fifty dollars and a jail term of not less than twenty-four consecutive hours; (2) For a second offense, a fine of not less than five hundred dollars and a jail term of not less than seven consecutive days; and (3) For a third or subsequent offense, a fine of not less than one thousand dollars and a jail term of not less than thirty consecutive days. [1993 c 128 § 4.] 9A.50.040 9A.50.040 Civil remedies. (1) A person or health care facility aggrieved by the actions prohibited by RCW 9A.50.020 may seek civil damages from those who committed the prohibited acts and those acting in concert with them. A plaintiff in an action brought under this chapter shall not recover more than his or her actual damages and additional sums authorized in RCW 9A.50.050. Once a plaintiff recovers his or her actual damages and any additional sums authorized under this chapter, additional damages shall not be recovered. A person does not have to be criminally convicted of violating RCW 9A.50.020 to be held civilly liable under this section. It is not necessary to prove actual damages to recover the additional sums authorized under RCW 9A.50.050, costs, and attorneys’ fees. The prevailing party is entitled to recover costs and attorneys’ fees. (2) The superior courts of this state shall have authority to grant temporary, preliminary, and permanent injunctive relief to enjoin violations of this chapter. In appropriate circumstances, any superior court having personal jurisdiction over one or more defendants may issue injunctive relief that shall have binding effect on the original defendants and persons acting in concert with the original defendants, in any county in the state. Due to the nature of the harm involved, injunctive relief may be issued without bond in the discretion of the court, notwithstanding any other requirement imposed by statute. The state and its political subdivisions shall cooperate in the enforcement of court injunctions that seek to protect against acts prohibited by this chapter. [1993 c 128 § 6.] 9A.50.050 9A.50.050 Civil damages. In a civil action brought under this chapter, an individual plaintiff aggrieved by the actions prohibited by RCW 9A.50.020 may be entitled to recover up to five hundred dollars for each day that the actions occurred, or up to five thousand dollars for each day that the actions occurred if the plaintiff aggrieved by the [Title 9A RCW—page 48] actions prohibited under RCW 9A.50.020 is a health care facility. [1993 c 128 § 7.] 9A.50.060 9A.50.060 Informational picketing. Nothing in RCW 9A.50.020 shall prohibit either lawful picketing or other publicity for the purpose of providing the public with information. [1993 c 128 § 8.] 9A.50.070 9A.50.070 Protection of health care patients and providers. A court having jurisdiction over a criminal or civil proceeding under this chapter shall take all steps reasonably necessary to safeguard the individual privacy and prevent harassment of a health care patient or health care provider who is a party or witness in a proceeding, including granting protective orders and orders in limine. [1993 c 128 § 9.] 9A.50.900 9A.50.900 Construction. Nothing in this chapter shall be construed to limit the right to seek other available criminal or civil remedies. The remedies provided in this chapter are cumulative, not exclusive. [1993 c 128 § 11.] 9A.50.901 9A.50.901 Severability—1993 c 128. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1993 c 128 § 12.] 9A.50.902 9A.50.902 Effective date—1993 c 128. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [April 26, 1993]. [1993 c 128 § 14.] Chapter 9A.52 Chapter 9A.52 RCW BURGLARY AND TRESPASS Sections 9A.52.010 9A.52.020 9A.52.025 9A.52.030 9A.52.040 9A.52.050 9A.52.060 9A.52.070 9A.52.080 9A.52.090 9A.52.095 9A.52.100 9A.52.110 9A.52.120 9A.52.130 Definitions. Burglary in the first degree. Residential burglary. Burglary in the second degree. Inference of intent. Other crime in committing burglary punishable. Making or having burglar tools. Criminal trespass in the first degree. Criminal trespass in the second degree. Criminal trespass—Defenses. Vehicle prowling in the first degree. Vehicle prowling in the second degree. Computer trespass in the first degree. Computer trespass in the second degree. Computer trespass—Commission of other crime. 9A.52.010 9A.52.010 Definitions. The following definitions apply in this chapter: (1) "Premises" includes any building, dwelling, structure used for commercial aquaculture, or any real property; (2) "Enter". The word "enter" when constituting an element or part of a crime, shall include the entrance of the person, or the insertion of any part of his body, or any instrument or weapon held in his hand and used or intended to be used to threaten or intimidate a person or to detach or remove property; (2006 Ed.) Burglary and Trespass (3) "Enters or remains unlawfully". A person "enters or remains unlawfully" in or upon premises when he is not then licensed, invited, or otherwise privileged to so enter or remain. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of a building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him by the owner of the land or some other authorized person, or unless notice is given by posting in a conspicuous manner. Land that is used for commercial aquaculture or for growing an agricultural crop or crops, other than timber, is not unimproved and apparently unused land if a crop or any other sign of cultivation is clearly visible or if notice is given by posting in a conspicuous manner. Similarly, a field fenced in any manner is not unimproved and apparently unused land. A license or privilege to enter or remain on improved and apparently used land that is open to the public at particular times, which is neither fenced nor otherwise enclosed in a manner to exclude intruders, is not a license or privilege to enter or remain on the land at other times if notice of prohibited times of entry is posted in a conspicuous manner; (4) "Data" means a representation of information, knowledge, facts, concepts, or instructions that are being prepared or have been prepared in a formalized manner and are intended for use in a computer; (5) "Computer program" means an ordered set of data representing coded instructions or statements that when executed by a computer cause the computer to process data; (6) "Access" means to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, directly or by electronic means. [2004 c 69 § 1; 1985 c 289 § 1. Prior: 1984 c 273 § 5; 1984 c 49 § 1; 1975 1st ex.s. c 260 § 9A.52.010.] 9A.52.020 9A.52.020 Burglary in the first degree. (1) A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person. (2) Burglary in the first degree is a class A felony. [1996 c 15 § 1; 1995 c 129 § 9 (Initiative Measure No. 159); 1975 1st ex.s. c 260 § 9A.52.020.] Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. 9A.52.025 9A.52.025 Residential burglary. (1) A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle. (2) Residential burglary is a class B felony. In establishing sentencing guidelines and disposition standards, the sentencing guidelines commission and the juvenile disposition standards commission shall consider residential burglary as a (2006 Ed.) 9A.52.080 more serious offense than second degree burglary. [1989 2nd ex.s. c 1 § 1; 1989 c 412 § 1.] Effective date—1989 2nd ex.s. c 1: "This act shall take effect July 1, 1990." [1989 2nd ex.s. c 1 § 4; 1989 c 412 § 4.] 9A.52.030 9A.52.030 Burglary in the second degree. (1) A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling. (2) Burglary in the second degree is a class B felony. [1989 2nd ex.s. c 1 § 2; 1989 c 412 § 2; 1975-’76 2nd ex.s. c 38 § 7; 1975 1st ex.s. c 260 § 9A.52.030.] Effective date—1989 2nd ex.s. c 1: See note following RCW 9A.52.025. Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. 9A.52.040 9A.52.040 Inference of intent. In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent. [1975 1st ex.s. c 260 § 9A.52.040.] 9A.52.050 9A.52.050 Other crime in committing burglary punishable. Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately. [1975 1st ex.s. c 260 § 9A.52.050.] 9A.52.060 9A.52.060 Making or having burglar tools. (1) Every person who shall make or mend or cause to be made or mended, or have in his possession, any engine, machine, tool, false key, pick lock, bit, nippers, or implement adapted, designed, or commonly used for the commission of burglary under circumstances evincing an intent to use or employ, or allow the same to be used or employed in the commission of a burglary, or knowing that the same is intended to be so used, shall be guilty of making or having burglar tools. (2) Making or having burglar tools is a gross misdemeanor. [1975 1st ex.s. c 260 § 9A.52.060.] 9A.52.070 9A.52.070 Criminal trespass in the first degree. (1) A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a building. (2) Criminal trespass in the first degree is a gross misdemeanor. [1979 ex.s. c 244 § 12; 1975 1st ex.s. c 260 § 9A.52.070.] Effective date—1979 ex.s. c 244: See RCW 9A.44.902. 9A.52.080 9A.52.080 Criminal trespass in the second degree. (1) A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree. (2) Criminal trespass in the second degree is a misdemeanor. [1979 ex.s. c 244 § 13; 1975 1st ex.s. c 260 § 9A.52.080.] [Title 9A RCW—page 49] 9A.52.090 Title 9A RCW: Washington Criminal Code Effective date—1979 ex.s. c 244: See RCW 9A.44.902. 9A.52.090 9A.52.090 Criminal trespass—Defenses. In any prosecution under RCW 9A.52.070 and 9A.52.080, it is a defense that: (1) A building involved in an offense under RCW 9A.52.070 was abandoned; or (2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or (3) The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him to enter or remain; or (4) The actor was attempting to serve legal process which includes any document required or allowed to be served upon persons or property, by any statute, rule, ordinance, regulation, or court order, excluding delivery by the mails of the United States. This defense applies only if the actor did not enter into a private residence or other building not open to the public and the entry onto the premises was reasonable and necessary for service of the legal process. [1986 c 219 § 2; 1975 1st ex.s. c 260 § 9A.52.090.] degree if the person, without authorization, intentionally gains access to a computer system or electronic data base of another under circumstances not constituting the offense in the first degree. (2) Computer trespass in the second degree is a gross misdemeanor. [1984 c 273 § 2.] 9A.52.130 9A.52.130 Computer trespass—Commission of other crime. A person who, in the commission of a computer trespass, commits any other crime may be punished for that other crime as well as for the computer trespass and may be prosecuted for each crime separately. [1984 c 273 § 3.] Physical damage to computer programs: RCW 9A.48.100. Chapter 9A.56 Sections 9A.52.095 Vehicle prowling in the first degree. (1) A person is guilty of vehicle prowling in the first degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a motor home, as defined in RCW 46.04.305, or in a vessel equipped for propulsion by mechanical means or by sail which has a cabin equipped with permanently installed sleeping quarters or cooking facilities. (2) Vehicle prowling in the first degree is a class C felony. [1982 1st ex.s. c 47 § 13.] 9A.56.010 9A.56.020 9A.56.030 9A.56.040 9A.56.050 9A.56.060 9A.56.070 9A.56.075 9A.56.080 9A.56.083 9A.56.085 9A.56.096 9A.56.100 9A.56.110 9A.56.120 9A.56.130 9A.56.140 9A.56.150 Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9A.56.160 9A.52.095 9A.52.100 9A.52.100 Vehicle prowling in the second degree. (1) A person is guilty of vehicle prowling in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a vehicle other than a motor home, as defined in RCW 46.04.305, or a vessel equipped for propulsion by mechanical means or by sail which has a cabin equipped with permanently installed sleeping quarters or cooking facilities. (2) Vehicle prowling in the second degree is a gross misdemeanor. [1982 1st ex.s. c 47 § 14; 1975 1st ex.s. c 260 § 9A.52.100.] Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9A.52.110 9A.52.110 Computer trespass in the first degree. (1) A person is guilty of computer trespass in the first degree if the person, without authorization, intentionally gains access to a computer system or electronic data base of another; and (a) The access is made with the intent to commit another crime; or (b) The violation involves a computer or data base maintained by a government agency. (2) Computer trespass in the first degree is a class C felony. [1984 c 273 § 1.] Chapter 9A.56 RCW THEFT AND ROBBERY 9A.56.170 9A.56.180 9A.56.190 9A.56.200 9A.56.210 9A.56.220 9A.56.230 9A.56.240 9A.56.250 9A.56.260 9A.56.262 9A.56.264 9A.56.266 9A.56.268 9A.56.270 9A.56.280 9A.56.290 9A.56.300 9A.56.310 9A.56.320 9A.56.330 9A.56.340 9A.56.350 9A.56.360 Definitions. Theft—Definition, defense. Theft in the first degree—Other than firearm. Theft in the second degree—Other than firearm. Theft in the third degree. Unlawful issuance of checks or drafts. Taking motor vehicle without permission in the first degree. Taking motor vehicle without permission in the second degree. Theft of livestock in the first degree. Theft of livestock in the second degree. Minimum fine for theft of livestock. Theft of rental, leased, or lease-purchased property. Theft and larceny equated. Extortion—Definition. Extortion in the first degree. Extortion in the second degree. Possessing stolen property—Definition—Presumption. Possessing stolen property in the first degree—Other than firearm. Possessing stolen property in the second degree—Other than firearm. Possessing stolen property in the third degree. Obscuring the identity of a machine. Robbery—Definition. Robbery in the first degree. Robbery in the second degree. Theft of subscription television services. Unlawful sale of subscription television services. Forfeiture and disposal of device used to commit violation. Civil cause of action. Connection of channel converter. Theft of telecommunication services. Unlawful manufacture of telecommunication device. Unlawful sale of telecommunication device. Civil cause of action. Shopping cart theft. Credit, debit cards, checks, etc.—Definitions. Credit, payment cards—Unlawful factoring of transactions. Theft of a firearm. Possessing a stolen firearm. Financial fraud—Unlawful possession, production of instruments of. Possession of another’s identification. Theft with the intent to resell. Organized retail theft. Retail theft with extenuating circumstances. Insurance agent, appropriation of premiums: RCW 48.17.480. Pawnbrokers and second-hand dealers: RCW 19.60.066. Public lands, taking or destroying property is theft: RCW 79.02.310. Public officer misappropriating funds: RCW 42.20.070, 42.20.090. Removing native flora from state lands or highways: RCW 47.40.080. Retaining books, etc., from public library: RCW 27.12.340. 9A.52.120 9A.52.120 Computer trespass in the second degree. (1) A person is guilty of computer trespass in the second [Title 9A RCW—page 50] Search and seizures: Chapter 10.79 RCW. Stealing, receiving railroad property: RCW 81.60.080. (2006 Ed.) Theft and Robbery Stolen property, restoration, sale does not divest rights, duty of officer: RCW 10.79.050. Sufficiency of indictment or information alleging crime of larceny: RCW 10.37.110. 9A.56.010 9A.56.010 Definitions. The following definitions are applicable in this chapter unless the context otherwise requires: (1) "Access device" means any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument; (2) "Appropriate lost or misdelivered property or services" means obtaining or exerting control over the property or services of another which the actor knows to have been lost or mislaid, or to have been delivered under a mistake as to identity of the recipient or as to the nature or amount of the property; (3) "Beverage crate" means a plastic or metal box-like container used by a manufacturer or distributor in the transportation or distribution of individually packaged beverages to retail outlets, and affixed with language stating "property of . . . . .," "owned by . . . . .," or other markings or words identifying ownership; (4) "By color or aid of deception" means that the deception operated to bring about the obtaining of the property or services; it is not necessary that deception be the sole means of obtaining the property or services; (5) "Deception" occurs when an actor knowingly: (a) Creates or confirms another’s false impression which the actor knows to be false; or (b) Fails to correct another’s impression which the actor previously has created or confirmed; or (c) Prevents another from acquiring information material to the disposition of the property involved; or (d) Transfers or encumbers property without disclosing a lien, adverse claim, or other legal impediment to the enjoyment of the property, whether that impediment is or is not valid, or is or is not a matter of official record; or (e) Promises performance which the actor does not intend to perform or knows will not be performed. (6) "Deprive" in addition to its common meaning means to make unauthorized use or an unauthorized copy of records, information, data, trade secrets, or computer programs; (7) "Merchandise pallet" means a wood or plastic carrier designed and manufactured as an item on which products can be placed before or during transport to retail outlets, manufacturers, or contractors, and affixed with language stating "property of . . .," "owned by . . .," or other markings or words identifying ownership; (8) "Obtain control over" in addition to its common meaning, means: (a) In relation to property, to bring about a transfer or purported transfer to the obtainer or another of a legally recognized interest in the property; or (b) In relation to labor or service, to secure performance thereof for the benefits of the obtainer or another; (9) "Owner" means a person, other than the actor, who has possession of or any other interest in the property or ser(2006 Ed.) 9A.56.010 vices involved, and without whose consent the actor has no authority to exert control over the property or services; (10) "Parking area" means a parking lot or other property provided by retailers for use by a customer for parking an automobile or other vehicle; (11) "Receive" includes, but is not limited to, acquiring title, possession, control, or a security interest, or any other interest in the property; (12) "Services" includes, but is not limited to, labor, professional services, transportation services, electronic computer services, the supplying of hotel accommodations, restaurant services, entertainment, the supplying of equipment for use, and the supplying of commodities of a public utility nature such as gas, electricity, steam, and water; (13) "Shopping cart" means a basket mounted on wheels or similar container generally used in a retail establishment by a customer for the purpose of transporting goods of any kind; (14) "Stolen" means obtained by theft, robbery, or extortion; (15) "Subscription television service" means cable or encrypted video and related audio and data services intended for viewing on a home television by authorized members of the public only, who have agreed to pay a fee for the service. Subscription services include but are not limited to those video services presently delivered by coaxial cable, fiber optic cable, terrestrial microwave, television broadcast, and satellite transmission; (16) "Telecommunication device" means (a) any type of instrument, device, machine, or equipment that is capable of transmitting or receiving telephonic or electronic communications; or (b) any part of such an instrument, device, machine, or equipment, or any computer circuit, computer chip, electronic mechanism, or other component, that is capable of facilitating the transmission or reception of telephonic or electronic communications; (17) "Telecommunication service" includes any service other than subscription television service provided for a charge or compensation to facilitate the transmission, transfer, or reception of a telephonic communication or an electronic communication; (18) Value. (a) "Value" means the market value of the property or services at the time and in the approximate area of the criminal act. (b) Whether or not they have been issued or delivered, written instruments, except those having a readily ascertained market value, shall be evaluated as follows: (i) The value of an instrument constituting an evidence of debt, such as a check, draft, or promissory note, shall be deemed the amount due or collectible thereon or thereby, that figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied; (ii) The value of a ticket or equivalent instrument which evidences a right to receive transportation, entertainment, or other service shall be deemed the price stated thereon, if any; and if no price is stated thereon, the value shall be deemed the price of such ticket or equivalent instrument which the issuer charged the general public; (iii) The value of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation shall be deemed the greatest [Title 9A RCW—page 51] 9A.56.020 Title 9A RCW: Washington Criminal Code amount of economic loss which the owner of the instrument might reasonably suffer by virtue of the loss of the instrument. (c) Except as provided in RCW 9A.56.340(4) and 9A.56.350(4), whenever any series of transactions which constitute theft, would, when considered separately, constitute theft in the third degree because of value, and said series of transactions are a part of a criminal episode or a common scheme or plan, then the transactions may be aggregated in one count and the sum of the value of all said transactions shall be the value considered in determining the degree of theft involved. For purposes of this subsection, "criminal episode" means a series of thefts committed by the same person from one or more mercantile establishments on three or more occasions within a five-day period. (d) Whenever any person is charged with possessing stolen property and such person has unlawfully in his possession at the same time the stolen property of more than one person, then the stolen property possessed may be aggregated in one count and the sum of the value of all said stolen property shall be the value considered in determining the degree of theft involved. Thefts committed by the same person in different counties that have been aggregated in one county may be prosecuted in any county in which one of the thefts occurred. (e) Property or services having value that cannot be ascertained pursuant to the standards set forth above shall be deemed to be of a value not exceeding two hundred and fifty dollars; (19) "Wrongfully obtains" or "exerts unauthorized control" means: (a) To take the property or services of another; (b) Having any property or services in one’s possession, custody or control as bailee, factor, lessee, pledgee, renter, servant, attorney, agent, employee, trustee, executor, administrator, guardian, or officer of any person, estate, association, or corporation, or as a public officer, or person authorized by agreement or competent authority to take or hold such possession, custody, or control, to secrete, withhold, or appropriate the same to his or her own use or to the use of any person other than the true owner or person entitled thereto; or (c) Having any property or services in one’s possession, custody, or control as partner, to secrete, withhold, or appropriate the same to his or her use or to the use of any person other than the true owner or person entitled thereto, where the use is unauthorized by the partnership agreement. [2006 c 277 § 4; 2002 c 97 § 1; 1999 c 143 § 36; 1998 c 236 § 1; 1997 c 346 § 2; 1995 c 92 § 1; 1987 c 140 § 1; 1986 c 257 § 2; 1985 c 382 § 1; 1984 c 273 § 6; 1975-’76 2nd ex.s. c 38 § 8; 1975 1st ex.s. c 260 § 9A.56.010.] 9A.56.020 Theft—Definition, defense. (1) "Theft" means: (a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services; or (b) By color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services; or (c) To appropriate lost or misdelivered property or services of another, or the value thereof, with intent to deprive him or her of such property or services. (2) In any prosecution for theft, it shall be a sufficient defense that: (a) The property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable; or (b) The property was merchandise pallets that were received by a pallet recycler or repairer in the ordinary course of its business. [2004 c 122 § 1; 1975-’76 2nd ex.s. c 38 § 9; 1975 1st ex.s. c 260 § 9A.56.020.] 9A.56.020 Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. Civil action for shoplifting by adults, minors: RCW 4.24.230. 9A.56.030 Theft in the first degree—Other than firearm. (1) A person is guilty of theft in the first degree if he or she commits theft of: (a) Property or services which exceed(s) one thousand five hundred dollars in value other than a firearm as defined in RCW 9.41.010; (b) Property of any value other than a firearm as defined in RCW 9.41.010 taken from the person of another; or (c) A search and rescue dog, as defined in RCW 9.91.175, while the search and rescue dog is on duty. (2) Theft in the first degree is a class B felony. [2005 c 212 § 2; 1995 c 129 § 11 (Initiative Measure No. 159); 1975 1st ex.s. c 260 § 9A.56.030.] 9A.56.030 Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. Civil action for shoplifting by adults, minors: RCW 4.24.230. 9A.56.040 Severability—1985 c 382: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 382 § 3.] 9A.56.040 Theft in the second degree—Other than firearm. (1) A person is guilty of theft in the second degree if he or she commits theft of: (a) Property or services which exceed(s) two hundred and fifty dollars in value other than a firearm as defined in RCW 9.41.010, but does not exceed one thousand five hundred dollars in value; or (b) A public record, writing, or instrument kept, filed, or deposited according to law with or in the keeping of any public office or public servant; or (c) An access device; or (d) A motor vehicle, of a value less than one thousand five hundred dollars. (2) Theft in the second degree is a class C felony. [1995 c 129 § 12 (Initiative Measure No. 159); 1994 sp.s. c 7 § 433; 1987 c 140 § 2; 1982 1st ex.s. c 47 § 15; 1975 1st ex.s. c 260 § 9A.56.040.] Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. Severability—1986 c 257: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1986 c 257 § 37.] [Title 9A RCW—page 52] (2006 Ed.) Theft and Robbery Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. Civil action for shoplifting by adults, minors: RCW 4.24.230. 9A.56.050 9A.56.050 Theft in the third degree. (1) A person is guilty of theft in the third degree if he or she commits theft of property or services which (a) does not exceed two hundred and fifty dollars in value, or (b) includes ten or more merchandise pallets, or ten or more beverage crates, or a combination of ten or more merchandise pallets and beverage crates. (2) Theft in the third degree is a gross misdemeanor. [1998 c 236 § 4; 1975 1st ex.s. c 260 § 9A.56.050.] Civil action for shoplifting by adults, minors: RCW 4.24.230. 9A.56.060 9A.56.060 Unlawful issuance of checks or drafts. (1) Any person who shall with intent to defraud, make, or draw, or utter, or deliver to another person any check, or draft, on a bank or other depository for the payment of money, knowing at the time of such drawing, or delivery, that he has not sufficient funds in, or credit with said bank or other depository, to meet said check or draft, in full upon its presentation, shall be guilty of unlawful issuance of bank check. The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank or other depository for the payment of such check or draft, and the uttering or delivery of such a check or draft to another person without such fund or credit to meet the same shall be prima facie evidence of an intent to defraud. (2) Any person who shall with intent to defraud, make, or draw, or utter, or deliver to another person any check, or draft on a bank or other depository for the payment of money and who issues a stop-payment order directing the bank or depository on which the check is drawn not to honor said check, and who fails to make payment of money in the amount of the check or draft or otherwise arrange a settlement agreed upon by the holder of the check within twenty days of issuing said check or draft shall be guilty of unlawful issuance of a bank check. (3) When any series of transactions which constitute unlawful issuance of a bank check would, when considered separately, constitute unlawful issuance of a bank check in an amount of two hundred fifty dollars or less because of value, and the series of transactions are a part of a common scheme or plan, the transactions may be aggregated in one count and the sum of the value of all of the transactions shall be the value considered in determining whether the unlawful issuance of a bank check is to be punished as a class C felony or a gross misdemeanor. (4) Unlawful issuance of a bank check in an amount greater than two hundred fifty dollars is a class C felony. (5) Unlawful issuance of a bank check in an amount of two hundred fifty dollars or less is a gross misdemeanor and shall be punished as follows: (a) The court shall order the defendant to make full restitution; (b) The defendant need not be imprisoned, but the court shall impose a minimum fine of five hundred dollars. Of the (2006 Ed.) 9A.56.075 fine imposed, at least fifty dollars shall not be suspended or deferred. Upon conviction for a second offense within any twelve-month period, the court may suspend or defer only that portion of the fine which is in excess of five hundred dollars. [1982 c 138 § 1; 1979 ex.s. c 244 § 14; 1975 1st ex.s. c 260 § 9A.56.060.] Effective date—1979 ex.s. c 244: See RCW 9A.44.902. Maintenance by state treasurer of accounts in amount less than all warrants outstanding not a violation of RCW 9A.56.060(1): RCW 43.08.135. 9A.56.070 9A.56.070 Taking motor vehicle without permission in the first degree. (1) A person is guilty of taking a motor vehicle without permission in the first degree if he or she, without the permission of the owner or person entitled to possession, intentionally takes or drives away an automobile or motor vehicle, whether propelled by steam, electricity, or internal combustion engine, that is the property of another, and he or she: (a) Alters the motor vehicle for the purpose of changing its appearance or primary identification, including obscuring, removing, or changing the manufacturer’s serial number or the vehicle identification number plates; (b) Removes, or participates in the removal of, parts from the motor vehicle with the intent to sell the parts; (c) Exports, or attempts to export, the motor vehicle across state lines or out of the United States for profit; (d) Intends to sell the motor vehicle; or (e) Is engaged in a conspiracy and the central object of the conspiratorial agreement is the theft of motor vehicles for sale to others for profit. (2) Taking a motor vehicle without permission in the first degree is a class B felony. [2003 c 53 § 72; 2002 c 324 § 1; 1975 1st ex.s. c 260 § 9A.56.070.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Study and report—2002 c 324: "The sentencing guidelines commission shall study the impact of the sentencing changes in this act upon the incidence of the crime of taking a motor vehicle without permission. By December 2004, the commission shall submit a report to the governor and the legislature. The report shall address: (1) Whether the creation of the crime of taking a motor vehicle without permission in the first degree and the increased penalties for that new crime have resulted in a reduction in the number of convictions for taking a motor vehicle without permission in the first or second degree; and (2) Whether there are other actions, either civil or criminal, that could have the effect of further decreasing the incidence of these crimes, including but not limited to: The revocation of driving privileges, double scoring of prior convictions, or increasing penalties for juveniles." [2002 c 324 § 4.] 9A.56.075 9A.56.075 Taking motor vehicle without permission in the second degree. (1) A person is guilty of taking a motor vehicle without permission in the second degree if he or she, without the permission of the owner or person entitled to possession, intentionally takes or drives away any automobile or motor vehicle, whether propelled by steam, electricity, or internal combustion engine, that is the property of another, or he or she voluntarily rides in or upon the automobile or motor vehicle with knowledge of the fact that the automobile or motor vehicle was unlawfully taken. (2) Taking a motor vehicle without permission in the second degree is a class C felony. [2003 c 53 § 73.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. [Title 9A RCW—page 53] 9A.56.080 Title 9A RCW: Washington Criminal Code 9A.56.080 9A.56.080 Theft of livestock in the first degree. (1) Every person who, with intent to sell or exchange and to deprive or defraud the lawful owner thereof, willfully takes, leads, or transports away, conceals, withholds, slaughters, or otherwise appropriates any horse, mule, cow, heifer, bull, steer, swine, goat, or sheep is guilty of theft of livestock in the first degree. (2) Theft of livestock in the first degree is a class B felony. [2005 c 419 § 1; 2003 c 53 § 74; 1986 c 257 § 32; 1977 ex.s. c 174 § 2; 1975 1st ex.s. c 260 § 9A.56.080.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Action by owner of damaged or stolen livestock: RCW 4.24.320. 9A.56.083 9A.56.083 Theft of livestock in the second degree. (1) A person who commits what would otherwise be theft of livestock in the first degree but without intent to sell or exchange, and for the person’s own use only, is guilty of theft of livestock in the second degree. (2) Theft of livestock in the second degree is a class C felony. [2003 c 53 § 75.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9A.56.085 9A.56.085 Minimum fine for theft of livestock. (1) Whenever a person is convicted of a violation of RCW 9A.56.080 or 9A.56.083, the convicting court shall order the person to pay the amount of two thousand dollars for each animal killed or possessed. (2) For the purpose of this section, the term "convicted" includes a plea of guilty, a finding of guilt regardless of whether the imposition of the sentence is deferred or any part of the penalty is suspended, or the levying of a fine. (3) If two or more persons are convicted of any violation of this section, the amount required under this section shall be imposed upon them jointly and severally. (4) The fine in this section shall be imposed in addition to and regardless of any penalty, including fines or costs, that is provided for any violation of this section. The amount imposed by this section shall be included by the court in any pronouncement of sentence and may not be suspended, waived, modified, or deferred in any respect. Nothing in this section may be construed to abridge or alter alternative rights of action or remedies in equity or under common law or statutory law, criminal or civil. (5) A defaulted payment or any installment payment may be collected by any means authorized by law for the enforcement of orders of the court or collection of a fine or costs, including vacation of a deferral of sentencing or of a suspension of sentence. (6) The two thousand dollars additional penalty shall be remitted by the county treasurer to the state treasurer as provided under RCW 10.82.070. [2003 c 53 § 76; 1989 c 131 § 1.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. [Title 9A RCW—page 54] 9A.56.096 9A.56.096 Theft of rental, leased, or lease-purchased property. (1) A person who, with intent to deprive the owner or owner’s agent, wrongfully obtains, or exerts unauthorized control over, or by color or aid of deception gains control of personal property that is rented or leased to the person, is guilty of theft of rental, leased, or lease-purchased property. (2) The finder of fact may presume intent to deprive if the finder of fact finds either of the following: (a) That the person who rented or leased the property failed to return or make arrangements acceptable to the owner of the property or the owner’s agent to return the property to the owner or the owner’s agent within seventy-two hours after receipt of proper notice following the due date of the rental, lease, or lease-purchase agreement; or (b) That the renter or lessee presented identification to the owner or the owner’s agent that was materially false, fictitious, or not current with respect to name, address, place of employment, or other appropriate items. (3) As used in subsection (2) of this section, "proper notice" consists of a written demand by the owner or the owner’s agent made after the due date of the rental, lease, or lease-purchase period, mailed by certified or registered mail to the renter or lessee at: (a) The address the renter or lessee gave when the contract was made; or (b) the renter or lessee’s last known address if later furnished in writing by the renter, lessee, or the agent of the renter or lessee. (4) The replacement value of the property obtained must be utilized in determining the amount involved in the theft of rental, leased, or lease-purchased property. (5)(a) Theft of rental, leased, or lease-purchased property is a class B felony if the rental, leased, or lease-purchased property is valued at one thousand five hundred dollars or more. (b) Theft of rental, leased, or lease-purchased property is a class C felony if the rental, leased, or lease-purchased property is valued at two hundred fifty dollars or more but less than one thousand five hundred dollars. (c) Theft of rental, leased, or lease-purchased property is a gross misdemeanor if the rental, leased, or lease-purchased property is valued at less than two hundred fifty dollars. (6) This section applies to rental agreements that provide that the renter may return the property any time within the rental period and pay only for the time the renter actually retained the property, in addition to any minimum rental fee, to lease agreements, and to lease-purchase agreements as defined under RCW 63.19.010. This section does not apply to rental or leasing of real property under the residential landlord-tenant act, chapter 59.18 RCW. [2003 c 53 § 77; 1997 c 346 § 1.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9A.56.100 9A.56.100 Theft and larceny equated. All offenses defined as larcenies outside of this title shall be treated as thefts as provided in this title. [1975 1st ex.s. c 260 § 9A.56.100.] 9A.56.110 9A.56.110 Extortion—Definition. "Extortion" means knowingly to obtain or attempt to obtain by threat property or services of the owner, and specifically includes sexual favors. (2006 Ed.) Theft and Robbery [1999 c 143 § 37; 1983 1st ex.s. c 4 § 2; 1975-’76 2nd ex.s. c 38 § 10. Prior: 1975 1st ex.s. c 260 § 9A.56.110.] 9A.56.180 ordinary course of its business. [2004 c 122 § 2; 1998 c 236 § 3; 1987 c 140 § 3; 1975 1st ex.s. c 260 § 9A.56.140.] Severability—1983 1st ex.s. c 4: See note following RCW 9A.48.070. 9A.56.150 9A.56.120 Extortion in the first degree. (1) A person is guilty of extortion in the first degree if he commits extortion by means of a threat as defined in *RCW 9A.04.110(25) (a), (b), or (c). (2) Extortion in the first degree is a class B felony. [1975 1st ex.s. c 260 § 9A.56.120.] 9A.56.150 Possessing stolen property in the first degree—Other than firearm. (1) A person is guilty of possessing stolen property in the first degree if he or she possesses stolen property other than a firearm as defined in RCW 9.41.010 which exceeds one thousand five hundred dollars in value. (2) Possessing stolen property in the first degree is a class B felony. [1995 c 129 § 14 (Initiative Measure No. 159); 1975 1st ex.s. c 260 § 9A.56.150.] *Reviser’s note: RCW 9A.04.110 was amended by 2005 c 458 § 3, changing subsection (25) to subsection (26). Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. 9A.56.120 9A.56.160 9A.56.130 9A.56.130 Extortion in the second degree. (1) A person is guilty of extortion in the second degree if he or she commits extortion by means of a wrongful threat as defined in *RCW 9A.04.110(25) (d) through (j). (2) In any prosecution under this section based on a threat to accuse any person of a crime or cause criminal charges to be instituted against any person, it is a defense that the actor reasonably believed the threatened criminal charge to be true and that his or her sole purpose was to compel or induce the person threatened to take reasonable action to make good the wrong which was the subject of such threatened criminal charge. (3) Extortion in the second degree is a class C felony. [2002 c 47 § 2; 1975 1st ex.s. c 260 § 9A.56.130.] *Reviser’s note: RCW 9A.04.110 was amended by 2005 c 458 § 3, changing subsection (25) to subsection (26). Intent—2002 c 47: "The legislature intends to revise the crime of extortion in the second degree in response to the holding in State v. Pauling, 108 Wn. App. 445 (2001), by adding a requirement that the threat required for conviction of the offense be wrongful." [2002 c 47 § 1.] 9A.56.140 9A.56.140 Possessing stolen property—Definition— Presumption. (1) "Possessing stolen property" means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto. (2) The fact that the person who stole the property has not been convicted, apprehended, or identified is not a defense to a charge of possessing stolen property. (3) When a person has in his or her possession, or under his or her control, stolen access devices issued in the names of two or more persons, or ten or more stolen merchandise pallets, or ten or more stolen beverage crates, or a combination of ten or more stolen merchandise pallets and beverage crates, as defined under RCW 9A.56.010, he or she is presumed to know that they are stolen. (4) The presumption in subsection (3) of this section is rebuttable by evidence raising a reasonable inference that the possession of such stolen access devices, merchandise pallets, or beverage crates was without knowledge that they were stolen. (5) In any prosecution for possessing stolen property, it is a sufficient defense that the property was merchandise pallets that were received by a pallet recycler or repairer in the (2006 Ed.) 9A.56.160 Possessing stolen property in the second degree—Other than firearm. (1) A person is guilty of possessing stolen property in the second degree if: (a) He or she possesses stolen property other than a firearm as defined in RCW 9.41.010 which exceeds two hundred fifty dollars in value but does not exceed one thousand five hundred dollars in value; or (b) He or she possesses a stolen public record, writing or instrument kept, filed, or deposited according to law; or (c) He or she possesses a stolen access device; or (d) He or she possesses a stolen motor vehicle of a value less than one thousand five hundred dollars. (2) Possessing stolen property in the second degree is a class C felony. [1995 c 129 § 15 (Initiative Measure No. 159); 1994 sp.s. c 7 § 434; 1987 c 140 § 4; 1975 1st ex.s. c 260 § 9A.56.160.] Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9A.56.170 9A.56.170 Possessing stolen property in the third degree. (1) A person is guilty of possessing stolen property in the third degree if he or she possesses (a) stolen property which does not exceed two hundred fifty dollars in value, or (b) ten or more stolen merchandise pallets, or ten or more stolen beverage crates, or a combination of ten or more stolen merchandise pallets and beverage crates. (2) Possessing stolen property in the third degree is a gross misdemeanor. [1998 c 236 § 2; 1975 1st ex.s. c 260 § 9A.56.170.] 9A.56.180 9A.56.180 Obscuring the identity of a machine. (1) A person is guilty of obscuring the identity of a machine if he knowingly: (a) Obscures the manufacturer’s serial number or any other distinguishing identification number or mark upon any vehicle, machine, engine, apparatus, appliance, or other device with intent to render it unidentifiable; or (b) Possesses a vehicle, machine, engine, apparatus, appliance, or other device held for sale knowing that the serial number or other identification number or mark has been obscured. [Title 9A RCW—page 55] 9A.56.190 Title 9A RCW: Washington Criminal Code (2) "Obscure" means to remove, deface, cover, alter, destroy, or otherwise render unidentifiable. (3) Obscuring the identity of a machine is a gross misdemeanor. [1975-’76 2nd ex.s. c 38 § 11; 1975 1st ex.s. c 260 § 9A.56.180.] Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. 9A.56.190 9A.56.190 Robbery—Definition. A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear. [1975 1st ex.s. c 260 § 9A.56.190.] 9A.56.200 9A.56.200 Robbery in the first degree. (1) A person is guilty of robbery in the first degree if: (a) In the commission of a robbery or of immediate flight therefrom, he or she: (i) Is armed with a deadly weapon; or (ii) Displays what appears to be a firearm or other deadly weapon; or (iii) Inflicts bodily injury; or (b) He or she commits a robbery within and against a financial institution as defined in RCW 7.88.010 or 35.38.060. (2) Robbery in the first degree is a class A felony. [2002 c 85 § 1; 1975 1st ex.s. c 260 § 9A.56.200.] 9A.56.210 9A.56.210 Robbery in the second degree. (1) A person is guilty of robbery in the second degree if he commits robbery. (2) Robbery in the second degree is a class B felony. [1975 1st ex.s. c 260 § 9A.56.210.] 9A.56.220 9A.56.220 Theft of subscription television services. (1) A person is guilty of theft of subscription television services if, with intent to avoid payment of the lawful charge of a subscription television service, he or she: (a) Obtains or attempts to obtain subscription television service from a subscription television service company by trick, artifice, deception, use of a device or decoder, or other fraudulent means without authority from the company providing the service; (b) Assists or instructs a person in obtaining or attempting to obtain subscription television service without authority of the company providing the service; (c) Makes or maintains a connection or connections, whether physical, electrical, mechanical, acoustical, or by other means, with cables, wires, components, or other devices used for the distribution of subscription television services without authority from the company providing the services; [Title 9A RCW—page 56] (d) Makes or maintains a modification or alteration to a device installed with the authorization of a subscription television service company for the purpose of interception or receiving a program or other service carried by the company that the person is not authorized by the company to receive; or (e) Possesses without authority a device designed in whole or in part to receive subscription television services offered for sale by the subscription television service company, regardless of whether the program or services are encoded, filtered, scrambled, or otherwise made unintelligible, or to perform or facilitate the performance of any other acts set out in (a) through (d) of this subsection for the reception of subscription television services without authority. (2) Theft of subscription television services is a gross misdemeanor. [1995 c 92 § 2; 1989 c 11 § 1; 1985 c 430 § 1.] Severability—1989 c 11: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 c 11 § 33.] Severability—1985 c 430: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 430 § 7.] 9A.56.230 9A.56.230 Unlawful sale of subscription television services. (1) A person is guilty of unlawful sale of subscription television services if, with intent to avoid payment or to facilitate the avoidance of payment of the lawful charge for any subscription television service, he or she, without authorization from the subscription television service company: (a) Publishes or advertises for sale a plan for a device that is designed in whole or in part to receive subscription television or services offered for sale by the subscription television service company, regardless of whether the programming or services are encoded, filtered, scrambled, or otherwise made unintelligible; (b) Advertises for sale or lease a device or kit for a device designed in whole or in part to receive subscription television services offered for sale by the subscription television service company, regardless of whether the programming or services are encoded, filtered, scrambled, or otherwise made unintelligible; or (c) Manufactures, imports into the state of Washington, distributes, sells, leases, or offers for sale or lease a device, plan, or kit for a device designed in whole or in part to receive subscription television services offered for sale by the subscription television service company, regardless of whether the programming or services are encoded, filtered, scrambled, or otherwise made unintelligible. (2) Unlawful sale of subscription television services is a class C felony. [1995 c 92 § 3; 1985 c 430 § 2.] Severability—1985 c 430: See note following RCW 9A.56.220. 9A.56.240 9A.56.240 Forfeiture and disposal of device used to commit violation. Upon conviction of theft or unlawful sale of cable television services and upon motion and hearing, the court shall order the forfeiture of any decoder, descrambler, or other device used in committing the violation of RCW 9A.56.220 or 9A.56.230 as contraband and dispose of it at the court’s discretion. [1985 c 430 § 3.] (2006 Ed.) Theft and Robbery Severability—1985 c 430: See note following RCW 9A.56.220. 9A.56.250 9A.56.250 Civil cause of action. (1) In addition to the criminal penalties provided in RCW 9A.56.220 and 9A.56.230, there is created a civil cause of action for theft of subscription television services and for unlawful sale of subscription television services. (2) A person who sustains injury to his or her person, business, or property by an act described in RCW 9A.56.220 or 9A.56.230 may file an action in superior court for recovery of damages and the costs of the suit, including reasonable investigative and attorneys’ fees and costs. (3) Upon finding a violation of RCW 9A.56.220 or 9A.56.230, in addition to the remedies described in this section, the court may impose a civil penalty not exceeding twenty-five thousand dollars. (4) The superior court may grant temporary and final injunctions on such terms as it deems reasonable to prevent or restrain violations of RCW 9A.56.220 and 9A.56.230. [1995 c 92 § 4; 1985 c 430 § 4.] Severability—1985 c 430: See note following RCW 9A.56.220. 9A.56.260 9A.56.260 Connection of channel converter. No person may be charged with theft under RCW 9A.56.220 or subject to a civil cause of action under RCW 9A.56.250 for connecting a nondecoding or nondescrambling channel frequency converter, which includes cable-ready television sets, video recorders, or similar equipment, to a cable system. [1985 c 430 § 5.] Severability—1985 c 430: See note following RCW 9A.56.220. 9A.56.262 9A.56.262 Theft of telecommunication services. (1) A person is guilty of theft of telecommunication services if he or she knowingly and with intent to avoid payment: (a) Uses a telecommunication device to obtain telecommunication services without having entered into a prior agreement with a telecommunication service provider to pay for the telecommunication services; or (b) Possesses a telecommunication device. (2) Theft of telecommunication services is a class C felony. [1995 c 92 § 6.] Telecommunications crime: Chapter 9.26A RCW. 9A.56.264 9A.56.264 Unlawful manufacture of telecommunication device. (1) A person is guilty of unlawful manufacture of a telecommunication device if he or she knowingly and with intent to avoid payment or to facilitate avoidance of payment: (a) Manufactures, produces, or assembles a telecommunication device; (b) Modifies, alters, programs, or reprograms a telecommunication device to be capable of acquiring or of facilitating the acquisition of telecommunication service without the consent of the telecommunication service provider; or (c) Writes, creates, or modifies a computer program that he or she knows is thereby capable of being used to manufacture a telecommunication device. (2) Unlawful manufacture of a telecommunication device is a class C felony. [1995 c 92 § 7.] Telecommunications crime: Chapter 9.26A RCW. (2006 Ed.) 9A.56.270 9A.56.266 9A.56.266 Unlawful sale of telecommunication device. (1) A person is guilty of unlawful sale of a telecommunication device if he or she sells, leases, exchanges, or offers to sell, lease, or exchange: (a) A telecommunication device, knowing that the purchaser, lessee, or recipient, or a third person, intends to use the device to avoid payment or to facilitate avoidance of payment for telecommunication services; or (b) Any material, including data, computer software, or other information and equipment, knowing that the purchaser, lessee, or recipient, or a third person, intends to use the material to avoid payment or to facilitate avoidance of payment for telecommunication services. (2) Unlawful sale of a telecommunication device is a class C felony. [1995 c 92 § 8.] Telecommunications crime: Chapter 9.26A RCW. 9A.56.268 9A.56.268 Civil cause of action. (1) In addition to the criminal penalties provided in RCW 9A.56.262 through 9A.56.266, there is created a civil cause of action for theft of telecommunication services, for unlawful manufacture of a telecommunication device, and for unlawful sale of a telecommunication device. (2) A person who sustains injury to his or her person, business, or property by an act described in RCW 9A.56.262, 9A.56.264, or 9A.56.266 may file an action in superior court for recovery of damages and the costs of the suit, including reasonable investigative and attorneys’ fees and costs. (3) Upon finding a violation of 9A.56.262, 9A.56.264, or 9A.56.266, in addition to the remedies described in this section, the court may impose a civil penalty not exceeding twenty-five thousand dollars. (4) The superior court may grant temporary and final injunctions on such terms as it deems reasonable to prevent or restrain violations of RCW 9A.56.262 through 9A.56.266. [1995 c 92 § 9.] Telecommunications crime: Chapter 9.26A RCW. 9A.56.270 9A.56.270 Shopping cart theft. (1) It is unlawful to do any of the following acts, if a shopping cart has a permanently affixed sign as provided in subsection (2) of this section: (a) To remove a shopping cart from the parking area of a retail establishment with the intent to deprive the owner of the shopping cart the use of the cart; or (b) To be in possession of any shopping cart that has been removed from the parking area of a retail establishment with the intent to deprive the owner of the shopping cart the use of the cart. (2) This section shall apply only when a shopping cart: (a) Has a sign permanently affixed to it that identifies the owner of the cart or the retailer, or both; (b) notifies the public of the procedure to be utilized for authorized removal of the cart from the premises; (c) notifies the public that the unauthorized removal of the cart from the premises or parking area of the retail establishment, or the unauthorized possession of the cart, is unlawful; and (d) lists a telephone number or address for returning carts removed from the premises or parking area to the owner or retailer. [Title 9A RCW—page 57] 9A.56.280 Title 9A RCW: Washington Criminal Code (3) Any person who violates any provision of this section is guilty of a misdemeanor. [1985 c 382 § 2.] Severability—1985 c 382: See note following RCW 9A.56.010. 9A.56.280 9A.56.280 Credit, debit cards, checks, etc.—Definitions. As used in RCW 9A.56.280, 9A.56.290, 9A.60.020, 9A.56.320, and 9A.56.330, unless the context requires otherwise: (1) "Cardholder" means a person to whom a credit card or payment card is issued or a person who otherwise is authorized to use a credit card or payment card. (2) "Check" means a negotiable instrument that meets the definition of "check" under RCW 62A.3-104 or a blank form instrument that would meet the definition of "check" under RCW 62A.3-104 if it were completed and signed. (3) "Credit card" means a card, plate, booklet, credit card number, credit card account number, or other identifying symbol, instrument, or device that can be used to pay for, or to obtain on credit, goods or services. (4) "Credit card or payment card transaction" means a sale or other transaction in which a credit card or payment card is used to pay for, or to obtain on credit, goods or services. (5) "Credit card or payment card transaction record" means a record or evidence of a credit card or payment card transaction, including, without limitation, a paper, sales draft, instrument, or other writing and an electronic or magnetic transmission or record. (6) "Debit card" means a card used to obtain goods or services by a transaction that debits the cardholder’s account, rather than extending credit. (7) "Financial information" means financial information as defined in RCW 9.35.005. (8) "Financial institution" means a bank, trust company, mutual savings bank, savings and loan association, or credit union authorized under state or federal law to do business and accept deposits in Washington. (9) "Means of identification" means means of identification as defined in RCW 9.35.005. (10) "Merchant" means an owner or operator of any retail mercantile establishment or any agent, employee, lessee, consignee, officer, director, franchisee, or independent contractor of such owner or operator. "Merchant" also means a person who receives from an authorized user, a payment card or information from a payment card, or what the person believes to be a payment card or information from a payment card, as the instrument for obtaining, purchasing, or receiving goods, services, money, or anything else of value from the person. (11) "Payment card" means a credit card, charge card, debit card, stored value card, or any card that is issued to an authorized card user and that allows the user to obtain goods, services, money, or anything else of value from a merchant. (12) "Person" means an individual, partnership, corporation, trust, or unincorporated association, but does not include a financial institution or its authorized employees, representatives, or agents. (13) "Personal identification" means any driver’s license, passport, or identification card actually or purportedly issued by any federal, state, local or foreign governmen[Title 9A RCW—page 58] tal entity; any credit card or debit card; or any employee identification card actually or purportedly issued by any employer, public or private, including but not limited to a badge or identification or access card. (14) "Reencoder" means an electronic device that places encoded information from a payment card onto a different payment card. (15) "Scanning device" means a scanner, reader, or any other electronic device that is used to access, read, scan, obtain, memorize, or store, temporarily or permanently, information encoded on a payment card. [2003 c 119 § 3; 2003 c 52 § 1; 1993 c 484 § 1.] Reviser’s note: This section was amended by 2003 c 52 § 1 and by 2003 c 119 § 3, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). 9A.56.290 9A.56.290 Credit, payment cards—Unlawful factoring of transactions. (1) A person commits the crime of unlawful factoring of a credit card or payment card transaction if the person: (a) Uses a scanning device to access, read, obtain, memorize, or store, temporarily or permanently, information encoded on a payment card without the permission of the authorized user of the payment card or with the intent to defraud the authorized user, another person, or a financial institution; (b) Uses a reencoder to place information encoded on a payment card onto a different card without the permission of the authorized issuer of the card from which the information is being reencoded or with the intent to defraud the authorized user, another person, or a financial institution; (c) Presents to or deposits with, or causes another to present to or deposit with, a financial institution for payment a credit card or payment card transaction record that is not the result of a credit card or payment card transaction between the cardholder and the person; (d) Employs, solicits, or otherwise causes a merchant or an employee, representative, or agent of a merchant to present to or deposit with a financial institution for payment a credit card or payment card transaction record that is not the result of a credit card or payment card transaction between the cardholder and the merchant; or (e) Employs, solicits, or otherwise causes another to become a merchant for purposes of engaging in conduct made unlawful by this section. (2) Normal transactions conducted by or through airline reporting corporation-appointed travel agents or cruise-only travel agents recognized by passenger cruise lines are not considered factoring for the purposes of this section. (3) In a proceeding under this section that is related to an identity theft under RCW 9.35.020, the crime will be considered to have been committed in any locality where the person whose means of identification or financial information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in that locality. (4)(a) Unlawful factoring of a credit card or payment card transaction is a class C felony. (2006 Ed.) Theft and Robbery (b) A second or subsequent violation of subsection (1) of this section is a class B felony. [2003 c 119 § 4; 2003 c 52 § 2; 1993 c 484 § 2.] Reviser’s note: This section was amended by 2003 c 52 § 2 and by 2003 c 119 § 4, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). 9A.56.300 9A.56.300 Theft of a firearm. (1) A person is guilty of theft of a firearm if he or she commits a theft of any firearm. (2) This section applies regardless of the value of the firearm taken in the theft. (3) Each firearm taken in the theft under this section is a separate offense. (4) The definition of "theft" and the defense allowed against the prosecution for theft under RCW 9A.56.020 shall apply to the crime of theft of a firearm. (5) As used in this section, "firearm" means any firearm as defined in RCW 9.41.010. (6) Theft of a firearm is a class B felony. [1995 c 129 § 10 (Initiative Measure No. 159); 1994 sp.s. c 7 § 432.] Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 9A.56.310 9A.56.310 Possessing a stolen firearm. (1) A person is guilty of possessing a stolen firearm if he or she possesses, carries, delivers, sells, or is in control of a stolen firearm. (2) This section applies regardless of the stolen firearm’s value. (3) Each stolen firearm possessed under this section is a separate offense. (4) The definition of "possessing stolen property" and the defense allowed against the prosecution for possessing stolen property under RCW 9A.56.140 shall apply to the crime of possessing a stolen firearm. (5) As used in this section, "firearm" means any firearm as defined in RCW 9.41.010. (6) Possessing a stolen firearm is a class B felony. [1995 c 129 § 13 (Initiative Measure No. 159).] Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. 9A.56.320 9A.56.320 Financial fraud—Unlawful possession, production of instruments of. (1) A person is guilty of unlawful production of payment instruments if he or she prints or produces a check or other payment instrument in the name of a person or entity, or with the routing number or account number of a person or entity, without the permission of the person or entity to manufacture or reproduce such payment instrument with such name, routing number, or account number. (2)(a) A person is guilty of unlawful possession of payment instruments if he or she possesses two or more checks or other payment instruments, alone or in combination: (i) In the name of a person or entity, or with the routing number or account number of a person or entity, without the permission of the person or entity to possess such payment (2006 Ed.) 9A.56.320 instrument, and with intent either to deprive the person of possession of such payment instrument or to commit theft, forgery, or identity theft; or (ii) In the name of a fictitious person or entity, or with a fictitious routing number or account number of a person or entity, with intent to use the payment instruments to commit theft, forgery, or identity theft. (b) (a)(i) of this subsection does not apply to: (i) A person or financial institution that has lawful possession of a check, which is endorsed to that person or financial institution; and (ii) A person or financial institution that processes checks for a lawful business purpose. (3) A person is guilty of unlawful possession of a personal identification device if the person possesses a personal identification device with intent to use such device to commit theft, forgery, or identity theft. "Personal identification device" includes any machine or instrument whose purpose is to manufacture or print any driver’s license or identification card issued by any state or the federal government, or any employee identification issued by any employer, public or private, including but not limited to badges and identification cards, or any credit or debit card. (4) A person is guilty of unlawful possession of fictitious identification if the person possesses a personal identification card with a fictitious person’s identification with intent to use such identification card to commit theft, forgery, or identity theft, when the possession does not amount to a violation of RCW 9.35.020. (5) A person is guilty of unlawful possession of instruments of financial fraud if the person possesses a check-making machine, equipment, or software, with intent to use or distribute checks for purposes of defrauding an account holder, business, financial institution, or any other person or organization. (6) This section does not apply to: (a) A person, business, or other entity, that has lawful possession of a check, which is endorsed to that person, business, or other entity; (b) A financial institution or other entity that processes checks for a lawful business purpose; (c) A person engaged in a lawful business who obtains another person’s personal identification in the ordinary course of that lawful business; (d) A person who obtains another person’s personal identification for the sole purpose of misrepresenting his or her age; and (e) A law enforcement agency that produces or displays counterfeit credit or debit cards, checks or other payment instruments, or personal identification devices for investigative or educational purposes. (7) In a proceeding under this section that is related to an identity theft under RCW 9.35.020, the crime will be considered to have been committed in any locality where the person whose means of identification or financial information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in that locality. (8) A violation of this section is a class C felony. [2003 c 119 § 1.] [Title 9A RCW—page 59] 9A.56.330 Title 9A RCW: Washington Criminal Code 9A.56.330 Possession of another’s identification. (1) A person is guilty of possession of another’s identification if the person knowingly possesses personal identification bearing another person’s identity, when the person possessing the personal identification does not have the other person’s permission to possess it, and when the possession does not amount to a violation of RCW 9.35.020. (2) This section does not apply to: (a) A person who obtains, by means other than theft, another person’s personal identification for the sole purpose of misrepresenting his or her age; (b) A person engaged in a lawful business who obtains another person’s personal identification in the ordinary course of business; (c) A person who finds another person’s lost personal identification, does not intend to deprive the other person of the personal identification or to use it to commit a crime, and takes reasonably prompt steps to return it to its owner; and (d) A law enforcement agency that produces or displays counterfeit credit or debit cards, checks or other payment instruments, or personal identification for investigative or educational purposes. (3) In a proceeding under this section that is related to an identity theft under RCW 9.35.020, the crime will be considered to have been committed in any locality where the person whose means of identification or financial information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in that locality. (4) A violation of this section is a gross misdemeanor. [2003 c 119 § 2.] 9A.56.330 9A.56.340 Theft with the intent to resell. (1) A person is guilty of theft with the intent to resell if he or she commits theft of property with a value of at least two hundred fifty dollars from a mercantile establishment with the intent to resell the property for monetary or other gain. (2) The person is guilty of theft with the intent to resell in the first degree if the property has a value of one thousand five hundred dollars or more. Theft with the intent to resell in the first degree is a class B felony. (3) The person is guilty of theft with the intent to resell in the second degree if the property has a value of at least two hundred fifty dollars, but less than one thousand five hundred dollars. Theft with the intent to resell in the second degree is a class C felony. (4) For purposes of this section, a series of thefts committed by the same person from one or more mercantile establishments over a period of one hundred eighty days may be aggregated in one count and the sum of the value of all the property shall be the value considered in determining the degree of the theft with the intent to resell involved. Thefts committed by the same person in different counties that have been aggregated in one county may be prosecuted in any county in which one of the thefts occurred. [2006 c 277 § 1.] 9A.56.340 9A.56.350 Organized retail theft. (1) A person is guilty of organized retail theft if he or she: (a) Commits theft of property with a value of at least two hundred fifty dollars from a mercantile establishment with an accomplice; or 9A.56.350 [Title 9A RCW—page 60] (b) Possesses stolen property, as defined in RCW 9A.56.140, with a value of at least two hundred fifty dollars from a mercantile establishment with an accomplice. (2) A person is guilty of organized retail theft in the first degree if the property stolen or possessed has a value of one thousand five hundred dollars or more. Organized retail theft in the first degree is a class B felony. (3) A person is guilty of organized retail theft in the second degree if the property stolen or possessed has a value of at least two hundred fifty dollars, but less than one thousand five hundred dollars. Organized retail theft in the second degree is a class C felony. (4) For purposes of this section, a series of thefts committed by the same person from one or more mercantile establishments over a period of one hundred eighty days may be aggregated in one count and the sum of the value of all the property shall be the value considered in determining the degree of the organized retail theft involved. Thefts committed by the same person in different counties that have been aggregated in one county may be prosecuted in any county in which one of the thefts occurred. [2006 c 277 § 2.] 9A.56.360 9A.56.360 Retail theft with extenuating circumstances. (1) A person commits retail theft with extenuating circumstances if he or she commits theft of property from a mercantile establishment with one of the following extenuating circumstances: (a) To facilitate the theft, the person leaves the mercantile establishment through a designated emergency exit; (b) The person was, at the time of the theft, in possession of an item, article, implement, or device designed to overcome security systems including, but not limited to, lined bags or tag removers; or (c) The person committed theft at three or more separate and distinct mercantile establishments within a one hundred eighty-day period. (2) A person is guilty of retail theft with extenuating circumstances in the first degree if the theft involved constitutes theft in the first degree. Retail theft with extenuating circumstances in the first degree is a class B felony. (3) A person is guilty of retail theft with extenuating circumstances in the second degree if the theft involved constitutes theft in the second degree. Retail theft with extenuating circumstances in the second degree is a class C felony. (4) A person is guilty of retail theft with extenuating circumstances in the third degree if the theft involved constitutes theft in the third degree. Retail theft with extenuating circumstances in the third degree is a class C felony. [2006 c 277 § 3.] Chapter 9A.60 Chapter 9A.60 RCW FRAUD Sections 9A.60.010 9A.60.020 9A.60.030 9A.60.040 9A.60.045 9A.60.050 9A.60.060 Definitions. Forgery. Obtaining a signature by deception or duress. Criminal impersonation in the first degree. Criminal impersonation in the second degree. False certification. Fraudulent creation or revocation of a mental health advance directive. (2006 Ed.) Fraud 9A.60.070 False academic credentials—Unlawful issuance or use—Definitions—Penalties. Ballots, forgery: RCW 29A.84.410. Cigarette tax stamps, forgery: RCW 82.24.100. False representations: Chapter 9.38 RCW. Food, drugs, and cosmetics act: Chapter 69.04 RCW. Forest products, forgery of brands or marks: RCW 76.36.110, 76.36.120. Forged instruments, tools for making, search and seizure: RCW 10.79.015. Forgery: RCW 9A.60.020. Frauds and swindles: Chapter 9.45 RCW. Honey act: RCW 69.28.180. Land registration forgery: RCW 65.12.760. Misdescription of instrument forged immaterial: RCW 10.37.080. 9A.60.045 (b) He possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged. (2) In a proceeding under this section that is related to an identity theft under RCW 9.35.020, the crime will be considered to have been committed in any locality where the person whose means of identification or financial information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in that locality. (3) Forgery is a class C felony. [2003 c 119 § 5; 1975’76 2nd ex.s. c 38 § 13; 1975 1st ex.s. c 260 § 9A.60.020.] Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. Mutual savings bank, falsification: RCW 32.04.100. 9A.60.030 Obtaining employment by forged recommendation: RCW 49.44.040. Offering forged instrument for filing: RCW 40.16.030. Optometry certificates falsification: RCW 18.53.140, 18.53.150. Osteopathy license falsification: RCW 18.57.160. Public bonds, forgery: Chapter 39.44 RCW. Public works, falsification of records, etc.: RCW 39.04.110, 39.12.050. 9A.60.010 9A.60.010 Definitions. The following definitions and the definitions of RCW 9A.56.010 are applicable in this chapter unless the context otherwise requires: (1) "Written instrument" means: (a) Any paper, document, or other instrument containing written or printed matter or its equivalent; or (b) any access device, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege, or identification; (2) "Complete written instrument" means one which is fully drawn with respect to every essential feature thereof; (3) "Incomplete written instrument" means one which contains some matter by way of content or authentication but which requires additional matter in order to render it a complete written instrument; (4) To "falsely make" a written instrument means to make or draw a complete or incomplete written instrument which purports to be authentic, but which is not authentic either because the ostensible maker is fictitious or because, if real, he did not authorize the making or drawing thereof; (5) To "falsely complete" a written instrument means to transform an incomplete written instrument into a complete one by adding or inserting matter, without the authority of anyone entitled to grant it; (6) To "falsely alter" a written instrument means to change, without authorization by anyone entitled to grant it, a written instrument, whether complete or incomplete, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or in any other manner; (7) "Forged instrument" means a written instrument which has been falsely made, completed, or altered. [1999 c 143 § 38; 1987 c 140 § 5; 1975-’76 2nd ex.s. c 38 § 12; 1975 1st ex.s. c 260 § 9A.60.010.] Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. 9A.60.020 Forgery. (1) A person is guilty of forgery if, with intent to injure or defraud: (a) He falsely makes, completes, or alters a written instrument or; 9A.60.020 (2006 Ed.) 9A.60.030 Obtaining a signature by deception or duress. (1) A person is guilty of obtaining a signature by deception or duress if by deception or duress and with intent to defraud or deprive he causes another person to sign or execute a written instrument. (2) Obtaining a signature by deception or duress is a class C felony. [1975-’76 2nd ex.s. c 38 § 14; 1975 1st ex.s. c 260 § 9A.60.030.] Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. 9A.60.040 9A.60.040 Criminal impersonation in the first degree. (1) A person is guilty of criminal impersonation in the first degree if the person: (a) Assumes a false identity and does an act in his or her assumed character with intent to defraud another or for any other unlawful purpose; or (b) Pretends to be a representative of some person or organization or a public servant and does an act in his or her pretended capacity with intent to defraud another or for any other unlawful purpose. (2) Criminal impersonation in the first degree is a class C felony. [2004 c 11 § 1; 2003 c 53 § 78; 1993 c 457 § 1; 1975 1st ex.s. c 260 § 9A.60.040.] Effective date—2004 c 11: "This act takes effect July 1, 2004." [2004 c 11 § 3.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9A.60.045 9A.60.045 Criminal impersonation in the second degree. (1) A person is guilty of criminal impersonation in the second degree if the person: (a)(i) Claims to be a law enforcement officer or creates an impression that he or she is a law enforcement officer; and (ii) Under circumstances not amounting to criminal impersonation in the first degree, does an act with intent to convey the impression that he or she is acting in an official capacity and a reasonable person would believe the person is a law enforcement officer; or (b) Falsely assumes the identity of a veteran or active duty member of the armed forces of the United States with intent to defraud for the purpose of personal gain or to facilitate any unlawful activity. (2) Criminal impersonation in the second degree is a gross misdemeanor. [2004 c 124 § 1; 2004 c 11 § 2; 2003 c 53 § 79.] [Title 9A RCW—page 61] 9A.60.050 Title 9A RCW: Washington Criminal Code Reviser’s note: This section was amended by 2004 c 11 § 2 and by 2004 c 124 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—2004 c 124: "This act takes effect July 1, 2004." [2004 c 124 § 2.] Effective date—2004 c 11: See note following RCW 9A.60.040. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9A.60.050 9A.60.050 False certification. (1) A person is guilty of false certification, if, being an officer authorized to take a proof or acknowledgment of an instrument which by law may be recorded, he knowingly certifies falsely that the execution of such instrument was acknowledged by any party thereto or that the execution thereof was proved. (2) False certification is a gross misdemeanor. [1975’76 2nd ex.s. c 38 § 15; 1975 1st ex.s. c 260 § 9A.60.050.] Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. 9A.60.060 9A.60.060 Fraudulent creation or revocation of a mental health advance directive. (1) For purposes of this section "mental health advance directive" means a written document that is a "mental health advance directive" as defined in RCW 71.32.020. (2) A person is guilty of fraudulent creation or revocation of a mental health advance directive if he or she knowingly: (a) Makes, completes, alters, or revokes the mental health advance directive of another without the principal’s consent; (b) Utters, offers, or puts off as true a mental health advance directive that he or she knows to be forged; or (c) Obtains or prevents the signature of a principal or witness to a mental health advance directive by deception or duress. (3) Fraudulent creation or revocation of a mental health advance directive is a class C felony. [2003 c 283 § 31.] Severability—Part headings not law—2003 c 283: See RCW 71.32.900 and 71.32.901. 9A.60.070 9A.60.070 False academic credentials—Unlawful issuance or use—Definitions—Penalties. (1) A person is guilty of issuing a false academic credential if the person knowingly: (a) Grants or awards a false academic credential or offers to grant or award a false academic credential in violation of this section; (b) Represents that a credit earned or granted by the person in violation of this section can be applied toward a credential offered by another person; (c) Grants or offers to grant a credit for which a representation as described in (b) of this subsection is made; or (d) Solicits another person to seek a credential or to earn a credit the person knows is offered in violation of this section. (2) A person is guilty of knowingly using a false academic credential if the person knowingly uses a false academic credential or falsely claims to have a credential issued by an institution of higher education that is accredited by an [Title 9A RCW—page 62] accrediting association recognized as such by rule of the higher education coordinating board: (a) In a written or oral advertisement or other promotion of a business; or (b) With the intent to: (i) Obtain employment; (ii) Obtain a license or certificate to practice a trade, profession, or occupation; (iii) Obtain a promotion, compensation or other benefit, or an increase in compensation or other benefit, in employment or in the practice of a trade, profession, or occupation; (iv) Obtain admission to an educational program in this state; or (v) Gain a position in government with authority over another person, regardless of whether the person receives compensation for the position. (3) The definitions in this subsection apply throughout this section and RCW 28B.85.220. (a) "False academic credential" means a document that provides evidence or demonstrates completion of an academic or professional course of instruction beyond the secondary level that results in the attainment of an academic certificate, degree, or rank, and that is not issued by a person or entity that: (i) Is an entity accredited by an agency recognized as such by rule of the higher education coordinating board or has the international equivalents of such accreditation; or (ii) is an entity authorized as a degree-granting institution by the higher education coordinating board; or (iii) is an entity exempt from the requirements of authorization as a degree-granting institution by the higher education coordinating board; or (iv) is an entity that has been granted a waiver by the higher education coordinating board from the requirements of authorization by the board. Such documents include, but are not limited to, academic certificates, degrees, coursework, degree credits, transcripts, or certification of completion of a degree. (b) "Grant" means award, bestow, confer, convey, sell, or give. (c) "Offer," in addition to its usual meanings, means advertise, publicize, or solicit. (d) "Operate" includes but is not limited to the following: (i) Offering courses in person, by correspondence, or by electronic media at or to any Washington location for degree credit; (ii) Granting or offering to grant degrees in Washington; (iii) Maintaining or advertising a Washington location, mailing address, computer server, or telephone number, for any purpose, other than for contact with the institution’s former students for any legitimate purpose related to the students having attended the institution. (4) Issuing a false academic credential is a class C felony. (5) Knowingly using a false academic credential is a gross misdemeanor. [2006 c 234 § 2.] Chapter 9A.61 Chapter 9A.61 RCW DEFRAUDING A PUBLIC UTILITY Sections 9A.61.010 9A.61.020 Definitions. Defrauding a public utility. (2006 Ed.) Family Offenses 9A.61.030 9A.61.040 9A.61.050 9A.61.060 9A.61.070 Defrauding a public utility in the first degree. Defrauding a public utility in the second degree. Defrauding a public utility in the third degree. Restitution and costs. Damages not precluded. 9A.61.010 9A.61.010 Definitions. The definitions set forth in this section apply throughout this chapter. (1) "Customer" means the person in whose name a utility service is provided. (2) "Divert" means to change the intended course or path of electricity, gas, or water without the authorization or consent of the utility. (3) "Person" means an individual, partnership, firm, association, or corporation or government agency. (4) "Reconnection" means the commencement of utility service to a customer or other person after service has been lawfully disconnected by the utility. (5) "Tamper" means to rearrange, injure, alter, interfere with, or otherwise prevent from performing the normal or customary function. (6) "Utility" means an electrical company, gas company, or water company as those terms are defined in RCW 80.04.010, and includes an electrical, gas, or water system operated by a public agency. (7) "Utility service" means the provision of electricity, gas, water, or any other service or commodity furnished by the utility for compensation. [1989 c 109 § 1.] 9A.61.020 9A.61.020 Defrauding a public utility. "Defrauding a public utility" means to commit, authorize, solicit, aid, abet, or attempt to: (1) Divert, or cause to be diverted, utility services by any means whatsoever; (2) Make, or cause to be made, a connection or reconnection with property owned or used by the utility to provide utility service without the authorization or consent of the utility; (3) Prevent a utility meter or other device used in determining the charge for utility services from accurately performing its measuring function by tampering or by any other means; (4) Tamper with property owned or used by the utility to provide utility services; or (5) Use or receive the direct benefit of all or a portion of the utility service with knowledge of, or reason to believe that, the diversion, tampering, or unauthorized connection existed at the time of the use or that the use or receipt was without the authorization or consent of the utility. [1989 c 109 § 2.] 9A.61.030 9A.61.030 Defrauding a public utility in the first degree. (1) A person is guilty of defrauding a public utility in the first degree if: (a) The utility service diverted or used exceeds one thousand five hundred dollars in value; or (b) Tampering has occurred in furtherance of other criminal activity. (2) Defrauding a public utility in the first degree is a class B felony. [1989 c 109 § 3.] (2006 Ed.) 9A.64.010 9A.61.040 9A.61.040 Defrauding a public utility in the second degree. (1) A person is guilty of defrauding a public utility in the second degree if the utility service diverted or used exceeds five hundred dollars in value. (2) Defrauding a public utility in the second degree is a class C felony. [1989 c 109 § 4.] 9A.61.050 9A.61.050 Defrauding a public utility in the third degree. (1) A person is guilty of defrauding a public utility in the third degree if: (a) The utility service diverted or used is five hundred dollars or less in value; or (b) A connection or reconnection has occurred without authorization or consent of the utility. (2) Defrauding a public utility in the third degree is a gross misdemeanor. [1989 c 109 § 5.] 9A.61.060 9A.61.060 Restitution and costs. In any prosecution under this section, the court may require restitution from the defendant as provided by chapter 9A.20 RCW, plus court costs plus the costs incurred by the utility on account of the bypassing, tampering, or unauthorized reconnection, including but not limited to costs and expenses for investigation, disconnection, reconnection, service calls, and expert witnesses. [1989 c 109 § 6.] 9A.61.070 9A.61.070 Damages not precluded. Restitution ordered or fines imposed under this chapter do not preclude a utility from collecting damages under RCW 80.28.240 to which it may be entitled. [1989 c 109 § 7.] Chapter 9A.64 Chapter 9A.64 RCW FAMILY OFFENSES Sections 9A.64.010 9A.64.020 9A.64.030 Bigamy. Incest. Child selling—Child buying. 9A.64.010 9A.64.010 Bigamy. (1) A person is guilty of bigamy if he intentionally marries or purports to marry another person when either person has a living spouse. (2) In any prosecution under this section, it is a defense that at the time of the subsequent marriage or purported marriage: (a) The actor reasonably believed that the prior spouse was dead; or (b) A court had entered a judgment purporting to terminate or annul any prior disqualifying marriage and the actor did not know that such judgment was invalid; or (c) The actor reasonably believed that he was legally eligible to marry. (3) The limitation imposed by RCW 9A.04.080 on commencing a prosecution for bigamy does not begin to run until the death of the prior or subsequent spouse of the actor or until a court enters a judgment terminating or annulling the prior or subsequent marriage. (4) Bigamy is a class C felony. [1986 c 257 § 14; 1975 1st ex.s. c 260 § 9A.64.010.] Severability—1986 c 257: See note following RCW 9A.56.010. [Title 9A RCW—page 63] 9A.64.020 Title 9A RCW: Washington Criminal Code 9A.64.020 9A.64.020 Incest. (1)(a) A person is guilty of incest in the first degree if he or she engages in sexual intercourse with a person whom he or she knows to be related to him or her, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either the whole or the half blood. (b) Incest in the first degree is a class B felony. (2)(a) A person is guilty of incest in the second degree if he or she engages in sexual contact with a person whom he or she knows to be related to him or her, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either the whole or the half blood. (b) Incest in the second degree is a class C felony. (3) As used in this section: (a) "Descendant" includes stepchildren and adopted children under eighteen years of age; (b) "Sexual contact" has the same meaning as in RCW 9A.44.010; and (c) "Sexual intercourse" has the same meaning as in RCW 9A.44.010. [2003 c 53 § 80; 1999 c 143 § 39; 1985 c 53 § 1; 1982 c 129 § 3; 1975 1st ex.s. c 260 § 9A.64.020.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1982 c 129: See note following RCW 9A.04.080. 9A.64.030 9A.64.030 Child selling—Child buying. (1) It is unlawful for any person to sell or purchase a minor child. (2) A transaction shall not be a purchase or sale under subsection (1) of this section if any of the following exists: (a) The transaction is between the parents of the minor child; or (b) The transaction is between a person receiving or to receive the child and an agency recognized under RCW 26.33.020; or (c) The transaction is between the person receiving or to receive the child and a state agency or other governmental agency; or (d) The transaction is pursuant to chapter 26.34 RCW; or (e) The transaction is pursuant to court order; or (f) The only consideration paid by the person receiving or to receive the child is intended to pay for the prenatal hospital or medical expenses involved in the birth of the child, or attorneys’ fees and court costs involved in effectuating transfer of child custody. (3)(a) Child selling is a class C felony. (b) Child buying is a class C felony. [2003 c 53 § 81; 1985 c 7 § 3; 1980 c 85 § 3.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1980 c 85: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1980 c 85 § 5.] Chapter 9A.68 Chapter 9A.68 RCW BRIBERY AND CORRUPT INFLUENCE Sections 9A.68.010 9A.68.020 9A.68.030 9A.68.040 9A.68.050 Bribery. Requesting unlawful compensation. Receiving or granting unlawful compensation. Trading in public office. Trading in special influence. [Title 9A RCW—page 64] 9A.68.060 Commercial bribery. Banks and trust companies, misconduct by employees: RCW 30.12.110. Baseball, bribery and illegal practices: Chapter 67.04 RCW. Bribery or corrupt solicitation: State Constitution Art. 2 § 30. Bribery or corruption offender as witness: RCW 9.18.080. Cities and towns, commission form, misconduct of officers and employees: RCW 35.17.150. County officers, misconduct: RCW 36.18.160, 36.18.170. Elections, bribery or coercion: Chapter 29A.84 RCW. Employees, corrupt influencing, grafting by: RCW 49.44.060. Insurance, fraud and unfair practices: Chapter 48.30 RCW. Labor representative bribery: RCW 49.44.020, 49.44.030. Misconduct in signing a petition: RCW 9.44.080. Public officers, misconduct: Chapter 42.20 RCW. School officials, grafting: RCW 28A.635.050. Wages, rebating by employers: RCW 49.52.050, 49.52.090. 9A.68.010 9A.68.010 Bribery. (1) A person is guilty of bribery if: (a) With the intent to secure a particular result in a particular matter involving the exercise of the public servant’s vote, opinion, judgment, exercise of discretion, or other action in his official capacity, he offers, confers, or agrees to confer any pecuniary benefit upon such public servant; or (b) Being a public servant, he requests, accepts, or agrees to accept any pecuniary benefit pursuant to an agreement or understanding that his vote, opinion, judgment, exercise of discretion, or other action as a public servant will be used to secure or attempt to secure a particular result in a particular matter. (2) It is no defense to a prosecution under this section that the public servant sought to be influenced was not qualified to act in the desired way, whether because he had not yet assumed office, lacked jurisdiction, or for any other reason. (3) Bribery is a class B felony. [1975 1st ex.s. c 260 § 9A.68.010.] 9A.68.020 9A.68.020 Requesting unlawful compensation. (1) A public servant is guilty of requesting unlawful compensation if he requests a pecuniary benefit for the performance of an official action knowing that he is required to perform that action without compensation or at a level of compensation lower than that requested. (2) Requesting unlawful compensation is a class C felony. [1975 1st ex.s. c 260 § 9A.68.020.] 9A.68.030 9A.68.030 Receiving or granting unlawful compensation. (1) A person is guilty of receiving or granting unlawful compensation if: (a) Being a public servant, he requests, accepts, or agrees to accept compensation for advice or other assistance in preparing a bill, contract, claim, or transaction regarding which he knows he is likely to have an official discretion to exercise; or (b) He knowingly offers, pays, or agrees to pay compensation to a public servant for advice or other assistance in preparing or promoting a bill, contract, claim, or other transaction regarding which the public servant is likely to have an official discretion to exercise. (2) Receiving or granting unlawful compensation is a class C felony. [1975 1st ex.s. c 260 § 9A.68.030.] (2006 Ed.) Perjury and Interference with Official Proceedings 9A.68.040 9A.68.040 Trading in public office. (1) A person is guilty of trading in public office if: (a) He offers, confers, or agrees to confer any pecuniary benefit upon a public servant pursuant to an agreement or understanding that such actor will or may be appointed to a public office; or (b) Being a public servant, he requests, accepts, or agrees to accept any pecuniary benefit from another person pursuant to an agreement or understanding that such person will or may be appointed to a public office. (2) Trading in public office is a class C felony. [1975 1st ex.s. c 260 § 9A.68.040.] 9A.68.050 9A.68.050 Trading in special influence. (1) A person is guilty of trading in special influence if: (a) He offers, confers, or agrees to confer any pecuniary benefit upon another person pursuant to an agreement or understanding that such other person will offer or confer a benefit upon a public servant or procure another to do so with intent thereby to secure or attempt to secure a particular result in a particular matter; or (b) He requests, accepts, or agrees to accept any pecuniary benefit pursuant to an agreement or understanding that he will offer or confer a benefit upon a public servant or procure another to do so with intent thereby to secure or attempt to secure a particular result in a particular matter. (2) Trading in special influence is a class C felony. [1975 1st ex.s. c 260 § 9A.68.050.] 9A.72.010 or she will violate a duty of fidelity or trust arising from his or her position as a trusted person; or (c) Being an employee or agent of an insurer, he or she requests, accepts, or agrees to accept a pecuniary benefit for himself or herself, or a person other than the insurer, under a request, agreement, or understanding that he or she will or a threat that he or she will not refer or induce claimants to have services performed by a service provider. (3) It is not a defense to a prosecution under this section that the person sought to be influenced was not qualified to act in the desired way, whether because the person had not yet assumed his or her position, lacked authority, or for any other reason. (4) Commercial bribery is a class B felony. [2001 c 224 § 2. Prior: 1995 c 285 § 29.] Purpose—2001 c 224: "The purpose of this act is to respond to State v. Thomas, 103 Wn. App. 800, by reenacting and ranking, without changes, the law relating to the crime of commercial bribery, enacted as sections 29 and 37(5), chapter 285, Laws of 1995." [2001 c 224 § 1.] Effective date—2001 c 224: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 9, 2001]." [2001 c 224 § 5.] Effective date—1995 c 285: See RCW 48.30A.900. Chapter 9A.72 Chapter 9A.72 RCW PERJURY AND INTERFERENCE WITH OFFICIAL PROCEEDINGS Sections 9A.68.060 9A.68.060 Commercial bribery. (1) For purposes of this section: (a) "Claimant" means a person who has or is believed by an actor to have an insurance claim. (b) "Service provider" means a person who directly or indirectly provides, advertises, or otherwise claims to provide services. (c) "Services" means health care services, motor vehicle body or other motor vehicle repair, and preparing, processing, presenting, or negotiating an insurance claim. (d) "Trusted person" means: (i) An agent, employee, or partner of another; (ii) An administrator, executor, conservator, guardian, receiver, or trustee of a person or an estate, or any other person acting in a fiduciary capacity; (iii) An accountant, appraiser, attorney, physician, or other professional adviser; (iv) An officer or director of a corporation, or any other person who participates in the affairs of a corporation, partnership, or unincorporated association; or (v) An arbitrator, mediator, or other purportedly disinterested adjudicator or referee. (2) A person is guilty of commercial bribery if: (a) He or she offers, confers, or agrees to confer a pecuniary benefit directly or indirectly upon a trusted person under a request, agreement, or understanding that the trusted person will violate a duty of fidelity or trust arising from his or her position as a trusted person; (b) Being a trusted person, he or she requests, accepts, or agrees to accept a pecuniary benefit for himself, herself, or another under a request, agreement, or understanding that he (2006 Ed.) 9A.72.010 9A.72.020 9A.72.030 9A.72.040 9A.72.050 9A.72.060 9A.72.070 9A.72.080 9A.72.085 9A.72.090 9A.72.100 9A.72.110 9A.72.120 9A.72.130 9A.72.140 9A.72.150 9A.72.160 Definitions. Perjury in the first degree. Perjury in the second degree. False swearing. Perjury and false swearing—Inconsistent statements—Degree of crime. Perjury and false swearing—Retraction. Perjury and false swearing—Irregularities no defense. Statement of what one does not know to be true. Unsworn statements, certification. Bribing a witness. Bribe receiving by a witness. Intimidating a witness. Tampering with a witness. Intimidating a juror. Jury tampering. Tampering with physical evidence. Intimidating a judge. Committal of witness committing perjury: RCW 9.72.090. 9A.72.010 9A.72.010 Definitions. The following definitions are applicable in this chapter unless the context otherwise requires: (1) "Materially false statement" means any false statement oral or written, regardless of its admissibility under the rules of evidence, which could have affected the course or outcome of the proceeding; whether a false statement is material shall be determined by the court as a matter of law; (2) "Oath" includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated; in this chapter, written statements shall be treated as if made under oath if: (a) The statement was made on or pursuant to instructions on an official form bearing notice, authorized by law, to the effect that false statements made therein are punishable; [Title 9A RCW—page 65] 9A.72.020 Title 9A RCW: Washington Criminal Code (b) The statement recites that it was made under oath, the declarant was aware of such recitation at the time he or she made the statement, intended that the statement should be represented as a sworn statement, and the statement was in fact so represented by its delivery or utterance with the signed jurat of an officer authorized to administer oaths appended thereto; or (c) It is a statement, declaration, verification, or certificate, made within or outside the state of Washington, which is certified or declared to be true under penalty of perjury as provided in RCW 9A.72.085. (3) An oath is "required or authorized by law" when the use of the oath is specifically provided for by statute or regulatory provision or when the oath is administered by a person authorized by state or federal law to administer oaths; (4) "Official proceeding" means a proceeding heard before any legislative, judicial, administrative, or other government agency or official authorized to hear evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or depositions; (5) "Juror" means any person who is a member of any jury, including a grand jury, impaneled by any court of this state or by any public servant authorized by law to impanel a jury; the term juror also includes any person who has been drawn or summoned to attend as a prospective juror; (6) "Testimony" includes oral or written statements, documents, or any other material that may be offered by a witness in an official proceeding. [2001 c 171 § 2. Prior: 1995 c 285 § 30; 1981 c 187 § 1; 1975 1st ex.s. c 260 § 9A.72.010.] Purpose—2001 c 171: "The purpose of this act is to respond to State v. Thomas, 103 Wn. App. 800, by reenacting, without changes, legislation relating to the crime of perjury, as amended in sections 30 and 31, chapter 285, Laws of 1995." [2001 c 171 § 1.] Effective date—2001 c 171: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 7, 2001]." [2001 c 171 § 4.] Effective date—1995 c 285: See RCW 48.30A.900. 9A.72.020 Perjury in the first degree. (1) A person is guilty of perjury in the first degree if in any official proceeding he makes a materially false statement which he knows to be false under an oath required or authorized by law. (2) Knowledge of the materiality of the statement is not an element of this crime, and the actor’s mistaken belief that his statement was not material is not a defense to a prosecution under this section. (3) Perjury in the first degree is a class B felony. [1975 1st ex.s. c 260 § 9A.72.020.] 9A.72.020 9A.72.030 Perjury in the second degree. (1) A person is guilty of perjury in the second degree if, in an examination under oath under the terms of a contract of insurance, or with intent to mislead a public servant in the performance of his or her duty, he or she makes a materially false statement, which he or she knows to be false under an oath required or authorized by law. (2) Perjury in the second degree is a class C felony. [2001 c 171 § 3. Prior: 1995 c 285 § 31; 1975 1st ex.s. c 260 § 9A.72.030.] 9A.72.030 Effective date—1995 c 285: See RCW 48.30A.900. 9A.72.040 9A.72.040 False swearing. (1) A person is guilty of false swearing if he makes a false statement, which he knows to be false, under an oath required or authorized by law. (2) False swearing is a gross misdemeanor. [1975 1st ex.s. c 260 § 9A.72.040.] 9A.72.050 9A.72.050 Perjury and false swearing—Inconsistent statements—Degree of crime. (1) Where, in the course of one or more official proceedings, a person makes inconsistent material statements under oath, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and known by the defendant to be false. In such case it shall not be necessary for the prosecution to prove which material statement was false but only that one or the other was false and known by the defendant to be false. (2) The highest offense of which a person may be convicted in such an instance as set forth in subsection (1) of this section shall be determined by hypothetically assuming each statement to be false. If perjury of different degrees would be established by the making of the two statements, the person may only be convicted of the lesser degree. If perjury or false swearing would be established by the making of the two statements, the person may only be convicted of false swearing. For purposes of this section, no corroboration shall be required of either inconsistent statement. [1975 1st ex.s. c 260 § 9A.72.050.] 9A.72.060 9A.72.060 Perjury and false swearing—Retraction. No person shall be convicted of perjury or false swearing if he retracts his false statement in the course of the same proceeding in which it was made, if in fact he does so before it becomes manifest that the falsification is or will be exposed and before the falsification substantially affects the proceeding. Statements made in separate hearings at separate stages of the same trial, administrative, or other official proceeding shall be treated as if made in the course of the same proceeding. [1975-’76 2nd ex.s. c 38 § 16; 1975 1st ex.s. c 260 § 9A.72.060.] Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. 9A.72.070 9A.72.070 Perjury and false swearing—Irregularities no defense. It is no defense to a prosecution for perjury or false swearing: (1) That the oath was administered or taken in an irregular manner; or (2) That the person administering the oath lacked authority to do so, if the taking of the oath was required or authorized by law. [1975 1st ex.s. c 260 § 9A.72.070.] 9A.72.080 9A.72.080 Statement of what one does not know to be true. Every unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false. [1975 1st ex.s. c 260 § 9A.72.080.] 9A.72.085 Purpose—Effective date—2001 c 171: See notes following RCW 9A.72.010. [Title 9A RCW—page 66] 9A.72.085 Unsworn statements, certification. Whenever, under any law of this state or under any rule, order, or (2006 Ed.) Perjury and Interference with Official Proceedings requirement made under the law of this state, any matter in an official proceeding is required or permitted to be supported, evidenced, established, or proved by a person’s sworn written statement, declaration, verification, certificate, oath, or affidavit, the matter may with like force and effect be supported, evidenced, established, or proved in the official proceeding by an unsworn written statement, declaration, verification, or certificate, which: (1) Recites that it is certified or declared by the person to be true under penalty of perjury; (2) Is subscribed by the person; (3) States the date and place of its execution; and (4) States that it is so certified or declared under the laws of the state of Washington. The certification or declaration may be in substantially the following form: "I certify (or declare) under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct": ..................... ..................... (Date and Place) (Signature) This section does not apply to writings requiring an acknowledgement, depositions, oaths of office, or oaths required to be taken before a special official other than a notary public. [1981 c 187 § 3.] 9A.72.110 adversely impact the state’s ability to promote public safety and prosecute criminal behavior." [1994 c 271 § 201.] Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9A.72.100 9A.72.100 Bribe receiving by a witness. (1) A witness or a person who has reason to believe he or she is about to be called as a witness in any official proceeding or that he or she may have information relevant to a criminal investigation or the abuse or neglect of a minor child is guilty of bribe receiving by a witness if he or she requests, accepts, or agrees to accept any benefit pursuant to an agreement or understanding that: (a) The person’s testimony will thereby be influenced; or (b) The person will attempt to avoid legal process summoning him or her to testify; or (c) The person will attempt to absent himself or herself from an official proceeding to which he or she has been legally summoned; or (d) The person will not report information he or she has relevant to a criminal investigation or the abuse or neglect of a minor child. (2) Bribe receiving by a witness is a class B felony. [1994 c 271 § 203; 1982 1st ex.s. c 47 § 17; 1975 1st ex.s. c 260 § 9A.72.100.] Finding—1994 c 271: See note following RCW 9A.72.090. 9A.72.090 9A.72.090 Bribing a witness. (1) A person is guilty of bribing a witness if he or she offers, confers, or agrees to confer any benefit upon a witness or a person he or she has reason to believe is about to be called as a witness in any official proceeding or upon a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child, with intent to: (a) Influence the testimony of that person; or (b) Induce that person to avoid legal process summoning him or her to testify; or (c) Induce that person to absent himself or herself from an official proceeding to which he or she has been legally summoned; or (d) Induce that person to refrain from reporting information relevant to a criminal investigation or the abuse or neglect of a minor child. (2) Bribing a witness is a class B felony. [1994 c 271 § 202; 1982 1st ex.s. c 47 § 16; 1975 1st ex.s. c 260 § 9A.72.090.] Finding—1994 c 271: "The legislature finds that witness intimidation and witness tampering serve to thwart both the effective prosecution of criminal conduct in the state of Washington and resolution of child dependencies. Further, the legislature finds that intimidating persons who have information pertaining to a future proceeding serves to prevent both the bringing of a charge and prosecution of such future proceeding. The legislature finds that the period before a crime or child abuse or neglect is reported is when a victim is most vulnerable to influence, both from the defendant or from people acting on behalf of the defendant and a time when the defendant is most able to threaten, bribe, and/or persuade potential witnesses to leave the jurisdiction or withhold information from law enforcement agencies. The legislature moreover finds that a criminal defendant’s admonishment or demand to a witness to "drop the charges" is intimidating to witnesses or other persons with information relevant to a criminal proceeding. The legislature finds, therefore, that tampering with and/or intimidating witnesses or other persons with information relevant to a present or future criminal or child dependency proceeding are grave offenses which (2006 Ed.) Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9A.72.110 9A.72.110 Intimidating a witness. (1) A person is guilty of intimidating a witness if a person, by use of a threat against a current or prospective witness, attempts to: (a) Influence the testimony of that person; (b) Induce that person to elude legal process summoning him or her to testify; (c) Induce that person to absent himself or herself from such proceedings; or (d) Induce that person not to report the information relevant to a criminal investigation or the abuse or neglect of a minor child, not to have the crime or the abuse or neglect of a minor child prosecuted, or not to give truthful or complete information relevant to a criminal investigation or the abuse or neglect of a minor child. (2) A person also is guilty of intimidating a witness if the person directs a threat to a former witness because of the witness’s role in an official proceeding. (3) As used in this section: (a) "Threat" means: (i) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or (ii) Threat as defined in *RCW 9A.04.110(25). (b) "Current or prospective witness" means: (i) A person endorsed as a witness in an official proceeding; (ii) A person whom the actor believes may be called as a witness in any official proceeding; or [Title 9A RCW—page 67] 9A.72.120 Title 9A RCW: Washington Criminal Code (iii) A person whom the actor has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child. (c) "Former witness" means: (i) A person who testified in an official proceeding; (ii) A person who was endorsed as a witness in an official proceeding; (iii) A person whom the actor knew or believed may have been called as a witness if a hearing or trial had been held; or (iv) A person whom the actor knew or believed may have provided information related to a criminal investigation or an investigation into the abuse or neglect of a minor child. (4) Intimidating a witness is a class B felony. [1997 c 29 § 1; 1994 c 271 § 204; 1985 c 327 § 2; 1982 1st ex.s. c 47 § 18; 1975 1st ex.s. c 260 § 9A.72.110.] *Reviser’s note: RCW 9A.04.110 was amended by 2005 c 458 § 3, changing subsection (25) to subsection (26). Finding—1994 c 271: See note following RCW 9A.72.090. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9A.72.140 Jury tampering. (1) A person is guilty of jury tampering if with intent to influence a juror’s vote, opinion, decision, or other official action in a case, he attempts to communicate directly or indirectly with a juror other than as part of the proceedings in the trial of the case. (2) Jury tampering is a gross misdemeanor. [1975 1st ex.s. c 260 § 9A.72.140.] 9A.72.140 9A.72.150 9A.72.150 Tampering with physical evidence. (1) A person is guilty of tampering with physical evidence if, having reason to believe that an official proceeding is pending or about to be instituted and acting without legal right or authority, he: (a) Destroys, mutilates, conceals, removes, or alters physical evidence with intent to impair its appearance, character, or availability in such pending or prospective official proceeding; or (b) Knowingly presents or offers any false physical evidence. (2) "Physical evidence" as used in this section includes any article, object, document, record, or other thing of physical substance. (3) Tampering with physical evidence is a gross misdemeanor. [1975 1st ex.s. c 260 § 9A.72.150.] 9A.72.120 9A.72.120 Tampering with a witness. (1) A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to: (a) Testify falsely or, without right or privilege to do so, to withhold any testimony; or (b) Absent himself or herself from such proceedings; or (c) Withhold from a law enforcement agency information which he or she has relevant to a criminal investigation or the abuse or neglect of a minor child to the agency. (2) Tampering with a witness is a class C felony. [1994 c 271 § 205; 1982 1st ex.s. c 47 § 19; 1975 1st ex.s. c 260 § 9A.72.120.] 9A.72.160 Intimidating a judge. (1) A person is guilty of intimidating a judge if a person directs a threat to a judge because of a ruling or decision of the judge in any official proceeding, or if by use of a threat directed to a judge, a person attempts to influence a ruling or decision of the judge in any official proceeding. (2) "Threat" as used in this section means: (a) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or (b) Threats as defined in *RCW 9A.04.110(25). (3) Intimidating a judge is a class B felony. [1985 c 327 § 1.] 9A.72.160 *Reviser’s note: RCW 9A.04.110 was amended by 2005 c 458 § 3, changing subsection (25) to subsection (26). Finding—1994 c 271: See note following RCW 9A.72.090. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9A.72.130 9A.72.130 Intimidating a juror. (1) A person is guilty of intimidating a juror if a person directs a threat to a former juror because of the juror’s vote, opinion, decision, or other official action as a juror, or if, by use of a threat, he attempts to influence a juror’s vote, opinion, decision, or other official action as a juror. (2) "Threat" as used in this section means (a) to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or (b) threats as defined in *RCW 9A.04.110(25). (3) Intimidating a juror is a class B felony. [1985 c 327 § 3; 1975 1st ex.s. c 260 § 9A.72.130.] *Reviser’s note: RCW 9A.04.110 was amended by 2005 c 458 § 3, changing subsection (25) to subsection (26). [Title 9A RCW—page 68] Chapter 9A.76 RCW OBSTRUCTING GOVERNMENTAL OPERATION Chapter 9A.76 Sections 9A.76.010 9A.76.020 9A.76.023 9A.76.025 9A.76.027 9A.76.030 9A.76.040 9A.76.050 9A.76.060 9A.76.070 9A.76.080 9A.76.090 9A.76.100 9A.76.110 9A.76.115 9A.76.120 9A.76.130 9A.76.140 9A.76.150 Definitions. Obstructing a law enforcement officer. Disarming a law enforcement or corrections officer. Disarming a law enforcement or corrections officer—Commission of another crime. Law enforcement or corrections officer engaged in criminal conduct. Refusing to summon aid for a peace officer. Resisting arrest. Rendering criminal assistance—Definition of term. Relative defined. Rendering criminal assistance in the first degree. Rendering criminal assistance in the second degree. Rendering criminal assistance in the third degree. Compounding. Escape in the first degree. Sexually violent predator escape. Escape in the second degree. Escape in the third degree. Introducing contraband in the first degree. Introducing contraband in the second degree. (2006 Ed.) Obstructing Governmental Operation 9A.76.160 9A.76.170 9A.76.175 9A.76.180 9A.76.200 Introducing contraband in the third degree. Bail jumping. Making a false or misleading statement to a public servant. Intimidating a public servant. Harming a police dog, accelerant detection dog, or police horse. Withholding knowledge of felony: RCW 9.69.100. 9A.76.010 9A.76.010 Definitions. The following definitions are applicable in this chapter unless the context otherwise requires: (1) "Custody" means restraint pursuant to a lawful arrest or an order of a court, or any period of service on a work crew: PROVIDED, That custody pursuant to chapter 13.34 RCW and RCW 74.13.020 and 74.13.031 and chapter 13.32A RCW shall not be deemed custody for purposes of this chapter; (2) "Detention facility" means any place used for the confinement of a person (a) arrested for, charged with or convicted of an offense, or (b) charged with being or adjudicated to be a juvenile offender as defined in RCW 13.40.020 as now existing or hereafter amended, or (c) held for extradition or as a material witness, or (d) otherwise confined pursuant to an order of a court, except an order under chapter 13.34 RCW or chapter 13.32A RCW, or (e) in any work release, furlough, or other such facility or program; (3) "Contraband" means any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation, or order of a court; (4) "Uncontrollable circumstances" means an act of nature such as a flood, earthquake, or fire, or a medical condition that requires immediate hospitalization or treatment, or an act of man such as an automobile accident or threats of death, forcible sexual attack, or substantial bodily injury in the immediate future for which there is no time for a complaint to the authorities and no time or opportunity to resort to the courts. [2001 c 264 § 4; 1991 c 181 § 6; 1979 c 155 § 35; 1977 ex.s. c 291 § 53; 1975 1st ex.s. c 260 § 9A.76.010.] Effective date—2001 c 264: See note following RCW 9A.76.110. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 9A.76.050 9A.76.023 9A.76.023 Disarming a law enforcement or corrections officer. (1) A person is guilty of disarming a law enforcement officer if with intent to interfere with the performance of the officer’s duties the person knowingly removes a firearm or weapon from the person of a law enforcement officer or corrections officer or deprives a law enforcement officer or corrections officer of the use of a firearm or weapon, when the officer is acting within the scope of the officer’s duties, does not consent to the removal, and the person has reasonable cause to know or knows that the individual is a law enforcement or corrections officer. (2)(a) Except as provided in (b) of this subsection, disarming a law enforcement or corrections officer is a class C felony. (b) Disarming a law enforcement or corrections officer is a class B felony if the firearm involved is discharged when the person removes the firearm. [2003 c 53 § 82; 1998 c 252 § 1.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9A.76.025 9A.76.025 Disarming a law enforcement or corrections officer—Commission of another crime. A person who commits another crime during the commission of the crime of disarming a law enforcement or corrections officer may be punished for the other crime as well as for disarming a law enforcement officer and may be prosecuted separately for each crime. [1998 c 252 § 2.] 9A.76.027 9A.76.027 Law enforcement or corrections officer engaged in criminal conduct. RCW 9A.76.023 and 9A.76.025 do not apply when the law enforcement officer or corrections officer is engaged in criminal conduct. [1998 c 252 § 3.] 9A.76.030 9A.76.030 Refusing to summon aid for a peace officer. (1) A person is guilty of refusing to summon aid for a peace officer if, upon request by a person he knows to be a peace officer, he unreasonably refuses or fails to summon aid for such peace officer. (2) Refusing to summon aid for a peace officer is a misdemeanor. [1975 1st ex.s. c 260 § 9A.76.030.] 9A.76.040 9A.76.020 9A.76.020 Obstructing a law enforcement officer. (1) A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties. (2) "Law enforcement officer" means any general authority, limited authority, or specially commissioned Washington peace officer or federal peace officer as those terms are defined in RCW 10.93.020, and other public officers who are responsible for enforcement of fire, building, zoning, and life and safety codes. (3) Obstructing a law enforcement officer is a gross misdemeanor. [2001 c 308 § 3. Prior: 1995 c 285 § 33; 1994 c 196 § 1; 1975 1st ex.s. c 260 § 9A.76.020.] Purpose—Effective date—2001 c 308: See notes following RCW 9A.76.175. Effective date—1995 c 285: See RCW 48.30A.900. (2006 Ed.) 9A.76.040 Resisting arrest. (1) A person is guilty of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from lawfully arresting him. (2) Resisting arrest is a misdemeanor. [1975 1st ex.s. c 260 § 9A.76.040.] 9A.76.050 9A.76.050 Rendering criminal assistance—Definition of term. As used in RCW 9A.76.070, 9A.76.080, and 9A.76.090, a person "renders criminal assistance" if, with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he knows has committed a crime or juvenile offense or is being sought by law enforcement officials for the commission of a crime or juvenile offense or has escaped from a detention facility, he: (1) Harbors or conceals such person; or (2) Warns such person of impending discovery or apprehension; or [Title 9A RCW—page 69] 9A.76.060 Title 9A RCW: Washington Criminal Code (3) Provides such person with money, transportation, disguise, or other means of avoiding discovery or apprehension; or (4) Prevents or obstructs, by use of force, deception, or threat, anyone from performing an act that might aid in the discovery or apprehension of such person; or (5) Conceals, alters, or destroys any physical evidence that might aid in the discovery or apprehension of such person; or (6) Provides such person with a weapon. [1982 1st ex.s. c 47 § 20; 1975 1st ex.s. c 260 § 9A.76.050.] Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9A.76.060 9A.76.060 Relative defined. As used in RCW 9A.76.070 and 9A.76.080, "relative" means a person: (1) Who is related as husband or wife, brother or sister, parent or grandparent, child or grandchild, step-child or stepparent to the person to whom criminal assistance is rendered; and (2) Who does not render criminal assistance to another person in one or more of the means defined in subsections (4), (5), or (6) of RCW 9A.76.050. [1975 1st ex.s. c 260 § 9A.76.060.] 9A.76.090 9A.76.090 Rendering criminal assistance in the third degree. (1) A person is guilty of rendering criminal assistance in the third degree if he renders criminal assistance to a person who has committed a gross misdemeanor or misdemeanor. (2) Rendering criminal assistance in the third degree is a misdemeanor. [1975 1st ex.s. c 260 § 9A.76.090.] 9A.76.100 9A.76.100 Compounding. (1) A person is guilty of compounding if: (a) He requests, accepts, or agrees to accept any pecuniary benefit pursuant to an agreement or understanding that he will refrain from initiating a prosecution for a crime; or (b) He confers, or offers or agrees to confer, any pecuniary benefit upon another pursuant to an agreement or understanding that such other person will refrain from initiating a prosecution for a crime. (2) In any prosecution under this section, it is a defense if established by a preponderance of the evidence that the pecuniary benefit did not exceed an amount which the defendant reasonably believed to be due as restitution or indemnification for harm caused by the crime. (3) Compounding is a gross misdemeanor. [1975 1st ex.s. c 260 § 9A.76.100.] 9A.76.070 9A.76.070 Rendering criminal assistance in the first degree. (1) A person is guilty of rendering criminal assistance in the first degree if he or she renders criminal assistance to a person who has committed or is being sought for murder in the first degree or any class A felony or equivalent juvenile offense. (2)(a) Except as provided in (b) of this subsection, rendering criminal assistance in the first degree is a class C felony. (b) Rendering criminal assistance in the first degree is a gross misdemeanor if it is established by a preponderance of the evidence that the actor is a relative as defined in RCW 9A.76.060. [2003 c 53 § 83; 1982 1st ex.s. c 47 § 21; 1975 1st ex.s. c 260 § 9A.76.070.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 9A.76.080 9A.76.080 Rendering criminal assistance in the second degree. (1) A person is guilty of rendering criminal assistance in the second degree if he or she renders criminal assistance to a person who has committed or is being sought for a class B or class C felony or an equivalent juvenile offense or to someone being sought for violation of parole, probation, or community supervision. (2)(a) Except as provided in (b) of this subsection, rendering criminal assistance in the second degree is a gross misdemeanor. (b) Rendering criminal assistance in the second degree is a misdemeanor if it is established by a preponderance of the evidence that the actor is a relative as defined in RCW 9A.76.060. [2003 c 53 § 84; 1982 1st ex.s. c 47 § 22; 1975 1st ex.s. c 260 § 9A.76.080.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. [Title 9A RCW—page 70] 9A.76.110 9A.76.110 Escape in the first degree. (1) A person is guilty of escape in the first degree if he or she knowingly escapes from custody or a detention facility while being detained pursuant to a conviction of a felony or an equivalent juvenile offense. (2) It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from remaining in custody or in the detention facility or from returning to custody or to the detention facility, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to remain or return, and that the person returned to custody or the detention facility as soon as such circumstances ceased to exist. (3) Escape in the first degree is a class B felony. [2001 c 264 § 1; 1982 1st ex.s. c 47 § 23; 1975 1st ex.s. c 260 § 9A.76.110.] Effective date—2001 c 264: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2001." [2001 c 264 § 9.] Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. Term of escaped prisoner recaptured: RCW 9.31.090. 9A.76.115 9A.76.115 Sexually violent predator escape. (1) A person is guilty of sexually violent predator escape if: (a) Having been found to be a sexually violent predator and confined to the special commitment center or another secure facility under court order, the person escapes from the secure facility; (b) Having been found to be a sexually violent predator and being under an order of conditional release, the person leaves or remains absent from the state of Washington without prior court authorization; or (c) Having been found to be a sexually violent predator and being under an order of conditional release, the person: (i) Without authorization, leaves or remains absent from his (2006 Ed.) Obstructing Governmental Operation or her residence, place of employment, educational institution, or authorized outing; (ii) tampers with his or her electronic monitoring device or removes it without authorization; or (iii) escapes from his or her escort. (2) Sexually violent predator escape is a class A felony with a minimum sentence of sixty months, and shall be sentenced under RCW 9.94A.712. [2001 2nd sp.s. c 12 § 360; 2001 c 287 § 1.] Intent—Severability—Effective dates—2001 2nd sp.s. c 12: See notes following RCW 71.09.250. Application—2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030. Effective date—2001 c 287: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 14, 2001] except for section 4 of this act, which takes effect July 1, 2001." [2001 c 287 § 5.] 9A.76.120 9A.76.120 Escape in the second degree. (1) A person is guilty of escape in the second degree if: (a) He or she knowingly escapes from a detention facility; or (b) Having been charged with a felony or an equivalent juvenile offense, he or she knowingly escapes from custody; or (c) Having been committed under chapter 10.77 RCW for a sex, violent, or felony harassment offense and being under an order of conditional release, he or she knowingly leaves or remains absent from the state of Washington without prior court authorization. (2) It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from remaining in custody or in the detention facility or from returning to custody or to the detention facility, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to remain or return, and that the person returned to custody or the detention facility as soon as such circumstances ceased to exist. (3) Escape in the second degree is a class C felony. [2001 c 287 § 2; 2001 c 264 § 2; 1995 c 216 § 15; 1982 1st ex.s. c 47 § 24; 1975 1st ex.s. c 260 § 9A.76.120.] 9A.76.175 (2) Introducing contraband in the first degree is a class B felony. [1975 1st ex.s. c 260 § 9A.76.140.] 9A.76.150 9A.76.150 Introducing contraband in the second degree. (1) A person is guilty of introducing contraband in the second degree if he knowingly and unlawfully provides contraband to any person confined in a detention facility with the intent that such contraband be of assistance in an escape or in the commission of a crime. (2) Introducing contraband in the second degree is a class C felony. [1975 1st ex.s. c 260 § 9A.76.150.] 9A.76.160 9A.76.160 Introducing contraband in the third degree. (1) A person is guilty of introducing contraband in the third degree if he knowingly and unlawfully provides contraband to any person confined in a detention facility. (2) Introducing contraband in the third degree is a misdemeanor. [1975 1st ex.s. c 260 § 9A.76.160.] 9A.76.170 Effective dates—2001 c 287: See note following RCW 9A.76.115. 9A.76.170 Bail jumping. (1) Any person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state, or of the requirement to report to a correctional facility for service of sentence, and who fails to appear or who fails to surrender for service of sentence as required is guilty of bail jumping. (2) It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist. (3) Bail jumping is: (a) A class A felony if the person was held for, charged with, or convicted of murder in the first degree; (b) A class B felony if the person was held for, charged with, or convicted of a class A felony other than murder in the first degree; (c) A class C felony if the person was held for, charged with, or convicted of a class B or class C felony; (d) A misdemeanor if the person was held for, charged with, or convicted of a gross misdemeanor or misdemeanor. [2001 c 264 § 3; 1983 1st ex.s. c 4 § 3; 1975 1st ex.s. c 260 § 9A.76.170.] Effective date—2001 c 264: See note following RCW 9A.76.110. Effective date—2001 c 264: See note following RCW 9A.76.110. Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. Severability—1983 1st ex.s. c 4: See note following RCW 9A.48.070. Reviser’s note: This section was amended by 2001 c 264 § 2 and by 2001 c 287 § 2, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Term of escaped prisoner recaptured: RCW 9.31.090. 9A.76.175 9A.76.130 9A.76.130 Escape in the third degree. (1) A person is guilty of escape in the third degree if he escapes from custody. (2) Escape in the third degree is a gross misdemeanor. [1975 1st ex.s. c 260 § 9A.76.130.] Term of escaped prisoner recaptured: RCW 9.31.090. 9A.76.140 9A.76.140 Introducing contraband in the first degree. (1) A person is guilty of introducing contraband in the first degree if he knowingly provides any deadly weapon to any person confined in a detention facility. (2006 Ed.) 9A.76.175 Making a false or misleading statement to a public servant. A person who knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor. "Material statement" means a written or oral statement reasonably likely to be relied upon by a public servant in the discharge of his or her official powers or duties. [2001 c 308 § 2. Prior: 1995 c 285 § 32.] Purpose—2001 c 308: "The purpose of this act is to respond to State v. Thomas, 103 Wn. App. 800, by reenacting, without changes, the law prohibiting materially false or misleading statements to public servants, enacted as sections 32 and 33, chapter 285, Laws of 1995." [2001 c 308 § 1.] Effective date—2001 c 308: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state gov[Title 9A RCW—page 71] 9A.76.180 Title 9A RCW: Washington Criminal Code ernment and its existing public institutions, and takes effect immediately [May 14, 2001]." [2001 c 308 § 4.] Chapter 9A.82 Chapter 9A.82 RCW CRIMINAL PROFITEERING ACT (Formerly: Racketeering) Effective date—1995 c 285: See RCW 48.30A.900. Sections 9A.76.180 9A.76.180 Intimidating a public servant. (1) A person is guilty of intimidating a public servant if, by use of a threat, he attempts to influence a public servant’s vote, opinion, decision, or other official action as a public servant. (2) For purposes of this section "public servant" shall not include jurors. (3) "Threat" as used in this section means (a) to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or (b) threats as defined in *RCW 9A.04.110(25). (4) Intimidating a public servant is a class B felony. [1975 1st ex.s. c 260 § 9A.76.180.] *Reviser’s note: RCW 9A.04.110 was amended by 2005 c 458 § 3, changing subsection (25) to subsection (26). 9A.82.001 9A.82.010 9A.82.020 9A.82.030 9A.82.040 9A.82.045 9A.82.050 9A.82.055 9A.82.060 9A.82.070 9A.82.080 9A.82.085 9A.82.090 9A.82.100 9A.82.110 9A.82.120 9A.82.130 9A.82.140 9A.82.150 9A.82.160 9A.76.200 9A.76.200 Harming a police dog, accelerant detection dog, or police horse. (1) A person is guilty of harming a police dog, accelerant detection dog, or police horse, if he or she maliciously injures, disables, shoots, or kills by any means any dog or horse that the person knows or has reason to know to be a police dog or accelerant detection dog, as defined in RCW 4.24.410, or police horse, as defined in subsection (2) of this section, whether or not the dog or horse is actually engaged in police or accelerant detection work at the time of the injury. (2) "Police horse" means any horse used or kept for use by a law enforcement officer in discharging any legal duty or power of his or her office. (3) Harming a police dog, accelerant detection dog, or police horse is a class C felony. [2003 c 269 § 1; 1993 c 180 § 2; 1989 c 26 § 2; 1982 c 22 § 2.] Chapter 9A.80 Chapter 9A.80 RCW ABUSE OF OFFICE Sections 9A.80.010 Official misconduct. 9A.80.010 9A.80.010 Official misconduct. (1) A public servant is guilty of official misconduct if, with intent to obtain a benefit or to deprive another person of a lawful right or privilege: (a) He intentionally commits an unauthorized act under color of law; or (b) He intentionally refrains from performing a duty imposed upon him by law. (2) Official misconduct is a gross misdemeanor. [1975’76 2nd ex.s. c 38 § 17; 1975 1st ex.s. c 260 § 9A.80.010.] Effective date—Severability—1975-’76 2nd ex.s. c 38: See notes following RCW 9A.08.020. Failure of duty by public officers: RCW 42.20.100. [Title 9A RCW—page 72] 9A.82.170 9A.82.900 9A.82.901 9A.82.902 9A.82.904 Short title. Definitions. Extortionate extension of credit. Advancing money or property to be used for extortionate credit. Use of extortionate means to collect extensions of credit. Collection of unlawful debt. Trafficking in stolen property in the first degree. Trafficking in stolen property in the second degree. Leading organized crime. Influencing outcome of sporting event. Use of proceeds of criminal profiteering—Controlling enterprise or realty—Conspiracy or attempt. Bars on certain prosecutions. Orders restraining criminal profiteering—When issued. Remedies and procedures. State public safety and education account—County antiprofiteering revolving funds. Criminal profiteering lien—Authority, procedures. Criminal profiteering lien—Trustee of real property. Criminal profiteering lien—Procedures after notice. Criminal profiteering lien—Conveyance of property by trustee, liability. Criminal profiteering lien—Trustee’s failure to comply, evasion of procedures or lien. Financial institution records—Inspection and copying— Wrongful disclosure. Severability—1984 c 270. Effective date—1984 c 270 as amended by 1985 c 455. Effective date—1985 c 455. Severability—1985 c 455. Special narcotics enforcement unit: RCW 43.43.655. 9A.82.001 Short title. This chapter shall be known as the criminal profiteering act. [2001 c 222 § 2. Prior: 1985 c 455 § 1.] 9A.82.001 Purpose—2001 c 222: "The purpose of this act is to respond to State v. Thomas, 103 Wn. App. 800, by reenacting, without substantive changes, the Washington laws relating to criminal profiteering, and the sentencing level ranking for criminal profiteering crimes as they existed prior to December 21, 2000." [2001 c 222 § 1.] Effective date—2001 c 222: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 9, 2001]." [2001 c 222 § 25.] 9A.82.010 Definitions. Unless the context requires the contrary, the definitions in this section apply throughout this chapter. (1)(a) "Beneficial interest" means: (i) The interest of a person as a beneficiary under a trust established under Title 11 RCW in which the trustee for the trust holds legal or record title to real property; (ii) The interest of a person as a beneficiary under any other trust arrangement under which a trustee holds legal or record title to real property for the benefit of the beneficiary; or (iii) The interest of a person under any other form of express fiduciary arrangement under which one person holds legal or record title to real property for the benefit of the other person. (b) "Beneficial interest" does not include the interest of a stockholder in a corporation or the interest of a partner in a general partnership or limited partnership. (c) A beneficial interest is considered to be located where the real property owned by the trustee is located. 9A.82.010 (2006 Ed.) Criminal Profiteering Act (2) "Control" means the possession of a sufficient interest to permit substantial direction over the affairs of an enterprise. (3) "Creditor" means a person making an extension of credit or a person claiming by, under, or through a person making an extension of credit. (4) "Criminal profiteering" means any act, including any anticipatory or completed offense, committed for financial gain, that is chargeable or indictable under the laws of the state in which the act occurred and, if the act occurred in a state other than this state, would be chargeable or indictable under the laws of this state had the act occurred in this state and punishable as a felony and by imprisonment for more than one year, regardless of whether the act is charged or indicted, as any of the following: (a) Murder, as defined in RCW 9A.32.030 and 9A.32.050; (b) Robbery, as defined in RCW 9A.56.200 and 9A.56.210; (c) Kidnapping, as defined in RCW 9A.40.020 and 9A.40.030; (d) Forgery, as defined in RCW 9A.60.020 and 9A.60.030; (e) Theft, as defined in RCW 9A.56.030, 9A.56.040, 9A.56.060, 9A.56.080, and 9A.56.083; (f) Unlawful sale of subscription television services, as defined in RCW 9A.56.230; (g) Theft of telecommunication services or unlawful manufacture of a telecommunication device, as defined in RCW 9A.56.262 and 9A.56.264; (h) Child selling or child buying, as defined in RCW 9A.64.030; (i) Bribery, as defined in RCW 9A.68.010, 9A.68.020, 9A.68.040, and 9A.68.050; (j) Gambling, as defined in RCW 9.46.220 and 9.46.215 and 9.46.217; (k) Extortion, as defined in RCW 9A.56.120 and 9A.56.130; (l) Unlawful production of payment instruments, unlawful possession of payment instruments, unlawful possession of a personal identification device, unlawful possession of fictitious identification, or unlawful possession of instruments of financial fraud, as defined in RCW 9A.56.320; (m) Extortionate extension of credit, as defined in RCW 9A.82.020; (n) Advancing money for use in an extortionate extension of credit, as defined in RCW 9A.82.030; (o) Collection of an extortionate extension of credit, as defined in RCW 9A.82.040; (p) Collection of an unlawful debt, as defined in RCW 9A.82.045; (q) Delivery or manufacture of controlled substances or possession with intent to deliver or manufacture controlled substances under chapter 69.50 RCW; (r) Trafficking in stolen property, as defined in RCW 9A.82.050; (s) Leading organized crime, as defined in RCW 9A.82.060; (t) Money laundering, as defined in RCW 9A.83.020; (2006 Ed.) 9A.82.010 (u) Obstructing criminal investigations or prosecutions in violation of RCW 9A.72.090, 9A.72.100, 9A.72.110, 9A.72.120, 9A.72.130, 9A.76.070, or 9A.76.180; (v) Fraud in the purchase or sale of securities, as defined in RCW 21.20.010; (w) Promoting pornography, as defined in RCW 9.68.140; (x) Sexual exploitation of children, as defined in RCW 9.68A.040, 9.68A.050, and 9.68A.060; (y) Promoting prostitution, as defined in RCW 9A.88.070 and 9A.88.080; (z) Arson, as defined in RCW 9A.48.020 and 9A.48.030; (aa) Assault, as defined in RCW 9A.36.011 and 9A.36.021; (bb) Assault of a child, as defined in RCW 9A.36.120 and 9A.36.130; (cc) A pattern of equity skimming, as defined in RCW 61.34.020; (dd) Commercial telephone solicitation in violation of RCW 19.158.040(1); (ee) Trafficking in insurance claims, as defined in RCW 48.30A.015; (ff) Unlawful practice of law, as defined in RCW 2.48.180; (gg) Commercial bribery, as defined in RCW 9A.68.060; (hh) Health care false claims, as defined in RCW 48.80.030; (ii) Unlicensed practice of a profession or business, as defined in RCW 18.130.190(7); (jj) Improperly obtaining financial information, as defined in RCW 9.35.010; (kk) Identity theft, as defined in RCW 9.35.020; (ll) Unlawful shipment of cigarettes in violation of RCW 70.155.105(6) (a) or (b); (mm) Unlawful shipment of cigarettes in violation of RCW 82.24.110(2); (nn) Unauthorized sale or procurement of telephone records in violation of RCW 9.26A.140; (oo) Theft with the intent to resell, as defined in RCW 9A.56.340; or (pp) Organized retail theft, as defined in RCW 9A.56.350. (5) "Dealer in property" means a person who buys and sells property as a business. (6) "Debtor" means a person to whom an extension of credit is made or a person who guarantees the repayment of an extension of credit or in any manner undertakes to indemnify the creditor against loss resulting from the failure of a person to whom an extension is made to repay the same. (7) "Documentary material" means any book, paper, document, writing, drawing, graph, chart, photograph, phonograph record, magnetic tape, computer printout, other data compilation from which information can be obtained or from which information can be translated into usable form, or other tangible item. (8) "Enterprise" includes any individual, sole proprietorship, partnership, corporation, business trust, or other profit or nonprofit legal entity, and includes any union, association, or group of individuals associated in fact although not a legal entity, and both illicit and licit enterprises and governmental and nongovernmental entities. [Title 9A RCW—page 73] 9A.82.020 Title 9A RCW: Washington Criminal Code (9) "Extortionate extension of credit" means an extension of credit with respect to which it is the understanding of the creditor and the debtor at the time the extension is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person. (10) "Extortionate means" means the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person. (11) "Financial institution" means any bank, trust company, savings and loan association, savings bank, mutual savings bank, credit union, or loan company under the jurisdiction of the state or an agency of the United States. (12) "Pattern of criminal profiteering activity" means engaging in at least three acts of criminal profiteering, one of which occurred after July 1, 1985, and the last of which occurred within five years, excluding any period of imprisonment, after the commission of the earliest act of criminal profiteering. In order to constitute a pattern, the three acts must have the same or similar intent, results, accomplices, principals, victims, or methods of commission, or be otherwise interrelated by distinguishing characteristics including a nexus to the same enterprise, and must not be isolated events. However, in any civil proceedings brought pursuant to RCW 9A.82.100 by any person other than the attorney general or county prosecuting attorney in which one or more acts of fraud in the purchase or sale of securities are asserted as acts of criminal profiteering activity, it is a condition to civil liability under RCW 9A.82.100 that the defendant has been convicted in a criminal proceeding of fraud in the purchase or sale of securities under RCW 21.20.400 or under the laws of another state or of the United States requiring the same elements of proof, but such conviction need not relate to any act or acts asserted as acts of criminal profiteering activity in such civil action under RCW 9A.82.100. (13) "Real property" means any real property or interest in real property, including but not limited to a land sale contract, lease, or mortgage of real property. (14) "Records" means any book, paper, writing, record, computer program, or other material. (15) "Repayment of an extension of credit" means the repayment, satisfaction, or discharge in whole or in part of a debt or claim, acknowledged or disputed, valid or invalid, resulting from or in connection with that extension of credit. (16) "Stolen property" means property that has been obtained by theft, robbery, or extortion. (17) "To collect an extension of credit" means to induce in any way a person to make repayment thereof. (18) "To extend credit" means to make or renew a loan or to enter into an agreement, tacit or express, whereby the repayment or satisfaction of a debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or shall be deferred. (19) "Traffic" means to sell, transfer, distribute, dispense, or otherwise dispose of stolen property to another person, or to buy, receive, possess, or obtain control of stolen property, with intent to sell, transfer, distribute, dispense, or otherwise dispose of the property to another person. (20)(a) "Trustee" means: [Title 9A RCW—page 74] (i) A person acting as a trustee under a trust established under Title 11 RCW in which the trustee holds legal or record title to real property; (ii) A person who holds legal or record title to real property in which another person has a beneficial interest; or (iii) A successor trustee to a person who is a trustee under (a)(i) or (ii) of this subsection. (b) "Trustee" does not mean a person appointed or acting as: (i) A personal representative under Title 11 RCW; (ii) A trustee of any testamentary trust; (iii) A trustee of any indenture of trust under which a bond is issued; or (iv) A trustee under a deed of trust. (21) "Unlawful debt" means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in the state in full or in part because the debt was incurred or contracted: (a) In violation of any one of the following: (i) Chapter 67.16 RCW relating to horse racing; (ii) Chapter 9.46 RCW relating to gambling; (b) In a gambling activity in violation of federal law; or (c) In connection with the business of lending money or a thing of value at a rate that is at least twice the permitted rate under the applicable state or federal law relating to usury. [2006 c 277 § 5; 2006 c 193 § 2. Prior: 2003 c 119 § 6; 2003 c 113 § 3; 2003 c 53 § 85; prior: 2001 c 222 § 3; 2001 c 217 § 11; prior: 1999 c 143 § 40; prior: 1995 c 285 § 34; 1995 c 92 § 5; 1994 c 218 § 17; prior: 1992 c 210 § 6; 1992 c 145 § 13; 1989 c 20 § 17; 1988 c 33 § 5; 1986 c 78 § 1; 1985 c 455 § 2; 1984 c 270 § 1.] Reviser’s note: This section was amended by 2006 c 193 § 2 and by 2006 c 277 § 5, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. Captions not law—2001 c 217: See note following RCW 9.35.005. Effective date—1995 c 285: See RCW 48.30A.900. Effective date—1994 c 218: See note following RCW 9.46.010. Severability—Effective date—1989 c 20: See RCW 19.158.900 and 19.158.901. Effective date—1988 c 33 § 5: "Section 5 of this act shall take effect July 1, 1988." [1988 c 33 § 8.] Severability—1988 c 33: See RCW 61.34.900. 9A.82.020 9A.82.020 Extortionate extension of credit. (1) A person who knowingly makes an extortionate extension of credit is guilty of a class B felony. (2) In a prosecution under this section, if it is shown that all of the following factors are present in connection with the extension of credit, there is prima facie evidence that the extension of credit was extortionate: (a) The repayment of the extension of credit, or the performance of any promise given in consideration thereof, would be unenforceable at the time the extension of credit was made through civil judicial processes against the debtor in the county in which the debtor, if a natural person, resided (2006 Ed.) Criminal Profiteering Act or in every county in which the debtor, if other than a natural person, was incorporated or qualified to do business. (b) The extension of credit was made at a rate of interest in excess of an annual rate of forty-five percent calculated according to the actuarial method of allocating payments made on a debt between principal and interest, pursuant to which a payment is applied first to the accumulated interest and the balance is applied to the unpaid principal. (c) The creditor intended the debtor to believe that failure to comply with the terms of the extension of credit would be enforced by extortionate means. (d) Upon the making of the extension of credit, the total of the extensions of credit by the creditor to the debtor then outstanding, including any unpaid interest or similar charges, exceeded one hundred dollars. [2001 c 222 § 4. Prior: 1985 c 455 § 3; 1984 c 270 § 2.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.030 9A.82.030 Advancing money or property to be used for extortionate credit. A person who advances money or property, whether as a gift, loan, investment, or pursuant to a partnership or profit-sharing agreement or otherwise, to any person, with the knowledge that it is the intention of that person to use the money or property so advanced, directly or indirectly, for the purpose of making extortionate extensions of credit, is guilty of a class B felony. [2001 c 222 § 5. Prior: 1985 c 455 § 4; 1984 c 270 § 3.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.040 9A.82.040 Use of extortionate means to collect extensions of credit. A person who knowingly participates in any way in the use of any extortionate means to collect or attempt to collect any extensions of credit or to punish any person for the nonrepayment thereof, is guilty of a class B felony. [2001 c 222 § 6. Prior: 1985 c 455 § 5; 1984 c 270 § 4.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.045 9A.82.045 Collection of unlawful debt. It is unlawful for any person knowingly to collect any unlawful debt. A violation of this section is a class C felony. [2001 c 222 § 7. Prior: 1985 c 455 § 6.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.050 9A.82.050 Trafficking in stolen property in the first degree. (1) A person who knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of property for sale to others, or who knowingly traffics in stolen property, is guilty of trafficking in stolen property in the first degree. (2) Trafficking in stolen property in the first degree is a class B felony. [2003 c 53 § 86; 2001 c 222 § 8. Prior: 1984 c 270 § 5.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. (2006 Ed.) 9A.82.080 9A.82.055 9A.82.055 Trafficking in stolen property in the second degree. (1) A person who recklessly traffics in stolen property is guilty of trafficking in stolen property in the second degree. (2) Trafficking in stolen property in the second degree is a class C felony. [2003 c 53 § 87.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9A.82.060 9A.82.060 Leading organized crime. (1) A person commits the offense of leading organized crime by: (a) Intentionally organizing, managing, directing, supervising, or financing any three or more persons with the intent to engage in a pattern of criminal profiteering activity; or (b) Intentionally inciting or inducing others to engage in violence or intimidation with the intent to further or promote the accomplishment of a pattern of criminal profiteering activity. (2)(a) Leading organized crime as defined in subsection (1)(a) of this section is a class A felony. (b) Leading organized crime as defined in subsection (1)(b) of this section is a class B felony. [2003 c 53 § 88; 2001 c 222 § 9. Prior: 1985 c 455 § 7; 1984 c 270 § 6.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.070 9A.82.070 Influencing outcome of sporting event. Whoever knowingly gives, promises, or offers to any professional or amateur baseball, football, hockey, polo, tennis, horse race, or basketball player or boxer or any player or referee or other official who participates or expects to participate in any professional or amateur game or sport, or to any manager, coach, or trainer of any team or participant or prospective participant in any such game, contest, or sport, any benefit with intent to influence the person to lose or try to lose or cause to be lost or to limit the person’s or person’s team’s margin of victory or defeat, or in the case of a referee or other official to affect the decisions or the performance of the official’s duties in any way, in a baseball, football, hockey, or basketball game, boxing, tennis, horse race, or polo match, or any professional or amateur sport or game, in which the player or participant or referee or other official is taking part or expects to take part, or has any duty or connection therewith, is guilty of a class C felony. [2001 c 222 § 10. Prior: 1984 c 270 § 7.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.080 9A.82.080 Use of proceeds of criminal profiteering— Controlling enterprise or realty—Conspiracy or attempt. (1)(a) It is unlawful for a person who has knowingly received any of the proceeds derived, directly or indirectly, from a pattern of criminal profiteering activity to use or invest, whether directly or indirectly, any part of the proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise. (b) A violation of this subsection is a class B felony. [Title 9A RCW—page 75] 9A.82.085 Title 9A RCW: Washington Criminal Code (2)(a) It is unlawful for a person knowingly to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property through a pattern of criminal profiteering activity. (b) A violation of this subsection is a class B felony. (3)(a) It is unlawful for a person knowingly to conspire or attempt to violate subsection (1) or (2) of this section. (b) A violation of this subsection is a class C felony. [2003 c 53 § 89; 2001 c 222 § 11. Prior: 1985 c 455 § 8; 1984 c 270 § 8.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.085 9A.82.085 Bars on certain prosecutions. In a criminal prosecution alleging a violation of RCW 9A.82.060 or 9A.82.080, the state is barred from joining any offense other than the offenses alleged to be part of the pattern of criminal profiteering activity. When a defendant has been tried criminally for a violation of RCW 9A.82.060 or 9A.82.080, the state is barred from subsequently charging the defendant with an offense that was alleged to be part of the pattern of criminal profiteering activity for which he or she was tried. [2001 c 222 § 12. Prior: 1985 c 455 § 9.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.090 9A.82.090 Orders restraining criminal profiteering—When issued. During the pendency of any criminal case charging a violation of RCW 9A.82.060 or 9A.82.080, or an offense defined in RCW 9A.40.100, the superior court may, in addition to its other powers, issue an order pursuant to RCW 9A.82.100 (2) or (3). Upon conviction of a person for a violation of RCW 9A.82.060 or 9A.82.080, or an offense defined in RCW 9A.40.100, the superior court may, in addition to its other powers of disposition, issue an order pursuant to RCW 9A.82.100. [2003 c 267 § 5; 2001 c 222 § 13. Prior: 1985 c 455 § 10; 1984 c 270 § 9.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.100 9A.82.100 Remedies and procedures. (1)(a) A person who sustains injury to his or her person, business, or property by an act of criminal profiteering that is part of a pattern of criminal profiteering activity, or by an offense defined in RCW 9A.40.100, or by a violation of RCW 9A.82.060 or 9A.82.080 may file an action in superior court for the recovery of damages and the costs of the suit, including reasonable investigative and attorney’s fees. (b) The attorney general or county prosecuting attorney may file an action: (i) On behalf of those persons injured or, respectively, on behalf of the state or county if the entity has sustained damages, or (ii) to prevent, restrain, or remedy a pattern of criminal profiteering activity, or an offense defined in RCW 9A.40.100, or a violation of RCW 9A.82.060 or 9A.82.080. (c) An action for damages filed by or on behalf of an injured person, the state, or the county shall be for the recovery of damages and the costs of the suit, including reasonable investigative and attorney’s fees. [Title 9A RCW—page 76] (d) In an action filed to prevent, restrain, or remedy a pattern of criminal profiteering activity, or an offense defined in RCW 9A.40.100, or a violation of RCW 9A.82.060 or 9A.82.080, the court, upon proof of the violation, may impose a civil penalty not exceeding two hundred fifty thousand dollars, in addition to awarding the cost of the suit, including reasonable investigative and attorney’s fees. (2) The superior court has jurisdiction to prevent, restrain, and remedy a pattern of criminal profiteering, or an offense defined in RCW 9A.40.100, or a violation of RCW 9A.82.060 or 9A.82.080 after making provision for the rights of all innocent persons affected by the violation and after hearing or trial, as appropriate, by issuing appropriate orders. (3) Prior to a determination of liability, orders issued under subsection (2) of this section may include, but are not limited to, entering restraining orders or prohibitions or taking such other actions, including the acceptance of satisfactory performance bonds, in connection with any property or other interest subject to damages, forfeiture, or other restraints pursuant to this section as the court deems proper. The orders may also include attachment, receivership, or injunctive relief in regard to personal or real property pursuant to Title 7 RCW. In shaping the reach or scope of receivership, attachment, or injunctive relief, the superior court shall provide for the protection of bona fide interests in property, including community property, of persons who were not involved in the violation of this chapter, except to the extent that such interests or property were acquired or used in such a way as to be subject to forfeiture under RCW 9A.82.100(4)(f). (4) Following a determination of liability, orders may include, but are not limited to: (a) Ordering any person to divest himself or herself of any interest, direct or indirect, in any enterprise. (b) Imposing reasonable restrictions on the future activities or investments of any person, including prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect the laws of this state, to the extent the Constitutions of the United States and this state permit. (c) Ordering dissolution or reorganization of any enterprise. (d) Ordering the payment of actual damages sustained to those persons injured by a violation of RCW 9A.82.060 or 9A.82.080, or an offense defined in RCW 9A.40.100, or an act of criminal profiteering that is part of a pattern of criminal profiteering, and in the court’s discretion, increasing the payment to an amount not exceeding three times the actual damages sustained. (e) Ordering the payment of all costs and expenses of the prosecution and investigation of a pattern of criminal profiteering, or an offense defined in RCW 9A.40.100, activity or a violation of RCW 9A.82.060 or 9A.82.080, civil and criminal, incurred by the state or county, including any costs of defense provided at public expense, as appropriate to the state general fund or the antiprofiteering revolving fund of the county. (f) Ordering forfeiture first as restitution to any person damaged by an act of criminal profiteering that is part of a pattern of criminal profiteering, or by an offense defined in RCW 9A.40.100, then to the state general fund or antiprofi(2006 Ed.) Criminal Profiteering Act teering revolving fund of the county, as appropriate, to the extent not already ordered to be paid in other damages, of the following: (i) Any property or other interest acquired or maintained in violation of RCW 9A.82.060 or 9A.82.080 to the extent of the investment of funds, and any appreciation or income attributable to the investment, from a violation of RCW 9A.82.060 or 9A.82.080. (ii) Any property, contractual right, or claim against property used to influence any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of, in violation of RCW 9A.82.060 or 9A.82.080. (iii) All proceeds traceable to or derived from an offense included in the pattern of criminal profiteering activity, or an offense defined in RCW 9A.40.100, and all moneys, negotiable instruments, securities, and other things of value significantly used or intended to be used significantly to facilitate commission of the offense. (g) Ordering payment to the state general fund or antiprofiteering revolving fund of the county, as appropriate, of an amount equal to the gain a person has acquired or maintained through an offense included in the definition of criminal profiteering. (5) In addition to or in lieu of an action under this section, the attorney general or county prosecuting attorney may file an action for forfeiture to the state general fund or antiprofiteering revolving fund of the county, as appropriate, to the extent not already ordered paid pursuant to this section, of the following: (a) Any interest acquired or maintained by a person in violation of RCW 9A.82.060 or 9A.82.080 to the extent of the investment of funds obtained from a violation of RCW 9A.82.060 or 9A.82.080 and any appreciation or income attributable to the investment. (b) Any property, contractual right, or claim against property used to influence any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of, in violation of RCW 9A.82.060 or 9A.82.080. (c) All proceeds traceable to or derived from an offense included in the pattern of criminal profiteering activity, or an offense defined in RCW 9A.40.100, and all moneys, negotiable instruments, securities, and other things of value significantly used or intended to be used significantly to facilitate the commission of the offense. (6) A defendant convicted in any criminal proceeding is precluded in any civil proceeding from denying the essential allegations of the criminal offense proven in the criminal trial in which the defendant was convicted. For the purposes of this subsection, a conviction shall be deemed to have occurred upon a verdict, finding, or plea of guilty, notwithstanding the fact that appellate review of the conviction and sentence has been or may be sought. If a subsequent reversal of the conviction occurs, any judgment that was based upon that conviction may be reopened upon motion of the defendant. (7) The initiation of civil proceedings under this section shall be commenced within three years after discovery of the pattern of criminal profiteering activity or after the pattern should reasonably have been discovered or, in the case of an (2006 Ed.) 9A.82.100 offense that is defined in RCW 9A.40.100, within three years after the final disposition of any criminal charges relating to the offense, whichever is later. (8) The attorney general or county prosecuting attorney may, in a civil action brought pursuant to this section, file with the clerk of the superior court a certificate stating that the case is of special public importance. A copy of that certificate shall be furnished immediately by the clerk to the presiding chief judge of the superior court in which the action is pending and, upon receipt of the copy, the judge shall immediately designate a judge to hear and determine the action. The judge so designated shall promptly assign the action for hearing, participate in the hearings and determination, and cause the action to be expedited. (9) The standard of proof in actions brought pursuant to this section is the preponderance of the evidence test. (10) A person other than the attorney general or county prosecuting attorney who files an action under this section shall serve notice and one copy of the pleading on the attorney general within thirty days after the action is filed with the superior court. The notice shall identify the action, the person, and the person’s attorney. Service of the notice does not limit or otherwise affect the right of the state to maintain an action under this section or intervene in a pending action nor does it authorize the person to name the state or the attorney general as a party to the action. (11) Except in cases filed by a county prosecuting attorney, the attorney general may, upon timely application, intervene in any civil action or proceeding brought under this section if the attorney general certifies that in the attorney general’s opinion the action is of special public importance. Upon intervention, the attorney general may assert any available claim and is entitled to the same relief as if the attorney general had instituted a separate action. (12) In addition to the attorney general’s right to intervene as a party in any action under this section, the attorney general may appear as amicus curiae in any proceeding in which a claim under this section has been asserted or in which a court is interpreting RCW 9A.82.010, 9A.82.080, 9A.82.090, 9A.82.110, or 9A.82.120, or this section. (13) A private civil action under this section does not limit any other civil or criminal action under this chapter or any other provision. Private civil remedies provided under this section are supplemental and not mutually exclusive. (14) Upon motion by the defendant, the court may authorize the sale or transfer of assets subject to an order or lien authorized by this chapter for the purpose of paying actual attorney’s fees and costs of defense. The motion shall specify the assets for which sale or transfer is sought and shall be accompanied by the defendant’s sworn statement that the defendant has no other assets available for such purposes. No order authorizing such sale or transfer may be entered unless the court finds that the assets involved are not subject to possible forfeiture under RCW 9A.82.100(4)(f). Prior to disposition of the motion, the court shall notify the state of the assets sought to be sold or transferred and shall hear argument on the issue of whether the assets are subject to forfeiture under RCW 9A.82.100(4)(f). Such a motion may be made from time to time and shall be heard by the court on an expedited basis. [Title 9A RCW—page 77] 9A.82.110 Title 9A RCW: Washington Criminal Code (15) In an action brought under subsection (1)(a) and (b)(i) of this section, either party has the right to a jury trial. [2003 c 267 § 6; 2001 c 222 § 14. Prior: 1989 c 271 § 111; 1985 c 455 § 11; 1984 c 270 § 10.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. Application—1989 c 271 §§ 101-111: See note following RCW 9.94A.510. Severability—1989 c 271: See note following RCW 9.94A.510. 9A.82.110 9A.82.110 State public safety and education account—County antiprofiteering revolving funds. (1) Any payments or forfeiture to the state general fund ordered under RCW 9A.82.100 (4) or (5) shall be deposited in the public safety and education account. (2) In an action brought by the attorney general on behalf of the state under RCW 9A.82.100(1)(b)(i) in which the state prevails, any payments ordered in excess of the actual damages sustained shall be deposited in the public safety and education account. (3) It is the intent of the legislature that the money deposited in the public safety and education account pursuant to this chapter be appropriated to promote crime victims’ compensation. (4)(a) The county legislative authority may establish an antiprofiteering revolving fund to be administered by the county prosecuting attorney under the conditions and for the purposes provided by this subsection. Disbursements from the fund shall be on authorization of the county prosecuting attorney. No appropriation is required for disbursements. (b) Any prosecution and investigation costs, including attorney’s fees, recovered for the state by the county prosecuting attorney as a result of enforcement of civil and criminal statutes pertaining to any offense included in the definition of criminal profiteering, whether by final judgment, settlement, or otherwise, shall be deposited, as directed by a court of competent jurisdiction, in the fund established by this subsection. In an action brought by a prosecuting attorney on behalf of the county under RCW 9A.82.100(1)(b)(i) in which the county prevails, any payments ordered in excess of the actual damages sustained shall be deposited in the public safety and education account in the state general fund. (c) The county legislative authority may prescribe a maximum level of moneys in the antiprofiteering revolving fund. Moneys exceeding the prescribed maximum shall be transferred to the county current expense fund. (d) The moneys in the fund shall be used by the county prosecuting attorney for the investigation and prosecution of any offense, within the jurisdiction of the county prosecuting attorney, included in the definition of criminal profiteering, including civil enforcement. (e) If a county has not established an antiprofiteering revolving fund, any payments or forfeitures ordered to the county under this chapter shall be deposited to the county current expense fund. [2001 c 222 § 15. Prior: 1985 c 455 § 12; 1984 c 270 § 11.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.120 9A.82.120 Criminal profiteering lien—Authority, procedures. (1) The state, upon filing a criminal action [Title 9A RCW—page 78] under RCW 9A.82.060 or 9A.82.080 or for an offense defined in RCW 9A.40.100, or a civil action under RCW 9A.82.100, may file in accordance with this section a criminal profiteering lien. A filing fee or other charge is not required for filing a criminal profiteering lien. (2) A criminal profiteering lien shall be signed by the attorney general or the county prosecuting attorney representing the state in the action and shall set forth the following information: (a) The name of the defendant whose property or other interests are to be subject to the lien; (b) In the discretion of the attorney general or county prosecuting attorney filing the lien, any aliases or fictitious names of the defendant named in the lien; (c) If known to the attorney general or county prosecuting attorney filing the lien, the present residence or principal place of business of the person named in the lien; (d) A reference to the proceeding pursuant to which the lien is filed, including the name of the court, the title of the action, and the court’s file number for the proceeding; (e) The name and address of the attorney representing the state in the proceeding pursuant to which the lien is filed; (f) A statement that the notice is being filed pursuant to this section; (g) The amount that the state claims in the action or, with respect to property or other interests that the state has requested forfeiture to the state or county, a description of the property or interests sought to be paid or forfeited; (h) If known to the attorney general or county prosecuting attorney filing the lien, a description of property that is subject to forfeiture to the state or property in which the defendant has an interest that is available to satisfy a judgment entered in favor of the state; and (i) Such other information as the attorney general or county prosecuting attorney filing the lien deems appropriate. (3) The attorney general or the county prosecuting attorney filing the lien may amend a lien filed under this section at any time by filing an amended criminal profiteering lien in accordance with this section that identifies the prior lien amended. (4) The attorney general or the county prosecuting attorney filing the lien shall, as soon as practical after filing a criminal profiteering lien, furnish to any person named in the lien a notice of the filing of the lien. Failure to furnish notice under this subsection does not invalidate or otherwise affect a criminal profiteering lien filed in accordance with this section. (5)(a) A criminal profiteering lien is perfected against interests in personal property in the same manner as a security interest in like property pursuant to RCW 62A.9A-301 through 62A.9A-316 or as otherwise required to perfect a security interest in like property under applicable law. In the case of perfection by filing, the state shall file, in lieu of a financing statement in the form prescribed by RCW 62A.9A-502, a notice of lien in substantially the following form: NOTICE OF LIEN Pursuant to RCW 9A.82.120, the state of Washington claims a criminal profiteering lien on all real and personal property of: (2006 Ed.) Criminal Profiteering Act Name: Address: ................ ................ ................ State of Washington ....................... By (authorized signature) On receipt of such a notice from the state, a filing officer shall, without payment of filing fee, file and index the notice as if it were a financing statement naming the state as secured party and the defendant as debtor. (b) A criminal profiteering lien is perfected against interests in real property by filing the lien in the office where a mortgage on the real estate would be filed or recorded. The filing officer shall file and index the criminal profiteering lien, without payment of a filing fee, in the same manner as a mortgage. (6) The filing of a criminal profiteering lien in accordance with this section creates a lien in favor of the state in: (a) Any interest of the defendant, in real property situated in the county in which the lien is filed, then maintained, or thereafter acquired in the name of the defendant identified in the lien; (b) Any interest of the defendant, in personal property situated in this state, then maintained or thereafter acquired in the name of the defendant identified in the lien; and (c) Any property identified in the lien to the extent of the defendant’s interest therein. (7) The lien created in favor of the state in accordance with this section, when filed or otherwise perfected as provided in subsection (5) of this section, has, with respect to any of the property described in subsection (6) of this section, the same priority determined pursuant to the laws of this state as a mortgage or security interest given for value (but not a purchase money security interest) and perfected in the same manner with respect to such property; except that any lien perfected pursuant to Title 60 RCW by any person who, in the ordinary course of his or her business, furnishes labor, services, or materials, or rents, leases, or otherwise supplies equipment, without knowledge of the criminal profiteering lien, is superior to the criminal profiteering lien. (8) Upon entry of judgment in favor of the state, the state may proceed to execute thereon as in the case of any other judgment, except that in order to preserve the state’s lien priority as provided in this section the state shall, in addition to such other notice as is required by law, give at least thirty days’ notice of the execution to any person possessing at the time the notice is given, an interest recorded subsequent to the date the state’s lien was perfected. (9) Upon the entry of a final judgment in favor of the state providing for forfeiture of property to the state, the title of the state to the property: (a) In the case of real property or a beneficial interest in real property, relates back to the date of filing the criminal profiteering lien or, if no criminal profiteering lien is filed, then to the date of recording of the final judgment or the abstract thereof; or (b) In the case of personal property or a beneficial interest in personal property, relates back to the date the personal property was seized by the state, or the date of filing of a criminal profiteering lien in accordance with this section, (2006 Ed.) 9A.82.130 whichever is earlier, but if the property was not seized and no criminal profiteering lien was filed then to the date the final judgment was filed with the department of licensing and, if the personal property is an aircraft, with the federal aviation administration. (10) This section does not limit the right of the state to obtain any order or injunction, receivership, writ, attachment, garnishment, or other remedy authorized under RCW 9A.82.100 or appropriate to protect the interests of the state or available under other applicable law. (11) In a civil or criminal action under this chapter, the superior court shall provide for the protection of bona fide interests in property, including community property, subject to liens of persons who were not involved in the violation of this chapter, except to the extent that such interests or property were acquired or used in such a way as to be subject to forfeiture pursuant to RCW 9A.82.100(4)(f). [2003 c 267 § 7; 2001 c 222 § 16. Prior: 1985 c 455 § 13; 1984 c 270 § 12.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.130 9A.82.130 Criminal profiteering lien—Trustee of real property. (1) A trustee who is personally served in the manner provided for service of legal process with written notice that a lien notice has been recorded or a civil proceeding or criminal proceeding has been instituted under this chapter against any person for whom the trustee holds legal or record title to real property, shall immediately furnish to the attorney general or county prosecuting attorney the following: (a) The name and address of the person, as known to the trustee; (b) To the extent known to the trustee, the name and address of all other persons for whose benefit the trustee holds title to the real property; and (c) If requested by the attorney general or county prosecuting attorney, a copy of the trust agreement or other instrument under which the trustee holds legal or record title to the real property. (2) The recording of a lien notice shall not constitute a lien on the record title to real property owned by a trustee at the time of recording except to the extent that trustee is named in and served with the lien notice as provided in subsection (1) of this section. The attorney general or county prosecuting attorney may bring a civil proceeding in superior court against the trustee to recover from the trustee the amounts set forth in RCW 9A.82.150. In addition to amounts recovered under RCW 9A.82.150, the attorney general or county prosecuting attorney also may recover its investigative costs and attorneys’ fees. (3) The recording of a lien notice does not affect the use to which real property or a beneficial interest owned by the person named in the lien notice may be put or the right of the person to receive any avails, rents, or other proceeds resulting from the use and ownership except the sale of the property, until a judgment of forfeiture is entered. (4) This section does not apply to any conveyance by a trustee under a court order unless the court order is entered in an action between the trustee and the beneficiary. (5) Notwithstanding that a trustee is served with notice as provided in subsection (1) of this section, this section does [Title 9A RCW—page 79] 9A.82.140 Title 9A RCW: Washington Criminal Code not apply to a conveyance by a trustee required under the terms of any trust agreement in effect before service of such notice on the trustee. [2001 c 222 § 17. Prior: 1985 c 455 § 14; 1984 c 270 § 13.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.140 9A.82.140 Criminal profiteering lien—Procedures after notice. (1) The term of a lien notice shall be six years from the date the lien notice is recorded. If a renewal lien notice is filed by the attorney general or county prosecuting attorney, the term of the renewal lien notice shall be for six years from the date the renewal lien notice is recorded. The attorney general or county prosecuting attorney is entitled to only one renewal of the lien notice. (2) The attorney general or county prosecuting attorney filing the lien notice may release in whole or in part any lien notice or may release any specific property or beneficial interest from the lien notice upon such terms and conditions as the attorney general or county prosecuting attorney considers appropriate and shall release any lien upon the dismissal of the action which is the basis of the lien or satisfaction of the judgment of the court in the action or other final disposition of the claim evidenced by the lien. A release of a lien notice executed by the attorney general or county prosecuting attorney shall be recorded in the official records in which the lien notice covering that property was recorded. No charge or fee may be imposed for recording any release of a lien notice. (3)(a) A person named in the lien notice may move the court in which the civil proceeding giving rise to the lien notice is pending for an order extinguishing the lien notice. (b) Upon the motion of a person under (a) of this subsection, the court immediately shall enter an order setting a date for hearing, which shall be not less than five nor more than ten days after the motion is filed. The order and a copy of the motion shall be served on the attorney general or county prosecuting attorney within three days after the entry of the court’s order. At the hearing, the court shall take evidence on the issue of whether any property or beneficial interest owned by the person is covered by the lien notice or otherwise subject to forfeiture under RCW 9A.82.120. If the person shows by a preponderance of the evidence that the lien notice is not applicable to the person or that any property or beneficial interest owned by the person is not subject to forfeiture under RCW 9A.82.120, the court shall enter a judgment extinguishing the lien notice or releasing the property or beneficial interest from the lien notice. (c) The court may enter an order releasing from the lien notice any specific real property or beneficial interest if, at the time the lien notice is recorded, there is pending an arms length sale of the real property or beneficial interest in which the parties are under no undue compulsion to sell or buy and are able, willing, and reasonably well informed and the sale is for the fair market value of the real property or beneficial interest and the recording of the lien notice prevents the sale of the property or interest. The proceeds resulting from the sale of the real property or beneficial interest shall be deposited with the court, subject to the further order of the court. (d) At any time after filing of a lien, the court may release from the lien any property upon application by the defendant and posting of security equal to the value of the [Title 9A RCW—page 80] property to be released. [2001 c 222 § 18. Prior: 1985 c 455 § 15; 1984 c 270 § 14.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.150 9A.82.150 Criminal profiteering lien—Conveyance of property by trustee, liability. (1) If a trustee conveys title to real property for which, at the time of the conveyance, the trustee has been personally served with notice as provided in RCW 9A.82.130(1) of a lien under this chapter, the trustee shall be liable to the state for the greater of: (a) The amount of proceeds received by the person named in the lien notice as a result of the conveyance; (b) The amount of proceeds received by the trustee as a result of the conveyance and distributed by the trustee to the person named in the lien notice; or (c) The fair market value of the interest of the person named in the lien notice in the real property so conveyed. (2) If the trustee conveys the real property for which a lien notice has been served on the trustee at the time of the conveyance and holds the proceeds that would otherwise be paid or distributed to the beneficiary or at the direction of the beneficiary or beneficiary’s designee, the trustee’s liability shall not exceed the amount of the proceeds so held so long as the trustee continues to hold the proceeds. [2001 c 222 § 19. Prior: 1985 c 455 § 16; 1984 c 270 § 15.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.160 9A.82.160 Criminal profiteering lien—Trustee’s failure to comply, evasion of procedures or lien. (1) A trustee who knowingly fails to comply with RCW 9A.82.130(1) is guilty of a gross misdemeanor. (2) A trustee who conveys title to real property after service of the notice as provided in RCW 9A.82.130(1) with the intent to evade the provisions of RCW 9A.82.100 or 9A.82.120 with respect to such property is guilty of a class C felony. [2003 c 53 § 90; 2001 c 222 § 20. Prior: 1985 c 455 § 17; 1984 c 270 § 16.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.170 9A.82.170 Financial institution records—Inspection and copying—Wrongful disclosure. (1) Upon request of the attorney general or prosecuting attorney, a subpoena for the production of records of a financial institution may be signed and issued by a superior court judge if there is reason to believe that an act of criminal profiteering or a violation of RCW 9A.82.060 or 9A.82.080 has occurred or is occurring and that the records sought will materially aid in the investigation of such activity or appears reasonably calculated to lead to the discovery of information that will do so. The subpoena shall be served on the financial institution as in civil actions. The court may, upon motion timely made and in any event before the time specified for compliance with the subpoena, condition compliance upon advancement by the attorney general or prosecuting attorney of the reasonable costs of producing the records specified in the subpoena. (2006 Ed.) Money Laundering (2) A response to a subpoena issued under this section is sufficient if a copy or printout, duly authenticated by an officer of the financial institution as a true and correct copy or printout of its records, is provided, unless otherwise provided in the subpoena for good cause shown. (3) Except as provided in this subsection, a financial institution served with a subpoena under this section shall not disclose to the customer the fact that a subpoena seeking records relating to the customer has been served. A judge of the superior court may order the attorney general, prosecuting attorney, or financial institution to advise the financial institution’s customer of the subpoena. Unless ordered to do so by the court, disclosure of the subpoena by the financial institution or any of its employees to the customer is a misdemeanor. (4) A financial institution shall be reimbursed in an amount set by the court for reasonable costs incurred in providing information pursuant to this section. (5) This section does not preclude the use of other legally authorized means of obtaining records, nor preclude the assertion of any legally recognized privileges. (6) Disclosure by the attorney general, county prosecuting attorney, or any peace officer or other person designated by the attorney general or the county prosecuting attorney, of information obtained under this section, except in the proper discharge of official duties, is punishable as a misdemeanor. (7) Upon filing of any civil or criminal action, the nondisclosure requirements of any subpoena or order under this section shall terminate, and the attorney general or prosecuting attorney filing the action shall provide to the defendant copies of all subpoenas or other orders issued under this section. (8) A financial institution shall not be civilly liable for harm resulting from its compliance with the provisions of this chapter. [2001 c 222 § 21. Prior: 1985 c 455 § 18; 1984 c 270 § 17.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.900 9A.82.900 Severability—1984 c 270. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2001 c 222 § 22. Prior: 1984 c 270 § 20.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.901 9A.82.901 Effective date—1984 c 270 as amended by 1985 c 455. Sections 12, 13, 14, 15, and 16, chapter 270, Laws of 1984 as amended by sections 13, 14, 15, 16, and 17 of this 1985 act shall take effect on July 1, 1986, and the remainder of chapter 270, Laws of 1984 shall take effect on July 1, 1985. [2001 c 222 § 23. Prior: 1985 c 455 § 20; 1984 c 270 § 21.] Purpose—Effective date—2001 c 222: See notes following RCW 9A.82.001. 9A.82.902 9A.82.902 Effective date—1985 c 455. With the exception of sections 13, 14, 15, 16, and 17 of this act, this act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government (2006 Ed.) 9A.83.020 and its existing public institutions, and shall take effect July 1, 1985. [1985 c 455 § 21.] 9A.82.904 9A.82.904 Severability—1985 c 455. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1985 c 455 § 23.] Chapter 9A.83 Chapter 9A.83 RCW MONEY LAUNDERING Sections 9A.83.010 9A.83.020 9A.83.030 9A.83.040 Definitions. Money laundering. Seizure and forfeiture. Release from liability. 9A.83.010 9A.83.010 Definitions. The definitions set forth in this section apply throughout this chapter. (1) "Conducts a financial transaction" includes initiating, concluding, or participating in a financial transaction. (2) "Financial institution" means a bank, savings bank, credit union, or savings and loan institution. (3) "Financial transaction" means a purchase, sale, loan, pledge, gift, transfer, transmission, delivery, trade, deposit, withdrawal, payment, transfer between accounts, exchange of currency, extension of credit, or any other acquisition or disposition of property, by whatever means effected. (4) "Knows the property is proceeds of specified unlawful activity" means believing based upon the representation of a law enforcement officer or his or her agent, or knowing that the property is proceeds from some form, though not necessarily which form, of specified unlawful activity. (5) "Proceeds" means any interest in property directly or indirectly acquired through or derived from an act or omission, and any fruits of this interest, in whatever form. (6) "Property" means anything of value, whether real or personal, tangible or intangible. (7) "Specified unlawful activity" means an offense committed in this state that is a class A or B felony under Washington law or that is listed as "criminal profiteering" in RCW 9A.82.010, or an offense committed in any other state that is punishable under the laws of that state by more than one year in prison, or an offense that is punishable under federal law by more than one year in prison. [1999 c 143 § 41; 1992 c 210 § 1.] 9A.83.020 9A.83.020 Money laundering. (1) A person is guilty of money laundering when that person conducts or attempts to conduct a financial transaction involving the proceeds of specified unlawful activity and: (a) Knows the property is proceeds of specified unlawful activity; or (b) Knows that the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership, or control of the proceeds, and acts recklessly as to whether the property is proceeds of specified unlawful activity; or [Title 9A RCW—page 81] 9A.83.030 Title 9A RCW: Washington Criminal Code (c) Knows that the transaction is designed in whole or in part to avoid a transaction reporting requirement under federal law. (2) In consideration of the constitutional right to counsel afforded by the Fifth and Sixth amendments to the United States Constitution and Article 1, Section 22 of the Constitution of Washington, an additional proof requirement is imposed when a case involves a licensed attorney who accepts a fee for representing a client in an actual criminal investigation or proceeding. In these situations, the prosecution is required to prove that the attorney accepted proceeds of specified unlawful activity with intent: (a) To conceal or disguise the nature, location, source, ownership, or control of the proceeds, knowing the property is proceeds of specified unlawful activity; or (b) To avoid a transaction reporting requirement under federal law. The proof required by this subsection is in addition to the requirements contained in subsection (1) of this section. (3) An additional proof requirement is imposed when a case involves a financial institution and one or more of its employees. In these situations, the prosecution is required to prove that proceeds of specified unlawful activity were accepted with intent: (a) To conceal or disguised [disguise] the nature, location, source, ownership, or control of the proceeds, knowing the property is proceeds of specified unlawful activity; or (b) To avoid a transaction reporting requirement under federal law. The proof required by this subsection is in addition to the requirements contained in subsection (1) of this section. (4) Money laundering is a class B felony. (5) A person who violates this section is also liable for a civil penalty of twice the value of the proceeds involved in the financial transaction and for the costs of the suit, including reasonable investigative and attorneys’ fees. (6) Proceedings under this chapter shall be in addition to any other criminal penalties, civil penalties, or forfeitures authorized under state law. [1992 c 210 § 2.] 9A.83.030 9A.83.030 Seizure and forfeiture. (1) Proceeds traceable to or derived from specified unlawful activity or a violation of RCW 9A.83.020 are subject to seizure and forfeiture. The attorney general or county prosecuting attorney may file a civil action for the forfeiture of proceeds. Unless otherwise provided for under this section, no property rights exist in these proceeds. All right, title, and interest in the proceeds shall vest in the governmental entity of which the seizing law enforcement agency is a part upon commission of the act or omission giving rise to forfeiture under this section. (2) Real or personal property subject to forfeiture under this chapter may be seized by any law enforcement officer of this state upon process issued by a superior court that has jurisdiction over the property. Any agency seizing real property shall file a lis pendens concerning the property. Real property seized under this section shall not be transferred or otherwise conveyed until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later. Real property seized under this section may be transferred or conveyed to any person or entity who acquires title by foreclo[Title 9A RCW—page 82] sure or deed in lieu of foreclosure of a security interest. Seizure of personal property without process may be made if: (a) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant issued pursuant to RCW 69.50.502; or (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter. (3) A seizure under subsection (2) of this section commences proceedings for forfeiture. The law enforcement agency under whose authority the seizure was made shall cause notice of the seizure and intended forfeiture of the seized proceeds to be served within fifteen days after the seizure on the owner of the property seized and the person in charge thereof and any person who has a known right or interest therein, including a community property interest. Service of notice of seizure of real property shall be made according to the rules of civil procedure. However, the state may not obtain a default judgment with respect to real property against a party who is served by substituted service absent an affidavit stating that a good faith effort has been made to ascertain if the defaulted party is incarcerated within the state, and that there is no present basis to believe that the party is incarcerated within the state. The notice of seizure in other cases may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail is complete upon mailing within the fifteen-day period after the seizure. (4) If no person notifies the seizing law enforcement agency in writing of the person’s claim of ownership or right to possession of the property within forty-five days of the seizure in the case of personal property and ninety days in the case of real property, the property seized shall be deemed forfeited. The community property interest in real property of a person whose spouse committed a violation giving rise to seizure of the real property may not be forfeited if the person did not participate in the violation. (5) If a person notifies the seizing law enforcement agency in writing of the person’s claim of ownership or right to possession of property within forty-five days of the seizure in the case of personal property and ninety days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The provisions of *RCW 69.50.505(e) shall apply to any such hearing. The seizing law enforcement agency shall promptly return property to the claimant upon the direction of the administrative law judge or court. (6) Disposition of forfeited property shall be made in the manner provided for in *RCW 69.50.505 (h) through (j) and (n). [2001 c 168 § 2; 1992 c 210 § 3.] *Reviser’s note: RCW 69.50.505 was amended by 2003 c 53 § 348, changing subsections (e), (h) through (j), and (n) to subsections (5), (8) through (10), and (14), respectively, effective July 1, 2004. Severability—2001 c 168: See note following RCW 69.50.505. 9A.83.040 9A.83.040 Release from liability. No liability is imposed by this chapter upon any authorized state, county, or municipal officer engaged in the lawful performance of his duties, or upon any person who reasonably believes that he is acting at the direction of such officer and that the officer is (2006 Ed.) Public Disturbance acting in the lawful performance of his duties. [1992 c 210 § 4.] 9A.88.050 Chapter 9A.88 RCW INDECENT EXPOSURE—PROSTITUTION Chapter 9A.88 (Formerly: Public indecency—Prostitution) Chapter 9A.84 Chapter 9A.84 RCW PUBLIC DISTURBANCE Sections 9A.84.010 9A.84.020 9A.84.030 9A.84.040 Riot. Failure to disperse. Disorderly conduct. False reporting. 9A.84.010 9A.84.010 Riot. (1) A person is guilty of the crime of riot if, acting with three or more other persons, he or she knowingly and unlawfully uses or threatens to use force, or in any way participates in the use of such force, against any other person or against property. (2)(a) Except as provided in (b) of this subsection, the crime of riot is a gross misdemeanor. (b) The crime of riot is a class C felony if the actor is armed with a deadly weapon. [2003 c 53 § 91; 1975 1st ex.s. c 260 § 9A.84.010.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 9A.84.020 9A.84.020 Failure to disperse. (1) A person is guilty of failure to disperse if: (a) He congregates with a group of three or more other persons and there are acts of conduct within that group which create a substantial risk of causing injury to any person, or substantial harm to property; and (b) He refuses or fails to disperse when ordered to do so by a peace officer or other public servant engaged in enforcing or executing the law. (2) Failure to disperse is a misdemeanor. [1975 1st ex.s. c 260 § 9A.84.020.] Sections 9A.88.010 9A.88.030 9A.88.050 9A.88.060 9A.88.070 9A.88.080 9A.88.085 9A.88.090 9A.88.110 9A.88.120 9A.88.130 9A.88.140 Indecent exposure. Prostitution. Prostitution—Sex of parties immaterial—No defense. Promoting prostitution—Definitions. Promoting prostitution in the first degree. Promoting prostitution in the second degree. Promoting travel for prostitution. Permitting prostitution. Patronizing a prostitute. Additional fee assessments. Additional requirements. Vehicle impoundment. Obscenity: Chapter 9.68 RCW. 9A.88.010 9A.88.010 Indecent exposure. (1) A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. The act of breastfeeding or expressing breast milk is not indecent exposure. (2)(a) Except as provided in (b) and (c) of this subsection, indecent exposure is a misdemeanor. (b) Indecent exposure is a gross misdemeanor on the first offense if the person exposes himself or herself to a person under the age of fourteen years. (c) Indecent exposure is a class C felony if the person has previously been convicted under this section or of a sex offense as defined in RCW 9.94A.030. [2003 c 53 § 92; 2001 c 88 § 2; 1990 c 3 § 904; 1987 c 277 § 1; 1975 1st ex.s. c 260 § 9A.88.010.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Acknowledgment—Declaration—Findings—2001 c 88: See note following RCW 43.70.640. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 9A.88.030 9A.84.030 9A.84.030 Disorderly conduct. (1) A person is guilty of disorderly conduct if he: (a) Uses abusive language and thereby intentionally creates a risk of assault; or (b) Intentionally disrupts any lawful assembly or meeting of persons without lawful authority; or (c) Intentionally obstructs vehicular or pedestrian traffic without lawful authority. (2) Disorderly conduct is a misdemeanor. [1975 1st ex.s. c 260 § 9A.84.030.] 9A.88.030 Prostitution. (1) A person is guilty of prostitution if such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee. (2) For purposes of this section, "sexual conduct" means "sexual intercourse" or "sexual contact," both as defined in chapter 9A.44 RCW. (3) Prostitution is a misdemeanor. [1988 c 145 § 16; 1979 ex.s. c 244 § 15; 1975 1st ex.s. c 260 § 9A.88.030.] Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. Effective date—1979 ex.s. c 244: See RCW 9A.44.902. 9A.84.040 9A.84.040 False reporting. (1) A person is guilty of false reporting if with knowledge that the information reported, conveyed or circulated is false, he initiates or circulates a false report or warning of an alleged occurrence or impending occurrence of a fire, explosion, crime, catastrophe, or emergency knowing that such false report is likely to cause evacuation of a building, place of assembly, or transportation facility, or to cause public inconvenience or alarm. (2) False reporting is a gross misdemeanor. [1975 1st ex.s. c 260 § 9A.84.040.] (2006 Ed.) 9A.88.050 9A.88.050 Prostitution—Sex of parties immaterial— No defense. In any prosecution for prostitution, the sex of the two parties or prospective parties to the sexual conduct engaged in, contemplated, or solicited is immaterial, and it is no defense that: (1) Such persons were of the same sex; or (2) The person who received, agreed to receive, or solicited a fee was a male and the person who paid or agreed or offered to pay such fee was female. [1975 1st ex.s. c 260 § 9A.88.050.] [Title 9A RCW—page 83] 9A.88.060 Title 9A RCW: Washington Criminal Code 9A.88.060 9A.88.060 Promoting prostitution—Definitions. The following definitions are applicable in RCW 9A.88.070 through 9A.88.090: (1) "Advances prostitution." A person "advances prostitution" if, acting other than as a prostitute or as a customer thereof, he causes or aids a person to commit or engage in prostitution, procures or solicits customers for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution. (2) "Profits from prostitution." A person "profits from prostitution" if, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of prostitution activity. [1975 1st ex.s. c 260 § 9A.88.060.] 9A.88.070 9A.88.070 Promoting prostitution in the first degree. (1) A person is guilty of promoting prostitution in the first degree if he knowingly: (a) Advances prostitution by compelling a person by threat or force to engage in prostitution or profits from prostitution which results from such threat or force; or (b) Advances or profits from prostitution of a person less than eighteen years old. (2) Promoting prostitution in the first degree is a class B felony. [1975 1st ex.s. c 260 § 9A.88.070.] 9A.88.080 9A.88.080 Promoting prostitution in the second degree. (1) A person is guilty of promoting prostitution in the second degree if he knowingly: (a) Profits from prostitution; or (b) Advances prostitution. (2) Promoting prostitution in the second degree is a class C felony. [1975 1st ex.s. c 260 § 9A.88.080.] 9A.88.085 9A.88.085 Promoting travel for prostitution. (1) A person commits the offense of promoting travel for prostitution if the person knowingly sells or offers to sell travel services that include or facilitate travel for the purpose of engaging in what would be patronizing a prostitute or promoting prostitution, if occurring in the state. (2) For purposes of this section, "travel services" has the same meaning as defined in RCW 19.138.021. (3) Promoting travel for prostitution is a class C felony. [2006 c 250 § 2.] Finding—2006 c 250: "The legislature finds that the sex industry has rapidly expanded over the past several decades. It involves sexual exploitation of persons, predominantly women and girls, including activities relating to prostitution, pornography, sex tourism, and other commercial sexual services. Prostitution and related activities contribute to the trafficking in persons, as does sex tourism. Therefore, discouraging sex tourism is key to reducing the demand for sex trafficking. While prostitution is illegal in developing nations that are the primary destination of sex tourism, sex tourism is a major component of the local economy. The laws target female workers rather than the male customers, and economic opportunities for females are limited. Developed nations create the demand for sex tourism, yet often fail to criminalize the practice, or the existing laws fail to specifically target the sellers of travel who organize, facilitate, and promote sex tourism." [2006 c 250 § 1.] [Title 9A RCW—page 84] 9A.88.090 9A.88.090 Permitting prostitution. (1) A person is guilty of permitting prostitution if, having possession or control of premises which he knows are being used for prostitution purposes, he fails without lawful excuse to make reasonable effort to halt or abate such use. (2) Permitting prostitution is a misdemeanor. [1975 1st ex.s. c 260 § 9A.88.090.] 9A.88.110 9A.88.110 Patronizing a prostitute. (1) A person is guilty of patronizing a prostitute if: (a) Pursuant to a prior understanding, he or she pays a fee to another person as compensation for such person or a third person having engaged in sexual conduct with him or her; or (b) He or she pays or agrees to pay a fee to another person pursuant to an understanding that in return therefor such person will engage in sexual conduct with him or her; or (c) He or she solicits or requests another person to engage in sexual conduct with him or her in return for a fee. (2) For purposes of this section, "sexual conduct" has the meaning given in RCW 9A.88.030. (3) Patronizing a prostitute is a misdemeanor. [1988 c 146 § 4.] Severability—Effective dates—1988 c 146: See notes following RCW 9A.44.050. 9A.88.120 9A.88.120 Additional fee assessments. (1)(a) In addition to penalties set forth in RCW 9A.88.010, 9A.88.030, and 9A.88.090, a person who is either convicted or given a deferred sentence or a deferred prosecution as a result of an arrest for violating RCW 9A.88.010, 9A.88.030, 9A.88.090, or comparable county or municipal ordinances shall be assessed a fifty dollar fee. (b) In addition to penalties set forth in RCW 9A.88.110, a person who is either convicted or given a deferred sentence or a deferred prosecution as a result of an arrest for violating RCW 9A.88.110 or a comparable county or municipal ordinance shall be assessed a one hundred fifty dollar fee. (c) In addition to penalties set forth in RCW 9A.88.070 and 9A.88.080, a person who is either convicted or given a deferred sentence or a deferred prosecution as a result of an arrest for violating RCW 9A.88.070, 9A.88.080, or comparable county or municipal ordinances shall be assessed a three hundred dollar fee. (2) The court may not suspend payment of all or part of the fee unless it finds that the person does not have the ability to pay. (3) When a minor has been adjudicated a juvenile offender for an offense which, if committed by an adult, would constitute a violation under this chapter or comparable county or municipal ordinances, the court shall assess the fee as specified under subsection (1) of this section. The court may not suspend payment of all or part of the fee unless it finds that the minor does not have the ability to pay the fee. (4) Any fee assessed under this section shall be collected by the clerk of the court and distributed each month to the state treasurer for deposit in the prostitution prevention and intervention account under RCW 43.63A.740 for the purpose of funding prostitution prevention and intervention activities. [1995 c 353 § 13.] (2006 Ed.) Laws Repealed 9A.98.020 9A.88.130 9A.88.130 Additional requirements. (1) When sentencing or imposing conditions on a person convicted of, or receiving a deferred sentence or deferred prosecution for, violating RCW 9A.88.110 or 9.68A.100, the court must impose a requirement that the offender: (a) Not be subsequently arrested for patronizing a prostitute or patronizing a juvenile prostitute; and (b) Remain outside the geographical area, prescribed by the court, in which the person was arrested for violating RCW 9A.88.110 or 9.68A.100, unless such a requirement would interfere with the person’s legitimate employment or residence or otherwise be infeasible. (2) This requirement is in addition to the penalties set forth in RCW 9A.88.110, 9A.88.120, and 9.68A.100. [1999 c 327 § 2.] Findings—Intent—1999 c 327: "The legislature finds that most law enforcement effort to prevent prostitution is directed at punishing prostitutes. The legislature also finds that many patrons of prostitutes use motor vehicles in order to obtain the services of prostitutes and that successful prevention of prostitution involves efforts to curtail the demand for services offered by prostitutes. It is the intent of the legislature to decrease the demand for prostitution services and thereby eliminate the economic foundation for the prostitution industry. It is also the intent of the legislature to eliminate traffic congestion and other concerns to neighborhoods and business areas caused by patrons cruising in motor vehicles in areas of high prostitution activity." [1999 c 327 § 1.] 9A.88.140 9A.88.140 Vehicle impoundment. (1) Upon an arrest for a suspected violation of patronizing a prostitute or patronizing a juvenile prostitute, the arresting law enforcement officer may impound the person’s vehicle if (a) the motor vehicle was used in the commission of the crime; (b) the person arrested is the owner of the vehicle; and (c) the person arrested has previously been convicted of patronizing a prostitute, under RCW 9A.88.110, or patronizing a juvenile prostitute, under RCW 9.68A.100. (2) Impoundments performed under this section shall be in accordance with chapter 46.55 RCW. [1999 c 327 § 3.] Findings—Intent—1999 c 327: See note following RCW 9A.88.130. Chapter 9A.98 Chapter 9A.98 RCW LAWS REPEALED Sections 9A.98.010 9A.98.020 Acts or parts of acts repealed. Savings clause. 9A.98.010 9A.98.010 Acts or parts of acts repealed. 1st ex.s. c 260 § 9A.92.010. See 1975 9A.98.020 9A.98.020 Savings clause. The laws repealed by RCW 9A.98.010 are repealed except with respect to rights and duties which matured, penalties which were incurred, and proceedings which were begun before July 1, 1976. [1975 1st ex.s. c 260 § 9A.92.020.] (2006 Ed.) [Title 9A RCW—page 85] Title 10 Title 10 CRIMINAL PROCEDURE Chapters 10.01 General provisions. 10.04 District court procedure—Generally. 10.05 Deferred prosecution—Courts of limited jurisdiction. 10.10 Criminal appeals from district courts. 10.14 Harassment. 10.16 Preliminary hearings. 10.19 Bail and appearance bonds. 10.22 Compromise of misdemeanors. 10.25 Jurisdiction and venue. 10.27 Grand juries—Criminal investigations. 10.29 Statewide Special Inquiry Judge Act. 10.31 Warrants and arrests. 10.34 Fugitives of this state. 10.37 Accusations and their requisites. 10.40 Arraignment. 10.43 Former acquittal or conviction. 10.46 Superior court trial. 10.52 Witnesses—Generally. 10.55 Witnesses outside the state (Uniform Act). 10.58 Evidence. 10.61 Verdicts. 10.64 Judgments and sentences. 10.66 Drug traffickers—Off-limits orders. 10.70 Commitments. 10.73 Criminal appeals. 10.77 Criminally insane—Procedures. 10.79 Searches and seizures. 10.82 Collection and disposition of fines and costs. 10.85 Rewards. 10.88 Uniform Criminal Extradition Act. 10.89 Uniform Act on Fresh Pursuit. 10.91 Uniform Rendition of Accused Persons Act. 10.93 Washington mutual aid peace officers powers act. 10.95 Capital punishment—Aggravated first degree murder. 10.97 Washington State Criminal Records Privacy Act. 10.98 Criminal justice information act. 10.99 Domestic violence—Official response. 10.101 Indigent defense services. 10.105 Property involved in a felony. Criminal justice training commission—Education and training boards: Chapter 43.101 RCW. Criminal rules for superior court: Rules of court: Superior Court Criminal Rules (CrR). Justice without unnecessary delay: State Constitution Art. 1 § 10. Mental illness—Financial responsibility: Chapter 71.02 RCW. Oaths and mode of administering: State Constitution Art. 1 § 6. Traffic violations: Chapters 46.63, 46.64 RCW. Victims of crimes, compensation: Chapter 7.68 RCW. (2006 Ed.) Chapter 10.01 Chapter 10.01 RCW GENERAL PROVISIONS Sections 10.01.030 10.01.040 10.01.050 10.01.060 10.01.070 10.01.090 10.01.100 10.01.113 10.01.120 10.01.130 10.01.140 10.01.150 10.01.160 10.01.170 10.01.180 10.01.190 10.01.200 10.01.210 Pleadings—Forms abolished. Statutes—Repeal or amendment—Saving clause presumed. Convictions—Necessary before punishment. Conviction—Requisites—Waiver of jury trial. Corporations—Amenable to criminal process—How. Corporations—Judgment against. Corporations—Penalties—Fines in lieu of other punishments. Indigent party—State payment of review costs. Pardons—Reprieves—Commutations. Witnesses’ fees. Mileage allowance—Jurors—Witnesses. Charges arising from official acts of state officers or employees—Defense by attorney general. Costs—What constitutes—Payment by defendant—Procedure—Remission. Fine or costs—Payment within specified time or installments. Fine or costs—Default in payment—Contempt of court— Enforcement, collection procedures. Prosecutorial powers of attorney general. Registration of sex offenders and kidnapping offenders— Notice to defendants. Offender notification and warning. Alcoholics—Private establishment: Chapter 71.12 RCW. Double jeopardy: State Constitution Art. 1 § 9. Excessive bail or fines, cruel punishment prohibited: State Constitution Art. 1 § 14. Habeas corpus: State Constitution Art. 1 § 13. Indians, jurisdiction in criminal and civil causes: Chapter 37.12 RCW. Limitation of actions: RCW 9A.04.080. Mental illness: Chapter 71.05 RCW. Psychopathic delinquents, procedures, hospitalization, etc.: Chapter 71.06 RCW. Public defender: Chapter 36.26 RCW. Right to bail: State Constitution Art. 1 § 20. trial by jury: State Constitution Art. 1 § 21. Rights of accused persons: State Constitution Art. 1 § 22. Sexual psychopaths, procedures as to: Chapter 71.06 RCW. 10.01.030 Pleadings—Forms abolished. All the forms of pleading in criminal actions heretofore existing, are abolished; and hereafter, the forms of pleading, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed herein. [Code 1881 § 1002; 1873 p 224 § 185; 1869 p 240 § 180; RRS § 2022.] 10.01.030 10.01.040 Statutes—Repeal or amendment—Saving clause presumed. No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act, and no prosecution for any offense, or for the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, whether such repeal be express or implied, 10.01.040 [Title 10 RCW—page 1] 10.01.050 Title 10 RCW: Criminal Procedure shall be affected by such repeal, but the same shall proceed in all respects, as if such provision had not been repealed, unless a contrary intention is expressly declared in the repealing act. Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein. [1901 ex.s. c 6 § 1; RRS § 2006.] 10.01.050 10.01.050 Convictions—Necessary before punishment. No person charged with any offense against the law shall be punished for such offense, unless he shall have been duly and legally convicted thereof in a court having competent jurisdiction of the case and of the person. [Code 1881 § 770; 1854 p 76 § 6; RRS § 2118.] 10.01.060 10.01.060 Conviction—Requisites—Waiver of jury trial. No person informed against or indicted for a crime shall be convicted thereof, unless by admitting the truth of the charge in his plea, by confession in open court, or by the verdict of a jury, accepted and recorded by the court: PROVIDED HOWEVER, That except in capital cases, where the person informed against or indicted for a crime is represented by counsel, such person may, with the assent of the court, waive trial by jury and submit to trial by the court. [1951 c 52 § 1; 1909 c 249 § 57; 1891 c 28 § 91; Code 1881 § 767; 1873 p 180 § 3; 1869 p 198 § 3; 1859 p 105 § 3; 1854 p 76 § 3; RRS § 2309.] Self-incriminating testimony: State Constitution Art. 1 § 9. court as a judgment against the corporation, and it shall be of the same force and effect and be enforced against such corporation in the same manner as a judgment in a civil action. [1987 c 202 § 148; 1911 c 29 § 3; RRS § 2011-3.] Intent—1987 c 202: See note following RCW 2.04.190. 10.01.100 Corporations—Penalties—Fines in lieu of other punishments. Every corporation guilty of a violation of any law of the state of Washington, where the prescribed penalty is, for any reason, incapable of execution or enforcement against such corporation, shall be punished by a fine of not more than ten thousand dollars, if such offense is a felony; or, by a fine of not more than one thousand dollars if such offense is a gross misdemeanor; or, by a fine of not more than five hundred dollars if such offense is a misdemeanor. [1925 ex.s. c 101 § 1; RRS § 2011-4.] 10.01.100 10.01.113 Indigent party—State payment of review costs. See RCW 4.88.330. 10.01.113 10.01.120 10.01.120 Pardons—Reprieves—Commutations. Whenever a prisoner has been sentenced to death, the governor shall have power to commute such sentence to imprisonment for life at hard labor; and in all cases in which the governor is authorized to grant pardons or commute sentence of death, he may, upon the petition of the person convicted, commute a sentence or grant a pardon, upon such conditions, and with such restrictions, and under such limitations as he may think proper; and he may issue his warrant to all proper officers to carry into effect such pardon or commutation, which warrant shall be obeyed and executed, instead of the sentence, if any, which was originally given. The governor may also, on good cause shown, grant respites or reprieves from time to time as he may think proper. [Code 1881 § 1136; 1854 p 128 § 174; RRS § 2223.] Governor’s powers: State Constitution Art. 3 §§ 9, 11. 10.01.070 10.01.070 Corporations—Amenable to criminal process—How. Whenever an indictment or information shall be filed in any superior court against a corporation charging it with the commission of a crime, a summons shall be issued by the clerk of such court, signed by one of the judges thereof, commanding the sheriff forthwith to notify the accused thereof, and commanding it to appear before such court at such time as shall be specified in said summons. Such summons and a copy of the indictment or information shall be at once delivered by such clerk to said sheriff and by the sheriff forthwith served and returned in the manner provided for service of summons upon such corporation in a civil action. Whenever a complaint against a corporation, charging it with the commission of a crime, shall be made before any district or municipal judge, a like summons, signed by such judge, shall be issued, which, together with a copy of said complaint, shall be delivered to the sheriff at once and by the sheriff forthwith served as herein provided. [1987 c 202 § 147; 1911 c 29 § 1; RRS § 2011-1.] Intent—1987 c 202: See note following RCW 2.04.190. 10.01.090 10.01.090 Corporations—Judgment against. If the corporation shall be found guilty and a fine imposed, it shall be entered and docketed by the clerk, or district or municipal [Title 10 RCW—page 2] Record of pardons, etc., governor to keep: RCW 43.06.020. 10.01.130 Witnesses’ fees. No fees shall be allowed to witnesses in criminal causes unless they shall have reported their attendance at the close of each day’s session to the clerk in attendance thereon. [1895 c 10 § 1; RRS § 498, part. FORMER PART OF SECTION: 1895 c 10 § 2; RRS § 498, part, now codified as RCW 10.01.140.] 10.01.130 Rules of court: Cf. CrR 6.12. Witness fees: Chapters 2.40, 12.16 RCW. 10.01.140 10.01.140 Mileage allowance—Jurors—Witnesses. No allowance of mileage shall be made to a juror or witness who has not verified his claim of mileage under oath before the clerk of the court on which he is in attendance. [1895 c 10 § 2; RRS § 498, part. Formerly RCW 10.01.130, part.] 10.01.150 10.01.150 Charges arising from official acts of state officers or employees—Defense by attorney general. Whenever a state officer or employee is charged with a criminal offense arising out of the performance of an official act which was fully in conformity with established written rules, policies, and guidelines of the state or state agency, the employing agency may request the attorney general to defend (2006 Ed.) General Provisions the officer or employee. If the agency finds, and the attorney general concurs, that the officer’s or employee’s conduct was fully in accordance with established written rules, policies, and guidelines of the state or a state agency and the act performed was within the scope of employment, then the request shall be granted and the costs of defense shall be paid by the requesting agency: PROVIDED, HOWEVER, If the agency head is the person charged, then approval must be obtained from both the attorney general and the state auditor. If the court finds that the officer or employee was performing an official act, or was within the scope of employment, and that his actions were in conformity with the established rules, regulations, policies, and guidelines of the state and the state agency, the cost of any monetary fine assessed shall be paid from the liability account. [1999 c 163 § 6; 1975 1st ex.s. c 144 § 1.] Effective date—1999 c 163: See note following RCW 4.92.130. 10.01.180 and the nature of the burden that payment of costs will impose. (4) A defendant who has been sentenced to pay costs and who is not in contumacious default in the payment thereof may at any time petition the sentencing court for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant’s immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under RCW 10.01.170. [2005 c 263 § 2; 1995 c 221 § 1; 1994 c 192 § 1; 1991 c 247 § 4; 1987 c 363 § 1; 1985 c 389 § 1; 1975-’76 2nd ex.s. c 96 § 1.] Commitment for failure to pay fine and costs: RCW 10.70.010, 10.82.030. Defendant liable for costs: RCW 10.64.015. Fine and costs—Collection and disposition: Chapter 10.82 RCW. 10.01.170 10.01.160 10.01.160 Costs—What constitutes—Payment by defendant—Procedure—Remission. (1) The court may require a defendant to pay costs. Costs may be imposed only upon a convicted defendant, except for costs imposed upon a defendant’s entry into a deferred prosecution program or costs imposed upon a defendant for preparing and serving a warrant for failure to appear. (2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant or in administering the deferred prosecution program under chapter 10.05 RCW. They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law. Expenses incurred for serving of warrants for failure to appear and jury fees under RCW 10.46.190 may be included in costs the court may require a defendant to pay. Costs for administering a deferred prosecution may not exceed one hundred fifty dollars. Costs for preparing and serving a warrant for failure to appear may not exceed one hundred dollars. Costs of incarceration imposed on a defendant convicted of a misdemeanor or a gross misdemeanor may not exceed the actual cost of incarceration. In no case may the court require the offender to pay more than one hundred dollars per day for the cost of incarceration. Payment of other court-ordered financial obligations, including all legal financial obligations and costs of supervision take precedence over the payment of the cost of incarceration ordered by the court. All funds received from defendants for the cost of incarceration in the county or city jail must be remitted for criminal justice purposes to the county or city that is responsible for the defendant’s jail costs. Costs imposed constitute a judgment against a defendant and survive a dismissal of the underlying action against the defendant. However, if the defendant is acquitted on the underlying action, the costs for preparing and serving a warrant for failure to appear do not survive the acquittal, and the judgment that such costs would otherwise constitute shall be vacated. (3) The court shall not sentence a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant (2006 Ed.) 10.01.170 Fine or costs—Payment within specified time or installments. When a defendant is sentenced to pay a fine or costs, the court may grant permission for payment to be made within a specified period of time or in specified installments. If no such permission is included in the sentence the fine or costs shall be payable forthwith. [1975-’76 2nd ex.s. c 96 § 2.] Payment of fine and costs in installments: RCW 9.92.070. 10.01.180 10.01.180 Fine or costs—Default in payment—Contempt of court—Enforcement, collection procedures. (1) A defendant sentenced to pay a fine or costs who defaults in the payment thereof or of any installment is in contempt of court as provided in chapter 7.21 RCW. The court may issue a warrant of arrest for his appearance. (2) When a fine or assessment of costs is imposed on a corporation or unincorporated association, it is the duty of the person authorized to make disbursement from the assets of the corporation or association to pay the fine or costs from those assets, and his failure to do so may be held to be contempt. (3) If a term of imprisonment for contempt for nonpayment of a fine or costs is ordered, the term of imprisonment shall be set forth in the commitment order, and shall not exceed one day for each twenty-five dollars of the fine or costs, thirty days if the fine or assessment of costs was imposed upon conviction of a violation or misdemeanor, or one year in any other case, whichever is the shorter period. A person committed for nonpayment of a fine or costs shall be given credit toward payment for each day of imprisonment at the rate specified in the commitment order. (4) If it appears to the satisfaction of the court that the default in the payment of a fine or costs is not contempt, the court may enter an order allowing the defendant additional time for payment, reducing the amount thereof or of each installment or revoking the fine or costs or the unpaid portion thereof in whole or in part. (5) A default in the payment of a fine or costs or any installment thereof may be collected by any means authorized by law for the enforcement of a judgment. The levy of execution for the collection of a fine or costs shall not discharge a defendant committed to imprisonment for contempt [Title 10 RCW—page 3] 10.01.190 Title 10 RCW: Criminal Procedure until the amount of the fine or costs has actually been collected. [1989 c 373 § 13; 1975-’76 2nd ex.s. c 96 § 3.] Severability—1989 c 373: See RCW 7.21.900. Fine and costs—Collection procedure, commitment for failure to pay, execution against defendant’s property: Chapter 10.82 RCW. 10.01.190 10.01.190 Prosecutorial powers of attorney general. In any criminal proceeding instituted or conducted by the attorney general, the attorney general and assistants are deemed to be prosecuting attorneys and have all prosecutorial powers vested in prosecuting attorneys of the state of Washington by statute or court rule. [1981 c 335 § 4.] Purpose—1981 c 335: See RCW 43.10.230. Chapter 10.04 RCW DISTRICT COURT PROCEDURE—GENERALLY Chapter 10.04 Sections 10.04.020 10.04.040 10.04.050 10.04.070 10.04.100 10.04.101 10.04.110 10.04.120 10.04.800 Arrest—Offense committed in view of district judge. Cash bail in lieu of recognizance. Jury—If demanded. Plea of guilty. Verdict of guilty—Proceedings upon. Assessment of punishment by courts organized under 1961 justice of the peace act. Judgment—Entry—Execution—Remittance of district court fines, etc. Stay of execution. Proposed forms for criminal actions. Rules of court: See Criminal Rules for Courts of Limited Jurisdiction (CrRLJ). 10.01.200 10.01.200 Registration of sex offenders and kidnapping offenders—Notice to defendants. The court shall provide written notification to any defendant charged with a sex offense or kidnapping offense of the registration requirements of RCW 9A.44.130. Such notice shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant. [1997 c 113 § 5; 1990 c 3 § 404.] Findings—1997 c 113: See note following RCW 4.24.550. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Sex offense and kidnapping offense defined: RCW 9A.44.130. 10.01.210 10.01.210 Offender notification and warning. Any and all law enforcement agencies and personnel, criminal justice attorneys, sentencing judges, and state and local correctional facilities and personnel may, but are not required to, give any and all offenders either written or oral notice, or both, of the sanctions imposed and criminal justice changes regarding armed offenders, including but not limited to the subjects of: (1) Felony crimes involving any deadly weapon special verdict under RCW 9.94A.602; (2) Any and all deadly weapon enhancements under RCW 9.94A.533 (3) or (4), or both, as well as any federal firearm, ammunition, or other deadly weapon enhancements; (3) Any and all felony crimes requiring the possession, display, or use of any deadly weapon as well as the many increased penalties for these crimes including the creation of theft of a firearm and possessing a stolen firearm; (4) New prosecuting standards established for filing charges for all crimes involving any deadly weapons; (5) Removal of good time for any and all deadly weapon enhancements; and (6) Providing the death penalty for those who commit first degree murder: (a) To join, maintain, or advance membership in an identifiable group; (b) as part of a drive-by shooting; or (c) to avoid prosecution as a persistent offender as defined in RCW 9.94A.030. [2002 c 290 § 23; 1995 c 129 § 18 (Initiative Measure No. 159).] Effective date—2002 c 290 §§ 7-11 and 14-23: See note following RCW 9.94A.515. Intent—2002 c 290: See note following RCW 9.94A.517. Severability—2002 c 290: See RCW 9.94A.924. Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. [Title 10 RCW—page 4] 10.04.020 10.04.020 Arrest—Offense committed in view of district judge. When any offense is committed in view of any district judge, the judge may, by verbal direction to any deputy, or if no deputy is present, to any citizen, cause such deputy or citizen to arrest such offender, and keep such offender in custody for the space of one hour, unless such offender shall sooner be taken from such custody by virtue of a warrant issued on complaint on oath. But such person so arrested, shall not be confined in jail, nor put upon any trial, until arrested by virtue of such warrant. [1987 c 202 § 149; Code 1881 § 1888; Code 1881 § 1889, part; 1873 p 382 § 186; 1854 p 260 § 173; RRS § 1926, part.] Intent—1987 c 202: See note following RCW 2.04.190. 10.04.040 10.04.040 Cash bail in lieu of recognizance. District courts or committing magistrates may accept money as bail from persons charged with bailable offenses, and for the appearance of witnesses in all cases provided by law for the recognizance of witnesses. The amount of such bail or recognizance in each case shall be determined by the court in its discretion, and may from time to time be increased or decreased as circumstances may justify. The money to be received and accounted for in the same manner as provided by law for the superior courts. [1987 c 202 § 150; 1919 c 76 § 1; RRS § 1957 1/2.] Intent—1987 c 202: See note following RCW 2.04.190. Excessive bail or fines, cruel punishment prohibited: State Constitution Art. 1 § 14. 10.04.050 10.04.050 Jury—If demanded. In all trials for offenses within the jurisdiction of a district judge, the defendant or the state may demand a jury, which shall consist of six, or a less number, agreed upon by the state and accused, to be impaneled and sworn as in civil cases; or the trial may be by the judge. When the complaint is for a crime or misdemeanor in the exclusive jurisdiction of the superior court, the justice hears the case as a committing magistrate, and no jury shall be allowed. [1987 c 202 § 151; 1891 c 11 § 1; Code 1881 § 1890; 1875 p 51 § 2; 1873 p 382 § 188; 1854 p 260 § 174, part; RRS § 1927.] Intent—1987 c 202: See note following RCW 2.04.190. Charging juries: State Constitution Art. 4 § 16. Convicted persons liable for costs and jury fees: RCW 10.46.190. Right to trial by jury: State Constitution Art. 1 § 21. (2006 Ed.) Deferred Prosecution—Courts of Limited Jurisdiction 10.04.070 10.04.070 Plea of guilty. The defendant may plead guilty to any offense charged. [Code 1881 § 1892; 1873 p 383 § 190; 1854 p 260 § 174, part; RRS § 1929.] 10.05.010 Chapter 10.05 RCW DEFERRED PROSECUTION—COURTS OF LIMITED JURISDICTION Chapter 10.05 Sections 10.04.100 10.04.100 Verdict of guilty—Proceedings upon. The judge, if the prisoner is found guilty, shall assess the prisoner’s punishment; or if, in the judge’s opinion, the punishment the judge is authorized to assess is not adequate to the offense, he or she may so find, and in such case the judge shall order such defendant to enter recognizance to appear in the superior court of the county, and shall also recognize the witnesses, and proceed as in proceedings by a committing magistrate. [1987 c 202 § 152; 1891 c 11 § 2; Code 1881 § 1891; 1873 p 382 § 189; 1854 p 260 § 174; RRS § 1928.] Intent—1987 c 202: See note following RCW 2.04.190. 10.04.101 10.04.101 Assessment of punishment by courts organized under 1961 justice of the peace act. See RCW 3.66.065. 10.05.010 10.05.015 10.05.020 10.05.030 10.05.040 10.05.050 10.05.055 10.05.060 10.05.070 10.05.080 10.05.090 10.05.100 10.05.110 10.05.120 10.05.130 10.05.140 10.05.150 10.05.160 10.05.170 Eligibility—Time for petition. Statement of availability. Requirements of petition—Rights of petitioner—Court findings. Arraignment continued—Treatment referral. Investigation and examination. Report to court—Recommended treatment plan—Commitment to provide treatment. Child welfare services. Procedure upon approval of plan. Arraignment when treatment rejected. Evidence, uses and admissibility. Procedure upon breach of treatment plan. Conviction of similar offense. Trial delay not grounds for dismissal. Dismissal of charges. Services provided for indigent defendants. Conditions of granting. Alcoholism program requirements. Appeal of deferred prosecution order. Supervision as condition—Levy of assessment. 10.04.110 10.04.110 Judgment—Entry—Execution—Remittance of district court fines, etc. In all cases of conviction, unless otherwise provided in this chapter, the judge shall enter judgment for the fine and costs against the defendant, and may commit him to jail until the amount of such fine and costs owing are paid, or the payment thereof be secured as provided by RCW 10.04.120. The amount of such fine and costs owing shall be computed as provided for superior court cases in RCW 10.82.030 and 10.82.040. Further proceedings therein shall be had as in like cases in the superior court: PROVIDED, That all fees, fines, forfeitures and penalties collected or assessed by a district court because of the violation of a state law shall be remitted as provided in chapter 3.62 RCW as now exists or is later amended. [1987 c 202 § 153; 1969 ex.s. c 199 § 10; 1967 c 200 § 6; 1891 c 11 § 6; Code 1881 § 1896; 1873 p 383 § 194; 1854 p 261 § 176; RRS § 1933.] Intent—1987 c 202: See note following RCW 2.04.190. Convicted persons liable for jury fees: RCW 10.46.190. 10.04.120 10.04.120 Stay of execution. Every defendant may stay the execution for the fine and costs for thirty days, by procuring sufficient sureties, to be approved by the district judge, to enter into recognizance before the district judge for the payment of the fine and costs; the entry of such recognizance shall be made on the docket of the district judge, and signed by the sureties, and shall have the same effect as a judgment, and if the same be not paid in thirty days, the district judge shall proceed as in like cases in the superior court. [1987 c 202 § 154; Code 1881 § 1897; 1873 p 383 § 195; 1854 p 261 § 176; RRS § 1934.] Intent—1987 c 202: See note following RCW 2.04.190. 10.04.800 10.04.800 Proposed forms for criminal actions. The district and municipal court judges’ association may propose to the supreme court suggested forms for criminal actions for inclusion in the justice court criminal rules. [1994 c 32 § 6; 1987 c 202 § 155.] Rules of court: CrRLJ 2.1, 4.2. Intent—1987 c 202: See note following RCW 2.04.190. (2006 Ed.) 10.05.010 10.05.010 Eligibility—Time for petition. (1) In a court of limited jurisdiction a person charged with a misdemeanor or gross misdemeanor may petition the court to be considered for a deferred prosecution program. The petition shall be filed with the court at least seven days before the date set for trial but, upon a written motion and affidavit establishing good cause for the delay and failure to comply with this section, the court may waive this requirement subject to the defendant’s reimbursement to the court of the witness fees and expenses due for subpoenaed witnesses who have appeared on the date set for trial. (2) A person charged with a traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW shall not be eligible for a deferred prosecution program unless the court makes specific findings pursuant to RCW 10.05.020. Such person shall not be eligible for a deferred prosecution program more than once. Separate offenses committed more than seven days apart may not be consolidated in a single program. (3) A person charged with a misdemeanor or a gross misdemeanor under chapter 9A.42 RCW shall not be eligible for a deferred prosecution program unless the court makes specific findings pursuant to RCW 10.05.020. Such person shall not be eligible for a deferred prosecution program more than once. [2002 c 219 § 6; 1998 c 208 § 1; 1985 c 352 § 4; 1982 1st ex.s. c 47 § 26; 1975 1st ex.s. c 244 § 1.] Intent—Finding—2002 c 219: See note following RCW 9A.42.037. Effective date—1998 c 208: "This act takes effect January 1, 1999." [1998 c 208 § 7.] Legislative finding—1985 c 352: "The legislature finds that the deferred prosecution program is an alternative to punishment for persons who will benefit from a treatment program if the treatment program is provided under circumstances that do not unreasonably endanger public safety or the traditional goals of the criminal justice system. This alternative to punishment is dependent for success upon appropriate treatment and the willingness and ability of the person receiving treatment to cooperate fully with the treatment program. The legislature finds that some persons have sought deferred prosecution but have been unable or unwilling to cooperate with treatment requirements and escaped punishment because of the difficulties in resuming prosecution after significant delay due to the absence of witnesses at a later date and the congestion in courts at a later date. The legislature further finds that the deferred prosecution statutes require clarification. The pur[Title 10 RCW—page 5] 10.05.015 Title 10 RCW: Criminal Procedure pose of sections 4 through 19 of this act is to provide specific standards and procedures for judges and prosecutors to use in carrying out the original intent of the deferred prosecution statutes." [1985 c 352 § 3.] Severability—1985 c 352: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 352 § 22.] Severability—1982 1st ex.s. c 47: See note following RCW 9.41.190. 10.05.015 10.05.015 Statement of availability. At the time of arraignment a person charged with a violation of RCW 46.61.502 or 46.61.504 may be given a statement by the court that explains the availability, operation, and effects of the deferred prosecution program. [1985 c 352 § 5.] Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. 10.05.020 10.05.020 Requirements of petition—Rights of petitioner—Court findings. (1) Except as provided in subsection (2) of this section, the petitioner shall allege under oath in the petition that the wrongful conduct charged is the result of or caused by alcoholism, drug addiction, or mental problems for which the person is in need of treatment and unless treated the probability of future recurrence is great, along with a statement that the person agrees to pay the cost of a diagnosis and treatment of the alleged problem or problems if financially able to do so. The petition shall also contain a case history and written assessment prepared by an approved alcoholism treatment program as designated in chapter 70.96A RCW if the petition alleges alcoholism, an approved drug program as designated in chapter 71.24 RCW if the petition alleges drug addiction, or by an approved mental health center if the petition alleges a mental problem. (2) In the case of a petitioner charged with a misdemeanor or gross misdemeanor under chapter 9A.42 RCW, the petitioner shall allege under oath in the petition that the petitioner is the natural or adoptive parent of the alleged victim; that the wrongful conduct charged is the result of parenting problems for which the petitioner is in need of services; that the petitioner is in need of child welfare services under chapter 74.13 RCW to improve his or her parenting skills in order to better provide his or her child or children with the basic necessities of life; that the petitioner wants to correct his or her conduct to reduce the likelihood of harm to his or her minor children; that in the absence of child welfare services the petitioner may be unable to reduce the likelihood of harm to his or her minor children; and that the petitioner has cooperated with the department of social and health services to develop a plan to receive appropriate child welfare services; along with a statement that the person agrees to pay the cost of the services if he or she is financially able to do so. The petition shall also contain a case history and a written service plan from the department of social and health services. (3) Before entry of an order deferring prosecution, a petitioner shall be advised of his or her rights as an accused and execute, as a condition of receiving treatment, a statement that contains: (a) An acknowledgment of his or her rights; (b) an acknowledgment and waiver of the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial; (c) a stipulation to the admissibility and suffi[Title 10 RCW—page 6] ciency of the facts contained in the written police report; and (d) an acknowledgment that the statement will be entered and used to support a finding of guilty if the court finds cause to revoke the order granting deferred prosecution. The petitioner shall also be advised that he or she may, if he or she proceeds to trial and is found guilty, be allowed to seek suspension of some or all of the fines and incarceration that may be ordered upon the condition that he or she seek treatment and, further, that he or she may seek treatment from public and private agencies at any time without regard to whether or not he or she is found guilty of the offense charged. He or she shall also be advised that the court will not accept a petition for deferred prosecution from a person who sincerely believes that he or she is innocent of the charges or sincerely believes that he or she does not, in fact, suffer from alcoholism, drug addiction, or mental problems, or in the case of a petitioner charged under chapter 9A.42 RCW, sincerely believes that he or she does not need child welfare services. (4) Before entering an order deferring prosecution, the court shall make specific findings that: (a) The petitioner has stipulated to the admissibility and sufficiency of the facts as contained in the written police report; (b) the petitioner has acknowledged the admissibility of the stipulated facts in any criminal hearing on the underlying offense or offenses held subsequent to revocation of the order granting deferred prosecution; (c) the petitioner has acknowledged and waived the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial; and (d) the petitioner’s statements were made knowingly and voluntarily. Such findings shall be included in the order granting deferred prosecution. [2002 c 219 § 7; 1996 c 24 § 1; 1985 c 352 § 6; 1975 1st ex.s. c 244 § 2.] Intent—Finding—2002 c 219: See note following RCW 9A.42.037. Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. Criminal history and driving record: RCW 46.61.513. 10.05.030 10.05.030 Arraignment continued—Treatment referral. The arraigning judge upon consideration of the petition and with the concurrence of the prosecuting attorney may continue the arraignment and refer such person for a diagnostic investigation and evaluation to an approved alcoholism treatment program as designated in chapter 70.96A RCW, if the petition alleges an alcohol problem, an approved drug treatment center as designated in chapter 71.24 RCW, if the petition alleges a drug problem, to an approved mental health center, if the petition alleges a mental problem, or the department of social and health services if the petition is brought under RCW 10.05.020(2). [2002 c 219 § 8; 1999 c 143 § 42; 1975 1st ex.s. c 244 § 3.] Intent—Finding—2002 c 219: See note following RCW 9A.42.037. 10.05.040 10.05.040 Investigation and examination. The *facility to which such person is referred, or the department of social and health services if the petition is brought under RCW 10.05.020(2), shall conduct an investigation and examination to determine: (1) Whether the person suffers from the problem described; (2006 Ed.) Deferred Prosecution—Courts of Limited Jurisdiction (2) Whether the problem is such that if not treated, or if no child welfare services are provided, there is a probability that similar misconduct will occur in the future; (3) Whether extensive and long term treatment is required; (4) Whether effective treatment or child welfare services for the person’s problem are available; and (5) Whether the person is amenable to treatment or willing to cooperate with child welfare services. [2002 c 219 § 9; 1985 c 352 § 7; 1975 1st ex.s. c 244 § 4.] *Reviser’s note: Chapter 70.96A RCW was amended by 1990 c 151, changing "treatment facility" to "treatment program." Intent—Finding—2002 c 219: See note following RCW 9A.42.037. Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. 10.05.050 10.05.050 Report to court—Recommended treatment plan—Commitment to provide treatment. (1) The *facility, or the department of social and health services if the petition is brought under RCW 10.05.020(2), shall make a written report to the court stating its findings and recommendations after the examination required by RCW 10.05.040. If its findings and recommendations support treatment or the implementation of a child welfare service plan, it shall also recommend a treatment or service plan setting out: (a) The type; (b) Nature; (c) Length; (d) A treatment or service time schedule; and (e) Approximate cost of the treatment or child welfare services. (2) In the case of a child welfare service plan, the plan shall be designed in a manner so that a parent who successfully completes the plan will not be likely to withhold the basic necessities of life from his or her child. (3) The report with the treatment or service plan shall be filed with the court and a copy given to the petitioner and petitioner’s counsel. A copy of the treatment or service plan shall be given to the prosecutor by petitioner’s counsel at the request of the prosecutor. The evaluation facility, or the department of social and health services if the petition is brought under RCW 10.05.020(2), making the written report shall append to the report a commitment by the *treatment facility or the department of social and health services that it will provide the treatment or child welfare services in accordance with this chapter. The facility or the service provider shall agree to provide the court with a statement every three months for the first year and every six months for the second year regarding (a) the petitioner’s cooperation with the treatment or child welfare service plan proposed and (b) the petitioner’s progress or failure in treatment or child welfare services. These statements shall be made as a declaration by the person who is personally responsible for providing the treatment or services. [2002 c 219 § 10; 1985 c 352 § 8; 1975 1st ex.s. c 244 § 5.] *Reviser’s note: Chapter 70.96A RCW was amended by 1990 c 151, changing "treatment facility" to "treatment program." Intent—Finding—2002 c 219: See note following RCW 9A.42.037. Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. (2006 Ed.) 10.05.080 10.05.055 10.05.055 Child welfare services. Child welfare services provided under chapter 74.13 RCW pursuant to a deferred prosecution ordered under RCW 10.05.060 may not be construed to prohibit the department from providing services or undertaking proceedings pursuant to chapter 13.34 or 26.44 RCW. [2002 c 219 § 12.] Intent—Finding—2002 c 219: See note following RCW 9A.42.037. 10.05.060 10.05.060 Procedure upon approval of plan. If the report recommends treatment, the court shall examine the treatment plan. If it approves the plan and the petitioner agrees to comply with its terms and conditions and agrees to pay the cost thereof, if able to do so, or arrange for the treatment, an entry shall be made upon the person’s court docket showing that the person has been accepted for deferred prosecution. A copy of the treatment plan shall be attached to the docket, which shall then be removed from the regular court dockets and filed in a special court deferred prosecution file. If the charge be one that an abstract of the docket showing the charge, the date of the violation for which the charge was made, and the date of petitioner’s acceptance is required to be sent to the department of licensing, an abstract shall be sent, and the department of licensing shall make an entry of the charge and of the petitioner’s acceptance for deferred prosecution on the department’s driving record of the petitioner. The entry is not a conviction for purposes of Title 46 RCW. Upon receipt of the abstract of the docket, the department shall issue the petitioner a probationary license in accordance with RCW 46.20.355, and the petitioner’s driver’s license shall be on probationary status for five years from the date of the violation that gave rise to the charge. The department shall maintain the record for ten years from date of entry of the order granting deferred prosecution. [1994 c 275 § 17; 1990 c 250 § 13; 1985 c 352 § 9; 1979 c 158 § 4; 1975 1st ex.s. c 244 § 6.] Short title—Effective date—1994 c 275: See notes following RCW 46.04.015. Effective dates—1990 c 250 §§ 1-13: See note following RCW 46.16.301. Severability—1990 c 250: See note following RCW 46.16.301. Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. 10.05.070 10.05.070 Arraignment when treatment rejected. When treatment is either not recommended or not approved by the judge, or the petitioner declines to accept the treatment plan, the petitioner shall be arraigned on the charge. [1985 c 352 § 10; 1975 1st ex.s. c 244 § 7.] Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. 10.05.080 10.05.080 Evidence, uses and admissibility. If the petition is not approved or is withdrawn before approval, evidence pertaining to or resulting from the petition and/or investigation is inadmissible in any trial on the charges, but shall be available for use after a conviction in determining a sentence. [1985 c 352 § 11; 1975 1st ex.s. c 244 § 8.] Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. [Title 10 RCW—page 7] 10.05.090 Title 10 RCW: Criminal Procedure 10.05.090 10.05.090 Procedure upon breach of treatment plan. If a petitioner, who has been accepted for a deferred prosecution, fails or neglects to carry out and fulfill any term or condition of the petitioner’s treatment plan or any term or condition imposed in connection with the installation of an interlock or other device under RCW 46.20.720, the facility, center, institution, or agency administering the treatment or the entity administering the use of the device, shall immediately report such breach to the court, the prosecutor, and the petitioner or petitioner’s attorney of record, together with its recommendation. The court upon receiving such a report shall hold a hearing to determine whether the petitioner should be removed from the deferred prosecution program. At the hearing, evidence shall be taken of the petitioner’s alleged failure to comply with the treatment plan or device installation and the petitioner shall have the right to present evidence on his or her own behalf. The court shall either order that the petitioner continue on the treatment plan or be removed from deferred prosecution. If removed from deferred prosecution, the court shall enter judgment pursuant to RCW 10.05.020 and, if the charge for which the deferred prosecution was granted was a misdemeanor or gross misdemeanor under Title 46 RCW, shall notify the department of licensing of the removal and entry of judgment. [1997 c 229 § 1; 1994 c 275 § 18; 1985 c 352 § 12; 1975 1st ex.s. c 244 § 9.] Effective date—1997 c 229: "This act takes effect January 1, 1998." [1997 c 229 § 15.] Short title—Effective date—1994 c 275: See notes following RCW 46.04.015. Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. (2) When a deferred prosecution is ordered pursuant to a petition brought under RCW 10.05.020(2) and the court has received proof that the petitioner has successfully completed the child welfare service plan, or the plan has been terminated because the alleged victim has reached his or her majority and there are no other minor children in the home, the court shall dismiss the charges pending against the petitioner: PROVIDED, That in any case where the petitioner’s parental rights have been terminated with regard to the alleged victim due to abuse or neglect that occurred during the pendency of the deferred prosecution, the termination shall be per se evidence that the petitioner did not successfully complete the child welfare service plan. [2003 c 220 § 1; 2002 c 219 § 14; 1998 c 208 § 3; 1994 c 275 § 19; 1985 c 352 § 15; 1983 c 165 § 45; 1975 1st ex.s. c 244 § 12.] Intent—Finding—2002 c 219: See note following RCW 9A.42.037. Effective date—1998 c 208: See note following RCW 10.05.010. Short title—Effective date—1994 c 275: See notes following RCW 46.04.015. Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. Legislative finding, intent—Effective dates—Severability—1983 c 165: See notes following RCW 46.20.308. 10.05.130 10.05.130 Services provided for indigent defendants. Funds shall be appropriated from the fines and forfeitures of the court to provide investigation, examination, report and treatment plan for any indigent person who is unable to pay the cost of any program of treatment. [1975 1st ex.s. c 244 § 13.] 10.05.140 10.05.100 10.05.100 Conviction of similar offense. If a petitioner is subsequently convicted of a similar offense that was committed while the petitioner was in a deferred prosecution program, upon notice the court shall remove the petitioner’s docket from the deferred prosecution file and the court shall enter judgment pursuant to RCW 10.05.020. [1998 c 208 § 2; 1985 c 352 § 13; 1975 1st ex.s. c 244 § 10.] Effective date—1998 c 208: See note following RCW 10.05.010. Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. 10.05.110 10.05.110 Trial delay not grounds for dismissal. Delay in bringing a case to trial caused by a petitioner requesting deferred prosecution as provided for in this chapter shall not be grounds for dismissal. [1985 c 352 § 14; 1975 1st ex.s. c 244 § 11.] Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. 10.05.120 10.05.120 Dismissal of charges. (1) Three years after receiving proof of successful completion of the two-year treatment program, and following proof to the court that the petitioner has complied with the conditions imposed by the court following successful completion of the two-year treatment program, but not before five years following entry of the order of deferred prosecution pursuant to a petition brought under RCW 10.05.020(1), the court shall dismiss the charges pending against the petitioner. [Title 10 RCW—page 8] 10.05.140 Conditions of granting. As a condition of granting a deferred prosecution petition, the court shall order that the petitioner shall not operate a motor vehicle upon the public highways without a valid operator’s license and proof of liability insurance. The amount of liability insurance shall be established by the court at not less than that established by RCW 46.29.490. As a condition of granting a deferred prosecution petition on any alcohol-dependency based case, the court shall also order the installation of an ignition interlock under RCW 46.20.720. The required periods of use of the interlock shall be not less than the periods provided for in RCW 46.20.720(2) (a), (b), and (c). As a condition of granting a deferred prosecution petition, the court may order the petitioner to make restitution and to pay costs as defined in RCW 10.01.160. To help ensure continued sobriety and reduce the likelihood of reoffense, the court may order reasonable conditions during the period of the deferred prosecution including, but not limited to, attendance at self-help recovery support groups for alcoholism or drugs, complete abstinence from alcohol and all nonprescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior. The court may terminate the deferred prosecution program upon violation of the deferred prosecution order. [2004 c 95 § 1; 2003 c 220 § 2; 1999 c 331 § 4; 1997 c 229 § 2; 1991 c 247 § 1; 1985 c 352 § 16.] Effective date—1999 c 331: See note following RCW 9.94A.525. Effective date—1997 c 229: See note following RCW 10.05.090. Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. (2006 Ed.) Criminal Appeals From District Courts 10.05.150 Alcoholism program requirements. A deferred prosecution program for alcoholism shall be for a two-year period and shall include, but not be limited to, the following requirements: (1) Total abstinence from alcohol and all other nonprescribed mind-altering drugs; (2) Participation in an intensive inpatient or intensive outpatient program in a state-approved alcoholism treatment program; (3) Participation in a minimum of two meetings per week of an alcoholism self-help recovery support group, as determined by the assessing agency, for the duration of the treatment program; (4) Participation in an alcoholism self-help recovery support group, as determined by the assessing agency, from the date of court approval of the plan to entry into intensive treatment; (5) Not less than weekly approved outpatient counseling, group or individual, for a minimum of six months following the intensive phase of treatment; (6) Not less than monthly outpatient contact, group or individual, for the remainder of the two-year deferred prosecution period; (7) The decision to include the use of prescribed drugs, including disulfiram, as a condition of treatment shall be reserved to the treating facility and the petitioner’s physician; (8) All treatment within the purview of this section shall occur within or be approved by a state-approved alcoholism treatment program as described in chapter 70.96A RCW; (9) Signature of the petitioner agreeing to the terms and conditions of the treatment program. [1999 c 143 § 43; 1985 c 352 § 17.] 10.05.150 Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. 10.05.160 10.05.160 Appeal of deferred prosecution order. The prosecutor may appeal an order granting deferred prosecution on any or all of the following grounds: (1) Prior deferred prosecution has been granted to the defendant; (2) Failure of the court to obtain proof of insurance or a treatment plan conforming to the requirements of this chapter; (3) Failure of the court to comply with the requirements of RCW 10.05.100; (4) Failure of the evaluation facility to provide the information required in RCW 10.05.040 and 10.05.050, if the defendant has been referred to the facility for treatment. If an appeal on such basis is successful, the trial court may consider the use of another treatment program. [1999 c 143 § 44; 1998 c 208 § 4; 1985 c 352 § 18.] probation department to supervise the petitioner. In a jurisdiction without a probation department, the court may appoint an appropriate person or agency to supervise the petitioner. A supervisor appointed under this section shall be required to do at least the following: (1) If the charge for which deferral is granted relates to operation of a motor vehicle, at least once every six months request from the department of licensing an abstract of the petitioner’s driving record; and (2) At least once every month make contact with the petitioner or with any agency to which the petitioner has been directed for treatment as a part of the deferral. [1991 c 247 § 2; 1985 c 352 § 19.] Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. Chapter 10.10 RCW CRIMINAL APPEALS FROM DISTRICT COURTS Chapter 10.10 Sections 10.10.010 10.10.060 10.05.170 10.05.170 Supervision as condition—Levy of assessment. As a condition of granting deferred prosecution, the court may order supervision of the petitioner during the period of deferral and may levy a monthly assessment upon the petitioner as provided in RCW 10.64.120. In a jurisdiction with a probation department, the court may appoint the (2006 Ed.) Court rules. Appeal—Costs—Default. Rules of court: Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ). 10.10.010 Court rules. Every person convicted before a district judge of any offense may appeal from the judgment as provided by court rules. [1987 c 202 § 156; 1891 c 29 § 6, part; RRS § 1919, part. Prior: Code 1881 § 1898, part; 1877 p 203 § 7, part; 1873 p 384 § 196, part; 1854 p 261 § 177. Formerly RCW 10.10.010, 10.10.020, and 10.10.030.] 10.10.010 Intent—1987 c 202: See note following RCW 2.04.190. 10.10.060 Appeal—Costs—Default. The appellant in a criminal action shall not be required to advance any fees in claiming his appeal nor in prosecuting the same; but if convicted in the appellate court, or if sentenced for failing to prosecute his appeal, he may be required as a part of the sentence to pay the costs of the prosecution. If the appellant shall fail to enter and prosecute his appeal he shall be defaulted of his recognizance, if any was taken, and the superior court may award sentence against him for the offense whereof he was convicted in like manner as if he had been convicted thereof in that court; and if he be not then in custody process may be issued to bring him into court to receive sentence. [1891 c 29 § 7; RRS § 1920. Prior: Code 1881 § 1900; 1873 p 384 § 198, part; 1854 p 261 § 179. Formerly RCW 10.10.060 and 10.10.080.] 10.10.060 Chapter 10.14 Effective date—1998 c 208: See note following RCW 10.05.010. Legislative finding—Severability—1985 c 352: See notes following RCW 10.05.010. Chapter 10.14 Chapter 10.14 RCW HARASSMENT Sections 10.14.010 10.14.020 10.14.030 10.14.040 10.14.050 10.14.055 10.14.060 10.14.070 10.14.080 Legislative finding, intent. Definitions. Course of conduct—Determination of purpose. Protection order—Petition. Administrator for courts—Forms, information. Fees excused, when. Proceeding in forma pauperis. Hearing—Service. Antiharassment protection orders—Ex parte temporary— Hearing—Longer term, renewal. [Title 10 RCW—page 9] 10.14.010 10.14.085 10.14.090 10.14.100 10.14.105 10.14.110 10.14.115 10.14.120 10.14.125 10.14.130 10.14.140 10.14.150 10.14.160 10.14.170 10.14.180 10.14.190 10.14.200 10.14.900 Title 10 RCW: Criminal Procedure Hearing reset after ex parte order—Service by publication— Circumstances. Representation or appearance. Service of order. Order following service by publication. Notice to law enforcement agencies—Enforceability. Enforcement of order—Knowledge prerequisite to penalties— Reasonable efforts to serve copy of order. Disobedience of order—Penalties. Service by publication—Costs. Exclusion of certain actions. Other remedies. Jurisdiction. Where action may be brought. Criminal penalty. Modification of order. Constitutional rights. Availability of orders in family law proceedings. Severability—1987 c 280. 10.14.010 10.14.010 Legislative finding, intent. The legislature finds that serious, personal harassment through repeated invasions of a person’s privacy by acts and words showing a pattern of harassment designed to coerce, intimidate, or humiliate the victim is increasing. The legislature further finds that the prevention of such harassment is an important governmental objective. This chapter is intended to provide victims with a speedy and inexpensive method of obtaining civil antiharassment protection orders preventing all further unwanted contact between the victim and the perpetrator. [1987 c 280 § 1.] 10.14.020 10.14.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Unlawful harassment" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or, when the course of conduct would cause a reasonable parent to fear for the well-being of their child. (2) "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. "Course of conduct" includes, in addition to any other form of communication, contact, or conduct, the sending of an electronic communication. Constitutionally protected activity is not included within the meaning of "course of conduct." [2001 c 260 § 2; 1999 c 27 § 4; 1995 c 127 § 1; 1987 c 280 § 2.] Findings—Intent—2001 c 260: "The legislature finds that unlawful harassment directed at a child by a person under the age of eighteen is not acceptable and can have serious consequences. The legislature further finds that some interactions between minors, such as "schoolyard scuffles," though not to be condoned, may not rise to the level of unlawful harassment. It is the intent of the legislature that a protection order sought by the parent or guardian of a child as provided for in this chapter be available only when the alleged behavior of the person under the age of eighteen to be restrained rises to the level set forth in chapter 10.14 RCW." [2001 c 260 § 1.] Intent—1999 c 27: See note following RCW 9A.46.020. 10.14.030 10.14.030 Course of conduct—Determination of purpose. In determining whether the course of conduct serves any legitimate or lawful purpose, the court should consider whether: [Title 10 RCW—page 10] (1) Any current contact between the parties was initiated by the respondent only or was initiated by both parties; (2) The respondent has been given clear notice that all further contact with the petitioner is unwanted; (3) The respondent’s course of conduct appears designed to alarm, annoy, or harass the petitioner; (4) The respondent is acting pursuant to any statutory authority, including but not limited to acts which are reasonably necessary to: (a) Protect property or liberty interests; (b) Enforce the law; or (c) Meet specific statutory duties or requirements; (5) The respondent’s course of conduct has the purpose or effect of unreasonably interfering with the petitioner’s privacy or the purpose or effect of creating an intimidating, hostile, or offensive living environment for the petitioner; (6) Contact by the respondent with the petitioner or the petitioner’s family has been limited in any manner by any previous court order. [1987 c 280 § 3.] 10.14.040 Protection order—Petition. There shall exist an action known as a petition for an order for protection in cases of unlawful harassment. (1) A petition for relief shall allege the existence of harassment and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought. (2) A petition for relief may be made regardless of whether or not there is a pending lawsuit, complaint, petition, or other action between the parties. (3) All court clerks’ offices shall make available simplified forms and instructional brochures. Any assistance or information provided by clerks under this section does not constitute the practice of law and clerks are not responsible for incorrect information contained in a petition. (4) Filing fees are set in RCW 36.18.020, but no filing fee may be charged for a petition filed in an existing action or under an existing cause number brought under this chapter in the jurisdiction where the relief is sought or as provided in RCW 10.14.055. Forms and instructional brochures shall be provided free of charge. (5) A person is not required to post a bond to obtain relief in any proceeding under this section. (6) The parent or guardian of a child under age eighteen may petition for an order of protection to restrain a person age eighteen years or over from contact with that child upon a showing that contact with the person to be enjoined is detrimental to the welfare of the child. (7) The parent or guardian of a child under the age of eighteen may petition in superior court for an order of protection to restrain a person under the age of eighteen years from contact with that child only in cases where the person to be restrained has been adjudicated of an offense against the child protected by the order, or is under investigation or has been investigated for such an offense. In issuing a protection order under this subsection, the court shall consider, among the other facts of the case, the severity of the alleged offense, any continuing physical danger or emotional distress to the alleged victim, and the expense, difficulty, and educational disruption that would be caused by a transfer of the alleged offender to another school. The court may order that the per10.14.040 (2006 Ed.) Harassment son restrained in the order not attend the public or approved private elementary, middle, or high school attended by the person under the age of eighteen years protected by the order. In the event that the court orders a transfer of the restrained person to another school, the parents or legal guardians of the person restrained in the order are responsible for transportation and other costs associated with the change of school by the person restrained in the order. The court shall send notice of the restriction on attending the same school as the person protected by the order to the public or approved private school the person restrained by the order will attend and to the school the person protected by the order attends. [2002 c 117 § 1; 2001 c 260 § 3. Prior: 1995 c 292 § 2; 1995 c 127 § 2; 1987 c 280 § 4.] Findings—Intent—2001 c 260: See note following RCW 10.14.020. 10.14.050 10.14.050 Administrator for courts—Forms, information. The administrator for the courts shall develop and prepare, in consultation with interested persons, model forms a n d i n s tr u c t io n a l b r o c h u r e s r e q u ir ed u n d e r R C W 10.14.040(3). [1987 c 280 § 5.] 10.14.055 10.14.055 Fees excused, when. No fees for filing or service of process may be charged by a public agency to petitioners seeking relief under this chapter from a person who has stalked them as that term is defined in RCW 9A.46.110, or from a person who has engaged in conduct that would constitute a sex offense as defined in RCW 9A.44.130, or from a person who is a family or household member as defined in RCW 26.50.010(2) who has engaged in conduct that would c o n s t i t u t e d o m e s ti c v i o l e n c e a s d e f i n e d i n R C W 26.50.010(1). [2002 c 117 § 2.] 10.14.060 10.14.060 Proceeding in forma pauperis. Persons seeking relief under this chapter may file an application for leave to proceed in forma pauperis on forms supplied by the court. If the court determines that a petitioner lacks the funds to pay the costs of filing, the petitioner shall be granted leave to proceed in forma pauperis and no filing fee or any other court related fees shall be charged by the court to the petitioner for relief sought under this chapter. If the petitioner is granted leave to proceed in forma pauperis, then no fees for service may be charged to the petitioner. [1987 c 280 § 6.] 10.14.070 10.14.070 Hearing—Service. Upon receipt of the petition alleging a prima facie case of harassment, other than a petition alleging a sex offense as defined in chapter 9A.44 RCW, the court shall order a hearing which shall be held not later than fourteen days from the date of the order. If the petition alleges a sex offense as defined in chapter 9A.44 RCW, the court shall order a hearing which shall be held not later than fourteen days from the date of the order. Except as provided in RCW 10.14.085, personal service shall be made upon the respondent not less than five court days before the hearing. If timely personal service cannot be made, the court shall set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication as provided by RCW 10.14.085. If the court permits service by publication, the court shall set the hearing date not later than twenty-four days from the date of the (2006 Ed.) 10.14.080 order. The court may issue an ex parte order for protection pending the hearing as provided in RCW 10.14.080 and 10.14.085. [2005 c 144 § 1; 1992 c 143 § 10; 1987 c 280 § 7.] 10.14.080 Antiharassment protection orders—Ex parte temporary—Hearing—Longer term, renewal. (1) Upon filing a petition for a civil antiharassment protection order under this chapter, the petitioner may obtain an ex parte temporary antiharassment protection order. An ex parte temporary antiharassment protection order may be granted with or without notice upon the filing of an affidavit which, to the satisfaction of the court, shows reasonable proof of unlawful harassment of the petitioner by the respondent and that great or irreparable harm will result to the petitioner if the temporary antiharassment protection order is not granted. (2) An ex parte temporary antiharassment protection order shall be effective for a fixed period not to exceed fourteen days or twenty-four days if the court has permitted service by publication under RCW 10.14.085. The ex parte order may be reissued. A full hearing, as provided in this chapter, shall be set for not later than fourteen days from the issuance of the temporary order or not later than twenty-four days if service by publication is permitted. Except as provided in RCW 10.14.070 and 10.14.085, the respondent shall be personally served with a copy of the ex parte order along with a copy of the petition and notice of the date set for the hearing. The ex parte order and notice of hearing shall include at a minimum the date and time of the hearing set by the court to determine if the temporary order should be made effective for one year or more, and notice that if the respondent should fail to appear or otherwise not respond, an order for protection will be issued against the respondent pursuant to the provisions of this chapter, for a minimum of one year from the date of the hearing. The notice shall also include a brief statement of the provisions of the ex parte order and notify the respondent that a copy of the ex parte order and notice of hearing has been filed with the clerk of the court. (3) At the hearing, if the court finds by a preponderance of the evidence that unlawful harassment exists, a civil antiharassment protection order shall issue prohibiting such unlawful harassment. (4) An order issued under this chapter shall be effective for not more than one year unless the court finds that the respondent is likely to resume unlawful harassment of the petitioner when the order expires. If so, the court may enter an order for a fixed time exceeding one year or may enter a permanent antiharassment protection order. The court shall not enter an order that is effective for more than one year if the order restrains the respondent from contacting the respondent’s minor children. This limitation is not applicable to civil antiharassment protection orders issued under chapter 26.09, 26.10, or 26.26 RCW. If the petitioner seeks relief for a period longer than one year on behalf of the respondent’s minor children, the court shall advise the petitioner that the petitioner may apply for renewal of the order as provided in this chapter or if appropriate may seek relief pursuant to chapter 26.09 or 26.10 RCW. (5) At any time within the three months before the expiration of the order, the petitioner may apply for a renewal of the order by filing a petition for renewal. The petition for renewal shall state the reasons why the petitioner seeks to 10.14.080 [Title 10 RCW—page 11] 10.14.085 Title 10 RCW: Criminal Procedure renew the protection order. Upon receipt of the petition for renewal, the court shall order a hearing which shall be not later than fourteen days from the date of the order. Except as provided in RCW 10.14.085, personal service shall be made upon the respondent not less than five days before the hearing. If timely service cannot be made the court shall set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication as provided by RCW 10.14.085. If the court permits service by publication, the court shall set the new hearing date not later than twenty-four days from the date of the order. If the order expires because timely service cannot be made the court shall grant an ex parte order of protection as provided in this section. The court shall grant the petition for renewal unless the respondent proves by a preponderance of the evidence that the respondent will not resume harassment of the petitioner when the order expires. The court may renew the protection order for another fixed time period or may enter a permanent order as provided in subsection (4) of this section. (6) The court, in granting an ex parte temporary antiharassment protection order or a civil antiharassment protection order, shall have broad discretion to grant such relief as the court deems proper, including an order: (a) Restraining the respondent from making any attempts to contact the petitioner; (b) Restraining the respondent from making any attempts to keep the petitioner under surveillance; (c) Requiring the respondent to stay a stated distance from the petitioner’s residence and workplace; and (d) Considering the provisions of RCW 9.41.800. (7) A petitioner may not obtain an ex parte temporary antiharassment protection order against a respondent if the petitioner has previously obtained two such ex parte orders against the same respondent but has failed to obtain the issuance of a civil antiharassment protection order unless good cause for such failure can be shown. (8) The court order shall specify the date an order issued pursuant to subsections (4) and (5) of this section expires if any. The court order shall also state whether the court issued the protection order following personal service or service by publication and whether the court has approved service by publication of an order issued under this section. [2001 c 311 § 1; 1995 c 246 § 36; 1994 sp.s. c 7 § 448; 1992 c 143 § 11; 1987 c 280 § 8.] Severability—1995 c 246: See note following RCW 26.50.010. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 10.14.085 10.14.085 Hearing reset after ex parte order—Service by publication—Circumstances. (1) If the respondent was not personally served with the petition, notice of hearing, and ex parte order before the hearing, the court shall reset the hearing for twenty-four days from the date of entry of the order and may order service by publication instead of personal service under the following circumstances: (a) The sheriff or municipal officer files an affidavit stating that the officer was unable to complete personal service upon the respondent. The affidavit must describe the number and types of attempts the officer made to complete service; [Title 10 RCW—page 12] (b) The petitioner files an affidavit stating that the petitioner believes that the respondent is hiding from the server to avoid service. The petitioner’s affidavit must state the reasons for the belief that the petitioner [respondent] is avoiding service; (c) The server has deposited a copy of the summons, in substantially the form prescribed in subsection (3) of this section, notice of hearing, and the ex parte order of protection in the post office, directed to the respondent at the respondent’s last known address, unless the server states that the server does not know the respondent’s address; and (d) The court finds reasonable grounds exist to believe that the respondent is concealing himself or herself to avoid service, and that further attempts to personally serve the respondent would be futile or unduly burdensome. (2) The court shall reissue the temporary order of protection not to exceed another twenty-four days from the date of reissuing the ex parte protection order and order to provide service by publication. (3) The publication shall be made in a newspaper of general circulation in the county where the petition was brought and in the county of the last known address of the respondent once a week for three consecutive weeks. The newspaper selected must be one of the three most widely circulated papers in the county. The publication of summons shall not be made until the court orders service by publication under this section. Service of the summons shall be considered complete when the publication has been made for three consecutive weeks. The summons must be signed by the petitioner. The summons shall contain the date of the first publication, and shall require the respondent upon whom service by publication is desired, to appear and answer the petition on the date set for the hearing. The summons shall also contain a brief statement of the reason for the petition and a summary of the provisions under the ex parte order. The summons shall be essentially in the following form: In the . . . . . . . . . court of the state of Washington for the county of . . . . . . . . . . . . . . . . . . . . . . . ., Petitioner vs. No. . . . . . . . . . . . . . . . . . . . . ., Respondent The state of Washington to . . . . . . . . . (respondent): You are hereby summoned to appear on the . . . . day of . . . . . ., 19 . . ., at . . . . a.m./p.m., and respond to the petition. If you fail to respond, an order of protection will be issued against you pursuant to the provisions of chapter 10.14 RCW, for a minimum of one year from the date you are required to appear. A temporary order of protection has been issued against you, restraining you from the following: (Insert a brief statement of the provisions of the ex parte order). A copy of the petition, notice of hearing, and ex parte order has been filed with the clerk of this court. .......................... Petitioner . . . . . . . . . . . . . . . . . . [1992 c 143 § 12.] 10.14.090 10.14.090 Representation or appearance. (1) Nothing in this chapter shall preclude either party from representation (2006 Ed.) Harassment by private counsel or from appearing on his or her own behalf. (2) The court may require the respondent to pay the filing fee and court costs, including service fees, and to reimburse the petitioner for costs incurred in bringing the action, including a reasonable attorney’s fee. If the petitioner has been granted leave to proceed in forma pauperis, the court may require the respondent to pay the filing fee and costs, including services fees, to the county or municipality incurring the expense. [1992 c 143 § 14; 1987 c 280 § 9.] 10.14.100 10.14.100 Service of order. (1) An order issued under this chapter shall be personally served upon the respondent, except as provided in subsections (5) and (7) of this section. (2) The sheriff of the county or the peace officers of the municipality in which the respondent resides shall serve the respondent personally unless the petitioner elects to have the respondent served by a private party. (3) If the sheriff or municipal peace officer cannot complete service upon the respondent within ten days, the sheriff or municipal peace officer shall notify the petitioner. (4) Returns of service under this chapter shall be made in accordance with the applicable court rules. (5) If an order entered by the court recites that the respondent appeared in person before the court, the necessity for further service is waived and proof of service of that order is not necessary. The court’s order, entered after a hearing, need not be served on a respondent who fails to appear before the court, if material terms of the order have not changed from those contained in the temporary order, and it is shown to the court’s satisfaction that the respondent has previously been personally served with the temporary order. (6) Except in cases where the petitioner has fees waived under RCW 10.14.055 or is granted leave to proceed in forma pauperis, municipal police departments serving documents as required under this chapter may collect the same fees for service and mileage authorized by RCW 36.18.040 to be collected by sheriffs. (7) If the court previously entered an order allowing service by publication of the notice of hearing and temporary order of protection pursuant to RCW 10.14.085, the court may permit service by publication of the order of protection issued under RCW 10.14.080. Service by publication must comply with the requirements of RCW 10.14.085. [2002 c 117 § 3; 2001 c 311 § 2; 1992 c 143 § 15; 1987 c 280 § 10.] 10.14.105 10.14.105 Order following service by publication. Following completion of service by publication as provided in RCW 10.14.085, if the respondent fails to appear at the hearing, the court may issue an order of protection as provided in RCW 10.14.080. That order must be served pursuant to RCW 10.14.100, and forwarded to the appropriate law enforcement agency pursuant to RCW 10.14.110. [1992 c 143 § 13.] 10.14.110 10.14.110 Notice to law enforcement agencies— Enforceability. (1) A copy of an antiharassment protection order granted under this chapter shall be forwarded by the clerk of the court on or before the next judicial day to the appropriate law enforcement agency specified in the order. (2006 Ed.) 10.14.130 Upon receipt of the order, the law enforcement agency shall forthwith enter the order into any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. The law enforcement agency shall expunge expired orders from the computer system. Entry into the law enforcement information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any county in the state. (2) The information entered into the computer-based system shall include notice to law enforcement whether the order was personally served or served by publication. [1992 c 143 § 16; 1987 c 280 § 11.] 10.14.115 10.14.115 Enforcement of order—Knowledge prerequisite to penalties—Reasonable efforts to serve copy of order. (1) When the court issues an order of protection pursuant to RCW 10.14.080, the court shall advise the petitioner that the respondent may not be subjected to the penalties set forth in RCW 10.14.120 and 10.14.170 for a violation of the order unless the respondent knows of the order. (2) When a peace officer investigates a report of an alleged violation of an order for protection issued under this chapter the officer shall attempt to determine whether the respondent knew of the existence of the protection order. If the officer determines that the respondent did not or probably did not know about the protection order, the officer shall make reasonable efforts to obtain a copy of the protection order and serve it on the respondent during the investigation. [1992 c 143 § 17.] 10.14.120 10.14.120 Disobedience of order—Penalties. Any willful disobedience by a respondent age eighteen years or over of any temporary antiharassment protection order or civil antiharassment protection order issued under this chapter subjects the respondent to criminal penalties under this chapter. Any respondent age eighteen years or over who willfully disobeys the terms of any order issued under this chapter may also, in the court’s discretion, be found in contempt of court and subject to penalties under chapter 7.21 RCW. Any respondent under the age of eighteen years who willfully disobeys the terms of an order issued under this chapter may, in the court’s discretion, be found in contempt of court and subject to the sanction specified in RCW 7.21.030(4). [2001 c 260 § 4; 1989 c 373 § 14; 1987 c 280 § 12.] Findings—Intent—2001 c 260: See note following RCW 10.14.020. Severability—1989 c 373: See RCW 7.21.900. 10.14.125 10.14.125 Service by publication—Costs. The court may permit service by publication under this chapter only if the petitioner pays the cost of publication or if the petitioner’s costs have been waived pursuant to RCW 10.14.055, unless the county legislative authority allocates funds for service of process by publication for petitioners who are granted leave to proceed in forma pauperis. [2002 c 117 § 4; 1992 c 143 § 18.] 10.14.130 10.14.130 Exclusion of certain actions. Protection orders authorized under this chapter shall not be issued for [Title 10 RCW—page 13] 10.14.140 Title 10 RCW: Criminal Procedure any action specifically covered by chapter 7.90, 10.99, or 26.50 RCW. [2006 c 138 § 22; 1987 c 280 § 13.] Short title—2006 c 138: See RCW 7.90.900. 10.14.140 10.14.140 Other remedies. Nothing in this chapter shall preclude a petitioner’s right to utilize other existing civil remedies. [1987 c 280 § 14.] 10.14.150 10.14.150 Jurisdiction. (1) The district courts shall have jurisdiction and cognizance of any civil actions and proceedings brought under this chapter, except the district court shall transfer such actions and proceedings to the superior court when it is shown that the respondent to the petition is under eighteen years of age. (2) Municipal courts may exercise jurisdiction and cognizance of any civil actions and proceedings brought under this chapter by adoption of local court rule, except the municipal court shall transfer such actions and proceedings to the superior court when it is shown that the respondent to the petition is under eighteen years of age. (3) Superior courts shall have concurrent jurisdiction to receive transfer of antiharassment petitions in cases where a district or municipal court judge makes findings of fact and conclusions of law showing that meritorious reasons exist for the transfer. The municipal and district courts shall have jurisdiction and cognizance of any criminal actions brought under RCW 10.14.120 and 10.14.170. [2005 c 196 § 1; 1999 c 170 § 1; 1991 c 33 § 2; 1987 c 280 § 15.] or the termination order to the appropriate law enforcement agency specified in the modified order or termination order. Upon receipt of the order, the law enforcement agency shall promptly enter it in the law enforcement information system. [1987 c 280 § 18.] 10.14.190 10.14.190 Constitutional rights. Nothing in this chapter shall be construed to infringe upon any constitutionally protected rights including, but not limited to, freedom of speech and freedom of assembly. [1987 c 280 § 19.] 10.14.200 10.14.200 Availability of orders in family law proceedings. Any order available under this chapter may be issued in actions under chapter 13.32A, 26.09, 26.10, or 26.26 RCW. An order available under this chapter that is issued under those chapters shall be fully enforceable and shall be enforced pursuant to the provisions of this chapter. [1999 c 397 § 4; 1995 c 246 § 35.] Severability—1995 c 246: See note following RCW 26.50.010. 10.14.900 10.14.900 Severability—1987 c 280. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1987 c 280 § 22.] Chapter 10.16 Effective date—1991 c 33: See note following RCW 3.66.020. 10.14.160 10.14.160 Where action may be brought. For the purposes of this chapter an action may be brought in: (1) The judicial district of the county in which the alleged acts of unlawful harassment occurred; (2) The judicial district of the county where any respondent resides at the time the petition is filed; (3) The judicial district of the county where a respondent may be served if it is the same county or judicial district where a respondent resides; (4) The municipality in which the alleged acts of unlawful harassment occurred; (5) The municipality where any respondent resides at the time the petition is filed; or (6) The municipality where a respondent may be served if it is the same county or judicial district where a respondent resides. [2005 c 196 § 2; 1992 c 127 § 1; 1987 c 280 § 16.] 10.14.170 10.14.170 Criminal penalty. Any respondent age eighteen years or over who willfully disobeys any civil antiharassment protection order issued pursuant to this chapter shall be guilty of a gross misdemeanor. [2001 c 260 § 5; 1987 c 280 § 17.] Findings—Intent—2001 c 260: See note following RCW 10.14.020. 10.14.180 10.14.180 Modification of order. Upon application with notice to all parties and after a hearing, the court may modify the terms of an existing order under this chapter. In any situation where an order is terminated or modified before its expiration date, the clerk of the court shall forward on or before the next judicial day a true copy of the modified order [Title 10 RCW—page 14] Chapter 10.16 RCW PRELIMINARY HEARINGS Sections 10.16.080 10.16.100 10.16.110 10.16.145 10.16.150 10.16.160 Discharge of defendant—Frivolous complaints. Abstract of costs forwarded with transcript. Statement of prosecuting attorney if no information filed— Court action. Witnesses—Recognizances with sureties. Recognizances for minors. Witnesses—Failure to furnish recognizance—Commitment— Deposition—Discharge. Magistrates: Chapter 2.20 RCW. Municipal judges as magistrates: RCW 35.20.020, 35.20.250. 10.16.080 10.16.080 Discharge of defendant—Frivolous complaints. If it should appear upon the whole examination that no offense has been committed, or that there is not probable cause for charging the defendant with an offense, he shall be discharged, and if in the opinion of the magistrate, the complaint was malicious, or without probable cause, and there was no reasonable ground therefor, the costs shall be taxed against the party making the complaint. [Code 1881 § 1925; 1873 p 395 § 223; 1854 p 107 § 31; RRS § 1954.] 10.16.100 10.16.100 Abstract of costs forwarded with transcript. In all cases where any magistrate shall order a defendant to recognize for his or her appearance before a district or superior court, the magistrate shall forward with the papers in the case, an abstract of the costs that have accrued in the case, and such costs shall be subject to the final determination of the case. [1987 c 202 § 163; Code 1881 § 1937; 1873 p 397 § 236; 1854 p 109 § 44; RRS § 1966.] Intent—1987 c 202: See note following RCW 2.04.190. (2006 Ed.) Bail and Appearance Bonds 10.16.110 10.16.110 Statement of prosecuting attorney if no information filed—Court action. It shall be the duty of the prosecuting attorney of the proper county to inquire into and make full examination of all the facts and circumstances connected with any case of preliminary examination, as provided by law, touching the commission of any offense wherein the offender shall be committed to jail, or become recognized or held to bail; and if the prosecuting attorney shall determine in any such case that an information ought not to be filed, he shall make, subscribe and file with the clerk of the court a statement in writing containing his reasons, in fact and in law, for not filing an information in such case, and such statement shall be filed at and during the session of court at which the offender shall be held for his appearance: PROVIDED, That in such case such court may examine such statement, together with the evidence filed in the case, and if upon such examination the court shall not be satisfied with such statement, the prosecuting attorney shall be directed by the court to file the proper information and bring the case to trial. [1890 p 102 § 6; RRS § 2053. Formerly RCW 10.16.110 and 10.16.120.] 10.16.145 10.16.145 Witnesses—Recognizances with sureties. If the magistrate shall be satisfied that there is good cause to believe that any such witness will not perform the condition of his recognizance unless other security be given, such magistrate may order the witness to enter into recognizance with such sureties as may be deemed necessary for his appearance at court. [Code 1881 § 1930; 1873 p 396 § 229; 1854 p 108 § 37; RRS § 1960. Formerly codified in RCW 10.16.140, part.] Rules of court: This section probably superseded by CrR 6.13. See comment after CrR 6.13. 10.16.150 10.16.150 Recognizances for minors. When any minor is a material witness, any other person may be allowed to recognize for the appearance of such witness, or the magistrate may, in his discretion, take the recognizance of such minor in a sum not exceeding fifty dollars which shall be valid and binding in law, notwithstanding the disability of minority. [1973 1st ex.s. c 154 § 19; Code 1881 § 1931; 1873 p 396 § 230; 1854 p 108 § 38; RRS § 1961.] Rules of court: This section probably superseded by CrR 6.13. See comment after CrR 6.13. Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 10.16.160 10.16.160 Witnesses—Failure to furnish recognizance—Commitment—Deposition—Discharge. All witnesses required to recognize with or without sureties shall, if they refuse, be committed to the county jail by the magistrate, there to remain until they comply with such orders or be otherwise discharged according to law: PROVIDED, That when the magistrate is satisfied that any witness required to recognize with sureties is unable to comply with such order, the magistrate shall immediately take the deposition of such witness and discharge the witness from custody upon the witness’ own recognizance. The testimony of the witness shall be reduced to writing by a district judge or some competent person under the judge’s direction, and only the exact words of the witness shall be taken; the deposition, except the crossexamination, shall be in the narrative form, and upon the cross-examination the questions and answers shall be taken (2006 Ed.) 10.19.040 in full. The defendant must be present in person when the deposition is taken, and shall have an opportunity to crossexamine the witnesses; the defendant may make any objections to the admission of any part of the testimony, and all objections shall be noted by the district judge; but the district judge shall not decide as to the admissibility of the evidence, but shall take all the testimony offered by the witness. The deposition must be carefully read to the witness, and any corrections the witness may desire to make thereto shall be made in presence of the defendant by adding the same to the deposition as first taken; it must be signed by the witness, certified by the district judge, and transmitted to the clerk of the superior court, in the same manner as depositions in civil actions. And if the witness is not present when required to testify in the case, either before the grand jury or upon the trial in the superior court, the deposition shall be submitted to the judge of such superior court, upon the objections noted by the district judge, and such judge shall suppress so much of said deposition as such judge shall find to be inadmissible, and the remainder of the deposition may be read as evidence in the case, either before the grand jury or upon the trial in the court. [1987 c 202 § 164; 1891 c 11 § 15; Code 1881 § 1932; 1877 p 203 § 8; 1873 p 396 § 232; 1854 p 108 § 39; RRS § 1962. Formerly RCW 10.16.160, 10.16.170, and 10.16.180.] Rules of court: This section modified if not superseded by CrR 6.13. See comment after CrR 6.13. Intent—1987 c 202: See note following RCW 2.04.190. Chapter 10.19 Chapter 10.19 RCW BAIL AND APPEARANCE BONDS Sections 10.19.040 10.19.060 10.19.065 10.19.090 10.19.100 10.19.105 10.19.110 10.19.120 10.19.140 10.19.150 10.19.160 10.19.170 Officers authorized to take recognizance and approve bail. Certification and filing of recognizances. Taking and entering recognizances. Forfeiture, exoneration of recognizances—Judgment—Execution. Stay of execution of forfeiture judgment—Bond. Forfeiture judgment vacated on defendant’s production— When. Recognizances before district judge or magistrate—Forfeiture—Action. Actions not barred by defect of form or formality. Return of bond to surety, when. Liability of surety, limitation. Surrender of person under surety’s bond. Violent offenders—Reasons for release without bail. Bail arresting officer’s duties regarding: RCW 10.31.030. pending appeal to supreme court: RCW 10.73.040. traffic offenses, nonresidents: RCW 46.64.035. Fugitives, bail: Chapter 10.88 RCW. Recognizance for stay of execution: RCW 10.82.020, 10.82.025. to keep the peace as incidence of conviction of crime: RCW 10.64.070, 10.64.075. Recognizances relative to preliminary hearings: Chapter 10.16 RCW. 10.19.040 10.19.040 Officers authorized to take recognizance and approve bail. Any officer authorized to execute a warrant in a criminal action, may take the recognizance and justify and approve the bail; he may administer an oath and examine the bail as to its sufficiency. [Code 1881 § 1034; 1873 p 229 § 214; 1854 p 114 § 78; RRS § 2087. FORMER PART OF SECTION: 1891 c 11 § 13; Code 1881 § 1927; [Title 10 RCW—page 15] 10.19.060 Title 10 RCW: Criminal Procedure 1873 p 395 § 225; 1854 p 108 § 33; RRS § 1957, now codified in RCW 10.16.070.] 10.19.060 10.19.060 Certification and filing of recognizances. Every recognizance taken by any peace officer must be certified by him forthwith to the clerk of the court to which the defendant is recognized. The clerk must thereupon record the recognizance in the order book, and, from the time of filing, it has the same effect as if taken in open court. [Code 1881 § 1035; 1873 p 230 § 215; 1854 p 114 § 79; RRS § 2088.] 10.19.065 10.19.065 Taking and entering recognizances. Recognizances in criminal proceedings may be taken in open court and entered on the order book. [Code 1881 § 1033; 1854 p 114 § 77; RRS § 2086.] 10.19.090 10.19.090 Forfeiture, exoneration of recognizances— Judgment—Execution. In criminal cases where a recognizance for the appearance of any person, either as a witness or to appear and answer, shall have been taken and a default entered, the recognizance shall be declared forfeited by the court, and at the time of adjudging such forfeiture said court shall enter judgment against the principal and sureties named in such recognizance for the sum therein mentioned, and execution may issue thereon the same as upon other judgments. If the surety is not notified by the court in writing of the unexplained failure of the defendant to appear within thirty days of the date for appearance, then the forfeiture shall be null and void and the recognizance exonerated. [1986 c 322 § 2; Code 1881 § 1137; 1873 p 230 § 217; 1867 p 103 § 1; RRS § 2231.] Severability—1986 c 322: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1986 c 322 § 6.] 10.19.100 10.19.100 Stay of execution of forfeiture judgment— Bond. The parties, or either of them, against whom such judgment may be entered in the superior or supreme courts, may stay said execution for sixty days by giving a bond with two or more sureties, to be approved by the clerk, conditioned for the payment of such judgment at the expiration of sixty days, unless the same shall be vacated before the expiration of that time. [1891 c 28 § 86; Code 1881 § 1138; 1873 p 242 § 281; 1867 p 103 § 2; RRS § 2232. FORMER PART OF SECTION: 1891 c 28 § 87; Code 1881 § 1139; 1867 p 103 § 3; RRS § 2233, now codified as RCW 10.19.105.] 10.19.110 10.19.110 Recognizances before district judge or magistrate—Forfeiture—Action. All recognizances taken and forfeited before any district judge or magistrate, shall be forthwith certified to the clerk of the superior court of the county; and it shall be the duty of the prosecuting attorney to proceed at once by action against all the persons bound in such recognizances, and in all forfeited recognizances whatever, or such of them as the prosecuting attorney may elect to proceed against. [1987 c 202 § 165; Code 1881 § 1166; 1873 p 230 § 215; 1854 p 128 § 175; RRS § 2234. FORMER PART OF SECTION: Code 1881 § 1936; 1873 p 397 § 235; 1863 p 390 § 216; 1859 p 141 § 185; 1854 p 109 § 43; RRS § 1965, now codified as RCW 10.16.190.] Intent—1987 c 202: See note following RCW 2.04.190. 10.19.120 10.19.120 Actions not barred by defect of form or formality. No action brought on any recognizance, bail, or appearance bond given in any criminal proceeding whatever shall be barred or defeated, nor shall judgment be arrested thereon, by reason of any neglect or omission to note or record the default of any principal or surety at the time when such default shall happen, or by reason of any defect in the form of the recognizance, if it sufficiently appear from the tenor thereof at what court or before what district judge the party or witness was bound to appear, and that the court or magistrate before whom it was taken was authorized by law to require and take such recognizance; and a recognizance may be recorded after execution awarded. [1987 c 202 § 166; 1891 c 28 § 88; Code 1881 § 1167; 1854 p 129 § 176; RRS § 2235. FORMER PART OF SECTION: Code 1881 § 749; 1854 p 219 § 489; RRS § 777, now codified as RCW 19.72.170.] Intent—1987 c 202: See note following RCW 2.04.190. 10.19.140 10.19.140 Return of bond to surety, when. If a forfeiture has been entered against a person in a criminal case and the person is returned to custody or produced in court within twelve months from the forfeiture, then the full amount of the bond, less any and all costs determined by the court to have been incurred by law enforcement in transporting, locating, apprehending, or processing the return of the person to the jurisdiction of the court, shall be remitted to the surety if the surety was directly responsible for producing the person in court or directly responsible for apprehension of the person by law enforcement. [1986 c 322 § 3.] Severability—1986 c 322: See note following RCW 10.19.090. 10.19.150 10.19.105 10.19.105 Forfeiture judgment vacated on defendant’s production—When. If a bond be given and execution stayed, as provided in RCW 10.19.100, and the person for whose appearance such recognizance was given shall be produced in court before the expiration of said period of sixty days, the judge may vacate such judgment upon such terms as may be just and equitable, otherwise execution shall forthwith issue as well against the sureties in the new bond as against the judgment debtors. [1891 c 28 § 87; Code 1881 § 1139; 1867 p 103 § 3; RRS § 2233. Formerly RCW 10.19.100, part.] [Title 10 RCW—page 16] 10.19.150 Liability of surety, limitation. The liability of the surety is limited to the amount of the bond when acting within the scope of the surety’s duties in issuing the bond. [1986 c 322 § 4.] Severability—1986 c 322: See note following RCW 10.19.090. 10.19.160 10.19.160 Surrender of person under surety’s bond. The surety on the bond may return to custody a person in a criminal case under the surety’s bond if the surrender is accompanied by a notice of forfeiture or a notarized affidavit specifying the reasons for the surrender. The surrender shall be made to the facility in which the person was originally (2006 Ed.) Compromise of Misdemeanors held in custody or the county or city jail affiliated with the court issuing the warrant resulting in bail. [1986 c 322 § 5.] Severability—1986 c 322: See note following RCW 10.19.090. 10.19.170 10.19.170 Violent offenders—Reasons for release without bail. Notwithstanding CrR 3.2, a court who releases a defendant arrested or charged with a violent offense as defined in RCW 9.94A.030 on the offender’s personal recognizance or personal recognizance with conditions must state on the record the reasons why the court did not require the defendant to post bail. [1996 c 181 § 1.] Chapter 10.22 Chapter 10.22 RCW COMPROMISE OF MISDEMEANORS Sections 10.22.010 10.22.020 10.22.030 When permitted—Exceptions. Procedure—Costs. Compromise in all other cases forbidden. 10.22.010 10.22.010 When permitted—Exceptions. When a defendant is prosecuted in a criminal action for a misdemeanor, for which the person injured by the act constituting the offense has a remedy by a civil action, the offense may be compromised as provided in RCW 10.22.020, except when it was committed: (1) By or upon an officer while in the execution of the duties of his office. (2) Riotously; (3) With an intent to commit a felony; or (4) By one family or household member against another as defined in RCW 10.99.020 and was a crime of domestic violence as defined in RCW 10.99.020. [1999 c 143 § 45; 1989 c 411 § 3; Code 1881 § 1040; 1854 p 115 § 84; RRS § 2126. FORMER PART OF SECTION: Code 1881 § 1935; 1873 p 397 § 234; 1854 p 109 § 42; RRS § 1964, now codified as RCW 10.16.135.] 10.22.020 10.22.020 Procedure—Costs. In such case, if the party injured appear in the court in which the cause is pending at any time before the final judgment therein, and acknowledge, in writing, that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be discontinued and the defendant to be discharged. The reasons for making the order must be set forth therein and entered in the minutes. Such order is a bar to another prosecution for the same offense. [1891 c 28 § 63; Code 1881 §§ 1041, 1042; 1873 p 230 § 220; 1854 p 115 § 84; RRS § 2127.] 10.22.030 10.22.030 Compromise in all other cases forbidden. No offense can be compromised, nor can any proceedings for the prosecution or punishment thereof be stayed upon a compromise, except as provided in this chapter. [1891 c 28 § 64; Code 1881 § 1043; RRS § 2128.] (2006 Ed.) Chapter 10.25 Chapter 10.27 Chapter 10.25 RCW JURISDICTION AND VENUE Sections 10.25.065 10.25.070 10.25.130 10.25.140 Perjury outside the state. Change of venue—Procedure. Costs. Change of venue by outside jury. 10.25.065 Perjury outside the state. Perjury committed outside of the state of Washington in a statement, declaration, verification, or certificate authorized by RCW 9A.72.085 is punishable in the county in this state in which occurs the act, transaction, matter, action, or proceeding, in relation to which the statement, declaration, verification, or certification was given or made. [1981 c 187 § 4.] 10.25.065 10.25.070 Change of venue—Procedure. The defendant may show to the court, by affidavit, that he believes he cannot receive a fair trial in the county where the action is pending, owing to the prejudice of the judge, or to excitement or prejudice against the defendant in the county or some part thereof, and may thereupon demand to be tried in another county. The application shall not be granted on the ground of excitement or prejudice other than prejudice of the judge, unless the affidavit of the defendant be supported by other evidence, nor in any case unless the judge is satisfied the ground upon which the application is made does exist. [1891 c 28 § 7; Code 1881 § 1072; 1854 p 117 § 98; RRS § 2018.] 10.25.070 10.25.130 Costs. When a criminal case is transferred to another county pursuant to this chapter the county from which such case is transferred shall pay to the county in which the case is tried all costs accrued for per diem and mileage for jurors and witnesses and all other costs properly charged to a convicted defendant. [1961 c 303 § 2.] 10.25.130 10.25.140 Change of venue by outside jury. When a change of venue is ordered and the court, upon motion to transfer a jury or in the absence of such motion, determines that it would be more economical to move the jury than to move the pending action and that justice will be served, a change of venue shall be accomplished by the selection of a jury in the county to which the venue would otherwise have been transferred and the selected jury moved to the county where the indictment or information was filed. [1981 c 205 § 1.] 10.25.140 Chapter 10.27 RCW GRAND JURIES—CRIMINAL INVESTIGATIONS Chapter 10.27 Sections 10.27.010 10.27.020 10.27.030 10.27.040 10.27.050 10.27.060 10.27.070 10.27.080 10.27.090 10.27.100 10.27.110 10.27.120 Short title—Purpose. Definitions. Summoning grand jury. Selection of grand jury members. Special inquiry judge—Selection. Discharge of panel, juror—Grounds. Oath—Officers—Witnesses. Persons authorized to attend—Restrictions on attorneys. Secrecy enjoined—Exceptions—Use and availability of evidence. Inquiry as to offenses—Duties—Investigation. Duration of sessions—Extensions. Self-incrimination—Right to counsel. [Title 10 RCW—page 17] 10.27.010 10.27.130 10.27.140 10.27.150 10.27.160 10.27.170 10.27.180 10.27.190 Title 10 RCW: Criminal Procedure Self-incrimination—Refusal to testify or give evidence—Procedure. Witnesses—Attendance. Indictments—Issuance. Grand jury report. Special inquiry judge—Petition for order. Special inquiry judge—Disqualification from subsequent proceedings. Special inquiry judge—Direction to public attorney for proceedings in another county—Procedure. Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. 10.27.050 10.27.050 Special inquiry judge—Selection. In every county a superior court judge as designated by a majority of the judges shall be available to serve as a special inquiry judge to hear evidence concerning criminal activity and corruption. [1971 ex.s. c 67 § 5.] Interpreters—Legal proceedings: Chapter 2.42 RCW. Juries: Chapter 2.36 RCW. 10.27.010 10.27.010 Short title—Purpose. This chapter shall be known as the criminal investigatory act of 1971 and is enacted on behalf of the people of the state of Washington to serve law enforcement in combating crime and corruption. [1971 ex.s. c 67 § 1.] 10.27.020 10.27.020 Definitions. For the purposes of this chapter: (1) The term "court" shall mean any superior court in the state of Washington. (2) The term "public attorney" shall mean the prosecuting attorney of the county in which a grand jury or special grand jury is impaneled; the attorney general of the state of Washington when acting pursuant to RCW 10.27.070(9) and, the special prosecutor appointed by the governor, pursuant to RCW 10.27.070(10), and their deputies or special deputies. (3) The term "indictment" shall mean a written accusation found by a grand jury. (4) The term "principal" shall mean any person whose conduct is being investigated by a grand jury or special inquiry judge. (5) The term "witness" shall mean any person summoned to appear before a grand jury or special inquiry judge to answer questions or produce evidence. (6) A "grand jury" consists of twelve persons, is impaneled by a superior court and constitutes a part of such court. The functions of a grand jury are to hear, examine and investigate evidence concerning criminal activity and corruption and to take action with respect to such evidence. The grand jury shall operate as a whole and not by committee. (7) A "special inquiry judge" is a superior court judge designated by a majority of the superior court judges of a county to hear and receive evidence of crime and corruption. [1988 c 188 § 16; 1971 ex.s. c 67 § 2.] Legislative findings—Severability—Effective date—1988 c 188: See notes following RCW 2.36.010. 10.27.030 10.27.030 Summoning grand jury. No grand jury shall be summoned to attend at the superior court of any county except upon an order signed by a majority of the judges thereof. A grand jury shall be summoned by the court, where the public interest so demands, whenever in its opinion there is sufficient evidence of criminal activity or corruption within the county or whenever so requested by a public attorney, corporation counsel or city attorney upon showing of good cause. [1971 ex.s. c 67 § 3.] 10.27.040 10.27.040 Selection of grand jury members. Members of the grand jury shall be selected in the manner provided in chapter 2.36 RCW. [1988 c 188 § 17; 1971 ex.s. c 67 § 4.] [Title 10 RCW—page 18] 10.27.060 10.27.060 Discharge of panel, juror—Grounds. Neither the grand jury panel nor any individual grand juror may be challenged, but the court may: (1) At any time before a grand jury is sworn discharge the panel and summon another if it finds that the original panel does not substantially conform to the requirements of chapter 2.36 RCW; or (2) At any time after a grand juror is drawn, refuse to swear him, or discharge him after he has been sworn, upon a finding that he is disqualified from service pursuant to chapter 2.36 RCW, or incapable of performing his duties because of bias or prejudice, or guilty of misconduct in the performance of his duties such as to impair the proper functioning of the grand jury. [1971 ex.s. c 67 § 6.] 10.27.070 10.27.070 Oath—Officers—Witnesses. (1) When the grand jury is impaneled, the court shall appoint one of the jurors to be foreman, and also another of the jurors to act as foreman in case of the absence of the foreman. (2) The grand jurors must be sworn pursuant to the following oath: "You, as grand jurors for the county of . . . . . ., do solemnly swear (or affirm) that you will diligently inquire into and true presentment make of all such matters and things as shall come to your knowledge and you will submit things truly as they come to your knowledge, according to your charge the laws of this state and your understanding; you shall indict no person through envy, hatred, malice or political consideration; neither will you leave any person unindicted through fear, favor, affection, reward or the hope thereof or political consideration. The counsel of the state, his advice, and that of your fellows you shall keep secret." (3) After a grand jury has been sworn, the court must deliver or cause to be delivered to each grand juror a printed copy of all the provisions of this chapter, and the court may give the grand jurors any oral or written instructions, or both, relating to the proper performance of their duties at any time it deems necessary or appropriate. (4) The court shall appoint a reporter to record the proceedings before the grand jury or special inquiry judge, and shall swear him not to disclose any testimony or the name of any witness except as provided in RCW 10.27.090. In addition, the foreman of the grand jury may, in his discretion, select one of the grand jurors to act as secretary to keep records of the grand jury’s business. (5) The court, whenever necessary, shall appoint an interpreter, and shall swear him not to disclose any testimony or the name of any witness except as provided in RCW 10.27.090. (6) When a person held in official custody is a witness before a grand jury or special inquiry judge, a public servant, assigned to guard him during his appearance may accompany him. The court shall swear such public servant not to disclose (2006 Ed.) Grand Juries—Criminal Investigations any testimony or the name of any witness except as provided in RCW 10.27.090. (7) Proceedings of a grand jury shall not be valid unless at least twelve of its members are present. The foreman or acting foreman of the grand jury shall conduct proceedings in an orderly manner and shall administer an oath or affirmation in the manner prescribed by law to any witness who shall testify before the grand jury. (8) The legal advisers of a grand jury are the court and public attorneys, and a grand jury may not seek or receive legal advice from any other source. When necessary or appropriate, the court or public attorneys or both must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions shall be recorded by the reporter. (9)(a) Upon request of the prosecuting attorney of the county in which a grand jury or special inquiry judge is impaneled, the attorney general shall assist such prosecuting attorney in attending such grand jury or special inquiry judge. (b) Whenever directed by the court, the attorney general shall supersede the prosecuting attorney in attending the grand jury and in which event the attorney general shall be responsible for the prosecution of any indictment returned by the grand jury. (c) When the attorney general is conducting a criminal investigation pursuant to powers otherwise granted to him, he shall attend all grand juries or special inquiry judges in relation thereto and shall prosecute any indictments returned by a grand jury. (10) After consulting with the court and receiving its approval, the grand jury may request the governor to appoint a special prosecutor to attend the grand jury. The grand jury shall in the request nominate three persons approved by the court. From those nominated, the governor shall appoint a special prosecutor, who shall supersede the prosecuting attorney and the attorney general and who shall be responsible for the prosecution of any indictments returned by the grand jury attended by him. (11) A public attorney shall attend the grand jurors when requested by them, and he may do so on his own motion within the limitations of RCW 10.27.020(2), 10.27.070(9) and 10.27.070(10) hereof, for the purpose of examining witnesses in their presence, or of giving the grand jurors legal advice regarding any matter cognizable by them. He shall also, when requested by them, draft indictments and issue process for the attendance of witnesses. (12) Subject to the approval of the court, the corporation counsel or city attorney for any city or town in the county where any grand jury has been convened may appear as a witness before the grand jury to advise the grand jury of any criminal activity or corruption within his jurisdiction. [1971 ex.s. c 67 § 7.] 10.27.080 10.27.080 Persons authorized to attend—Restrictions on attorneys. No person shall be present at sessions of the grand jury or special inquiry judge except the witness under examination and his attorney, public attorneys, the reporter, an interpreter, a public servant guarding a witness who has been held in custody, if any, and, for the purposes provided for in RCW 10.27.170, any corporation counsel or city attorney. The attorney advising the witness shall only (2006 Ed.) 10.27.100 advise such witness concerning his right to answer or not answer any questions and the form of his answer and shall not otherwise engage in the proceedings. No person other than grand jurors shall be present while the grand jurors are deliberating or voting. Any person violating either of the above provisions may be held in contempt of court. [1971 ex.s. c 67 § 8.] 10.27.090 10.27.090 Secrecy enjoined—Exceptions—Use and availability of evidence. (1) Every member of the grand jury shall keep secret whatever he or any other grand juror has said, and how he or any other grand juror has voted, except for disclosure of indictments, if any, as provided in RCW 10.27.150. (2) No grand juror shall be permitted to state or testify in any court how he or any other grand juror voted on any question before them or what opinion was expressed by himself or any other grand juror regarding such question. (3) No grand juror, public or private attorney, city attorney or corporation counsel, reporter, interpreter or public servant who held a witness in custody before a grand jury or special inquiry judge, or witness, principal or other person shall disclose the testimony of a witness examined before the grand jury or special inquiry judge or other evidence received by it, except when required by the court to disclose the testimony of the witness examined before the grand jury or special inquiry judge for the purpose of ascertaining whether it is consistent with that of the witness given before the court, or to disclose his testimony given before the grand jury or special inquiry judge by any person upon a charge against such person for perjury in giving his testimony or upon trial therefor, or when permitted by the court in furtherance of justice. (4) The public attorney shall have access to all grand jury and special inquiry judge evidence and may introduce such evidence before any other grand jury or any trial in which the same may be relevant. (5) The court upon a showing of good cause may make any or all grand jury or special inquiry judge evidence available to any other public attorney, prosecuting attorney, city attorney or corporation counsel upon proper application and with the concurrence of the public attorney attending such grand jury. Any witness’ testimony, given before a grand jury or a special inquiry judge and relevant to any subsequent proceeding against the witness, shall be made available to the witness upon proper application to the court. The court may also, upon proper application and upon a showing of good cause, make available to a defendant in a subsequent criminal proceeding other testimony or evidence: (a) when given or presented before a special inquiry judge, if doing so is in the furtherance of justice; or (b) when given or presented before a grand jury, if the court finds that doing so is necessary to prevent an injustice and that there is no reason to believe that doing so would endanger the life or safety of any witness or his family. The cost of any such transcript made available shall be borne by the applicant. [1971 ex.s. c 67 § 9.] 10.27.100 10.27.100 Inquiry as to offenses—Duties—Investigation. The grand jurors shall inquire into every offense triable within the county for which any person has been held to [Title 10 RCW—page 19] 10.27.110 Title 10 RCW: Criminal Procedure answer, if an indictment has not been found or an information filed in such case, and all other indictable offenses within the county which are presented to them by a public attorney or otherwise come to their knowledge. If a grand juror knows or has reason to believe that an indictable offense, triable within the county, has been committed, he shall declare such a fact to his fellow jurors who may begin an investigation. In such investigation the grand juror may be sworn as a witness. [1971 ex.s. c 67 § 10.] 10.27.110 10.27.110 Duration of sessions—Extensions. The length of time which a grand jury may sit after being convened shall not exceed sixty days. Before expiration of the sixty day period and any extensions, and upon showing of good cause, the court may order the grand jury panel extended for a period not to exceed sixty days. [1971 ex.s. c 67 § 11.] 10.27.120 10.27.120 Self-incrimination—Right to counsel. Any individual called to testify before a grand jury or special inquiry judge, whether as a witness or principal, if not represented by an attorney appearing with the witness before the grand jury or special inquiry judge, must be told of his privilege against self-incrimination. Such an individual has a right to representation by an attorney to advise him as to his rights, obligations and duties before the grand jury or special inquiry judge, and must be informed of this right. The attorney may be present during all proceedings attended by his client unless immunity has been granted pursuant to RCW 10.27.130. After immunity has been granted, such an individual may leave the grand jury room to confer with his attorney. [1971 ex.s. c 67 § 12.] 10.27.130 10.27.130 Self-incrimination—Refusal to testify or give evidence—Procedure. If in any proceedings before a grand jury or special inquiry judge, a person refuses, or indicates in advance a refusal, to testify or provide evidence of any other kind on the ground that he may be incriminated thereby, and if a public attorney requests the court to order that person to testify or provide the evidence, the court shall then hold a hearing and shall so order unless it finds that to do so would be clearly contrary to the public interest, and that person shall comply with the order. The hearing shall be subject to the provisions of RCW 10.27.080 and 10.27.090, unless the witness shall request that the hearing be public. If, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but he shall not be prosecuted or subjected to criminal penalty or forfeiture for or on account of any transaction, matter, or fact concerning which he has been ordered to testify pursuant to this section. He may nevertheless be prosecuted for failing to comply with the order to answer, or for perjury or for offering false evidence to the grand jury. [1971 ex.s. c 67 § 13.] 10.27.140 10.27.140 Witnesses—Attendance. (1) Except as provided in this section, no person has the right to appear as a witness in a grand jury or special inquiry judge proceeding. [Title 10 RCW—page 20] (2) A public attorney may call as a witness in a grand jury or special inquiry judge proceeding any person believed by him to possess information or knowledge relevant thereto and may issue legal process and subpoena to compel his attendance and the production of evidence. (3) The grand jury or special inquiry judge may cause to be called as a witness any person believed by it to possess relevant information or knowledge. If the grand jury or special inquiry judge desires to hear any such witness who was not called by a public attorney, it may direct a public attorney to issue and serve a subpoena upon such witness and the public attorney must comply with such direction. At any time after service of such subpoena and before the return date thereof, however, the public attorney may apply to the court which impaneled the grand jury for an order vacating or modifying the subpoena on the grounds that such is in the public interest. Upon such application, the court may in its discretion vacate the subpoena, extend its return date, attach reasonable conditions to directions, or make such other qualification thereof as is appropriate. (4) The proceedings to summon a person and compel him to testify or provide evidence shall as far as possible be the same as proceedings to summon witnesses and compel their attendance. Such persons shall receive only those fees paid witnesses in superior court criminal trials. [1971 ex.s. c 67 § 14.] 10.27.150 10.27.150 Indictments—Issuance. After hearing, examining and investigating the evidence before it, a grand jury may, in its discretion, issue an indictment against a principal. A grand jury shall find an indictment only when from all the evidence at least three-fourths of the jurors are convinced that there is probable cause to believe a principal is guilty of a criminal offense. When an indictment is found by a grand jury the foreman or acting foreman shall present it to the court. [1971 ex.s. c 67 § 15.] 10.27.160 10.27.160 Grand jury report. The grand jury may prepare its conclusions, recommendations and suggestions in the form of a grand jury report. Such report shall be released to the public only upon a determination by a majority of the judges of the superior court of the county court that (1) the findings in the report deal with matters of broad public policy affecting the public interest and do not identify or criticize any individual; (2) the release of the report would be consistent with the public interest and further the ends of justice; and (3) release of the report would not prejudice any pending criminal investigation or trial. [1971 ex.s. c 67 § 16.] 10.27.170 10.27.170 Special inquiry judge—Petition for order. When any public attorney, corporation counsel or city attorney has reason to suspect crime or corruption, within the jurisdiction of such attorney, and there is reason to believe that there are persons who may be able to give material testimony or provide material evidence concerning such suspected crime or corruption, such attorney may petition the judge designated as a special inquiry judge pursuant to RCW 10.27.050 for an order directed to such persons commanding them to appear at a designated time and place in said county and to then and there answer such questions concerning the (2006 Ed.) Statewide Special Inquiry Judge Act suspected crime or corruption as the special inquiry judge may approve, or provide evidence as directed by the special inquiry judge. [1971 ex.s. c 67 § 17.] 10.27.180 10.27.180 Special inquiry judge—Disqualification from subsequent proceedings. The judge serving as a special inquiry judge shall be disqualified from acting as a magistrate or judge in any subsequent court proceeding arising from such inquiry except alleged contempt for neglect or refusal to appear, testify or provide evidence at such inquiry in response to an order, summons or subpoena. [1971 ex.s. c 67 § 18.] 10.27.190 10.27.190 Special inquiry judge—Direction to public attorney for proceedings in another county—Procedure. Upon petition of a public attorney to the special inquiry judge that there is reason to suspect that there exists evidence of crime and corruption in another county, and with the concurrence of the special inquiry judge and prosecuting attorney of the other county, the special inquiry judge may direct the public attorney to attend and participate in special inquiry judge proceedings in the other county held to inquire into crime and corruption which relates to crime or corruption under investigation in the initiating county. The proceedings of such special inquiry judge may be transcribed, certified and filed in the county of the public attorney’s jurisdiction at the expense of that county. [1971 ex.s. c 67 § 19.] Chapter 10.29 RCW STATEWIDE SPECIAL INQUIRY JUDGE ACT Chapter 10.29 Sections 10.29.010 10.29.020 10.29.030 10.29.040 10.29.050 10.29.060 10.29.070 10.29.080 10.29.090 10.29.100 10.29.110 10.29.120 10.29.130 10.29.900 Short title. Intent. Appointment of statewide special inquiry judge—Procedure— Term—Confidentiality. Scope of investigation and proceeding—Request for additional authority. Powers and duties of statewide special inquiry judge. Disclosures by witness—Penalty. Rules. Special prosecutor—Selection—Qualifications—Removal. Operating budget—Contents—Audit. Vacancy in office. Duties of special prosecutor or designee. Advising county prosecuting attorney—Filing and prosecution of informations—Expenses of prosecutions. Disqualification of judge from subsequent proceedings. Severability—1980 c 146. Organized crime advisory board: RCW 43.43.858. Special inquiry judge: RCW 10.27.050, 10.27.170 through 10.27.190. 10.29.010 10.29.010 Short title. This chapter shall be known and may be cited as the Statewide Special Inquiry Judge Act. [1980 c 146 § 1.] 10.29.020 10.29.020 Intent. It is the intent of the legislature in enacting this chapter to strengthen and enhance the ability of the state to detect and eliminate organized criminal activity. [1980 c 146 § 2.] 10.29.030 10.29.030 Appointment of statewide special inquiry judge—Procedure—Term—Confidentiality. (1) The organized crime advisory board shall have the authority, by a (2006 Ed.) 10.29.050 three-fourths vote at a regularly constituted meeting, to petition the Washington state supreme court for an order appointing a special inquiry judge as prescribed by this section. Such vote may be on its own motion or pursuant to a request from the prosecuting attorney of any county. In the event of such request from a prosecuting attorney the board shall vote on the question promptly. A petition filed under this section shall state the general crimes or wrongs to be inquired into and shall state the reasons why said crimes or wrongs are such that a statewide special inquiry judge should be authorized to investigate. The supreme court may order the appointment of a statewide special inquiry judge, in accordance with the petition, for a term of six calendar months. Upon petition by the special prosecutor, and with the approval of the majority of the members of the organized crime advisory board, the supreme court, by order, may extend the term of the statewide special inquiry judge for three months. The term of the statewide special inquiry judge may subsequently be extended in the same manner for additional three-month periods. (2) If the petition is granted, the supreme court shall designate a judge of a superior court to act as a special inquiry judge. The supreme court shall ensure that sufficient visiting judges are made available to the superior court from which the appointment is made in order to compensate for any loss of judicial time. (3) All of the information and data collected and processed by the organized crime advisory board and the petition filed with the supreme court shall be confidential and not subject to examination or publication pursuant to chapter 42.56 RCW, except as provided by rules of the supreme court of Washington in the case of the petition. [2005 c 274 § 204; 1980 c 146 § 3.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. 10.29.040 Scope of investigation and proceeding— Request for additional authority. The scope of the investigation and of the special inquiry judge proceeding shall be limited to the general crimes and wrongs specified in the petition filed under RCW 10.29.030. The special prosecutor or special inquiry judge, however, may request authority to investigate other crimes by submitting a list of such crimes to the organized crime advisory board which may grant authorization to proceed by a three-fourths vote of the membership. [1980 c 146 § 4.] 10.29.040 10.29.050 Powers and duties of statewide special inquiry judge. A statewide special inquiry judge shall have the following powers and duties: (1) To hear and receive evidence of crime and corruption. (2) To appoint a reporter to record the proceedings; and to swear the reporter not to disclose any testimony or the name of any witness except as provided in RCW 10.27.090. (3) Whenever necessary, to appoint an interpreter, and to swear him not to disclose any testimony or the name of any witness except as provided in RCW 10.27.090. (4) When a person held in official custody is a witness before a statewide special inquiry judge, a public servant, assigned to guard him during his appearance may accompany 10.29.050 [Title 10 RCW—page 21] 10.29.060 Title 10 RCW: Criminal Procedure him. The statewide special inquiry judge shall swear such public servant not to disclose any testimony or the name of any witness except as provided in RCW 10.27.090. (5) To cause to be called as a witness any person believed by him to possess relevant information or knowledge. If the statewide special inquiry judge desires to hear any such witness who was not called by the special prosecutor, it may direct the special prosecutor to issue and serve a subpoena upon such witness and the special prosecutor must comply with such direction. At any time after service of such subpoena and before the return date thereof, however, the special prosecutor may apply to the statewide special inquiry judge for an order vacating or modifying the subpoena on the grounds that such is in the public interest. Upon such application, the statewide special inquiry judge may in its discretion vacate the subpoena, extend its return date, attach reasonable conditions to directions, or make such other qualification thereof as is appropriate. (6) Upon a showing of good cause may make available any or all evidence obtained to any other public attorney, prosecuting attorney, city attorney, or corporation counsel upon proper application and with the concurrence of the special prosecutor. Any witness’ testimony, given before a statewide special inquiry judge and relevant to any subsequent proceeding against the witness, shall be made available to the witness upon proper application to the statewide special inquiry judge. The statewide special inquiry judge may also, upon proper application and upon a showing of good cause, make available to a defendant in a subsequent criminal proceeding other testimony or evidence when given or presented before a special inquiry judge, if doing so is in the furtherance of justice. (7) Have authority to perform such other duties as may be required to effectively implement this chapter, in accord with rules adopted by the supreme court relating to these proceedings. (8) Have authority to hold in contempt of court any person who shall disclose the name or testimony of a witness examined before a statewide special inquiry judge except when required by a court to disclose the testimony given before such statewide special inquiry judge in a subsequent criminal proceeding. [1980 c 146 § 5.] 10.29.060 10.29.060 Disclosures by witness—Penalty. Any witness who shall disclose the fact that he or she has been called as a witness before a statewide special inquiry judge or who shall disclose the nature of the testimony given shall be guilty of a misdemeanor. [1980 c 146 § 6.] crime advisory board shall submit to the governor the name of an individual who, with the consent of the governor, shall serve as special prosecutor for the statewide special inquiry judge proceeding. Any individual whose name is submitted under this section to the governor shall be licensed to practice law in the state of Washington and shall have at least five years’ professional experience as one or more of the following: (1) Prosecuting attorney; (2) deputy prosecuting attorney; (3) United States attorney; or (4) assistant United States attorney. No such person shall have resided during the five years immediately preceding the appointment in a county in which the statewide special inquiry judge will likely be required to investigate crimes. A special prosecutor appointed under this section shall be removed only upon a majority recommendation of the organized crime advisory board and the consent of the governor. [1980 c 146 § 8.] 10.29.090 10.29.090 Operating budget—Contents—Audit. Within ten days of his or her appointment, a special prosecutor selected under this chapter shall submit to the organized crime advisory board an operating budget to fund the activities of his or her office. The budget may include, but shall not be limited to, funds for the hiring of assistant special prosecutors, investigators, and clerical staff. Upon the approval of the budget by a majority of the members of the board, the costs and expenses of the prosecutor’s operating budget shall be paid for by the state out of the organized crime prosecution revolving fund. Further operating budgets shall be proposed, approved, and funded pursuant to this section if the term of a statewide special inquiry judge is extended pursuant to RCW 10.29.030. Vouchers and other budget and accounting records of a special inquiry judge proceeding including such records of the special prosecutor shall be subject to audit by the state auditor but shall not be public records within the meaning of chapter 42.56 RCW. [2005 c 274 § 205; 1980 c 146 § 9.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Organized crime prosecution revolving fund: RCW 43.43.866. 10.29.100 10.29.100 Vacancy in office. Whenever a statewide special inquiry judge or special prosecutor appointed under this chapter dies or in any other way is rendered incapable of continuing the duties of his or her office, a successor shall be appointed to serve for the remainder of the judge’s or prosecutor’s term in the manner provided for by RCW 10.29.030 and 10.29.080 for the appointment of statewide special inquiry judges and special prosecutors. [1980 c 146 § 10.] 10.29.070 10.29.070 Rules. The supreme court shall develop and adopt rules to govern the procedures of a statewide special inquiry judge proceeding including rules assuring the confidentiality of all proceedings, testimony, and the identity of persons called as witnesses. The adoption of such rules shall be subject to the approval of such rules by the senate and house judiciary committees. [1980 c 146 § 7.] 10.29.080 10.29.080 Special prosecutor—Selection—Qualifications—Removal. If the supreme court appoints a statewide special inquiry judge under RCW 10.29.030, the organized [Title 10 RCW—page 22] 10.29.110 10.29.110 Duties of special prosecutor or designee. The special prosecutor or his designee shall: (1) Attend all proceedings of the statewide special inquiry judge; (2) Have the authority to issue subpoenas for witnesses statewide; (3) Examine witnesses, present evidence, draft reports as directed by the statewide special inquiry judge, and draft and file informations under RCW 10.29.120. [1980 c 146 § 11.] (2006 Ed.) Warrants and Arrests 10.29.120 10.29.120 Advising county prosecuting attorney— Filing and prosecution of informations—Expenses of prosecutions. (1) The special prosecutor shall advise the county prosecuting attorney in any affected county of the nature of the statewide special inquiry judge investigation and of any informations arising from such proceedings unless such disclosures will create a substantial likelihood of a conflict of interest for the county prosecuting attorney. (2) The special prosecutor may file and prosecute an information in the county where proper venue lies, after having advised the county prosecuting attorney as provided in this section and determined that such prosecuting attorney does not intend to do so, or pursuant to an agreement between them that the special prosecutor shall do so. (3) Informations filed and prosecuted pursuant to this chapter shall meet the requirements of chapter 10.37 RCW. (4) The expenses of prosecutions initiated and maintained by the special prosecutor shall be paid as part of the statewide special inquiry judge program as provided in RCW 10.29.090. [1980 c 146 § 12.] 10.31.100 warrant. Such judge or authorized officer shall hold bail for the legal authority within this state which issued such warrant if other than such arresting authority. [1970 ex.s. c 49 § 3; 1891 c 28 § 43; Code 1881 § 1030; 1873 p 229 § 210; 1854 p 114 § 74; RRS § 2083.] Severability—1970 ex.s. c 49: See note following RCW 9.69.100. Bail: Chapter 10.19 RCW. 10.31.040 10.31.040 Officer may break and enter. To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other inclosure, if, after notice of his office and purpose, he be refused admittance. [Code 1881 § 1170; 1854 p 129 § 179; RRS § 2082.] 10.31.050 10.31.050 Officer may use force. If after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest. [Code 1881 § 1031; 1873 p 229 § 211; 1854 p 114 § 75; RRS § 2084.] 10.29.130 10.29.130 Disqualification of judge from subsequent proceedings. The judge serving as a special inquiry judge shall be disqualified from acting as a magistrate or judge in any subsequent court proceeding arising from such inquiry except alleged contempt for neglect or refusal to appear, testify, or provide evidence at such inquiry in response to an order, summons, or subpoena. [1980 c 146 § 13.] 10.29.900 10.29.900 Severability—1980 c 146. If any provision of this 1980 act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1980 c 146 § 19.] Chapter 10.31 Chapter 10.31 RCW WARRANTS AND ARRESTS Sections 10.31.030 10.31.040 10.31.050 10.31.060 10.31.100 Service—How—Warrant not in possession, procedure—Bail. Officer may break and enter. Officer may use force. Arrest by telegraph or teletype. Arrest without warrant. Rules of court: Warrant upon indictment or information—CrR 2.2. Search and seizure: Chapter 10.79 RCW. 10.31.030 10.31.030 Service—How—Warrant not in possession, procedure—Bail. The officer making an arrest must inform the defendant that he acts under authority of a warrant, and must also show the warrant: PROVIDED, That if the officer does not have the warrant in his possession at the time of arrest he shall declare that the warrant does presently exist and will be shown to the defendant as soon as possible on arrival at the place of intended confinement: PROVIDED, FURTHER, That any officer making an arrest under this section shall, if the person arrested wishes to deposit bail, take such person directly and without delay before a judge or before an officer authorized to take the recognizance and justify and approve the bail, including the deposit of a sum of money equal to bail. Bail shall be the amount fixed by the (2006 Ed.) 10.31.060 10.31.060 Arrest by telegraph or teletype. Whenever any person or persons shall have been indicted or accused on oath of any public offense, or thereof convicted, and a warrant of arrest shall have been issued, the magistrate issuing such warrant, or any justice of the supreme court, or any judge of either the court of appeals or superior court may indorse thereon an order signed by him and authorizing the service thereof by telegraph or teletype, and thereupon such warrant and order may be sent by telegraph or teletype to any marshal, sheriff, constable or policeman, and on the receipt of the telegraphic or teletype copy thereof by any such officer, he shall have the same authority and be under the same obligations to arrest, take into custody and detain the said person or persons, as if the said original warrant of arrest, with the proper direction for the service thereof, duly indorsed thereon, had been placed in his hands, and the said telegraphic or teletype copy shall be entitled to full faith and credit, and have the same force and effect in all courts and places as the original; but prior to indictment and conviction, no such order shall be made by any officer, unless in his judgment there is probable cause to believe the said accused person or persons guilty of the offense charged: PROVIDED, That the making of such order by any officer aforesaid, shall be prima facie evidence of the regularity thereof, and of all the proceedings prior thereto. The original warrant and order, or a copy thereof, certified by the officer making the order, shall be preserved in the telegraph office or police agency from which the same is sent, and in telegraphing or teletyping the same, the original or the said certified copy may be used. [1971 c 81 § 48; 1967 c 91 § 1; Code 1881 § 2357; 1865 p 75 § 16; RRS § 2081. Formerly RCW 10.31.060 through 10.31.090.] 10.31.100 10.31.100 Arrest without warrant. A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the pres[Title 10 RCW—page 23] 10.31.100 Title 10 RCW: Criminal Procedure ence of the officer, except as provided in subsections (1) through (10) of this section. (1) Any police officer having probable cause to believe that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property or the unlawful taking of property or involving the use or possession of cannabis, or involving the acquisition, possession, or consumption of alcohol by a person under the age of twenty-one years under RCW 66.44.270, or involving criminal trespass under RCW 9A.52.070 or 9A.52.080, shall have the authority to arrest the person. (2) A police officer shall arrest and take into custody, pending release on bail, personal recognizance, or court order, a person without a warrant when the officer has probable cause to believe that: (a) An order has been issued of which the person has knowledge under RCW 26.44.063, or chapter 7.90, 10.99, 26.09, 26.10, 26.26, 26.50, or 74.34 RCW restraining the person and the person has violated the terms of the order restraining the person from acts or threats of violence, or restraining the person from going onto the grounds of or entering a residence, workplace, school, or day care, or prohibiting the person from knowingly coming within, or knowingly remaining within, a specified distance of a location or, in the case of an order issued under RCW 26.44.063, imposing any other restrictions or conditions upon the person; or (b) A foreign protection order, as defined in RCW 26.52.010, has been issued of which the person under restraint has knowledge and the person under restraint has violated a provision of the foreign protection order prohibiting the person under restraint from contacting or communicating with another person, or excluding the person under restraint from a residence, workplace, school, or day care, or prohibiting the person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or a violation of any provision for which the foreign protection order specifically indicates that a violation will be a crime; or (c) The person is sixteen years or older and within the preceding four hours has assaulted a family or household member as defined in RCW 10.99.020 and the officer believes: (i) A felonious assault has occurred; (ii) an assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or (iii) that any physical action has occurred which was intended to cause another person reasonably to fear imminent serious bodily injury or death. Bodily injury means physical pain, illness, or an impairment of physical condition. When the officer has probable cause to believe that family or household members have assaulted each other, the officer is not required to arrest both persons. The officer shall arrest the person whom the officer believes to be the primary physical aggressor. In making this determination, the officer shall make every reasonable effort to consider: (i) The intent to protect victims of domestic violence under RCW 10.99.010; (ii) the comparative extent of injuries inflicted or serious threats creating fear of physical injury; and (iii) the history of domestic violence between the persons involved. (3) Any police officer having probable cause to believe that a person has committed or is committing a violation of [Title 10 RCW—page 24] any of the following traffic laws shall have the authority to arrest the person: (a) RCW 46.52.010, relating to duty on striking an unattended car or other property; (b) RCW 46.52.020, relating to duty in case of injury to or death of a person or damage to an attended vehicle; (c) RCW 46.61.500 or 46.61.530, relating to reckless driving or racing of vehicles; (d) RCW 46.61.502 or 46.61.504, relating to persons under the influence of intoxicating liquor or drugs; (e) RCW 46.20.342, relating to driving a motor vehicle while operator’s license is suspended or revoked; (f) RCW 46.61.5249, relating to operating a motor vehicle in a negligent manner. (4) A law enforcement officer investigating at the scene of a motor vehicle accident may arrest the driver of a motor vehicle involved in the accident if the officer has probable cause to believe that the driver has committed in connection with the accident a violation of any traffic law or regulation. (5) Any police officer having probable cause to believe that a person has committed or is committing a violation of RCW 79A.60.040 shall have the authority to arrest the person. (6) An officer may act upon the request of a law enforcement officer in whose presence a traffic infraction was committed, to stop, detain, arrest, or issue a notice of traffic infraction to the driver who is believed to have committed the infraction. The request by the witnessing officer shall give an officer the authority to take appropriate action under the laws of the state of Washington. (7) Any police officer having probable cause to believe that a person has committed or is committing any act of indecent exposure, as defined in RCW 9A.88.010, may arrest the person. (8) A police officer may arrest and take into custody, pending release on bail, personal recognizance, or court order, a person without a warrant when the officer has probable cause to believe that an order has been issued of which the person has knowledge under chapter 10.14 RCW and the person has violated the terms of that order. (9) Any police officer having probable cause to believe that a person has, within twenty-four hours of the alleged violation, committed a violation of RCW 9A.50.020 may arrest such person. (10) A police officer having probable cause to believe that a person illegally possesses or illegally has possessed a firearm or other dangerous weapon on private or public elementary or secondary school premises shall have the authority to arrest the person. For purposes of this subsection, the term "firearm" has the meaning defined in RCW 9.41.010 and the term "dangerous weapon" has the meaning defined in RCW 9.41.250 and 9.41.280(1) (c) through (e). (11) Except as specifically provided in subsections (2), (3), (4), and (6) of this section, nothing in this section extends or otherwise affects the powers of arrest prescribed in Title 46 RCW. (12) No police officer may be held criminally or civilly liable for making an arrest pursuant to RCW 10.31.100 (2) or (8) if the police officer acts in good faith and without malice. [2006 c 138 § 23; 2000 c 119 § 4; 1999 c 184 § 14; 1997 c 66 (2006 Ed.) Fugitives of This State § 10; 1996 c 248 § 4. Prior: 1995 c 246 § 20; 1995 c 184 § 1; 1995 c 93 § 1; prior: 1993 c 209 § 1; 1993 c 128 § 5; 1988 c 190 § 1; prior: 1987 c 280 § 20; 1987 c 277 § 2; 1987 c 154 § 1; 1987 c 66 § 1; prior: 1985 c 303 § 9; 1985 c 267 § 3; 1984 c 263 § 19; 1981 c 106 § 1; 1980 c 148 § 8; 1979 ex.s. c 28 § 1; 1969 ex.s. c 198 § 1.] Short title—2006 c 138: See RCW 7.90.900. Application—2000 c 119: See note following RCW 26.50.021. Short title—Severability—1999 c 184: See RCW 26.52.900 and 26.52.902. 10.37.015 state. Whenever an application shall be made to the governor for the appointment of an agent he may require the official submitting the same to provide whatever information is necessary prior to approval of the application. [1993 c 442 § 1; 1967 c 91 § 2; 1891 c 28 § 98; Code 1881 § 971; 1873 p 217 § 157; 1854 p 102 § 5; RRS § 2241.] Effective date—1993 c 442: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1993." [1993 c 442 § 2.] Severability—1995 c 246: See note following RCW 26.50.010. Effective date—1995 c 184: "This act shall take effect January 1, 1996. Prior to that date, law enforcement agencies, prosecuting authorities, and local governments are encouraged to develop and adopt arrest and charging guidelines regarding criminal trespass." [1995 c 184 § 2.] Severability—Effective date—1993 c 128: See RCW 9A.50.901 and 9A.50.902. Severability—1987 c 280: See RCW 10.14.900. Effective date—Severability—1984 c 263: See RCW 26.50.901, 26.50.902. Arrest procedure involving traffic violations: Chapter 46.64 RCW. Domestic violence, peace officers—Immunity: RCW 26.50.140. Uniform Controlled Substances Act: Chapter 69.50 RCW. Chapter 10.34 Chapter 10.34 RCW FUGITIVES OF THIS STATE Sections 10.34.010 10.34.020 10.34.030 Officer may arrest defendant in any county. Escape—Retaking prisoner—Authority. Escape—Retaking in foreign state—Extradition agents. Escape: Chapter 9A.76 RCW. Extradition and fresh pursuit: Chapter 10.88 RCW. Return of parole violators from another state: RCW 9.95.280 through 9.95.300. Chapter 10.37 Chapter 10.37 RCW ACCUSATIONS AND THEIR REQUISITES Sections 10.37.010 10.37.015 10.37.040 10.37.050 10.37.052 10.37.054 10.37.056 10.37.060 10.37.070 10.37.080 10.37.090 10.37.100 10.37.110 10.37.120 10.37.130 10.37.140 10.37.150 10.37.160 10.37.170 10.37.190 Pleadings required in criminal proceedings. Charge by information or indictment—Exceptions. Indictment—Form. Indictment or information—Sufficiency. Indictment or information—Requisites. Indictment or information—Certainty. Indictment or information—Certain defects or imperfections deemed immaterial. Indictment or information—Separation into counts—Consolidation. Animals—Description of. Forgery—Description of instrument. Injury to person or intention concerning. Judgment, how pleaded. Larceny or embezzlement—Specification. Libel—Innuendos—Publication. Obscene literature—Description. Perjury—Subornation of perjury—Description of matter. Presumptions of law need not be stated. Statute—Exact words need not be used. Statute, private—Description. Words and phrases—How used. Rules of court: Rights of dependents—CrR 3.1 through 3.6. Ownership of property, proof of: RCW 10.58.060. 10.34.010 10.34.010 Officer may arrest defendant in any county. If any person against whom a warrant may be issued for an alleged offense, committed in any county, shall either before or after the issuing of such warrant, escape from, or be out of the county, the sheriff or other officer to whom such warrant may be directed, may pursue and apprehend the party charged, in any county in this state, and for that purpose may command aid, and exercise the same authority as in his own county. [Code 1881 § 1922; 1873 p 394 § 220; 1854 p 107 § 28; RRS § 1950.] 10.34.020 10.34.020 Escape—Retaking prisoner—Authority. If a person arrested escape or be rescued, the person from whose custody he made his escape, or was rescued, may immediately pursue and retake him at any time, and within any place in the state. To retake the person escaping or rescued, the person pursuing has the same power to command assistance as given in cases of arrest. [Code 1881 § 1032; 1873 p 229 § 212; 1854 p 114 § 76; RRS § 2085.] 10.34.030 10.34.030 Escape—Retaking in foreign state— Extradition agents. The governor may appoint agents to make a demand upon the executive authority of any state or territory for the surrender of any fugitive from justice, or any other person charged with a felony or any other crime in this (2006 Ed.) 10.37.010 10.37.010 Pleadings required in criminal proceedings. No pleading other than an indictment, information or complaint shall be required on the part of the state in any criminal proceedings in any court of the state, and when such pleading is in the manner and form as provided by law the defendant shall be required to plead thereto as prescribed by law without any further action or proceedings of any kind on the part of the state. [1925 ex.s. c 150 § 3; RRS § 2050-1. FORMER PARTS OF SECTION: (i) 1927 c 103 § 1; Code 1881 § 764; RRS § 2023, now codified as RCW 10.37.015. (ii) 1909 c 87 § 1; 1891 c 117 § 1; 1890 p 100 § 1; RRS § 2024, now codified as RCW 10.37.026. (iii) 1891 c 28 § 19; Code 1881 § 1003; 1873 p 224 § 186; 1869 p 240 § 181; RRS § 2054, now codified as RCW 10.37.025.] 10.37.015 10.37.015 Charge by information or indictment— Exceptions. No person shall be held to answer in any court for an alleged crime or offense, unless upon an information filed by the prosecuting attorney, or upon an indictment by a grand jury, except in cases of misdemeanor or gross misdemeanor before a district or municipal judge, or before a court martial. [1987 c 202 § 167; 1927 c 103 § 1; Code 1881 § 764; RRS § 2023. Formerly RCW 10.37.010, part.] Intent—1987 c 202: See note following RCW 2.04.190. [Title 10 RCW—page 25] 10.37.040 Title 10 RCW: Criminal Procedure 10.37.040 10.37.040 Indictment—Form. The indictment may be substantially in the following form: State of Washington v. A. . . . . . B. . . . . .        Superior Court of the State of Washington for the County of ................ A. B. is accused by the grand jury of the . . . . . . . . . ., by this indictment, of the crime of [here insert the name of the crime, if it have one, such as treason, murder, arson, manslaughter, or the like; or if it be a crime having no general name, such as libel, assault and battery, and the like, insert a brief description of it as given by law], committed as follows: The said A. B. on the . . . . day of . . . . . ., 19. . ., in the county of . . . . . ., aforesaid, [here set forth the act charged as a crime.] Dated at . . . . . ., in the county aforesaid, the . . . . day of . . . . . ., A.D. 19. . . (Signed) C. D., Prosecuting Attorney. (Indorsed) A true bill. (Signed) E. F., Foreman of the Grand Jury. [1891 c 28 § 21; Code 1881 § 1005; 1873 p 225 § 188; 1869 p 240 § 183; RRS § 2056.] § 30; Code 1881 § 1015; 1873 p 227 § 198; 1869 p 242 § 193; RRS § 2066, now codified as RCW 10.37.056.] Intent—2000 c 92: See note following RCW 10.73.170. 10.37.052 10.37.052 Indictment or information—Requisites. The indictment or information must contain— (1) The title of the action, specifying the name of the court to which the indictment or information is presented and the names of the parties; (2) A statement of the acts constituting the offense, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended. [1891 c 28 § 20; Code 1881 § 1004; 1873 p 224 § 187; 1869 p 240 § 182; RRS § 2055. Formerly RCW 10.37.050, part.] 10.37.054 10.37.054 Indictment or information—Certainty. The indictment or information must be direct and certain as it regards: (1) The party charged; (2) The crime charged; and (3) The particular circumstances of the crime charged, when they are necessary to constitute a complete crime. [1891 c 28 § 22; Code 1881 § 1006; 1873 p 225 § 189; 1869 p 241 § 184; 1854 p 112 § 61; RRS § 2057. Formerly RCW 10.37.050, part.] 10.37.050 10.37.050 Indictment or information—Sufficiency. The indictment or information is sufficient if it can be understood therefrom— (1) That it is entitled in a court having authority to receive it; (2) That it was found by a grand jury or prosecuting attorney of the county in which the court was held; (3) That the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name or by reference to a unique genetic sequence of deoxyribonucleic acid, with the statement that his real name is unknown; (4) That the crime was committed within the jurisdiction of the court, except where, as provided by law, the act, though done without the county in which the court is held, is triable therein; (5) That the crime was committed at some time previous to the finding of the indictment or filing of the information, and within the time limited by law for the commencement of an action therefor; (6) That the act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended; (7) The act or omission charged as the crime is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case. [2000 c 92 § 3; 1891 c 28 § 29; Code 1881 § 1014; 1873 p 226 § 197; 1869 p 242 § 192; RRS § 2065. FORMER PARTS OF SECTION: (i) 1891 c 28 § 20; Code 1881 § 1004; 1873 p 224 § 187; 1869 p 240 § 182; RRS § 2055, now codified as RCW 10.37.052. (ii) 1891 c 28 § 22; Code 1881 § 1006; 1873 p 225 § 189; 1854 p 112 § 61; 1869 p 241 § 184; RRS § 2057, now codified as RCW 10.37.054. (iii) 1891 c 28 [Title 10 RCW—page 26] 10.37.056 10.37.056 Indictment or information—Certain defects or imperfections deemed immaterial. No indictment or information is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of any of the following matters, which were formerly deemed defects or imperfections: (1) For want of an allegation of the time or place of any material fact, when the time and place have been once stated; (2) For the omission of any of the following allegations, namely: "With force and arms," "contrary to the form of the statute or the statutes," or "against the peace and dignity of the state;" (3) For the omission to allege that the grand jury was impaneled, sworn, or charged; (4) For any surplusage or repugnant allegation or for any repetition, when there is sufficient matter alleged to indicate clearly the offense and the person charged; nor (5) For any other matter which was formerly deemed a defect or imperfection, but which does not tend to the prejudice of the substantial rights of the defendant upon the merits. [1891 c 28 § 30; Code 1881 § 1015; 1873 p 227 § 198; 1869 p 242 § 193; RRS § 2066. Formerly RCW 10.37.050, part.] Ownership of property, proof of: RCW 10.58.060. 10.37.060 10.37.060 Indictment or information—Separation into counts—Consolidation. When there are several charges against any person, or persons, for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments or informations the whole may be joined in one indictment, or information, in separate counts; and, if two or more indictments are found, or (2006 Ed.) Accusations and Their Requisites two or more informations filed, in such cases, the court may order such indictments or informations to be consolidated. [1925 ex.s. c 109 § 1; 1891 c 28 § 24; Code 1881 § 1008; 1873 p 225 § 191; 1869 p 241 § 186; RRS § 2059.] 10.37.190 state generally that the same was published concerning him; and the fact that it was so published must be established on the trial. [1891 c 28 § 34; Code 1881 § 1019; 1873 p 227 § 202; 1869 p 243 § 197; RRS § 2070.] Libel: Chapter 9.58 RCW. 10.37.070 10.37.070 Animals—Description of. When the crime involves the taking of or injury to an animal the indictment or information is sufficiently certain in that respect if it describes the animal by the common name of its class. [1891 c 28 § 26; Code 1881 § 1011; 1873 p 226 § 194; 1869 p 241 § 189; RRS § 2062.] Crimes relating to animals: Chapter 9.08 RCW. Larceny: Chapter 9A.56 RCW. 10.37.080 Forgery—Description of instrument. When an instrument which is the subject of an indictment or information for forgery has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the indictment or information, and established on the trial, the misdescription of the instrument is immaterial. [1891 c 28 § 35; Code 1881 § 1020; 1873 p 227 § 203; 1854 p 113 § 68; RRS § 2071.] 10.37.080 Forgery: Chapter 9A.60 RCW. 10.37.090 10.37.090 Injury to person or intention concerning. When the crime involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not material. [Code 1881 § 1010; 1873 p 226 § 193; 1869 p 241 § 188; RRS § 2061.] 10.37.130 10.37.130 Obscene literature—Description. An indictment or information for exhibiting, publishing, passing, selling, or offering to sell, or having in possession with such intent, any lewd or obscene book, pamphlet, picture, print, card, paper, or writing, need not set forth any portion of the language used or figures shown upon such book, pamphlet, picture, print, card, paper, or writing, but it is sufficient to state generally the fact of the lewdness or obscenity thereof. [1891 c 28 § 39; Code 1881 § 1024; RRS § 2075.] Obscenity: Chapter 9.68 RCW. 10.37.140 10.37.140 Perjury—Subornation of perjury— Description of matter. In an indictment or information for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the crime was committed, and in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment or information need not set forth the pleadings, record or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed. [1891 c 28 § 36; Code 1881 § 1021; 1873 p 228 § 204; 1869 p 243 § 199; 1854 p 112 § 67; RRS § 2072.] Perjury: Chapter 9A.72 RCW. 10.37.100 10.37.100 Judgment, how pleaded. In pleading a judgment or other determination of or proceeding before a court or officer of special jurisdiction, it is not necessary to state in the indictment or information the facts conferring jurisdiction; but the judgment, determination or proceeding may be stated to have been duly given or made. The facts conferring jurisdiction, however, must be established on the trial. [1891 c 28 § 32; Code 1881 § 1017; 1873 p 227 § 200; 1869 p 242 § 195; 1854 p 112 § 65; RRS § 2068.] 10.37.110 10.37.110 Larceny or embezzlement—Specification. In an indictment or information for larceny or embezzlement of money, bank notes, certificates of stock, or valuable securities, or for a conspiracy to cheat or defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock, or valuable securities, without specifying the coin, number, denomination or kind thereof. [1891 c 28 § 38; Code 1881 § 1023; RRS § 2074.] Larceny: Chapter 9A.56 RCW. 10.37.150 10.37.150 Presumptions of law need not be stated. Neither presumptions of law nor matters of which judicial notice is taken need be stated in an indictment or information. [1891 c 28 § 31; Code 1881 § 1016; 1873 p 227 § 199; 1869 p 242 § 194; RRS § 2067.] 10.37.160 10.37.160 Statute—Exact words need not be used. Words used in a statute to define a crime need not be strictly pursued in the indictment or information, but other words conveying the same meaning may be used. [1891 c 28 § 28; Code 1881 § 1013; 1873 p 226 § 196; 1869 p 241 § 191; RRS § 2064.] 10.37.170 10.37.170 Statute, private—Description. In pleading a private statute, or right derived therefrom, it is sufficient to refer, in the indictment or information, to the statute by its title and the day of its passage, and the court must thereupon take judicial notice thereof. [1891 c 28 § 33; Code 1881 § 1018; 1873 p 227 § 201; 1869 p 243 § 196; 1854 p 112 § 66; RRS § 2069.] Ownership of property, proof of: RCW 10.58.060. 10.37.190 10.37.120 Libel—Innuendos—Publication. An indictment or information for libel need not set forth any extrinsic facts, for the purpose of showing the application to the party libeled of the defamatory matter on which the indictment or information is founded; but it is sufficient to 10.37.120 (2006 Ed.) 10.37.190 Words and phrases—How used. The words used in an indictment or information must be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning. [1891 c 28 § 27; Code 1881 § 1012; 1873 p 227 § 195; 1869 p 241 § 190; RRS § 2063.] [Title 10 RCW—page 27] Chapter 10.40 Chapter 10.40 Title 10 RCW: Criminal Procedure Chapter 10.40 RCW ARRAIGNMENT Sections 10.40.050 10.40.060 10.40.070 10.40.075 10.40.090 10.40.100 10.40.110 10.40.120 10.40.125 10.40.140 10.40.170 10.40.180 10.40.190 10.40.200 Entry and use of true name. Pleading to arraignment. Motion to set aside indictment. Motion to set aside indictment—Grounds not allowed, when. Sustaining motion—Effect of. Overruling motion—Pleading over. Demurrer to indictment or information. Sustaining demurrer—When final. Sustaining demurrer, etc.—When not final. Overruling demurrer—Pleading over. Plea of guilty. Plea of not guilty. Refusal to answer. Deportation of aliens upon conviction—Advisement—Legislative intent. Rules of court: Arraignment—CrR 4.1. 10.40.100 10.40.100 Overruling motion—Pleading over. If the motion to set aside the indictment [or information] be denied, the defendant must immediately answer the indictment or information, either by demurring or pleading thereto. [1891 c 28 § 52; Code 1881 § 1048; RRS § 2102.] 10.40.110 10.40.110 Demurrer to indictment or information. The defendant may demur to the indictment or information when it appears upon its face either— (1) That it does not substantially conform to the requirements of this code; (2) [That] more than one crime is charged; (3) That the facts charged do not constitute a crime; (4) That the indictment or information contains any matter which, if true, would constitute a defense or other legal bar to the action. [1891 c 28 § 55; Code 1881 § 1051; RRS § 2105.] 10.40.050 10.40.050 Entry and use of true name. If he alleges that another name is his true name it must be entered in the minutes of the court, and the subsequent proceedings on the indictment or information may be had against him by that name, referring also to the name by which he is indicted or informed against. [1891 c 28 § 49; Code 1881 § 1065; 1873 p 232 § 227; 1854 p 116 § 91; RRS § 2097.] Action on discovery of true name: RCW 10.46.060. 10.40.120 10.40.120 Sustaining demurrer—When final. If the demurrer is sustained because the indictment or information contains matter which is a legal defense or bar to the action, the judgment shall be final, and the defendant must be discharged. [1891 c 28 § 56; Code 1881 § 1052; RRS § 2106. FORMER PART OF SECTION: 1891 c 28 § 61; Code 1881 § 1060; RRS § 2114, now codified as RCW 10.40.125.] 10.40.060 10.40.060 Pleading to arraignment. In answer to the arraignment, the defendant may move to set aside the indictment or information, or he may demur or plead to it, and is entitled to one day after arraignment in which to answer thereto if he demand it. [1891 c 28 § 50; Code 1881 § 1045; RRS § 2098.] 10.40.070 10.40.070 Motion to set aside indictment. The motion to set aside the indictment can be made by the defendant on one or more of the following grounds, and must be sustained: (1) When any person, other than the grand jurors, was present before the grand jury when the question was taken upon the finding of the indictment, or when any person, other than the grand jurors, was present before the grand jury during the investigation of the charge, except as required or permitted by law; (2) If the grand jury were not selected, drawn, summoned, impaneled, or sworn as prescribed by law. [1983 c 3 § 12; 1957 c 10 § 1; Code 1881 § 1046; RRS § 2099. FORMER PART OF SECTION: Code 1881 § 1047; RRS § 2100, now codified as RCW 10.40.075.] 10.40.125 10.40.125 Sustaining demurrer, etc.—When not final. The judgment for the defendant on a demurrer to the indictment or information, except where it is otherwise provided, or for an objection taken at the trial to its form or substance, or for variance between the indictment or information and the proof, shall not bar another prosecution for the same offense. [1891 c 28 § 61; Code 1881 § 1060; RRS § 2114. Formerly RCW 10.40.120, part.] 10.40.140 10.40.140 Overruling demurrer—Pleading over. If the demurrer is overruled the defendant has a right to put in a plea. If he fails to do so, judgment may be rendered against him on the demurrer, and, if necessary, a jury may be impaneled to inquire and ascertain the degree of the offense. [Code 1881 § 1053; RRS § 2107.] 10.40.170 10.40.170 Plea of guilty. The plea of guilty can only be put in by the defendant himself in open court. [Code 1881 § 1056; RRS § 2110. FORMER PART OF SECTION: Code 1881 § 1057; RRS § 2111, now codified as RCW 10.40.175.] 10.40.180 10.40.075 10.40.075 Motion to set aside indictment—Grounds not allowed, when. The ground of the motion to set aside the indictment mentioned in the fourth subdivision of RCW 10.40.070 is not allowed to a defendant who has been held to answer before indictment. [Code 1881 § 1047; RRS § 2100. Formerly RCW 10.40.070, part.] 10.40.180 Plea of not guilty. The plea of not guilty is a denial of every material allegation in the indictment or information; and all matters of fact may be given in evidence under it, except a former conviction or acquittal. [1891 c 28 § 59; Code 1881 § 1058; RRS § 2112.] 10.40.190 10.40.090 10.40.090 Sustaining motion—Effect of. An order to set aside the indictment or information as provided in this chapter shall be no bar to a future prosecution for the same offense. [1891 c 28 § 54; Code 1881 § 1050; RRS § 2104.] [Title 10 RCW—page 28] 10.40.190 Refusal to answer. If the defendant fail or refuse to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered by the court. [1891 c 28 § 62; Code 1881 § 1061; 1873 p 232 § 224; 1854 p 116 § 88; RRS § 2115.] (2006 Ed.) Former Acquittal or Conviction 10.40.200 Deportation of aliens upon conviction— Advisement—Legislative intent. (1) The legislature finds and declares that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea. It is further the intent of the legislature that at the time of the plea no defendant be required to disclose his or her legal status to the court. (2) Prior to acceptance of a plea of guilty to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall determine that the defendant has been advised of the following potential consequences of conviction for a defendant who is not a citizen of the United States: Deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. A defendant signing a guilty plea statement containing the advisement required by this subsection shall be presumed to have received the required advisement. If, after September 1, 1983, the defendant has not been advised as required by this section and the defendant shows that conviction of the offense to which the defendant pleaded guilty may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty and enter a plea of not guilty. Absent a written acknowledgement by the defendant of the advisement required by this subsection, the defendant shall be presumed not to have received the required advisement. (3) With respect to pleas accepted prior to September 1, 1983, it is not the intent of the legislature that a defendant’s failure to receive the advisement required by subsection (2) of this section should require the vacation of judgment and withdrawal of the plea or constitute grounds for finding a prior conviction invalid. [1983 c 199 § 1.] 10.40.200 Notice to courts—Rules—Forms: "The administrative office of the courts shall notify all courts of the requirements contained in RCW 10.40.200. The judicial council shall recommend to the supreme court appropriate court rules to ensure compliance with the requirements of RCW 10.40.200. Until court rules are promulgated, the administrative office of the courts shall develop and distribute forms necessary for the courts to comply with RCW 10.40.200." [2005 c 282 § 21; 1983 c 199 § 2.] Effective date—1983 c 199 § 1: "Section 1 of this act shall take effect on September 1, 1983." [1983 c 199 § 3.] Double jeopardy: State Constitution Art. 1 § 9. 10.43.020 10.43.020 Offense embraces lower degree and included offenses. When the defendant has been convicted or acquitted upon an indictment or information of an offense consisting of different degrees, the conviction or acquittal shall be a bar to another indictment or information for the offense charged in the former, or for any lower degree of that offense, or for an offense necessarily included therein. [1891 c 28 § 74; Code 1881 § 1096; 1873 p 238 § 257; 1854 p 120 § 121; RRS § 2166.] Bar as to prosecution for same crime in another degree, or attempt: RCW 10.43.050. 10.43.030 Conviction or acquittal in other county. Whenever, upon the trial of any person for a crime, it shall appear that the defendant has already been acquitted or convicted upon the merits, of the same crime, in a court having jurisdiction of such offense in another county of this state, such former acquittal or conviction is a sufficient defense. [1909 c 249 § 20; RRS § 2272.] 10.43.030 10.43.040 Foreign conviction or acquittal. Whenever, upon the trial of any person for a crime, it appears that the offense was committed in another state or country, under such circumstances that the courts of this state had jurisdiction thereof, and that the defendant has already been acquitted or convicted upon the merits, in a judicial proceeding conducted under the criminal laws of such state or country, founded upon the act or omission with respect to which he is upon trial, such former acquittal or conviction is a sufficient defense. Nothing in this section affects or prevents a prosecution in a court of this state of any person who has received administrative or nonjudicial punishment, civilian or military, in another state or country based upon the same act or omission. [1999 c 141 § 1; 1909 c 249 § 19; RRS § 2271.] 10.43.040 10.43.050 Acquittal, when a bar. No order of dismissal or directed verdict of not guilty on the ground of a variance between the indictment or information and the proof, or on the ground of any defect in such indictment or information, shall bar another prosecution for the same offense. Whenever a defendant shall be acquitted or convicted upon an indictment or information charging a crime consisting of different degrees, he cannot be proceeded against or tried for the same crime in another degree, nor for an attempt to commit such crime, or any degree thereof. [1909 c 249 § 64; Code 1881 § 769; RRS § 2316.] 10.43.050 Offense embraces lower degree and included offenses: RCW 10.43.020. Ownership of property—Proof of: RCW 10.58.060. Chapter 10.46 Chapter 10.43 RCW FORMER ACQUITTAL OR CONVICTION Chapter 10.43 Sections 10.43.020 10.43.030 10.43.040 10.43.050 Offense embraces lower degree and included offenses. Conviction or acquittal in other county. Foreign conviction or acquittal. Acquittal, when a bar. Discharge of codefendant as bar to further prosecution: RCW 10.46.110. (2006 Ed.) Chapter 10.46 Chapter 10.46 RCW SUPERIOR COURT TRIAL Sections 10.46.020 10.46.060 10.46.070 10.46.080 10.46.085 10.46.110 10.46.190 Trial docket. True name inserted in proceedings. Conduct of trial—Generally. Continuances. Continuances not permitted in certain cases. Discharging defendant to give evidence. Liability of convicted person for costs—Jury fee. [Title 10 RCW—page 29] 10.46.020 10.46.200 10.46.210 10.46.220 10.46.230 Title 10 RCW: Criminal Procedure Costs allowed to acquitted or discharged defendant. Taxation of costs on acquittal or discharge—Generally—Frivolous complaints. Cost bills in felony cases—Certification. Cost bills in felony cases—Payment. Criminal rules for superior court: Rules of court: Superior Court Criminal Rules (CrR). Superior court rules: State Constitution Art. 4 § 24. 10.46.020 Trial docket. The clerk shall, in preparing the docket of criminal cases, enumerate the indictments and informations pending according to the date of their filing, specifying opposite to the title of each action whether it be for a felony or misdemeanor, and whether the defendant be in custody or on bail; and shall, in like manner, enter therein all indictments and informations on which issues of fact are joined, all cases brought to the court on change of venue from other counties, and all cases pending upon appeal from inferior courts. [1891 c 28 § 65; Code 1881 § 1044; 1873 p 231 § 222; 1854 p 115 § 86; RRS § 2134.] 10.46.020 10.46.060 True name inserted in proceedings. When a defendant is designated in the indictment or information by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it may be inserted in the subsequent proceedings, referring to the fact of his being indicted or informed against by the name mentioned in the indictment or information. [1891 c 28 § 23; Code 1881 § 1007; 1873 p 225 § 190; 1869 p 241 § 185; RRS § 2058.] 10.46.060 cretion finds that there are substantial and compelling reasons for a continuance of the trial date and that the benefit of the postponement outweighs the detriment to the victim. The court may consider the testimony of lay witnesses and of expert witnesses, if available, regarding the impact of the continuance on the victim. [1989 c 332 § 7.] Finding—1989 c 332: "The legislature finds that treatment of the emotional problems of child sexual abuse victims may be impaired by lengthy delay in trial of the accused and the resulting delay in testimony of the child victim. The trauma of the abusive incident is likely to be exacerbated by requiring testimony from a victim who has substantially completed therapy and is forced to relive the incident. The legislature finds that it is necessary to prevent, to the extent reasonably possible, lengthy and unnecessary delays in trial of a person charged with abuse of a minor." [1989 c 332 § 6.] 10.46.110 10.46.110 Discharging defendant to give evidence. When two or more persons are included in one prosecution, the court may, at any time before the defendant has gone into his defense, direct any defendant to be discharged, that he may be a witness for the state. A defendant may also, when there is not sufficient evidence to put him on his defense, at any time before the evidence is closed, be discharged by the court, for the purpose of giving evidence for a codefendant. The order of discharge is a bar to another prosecution for the same offense. [Code 1881 § 1092; 1873 p 237 § 253; 1854 p 120 § 117; RRS § 2162.] Conviction or acquittal—Several defendants: RCW 10.61.035. 10.46.070 Conduct of trial—Generally. The court shall decide all questions of law which shall arise in the course of the trial, and the trial shall be conducted in the same manner as in civil actions. [1891 c 28 § 70; Code 1881 § 1088; 1873 p 237 § 249; 1854 p 119 § 111; RRS § 2158. FORMER PART OF SECTION: 1891 c 28 § 66, part; Code 1881 § 1078; 1873 p 236 § 239; 1854 p 118 § 101; RRS § 2137, part, now codified as RCW 10.49.020.] 10.46.190 Liability of convicted person for costs— Jury fee. Every person convicted of a crime or held to bail to keep the peace shall be liable to all the costs of the proceedings against him or her, including, when tried by a jury in the superior court or before a committing magistrate, a jury fee as provided for in civil actions for which judgment shall be rendered and collected. The jury fee, when collected for a case tried by the superior court, shall be paid to the clerk and applied as the jury fee in civil cases is applied. [2005 c 457 § 12; 1977 ex.s. c 248 § 1; 1977 ex.s. c 53 § 1; 1961 c 304 § 8; Code 1881 § 2105; 1869 p 418 § 3; RRS § 2227.] Rules of court: This section superseded, in part, by CrR 6. See comment preceding CrR 6.1. Disposition of fines and costs: Chapter 10.82 RCW. True name: RCW 10.40.050. 10.46.070 10.46.080 Continuances. A continuance may be granted in any case on the ground of the absence of evidence on the motion of the defendant supported by affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it; and also the name and place of residence of the witness or witnesses; and the substance of the evidence expected to be obtained, and if the prosecuting attorney admit that such evidence would be given, and that it be considered as actually given on the trial or offered and overruled as improper the continuance shall not be granted. [Code 1881 § 1077; 1877 p 206 § 7; RRS § 2135.] 10.46.080 10.46.085 10.46.085 Continuances not permitted in certain cases. When a defendant is charged with a crime which constitutes a violation of RCW 9A.64.020 or chapter 9.68, 9.68A, or 9A.44 RCW, and the alleged victim of the crime is a person under the age of eighteen years, neither the defendant nor the prosecuting attorney may agree to extend the originally scheduled trial date unless the court within its dis[Title 10 RCW—page 30] 10.46.190 Intent—2005 c 457: See note following RCW 43.08.250. Jury fees: RCW 4.44.110, 36.18.020. in district court: RCW 10.04.050. 10.46.200 10.46.200 Costs allowed to acquitted or discharged defendant. No prisoner or person under recognizance who shall be acquitted by verdict or discharged because no indictment is found against him, or for want of prosecution, shall be liable for any costs or fees of any officer or for any charge of subsistence while he was in custody, but in every such case the fees of the defendant’s witnesses, and of the officers for services rendered at the request of the defendant; and charges for subsistence of the defendant while in custody shall be taxed and paid as other costs and charges in such cases. [Code 1881 § 1168; 1877 p 207 § 10; 1854 p 129 § 177; RRS § 2236.] 10.46.210 Taxation of costs on acquittal or discharge—Generally—Frivolous complaints. When any person shall be brought before a court or other committing magistrate of any county, city or town in this state, having 10.46.210 (2006 Ed.) Witnesses—Generally jurisdiction of the alleged offense, charged with the commission of a crime or misdemeanor, and such complaint upon examination shall appear to be unfounded, no costs shall be payable by such acquitted party, but the same shall be chargeable to the county, city or town for or in which the said complaint is triable, but if the court or other magistrate trying said charge, shall decide the complaint was frivolous or malicious, the judgment or verdict shall also designate who is the complainant, and may adjudge that said complainant pay the costs. In such cases a judgment shall thereupon be entered for the costs against said complainant, who shall stand committed until such costs be paid or discharged by due process of law. [1987 c 202 § 168; Code 1881 § 2103; 1869 p 418 § 1; RRS § 2225.] Intent—1987 c 202: See note following RCW 2.04.190. 10.46.220 10.46.220 Cost bills in felony cases—Certification. In all convictions for felony, whether capital or punishable by imprisonment in the penitentiary, the clerk of the superior court shall forthwith, after sentence, tax the costs in the case. The cost bill shall be made out in triplicate, and be examined by the prosecuting attorney of the county in which the trial was had. After which the judge of the superior court shall allow and approve such bill or so much thereof, as is allowable by law. The clerk of the superior court shall thereupon, under his hand, and under the seal of the court, certify said triplicate cost bills, and shall file one with the papers of cause, and shall transmit one to the administrator for the courts and one to the county auditor of the county in which said felony was committed. [1979 c 129 § 1; 1883 p 35 § 1; Code 1881 § 2106; RRS § 2228.] 10.46.230 10.46.230 Cost bills in felony cases—Payment. Upon the receipt of the cost bill, as provided for in the preceding section, the county auditor shall draw warrants for the amounts due each person, as certified in said cost bill, which warrants shall be paid as other county warrants are paid. On receipt of the certified copy of said cost bill, the administrator for the courts shall examine and audit said bill and allow the payment by the state of statutorily required witness fees in cases where conviction of a felony is obtained and the defendant is sentenced to pay a fine or is given a prison sentence even if the sentence is deferred or suspended. Payment shall be allowed by the administrator for the courts in such cases even when the conviction is subsequently reversed or if a new trial is granted. [1979 c 129 § 2; 1883 p 35 § 1; Code 1881 § 2107; 1873 p 250 § 316; RRS § 2229.] 10.52.060 10.52.040 10.52.040 Compelling witness to attend and testify— Accused as witness. Witnesses may be compelled to attend and testify before the grand jury; and witnesses on behalf of the state, or of the defendant, in a criminal prosecution, may be compelled to attend and testify in open court, if they have been subpoenaed, without their fees being first paid or tendered, unless otherwise provided by law; the court may, upon the motion of the prosecuting attorney or defense counsel, recognize witnesses, with or without sureties, to attend and testify at any hearing or trial in any criminal prosecution in any court of this state, or before the grand jury. In default of such recognizance, or in the event that surety is required and has not been obtained, the court shall require the appearance of the witness before the court and shall appoint counsel for the witness if he is indigent and then shall determine that the testimony of the witness would be material to either the prosecution or the defendant and that the witness would not attend the trial of the matter unless detained and, therefore, the court may direct that such witness shall be detained in the custody of the sheriff until the hearing or trial in which the witness is to testify: PROVIDED, That each witness detained for failure to obtain surety shall be paid, in addition to witness fees for actual appearance in court, for each day of his detention a sum equal to the daily jury fee paid to a juror serving in a superior court; and each witness in breach of recognizance and who is detained therefor shall be paid, in addition to witness fees for actual appearance in court, the sum of one dollar for each day of his detention. Any such witness shall be provided food and lodging while so detained. Any person accused of any crime in this state, by indictment, information, or otherwise, may, in the examination or trial of the cause, offer himself, or herself, as a witness in his or her own behalf, and shall be allowed to testify as other witnesses in such case, and when accused shall so testify, he or she shall be subject to all the rules of law relating to cross-examination of other witnesses: PROVIDED, That nothing in this code shall be construed to compel such accused person to offer himself or herself as a witness in such case. [1984 c 76 § 17; 1969 ex.s. c 143 § 1; 1915 c 83 § 1; 1891 c 28 § 69; Code 1881 § 1067; 1873 p 233 § 229; 1871 p 105 § 2; 1854 p 116 § 93; RRS § 2148. Formerly RCW 10.52.040, 10.52.050, 10.52.070, and 10.52.080.] Rules of court: See CrR 6.13, 6.14. Rights of accused persons: State Constitution Art. 1 §§ 9, 22 (Amendment 10). 10.52.060 Discharging defendant to give evidence: RCW 10.46.110. 10.52.060 Confrontation of witnesses. Every person accused of crime shall have the right to meet the witnesses produced against him face to face: PROVIDED, That whenever any witness whose deposition shall have been taken pursuant to law by a magistrate, in the presence of the defendant and his counsel, shall be absent, and cannot be found when required to testify upon any trial or hearing, so much of such deposition as the court shall deem admissible and competent shall be admitted and read as evidence in such case. [1909 c 249 § 54; RRS § 2306. Prior: Code 1881 § 765; 1873 p 180 § 2; 1869 p 198 § 2; 1859 p 104 § 2.] Salaried public officers shall not receive additional compensation as witness on behalf of employer, and in certain other cases: RCW 42.16.020. Reviser’s note: Caption for 1909 c 249 § 54 reads as follows: "SEC. 54. WITNESSES." Witnesses: Rules of court: ER 610, CrR 6.12, CrRLJ 6.12. Rights of accused persons: State Constitution Art. 1 § 22 (Amendment 10). Chapter 10.52 Chapter 10.52 RCW WITNESSES—GENERALLY Sections 10.52.040 10.52.060 10.52.090 10.52.100 (2006 Ed.) Compelling witness to attend and testify—Accused as witness. Confrontation of witnesses. Incriminating testimony not to be used. Identity of child victims of sexual assault not to be disclosed. [Title 10 RCW—page 31] 10.52.090 Title 10 RCW: Criminal Procedure 10.52.090 10.52.090 Incriminating testimony not to be used. In every case where it is provided in *this act that a witness shall not be excused from giving testimony tending to criminate himself, no person shall be excused from testifying or producing any papers or documents on the ground that his testimony may tend to criminate or subject him to a penalty or forfeiture; but he shall not be prosecuted or subjected to a penalty or forfeiture for or on account of any action, matter or thing concerning which he shall so testify, except for perjury or offering false evidence committed in such testimony. [1909 c 249 § 39; RRS § 2291.] Rules of court: Ordering immunity from prosecution—Incriminating testimony not to be used—CrR 6.14. *Reviser’s note: For meaning of "this act," see note following RCW 9.01.120. Bribery or corrupt solicitation: State Constitution Art. 2 § 30. Rights of accused persons: State Constitution Art. 1 §§ 9, 22 (Amendment 10). Witness not excused from giving testimony tending to incriminate himself in crimes concerning bribery: RCW 9.18.080. 10.52.100 10.52.100 Identity of child victims of sexual assault not to be disclosed. Child victims of sexual assault who are under the age of eighteen, have a right not to have disclosed to the public or press at any court proceeding involved in the prosecution of the sexual assault, the child victim’s name, address, location, photographs, and in cases in which the child victim is a relative or stepchild of the alleged perpetrator, identification of the relationship between the child and the alleged perpetrator. The court shall ensure that information identifying the child victim is not disclosed to the press or the public and that in the event of any improper disclosure the court shall make all necessary orders to restrict further dissemination of identifying information improperly obtained. Court proceedings include but are not limited to pretrial hearings, trial, sentencing, and appellate proceedings. The court shall also order that any portion of any court records, transcripts, or recordings of court proceedings that contain information identifying the child victim shall be sealed and not open to public inspection unless those identifying portions are deleted from the documents or tapes. [1992 c 188 § 9.] Findings—Intent—Severability—1992 c 188: See notes following RCW 7.69A.020. Chapter 10.55 Chapter 10.55 RCW WITNESSES OUTSIDE THE STATE (UNIFORM ACT) Sections 10.55.010 10.55.020 10.55.060 10.55.100 10.55.110 10.55.120 10.55.130 Definitions. Summoning witness in this state to testify in another state. Witness from another state summoned to testify in this state. Exemption of witness from arrest and service of process. Uniformity of interpretation. Short title. Severability—1943 c 218. 10.55.010 10.55.010 Definitions. "Witness" as used in this chapter shall include a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding. [Title 10 RCW—page 32] The word "state" shall include any territory of the United States and the District of Columbia. The word "summons" shall include a subpoena, order or other notice requiring the appearance of a witness. [1943 c 218 § 1; Rem. Supp. 1943 § 2150-1.] 10.55.020 10.55.020 Summoning witness in this state to testify in another state. If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certified under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution, or grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing. If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence, will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence and of any other state through which the witness may be required to travel by ordinary course of travel, at a time and place specified in the certificate. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein. If said certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him for said hearing; and the judge at the hearing being satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability may, in lieu of issuing subpoena or summons, order that said witness be forthwith taken into custody and delivered to an officer of the requesting state. If the witness, who is summoned as above provided, after being paid or tendered by some properly authorized person the sum of ten cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending and five dollars for each day, that he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state. [1943 c 218 § 2; Rem. Supp. 1943 § 2150-2. Formerly RCW 10.55.020, 10.55.030, 10.55.040, and 10.55.050.] (2006 Ed.) Evidence 10.55.060 10.55.060 Witness from another state summoned to testify in this state. If any person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness either for the prosecution or for the defense, in a criminal action pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. Said certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found. If the witness is summoned to attend and testify in this state he shall be tendered the sum of ten cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending and five dollars for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state. [1943 c 218 § 3; Rem. Supp. 1943 § 2150-3. Formerly RCW 10.55.060, 10.55.070, 10.55.080, and 10.55.090.] 10.55.100 10.55.100 Exemption of witness from arrest and service of process. If a person comes into this state in obedience to a summons directing him to attend and testify in this state he shall not while in this state pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons. If a person passes through this state while going to another state in obedience to a summons to attend and testify in that state or while returning therefrom, he shall not while so passing through this state be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons. [1943 c 218 § 4; Rem. Supp. 1943 § 2150-4.] 10.58.035 cumstances is held invalid, such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. [1943 c 218 § 7; Rem. Supp. 1943 § 2150-7.] Chapter 10.58 Chapter 10.58 RCW EVIDENCE Sections 10.58.010 10.58.020 10.58.030 10.58.035 10.58.040 10.58.060 10.58.080 Rules—Generally. Presumption of innocence—Conviction of lowest degree, when. Confession as evidence. Statement of defendant—Admissibility. Intent to defraud. Ownership—Proof of. View of place of crime permissible. Evidence generally: Title 5 RCW. material to homicide, search and seizure: RCW 10.79.015. 10.58.010 10.58.010 Rules—Generally. The rules of evidence in civil actions, so far as practicable, shall be applied to criminal prosecutions. [Code 1881 § 1071; 1873 p 234 § 233; 1854 p 117 § 97; RRS § 2152.] 10.58.020 10.58.020 Presumption of innocence—Conviction of lowest degree, when. Every person charged with the commission of a crime shall be presumed innocent until the contrary is proved by competent evidence beyond a reasonable doubt; and when an offense has been proved against him, and there exists a reasonable doubt as to which of two or more degrees he is guilty, he shall be convicted only of the lowest. [1909 c 249 § 56; 1891 c 28 § 91; Code 1881 § 767; 1854 p 76 § 3; RRS § 2308. Formerly RCW 10.58.020 and 10.61.020.] Conviction of attempts or lesser or included crimes: RCW 10.61.003, 10.61.006, 10.61.010. 10.58.030 10.58.030 Confession as evidence. The confession of a defendant made under inducement, with all the circumstances, may be given as evidence against him, except when made under the influence of fear produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony. [Code 1881 § 1070; 1873 p 234 § 232; 1854 p 117 § 96; RRS § 2151.] 10.58.035 10.55.110 10.55.110 Uniformity of interpretation. This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it. [1943 c 218 § 5; Rem. Supp. 1943 § 2150-5.] 10.55.120 10.55.120 Short title. This chapter may be cited as "Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings." [1943 c 218 § 6; Rem. Supp. 1943 § 2150-6.] 10.55.130 10.55.130 Severability—1943 c 218. If any provision of this chapter or the application thereof to any person or cir(2006 Ed.) 10.58.035 Statement of defendant—Admissibility. (1) In criminal and juvenile offense proceedings where independent proof of the corpus delicti is absent, and the alleged victim of the crime is dead or incompetent to testify, a lawfully obtained and otherwise admissible confession, admission, or other statement of the defendant shall be admissible into evidence if there is substantial independent evidence that would tend to establish the trustworthiness of the confession, admission, or other statement of the defendant. (2) In determining whether there is substantial independent evidence that the confession, admission, or other statement of the defendant is trustworthy, the court shall consider, but is not limited to: [Title 10 RCW—page 33] 10.58.040 Title 10 RCW: Criminal Procedure (a) Whether there is any evidence corroborating or contradicting the facts set out in the statement, including the elements of the offense; (b) The character of the witness reporting the statement and the number of witnesses to the statement; (c) Whether a record of the statement was made and the timing of the making of the record in relation to the making of the statement; and/or (d) The relationship between the witness and the defendant. (3) Where the court finds that the confession, admission, or other statement of the defendant is sufficiently trustworthy to be admitted, the court shall issue a written order setting forth the rationale for admission. (4) Nothing in this section may be construed to prevent the defendant from arguing to the jury or judge in a bench trial that the statement is not trustworthy or that the evidence is otherwise insufficient to convict. [2003 c 179 § 1.] 10.58.040 10.58.040 Intent to defraud. Whenever an intent to defraud shall be made an element of an offense, it shall be sufficient if an intent appears to defraud any person, association or body politic or corporate whatsoever. [1909 c 249 § 40; RRS § 2292.] 10.58.060 10.58.060 Ownership—Proof of. In the prosecution of any offense committed upon, or in relation to, or in any way affecting any real estate, or any offense committed in stealing, embezzling, destroying, injuring, or fraudulently receiving or concealing any money, goods, or other personal estate, it shall be sufficient, and shall not be deemed a variance, if it be proved on trial that at the time when such offense was committed, either the actual or constructive possession, or the general or special property in the whole, or any part of such real or personal estate, was in the person or community alleged in the indictment or other accusation to be the owner thereof. [Code 1881 § 963; 1854 p 99 § 133; RRS § 2156.] Indictment or information, certain defects or imperfections deemed immaterial: RCW 10.37.056. 10.58.080 10.58.080 View of place of crime permissible. The court may order a view by any jury impaneled to try a criminal case. [Code 1881 § 1090; 1873 p 237 § 251; 1854 p 120 § 115; RRS § 2160.] Chapter 10.61 Chapter 10.61 RCW VERDICTS dant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto, or of an attempt to commit the offense. [1891 c 28 § 75; Code 1881 § 1097; 1854 p 120 § 122; RRS § 2167. Formerly RCW 10.61.010, part.] [SLC-RO-11] Where doubt as to degree, conviction of lowest: RCW 10.58.020. 10.61.006 10.61.006 Other cases—Included offenses. In all other cases the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information. [1891 c 28 § 76; Code 1881 § 1098; 1854 p 120 § 123; RRS § 2168. Formerly RCW 10.61.010, part.] [SLC-RO-11] 10.61.010 10.61.010 Conviction of lesser crime. Upon the trial of an indictment or information, the defendant may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime. Whenever the jury shall find a verdict of guilty against a person so charged, they shall in their verdict specify the degree or attempt of which the accused is guilty. [1909 c 249 § 11; RRS § 2263. FORMER PARTS OF SECTION: (i) 1891 c 28 § 75; Code 1881 § 1097; 1854 p 120 § 122; RRS § 2167, now codified as RCW 10.61.003. (ii) 1891 c 28 § 76; Code 1881 § 1098; 1854 p 120 § 123; RRS § 2168, now codified as RCW 10.61.006.] [SLC-RO-11] 10.61.035 10.61.035 Conviction or acquittal—Several defendants. Upon an indictment or information against several defendants any one or more may be convicted or acquitted. [1891 c 28 § 37; Code 1881 § 1022; 1873 p 228 § 205; 1869 p 243 § 200; RRS § 2073. Formerly RCW 10.61.030, part.] Rules of court: This section superseded in part by CrR 6.16. See comment after CrR 6.16. Discharging defendant to give evidence: RCW 10.46.110. 10.61.060 10.61.060 Reconsideration of verdict. When there is a verdict of conviction in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider the verdict; and if after such reconsideration they return the same verdict it must be entered, but it shall be good cause for new trial. When there is a verdict of acquittal the court cannot require the jury to reconsider it. [1891 c 28 § 78; Code 1881 § 1100; 1873 p 239 § 261; 1854 p 121 § 125; RRS § 2170.] Chapter 10.64 Sections 10.61.003 10.61.006 10.61.010 10.61.035 10.61.060 Degree offenses—Inferior degree—Attempt. Other cases—Included offenses. Conviction of lesser crime. Conviction or acquittal—Several defendants. Reconsideration of verdict. Rules of court: Verdicts—CrR 6.16. Former acquittal or conviction—Offense embraces other degrees and included offenses: RCW 10.43.020, 10.43.050. 10.61.003 10.61.003 Degree offenses—Inferior degree— Attempt. Upon an indictment or information for an offense consisting of different degrees, the jury may find the defen[Title 10 RCW—page 34] Chapter 10.64 RCW JUDGMENTS AND SENTENCES Sections 10.64.015 10.64.021 10.64.025 10.64.027 10.64.060 10.64.070 10.64.075 10.64.080 10.64.100 10.64.110 10.64.120 Judgment to include costs—Exception. Notice of conviction. Detention of defendant. Conditions of release. Form of sentence to penitentiary. Recognizance to maintain good behavior or keep the peace. Breach of recognizance conditions. Judgments a lien on realty. Final record—What to contain. Fingerprint of defendant in felony convictions. Referral assessments—Probation department oversight committee. (2006 Ed.) Judgments and Sentences 10.64.140 Loss of voting rights—Acknowledgment. Rules of court: Judgments and sentencing—CrR 7.1 through 7.4. Assessments required of other convicted persons offender supervision: RCW 9.94A.780. parolees: RCW 72.04A.120. Excessive bail or fines, cruel punishment prohibited: State Constitution Art. 1 § 14. 10.64.015 10.64.015 Judgment to include costs—Exception. When the defendant is found guilty, the court shall render judgment accordingly, and the defendant shall be liable for all costs, unless the court or jury trying the cause expressly find otherwise. [Code 1881 § 1104; 1873 p 241 § 272; 1854 p 121 § 129; RRS § 2187. Formerly RCW 10.64.010, part.] Requiring defendant to pay costs—Procedure: RCW 10.01.160, 10.01.170, chapter 10.82 RCW. 10.64.110 whereabouts of the defendant, contact with the victim, or other conditions. [1989 c 276 § 5.] Severability—1989 c 276: See note following RCW 9.95.062. 10.64.060 10.64.060 Form of sentence to penitentiary. In every case where imprisonment in the penitentiary is awarded against any convict, the form of the sentence shall be, that he be punished by confinement at hard labor; and he may also be sentenced to solitary imprisonment for such term as the court shall direct, not exceeding twenty days at any one time; and in the execution of such punishment the solitary shall precede the punishment by hard labor, unless the court shall otherwise order. [Code 1881 § 1127; 1873 p 243 § 285; 1854 p 124 § 149; RRS § 2208.] Indeterminate sentences: Chapter 9.95 RCW. Sentencing, 1981 act: Chapter 9.94A RCW. 10.64.021 10.64.021 Notice of conviction. Within fourteen days of the entry of a judgment of conviction of an individual for a felony, the clerk of the court shall send a notice of the conviction including the full name of the defendant and his or her residential address to the county auditor or custodian of voting records in the county of the defendant’s residence. [1994 c 57 § 1.] Severability—1994 c 57: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1994 c 57 § 55.] Effective date—1994 c 57: "Sections 1 through 3, 7, 10 through 12, 21, 22, 25, 27, 28, 31 through 34, 37 through 40, 42, 44 through 52, and 54 of this act take effect January 1, 1995." [1994 c 57 § 56.] 10.64.070 10.64.070 Recognizance to maintain good behavior or keep the peace. Every court before whom any person shall be convicted upon an indictment or information for an offense not punishable with death or imprisonment in the penitentiary may, in addition to the punishment prescribed by law, require such person to recognize with sufficient sureties in a reasonable sum to keep the peace, or to be of good behavior, or both, for any term not exceeding one year, and to stand committed until he shall so recognize. [1891 c 28 § 83; Code 1881 § 1121; 1873 p 242 § 279; 1854 p 123 § 143; RRS § 2202. FORMER PART OF SECTION: Code 1881 § 1122; 1873 p 242 § 280; 1854 p 123 § 144; RRS § 2203, now codified as RCW 10.64.075.] 10.64.025 10.64.025 Detention of defendant. (1) A defendant who has been found guilty of a felony and is awaiting sentencing shall be detained unless the court finds by clear and convincing evidence that the defendant is not likely to flee or to pose a danger to the safety of any other person or the community if released. Any bail bond that was posted on behalf of a defendant shall, upon the defendant’s conviction, be exonerated. (2) A defendant who has been found guilty of one of the following offenses shall be detained pending sentencing: Rape in the first or second degree (RCW 9A.44.040 and 9A.44.050); rape of a child in the first, second, or third degree (RCW 9A.44.073, 9A.44.076, and 9A.44.079); child molestation in the first, second, or third degree (RCW 9A.44.083, 9A.44.086, and 9A.44.089); sexual misconduct with a minor in the first or second degree (RCW 9A.44.093 and 9A.44.096); indecent liberties (RCW 9A.44.100); incest (RCW 9A.64.020); luring (RCW 9A.40.090); any class A or B felony that is a sexually motivated offense as defined in RCW 9.94A.030; a felony violation of RCW 9.68A.090; or any offense that is, under chapter 9A.28 RCW, a criminal attempt, solicitation, or conspiracy to commit one of those offenses. [1996 c 275 § 10; 1989 c 276 § 2.] Finding—1996 c 275: See note following RCW 9.94A.505. Severability—1989 c 276: See note following RCW 9.95.062. 10.64.027 10.64.027 Conditions of release. In order to minimize the trauma to the victim, the court may attach conditions on release of a defendant under RCW 10.64.025 regarding the (2006 Ed.) 10.64.075 10.64.075 Breach of recognizance conditions. In case of the breach of the conditions of any such recognizance, the same proceedings shall be had that are by law prescribed in relation to recognizances to keep the peace. [Code 1881 § 1122; 1873 p 242 § 280; 1854 p 123 § 144; RRS § 2203. Formerly RCW 10.64.070, part.] 10.64.080 10.64.080 Judgments a lien on realty. Judgments for fines in all criminal actions rendered, are, and may be made liens upon the real estate of the defendant in the same manner, and with like effect as judgments in civil actions. [Code 1881 § 1111; RRS § 2188.] 10.64.100 10.64.100 Final record—What to contain. The clerk of the court shall make a final record of all the proceedings in a criminal prosecution within six months after the same shall have been decided, which shall contain a copy of the minutes of the challenge to the panel of the grand jury, the indictment or information, journal entries, pleadings, minutes of challenges to panel of petit jurors, judgment, orders, or decision, and bill of exceptions. [1891 c 28 § 85; Code 1881 § 1134; 1873 p 245 § 292; 1854 p 125 § 156; RRS § 2224.] 10.64.110 10.64.110 Fingerprint of defendant in felony convictions. Following June 15, 1977, there shall be affixed to the original of every judgment and sentence of a felony conviction in every court in this state and every order adjudicating a juvenile to be a delinquent based upon conduct which would be a felony if committed by an adult, a fingerprint of the [Title 10 RCW—page 35] 10.64.120 Title 10 RCW: Criminal Procedure defendant or juvenile who is the subject of the order. When requested by the clerk of the court, the actual affixing of fingerprints shall be done by a representative of the office of the county sheriff. The clerk of the court shall attest that the fingerprints appearing on the judgment in sentence, order of adjudication of delinquency, or docket, is that of the individual who is the subject of the judgment or conviction, order, or docket entry. [1977 ex.s. c 259 § 1.] 10.64.120 10.64.120 Referral assessments—Probation department oversight committee. (1) Every judge of a court of limited jurisdiction shall have the authority to levy upon a person a monthly assessment not to exceed one hundred dollars for services provided whenever the person is referred by the court to the misdemeanant probation department for evaluation or supervision services. The assessment may also be made by a judge in superior court when such misdemeanor or gross misdemeanor cases are heard in the superior court. (2) For the purposes of this section the administrative office of the courts shall define a probation department and adopt rules for the qualifications of probation officers based on occupational and educational requirements developed by an oversight committee. This oversight committee shall include a representative from the district and municipal court judges association, the misdemeanant corrections association, the administrative office of the courts, and associations of cities and counties. The oversight committee shall consider qualifications that provide the training and education necessary to (a) conduct presentencing and postsentencing background investigations, including sentencing recommendations to the court regarding jail terms, alternatives to incarceration, and conditions of release; and (b) provide ongoing supervision and assessment of offenders’ needs and the risk they pose to the community. (3) It shall be the responsibility of the probation services office to implement local procedures approved by the court of limited jurisdiction to ensure collection and payment of such fees into the general fund of the city or county treasury. (4) Revenues raised under this section shall be used to fund programs for probation services and shall be in addition to those funds provided in RCW 3.62.050. (5) Assessments and fees levied upon a probationer under this section must be suspended while the probationer is being supervised by another state under RCW 9.94A.745, the interstate compact for adult offender supervision. [2005 c 400 § 7; 2005 c 282 § 22; 1996 c 298 § 6; 1991 c 247 § 3; 1982 c 207 § 4.] Reviser’s note: This section was amended by 2005 c 282 § 22 and by 2005 c 400 § 7, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Application—Effective date—2005 c 400: See notes following RCW 9.94A.74504. 10.64.140 10.64.140 Loss of voting rights—Acknowledgment. When a person is convicted of a felony, the court shall require the defendant to sign a statement acknowledging that: (1) The defendant’s right to vote has been lost due to the felony conviction; [Title 10 RCW—page 36] (2) If the defendant is registered to vote, the voter registration will be canceled; (3) The right to vote may be restored by: (a) A certificate of discharge issued by the sentencing court, as provided in RCW 9.94A.637; (b) A court order issued by the sentencing court restoring the right, as provided in RCW 9.92.066; (c) A final order of discharge issued by the indeterminate sentence review board, as provided in RCW 9.96.050; or (d) A certificate of restoration issued by the governor, as provided in RCW 9.96.020; and (4) Voting before the right is restored is a class C felony under RCW 29A.84.660. [2005 c 246 § 1.] Effective date—2005 c 246: "This act takes effect January 1, 2006." [2005 c 246 § 26.] Chapter 10.66 RCW DRUG TRAFFICKERS—OFF-LIMITS ORDERS Chapter 10.66 Sections 10.66.005 10.66.010 10.66.020 10.66.030 10.66.040 10.66.050 10.66.060 10.66.070 10.66.080 10.66.090 10.66.100 10.66.110 10.66.120 10.66.130 10.66.900 Findings. Definitions. When order may be issued. Hearing—Summons. Ex parte temporary order—Hearing—Notice. Additional relief—PADT area. Bond or security. Appearance of party. Notice of order to law enforcement agency. Penalties. Additional penalties. Jurisdiction. Venue. Modification of order—Notice to law enforcement agency. Severability—1989 c 271. 10.66.005 10.66.005 Findings. The legislature finds that drug abuse is escalating at an alarming rate. New protections need to be established to address this drug crisis which is threatening every stratum of our society. Prohibiting known drug traffickers from frequenting areas for continuous drug activity is one means of addressing this pervasive problem. [1989 c 271 § 213.] 10.66.010 10.66.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter: (1) "Applicant" means any person who owns, occupies, or has a substantial interest in property, or who is a neighbor to property which is adversely affected by drug trafficking, including: (a) A "family or household member" as defined by *RCW 10.99.020(1), who has a possessory interest in a residence as an owner or tenant, at least as great as a known drug trafficker’s interest; (b) An owner or lessor; (c) An owner, tenant, or resident who lives or works in a designated PADT area; or (d) A city or prosecuting attorney for any jurisdiction in this state where drug trafficking is occurring. (2) "Drug" or "drugs" means a controlled substance as defined in chapter 69.50 RCW or an "imitation controlled substance" as defined in RCW 69.52.020. (2006 Ed.) Drug Traffickers—Off-Limits Orders (3) "Known drug trafficker" means any person who has been convicted of a drug offense in this state, another state, or federal court who subsequently has been arrested for a drug offense in this state. For purposes of this definition, "drug offense" means a felony violation of chapter 69.50 or 69.52 RCW or equivalent law in another jurisdiction that involves the manufacture, distribution, or possession with intent to manufacture or distribute, of a controlled substance or imitation controlled substance. (4) "Off-limits orders" means an order issued by a superior or district court in the state of Washington that enjoins known drug traffickers from entering or remaining in a designated PADT area. (5) "Protected against drug trafficking area" or "PADT area" means any specifically described area, public or private, contained in an off-limits order. The perimeters of a PADT area shall be defined using street names and numbers and shall include all real property contained therein, where drug sales, possession of drugs, pedestrian or vehicular traffic attendant to drug activity, or other activity associated with drug offenses confirms a pattern associated with drug trafficking. The area may include the full width of streets, alleys and sidewalks on the perimeter, common areas, planting strips, parks and parking areas within the area described using the streets as boundaries. [1989 c 271 § 214.] *Reviser’s note: RCW 10.99.020 was amended by 2004 c 18 § 2, changing subsection (1) to subsection (3). 10.66.020 When order may be issued. A court may enter an off-limits order enjoining a known drug trafficker who has been associated with drug trafficking in an area that the court finds to be a PADT area, from entering or remaining in a designated PADT area for up to one year. This relief may be ordered pursuant to applications for injunctive relief or as part of a criminal proceeding as follows: (1) In a civil action, including an action brought under this chapter; (2) In a nuisance abatement action pursuant to chapter 7.43 RCW; (3) In an eviction action to exclude known drug traffickers or tenants who were evicted for allowing drug trafficking to occur on the premises which were the subject of the eviction action; (4) As a condition of pretrial release of a known drug trafficker awaiting trial on drug charges. The order shall be in effect until the time of sentencing or dismissal of the criminal charges; or (5) As a condition of sentencing of any known drug trafficker convicted of a drug offense. The order may include all periods of community placement or community supervision. [1989 c 271 § 215.] 10.66.020 10.66.030 Hearing—Summons. Upon the filing of an application for an off-limits order under RCW 10.66.020 (1), (2), or (3), the court shall set a hearing fourteen days from the filing of the application, or as soon thereafter as the hearing can be scheduled. If the respondent has not already been served with a summons, the application shall be served on the respondent not less than five court days before the hearing. If timely service cannot be made, the court may set a new hearing date. [1989 c 271 § 216.] 10.66.080 10.66.040 10.66.040 Ex parte temporary order—Hearing— Notice. Upon filing an application for an off-limits order under this chapter, an applicant may obtain an ex parte temporary off-limits order, with or without notice, only upon a showing that serious or irreparable harm will result to the applicant if the temporary off-limits order is not granted. An ex parte temporary off-limits order shall be effective for a fixed period not to exceed fourteen days, but the court may reissue the order upon a showing of good cause. A hearing on a one-year off-limits order, as provided in this chapter, shall be set for fourteen days from the issuance of the temporary order. The respondent shall be personally served with a copy of the temporary off-limits order along with a copy of the application and notice of the date set for the full hearing. At the hearing, if the court finds that respondent is a known drug trafficker who has engaged in drug trafficking in a particular area, and that the area is associated with a pattern of drug activities, the court shall issue a one-year off-limits order prohibiting the respondent from having any contact with the PADT area. At any time within three months before the expiration of the order, the applicant may apply for a renewal of the order by filing a new petition under this chapter. [1989 c 271 § 217.] 10.66.050 10.66.050 Additional relief—PADT area. In granting a temporary off-limits order or a one-year off-limits order, the court shall have discretion to grant additional relief as the court considers proper to achieve the purposes of this chapter. The PADT area defined in any off-limits order must be reasonably related to the area or areas impacted by the unlawful drug activity as described by the applicant in any civil action under RCW 10.66.020 (1), (2), or (3). The court in its discretion may allow a respondent, who is the subject of any order issued under RCW 10.66.020 as part of a civil or criminal proceeding, to enter an off-limits area or areas for health or employment reasons, subject to conditions prescribed by the court. Upon request, a certified copy of the order shall be provided to the applicant by the clerk of the court. [1999 c 143 § 46; 1989 c 271 § 218.] 10.66.060 10.66.060 Bond or security. A temporary off-limits order or a one-year off-limits order may not issue under this chapter except upon the giving of a bond or security by the applicant. The court shall set the bond or security in the amount the court deems proper, but not less than one thousand dollars, for the payment of costs and damages that may be incurred by any party who is found to have been wrongfully restrained or enjoined. A bond or security shall not be required of the state of Washington, municipal corporations, or political subdivisions of the state of Washington. [1989 c 271 § 219.] 10.66.030 (2006 Ed.) 10.66.070 10.66.070 Appearance of party. Nothing in this chapter shall preclude a party from appearing in person or by counsel. [1989 c 271 § 220.] 10.66.080 10.66.080 Notice of order to law enforcement agency. A copy of an off-limits order granted under this chapter shall be forwarded by the court to the local law enforcement agency with jurisdiction over the PADT area specified in the [Title 10 RCW—page 37] 10.66.090 Title 10 RCW: Criminal Procedure order on or before the next judicial day following issuance of the order. Upon receipt of the order, the law enforcement agency shall promptly enter it into an appropriate law enforcement information system. [1989 c 271 § 221.] 10.66.090 10.66.090 Penalties. (1) A person who willfully disobeys an off-limits order issued under this chapter is guilty of a gross misdemeanor. (2) A person is guilty of a class C felony punishable according to chapter 9A.20 RCW if the person willfully disobeys an off-limits order in violation of the terms of the order and also either: (a) Enters or remains in a PADT area that is within one thousand feet of any school; or (b) Is convicted of a second or subsequent violation of this chapter. [2003 c 53 § 93; 1989 c 271 § 223.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 10.66.100 10.66.100 Additional penalties. Any person who willfully disobeys an off-limits order issued under this chapter shall be subject to criminal penalties as provided in this chapter and may also be found in contempt of court and subject to penalties under chapter 7.21 RCW. [1999 c 143 § 47; 1989 c 271 § 222.] 10.66.110 10.66.110 Jurisdiction. The superior courts shall have jurisdiction of all civil actions and all felony criminal proceedings brought under this chapter. Courts of limited jurisdiction shall have jurisdiction of all misdemeanor and gross misdemeanor criminal actions brought under this chapter. [1989 c 271 § 224.] 10.66.120 10.66.120 Venue. For the purposes of this chapter, an action may be brought in any county in which any element of the alleged drug trafficking activities occurred. [1989 c 271 § 225.] 10.66.130 10.66.130 Modification of order—Notice to law enforcement agency. Upon application, notice to all parties, and a hearing, the court may modify the terms of an off-limits order. When an order is terminated, modified, or amended before its expiration date, the clerk of the court shall forward, on or before the next judicial day, a true copy of the amended order to the law enforcement agency specified in the order. Upon receipt of an order, the law enforcement agency shall promptly enter it into an appropriate law enforcement information system. [1989 c 271 § 226.] 10.66.900 10.66.900 Severability—1989 c 271. See note following RCW 9.94A.510. Execution of death sentence: Chapter 10.95 RCW. 10.70.010 10.70.010 Commitment until fine and costs are paid. When the defendant is adjudged to pay a fine and costs, the court shall order him to be committed to the custody of the sheriff until the fine and costs are paid or secured as provided by law. [Code 1881 § 1119; 1873 p 242 § 277; 1854 p 123 § 141; RRS § 2200.] Commitment for failure to pay fine and costs—Execution against defendant’s property: RCW 10.82.030. Stay of execution for sixty days on recognizance: RCW 10.82.020, 10.82.025. 10.70.020 10.70.020 Mittimus upon sentence to imprisonment. When any person shall be sentenced to be imprisoned in the penitentiary or county jail, the clerk of the court shall, as soon as may be, make out and deliver to the sheriff of the county, or his deputy, a transcript from the minutes of the court of such conviction and sentence, duly certified by such clerk, which shall be sufficient authority for such sheriff to execute the sentence, who shall execute it accordingly. [Code 1881 § 1126; 1873 p 243 § 284; 1854 p 124 § 148; RRS § 2207.] 10.70.140 10.70.140 Aliens committed—Notice to immigration authority. Whenever any person shall be committed to a state correctional facility, the county jail, or any other state or county institution which is supported wholly or in part by public funds, it shall be the duty of the warden, superintendent, sheriff or other officer in charge of such state or county institution to at once inquire into the nationality of such person, and if it shall appear that such person is an alien, to immediately notify the United States immigration officer in charge of the district in which such penitentiary, reformatory, jail or other institution is located, of the date of and the reasons for such alien commitment, the length of time for which committed, the country of which the person is a citizen, and the date on which and the port at which the person last entered the United States. [1992 c 7 § 29; 1925 ex.s. c 169 § 1; RRS § 2206-1.] 10.70.150 10.70.150 Aliens committed—Copies of clerk’s records. Upon the official request of the United States immigration officer in charge of the territory or district in which is located any court committing any alien to any state or county institution which is supported wholly or in part by public funds, it shall be the duty of the clerk of such court to furnish without charge a certified copy of the complaint, information or indictment and the judgment and sentence and any other record pertaining to the case of the convicted alien. [1925 ex.s. c 169 § 2; RRS § 2206-2.] Chapter 10.73 Chapter 10.70 Chapter 10.70 RCW COMMITMENTS (Formerly: Commitments and executions) Sections 10.70.010 10.70.020 10.70.140 10.70.150 Commitment until fine and costs are paid. Mittimus upon sentence to imprisonment. Aliens committed—Notice to immigration authority. Aliens committed—Copies of clerk’s records. [Title 10 RCW—page 38] Chapter 10.73 RCW CRIMINAL APPEALS Sections 10.73.010 10.73.040 10.73.090 10.73.100 10.73.110 Appeal by defendant. Bail pending appeal. Collateral attack—One year time limit. Collateral attack—When one year limit not applicable. Collateral attack—One year time limit—Duty of court to advise defendant. (2006 Ed.) Criminal Appeals 10.73.120 10.73.130 10.73.140 10.73.150 10.73.160 10.73.170 10.73.900 Collateral attack—One year time limit—Duty of department of corrections to advise. Collateral attack—One year time limit—Applicability. Collateral attack—Subsequent petitions. Right to counsel. Court fees and costs. DNA testing requests. Severability—1989 c 395. Effect of appellate review by defendant: RCW 9.95.060, 9.95.062. 10.73.010 10.73.010 Appeal by defendant. dant, see Rules of Court. Appeal by defen- 10.73.040 10.73.040 Bail pending appeal. In all criminal actions, except capital cases in which the proof of guilt is clear or the presumption great, upon an appeal being taken from a judgment of conviction, the court in which the judgment was rendered, or a judge thereof, must, by an order entered in the journal or filed with the clerk, fix and determine the amount of bail to be required of the appellant; and the appellant shall be committed until a bond to the state of Washington in the sum so fixed be executed on his behalf by at least two sureties possessing the qualifications required for sureties on appeal bonds, such bond to be conditioned that the appellant shall appear whenever required, and stand to and abide by the judgment or orders of the appellate court, and any judgment and order of the superior court that may be rendered or made in pursuance thereof. If the appellant be already at large on bail, his sureties shall be liable to the amount of their bond, in the same manner and upon the same conditions as if they had executed the bond prescribed by this section; but the court may by order require a new bond in a larger amount or with new sureties, and may commit the appellant until the order be complied with. [1999 c 143 § 48; 1893 c 61 § 31; RRS § 1747.] 10.73.090 10.73.090 Collateral attack—One year time limit. (1) No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction. (2) For the purposes of this section, "collateral attack" means any form of postconviction relief other than a direct appeal. "Collateral attack" includes, but is not limited to, a personal restraint petition, a habeas corpus petition, a motion to vacate judgment, a motion to withdraw guilty plea, a motion for a new trial, and a motion to arrest judgment. (3) For the purposes of this section, a judgment becomes final on the last of the following dates: (a) The date it is filed with the clerk of the trial court; (b) The date that an appellate court issues its mandate disposing of a timely direct appeal from the conviction; or (c) The date that the United States Supreme Court denies a timely petition for certiorari to review a decision affirming the conviction on direct appeal. The filing of a motion to reconsider denial of certiorari does not prevent a judgment from becoming final. [1989 c 395 § 1.] 10.73.100 10.73.100 Collateral attack—When one year limit not applicable. The time limit specified in RCW 10.73.090 (2006 Ed.) 10.73.140 does not apply to a petition or motion that is based solely on one or more of the following grounds: (1) Newly discovered evidence, if the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion; (2) The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant’s conduct; (3) The conviction was barred by double jeopardy under Amendment V of the United States Constitution or Article I, section 9 of the state Constitution; (4) The defendant pled not guilty and the evidence introduced at trial was insufficient to support the conviction; (5) The sentence imposed was in excess of the court’s jurisdiction; or (6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard. [1989 c 395 § 2.] 10.73.110 10.73.110 Collateral attack—One year time limit— Duty of court to advise defendant. At the time judgment and sentence is pronounced in a criminal case, the court shall advise the defendant of the time limit specified in RCW 10.73.090 and 10.73.100. [1989 c 395 § 4.] 10.73.120 10.73.120 Collateral attack—One year time limit— Duty of department of corrections to advise. As soon as practicable after July 23, 1989, the department of corrections shall attempt to advise the following persons of the time limit specified in RCW 10.73.090 and 10.73.100: Every person who, on July 23, 1989, is serving a term of incarceration, probation, parole, or community supervision pursuant to conviction of a felony. [1989 c 395 § 5.] 10.73.130 10.73.130 Collateral attack—One year time limit— Applicability. RCW 10.73.090 and 10.73.100 apply only to petitions and motions filed more than one year after July 23, 1989. [1989 c 395 § 6.] 10.73.140 10.73.140 Collateral attack—Subsequent petitions. If a person has previously filed a petition for personal restraint, the court of appeals will not consider the petition unless the person certifies that he or she has not filed a previous petition on similar grounds, and shows good cause why the petitioner did not raise the new grounds in the previous petition. Upon receipt of a personal restraint petition, the court of appeals shall review the petition and determine whether the person has previously filed a petition or petitions and if so, compare them. If upon review, the court of appeals finds that the petitioner has previously raised the same grounds for review, or that the petitioner has failed to show good cause why the ground was not raised earlier, the court of appeals shall dismiss the petition on its own motion without [Title 10 RCW—page 39] 10.73.150 Title 10 RCW: Criminal Procedure requiring the state to respond to the petition. Upon receipt of a first or subsequent petition, the court of appeals shall, whenever possible, review the petition and determine if the petition is based on frivolous grounds. If frivolous, the court of appeals shall dismiss the petition on its own motion without first requiring the state to respond to the petition. [1989 c 395 § 9.] 10.73.150 Right to counsel. Counsel shall be provided at state expense to an adult offender convicted of a crime and to a juvenile offender convicted of an offense when the offender is indigent or indigent and able to contribute as those terms are defined in RCW 10.101.010 and the offender: (1) Files an appeal as a matter of right; (2) Responds to an appeal filed as a matter of right or responds to a motion for discretionary review or petition for review filed by the state; (3) Is under a sentence of death and requests counsel be appointed to file and prosecute a motion or petition for collateral attack as defined in RCW 10.73.090. Counsel may be provided at public expense to file or prosecute a second or subsequent collateral attack on the same judgment and sentence, if the court determines that the collateral attack is not barred by RCW 10.73.090 or 10.73.140; (4) Is not under a sentence of death and requests counsel to prosecute a collateral attack after the chief judge has determined that the issues raised by the petition are not frivolous, in accordance with the procedure contained in rules of appellate procedure 16.11. Counsel shall not be provided at public expense to file or prosecute a second or subsequent collateral attack on the same judgment and sentence; (5) Responds to a collateral attack filed by the state or responds to or prosecutes an appeal from a collateral attack that was filed by the state; (6) Prosecutes a motion or petition for review after the supreme court or court of appeals has accepted discretionary review of a decision of a court of limited jurisdiction; or (7) Prosecutes a motion or petition for review after the supreme court has accepted discretionary review of a court of appeals decision. [1995 c 275 § 2.] 10.73.150 Finding—1995 c 275: "The legislature is aware that the constitutional requirements of equal protection and due process require that counsel be provided for indigent persons and persons who are indigent and able to contribute for the first appeal as a matter of right from a judgment and sentence in a criminal case or a juvenile offender proceeding, and no further. There is no constitutional right to appointment of counsel at public expense to collaterally attack a judgment and sentence in a criminal case or juvenile offender proceeding or to seek discretionary review of a lower appellate court decision. The legislature finds that it is appropriate to extend the right to counsel at state expense beyond constitutional requirements in certain limited circumstances to persons who are indigent and persons who are indigent and able to contribute as those terms are defined in RCW 10.101.010." [1995 c 275 § 1.] Severability—1995 c 275: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1995 c 275 § 5.] 10.73.160 Court fees and costs. (1) The court of appeals, supreme court, and superior courts may require an adult or a juvenile convicted of an offense or the parents or another person legally obligated to support a juvenile offender to pay appellate costs. 10.73.160 [Title 10 RCW—page 40] (2) Appellate costs are limited to expenses specifically incurred by the state in prosecuting or defending an appeal or collateral attack from a criminal conviction or sentence or a juvenile offender conviction or disposition. Appellate costs shall not include expenditures to maintain and operate government agencies that must be made irrespective of specific violations of the law. Expenses incurred for producing a verbatim report of proceedings and clerk’s papers may be included in costs the court may require a convicted defendant or juvenile offender to pay. (3) Costs, including recoupment of fees for courtappointed counsel, shall be requested in accordance with the procedures contained in Title 14 of the rules of appellate procedure and in Title 9 of the rules for appeal of decisions of courts of limited jurisdiction. An award of costs shall become part of the trial court judgment and sentence. An award of costs in juvenile cases shall also become part of any order previously entered in the trial court pursuant to RCW 13.40.145. (4) A defendant or juvenile offender who has been sentenced to pay costs and who is not in contumacious default in the payment may at any time petition the court that sentenced the defendant or juvenile offender for remission of the payment of costs or of any unpaid portion. If it appears to the satisfaction of the sentencing court that payment of the amount due will impose manifest hardship on the defendant, the defendant’s immediate family, or the juvenile offender, the sentencing court may remit all or part of the amount due in costs, or modify the method of payment under RCW 10.01.170. (5) The parents or another person legally obligated to support a juvenile offender who has been ordered to pay appellate costs pursuant to RCW 13.40.145 and who is not in contumacious default in the payment may at any time petition the court that sentenced the juvenile offender for remission of the payment of costs or of any unpaid portion. If it appears to the satisfaction of the sentencing court that payment of the amount due will impose manifest hardship on the parents or another person legally obligated to support a juvenile offender or on their immediate families, the sentencing court may remit all or part of the amount due in costs, or may modify the method of payment. [1995 c 275 § 3.] Finding—Severability—1995 c 275: See notes following RCW 10.73.150. 10.73.170 10.73.170 DNA testing requests. (1) A person convicted of a felony in a Washington state court who currently is serving a term of imprisonment may submit to the court that entered the judgment of conviction a verified written motion requesting DNA testing, with a copy of the motion provided to the state office of public defense. (2) The motion shall: (a) State that: (i) The court ruled that DNA testing did not meet acceptable scientific standards; or (ii) DNA testing technology was not sufficiently developed to test the DNA evidence in the case; or (iii) The DNA testing now requested would be significantly more accurate than prior DNA testing or would provide significant new information; (2006 Ed.) Criminally Insane—Procedures (b) Explain why DNA evidence is material to the identity of the perpetrator of, or accomplice to, the crime, or to sentence enhancement; and (c) Comply with all other procedural requirements established by court rule. (3) The court shall grant a motion requesting DNA testing under this section if such motion is in the form required by subsection (2) of this section, and the convicted person has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis. (4) Upon written request to the court that entered a judgment of conviction, a convicted person who demonstrates that he or she is indigent under RCW 10.101.010 may request appointment of counsel solely to prepare and present a motion under this section, and the court, in its discretion, may grant the request. Such motion for appointment of counsel shall comply with all procedural requirements established by court rule. (5) DNA testing ordered under this section shall be performed by the Washington state patrol crime laboratory. Contact with victims shall be handled through victim/witness divisions. (6) Notwithstanding any other provision of law, upon motion of defense counsel or the court’s own motion, a sentencing court in a felony case may order the preservation of any biological material that has been secured in connection with a criminal case, or evidence samples sufficient for testing, in accordance with any court rule adopted for the preservation of evidence. The court must specify the samples to be maintained and the length of time the samples must be preserved. [2005 c 5 § 1; 2003 c 100 § 1; 2001 c 301 § 1; 2000 c 92 § 1.] Effective date—2005 c 5: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 9, 2005]." [2005 c 5 § 2.] Construction—2001 c 301: "Nothing in this act may be construed to create a new or additional cause of action in any court. Nothing in this act shall be construed to limit any rights offenders might otherwise have to court access under any other statutory or constitutional provision." [2001 c 301 § 2.] Report on DNA testing—2000 c 92: "By December 1, 2001, the office of public defense shall prepare a report detailing the following: (1) The number of postconviction DNA test requests approved by the respective prosecutor; (2) the number of postconviction DNA test requests denied by the respective prosecutor and a summary of the basis for the denials; (3) the number of appeals for postconviction DNA testing approved by the attorney general’s office; (4) the number of appeals for postconviction DNA testing denied by the attorney general’s office and a summary of the basis for the denials; and (5) a summary of the results of the postconviction DNA tests conducted pursuant to RCW 10.73.170 (2) and (3). The report shall also provide an estimate of the number of persons convicted of crimes where DNA evidence was not admitted because the court ruled DNA testing did not meet acceptable scientific standards or where DNA testing technology was not sufficiently developed to test the DNA evidence in the case." [2000 c 92 § 2.] Intent—2000 c 92: "Nothing in chapter 92, Laws of 2000 is intended to create a legal right or cause of action. Nothing in chapter 92, Laws of 2000 is intended to deny or alter any existing legal right or cause of action. Nothing in chapter 92, Laws of 2000 should be interpreted to deny postconviction DNA testing requests under existing law by convicted and incarcerated persons who were sentenced to confinement for a term less than life or the death penalty." [2000 c 92 § 4.] 10.73.900 10.73.900 Severability—1989 c 395. If any provision of this act or its application to any person or circumstance is (2006 Ed.) 10.77.010 held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1989 c 395 § 7.] Chapter 10.77 RCW CRIMINALLY INSANE—PROCEDURES Chapter 10.77 Sections 10.77.010 10.77.020 10.77.025 10.77.027 10.77.030 10.77.040 10.77.050 10.77.060 10.77.065 10.77.070 10.77.080 10.77.090 10.77.092 10.77.093 10.77.095 10.77.097 10.77.100 10.77.110 10.77.120 10.77.140 10.77.150 10.77.155 10.77.160 10.77.163 10.77.165 10.77.170 10.77.180 10.77.190 10.77.200 10.77.205 10.77.207 10.77.210 10.77.2101 10.77.220 10.77.230 10.77.240 10.77.250 10.77.260 10.77.800 10.77.900 10.77.910 10.77.920 10.77.930 10.77.940 Definitions. Rights of person under this chapter. Maximum term of commitment or treatment. Eligible for commitment regardless of cause. Establishing insanity as a defense. Instructions to jury on special verdict. Mental incapacity as bar to proceedings. Plea of not guilty due to insanity—Doubt as to competency— Examination—Bail—Report. Mental condition evaluations—Reports and recommendations required. Examination rights of defendant’s expert or professional person. Motion for acquittal on grounds of insanity—Hearing—Findings. Stay of proceedings—Commitment—Findings—Evaluation, treatment—Extensions of commitment—Alternative procedures—Procedure in nonfelony charge. Involuntary medication—Serious offenses. Involuntary medication—Civil commitment. Findings—Developmental disabilities. Records and reports accompany defendant upon transfer. Experts or professional persons as witnesses. Acquittal of crime. Confinement of committed person—Custody—Hearings— Release. Periodic examinations—Developmentally disabled— Reports—Notice to court. Conditional release—Application—Order—Procedure. Conditional release, furlough—Secretary’s recommendation. Conditional release—Reports. Furlough—Notice—Temporary restraining order. Escape or disappearance—Notification requirements. Payments to conditionally released persons. Conditional release—Periodic review of case. Conditional release—Revocation or modification of terms— Procedure. Release—Procedure. Sexual or violent offenders—Notice of release, escape, etc.— Definitions. Persons acquitted of sex offense due to insanity—Release of information authorized. Right to adequate care and treatment—Records and reports. Implementation of legislative intent. Incarceration in correctional institution or facility prohibited—Exceptions. Appellate review. Existing rights not affected. Responsibility for costs—Reimbursement. Violent act—Presumptions. Evaluation of chapter 297, Laws of 1998—Recidivism, competency restoration, information sharing. Savings—Construction—1973 1st ex.s. c 117. Severability—1973 1st ex.s. c 117. Chapter successor to chapter 10.76 RCW. Effective date—1973 1st ex.s. c 117. Equal application of 1989 c 420—Evaluation for developmental disability. Rules of court: Cf. CrR 4.2(c). Mentally ill, commitment: Chapter 71.05 RCW. Protocols required: RCW 71.05.214. 10.77.010 10.77.010 Definitions. As used in this chapter: (1) "Admission" means acceptance based on medical necessity, of a person as a patient. (2) "Commitment" means the determination by a court that a person should be detained for a period of either evalu[Title 10 RCW—page 41] 10.77.010 Title 10 RCW: Criminal Procedure ation or treatment, or both, in an inpatient or a less-restrictive setting. (3) "Conditional release" means modification of a courtordered commitment, which may be revoked upon violation of any of its terms. (4) A "criminally insane" person means any person who has been acquitted of a crime charged by reason of insanity, and thereupon found to be a substantial danger to other persons or to present a substantial likelihood of committing criminal acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions. (5) "Department" means the state department of social and health services. (6) "Designated mental health professional" has the same meaning as provided in RCW 71.05.020. (7) "Detention" or "detain" means the lawful confinement of a person, under the provisions of this chapter, pending evaluation. (8) "Developmental disabilities professional" means a person who has specialized training and three years of experience in directly treating or working with persons with developmental disabilities and is a psychiatrist or psychologist, or a social worker, and such other developmental disabilities professionals as may be defined by rules adopted by the secretary. (9) "Developmental disability" means the condition as defined in RCW 71A.10.020(3). (10) "Discharge" means the termination of hospital medical authority. The commitment may remain in place, be terminated, or be amended by court order. (11) "Furlough" means an authorized leave of absence for a resident of a state institution operated by the department designated for the custody, care, and treatment of the criminally insane, consistent with an order of conditional release from the court under this chapter, without any requirement that the resident be accompanied by, or be in the custody of, any law enforcement or institutional staff, while on such unescorted leave. (12) "Habilitative services" means those services provided by program personnel to assist persons in acquiring and maintaining life skills and in raising their levels of physical, mental, social, and vocational functioning. Habilitative services include education, training for employment, and therapy. The habilitative process shall be undertaken with recognition of the risk to the public safety presented by the person being assisted as manifested by prior charged criminal conduct. (13) "History of one or more violent acts" means violent acts committed during: (a) The ten-year period of time prior to the filing of criminal charges; plus (b) the amount of time equal to time spent during the ten-year period in a mental health facility or in confinement as a result of a criminal conviction. (14) "Incompetency" means a person lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect. (15) "Indigent" means any person who is financially unable to obtain counsel or other necessary expert or profes[Title 10 RCW—page 42] sional services without causing substantial hardship to the person or his or her family. (16) "Individualized service plan" means a plan prepared by a developmental disabilities professional with other professionals as a team, for an individual with developmental disabilities, which shall state: (a) The nature of the person’s specific problems, prior charged criminal behavior, and habilitation needs; (b) The conditions and strategies necessary to achieve the purposes of habilitation; (c) The intermediate and long-range goals of the habilitation program, with a projected timetable for the attainment; (d) The rationale for using this plan of habilitation to achieve those intermediate and long-range goals; (e) The staff responsible for carrying out the plan; (f) Where relevant in light of past criminal behavior and due consideration for public safety, the criteria for proposed movement to less-restrictive settings, criteria for proposed eventual release, and a projected possible date for release; and (g) The type of residence immediately anticipated for the person and possible future types of residences. (17) "Professional person" means: (a) A psychiatrist licensed as a physician and surgeon in this state who has, in addition, completed three years of graduate training in psychiatry in a program approved by the American medical association or the American osteopathic association and is certified or eligible to be certified by the American board of psychiatry and neurology or the American osteopathic board of neurology and psychiatry; (b) A psychologist licensed as a psychologist pursuant to chapter 18.83 RCW; or (c) A social worker with a master’s or further advanced degree from an accredited school of social work or a degree deemed equivalent under rules adopted by the secretary. (18) "Registration records" include all the records of the department, regional support networks, treatment facilities, and other persons providing services to the department, county departments, or facilities which identify persons who are receiving or who at any time have received services for mental illness. (19) "Release" means legal termination of the courtordered commitment under the provisions of this chapter. (20) "Secretary" means the secretary of the department of social and health services or his or her designee. (21) "Treatment" means any currently standardized medical or mental health procedure including medication. (22) "Treatment records" include registration and all other records concerning persons who are receiving or who at any time have received services for mental illness, which are maintained by the department, by regional support networks and their staffs, and by treatment facilities. Treatment records do not include notes or records maintained for personal use by a person providing treatment services for the department, regional support networks, or a treatment facility if the notes or records are not available to others. (23) "Violent act" means behavior that: (a)(i) Resulted in; (ii) if completed as intended would have resulted in; or (iii) was threatened to be carried out by a person who had the intent and opportunity to carry out the threat and would have resulted in, homicide, nonfatal injuries, or substantial damage (2006 Ed.) Criminally Insane—Procedures to property; or (b) recklessly creates an immediate risk of serious physical injury to another person. As used in this subsection, "nonfatal injuries" means physical pain or injury, illness, or an impairment of physical condition. "Nonfatal injuries" shall be construed to be consistent with the definition of "bodily injury," as defined in RCW 9A.04.110. [2005 c 504 § 106; 2004 c 157 § 2; 2000 c 94 § 12. Prior: 1999 c 143 § 49; 1999 c 13 § 2; 1998 c 297 § 29; 1993 c 31 § 4; 1989 c 420 § 3; 1983 c 122 § 1; 1974 ex.s. c 198 § 1; 1973 1st ex.s. c 117 § 1.] Findings—Intent—Severability—Application—Construction— Captions, part headings, subheadings not law—Adoption of rules— Effective dates—2005 c 504: See notes following RCW 71.05.027. Alphabetization—Correction of references—2005 c 504: See note following RCW 71.05.020. Findings—Intent—2004 c 157: "The legislature finds that recent state and federal case law requires clarification of state statutes with regard to competency evaluations and involuntary medication ordered in the context of competency restoration. The legislature finds that the court in Born v. Thompson, 117 Wn. App. 57 (2003) interpreted the term "nonfatal injuries" in a manner that conflicts with the stated intent of the legislature to: "(1) Clarify that it is the nature of a person’s current conduct, current mental condition, history, and likelihood of committing future acts that pose a threat to public safety or himself or herself, rather than simple categorization of offenses, that should determine treatment procedures and level; ... and (3) provide additional opportunities for mental health treatment for persons whose conduct threatens himself or herself or threatens public safety and has led to contact with the criminal justice system" as stated in section 1, chapter 297, Laws of 1998. Consequently, the legislature intends to clarify that it intended "nonfatal injuries" to be interpreted in a manner consistent with the purposes of the competency restoration statutes. The legislature also finds that the decision in Sell v. United States, ___U.S. ____ (2003), requires a determination whether a particular criminal offense is "serious" in the context of competency restoration and the state’s duty to protect the public. The legislature further finds that, in order to adequately protect the public and in order to provide additional opportunities for mental health treatment for persons whose conduct threatens themselves or threatens public safety and has led to contact with the criminal justice system in the state, the determination of those criminal offenses that are "serious" offenses must be made consistently throughout the state. In order to facilitate this consistency, the legislature intends to determine those offenses that are serious in every case as well as the standards by which other offenses may be determined to be serious. The legislature also intends to clarify that a court may, to the extent permitted by federal law and required by the Sell decision, inquire into the civil commitment status of a defendant and may be told, if known." [2004 c 157 § 1.] Severability—2004 c 157: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2004 c 157 § 7.] Effective date—2004 c 157: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 26, 2004]." [2004 c 157 § 8.] Purpose—Construction—1999 c 13: "The purpose of this act is to make technical nonsubstantive changes to chapters 10.77 and 71.05 RCW. No provision of this act shall be construed as a substantive change in the provisions dealing with persons charged with crimes who are subject to evaluation under chapter 10.77 or 71.05 RCW." [1999 c 13 § 1.] Alphabetization of section—1998 c 297 § 29: "The code reviser shall alphabetize the definitions in RCW 10.77.010 and correct any references." [1998 c 297 § 51.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.020 10.77.020 Rights of person under this chapter. (1) At any and all stages of the proceedings pursuant to this chapter, any person subject to the provisions of this chapter shall be (2006 Ed.) 10.77.025 entitled to the assistance of counsel, and if the person is indigent the court shall appoint counsel to assist him or her. A person may waive his or her right to counsel; but such waiver shall only be effective if a court makes a specific finding that he or she is or was competent to so waive. In making such findings, the court shall be guided but not limited by the following standards: Whether the person attempting to waive the assistance of counsel, does so understanding: (a) The nature of the charges; (b) The statutory offense included within them; (c) The range of allowable punishments thereunder; (d) Possible defenses to the charges and circumstances in mitigation thereof; and (e) All other facts essential to a broad understanding of the whole matter. (2) Whenever any person is subjected to an examination pursuant to any provision of this chapter, he or she may retain an expert or professional person to perform an examination in his or her behalf. In the case of a person who is indigent, the court shall upon his or her request assist the person in obtaining an expert or professional person to perform an examination or participate in the hearing on his or her behalf. An expert or professional person obtained by an indigent person pursuant to the provisions of this chapter shall be compensated for his or her services out of funds of the department, in an amount determined by the secretary to be fair and reasonable. (3) Any time the defendant is being examined by court appointed experts or professional persons pursuant to the provisions of this chapter, the defendant shall be entitled to have his or her attorney present. (4) In a competency evaluation conducted under this chapter, the defendant may refuse to answer any question if he or she believes his or her answers may tend to incriminate him or her or form links leading to evidence of an incriminating nature. (5) In a sanity evaluation conducted under this chapter, if a defendant refuses to answer questions or to participate in an examination conducted in response to the defendant’s assertion of an insanity defense, the court shall exclude from evidence at trial any testimony or evidence from any expert or professional person obtained or retained by the defendant. [2006 c 109 § 1; 1998 c 297 § 30; 1993 c 31 § 5; 1974 ex.s. c 198 § 2; 1973 1st ex.s. c 117 § 2.] Application—2006 c 109: "This act applies to all examinations performed on or after June 7, 2006." [2006 c 109 § 2.] Severability—2006 c 109: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2006 c 109 § 3.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.025 10.77.025 Maximum term of commitment or treatment. (1) Whenever any person has been: (a) Committed to a correctional facility or inpatient treatment under any provision of this chapter; or (b) ordered to undergo alternative treatment following his or her acquittal by reason of insanity of a crime charged, such commitment or treatment cannot exceed the maximum possible penal sentence for any offense [Title 10 RCW—page 43] 10.77.027 Title 10 RCW: Criminal Procedure charged for which the person was committed, or was acquitted by reason of insanity. (2) Whenever any person committed under any provision of this chapter has not been released within seven days of the maximum possible penal sentence under subsection (1) of this section, and the professional person in charge of the facility believes that the person presents a likelihood of serious harm or is gravely disabled due to a mental disorder, the professional person shall, prior to the expiration of the maximum penal sentence, notify the appropriate *county designated mental health professional of the impending expiration and provide a copy of all relevant information regarding the person, including the likely release date and shall indicate why the person should not be released. (3) A *county designated mental health professional who receives notice and records under subsection (2) of this section shall, prior to the date of the expiration of the maximum sentence, determine whether to initiate proceedings under chapter 71.05 RCW. [2000 c 94 § 13; 1998 c 297 § 31.] 2. 3. 4. 5. *Reviser’s note: The term "county designated mental health professional" as defined in RCW 10.77.010 was changed to "designated mental health professional" by 2005 c 504 § 106. Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.027 10.77.027 Eligible for commitment regardless of cause. When a *county designated mental health professional or a professional person has determined that a person has a mental disorder, and is otherwise committable, the cause of the person’s mental disorder shall not make the person ineligible for commitment under chapter 71.05 RCW. [2004 c 166 § 3.] *Reviser’s note: The term "county designated mental health professional" as defined in RCW 10.77.010 was changed to "designated mental health professional" by 2005 c 504 § 106. Severability—Effective dates—2004 c 166: See notes following RCW 71.05.040. 10.77.030 10.77.030 Establishing insanity as a defense. (1) Evidence of insanity is not admissible unless the defendant, at the time of arraignment or within ten days thereafter or at such later time as the court may for good cause permit, files a written notice of his or her intent to rely on such a defense. (2) Insanity is a defense which the defendant must establish by a preponderance of the evidence. (3) No condition of mind proximately induced by the voluntary act of a person charged with a crime shall constitute insanity. [1998 c 297 § 32; 1974 ex.s. c 198 § 3; 1973 1st ex.s. c 117 § 3.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.040 10.77.040 Instructions to jury on special verdict. Whenever the issue of insanity is submitted to the jury, the court shall instruct the jury to return a special verdict in substantially the following form: answer yes or no 1. Did the defendant commit the act charged? [Title 10 RCW—page 44] ..... If your answer to number 1 is yes, do you acquit him or her because of insanity existing at the time of the act charged? If your answer to number 2 is yes, is the defendant a substantial danger to other persons unless kept under further control by the court or other persons or institutions? If your answer to number 2 is yes, does the defendant present a substantial likelihood of committing criminal acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions? If your answers to either number 3 or number 4 is yes, is it in the best interests of the defendant and others that the defendant be placed in treatment that is less restrictive than detention in a state mental hospital? ..... ..... ..... ..... [1998 c 297 § 33; 1974 ex.s. c 198 § 4; 1973 1st ex.s. c 117 § 4.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.050 10.77.050 Mental incapacity as bar to proceedings. No incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues. [1974 ex.s. c 198 § 5; 1973 1st ex.s. c 117 § 5.] 10.77.060 10.77.060 Plea of not guilty due to insanity—Doubt as to competency—Examination—Bail—Report. (1)(a) Whenever a defendant has pleaded not guilty by reason of insanity, or there is reason to doubt his or her competency, the court on its own motion or on the motion of any party shall either appoint or request the secretary to designate at least two qualified experts or professional persons, one of whom shall be approved by the prosecuting attorney, to examine and report upon the mental condition of the defendant. The signed order of the court shall serve as authority for the experts to be given access to all records held by any mental health, medical, educational, or correctional facility that relate to the present or past mental, emotional, or physical condition of the defendant. At least one of the experts or professional persons appointed shall be a developmental disabilities professional if the court is advised by any party that the defendant may be developmentally disabled. Upon agreement of the parties, the court may designate one expert or professional person to conduct the examination and report on the mental condition of the defendant. For purposes of the examination, the court may order the defendant committed to a hospital or other suitably secure public or private mental health facility for a period of time necessary to complete the examination, but not to exceed fifteen days from the time of admission to the facility. If the defendant is being held in jail or other detention facility, upon agreement of the parties, the court may direct that the examination be conducted at the jail or other detention facility. (2006 Ed.) Criminally Insane—Procedures (b) When a defendant is ordered to be committed for inpatient examination under this subsection (1), the court may delay granting bail until the defendant has been evaluated for competency or sanity and appears before the court. Following the evaluation, in determining bail the court shall consider: (i) Recommendations of the expert or professional persons regarding the defendant’s competency, sanity, or diminished capacity; (ii) whether the defendant has a recent history of one or more violent acts; (iii) whether the defendant has previously been acquitted by reason of insanity or found incompetent; (iv) whether it is reasonably likely the defendant will fail to appear for a future court hearing; and (v) whether the defendant is a threat to public safety. (2) The court may direct that a qualified expert or professional person retained by or appointed for the defendant be permitted to witness the examination authorized by subsection (1) of this section, and that the defendant shall have access to all information obtained by the court appointed experts or professional persons. The defendant’s expert or professional person shall have the right to file his or her own report following the guidelines of subsection (3) of this section. If the defendant is indigent, the court shall upon the request of the defendant assist him or her in obtaining an expert or professional person. (3) The report of the examination shall include the following: (a) A description of the nature of the examination; (b) A diagnosis of the mental condition of the defendant; (c) If the defendant suffers from a mental disease or defect, or is developmentally disabled, an opinion as to competency; (d) If the defendant has indicated his or her intention to rely on the defense of insanity pursuant to RCW 10.77.030, an opinion as to the defendant’s sanity at the time of the act; (e) When directed by the court, an opinion as to the capacity of the defendant to have a particular state of mind which is an element of the offense charged; (f) An opinion as to whether the defendant should be evaluated by a *county designated mental health professional under chapter 71.05 RCW, and an opinion as to whether the defendant is a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions. (4) The secretary may execute such agreements as appropriate and necessary to implement this section. [2004 c 9 § 1; 2000 c 74 § 1; 1998 c 297 § 34; 1989 c 420 § 4; 1974 ex.s. c 198 § 6; 1973 1st ex.s. c 117 § 6.] *Reviser’s note: The term "county designated mental health professional" as defined in RCW 10.77.010 was changed to "designated mental health professional" by 2005 c 504 § 106. Severability—2000 c 74: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2000 c 74 § 8.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.065 Mental condition evaluations—Reports and recommendations required. (1)(a)(i) The facility conducting the evaluation shall provide its report and recommendation to the court in which the criminal proceeding is pend10.77.065 (2006 Ed.) 10.77.065 ing. A copy of the report and recommendation shall be provided to the *county designated mental health professional, the prosecuting attorney, the defense attorney, and the professional person at the local correctional facility where the defendant is being held, or if there is no professional person, to the person designated under (a)(ii) of this subsection. Upon request, the facility shall also provide copies of any source documents relevant to the evaluation to the *county designated mental health professional. The report and recommendation shall be provided not less than twenty-four hours preceding the transfer of the defendant to the correctional facility in the county in which the criminal proceeding is pending. (ii) If there is no professional person at the local correctional facility, the local correctional facility shall designate a professional person as defined in RCW 71.05.020 or, in cooperation with the regional support network, a professional person at the regional support network to receive the report and recommendation. (iii) When a defendant is transferred to the facility conducting the evaluation, or upon commencement of a defendant’s evaluation in the local correctional facility, the local correctional facility must notify the evaluator or the facility conducting the evaluation of the name of the professional person, or person designated under (a)(ii) of this subsection to receive the report and recommendation. (b) If the facility concludes, under RCW 10.77.060(3)(f), the person should be kept under further control, an evaluation shall be conducted of such person under chapter 71.05 RCW. The court shall order an evaluation be conducted by the appropriate *county designated mental health professional: (i) Prior to release from confinement for such person who is convicted, if sentenced to confinement for twenty-four months or less; (ii) for any person who is acquitted; or (iii) for any person: (A) Whose charges are dismissed pursuant to RCW 10.77.090(4); or (B) whose nonfelony charges are dismissed. (2) The *county designated mental health professional shall provide written notification within twenty-four hours of the results of the determination whether to commence proceedings under chapter 71.05 RCW. The notification shall be provided to the persons identified in subsection (1)(a) of this section. (3) The prosecuting attorney shall provide a copy of the results of any proceedings commenced by the *county designated mental health professional under subsection (2) of this section to the facility conducting the evaluation under this chapter. (4) The fact of admission and all information and records compiled, obtained, or maintained in the course of providing services under this chapter may also be disclosed to the courts solely to prevent the entry of any evaluation or treatment order that is inconsistent with any order entered under chapter 71.05 RCW. [2000 c 74 § 2; 1998 c 297 § 35.] *Reviser’s note: The term "county designated mental health professional" as defined in RCW 10.77.010 was changed to "designated mental health professional" by 2005 c 504 § 106. Severability—2000 c 74: See note following RCW 10.77.060. Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. [Title 10 RCW—page 45] 10.77.070 Title 10 RCW: Criminal Procedure 10.77.070 10.77.070 Examination rights of defendant’s expert or professional person. When the defendant wishes to be examined by a qualified expert or professional person of his or her own choice such examiner shall be permitted to have reasonable access to the defendant for the purpose of such examination, as well as to all relevant medical and psychological records and reports. [1998 c 297 § 36; 1973 1st ex.s. c 117 § 7.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.080 10.77.080 Motion for acquittal on grounds of insanity—Hearing—Findings. The defendant may move the court for a judgment of acquittal on the grounds of insanity: PROVIDED, That a defendant so acquitted may not later contest the validity of his or her detention on the grounds that he or she did not commit the acts charged. At the hearing upon the motion the defendant shall have the burden of proving by a preponderance of the evidence that he or she was insane at the time of the offense or offenses with which he or she is charged. If the court finds that the defendant should be acquitted by reason of insanity, it shall enter specific findings in substantially the same form as set forth in RCW 10.77.040. If the motion is denied, the question may be submitted to the trier of fact in the same manner as other issues of fact. [1998 c 297 § 37; 1974 ex.s. c 198 § 7; 1973 1st ex.s. c 117 § 8.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.090 10.77.090 Stay of proceedings—Commitment— Findings—Evaluation, treatment—Extensions of commitment—Alternative procedures—Procedure in nonfelony charge. (1)(a) If at any time during the pendency of an action and prior to judgment the court finds, following a report as provided in RCW 10.77.060, a defendant is incompetent the court shall order the proceedings against the defendant be stayed except as provided in subsection (7) of this section. (b) If the defendant is charged with a felony and determined to be incompetent, the court shall commit the defendant to the custody of the secretary, who shall place such defendant in an appropriate facility of the department for evaluation and treatment, or the court may alternatively order the defendant to undergo evaluation and treatment at some other facility as determined by the department, or under the guidance and control of a professional person, until he or she has regained the competency necessary to understand the proceedings against him or her and assist in his or her own defense, but in any event, for no longer than a period of ninety days. (c) A defendant found incompetent shall be evaluated at the direction of the secretary and a determination made whether the defendant is developmentally disabled. Such evaluation and determination shall be accomplished as soon as possible following the court’s placement of the defendant in the custody of the secretary. When appropriate, and subject to available funds, if the defendant is determined to be developmentally disabled, he or she may be placed in a program specifically reserved for the treatment and training of persons with developmental disabilities where the defendant shall have the right to habilitation according to an individualized [Title 10 RCW—page 46] service plan specifically developed for the particular needs of the defendant. The program shall be separate from programs serving persons involved in any other treatment or habilitation program. The program shall be appropriately secure under the circumstances and shall be administered by developmental disabilities professionals who shall direct the habilitation efforts. The program shall provide an environment affording security appropriate with the charged criminal behavior and necessary to protect the public safety. The department may limit admissions of such persons to this specialized program in order to ensure that expenditures for services do not exceed amounts appropriated by the legislature and allocated by the department for such services. The department may establish admission priorities in the event that the number of eligible persons exceeds the limits set by the department. A copy of the report shall be sent to the facility. (d)(i) If the defendant is: (A) Charged with a nonfelony crime and has: (I) A history of one or more violent acts, or a pending charge of one or more violent acts; or (II) been previously acquitted by reason of insanity or been previously found incompetent under this chapter or any equivalent federal or out-of-state statute with regard to an alleged offense involving actual, threatened, or attempted physical harm to a person; and (B) Found by the court to be not competent; then (C) The court shall order the secretary to place the defendant: (I) At a secure mental health facility in the custody of the department or an agency designated by the department for mental health treatment and restoration of competency. The placement shall not exceed fourteen days in addition to any unused time of the evaluation under RCW 10.77.060. The court shall compute this total period and include its computation in the order. The fourteen-day period plus any unused time of the evaluation under RCW 10.77.060 shall be considered to include only the time the defendant is actually at the facility and shall be in addition to reasonable time for transport to or from the facility; (II) on conditional release for up to ninety days for mental health treatment and restoration of competency; or (III) any combination of (d)(i)(C)(I) and (II) of this subsection. (ii) At the end of the mental health treatment and restoration period in (d)(i) of this subsection, or at any time a professional person determines competency has been, or is unlikely to be, restored the defendant shall be returned to court for a hearing. If, after notice and hearing, competency has been restored, the stay entered under (a) of this subsection shall be lifted. If competency has not been restored, the proceedings shall be dismissed. If the court concludes that competency has not been restored, but that further treatment within the time limits established by (d)(i) of this subsection is likely to restore competency, the court may order that treatment for purposes of competency restoration be continued. Such treatment may not extend beyond the combination of time provided for in (d)(i)(C)(I) and (II) of this subsection. (iii)(A) If the proceedings are dismissed under (d)(ii) of this subsection and the defendant was on conditional release at the time of dismissal, the court shall order the *county designated mental health professional within that county to evaluate the defendant pursuant to chapter 71.05 RCW. The eval(2006 Ed.) Criminally Insane—Procedures uation may be conducted in any location chosen by the professional. (B) If the defendant was in custody and not on conditional release at the time of dismissal, the defendant shall be detained and sent to an evaluation and treatment facility for up to seventy-two hours excluding Saturdays, Sundays, and holidays for evaluation for purposes of filing a petition under chapter 71.05 RCW. The seventy-two hour period shall commence upon the next nonholiday weekday following the court order, and shall run to the end of the last nonholiday weekday within the seventy-two hour period. (iv) If at any time during the proceeding the court finds, following notice and hearing, a defendant is not likely to regain competency, the proceedings shall be dismissed and the defendant shall be evaluated as provided in (d)(iii) of this subsection. (e) If the defendant is charged with a crime that is not a felony and the defendant does not meet the criteria under (d) of this subsection, the court may stay or dismiss proceedings and detain the defendant for sufficient time to allow the *county designated mental health professional to evaluate the defendant and consider initial detention proceedings under chapter 71.05 RCW. The court must give notice to all parties at least twenty-four hours before the dismissal of any proceeding under this subsection (1)(e), and provide an opportunity for a hearing on whether to dismiss the proceedings. (2) On or before expiration of the initial ninety-day period of commitment under subsection (1)(b) of this section the court shall conduct a hearing, at which it shall determine whether or not the defendant is incompetent. (3) If the court finds by a preponderance of the evidence that a defendant charged with a felony is incompetent, the court shall have the option of extending the order of commitment or alternative treatment for an additional ninety-day period, but it must at the time of extension set a date for a prompt hearing to determine the defendant’s competency before the expiration of the second ninety-day period. The defendant, the defendant’s attorney, or the prosecutor shall have the right to demand that the hearing be before a jury. No extension shall be ordered for a second ninety-day period, nor for any subsequent period as provided in subsection (4) of this section if the defendant’s incompetence has been determined by the secretary to be solely the result of a developmental disability which is such that competence is not reasonably likely to be regained during an extension. (4) For persons charged with a felony, at the hearing upon the expiration of the second ninety-day period or at the end of the first ninety-day period, in the case of a developmentally disabled defendant, if the jury or court finds that the defendant is incompetent, the charges shall be dismissed without prejudice, and either civil commitment proceedings shall be instituted or the court shall order the release of the defendant: PROVIDED, That the criminal charges shall not be dismissed if the court or jury finds that: (a) The defendant (i) is a substantial danger to other persons; or (ii) presents a substantial likelihood of committing criminal acts jeopardizing public safety or security; and (b) there is a substantial probability that the defendant will regain competency within a reasonable period of time. In the event that the court or jury makes such a finding, the court may extend the period of commitment for an additional six months. At the end of the (2006 Ed.) 10.77.092 six-month period, if the defendant remains incompetent, the charges shall be dismissed without prejudice and either civil commitment proceedings shall be instituted or the court shall order release of the defendant. (5) If the defendant is referred to the *county designated mental health professional for consideration of initial detention proceedings under chapter 71.05 RCW pursuant to this chapter, the *county designated mental health professional shall provide prompt written notification of the results of the determination whether to commence initial detention proceedings under chapter 71.05 RCW, and whether the person was detained. The notification shall be provided to the court in which the criminal action was pending, the prosecutor, the defense attorney in the criminal action, and the facility that evaluated the defendant for competency. (6) The fact that the defendant is unfit to proceed does not preclude any pretrial proceedings which do not require the personal participation of the defendant. (7) A defendant receiving medication for either physical or mental problems shall not be prohibited from standing trial, if the medication either enables the defendant to understand the proceedings against him or her and to assist in his or her own defense, or does not disable him or her from so understanding and assisting in his or her own defense. (8) At or before the conclusion of any commitment period provided for by this section, the facility providing evaluation and treatment shall provide to the court a written report of examination which meets the requirements of RCW 10.77.060(3). [2000 c 74 § 3; 1998 c 297 § 38; 1989 c 420 § 5; 1979 ex.s. c 215 § 3; 1974 ex.s. c 198 § 8; 1973 1st ex.s. c 117 § 9.] *Reviser’s note: The term "county designated mental health professional" as defined in RCW 10.77.010 was changed to "designated mental health professional" by 2005 c 504 § 106. Severability—2000 c 74: See note following RCW 10.77.060. Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.092 10.77.092 Involuntary medication—Serious offenses. (1) For purposes of determining whether a court may authorize involuntary medication for the purpose of competency restoration pursuant to RCW 10.77.090, a pending charge involving any one or more of the following crimes is a serious offense per se in the context of competency restoration: (a) Any violent offense, sex offense, serious traffic offense, and most serious offense, as those terms are defined in RCW 9.94A.030; (b) Any offense, except nonfelony counterfeiting offenses, included in crimes against persons in RCW 9.94A.411; (c) Any offense contained in chapter 9.41 RCW (firearms and dangerous weapons); (d) Any offense listed as domestic violence in RCW 10.99.020; (e) Any offense listed as a harassment offense in chapter 9A.46 RCW; (f) Any violation of chapter 69.50 RCW that is a class B felony; or (g) Any city or county ordinance or statute that is equivalent to an offense referenced in this subsection. [Title 10 RCW—page 47] 10.77.093 Title 10 RCW: Criminal Procedure (2)(a) In a particular case, a court may determine that a pending charge not otherwise defined as serious by state or federal law or by a city or county ordinance is, nevertheless, a serious offense within the context of competency restoration treatment when the conduct in the charged offense falls within the standards established in (b) of this subsection. (b) To determine that the particular case is a serious offense within the context of competency restoration, the court must consider the following factors and determine that one or more of the following factors creates a situation in which the offense is serious: (i) The charge includes an allegation that the defendant actually inflicted bodily or emotional harm on another person or that the defendant created a reasonable apprehension of bodily or emotional harm to another; (ii) The extent of the impact of the alleged offense on the basic human need for security of the citizens within the jurisdiction; (iii) The number and nature of related charges pending against the defendant; (iv) The length of potential confinement if the defendant is convicted; and (v) The number of potential and actual victims or persons impacted by the defendant’s alleged acts. [2004 c 157 § 3.] Findings—Intent—Severability—Effective date—2004 c 157: See notes following RCW 10.77.010. that, where appropriate, and subject to available funds, persons with developmental disabilities who have been charged with crimes that involve a threat to public safety or security and have been found incompetent to stand trial or not guilty by reason of insanity should receive state services addressing their needs, that such services must be provided in conformance with an individual habilitation plan, and that their initial treatment should be separate and discrete from treatment for persons involved in any other treatment or habilitation program in a manner consistent with the needs of public safety. [1998 c 297 § 28; 1989 c 420 § 1. Formerly RCW 10.77.005.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.097 Records and reports accompany defendant upon transfer. A copy of relevant records and reports as defined by the department, in consultation with the department of corrections, made pursuant to this chapter, and including relevant information necessary to meet the requirements of RCW 10.77.065(1) and 10.77.090, shall accompany the defendant upon transfer to a mental health facility or a correctional institution or facility. [2000 c 74 § 4; 1998 c 297 § 47.] 10.77.097 Severability—2000 c 74: See note following RCW 10.77.060. Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.100 Experts or professional persons as witnesses. Subject to the rules of evidence, experts or professional persons who have reported pursuant to this chapter may be called as witnesses at any proceeding held pursuant to this chapter. Both the prosecution and the defendant may summon any other qualified expert or professional persons to testify. [1974 ex.s. c 198 § 9; 1973 1st ex.s. c 117 § 10.] 10.77.100 10.77.093 10.77.093 Involuntary medication—Civil commitment. When the court must make a determination whether to order involuntary medications for the purpose of competency restoration or for maintenance of competency, the court shall inquire, and shall be told, and to the extent that the prosecutor or defense attorney is aware, whether the defendant is the subject of a pending civil commitment proceeding or has been ordered into involuntary treatment pursuant to a civil commitment proceeding. [2004 c 157 § 4.] Findings—Intent—Severability—Effective date—2004 c 157: See notes following RCW 10.77.010. 10.77.095 10.77.095 Findings—Developmental disabilities. The legislature finds that among those persons who endanger the safety of others by committing crimes are a small number of persons with developmental disabilities. While their conduct is not typical of the vast majority of persons with developmental disabilities who are responsible citizens, for their own welfare and for the safety of others the state may need to exercise control over those few dangerous individuals who are developmentally disabled, have been charged with crimes that involve a threat to public safety or security, and have been found either incompetent to stand trial or not guilty by reason of insanity. The legislature finds, however, that the use of civil commitment procedures under chapter 71.05 RCW to effect state control over dangerous developmentally disabled persons has resulted in their commitment to institutions for the mentally ill. The legislature finds that existing programs in mental institutions may be inappropriate for persons who are developmentally disabled because the services provided in mental institutions are oriented to persons with mental illness, a condition not necessarily associated with developmental disabilities. Therefore, the legislature believes [Title 10 RCW—page 48] 10.77.110 Acquittal of crime. (1) If a defendant is acquitted of a crime by reason of insanity, and it is found that he or she is not a substantial danger to other persons, and does not present a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, the court shall direct the defendant’s release. If it is found that such defendant is a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, the court shall order his or her hospitalization, or any appropriate alternative treatment less restrictive than detention in a state mental hospital, pursuant to the terms of this chapter. (2) If the defendant has been found not guilty by reason of insanity and a substantial danger, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, so as to require treatment then the secretary shall immediately cause the defendant to be evaluated to ascertain if the defendant is developmentally disabled. When appropriate, and subject to available funds, the defendant may be committed to a program specifically reserved for the treatment and training of developmentally disabled persons. A person so committed shall receive habilitation services according to an individualized service plan specifically developed to treat the behavior which was the subject of the 10.77.110 (2006 Ed.) Criminally Insane—Procedures 10.77.150 custody shall so remain and be forthwith returned to the institution or facility designated by the secretary until a final decision has been rendered in the cause. [2000 c 94 § 15; 1989 c 420 § 7; 1974 ex.s. c 198 § 11; 1973 1st ex.s. c 117 § 12.] criminal proceedings. The treatment program shall be administered by developmental disabilities professionals and others trained specifically in the needs of developmentally disabled persons. The treatment program shall provide physical security to a degree consistent with the finding that the defendant is dangerous and may incorporate varying conditions of security and alternative sites when the dangerousness of any particular defendant makes this necessary. The department may limit admissions to this specialized program in order to ensure that expenditures for services do not exceed amounts appropriated by the legislature and allocated by the department for such services. The department may establish admission priorities in the event that the number of eligible persons exceeds the limits set by the department. (3) If it is found that such defendant is not a substantial danger to other persons, and does not present a substantial likelihood of committing criminal acts jeopardizing public safety or security, but that he or she is in need of control by the court or other persons or institutions, the court shall direct the defendant’s conditional release. [2000 c 94 § 14; 1998 c 297 § 39; 1989 c 420 § 6; 1983 c 25 § 1; 1979 ex.s. c 215 § 4; 1974 ex.s. c 198 § 10; 1973 1st ex.s. c 117 § 11.] 10.77.140 Periodic examinations—Developmentally disabled—Reports—Notice to court. Each person committed to a hospital or other facility or conditionally released pursuant to this chapter shall have a current examination of his or her mental condition made by one or more experts or professional persons at least once every six months. The person may retain, or if the person is indigent and so requests, the court may appoint a qualified expert or professional person to examine him or her, and such expert or professional person shall have access to all hospital records concerning the person. In the case of a committed or conditionally released person who is developmentally disabled, the expert shall be a developmental disabilities professional. The secretary, upon receipt of the periodic report, shall provide written notice to the court of commitment of compliance with the requirements of this section. [1998 c 297 § 40; 1989 c 420 § 8; 1974 ex.s. c 198 § 12; 1973 1st ex.s. c 117 § 14.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.120 10.77.120 Confinement of committed person—Custody—Hearings—Release. The secretary shall forthwith provide adequate care and individualized treatment at one or several of the state institutions or facilities under his or her direction and control wherein persons committed as criminally insane may be confined. Such persons shall be under the custody and control of the secretary to the same extent as are other persons who are committed to the secretary’s custody, but such provision shall be made for their control, care, and treatment as is proper in view of their condition. In order that the secretary may adequately determine the nature of the mental illness or developmental disability of the person committed to him or her as criminally insane, and in order for the secretary to place such individuals in a proper facility, all persons who are committed to the secretary as criminally insane shall be promptly examined by qualified personnel in such a manner as to provide a proper evaluation and diagnosis of such individual. The examinations of all developmentally disabled persons committed under this chapter shall be performed by developmental disabilities professionals. Any person so committed shall not be released from the control of the secretary save upon the order of a court of competent jurisdiction made after a hearing and judgment of release. Whenever there is a hearing which the committed person is entitled to attend, the secretary shall send him or her in the custody of one or more department employees to the county where the hearing is to be held at the time the case is called for trial. During the time the person is absent from the facility, he or she shall be confined in a facility designated by and arranged for by the department, and shall at all times be deemed to be in the custody of the department employee and provided necessary treatment. If the decision of the hearing remits the person to custody, the department employee shall forthwith return the person to such institution or facility designated by the secretary. If the state appeals an order of release, such appeal shall operate as a stay, and the person in (2006 Ed.) 10.77.140 10.77.150 Conditional release—Application— Order—Procedure. (1) Persons examined pursuant to RCW 10.77.140 may make application to the secretary for conditional release. The secretary shall, after considering the reports of experts or professional persons conducting the examination pursuant to RCW 10.77.140, forward to the court of the county which ordered the person’s commitment the person’s application for conditional release as well as the secretary’s recommendations concerning the application and any proposed terms and conditions upon which the secretary reasonably believes the person can be conditionally released. Conditional release may also contemplate partial release for work, training, or educational purposes. (2) The court of the county which ordered the person’s commitment, upon receipt of an application for conditional release with the secretary’s recommendation for conditional release, shall within thirty days schedule a hearing. The court may schedule a hearing on applications recommended for disapproval by the secretary. The prosecuting attorney shall represent the state at such hearings and shall have the right to have the patient examined by an expert or professional person of the prosecuting attorney’s choice. If the committed person is indigent, and he or she so requests, the court shall appoint a qualified expert or professional person to examine the person on his or her behalf. The issue to be determined at such a hearing is whether or not the person may be released conditionally without substantial danger to other persons, or substantial likelihood of committing criminal acts jeopardizing public safety or security. The court, after the hearing, shall rule on the secretary’s recommendations, and if it disapproves of conditional release, may do so only on the basis of substantial evidence. The court may modify the suggested terms and conditions on which the person is to be conditionally released. Pursuant to the determination of the court after hearing, the committed person shall thereupon be released on such conditions as the court determines to be necessary, or 10.77.150 [Title 10 RCW—page 49] 10.77.155 Title 10 RCW: Criminal Procedure shall be remitted to the custody of the secretary. If the order of conditional release includes a requirement for the committed person to report to a community corrections officer, the order shall also specify that the conditionally released person shall be under the supervision of the secretary of corrections or such person as the secretary of corrections may designate and shall follow explicitly the instructions of the secretary of corrections including reporting as directed to a community corrections officer, remaining within prescribed geographical boundaries, and notifying the community corrections officer prior to making any change in the offender’s address or employment. (3) If the court determines that receiving regular or periodic medication or other medical treatment shall be a condition of the committed person’s release, then the court shall require him or her to report to a physician or other medical or mental health practitioner for the medication or treatment. In addition to submitting any report required by RCW 10.77.160, the physician or other medical or mental health practitioner shall immediately upon the released person’s failure to appear for the medication or treatment report the failure to the court, to the prosecuting attorney of the county in which the released person was committed, and to the supervising community corrections officer. (4) Any person, whose application for conditional release has been denied, may reapply after a period of six months from the date of denial. [1998 c 297 § 41; 1993 c 31 § 6; 1982 c 112 § 1; 1974 ex.s. c 198 § 13; 1973 1st ex.s. c 117 § 15.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.155 10.77.155 Conditional release, furlough—Secretary’s recommendation. No court may, without a hearing, enter an order conditionally releasing or authorizing the furlough of a person committed under this chapter, unless the secretary has recommended the release or furlough. If the secretary has not recommended the release or furlough, a hearing shall be held under RCW 10.77.150. [1994 c 150 § 1.] 10.77.160 10.77.160 Conditional release—Reports. When a conditionally released person is required by the terms of his or her conditional release to report to a physician, department of corrections community corrections officer, or medical or mental health practitioner on a regular or periodic basis, the physician, department of corrections community corrections officer, medical or mental health practitioner, or other such person shall monthly, for the first six months after release and semiannually thereafter, or as otherwise directed by the court, submit to the court, the secretary, the institution from which released, and to the prosecuting attorney of the county in which the person was committed, a report stating whether the person is adhering to the terms and conditions of his or her conditional release. [1993 c 31 § 7; 1973 1st ex.s. c 117 § 16.] period of time without constant accompaniment by facility staff, the superintendent, professional person in charge of a treatment facility, or his or her professional designee shall in writing notify the prosecuting attorney of any county to which the person is released and the prosecuting attorney of the county in which the criminal charges against the committed person were dismissed, of the decision conditionally to release the person. The notice shall be provided at least fortyfive days before the anticipated release and shall describe the conditions under which the release is to occur. (2) In addition to the notice required by subsection (1) of this section, the superintendent of each state institution designated for the custody, care, and treatment of persons committed under this chapter shall notify appropriate law enforcement agencies through the state patrol communications network of the furloughs of persons committed under RCW 10.77.090 or 10.77.110. Notification shall be made at least thirty days before the furlough, and shall include the name of the person, the place to which the person has permission to go, and the dates and times during which the person will be on furlough. (3) Upon receiving notice that a person committed under this chapter is being temporarily released under subsection (1) of this section, the prosecuting attorney may seek a temporary restraining order to prevent the release of the person on the grounds that the person is dangerous to self or others. (4) The notice requirements contained in this section shall not apply to emergency medical furloughs. (5) The existence of the notice requirements contained in this section shall not require any extension of the release date in the event the release plan changes after notification. (6) The notice provisions of this section are in addition to those provided in RCW 10.77.205. [1994 c 129 § 4; 1990 c 3 § 106; 1989 c 420 § 9; 1983 c 122 § 2.] Findings—Intent—1994 c 129: See note following RCW 4.24.550. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 10.77.165 10.77.165 Escape or disappearance—Notification requirements. In the event of an escape by a person committed under this chapter from a state institution or the disappearance of such a person on conditional release to the department of social and health services, the superintendent, or in the event of a disappearance of such a person on conditional release to the department of corrections, the community corrections officer shall, as appropriate, notify local law enforcement officers, other governmental agencies, the person’s relatives, and any other appropriate persons about information necessary for the public safety or to assist in the apprehension of the person. The notice provisions of this section are in addition to those provided in RCW 10.77.205. [1993 c 31 § 8; 1990 c 3 § 107; 1989 c 420 § 10; 1983 c 122 § 3.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 10.77.170 10.77.163 10.77.163 Furlough—Notice—Temporary restraining order. (1) Before a person committed under this chapter is permitted temporarily to leave a treatment facility for any [Title 10 RCW—page 50] 10.77.170 Payments to conditionally released persons. As funds are available, the secretary may provide payment to a person conditionally released pursuant to RCW 10.77.150, consistent with the provisions of RCW 72.02.100 (2006 Ed.) Criminally Insane—Procedures and 72.02.110, and may adopt rules and regulations to do so. [1973 1st ex.s. c 117 § 17.] 10.77.180 10.77.180 Conditional release—Periodic review of case. Each person conditionally released pursuant to RCW 10.77.150 shall have his or her case reviewed by the court which conditionally released him or her no later than one year after such release and no later than every two years thereafter, such time to be scheduled by the court. Review may occur in a shorter time or more frequently, if the court, in its discretion, on its own motion, or on motion of the person, the secretary of social and health services, the secretary of corrections, medical or mental health practitioner, or the prosecuting attorney, so determines. The sole question to be determined by the court is whether the person shall continue to be conditionally released. The court in making its determination shall be aided by the periodic reports filed pursuant to RCW 10.77.140 and 10.77.160, and the opinions of the secretary and other experts or professional persons. [1998 c 297 § 42; 1993 c 31 § 9; 1974 ex.s. c 198 § 14; 1973 1st ex.s. c 117 § 18.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.190 Conditional release—Revocation or modification of terms—Procedure. (1) Any person submitting reports pursuant to RCW 10.77.160, the secretary, or the prosecuting attorney may petition the court to, or the court on its own motion may schedule an immediate hearing for the purpose of modifying the terms of conditional release if the petitioner or the court believes the released person is failing to adhere to the terms and conditions of his or her conditional release or is in need of additional care and treatment. (2) If the prosecuting attorney, the secretary of social and health services, the secretary of corrections, or the court, after examining the report filed with them pursuant to RCW 10.77.160, or based on other information received by them, reasonably believes that a conditionally released person is failing to adhere to the terms and conditions of his or her conditional release the court or secretary of social and health services or the secretary of corrections may order that the conditionally released person be apprehended and taken into custody until such time as a hearing can be scheduled to determine the facts and whether or not the person’s conditional release should be revoked or modified. The court shall be notified before the close of the next judicial day of the apprehension. Both the prosecuting attorney and the conditionally released person shall have the right to request an immediate mental examination of the conditionally released person. If the conditionally released person is indigent, the court or secretary of social and health services or the secretary of corrections or their designees shall, upon request, assist him or her in obtaining a qualified expert or professional person to conduct the examination. (3) If the hospital or facility designated to provide outpatient care determines that a conditionally released person presents a threat to public safety, the hospital or facility shall immediately notify the secretary of social and health services or the secretary of corrections or their designees. The secretary shall order that the conditionally released person be apprehended and taken into custody. 10.77.190 (2006 Ed.) 10.77.200 (4) The court, upon receiving notification of the apprehension, shall promptly schedule a hearing. The issue to be determined is whether the conditionally released person did or did not adhere to the terms and conditions of his or her release, or whether the person presents a threat to public safety. Pursuant to the determination of the court upon such hearing, the conditionally released person shall either continue to be conditionally released on the same or modified conditions or his or her conditional release shall be revoked and he or she shall be committed subject to release only in accordance with provisions of this chapter. [1998 c 297 § 43; 1993 c 31 § 10; 1982 c 112 § 2; 1974 ex.s. c 198 § 15; 1973 1st ex.s. c 117 § 19.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.200 10.77.200 Release—Procedure. (1) Upon application by the committed or conditionally released person, the secretary shall determine whether or not reasonable grounds exist for release. In making this determination, the secretary may consider the reports filed under RCW 10.77.060, 10.77.110, 10.77.140, and 10.77.160, and other reports and evaluations provided by professionals familiar with the case. If the secretary approves the release he or she then shall authorize the person to petition the court. (2) The petition shall be served upon the court and the prosecuting attorney. The court, upon receipt of the petition for release, shall within forty-five days order a hearing. Continuance of the hearing date shall only be allowed for good cause shown. The prosecuting attorney shall represent the state, and shall have the right to have the petitioner examined by an expert or professional person of the prosecuting attorney’s choice. If the petitioner is indigent, and the person so requests, the court shall appoint a qualified expert or professional person to examine him or her. If the petitioner is developmentally disabled, the examination shall be performed by a developmental disabilities professional. The hearing shall be before a jury if demanded by either the petitioner or the prosecuting attorney. The burden of proof shall be upon the petitioner to show by a preponderance of the evidence that the petitioner no longer presents, as a result of a mental disease or defect, a substantial danger to other persons, or a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions. (3) Nothing contained in this chapter shall prohibit the patient from petitioning the court for release or conditional release from the institution in which he or she is committed. The issue to be determined on such proceeding is whether the petitioner, as a result of a mental disease or defect, is a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions. Nothing contained in this chapter shall prohibit the committed person from petitioning for release by writ of habeas corpus. [2000 c 94 § 16; 1998 c 297 § 44; 1993 c 31 § 11; 1989 c 420 § 11; 1983 c 25 § 2; 1974 ex.s. c 198 § 16; 1973 1st ex.s. c 117 § 20.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. [Title 10 RCW—page 51] 10.77.205 10.77.205 Title 10 RCW: Criminal Procedure 10.77.205 Sexual or violent offenders—Notice of release, escape, etc.—Definitions. (1)(a) At the earliest possible date, and in no event later than thirty days before conditional release, release, authorized furlough pursuant to RCW 10.77.163, or transfer to a less-restrictive facility than a state mental hospital, the superintendent shall send written notice of the conditional release, release, authorized furlough, or transfer of a person who has been found not guilty of a sex, violent, or felony harassment offense by reason of insanity and who is now in the custody of the department pursuant to this chapter, to the following: (i) The chief of police of the city, if any, in which the person will reside; and (ii) The sheriff of the county in which the person will reside. (b) The same notice as required by (a) of this subsection shall be sent to the following, if such notice has been requested in writing about a specific person committed under this chapter: (i) The victim of the crime for which the person was committed or the victim’s next of kin if the crime was a homicide; (ii) Any witnesses who testified against the person in any court proceedings; and (iii) Any person specified in writing by the prosecuting attorney. Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the person committed under this chapter. (c) In addition to the notice requirements of (a) and (b) of this subsection, the superintendent shall comply with RCW 10.77.163. (d) The thirty-day notice requirement contained in (a) and (b) of this subsection shall not apply to emergency medical furloughs. (e) The existence of the notice requirements in (a) and (b) of this subsection shall not require any extension of the release date in the event the release plan changes after notification. (2) If a person who has been found not guilty of a sex, violent, or felony harassment offense by reason of insanity and who is committed under this chapter escapes, the superintendent shall immediately notify, by the most reasonable and expedient means available, the chief of police of the city and the sheriff of the county in which the person resided immediately before the person’s arrest. If previously requested, the superintendent shall also notify the witnesses and the victim, if any, of the crime for which the person was committed or the victim’s next of kin if the crime was a homicide. The superintendent shall also notify appropriate persons pursuant to RCW 10.77.165. If the person is recaptured, the secretary shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the department learns of such recapture. (3) If the victim, the victim’s next of kin, or any witness is under the age of sixteen, the notice required by this section shall be sent to the parents or legal guardian of the child. (4) The department shall send the notices required by this chapter to the last address provided to the department by [Title 10 RCW—page 52] the requesting party. The requesting party shall furnish the department with a current address. (5) For purposes of this section the following terms have the following meanings: (a) "Violent offense" means a violent offense under RCW 9.94A.030; (b) "Sex offense" means a sex offense under RCW 9.94A.030; (c) "Next of kin" means a person’s spouse, parents, siblings, and children; (d) "Authorized furlough" means a furlough granted after compliance with RCW 10.77.163; (e) "Felony harassment offense" means a crime of harassment as defined in RCW 9A.46.060 that is a felony. [2000 c 94 § 17; 1994 c 129 § 5; 1992 c 186 § 8; 1990 c 3 § 104.] Findings—Intent—1994 c 129: See note following RCW 4.24.550. Severability—1992 c 186: See note following RCW 9A.46.110. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 10.77.207 Persons acquitted of sex offense due to insanity—Release of information authorized. In addition to any other information required to be released under this chapter, the department is authorized, pursuant to RCW 4.24.550, to release relevant information necessary to protect the public concerning a person who was acquitted of a sex offense as defined in RCW 9.94A.030 due to insanity and was subsequently committed to the department pursuant to this chapter. [1990 c 3 § 105.] 10.77.207 Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 10.77.210 Right to adequate care and treatment— Records and reports. (1) Any person involuntarily detained, hospitalized, or committed pursuant to the provisions of this chapter shall have the right to adequate care and individualized treatment. The person who has custody of the patient or is in charge of treatment shall keep records detailing all medical, expert, and professional care and treatment received by a committed person, and shall keep copies of all reports of periodic examinations of the patient that have been filed with the secretary pursuant to this chapter. Except as provided in RCW 10.77.205 and 4.24.550 regarding the release of information concerning insane offenders who are acquitted of sex offenses and subsequently committed pursuant to this chapter, all records and reports made pursuant to this chapter, shall be made available only upon request, to the committed person, to his or her attorney, to his or her personal physician, to the supervising community corrections officer, to the prosecuting attorney, to the court, to the protection and advocacy agency, or other expert or professional persons who, upon proper showing, demonstrates a need for access to such records. All records and reports made pursuant to this chapter shall also be made available, upon request, to the department of corrections or the indeterminate sentence review board if the person was on parole, probation, or community supervision at the time of detention, hospitalization, or commitment or the person is subsequently convicted for the crime for which he or she was detained, hospitalized, or committed pursuant to this chapter. 10.77.210 (2006 Ed.) Criminally Insane—Procedures (2) All relevant records and reports as defined by the department in rule shall be made available, upon request, to criminal justice agencies as defined in RCW 10.97.030. [1998 c 297 § 45; 1993 c 31 § 12; 1990 c 3 § 108; 1989 c 420 § 12; 1983 c 196 § 3; 1973 1st ex.s. c 117 § 21.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 10.77.2101 10.77.2101 Implementation of legislative intent. In developing rules under RCW 10.77.210(2), the department shall implement the following legislative intent: Increasing public safety; and making decisions based on a person’s current conduct and mental condition rather than the classification of the charges. [1998 c 297 § 46.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.220 10.77.220 Incarceration in correctional institution or facility prohibited—Exceptions. No person confined pursuant to this chapter shall be incarcerated in a state correctional institution or facility: PROVIDED, That nothing herein shall prohibit confinement in a mental health facility located wholly within a correctional institution. Confinement in a county jail or other local facility while awaiting either placement in a treatment program or a court hearing pursuant to this chapter is permitted for no more than seven days. [1982 c 112 § 3; 1974 ex.s. c 198 § 17; 1973 1st ex.s. c 117 § 22.] 10.77.230 10.77.230 Appellate review. Either party may seek appellate review of the judgment of any hearing held pursuant to the provisions of this chapter. [1988 c 202 § 16; 1974 ex.s. c 198 § 18; 1973 1st ex.s. c 117 § 23.] Rules of court: Cf. RAP 2.2, 18.22. Severability—1988 c 202: See note following RCW 2.24.050. 10.77.240 10.77.240 Existing rights not affected. Nothing in this chapter shall prohibit a person presently committed from exercising a right presently available to him or her for obtaining release from confinement, including the right to petition for a writ of habeas corpus. [1999 c 13 § 3; 1973 1st ex.s. c 117 § 24.] Purpose—Construction—1999 c 13: See note following RCW 10.77.010. 10.77.250 10.77.250 Responsibility for costs—Reimbursement. The department shall be responsible for all costs relating to the evaluation and treatment of persons committed to it pursuant to any provisions of this chapter, and the logistical and supportive services pertaining thereto. Reimbursement may be obtained by the department pursuant to RCW 43.20B.330. [1987 c 75 § 1; 1985 c 245 § 1; 1973 1st ex.s. c 117 § 25.] Savings—Severability—1987 c 75: See RCW 43.20B.900 and 43.20B.901. 10.77.260 10.77.260 Violent act—Presumptions. (1) In determining whether a defendant has committed a violent act the court must: (2006 Ed.) 10.77.900 (a) Presume that a past conviction, guilty plea, or finding of not guilty by reason of insanity establishes the elements necessary for the crime charged; (b) Consider that the elements of a crime may not be sufficient in themselves to establish that the defendant committed a violent act; and (c) Presume that the facts underlying the elements, if unrebutted, are sufficient to establish that the defendant committed a violent act. (2) The presumptions in subsection (1) of this section are rebuttable. (3) In determining the facts underlying the elements of any crime under subsection (1) of this section, the court may consider information including, but not limited to, the following material relating to the crime: (a) Affidavits or declarations made under penalty of perjury; (b) Criminal history record information, as defined in chapter 10.97 RCW; and (c) Its own or certified copies of another court’s records such as criminal complaints, certifications of probable cause to detain, dockets, and orders on judgment and sentencing. [2000 c 74 § 5.] Severability—2000 c 74: See note following RCW 10.77.060. 10.77.800 10.77.800 Evaluation of chapter 297, Laws of 1998— Recidivism, competency restoration, information sharing. (1) The Washington state institute for public policy shall conduct an evaluation of chapter 297, Laws of 1998 to determine: (a) Whether there has been a reduction in recidivism for mentally ill offenders who are felons or who meet the criteria specified in RCW 10.77.090(1)(d) and received mental health services as a result of the provisions of chapters 10.77 and 71.05 RCW. (b) The number of nonfelony offenders who have been referred to competency restoration under RCW 10.77.090(1)(d)(i)(C) and the percentage of such offenders who have been restored to competency within the allotted time for felons, nonfelony offenders meeting the criteria under RCW 10.77.090(1)(d), and the nonfelony offenders who do not meet this criteria. (c) Whether the information-sharing provisions of chapter 297, Laws of 1998 are adequate to provide necessary information to the affected parties. The analysis shall include findings as to whether the flow of information is resulting in the efficient usage of the information and whether there are revisions in the flow which would better allow the courts, professional persons, and parties to proceedings to make better use of the information. (2) The evaluation shall be presented to the legislature on or before November 15, 2003. [1998 c 297 § 54.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. 10.77.900 10.77.900 Savings—Construction—1973 1st ex.s. c 117. (1) Any acts done before July 1, 1973 and any proceedings then pending and any constitutional right or any action taken in any proceeding pending under statutes in effect prior to July 1, 1973 are not impaired by this chapter. [Title 10 RCW—page 53] 10.77.910 Title 10 RCW: Criminal Procedure (2) This chapter shall also apply to persons committed under prior law as incompetent to stand trial or as being criminally insane and to any proceedings in court then pending or thereafter commenced regardless of when the proceedings were commenced, except to the extent that in the opinion of the court, the former procedure should continue to be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedures of this chapter. [1973 1st ex.s. c 117 § 26.] 10.79.150 10.79.160 10.79.170 Strip, body cavity searches—Written record required, contents—Unnecessary persons prohibited. Strip, body cavity searches—Physical examinations for public health purposes excluded. Strip, body cavity searches—Nonliability when search delayed. Rules of court: Search and seizure—CrR 2.3; CrRLJ 2.3. Alcoholic beverage control, search and seizure: Chapter 66.32 RCW. Controlled substances, search and seizure: RCW 69.50.509. 10.79.015 10.77.940 Equal application of 1989 c 420—Evaluation for developmental disability. The provisions of chapter 420, Laws of 1989 shall apply equally to persons in the custody of the department on May 13, 1989, who were found by a court to be not guilty by reason of insanity or incompetent to stand trial, or who have been found to have committed acts constituting a felony pursuant to RCW 71.05.280(3) and present a substantial likelihood of repeating similar acts, and the secretary shall cause such persons to be evaluated to ascertain if such persons are developmentally disabled for placement in a program specifically reserved for the treatment and training of persons with developmental disabilities. [1999 c 13 § 4; 1989 c 420 § 17.] 10.79.015 Other grounds for issuance of search warrant. Any such magistrate, when satisfied that there is reasonable cause, may also, upon like complaint made on oath, issue search warrant in the following cases, to wit: (1) To search for and seize any counterfeit or spurious coin, or forged instruments, or tools, machines or materials, prepared or provided for making either of them. (2) To search for and seize any gaming apparatus used or kept, and to be used in any unlawful gaming house, or in any building, apartment or place, resorted to for the purpose of unlawful gaming. (3) To search for and seize any evidence material to the investigation or prosecution of any homicide or any felony: PROVIDED, That if the evidence is sought to be secured from any radio or television station or from any regularly published newspaper, magazine or wire service, or from any employee of such station, wire service or publication, the evidence shall be secured only through a subpoena duces tecum unless: (a) There is probable cause to believe that the person or persons in possession of the evidence may be involved in the crime under investigation; or (b) there is probable cause to believe that the evidence sought to be seized will be destroyed or hidden if subpoena duces tecum procedures are followed. As used in this subsection, "person or persons" includes both natural and judicial persons. (4) To search for and seize any instrument, apparatus or device used to obtain telephone or telegraph service in violation of RCW 9.26A.110 or 9.26A.115. [2003 c 53 § 94; 1980 c 52 § 1; 1972 ex.s. c 75 § 2; 1969 c 83 § 1; 1949 c 86 § 1; Code 1881 § 986; 1873 p 216 § 154; 1854 p 101 § 2; Rem. Supp. 1949 § 2238. Formerly RCW 10.79.010, part.] Purpose—Construction—1999 c 13: See note following RCW 10.77.010. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 10.77.910 10.77.910 Severability—1973 1st ex.s. c 117. If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or its application of the provision to other persons or circumstances is not affected. [1973 1st ex.s. c 117 § 27.] 10.77.920 10.77.920 Chapter successor to *chapter 10.76 RCW. Sections 1 through 27 of this act shall constitute a new chapter in Title 10 RCW, and shall be considered the successor chapter to *chapter 10.76 RCW. [1973 1st ex.s. c 117 § 28.] *Reviser’s note: Chapter 10.76 RCW was repealed by 1973 1st ex.s. c 117 § 29. 10.77.930 10.77.930 Effective date—1973 1st ex.s. c 117. This act shall take effect on July 1, 1973. [1973 1st ex.s. c 117 § 30.] 10.77.940 10.79.020 Chapter 10.79 Chapter 10.79 RCW SEARCHES AND SEIZURES Sections 10.79.015 10.79.020 10.79.040 10.79.050 10.79.060 10.79.070 10.79.080 10.79.090 10.79.100 10.79.110 10.79.120 10.79.130 10.79.140 Other grounds for issuance of search warrant. To whom directed—Contents. Search without warrant unlawful—Penalty. Restoration of stolen property to owner—Duties of officers. Strip, body cavity searches—Legislative intent. Strip, body cavity searches—Definitions. Strip, body cavity searches—Warrant, authorization, report. Strip, body cavity searches—Medical care not precluded. Strip, body cavity searches—Standards for conducting. Strip, body cavity searches—Actions for damages, injunctive relief. Strip, body cavity searches—Application of RCW 10.79.130 through 10.79.160. Strip, body cavity searches—Warrant required—Exceptions. Strip, body cavity searches—Uncategorized searches—Determination of reasonable suspicion, probable cause—Lessintrusive alternatives. [Title 10 RCW—page 54] 10.79.020 To whom directed—Contents. All such warrants shall be directed to the sheriff of the county, or his deputy, or to any constable of the county, commanding such officer to search the house or place where the stolen property or other things for which he is required to search are believed to be concealed, which place and property, or things to be searched for shall be designated and described in the warrant, and to bring such stolen property or other things, when found, and the person in whose possession the same shall be found, before the magistrate who shall issue the warrant, or before some other magistrate or court having cognizance of the case. [Code 1881 § 969; 1873 p 216 § 155; 1854 p 101 § 3; RRS § 2239.] 10.79.040 10.79.040 Search without warrant unlawful—Penalty. (1) It shall be unlawful for any policeman or other peace officer to enter and search any private dwelling house (2006 Ed.) Searches and Seizures or place of residence without the authority of a search warrant issued upon a complaint as by law provided. (2) Any policeman or other peace officer violating the provisions of this section is guilty of a gross misdemeanor. [2003 c 53 § 95; 1921 c 71 § 1; RRS § 2240-1. FORMER PART OF SECTION: 1921 c 71 § 2; RRS § 2240-2, now codified as RCW 10.79.045.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 10.79.050 Restoration of stolen property to owner— Duties of officers. All property obtained by larceny, robbery or burglary, shall be restored to the owner; and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his rights to such property; and it shall be the duty of the officer who shall arrest any person charged as principal or accessory in any robbery or larceny, to secure the property alleged to have been stolen, and he shall be answerable for the same, and shall annex a schedule thereof to his return of the warrant. [Code 1881 § 851; 1873 p 192 § 57; 1854 p 84 § 51; RRS § 2129.] 10.79.050 10.79.060 Strip, body cavity searches—Legislative intent. It is the intent of the legislature to establish policies regarding the practice of strip searching persons booked into holding, detention, or local correctional facilities. It is the intent of the legislature to restrict the practice of strip searching and body cavity searching persons booked into holding, detention, or local correctional facilities to those situations where such searches are necessary. [1983 1st ex.s. c 42 § 1.] 10.79.060 Effective date—1983 1st ex.s. c 42: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect on July 1, 1983." [1983 1st ex.s. c 42 § 10.] Severability—1983 1st ex.s. c 42: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1983 1st ex.s. c 42 § 9.] 10.79.070 Strip, body cavity searches—Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout RCW 10.79.060 through 10.79.110. (1) "Strip search" means having a person remove or arrange some or all of his or her clothing so as to permit an inspection of the genitals, buttocks, anus, or undergarments of the person or breasts of a female person. (2) "Body cavity search" means the touching or probing of a person’s body cavity, whether or not there is actual penetration of the body cavity. (3) "Body cavity" means the stomach or rectum of a person and the vagina of a female person. (4) "Law enforcement agency" and "law enforcement officer" include local departments of corrections created pursuant to RCW 70.48.090(3) and employees thereof. [1983 1st ex.s. c 42 § 2.] 10.79.070 Effective date—Severability—1983 1st ex.s. c 42: See notes following RCW 10.79.060. 10.79.080 Strip, body cavity searches—Warrant, authorization, report. (1) No person may be subjected to a body cavity search by or at the direction of a law enforcement 10.79.080 (2006 Ed.) 10.79.100 agency unless a search warrant is issued pursuant to superior court criminal rules. (2) No law enforcement officer may seek a warrant for a body cavity search without first obtaining specific authorization for the body cavity search from the ranking shift supervisor of the law enforcement authority. Authorization for the body cavity search may be obtained electronically: PROVIDED, That such electronic authorization shall be reduced to writing by the law enforcement officer seeking the authorization and signed by the ranking supervisor as soon as possible thereafter. (3) Before any body cavity search is authorized or conducted, a thorough pat-down search, a thorough electronic metal-detector search, and a thorough clothing search, where appropriate, must be used to search for and seize any evidence of a crime, contraband, fruits of crime, things otherwise criminally possessed, weapons, or other things by means of which a crime has been committed or reasonably appears about to be committed. No body cavity search shall be authorized or conducted unless these other methods do not satisfy the safety, security, or evidentiary concerns of the law enforcement agency. (4) A law enforcement officer requesting a body cavity search shall prepare and sign a report regarding the body cavity search. The report shall include: (a) A copy of the written authorization required under subsection (2) of this section; (b) A copy of the warrant and any supporting documents required under subsection (1) of this section; (c) The name and sex of all persons conducting or observing the search; (d) The time, date, place, and description of the search; and (e) A statement of the results of the search and a list of any items removed from the person as a result of the search. The report shall be retained as part of the law enforcement agency’s records. [1983 1st ex.s. c 42 § 3.] Effective date—Severability—1983 1st ex.s. c 42: See notes following RCW 10.79.060. 10.79.090 10.79.090 Strip, body cavity searches—Medical care not precluded. Nothing in RCW 10.79.080 or this section may be construed as precluding or preventing the administration of medical care to persons requiring immediate medical care or requesting medical care. [1983 1st ex.s. c 42 § 4.] Effective date—Severability—1983 1st ex.s. c 42: See notes following RCW 10.79.060. 10.79.100 10.79.100 Strip, body cavity searches—Standards for conducting. (1) Persons conducting a strip search shall not touch the person being searched except as reasonably necessary to effectuate the strip search of the person. (2) Any body cavity search must be performed under sanitary conditions and conducted by a physician, registered nurse, or physician’s assistant, licensed to practice in this state, who is trained in the proper medical process and the potential health problems associated with a body cavity search. No health professional authorized by this subsection to conduct a body cavity search shall be held liable in any civil action if the search is conducted in a manner that meets [Title 10 RCW—page 55] 10.79.110 Title 10 RCW: Criminal Procedure the standards and requirements of RCW 4.24.290 and 7.70.040. (3) Except as provided in subsection (7) of this section, a strip search or body cavity search, as well as presearch undressing or postsearch dressing, shall occur at a location made private from the observation of persons not physically conducting the search. A strip search or body cavity search shall be performed or observed only by persons of the same sex as the person being searched, except for licensed medical professionals as required by subsection (2) of this section. (4) Except as provided in subsection (5) of this section, no person may be present or observe during the search unless the person is necessary to conduct the search or to ensure the safety of those persons conducting the search. (5) Nothing in this section prohibits a person upon whom a body cavity search is to be performed from having a readily available person of his or her choosing present at the time the search is conducted. However, the person chosen shall not be a person being held in custody by a law enforcement agency. (6) RCW 10.79.080 and this section shall not be interpreted as expanding or diminishing the authority of a law enforcement officer with respect to searches incident to arrest or investigatory stop in public. (7) A strip search of a person housed in a holding, detention, or local correctional facility to search for and seize a weapon may be conducted at other than a private location if there arises a specific threat to institutional security that reasonably requires such a search or if all persons in the facility are being searched for the discovery of weapons or contraband. [1983 1st ex.s. c 42 § 5.] Effective date—Severability—1983 1st ex.s. c 42: See notes following RCW 10.79.060. apply to a person held for post-conviction incarceration for a criminal offense. The definitions and remedies provided by RCW 10.79.070 and 10.79.110 apply to RCW 10.79.130 through 10.79.160. [1986 c 88 § 1.] 10.79.130 10.79.130 Strip, body cavity searches—Warrant required—Exceptions. (1) No person to whom this section is made applicable by RCW 10.79.120 may be strip searched without a warrant unless: (a) There is a reasonable suspicion to believe that a strip search is necessary to discover weapons, criminal evidence, contraband, or other thing concealed on the body of the person to be searched, that constitutes a threat to the security of a holding, detention, or local correctional facility; (b) There is probable cause to believe that a strip search is necessary to discover other criminal evidence concealed on the body of the person to be searched, but not constituting a threat to facility security; or (c) There is a reasonable suspicion to believe that a strip search is necessary to discover a health condition requiring immediate medical attention. (2) For the purposes of subsection (1) of this section, a reasonable suspicion is deemed to be present when the person to be searched has been arrested for: (a) A violent offense as defined in RCW 9.94A.030 or any successor statute; (b) An offense involving escape, burglary, or the use of a deadly weapon; or (c) An offense involving possession of a drug or controlled substance under chapter 69.41, 69.50, or 69.52 RCW or any successor statute. [1986 c 88 § 2.] 10.79.110 10.79.110 Strip, body cavity searches—Actions for damages, injunctive relief. (1) A person who suffers damage or harm as a result of a violation of RCW 10.79.080, 10.79.090, 10.79.100, or 10.79.130 through 10.79.170 may bring a civil action to recover actual damages sustained by him or her. The court may, in its discretion, award injunctive and declaratory relief as it deems necessary. (2) RCW 10.79.080, 10.79.090, 10.79.100, and 10.79.130 through 10.79.170 shall not be construed as limiting any constitutional, common law, or statutory right of any person regarding any action for damages or injunctive relief, or as precluding the prosecution under another provision of law of any law enforcement officer or other person who has violated RCW 10.79.080, 10.79.090, 10.79.100, or 10.79.130 through 10.79.170. [1986 c 88 § 7; 1983 1st ex.s. c 42 § 6.] Effective date—Severability—1983 1st ex.s. c 42: See notes following RCW 10.79.060. 10.79.120 10.79.120 Strip, body cavity searches—Application of RCW 10.79.130 through 10.79.160. RCW 10.79.130 through 10.79.160 apply to any person in custody at a holding, detention, or local correctional facility, other than a person committed to incarceration by order of a court, regardless of whether an arrest warrant or other court order was issued before the person was arrested or otherwise taken into custody unless the court issuing the warrant has determined that the person shall not be released on personal recognizance, bail, or bond. RCW 10.79.130 through 10.79.160 do not [Title 10 RCW—page 56] 10.79.140 10.79.140 Strip, body cavity searches—Uncategorized searches—Determination of reasonable suspicion, probable cause—Less-intrusive alternatives. (1) A person to whom this section is made applicable by RCW 10.79.120 who has not been arrested for an offense within one of the categories specified in RCW 10.79.130(2) may nevertheless be strip searched, but only upon an individualized determination of reasonable suspicion or probable cause as provided in this section. (2) With the exception of those situations in which reasonable suspicion is deemed to be present under RCW 10.79.130(2), no strip search may be conducted without the specific prior written approval of the jail unit supervisor on duty. Before any strip search is conducted, reasonable efforts must be made to use other less-intrusive means, such as patdown, electronic metal detector, or clothing searches, to determine whether a weapon, criminal evidence, contraband, or other thing is concealed on the body, or whether a health condition requiring immediate medical attention is present. The determination of whether reasonable suspicion or probable cause exists to conduct a strip search shall be made only after such less-intrusive means have been used and shall be based on a consideration of all information and circumstances known to the officer authorizing the strip search, including but not limited to the following factors: (a) The nature of the offense for which the person to be searched was arrested; (2006 Ed.) Collection and Disposition of Fines and Costs (b) The prior criminal record of the person to be searched; and (c) Physically violent behavior of the person to be searched, during or after the arrest. [1986 c 88 § 3.] 10.79.150 10.79.150 Strip, body cavity searches—Written record required, contents—Unnecessary persons prohibited. (1) A written record of any strip search shall be maintained in the individual file of each person strip searched. (2) With respect to any strip search conducted under RCW 10.79.140, the record shall contain the following information: (a) The name of the supervisor authorizing the strip search; (b) The specific facts constituting reasonable suspicion to believe that the strip search was necessary; (c) The name and serial number of the officer conducting the strip search and of all other persons present or observing during any part of the strip search; (d) The time, date, and place of the strip search; and (e) Any weapons, criminal evidence, contraband, or other thing, or health condition discovered as a result of the strip search. (3) With respect to any strip search conducted under RCW 10.79.130(2), the record shall contain, in addition to the offense or offenses for which the person searched was arrested, the information required by subsection (2)(c), (d), and (e) of this section. (4) The record may be included or incorporated in existing forms used by the facility, including the booking form required under the Washington Administrative Code. A notation of the name of the person strip searched shall also be entered in the log of daily activities or other chronological record, if any, maintained pursuant to the Washington Administrative Code. (5) Except at the request of the person to be searched, no person may be present or observe during the strip search unless necessary to conduct the search. [1986 c 88 § 4.] 10.82.030 Chapter 10.82 RCW COLLECTION AND DISPOSITION OF FINES AND COSTS Chapter 10.82 Sections 10.82.010 10.82.020 10.82.025 10.82.030 10.82.040 10.82.070 10.82.080 10.82.090 Execution for fines and costs. Stay of execution for sixty days on recognizance. Effect of recognizance—Execution of judgment after sixty days. Commitment for failure to pay fine and costs—Execution against defendant’s property—Reduction by payment, labor, or confinement. Commitment for failure to pay fine and costs—Reduction of amount by performance of labor. Disposition of monetary payments. Unlawful receipt of public assistance—Deduction from subsequent assistance payments—Restitution payments. Interest on judgments—Disposition of nonrestitution interest. City, county jail prisoners may be compelled to work: RCW 9.92.130, 9.92.140, 36.28.100. Defendant liable for costs: RCW 10.64.015. Fine and costs—Collection procedure, liability for, commitment for failure to pay, execution: RCW 10.01.160 through 10.01.180. Jury fee disposition: RCW 10.46.190. Payment of fine and costs in installments: RCW 9.92.070, 10.01.170. 10.82.010 10.82.010 Execution for fines and costs. Upon a judgment for fine and costs, and for all adjudged costs, execution shall be issued against the property of the defendant, and returned in the same manner as in civil actions. [Code 1881 § 1120; 1873 p 242 § 278; 1854 p 123 § 142; RRS § 2201.] Judgments a lien on realty: RCW 10.64.080. 10.82.020 10.82.020 Stay of execution for sixty days on recognizance. Every defendant against whom a judgment has been rendered for fine and costs, may stay the execution for the fine assessed and costs for sixty days from the rendition of the judgment, by procuring one or more sufficient sureties, to enter into a recognizance in open court, acknowledging themselves to be bail for such fine and costs. [Code 1881 § 1123; 1873 p 242 § 281; 1854 p 124 § 145; RRS § 2204. FORMER PART OF SECTION: Code 1881 § 1124; 1873 p 243 § 282; 1854 p 124 § 146; RRS § 2205, now codified as RCW 10.82.025.] 10.82.025 10.79.160 10.79.160 Strip, body cavity searches—Physical examinations for public health purposes excluded. Physical examinations conducted by licensed medical professionals solely for public health purposes under separate statutory authority shall not be considered searches for purposes of RCW 10.79.120, 10.79.130, and 10.79.140. [1986 c 88 § 5.] 10.79.170 10.79.170 Strip, body cavity searches—Nonliability when search delayed. No governmental entity and no employee or contracting agent of a governmental entity shall be liable for injury, death, or damage caused by a person in custody when the injury, death, or damage is caused by or made possible by contraband that would have been discovered sooner but for the delay caused by having to seek a search warrant under RCW 10.79.080 or 10.79.130 through 10.79.160. [1986 c 88 § 6.] (2006 Ed.) 10.82.025 Effect of recognizance—Execution of judgment after sixty days. Such sureties shall be approved by the clerk, and the entry of the recognizance shall be written immediately following the judgment, and signed by the bail, and shall have the same effect as a judgment, and if the fine or costs be not paid at the expiration of the sixty days, a joint execution shall issue against the defendant and the bail, and an execution against the body of the defendant, who shall be committed to jail, to be released as provided in *this act, in committal for default to pay or secure the fine and costs. [Code 1881 § 1124; 1873 p 243 § 282; 1854 p 124 § 146; RRS § 2205. Formerly RCW 10.82.020, part.] *Reviser’s note: The term "this act" apparently refers to "An act to regulate the practice and pleadings in prosecutions for crimes" first enacted by Laws of 1854, page 100. 10.82.030 10.82.030 Commitment for failure to pay fine and costs—Execution against defendant’s property—Reduction by payment, labor, or confinement. If any person [Title 10 RCW—page 57] 10.82.040 Title 10 RCW: Criminal Procedure ordered into custody until the fine and costs adjudged against him be paid shall not, within five days, pay, or cause the payment of the same to be made, the clerk of the court shall issue a warrant to the sheriff commanding him to imprison such defendant in the county jail until the amount of such fine and costs owing are paid. Execution may at any time issue against the property of the defendant for that portion of such fine and costs not reduced by the application of this section. The amount of such fine and costs owing shall be the whole of such fine and costs reduced by the amount of any portion thereof paid, and an amount established by the county legislative authority for every day the defendant performs labor as provided in RCW 10.82.040, and a lesser amount established by the county legislative authority for every day the defendant does not perform such labor while imprisoned. [1991 c 183 § 1; 1983 c 276 § 2; 1967 c 200 § 4; 1891 c 28 § 84; 1883 p 38 § 1, part; Code 1881 § 1125; 1873 p 243 § 283; 1854 p 124 § 147; RRS § 2206. Formerly RCW 10.82.030 and 10.82.050.] (3) All fees, fines, forfeitures and penalties collected or assessed by a district court because of the violation of a state law shall be remitted as provided in chapter 3.62 RCW as now exists or is later amended. All fees, fines, forfeitures, and penalties collected or assessed by a superior court in cases on appeal from a lower court shall be remitted to the municipal or district court from which the cases were appealed. [2004 c 15 § 6; 1995 c 292 § 3; 1988 c 169 § 5; 1987 c 202 § 169; 1985 c 389 § 7; 1984 c 258 § 313; 1969 ex.s. c 199 § 11; 1967 c 122 § 1; 1965 c 158 § 16; 1919 c 30 § 1; 1909 p 323 § 9; 1897 c 118 § 113; 1895 c 68 § 1; 1890 p 383 § 89; 1886 p 20 § 58; Code 1881 § 3211; 1873 p 421 § 3; RRS § 4940. Formerly codified as RCW 9.01.140.] Intent—2004 c 15: See note following RCW 10.99.080. Intent—1987 c 202: See note following RCW 2.04.190. Effective date—1985 c 389: See note following RCW 27.24.070. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Intent—1984 c 258: See note following RCW 3.46.120. Severability—1967 c 200: See note following RCW 9.45.122. Commitment until fines and costs are paid: RCW 10.70.010. Fine and costs, liability of defendant, collection procedure, contempt, commitment, execution: RCW 10.01.160 through 10.01.180. 10.82.040 10.82.040 Commitment for failure to pay fine and costs—Reduction of amount by performance of labor. When a defendant is committed to jail, on failure to pay any fines and costs, he shall, under the supervision of the county sheriff and subject to the terms of any ordinances adopted by the county commissioners, be permitted to perform labor to reduce the amount owing of the fine and costs. [1967 c 200 § 5; 1883 p 38 § 1, part; Code 1881 § 1129; 1877 p 206 § 8; 1873 p 243 § 287; 1854 p 124 § 151; RRS § 2209, part.] Severability—1967 c 200: See note following RCW 9.45.122. 10.82.070 10.82.070 Disposition of monetary payments. (1) All sums of money derived from costs, fines, penalties, and forfeitures imposed or collected, in whole or in part, by a superior court for violation of orders of injunction, mandamus and other like writs, for contempt of court, or for breach of the penal laws shall be paid in cash by the person collecting the same, within twenty days after the collection, to the county treasurer of the county in which the same have accrued. (2) Except as provided in RCW 10.99.080, the county treasurer shall remit monthly thirty-two percent of the money received under this section except for certain costs to the state treasurer for deposit as provided under RCW 43.08.250 and shall deposit the remainder as provided by law. "Certain costs" as used in this subsection, means those costs awarded to prevailing parties in civil actions under RCW 4.84.010 or 36.18.040, or those costs awarded against convicted defendants in criminal actions under RCW 10.01.160, 10.46.190, or 36.18.040, or other similar statutes if such costs are specifically designated as costs by the court and are awarded for the specific reimbursement of costs incurred by the state or county in the prosecution of the case, including the fees of defense counsel. Costs or assessments awarded to dedicated accounts, state or local, are not subject to this state allocation or to RCW 7.68.035. [Title 10 RCW—page 58] 10.82.080 10.82.080 Unlawful receipt of public assistance— Deduction from subsequent assistance payments—Restitution payments. (1) When a superior court has, as a condition of the sentence for a person convicted of the unlawful receipt of public assistance, ordered restitution to the state of that overpayment or a portion thereof: (a) The department of social and health services shall deduct the overpayment from subsequent assistance payments as provided in RCW 43.20B.630, when the person is receiving public assistance; or (b) Ordered restitution payments may be made at the direction of the court to the clerk of the appropriate county or directly to the department of social and health services when the person is not receiving public assistance. (2) However, if payments are received by the county clerk, each payment shall be transmitted to the department of social and health services within forty-five days after receipt by the county. [1987 c 75 § 2; 1985 c 245 § 2; 1982 c 201 § 1.] Savings—Severability—1987 c 75: See RCW 43.20B.900 and 43.20B.901. 10.82.090 10.82.090 Interest on judgments—Disposition of nonrestitution interest. (1) Except as provided in subsection (2) of this section, financial obligations imposed in a judgment shall bear interest from the date of the judgment until payment, at the rate applicable to civil judgments. All nonrestitution interest retained by the court shall be split twenty-five percent to the state treasurer for deposit in the public safety and education account as provided in RCW 43.08.250, twenty-five percent to the state treasurer for deposit in the judicial information system account as provided in RCW 2.68.020, twenty-five percent to the county current expense fund, and twenty-five percent to the county current expense fund to fund local courts. (2) The court may, on motion by the offender, following the offender’s release from total confinement, reduce or waive the interest on legal financial obligations levied as a result of a criminal conviction. The court may reduce or waive the interest only as an incentive for the offender to (2006 Ed.) Rewards meet his or her legal financial obligations. The court may not waive the interest on the restitution portion of the legal financial obligation and may only reduce the interest on the restitution portion of the legal financial obligation if the principal of the restitution has been paid in full. The offender must show that he or she has personally made a good faith effort to pay, that the interest accrual is causing a significant hardship, and that he or she will be unable to pay the principal and interest in full and that reduction or waiver of the interest will likely enable the offender to pay the full principal and any remaining interest thereon. For purposes of this section, "good faith effort" means that the offender has either (a) paid the principal amount in full; or (b) made twenty-four consecutive monthly payments, excluding any payments mandatorily deducted by the department of corrections, on his or her legal financial obligations under his or her payment agreement with the court. The court may grant the motion, establish a payment schedule, and retain jurisdiction over the offender for purposes of reviewing and revising the reduction or waiver of interest. This section applies to persons convicted as adults or in juvenile court. [2004 c 121 § 1; 1995 c 291 § 7; 1989 c 276 § 3.] Chapter 10.88 10.85.040 10.85.040 Conflicting claims. When more than one claimant applies for the payment of any reward, offered by any county legislative authority, board of commissioners of a port district, or city or town governing body, the county legislative authority, board of commissioners of a port district, or city or town governing body shall determine to whom the same shall be paid, and if to more than one person, in what proportion to each; and their determination shall be final and conclusive. [1986 c 185 § 2; 1979 ex.s. c 53 § 2; 1886 p 124 § 3; RRS § 2251.] 10.85.050 10.85.050 Payment of rewards. Whenever any reward has been offered by any county legislative authority, board of commissioners of a port district, or city or town governing body in the state under RCW 10.85.030, the person or persons providing the information shall be entitled to the reward, and the county legislative authority, board of commissioners of a port district, or city or town governing body which has offered the reward is authorized to draw a warrant or warrants out of any money in the county, port district, or city or town treasury, as appropriate, not otherwise appropriated. [1986 c 185 § 3; 1979 ex.s. c 53 § 3; 1886 p 124 § 2; RRS § 2250.] Severability—1989 c 276: See note following RCW 9.95.062. 10.85.900 Chapter 10.85 Chapter 10.85 RCW REWARDS 10.85.900 Severability—1979 ex.s. c 53. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1979 ex.s. c 53 § 6.] Sections 10.85.030 10.85.040 10.85.050 10.85.900 Rewards by counties, cities, towns, port commissions authorized. Conflicting claims. Payment of rewards. Severability—1979 ex.s. c 53. Offer of rewards by governor: RCW 43.06.010(8). 10.85.030 10.85.030 Rewards by counties, cities, towns, port commissions authorized. The legislative authority of any county in the state, a port commission, or the governing body of a city or town, when in its opinion the public good requires it, is hereby authorized to offer and pay a suitable reward to any person or persons for information leading to: (a) The arrest of a specified person or persons convicted of or charged with any criminal offense; or (b) The arrest and conviction of a person or persons committing a specified criminal offense. In the event of crimes against county, port district, city, or town property, including but not limited to road signs, vehicles, buildings, or any other type of county, port district, city, or town property, the legislative authority of any county, a port commission, or the governing body of a city or town may offer and pay a suitable reward to any person or persons who shall furnish information leading to the arrest and conviction of any person of any offense against this county, port district, city, or town property, including but not limited to those offenses set forth in RCW 9A.48.070 through 9A.48.090, whether or not the offense is a felony, gross misdemeanor, or misdemeanor. [1986 c 185 § 1; 1981 c 211 § 1; 1979 ex.s. c 53 § 1; 1975-’76 2nd ex.s. c 25 § 1; 1886 p 124 § 1; RRS § 2249.] (2006 Ed.) Chapter 10.88 RCW UNIFORM CRIMINAL EXTRADITION ACT Chapter 10.88 Sections 10.88.200 10.88.210 10.88.220 10.88.230 10.88.240 10.88.250 10.88.260 10.88.270 10.88.280 10.88.290 10.88.300 10.88.310 10.88.320 10.88.330 10.88.340 10.88.350 10.88.360 10.88.370 10.88.380 10.88.390 10.88.400 10.88.410 10.88.415 10.88.420 10.88.430 10.88.440 10.88.450 10.88.460 10.88.900 10.88.910 10.88.920 10.88.930 Definitions. Authority of governor. Demand for extradition—Requirements. Investigation of demand—Report. Return or surrender of person charged in another state. Surrender of person charged with crime committed in state other than demanding state. Warrant of arrest. Authority of officer or other person under warrant. Authority to command assistance. Rights of person arrested. Delivery of person in violation of RCW 10.88.290—Penalty. Confinement of prisoner. Charge or complaint—Warrant of arrest. Arrest without warrant. Preliminary examination—Commitment. Bail. Failure to make timely arrest or demand for extradition. Failure to appear—Bond forfeiture—Arrest—Recovery on bond. Pending criminal prosecution in this state. Recall or reissuance of warrant. Demand by governor of this state for extradition—Warrant— Agent. Application for requisition for return of person—Contents— Affidavits—Copies. Delivery without governor’s warrant. Civil process—Service on extradited person. Waiver of extradition. Rights, powers, privileges or jurisdiction of state not waived. Trial for other crimes. Extradition or surrender of obligor—Uniform interstate family support act. Construction—1971 ex.s. c 46. Short title. Effective date—1971 ex.s. c 46. Severability—1971 ex.s. c 46. [Title 10 RCW—page 59] 10.88.200 Title 10 RCW: Criminal Procedure Fugitives of this state: Chapter 10.34 RCW. Interstate compact on juveniles: Chapter 13.24 RCW. Return of parole violators from another state: RCW 9.95.280 through 9.95.300. 10.88.200 10.88.200 Definitions. Where appearing in this chapter, the term "governor" includes any person performing the functions of governor by authority of the law of this state. The term "executive authority" includes the governor, and any person performing the functions of governor in a state other than this state, and the term "state" referring to a state other than this state refers to any other state, or the District of Columbia, or territory organized or unorganized of the United States of America. [1971 ex.s. c 46 § 1.] Reviser’s note: Throughout this chapter, the phrase "this act" has been changed to "this chapter." This act [1971 ex.s. c 46] consists of this chapter, the 1971 amendment of RCW 26.21.050, and the repeal of RCW 10.88.010 through 10.88.060. 10.88.240 10.88.240 Return or surrender of person charged in another state. When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the governor of this state may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated. The governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in RCW 10.88.410 with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily. [1971 ex.s. c 46 § 5.] 10.88.210 10.88.210 Authority of governor. Subject to the provisions of this chapter, the provisions of the Constitution of the United States controlling, and any and all acts of congress enacted in pursuance thereof, the governor of this state may in his discretion have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state. [1971 ex.s. c 46 § 2.] 10.88.220 10.88.220 Demand for extradition—Requirements. No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under RCW 10.88.250, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be certified or authenticated by the executive authority making the demand. [1971 ex.s. c 46 § 3.] 10.88.230 10.88.230 Investigation of demand—Report. When a demand shall be made upon the governor of this state by the executive authority of another state for the surrender of a person so charged with crime, the governor may call upon the attorney general or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered. [1971 ex.s. c 46 § 4.] [Title 10 RCW—page 60] 10.88.250 10.88.250 Surrender of person charged with crime committed in state other than demanding state. The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in RCW 10.88.220 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this chapter not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom. [1971 ex.s. c 46 § 6.] 10.88.260 10.88.260 Warrant of arrest. If the governor decides that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance. [1971 ex.s. c 46 § 7.] 10.88.270 10.88.270 Authority of officer or other person under warrant. Such warrant shall authorize the peace officer or other person to whom directed to arrest the accused at any time and any place where he may be found within the state and to command the aid of all peace officers or other persons in the execution of the warrant, and to deliver the accused, subject to the provisions of this chapter to the duly authorized agent of the demanding state. [1971 ex.s. c 46 § 8.] 10.88.280 10.88.280 Authority to command assistance. Every such peace officer or other person empowered to make the arrest, shall have the same authority, in arresting the accused, to command assistance therein, as peace officers have by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance. [1971 ex.s. c 46 § 9.] 10.88.290 10.88.290 Rights of person arrested. No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall (2006 Ed.) Uniform Criminal Extradition Act have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state: PROVIDED, That the hearing provided for in this section shall not be available except as may be constitutionally required if a hearing on the legality of arrest has been held pursuant to RCW 10.88.320 or 10.88.330. [1971 ex.s. c 46 § 10.] 10.88.300 10.88.300 Delivery of person in violation of RCW 10.88.290—Penalty. Any officer who shall deliver to the agent for extradition of the demanding state a person in his custody under the governor’s warrant, in wilful disobedience to RCW 10.88.290, shall be guilty of a gross misdemeanor and, on conviction, shall be imprisoned in the county jail for not more than one year, or be fined not more than one thousand dollars, or both. [1971 ex.s. c 46 § 11.] 10.88.310 10.88.310 Confinement of prisoner. The officer or persons executing the governor’s warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his route, such officer or person being chargeable with the expense of keeping. The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state, or to whom a prisoner may have been delivered after waiving extradition in such other state, and who is passing through this state with such a prisoner for the purpose of immediately returning such prisoner to the demanding state may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer or agent having charge of him is ready to proceed on his route, such officer or agent, however, being chargeable with the expense of keeping: PROVIDED, HOWEVER, That such officer or agent shall produce and show to the keeper of such jail satisfactory written evidence of the fact that he is actually transporting such prisoner to the demanding state after a requisition by the executive authority of such demanding state. Such prisoner shall not be entitled to demand a new requisition while in this state. [1971 ex.s. c 46 § 12.] 10.88.320 10.88.320 Charge or complaint—Warrant of arrest. Whenever any person within this state shall be charged on the oath of any credible person before any judge or magistrate of this state with the commission of any crime in any other state (2006 Ed.) 10.88.330 and, except in cases arising under RCW 10.88.250, with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole, or whenever complaint shall have been made before any judge or magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising under RCW 10.88.250, has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole and is believed to be in this state, the judge or magistrate shall issue a warrant directed to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this state, and to bring him before the same or any other judge, magistrate or court who or which may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit, and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant. [1971 ex.s. c 46 § 13.] 10.88.330 Arrest without warrant. (1) The arrest of a person may be lawfully made also by any peace officer or a private person, without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in RCW 10.88.320; and thereafter his answer shall be heard as if he had been arrested on a warrant. (2) An officer of the United States customs service or the immigration and naturalization service may, without a warrant, arrest a person if: (a) The officer is on duty; (b) One or more of the following situations exists: (i) The person commits an assault or other crime involving physical harm, defined and punishable under chapter 9A.36 RCW, against the officer or against any other person in the presence of the officer; (ii) The person commits an assault or related crime while armed, defined and punishable under chapter 9.41 RCW, against the officer or against any other person in the presence of the officer; (iii) The officer has reasonable cause to believe that a crime as defined in (b)(i) or (ii) of this subsection has been committed and reasonable cause to believe that the person to be arrested has committed it; (iv) The officer has reasonable cause to believe that a felony has been committed and reasonable cause to believe that the person to be arrested has committed it; or (v) The officer has received positive information by written, telegraphic, teletypic, telephonic, radio, or other authoritative source that a peace officer holds a warrant for the person’s arrest; and (c) The regional commissioner of customs certifies to the state of Washington that the customs officer has received proper training within the agency to enable that officer to 10.88.330 [Title 10 RCW—page 61] 10.88.340 Title 10 RCW: Criminal Procedure enforce or administer this subsection. [1979 ex.s. c 244 § 16; 1971 ex.s. c 46 § 14.] has been tried and discharged or convicted and punished in this state. [1971 ex.s. c 46 § 19.] Effective date—1979 ex.s. c 244: See RCW 9A.44.902. 10.88.390 10.88.340 10.88.340 Preliminary examination—Commitment. If from the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under RCW 10.88.250, that he has fled from justice, the judge or magistrate must, by a warrant reciting the accusation, commit him to the county jail for such a time not exceeding thirty days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in RCW 10.88.350, or until he shall be legally discharged. [1971 ex.s. c 46 § 15.] 10.88.350 10.88.350 Bail. Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the person arrested to bail by bond, with sufficient sureties, and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such a bond, and for his surrender, to be arrested upon the warrant of the governor of this state. [1971 ex.s. c 46 § 16.] 10.88.360 10.88.360 Failure to make timely arrest or demand for extradition. If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant or bond, a judge or magistrate may discharge him or may recommit him for a further period not to exceed sixty days, or a judge or magistrate judge may again take bail for his appearance and surrender, as provided in RCW 10.88.350, but within a period not to exceed sixty days after the date of such new bond: PROVIDED, That the governor may, except in cases in which the offense is punishable under laws of the demanding state by death or life imprisonment, deny a demand for extradition when such demand is not received by the governor before the expiration of one hundred twenty days from the date of arrest in this state of the alleged fugitive, in the absence of a showing of good cause for such delay. [1971 ex.s. c 46 § 17.] 10.88.370 10.88.370 Failure to appear—Bond forfeiture— Arrest—Recovery on bond. If the prisoner is admitted to bail, and fails to appear and surrender himself according to the conditions of his bond, the judge, or magistrate by proper order, shall declare the bond forfeited and order his immediate arrest without warrant if he be within this state. Recovery may be had on such bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within this state. [1971 ex.s. c 46 § 18.] 10.88.380 10.88.380 Pending criminal prosecution in this state. If a criminal prosecution has been instituted against such person under the laws of this state and is still pending the governor, in his discretion, either may surrender him on demand of the executive authority of another state or hold him until he [Title 10 RCW—page 62] 10.88.390 Recall or reissuance of warrant. The governor may recall his warrant of arrest or may issue another warrant whenever he deems proper. [1971 ex.s. c 46 § 20.] 10.88.400 10.88.400 Demand by governor of this state for extradition—Warrant—Agent. Whenever the governor of this state shall demand a person charged with crime or with escaping from confinement or breaking the terms of his bail, probation or parole in this state, from the executive authority of any other state, or from the appropriate authority of the District of Columbia authorized to receive such demand under the laws of the United States, he shall issue a warrant under the seal of this state, to some agent, commanding him to receive the person so charged if delivered to him and convey him to the proper officer of the county in this state in which the offense was committed. [1971 ex.s. c 46 § 21.] 10.88.410 10.88.410 Application for requisition for return of person—Contents—Affidavits—Copies. (1) When the return to this state of a person charged with crime in this state is required, the prosecuting attorney shall present to the governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him, the approximate time, place and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein at the time the application is made and certifying that, in the opinion of the said prosecuting attorney the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim. (2) When the return to this state is required of a person who has been convicted of a crime in this state and has escaped from confinement or broken the terms of his bail, probation or parole, the prosecuting attorney of the county in which the offense was committed, the parole board, or the warden of the institution or sheriff of the county, from which escape was made, shall present to the governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement or of the breach of the terms of his bail, probation or parole, the state in which he is believed to be, including the location of the person therein at the time application is made. (3) The application shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge or magistrate, stating the offense with which the accused is charged, or of the judgment of conviction or of the sentence. The prosecuting officer, parole board, warden or sheriff may also attach such further affidavits and other documents in duplicate as he shall deem proper to be submitted with such application. One copy of the application, with the action of the governor indicated by endorsement thereon, and one of the certified copies of the indictment, complaint, information, (2006 Ed.) Uniform Act on Fresh Pursuit and affidavits, or of the judgment of conviction or of the sentence shall be filed in the office of the secretary of state to remain of record in that office. The other copies of all papers shall be forwarded with the governor’s requisition. [1971 ex.s. c 46 § 22.] 10.88.415 10.88.415 Delivery without governor’s warrant. A law enforcement agency shall deliver a person in custody to the accredited agent or agents of a demanding state without the governor’s warrant provided that: (1) Such person is alleged to have broken the terms of his or her probation, parole, bail, or any other release of the demanding state; and (2) The law enforcement agency has received from the demanding state an authenticated copy of a prior waiver of extradition signed by such person as a term of his or her probation, parole, bail, or any other release of the demanding state and photographs or fingerprints or other evidence properly identifying the person as the person who signed the waiver. [2001 c 264 § 6.] Effective date—2001 c 264: See note following RCW 9A.76.110. 10.88.420 10.88.420 Civil process—Service on extradited person. A person brought into this state by, or after waiver of, extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which he is being or has been returned, until he has been finally convicted in the criminal proceeding, or, if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited. [1971 ex.s. c 46 § 23.] 10.88.430 10.88.430 Waiver of extradition. Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in RCW 10.88.260 and 10.88.270 and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record within this state a writing which states that he consents to return to the demanding state: PROVIDED, HOWEVER, That before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in RCW 10.88.290. If and when such consent has been duly executed it shall forthwith be forwarded to the office of the governor of this state and filed therein. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent: PROVIDED, HOWEVER, That nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state. [1971 ex.s. c 46 § 24.] (2006 Ed.) 10.89.010 10.88.440 Rights, powers, privileges or jurisdiction of state not waived. Nothing in this chapter contained shall be deemed to constitute a waiver by this state of its right, power or privilege to try such demanded person for crime committed within this state, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this state, nor shall any proceedings had under this chapter which result in, or fail to result in, extradition be deemed a waiver by this state of any of its rights, privileges or jurisdiction in any way whatsoever. [1971 ex.s. c 46 § 25.] 10.88.440 10.88.450 Trial for other crimes. After a person has been brought back to this state by, or after waiver of extradition proceedings, he may be tried in this state for other crimes which he may be charged with having committed here as well as that specified in the requisition for his extradition. [1971 ex.s. c 46 § 26.] 10.88.450 10.88.460 Extradition or surrender of obligor—Uniform interstate family support act. See chapter 26.21A RCW. 10.88.460 10.88.900 Construction—1971 ex.s. c 46. The provisions of this chapter shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact it, to the extent which it has been enacted by this state. [1971 ex.s. c 46 § 27.] 10.88.900 10.88.910 10.88.910 Short title. RCW 10.88.200 through 10.88.450 shall be known and may be cited as the Uniform Criminal Extradition Act. [1971 ex.s. c 46 § 28.] 10.88.920 Effective date—1971 ex.s. c 46. This act shall become effective on July 1, 1971. [1971 ex.s. c 46 § 29.] 10.88.920 10.88.930 Severability—1971 ex.s. c 46. If any provisions of this act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable. [1971 ex.s. c 46 § 32.] 10.88.930 Chapter 10.89 Chapter 10.89 RCW UNIFORM ACT ON FRESH PURSUIT Sections 10.89.010 10.89.020 10.89.030 10.89.040 10.89.050 10.89.060 10.89.070 10.89.080 Authority of foreign peace officer. Preliminary examination by magistrate. Construction as to lawfulness of arrest. "State" includes District of Columbia. "Fresh pursuit" defined. Duty to send copies to other states. Severability—1943 c 261. Short title. 10.89.010 10.89.010 Authority of foreign peace officer. Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this state [Title 10 RCW—page 63] 10.89.020 Title 10 RCW: Criminal Procedure in fresh pursuit, and continues within this state in such fresh pursuit, of a person in order to arrest the person on the ground that he or she is believed to have committed a felony in such other state or a violation of the laws of such other state relating to driving while intoxicated, driving under the influence of drugs or alcohol, driving while impaired, or reckless driving shall have the same authority to arrest and hold such person in custody as has any member of any duly organized state, county or municipal peace unit of this state, to arrest and hold in custody a person on the ground that he or she is believed to have committed a felony or a violation of the laws of such other state relating to driving while intoxicated, driving under the influence of drugs or alcohol, driving while impaired, or reckless driving in this state. [1998 c 205 § 1; 1943 c 261 § 1; Rem. Supp. 1943 § 2252-1. Formerly RCW 10.88.070.] 10.89.020 10.89.020 Preliminary examination by magistrate. If an arrest is made in this state by an officer of another state in accordance with the provisions of RCW 10.89.010, he shall, without unnecessary delay, take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful, he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state. If the magistrate determines that the arrest was unlawful, he shall discharge the person arrested. [1943 c 261 § 2; Rem. Supp. 1943 § 2252-2. Formerly RCW 10.88.080.] 10.89.030 10.89.030 Construction as to lawfulness of arrest. RCW 10.89.010 shall not be construed so as to make unlawful any arrest in this state which otherwise would be lawful. [1943 c 261 § 3; Rem. Supp. 1943 § 2252-3. Formerly RCW 10.88.100.] impaired, or reckless driving has been committed. Fresh pursuit as used herein shall not necessarily imply instant pursuit, but pursuit without unreasonable delay. [1998 c 205 § 2; 1943 c 261 § 5; Rem. Supp. 1943 § 2252-5. Formerly RCW 10.88.090.] 10.89.060 10.89.060 Duty to send copies to other states. Upon the passage and approval by the governor of this chapter, it shall be the duty of the secretary of state, or other officer, to certify a copy of this chapter to the executive department of each of the states of the United States. [1943 c 261 § 6; Rem. Supp. 1943 § 2252-6.] 10.89.070 Severability—1943 c 261. If any part of this chapter is for any reason declared void, it is declared to be the intent of this chapter that such invalidity shall not affect the validity of the remaining portions of this chapter. [1943 c 261 § 7; Rem. Supp. 1943 § 2252-7.] 10.89.070 10.89.080 Short title. This chapter may be cited as the "Uniform Act on Fresh Pursuit." [1943 c 261 § 8; Rem. Supp. 1943 § 2252-8.] 10.89.080 Chapter 10.91 Chapter 10.91 RCW UNIFORM RENDITION OF ACCUSED PERSONS ACT Sections 10.91.010 10.91.020 10.91.030 10.91.040 10.91.050 10.91.900 10.91.910 10.91.920 Arrest and return of released person charged in another state— Violation of release conditions—Request—Documents— Warrant—Investigation. Preliminary hearing—Waiver—Conditions of release. Preliminary hearing—Investigation report—Findings—Order authorizing return. "Judicial officer of this state," "judicial officer" defined. Costs. Severability—1971 ex.s. c 17. Construction—1971 ex.s. c 17. Short title. 10.89.040 10.89.040 "State" includes District of Columbia. For the purpose of this chapter the word "state" shall include the District of Columbia. [1943 c 261 § 4; Rem. Supp. 1943 § 2252-4. Formerly RCW 10.88.110.] 10.89.050 10.89.050 "Fresh pursuit" defined. The term "fresh pursuit" as used in this chapter, shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who reasonably is suspected of having committed a felony or a violation of such other state relating to driving while intoxicated, driving under the influence of drugs or alcohol, driving while impaired, or reckless driving. It shall also include the pursuit of a person suspected of having committed a supposed felony, or a supposed violation of the laws relating to driving while intoxicated, driving under the influence of drugs or alcohol, driving while impaired, or reckless driving, though no felony or violation of the laws relating to driving while intoxicated, driving under the influence of drugs or alcohol, driving while impaired, or reckless driving actually has been committed, if there is reasonable ground for believing that a felony or a violation of the laws relating to driving while intoxicated, driving under the influence of drugs or alcohol, driving while [Title 10 RCW—page 64] 10.91.010 Arrest and return of released person charged in another state—Violation of release conditions—Request—Documents—Warrant—Investigation. (1) If a person who has been charged with crime in another state and released from custody prior to final judgment, including the final disposition of any appeal, is alleged to have violated the terms and conditions of his release, and is present in this state, a designated agent of the court, judge, or magistrate which authorized the release may request the issuance of a warrant for the arrest of the person and an order authorizing his return to the demanding court, judge, or magistrate. Before the warrant is issued, the designated agent must file with a judicial officer of this state the following documents: (a) an affidavit stating the name and whereabouts of the person whose removal is sought, the crime with which the person was charged, the time and place of the crime charged, and the status of the proceedings against him; (b) a certified copy of the order or other document specifying the terms and conditions under which the person was released from custody; and (c) a certified copy of an order of the demanding court, judge, or magistrate stating the manner in which the terms 10.91.010 (2006 Ed.) Washington Mutual Aid Peace Officers Powers Act and the conditions of the release have been violated and designating the affiant its agent for seeking removal of the person. (2) Upon initially determining that the affiant is a designated agent of the demanding court, judge, or magistrate, and that there is a probable cause for believing that the person whose removal is sought has violated the terms or conditions of his release, the judicial officer shall issue a warrant to a law enforcement officer of this state for the person’s arrest. (3) The judicial officer shall notify the prosecuting attorney of his action and shall direct him to investigate the case to ascertain the validity of the affidavits and documents required by subsection (1) and the identity and authority of the affiant. [1971 ex.s. c 17 § 2.] 10.93.020 10.91.900 10.91.900 Severability—1971 ex.s. c 17. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable. [1971 ex.s. c 17 § 6.] 10.91.910 10.91.910 Construction—1971 ex.s. c 17. This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it. [1971 ex.s. c 17 § 7.] 10.91.920 10.91.920 Short title. This chapter may be cited as the "Uniform Rendition of Accused Persons Act." [1971 ex.s. c 17 § 8.] 10.91.020 10.91.020 Preliminary hearing—Waiver—Conditions of release. (1) The person whose removal is sought shall be brought before the judicial officer without unnecessary delay upon arrest pursuant to the warrant; whereupon the judicial officer shall set a time and place for hearing, and shall advise the person of his right to have the assistance of counsel, to confront the witnesses against him, and to produce evidence in his own behalf at the hearing. (2) The person whose removal is sought may at this time in writing waive the hearing and agree to be returned to the demanding court, judge, or magistrate. If a waiver is executed, the judicial officer shall issue an order pursuant to RCW 10.91.030. (3) The judicial officer may impose conditions of release authorized by the laws of this state which will reasonably assure the appearance at the hearing of the person whose removal is sought. [1971 ex.s. c 17 § 3.] Chapter 10.93 RCW WASHINGTON MUTUAL AID PEACE OFFICERS POWERS ACT Chapter 10.93 Sections 10.93.001 10.93.020 10.93.030 10.93.040 10.93.050 10.93.060 10.93.070 10.93.080 10.93.090 10.93.100 10.93.110 10.93.120 10.93.130 10.93.140 10.93.900 Short title—Legislative intent—Construction. Definitions. Reporting use of authority under this chapter. Liability for exercise of authority. Supervisory control over peace officers. Privileges and immunities applicable. General authority peace officer—Powers of, circumstances. Limited authority peace officer—No additional powers. Specially commissioned peace officer—Powers of, circumstances. Federal peace officers—No additional powers. Attorney general—No additional powers. Fresh pursuit, arrest. Contracting authority of law enforcement agencies. State patrol, fish and wildlife exempted. Effective date—1985 c 89. 10.91.030 10.91.030 Preliminary hearing—Investigation report—Findings—Order authorizing return. The prosecuting attorney shall appear at the hearing and report to the judicial officer the results of his investigation. If the judicial officer finds that the affiant is a designated agent of the demanding court, judge, or magistrate and that the person whose removal is sought was released from custody by the demanding court, judge, or magistrate, and that the person has violated the terms or conditions of his release, the judicial officer shall issue an order authorizing the return of the person to the custody of the demanding court, judge, or magistrate forthwith. [1971 ex.s. c 17 § 4.] 10.91.040 10.91.040 "Judicial officer of this state," "judicial officer" defined. For the purpose of this chapter "judicial officer of this state" and "judicial officer" mean a judge of the superior or district court. [1987 c 202 § 170; 1971 ex.s. c 17 § 5.] Intent—1987 c 202: See note following RCW 2.04.190. 10.91.050 10.91.050 Costs. The costs of the procedures required by this chapter shall be borne by the demanding state, except when the designated agent is not a public official. In any case when the designated agent is not a public official, he shall bear the cost of such procedures. [1971 ex.s. c 17 § 9.] (2006 Ed.) 10.93.001 10.93.001 Short title—Legislative intent—Construction. (1) This chapter may be known and cited as the Washington mutual aid peace officer powers act of 1985. (2) It is the intent of the legislature that current artificial barriers to mutual aid and cooperative enforcement of the laws among general authority local, state, and federal agencies be modified pursuant to this chapter. (3) This chapter shall be liberally construed to effectuate the intent of the legislature to modify current restrictions upon the limited territorial and enforcement authority of general authority peace officers and to effectuate mutual aid among agencies. (4) The modification of territorial and enforcement authority of the various categories of peace officers covered by this chapter shall not create a duty to act in extraterritorial situations beyond any duty which may otherwise be imposed by law or which may be imposed by the primary commissioning agency. [1985 c 89 § 1.] 10.93.020 10.93.020 Definitions. As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise. (1) "General authority Washington law enforcement agency" means any agency, department, or division of a municipal corporation, political subdivision, or other unit of local government of this state, and any agency, department, [Title 10 RCW—page 65] 10.93.030 Title 10 RCW: Criminal Procedure or division of state government, having as its primary function the detection and apprehension of persons committing infractions or violating the traffic or criminal laws in general, as distinguished from a limited authority Washington law enforcement agency, and any other unit of government expressly designated by statute as a general authority Washington law enforcement agency. The Washington state patrol and the department of fish and wildlife are general authority Washington law enforcement agencies. (2) "Limited authority Washington law enforcement agency" means any agency, political subdivision, or unit of local government of this state, and any agency, department, or division of state government, having as one of its functions the apprehension or detection of persons committing infractions or violating the traffic or criminal laws relating to limited subject areas, including but not limited to, the state departments of natural resources and social and health services, the state gambling commission, the state lottery commission, the state parks and recreation commission, the state utilities and transportation commission, the state liquor control board, the office of the insurance commissioner, and the state department of corrections. (3) "General authority Washington peace officer" means any full-time, fully compensated and elected, appointed, or employed officer of a general authority Washington law enforcement agency who is commissioned to enforce the criminal laws of the state of Washington generally. (4) "Limited authority Washington peace officer" means any full-time, fully compensated officer of a limited authority Washington law enforcement agency empowered by that agency to detect or apprehend violators of the laws in some or all of the limited subject areas for which that agency is responsible. A limited authority Washington peace officer may be a specially commissioned Washington peace officer if otherwise qualified for such status under this chapter. (5) "Specially commissioned Washington peace officer", for the purposes of this chapter, means any officer, whether part-time or full-time, compensated or not, commissioned by a general authority Washington law enforcement agency to enforce some or all of the criminal laws of the state of Washington, who does not qualify under this chapter as a general authority Washington peace officer for that commissioning agency, specifically including reserve peace officers, and specially commissioned full-time, fully compensated peace officers duly commissioned by the states of Oregon or Idaho or any such peace officer commissioned by a unit of local government of Oregon or Idaho. A reserve peace officer is an individual who is an officer of a Washington law enforcement agency who does not serve such agency on a full-time basis but who, when called by the agency into active service, is fully commissioned on the same basis as full-time peace officers to enforce the criminal laws of the state. (6) "Federal peace officer" means any employee or agent of the United States government who has the authority to carry firearms and make warrantless arrests and whose duties involve the enforcement of criminal laws of the United States. (7) "Agency with primary territorial jurisdiction" means a city or town police agency which has responsibility for police activity within its boundaries; or a county police or sheriff’s department which has responsibility with regard to [Title 10 RCW—page 66] police activity in the unincorporated areas within the county boundaries; or a statutorily authorized port district police agency or four-year state college or university police agency which has responsibility for police activity within the statutorily authorized enforcement boundaries of the port district, state college, or university. (8) "Primary commissioning agency" means (a) the employing agency in the case of a general authority Washington peace officer, a limited authority Washington peace officer, an Indian tribal peace officer, or a federal peace officer, and (b) the commissioning agency in the case of a specially commissioned Washington peace officer (i) who is performing functions within the course and scope of the special commission and (ii) who is not also a general authority Washington peace officer, a limited authority Washington peace officer, an Indian tribal peace officer, or a federal peace officer. (9) "Primary function of an agency" means that function to which greater than fifty percent of the agency’s resources are allocated. (10) "Mutual law enforcement assistance" includes, but is not limited to, one or more law enforcement agencies aiding or assisting one or more other such agencies through loans or exchanges of personnel or of material resources, for law enforcement purposes. [2006 c 284 § 16; 2002 c 128 § 1; 1994 c 264 § 3; 1988 c 36 § 5; 1985 c 89 § 2.] Severability—Effective date—2006 c 284: See RCW 48.135.900 and 48.135.901. 10.93.030 10.93.030 Reporting use of authority under this chapter. The circumstances surrounding any actual exercise of peace officer authority under this chapter shall be timely reported, after the fact, to the Washington law enforcement agency with primary territorial jurisdiction and shall be subject to any reasonable reporting procedure which may be established by such agency. [1985 c 89 § 3.] 10.93.040 10.93.040 Liability for exercise of authority. Any liability or claim of liability which arises out of the exercise or alleged exercise of authority by an officer acting within the course and scope of the officer’s duties as a peace officer under this chapter is the responsibility of the primary commissioning agency unless the officer acts under the direction and control of another agency or unless the liability is otherwise allocated under a written agreement between the primary commissioning agency and another agency. [1985 c 89 § 4.] 10.93.050 10.93.050 Supervisory control over peace officers. All persons exercising peace officer powers under this chapter are subject to supervisory control of and limitations imposed by the primary commissioning agency, but the primary commissioning agency may, by agreement with another agency, temporarily delegate supervision over the peace officer to another agency. [1985 c 89 § 5.] 10.93.060 10.93.060 Privileges and immunities applicable. All of the privileges and immunities from liability, exemption from laws, ordinances, and rules, all pension, relief, disability, worker’s compensation insurance, and other benefits (2006 Ed.) Capital Punishment—Aggravated First Degree Murder which apply to the activity of officers, agents, or employees of any law enforcement agency when performing their respective functions within the territorial limits of their respective agencies shall apply to them and to their primary commissioning agencies to the same degree and extent while such persons are engaged in the performance of authorized functions and duties under this chapter. [1985 c 89 § 6.] 10.93.070 10.93.070 General authority peace officer—Powers of, circumstances. In addition to any other powers vested by law, a general authority Washington peace officer who possesses a certificate of basic law enforcement training or a certificate of equivalency or has been exempted from the requirement therefor by the Washington state criminal justice training commission may enforce the traffic or criminal laws of this state throughout the territorial bounds of this state, under the following enumerated circumstances: (1) Upon the prior written consent of the sheriff or chief of police in whose primary territorial jurisdiction the exercise of the powers occurs; (2) In response to an emergency involving an immediate threat to human life or property; (3) In response to a request for assistance pursuant to a mutual law enforcement assistance agreement with the agency of primary territorial jurisdiction or in response to the request of a peace officer with enforcement authority; (4) When the officer is transporting a prisoner; (5) When the officer is executing an arrest warrant or search warrant; or (6) When the officer is in fresh pursuit, as defined in RCW 10.93.120. [1985 c 89 § 7.] 10.93.080 10.93.080 Limited authority peace officer—No additional powers. A limited authority Washington peace officer shall have no additional powers by virtue of this chapter but shall be limited to those powers already vested by law or hereafter created by separate enactment. [1985 c 89 § 8.] Chapter 10.95 10.93.110 Attorney general—No additional powers. The attorney general shall have no additional powers by virtue of this chapter but shall be limited to those powers already vested by law or hereafter created by separate enactment. [1985 c 89 § 11.] 10.93.110 10.93.120 Fresh pursuit, arrest. (1) Any peace officer who has authority under Washington law to make an arrest may proceed in fresh pursuit of a person (a) who is reasonably believed to have committed a violation of traffic or criminal laws, or (b) for whom such officer holds a warrant of arrest, and such peace officer shall have the authority to arrest and to hold such person in custody anywhere in the state. (2) The term "fresh pursuit," as used in this chapter, includes, without limitation, fresh pursuit as defined by the common law. Fresh pursuit does not necessarily imply immediate pursuit, but pursuit without unreasonable delay. [1985 c 89 § 12.] 10.93.120 10.93.130 Contracting authority of law enforcement agencies. Under the interlocal cooperation act, chapter 39.34 RCW, any law enforcement agency referred to by this chapter may contract with any other such agency and may also contract with any law enforcement agency of another state, or such state’s political subdivision, to provide mutual law enforcement assistance. The agency with primary territorial jurisdiction may require that officers from participating agencies meet reasonable training or certification standards or other reasonable standards. [1985 c 89 § 13.] 10.93.130 10.93.140 State patrol, fish and wildlife exempted. This chapter does not limit the scope of jurisdiction and authority of the Washington state patrol and the department of fish and wildlife as otherwise provided by law, and these agencies shall not be bound by the reporting requirements of RCW 10.93.030. [2002 c 128 § 2; 1985 c 89 § 14.] 10.93.140 10.93.900 Effective date—1985 c 89. This act shall take effect July 1, 1985. [1985 c 89 § 17.] 10.93.900 10.93.090 10.93.090 Specially commissioned peace officer— Powers of, circumstances. A specially commissioned Washington peace officer who has successfully completed a course of basic training prescribed or approved for such officers by the Washington state criminal justice training commission may exercise any authority which the special commission vests in the officer, throughout the territorial bounds of the state, outside of the officer’s primary territorial jurisdiction under the following circumstances: (1) The officer is in fresh pursuit, as defined in RCW 10.93.120; or (2) The officer is acting pursuant to mutual law enforcement assistance agreement between the primary commissioning agency and the agency with primary territorial jurisdiction. [1985 c 89 § 9.] Chapter 10.95 RCW CAPITAL PUNISHMENT—AGGRAVATED FIRST DEGREE MURDER Chapter 10.95 Sections 10.95.010 10.95.020 10.95.030 10.95.040 10.95.050 10.95.060 10.95.070 10.95.080 10.95.090 10.93.100 10.93.100 Federal peace officers—No additional powers. Federal peace officers shall have no additional powers by virtue of this chapter but shall be limited to those powers already vested by law or hereafter created by separate enactment. [1985 c 89 § 10.] (2006 Ed.) 10.95.100 10.95.110 10.95.120 Court rules. Definition. Sentences for aggravated first degree murder. Special sentencing proceeding—Notice—Filing—Service. Special sentencing proceeding—When held—Jury to decide matters presented—Waiver—Reconvening same jury— Impanelling new jury—Peremptory challenges. Special sentencing proceeding—Jury instructions—Opening statements—Evidence—Arguments—Question for jury. Special sentencing proceeding—Factors which jury may consider in deciding whether leniency merited. When sentence to death or sentence to life imprisonment shall be imposed. Sentence if death sentence commuted, held invalid, or if death sentence established by chapter held invalid. Mandatory review of death sentence by supreme court— Notice—Transmittal—Contents of notice—Jurisdiction. Verbatim report of trial proceedings—Preparation—Transmittal to supreme court—Clerk’s papers—Receipt. Information report—Form—Contents—Submission to supreme court, defendant, prosecuting attorney. [Title 10 RCW—page 67] 10.95.010 10.95.130 10.95.140 10.95.150 10.95.160 10.95.170 10.95.180 10.95.185 10.95.190 10.95.200 10.95.900 Title 10 RCW: Criminal Procedure Questions posed for determination by supreme court in death sentence review—Review in addition to appeal—Consolidation of review and appeal. Invalidation of sentence, remand for resentencing—Affirmation of sentence, remand for execution. Time limit for appellate review of death sentence and filing opinion. Death warrant—Issuance—Form—Time for execution of judgment and sentence. Imprisonment of defendant. Death penalty—How executed. Witnesses. Death warrant—Record—Return to trial court. Proceedings for failure to execute on day named. Severability—1981 c 138. Homicide: Chapter 9A.32 RCW. 10.95.010 Court rules. No rule promulgated by the supreme court of Washington pursuant to RCW 2.04.190 and 2.04.200, now or in the future, shall be construed to supersede or alter any of the provisions of this chapter. [1981 c 138 § 1.] 10.95.010 10.95.020 Definition. A person is guilty of aggravated first degree murder, a class A felony, if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a), as now or hereafter amended, and one or more of the following aggravating circumstances exist: (1) The victim was a law enforcement officer, corrections officer, or fire fighter who was performing his or her official duties at the time of the act resulting in death and the victim was known or reasonably should have been known by the person to be such at the time of the killing; (2) At the time of the act resulting in the death, the person was serving a term of imprisonment, had escaped, or was on authorized or unauthorized leave in or from a state facility or program for the incarceration or treatment of persons adjudicated guilty of crimes; (3) At the time of the act resulting in death, the person was in custody in a county or county-city jail as a consequence of having been adjudicated guilty of a felony; (4) The person committed the murder pursuant to an agreement that he or she would receive money or any other thing of value for committing the murder; (5) The person solicited another person to commit the murder and had paid or had agreed to pay money or any other thing of value for committing the murder; (6) The person committed the murder to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group; (7) The murder was committed during the course of or as a result of a shooting where the discharge of the firearm, as defined in RCW 9.41.010, is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge; (8) The victim was: (a) A judge; juror or former juror; prospective, current, or former witness in an adjudicative proceeding; prosecuting attorney; deputy prosecuting attorney; defense attorney; a member of the indeterminate sentence review board; or a probation or parole officer; and (b) The murder was related to the exercise of official duties performed or to be performed by the victim; 10.95.020 [Title 10 RCW—page 68] (9) The person committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime, including, but specifically not limited to, any attempt to avoid prosecution as a persistent offender as defined in RCW 9.94A.030; (10) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person; (11) The murder was committed in the course of, in furtherance of, or in immediate flight from one of the following crimes: (a) Robbery in the first or second degree; (b) Rape in the first or second degree; (c) Burglary in the first or second degree or residential burglary; (d) Kidnapping in the first degree; or (e) Arson in the first degree; (12) The victim was regularly employed or selfemployed as a newsreporter and the murder was committed to obstruct or hinder the investigative, research, or reporting activities of the victim; (13) At the time the person committed the murder, there existed a court order, issued in this or any other state, which prohibited the person from either contacting the victim, molesting the victim, or disturbing the peace of the victim, and the person had knowledge of the existence of that order; (14) At the time the person committed the murder, the person and the victim were "family or household members" as that term is defined in *RCW 10.99.020(1), and the person had previously engaged in a pattern or practice of three or more of the following crimes committed upon the victim within a five-year period, regardless of whether a conviction resulted: (a) Harassment as defined in RCW 9A.46.020; or (b) Any criminal assault. [2003 c 53 § 96; 1998 c 305 § 1. Prior: 1995 c 129 § 17 (Initiative Measure No. 159); 1994 c 121 § 3; 1981 c 138 § 2.] *Reviser’s note: RCW 10.99.020 was amended by 2004 c 18 § 2, changing subsection (1) to subsection (3). Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510. 10.95.030 10.95.030 Sentences for aggravated first degree murder. (1) Except as provided in subsection (2) of this section, any person convicted of the crime of aggravated first degree murder shall be sentenced to life imprisonment without possibility of release or parole. A person sentenced to life imprisonment under this section shall not have that sentence suspended, deferred, or commuted by any judicial officer and the indeterminate sentence review board or its successor may not parole such prisoner nor reduce the period of confinement in any manner whatsoever including but not limited to any sort of good-time calculation. The department of social and health services or its successor or any executive official may not permit such prisoner to participate in any sort of release or furlough program. (2) If, pursuant to a special sentencing proceeding held under RCW 10.95.050, the trier of fact finds that there are not sufficient mitigating circumstances to merit leniency, the (2006 Ed.) Capital Punishment—Aggravated First Degree Murder sentence shall be death. In no case, however, shall a person be sentenced to death if the person was mentally retarded at the time the crime was committed, under the definition of mental retardation set forth in (a) of this subsection. A diagnosis of mental retardation shall be documented by a licensed psychiatrist or licensed psychologist designated by the court, who is an expert in the diagnosis and evaluation of mental retardation. The defense must establish mental retardation by a preponderance of the evidence and the court must make a finding as to the existence of mental retardation. (a) "Mentally retarded" means the individual has: (i) Significantly subaverage general intellectual functioning; (ii) existing concurrently with deficits in adaptive behavior; and (iii) both significantly subaverage general intellectual functioning and deficits in adaptive behavior were manifested during the developmental period. (b) "General intellectual functioning" means the results obtained by assessment with one or more of the individually administered general intelligence tests developed for the purpose of assessing intellectual functioning. (c) "Significantly subaverage general intellectual functioning" means intelligence quotient seventy or below. (d) "Adaptive behavior" means the effectiveness or degree with which individuals meet the standards of personal independence and social responsibility expected for his or her age. (e) "Developmental period" means the period of time between conception and the eighteenth birthday. [1993 c 479 § 1; 1981 c 138 § 3.] 10.95.040 10.95.040 Special sentencing proceeding—Notice— Filing—Service. (1) If a person is charged with aggravated first degree murder as defined by RCW 10.95.020, the prosecuting attorney shall file written notice of a special sentencing proceeding to determine whether or not the death penalty should be imposed when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency. (2) The notice of special sentencing proceeding shall be filed and served on the defendant or the defendant’s attorney within thirty days after the defendant’s arraignment upon the charge of aggravated first degree murder unless the court, for good cause shown, extends or reopens the period for filing and service of the notice. Except with the consent of the prosecuting attorney, during the period in which the prosecuting attorney may file the notice of special sentencing proceeding, the defendant may not tender a plea of guilty to the charge of aggravated first degree murder nor may the court accept a plea of guilty to the charge of aggravated first degree murder or any lesser included offense. (3) If a notice of special sentencing proceeding is not filed and served as provided in this section, the prosecuting attorney may not request the death penalty. [1981 c 138 § 4.] 10.95.050 10.95.050 Special sentencing proceeding—When held—Jury to decide matters presented—Waiver— Reconvening same jury—Impanelling new jury— Peremptory challenges. (1) If a defendant is adjudicated guilty of aggravated first degree murder, whether by acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court sitting without a jury, a special sentencing pro(2006 Ed.) 10.95.060 ceeding shall be held if a notice of special sentencing proceeding was filed and served as provided by RCW 10.95.040. No sort of plea, admission, or agreement may abrogate the requirement that a special sentencing proceeding be held. (2) A jury shall decide the matters presented in the special sentencing proceeding unless a jury is waived in the discretion of the court and with the consent of the defendant and the prosecuting attorney. (3) If the defendant’s guilt was determined by a jury verdict, the trial court shall reconvene the same jury to hear the special sentencing proceeding. The proceeding shall commence as soon as practicable after completion of the trial at which the defendant’s guilt was determined. If, however, unforeseen circumstances make it impracticable to reconvene the same jury to hear the special sentencing proceeding, the trial court may dismiss that jury and convene a jury pursuant to subsection (4) of this section. (4) If the defendant’s guilt was determined by plea of guilty or by decision of the trial court sitting without a jury, or if a retrial of the special sentencing proceeding is necessary for any reason including but not limited to a mistrial in a previous special sentencing proceeding or as a consequence of a remand from an appellate court, the trial court shall impanel a jury of twelve persons plus whatever alternate jurors the trial court deems necessary. The defense and prosecution shall each be allowed to peremptorily challenge twelve jurors. If there is more than one defendant, each defendant shall be allowed an additional peremptory challenge and the prosecution shall be allowed a like number of additional challenges. If alternate jurors are selected, the defense and prosecution shall each be allowed one peremptory challenge for each alternate juror to be selected and if there is more than one defendant each defendant shall be allowed an additional peremptory challenge for each alternate juror to be selected and the prosecution shall be allowed a like number of additional challenges. [1981 c 138 § 5.] 10.95.060 Special sentencing proceeding—Jury instructions—Opening statements—Evidence—Arguments—Question for jury. (1) At the commencement of the special sentencing proceeding, the trial court shall instruct the jury as to the nature and purpose of the proceeding and as to the consequences of its decision, as provided in RCW 10.95.030. (2) At the special sentencing proceeding both the prosecution and defense shall be allowed to make an opening statement. The prosecution shall first present evidence and then the defense may present evidence. Rebuttal evidence may be presented by each side. Upon conclusion of the evidence, the court shall instruct the jury and then the prosecution and defense shall be permitted to present argument. The prosecution shall open and conclude the argument. (3) The court shall admit any relevant evidence which it deems to have probative value regardless of its admissibility under the rules of evidence, including hearsay evidence and evidence of the defendant’s previous criminal activity regardless of whether the defendant has been charged or convicted as a result of such activity. The defendant shall be accorded a fair opportunity to rebut or offer any hearsay evidence. In addition to evidence of whether or not there are sufficient mitigating circumstances to merit leniency, if the jury 10.95.060 [Title 10 RCW—page 69] 10.95.070 Title 10 RCW: Criminal Procedure sitting in the special sentencing proceeding has not heard evidence of the aggravated first degree murder of which the defendant stands convicted, both the defense and prosecution may introduce evidence concerning the facts and circumstances of the murder. (4) Upon conclusion of the evidence and argument at the special sentencing proceeding, the jury shall retire to deliberate upon the following question: "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?" In order to return an affirmative answer to the question posed by this subsection, the jury must so find unanimously. [1981 c 138 § 6.] 10.95.070 10.95.070 Special sentencing proceeding—Factors which jury may consider in deciding whether leniency merited. In deciding the question posed by RCW 10.95.060(4), the jury, or the court if a jury is waived, may consider any relevant factors, including but not limited to the following: (1) Whether the defendant has or does not have a significant history, either as a juvenile or an adult, of prior criminal activity; (2) Whether the murder was committed while the defendant was under the influence of extreme mental disturbance; (3) Whether the victim consented to the act of murder; (4) Whether the defendant was an accomplice to a murder committed by another person where the defendant’s participation in the murder was relatively minor; (5) Whether the defendant acted under duress or domination of another person; (6) Whether, at the time of the murder, the capacity of the defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired as a result of mental disease or defect. However, a person found to be mentally retarded under RCW 10.95.030(2) may in no case be sentenced to death; (7) Whether the age of the defendant at the time of the crime calls for leniency; and (8) Whether there is a likelihood that the defendant will pose a danger to others in the future. [1993 c 479 § 2; 1981 c 138 § 7.] 10.95.080 10.95.080 When sentence to death or sentence to life imprisonment shall be imposed. (1) If a jury answers affirmatively the question posed by RCW 10.95.060(4), or when a jury is waived as allowed by RCW 10.95.050(2) and the trial court answers affirmatively the question posed by RCW 10.95.060(4), the defendant shall be sentenced to death. The trial court may not suspend or defer the execution or imposition of the sentence. (2) If the jury does not return an affirmative answer to the question posed in RCW 10.95.060(4), the defendant shall be sentenced to life imprisonment as provided in RCW 10.95.030(1). [1981 c 138 § 8.] 10.95.090 10.95.090 Sentence if death sentence commuted, held invalid, or if death sentence established by chapter held [Title 10 RCW—page 70] invalid. If any sentence of death imposed pursuant to this chapter is commuted by the governor, or held to be invalid by a final judgment of a court after all avenues of appeal have been exhausted by the parties to the action, or if the death penalty established by this chapter is held to be invalid by a final judgment of a court which is binding on all courts in the state, the sentence for aggravated first degree murder if there was an affirmative response to the question posed by RCW 10.95.060(4) shall be life imprisonment as provided in RCW 10.95.030(1). [1981 c 138 § 9.] 10.95.100 10.95.100 Mandatory review of death sentence by supreme court—Notice—Transmittal—Contents of notice—Jurisdiction. Whenever a defendant is sentenced to death, upon entry of the judgment and sentence in the trial court the sentence shall be reviewed on the record by the supreme court of Washington. Within ten days of the entry of a judgment and sentence imposing the death penalty, the clerk of the trial court shall transmit notice thereof to the clerk of the supreme court of Washington and to the parties. The notice shall include the caption of the case, its cause number, the defendant’s name, the crime or crimes of which the defendant was convicted, the sentence imposed, the date of entry of judgment and sentence, and the names and addresses of the attorneys for the parties. The notice shall vest with the supreme court of Washington the jurisdiction to review the sentence of death as provided by this chapter. The failure of the clerk of the trial court to transmit the notice as required shall not prevent the supreme court of Washington from conducting the sentence review as provided by chapter 138, Laws of 1981. [1981 c 138 § 10.] 10.95.110 10.95.110 Verbatim report of trial proceedings— Preparation—Transmittal to supreme court—Clerk’s papers—Receipt. (1) Within ten days after the entry of a judgment and sentence imposing the death penalty, the clerk of the trial court shall cause the preparation of a verbatim report of the trial proceedings to be commenced. (2) Within five days of the filing and approval of the verbatim report of proceedings, the clerk of the trial court shall transmit such verbatim report of proceedings together with copies of all of the clerk’s papers to the clerk of the supreme court of Washington. The clerk of the supreme court of Washington shall forthwith acknowledge receipt of these documents by providing notice of receipt to the clerk of the trial court, the defendant or his or her attorney, and the prosecuting attorney. [1981 c 138 § 11.] 10.95.120 10.95.120 Information report—Form—Contents— Submission to supreme court, defendant, prosecuting attorney. In all cases in which a person is convicted of aggravated first degree murder, the trial court shall, within thirty days after the entry of the judgment and sentence, submit a report to the clerk of the supreme court of Washington, to the defendant or his or her attorney, and to the prosecuting attorney which provides the information specified under subsections (1) through (8) of this section. The report shall be in the form of a standard questionnaire prepared and supplied (2006 Ed.) Capital Punishment—Aggravated First Degree Murder by the supreme court of Washington and shall include the following: (1) Information about the defendant, including the following: (a) Name, date of birth, gender, marital status, and race and/or ethnic origin; (b) Number and ages of children; (c) Whether his or her parents are living, and date of death where applicable; (d) Number of children born to his or her parents; (e) The defendant’s educational background, intelligence level, and intelligence quotient; (f) Whether a psychiatric evaluation was performed, and if so, whether it indicated that the defendant was: (i) Able to distinguish right from wrong; (ii) Able to perceive the nature and quality of his or her act; and (iii) Able to cooperate intelligently with his or her defense; (g) Any character or behavior disorders found or other pertinent psychiatric or psychological information; (h) The work record of the defendant; (i) A list of the defendant’s prior convictions including the offense, date, and sentence imposed; and (j) The length of time the defendant has resided in Washington and the county in which he or she was convicted. (2) Information about the trial, including: (a) The defendant’s plea; (b) Whether defendant was represented by counsel; (c) Whether there was evidence introduced or instructions given as to defenses to aggravated first degree murder, including excusable homicide, justifiable homicide, insanity, duress, entrapment, alibi, intoxication, or other specific defense; (d) Any other offenses charged against the defendant and tried at the same trial and whether they resulted in conviction; (e) What aggravating circumstances were alleged against the defendant and which of these circumstances was found to have been applicable; and (f) Names and charges filed against other defendant(s) if tried jointly and disposition of the charges. (3) Information concerning the special sentencing proceeding, including: (a) The date the defendant was convicted and date the special sentencing proceeding commenced; (b) Whether the jury for the special sentencing proceeding was the same jury that returned the guilty verdict, providing an explanation if it was not; (c) Whether there was evidence of mitigating circumstances; (d) Whether there was, in the court’s opinion, credible evidence of the mitigating circumstances as provided in RCW 10.95.070; (e) The jury’s answer to the question posed in RCW 10.95.060(4); (f) The sentence imposed. (4) Information about the victim, including: (a) Whether he or she was related to the defendant by blood or marriage; (b) The victim’s occupation and whether he or she was an employer or employee of the defendant; (2006 Ed.) 10.95.120 (c) Whether the victim was acquainted with the defendant, and if so, how well; (d) The length of time the victim resided in Washington and the county; (e) Whether the victim was the same race and/or ethnic origin as the defendant; (f) Whether the victim was the same sex as the defendant; (g) Whether the victim was held hostage during the crime and if so, how long; (h) The nature and extent of any physical harm or torture inflicted upon the victim prior to death; (i) The victim’s age; and (j) The type of weapon used in the crime, if any. (5) Information about the representation of the defendant, including: (a) Date counsel secured; (b) Whether counsel was retained or appointed, including the reason for appointment; (c) The length of time counsel has practiced law and nature of his or her practice; and (d) Whether the same counsel served at both the trial and special sentencing proceeding, and if not, why not. (6) General considerations, including: (a) Whether the race and/or ethnic origin of the defendant, victim, or any witness was an apparent factor at trial; (b) What percentage of the county population is the same race and/or ethnic origin of the defendant; (c) Whether members of the defendant’s or victim’s race and/or ethnic origin were represented on the jury; (d) Whether there was evidence that such members were systematically excluded from the jury; (e) Whether the sexual orientation of the defendant, victim, or any witness was a factor in the trial; (f) Whether any specific instruction was given to the jury to exclude race, ethnic origin, or sexual orientation as an issue; (g) Whether there was extensive publicity concerning the case in the community; (h) Whether the jury was instructed to disregard such publicity; (i) Whether the jury was instructed to avoid any influence of passion, prejudice, or any other arbitrary factor when considering its verdict or its findings in the special sentencing proceeding; (j) The nature of the evidence resulting in such instruction; and (k) General comments of the trial judge concerning the appropriateness of the sentence considering the crime, defendant, and other relevant factors. (7) Information about the chronology of the case, including the date that: (a) The defendant was arrested; (b) Trial began; (c) The verdict was returned; (d) Post-trial motions were ruled on; (e) Special sentencing proceeding began; (f) Sentence was imposed; (g) Trial judge’s report was completed; and (h) Trial judge’s report was filed. [Title 10 RCW—page 71] 10.95.130 Title 10 RCW: Criminal Procedure (8) The trial judge shall sign and date the questionnaire when it is completed. [1981 c 138 § 12.] 10.95.130 10.95.130 Questions posed for determination by supreme court in death sentence review—Review in addition to appeal—Consolidation of review and appeal. (1) The sentence review required by RCW 10.95.100 shall be in addition to any appeal. The sentence review and an appeal shall be consolidated for consideration. The defendant and the prosecuting attorney may submit briefs within the time prescribed by the court and present oral argument to the court. (2) With regard to the sentence review required by chapter 138, Laws of 1981, the supreme court of Washington shall determine: (a) Whether there was sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95.060(4); and (b) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. For the purposes of this subsection, "similar cases" means cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120; (c) Whether the sentence of death was brought about through passion or prejudice; and (d) Whether the defendant was mentally retarded within the meaning of RCW 10.95.030(2). [1993 c 479 § 3; 1981 c 138 § 13.] 10.95.140 10.95.140 Invalidation of sentence, remand for resentencing—Affirmation of sentence, remand for execution. Upon completion of a sentence review: (1) The supreme court of Washington shall invalidate the sentence of death and remand the case to the trial court for resentencing in accordance with RCW 10.95.090 if: (a) The court makes a negative determination as to the question posed by RCW 10.95.130(2)(a); or (b) The court makes an affirmative determination as to any of the questions posed by RCW 10.95.130(2) (b), (c), or (d). (2) The court shall affirm the sentence of death and remand the case to the trial court for execution in accordance with RCW 10.95.160 if: (a) The court makes an affirmative determination as to the question posed by RCW 10.95.130(2)(a); and (b) The court makes a negative determination as to the questions posed by RCW 10.95.130(2) (b), (c), and (d). [1993 c 479 § 4; 1981 c 138 § 14.] papers filed under RCW 10.95.110. If this time requirement is not met, the chief justice of the supreme court of Washington shall state on the record the extraordinary and compelling circumstances causing the delay and the facts supporting such circumstances. A failure to comply with the time requirements of this subsection shall in no way preclude the ultimate execution of a sentence of death. [1988 c 202 § 17; 1981 c 138 § 15.] Severability—1988 c 202: See note following RCW 2.24.050. 10.95.160 10.95.160 Death warrant—Issuance—Form—Time for execution of judgment and sentence. (1) If a death sentence is affirmed and the case remanded to the trial court as provided in RCW 10.95.140(2), a death warrant shall forthwith be issued by the clerk of the trial court, which shall be signed by a judge of the trial court and attested by the clerk thereof under the seal of the court. The warrant shall be directed to the superintendent of the state penitentiary and shall state the conviction of the person named therein and the judgment and sentence of the court, and shall appoint a day on which the judgment and sentence of the court shall be executed by the superintendent, which day shall not be less than thirty nor more than ninety days from the date the trial court receives the remand from the supreme court of Washington. (2) If the date set for execution under subsection (1) of this section is stayed by a court of competent jurisdiction for any reason, the new execution date is automatically set at thirty judicial days after the entry of an order of termination or vacation of the stay by such court unless the court invalidates the conviction, sentence, or remands for further judicial proceedings. The presence of the inmate under sentence of death shall not be required for the court to vacate or terminate the stay according to this section. [1990 c 263 § 1; 1981 c 138 § 16.] 10.95.170 10.95.170 Imprisonment of defendant. The defendant shall be imprisoned in the state penitentiary within ten days after the trial court enters a judgment and sentence imposing the death penalty and shall be imprisoned both prior to and subsequent to the issuance of the death warrant as provided in RCW 10.95.160. During such period of imprisonment, the defendant shall be confined in the segregation unit, where the defendant may be confined with other prisoners not under sentence of death, but prisoners under sentence of death shall be assigned to single-person cells. [1983 c 255 § 1; 1981 c 138 § 17.] Severability—1983 c 255: See RCW 72.74.900. Convicted female persons, commitment and procedure as to death sentences: RCW 72.02.250. 10.95.180 10.95.150 10.95.150 Time limit for appellate review of death sentence and filing opinion. In all cases in which a sentence of death has been imposed, the appellate review, if any, and sentence review to or by the supreme court of Washington shall be decided and an opinion on the merits shall be filed within one year of receipt by the clerk of the supreme court of Washington of the verbatim report of proceedings and clerk’s [Title 10 RCW—page 72] 10.95.180 Death penalty—How executed. (1) The punishment of death shall be supervised by the superintendent of the penitentiary and shall be inflicted by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until the defendant is dead, or, at the election of the defendant, by hanging by the neck until the defendant is dead. In any case, death shall be pronounced by a licensed physician. (2006 Ed.) Capital Punishment—Aggravated First Degree Murder (2) All executions, for both men and women, shall be carried out within the walls of the state penitentiary. [1996 c 251 § 1; 1986 c 194 § 1; 1981 c 138 § 18.] Severability—1996 c 251: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1996 c 251 § 2.] 10.95.185 10.95.185 Witnesses. (1) Not less than twenty days prior to a scheduled execution, judicial officers, law enforcement representatives, media representatives, representatives of the families of the victims, and representatives from the family of the defendant who wish to attend and witness the execution, must submit an application to the superintendent. Such application must designate the relationship and reason for wishing to attend. (2) Not less than fifteen days prior to the scheduled execution, the superintendent shall designate the total number of individuals who will be allowed to attend and witness the planned execution. The superintendent shall determine the number of witnesses that will be allowed in each of the following categories: (a) No less than five media representatives with consideration to be given to news organizations serving communities affected by the crimes or by the commission of the execution of the defendant. (b) Judicial officers. (c) Representatives of the families of the victims. (d) Representatives from the family of the defendant. (e) Up to two law enforcement representatives. The chief executive officer of the agency that investigated the crime shall designate the law enforcement representatives. After the list is composed, the superintendent shall serve this list on all parties who have submitted an application pursuant to this section. The superintendent shall develop and implement procedures to determine the persons within each of the categories listed in this subsection who will be allowed to attend and witness the execution. (3) Not less than ten days prior to the scheduled execution, the superintendent shall file the witness list with the superior court from which the conviction and death warrant was issued with a petition asking that the court enter an order certifying this list as a final order identifying the witnesses to attend the execution. The final order of the court certifying the witness list shall not be entered less than five days after the filing of the petition. (4) Unless a show cause petition is filed with the superior court from which the conviction and death warrant was issued within five days of the filing of the superintendent’s petition, the superintendent’s list, by order of the superior court, becomes final, and no other party has standing to challenge its appropriateness. (5) In no case may the superintendent or the superior court order or allow more than seventeen individuals other than required staff to witness a planned execution. (6) All witnesses must adhere to the search and security provisions of the department of corrections’ policy regarding the witnessing of an execution. (7) The superior court from which the conviction and death warrant was issued is the exclusive court for seeking (2006 Ed.) 10.95.200 judicial process for the privilege of attending and witnessing an execution. (8) For purposes of this section: (a) "Judicial officer" means: (i) The superior court judge who signed the death warrant issued pursuant to RCW 10.95.160 for the execution of the individual, (ii) the current prosecuting attorney or a deputy prosecuting attorney of the county from which the final judgment and sentence and death warrant were issued, and (iii) the most recent attorney of record representing the individual sentenced to death. (b) "Law enforcement representatives" means those law enforcement officers responsible for investigating the crime for which the defendant was sentenced to death. (c) "Media representatives" means representatives from news organizations of all forms of media serving the state. (d) "Representatives of the families of the victims" means representatives from the immediate families of the victim(s) of the individual sentenced to death, including victim advocates of the immediate family members. Victim advocates shall include any person working or volunteering for a recognized victim advocacy group or a prosecutorbased or law enforcement-based agency on behalf of victims or witnesses. (e) "Representative from the family of the defendant" means a representative from the immediate family of the individual sentenced to death. (f) "Superintendent" means the superintendent of the Washington state penitentiary. [1999 c 332 § 1; 1993 c 463 § 2.] Policy—1993 c 463: "The legislature declares that, to the extent that the attendance of witnesses can be accommodated without compromising the security or the orderly operation of the Washington state penitentiary, it is the policy of the state of Washington to provide authorized individuals the opportunity to attend and witness the execution of an individual sentenced to death pursuant to chapter 10.95 RCW. Further, it is the policy of the state of Washington to provide for access to the execution to credentialed members of the media." [1993 c 463 § 1.] Severability—1993 c 463: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1993 c 463 § 3.] 10.95.190 10.95.190 Death warrant—Record—Return to trial court. (1) The superintendent of the state penitentiary shall keep in his or her office as part of the public records a book in which shall be kept a copy of each death warrant together with a complete statement of the superintendent’s acts pursuant to such warrants. (2) Within twenty days after each execution of a sentence of death, the superintendent of the state penitentiary shall return the death warrant to the clerk of the trial court from which it was issued with the superintendent’s return thereon showing all acts and proceedings done by him or her thereunder. [1981 c 138 § 19.] 10.95.200 10.95.200 Proceedings for failure to execute on day named. Whenever the day appointed for the execution of a defendant shall have passed, from any cause, other than the issuance of a stay by a court of competent jurisdiction, without the execution of such defendant having occurred, the trial court which issued the original death warrant shall issue a new death warrant in accordance with RCW 10.95.160. The [Title 10 RCW—page 73] 10.95.900 Title 10 RCW: Criminal Procedure defendant’s presence before the court is not required. However, nothing in this section shall be construed as restricting the defendant’s right to be represented by counsel in connection with issuance of a new death warrant. [1990 c 263 § 2; 1987 c 286 § 1; 1981 c 138 § 20.] 10.95.900 Severability—1981 c 138. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1981 c 138 § 22.] 10.95.900 Chapter 10.97 RCW WASHINGTON STATE CRIMINAL RECORDS PRIVACY ACT Chapter 10.97 Sections 10.97.010 10.97.020 10.97.030 10.97.040 10.97.045 10.97.050 10.97.060 10.97.070 10.97.080 10.97.090 10.97.100 10.97.110 10.97.120 10.97.130 10.97.140 Declaration of policy. Short title. Definitions. Information required—Exceptions. Disposition data to initiating agency and state patrol. Restricted, unrestricted information—Records. Deletion of certain information, conditions. Disclosure of suspect’s identity to victim. Inspection of information by subject—Challenges and corrections. Administration by state patrol. Fees. Civil remedies—Criminal prosecution not affected. Criminal penalties—Civil action not affected. Child victims of sexual assaults, identification confidential. Construction. Public records: Chapter 42.56 RCW. Records of rape crisis centers not available as part of discovery: RCW 70.125.065. 10.97.010 Declaration of policy. The legislature declares that it is the policy of the state of Washington to provide for the completeness, accuracy, confidentiality, and security of criminal history record information and victim, witness, and complainant record information as defined in this chapter. [1977 ex.s. c 314 § 1.] 10.97.010 10.97.020 10.97.020 Short title. This chapter may be cited as the Washington State Criminal Records Privacy Act. [1977 ex.s. c 314 § 2.] Reviser’s note: The phrase "This 1977 amendatory act" has been changed to "This chapter." This 1977 amendatory act [1977 ex.s. c 314] consists of chapter 10.97 RCW and the amendments of RCW 42.17.310, 43.43.705, 43.43.710, 43.43.730, and 43.43.810. 10.97.030 Definitions. For purposes of this chapter, the definitions of terms in this section shall apply. (1) "Criminal history record information" means information contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittals by reason of insanity, dismissals based on lack of competency, sentences, correctional supervision, and release. The term includes information contained in records maintained by or obtained from criminal justice agencies, other than courts, which records provide individual identifi10.97.030 [Title 10 RCW—page 74] cation of a person together with any portion of the individual’s record of involvement in the criminal justice system as an alleged or convicted offender, except: (a) Posters, announcements, or lists for identifying or apprehending fugitives or wanted persons; (b) Original records of entry maintained by criminal justice agencies to the extent that such records are compiled and maintained chronologically and are accessible only on a chronological basis; (c) Court indices and records of public judicial proceedings, court decisions, and opinions, and information disclosed during public judicial proceedings; (d) Records of traffic violations which are not punishable by a maximum term of imprisonment of more than ninety days; (e) Records of any traffic offenses as maintained by the department of licensing for the purpose of regulating the issuance, suspension, revocation, or renewal of drivers’ or other operators’ licenses and pursuant to RCW 46.52.130; (f) Records of any aviation violations or offenses as maintained by the department of transportation for the purpose of regulating pilots or other aviation operators, and pursuant to RCW 47.68.330; (g) Announcements of executive clemency. (2) "Nonconviction data" consists of all criminal history record information relating to an incident which has not led to a conviction or other disposition adverse to the subject, and for which proceedings are no longer actively pending. There shall be a rebuttable presumption that proceedings are no longer actively pending if more than one year has elapsed since arrest, citation, charge, or service of warrant and no disposition has been entered. (3) "Conviction record" means criminal history record information relating to an incident which has led to a conviction or other disposition adverse to the subject. (4) "Conviction or other disposition adverse to the subject" means any disposition of charges other than: (a) A decision not to prosecute; (b) a dismissal; or (c) acquittal; with the following exceptions, which shall be considered dispositions adverse to the subject: An acquittal due to a finding of not guilty by reason of insanity and a dismissal by reason of incompetency, pursuant to chapter 10.77 RCW; and a dismissal entered after a period of probation, suspension, or deferral of sentence. (5) "Criminal justice agency" means: (a) A court; or (b) a government agency which performs the administration of criminal justice pursuant to a statute or executive order and which allocates a substantial part of its annual budget to the administration of criminal justice. (6) "The administration of criminal justice" means performance of any of the following activities: Detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders. The term also includes criminal identification activities and the collection, storage, dissemination of criminal history record information, and the compensation of victims of crime. (7) "Disposition" means the formal conclusion of a criminal proceeding at whatever stage it occurs in the criminal justice system. (2006 Ed.) Washington State Criminal Records Privacy Act (8) "Dissemination" means disclosing criminal history record information or disclosing the absence of criminal history record information to any person or agency outside the agency possessing the information, subject to the following exceptions: (a) When criminal justice agencies jointly participate in the maintenance of a single record keeping department as an alternative to maintaining separate records, the furnishing of information by that department to personnel of any participating agency is not a dissemination; (b) The furnishing of information by any criminal justice agency to another for the purpose of processing a matter through the criminal justice system, such as a police department providing information to a prosecutor for use in preparing a charge, is not a dissemination; (c) The reporting of an event to a record keeping agency for the purpose of maintaining the record is not a dissemination. [1999 c 49 § 1; 1998 c 297 § 49; 1990 c 3 § 128; 1979 ex.s. c 36 § 1; 1979 c 158 § 5; 1977 ex.s. c 314 § 3.] Effective dates—Severability—Intent—1998 c 297: See notes following RCW 71.05.010. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 10.97.040 10.97.040 Information required—Exceptions. No criminal justice agency shall disseminate criminal history record information pertaining to an arrest, detention, indictment, information, or other formal criminal charge made after December 31, 1977, unless the record disseminated states the disposition of such charge to the extent dispositions have been made at the time of the request for the information: PROVIDED, HOWEVER, That if a disposition occurring within ten days immediately preceding the dissemination has not been reported to the agency disseminating the criminal history record information, or if information has been received by the agency within the seventy-two hours immediately preceding the dissemination, that information shall not be required to be included in the dissemination: PROVIDED FURTHER, That when another criminal justice agency requests criminal history record information, the disseminating agency may disseminate specific facts and incidents which are within its direct knowledge without furnishing disposition data as otherwise required by this section, unless the disseminating agency has received such disposition data from either: (1) the state patrol, or (2) the court or other criminal justice agency required to furnish disposition data pursuant to RCW 10.97.045. No criminal justice agency shall disseminate criminal history record information which shall include information concerning a felony or gross misdemeanor without first making inquiry of the identification section of the Washington state patrol for the purpose of obtaining the most current and complete information available, unless one or more of the following circumstances exists: (1) The information to be disseminated is needed for a purpose in the administration of criminal justice for which time is of the essence and the identification section is technically or physically incapable of responding within the required time; (2) The full information requested and to be disseminated relates to specific facts or incidents which are within (2006 Ed.) 10.97.050 the direct knowledge of the agency which disseminates the information; (3) The full information requested and to be disseminated is contained in a criminal history record information summary received from the identification section by the agency which is to make the dissemination not more than thirty days preceding the dissemination to be made; (4) The statute, executive order, court rule, or court order pursuant to which the information is to be disseminated refers solely to information in the files of the agency which makes the dissemination; (5) The information requested and to be disseminated is for the express purpose of research, evaluative, or statistical activities to be based upon information maintained in the files of the agency or agencies from which the information is directly sought; or (6) A person who is the subject of the record requests the information and the agency complies with the requirements in RCW 10.97.080 as now or hereafter amended. [1979 ex.s. c 36 § 2; 1977 ex.s. c 314 § 4.] 10.97.045 10.97.045 Disposition data to initiating agency and state patrol. Whenever a court or other criminal justice agency reaches a disposition of a criminal proceeding, the court or other criminal justice agency shall furnish the disposition data to the agency initiating the criminal history record for that charge and to the identification section of the Washington state patrol as required under RCW 43.43.745. [1979 ex.s. c 36 § 6.] 10.97.050 10.97.050 Restricted, unrestricted information— Records. (1) Conviction records may be disseminated without restriction. (2) Any criminal history record information which pertains to an incident that occurred within the last twelve months for which a person is currently being processed by the criminal justice system, including the entire period of correctional supervision extending through final discharge from parole, when applicable, may be disseminated without restriction with the exception of a record being disseminated in response to a request for a conviction record under RCW 43.43.832. A request for a conviction record under RCW 43.43.832 shall not contain information for a person who, within the last twelve months, is currently being processed by the criminal justice system unless it pertains to information relating to a crime against a person as defined in RCW 9.94A.411. (3) Criminal history record information which includes nonconviction data may be disseminated by a criminal justice agency to another criminal justice agency for any purpose associated with the administration of criminal justice, or in connection with the employment of the subject of the record by a criminal justice or juvenile justice agency. A criminal justice agency may respond to any inquiry from another criminal justice agency without any obligation to ascertain the purpose for which the information is to be used by the agency making the inquiry. (4) Criminal history record information which includes nonconviction data may be disseminated by a criminal justice agency to implement a statute, ordinance, executive order, or [Title 10 RCW—page 75] 10.97.060 Title 10 RCW: Criminal Procedure a court rule, decision, or order which expressly refers to records of arrest, charges, or allegations of criminal conduct or other nonconviction data and authorizes or directs that it be available or accessible for a specific purpose. (5) Criminal history record information which includes nonconviction data may be disseminated to individuals and agencies pursuant to a contract with a criminal justice agency to provide services related to the administration of criminal justice. Such contract must specifically authorize access to criminal history record information, but need not specifically state that access to nonconviction data is included. The agreement must limit the use of the criminal history record information to stated purposes and insure the confidentiality and security of the information consistent with state law and any applicable federal statutes and regulations. (6) Criminal history record information which includes nonconviction data may be disseminated to individuals and agencies for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency. Such agreement must authorize the access to nonconviction data, limit the use of that information which identifies specific individuals to research, evaluative, or statistical purposes, and contain provisions giving notice to the person or organization to which the records are disseminated that the use of information obtained therefrom and further dissemination of such information are subject to the provisions of this chapter and applicable federal statutes and regulations, which shall be cited with express reference to the penalties provided for a violation thereof. (7) Every criminal justice agency that maintains and disseminates criminal history record information must maintain information pertaining to every dissemination of criminal history record information except a dissemination to the effect that the agency has no record concerning an individual. Information pertaining to disseminations shall include: (a) An indication of to whom (agency or person) criminal history record information was disseminated; (b) The date on which the information was disseminated; (c) The individual to whom the information relates; and (d) A brief description of the information disseminated. The information pertaining to dissemination required to be maintained shall be retained for a period of not less than one year. (8) In addition to the other provisions in this section allowing dissemination of criminal history record information, RCW 4.24.550 governs dissemination of information concerning offenders who commit sex offenses as defined by RCW 9.94A.030. Criminal justice agencies, their employees, and officials shall be immune from civil liability for dissemination on criminal history record information concerning sex offenders as provided in RCW 4.24.550. [2005 c 421 § 9; 1990 c 3 § 129; 1977 ex.s. c 314 § 5.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. fied individual when two years or longer have elapsed since the record became nonconviction data as a result of the entry of a disposition favorable to the defendant, or upon the passage of three years from the date of arrest or issuance of a citation or warrant for an offense for which a conviction was not obtained unless the defendant is a fugitive, or the case is under active prosecution according to a current certification made by the prosecuting attorney. Such criminal history record information consisting of nonconviction data shall be deleted upon the request of the person who is the subject of the record: PROVIDED, HOWEVER, That the criminal justice agency maintaining the data may, at its option, refuse to make the deletion if: (1) The disposition was a deferred prosecution or similar diversion of the alleged offender; (2) The person who is the subject of the record has had a prior conviction for a felony or gross misdemeanor; (3) The individual who is the subject of the record has been arrested for or charged with another crime during the intervening period. Nothing in this chapter is intended to restrict the authority of any court, through appropriate judicial proceedings, to order the modification or deletion of a record in a particular cause or concerning a particular individual or event. [1977 ex.s. c 314 § 6.] 10.97.070 Disclosure of suspect’s identity to victim. (1) Criminal justice agencies may, in their discretion, disclose to persons who have suffered physical loss, property damage, or injury compensable through civil action, the identity of persons suspected as being responsible for such loss, damage, or injury together with such information as the agency reasonably believes may be of assistance to the victim in obtaining civil redress. Such disclosure may be made without regard to whether the suspected offender is an adult or a juvenile, whether charges have or have not been filed, or a prosecuting authority has declined to file a charge or a charge has been dismissed. (2) Unless the agency determines release would interfere with an ongoing criminal investigation, in any action brought pursuant to this chapter, criminal justice agencies shall disclose identifying information, including photographs of suspects, if the acts are alleged by the plaintiff or victim to be a violation of RCW 9A.50.020. (3) The disclosure by a criminal justice agency of investigative information pursuant to subsection (1) of this section shall not establish a duty to disclose any additional information concerning the same incident or make any subsequent disclosure of investigative information, except to the extent an additional disclosure is compelled by legal process. [1993 c 128 § 10; 1977 ex.s. c 314 § 7.] 10.97.070 Severability—Effective date—1993 c 128: See RCW 9A.50.901 and 9A.50.902. 10.97.080 Inspection of information by subject— Challenges and corrections. All criminal justice agencies shall permit an individual who is, or who believes that he may be, the subject of a criminal record maintained by that agency, to appear in person during normal business hours of that criminal justice agency and request to see the criminal history record information held by that agency pertaining to 10.97.080 10.97.060 10.97.060 Deletion of certain information, conditions. Criminal history record information which consists of nonconviction data only shall be subject to deletion from criminal justice agency files which are available and generally searched for the purpose of responding to inquiries concerning the criminal history of a named or otherwise identi[Title 10 RCW—page 76] (2006 Ed.) Washington State Criminal Records Privacy Act the individual. The individual’s right to access and review of criminal history record information shall not extend to data contained in intelligence, investigative, or other related files, and shall not be construed to include any information other than that defined as criminal history record information by this chapter. Every criminal justice agency shall adopt rules and make available forms to facilitate the inspection and review of criminal history record information by the subjects thereof, which rules may include requirements for identification, the establishment of reasonable periods of time to be allowed an individual to examine the record, and for assistance by an individual’s counsel, interpreter, or other appropriate persons. No person shall be allowed to retain or mechanically reproduce any nonconviction data except for the purpose of challenge or correction when the person who is the subject of the record asserts the belief in writing that the information regarding such person is inaccurate or incomplete. The provisions of chapter 42.56 RCW shall not be construed to require or authorize copying of nonconviction data for any other purpose. The Washington state patrol shall establish rules for the challenge of records which an individual declares to be inaccurate or incomplete, and for the resolution of any disputes between individuals and criminal justice agencies pertaining to the accuracy and completeness of criminal history record information. The Washington state patrol shall also adopt rules for the correction of criminal history record information and the dissemination of corrected information to agencies and persons to whom inaccurate or incomplete information was previously disseminated. Such rules may establish time limitations of not less than ninety days upon the requirement for disseminating corrected information. [2005 c 274 § 206; 1979 ex.s. c 36 § 3; 1977 ex.s. c 314 § 8.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. 10.97.090 10.97.090 Administration by state patrol. The Washington state patrol is hereby designated the agency of state government responsible for the administration of the 1977 Washington State Criminal Records Privacy Act. The Washington state patrol may adopt any rules and regulations necessary for the performance of the administrative functions provided for in this chapter. The Washington state patrol shall have the following specific administrative duties: (1) To establish by rule and regulation standards for the security of criminal history information systems in order that such systems and the data contained therein be adequately protected from fire, theft, loss, destruction, other physical hazard, or unauthorized access; (2) To establish by rule and regulation standards for personnel employed by criminal justice of other state and local government agencies in positions with responsibility for maintenance and dissemination of criminal history record information; and (3) To contract with the Washington state auditor or other public or private agency, organization, or individual to perform audits of criminal history record information systems. [1979 ex.s. c 36 § 4; 1977 ex.s. c 314 § 9.] (2006 Ed.) 10.97.130 10.97.100 10.97.100 Fees. Criminal justice agencies shall be authorized to establish and collect reasonable fees for the dissemination of criminal history record information to agencies and persons other than criminal justice agencies. [1977 ex.s. c 314 § 10.] 10.97.110 10.97.110 Civil remedies—Criminal prosecution not affected. Any person may maintain an action to enjoin a continuance of any act or acts in violation of any of the provisions of this chapter, and if injured thereby, for the recovery of damages and for the recovery of reasonable attorneys’ fees. If, in such action, the court shall find that the defendant is violating or has violated any of the provisions of this chapter, it shall enjoin the defendant from a continuance thereof, and it shall not be necessary that actual damages to the plaintiff be alleged or proved. In addition to such injunctive relief, the plaintiff in said action shall be entitled to recover from the defendant the amount of the actual damages, if any, sustained by him if actual damages to the plaintiff are alleged and proved. In any suit brought to enjoin a violation of this chapter, the prevailing party may be awarded reasonable attorneys’ fees, including fees incurred upon appeal. Commencement, pendency, or conclusion of a civil action for injunction or damages shall not affect the liability of a person or agency to criminal prosecution for a violation of this chapter. [1979 ex.s. c 36 § 5; 1977 ex.s. c 314 § 11.] 10.97.120 10.97.120 Criminal penalties—Civil action not affected. Violation of the provisions of this chapter shall constitute a misdemeanor, and any person whether as principal, agent, officer, or director for himself or for another person, or for any firm or corporation, public or private, or any municipality who or which shall violate any of the provisions of this chapter shall be guilty of a misdemeanor for each single violation. Any criminal prosecution shall not affect the right of any person to bring a civil action as authorized by this chapter or otherwise authorized by law. [1977 ex.s. c 314 § 12.] 10.97.130 10.97.130 Child victims of sexual assaults, identification confidential. Information identifying child victims under age eighteen who are victims of sexual assaults is confidential and not subject to release to the press or public without the permission of the child victim or the child’s legal guardian. Identifying information includes the child victim’s name, addresses, location, photographs, and in cases in which the child victim is a relative or stepchild of the alleged perpetrator, identification of the relationship between the child and the alleged perpetrator. Information identifying the child victim of sexual assault may be released to law enforcement, prosecutors, judges, defense attorneys, or private or governmental agencies that provide services to the child victim of sexual assault. Prior to release of any criminal history record information, the releasing agency shall delete any information identifying a child victim of sexual assault from the information except as provided in this section. [1992 c 188 § 8.] Findings—Intent—Severability—1992 c 188: See notes following RCW 7.69A.020. [Title 10 RCW—page 77] 10.97.140 Title 10 RCW: Criminal Procedure 10.97.140 Construction. Nothing in RCW 40.14.060 or 40.14.070 or chapter 42.56 RCW precludes dissemination of criminal history record information, including nonconviction data, for the purposes of this chapter. [2005 c 274 § 207; 1999 c 326 § 4.] 10.97.140 Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Chapter 10.98 RCW CRIMINAL JUSTICE INFORMATION ACT Chapter 10.98 Sections 10.98.010 10.98.020 10.98.030 10.98.040 10.98.050 10.98.060 10.98.070 10.98.080 10.98.090 10.98.100 10.98.110 10.98.130 10.98.140 10.98.150 10.98.160 10.98.200 10.98.210 10.98.220 10.98.230 10.98.240 Purpose. Short title. Source of conviction histories. Definitions. Officials’ duties. Arrest and fingerprint form. National crime information center interstate identification index. State identification number, furnishing of. Disposition forms—Coding. Compliance audit. Tracking felony cases. Local jail reports. Forecasting, felons, sentences. Status reports on felons. Procedures, development considerations—Washington integrated justice information board, review and recommendations. Findings—Intent. Washington integrated justice information board—Members. Washington integrated justice information board—Meetings. Washington integrated justice information board—Powers and duties. Washington integrated justice information board—Report. 10.98.010 10.98.010 Purpose. The purpose of this chapter is to provide a system of reporting and disseminating felony criminal justice information that provides: (1) Timely and accurate criminal histories for filing and sentencing under the sentencing reform act of 1981, (2) identification and tracking of felons, and (3) data for statewide planning and forecasting of the felon population. [1984 c 17 § 1.] 10.98.020 10.98.020 Short title. This chapter may be known and cited as the criminal justice information act. [1984 c 17 § 2.] 10.98.030 Source of conviction histories. The Washington state patrol identification, child abuse, and criminal history section as established in *RCW 43.43.700 shall be the primary source of felony conviction histories for filings, plea agreements, and sentencing on felony cases. [1999 c 143 § 50; 1984 c 17 § 3.] 10.98.030 *Reviser’s note: RCW 43.43.700 was amended by 2006 c 294 § 1, renaming the "identification, child abuse, and criminal history section" as the "identification and criminal history section." 10.98.040 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Arrest and fingerprint form" means the reporting form prescribed by the *identification, child abuse, and criminal history section to initiate compiling arrest and identification information. (2) "Chief law enforcement officer" includes the sheriff or director of public safety of a county, the chief of police of 10.98.040 [Title 10 RCW—page 78] a city or town, and chief officers of other law enforcement agencies operating within the state. (3) "Department" means the department of corrections. (4) "Disposition" means the conclusion of a criminal proceeding at any stage it occurs in the criminal justice system. Disposition includes but is not limited to temporary or permanent outcomes such as charges dropped by police, charges not filed by the prosecuting attorney, deferred prosecution, defendant absconded, charges filed by the prosecuting attorney pending court findings such as not guilty, dismissed, guilty, or guilty—case appealed to higher court. (5) "Disposition report" means the reporting form prescribed by the *identification, child abuse, and criminal history section to report the legal procedures taken after completing an arrest and fingerprint form. The disposition report shall include but not be limited to the following types of information: (a) The type of disposition; (b) The statutory citation for the arrests; (c) The sentence structure if the defendant was convicted of a felony; (d) The state identification number; and (e) Identification information and other information that is prescribed by the *identification, child abuse, and criminal history section. (6) "Fingerprints" means the fingerprints taken from arrested or charged persons under the procedures prescribed by the Washington state patrol *identification, child abuse, and criminal history section. (7) "Prosecuting attorney" means the public or private attorney prosecuting a criminal case. (8) "Section" refers to the Washington state patrol *section on identification, child abuse, and criminal history. (9) "Sentence structure" means itemizing the components of the felony sentence. The sentence structure shall include but not be limited to the total or partial confinement sentenced, and whether the sentence is prison or jail, community supervision, fines, restitution, or community restitution. [2002 c 175 § 18; 1999 c 143 § 51; 1985 c 201 § 1; 1984 c 17 § 4.] *Reviser’s note: The "identification, child abuse, and criminal history section" was renamed the "identification and criminal history section" by 2006 c 294 § 1. Effective date—2002 c 175: See note following RCW 7.80.130. 10.98.050 10.98.050 Officials’ duties. (1) It is the duty of the chief law enforcement officer or the local director of corrections to transmit within seventy-two hours from the time of arrest to the section fingerprints together with other identifying data as may be prescribed by the section, and statutory violations of any person lawfully arrested, fingerprinted, and photographed under RCW 43.43.735. The disposition report shall be transmitted to the prosecuting attorney, county clerk, or appropriate court of limited jurisdiction, whichever is responsible for transmitting the report to the section under RCW 10.98.010. (2) At the preliminary hearing or the arraignment of a felony case, the judge shall ensure that the felony defendants have been fingerprinted and an arrest and fingerprint form transmitted to the section. In cases where fingerprints have not been taken, the judge shall order the chief law enforce(2006 Ed.) Criminal Justice Information Act ment officer of the jurisdiction or the local director of corrections, or, in the case of a juvenile, the juvenile court administrator to initiate an arrest and fingerprint form and transmit it to the section. The disposition report shall be transmitted to the prosecuting attorney. [1999 c 49 § 2; 1989 c 6 § 1; 1987 c 450 § 6; 1985 c 201 § 2; 1984 c 17 § 5.] 10.98.060 10.98.060 Arrest and fingerprint form. The arrest and fingerprint form shall include but not be limited to the following: (1) Unique numbers associated with the arrest charges. The unique numbering system may be controlled by the local law enforcement agency, however the section shall approve of the numbering system and maintain a current catalog of approved local numbering systems. The purpose of the unique numbering system is to allow tracking of arrest charges through disposition; (2) An organization code; (3) Date of arrest; (4) Local identification number; (5) The prescribed fingerprints; (6) Individual identification information and other information prescribed by the section. [1984 c 17 § 6.] 10.98.070 10.98.070 National crime information center interstate identification index. The section shall be the sole recipient of arrest and fingerprint forms described in RCW 10.98.060, fingerprint forms described in RCW 43.43.760, and disposition reports for forwarding to the federal bureau of investigation as required for participation in the national crime information center interstate identification index. The section shall comply with national crime information center interstate identification index regulations to maintain availability of out-of-state criminal history information. [1984 c 17 § 7.] 10.98.080 10.98.080 State identification number, furnishing of. The section shall promptly furnish a state identification number to the originating agency and to the prosecuting attorney who received a copy of the arrest and fingerprint form. In the case of juvenile felony-like adjudications, the section shall furnish, upon request, the state identification number to the juvenile information section of the administrative office of the courts. [2005 c 282 § 23; 1985 c 201 § 3; 1984 c 17 § 8.] 10.98.110 cial information system or other secure method of electronic transfer of information between the court and the section, the prosecuting attorney shall attach a copy of the judgment and sentence form to the disposition form transmitted to the section. In the case of a lower court disposition, the district or municipal court administrator shall either promptly transmit the completed disposition form or, in a county where the judicial information system or other secure method of electronic transfer of information has been implemented between the court and the section, electronically provide the disposition information to the section. For all other dispositions the originating agency shall promptly transmit the completed disposition form to the section. [1998 c 197 § 1; 1985 c 201 § 4; 1984 c 17 § 9.] 10.98.100 10.98.100 Compliance audit. The section shall administer a compliance audit at least once annually for each prosecuting attorney, district and municipal court, and originating agency to ensure that all disposition reports have been received and added to the criminal offender record information described in *RCW 43.43.705. The section shall prepare listings of all arrests charged and listed in the criminal offender record information for which no disposition report has been received and which has been outstanding for more than nine months since the date of arrest. Each prosecuting attorney, district and municipal court, and originating agency shall be furnished a list of outstanding disposition reports. Cases pending prosecution shall be considered outstanding dispositions in the compliance audit. Within forty-five days, the prosecuting attorney, district and municipal court, and originating agency shall provide the section with a current disposition report for each outstanding disposition. The section shall assist prosecuting attorneys with the compliance audit by cross-checking outstanding cases with the administrative office of the courts and the department of corrections. The section may provide technical assistance to prosecuting attorneys, district or municipal courts, or originating agencies for their compliance audits. The results of compliance audits shall be published annually and distributed to legislative committees dealing with criminal justice issues, the office of financial management, and criminal justice agencies and associations. [2005 c 282 § 24; 1985 c 201 § 5; 1984 c 17 § 10.] *Reviser’s note: RCW 43.43.705 was amended by 2006 c 294 § 2, changing the definition of "criminal offender record information" to "criminal history record information." 10.98.090 10.98.090 Disposition forms—Coding. (1) In all cases where an arrest and fingerprint form is transmitted to the section, the originating agency shall code the form indicating which agency is initially responsible for reporting the disposition to the section. Coding shall include but not be limited to the prosecuting attorney, superior court, district court, municipal court, or the originating agency. (2) In the case of a superior court or felony disposition, the county clerk or prosecuting attorney shall promptly transmit the completed disposition information to the section. In a county where the judicial information system or other secure method of electronic transfer of information has been implemented between the court and the section, the county clerk shall electronically provide the disposition information. In the case of a felony conviction in a county without the judi(2006 Ed.) 10.98.110 10.98.110 Tracking felony cases. (1) The department shall maintain records to track felony cases for convicted felons sentenced either to a term of confinement exceeding one year or ordered under the supervision of the department and felony cases under the jurisdiction of the department pursuant to interstate compact agreements. (2) Tracking shall begin at the time the department receives a judgment and sentence form from a prosecuting attorney and shall include the collection and updating of felons’ criminal records from the time of sentencing through discharge. (3) The department of corrections shall collect information for tracking felons from its offices and from information provided by county clerks, the Washington state patrol *iden[Title 10 RCW—page 79] 10.98.130 Title 10 RCW: Criminal Procedure tification, child abuse, and criminal history section, the office of financial management, and any other public or private agency that provides services to help individuals complete their felony sentences. [1999 c 143 § 52; 1993 c 31 § 1; 1987 c 462 § 2; 1984 c 17 § 11.] *Reviser’s note: The "identification, child abuse, and criminal history section" was renamed the "identification and criminal history section" by 2006 c 294 § 1. Effective dates—1987 c 462: See note following RCW 13.04.116. 10.98.130 10.98.130 Local jail reports. Local jails shall report to the office of financial management and that office shall transmit to the department the information on all persons convicted of felonies or incarcerated for noncompliance with a felony sentence who are admitted or released from the jails and shall promptly respond to requests of the department for such data. Information transmitted shall include but not be limited to the state identification number, whether the reason for admission to jail was a felony conviction or noncompliance with a felony sentence, and the dates of the admission and release. The office of financial management may contract with a state or local governmental agency, or combination thereof, or a private organization for the information collection and transmittal under this section. [1988 c 152 § 1; 1987 c 462 § 3; 1984 c 17 § 13.] Effective dates—1987 c 462: See note following RCW 13.04.116. 10.98.140 10.98.140 Forecasting, felons, sentences. (1) The section, the department, and the office of financial management shall be the primary sources of information for criminal justice forecasting. The information maintained by these agencies shall be complete, accurate, and sufficiently timely to support state criminal justice forecasting. (2) The office of financial management shall be the official state agency for the sentenced felon jail forecast. This forecast shall provide at least a six-year projection and shall be published by December 1 of every even-numbered year beginning with 1986. The office of financial management shall seek advice regarding the assumptions in the forecast from criminal justice agencies and associations. (3) The sentencing guidelines commission shall keep records on all sentencings above or below the standard range defined by chapter 9.94A RCW. As a minimum, the records shall include the name of the offender, the crimes for which the offender was sentenced, the name and county of the sentencing judge, and the deviation from the standard range. Such records shall be made available to public officials upon request. [1987 c 462 § 4; 1985 c 201 § 6; 1984 c 17 § 14.] Effective dates—1987 c 462: See note following RCW 13.04.116. 10.98.150 10.98.150 Status reports on felons. The section and the department shall provide prompt responses to the requests of law enforcement agencies and jails regarding the status of suspected or convicted felons. Dissemination of individual identities, criminal histories, or the whereabouts of a suspected or convicted felon shall be in accordance with chapter 10.97 RCW, the Washington state criminal records privacy act. [1984 c 17 § 15.] [Title 10 RCW—page 80] 10.98.160 Procedures, development considerations— Washington integrated justice information board, review and recommendations. In the development and modification of the procedures, definitions, and reporting capabilities of the section, the department, the office of financial management, and the responsible agencies and persons shall consider the needs of other criminal justice agencies such as the administrative office of the courts, local law enforcement agencies, local jails, the sentencing guidelines commission, the indeterminate sentence review board, the clemency board, prosecuting attorneys, and affected state agencies such as the office of financial management and legislative committees dealing with criminal justice issues. The Washington integrated justice information board shall review and provide recommendations to state justice agencies and the courts for development and modification of the statewide justice information network. [2005 c 282 § 25; 2003 c 104 § 2; 1999 c 143 § 53; 1987 c 462 § 5; 1984 c 17 § 16.] 10.98.160 Effective dates—1987 c 462: See note following RCW 13.04.116. 10.98.200 Findings—Intent. (1) The legislature finds that each of the state’s justice agencies and the courts have developed independent information systems to address independent management and planning needs, that the state’s justice information system is fragmented, and that access to complete, accurate, and timely justice information is difficult and inefficient. (2) The legislature declares that the purpose of chapter 104, Laws of 2003 is to develop and maintain, in a cost-effective manner, a statewide network of criminal justice information that enables sharing and integrated delivery of justice information maintained in the state’s independent information systems and that will: (a) Maximize standardization of data and communications technology among law enforcement agencies, jails, prosecuting attorneys, the courts, corrections, and licensing; (b) Reduce redundant data collection and input efforts; (c) Reduce or eliminate paper-based information exchanges; (d) Improve work flow within the criminal justice system; (e) Provide complete, accurate, and timely information to criminal justice agencies and courts in a single computer session; and (f) Maintain security and privacy rights respecting criminal justice information. (3) Statewide coordination of criminal justice information will improve: (a) The safety of the public and the safety of law enforcement officers and other public servants, by making more complete, accurate, and timely information concerning offenders available to all criminal justice agencies and courts; (b) Decision making, by increasing the availability of statistical measures for review, evaluation, and promulgation of public policy; and (c) Access to complete, accurate, and timely information by the public, to the extent permitted pursuant to chapters 10.97 and 42.56 RCW. (4) The legislature encourages state and local criminal justice agencies and courts to collaborate in the development of justice information systems, as criminal justice agencies 10.98.200 (2006 Ed.) Criminal Justice Information Act and courts collect the most complete, accurate, and timely information regarding offenders. (5) The legislature finds that the implementation, operation, and continuing enhancement of a statewide justice information network that enables sharing and integrated delivery of information maintained in the state’s independent information systems is critical to the complete, accurate, and timely performance of criminal background checks and to the effective communications between and among law enforcement, the courts, executive agencies, and political subdivisions of the state. The legislature further finds and declares that it is in the best interests of the citizens of the state and for the enhancement of public safety that the Washington integrated justice information board be created as soon as possible. (6) The legislature finds that the intent, purpose, and goals of chapter 104, Laws of 2003 will be implemented most effectively by a board having the power, authority, and responsibility to develop, maintain, and enhance a statewide justice information network that enables sharing and integrated delivery of justice information maintained in the state’s independent information systems. [2005 c 274 § 208; 2003 c 104 § 1.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. 10.98.210 10.98.210 Washington integrated justice information board—Members. (1) There is created the Washington integrated justice information board. The board shall be composed of the following members: (a) A representative appointed by the governor; (b) The attorney general; (c) The chief of the state patrol; (d) The secretary of the department of corrections; (e) The director of the department of licensing; (f) The administrator for the courts; (g) The director of the office of financial management; (h) The director of the department of information services; (i) The assistant secretary of the department of social and health services responsible for juvenile rehabilitation programs; (j) A sheriff appointed by the Washington association of sheriffs and police chiefs; (k) A police chief appointed by the Washington association of sheriffs and police chiefs; (l) A county legislative authority member appointed by the Washington state association of counties; (m) An elected county clerk appointed by the Washington association of county clerks; (n) A representative appointed by the Washington association of city and county information systems; (o) Two representatives appointed by the judicial information system committee; (p) A representative appointed by the association of Washington cities; and (q) An elected prosecutor appointed by the Washington association of prosecuting attorneys. These members shall constitute the membership of the board with full voting rights and shall serve at the pleasure of the appointing authority. Each member may, in writing, appoint a designee to serve in the member’s absence. Any (2006 Ed.) 10.98.230 member of the board shall immediately cease to be a member if he or she ceases to hold the particular office or employment that was the basis of the appointment. Vacancies shall be filled in the same manner that the original appointments were made to the board. (2) The board may appoint additional justice information stakeholders as nonvoting members to the board. (3) In making the appointments, the appointing authorities shall endeavor to assure that there is committed board membership having expertise relating to state and local criminal justice business practices and to information sharing and integration technology. [2003 c 104 § 3.] 10.98.220 10.98.220 Washington integrated justice information board—Meetings. The board shall elect a chair and vicechair from among its voting members. Nine voting members of the board shall constitute a quorum. Meetings may be called by the chair or upon the written request of three members of the board. Meeting participation may be by means of conference call or any other communication equipment that allows all persons participating in the meeting to speak and hear all participants. [2003 c 104 § 4.] 10.98.230 10.98.230 Washington integrated justice information board—Powers and duties. (1) The board shall have the following powers and duties related to integration of justice information: (a) Meet at such times and places as may be designated by the chair or by three voting members of the board; (b) Adopt its own bylaws, and such other rules governing the board and the conduct of its meetings as the board may deem reasonable or convenient; (c) Coordinate and facilitate the governance, implementation, operation, maintenance, and enhancement of sharing and integrated delivery of complete, accurate, and timely justice information; (d) Increase the use of automated electronic data transfer among state justice agencies, local justice agencies, and courts; (e) Establish and implement uniform data standards and protocols for data transfer and sharing, interface applications, and connectivity standards; (f) Provide state agency and court justice information to criminal justice agencies and courts through connections and applications that enable single session access from multiple platforms; (g) Pursue, develop, and coordinate grants and other funding opportunities for state and local justice information projects that will expand or enhance the sharing and integrated delivery of statewide justice information; (h) Assess state and local agencies’ projects and plans for sharing and delivery of integrated justice information, as may be requested by the agencies, the director of the office of financial management, the supreme court, or the legislature; (i) Assist the office of financial management with budgetary and policy review of state agency plans affecting the justice information network; (j) Recommend to the governor, the supreme court, and the legislature those legislative changes and appropriations needed to implement, maintain, and enhance a statewide jus[Title 10 RCW—page 81] 10.98.240 Title 10 RCW: Criminal Procedure tice information network and to assure the availability of complete, accurate, and timely justice information; (k) Encourage coordination, consistency, and compatibility among courts, state agency, and local agency justice information systems and projects; and (l) Adopt strategic and tactical planning goals and objectives that implement, maintain, and enhance sharing and integrated delivery of justice information for the state. (2)(a) Nothing in this section supersedes the authority of the information services board under chapter 43.105 RCW. (b) Nothing in this section supersedes the authority of courts, state agencies, and local agencies to control and maintain access to information within their independent systems. [2003 c 104 § 5.] ment of crimes occurring between cohabitants and of the same crimes occurring between strangers. Only recently has public perception of the serious consequences of domestic violence to society and to the victims led to the recognition of the necessity for early intervention by law enforcement agencies. It is the intent of the legislature that the official response to cases of domestic violence shall stress the enforcement of the laws to protect the victim and shall communicate the attitude that violent behavior is not excused or tolerated. Furthermore, it is the intent of the legislature that criminal laws be enforced without regard to whether the persons involved are or were married, cohabiting, or involved in a relationship. [1979 ex.s. c 105 § 1.] 10.99.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Agency" means a general authority Washington law enforcement agency as defined in RCW 10.93.020. (2) "Association" means the Washington association of sheriffs and police chiefs. (3) "Family or household members" means spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren. (4) "Dating relationship" has the same meaning as in RCW 26.50.010. (5) "Domestic violence" includes but is not limited to any of the following crimes when committed by one family or household member against another: (a) Assault in the first degree (RCW 9A.36.011); (b) Assault in the second degree (RCW 9A.36.021); (c) Assault in the third degree (RCW 9A.36.031); (d) Assault in the fourth degree (RCW 9A.36.041); (e) Drive-by shooting (RCW 9A.36.045); (f) Reckless endangerment (RCW 9A.36.050); (g) Coercion (RCW 9A.36.070); (h) Burglary in the first degree (RCW 9A.52.020); (i) Burglary in the second degree (RCW 9A.52.030); (j) Criminal trespass in the first degree (RCW 9A.52.070); (k) Criminal trespass in the second degree (RCW 9A.52.080); (l) Malicious mischief in the first degree (RCW 9A.48.070); (m) Malicious mischief in the second degree (RCW 9A.48.080); (n) Malicious mischief in the third degree (RCW 9A.48.090); (o) Kidnapping in the first degree (RCW 9A.40.020); (p) Kidnapping in the second degree (RCW 9A.40.030); (q) Unlawful imprisonment (RCW 9A.40.040); 10.99.020 10.98.240 Washington integrated justice information board—Report. The board shall file a report with the governor, the supreme court, and the chairs and ranking minority members of the senate and house committees with jurisdiction over criminal justice funding and policy by September 1, 2004, and not less than every two years thereafter. The report shall include specific goals for improving criminal justice information systems integration, a timeline and identifiable benchmarks for achieving those goals, and recommendations concerning legislative changes and appropriations needed to implement, operate, and enhance a statewide justice information network to assure the availability of complete, accurate, and timely justice information. [2003 c 104 § 6.] 10.98.240 Chapter 10.99 RCW DOMESTIC VIOLENCE—OFFICIAL RESPONSE Chapter 10.99 Sections 10.99.010 10.99.020 10.99.030 10.99.040 10.99.045 10.99.050 10.99.055 10.99.060 10.99.070 10.99.080 10.99.090 10.99.900 Purpose—Intent. Definitions. Law enforcement officers—Training, powers, duties— Domestic violence reports. Duties of court—No-contact order. Appearances by defendant—No-contact order. Victim contact—Restriction, prohibition—Violation, penalties—Written order—Procedures—Notice of change. Enforcement of orders. Prosecutor’s notice to victim—Description of available procedures. Liability of peace officers. Penalty assessment. Policy adoption and implementation. Severability—1979 ex.s. c 105. Arrest without warrant in domestic violence cases: RCW 10.31.100(2). Domestic violence prevention: Chapter 26.50 RCW. Rape crisis centers: Chapters 70.123 and 70.125 RCW. Shelters for victims of domestic violence: Chapter 70.123 RCW. Victims, survivors, and witnesses of crimes: Chapter 7.69 RCW. 10.99.010 Purpose—Intent. The purpose of this chapter is to recognize the importance of domestic violence as a serious crime against society and to assure the victim of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide. The legislature finds that the existing criminal statutes are adequate to provide protection for victims of domestic violence. However, previous societal attitudes have been reflected in policies and practices of law enforcement agencies and prosecutors which have resulted in differing treat10.99.010 [Title 10 RCW—page 82] (2006 Ed.) Domestic Violence—Official Response (r) Violation of the provisions of a restraining order, nocontact order, or protection order restraining or enjoining the person or restraining the person from going onto the grounds of or entering a residence, workplace, school, or day care, or prohibiting the person from knowingly coming within, or knowingly remaining within, a specified distance of a location (RCW 10.99.040, 10.99.050, 26.09.300, 26.10.220, 26.26.138, 26.44.063, 26.44.150, 26.50.060, 26.50.070, 26.50.130, 26.52.070, or 74.34.145); (s) Rape in the first degree (RCW 9A.44.040); (t) Rape in the second degree (RCW 9A.44.050); (u) Residential burglary (RCW 9A.52.025); (v) Stalking (RCW 9A.46.110); and (w) Interference with the reporting of domestic violence (RCW 9A.36.150). (6) "Employee" means any person currently employed with an agency. (7) "Sworn employee" means a general authority Washington peace officer as defined in RCW 10.93.020, any person appointed under RCW 35.21.333, and any person appointed or elected to carry out the duties of the sheriff under chapter 36.28 RCW. (8) "Victim" means a family or household member who has been subjected to domestic violence. [2004 c 18 § 2; 2000 c 119 § 5; 1997 c 338 § 53; 1996 c 248 § 5; 1995 c 246 § 21; 1994 c 121 § 4; 1991 c 301 § 3; 1986 c 257 § 8; 1984 c 263 § 20; 1979 ex.s. c 105 § 2.] Findings—Intent—2004 c 18: "The legislature reaffirms its determination to reduce the incident rate of domestic violence. The legislature finds it is appropriate to help reduce the incident rate of domestic violence by addressing the need for improved coordination and accountability among general authority Washington law enforcement agencies and general authority Washington peace officers when reports of domestic violence are made and the alleged perpetrator is a general authority Washington peace officer. The legislature finds that coordination and accountability will be improved if general authority Washington law enforcement agencies adopt policies that meet statewide minimum requirements for training, reporting, interagency cooperation, investigation, and collaboration with groups serving victims of domestic violence. The legislature intends to provide maximum flexibility to general authority Washington law enforcement agencies, consistent with the purposes of this act, in their efforts to improve coordination and accountability when incidents of domestic violence committed or allegedly committed by general authority Washington peace officers are reported." [2004 c 18 § 1.] Application—2000 c 119: See note following RCW 26.50.021. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Severability—1995 c 246: See note following RCW 26.50.010. Finding—1991 c 301: "The legislature finds that: The collective costs to the community for domestic violence include the systematic destruction of individuals and their families, lost lives, lost productivity, and increased health care, criminal justice, and social service costs. Children growing up in violent homes are deeply affected by the violence as it happens and could be the next generation of batterers and victims. Many communities have made headway in addressing the effects of domestic violence and have devoted energy and resources to stopping this violence. However, the process for breaking the cycle of abuse is lengthy. No single system intervention is enough in itself. An integrated system has not been adequately funded and structured to assure access to a wide range of services, including those of the law/safety/justice system, human service system, and health care system. These services need to be coordinated and multidisciplinary in approach and address the needs of victims, batterers, and children from violent homes. Given the lethal nature of domestic violence and its effect on all within (2006 Ed.) 10.99.030 its range, the community has a vested interest in the methods used to stop and prevent future violence. Clear standards of quality are needed so that perpetrator treatment programs receiving public funds or court-ordered referrals can be required to comply with these standards. While incidents of domestic violence are not caused by perpetrator’s use of alcohol and illegal substances, substance abuse may be a contributing factor to domestic violence and the injuries and deaths that result from it. There is a need for consistent training of professionals who deal frequently with domestic violence or are in a position to identify domestic violence and provide support and information. Much has been learned about effective interventions in domestic violence situations; however, much is not yet known and further study is required to know how to best stop this violence." [1991 c 301 § 1.] Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 3-10: See note following RCW 9A.04.110. Effective date—Severability—1984 c 263: See RCW 26.50.901 and 26.50.902. Domestic violence defined under the Domestic Violence Prevention Act: RCW 26.50.010. 10.99.030 10.99.030 Law enforcement officers—Training, powers, duties—Domestic violence reports. (1) All training relating to the handling of domestic violence complaints by law enforcement officers shall stress enforcement of criminal laws in domestic situations, availability of community resources, and protection of the victim. Law enforcement agencies and community organizations with expertise in the issue of domestic violence shall cooperate in all aspects of such training. (2) The criminal justice training commission shall implement by January 1, 1997, a course of instruction for the training of law enforcement officers in Washington in the handling of domestic violence complaints. The basic law enforcement curriculum of the criminal justice training commission shall include at least twenty hours of basic training instruction on the law enforcement response to domestic violence. The course of instruction, the learning and performance objectives, and the standards for the training shall be developed by the commission and focus on enforcing the criminal laws, safety of the victim, and holding the perpetrator accountable for the violence. The curriculum shall include training on the extent and prevalence of domestic violence, the importance of criminal justice intervention, techniques for responding to incidents that minimize the likelihood of officer injury and that promote victim safety, investigation and interviewing skills, evidence gathering and report writing, assistance to and services for victims and children, verification and enforcement of court orders, liability, and any additional provisions that are necessary to carry out the intention of this subsection. (3) The criminal justice training commission shall develop and update annually an in-service training program to familiarize law enforcement officers with the domestic violence laws. The program shall include techniques for handling incidents of domestic violence that minimize the likelihood of injury to the officer and that promote the safety of all parties. The commission shall make the training program available to all law enforcement agencies in the state. (4) Development of the training in subsections (2) and (3) of this section shall be conducted in conjunction with agencies having a primary responsibility for serving victims of domestic violence with emergency shelter and other ser[Title 10 RCW—page 83] 10.99.030 Title 10 RCW: Criminal Procedure vices, and representatives to the statewide organization providing training and education to these organizations and to the general public. (5) The primary duty of peace officers, when responding to a domestic violence situation, is to enforce the laws allegedly violated and to protect the complaining party. (6)(a) When a peace officer responds to a domestic violence call and has probable cause to believe that a crime has been committed, the peace officer shall exercise arrest powers with reference to the criteria in RCW 10.31.100. The officer shall notify the victim of the victim’s right to initiate a criminal proceeding in all cases where the officer has not exercised arrest powers or decided to initiate criminal proceedings by citation or otherwise. The parties in such cases shall also be advised of the importance of preserving evidence. (b) A peace officer responding to a domestic violence call shall take a complete offense report including the officer’s disposition of the case. (7) When a peace officer responds to a domestic violence call, the officer shall advise victims of all reasonable means to prevent further abuse, including advising each person of the availability of a shelter or other services in the community, and giving each person immediate notice of the legal rights and remedies available. The notice shall include handing each person a copy of the following statement: "IF YOU ARE THE VICTIM OF DOMESTIC VIOLENCE, you can ask the city or county prosecuting attorney to file a criminal complaint. You also have the right to file a petition in superior, district, or municipal court requesting an order for protection from domestic abuse which could include any of the following: (a) An order restraining your abuser from further acts of abuse; (b) an order directing your abuser to leave your household; (c) an order preventing your abuser from entering your residence, school, business, or place of employment; (d) an order awarding you or the other parent custody of or visitation with your minor child or children; and (e) an order restraining your abuser from molesting or interfering with minor children in your custody. The forms you need to obtain a protection order are available in any municipal, district, or superior court. Information about shelters and alternatives to domestic violence is available from a statewide twenty-four-hour toll-free hot line at (include appropriate phone number). The battered women’s shelter and other resources in your area are . . . . . (include local information)" (8) The peace officer may offer, arrange, or facilitate transportation for the victim to a hospital for treatment of injuries or to a place of safety or shelter. (9) The law enforcement agency shall forward the offense report to the appropriate prosecutor within ten days of making such report if there is probable cause to believe that an offense has been committed, unless the case is under active investigation. [Title 10 RCW—page 84] (10) Each law enforcement agency shall make as soon as practicable a written record and shall maintain records of all incidents of domestic violence reported to it. (11) Records kept pursuant to subsections (6) and (10) of this section shall be made identifiable by means of a departmental code for domestic violence. (12) Commencing January 1, 1994, records of incidents of domestic violence shall be submitted, in accordance with procedures described in this subsection, to the Washington association of sheriffs and police chiefs by all law enforcement agencies. The Washington criminal justice training commission shall amend its contract for collection of statewide crime data with the Washington association of sheriffs and police chiefs: (a) To include a table, in the annual report of crime in Washington produced by the Washington association of sheriffs and police chiefs pursuant to the contract, showing the total number of actual offenses and the number and percent of the offenses that are domestic violence incidents for the following crimes: (i) Criminal homicide, with subtotals for murder and nonnegligent homicide and manslaughter by negligence; (ii) forcible rape, with subtotals for rape by force and attempted forcible rape; (iii) robbery, with subtotals for firearm, knife or cutting instrument, or other dangerous weapon, and strongarm robbery; (iv) assault, with subtotals for firearm, knife or cutting instrument, other dangerous weapon, hands, feet, aggravated, and other nonaggravated assaults; (v) burglary, with subtotals for forcible entry, nonforcible unlawful entry, and attempted forcible entry; (vi) larceny theft, except motor vehicle theft; (vii) motor vehicle theft, with subtotals for autos, trucks and buses, and other vehicles; (viii) arson; and (ix) violations of the provisions of a protection order or no-contact order restraining the person from going onto the grounds of or entering a residence, workplace, school, or day care, provided that specific appropriations are subsequently made for the collection and compilation of data regarding violations of protection orders or no-contact orders; (b) To require that the table shall continue to be prepared and contained in the annual report of crime in Washington until that time as comparable or more detailed information about domestic violence incidents is available through the Washington state incident based reporting system and the information is prepared and contained in the annual report of crime in Washington; and (c) To require that, in consultation with interested persons, the Washington association of sheriffs and police chiefs prepare and disseminate procedures to all law enforcement agencies in the state as to how the agencies shall code and report domestic violence incidents to the Washington association of sheriffs and police chiefs. [1996 c 248 § 6; 1995 c 246 § 22; 1993 c 350 § 3; 1984 c 263 § 21; 1981 c 145 § 5; 1979 ex.s. c 105 § 3.] Severability—1995 c 246: See note following RCW 26.50.010. Findings—Severability—1993 c 350: See notes following RCW 26.50.035. Effective date—Severability—1984 c 263: See RCW 26.50.901 and 26.50.902. (2006 Ed.) Domestic Violence—Official Response 10.99.040 10.99.040 Duties of court—No-contact order. (1) Because of the serious nature of domestic violence, the court in domestic violence actions: (a) Shall not dismiss any charge or delay disposition because of concurrent dissolution or other civil proceedings; (b) Shall not require proof that either party is seeking a dissolution of marriage prior to instigation of criminal proceedings; (c) Shall waive any requirement that the victim’s location be disclosed to any person, other than the attorney of a criminal defendant, upon a showing that there is a possibility of further violence: PROVIDED, That the court may order a criminal defense attorney not to disclose to his or her client the victim’s location; and (d) Shall identify by any reasonable means on docket sheets those criminal actions arising from acts of domestic violence. (2)(a) Because of the likelihood of repeated violence directed at those who have been victims of domestic violence in the past, when any person charged with or arrested for a crime involving domestic violence is released from custody before arraignment or trial on bail or personal recognizance, the court authorizing the release may prohibit that person from having any contact with the victim. The jurisdiction authorizing the release shall determine whether that person should be prohibited from having any contact with the victim. If there is no outstanding restraining or protective order prohibiting that person from having contact with the victim, the court authorizing release may issue, by telephone, a no-contact order prohibiting the person charged or arrested from having contact with the victim or from knowingly coming within, or knowingly remaining within, a specified distance of a location. (b) In issuing the order, the court shall consider the provisions of RCW 9.41.800. (c) The no-contact order shall also be issued in writing as soon as possible. (3) At the time of arraignment the court shall determine whether a no-contact order shall be issued or extended. The no-contact order shall terminate if the defendant is acquitted or the charges are dismissed. If a no-contact order is issued or extended, the court may also include in the conditions of release a requirement that the defendant submit to electronic monitoring. If electronic monitoring is ordered, the court shall specify who shall provide the monitoring services, and the terms under which the monitoring shall be performed. Upon conviction, the court may require as a condition of the sentence that the defendant reimburse the providing agency for the costs of the electronic monitoring. (4)(a) Willful violation of a court order issued under subsection (2) or (3) of this section is punishable under RCW 26.50.110. (b) The written order releasing the person charged or arrested shall contain the court’s directives and shall bear the legend: "Violation of this order is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest; any assault, drive-by shooting, or reckless endangerment that is a violation of this order is a felony. You can be arrested even if any person protected by the order invites or allows you to violate the order’s prohibitions. You have the sole responsi(2006 Ed.) 10.99.045 bility to avoid or refrain from violating the order’s provisions. Only the court can change the order." (c) A certified copy of the order shall be provided to the victim. (5) If a no-contact order has been issued prior to charging, that order shall expire at arraignment or within seventytwo hours if charges are not filed. Such orders need not be entered into the computer-based criminal intelligence information system in this state which is used by law enforcement agencies to list outstanding warrants. (6) Whenever a no-contact order is issued, modified, or terminated under subsection (2) or (3) of this section, the clerk of the court shall forward a copy of the order on or before the next judicial day to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order the law enforcement agency shall enter the order for one year or until the expiration date specified on the order into any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. Entry into the computerbased criminal intelligence information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any jurisdiction in the state. Upon receipt of notice that an order has been terminated under subsection (3) of this section, the law enforcement agency shall remove the order from the computer-based criminal intelligence information system. [2000 c 119 § 18; 1997 c 338 § 54; 1996 c 248 § 7; 1995 c 246 § 23; 1994 sp.s. c 7 § 449; 1992 c 86 § 2; 1991 c 301 § 4; 1985 c 303 § 10; 1984 c 263 § 22; 1983 c 232 § 7; 1981 c 145 § 6; 1979 ex.s. c 105 § 4.] Application—2000 c 119: See note following RCW 26.50.021. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Severability—1995 c 246: See note following RCW 26.50.010. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Finding—1991 c 301: See note following RCW 10.99.020. Effective date—Severability—1984 c 263: See RCW 26.50.901 and 26.50.902. Severability—1983 c 232: See note following RCW 9.41.010. Child abuse, temporary restraining order: RCW 26.44.063. Orders for protection in cases of domestic violence: RCW 26.50.030, 26.50.070. Temporary restraining order: RCW 26.09.060. 10.99.045 10.99.045 Appearances by defendant—No-contact order. (1) A defendant arrested for an offense involving domestic violence as defined by RCW 10.99.020 shall be required to appear in person before a magistrate within one judicial day after the arrest. (2) A defendant who is charged by citation, complaint, or information with an offense involving domestic violence as defined by RCW 10.99.020 and not arrested shall appear in court for arraignment in person as soon as practicable, but in no event later than fourteen days after the next day on which [Title 10 RCW—page 85] 10.99.050 Title 10 RCW: Criminal Procedure court is in session following the issuance of the citation or the filing of the complaint or information. (3) At the time of the appearances provided in subsection (1) or (2) of this section, the court shall determine the necessity of imposing a no-contact order or other conditions of pretrial release according to the procedures established by court rule for a preliminary appearance or an arraignment. The court may include in the order any conditions authorized under RCW 9.41.800 and 10.99.040. (4) Appearances required pursuant to this section are mandatory and cannot be waived. (5) The no-contact order shall be issued and entered with the appropriate law enforcement agency pursuant to the procedures outlined in *RCW 10.99.040 (2) and (4). [2000 c 119 § 19; 1998 c 55 § 2; 1994 sp.s. c 7 § 450; 1984 c 263 § 23; 1983 c 232 § 8; 1981 c 145 § 7.] *Reviser’s note: RCW 10.99.040 was amended by 1985 c 303 § 10 changing subsection (4) to subsection (5); and was subsequently amended by 2000 c 119 § 18 changing subsection (5) to subsection (6). Application—2000 c 119: See note following RCW 26.50.021. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Effective date—Severability—1984 c 263: See RCW 26.50.901 and 26.50.902. Severability—1983 c 232: See note following RCW 9.41.010. 10.99.050 10.99.050 Victim contact—Restriction, prohibition—Violation, penalties—Written order—Procedures—Notice of change. (1) When a defendant is found guilty of a crime and a condition of the sentence restricts the defendant’s ability to have contact with the victim, such condition shall be recorded and a written certified copy of that order shall be provided to the victim. (2)(a) Willful violation of a court order issued under this section is punishable under RCW 26.50.110. (b) The written order shall contain the court’s directives and shall bear the legend: Violation of this order is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest; any assault, drive-by shooting, or reckless endangerment that is a violation of this order is a felony. (3) Whenever an order prohibiting contact is issued pursuant to this section, the clerk of the court shall forward a copy of the order on or before the next judicial day to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order the law enforcement agency shall enter the order for one year or until the expiration date specified on the order into any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. Entry into the computer-based criminal intelligence information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any jurisdiction in the state. (4) If an order prohibiting contact issued pursuant to this section is modified or terminated, the clerk of the court shall notify the law enforcement agency specified in the order on or before the next judicial day. Upon receipt of notice that an order has been terminated, the law enforcement agency shall remove the order from any computer-based criminal intelli[Title 10 RCW—page 86] gence system. [2000 c 119 § 20; 1997 c 338 § 55; 1996 c 248 § 8; 1991 c 301 § 5; 1985 c 303 § 12; 1984 c 263 § 24; 1979 ex.s. c 105 § 5.] Application—2000 c 119: See note following RCW 26.50.021. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—1991 c 301: See note following RCW 10.99.020. Effective date—Severability—1984 c 263: See RCW 26.50.901 and 26.50.902. 10.99.055 10.99.055 Enforcement of orders. A peace officer in this state shall enforce an order issued by any court in this state restricting a defendant’s ability to have contact with a victim by arresting and taking the defendant into custody, pending release on bail, personal recognizance, or court order, when the officer has probable cause to believe that the defendant has violated the terms of that order. [1984 c 263 § 25; 1983 c 232 § 9; 1981 c 145 § 8.] Effective date—Severability—1984 c 263: See RCW 26.50.901 and 26.50.902. Severability—1983 c 232: See note following RCW 9.41.010. 10.99.060 10.99.060 Prosecutor’s notice to victim—Description of available procedures. The public attorney responsible for making the decision whether or not to prosecute shall advise the victim of that decision within five days, and, prior to making that decision shall advise the victim, upon the victim’s request, of the status of the case. Notification to the victim that charges will not be filed shall include a description of the procedures available to the victim in that jurisdiction to initiate a criminal proceeding. [1979 ex.s. c 105 § 6.] 10.99.070 10.99.070 Liability of peace officers. A peace officer shall not be held liable in any civil action for an arrest based on probable cause, enforcement in good faith of a court order, or any other action or omission in good faith under this chapter arising from an alleged incident of domestic violence brought by any party to the incident. [1979 ex.s. c 105 § 7.] 10.99.080 10.99.080 Penalty assessment. (1) All superior courts, and courts organized under Title 3 or 35 RCW, may impose a penalty assessment not to exceed one hundred dollars on any person convicted of a crime involving domestic violence. The assessment shall be in addition to, and shall not supersede, any other penalty, restitution, fines, or costs provided by law. (2) Revenue from the assessment shall be used solely for the purposes of establishing and funding domestic violence advocacy and domestic violence prevention and prosecution programs in the city or county of the court imposing the assessment. Revenue from the assessment shall not be used for indigent criminal defense. If the city or county does not have domestic violence advocacy or domestic violence prevention and prosecution programs, cities and counties may use the revenue collected from the assessment to contract with recognized community-based domestic violence program providers. (2006 Ed.) Domestic Violence—Official Response (3) The assessment imposed under this section shall not be subject to any state or local remittance requirements under chapter 3.46, 3.50, 3.62, 7.68, 10.82, or 35.20 RCW. (4) For the purposes of this section, "convicted" includes a plea of guilty, a finding of guilt regardless of whether the imposition of the sentence is deferred or any part of the penalty is suspended, or the levying of a fine. For the purposes of this section, "domestic violence" has the same meaning as that term is defined under RCW 10.99.020 and includes violations of equivalent local ordinances. (5) When determining whether to impose a penalty assessment under this section, judges are encouraged to solicit input from the victim or representatives for the victim in assessing the ability of the convicted offender to pay the penalty, including information regarding current financial obligations, family circumstances, and ongoing restitution. [2004 c 15 § 2.] Intent—2004 c 15: "The legislature recognizes that domestic violence is a growing and more visible public safety problem in Washington state than ever before, and that domestic violence-related incidents have a significant bearing on overall law enforcement and court caseloads. The legislature further recognizes the growing costs associated with domestic violence prevention and advocacy programs established by local governments and by community-based organizations. It is the legislature’s intent to establish a penalty in law that will hold convicted domestic violence offenders accountable while requiring them to pay penalties to offset the costs of domestic violence advocacy and prevention programs. It is the legislature’s intent that the penalties imposed against convicted domestic violence offenders under section 2 of this act be used for established domestic violence prevention and prosecution programs. It is the legislature’s intent that the revenue from the penalty assessment shall be in addition to existing sources of funding to enhance or help prevent the reduction and elimination of domestic violence prevention and prosecution programs." [2004 c 15 § 1.] 10.99.090 10.99.090 Policy adoption and implementation. (1) By December 1, 2004, the association shall develop a written model policy on domestic violence committed or allegedly committed by sworn employees of agencies. In developing the policy, the association shall convene a work group consisting of representatives from the following entities and professions: (a) Statewide organizations representing state and local enforcement officers; (b) A statewide organization providing training and education for agencies having the primary responsibility of serving victims of domestic violence with emergency shelter and other services; and (c) Any other organization or profession the association determines to be appropriate. (2) Members of the work group shall serve without compensation. (3) The model policy shall provide due process for employees and, at a minimum, meet the following standards: (a) Provide prehire screening procedures reasonably calculated to disclose whether an applicant for a sworn employee position: (i) Has committed or, based on credible sources, has been accused of committing an act of domestic violence; (ii) Is currently being investigated for an allegation of child abuse or neglect or has previously been investigated for founded allegations of child abuse or neglect; or (iii) Is currently or has previously been subject to any order under RCW 26.44.063, this chapter, chapter 10.14 or (2006 Ed.) 10.99.090 26.50 RCW, or any equivalent order issued by another state or tribal court; (b) Provide for the mandatory, immediate response to acts or allegations of domestic violence committed or allegedly committed by a sworn employee of an agency; (c) Provide to a sworn employee, upon the request of the sworn employee or when the sworn employee has been alleged to have committed an act of domestic violence, information on programs under RCW 26.50.150; (d) Provide for the mandatory, immediate reporting by employees when an employee becomes aware of an allegation of domestic violence committed or allegedly committed by a sworn employee of the agency employing the sworn employee; (e) Provide procedures to address reporting by an employee who is the victim of domestic violence committed or allegedly committed by a sworn employee of an agency; (f) Provide for the mandatory, immediate self-reporting by a sworn employee to his or her employing agency when an agency in any jurisdiction has responded to a domestic violence call in which the sworn employee committed or allegedly committed an act of domestic violence; (g) Provide for the mandatory, immediate self-reporting by a sworn employee to his or her employing agency if the employee is currently being investigated for an allegation of child abuse or neglect or has previously been investigated for founded allegations of child abuse or neglect, or is currently or has previously been subject to any order under RCW 26.44.063, this chapter, chapter 10.14 or 26.50 RCW, or any equivalent order issued by another state or tribal court; (h) Provide for the performance of prompt separate and impartial administrative and criminal investigations of acts or allegations of domestic violence committed or allegedly committed by a sworn employee of an agency; (i) Provide for appropriate action to be taken during an administrative or criminal investigation of acts or allegations of domestic violence committed or allegedly committed by a sworn employee of an agency. The policy shall provide procedures to address, in a manner consistent with applicable law and the agency’s ability to maintain public safety within its jurisdiction, whether to relieve the sworn employee of agency-issued weapons and other agency-issued property and whether to suspend the sworn employee’s power of arrest or other police powers pending resolution of any investigation; (j) Provide for prompt and appropriate discipline or sanctions when, after an agency investigation, it is determined that a sworn employee has committed an act of domestic violence; (k) Provide that, when there has been an allegation of domestic violence committed or allegedly committed by a sworn employee, the agency immediately make available to the alleged victim the following information: (i) The agency’s written policy on domestic violence committed or allegedly committed by sworn employees; (ii) Information, including but not limited to contact information, about public and private nonprofit domestic violence advocates and services; and (iii) Information regarding relevant confidentiality policies related to the victim’s information; [Title 10 RCW—page 87] 10.99.900 Title 10 RCW: Criminal Procedure (l) Provide procedures for the timely response, consistent with chapters 42.56 and 10.97 RCW, to an alleged victim’s inquiries into the status of the administrative investigation and the procedures the agency will follow in an investigation of domestic violence committed or allegedly committed by a sworn employee; (m) Provide procedures requiring an agency to immediately notify the employing agency of a sworn employee when the notifying agency becomes aware of acts or allegations of domestic violence committed or allegedly committed by the sworn employee within the jurisdiction of the notifying agency; and (n) Provide procedures for agencies to access and share domestic violence training within their jurisdiction and with other jurisdictions. (4) By June 1, 2005, every agency shall adopt and implement a written policy on domestic violence committed or allegedly committed by sworn employees of the agency that meet the minimum standards specified in this section. In lieu of developing its own policy, the agency may adopt the model policy developed by the association under this section. In developing its own policy, or before adopting the model policy, the agency shall consult public and private nonprofit domestic violence advocates and any other organizations and professions the agency finds appropriate. (5)(a) Except as provided in this section, not later than June 30, 2006, every sworn employee of an agency shall be trained by the agency on the agency’s policy required under this section. (b) Sworn employees hired by an agency on or after March 1, 2006, shall, within six months of beginning employment, be trained by the agency on the agency’s policy required under this section. (6)(a) By June 1, 2005, every agency shall provide a copy of its policy developed under this section to the association and shall provide a statement notifying the association of whether the agency has complied with the training required under this section. The copy and statement shall be provided in electronic format unless the agency is unable to do so. The agency shall provide the association with any revisions to the policy upon adoption. (b) The association shall maintain a copy of each agency’s policy and shall provide to the governor and legislature not later than January 1, 2006, a list of those agencies that have not developed and submitted policies and those agencies that have not stated their compliance with the training required under this section. (c) The association shall, upon request and within its resources, provide technical assistance to agencies in developing their policies. [2005 c 274 § 209; 2004 c 18 § 3.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Findings—Intent—2004 c 18: See note following RCW 10.99.020. 10.99.900 10.99.900 Severability—1979 ex.s. c 105. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1979 ex.s. c 105 § 9.] [Title 10 RCW—page 88] Chapter 10.101 Chapter 10.101 RCW INDIGENT DEFENSE SERVICES Sections 10.101.005 10.101.010 10.101.020 10.101.030 10.101.040 10.101.050 10.101.060 10.101.070 10.101.080 Legislative finding. Definitions. Determination of indigency—Provisional appointment— Promissory note. Standards. Selection of defense attorneys. Appropriated funds—Application, reports. Appropriated funds—Use requirements. County moneys. City moneys. 10.101.005 10.101.005 Legislative finding. The legislature finds that effective legal representation must be provided for indigent persons and persons who are indigent and able to contribute, consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where the right to counsel attaches. [2005 c 157 § 1; 1989 c 409 § 1.] 10.101.010 10.101.010 Definitions. The following definitions shall be applied in connection with this chapter: (1) "Indigent" means a person who, at any stage of a court proceeding, is: (a) Receiving one of the following types of public assistance: Temporary assistance for needy families, general assistance, poverty-related veterans’ benefits, food stamps or food stamp benefits transferred electronically, refugee resettlement benefits, medicaid, or supplemental security income; or (b) Involuntarily committed to a public mental health facility; or (c) Receiving an annual income, after taxes, of one hundred twenty-five percent or less of the current federally established poverty level; or (d) Unable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel. (2) "Indigent and able to contribute" means a person who, at any stage of a court proceeding, is unable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are less than the anticipated cost of counsel but sufficient for the person to pay a portion of that cost. (3) "Anticipated cost of counsel" means the cost of retaining private counsel for representation on the matter before the court. (4) "Available funds" means liquid assets and disposable net monthly income calculated after provision is made for bail obligations. For the purpose of determining available funds, the following definitions shall apply: (a) "Liquid assets" means cash, savings accounts, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, and equity in motor vehicles. A motor vehicle necessary to maintain employment and having a market value not greater than three thousand dollars shall not be considered a liquid asset. (b) "Income" means salary, wages, interest, dividends, and other earnings which are reportable for federal income tax purposes, and cash payments such as reimbursements (2006 Ed.) Indigent Defense Services received from pensions, annuities, social security, and public assistance programs. It includes any contribution received from any family member or other person who is domiciled in the same residence as the defendant and who is helping to defray the defendant’s basic living costs. (c) "Disposable net monthly income" means the income remaining each month after deducting federal, state, or local income taxes, social security taxes, contributory retirement, union dues, and basic living costs. (d) "Basic living costs" means the average monthly amount spent by the defendant for reasonable payments toward living costs, such as shelter, food, utilities, health care, transportation, clothing, loan payments, support payments, and court-imposed obligations. [1998 c 79 § 2; 1997 c 59 § 3; 1989 c 409 § 2.] 10.101.020 10.101.020 Determination of indigency—Provisional appointment—Promissory note. (1) A determination of indigency shall be made for all persons wishing the appointment of counsel in criminal, juvenile, involuntary commitment, and dependency cases, and any other case where the right to counsel attaches. The court or its designee shall determine whether the person is indigent pursuant to the standards set forth in this chapter. (2) In making the determination of indigency, the court shall also consider the anticipated length and complexity of the proceedings and the usual and customary charges of an attorney in the community for rendering services, and any other circumstances presented to the court which are relevant to the issue of indigency. The appointment of counsel shall not be denied to the person because the person’s friends or relatives, other than a spouse who was not the victim of any offense or offenses allegedly committed by the person, have resources adequate to retain counsel, or because the person has posted or is capable of posting bond. (3) The determination of indigency shall be made upon the defendant’s initial contact with the court or at the earliest time circumstances permit. The court or its designee shall keep a written record of the determination of indigency. Any information given by the accused under this section or sections shall be confidential and shall not be available for use by the prosecution in the pending case. (4) If a determination of eligibility cannot be made before the time when the first services are to be rendered, the court shall appoint an attorney on a provisional basis. If the court subsequently determines that the person receiving the services is ineligible, the court shall notify the person of the termination of services, subject to court-ordered reinstatement. (5) All persons determined to be indigent and able to contribute, shall be required to execute a promissory note at the time counsel is appointed. The person shall be informed whether payment shall be made in the form of a lump sum payment or periodic payments. The payment and payment schedule must be set forth in writing. The person receiving the appointment of counsel shall also sign an affidavit swearing under penalty of perjury that all income and assets reported are complete and accurate. In addition, the person must swear in the affidavit to immediately report any change in financial status to the court. (2006 Ed.) 10.101.060 (6) The office or individual charged by the court to make the determination of indigency shall provide a written report and opinion as to indigency on a form prescribed by the office of public defense, based on information obtained from the defendant and subject to verification. The form shall include information necessary to provide a basis for making a determination with respect to indigency as provided by this chapter. [1997 c 41 § 5; 1989 c 409 § 3.] 10.101.030 10.101.030 Standards. Each county or city under this chapter shall adopt standards for the delivery of public defense services, whether those services are provided by contract, assigned counsel, or a public defender office. Standards shall include the following: Compensation of counsel, duties and responsibilities of counsel, case load limits and types of cases, responsibility for expert witness fees and other costs associated with representation, administrative expenses, support services, reports of attorney activity and vouchers, training, supervision, monitoring and evaluation of attorneys, substitution of attorneys or assignment of contracts, limitations on private practice of contract attorneys, qualifications of attorneys, disposition of client complaints, cause for termination of contract or removal of attorney, and nondiscrimination. The standards endorsed by the Washington state bar association for the provision of public defense services should serve as guidelines to local legislative authorities in adopting standards. [2005 c 157 § 2; 1989 c 409 § 4.] 10.101.040 10.101.040 Selection of defense attorneys. City attorneys, county prosecutors, and law enforcement officers shall not select the attorneys who will provide indigent defense services. [1989 c 409 § 5.] 10.101.050 10.101.050 Appropriated funds—Application, reports. The Washington state office of public defense shall disburse appropriated funds to counties and cities for the purpose of improving the quality of public defense services. Counties may apply for up to their pro rata share as set forth in RCW 10.101.060 provided that counties conform to application procedures established by the office of public defense and improve the quality of services for both juveniles and adults. Cities may apply for moneys pursuant to the grant program set forth in RCW 10.101.080. In order to receive funds, each applying county or city must require that attorneys providing public defense services attend training approved by the office of public defense at least once per calendar year. Each applying county or city shall report the expenditure for all public defense services in the previous calendar year, as well as case statistics for that year, including per attorney caseloads, and shall provide a copy of each current public defense contract to the office of public defense with its application. Each individual or organization that contracts to perform public defense services for a county or city shall report to the county or city hours billed for nonpublic defense legal services in the previous calendar year, including number and types of private cases. [2005 c 157 § 3.] 10.101.060 10.101.060 Appropriated funds—Use requirements. (1)(a) Subject to the availability of funds appropriated for this [Title 10 RCW—page 89] 10.101.070 Title 10 RCW: Criminal Procedure purpose, the office of public defense shall disburse to applying counties that meet the requirements of RCW 10.101.050 designated funds under this chapter on a pro rata basis pursuant to the formula set forth in RCW 10.101.070 and shall disburse to eligible cities, funds pursuant to RCW 10.101.080. Each fiscal year for which it receives state funds under this chapter, a county or city must document to the office of public defense that it is meeting the standards for provision of indigent defense services as endorsed by the Washington state bar association or that the funds received under this chapter have been used to make appreciable demonstrable improvements in the delivery of public defense services, including the following: (i) Adoption by ordinance of a legal representation plan that addresses the factors in RCW 10.101.030. The plan must apply to any contract or agency providing indigent defense services for the county or city; (ii) Requiring attorneys who provide public defense services to attend training under RCW 10.101.050; (iii) Requiring attorneys who handle the most serious cases to meet specified qualifications as set forth in the Washington state bar association endorsed standards for public defense services or participate in at least one case consultation per case with office of public defense resource attorneys who are so qualified. The most serious cases include all cases of murder in the first or second degree, persistent offender cases, and class A felonies. This subsection (1)(a)(iii) does not apply to cities receiving funds under RCW 10.101.050 through 10.101.080; (iv) Requiring contracts to address the subject of compensation for extraordinary cases; (v) Identifying funding specifically for the purpose of paying experts (A) for which public defense attorneys may file ex parte motions, or (B) which should be specifically designated within a public defender agency budget; (vi) Identifying funding specifically for the purpose of paying investigators (A) for which public defense attorneys may file ex parte motions, and (B) which should be specifically designated within a public defender agency budget. (b) The cost of providing counsel in cases where there is a conflict of interest shall not be borne by the attorney or agency who has the conflict. (2) The office of public defense shall determine eligibility of counties and cities to receive state funds under this chapter. If a determination is made that a county or city receiving state funds under this chapter did not substantially comply with this section, the office of public defense shall notify the county or city of the failure to comply and unless the county or city contacts the office of public defense and substantially corrects the deficiencies within ninety days after the date of notice, or some other mutually agreed period of time, the county’s or city’s eligibility to continue receiving funds under this chapter is terminated. If an applying county or city disagrees with the determination of the office of public defense as to the county’s or city’s eligibility, the county or city may file an appeal with the advisory committee of the office of public defense within thirty days of the eligibility determination. The decision of the advisory committee is final. [2005 c 157 § 4.] [Title 10 RCW—page 90] 10.101.070 10.101.070 County moneys. The moneys shall be distributed to each county determined to be eligible to receive moneys by the office of public defense as determined under this section. Ninety percent of the funding appropriated shall be designated as "county moneys" and shall be distributed as follows: (1) Six percent of the county moneys appropriated shall be distributed as a base allocation among the eligible counties. A county’s base allocation shall be equal to this six percent divided by the total number of eligible counties. (2) Ninety-four percent of the county moneys appropriated shall be distributed among the eligible counties as follows: (a) Fifty percent of this amount shall be distributed on a pro rata basis to each eligible county based upon the population of the county as a percentage of the total population of all eligible counties; and (b) Fifty percent of this amount shall be distributed on a pro rata basis to each eligible county based upon the annual number of criminal cases filed in the county superior court as a percentage of the total annual number of criminal cases filed in the superior courts of all eligible counties. (3) Under this section: (a) The population of the county is the most recent number determined by the office of financial management; (b) The annual number of criminal cases filed in the county superior court is determined by the most recent annual report of the courts of Washington, as published by the office of the administrator for the courts; (c) Distributions and eligibility for distributions in the 2005-2007 biennium shall be based on 2004 figures for the annual number of criminal cases that are filed as described under (b) of this subsection. Future distributions shall be based on the most recent figures for the annual number of criminal cases that are filed as described under (b) of this subsection. [2005 c 157 § 5.] 10.101.080 10.101.080 City moneys. The moneys under RCW 10.101.050 shall be distributed to each city determined to be eligible under this section by the office of public defense. Ten percent of the funding appropriated shall be designated as "city moneys" and distributed as follows: (1) The office of public defense shall administer a grant program to select the cities eligible to receive city moneys. Incorporated cities may apply for grants. Applying cities must conform to the requirements of RCW 10.101.050 and 10.101.060. (2) City moneys shall be divided among a maximum of five applying cities and shall be distributed in a timely manner to accomplish the goals of the grants. (3) Criteria for award of grants shall be established by the office of public defense after soliciting input from the association of Washington cities. Award of the grants shall be determined by the office of public defense. [2005 c 157 § 6.] (2006 Ed.) Property Involved in a Felony Chapter 10.105 Chapter 10.105 RCW PROPERTY INVOLVED IN A FELONY Sections 10.105.010 10.105.900 10.105.010 Seizure and forfeiture. Application. 10.105.010 Seizure and forfeiture. (1) The following are subject to seizure and forfeiture and no property right exists in them: All personal property, including, but not limited to, any item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, security, or negotiable instrument, which has been or was actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of any felony, or which was furnished or was intended to be furnished by any person in the commission of, as a result of, or as compensation for the commission of, any felony, or which was acquired in whole or in part with proceeds traceable to the commission of a felony. No property may be forfeited under this section until after there has been a superior court conviction of the owner of the property for the felony in connection with which the property was employed, furnished, or acquired. A forfeiture of property encumbered by a bona fide security interest is subject to the interest of the secured party if at the time the security interest was created, the secured party neither had knowledge of nor consented to the commission of the felony. (2) Personal property subject to forfeiture under this chapter may be seized by any law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property. Seizure of personal property without process may be made if: (a) The seizure is incident to an arrest or a search under a search warrant; (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding; (c) A law enforcement officer has probable cause to believe that the property is directly dangerous to health or safety; or (d) The law enforcement officer has probable cause to believe that the property was used or is intended to be used in the commission of a felony. (3) In the event of seizure pursuant to this section, proceedings for forfeiture shall be deemed commenced by the seizure. The law enforcement agency under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, including any community property interest, of the seizure and intended forfeiture of the seized property. The notice of seizure may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen day period following the seizure. Notice of seizure in the case of property subject to a security interest that has been perfected by filing a financing statement in accordance with *chapter 62A.9 RCW, or a certificate of title shall be made by service upon the secured (2006 Ed.) 10.105.010 party or the secured party’s assignee at the address shown on the financing statement or the certificate of title. (4) If no person notifies the seizing law enforcement agency in writing of the person’s claim of ownership or right to possession of items specified in subsection (1) of this section within forty-five days of the seizure, the item seized shall be deemed forfeited. (5) If a person notifies the seizing law enforcement agency in writing of the person’s claim of ownership or right to possession of the seized property within forty-five days of the seizure, the law enforcement agency shall give the person or persons a reasonable opportunity to be heard as to the claim or right. The hearing shall be before the chief law enforcement officer of the seizing agency or the chief law enforcement officer’s designee, except where the seizing agency is a state agency as defined in RCW 34.12.020(4), the hearing shall be before the chief law enforcement officer of the seizing agency or an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of competent jurisdiction. Removal may only be accomplished according to the rules of civil procedure. The person seeking removal of the matter must serve process against the state, county, political subdivision, or municipality that operates the seizing agency, and any other party of interest, in accordance with RCW 4.28.080 or 4.92.020, within forty-five days after the person seeking removal has notified the seizing law enforcement agency of the person’s claim of ownership or right to possession. The court to which the matter is to be removed shall be the district court when the aggregate value of the property is within the jurisdictional limit set forth in RCW 3.66.020. A hearing before the seizing agency and any appeal therefrom shall be under Title 34 RCW. In a court hearing between two or more claimants to the property involved, the prevailing party shall be entitled to a judgment for costs and reasonable attorney’s fees. The burden of producing evidence shall be upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of the property. The seizing law enforcement agency shall promptly return the property to the claimant upon a determination by the administrative law judge or court that the claimant is the present lawful owner or is lawfully entitled to possession of the property. (6) When property is forfeited under this chapter, after satisfying any court-ordered victim restitution, the seizing law enforcement agency may: (a) Retain it for official use or upon application by any law enforcement agency of this state release such property to such agency for the exclusive use of enforcing the criminal law; (b) Sell that which is not required to be destroyed by law and which is not harmful to the public. (7) By January 31st of each year, each seizing agency shall remit to the state treasurer an amount equal to ten percent of the net proceeds of any property forfeited during the preceding calendar year. Money remitted shall be deposited in the public safety and education account. (a) The net proceeds of forfeited property is the value of the forfeitable interest in the property after deducting the cost of satisfying any bona fide security interest to which the property is subject at the time of seizure; and in the case of [Title 10 RCW—page 91] 10.105.900 Title 10 RCW: Criminal Procedure sold property, after deducting the cost of sale, including reasonable fees or commissions paid to independent selling agents. (b) The value of sold forfeited property is the sale price. The value of retained forfeited property is the fair market value of the property at the time of seizure, determined when possible by reference to an applicable commonly used index, such as the index used by the department of licensing for valuation of motor vehicles. A seizing agency may use, but need not use, an independent qualified appraiser to determine the value of retained property. If an appraiser is used, the value of the property appraised is net of the cost of the appraisal. The value of destroyed property and retained firearms or illegal property is zero. (c) Retained property and net proceeds not required to be paid to the state treasurer, or otherwise required to be spent under this section, shall be retained by the seizing law enforcement agency exclusively for the expansion and improvement of law enforcement activity. Money retained under this section may not be used to supplant preexisting funding sources. [1993 c 288 § 2.] *Reviser’s note: Chapter 62A.9 RCW was repealed in its entirety by 2000 c 250 § 9A-901, effective July 1, 2001. For later enactment, see chapter 62A.9A RCW. 10.105.900 Application. This chapter does not apply to property subject to forfeiture under chapter 66.32 RCW, RCW 69.50.505, 9.41.098, 9.46.231, 9A.82.100, 9A.83.030, 7.48.090, or 77.15.070. [2003 c 39 § 6; 1994 c 218 § 18; 1993 c 288 § 1.] 10.105.900 Effective date—1994 c 218: See note following RCW 9.46.010. [Title 10 RCW—page 92] (2006 Ed.) Title 11 Chapters 11.02 11.04 11.05 11.07 Title 11 PROBATE AND TRUST LAW General provisions. Descent and distribution. Uniform simultaneous death act. Nonprobate assets on dissolution or invalidation of marriage. 11.08 Escheats. 11.10 Abatement of assets. 11.11 Testamentary disposition of nonprobate assets act. 11.12 Wills. 11.18 Liability of beneficiary of nonprobate asset. 11.20 Custody, proof, and probate of wills. 11.24 Will contests. 11.28 Letters testamentary and of administration. 11.32 Special administrators. 11.36 Qualifications of personal representatives. 11.40 Claims against estate. 11.42 Settlement of creditor claims for estates passing without probate. 11.44 Inventory and appraisement. 11.48 Personal representatives—General provisions—Actions by and against. 11.54 Family support and postdeath creditor’s claim exemptions. 11.56 Sales, exchanges, leases, mortgages, and borrowing. 11.60 Performance of decedent’s contracts. 11.62 Estates under $60,000—Disposition of property. 11.64 Partnership property. 11.66 Social security benefits. 11.68 Settlement of estates without administration. 11.72 Distribution before settlement. 11.76 Settlement of estates. 11.80 Estates of absentees. 11.84 Inheritance rights of slayers. 11.86 Disclaimer of interests. 11.88 Guardianship—Appointment, qualification, removal of guardians. 11.92 Guardianship—Powers and duties of guardian or limited guardian. 11.94 Power of attorney. 11.95 Powers of appointment. 11.96A Trust and estate dispute resolution. 11.97 Effect of trust instrument. 11.98 Trusts. 11.99 Construction. 11.100 Investment of trust funds. 11.102 Common trust funds. 11.104A Washington principal and income act of 2002. 11.106 Trustees’ accounting act. 11.108 Miscellaneous provisions for distributions made by a governing instrument. 11.110 Charitable trusts. 11.114 Uniform transfers to minors act. 11.118 Trusts—Animals. Rules of court: compensation, reports: SPR 98.12W. (2006 Ed.) guardians, receivers, personal representatives compromise and settlement: SPR 98.08W. receivers, reports by: SPR 98.10W. Cemetery plots, inheritance: Chapter 68.32 RCW. Community property agreements: Chapter 26.16 RCW. Coroner’s duty as to property of deceased: RCW 36.24.130, 36.24.180. Court commissioners, powers in probate matters: RCW 2.24.040. Donation of human remains for medical purposes: Chapter 68.50 RCW. Evidence, transaction with person since deceased: RCW 5.60.030. Fees, collection by superior court clerk: RCW 27.24.070, 36.18.020. Joint tenancy: Chapter 64.28 RCW. Jurisdiction: RCW 2.08.010, 2.08.190; State Constitution Art. 4 §§ 4 and 6 (Amendment 28). Life insurance payable to trustee named as beneficiary in policy or will: RCW 48.18.450, 48.18.452. Partition of real property: Chapter 7.52 RCW. Production of pretended heir: Chapter 9A.60 RCW. Replacement of lost or destroyed probate records: RCW 5.48.060. Stock certificates—Joint tenancy—Transfer pursuant to direction of survivor: RCW 23B.07.240. Veterans’ estates, appointment of director of veterans’ affairs to act as fiduciary: RCW 73.04.130. Wages payment on death of employee: RCW 49.48.120. preference on death of employer: RCW 49.56.020. Written finding of presumed death, missing in action, etc.: RCW 5.40.020 through 5.40.040. Chapter 11.02 Chapter 11.02 RCW GENERAL PROVISIONS Sections 11.02.001 11.02.005 11.02.070 11.02.080 11.02.091 11.02.100 11.02.110 11.02.120 11.02.130 11.02.900 11.02.901 11.02.902 11.02.903 Section headings in Title 11 RCW not part of law. Definitions and use of terms. Community property—Disposition—Probate administration of. Application and construction of act as to wills, proceedings, guardians, accrued rights, and pre-executed instruments— Severability—Effective date—1974 ex.s. c 117. Written instrument—Limit on characterization as testamentary. Transfer of shares of record—Dividends. Transfer of shares or securities—Presumption of joint tenancy. Transfer of shares—Liability. Safe deposit repository—Lease provision ineffective to create joint tenancy or transfer at one lessee’s death. Short title—Washington trust act of 1984. Application—1985 c 30—Application of 1984 c 149 as amended and reenacted in 1985. Purpose—1985 c 30. Severability—1985 c 30. 11.02.001 11.02.001 Section headings in Title 11 RCW not part of law. Section headings, as found in Title 11 RCW, do not constitute any part of the law. [1985 c 30 § 3. Prior: 1984 c 149 § 179.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. [Title 11 RCW—page 1] 11.02.005 Title 11 RCW: Probate and Trust Law Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.02.005 11.02.005 Definitions and use of terms. When used in this title, unless otherwise required from the context: (1) "Personal representative" includes executor, administrator, special administrator, and guardian or limited guardian and special representative. (2) "Net estate" refers to the real and personal property of a decedent exclusive of homestead rights, exempt property, the family allowance and enforceable claims against, and debts of, the deceased or the estate. (3) "Representation" refers to a method of determining distribution in which the takers are in unequal degrees of kinship with respect to the intestate, and is accomplished as follows: After first determining who, of those entitled to share in the estate, are in the nearest degree of kinship, the estate is divided into equal shares, the number of shares being the sum of the number of persons who survive the intestate who are in the nearest degree of kinship and the number of persons in the same degree of kinship who died before the intestate but who left issue surviving the intestate; each share of a deceased person in the nearest degree shall be divided among those of the deceased person’s issue who survive the intestate and have no ancestor then living who is in the line of relationship between them and the intestate, those more remote in degree taking together the share which their ancestor would have taken had he or she survived the intestate. Posthumous children are considered as living at the death of their parent. (4) "Issue" means all the lineal descendants of an individual. An adopted individual is a lineal descendant of each of his or her adoptive parents and of all individuals with regard to which each adoptive parent is a lineal descendant. (5) "Degree of kinship" means the degree of kinship as computed according to the rules of the civil law; that is, by counting upward from the intestate to the nearest common ancestor and then downward to the relative, the degree of kinship being the sum of these two counts. (6) "Heirs" denotes those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the real and personal property of a decedent on the decedent’s death intestate. (7) "Real estate" includes, except as otherwise specifically provided herein, all lands, tenements, and hereditaments, and all rights thereto, and all interest therein possessed and claimed in fee simple, or for the life of a third person. (8) "Will" means an instrument validly executed as required by RCW 11.12.020. (9) "Codicil" means a will that modifies or partially revokes an existing earlier will. A codicil need not refer to or be attached to the earlier will. (10) "Guardian" or "limited guardian" means a personal representative of the person or estate of an incompetent or disabled person as defined in RCW 11.88.010 and the term may be used in lieu of "personal representative" wherever required by context. (11) "Administrator" means a personal representative of the estate of a decedent and the term may be used in lieu of "personal representative" wherever required by context. (12) "Executor" means a personal representative of the estate of a decedent appointed by will and the term may be [Title 11 RCW—page 2] used in lieu of "personal representative" wherever required by context. (13) "Special administrator" means a personal representative of the estate of a decedent appointed for limited purposes and the term may be used in lieu of "personal representative" wherever required by context. (14) "Trustee" means an original, added, or successor trustee and includes the state, or any agency thereof, when it is acting as the trustee of a trust to which chapter 11.98 RCW applies. (15) "Nonprobate asset" means those rights and interests of a person having beneficial ownership of an asset that pass on the person’s death under a written instrument or arrangement other than the person’s will. "Nonprobate asset" includes, but is not limited to, a right or interest passing under a joint tenancy with right of survivorship, joint bank account with right of survivorship, payable on death or trust bank account, transfer on death security or security account, deed or conveyance if possession has been postponed until the death of the person, trust of which the person is grantor and that becomes effective or irrevocable only upon the person’s death, community property agreement, individual retirement account or bond, or note or other contract the payment or performance of which is affected by the death of the person. "Nonprobate asset" does not include: A payable-on-death provision of a life insurance policy, annuity, or other similar contract, or of an employee benefit plan; a right or interest passing by descent and distribution under chapter 11.04 RCW; a right or interest if, before death, the person has irrevocably transferred the right or interest, the person has waived the power to transfer it or, in the case of contractual arrangement, the person has waived the unilateral right to rescind or modify the arrangement; or a right or interest held by the person solely in a fiduciary capacity. For the definition of "nonprobate asset" relating to revocation of a provision for a former spouse upon dissolution of marriage or declaration of invalidity of marriage, RCW 11.07.010(5) applies. For the definition of "nonprobate asset" relating to revocation of a provision for a former spouse upon dissolution of marriage or declaration of invalidity of marriage, see RCW 11.07.010(5). For the definition of "nonprobate asset" relating to testamentary disposition of nonprobate assets, see RCW 11.11.010(7). (16) "Internal Revenue Code" means the United States Internal Revenue Code of 1986, as amended or renumbered as of January 1, 2001. (17) References to "section 2033A" of the Internal Revenue Code in wills, trust agreements, powers of appointment, beneficiary designations, and other instruments governed by or subject to this title shall be deemed to refer to the comparable or corresponding provisions of section 2057 of the Internal Revenue Code, as added by section 6006(b) of the Internal Revenue Service Restructuring Act of 1998 (H.R. 2676, P.L. 105-206); and references to the section 2033A "exclusion" shall be deemed to mean the section 2057 deduction. Words that import the singular number may also be applied to the plural of persons and things. Words importing the masculine gender only may be extended to females also. [2005 c 97 § 1; 2001 c 320 § 1; 2000 c 130 § 1; 1999 c 358 § 20; 1998 c 292 § 117; 1997 c (2006 Ed.) General Provisions 252 § 1; 1994 c 221 § 1; 1993 c 73 § 1; 1985 c 30 § 4. Prior: 1984 c 149 § 4; 1977 ex.s. c 80 § 14; 1975-’76 2nd ex.s. c 42 § 23; 1965 c 145 § 11.02.005. Former RCW sections: Subd. (3), RCW 11.04.110; subd. (4), RCW 11.04.010; subd. (5), RCW 11.04.100; subd. (6), RCW 11.04.280; subd. (7), RCW 11.04.010; subd. (8) and (9), RCW 11.12.240; subd. (14) and (15), RCW 11.02.040.] Effective date—2001 c 320: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2001." [2001 c 320 § 22.] Application—2000 c 130: "Section 1 of this act applies to decedents dying after December 31, 1997." [2000 c 130 § 2.] Effective date—1999 c 358 §§ 1 and 3-21: See note following RCW 82.04.3651. Part headings and section captions not law—Effective dates—1998 c 292: See RCW 11.11.902 and 11.11.903. Application—1997 c 252: "Sections 1 through 72, chapter 252, Laws of 1997 apply to estates of decedents dying after December 31, 1997. Sections 81 through 86, chapter 252, Laws of 1997 apply to all estates, trusts, and governing instruments in existence on or at any time after March 7, 1984, and to all proceedings with respect thereto after March 7, 1984, whether the proceedings commenced before or after March 7, 1984, and including distributions made after March 7, 1984. Sections 81 through 86, chapter 252, Laws of 1997 do not apply to any governing instrument, the terms of which expressly or by necessary implication make the application of sections 81 through 86, chapter 252, Laws of 1997 inapplicable. The judicial and nonjudicial dispute resolution procedures of chapter 11.96 RCW apply to sections 81 through 86, chapter 252, Laws of 1997." [1998 c 292 § 205; 1997 c 252 § 89.] Effective dates—1994 c 221: See note following RCW 11.94.070. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—1984 c 149: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1984 c 149 § 181.] Effective dates—1984 c 149: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately [March 7, 1984], except sections 1 through 98, 100 through 138, and 147 through 178 of this act which shall take effect January 1, 1985." [1984 c 149 § 180.] Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. Effect of decree of adoption: RCW 26.33.260. Kindred of the half blood: RCW 11.04.035. 11.02.070 Community property—Disposition—Probate administration of. Except as provided in RCW 41.04.273 and 11.84.025, upon the death of a decedent, a one-half share of the community property shall be confirmed to the surviving spouse, and the other one-half share shall be subject to testamentary disposition by the decedent, or shall descend as provided in chapter 11.04 RCW. The whole of the community property shall be subject to probate administration for all purposes of this title, including the payment of obligations and debts of the community, the award in lieu of homestead, the allowance for family support, and any other matter for which the community property would be responsible or liable if the decedent were living. [1998 c 292 § 504; 1967 c 168 § 1.] 11.02.091 Effective date—1967 c 168: "The provisions of this act shall take effect on July 1, 1967." [1967 c 168 §§ 16, 19.] Descent and distribution of community property: RCW 11.04.015(1). Disposition of quasi-community property: RCW 26.16.230. 11.02.080 11.02.080 Application and construction of act as to wills, proceedings, guardians, accrued rights, and preexecuted instruments—Severability—Effective date— 1974 ex.s. c 117. On and after October 1, 1974: (1) The provisions of chapter 117, Laws of 1974 ex. sess. shall apply to any wills of decedents dying thereafter; (2) The provisions of chapter 117, Laws of 1974 ex. sess. shall apply to any proceedings in court then pending or thereafter commenced regardless of the time of the death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of chapter 117, Laws of 1974 ex. sess.; (3) Every personal representative including a person administering an estate of a minor or incompetent holding an appointment on October 1, 1974, continues to hold the appointment, has the powers conferred by chapter 117, Laws of 1974 ex. sess. and is subject to the duties imposed with respect to any act occurring or done thereafter; (4) An act done before October 1, 1974 in any proceeding and any accrued right is not impaired by chapter 117, Laws of 1974 ex. sess. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before October 1, 1974, the provisions shall remain in force with respect to that right; (5) Any rule of construction or presumption provided in chapter 117, Laws of 1974 ex. sess. applies to instruments executed before October 1, 1974 unless there is a clear indication of a contrary intent. [1974 ex.s. c 117 § 1.] Legislative directive—Part headings not part of law: "(1) Sections 4 and 5 of this 1974 amendatory act shall constitute a new chapter in Title 11 RCW. (2) Sections 52 and 53 of this 1974 amendatory act shall constitute a new chapter in Title 11 RCW. (3) Part headings employed in this 1974 amendatory act do not constitute any part of the law and shall not be codified by the code reviser and shall not become a part of the Revised Code of Washington." [1974 ex.s. c 117 § 2.] 11.02.070 Application—Conflict with federal requirements—1998 c 292: See notes following RCW 41.04.273. Part headings and section captions not law—Effective dates—1998 c 292: See RCW 11.11.902 and 11.11.903. (2006 Ed.) Severability—1974 ex.s. c 117: "If any provision of this 1974 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1974 ex.s. c 117 § 3.] Effective date—1974 ex.s. c 117: "This 1974 amendatory act shall take effect October 1, 1974." [1974 ex.s. c 117 § 56.] 11.02.091 11.02.091 Written instrument—Limit on characterization as testamentary. (1) An otherwise effective written instrument of transfer may not be deemed testamentary solely because of a provision for a nonprobate transfer at death in the instrument. (2) "Provision for a nonprobate transfer at death" as used in subsection (1) of this section includes, but is not limited to, a written provision that: (a) Money or another benefit up to that time due to, controlled, or owned by a decedent before death must be paid after the decedent’s death to a person whom the decedent des[Title 11 RCW—page 3] 11.02.100 Title 11 RCW: Probate and Trust Law ignates either in the instrument or a separate writing, including a will, executed at any time; (b) Money or another benefit due or to become due under the instrument ceases to be payable in the event of the death of the promisee or the promisor before payment or demand; or (c) Property, controlled by or owned by the decedent before death, that is the subject of the instrument passes to a person the decedent designates either in the instrument or in a separate writing, including a will, executed at any time. (3) "Otherwise effective written instrument of transfer" as used in subsection (1) of this section means: An insurance policy; a contract of employment; a bond; a mortgage; a promissory note; a certified or uncertified security; an account agreement; a compensation plan; a pension plan; an individual retirement plan; an employee benefit plan; a joint tenancy; a community property agreement; a trust; a conveyance; a deed of gift; a contract; or another written instrument of a similar nature that would be effective if it did not contain provision for a nonprobate transfer at death. (4) This section only eliminates a requirement that instruments of transfer comply with formalities for executing wills under chapter 11.12 RCW. This section does not make a written instrument effective as a contract, gift, conveyance, deed, or trust that would not otherwise be effective as such for reasons other than failure to comply with chapter 11.12 RCW. (5) This section does not limit the rights of a creditor under other laws of this state. [1993 c 291 § 2.] agent of the existence of any understanding, agreement, condition, or evidence that the shares or securities were held other than in joint tenancy, or of the invalidity of the joint tenancy or a breach of trust by the joint tenants. [1990 c 180 § 8.] 11.02.120 11.02.120 Transfer of shares—Liability. Neither a domestic or foreign corporation or its registrar or transfer agent shall be liable for transferring or causing to be transferred on the books of the corporation to or pursuant to the direction of the surviving spouse of a deceased husband or wife any share or shares or other securities theretofore issued by the corporation to the deceased or surviving spouse or both of them if the corporation or its registrar or transfer agent shall be provided with the following: (1) A copy of an agreement which shall have been entered into between the spouses pursuant to RCW 26.16.120 and certified by the auditor of the county in this state in whose office the same shall have been recorded; (2) A certified copy of the death certificate of the deceased spouse; (3) An affidavit of the surviving spouse that: (a) The shares or other securities constituted community property of the spouses at date of death of the deceased spouse and their disposition is controlled by the community property agreement; (b) No proceedings have been instituted to contest or set aside or cancel the agreement; and that (c) The claims of creditors have been paid or provided for. [1990 c 180 § 9.] 11.02.100 11.02.100 Transfer of shares of record—Dividends. Shares of record in the name of a married person may be transferred by such person, such person’s agent or attorney, without the signature of such person’s spouse. All dividends payable upon any shares of a corporation standing in the name of a married person, shall be paid to such married person, such person’s agent or attorney, in the same manner as if such person were unmarried, and it shall not be necessary for the other spouse to join in a receipt therefor; and any proxy or power given by a married person, touching any shares of any corporation standing in such person’s name, shall be valid and binding without the signature of the other spouse. [1990 c 180 § 7.] 11.02.130 11.02.130 Safe deposit repository—Lease provision ineffective to create joint tenancy or transfer at one lessee’s death. A provision in a lease of a safety deposit repository to the effect that two or more persons have access to the repository, or that purports to create a joint tenancy in the repository or in the contents of the repository, or that purports to vest ownership of the contents of the repository in the surviving lessee, is ineffective to create joint ownership of the contents of the repository or to transfer ownership at death of one of the lessees to the survivor. Ownership of the contents of the repository and devolution of title to those contents is determined according to rules of law without regard to the lease provisions. [1993 c 291 § 3.] 11.02.110 11.02.110 Transfer of shares or securities—Presumption of joint tenancy. Whenever shares or other securities issued by domestic or foreign corporations are or have been issued or transferred to two or more persons in joint tenancy form on the books or records of the corporation, it is presumed in favor of the corporation, its registrar and its transfer agent that the shares or other securities are owned by such persons in joint tenancy and not otherwise. A domestic or foreign corporation or its registrar or transfer agent is not liable for transferring or causing to be transferred on the books of the corporation to or pursuant to the direction of the surviving joint tenant or tenants any share or shares or other securities theretofore issued by the corporation to two or more persons in joint tenancy form on the books or records of the corporation, unless the transfer was made with actual knowledge by the corporation or by its registrar or transfer [Title 11 RCW—page 4] 11.02.900 11.02.900 Short title—Washington trust act of 1984. Chapter 149, Laws of 1984, as amended and reenacted in chapters 8, 9, 10, 11, 23, 30, and 31, Laws of 1985 shall be known as the Washington trust act of 1984. [1985 c 30 § 2.] 11.02.901 11.02.901 Application—1985 c 30—Application of 1984 c 149 as amended and reenacted in 1985. (1) Nothing in chapter 8, 9, 10, 11, 23, 30, or 31, Laws of 1985 shall invalidate or nullify: (a) Any instrument or property relationship that is executed and irrevocable as of the April 10, 1985; or (b) Any action undertaken in a proceeding where the action was commenced before April 10, 1985, as long as the instrument, property relationship, or action complies with chapter 149, Laws of 1984. (2006 Ed.) Descent and Distribution (2) Except as specifically provided otherwise in chapter 149, Laws of 1984 as amended and reenacted in 1985, chapter 149, Laws of 1984 as amended and reenacted in 1985 shall apply to all instruments, property relationships, and proceedings existing on January 1, 1985. [1985 c 30 § 139.] 11.02.902 Purpose—1985 c 30. The purpose of this act is to make technical corrections to chapter 149, Laws of 1984, and to ensure that the changes made in that chapter meet the constitutional requirements of Article II, section 19 of the state Constitution. [1985 c 30 § 1.] 11.02.902 11.02.903 Severability—1985 c 30. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1985 c 30 § 144.] 11.02.903 Chapter 11.04 Chapter 11.04 RCW DESCENT AND DISTRIBUTION Sections 11.04.015 11.04.035 11.04.041 11.04.060 11.04.071 11.04.081 11.04.085 11.04.095 11.04.230 11.04.240 11.04.250 11.04.290 Descent and distribution of real and personal estate. Kindred of the half blood. Advancements. Tenancy in dower and by curtesy abolished. Survivorship as incident of tenancy by the entireties abolished. Inheritance by and from any child not dependent upon marriage of parents. Inheritance by adopted child. Inheritance from stepparent avoids escheat. United States savings bond—Effect of death of co-owner. United States savings bond—Effect of beneficiary’s survival of registered owner. When real estate vests—Rights of heirs. Vesting of title. Inheritance rights of slayers: Chapter 11.84 RCW. 11.04.041 (b) If the intestate not be survived by issue, then to the parent or parents who survive the intestate. (c) If the intestate not be survived by issue or by either parent, then to those issue of the parent or parents who survive the intestate; if they are all in the same degree of kinship to the intestate, they shall take equally, or, if of unequal degree, then those of more remote degree shall take by representation. (d) If the intestate not be survived by issue or by either parent, or by any issue of the parent or parents who survive the intestate, then to the grandparent or grandparents who survive the intestate; if both maternal and paternal grandparents survive the intestate, the maternal grandparent or grandparents shall take one-half and the paternal grandparent or grandparents shall take one-half. (e) If the intestate not be survived by issue or by either parent, or by any issue of the parent or parents or by any grandparent or grandparents, then to those issue of any grandparent or grandparents who survive the intestate; taken as a group, the issue of the maternal grandparent or grandparents shall share equally with the issue of the paternal grandparent or grandparents, also taken as a group; within each such group, all members share equally if they are all in the same degree of kinship to the intestate, or, if some be of unequal degree, then those of more remote degree shall take by representation. [1974 ex.s. c 117 § 6; 1967 c 168 § 2; 1965 ex.s. c 55 § 1; 1965 c 145 § 11.04.015. Formerly RCW 11.04.020, 11.04.030, 11.04.050.] Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. Appropriation to pay debts and expenses: Chapter 11.10 RCW. Community property disposition: RCW 11.02.070. generally: Chapter 26.16 RCW. Escheats: Chapter 11.08 RCW. 11.04.015 Descent and distribution of real and personal estate. The net estate of a person dying intestate, or that portion thereof with respect to which the person shall have died intestate, shall descend subject to the provisions of RCW 11.04.250 and 11.02.070, and shall be distributed as follows: (1) Share of surviving spouse. The surviving spouse shall receive the following share: (a) All of the decedent’s share of the net community estate; and (b) One-half of the net separate estate if the intestate is survived by issue; or (c) Three-quarters of the net separate estate if there is no surviving issue, but the intestate is survived by one or more of his parents, or by one or more of the issue of one or more of his parents; or (d) All of the net separate estate, if there is no surviving issue nor parent nor issue of parent. (2) Shares of others than surviving spouse. The share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse, shall descend and be distributed as follows: (a) To the issue of the intestate; if they are all in the same degree of kinship to the intestate, they shall take equally, or if of unequal degree, then those of more remote degree shall take by representation. 11.04.015 (2006 Ed.) "Net estate" defined: RCW 11.02.005(2). Payment of claims where estate insufficient: RCW 11.76.150. Priority of sale, etc., as between realty and personalty: Chapter 11.10 RCW. 11.04.035 11.04.035 Kindred of the half blood. Kindred of the half blood shall inherit the same share which they would have inherited if they had been of the whole blood, unless the inheritance comes to the intestate by descent, devise, or gift from one of his ancestors, or kindred of such ancestor’s blood, in which case all those who are not of the blood of such ancestors shall be excluded from such inheritance: PROVIDED, HOWEVER, That the words "kindred of such ancestor’s blood" and "blood of such ancestors" shall be construed to include any child lawfully adopted by one who is in fact of the blood of such ancestors. [1967 c 168 § 3; 1965 c 145 § 11.04.035. Formerly RCW 11.04.100, part.] "Degree of kinship" defined: RCW 11.02.005(5). 11.04.041 11.04.041 Advancements. If a person dies intestate as to all his estate, property which he gave in his lifetime as an advancement to any person who, if the intestate had died at the time of making the advancement, would be entitled to inherit a part of his estate, shall be counted toward the advancee’s intestate share, and to the extent that it does not exceed such intestate share shall be taken into account in computing [Title 11 RCW—page 5] 11.04.060 Title 11 RCW: Probate and Trust Law the estate to be distributed. Every gratuitous inter vivos transfer is deemed to be an absolute gift and not an advancement unless shown to be an advancement. The advancement shall be considered as of its value at the time when the advancee came into possession or enjoyment or at the time of the death of the intestate, whichever first occurs. If the advancee dies before the intestate, leaving a lineal heir who takes from the intestate, the advancement shall be taken into account in the same manner as if it had been made directly to such heir. If such heir is entitled to a lesser share in the estate than the advancee would have been entitled had he survived the intestate, then the heir shall only be charged with such proportion of the advancement as the amount he would have inherited, had there been no advancement, bears to the amount which the advancee would have inherited, had there been no advancement. [1965 c 145 § 11.04.041. Formerly RCW 11.04.040, 11.04.120, 11.04.130, 11.04.140, 11.04.150, 11.04.160, and 11.04.170.] 11.04.060 11.04.060 Tenancy in dower and by curtesy abolished. The provisions of RCW 11.04.015, as to the inheritance of the husband and wife from each other take the place of tenancy in dower and tenancy by curtesy, which are hereby abolished. [1965 c 145 § 11.04.060. Prior: Code 1881 § 3304; 1875 p 55 § 3; RRS § 1343.] 11.04.071 11.04.071 Survivorship as incident of tenancy by the entireties abolished. The right of survivorship as an incident of tenancy by the entireties is abolished. [1965 c 145 § 11.04.071.] Joint tenancy: Chapter 64.28 RCW. Safe deposit repository—Lease provision ineffective to create joint tenancy or transfer at one lessee’s death: RCW 11.02.130. 11.04.081 11.04.081 Inheritance by and from any child not dependent upon marriage of parents. For the purpose of inheritance to, through, and from any child, the effects and treatment of the parent-child relationship shall not depend upon whether or not the parents have been married. [1975’76 2nd ex.s. c 42 § 24; 1965 c 145 § 11.04.081. Formerly RCW 11.04.080 and 11.04.090.] Effect of decree of adoption: RCW 26.33.260. "Issue" includes all lawfully adopted children: RCW 11.02.005(4). 11.04.085 11.04.085 Inheritance by adopted child. A lawfully adopted child shall not be considered an "heir" of his natural parents for purposes of this title. [1965 c 145 § 11.04.085.] Effect of decree of adoption: RCW 26.33.260. "Issue" includes lawfully adopted children: RCW 11.02.005(4). 11.04.095 11.04.095 Inheritance from stepparent avoids escheat. If a person die leaving a surviving spouse and issue by a former spouse and leaving a will whereby all or substantially all of the deceased’s property passes to the surviving spouse or having before death conveyed all or substantially all his or her property to the surviving spouse, and afterwards the latter dies without heirs and without disposing of his or her property by will so that except for this section the same would all escheat, the issue of the spouse first deceased who survive the spouse last deceased shall take and inherit from [Title 11 RCW—page 6] the spouse last deceased the property so acquired by will or conveyance or the equivalent thereof in money or other property; if such issue are all in the same degree of kinship to the spouse first deceased they shall take equally, or, if of unequal degree, then those of more remote degree shall take by representation with respect to such spouse first deceased. [1965 c 145 § 11.04.095. Prior: 1919 c 197 § 1; RCW 11.08.010; RRS § 1356-1.] 11.04.230 11.04.230 United States savings bond—Effect of death of co-owner. If either co-owner of United States savings bonds registered in two names as co-owners (in the alternative) dies without having presented and surrendered the bond for payment to a federal reserve bank or the treasury department, the surviving co-owner will be the sole and absolute owner of the bond. [1965 c 145 § 11.04.230. Prior: 1943 c 14 § 1; Rem. Supp. 1943 § 11548-60.] 11.04.240 11.04.240 United States savings bond—Effect of beneficiary’s survival of registered owner. If the registered owner of United States savings bonds registered in the name of one person payable on death to another dies without having presented and surrendered the bond for payment or authorized reissue to a federal reserve bank or the treasury department, and is survived by the beneficiary, the beneficiary will be the sole and absolute owner of the bond. [1965 c 145 § 11.04.240. Prior: 1943 c 14 § 2; Rem. Supp. 1943 § 1154861.] 11.04.250 11.04.250 When real estate vests—Rights of heirs. When a person dies seized of lands, tenements or hereditaments, or any right thereto or entitled to any interest therein in fee or for the life of another, his title shall vest immediately in his heirs or devisees, subject to his debts, family allowance, expenses of administration and any other charges for which such real estate is liable under existing laws. No administration of the estate of such decedent, and no decree of distribution or other finding or order of any court shall be necessary in any case to vest such title in the heirs or devisees, but the same shall vest in the heirs or devisees instantly upon the death of such decedent: PROVIDED, That no person shall be deemed a devisee until the will has been probated. The title and right to possession of such lands, tenements, or hereditaments so vested in such heirs or devisees, together with the rents, issues and profits thereof, shall be good and valid against all persons claiming adversely to the claims of any such heirs, or devisees, excepting only the personal representative when appointed, and persons lawfully claiming under such personal representative; and any one or more of such heirs or devisees, or their grantees, jointly or severally, may sue for and recover their respective shares or interests in any such lands, tenements, or hereditaments and the rents, issues and profits thereof, whether letters testamentary or of administration be granted or not, from any person except the personal representative and those lawfully claiming under such personal representative. [1965 c 145 § 11.04.250. Prior: 1895 c 105 § 1; RRS § 1366.] Right to possession and management of estate: RCW 11.48.020. (2006 Ed.) Uniform Simultaneous Death Act 11.04.290 11.04.290 Vesting of title. RCW 11.04.250 through 11.04.290 shall apply to community real property and also to separate estate; and upon the death of either husband or wife, title of all community real property shall vest immediately in the person or persons to whom the same shall go, pass, descend or be devised, as provided in RCW 11.04.015, subject to all the charges mentioned in RCW 11.04.250. [1965 c 145 § 11.04.290. Prior: 1895 c 105 § 5; RRS § 1370.] Chapter 11.05 RCW UNIFORM SIMULTANEOUS DEATH ACT Chapter 11.05 Sections 11.05.010 11.05.020 11.05.030 11.05.040 11.05.050 11.05.900 11.05.910 11.07.010 the policy shall be distributed as if the insured had survived the beneficiary. [1965 c 145 § 11.05.040. Prior: 1943 c 113 § 4; Rem. Supp. 1943 § 1370-4. Formerly RCW 11.04.210.] Reviser’s note: The subject matter of this section and RCW 11.05.050 relating to insurance also appears in RCW 48.18.390. 11.05.050 11.05.050 Scope of chapter limited. This chapter shall not apply in the case of wills, living trusts, deeds, or contracts of insurance wherein provision has been made for distribution of property different from the provisions of this chapter. [1965 c 145 § 11.05.050. Prior: 1943 c 113 § 6; Rem. Supp. 1943 § 1370-6. Formerly RCW 11.04.220.] Reviser’s note: See note following RCW 11.05.040. Devolution of property in case of simultaneous death of owners. Procedure when beneficiaries die simultaneously. Joint tenants—Simultaneous death. Distribution of insurance policy when insured and beneficiary die simultaneously. Scope of chapter limited. Application of chapter to prior deaths. Construction of chapter. 11.05.900 11.05.900 Application of chapter to prior deaths. This chapter shall not apply to the distribution of the property of a person who has died before it takes effect. [1965 c 145 § 11.05.900. Prior: 1943 c 113 § 5; Rem. Supp. 1943 § 13705.] 11.05.910 11.05.010 11.05.010 Devolution of property in case of simultaneous death of owners. Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this chapter. [1965 c 145 § 11.05.010. Prior: 1943 c 113 § 1; Rem. Supp. 1943 § 1370-1. Formerly RCW 11.04.180.] 11.05.020 11.05.020 Procedure when beneficiaries die simultaneously. Where two or more beneficiaries are designated to take successively or alternately by reason of survivorship under another person’s disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously the property thus disposed of shall be divided into as many equal portions as there are successive or alternate beneficiaries and the portion allocated to each beneficiary shall be distributed as if he had survived all the other beneficiaries. [1965 c 145 § 11.05.020. Prior: 1943 c 113 § 2; Rem. Supp. 1943 § 1370-2. Formerly RCW 11.04.190.] 11.05.030 11.05.030 Joint tenants—Simultaneous death. Where there is no sufficient evidence that two joint tenants have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived, and onehalf as if the other had survived. If there are more than two joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants. [1965 c 145 § 11.05.030. Prior: 1943 c 113 § 3; Rem. Supp. 1943 § 1370-3. Formerly RCW 11.04.200.] Joint tenancy: Chapter 64.28 RCW. 11.05.040 11.05.040 Distribution of insurance policy when insured and beneficiary die simultaneously. Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously the proceeds of (2006 Ed.) 11.05.910 Construction of chapter. This chapter shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact it. [1965 c 145 § 11.05.910. Prior: 1943 c 113 § 7; Rem. Supp. 1943 § 1370-7.] Chapter 11.07 RCW NONPROBATE ASSETS ON DISSOLUTION OR INVALIDATION OF MARRIAGE Chapter 11.07 Sections 11.07.010 Nonprobate assets on dissolution or invalidation of marriage. 11.07.010 11.07.010 Nonprobate assets on dissolution or invalidation of marriage. (1) This section applies to all nonprobate assets, wherever situated, held at the time of entry by a superior court of this state of a decree of dissolution of marriage or a declaration of invalidity. (2)(a) If a marriage is dissolved or invalidated, a provision made prior to that event that relates to the payment or transfer at death of the decedent’s interest in a nonprobate asset in favor of or granting an interest or power to the decedent’s former spouse is revoked. A provision affected by this section must be interpreted, and the nonprobate asset affected passes, as if the former spouse failed to survive the decedent, having died at the time of entry of the decree of dissolution or declaration of invalidity. (b) This subsection does not apply if and to the extent that: (i) The instrument governing disposition of the nonprobate asset expressly provides otherwise; (ii) The decree of dissolution or declaration of invalidity requires that the decedent maintain a nonprobate asset for the benefit of a former spouse or children of the marriage, payable on the decedent’s death either outright or in trust, and other nonprobate assets of the decedent fulfilling such a requirement for the benefit of the former spouse or children of the marriage do not exist at the decedent’s death; or (iii) If not for this subsection, the decedent could not have effected the revocation by unilateral action because of [Title 11 RCW—page 7] 11.07.010 Title 11 RCW: Probate and Trust Law the terms of the decree or declaration, or for any other reason, immediately after the entry of the decree of dissolution or declaration of invalidity. (3)(a) A payor or other third party in possession or control of a nonprobate asset at the time of the decedent’s death is not liable for making a payment or transferring an interest in a nonprobate asset to a decedent’s former spouse whose interest in the nonprobate asset is revoked under this section, or for taking another action in reliance on the validity of the instrument governing disposition of the nonprobate asset, before the payor or other third party has actual knowledge of the dissolution or other invalidation of marriage. A payor or other third party is liable for a payment or transfer made or other action taken after the payor or other third party has actual knowledge of a revocation under this section. (b) This section does not require a payor or other third party to pay or transfer a nonprobate asset to a beneficiary designated in a governing instrument affected by the dissolution or other invalidation of marriage, or to another person claiming an interest in the nonprobate asset, if the payor or third party has actual knowledge of the existence of a dispute between the former spouse and the beneficiaries or other persons concerning rights of ownership of the nonprobate asset as a result of the application of this section among the former spouse and the beneficiaries or among other persons, or if the payor or third party is otherwise uncertain as to who is entitled to the nonprobate asset under this section. In such a case, the payor or third party may, without liability, notify in writing all beneficiaries or other persons claiming an interest in the nonprobate asset of either the existence of the dispute or its uncertainty as to who is entitled to payment or transfer of the nonprobate asset. The payor or third party may also, without liability, refuse to pay or transfer a nonprobate asset in such a circumstance to a beneficiary or other person claiming an interest until the time that either: (i) All beneficiaries and other interested persons claiming an interest have consented in writing to the payment or transfer; or (ii) The payment or transfer is authorized or directed by a court of proper jurisdiction. (c) Notwithstanding subsections (1) and (2) of this section and (a) and (b) of this subsection, a payor or other third party having actual knowledge of the existence of a dispute between beneficiaries or other persons concerning rights to a nonprobate asset as a result of the application of this section may condition the payment or transfer of the nonprobate asset on execution, in a form and with security acceptable to the payor or other third party, of a bond in an amount that is double the fair market value of the nonprobate asset at the time of the decedent’s death or the amount of an adverse claim, whichever is the lesser, or of a similar instrument to provide security to the payor or other third party, indemnifying the payor or other third party for any liability, loss, damage, costs, and expenses for and on account of payment or transfer of the nonprobate asset. (d) As used in this subsection, "actual knowledge" means, for a payor or other third party in possession or control of the nonprobate asset at or following the decedent’s death, written notice to the payor or other third party, or to an officer of a payor or third party in the course of his or her employment, received after the decedent’s death and within a [Title 11 RCW—page 8] time that is sufficient to afford the payor or third party a reasonable opportunity to act upon the knowledge. The notice must identify the nonprobate asset with reasonable specificity. The notice also must be sufficient to inform the payor or other third party of the revocation of the provisions in favor of the decedent’s spouse by reason of the dissolution or invalidation of marriage, or to inform the payor or third party of a dispute concerning rights to a nonprobate asset as a result of the application of this section. Receipt of the notice for a period of more than thirty days is presumed to be received within a time that is sufficient to afford the payor or third party a reasonable opportunity to act upon the knowledge, but receipt of the notice for a period of less than five business days is presumed not to be a sufficient time for these purposes. These presumptions may be rebutted only by clear and convincing evidence to the contrary. (4)(a) A person who purchases a nonprobate asset from a former spouse or other person, for value and without actual knowledge, or who receives from a former spouse or other person payment or transfer of a nonprobate asset without actual knowledge and in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, property, or benefit nor is liable under this section for the amount of the payment or the value of the nonprobate asset. However, a former spouse or other person who, with actual knowledge, not for value, or not in satisfaction of a legally enforceable obligation, receives payment or transfer of a nonprobate asset to which that person is not entitled under this section is obligated to return the payment or nonprobate asset, or is personally liable for the amount of the payment or value of the nonprobate asset, to the person who is entitled to it under this section. (b) As used in this subsection, "actual knowledge" means, for a person described in (a) of this subsection who purchases or receives a nonprobate asset from a former spouse or other person, personal knowledge or possession of documents relating to the revocation upon dissolution or invalidation of marriage of provisions relating to the payment or transfer at the decedent’s death of the nonprobate asset, received within a time after the decedent’s death and before the purchase or receipt that is sufficient to afford the person purchasing or receiving the nonprobate asset reasonable opportunity to act upon the knowledge. Receipt of the personal knowledge or possession of the documents for a period of more than thirty days is presumed to be received within a time that is sufficient to afford the payor or third party a reasonable opportunity to act upon the knowledge, but receipt of the notice for a period of less than five business days is presumed not to be a sufficient time for these purposes. These presumptions may be rebutted only by clear and convincing evidence to the contrary. (5) As used in this section, "nonprobate asset" means those rights and interests of a person having beneficial ownership of an asset that pass on the person’s death under only the following written instruments or arrangements other than the decedent’s will: (a) A payable-on-death provision of a life insurance policy, employee benefit plan, annuity or similar contract, or individual retirement account, unless provided otherwise by controlling federal law; (2006 Ed.) Escheats (b) A payable-on-death, trust, or joint with right of survivorship bank account; (c) A trust of which the person is a grantor and that becomes effective or irrevocable only upon the person’s death; or (d) Transfer on death beneficiary designations of a transfer on death or pay on death security, if such designations are authorized under Washington law. For the general definition in this title of "nonprobate asset," see RCW 11.02.005(15) and for the definition of "nonprobate asset" relating to testamentary disposition of nonprobate assets, see RCW 11.11.010(7). (6) This section is remedial in nature and applies as of July 25, 1993, to decrees of dissolution and declarations of invalidity entered after July 24, 1993, and this section applies as of January 1, 1995, to decrees of dissolution and declarations of invalidity entered before July 25, 1993. [2002 c 18 § 1; 1998 c 292 § 118; 1997 c 252 § 2; 1994 c 221 § 2; 1993 c 236 § 1.] Part headings and section captions not law—Effective dates—1998 c 292: See RCW 11.11.902 and 11.11.903. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.08.120 Social security benefits, payment to survivors or secretary of social and health services: RCW 11.66.010. State land acquired by escheat, management: RCW 79.10.030. Unclaimed estate, disposition: RCW 11.76.220. Uniform unclaimed property act: Chapter 63.29 RCW. 11.08.101 11.08.101 Property of deceased inmates of state institutions—Disposition after two years. Where, upon the expiration of two years after the death of any inmate of any state institution, there remains in the custody of the superintendent of such institution, money or property belonging to said deceased inmate, the superintendent shall forward such money to the state treasurer for deposit in the general fund of the state, and shall report such transfer and any remaining property to the department of corrections, which department shall cause the sale of such property and proceeds thereof shall be forwarded to the state treasurer for deposit in the general fund. [1981 c 136 § 58; 1979 c 141 § 10; 1965 c 145 § 11.08.101. Prior: 1951 c 138 § 1; prior: 1923 c 113 § 1; RRS § 1363-1.] Effective date—1981 c 136: See RCW 72.09.900. Abandoned inmate personal property: RCW 63.42.030, 63.42.040. State institutions: Title 72 RCW. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.08.111 Chapter 11.08 Chapter 11.08 RCW ESCHEATS Sections 11.08.101 11.08.111 11.08.120 11.08.140 11.08.150 11.08.160 11.08.170 11.08.180 11.08.185 11.08.200 11.08.205 11.08.210 11.08.220 11.08.230 11.08.240 11.08.250 11.08.260 11.08.270 11.08.280 11.08.290 11.08.300 Property of deceased inmates of state institutions—Disposition after two years. Property of deceased inmates of state institutions—Disposition within two years. Property of deceased inmates of state institutions—Sale—Disposition of proceeds. Escheat for want of heirs. Title to property vests in state at death of owner. Department of revenue—Jurisdiction—Duties. Probate of escheat property—Notice to department of revenue. Department of revenue to be furnished copies of documents and pleadings. Escheat property—Records of department of revenue—Public record information. Liability for use of escheated property. Lease, sublease, or rental of escheated real property—Authorized—Expenses—Distribution of proceeds. Allowance of claims, expenses, partial fees—Sale of property—Decree of distribution. Certified copies of decree—Department of natural resources duties. Appearance and claim of heirs—Notices to department of revenue. Limitation on filing claim. Order of court on establishment of claim—Park lands— Appraisal. Payment of escheated funds to claimant. Conveyance of escheated property to claimant. Limitation when claimant is minor or incompetent not under guardianship. Deposit of cash received by personal representative of escheat estate. Transfer of property to department of revenue. Action to recover property forfeited to state: RCW 7.56.120. Banks, disposition of unclaimed personalty: RCW 30.44.150, 30.44.180 through 30.44.230. Escheat of postal savings system accounts: Chapter 63.48 RCW. Permanent common school fund, escheats as source of: RCW 28A.515.300. Savings and loan associations, escheats: RCW 33.20.130, 33.40.110. (2006 Ed.) 11.08.111 Property of deceased inmates of state institutions—Disposition within two years. Prior to the expiration of the two-year period provided for in RCW 11.08.101, the superintendent may transfer such money or property in his possession, upon request and satisfactory proof submitted to him, to the following designated persons: (1) To the personal representative of the estate of such deceased inmate; or (2) To the successor or successors defined in RCW 11.62.005, where such money and property does not exceed the amount specified in RCW 6.13.030, and the successor or successors shall have furnished proof of death and an affidavit made by said successor or successors meeting the requirements of RCW 11.62.010; or (3) In the case of money, to the person who may have deposited such money with the superintendent for the use of the decedent, where the sum involved does not exceed one thousand dollars; or (4) To the department of social and health services, when there are moneys due and owing from such deceased person’s estate for the cost of his care and maintenance at a state institution: PROVIDED, That transfer of such money or property may be made to the person first qualifying under this section and such transfer shall exonerate the superintendent from further responsibility relative to such money or property: AND PROVIDED FURTHER, That upon satisfactory showing the funeral expenses of such decedent are unpaid, the superintendent may pay up to one thousand dollars from said deceased inmate’s funds on said obligation. [1990 c 225 § 2; 1973 1st ex.s. c 76 § 1; 1965 c 145 § 11.08.111. Prior: 1959 c 240 § 1; 1951 c 138 § 2.] Abandoned inmate personal property: RCW 63.42.030, 63.42.040. 11.08.120 11.08.120 Property of deceased inmates of state institutions—Sale—Disposition of proceeds. The property, other than money, of such deceased inmate remaining in the [Title 11 RCW—page 9] 11.08.140 Title 11 RCW: Probate and Trust Law custody of a superintendent of a state institution after the expiration of the above two-year period may be forwarded to the department of corrections at its request and may be appraised and sold at public auction to the highest bidder in the manner and form as provided for public sales of personal property, and all moneys realized upon such sale, after deducting the expenses thereof, shall be paid into the general fund of the state treasury. [1981 c 136 § 59; 1979 c 141 § 11; 1965 c 145 § 11.08.120. Prior: 1951 c 138 § 3; prior: 1923 c 113 § 2; RRS § 1363-2.] Effective date—1981 c 136: See RCW 72.09.900. Abandoned inmate personal property: RCW 63.42.030, 63.42.040. 11.08.140 11.08.140 Escheat for want of heirs. Whenever any person dies, whether a resident of this state or not, leaving property subject to the jurisdiction of this state and without being survived by any person entitled to the same under the laws of this state, such property shall be designated escheat property and shall be subject to the provisions of RCW 11.08.140 through 11.08.280. [1965 c 145 § 11.08.140. Prior: 1955 c 254 § 2.] 11.08.150 11.08.150 Title to property vests in state at death of owner. Title to escheat property, which shall include any intangible personalty, shall vest in the state at the death of the owner thereof. [1965 c 145 § 11.08.150. Prior: 1955 c 254 § 3.] 11.08.160 11.08.160 Department of revenue—Jurisdiction— Duties. The department of revenue of this state shall have supervision of and jurisdiction over escheat property and may institute and prosecute any proceedings, including any proceeding under chapter 11.62 RCW, deemed necessary or proper in the handling of such property, and it shall be the duty of the department of revenue to protect and conserve escheat property for the benefit of the permanent common school fund of the state until such property or the proceeds thereof have been forwarded to the state treasurer or the department of natural resources as hereinafter provided. [1988 c 128 § 1; 1988 c 64 § 23; 1975 1st ex.s. c 278 § 1; 1965 c 145 § 11.08.160. Prior: 1955 c 254 § 4.] Reviser’s note: This section was amended by 1988 c 64 § 23 and by 1988 c 128 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section pursuant to RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Captions—Severability—1988 c 64: See RCW 83.100.904 and 83.100.905. cial administration or otherwise, the petitioner shall promptly notify the department of revenue in writing thereof on forms furnished by the department of revenue to the county clerks. Thereafter, the department of revenue shall be served with written notice at least twenty days prior to any hearing on proceedings involving the valuation or sale of property, on any petition for the allowance of fees, and on all interim reports, final accounts or petitions for the determination of heirship. Like notice shall be given of the presentation of any claims to the court for allowance. Failure to furnish such notice shall be deemed jurisdictional and any order of the court entered without such notice shall be void. The department of revenue may waive the provisions of this section in its discretion. The department shall be deemed to have waived its right to administer in such probate proceedings under RCW 11.28.120(5) unless application for appointment of the director or the director’s designee is made within forty days immediately following receipt of notice of institution of proceedings. [1994 c 221 § 3; 1990 c 225 § 1; 1975 1st ex.s. c 278 § 2; 1965 c 145 § 11.08.170. Prior: 1955 c 254 § 5.] Effective dates—1994 c 221: See note following RCW 11.94.070. Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. 11.08.180 Department of revenue to be furnished copies of documents and pleadings. The department of revenue may demand copies of any papers, documents or pleadings involving the escheat property or the probate thereof deemed by it to be necessary for the enforcement of RCW 11.08.140 through 11.08.280 and it shall be the duty of the administrator or his attorney to furnish such copies to the department. [1975 1st ex.s. c 278 § 3; 1965 c 145 § 11.08.180. Prior: 1955 c 254 § 6.] 11.08.180 Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. 11.08.185 Escheat property—Records of department of revenue—Public record information. All records of the department of revenue relating to escheated property or property about to escheat shall be a public record and shall be made available by the department of revenue for public inspection. Without limitation, the records to be made public shall include all available information regarding possible heirs, descriptions and amounts of property escheated or about to escheat, and any information which might serve to identify the proper heirs. [1973 c 25 § 1.] 11.08.185 11.08.200 Liability for use of escheated property. If any person shall take possession of escheat property without proper authorization to do so, and shall have the use thereof for a period exceeding sixty days, he shall be liable to the state for the reasonable value of such use, payment of which may be enforced by the department of revenue or by the administrator of the estate. [1975 1st ex.s. c 278 § 4; 1965 c 145 § 11.08.200. Prior: 1955 c 254 § 8.] 11.08.200 Severability—1975 1st ex.s. c 278: "If any provision of this 1975 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1975 1st ex.s. c 278 § 215.] Construction—1975 1st ex.s. c 278: "The legislature hereby reaffirms its singular intent under this amendatory act to change the designation of the state tax commission to the department of revenue or the board of tax appeals, as the case may be, and to make explicit its intent that no rights, duties, obligations or benefits, of whatsoever kind, are to be construed as changed as a result of the enactment hereof." [1975 1st ex.s. c 278 § 217.] Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. 11.08.170 11.08.170 Probate of escheat property—Notice to department of revenue. Escheat property may be probated under the provisions of the probate laws of this state. Whenever such probate proceedings are instituted, whether by spe[Title 11 RCW—page 10] 11.08.205 Lease, sublease, or rental of escheated real property—Authorized—Expenses—Distribution of proceeds. (1) The department of natural resources shall have the 11.08.205 (2006 Ed.) Escheats authority to lease real property from the administrator of an estate being probated under the escheat provisions, RCW 11.08.140 to 11.08.280. (2) The department of natural resources shall have the authority to sublease or rent the real property, it has leased under subsection (1) of this section, during the period that the real property is under the authority of the court appointed administrator. (3) Any moneys gained by the department of natural resources from leases or rentals shall be credited to an escheat reserve account bearing the name of the estate. (4) The department of natural resources shall have the authority to expend moneys to preserve and maintain the real property during the probate period. (5) Any expenses by the department of natural resources in preserving or maintaining the real property may be paid as follows: (a) First, the expenses shall be charged to the escheat reserve account bearing the name of the estate; and (b) Second, if the expenses exceed the escheat reserve account, then the expenses shall be paid as follows: (i) If the land is distributed to the state by the administrator, the expenses shall be paid out of the sale price of the land as later sold by the department of natural resources, or shall be paid out of the general fund if the land is held for use by the state; or (ii) If the land is distributed to the heirs by the administrator, the expenses shall be borne by the estate. (6) Upon the final distribution of the real property, the escheat reserve account shall be closed out as follows: (a) If the real property is distributed to the state, the balance of the account shall be paid into the permanent common school fund of the state; or (b) If the real property is distributed to the heirs, the balance of the account shall be paid to the estate. [1969 ex.s. c 249 § 1.] 11.08.210 Allowance of claims, expenses, partial fees—Sale of property—Decree of distribution. If at the expiration of four months from the date of the first publication of notice to creditors no heirs have appeared and established their claim to the estate, the court may enter an interim order allowing claims, expenses, and partial fees. If at the expiration of ten months from the date of issuance of letters testamentary or of administration no heirs have appeared and established their claim to the estate, all personal property not in the form of cash shall be sold under order of the court. Personal property found by the court to be worthless shall be ordered abandoned. Real property shall not be sold for the satisfaction of liens thereon, or for the payment of the debts of decedent or expenses of administration until the proceeds of the personal property are first exhausted. The court shall then enter a decree allowing any additional fees and charges deemed proper and distributing the balance of the cash on hand, together with any real property, to the state. Remittance of cash on hand shall be made to the department of revenue which shall make proper records thereof and forthwith forward such funds to the state treasurer for deposit in the permanent common school fund of the state. [1979 ex.s. c 209 § 19; 1975 1st ex.s. c 278 § 5; 1965 c 145 § 11.08.210. Prior: 1955 c 254 § 9.] 11.08.210 (2006 Ed.) 11.08.250 Effective date—Applicability—Severability—1979 ex.s. c 209: See notes following RCW 83.04.010. Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. 11.08.220 11.08.220 Certified copies of decree—Department of natural resources duties. The department of revenue shall be furnished two certified copies of the decree of the court distributing any real property to the state, one of which shall be forwarded to the department of natural resources which shall thereupon assume supervision of and jurisdiction over such real property and thereafter handle it the same as state common school lands. The administrator shall also file a certified copy of the decree with the auditor of any county in which the escheated real property is situated. [1988 c 128 § 2; 1975 1st ex.s. c 278 § 6; 1965 c 145 § 11.08.220. Prior: 1957 c 125 § 1; 1955 c 254 § 10.] Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. Management of acquired lands by department of natural resources: RCW 79.10.030. 11.08.230 11.08.230 Appearance and claim of heirs—Notices to department of revenue. Upon the appearance of heirs and the establishment of their claim to the satisfaction of the court prior to entry of the decree of distribution to the estate, the provisions of RCW 11.08.140 through 11.08.280 shall not further apply, except for purposes of appeal: PROVIDED, That the department of revenue shall be promptly given written notice of such appearance by the claimants and furnished copies of all papers or documents on which such claim of heirship is based. Any documents in a foreign language shall be accompanied by translations made by a properly qualified translator, certified by him to be true and correct translations of the original documents. The administrator or his attorney shall also furnish the department of revenue with any other available information bearing on the validity of the claim. [1975 1st ex.s. c 278 § 7; 1965 c 145 § 11.08.230. Prior: 1955 c 254 § 11.] Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. 11.08.240 11.08.240 Limitation on filing claim. Any claimant to escheated funds or real property shall have seven years from the date of issuance of letters testamentary or of administration within which to file his claim. Such claim shall be filed with the court having original jurisdiction of the estate, and a copy thereof served upon the department of revenue, together with twenty days notice of the hearing thereon. [1975 1st ex.s. c 278 § 8; 1965 c 145 § 11.08.240. Prior: 1955 c 254 § 12.] Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. 11.08.250 11.08.250 Order of court on establishment of claim— Park lands—Appraisal. Upon establishment of the claim to the satisfaction of the court, it shall order payment to the claimant of any escheated funds and delivery of any escheated land, or the proceeds thereof, if sold. If, however, the escheated property shall have been transferred to the state parks and recreation commission or local jurisdiction for park [Title 11 RCW—page 11] 11.08.260 Title 11 RCW: Probate and Trust Law purposes, the court shall order payment to the claimant for the fair market value of the property at the time of transfer, excluding the value of physical improvements to the property while managed by a state agency or local jurisdiction. The value shall be established by independent appraisal obtained by the department of revenue. [1993 c 49 § 2; 1965 c 145 § 11.08.250. Prior: 1955 c 254 § 13.] Park land: RCW 79.10.030. 11.08.260 11.08.260 Payment of escheated funds to claimant. In the event the order of the court requires the payment of escheated funds or the proceeds of the sale of escheated real property or the appraised value of escheated property transferred for park purposes, a certified copy of such order shall be served upon the department of revenue which shall thereupon take any steps necessary to effect payment to the claimant out of the general fund of the state. [1993 c 49 § 3; 1975 1st ex.s. c 278 § 9; 1965 c 145 § 11.08.260. Prior: 1955 c 254 § 14.] Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. 11.08.270 11.08.270 Conveyance of escheated property to claimant. In the event the order of the court requires the delivery of real property to the claimant, a certified copy of such order shall be served upon the department of natural resources which shall thereupon make proper certification to the office of the governor for issuance of a quitclaim deed for the property to the claimant. [1988 c 128 § 3; 1965 c 145 § 11.08.270. Prior: 1955 c 254 § 15.] 11.08.280 11.08.280 Limitation when claimant is minor or incompetent not under guardianship. The claims of any persons to escheated funds or real property which are not filed within seven years as specified above are forever barred, excepting as to those persons who are minors or who are legally incompetent and not under guardianship, in which event the claim may be filed within seven years after their disability is removed. [1965 c 145 § 11.08.280. Prior: 1955 c 254 § 16.] 11.08.290 11.08.290 Deposit of cash received by personal representative of escheat estate. All cash received by the personal representative of an escheat estate shall be immediately deposited at interest for the benefit of the estate in a federally insured time or savings deposit or share account, except that the personal representative may maintain an amount not to exceed two hundred fifty dollars in a checking account. This arrangement may be changed by appropriate court order. [1979 ex.s. c 209 § 18.] Effective date—Applicability—Severability—1979 ex.s. c 209: See notes following RCW 83.04.010. 11.08.300 11.08.300 Transfer of property to department of revenue. Escheat property may be transferred to the department of revenue under the provisions of RCW 11.62.005 through 11.62.020. The department of revenue shall furnish proof of death and an affidavit made by the department which meets the requirements of RCW 11.62.010 to any person who is indebted to or has possession of any personal property [Title 11 RCW—page 12] belonging to the decedent or to the decedent and his or her surviving spouse as a community, which debt or personal property is an asset which is subject to probate. Upon receipt of such proof of death and affidavit, the person shall pay the indebtedness or deliver the personal property, or as much of either as is claimed, to the department of revenue pursuant to RCW 11.62.010. The department of revenue shall file a copy of its affidavit made pursuant to chapter 11.62 RCW with the clerk of the court where any probate administration of the decedent has been commenced, or, if no probate administration has been commenced, then with the clerk of the court of any county provided by law as a place for probate administration of the estate of such person. The affidavit shall be indexed under the name of the decedent in the probate index upon payment of a fee of two dollars. Any claimant to escheated funds shall have seven years from the filing of the affidavit by the department of revenue within which to file the claim. The claim shall be filed with the clerk of the court where the affidavit of the department of revenue was filed, and a copy served upon the department of revenue, together with twenty days notice of a hearing to be held thereon, and the provisions of RCW 11.08.250 through 11.08.280 shall apply. [1990 c 225 § 3.] Chapter 11.10 Chapter 11.10 RCW ABATEMENT OF ASSETS Sections 11.10.010 11.10.020 11.10.030 11.10.040 11.10.900 Abatement—Generally. Gift from mixed separate and community property. Allocation of separate and community assets. Nonprobate assets. Application of chapter. 11.10.010 11.10.010 Abatement—Generally. (1) Except as provided in subsection (2) of this section, property of a decedent abates, without preference as between real and personal property, in the following order: (a) Intestate property; (b) Residuary gifts; (c) General gifts; (d) Specific gifts. For purposes of abatement a demonstrative gift, defined as a general gift charged on any specific property or fund, is deemed a specific gift to the extent of the value of the property or fund on which it is charged, and a general gift to the extent of a failure or insufficiency of that property or fund. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will. (2) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (1) of this section, a gift abates as may be found necessary to give effect to the intention of the testator. (3) If the subject of a preferred gift is sold, diminished, or exhausted incident to administration, not including satisfaction of debts or liabilities according to their community or separate status under RCW 11.10.030, abatement must be (2006 Ed.) Testamentary Disposition of Nonprobate Assets Act achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets. (4) To the extent that the whole of the community property is subject to abatement, the shares of the decedent and of the surviving spouse in the community property abate equally. (5) If required under RCW 11.10.040, nonprobate assets must abate with those disposed of under the will and passing by intestacy. [1994 c 221 § 5.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.10.020 11.10.020 Gift from mixed separate and community property. To the extent that a gift is to be satisfied out of a source that consists of both separate and community property, unless otherwise indicated in the will it is presumed to be a gift from separate and community property in proportion to their relative value in the property or fund from which the gift is to be satisfied. [1994 c 221 § 6.] 11.11.003 limited to, joint tenancies and payable-on-death accounts, are categorized as specific bequests. (b) With respect to all other interests passing under nonprobate forms of transfer, each must be categorized in the manner that is most closely comparable to the nature of the transfer of that interest. (3) If and to the extent that a nonprobate asset is subject to the same obligations as are assets disposed of under the decedent’s will, the nonprobate assets abate ratably with the probate assets, within the categories set out in subsection (2) of this section. (4) If the nonprobate instrument of transfer or the decedent’s will expresses a different order of abatement, or if the decedent’s overall dispositive plan or the express or implied purpose of the transfer would be defeated by the order of abatement stated in subsections (1) through (3) of this section, the nonprobate assets abate as may be found necessary to give effect to the intention of the decedent. [1994 c 221 § 8.] Effective dates—1994 c 221: See note following RCW 11.94.070. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.10.030 11.10.030 Allocation of separate and community assets. (1) A community debt or liability is charged against the entire community property, with the surviving spouse’s half and the decedent spouse’s half charged equally. (2) A separate debt or liability is charged first against separate property, and if that is insufficient against the balance of decedent’s half of community property remaining after community debts and liabilities are satisfied. (3) A community debt or liability that is also the separate debt or liability of the decedent is charged first against the whole of the community property and then against the decedent’s separate property. (4) An expense of administration is charged against the separate property and the decedent’s half of the community property in proportion to the relative value of the property, unless a different charging of expenses is shown to be appropriate under the circumstances including against the surviving spouse’s share of the community property. (5) Property of a similar type, community or separate, is appropriated in accordance with the abatement priorities of RCW 11.10.010. (6) Property that is primarily chargeable for a debt or liability is exhausted, in accordance with the abatement priorities of RCW 11.10.010, before resort is had, also in accordance with RCW 11.10.010, to property that is secondarily chargeable. [1994 c 221 § 7.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.10.040 11.10.040 Nonprobate assets. (1) If abatement is necessary among takers of a nonprobate asset, the court shall adopt the abatement order and limitations set out in RCW 11.10.010, 11.10.020, and 11.10.030, assigning categories in accordance with subsection (2) of this section. (2) A nonprobate transfer must be categorized for purposes of abatement, within the list of priorities set out in RCW 11.10.010(1), as follows: (a) All nonprobate forms of transfer under which an identifiable nonprobate asset passes to a beneficiary or beneficiaries on the event of the decedent’s death, such as, but not (2006 Ed.) 11.10.900 11.10.900 Application of chapter. This chapter applies in all instances in which no other abatement scheme is expressly provided. [1994 c 221 § 4.] Effective dates—1994 c 221: See note following RCW 11.94.070. Chapter 11.11 Chapter 11.11 RCW TESTAMENTARY DISPOSITION OF NONPROBATE ASSETS ACT Sections 11.11.003 11.11.005 11.11.007 11.11.010 11.11.020 11.11.030 11.11.040 11.11.050 11.11.060 11.11.070 11.11.080 11.11.090 11.11.100 11.11.110 11.11.900 11.11.901 11.11.902 11.11.903 Purposes. Construction. Intent—Controversies between beneficiaries and testamentary beneficiaries. Definitions. Disposition of nonprobate assets under will. Waiver of right to dispose of a nonprobate asset under will— Revocation of waiver. Right to rely on form of nonprobate asset—Discharge of financial institution or other third party. Notice—Affidavit—Form—Limitation on liability for failure to provide notice. Vesting of rights and powers under chapter. Ownership rights as between individuals preserved— Testamentary beneficiary may recover nonprobate asset from beneficiary—Limitation on action to recover. Nonprobate assets not property of estate—Effect of notice on administration—Effect of preceding death of devisee or legatee. Transfer of nonprobate asset to testamentary beneficiary. Authority to withhold transfer—Notice—Expenses of obtaining consent, authorization, direction. Adverse claim bond. Short title. Application of chapter. Part headings and section captions not law—1998 c 292. Effective dates—1998 c 292. 11.11.003 11.11.003 Purposes. The purposes of this chapter are to: (1) Enhance and facilitate the power of testators to control the disposition of assets that pass outside their wills; (2) Provide simple procedures for resolution of disputes regarding entitlement to such assets; and (3) Protect any financial institution or other third party having possession of or control over such an asset and trans[Title 11 RCW—page 13] 11.11.005 Title 11 RCW: Probate and Trust Law ferring it to a beneficiary duly designated by the testator, unless that third party has been provided notice of a testamentary disposition as required in this chapter. [1998 c 292 § 102.] 11.11.005 11.11.005 Construction. (1) When construing sections and provisions of this chapter, the sections and provisions must: (a) Be liberally construed and applied to promote the purposes of this chapter; (b) Be considered part of a general act that is intended as unified coverage of the subject matter, and no part of this chapter may be deemed impliedly repealed by subsequent legislation if the construction can be reasonably avoided; (c) Not be held invalid because of the invalidity of other sections or provisions of this chapter as long as the section or provision in question can be given effect without regard to the invalid section or provision, and to this end the sections or provisions of this chapter are severable; (d) Not be construed by reference to section or subsection headings as used in this chapter, since these do not constitute any part of the law; (e) Not be deemed to alter the community or separate property nature of any asset passing outside a testator’s will or any individual’s community or separate rights to the asset, and a testator’s community or separate property rights to the asset are not affected by whether it passes outside the will or, under this chapter, by disposition under the will; and (f) Not be construed as authorizing or extending the authority of any financial institution or other third party to sell or otherwise create assets that would pass outside a testator’s will upon such terms as would contravene any other applicable federal or state law. (2) The sections and provisions of this chapter apply to an owner who dies while a resident of this state on or after July 1, 1999, and to a nonprobate asset the disposition of which on the death of the owner would otherwise be governed by the law of this state. [1998 c 292 § 103.] 11.11.007 11.11.007 Intent—Controversies between beneficiaries and testamentary beneficiaries. This chapter is intended to establish ownership rights to nonprobate assets upon the death of the owner, as between beneficiaries and testamentary beneficiaries. This chapter is relevant only as to controversies between these persons, and has no bearing on the right of a person to transfer a nonprobate asset under its terms in the absence of a testamentary provision under this chapter. [1998 c 292 § 107.] 11.11.010 11.11.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1)(a) "Actual knowledge" means: (i) For a financial institution, whether acting as personal representative or otherwise, or other third party in possession or control of a nonprobate asset, receipt of written notice that: (A) Complies with RCW 11.11.050; (B) pertains to the testamentary disposition or ownership of a nonprobate asset in its possession or control; and (C) is received by the financial institution or third party after the death of the owner in a time [Title 11 RCW—page 14] sufficient to afford the financial institution or third party a reasonable opportunity to act upon the knowledge; and (ii) For a personal representative that is not a financial institution, personal knowledge or possession of documents relating to the testamentary disposition or ownership of a nonprobate asset of the owner sufficient to afford the personal representative reasonable opportunity to act upon the knowledge, including reasonable opportunity for the personal representative to provide the written notice under RCW 11.11.050. (b) For the purposes of (a) of this subsection, notice of more than thirty days is presumed to be notice that is sufficient to afford the party a reasonable opportunity to act upon the knowledge, but notice of less than five business days is presumed not to be a sufficient notice for these purposes. These presumptions may be rebutted only by clear and convincing evidence to the contrary. (2) "Beneficiary" means the person designated to receive a nonprobate asset upon the death of the owner by means other than the owner’s will. (3) "Broker" means a person defined as a broker or dealer under the federal securities laws. (4) "Date of will" means, as to any nonprobate asset, the date of signature of the will or codicil that refers to the asset and disposes of it. (5) "Designate" means a written means by which the owner selects a beneficiary, including but not limited to instruments under contractual arrangements and registration of accounts, and "designation" means the selection. (6) "Financial institution" means: A bank, trust company, mutual savings bank, savings and loan association, credit union, broker, or issuer of stock or its transfer agent. (7)(a) "Nonprobate asset" means a nonprobate asset within the meaning of RCW 11.02.005, but excluding the following: (i) A right or interest in real property passing under a joint tenancy with right of survivorship; (ii) A deed or conveyance for which possession has been postponed until the death of the owner; (iii) A right or interest passing under a community property agreement; and (iv) An individual retirement account or bond. (b) For the definition of "nonprobate asset" relating to revocation of a provision for a former spouse upon dissolution of marriage or declaration of invalidity of marriage, see RCW 11.07.010(5). (8) "Owner" means a person who, during life, has beneficial ownership of the nonprobate asset. (9) "Request" means a request by the beneficiary for transfer of a nonprobate asset after the death of the owner, if it complies with all conditions of the arrangement, including reasonable special requirements concerning necessary signatures and regulations of the financial institution or other third party, or by the personal representative of the owner’s estate or the testamentary beneficiary, if it complies with the owner’s will and any additional conditions of the financial institution or third party for such transfer. (10) "Testamentary beneficiary" means a person named under the owner’s will to receive a nonprobate asset under this chapter, including but not limited to the trustee of a testamentary trust. (2006 Ed.) Testamentary Disposition of Nonprobate Assets Act (11) "Third party" means a person, including a financial institution, having possession of or control over a nonprobate asset at the death of the owner, including the trustee of a revocable living trust and surviving joint tenant or tenants. [1998 c 292 § 104.] 11.11.020 11.11.020 Disposition of nonprobate assets under will. (1) Subject to community property rights, upon the death of an owner the owner’s interest in any nonprobate asset specifically referred to in the owner’s will belongs to the testamentary beneficiary named to receive the nonprobate asset, notwithstanding the rights of any beneficiary designated before the date of the will. (2) A general residuary gift in an owner’s will, or a will making general disposition of all of the owner’s property, does not entitle the devisees or legatees to receive nonprobate assets of the owner. (3) A disposition in a will of the owner’s interest in "all nonprobate assets" or of all of a category of nonprobate asset under RCW 11.11.010(7), such as "all of my payable on death bank accounts" or similar language, is deemed to be a disposition of all the nonprobate assets the beneficiaries of which are designated before the date of the will. (4) If the owner designates a beneficiary for a nonprobate asset after the date of the will, the specific provisions in the will that attempt to control the disposition of that asset do not govern the disposition of that nonprobate asset, even if the subsequent beneficiary designation is later revoked. If the owner revokes the later beneficiary designation, and there is no other provision controlling the disposition of the asset, the asset shall be treated as any other general asset of the owner’s estate, subject to disposition under the other applicable provisions of the will. A beneficiary designation with respect to an asset that renews without the signature of the owner is deemed to have been made on the date on which the account was first opened. [2006 c 203 § 1; 1998 c 292 § 105.] 11.11.030 11.11.030 Waiver of right to dispose of a nonprobate asset under will—Revocation of waiver. An owner may waive the right to dispose of a specific nonprobate asset by will under this chapter, with or without consideration, by a written instrument signed by the owner and delivered to the financial institution or other third party, including but not limited to signature cards or deposit agreements. The waiver is revocable by written instrument delivered to the financial institution or other third party unless the owner has stated that the waiver is to be irrevocable. [1998 c 292 § 106.] 11.11.040 11.11.040 Right to rely on form of nonprobate asset—Discharge of financial institution or other third party. In transferring nonprobate assets, a personal representative, a financial institution, or other third party may rely conclusively and entirely upon the form of the nonprobate asset and the terms of the nonprobate asset arrangement in effect on the date of death of the owner, and a personal representative or third party may rely on information provided by a financial institution or other party who has possession or control of a nonprobate asset concerning the form of the nonprobate asset and the terms of the nonprobate asset arrangement in effect on the date of death of the owner, unless the (2006 Ed.) 11.11.050 personal representative, financial institution, or other third party has actual knowledge of the existence of a claim by a testamentary beneficiary. A financial institution or other third party is not required to inquire as to either the source or ownership of any nonprobate asset in its possession or under its control, or as to the proposed application of an asset so transferred. A transfer of a nonprobate asset in accordance with this section constitutes a complete release and discharge of the financial institution or other third party from all claims relating to the nonprobate asset, regardless of whether or not the transfer is consistent with the actual ownership of the nonprobate asset. [2006 c 203 § 2; 1998 c 292 § 108.] 11.11.050 11.11.050 Notice—Affidavit—Form—Limitation on liability for failure to provide notice. (1) Written notice under this chapter must be served personally or by certified mail, return receipt requested and postage prepaid, on the financial institution or other third party having the nonprobate asset in its possession or control, on the beneficiary, on the testamentary beneficiary, and on the personal representative, and proof of the mailing or service must be made by affidavit and filed under the cause number assigned to the owner’s estate. Notice to a financial institution must include notice delivered as follows: (a) If the nonprobate asset was maintained at a specific office of the financial institution, notice must be delivered to the office at which the nonprobate asset was maintained, which notice must be directed to the manager of the office; (b) If the nonprobate asset was held in a trust administered by a financial institution, notice must be delivered to the office at which the trust was administered, which notice must be directed to a named officer responsible for the administration of the trust; and (c) In all cases, notice must be delivered to any other location and in any other manner specifically designated in a written agreement signed by the owner and the financial institution, including but not limited to a signature card or deposit agreement. (2) Written notice to a financial institution or other third party of the testamentary disposition of a nonprobate asset under this chapter must be in a form substantially similar to the following: NOTICE OF TESTAMENTARY DISPOSITION OF NONPROBATE ASSET The undersigned personal representative, petitioner for appointment as personal representative, attorney for the personal representative or petitioner, or testamentary beneficiary under the will of the decedent named above (as that term is defined in RCW 11.11.010) hereby notifies you that the decedent named above died on (DATE MUST BE SUPPLIED) and left a will dated (DATE OF WILL MUST BE SUPPLIED) disposing of the following nonprobate asset or assets in your possession or control: (EACH SUCH ASSET MUST BE DESCRIBED WITH REASONABLE SPECIFICITY. FOR ACCOUNTS AT FINANCIAL INSTITUTIONS, THE WRITTEN NOTICE MUST SPECIFY THE [Title 11 RCW—page 15] 11.11.060 Title 11 RCW: Probate and Trust Law OFFICE AT WHICH THE ACCOUNT WAS MAINTAINED, THE NAME OR NAMES IN WHICH THE ACCOUNT WAS HELD, AND THE FULL ACCOUNT NUMBER. FOR ASSETS HELD IN TRUST, THE WRITTEN NOTICE MUST SPECIFY THE NAME OR NAMES OF THE GRANTOR, THE NAME OF THE TRUST, IF ANY, AND THE DATE OF THE TRUST INSTRUMENT.) Under chapter 11.11 RCW, you may not transfer, deliver, or otherwise dispose of the asset or assets listed above in accordance with the beneficiary designation, account registration, or other arrangement made with you by the decedent. You may transfer, deliver, or otherwise dispose of the asset or assets listed above only upon receipt of the written direction of the personal representative or of the testamentary beneficiary, if the personal representative consents. ........................ ........................ (CAPACITY OF SIGNER) (3) The personal representative of the estate of the owner, a petitioner for appointment as personal representative, or the testamentary beneficiary may provide written notice under this section. The personal representative has no duty to provide written notice under this section and has no liability for failing or refusing to give the notice. (4) Written notice under this section may be provided at any time after the death of the owner and before discharge of the personal representative on closing of the estate, and may be provided before admission to probate of the will. [1998 c 292 § 109.] 11.11.060 11.11.060 Vesting of rights and powers under chapter. The right to provide notice under RCW 11.11.050 and the entitlement of the testamentary beneficiary to the nonprobate asset vest immediately upon death of the owner. The power of the personal representative to direct the financial institution or other third party having the nonprobate asset in its possession or under its control to transfer or otherwise dispose of the asset arises upon the later of appointment of the personal representative or admission of the will to probate. [1998 c 292 § 110.] 11.11.070 11.11.070 Ownership rights as between individuals preserved—Testamentary beneficiary may recover nonprobate asset from beneficiary—Limitation on action to recover. (1) The protection accorded to financial institutions and other third parties under RCW 11.11.040 has no bearing on the actual rights of ownership to nonprobate assets as between beneficiaries and testamentary beneficiaries, and their heirs, successors, personal representatives, and assigns. (2) A testamentary beneficiary entitled to a nonprobate asset otherwise transferred to a beneficiary not so entitled, and a personal representative of the owner’s estate on behalf of the testamentary beneficiary, may petition the superior court having jurisdiction over the owner’s estate for an order declaring that the testamentary beneficiary is so entitled, the [Title 11 RCW—page 16] hearing of the petition to be held in accordance with *chapter 11.96 RCW. (3) A testamentary beneficiary claiming a nonprobate asset who has not filed such a petition within the earlier of: (a) Six months from the date of admission of the will to probate; and (b) one year from the date of the owner’s death, shall be forever barred from making such a claim or commencing such an action. [1998 c 292 § 111.] *Reviser’s note: Chapter 11.96 RCW was repealed by 1999 c 42 § 637, effective January 1, 2000. 11.11.080 11.11.080 Nonprobate assets not property of estate— Effect of notice on administration—Effect of preceding death of devisee or legatee. (1) Notwithstanding any provision of this chapter, a nonprobate asset disposed of under the owner’s will may not be treated as a part of the owner’s probate estate for any other purpose under this title, unless: (a) The nonprobate asset is subject to liabilities and claims, estate taxes, and expenses of administration under RCW 11.18.200; or (b) Any section of this title directs otherwise, by specifically referring to this section. (2) Provision of notice under this chapter has no effect on the administration of other assets of the estate of the owner. The personal representative has no duty to administer upon a nonprobate asset because of providing the notice, unless specifically required by this chapter or under RCW 11.18.200. (3) RCW 11.12.110, regarding death of a devisee or legatee before the testator, does not apply to disposition of a nonprobate asset under a will. [1998 c 292 § 112.] 11.11.090 11.11.090 Transfer of nonprobate asset to testamentary beneficiary. (1) A financial institution’s or third party’s obligation to transfer a nonprobate asset to a testamentary beneficiary arises only after it has actual knowledge of the claim of the testamentary beneficiary, and after receiving written direction from the personal representative of the owner’s estate, or if the personal representative consents in writing, from the testamentary beneficiary, to make the transfer. The financial institution may also require that its customary procedures be followed in effectuating a transfer of the nonprobate asset. (2) Subject to subsection (1) of this section, financial institutions and other third parties may transfer a nonprobate asset that has not already been distributed to the testamentary beneficiary entitled to the nonprobate asset under the owner’s will, subject to liabilities and claims, estate taxes, and expenses of administration under RCW 11.18.200. [1998 c 292 § 113.] 11.11.100 11.11.100 Authority to withhold transfer—Notice— Expenses of obtaining consent, authorization, direction. (1) This chapter does not require any financial institution or other third party to transfer a nonprobate asset to a beneficiary, testamentary beneficiary, or other person claiming an interest in the nonprobate asset if the financial institution or third party has actual knowledge of the existence of a dispute between beneficiaries, testamentary beneficiaries, or other persons concerning rights or ownership to the nonprobate (2006 Ed.) Wills asset under this chapter, or if the financial institution or third party is otherwise uncertain as to who is entitled to receive the nonprobate asset under this chapter. In any such case, the financial institution or third party may, without liability, notify in writing all beneficiaries, testamentary beneficiaries, or other persons claiming an interest in the nonprobate asset of either its uncertainty as to who is entitled to transfer of the nonprobate asset or the existence of any dispute, and it may also, without liability, refuse to transfer a nonprobate asset to a beneficiary or a testamentary beneficiary until such time as either: (a) All the beneficiaries, testamentary beneficiaries, and other interested persons have consented in writing to the transfer; or (b) The transfer is authorized or directed by a court of proper jurisdiction. (2) The expense of obtaining the written consent or court authorization or direction may, by order of the court, be paid by the personal representative as an expense of administration. [1998 c 292 § 114.] 11.12.025 Chapter 11.12 Sections 11.12.010 11.12.020 11.12.025 11.12.030 11.12.040 11.12.051 11.12.060 11.12.070 11.12.080 11.12.091 11.12.095 11.12.110 11.12.120 11.12.160 11.12.170 11.12.180 11.12.185 11.12.190 11.12.220 11.12.230 11.12.250 11.12.255 11.12.260 11.11.110 11.11.110 Adverse claim bond. Notwithstanding RCW 11.11.100, a financial institution or other third party having actual knowledge of the existence of a dispute between beneficiaries, a testamentary beneficiary, or other persons concerning rights to a nonprobate asset under this chapter may condition transfer of the nonprobate asset on execution, in form and with security acceptable to the financial institution or other third party, of a bond in an amount that is double the fair market value of the nonprobate asset on the date of the owner’s death or the amount of any adverse claim, whichever is the lesser, indemnifying the financial institution or other third party from any and all liability, loss, damage, costs, and expenses, for and on account of transfer of the nonprobate asset. [1998 c 292 § 115.] 11.11.900 11.11.900 Short title. This chapter may be known and cited as the testamentary disposition of nonprobate assets act. [1998 c 292 § 101.] 11.11.901 11.11.901 Application of chapter. This chapter applies to any will of an owner who dies while a resident of this state on or after July 1, 1999, regardless of whether the will was executed or republished before or after July 1, 1999, and regardless of whether the beneficiary of the nonprobate asset was designated before or after July 1, 1999. [1998 c 292 § 116.] 11.11.902 11.11.902 Part headings and section captions not law—1998 c 292. Part headings and section captions used in this act are not any part of the law. [1998 c 292 § 601.] 11.11.903 11.11.903 Effective dates—1998 c 292. (1) Sections 101 through 116 and 118 of this act take effect July 1, 1999. (2) Sections 117, 201 through 205, 301, 401, 501 through 507, and 604 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately [April 2, 1998]. [1998 c 292 § 603.] (2006 Ed.) Chapter 11.12 RCW WILLS 11.12.265 Who may make a will. Requisites of wills—Foreign wills. Nuncupative wills. Signature of testator at his direction—Signature by mark. Revocation of will—How effected—Effect on codicils. Dissolution or invalidation of marriage. Agreement to convey does not revoke. Devise or bequeathal of property subject to encumbrance. Revocation of later will or codicil—Effect—Evidence. Omitted child. Omitted spouse. Death of grandparent’s issue before grantor. Lapsed gift—Procedure and proof. Interested witness—Effect on will. Devise of land, what passes. Rule in Shelley’s Case abolished—Future distribution or interest to heirs. Doctrine of Worthier Title abolished—Exception. Will to operate on after-acquired property. No interest on devise unless will so provides. Intent of testator controlling. Gift to trust. Incorporation by reference. Separate writing may direct disposition of tangible personal property—Requirements. Filing of original will with court before death of testator. 11.12.010 Who may make a will. Any person of sound mind who has attained the age of eighteen years may, by last will, devise all his or her estate, both real and personal. All wills executed subsequent to September 16, 1940, and which meet the requirements of this section are hereby validated and shall have all the force and effect of wills executed subsequent to the taking effect of this section. [1970 ex.s. c 17 § 3; 1965 c 145 § 11.12.010. Prior: 1943 c 193 § 1; 1917 c 156 § 24; Rem. Supp. 1943 § 1394; prior: Code 1881 § 1318; 1863 p 207 § 51; 1860 p 169 § 18.] 11.12.010 11.12.020 Requisites of wills—Foreign wills. (1) Every will shall be in writing signed by the testator or by some other person under the testator’s direction in the testator’s presence, and shall be attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20.020(2), while in the presence of the testator and at the testator’s direction or request: PROVIDED, That a last will and testament, executed in the mode prescribed by the law of the place where executed or of the testator’s domicile, either at the time of the will’s execution or at the time of the testator’s death, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state. (2) This section shall be applied to all wills, whenever executed, including those subject to pending probate proceedings. [1990 c 79 § 1; 1965 c 145 § 11.12.020. Prior: 1929 c 21 § 1; 1917 c 156 § 25; RRS § 1395; prior: Code 1881 § 1319; 1863 p 207 §§ 53, 54; 1860 p 170 §§ 20, 21. FORMER PART OF SECTION; re nuncupative wills, now codified as RCW 11.12.025.] 11.12.020 11.12.025 Nuncupative wills. Nothing contained in this chapter shall prevent any member of the armed forces of the United States or person employed on a vessel of the United States merchant marine from disposing of his wages 11.12.025 [Title 11 RCW—page 17] 11.12.030 Title 11 RCW: Probate and Trust Law or personal property, or prevent any person competent to make a will from disposing of his or her personal property of the value of not to exceed one thousand dollars, by nuncupative will if the same be proved by two witnesses who were present at the making thereof, and it be proven that the testator, at the time of pronouncing the same, did bid some person present to bear witness that such was his will, or to that effect, and that such nuncupative will was made at the time of the last sickness of the testator, but no proof of any nuncupative will shall be received unless it be offered within six months after the speaking of the testamentary words, nor unless the words or the substance thereof be first committed to writing, and in all cases a citation be issued to the widow and/or heirs at law of the deceased that they may contest the will, and no real estate shall be devised by a nuncupative will. [1965 c 145 § 11.12.025. Formerly RCW 11.12.020, part.] (2) This section is remedial in nature and applies to decrees of dissolution and declarations of invalidity entered before, on, or after January 1, 1995. [1994 c 221 § 11.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.12.060 11.12.060 Agreement to convey does not revoke. A bond, covenant, or agreement made for a valuable consideration by a testator to convey any property, devised or bequeathed in any last will previously made, shall not be deemed a revocation of such previous devise or bequest, but such property shall pass by the devise or bequest, subject to the same remedies on such bond, covenant, or agreement, for specific performance or otherwise, against devisees or legatees, as might be had by law against the heirs of the testator or his next of kin, if the same had descended to him. [1965 c 145 § 11.12.060. Prior: 1917 c 156 § 30; RRS § 1400; prior: Code 1881 § 1323; 1863 p 208 § 58; 1860 p 170 § 25.] 11.12.030 11.12.030 Signature of testator at his direction—Signature by mark. Every person who shall sign the testator’s or testatrix’s name to any will by his or her direction shall subscribe his own name to such will and state that he subscribed the testator’s name at his request: PROVIDED, That such signing and statement shall not be required if the testator shall evidence the approval of the signature so made at his request by making his mark on the will. [1965 c 145 § 11.12.030. Prior: 1927 c 91 § 1; 1917 c 156 § 27; RRS § 1397; prior: Code 1881 § 1320; 1863 p 207 § 54; 1860 p 170 § 21.] 11.12.040 11.12.040 Revocation of will—How effected—Effect on codicils. (1) A will, or any part thereof, can be revoked: (a) By a subsequent will that revokes, or partially revokes, the prior will expressly or by inconsistency; or (b) By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator or by another person in the presence and by the direction of the testator. If such act is done by any person other than the testator, the direction of the testator and the facts of such injury or destruction must be proved by two witnesses. (2) Revocation of a will in its entirety revokes its codicils, unless revocation of a codicil would be contrary to the testator’s intent. [1994 c 221 § 12; 1965 c 145 § 11.12.040. Prior: 1917 c 156 § 28; RRS § 1398; prior: Code 1881 § 1321; 1863 p 207 § 55; 1860 p 170 § 22.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.12.051 11.12.051 Dissolution or invalidation of marriage. (1) If, after making a will, the testator’s marriage is dissolved or invalidated, all provisions in the will in favor of or granting any interest or power to the testator’s former spouse are revoked, unless the will expressly provides otherwise. Provisions affected by this section must be interpreted, and property affected passes, as if the former spouse failed to survive the testator, having died at the time of entry of the decree of dissolution or declaration of invalidity. Provisions revoked by this section are revived by the testator’s remarriage to the former spouse. Revocation of certain nonprobate transfers is provided under RCW 11.07.010. [Title 11 RCW—page 18] 11.12.070 11.12.070 Devise or bequeathal of property subject to encumbrance. When any real or personal property subject to a mortgage is specifically devised, the devisee shall take such property so devised subject to such mortgage unless the will provides that such mortgage be otherwise paid. The term "mortgage" as used in this section shall not include a pledge of personal property. A charge or encumbrance upon any real or personal estate for the purpose of securing the payment of money, or the performance of any covenant or agreement, shall not be deemed a revocation of any will relating to the same estate, previously executed. The devises and legacies therein contained shall pass and take effect, subject to such charge or encumbrance. [1965 c 145 § 11.12.070. Prior: 1955 c 205 § 2; 1917 c 156 § 31; RRS § 1401; prior: Code 1881 § 1324; 1860 p 170 § 26.] 11.12.080 11.12.080 Revocation of later will or codicil— Effect—Evidence. (1) If, after making any will, the testator shall execute a later will that wholly revokes the former will, the destruction, cancellation, or revocation of the later will shall not revive the former will, unless it was the testator’s intention to revive it. (2) Revocation of a codicil shall revive a prior will or part of a prior will that the codicil would have revoked had it remained in effect at the death of the testator, unless it was the testator’s intention not to revive the prior will or part. (3) Evidence that revival was or was not intended includes, in addition to a writing by which the later will or codicil is revoked, the circumstances of the revocation or contemporary or subsequent declarations of the testator. [1994 c 221 § 13; 1965 c 145 § 11.12.080. Prior: 1917 c 156 § 35; RRS § 1405; prior: Code 1881 § 1328; 1863 p 208 § 63; 1860 p 171 § 30.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.12.091 11.12.091 Omitted child. (1) If a will fails to name or provide for a child of the decedent who is born or adopted by the decedent after the will’s execution and who survives the decedent, referred to in this section as an "omitted child," the child must receive a portion of the decedent’s estate as provided in subsection (3) of this section, unless it appears either (2006 Ed.) Wills from the will or from other clear and convincing evidence that the failure was intentional. (2) In determining whether an omitted child has been named or provided for, the following rules apply: (a) A child identified in a will by name is considered named whether identified as a child or in any other manner. (b) A reference in a will to a class described as the children, descendants, or issue of the decedent who are born after the execution of the will, or words of similar import, constitutes a naming of a person who falls within the class. A reference to another class, such as a decedent’s heirs or family, does not constitute such a naming. (c) A nominal interest in an estate does not constitute a provision for a child receiving the interest. (3) The omitted child must receive an amount equal in value to that which the child would have received under RCW 11.04.015 if the decedent had died intestate, unless the court determines on the basis of clear and convincing evidence that a smaller share, including no share at all, is more in keeping with the decedent’s intent. In making the determination, the court may consider, among other things, the various elements of the decedent’s dispositive scheme, provisions for the omitted child outside the decedent’s will, provisions for the decedent’s other children under the will and otherwise, and provisions for the omitted child’s other parent under the will and otherwise. (4) In satisfying a share provided by this section, the bequests made by the will abate as provided in chapter 11.10 RCW. [1994 c 221 § 9.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.12.095 11.12.095 Omitted spouse. (1) If a will fails to name or provide for a spouse of the decedent whom the decedent marries after the will’s execution and who survives the decedent, referred to in this section as an "omitted spouse," the spouse must receive a portion of the decedent’s estate as provided in subsection (3) of this section, unless it appears either from the will or from other clear and convincing evidence that the failure was intentional. (2) In determining whether an omitted spouse has been named or provided for, the following rules apply: (a) A spouse identified in a will by name is considered named whether identified as a spouse or in any other manner. (b) A reference in a will to the decedent’s future spouse or spouses, or words of similar import, constitutes a naming of a spouse whom the decedent later marries. A reference to another class such as the decedent’s heirs or family does not constitute a naming of a spouse who falls within the class. (c) A nominal interest in an estate does not constitute a provision for a spouse receiving the interest. (3) The omitted spouse must receive an amount equal in value to that which the spouse would have received under RCW 11.04.015 if the decedent had died intestate, unless the court determines on the basis of clear and convincing evidence that a smaller share, including no share at all, is more in keeping with the decedent’s intent. In making the determination the court may consider, among other things, the spouse’s property interests under applicable community property or quasi-community property laws, the various elements of the decedent’s dispositive scheme, and a marriage (2006 Ed.) 11.12.160 settlement or other provision and provisions for the omitted spouse outside the decedent’s will. (4) In satisfying a share provided by this section, the bequests made by the will abate as provided in chapter 11.10 RCW. [1994 c 221 § 10.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.12.110 11.12.110 Death of grandparent’s issue before grantor. Unless otherwise provided, when any property shall be given under a will, or under a trust of which the decedent is a grantor and which by its terms becomes irrevocable upon or before the grantor’s death, to any issue of a grandparent of the decedent and that issue dies before the decedent, or dies before that issue’s interest is no longer subject to a contingency, leaving descendants who survive the decedent, those descendants shall take that property as the predeceased issue would have done if the predeceased issue had survived the decedent. If those descendants are all in the same degree of kinship to the predeceased issue they shall take equally or, if of unequal degree, then those of more remote degree shall take by representation with respect to the predeceased issue. [2005 c 97 § 2; 1994 c 221 § 14; 1965 c 145 § 11.12.110. Prior: 1947 c 44 § 1; 1917 c 156 § 34; Rem. Supp. 1947 § 1404; prior: Code 1881 § 1327; 1863 p 208 § 62; 1860 p 171 § 29.] Effective dates—1994 c 221: See note following RCW 11.94.070. When beneficiary with disclaimed interest deemed to have died: RCW 11.86.041. 11.12.120 11.12.120 Lapsed gift—Procedure and proof. (1) If a will makes a gift to a person on the condition that the person survive the testator and the person does not survive the testator, then, unless otherwise provided, the gift lapses and falls into the residue of the estate to be distributed under the residuary clause of the will, if any, but otherwise according to the laws of descent and distribution. (2) If the will gives the residue to two or more persons, the share of a person who does not survive the testator passes, unless otherwise provided, and subject to RCW 11.12.110, to the other person or persons receiving the residue, in proportion to the interest of each in the remaining part of the residue. (3) The personal representative of the testator, a person who would be affected by the lapse or distribution of a gift under this section, or a guardian ad litem or other representative appointed to represent the interests of a person so affected may petition the court for a determination under this section, and the petition must be heard under the procedures of chapter 11.96A RCW. [1999 c 42 § 604; 1994 c 221 § 15; 1974 ex.s. c 117 § 51; 1965 c 145 § 11.12.120. Prior: 1937 c 151 § 1; RRS § 1404-1.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Effective dates—1994 c 221: See note following RCW 11.94.070. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.12.160 11.12.160 Interested witness—Effect on will. (1) An interested witness to a will is one who would receive a gift under the will. [Title 11 RCW—page 19] 11.12.170 Title 11 RCW: Probate and Trust Law (2) A will or any of its provisions is not invalid because it is signed by an interested witness. Unless there are at least two other subscribing witnesses to the will who are not interested witnesses, the fact that the will makes a gift to a subscribing witness creates a rebuttable presumption that the witness procured the gift by duress, menace, fraud, or undue influence. (3) If the presumption established under subsection (2) of this section applies and the interested witness fails to rebut it, the interested witness shall take so much of the gift as does not exceed the share of the estate that would be distributed to the witness if the will were not established. (4) The presumption established under subsection (2) of this section has no effect other than that stated in subsection (3) of this section. [1994 c 221 § 16; 1965 c 145 § 11.12.160. Prior: 1917 c 156 § 38; RRS § 1408; prior: Code 1881 § 1331; 1863 p 209 § 67; 1860 p 171 § 34.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.12.170 11.12.170 Devise of land, what passes. Every devise of land in any will shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it shall clearly appear by the will that he intended to convey a less estate. [1965 c 145 § 11.12.170. Prior: 1917 c 156 § 39; RRS § 1409; prior: Code 1881 § 1332; 1863 p 209 § 69; 1860 p 172 § 36.] 11.12.180 11.12.180 Rule in Shelley’s Case abolished—Future distribution or interest to heirs. The Rule in Shelley’s Case is abolished as a rule of law and as a rule of construction. If an applicable statute or a governing instrument calls for a future distribution to or creates a future interest in a designated individual’s "heirs," "heirs at law," "next of kin," "relatives," or "family," or language of similar import, the property passes to those persons, including the state under chapter 11.08 RCW, that would succeed to the designated individual’s estate under chapter 11.04 RCW. The property must pass to those persons as if the designated individual had died when the distribution or transfer of the future interest was to take effect in possession or enjoyment. For purposes of this section and RCW 11.12.185, the designated individual’s surviving spouse is deemed to be an heir, regardless of whether the surviving spouse has remarried. [1994 c 221 § 17; 1965 c 145 § 11.12.180. Prior: 1917 c 156 § 40; RRS § 1410; prior: Code 1881 § 1333; 1863 p 210 § 70; 1860 p 172 § 37.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.12.185 11.12.185 Doctrine of Worthier Title abolished— Exception. The Doctrine of Worthier Title is abolished as a rule of law and as a rule of construction. However, the Doctrine of Worthier Title is preserved as a rule of construction if: (1) A grantor has established in inter vivos trust of real property; (2) The grantor has expressly reserved a reversion to himself or herself; and (3) The words "heirs" or "heirs at law" are used by the grantor to describe the quality of the grantor’s title in the reversion as an estate in fee simple in the event that the property reverts to the grantor. [Title 11 RCW—page 20] In all other cases, language in a governing instrument describing the beneficiaries of a donative disposition as the transferor’s "heirs," "heirs at law," "next of kin," "distributees," "relatives," or "family," or language of similar import, does not create or presumptively create a reversionary interest in the transferor. [1994 c 221 § 18.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.12.190 11.12.190 Will to operate on after-acquired property. Any estate, right or interest in property acquired by the testator after the making of his will may pass thereby and in like manner as if title thereto was vested in him at the time of making the will, unless the contrary manifestly appears by the will to have been the intention of the testator. [1965 c 145 § 11.12.190. Prior: 1917 c 156 § 41; RRS § 1411; prior: Code 1881 § 1334; 1863 p 210 § 71; 1860 p 172 § 38.] 11.12.220 11.12.220 No interest on devise unless will so provides. No interest shall be allowed or calculated on any devise contained in any will unless such will expressly provides for such interest. [1965 c 145 § 11.12.220. Prior: 1917 c 156 § 26; RRS § 1396.] 11.12.230 11.12.230 Intent of testator controlling. All courts and others concerned in the execution of last wills shall have due regard to the direction of the will, and the true intent and meaning of the testator, in all matters brought before them. [1965 c 145 § 11.12.230. Prior: 1917 c 156 § 45; RRS § 1415; prior: Code 1881 § 1338; 1863 p 210 § 75; 1860 p 172 § 42.] 11.12.250 11.12.250 Gift to trust. A gift may be made by a will to a trustee of a trust executed by any trustor or testator (including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts) if (1) the trust is identified in the testator’s will and (2) its terms are evidenced either (a) in a written instrument other than a will, executed by the trustor prior to or concurrently with the execution of the testator’s will or (b) in the will of a person who has predeceased the testator, regardless of when executed. The existence, size, or character of the corpus of the trust is immaterial to the validity of the gift. Such gift shall not be invalid because the trust is amendable or revocable, or both, or because the trust was amended after the execution of the testator’s will or after the testator’s death. Unless the will provides otherwise, the property so given shall not be deemed to be held under a testamentary trust of the testator but shall become a part of the trust to which it is given to be administered and disposed of in accordance with the terms of the instrument establishing the trust, including any amendments, made prior to the death of the testator, and regardless of whether made before or after the execution of the will. Unless the will provides otherwise, an express revocation of the trust prior to the testator’s death invalidates the gift. Any termination of the trust other than by express revocation does not invalidate the gift. For purposes of this section, the term "gift" includes the exercise of any testamentary power of appointment. [1985 c 23 § 2. Prior: 1984 c 149 § 5; 1965 c 145 § 11.12.250; prior: 1959 c 116 § 1.] (2006 Ed.) Liability of Beneficiary of Nonprobate Asset Short title—Application—1985 c 30: See RCW 11.02.900 through 11.02.903. Purpose—1985 c 23: "The purpose of this act is to make technical corrections to chapter 149, Laws of 1984, and to ensure that the changes made in that chapter meet the constitutional requirements of Article II, section 19 of the state Constitution." [1985 c 23 § 1.] Application—1985 c 23: "This act shall apply to wills of decedents dying after December 31, 1984." [1985 c 23 § 5.] Severability—1985 c 23: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 23 § 6.] 11.18.200 example, money that is normal currency or normal legal tender, evidences of indebtedness, bank accounts or other monetary deposits, documents of title, or securities. [1985 c 23 § 4. Prior: 1984 c 149 § 7.] Short title—Application—1985 c 30: See RCW 11.02.900 through 11.02.903. Purpose—Application—Severability—1985 c 23: See notes following RCW 11.12.250. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.12.265 Filing of original will with court before death of testator. Any person who has custody or control of any original will and who has not received knowledge of the death of the testator may deliver the will for filing under seal to any court having jurisdiction. The testator may withdraw the original will so filed upon proper identification. Any other person, including an attorney in fact or guardian of the testator, may withdraw the original will so filed only upon court order after showing of good cause. Upon request and presentation of a certified copy of the testator’s death certificate, the clerk shall unseal the file. This section does not preclude filing a will not under seal and does not alter any duty of a person having knowledge of the testator’s death to file the will. [2004 c 72 § 1.] 11.12.265 Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Trusts—Rule against perpetuities: Chapter 11.98 RCW. 11.12.255 11.12.255 Incorporation by reference. A will may incorporate by reference any writing in existence when the will is executed if the will itself manifests the testator’s intent to incorporate the writing and describes the writing sufficiently to permit its identification. In the case of any inconsistency between the writing and the will, the will controls. [1985 c 23 § 3. Prior: 1984 c 149 § 6.] Short title—Application—1985 c 30: See RCW 11.02.900 through 11.02.903. Purpose—Application—Severability—1985 c 23: See notes following RCW 11.12.250. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Chapter 11.18 11.12.260 11.12.260 Separate writing may direct disposition of tangible personal property—Requirements. (1) A will may refer to a writing that directs disposition of tangible personal property not otherwise specifically disposed of by the will other than property used primarily in trade or business. Such a writing shall not be effective unless: (a) An unrevoked will refers to the writing, (b) the writing is either in the handwriting of, or signed by, the testator, and (c) the writing describes the items and the recipients of the property with reasonable certainty. (2) The writing may be written or signed before or after the execution of the will and need not have significance apart from its effect upon the dispositions of property made by the will. A writing that meets the requirements of this section shall be given effect as if it were actually contained in the will itself, except that if any person designated to receive property in the writing dies before the testator, the property shall pass as further directed in the writing and in the absence of any further directions, the disposition shall lapse and RCW 11.12.110 shall not apply to such lapse. (3) The testator may make subsequent handwritten or signed changes to any writing. If there is an inconsistent disposition of tangible personal property as between writings, the most recent writing controls. (4) As used in this section "tangible personal property" means articles of personal or household use or ornament, for example, furniture, furnishings, automobiles, boats, airplanes, and jewelry, as well as precious metals in any tangible form, for example, bullion or coins. The term includes articles even if held for investment purposes and encompasses tangible property that is not real property. The term does not include mobile homes or intangible property, for (2006 Ed.) Chapter 11.18 RCW LIABILITY OF BENEFICIARY OF NONPROBATE ASSET Sections 11.18.200 Liability of beneficiary of nonprobate asset—Abatement. 11.18.200 Liability of beneficiary of nonprobate asset—Abatement. (1) Unless expressly exempted by statute, a beneficiary of a nonprobate asset that was subject to satisfaction of the decedent’s general liabilities immediately before the decedent’s death takes the asset subject to liabilities, claims, estate taxes, and the fair share of expenses of administration reasonably incurred by the personal representative in the transfer of or administration upon the asset. The beneficiary of such an asset is liable to account to the personal representative to the extent necessary to satisfy liabilities, claims, the asset’s fair share of expenses of administration, and the asset’s share of estate taxes under *chapter 83.110 RCW. Before making demand that a beneficiary of a nonprobate asset account to the personal representative, the personal representative shall give notice to the beneficiary, in the manner provided in chapter 11.96A RCW, that the beneficiary is liable to account under this section. (2) The following rules govern in applying subsection (1) of this section: (a) A beneficiary of property passing at death under a community property agreement takes the property subject to the decedent’s liabilities, claims, estate taxes, and administration expenses as described in subsection (1) of this section. However, assets existing as community or separate property immediately before the decedent’s death under the community property agreement are subject to the decedent’s liabilities and claims to the same extent that they would have been had they been assets of the probate estate. 11.18.200 [Title 11 RCW—page 21] Chapter 11.20 Title 11 RCW: Probate and Trust Law (b) A beneficiary of property held in joint tenancy form with right of survivorship, including without limitation United States savings bonds or similar obligations, takes the property subject to the decedent’s liabilities, claims, estate taxes, and administration expenses as described in subsection (1) of this section to the extent of the decedent’s beneficial ownership interest in the property immediately before death. (c) A beneficiary of payable-on-death or trust bank accounts, bonds, securities, or similar obligations, including without limitation United States bonds or similar obligations, takes the property subject to the decedent’s liabilities, claims, estate taxes, and administration expenses as described in subsection (1) of this section, to the extent of the decedent’s beneficial ownership interest in the property immediately before death. (d) A beneficiary of deeds or conveyances made by the decedent if possession has been postponed until the death of the decedent takes the property subject to the decedent’s liabilities, claims, estate taxes, and administration expenses as described in subsection (1) of this section, to the extent of the decedent’s beneficial ownership interest in the property immediately before death. (e) A trust for the decedent’s use of which the decedent is the grantor is subject to the decedent’s liabilities, claims, estate taxes, and administration expenses as described in subsection (1) of this section, to the same extent as the trust was subject to claims of the decedent’s creditors immediately before death under RCW 19.36.020. (f) A trust not for the use of the grantor but of which the decedent is the grantor and that becomes effective or irrevocable only upon the decedent’s death is subject to the decedent’s claims, liabilities, estate taxes, and expenses of administration as described in subsection (1) of this section. (g) Anything in this section to the contrary notwithstanding, nonprobate assets that existed as community property immediately before the decedent’s death are subject to the decedent’s liabilities and claims to the same extent that they would have been had they been assets of the probate estate. (h) The liability of a beneficiary of life insurance is governed by chapter 48.18 RCW. (i) The liability of a beneficiary of pension or retirement employee benefits is governed by chapter 6.15 RCW. (j) An inference may not be drawn from (a) through (i) of this subsection that a beneficiary of nonprobate assets other than those assets specifically described in (a) through (i) of this subsection does or does not take the assets subject to claims, liabilities, estate taxes, and administration expenses as described in subsection (1) of this section. (3) Nothing in this section derogates from the rights of a person interested in the estate to recover tax under *chapter 83.110 RCW or from the liability of any beneficiary for estate tax under *chapter 83.110 RCW. (4) Nonprobate assets that may be responsible for the satisfaction of the decedent’s general liabilities and claims abate together with the probate assets of the estate in accord with chapter 11.10 RCW. [1999 c 42 § 605; 1997 c 252 § 3; 1994 c 221 § 19.] *Reviser’s note: Chapter 83.110 RCW was repealed in its entirety by 2005 c 332 § 15, effective January 1, 2006. Later enactment, see chapter 83.110A RCW. [Title 11 RCW—page 22] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. Chapter 11.20 RCW CUSTODY, PROOF, AND PROBATE OF WILLS Chapter 11.20 Sections 11.20.010 11.20.020 11.20.030 11.20.040 11.20.050 11.20.060 11.20.070 11.20.080 11.20.090 11.20.100 Duty of custodian of will—Liability. Application for probate—Hearing—Order—Proof—Record of testimony—Affidavits of attesting witnesses. Commission to take testimony of witness. Proof where one or more witnesses are unable or incompetent to testify, or absent from state. Recording of wills. Record of will as evidence. Proof of lost or destroyed will. Restraint of personal representative during pendency of application to prove lost or destroyed will. Admission to probate of foreign will. Laws applicable to foreign wills. 11.20.010 Duty of custodian of will—Liability. Any person having the custody or control of any will shall, within thirty days after he shall have received knowledge of the death of the testator, deliver said will to the court having jurisdiction or to the person named in the will as executor, and any executor having in his custody or control any will shall within forty days after he received knowledge of the death of the testator deliver the same to the court having jurisdiction. Any person who shall wilfully violate any of the provisions of this section shall be liable to any party aggrieved for the damages which may be sustained by such violation. [1965 c 145 § 11.20.010. Prior: 1917 c 156 § 9; RRS § 1379; prior: Code 1881 §§ 1342, 1343; 1863 p 212 § 78; 1860 p 174 § 45.] 11.20.010 Refusal to serve as executor: RCW 11.28.010. 11.20.020 11.20.020 Application for probate—Hearing— Order—Proof—Record of testimony—Affidavits of attesting witnesses. (1) Applications for the probate of a will and for letters testamentary, or either, may be made to the judge of the court having jurisdiction and the court may immediately hear the proofs and either probate or reject such will as the testimony may justify. Upon such hearing the court shall make and cause to be entered a formal order, either establishing and probating such will, or refusing to establish and probate the same, and such order shall be conclusive except in the event of a contest of such will as hereinafter provided. All testimony in support of the will shall be reduced to writing, signed by the witnesses, and certified by the judge of the court. If the application for probate of a will does not request the appointment of a personal representative and the court enters an adjudication of testacy establishing such will no further administration shall be required except as commenced pursuant to RCW 11.28.330 or 11.28.340. (2) In addition to the foregoing procedure for the proof of wills, any or all of the attesting witnesses to a will may, at the request of the testator or, after his decease, at the request of the executor or any person interested under it, make an affidavit before any person authorized to administer oaths, stating such facts as they would be required to testify to in (2006 Ed.) Custody, Proof, and Probate of Wills court to prove such will, which affidavit may be written on the will or may be attached to the will or to a photographic copy of the will. The sworn statement of any witness so taken shall be accepted by the court as if it had been taken before the court. [1977 ex.s. c 234 § 2; 1974 ex.s. c 117 § 27; 1969 ex.s. c 126 § 1; 1965 c 145 § 11.20.020. Prior: 1917 c 156 § 10; RRS § 1380; prior: 1863 p 212 §§ 85, 86; 1860 p 175 §§ 52, 53.] Severability—1977 ex.s. c 234: "If any provisions of this 1977 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1977 ex.s. c 234 § 30.] Effective date—Application—1977 ex.s. c 234: "This 1977 amendatory act shall take effect on October 1, 1977 and shall apply to all proceedings in probate with respect to decedents whose deaths occurred after the effective date." [1977 ex.s. c 234 § 31.] Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. Will contests: Chapter 11.24 RCW. 11.20.030 11.20.030 Commission to take testimony of witness. If any witness be prevented by sickness from attending at the time any will is produced for probate, or reside out of the state or more than thirty miles from the place where the will is to be proven, such court may issue a commission annexed to such will, and directed to any judge, notary public, or other person authorized to administer an oath, empowering him or her to take and certify the attestation of such witness. [1987 c 202 § 171; 1965 c 145 § 11.20.030. Prior: 1923 c 142 § 1; 1917 c 156 § 11; RRS § 1381; prior: Code 1881 § 1351; 1863 p 212 § 87; 1860 p 175 § 54.] Intent—1987 c 202: See note following RCW 2.04.190. 11.20.040 11.20.040 Proof where one or more witnesses are unable or incompetent to testify, or absent from state. The subsequent incompetency from whatever cause of one or more of the subscribing witnesses, or their inability to testify in open court or pursuant to commission, or their absence from the state, shall not prevent the probate of the will. In such cases the court shall admit the will to probate upon satisfactory testimony that the handwriting of the testator and of an incompetent or absent subscribing witness is genuine or the court may consider such other facts and circumstances, if any, as would tend to prove such will. [1967 c 168 § 5; 1965 c 145 § 11.20.040. Prior: 1945 c 39 § 1; 1943 c 219 § 1; 1917 c 156 § 12; Rem. Supp. 1945 § 1382; prior: Code 1881 § 1353; 1863 p 213 §§ 89, 90; 1860 p 175 §§ 56, 57.] 11.20.050 11.20.050 Recording of wills. All wills filed with the clerk of the superior court must be noted in the record required to be kept under RCW 36.23.030(7). They may be withdrawn from the record on the order of the court. [2002 c 271 § 1; 1967 c 168 § 17; 1965 c 145 § 11.20.050. Prior: 1915 c 156 § 13; RRS § 1383; prior: Code 1881 § 1356; 1863 p 213 § 92; 1860 p 175 § 59.] Clerk to keep record of wills: RCW 36.23.030(7). 11.20.060 11.20.060 Record of will as evidence. The record of any will made, probated and recorded as herein provided, and the exemplification of such record by the clerk in whose custody the same may be, shall be received as evidence, and (2006 Ed.) 11.20.100 shall be as effectual in all cases as the original would be if produced and proven. [1965 c 145 § 11.20.060. Prior: 1917 c 156 § 14; RRS § 1384; prior: 1891 p 382 § 7; Code 1881 § 1358; 1863 p 213 § 94; 1860 p 175 § 61.] Certified copies of recorded instruments as evidence: RCW 5.44.060. 11.20.070 11.20.070 Proof of lost or destroyed will. (1) If a will has been lost or destroyed under circumstances such that the loss or destruction does not have the effect of revoking the will, the court may take proof of the execution and validity of the will and establish it, notice to all persons interested having been first given. The proof must be reduced to writing and signed by any witnesses who have testified as to the execution and validity, and must be filed with the clerk of the court. (2) The provisions of a lost or destroyed will must be proved by clear, cogent, and convincing evidence, consisting at least in part of a witness to either its contents or the authenticity of a copy of the will. (3) When a lost or destroyed will is established under subsections (1) and (2) of this section, its provisions must be distinctly stated in the judgment establishing it, and the judgment must be recorded as wills are required to be recorded. A personal representative may be appointed by the court in the same manner as is herein provided with reference to original wills presented to the court for probate. [1994 c 221 § 20; 1965 c 145 § 11.20.070. Prior: 1955 c 205 § 1; 1917 c 156 § 20; RRS § 1390; prior: Code 1881 § 1367; 1860 p 177 § 70.] Effective dates—1994 c 221: See note following RCW 11.94.070. Replacement of lost or destroyed probate records: RCW 5.48.060. 11.20.080 11.20.080 Restraint of personal representative during pendency of application to prove lost or destroyed will. If, before or during the pendency of an application to prove a lost or destroyed will, letters of administration shall have been granted on the estate of the testator, or letters testamentary of any previous will of the testator shall have been granted, the court shall have authority to restrain the personal representatives so appointed, from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will. [1965 c 145 § 11.20.080. Prior: 1917 c 156 § 21; RRS § 1391; prior: Code 1881 § 1369; 1863 p 215 § 105; 1860 p 177 § 72.] Replacement of lost or destroyed probate records: RCW 5.48.060. 11.20.090 11.20.090 Admission to probate of foreign will. Wills probated in any other state or territory of the United States, or in any foreign country or state, shall be admitted to probate in this state on the production of a copy of such will and of the original record of probate thereof, certified by the attestation of the clerk of the court in which such probation was made; or if there be no clerk, certification by the attestation of the judge thereof, and by the seal of such officers, if they have a seal. [1977 ex.s. c 234 § 3; 1965 c 145 § 11.20.090. Prior: 1917 c 156 § 22; RRS § 1392; prior: Code 1881 § 1370; 1877 p 284 § 1.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. 11.20.100 11.20.100 Laws applicable to foreign wills. All provisions of law relating to the carrying into effect of domestic [Title 11 RCW—page 23] Chapter 11.24 Title 11 RCW: Probate and Trust Law wills after probate thereof shall, so far as applicable, apply to foreign wills admitted to probate in this state. [1965 c 145 § 11.20.100. Prior: 1917 c 156 § 23; RRS § 1393; prior: Code 1881 § 1371; 1877 p 284 § 2.] Chapter 11.24 Chapter 11.24 RCW WILL CONTESTS Sections 11.24.010 11.24.020 11.24.030 11.24.040 11.24.050 Contest of probate or rejection—Limitation of action—Issues. Filing of will contest petition—Notice. Burden of proof. Revocation of probate. Costs. 11.24.010 11.24.010 Contest of probate or rejection—Limitation of action—Issues. If any person interested in any will shall appear within four months immediately following the probate or rejection thereof, and by petition to the court having jurisdiction contest the validity of said will, or appear to have the will proven which has been rejected, he or she shall file a petition containing his or her objections and exceptions to said will, or to the rejection thereof. Issues respecting the competency of the deceased to make a last will and testament, or respecting the execution by a deceased of the last will and testament under restraint or undue influence or fraudulent representations, or for any other cause affecting the validity of the will or a part of it, shall be tried and determined by the court. If no person shall appear within the time under this section, the probate or rejection of such will shall be binding and final. [1994 c 221 § 21; 1971 c 7 § 1; 1967 c 168 § 6; 1965 c 145 § 11.24.010. Prior: 1917 c 156 § 15; RRS § 1385; prior: 1891 p 382 § 8; Code 1881 § 1360; 1863 p 213 § 96; 1860 p 176 § 63.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.24.020 11.24.020 Filing of will contest petition—Notice. Upon the filing of the petition referred to in RCW 11.24.010, notice shall be given as provided in RCW 11.96A.100 to the executors who have taken upon themselves the execution of the will, or to the administrators with the will annexed, to all legatees named in the will or to their guardians if any of them are minors, or their personal representatives if any of them are dead, and to all persons interested in the matter, as defined in RCW 11.96A.030(5). [2006 c 360 § 9; 1965 c 145 § 11.24.020. Prior: 1917 c 156 § 16; RRS § 1386; prior: 1891 p 382 § 9; Code 1881 § 1361; 1863 p 214 § 97; 1860 p 176 § 64.] Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. 11.24.040 11.24.040 Revocation of probate. If, upon the trial of said issue, it shall be decided that the will or a part of it is for any reason invalid, or that it is not sufficiently proved to have been the last will of the testator, the will or part and probate thereof shall be annulled and revoked and to that extent the powers of the personal representative shall cease, but the personal representative shall not be liable for any act done in good faith previous to such annulling or revoking. [1994 c 221 § 22; 1965 c 145 § 11.24.040. Prior: 1917 c 156 § 18; RRS § 1388; prior: Code 1881 § 1364; 1863 p 214 § 100; 1860 p 177 § 67.] Effective dates—1994 c 221: See note following RCW 11.94.070. 11.24.050 11.24.050 Costs. If the probate be revoked or the will annulled, assessment of costs shall be in the discretion of the court. If the will be sustained, the court may assess the costs against the contestant, including, unless it appears that the contestant acted with probable cause and in good faith, such reasonable attorney’s fees as the court may deem proper. [1965 c 145 § 11.24.050. Prior: 1917 c 156 § 19; RRS § 1389; prior: Code 1881 § 1366; 1860 p 177 § 69.] Rules of court: SPR 98.12W. Personal representative allowance of necessary expenses: RCW 11.48.050. compensation—Attorney’s fee: RCW 11.48.210. Chapter 11.28 Sections 11.28.010 11.28.020 11.28.030 11.28.040 11.28.050 11.28.060 11.28.070 11.28.085 11.28.090 11.28.100 11.28.110 11.28.120 11.28.131 11.28.140 11.28.150 11.28.160 11.28.170 11.28.185 11.28.190 11.28.210 11.28.220 11.28.230 11.28.235 11.28.237 11.24.030 11.24.030 Burden of proof. In any such contest proceedings the previous order of the court probating, or refusing to probate, such will shall be prima facie evidence of the legality of such will, if probated, or its illegality, if rejected, and the burden of proving the illegality of such will, if probated, or the legality of such will, if rejected by the court, shall rest upon the person contesting such probation or rejection of the will. [1965 c 145 § 11.24.030. Prior: 1917 c 156 § 17; RRS § 1387.] [Title 11 RCW—page 24] Chapter 11.28 RCW LETTERS TESTAMENTARY AND OF ADMINISTRATION 11.28.238 11.28.240 11.28.250 11.28.260 11.28.270 11.28.280 11.28.290 11.28.300 Letters to executors—Refusal to serve—Disqualification. Objections to appointment. Community property—Who entitled to letters—Waiver. Procedure during minority or absence of executor. Powers of remaining executors on removal of associate. Administration with will annexed on death of executor. Authority of administrator with will annexed. Records and certification of letters—Record of bonds. Execution and form of letters testamentary. Form of letters with will annexed. Application for letters of administration or adjudication of intestacy and heirship. Persons entitled to letters. Hearing on petition—Appointment—Issuance of letters— Notice to surviving spouse. Form of letters of administration. Revocation of letters by discovery of will. Cancellation of letters of administration. Oath of personal representative. Bond or other security of personal representative—When not required—Waiver—Corporate trustee—Additional bond— Reduction—Other security. Examination of sureties—Additional security—Costs. New or additional bond. Persons disqualified as sureties. Bond not void for want of form—Successive recoveries. Limitation of action against sureties. Notice of appointment as personal representative, pendency of probate—Proof by affidavit. Notice of appointment as personal representative—Notice to department of revenue. Request for special notice of proceedings in probate—Prohibitions. Revocation of letters—Causes. Revocation of letters—Proceedings in court or chambers. Powers of remaining personal representatives if letters to associates revoked or surrendered or upon disqualification. Successor personal representative. Accounting on death, resignation, or revocation of letters. Proceedings against delinquent personal representative. (2006 Ed.) Letters Testamentary and of Administration 11.28.330 11.28.340 Notice of adjudication of testacy or intestacy and heirship— Contents—Service or mailing. Order of adjudication of testacy or intestacy and heirship— Entry—Time limitation—Deemed final decree of distribution, when—Purpose—Finality of adjudications. Administration of deceased incompetent’s estate: RCW 11.88.150. Letters after final settlement: RCW 11.76.250. 11.28.090 removed, when such minor, having arrived at full age, or such absentee, having returned, shall be admitted as joint executor with the former, provided a nonresident of this state may qualify as provided in RCW 11.36.010. [1965 c 145 § 11.28.040. Prior: 1917 c 156 § 50; RRS § 1420; prior: Code 1881 § 1374; 1863 p 217 § 108; 1860 p 180 § 75.] Replacement of lost or destroyed probate records: RCW 5.48.060. Trust company may not solicit appointment as personal representative: RCW 30.04.260. 11.28.010 Letters to executors—Refusal to serve— Disqualification. After the entry of an order admitting a will to probate and appointing a personal representative, or personal representatives, letters testamentary shall be granted to the persons therein appointed executors. If a part of the persons thus appointed refuse to act, or be disqualified, the letters shall be granted to the other persons appointed therein. If all such persons refuse to act, letters of administration with the will annexed shall be granted to the person to whom administration would have been granted if there had been no will. [1974 ex.s. c 117 § 28; 1965 c 145 § 11.28.010. Prior: 1917 c 156 § 47; RRS § 1417; prior: Code 1881 § 1372; 1863 p 217 § 106; 1860 p 179 § 73.] 11.28.010 Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.28.020 11.28.020 Objections to appointment. Any person interested in a will may file objections in writing to the granting of letters testamentary to the persons named as executors, or any of them, and the objection shall be heard and determined by the court. [1965 c 145 § 11.28.020. Prior: 1917 c 156 § 47; RRS § 1417; prior: Code 1881 § 1372; 1863 p 217 § 106; 1860 p 179 § 73.] 11.28.030 11.28.030 Community property—Who entitled to letters—Waiver. A surviving spouse shall be entitled to administer upon the community property, notwithstanding any provisions of the will to the contrary, if the court find such spouse to be otherwise qualified; but if such surviving spouse do not make application for such appointment within forty days immediately following the death of the deceased spouse, he or she shall be considered as having waived his or her right to administer upon such community property. If any person, other than the surviving spouse, make application for letters testamentary on such property, prior to the expiration of such forty days, then the court, before making any such appointment, shall require notice of such application to be given the said surviving spouse, for such time and in such manner as the court may determine, unless such applicant show to the satisfaction of the court that there is no surviving spouse or that he or she has in writing waived the right to administer upon such community property. [1965 c 145 § 11.28.030. Prior: 1917 c 156 § 49; RRS § 1419.] 11.28.040 11.28.040 Procedure during minority or absence of executor. If the executor be a minor or absent from the state, letters of administration with the will annexed shall be granted, during the time of such minority or absence, to some other person unless there be another executor who shall accept the trust, in which case the estate shall be administered by such other executor until the disqualification shall be (2006 Ed.) 11.28.050 Powers of remaining executors on removal of associate. When any of the executors named shall not qualify or having qualified shall become disqualified or be removed, the remaining executor or executors shall have the authority to perform every act and discharge every trust required by the will, and their acts shall be effectual for every purpose. [1965 c 145 § 11.28.050. Prior: 1917 c 156 § 54; RRS § 1424; prior: Code 1881 § 1372; 1854 p 268 § 5.] 11.28.050 11.28.060 11.28.060 Administration with will annexed on death of executor. No executor of an executor shall, as such, be authorized to administer upon the estate of the first testator, but on the death of the sole or surviving executor of any last will, letters of administration with the will annexed, on the estate of the first testator left unadministered, shall be issued. [1965 c 145 § 11.28.060. Prior: 1917 c 156 § 53; RRS § 1423; prior: Code 1881 § 1379; 1863 p 218 § 113; 1860 p 180 § 80.] Executor of executor may not sue for estate of first testator: RCW 11.48.190. 11.28.070 11.28.070 Authority of administrator with will annexed. Administrators with the will annexed shall have the same authority as the executor named in the will would have had, and their acts shall be as effectual for every purpose: PROVIDED, That they shall not lease, mortgage, pledge, exchange, sell, or convey any real or personal property of the estate except under order of the court and pursuant to procedure under existing laws pertaining to the administration of estates in cases of intestacy, unless the powers expressed in the will are directory and not discretionary, or said administrator with will annexed shall have obtained nonintervention powers as provided in chapter 11.68 RCW. [1974 ex.s. c 117 § 25; 1965 c 145 § 11.28.070. Prior: 1955 c 205 § 3; 1917 c 156 § 55; RRS § 1425; prior: Code 1881 § 1381; 1860 p 180 § 82.] Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.28.085 Records and certification of letters— Record of bonds. See RCW 36.23.030. 11.28.085 11.28.090 11.28.090 Execution and form of letters testamentary. Letters testamentary to be issued to executors under the provisions of this chapter shall be signed by the clerk, and issued under the seal of the court, and may be in the following form: State of Washington, county of . . . . . . In the superior court of the county of . . . . . . Whereas, the last will of A B, deceased, was, on the . . . . day of . . . . . . , A.D., . . . ., duly exhibited, proven, and recorded in our said superior court; and whereas, it appears in and by said will that C D is appointed executor thereon, and, whereas, said C D has duly qualified, now, therefore, know [Title 11 RCW—page 25] 11.28.100 Title 11 RCW: Probate and Trust Law all men by these presents, that we do hereby authorize the said C D to execute said will according to law. Witness my hand and the seal of said court this . . . . day of . . . . . ., A.D., 19. . . [1965 c 145 § 11.28.090. Prior: (i) 1917 c 156 § 56; RCW 11.28.080; RRS § 1426; prior: Code 1881 § 1382; 1863 p 218 § 116; 1860 p 181 § 83. (ii) 1917 c 156 § 59; RRS § 1429; prior: Code 1881 § 1386; 1863 p 219 § 120; 1860 p 181 § 87.] 11.28.100 11.28.100 Form of letters with will annexed. Letters of administration with the will annexed shall be in substantially the same form as provided for letters testamentary. [1965 c 145 § 11.28.100. Prior: 1917 c 156 § 60; RRS § 1430; prior: Code 1881 § 1387; 1863 p 219 § 121.] 11.28.110 11.28.110 Application for letters of administration or adjudication of intestacy and heirship. Application for letters of administration, or, application for an adjudication of intestacy and heirship without the issuance of letters of administration shall be made by petition in writing, signed and verified by the applicant or his attorney, and filed with the court, which petition shall set forth the facts essential to giving the court jurisdiction of the case, and state, if known, the names, ages and addresses of the heirs of the deceased and that the deceased died without a will. If the application for an adjudication of intestacy and heirship does not request the appointment of a personal representative and the court enters an adjudication of intestacy no further administration shall be required except as set forth in RCW 11.28.330 or 11.28.340. [1977 ex.s. c 234 § 4; 1974 ex.s. c 117 § 29; 1965 c 145 § 11.28.110. Prior: 1917 c 156 § 62; RRS § 1432; prior: Code 1881 § 1389; 1863 p 220 § 123; 1860 p 182 § 90.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. chapter 11.08 RCW; however, the director may waive this right. (b) The secretary of the department of social and health services for those estates owing debts for long-term care services as defined in *RCW 74.39A.008; however the secretary may waive this right. (6) One or more of the principal creditors. (7) If the persons so entitled shall fail for more than forty days after the death of the decedent to present a petition for letters of administration, or if it appears to the satisfaction of the court that there is no next of kin, as above specified eligible to appointment, or they waive their right, and there are no principal creditor or creditors, or such creditor or creditors waive their right, then the court may appoint any suitable person to administer such estate. [1995 1st sp.s. c 18 § 61; 1994 c 221 § 23; 1985 c 133 § 1; 1965 c 145 § 11.28.120. Prior: 1927 c 76 § 1; 1917 c 156 § 61; RRS § 1431; prior: Code 1881 § 1388; 1863 p 219 § 122; 1860 p 181 § 89.] *Reviser’s note: RCW 74.39A.008 was repealed by 1997 c 392 § 530. Conflict with federal requirements—Severability—Effective date— 1995 1st sp.s. c 18: See notes following RCW 74.39A.030. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.28.131 11.28.131 Hearing on petition—Appointment—Issuance of letters—Notice to surviving spouse. When a petition for general letters of administration or for letters of administration with the will annexed shall be filed, the matter may [be] heard forthwith, appointment made and letters of administration issued: PROVIDED, That if there be a surviving spouse and a petition is presented by anyone other than the surviving spouse, or any person designated by the surviving spouse to serve as personal representative on his or her behalf, notice to the surviving spouse shall be given of the time and place of such hearing at least ten days before the hearing, unless the surviving spouse shall waive notice of the hearing in writing filed in the cause. [1974 ex.s. c 117 § 44.] Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.28.140 11.28.120 11.28.120 Persons entitled to letters. Administration of an estate if the decedent died intestate or if the personal representative or representatives named in the will declined or were unable to serve shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled in the following order: (1) The surviving spouse, or such person as he or she may request to have appointed. (2) The next of kin in the following order: (a) Child or children; (b) father or mother; (c) brothers or sisters; (d) grandchildren; (e) nephews or nieces. (3) The trustee named by the decedent in an inter vivos trust instrument, testamentary trustee named in the will, guardian of the person or estate of the decedent, or attorney in fact appointed by the decedent, if any such a fiduciary controlled or potentially controlled substantially all of the decedent’s probate and nonprobate assets. (4) One or more of the beneficiaries or transferees of the decedent’s probate or nonprobate assets. (5)(a) The director of revenue, or the director’s designee, for those estates having property subject to the provisions of [Title 11 RCW—page 26] 11.28.140 Form of letters of administration. Letters of administration shall be signed by the clerk, and be under the seal of the court, and may be substantially in the following form: State of Washington, County of . . . . . . Whereas, A.B., late of . . . . . . on or about the . . . . day of . . . . . . A.D., . . . . died intestate, leaving at the time of his death, property in this state subject to administration: Now, therefore, know all men by these presents, that we do hereby appoint . . . . . . . . . administrator upon said estate, and whereas said administrator has duly qualified, hereby authorize him to administer the same according to law. Witness my hand and the seal of said court this . . . . day of . . . . . . A.D., 19. . . [1965 c 145 § 11.28.140. Prior: 1917 c 156 § 65; RRS § 1435; prior: Code 1881 § 1392; 1863 p 220 § 125; 1860 p 182 § 92.] 11.28.150 11.28.150 Revocation of letters by discovery of will. If after letters of administration are granted a will of the (2006 Ed.) Letters Testamentary and of Administration deceased be found and probate thereof be granted, the letters shall be revoked and letters testamentary or of administration with the will annexed, shall be granted. [1965 c 145 § 11.28.150. Prior: 1917 c 156 § 51; RRS § 1421; prior: Code 1881 § 1375; 1863 p 218 § 109; 1860 p 180 § 76.] 11.28.160 11.28.160 Cancellation of letters of administration. The court appointing any personal representative shall have authority for any cause deemed sufficient, to cancel and annul such letters and appoint other personal representatives in the place of those removed. [1965 c 145 § 11.28.160. Prior: 1917 c 156 § 52; RRS § 1422.] Revocation of letters—Causes: RCW 11.28.250. 11.28.170 11.28.170 Oath of personal representative. Before letters testamentary or of administration are issued, each personal representative or an officer of a bank or trust company qualified to act as a personal representative, must take and subscribe an oath, before some person authorized to administer oaths, that the duties of the trust as personal representative will be performed according to law, which oath must be filed in the cause. [2005 c 97 § 3; 1965 c 145 § 11.28.170. Prior: 1917 c 156 § 66; RRS § 1436; prior: Code 1881 § 1393; 1877 p 211 § 4; 1873 p 329 § 366.] 11.28.185 11.28.185 Bond or other security of personal representative—When not required—Waiver—Corporate trustee—Additional bond—Reduction—Other security. When the terms of the decedent’s will manifest an intent that the personal representative appointed to administer the estate shall not be required to furnish bond or other security, or when the personal representative is the surviving spouse of the decedent and it appears to the court that the entire estate, after provision for expenses and claims of creditors, will be distributable to such spouse, then such personal representative shall not be required to give bond or other security as a condition of appointment. In all cases where a bank or trust company authorized to act as personal representative is appointed as personal representative, no bond shall be required. In all other cases, unless waived by the court, the personal representative shall give such bond or other security, in such amount and with such surety or sureties, as the court may direct. Every person required to furnish bond must, before receiving letters testamentary or of administration, execute a bond to the state of Washington conditioned that the personal representative shall faithfully execute the duty of the trust according to law. The court may at any time after appointment of the personal representative require said personal representative to give a bond or additional bond, the same to be conditioned and to be approved as provided in this section; or the court may allow a reduction of the bond upon a proper showing. In lieu of bond, the court may in its discretion, substitute other security or financial arrangements, such as provided under RCW 11.88.105, or as the court may deem adequate to protect the assets of the estate. [1977 ex.s. c 234 § 5; 1974 ex.s. c 117 § 46.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. (2006 Ed.) 11.28.230 Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.28.190 Examination of sureties—Additional security—Costs. Before the judge approves any bond required under this chapter, and after its approval, he may, of his own motion, or upon the motion of any person interested in the estate, supported by affidavit that the sureties, or some one or more of them, are not worth as much as they have justified to, order a citation to issue, requiring such sureties to appear before him at a designated time and place, to be examined touching their property and its value; and the judge must, at the same time, cause notice to be issued to the personal representative, requiring his appearance on the return of the citation, and on its return he may examine the sureties and such witnesses as may be produced touching the property of the sureties and its value; and if upon such examination he is satisfied that the bond is insufficient he must require sufficient additional security. If the bond and sureties are found by the court to be sufficient, the costs incident to such hearing shall be taxed against the party instituting such hearing. As a part of such costs the sureties appearing shall be allowed such fees and mileage as witnesses are allowed in civil proceedings: PROVIDED, That when the citation herein referred to is issued on the motion of the court, no costs shall be imposed. [1965 c 145 § 11.28.190. Prior: 1917 c 156 § 68; RRS § 1438; prior: Code 1881 § 1400; 1877 p 212 § 4; 1863 p 221 § 129; 1860 p 183 § 96.] 11.28.190 Fees and allowances of witnesses: Chapter 2.40 RCW, RCW 5.56.010. 11.28.210 New or additional bond. Any person interested may at any time by verified petition to the court, or otherwise, complain of the sufficiency of any bond or sureties thereon, and the court may upon such petition, or upon its own motion, and with or without hearing upon the matter, require the personal representative to give a new, or additional bond, or bonds, and in all such matters the court may act in its discretion and make such orders and citations as to it may seem right and proper in the premises. [1965 c 145 § 11.28.210. Prior: 1917 c 156 § 70; RRS § 1440; prior: 1891 p 383 § 13 1/2; Code 1881 § 1404; 1877 p 212 § 4; 1863 p 221 § 131; 1860 p 183 § 98.] 11.28.210 11.28.220 Persons disqualified as sureties. No judge of the superior court, no sheriff, clerk of a court, or deputy of either, and no attorney at law shall be taken as surety on any bond required to be taken in any proceeding in probate. [1965 c 145 § 11.28.220. Prior: 1917 c 156 § 71; RRS § 1441; prior: 1891 p 383 § 14; Code 1881 § 1409; 1863 p 221 § 128; 1860 p 183 § 95.] 11.28.220 11.28.230 Bond not void for want of form—Successive recoveries. No bond required under the provisions of this chapter, and intended as such bond, shall be void for want of form, recital or condition; nor shall the principal or surety on such account be discharged, but all the parties thereto shall be held and bound to the full extent contemplated by the law requiring the same, to the amount specified in such bond. In all actions on such defective bond the plaintiff may state its legal effect in the same manner as though it were a perfect bond. The bond shall not be void upon the first 11.28.230 [Title 11 RCW—page 27] 11.28.235 Title 11 RCW: Probate and Trust Law recovery, but may be sued and recovered upon, from time to time, by any person aggrieved in his own name, until the whole penalty is exhausted. [1965 c 145 § 11.28.230. Prior: 1917 c 156 § 73; RRS § 1443; prior: Code 1881 §§ 1412, 1397; 1877 p 211 § 4; 1854 p 219 § 489.] Bond not to fail for want of form or substance: RCW 19.72.170. 11.28.235 11.28.235 Limitation of action against sureties. All actions against sureties shall be commenced within six years after the revocation or surrender of letters of administration or death of the principal. [1965 c 145 § 11.28.235. Prior: 1917 c 156 § 80; RCW 11.28.310; RRS § 1450; prior: 1891 p 385 § 21; Code 1881 § 1431; 1854 p 274 § 42.] 11.28.237 11.28.237 Notice of appointment as personal representative, pendency of probate—Proof by affidavit. (1) Within twenty days after appointment, the personal representative of the estate of a decedent shall cause written notice of his or her appointment and the pendency of said probate proceedings, to be served personally or by mail to each heir, legatee and devisee of the estate and each beneficiary or transferee of a nonprobate asset of the decedent whose names and addresses are known to him or her, and proof of such mailing or service shall be made by affidavit and filed in the cause. (2) If the personal representative does not otherwise give notice to creditors under chapter 11.40 RCW within thirty days after appointment, the personal representative shall cause written notice of his or her appointment and the pendency of the probate proceedings to be mailed to the state of Washington department of social and health services’ office of financial recovery, and proof of the mailing shall be made by affidavit and filed in the cause. [1997 c 252 § 85; 1994 c 221 § 24; 1977 ex.s. c 234 § 6; 1974 ex.s. c 117 § 30; 1969 c 70 § 2; 1965 c 145 § 11.28.237. Prior: 1955 c 205 § 13, part; RCW 11.76.040, part.] Effective dates—1994 c 221: See note following RCW 11.94.070. Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.28.238 11.28.238 Notice of appointment as personal representative—Notice to department of revenue. Duty of personal representative to notify department of revenue of administration; personal liability for taxes upon failure to give notice: See RCW 82.32.240. 11.28.240 11.28.240 Request for special notice of proceedings in probate—Prohibitions. (1) At any time after the issuance of letters testamentary or of administration or certificate of qualification upon the estate of any decedent, any person interested in the estate as an heir, devisee, distributee, legatee or creditor whose claim has been duly served and filed, or the lawyer for the heir, devisee, distributee, legatee, or creditor may serve upon the personal representative or upon the lawyer for the personal representative, and file with the clerk of the court wherein the administration of the estate is pending, a written request stating that the person desires special notice of any or all of the following named matters, steps or proceedings in the administration of the estate, to wit: [Title 11 RCW—page 28] (a) Filing of petitions for sales, leases, exchanges or mortgages of any property of the estate. (b) Petitions for any order of solvency or for nonintervention powers. (c) Filing of accounts. (d) Filing of petitions for distribution. (e) Petitions by the personal representative for family allowances and homesteads. (f) The filing of a declaration of completion. (g) The filing of the inventory. (h) Notice of presentation of personal representative’s claim against the estate. (i) Petition to continue a going business. (j) Petition to borrow upon the general credit of the estate. (k) Petition for judicial proceedings under chapter 11.96A RCW. (l) Petition to reopen an estate. (m) Intent to distribute estate assets, other than distributions in satisfaction of specific bequests or legacies of specific dollar amounts. (n) Intent to pay attorney’s or personal representative’s fees. The requests shall state the post office address of the heir, devisee, distributee, legatee or creditor, or his or her lawyer, and thereafter a brief notice of the filing of any of the petitions, accounts, declaration, inventory or claim, except petitions for sale of perishable property, or other tangible personal property which will incur expense or loss by keeping, shall be addressed to the heir, devisee, distributee, legatee or creditor, or his or her lawyer, at the post office address stated in the request, and deposited in the United States post office, with prepaid postage, at least ten days before the hearing of the petition, account or claim or of the proposed distribution or payment of fees; or personal service of the notices may be made on the heir, devisee, distributee, legatee, creditor, or lawyer, not less than five days before the hearing, and the personal service shall have the same effect as deposit in the post office, and proof of mailing or of personal service must be filed with the clerk before the hearing of the petition, account or claim or of the proposed distribution or payment of fees. If the notice has been regularly given, any distribution or payment of fees and any order or judgment, made in accord therewith is final and conclusive. (2) Notwithstanding subsection (1) of this section, a request for special notice may not be made by a person, and any request for special notice previously made by a person becomes null and void, when: (a) That person qualifies to request special notice solely by reason of being a specific legatee, all of the property that person is entitled to receive from the decedent’s estate has been distributed to that person, and that person’s bequest is not subject to any subsequent abatement for the payment of the decedent’s debts, expenses, or taxes; (b) That person qualifies to request special notice solely by reason of being an heir of the decedent, none of the decedent’s property is subject to the laws of descent and distribution, the decedent’s will has been probated, and the time for contesting the probate of that will has expired; or (c) That person qualifies to request special notice solely by reason of being a creditor of the decedent and that person (2006 Ed.) Letters Testamentary and of Administration has received all of the property that the person is entitled to receive from the decedent’s estate. [1999 c 42 § 606; 1997 c 252 § 4; 1985 c 30 § 5. Prior: 1984 c 149 § 8; 1965 c 145 § 11.28.240; prior: 1941 c 206 § 1; 1939 c 132 § 1; 1917 c 156 § 64; Rem. Supp. 1941 § 1434.] 11.28.300 156 § 75; RRS § 1445; prior: 1891 p 384 § 17; Code 1881 § 1413; 1877 p 213 § 4.] 11.28.270 Borrowing on general credit of estate—Petition—Notice—Hearing: RCW 11.56.280. 11.28.270 Powers of remaining personal representatives if letters to associates revoked or surrendered or upon disqualification. If more than one personal representative of an estate is serving when the letters to any of them are revoked or surrendered or when any part of them dies or in any way becomes disqualified, those who remain shall perform all the duties required by law unless the decedent provided otherwise in a duly probated will or unless the court orders otherwise. [1997 c 252 § 5; 1965 c 145 § 11.28.270. Prior: 1917 c 156 § 76; RRS § 1446; prior: Code 1881 § 1427; 1854 p 273 § 38.] Claim of personal representative—Presentation and petition—Filing: RCW 11.40.140. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Continuation of decedent’s business: RCW 11.48.025. 11.28.280 Purchase of claims by personal representative: RCW 11.48.080. Report of personal representative, notice of hearing: RCW 11.76.020, 11.76.040. Sales, exchanges, leases, mortgages and borrowing: Chapter 11.56 RCW. 11.28.250 11.28.250 Revocation of letters—Causes. Whenever the court has reason to believe that any personal representative has wasted, embezzled, or mismanaged, or is about to waste, or embezzle the property of the estate committed to his charge, or has committed, or is about to commit a fraud upon the estate, or is incompetent to act, or is permanently removed from the state, or has wrongfully neglected the estate, or has neglected to perform any acts as such personal representative, or for any other cause or reason which to the court appears necessary, it shall have power and authority, after notice and hearing to revoke such letters. The manner of the notice and of the service of the same and of the time of hearing shall be wholly in the discretion of the court, and if the court for any such reasons revokes such letters the powers of such personal representative shall at once cease, and it shall be the duty of the court to immediately appoint some other personal representative, as in this title provided. [1965 c 145 § 11.28.250. Prior: 1917 c 156 § 74; RRS § 1444; prior: Code 1881 § 1414; 1863 p 218 § 112; 1860 p 186 § 114.] Absentee estates, removal of trustee: RCW 11.80.060. Accounting on revocation of letters: RCW 11.28.290. Cancellation of letters of administration: RCW 11.28.160. Effect on compensation of personal representative who fails to discharge duties: RCW 11.48.210. Notice to creditors when personal representative removed—Limit tolled by vacancy: RCW 11.40.150. Revocation of letters by discovery of will: RCW 11.28.150. upon conviction of crime or becoming of unsound mind: RCW 11.36.010. Successor personal representative: RCW 11.28.280. 11.28.260 11.28.260 Revocation of letters—Proceedings in court or chambers. The applications and acts authorized by RCW 11.28.250 may be heard and determined in court or at chambers. All orders made therein must be entered upon the minutes of the court. [1965 c 145 § 11.28.260. Prior: 1917 c (2006 Ed.) 11.28.280 Successor personal representative. Except as otherwise provided in RCW 11.28.270, if a personal representative of an estate dies or resigns or the letters are revoked before the settlement of the estate, letters testamentary or letters of administration of the estate remaining unadministered shall be granted to those to whom the letters would have been granted if the original letters had not been obtained, or the person obtaining them had renounced administration, and the successor personal representative shall perform like duties and incur like liabilities as the preceding personal representative, unless the decedent provided otherwise in a duly probated will or unless the court orders otherwise. A succeeding personal representative may petition for nonintervention powers under chapter 11.68 RCW. [1997 c 252 § 6; 1974 ex.s. c 117 § 26; 1965 c 145 § 11.28.280. Prior: 1955 c 205 § 8; 1917 c 156 § 77; RRS § 1447; prior: Code 1881 § 1428.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.28.290 11.28.290 Accounting on death, resignation, or revocation of letters. If any personal representative resign, or his letters be revoked, or he die, he or his representatives shall account for, pay, and deliver to his successor or to the surviving or remaining personal representatives, all money and property of every kind, and all rights, credits, deeds, evidences of debt, and papers of every kind, of the deceased, at such time and in such manner as the court shall order on final settlement with such personal representative or his legal representatives. [1965 c 145 § 11.28.290. Prior: 1917 c 156 § 78; RRS § 1448; prior: Code 1881 § 1429; 1854 p 273 § 40.] 11.28.300 11.28.300 Proceedings against delinquent personal representative. The succeeding administrator, or remaining personal representative may proceed by law against any delinquent former personal representative, or his personal representatives, or the sureties of either, or against any other person possessed of any part of the estate. [1965 c 145 § 11.28.300. Prior: 1917 c 156 § 79; RRS § 1449; prior: 1891 p 384 § 20; Code 1881 § 1430; 1854 p 273 § 41.] Limitation of action against sureties: RCW 11.28.235. [Title 11 RCW—page 29] 11.28.330 Title 11 RCW: Probate and Trust Law 11.28.330 11.28.330 Notice of adjudication of testacy or intestacy and heirship—Contents—Service or mailing. If no personal representative is appointed to administer the estate of a decedent, the person obtaining the adjudication of testacy, or intestacy and heirship, within thirty days shall personally serve or mail a true copy of the adjudication to each heir, legatee, and devisee of the decedent, which copy shall contain the name of the decedent’s estate and the probate cause number, and shall: (1) State the name and address of the applicant; (2) State that on the . . . . day of . . . . . . , . . . ., the applicant obtained an order from the superior court of . . . . . . county, state of Washington, adjudicating that the decedent died intestate, or testate, whichever shall be the case; (3) In the event the decedent died testate, enclose a copy of his will therewith, and state that the adjudication of testacy will become final and conclusive for all legal intents and purposes unless any heir, legatee, or devisee of the decedent shall contest said will within four months after the date the said will was adjudicated to be the last will and testament of the decedent; (4) In the event that the decedent died intestate, set forth the names and addresses of the heirs of the decedent, their relationship to the decedent, the distributive shares of the estate of the decedent which they are entitled to receive, and that said adjudication of intestacy and heirship shall become final and conclusive for all legal intents and purposes, unless, within four months of the date of said adjudication of intestacy, a petition shall be filed seeking the admission of a will of the decedent for probate, or contesting the adjudication of heirship. Notices provided for in this section may be served personally or sent by regular mail, and proof of such service or mailing shall be made by an affidavit filed in the cause; (5) Mail a true copy of the adjudication, including the decedent’s social security number and the name and address of the applicant, to the state of Washington department of social and health services office of financial recovery. [2004 c 193 § 1; 1974 ex.s. c 117 § 31.] Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.28.340 11.28.340 Order of adjudication of testacy or intestacy and heirship—Entry—Time limitation—Deemed final decree of distribution, when—Purpose—Finality of adjudications. Unless, within four months after the entry of the order adjudicating testacy or intestacy and heirship, and the mailing or service of the notice required in RCW 11.28.330 any heir, legatee or devisee of the decedent shall offer a later will for probate or contest an adjudication of testacy in the manner provided in this title for will contests, or offer a will of the decedent for probate following an adjudication of intestacy and heirship, or contesting the determination of heirship, an order adjudicating testacy or intestacy and heirship without appointing a personal representative to administer a decedent’s estate shall, as to those persons by whom notice was waived or to whom said notice was mailed or on whom served, be deemed the equivalent of the entry of a final decree of distribution in accordance with the provisions of chapter 11.76 RCW for the purpose of: [Title 11 RCW—page 30] (1) Establishing the decedent’s will as his last will and testament and persons entitled to receive his estate thereunder; or (2) Establishing the fact that the decedent died intestate, and those persons entitled to receive his estate as his heirs at law. The right of an heir, legatee, or devisee to receive the assets of a decedent shall, to the extent otherwise provided by this title, be subject to the prior rights of the decedent’s creditors and of any persons entitled to a homestead award or award in lieu of homestead or family allowance, and nothing contained in this section shall be deemed to alter or diminish such prior rights, or to prohibit any person for good cause shown, from obtaining the appointment of a personal representative to administer the estate of the decedent after the entry of an order adjudicating testacy or intestacy and heirship. However, if the petition for letters testamentary or of administration shall be filed more than four months after the date of the adjudication of testacy or of intestacy and heirship, the issuance of such letters shall not affect the finality of said adjudications. Four months after providing all notices as required in RCW 11.28.330, any person paying, delivering, transferring, or issuing property to the person entitled thereto under an adjudication of testacy or intestacy and heirship that is deemed the equivalent of a final decree of distribution as set forth in this section is discharged and released to the same extent as if such person has dealt with a personal representative of the decedent. [2004 c 193 § 2; 1988 c 29 § 1; 1977 ex.s. c 234 § 7; 1974 ex.s. c 117 § 32.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. Chapter 11.32 Chapter 11.32 RCW SPECIAL ADMINISTRATORS Sections 11.32.010 11.32.020 11.32.030 11.32.040 11.32.050 11.32.060 Appointment. Bond. Powers and duties. Succession by personal representative. Not liable to creditors. To render account. 11.32.010 11.32.010 Appointment. When, by reason of an action concerning the proof of a will, or from any other cause, there shall be a delay in granting letters testamentary or of administration, the judge may, in his discretion, appoint a special administrator (other than one of the parties) to collect and preserve the effects of the deceased; and in case of an appeal from the decree appointing such special administrator, he shall, nevertheless, proceed in the execution of his trust until he shall be otherwise ordered by the appellate court. [1965 c 145 § 11.32.010. Prior: 1917 c 156 § 81; RRS § 1451; prior: 1891 p 384 § 19; Code 1881 § 1419; 1863 p 222 § 137; 1860 p 184 § 104.] 11.32.020 11.32.020 Bond. Every such administrator shall, before entering on the duties of his trust, give bond, with sufficient surety or sureties, in such sum as the judge shall order, pay(2006 Ed.) Qualifications of Personal Representatives able to the state of Washington, with conditions as required of an executor or in other cases of administration: PROVIDED, That in all cases where a bank or trust company authorized to act as administrator is appointed special administrator or acts as special administrator under an appointment as such heretofore made, no bond shall be required. [1965 c 145 § 11.32.020. Prior: 1963 c 46 § 2; 1917 c 156 § 82; RRS § 1452; prior: Code 1881 § 1420; 1863 pp 220, 222 §§ 126, 138; 1860 pp 183, 184 §§ 93, 105.] Bond of personal representative: RCW 11.28.185. 11.32.030 11.32.030 Powers and duties. Such special administrator shall collect all the goods, chattels, money, effects, and debts of the deceased, and preserve the same for the personal representative who shall thereafter be appointed; and for that purpose may commence and maintain suits as an administrator, and may also sell such perishable and other goods as the court shall order sold, and make family allowances under the order of the court. The appointment may be for a specified time, to perform duties respecting specific property, or to perform particular acts, as stated in the order of appointment. Such special administrator shall be allowed such compensation for his services as the said court shall deem reasonable, together with reasonable fees for his attorney. [1965 c 145 § 11.32.030. Prior: 1917 c 156 § 83; RRS § 1453; prior: Code 1881 § 1421; 1863 p 222 § 139; 1860 p 185 § 106.] 11.32.040 11.32.040 Succession by personal representative. Upon granting letters testamentary or of administration the power of the special administrator shall cease, and he shall forthwith deliver to the personal representative all the goods, chattels, money, effects, and debts of the deceased in his hands, and the personal representative may be admitted to prosecute any suit commenced by the special administrator, in like manner as an administrator de bonis non is authorized to prosecute a suit commenced by a former personal representative. The estate shall be liable for obligations incurred by the special administrator pursuant to the order of appointment or approved by the court. [1965 c 145 § 11.32.040. Prior: 1917 c 156 § 84; RRS § 1454; prior: Code 1881 § 1422; 1863 p 233 § 140; 1860 p 185 § 107.] 11.32.050 11.32.050 Not liable to creditors. Such special administrator shall not be liable to an action by any creditor of the deceased, and the time for limitation of all suits against the estate shall begin to run from the time of granting letters testamentary or of administration in the usual form, in like manner as if such special administration had not been granted. [1965 c 145 § 11.32.050. Prior: 1917 c 156 § 85; RRS § 1455; prior: Code 1881 § 1423; 1863 p 223 § 141; 1860 p 185 § 108.] 11.32.060 11.32.060 To render account. The special administrator shall also render an account, under oath, of his proceedings, in like manner as other administrators are required to do. [1965 c 145 § 11.32.060. Prior: 1917 c 156 § 86; RRS § 1456; prior: Code 1881 § 1424; 1863 p 223 § 142; 1860 p 185 § 109.] Settlement of estates: Chapter 11.76 RCW. (2006 Ed.) Chapter 11.36 11.36.021 Chapter 11.36 RCW QUALIFICATIONS OF PERSONAL REPRESENTATIVES Sections 11.36.010 11.36.021 Parties disqualified—Result of disqualification after appointment. Trustees—Who may serve. 11.36.010 11.36.010 Parties disqualified—Result of disqualification after appointment. The following persons are not qualified to act as personal representatives: Corporations, minors, persons of unsound mind, or persons who have been convicted of any felony or of a misdemeanor involving moral turpitude: PROVIDED, That trust companies regularly organized under the laws of this state and national banks when authorized so to do may act as the personal representative of decedents’ or incompetents’ estates upon petition of any person having a right to such appointment and may act as executors or guardians when so appointed by will: PROVIDED FURTHER, That professional service corporations regularly organized under the laws of this state whose shareholder or shareholders are exclusively attorneys may act as personal representatives. No trust company or national bank may qualify as such executor or guardian under any will hereafter drawn by it or its agents or employees, and no salaried attorney of any such company may be allowed any attorney fee for probating any such will or in relation to the administration or settlement of any such estate, and no part of any attorney fee may inure, directly or indirectly, to the benefit of any trust company or national bank. When any person to whom letters testamentary or of administration have been issued becomes disqualified to act because of becoming of unsound mind or being convicted of any crime or misdemeanor involving moral turpitude, the court having jurisdiction shall revoke his or her letters. A nonresident may be appointed to act as personal representative if the nonresident appoints an agent who is a resident of the county where such estate is being probated or who is an attorney of record of the estate, upon whom service of all papers may be made; such appointment to be made in writing and filed by the clerk with other papers of such estate; and, unless bond has been waived as provided by RCW 11.28.185, such nonresident personal representative shall file a bond to be approved by the court. [1983 c 51 § 1; 1983 c 3 § 14; 1965 c 145 § 11.36.010. Prior: 1959 c 43 § 1; 1917 c 156 § 87; RRS § 1457; prior: Code 1881 § 1409; 1863 p 227 § 164; 1860 p 189 § 131.] Rules of court: Counsel fees: SPR 98.12W. Financial institutions may act as guardian: RCW 11.88.020. Procedure during minority or absence of executor: RCW 11.28.040. Trust company may act as personal representative: RCW 30.08.150. 11.36.021 11.36.021 Trustees—Who may serve. (1) The following may serve as trustees: (a) Any suitable persons over the age of eighteen years, if not otherwise disqualified; (b) Any trust company regularly organized under the laws of this state and national banks when authorized to do so; (c) Any nonprofit corporation, if the articles of incorporation or bylaws of that corporation permit the action and the [Title 11 RCW—page 31] Chapter 11.40 Title 11 RCW: Probate and Trust Law corporation is in compliance with all applicable provisions of Title 24 RCW; (d) Any professional service corporations regularly organized under the laws of this state whose shareholder or shareholders are exclusively attorneys; and (e) Any other entity so authorized under the laws of the state of Washington. (2) The following are disqualified to serve as trustees: (a) Minors, persons of unsound mind, or persons who have been convicted of any felony or a misdemeanor involving moral turpitude; and (b) A corporation organized under Title 23B RCW that is not authorized under the laws of the state of Washington to act as a fiduciary. [1991 c 72 § 1; 1985 c 30 § 6. Prior: 1984 c 149 § 9.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Chapter 11.40 Chapter 11.40 RCW CLAIMS AGAINST ESTATE Sections 11.40.010 11.40.020 11.40.030 11.40.040 11.40.051 11.40.060 11.40.070 11.40.080 11.40.090 11.40.100 11.40.110 11.40.120 11.40.130 11.40.135 11.40.140 11.40.150 11.40.160 Claims—Presentation—Other notice not affected. Notice to creditors—Manner—Filings—Publication. Notice to creditors—Form. "Reasonably ascertainable" creditor—Definition—Reasonable diligence—Presumptions—Petition for order. Claims against decedent—Time limits. Claims involving liability or casualty insurance—Limitations—Exceptions to time limits. Claims—Form—Manner of presentation—Waiver of defects. Claims—Duty to allow or reject—Notice of petition to allow—Attorneys’ fees. Allowance of claims—Notice—Automatic allowance—Petition for extension—Ranking of claims—Barred claims. Rejection of claim—Time limits—Notice—Compromise of claim. Action pending at decedent’s death—Personal representative as defendant. Effect of judgment against personal representative. Judgment against decedent—Execution barred upon decedent’s death—Presentation—Sale of property. Secured claim—Creditor’s right. Claim of personal representative—Presentation and petition— Filing. Notice to creditors when personal representative resigns, dies, or is removed—Limit tolled by vacancy. Personal representative as successor to notice agent—Notice not affected—Presumptions—Duties. Action on claim not acted on—Contribution: RCW 11.76.170. Contingent or disputed claims, procedure: RCW 11.76.190. Evidence, transaction with person since deceased: RCW 5.60.030. Guardianship—Claims: RCW 11.92.035. Incompetent, deceased, claims against estate of: RCW 11.88.150. Judgment against executor or administrator, effect: RCW 4.56.050. Liability of personal representative: RCW 11.76.160. Limitation of actions: Chapter 4.16 RCW. Order maturing claim not due: RCW 11.76.180. Order of payment of debts: RCW 11.76.110. Payment of claims where estate insufficient: RCW 11.76.150. Quasi-community property—Lifetime transfers—Claims by surviving spouse: RCW 26.16.240. Sale, etc., of property—Priority as to realty or personalty: Chapter 11.10 RCW. Survival of actions: Chapter 4.20 RCW. [Title 11 RCW—page 32] Tax constitutes debt—Priority of lien: RCW 82.32.240. 11.40.010 11.40.010 Claims—Presentation—Other notice not affected. A person having a claim against the decedent may not maintain an action on the claim unless a personal representative has been appointed and the claimant has presented the claim as set forth in this chapter. However, this chapter does not affect the notice under RCW 82.32.240 or the ability to maintain an action against a notice agent under chapter 11.42 RCW. [1997 c 252 § 7; 1995 1st sp.s. c 18 § 58; 1994 c 221 § 25; 1991 c 5 § 1; 1989 c 333 § 1; 1974 ex.s. c 117 § 33; 1967 c 168 § 7; 1965 c 145 § 11.40.010. Prior: 1923 c 142 § 3; 1917 c 156 § 107; RRS § 1477; prior: Code 1881 § 1465; 1860 p 195 § 157; 1854 p 280 § 78.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Conflict with federal requirements—Severability—Effective date— 1995 1st sp.s. c 18: See notes following RCW 74.39A.030. Effective dates—1994 c 221: See note following RCW 11.94.070. Application—Effective date—1989 c 333: "This act is necessary for the immediate preservation of the public peace, health, or safety, or the support of the state government and its existing public institutions, and shall take effect immediately [May 11, 1989]. This act shall apply to probate proceedings that are open on or are commenced after the effective date, except that section 5 of this act shall apply only to decedents dying after the effective date." [1989 c 333 § 9.] Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. Publication of legal notices: Chapter 65.16 RCW. 11.40.020 11.40.020 Notice to creditors—Manner—Filings— Publication. (1) Subject to subsection (2) of this section, a personal representative may give notice to the creditors of the decedent, in substantially the form set forth in RCW 11.40.030, announcing the personal representative’s appointment and requiring that persons having claims against the decedent present their claims within the time specified in RCW 11.40.051 or be forever barred as to claims against the decedent’s probate and nonprobate assets. If notice is given: (a) The personal representative shall file the notice with the court; (b) The personal representative shall cause the notice to be published once each week for three successive weeks in a legal newspaper in the county in which the estate is being administered; (c) The personal representative may, at any time during the probate proceeding, give actual notice to creditors who become known to the personal representative by serving the notice on the creditor or mailing the notice to the creditor at the creditor’s last known address, by regular first class mail, postage prepaid; and (d) The personal representative shall also mail a copy of the notice, including the decedent’s social security number, to the state of Washington department of social and health services office of financial recovery. The personal representative shall file with the court proof by affidavit of the giving and publication of the notice. (2) If the decedent was a resident of the state of Washington at the time of death and probate proceedings are commenced in a county other than the county of the decedent’s residence, then instead of the requirements under subsection (1)(a) and (b) of this section, the personal representative shall (2006 Ed.) Claims Against Estate cause the notice to creditors in substantially the form set forth in RCW 11.40.030 to be published once each week for three successive weeks in a legal newspaper in the county of the decedent’s residence and shall file the notice with the superior court of the county in which the probate proceedings were commenced. [2005 c 97 § 4; 1999 c 42 § 601; 1997 c 252 § 8; 1974 ex.s. c 117 § 34; 1965 c 145 § 11.40.020. Prior: 1917 c 156 § 108; RRS § 1478; prior: 1883 p 29 § 1; Code 1881 § 1468.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.40.030 11.40.030 Notice to creditors—Form. Notice under RCW 11.40.020 must contain the following elements in substantially the following form: CAPTION OF CASE .......... ) ) ) ) No. PROBATE NOTICE TO CREDITORS RCW 11.40.030 The personal representative named below has been appointed as personal representative of this estate. Any person having a claim against the decedent must, before the time the claim would be barred by any otherwise applicable statute of limitations, present the claim in the manner as provided in RCW 11.40.070 by serving on or mailing to the personal representative or the personal representative’s attorney at the address stated below a copy of the claim and filing the original of the claim with the court in which the probate proceedings were commenced. The claim must be presented within the later of: (1) Thirty days after the personal representative served or mailed the notice to the creditor as provided under RCW 11.40.020(1)(c); or (2) four months after the date of first publication of the notice. If the claim is not presented within this time frame, the claim is forever barred, except as otherwise provided in RCW 11.40.051 and 11.40.060. This bar is effective as to claims against both the decedent’s probate and nonprobate assets. Date of First Publication: 11.40.051 Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.40.040 11.40.040 "Reasonably ascertainable" creditor— Definition—Reasonable diligence—Presumptions—Petition for order. (1) For purposes of RCW 11.40.051, a "reasonably ascertainable" creditor of the decedent is one that the personal representative would discover upon exercise of reasonable diligence. The personal representative is deemed to have exercised reasonable diligence upon conducting a reasonable review of the decedent’s correspondence, including correspondence received after the date of death, and financial records, including personal financial statements, loan documents, checkbooks, bank statements, and income tax returns, that are in the possession of or reasonably available to the personal representative. (2) If the personal representative conducts the review, the personal representative is presumed to have exercised reasonable diligence to ascertain creditors of the decedent and any creditor not ascertained in the review is presumed not reasonably ascertainable within the meaning of RCW 11.40.051. These presumptions may be rebutted only by clear, cogent, and convincing evidence. (3) The personal representative may evidence the review and resulting presumption by filing with the court an affidavit regarding the facts referred to in this section. The personal representative may petition the court for an order declaring that the personal representative has made a review and that any creditors not known to the personal representative are not reasonably ascertainable. The petition must be filed under RCW 11.96A.080 and the notice specified under RCW 11.96A.110 must also be given by publication. [1999 c 42 § 607; 1997 c 252 § 10; 1994 c 221 § 28; 1974 ex.s. c 117 § 36; 1965 c 145 § 11.40.040. Prior: 1917 c 156 § 110; RRS § 1480; prior: Code 1881 § 1470; 1854 p 281 § 83.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. Order of payment of debts: RCW 11.76.110. 11.40.051 Personal Representative: Attorney for the Personal Representative: Address for Mailing or Service: Court of probate proceedings and cause number: [2005 c 97 § 5; 1997 c 252 § 9; 1989 c 333 § 7; 1977 ex.s. c 234 § 8; 1974 ex.s. c 117 § 35; 1965 c 145 § 11.40.030. Prior: 1963 c 43 § 1; 1917 c 156 § 109; RRS § 1479; prior: Code 1881 § 1469; 1873 p 285 § 156; 1854 p 281 § 82.] Rules of court: SPR 98.08W, 98.10W, 98.12W. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Application—Effective date—1989 c 333: See note following RCW 11.40.010. (2006 Ed.) 11.40.051 Claims against decedent—Time limits. (1) Whether or not notice is provided under RCW 11.40.020, a person having a claim against the decedent is forever barred from making a claim or commencing an action against the decedent, if the claim or action is not already barred by an otherwise applicable statute of limitations, unless the creditor presents the claim in the manner provided in RCW 11.40.070 within the following time limitations: (a) If the personal representative provided notice under RCW 11.40.020 and the creditor was given actual notice as provided in RCW 11.40.020(1)(c), the creditor must present the claim within the later of: (i) Thirty days after the personal representative’s service or mailing of notice to the creditor; and (ii) four months after the date of first publication of the notice; [Title 11 RCW—page 33] 11.40.060 Title 11 RCW: Probate and Trust Law (b) If the personal representative provided notice under RCW 11.40.020 and the creditor was not given actual notice as provided in RCW 11.40.020(1)(c): (i) If the creditor was not reasonably ascertainable, as defined in RCW 11.40.040, the creditor must present the claim within four months after the date of first publication of notice; (ii) If the creditor was reasonably ascertainable, as defined in RCW 11.40.040, the creditor must present the claim within twenty-four months after the decedent’s date of death; and (c) If notice was not provided under this chapter or chapter 11.42 RCW, the creditor must present the claim within twenty-four months after the decedent’s date of death. (2) An otherwise applicable statute of limitations applies without regard to the tolling provisions of RCW 4.16.190. (3) This bar is effective as to claims against both the decedent’s probate and nonprobate assets. [2005 c 97 § 6; 1997 c 252 § 11.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.40.060 11.40.060 Claims involving liability or casualty insurance—Limitations—Exceptions to time limits. The time limitations for presenting claims under this chapter do not accrue to the benefit of any liability or casualty insurer. Claims against the decedent or the decedent’s marital community that can be fully satisfied by applicable insurance coverage or proceeds need not be presented within the time limitation of RCW 11.40.051, but the amount of recovery cannot exceed the amount of the insurance. The claims may at any time be presented as provided in RCW 11.40.070, subject to the otherwise relevant statutes of limitations, and do not constitute a cloud, lien, or encumbrance upon the title to the decedent’s probate or nonprobate assets nor delay or prevent the conclusion of probate proceedings or the transfer or distribution of assets of the estate. This section does not serve to extend any otherwise relevant statutes of limitations. [1997 c 252 § 12; 1974 ex.s. c 117 § 37; 1965 c 145 § 11.40.060. Prior: 1917 c 156 § 112; RRS § 1482; prior: Code 1881 § 1472; 1873 p 285 § 159; 1869 p 166 § 665; 1854 p 281 § 84.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.40.070 11.40.070 Claims—Form—Manner of presentation—Waiver of defects. (1) The claimant, the claimant’s attorney, or the claimant’s agent shall sign the claim and include in the claim the following information: (a) The name and address of the claimant; (b) The name, address, if different from that of the claimant, and nature of authority of an agent signing the claim on behalf of the claimant; (c) A statement of the facts or circumstances constituting the basis of the claim; (d) The amount of the claim; and (e) If the claim is secured, unliquidated, contingent, or not yet due, the nature of the security, the nature of the uncertainty, or the date when it will become due. [Title 11 RCW—page 34] Failure to describe correctly the information in (c), (d), or (e) of this subsection, if the failure is not substantially misleading, does not invalidate the claim. (2) A claim does not need to be supported by affidavit. (3) A claim must be presented within the time limits set forth in RCW 11.40.051 by: (a) Serving on or mailing to, by regular first class mail, the personal representative or the personal representative’s attorney a copy of the signed claim; and (b) filing the original of the signed claim with the court in which probate proceedings were commenced. A claim is deemed presented upon the later of the date of postmark or service on the personal representative, or the personal representative’s attorney, and filing with the court. (4) Notwithstanding any other provision of this chapter, if a claimant makes a written demand for payment within the time limits set forth in RCW 11.40.051, the personal representative may waive formal defects and elect to treat the demand as a claim properly filed under this chapter if: (a) The claim was due; (b) the amount paid is the amount of indebtedness over and above all payments and offsets; (c) the estate is solvent; and (d) the payment is made in good faith. Nothing in this chapter limits application of the doctrines of waiver, estoppel, or detrimental claims or any other equitable principle. [2005 c 97 § 7; 1997 c 252 § 13; 1965 c 145 § 11.40.070. Prior: 1917 c 156 § 113; RRS § 1483; prior: Code 1881 § 1473; 1854 p 281 § 85.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.40.080 11.40.080 Claims—Duty to allow or reject—Notice of petition to allow—Attorneys’ fees. (1) The personal representative shall allow or reject all claims presented in the manner provided in RCW 11.40.070. The personal representative may allow or reject a claim in whole or in part. (2) If the personal representative has not allowed or rejected a claim within the later of four months from the date of first publication of the notice to creditors or thirty days from presentation of the claim, the claimant may serve written notice on the personal representative that the claimant will petition the court to have the claim allowed. If the personal representative fails to notify the claimant of the allowance or rejection of the claim within twenty days after the personal representative’s receipt of the claimant’s notice, the claimant may petition the court for a hearing to determine whether the claim should be allowed or rejected, in whole or in part. If the court substantially allows the claim, the court may allow the petitioner reasonable attorneys’ fees chargeable against the estate. [1997 c 252 § 14; 1994 c 221 § 29; 1988 c 64 § 22; 1965 c 145 § 11.40.080. Prior: 1917 c 156 § 114; RRS § 1484; prior: Code 1881 § 1474; 1854 p 281 § 86.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. Captions—Severability—1988 c 64: See RCW 83.100.904 and 83.100.905. 11.40.090 11.40.090 Allowance of claims—Notice—Automatic allowance—Petition for extension—Ranking of claims— Barred claims. (1) If the personal representative allows a claim, the personal representative shall notify the claimant of (2006 Ed.) Claims Against Estate the allowance by personal service or regular first class mail to the address stated on the claim. (2) A claim that on its face does not exceed one thousand dollars presented in the manner provided in RCW 11.40.070 must be deemed allowed and may not thereafter be rejected unless the personal representative has notified the claimant of rejection of the claim within the later of six months from the date of first publication of the notice to creditors and two months from the personal representative’s receipt of the claim. The personal representative may petition for an order extending the period for automatic allowance of the claims. (3) Allowed claims must be ranked among the acknowledged debts of the estate to be paid expeditiously in the course of administration. (4) A claim may not be allowed if it is barred by a statute of limitations. [1997 c 252 § 15; 1965 c 145 § 11.40.090. Prior: 1917 c 156 § 115; RRS § 1485; prior: Code 1881 § 1475; 1854 p 281 § 87.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.40.100 11.40.100 Rejection of claim—Time limits— Notice—Compromise of claim. (1) If the personal representative rejects a claim, in whole or in part, the claimant must bring suit against the personal representative within thirty days after notification of rejection or the claim is forever barred. The personal representative shall notify the claimant of the rejection and file an affidavit with the court showing the notification and the date of the notification. The personal representative shall notify the claimant of the rejection by personal service or certified mail addressed to the claimant or the claimant’s agent, if applicable, at the address stated in the claim. The date of service or of the postmark is the date of notification. The notification must advise the claimant that the claimant must bring suit in the proper court against the personal representative within thirty days after notification of rejection or the claim will be forever barred. (2) The personal representative may, before or after rejection of any claim, compromise the claim, whether due or not, absolute or contingent, liquidated, or unliquidated, if it appears to the personal representative that the compromise is in the best interests of the estate. [1997 c 252 § 16; 1974 ex.s. c 117 § 47; 1965 c 145 § 11.40.100. Prior: 1917 c 156 § 116; RRS § 1486; prior: Code 1881 § 1476; 1854 p 281 § 88.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.40.150 Rules of court: SPR 98.08W. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.40.120 11.40.120 Effect of judgment against personal representative. The effect of any judgment rendered against a personal representative shall be only to establish the amount of the judgment as an allowed claim. [1997 c 252 § 18; 1965 c 145 § 11.40.120. Prior: 1917 c 156 § 118; RRS § 1488; prior: Code 1881 § 1478; 1854 p 282 § 90.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.40.130 11.40.130 Judgment against decedent—Execution barred upon decedent’s death—Presentation—Sale of property. If a judgment was entered against the decedent during the decedent’s lifetime, an execution may not issue on the judgment after the death of the decedent. The judgment must be presented in the manner provided in RCW 11.40.070, but if the judgment is a lien on any property of the decedent, the property may be sold for the satisfaction of the judgment and the officer making the sale shall account to the personal representative for any surplus. [1997 c 252 § 19; 1965 c 145 § 11.40.130. Prior: 1917 c 156 § 119; RRS § 1489; prior: Code 1881 § 1479; 1854 p 292 § 91.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.40.135 11.40.135 Secured claim—Creditor’s right. If a creditor’s claim is secured by any property of the decedent, this chapter does not affect the right of a creditor to realize on the creditor’s security, whether or not the creditor presented the claim in the manner provided in RCW 11.40.070. [1997 c 252 § 20.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.40.140 11.40.140 Claim of personal representative—Presentation and petition—Filing. If the personal representative has a claim against the decedent, the personal representative must present the claim in the manner provided in RCW 11.40.070 and petition the court for allowance or rejection. The petition must be filed under RCW 11.96A.080. This section applies whether or not the personal representative is acting under nonintervention powers. [1999 c 42 § 608; 1997 c 252 § 21; 1965 c 145 § 11.40.140. Prior: 1917 c 156 § 120; RRS § 1490; prior: Code 1881 § 1482; 1854 p 283 § 94.] 11.40.110 11.40.110 Action pending at decedent’s death—Personal representative as defendant. If an action is pending against the decedent at the time of the decedent’s death, the plaintiff shall, within four months after appointment of the personal representative, serve on the personal representative a petition to have the personal representative substituted as defendant in the action. Upon hearing on the petition, the personal representative shall be substituted, unless, at or before the hearing, the claim of the plaintiff, together with costs, is allowed. [1997 c 252 § 17; 1974 ex.s. c 117 § 38; 1965 c 145 § 11.40.110. Prior: 1917 c 156 § 117; RRS § 1487; prior: Code 1881 § 1477; 1854 p 282 § 89.] (2006 Ed.) Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Request for special notice of proceedings in probate—Prohibitions: RCW 11.28.240. 11.40.150 11.40.150 Notice to creditors when personal representative resigns, dies, or is removed—Limit tolled by vacancy. (1) If a personal representative has given notice under RCW 11.40.020 and then resigns, dies, or is removed, the successor personal representative shall: [Title 11 RCW—page 35] 11.40.160 Title 11 RCW: Probate and Trust Law (a) Publish notice of the vacancy and succession for two successive weeks in the legal newspaper in which notice was published under RCW 11.40.020 if the vacancy occurred within twenty-four months after the decedent’s date of death; and (b) Provide actual notice of the vacancy and succession to a creditor if: (i) The creditor filed a claim and the claim had not been accepted or rejected by the prior personal representative; or (ii) the creditor’s claim was rejected and the vacancy occurred within thirty days after rejection of the claim. (2) The time between the resignation, death, or removal and first publication of the vacancy and succession or, in the case of actual notice, the mailing of the notice of vacancy and succession must be added to the time within which a claim must be presented or a suit on a rejected claim must be filed. This section does not extend the twenty-four month self-executing bar under RCW 11.40.051. [1997 c 252 § 22; 1965 c 145 § 11.40.150. Prior: 1939 c 26 § 1; 1917 c 156 § 121; RRS § 1491; prior: 1891 c 155 § 28; Code 1881 § 1485; 1873 p 288 § 172; 1867 p 106 § 3.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.40.160 Personal representative as successor to notice agent—Notice not affected—Presumptions— Duties. If a notice agent had commenced nonprobate notice to creditors under chapter 11.42 RCW, the appointment of the personal representative does not affect the filing and publication of notice to creditors and does not affect actual notice to creditors given by the notice agent. The personal representative is presumed to have adopted or ratified all acts of the notice agent unless, within thirty days of appointment, the personal representative provides notice of rejection or nullification to the affected claimant or claimants by personal service or certified mail addressed to the claimant or claimant’s agent, if applicable, at the address stated on the claim. The personal representative shall also provide notice under RCW 11.42.150. [1997 c 252 § 23.] 11.40.160 Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Chapter 11.42 RCW SETTLEMENT OF CREDITOR CLAIMS FOR ESTATES PASSING WITHOUT PROBATE Chapter 11.42 Sections 11.42.010 11.42.020 11.42.030 11.42.040 11.42.050 11.42.060 11.42.070 11.42.080 11.42.085 11.42.090 11.42.100 11.42.110 11.42.120 11.42.125 Notice agent—Qualifications. Notice to creditors—Manner—Filings—Publication. Notice to creditors—Form. "Reasonably ascertainable" creditor—Definition—Reasonable diligence—Presumptions—Petition for order. Claims against decedent—Time limits. Claims involving liability or casualty insurance—Limitations—Exceptions to time limits. Claims—Form—Manner of presentation—Waiver of defects. Claims—Duty to allow or reject—Notice of petition to allow—Attorneys’ fees. Property liable for claims—Payment limits. Allowance of claims—Notice—Payment order. Rejection of claim—Time limits—Notice—Time limit for suit—Compromise of claim. Effect of judgment against notice agent. Execution barred upon decedent’s death—Presentation—Sale of property. Secured claim—Creditor’s right. [Title 11 RCW—page 36] 11.42.130 11.42.140 11.42.150 Claim of notice agent or beneficiary—Payment. Notice to creditors when notice agent resigns, dies, or is removed—Limit tolled by vacancy. Appointment of personal representative—Cessation of notice agent powers and authority—Notice not affected—Personal representative’s powers—Petition for reimbursement for allowance and payment of claims by notice agent. 11.42.010 11.42.010 Notice agent—Qualifications. (1) Subject to the conditions stated in this chapter, and if no personal representative has been appointed in this state, a beneficiary or trustee who has received or is entitled to receive by reason of the decedent’s death substantially all of the decedent’s probate and nonprobate assets, is qualified to give nonprobate notice to creditors under this chapter. If no one beneficiary or trustee has received or is entitled to receive substantially all of the assets, then those persons, who in the aggregate have received or are entitled to receive substantially all of the assets, may, under an agreement under RCW 11.96A.220, appoint a person who is then qualified to give nonprobate notice to creditors under this chapter. (2) A person or group of persons is deemed to have received substantially all of the decedent’s probate and nonprobate assets if the person or the group, at the time of the filing of the declaration and oath referred to in subsection (3) of this section, in reasonable good faith believed that the person or the group had received, or was entitled to receive by reason of the decedent’s death, substantially all of the decedent’s probate and nonprobate assets. (3)(a) The "notice agent" means the qualified person who: (i) Pays a filing fee to the clerk of the superior court in a county in which probate may be commenced regarding the decedent, the "notice county", and receives a cause number; and (ii) Files a declaration and oath with the clerk. (b) The declaration and oath must be made in affidavit form or under penalty of perjury and must state that the person making the declaration believes in reasonable good faith that the person is qualified under this chapter to act as the notice agent and that the person will faithfully execute the duties of the notice agent as provided in this chapter. (4) The following persons are not qualified to act as notice agent: (a) Corporations, trust companies, and national banks, except: (i) Such entities as are authorized to do trust business in this state; and (ii) professional service corporations that are regularly organized under the laws of this state whose shareholder or shareholders are exclusively attorneys; (b) Minors; (c) Persons of unsound mind; (d) Persons who have been convicted of a felony or of a misdemeanor involving moral turpitude; and (e) Persons who have given notice under this chapter and who thereafter become of unsound mind or are convicted of a felony or misdemeanor involving moral turpitude. This disqualification does not bar another person, otherwise qualified, from acting as successor notice agent. (5) A nonresident may act as notice agent if the nonresident appoints an agent who is a resident of the notice county or who is attorney of record for the notice agent upon whom service of all papers may be made. The appointment must be (2006 Ed.) Settlement of Creditor Claims for Estates Passing Without Probate made in writing and filed with the court. [1999 c 42 § 609; 1997 c 252 § 24; 1994 c 221 § 31.] 11.42.030 Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.030 Notice to creditors—Form. Notice under RCW 11.42.020 must contain the following elements in substantially the following form: 11.42.030 Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.020 11.42.020 Notice to creditors—Manner—Filings— Publication. (1) Subject to subsection (2) of this section, a notice agent may give nonprobate notice to the creditors of the decedent if: (a) As of the date of the filing of the notice to creditors with the court, the notice agent has no knowledge of another person acting as notice agent or of the appointment of a personal representative in the decedent’s estate in the state of Washington; and (b) According to the records of the court as are available on the date of the filing of the notice to creditors, no cause number regarding the decedent has been issued to any other notice agent and no personal representative of the decedent’s estate had been appointed. (2) The notice agent must give notice to the creditors of the decedent, in substantially the form set forth in RCW 11.42.030, announcing that the notice agent has elected to give nonprobate notice to creditors and requiring that persons having claims against the decedent present their claims within the time specified in RCW 11.42.050 or be forever barred as to claims against the decedent’s probate and nonprobate assets. (a) The notice agent shall file the notice with the court. (b) The notice agent shall cause the notice to be published once each week for three successive weeks in a legal newspaper in the notice county. (c) The notice agent may at any time give actual notice to creditors who become known to the notice agent by serving the notice on the creditor or mailing the notice to the creditor at the creditor’s last known address, by regular first class mail, postage prepaid. (d) The notice agent shall also mail a copy of the notice, including the decedent’s social security number, to the state of Washington department of social and health services’ office of financial recovery. (e) If the decedent was a resident of the state of Washington at the time of death and the notice agent’s declaration and oath were filed in a county other than the county of the decedent’s residence, then instead of the requirements in (a) and (b) of this subsection, the notice agent shall cause the notice to creditors in substantially the form set forth in RCW 11.42.030 to be published once each week for three successive weeks in a legal newspaper in the county of the decedent’s residence and shall file the notice with the superior court of the county in which the notice agent’s declaration and oath were filed. The notice agent shall file with the court proof by affidavit of the giving and publication of the notice. [2005 c 97 § 8; 1997 c 252 § 25; 1995 1st sp.s. c 18 § 59; 1994 c 221 § 32.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Conflict with federal requirements—Severability—Effective date— 1995 1st sp.s. c 18: See notes following RCW 74.39A.030. (2006 Ed.) CAPTION OF CASE .......... ) ) ) ) ) ) No. NONPROBATE NOTICE TO CREDITORS RCW 11.42.030 The notice agent named below has elected to give notice to creditors of the above-named decedent. As of the date of the filing of a copy of this notice with the court, the notice agent has no knowledge of any other person acting as notice agent or of the appointment of a personal representative of the decedent’s estate in the state of Washington. According to the records of the court as are available on the date of the filing of this notice with the court, a cause number regarding the decedent has not been issued to any other notice agent and a personal representative of the decedent’s estate has not been appointed. Any person having a claim against the decedent must, before the time the claim would be barred by any otherwise applicable statute of limitations, present the claim in the manner as provided in RCW 11.42.070 by serving on or mailing to the notice agent or the notice agent’s attorney at the address stated below a copy of the claim and filing the original of the claim with the court in which the notice agent’s declaration and oath were filed. The claim must be presented within the later of: (1) Thirty days after the notice agent served or mailed the notice to the creditor as provided under RCW 11.42.020(2)(c); or (2) four months after the date of first publication of the notice. If the claim is not presented within this time frame, the claim is forever barred, except as otherwise provided in RCW 11.42.050 and 11.42.060. This bar is effective as to claims against both the decedent’s probate and nonprobate assets. Date of First Publication: The notice agent declares under penalty of perjury under the laws of the state of Washington on , [year] , at [state] that the foregoing is true and cor[city] , rect. ..................... Signature of Notice Agent Notice Agent: Attorney for the Notice Agent: Address for Mailing or Service: Court of Notice Agent’s oath and declaration and cause number: [2005 c 97 § 9; 1997 c 252 § 26; 1994 c 221 § 33.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. [Title 11 RCW—page 37] 11.42.040 Title 11 RCW: Probate and Trust Law 11.42.040 11.42.040 "Reasonably ascertainable" creditor— Definition—Reasonable diligence—Presumptions—Petition for order. (1) For purposes of RCW 11.42.050, a "reasonably ascertainable" creditor of the decedent is one that the notice agent would discover upon exercise of reasonable diligence. The notice agent is deemed to have exercised reasonable diligence upon conducting a reasonable review of the decedent’s correspondence, including correspondence received after the date of death, and financial records, including personal financial statements, loan documents, checkbooks, bank statements, and income tax returns, that are in the possession of or reasonably available to the notice agent. (2) If the notice agent conducts the review, the notice agent is presumed to have exercised reasonable diligence to ascertain creditors of the decedent and any creditor not ascertained in the review is presumed not reasonably ascertainable within the meaning of RCW 11.42.050. These presumptions may be rebutted only by clear, cogent, and convincing evidence. (3) The notice agent may evidence the review and resulting presumption by filing with the court an affidavit regarding the facts referred to in this section. The notice agent may petition the court for an order declaring that the notice agent has made a review and that any creditors not known to the notice agent are not reasonably ascertainable. The petition must be filed under RCW 11.96A.080, and the notice specified under RCW 11.96A.110 must also be given by publication. [1999 c 42 § 610; 1997 c 252 § 27; 1994 c 221 § 34.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.050 11.42.050 Claims against decedent—Time limits. (1) If a notice agent provides notice under RCW 11.42.020, any person having a claim against the decedent is forever barred from making a claim or commencing an action against the decedent if the claim or action is not already barred by an otherwise applicable statute of limitations, unless the creditor presents the claim in the manner provided in RCW 11.42.070 within the following time limitations: (a) If the notice agent provided notice under RCW 11.42.020(2) (a) and (b) and the creditor was given actual notice as provided in RCW 11.42.020(2)(c), the creditor must present the claim within the later of: (i) Thirty days after the notice agent’s service or mailing of notice to the creditor; and (ii) four months after the date of first publication of the notice; (b) If the notice agent provided notice under RCW 11.42.020(2) (a) and (b) and the creditor was not given actual notice as provided in RCW 11.42.020(2)(c): (i) If the creditor was not reasonably ascertainable, as defined in RCW 11.42.040, the creditor must present the claim within four months after the date of first publication of the notice; (ii) If the creditor was reasonably ascertainable, as defined in RCW 11.42.040, the creditor must present the claim within twenty-four months after the decedent’s date of death. [Title 11 RCW—page 38] (2) Any otherwise applicable statute of limitations applies without regard to the tolling provisions of RCW 4.16.190. (3) This bar is effective as to claims against both the decedent’s probate and nonprobate assets. [1997 c 252 § 28; 1994 c 221 § 35.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.060 Claims involving liability or casualty insurance—Limitations—Exceptions to time limits. The time limitations for presenting claims under this chapter do not accrue to the benefit of any liability or casualty insurer. Claims against the decedent or the decedent’s marital community that can be fully satisfied by applicable insurance coverage or proceeds need not be presented within the time limitation of RCW 11.42.050, but the amount of recovery cannot exceed the amount of the insurance. If a notice agent provides notice under RCW 11.42.020, the claims may at any time be presented as provided in RCW 11.42.070, subject to the otherwise relevant statutes of limitations, and does not constitute a cloud, lien, or encumbrance upon the title to the decedent’s probate or nonprobate assets nor delay or prevent the transfer or distribution of the decedent’s assets. This section does not serve to extend any otherwise relevant statutes of limitations. [1997 c 252 § 29; 1994 c 221 § 36.] 11.42.060 Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.070 Claims—Form—Manner of presentation—Waiver of defects. (1) The claimant, the claimant’s attorney, or the claimant’s agent shall sign the claim and include in the claim the following information: (a) The name and address of the claimant; (b) The name, address, if different from that of the claimant, and nature of authority of an agent signing the claim on behalf of the claimant; (c) A statement of the facts or circumstances constituting the basis of the claim; (d) The amount of the claim; and (e) If the claim is secured, unliquidated, contingent, or not yet due, the nature of the security, the nature of the uncertainty, or the date when it will become due. Failure to describe correctly the information in (c), (d), or (e) of this subsection, if the failure is not substantially misleading, does not invalidate the claim. (2) A claim does not need to be supported by affidavit. (3) A claim must be presented within the time limits set forth in RCW 11.42.050 by: (a) Serving on or mailing to, by regular first class mail, the notice agent or the notice agent’s attorney a copy of the signed claim; and (b) filing the original of the signed claim with the court in which the notice agent’s declaration and oath were filed. A claim is deemed presented upon the later of the date of postmark or service on the notice agent, or the notice agent’s attorney, and filing with the court. (4) Notwithstanding any other provision of this chapter, if a claimant makes a written demand for payment within the time limits set forth in RCW 11.42.050, the notice agent may waive formal defects and elect to treat the demand as a claim 11.42.070 (2006 Ed.) Settlement of Creditor Claims for Estates Passing Without Probate properly filed under this chapter if: (a) The claim was due; (b) the amount paid was the amount of indebtedness over and above all payments and offsets; (c) the estate is solvent; and (d) the payment is made in good faith. Nothing in this chapter limits application of the doctrines of waiver, estoppel, or detrimental claims or any other equitable principle. [2005 c 97 § 10; 1997 c 252 § 30; 1994 c 221 § 37.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.080 11.42.080 Claims—Duty to allow or reject—Notice of petition to allow—Attorneys’ fees. (1) The notice agent shall allow or reject all claims presented in the manner provided in RCW 11.42.070. The notice agent may allow or reject a claim, in whole or in part. (2) If the notice agent has not allowed or rejected a claim within the later of four months from the date of first publication of the notice to creditors and thirty days from presentation of the claim, the claimant may serve written notice on the notice agent that the claimant will petition the court to have the claim allowed. If the notice agent fails to notify the claimant of the allowance or rejection of the claim within twenty days after the notice agent’s receipt of the claimant’s notice, the claimant may petition the court for a hearing to determine whether the claim should be allowed or rejected, in whole or in part. If the court substantially allows the claim, the court may allow the petitioner reasonable attorneys’ fees chargeable against the decedent’s assets received by the notice agent or by those appointing the notice agent. [1997 c 252 § 31; 1994 c 221 § 38.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.085 11.42.085 Property liable for claims—Payment limits. (1) The decedent’s nonprobate and probate assets that were subject to the satisfaction of the decedent’s general liabilities immediately before the decedent’s death are liable for claims. The decedent’s probate assets may be liable, whether or not there is a probate administration of the decedent’s estate. (2) The notice agent may pay a claim allowed by the notice agent or a judgment on a claim first prosecuted against a notice agent only out of assets received as a result of the death of the decedent by the notice agent or by those appointing the notice agent, except as may be provided by agreement under RCW 11.96A.220 or by court order issued in a judicial proceeding under RCW 11.96A.080. [1999 c 42 § 611; 1997 c 252 § 32.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.42.090 11.42.090 Allowance of claims—Notice—Payment order. (1) If the notice agent allows a claim, the notice agent shall notify the claimant of the allowance by personal service or regular first class mail to the address stated on the claim. A claim may not be allowed if it is barred by a statute of limitations. (2006 Ed.) 11.42.100 (2) The notice agent shall pay claims allowed in the following order from the assets of the decedent that are subject to the payment of claims as provided in RCW 11.42.085: (a) Costs of administering the assets subject to the payment of claims, including a reasonable fee to the notice agent, any resident agent for the notice agent, reasonable attorneys’ fees for the attorney for each of them, filing fees, publication costs, mailing costs, and similar costs and fees; (b) Funeral expenses in a reasonable amount; (c) Expenses of the last sickness in a reasonable amount; (d) Wages due for labor performed within sixty days immediately preceding the death of the decedent; (e) Debts having preference by the laws of the United States; (f) Taxes, debts, or dues owing to the state; (g) Judgments rendered against the decedent in the decedent’s lifetime that are liens upon real estate on which executions might have been issued at the time of the death of the decedent and debts secured by mortgages in the order of their priority; and (h) All other demands against the assets subject to the payment of claims. (3) The notice agent may not pay a claim of the notice agent or other person who has received property by reason of the decedent’s death unless all other claims that have been filed under this chapter, and all debts having priority to the claim, are paid in full or otherwise settled by agreement, regardless of whether the other claims are allowed or rejected. [1997 c 252 § 33; 1994 c 221 § 39.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.100 Rejection of claim—Time limits— Notice—Time limit for suit—Compromise of claim. (1) If the notice agent rejects a claim, in whole or in part, the claimant must bring suit against the notice agent within thirty days after notification of rejection or the claim is forever barred. The notice agent shall notify the claimant of the rejection and file an affidavit with the court showing the notification and the date of the notification. The notice agent shall notify the claimant of the rejection by personal service or certified mail addressed to the claimant or claimant’s agent, if applicable, at the address stated in the claim. The date of service or of the postmark is the date of notification. The notification must advise the claimant that the claimant must bring suit in the proper court against the notice agent within thirty days after notification of rejection or the claim will be forever barred. (2) If a claimant brings suit against the notice agent on a rejected claim and the notice agent has not received substantially all assets of the decedent that are liable for claims, the notice agent may only make an appearance in the action and may not answer the action but must cause a petition to be filed for the appointment of a personal representative within thirty days after service of the creditor’s action on the notice agent. Under these circumstances, a judgment may not be entered in an action brought by a creditor against the notice agent earlier than twenty days after the personal representative has been substituted in that action for the notice agent. (3) The notice agent may, before or after rejection of any claim, compromise the claim, whether due or not, absolute or 11.42.100 [Title 11 RCW—page 39] 11.42.110 Title 11 RCW: Probate and Trust Law contingent, liquidated, or unliquidated. [1997 c 252 § 34; 1994 c 221 § 40.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.110 11.42.110 Effect of judgment against notice agent. The effect of a judgment rendered against the notice agent shall be only to establish the amount of the judgment as an allowed claim. [1997 c 252 § 35; 1994 c 221 § 41.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. (ii) the creditor’s claim was rejected and the vacancy occurred within thirty days after rejection of the claim. (2) The time between the resignation, death, or removal of the notice agent or appointment of a personal representative and the first publication of the vacancy and succession or, in the case of actual notice, the mailing of the notice of vacancy and succession must be added to the time within which a claim must be presented or a suit on a rejected claim must be filed. This section does not extend the twenty-fourmonth self-executing bar under RCW 11.42.050. [1997 c 252 § 39; 1994 c 221 § 45.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.120 11.42.120 Execution barred upon decedent’s death— Presentation—Sale of property. If a judgment was entered against the decedent during the decedent’s lifetime, an execution may not issue on the judgment after the death of the decedent. If a notice agent is acting, the judgment must be presented in the manner provided in RCW 11.42.070, but if the judgment is a lien on any property of the decedent, the property may be sold for the satisfaction of the judgment and the officer making the sale shall account to the notice agent for any surplus. [1997 c 252 § 36; 1994 c 221 § 42.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.125 11.42.125 Secured claim—Creditor’s right. If a creditor’s claim is secured by any property of the decedent, this chapter does not affect the right of the creditor to realize on the creditor’s security, whether or not the creditor presented the claim in the manner provided in RCW 11.42.070. [1997 c 252 § 37.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.42.130 11.42.130 Claim of notice agent or beneficiary—Payment. A claim of the notice agent or other person who has received property by reason of the decedent’s death must be paid as set forth in RCW 11.42.090(3). [1997 c 252 § 38; 1994 c 221 § 43.] 11.42.150 11.42.150 Appointment of personal representative— Cessation of notice agent powers and authority—Notice not affected—Personal representative’s powers—Petition for reimbursement for allowance and payment of claims by notice agent. (1) The powers and authority of a notice agent immediately cease, and the office of notice agent becomes vacant, upon appointment of a personal representative for the estate of the decedent. Except as provided in RCW 11.42.140(2), the cessation of the powers and authority does not affect the filing and publication of notice to creditors and does not affect actual notice to creditors given by the notice agent. (2) As set forth in RCW 11.40.160, a personal representative may adopt, ratify, nullify, or reject any actions of the notice agent. (3) If a personal representative is appointed and the personal representative does not nullify the allowance of a claim that the notice agent allowed and paid, the person or persons whose assets were used to pay the claim may petition for reimbursement from the estate to the extent the payment was not in accordance with chapter 11.10 RCW. [1997 c 252 § 40; 1994 c 221 § 44.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. Chapter 11.44 Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective dates—1994 c 221: See note following RCW 11.94.070. 11.42.140 11.42.140 Notice to creditors when notice agent resigns, dies, or is removed—Limit tolled by vacancy. (1) If a notice agent has given notice under RCW 11.42.020 and the notice agent resigns, dies, or is removed or a personal representative is appointed, the successor notice agent or the personal representative shall: (a) Publish notice of the vacancy and succession for two successive weeks in the legal newspaper in which notice was published under RCW 11.42.020, if the vacancy occurred within twenty-four months after the decedent’s date of death; and (b) Provide actual notice of the vacancy and succession to a creditor if: (i) The creditor filed a claim and the claim had not been allowed or rejected by the prior notice agent; or [Title 11 RCW—page 40] Chapter 11.44 RCW INVENTORY AND APPRAISEMENT Sections 11.44.015 11.44.025 11.44.035 11.44.050 11.44.070 11.44.085 11.44.090 Inventory and appraisement—Filing—Copy distribution. Additional inventory and appraisement—Copy distribution. Inventory and appraisement may be contradicted or avoided. Inventory and appraisement—Failure to return or provide copy—Revocation of letters. Persons assisting in appraisement—Compensation—Refund. Claims against personal representative included. Discharge of debt—Specific bequest and inclusion in inventory and appraisement. Partnerships, inventory and appraisement: RCW 11.64.002. 11.44.015 11.44.015 Inventory and appraisement—Filing— Copy distribution. (1) Within three months after appointment, unless a longer time shall be granted by the court, every personal representative shall make and verify by affidavit a true inventory and appraisement of all of the property of the estate passing under the will or by laws of intestacy and (2006 Ed.) Inventory and Appraisement which shall have come to the personal representative’s possession or knowledge, including a statement of all encumbrances, liens, or other secured charges against any item. The personal representative shall determine the fair net value, as of the date of the decedent’s death, of each item contained in the inventory after deducting the encumbrances, liens, and other secured charges on the item. Such property shall be classified as follows: (a) Real property, by legal description; (b) Stocks and bonds; (c) Mortgages, notes, and other written evidences of debt; (d) Bank accounts and money; (e) Furniture and household goods; (f) All other personal property accurately identified, including the decedent’s proportionate share in any partnership, but no inventory of the partnership property shall be required of the personal representative. (2) The inventory and appraisement may, but need not be, filed in the probate cause, but upon receipt of a written request for a copy of the inventory and appraisement from any heir, legatee, devisee, unpaid creditor who has filed a claim, or beneficiary of a nonprobate asset from whom contribution is sought under RCW 11.18.200, or from the department of revenue, the personal representative shall furnish to the person, within ten days of receipt of a request, a true and correct copy of the inventory and appraisement. [1997 c 252 § 41; 1967 c 168 § 9; 1965 c 145 § 11.44.015. Formerly RCW 11.44.010, part and 11.44.020, part.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Inventory and appraisement on death of partner—Filing: RCW 11.64.002. 11.44.025 11.44.025 Additional inventory and appraisement— Copy distribution. Whenever any property of the estate not mentioned in the inventory and appraisement comes to the knowledge of a personal representative, the personal representative shall cause the property to be inventoried and appraised and shall make and verify by affidavit a true inventory and appraisement of the property within thirty days after the discovery thereof, unless a longer time shall be granted by the court, and shall provide a copy of the inventory and appraisement to every person who has properly requested a copy of the inventory and appraisement under RCW 11.44.015(2). [1997 c 252 § 42; 1974 ex.s. c 117 § 48; 1965 c 145 § 11.44.025. Prior: 1917 c 156 § 100; RCW 11.44.060; RRS § 1470; prior: Code 1881 § 1453; 1873 p 281 § 138; 1854 p 277 § 64.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.44.035 11.44.035 Inventory and appraisement may be contradicted or avoided. In an action against the personal representative where the administration of the estate, or any part thereof, is put in issue and the inventory and appraisement of the estate by the personal representative is given in evidence, the same may be contradicted or avoided by evidence. Any party in interest in the estate may challenge the inventory and appraisement at any stage of the probate proceedings. [1997 (2006 Ed.) 11.44.085 c 252 § 43; 1965 c 145 § 11.44.035. Prior: Code 1881 § 721; 1877 p 146 § 725; 1869 p 166 § 662; RCW 11.48.170; RRS § 970.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.44.050 11.44.050 Inventory and appraisement—Failure to return or provide copy—Revocation of letters. If any personal representative shall neglect or refuse to make the inventory and appraisement within the period prescribed, or within such further time as the court may allow, or to provide a copy as provided under RCW 11.44.015, 11.44.025, or 11.44.035, the court may revoke the letters testamentary or of administration; and the personal representative shall be liable on his or her bond to any party interested for the injury sustained by the estate through his or her neglect. [1997 c 252 § 44; 1965 c 145 § 11.44.050. Prior: 1917 c 156 § 99; RRS § 1469; prior: Code 1881 § 1457; 1873 p 281 § 138; 1854 p 278 § 69.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.44.070 11.44.070 Persons assisting in appraisement—Compensation—Refund. The personal representative may employ a qualified and disinterested person to assist in ascertaining the fair market value as of the date of the decedent’s death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The amount of the fee to be paid to any persons assisting the personal representative in any appraisement shall be determined by the personal representative: PROVIDED HOWEVER, That the reasonableness of any such compensation shall, at the time of hearing on any final account as provided in chapter 11.76 RCW or on a request or petition under RCW 11.68.100 or 11.68.110, be reviewed by the court in accordance with the provisions of RCW 11.68.100, and if the court determines the compensation to be unreasonable, a personal representative may be ordered to make appropriate refund. [1997 c 252 § 45; 1974 ex.s. c 117 § 50; 1967 c 168 § 10; 1965 c 145 § 11.44.070. Formerly RCW 11.44.010, part.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. Effective date—1965 c 145: See RCW 11.99.010. 11.44.085 11.44.085 Claims against personal representative included. The naming or the appointment of any person as personal representative shall not operate as a discharge from any just claim which the testator or intestate had against the personal representative, but the claim shall be included in the inventory and appraisement and the personal representative shall be liable to the same extent as the personal representative would have been had he or she not been appointed personal representative. [1997 c 252 § 46; 1965 c 145 § 11.44.085. Prior: 1917 c 156 § 97; RCW 11.44.030; RRS § 1467; prior: Code 1881 § 1449; 1860 p 63 § 5; 1854 p 277 § 60.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. [Title 11 RCW—page 41] 11.44.090 Title 11 RCW: Probate and Trust Law 11.44.090 11.44.090 Discharge of debt—Specific bequest and inclusion in inventory and appraisement. The discharge or bequest in a will of any debt or demand of the testator against any executor named in the testator’s will or against any person shall not be valid against the creditors of the deceased, but shall be construed as a specific bequest of such debt or demand, and the amount thereof shall be included in the inventory and appraisement, and shall, if necessary, be applied in payment of the testator’s debts; if not necessary for that purpose, it shall be paid in the same manner and proportions as other specific legacies. [1997 c 252 § 47; 1965 c 145 § 11.44.090. Prior: 1917 c 156 § 98; RCW 11.44.040; RRS § 1468; prior: Code 1881 § 1450; 1854 p 277 § 61.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Chapter 11.48 RCW PERSONAL REPRESENTATIVES—GENERAL PROVISIONS—ACTIONS BY AND AGAINST Chapter 11.48 Sections 11.48.010 11.48.020 11.48.025 11.48.030 11.48.040 11.48.050 11.48.060 11.48.070 11.48.080 11.48.090 11.48.120 11.48.130 11.48.140 11.48.150 11.48.160 11.48.180 11.48.190 11.48.200 11.48.210 General powers and duties. Right to possession and management of estate. Continuation of decedent’s business. Chargeable with whole estate. Not chargeable on special promise to pay decedent’s debts unless in writing. Allowance of necessary expenses. May recover for embezzled or alienated property of decedent. Concealed or embezzled property—Proceedings for discovery. Uncollectible debts—Liability—Purchase of claims by personal representative. Actions for recovery of property and on contract. Action on bond of previous personal representative. Compromise of claims. Recovery of decedent’s fraudulent conveyances. Several personal representatives considered as one. Default judgment not evidence of assets—Exception. Liability of executor de son tort. Executor of executor may not sue for estate of first testator. Arrest and attachment, when, authorized. Compensation—Attorney’s fees. Rules of court: Executors compromises and settlements: SPR 98.08W, 98.10W. fees, application for, notice: SPR 98.12W. Replacement of lost or destroyed probate records: RCW 5.48.060. Setoff, by and against executors, administrators: RCW 4.32.130, 4.32.140, 4.56.050. Survival of actions: Chapter 4.20 RCW. "Taxable person," personal representative defined as: RCW 82.04.030. Unknown heirs, pleading, lis pendens, etc: RCW 4.28.140 through 4.28.160; Rules of court: CR 10. Witnesses, competency in actions involving representatives or fiduciaries: RCW 5.60.030. 11.48.010 General powers and duties. It shall be the duty of every personal representative to settle the estate, including the administration of any nonprobate assets within control of the personal representative under RCW 11.18.200, in his or her hands as rapidly and as quickly as possible, without sacrifice to the probate or nonprobate estate. The personal representative shall collect all debts due the deceased and pay all debts as hereinafter provided. The personal representative shall be authorized in his or her own name to maintain and prosecute such actions as pertain to the management and settlement of the estate, and may institute suit to collect any debts due the estate or to recover any property, real or personal, or for trespass of any kind or character. [1994 c 221 § 30; 1965 c 145 § 11.48.010. Prior: 1917 c 156 § 147; RRS § 1517; prior: Code 1881 § 1528; 1854 p 291 § 141.] 11.48.010 Effective dates—1994 c 221: See note following RCW 11.94.070. 11.48.020 11.48.020 Right to possession and management of estate. Every personal representative shall, after having qualified, by giving bond as hereinbefore provided, have a right to the immediate possession of all the real as well as personal estate of the deceased, and may receive the rents and profits of the real estate until the estate shall be settled or delivered over, by order of the court, to the heirs or devisees, and shall keep in tenantable repair all houses, buildings and fixtures thereon, which are under his control. [1965 c 145 § 11.48.020. Prior: 1917 c 156 § 94; RRS § 1464; prior: Code 1881 § 1444; 1860 p 189 § 132; 1854 p 278 § 65.] When title vests: RCW 11.04.250. 11.48.025 Costs against fiduciaries: RCW 4.84.150. District judge without jurisdiction as to actions against personal representative: RCW 3.66.030. Ejectment and quieting title: Chapter 7.28 RCW. Evidence, transaction with person since deceased: RCW 5.60.030. Execution of writ—Levy: RCW 6.17.130. Execution on judgments in name of personal representative: RCW 6.17.030. Executor, administrator, subject to garnishment: RCW 6.27.050. Fiduciary may sue in own name: Rules of court: CR 17. Frauds, statute of, agreement of personal representative to answer damages from own estate: RCW 19.36.010. Investment in certain federal securities authorized: Chapter 39.60 RCW. Judgment against executor, administrator, effect: RCW 4.56.050. Larceny: RCW 9A.56.100. Limitation of actions against executor, administrator for misconduct: RCW 4.16.110. generally: Chapter 4.16 RCW. recovery of realty sold by personal representative: RCW 4.16.070. statutes tolled by death, personal disability, reversal of judgment: RCW 4.16.190, 4.16.200, 4.16.240. Real estate broker’s license requirement, exemption: RCW 18.85.110. [Title 11 RCW—page 42] 11.48.025 Continuation of decedent’s business. Upon a showing of advantage to the estate the court may authorize a personal representative to continue any business of the decedent, other than the business of a partnership of which the decedent was a member: PROVIDED, That if decedent left a nonintervention will or a will specifically authorizing a personal representative to continue any business of decedent, and his estate is solvent, or a will providing that the personal representative liquidate any business of decedent, this section shall not apply. The order shall specify: (1) The extent of the authority of the personal representative to incur liabilities; (2) The period of time during which he may operate the business; (3) Any additional provisions or restrictions which the court may, at its discretion, include. Any interested person may for good cause require the personal representative to show cause why the authority granted him should not be limited or terminated. The order to show cause shall set forth the manner of service thereof and (2006 Ed.) Personal Representatives—General Provisions—Actions by and Against the time and place of hearing thereon. [1965 c 145 § 11.48.025. Prior: 1955 c 98 § 1.] Request for special notice of proceedings in probate—Prohibitions: RCW 11.28.240. 11.48.030 11.48.030 Chargeable with whole estate. Every personal representative shall be chargeable in his accounts with the whole estate of the deceased which may come into his possession. He shall not be responsible for loss or decrease or destruction of any of the property or effects of the estate, without his fault. [1965 c 145 § 11.48.030. Prior: 1917 c 156 § 155; RRS § 1525; prior: Code 1881 § 1538; 1860 p 210 § 241; 1854 p 295 § 161.] 11.48.040 11.48.040 Not chargeable on special promise to pay decedent’s debts unless in writing. No personal representative shall be chargeable upon any special promise to answer damages, or to pay the debts of the testator or intestate out of his own estate, unless the agreement for that purpose, or some memorandum or note thereof, is in writing and signed by such personal representative, or by some other person by him thereunto specially authorized. [1965 c 145 § 11.48.040. Prior: 1917 c 156 § 154; RRS § 1524; prior: Code 1881 § 1537; 1854 p 295 § 160.] Agreement to answer damages from own estate must be in writing: RCW 19.36.010. 11.48.050 11.48.050 Allowance of necessary expenses. He shall be allowed all necessary expenses in the care, management and settlement of the estate. [1965 c 145 § 11.48.050. Prior: 1917 c 156 § 156; RRS § 1526; prior: Code 1881 § 1541; 1854 p 295 § 164.] Rules of court: SPR 98.12W. Attorney’s fee to contestant of erroneous account or report: RCW 11.76.070. Broker’s fee and closing expenses—Sale, mortgage or lease: RCW 11.56.265. Compensation—Attorney’s fee: RCW 11.48.210. Monument, expense of: RCW 11.76.130. Order of payment of debts: RCW 11.76.110. Will contests, costs: RCW 11.24.050. 11.48.120 who has in his possession or within his knowledge any conveyances, bonds, contracts, or other writings which contain evidence of or may tend to establish the right, title, interest or claim of the deceased in and to any property. If such person be not in the county in which the letters were granted, he may be cited and examined either before the court of the county where found or before the court issuing the order of citation, and if he be found innocent of the charges he shall be entitled to recover costs of the estate, which costs shall be fees and mileage of witnesses, statutory attorney’s fees, and such per diem and mileage for the person so charged as allowed to witnesses in civil proceedings. Such party may be brought before the court by means of citation such as the court may choose to issue, and if he refuse to answer such interrogatories as may be put to him touching such matters, the court may commit him to the county jail, there to remain until he shall be willing to make such answers. [1965 c 145 § 11.48.070. Prior: 1917 c 156 § 102; RRS § 1472; prior: 1891 p 385 §§ 22, 23; Code 1881 §§ 1456, 1457; 1854 p 278 §§ 68, 69.] Guardianship—Concealed or embezzled property—Proceedings for discovery: RCW 11.92.185. Larceny: RCW 9A.56.100. 11.48.080 11.48.080 Uncollectible debts—Liability—Purchase of claims by personal representative. No personal representative shall be accountable for any debts due the estate, if it shall appear that they remain uncollected without his fault. No personal representative shall purchase any claim against the estate he represents, but the personal representative may make application to the court for permission to purchase certain claims, and if it appears to the court to be for the benefit of the estate that such purchase shall be made, the court may make an order allowing such claims and directing that the same may be purchased by the personal representative under such terms as the court shall order, and such claims shall thereafter be paid as are other claims, but the personal representative shall not profit thereby. [1965 c 145 § 11.48.080. Prior: 1917 c 156 § 157; RRS § 1527; prior: Code 1881 § 1540; 1854 p 295 § 163.] Request for special notice of proceedings in probate—Prohibitions: RCW 11.28.240. 11.48.060 11.48.060 May recover for embezzled or alienated property of decedent. If any person, before the granting of letters testamentary or of administration, shall embezzle or alienate any of the moneys, goods, chattels, or effects of any deceased person, he shall stand chargeable, and be liable to the personal representative of the estate, in the value of the property so embezzled or alienated, together with any damage occasioned thereby, to be recovered for the benefit of the estate. [1965 c 145 § 11.48.060. Prior: 1917 c 156 § 101; RRS § 1471; prior: Code 1881 § 1455; 1854 p 278 § 67.] Larceny: RCW 9A.56.100. 11.48.090 11.48.090 Actions for recovery of property and on contract. Actions for the recovery of any property or for the possession thereof, and all actions founded upon contracts, may be maintained by and against personal representatives in all cases in which the same might have been maintained by and against their respective testators or intestates. [1965 c 145 § 11.48.090. Prior: 1917 c 156 § 148; RRS § 1518; prior: Code 1881 § 1529; 1860 p 206 § 222; 1854 p 291 § 142.] Performance of decedent’s contracts: Chapter 11.60 RCW. Survival of actions: Chapter 4.20 RCW. 11.48.070 11.48.070 Concealed or embezzled property—Proceedings for discovery. The court shall have authority to bring before it any person or persons suspected of having in his possession or having concealed, embezzled, conveyed or disposed of any of the property of the estate of decedents or incompetents subject to administration under this title, or (2006 Ed.) 11.48.120 11.48.120 Action on bond of previous personal representative. Any personal representative may in his own name, for the benefit of all parties interested in the estate, maintain actions on the bond of a former personal representative of the same estate. [1965 c 145 § 11.48.120. Prior: 1917 [Title 11 RCW—page 43] 11.48.130 Title 11 RCW: Probate and Trust Law c 156 § 151; RRS § 1521; prior: Code 1881 § 1532; 1854 p 291 § 145.] 11.48.130 11.48.130 Compromise of claims. The court may authorize the personal representative, without the necessary nonintervention powers, to compromise and compound any claim owing the estate. Unless the court has restricted the power to compromise or compound claims owing to the estate, a personal representative with nonintervention powers may compromise and compound a claim owing the estate without the intervention of the court. [1997 c 252 § 58; 1965 c 145 § 11.48.130. Prior: 1917 c 156 § 152; RRS § 1522; prior: Code 1881 § 1533; 1854 p 291 § 146.] Rules of court: SPR 98.08W. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.48.140 11.48.140 Recovery of decedent’s fraudulent conveyances. When there shall be a deficiency of assets in the hands of a personal representative, and when the deceased shall in his lifetime have conveyed any real estate, or any rights, or interest therein, with intent to defraud his creditors or to avoid any right, duty or debt of any person, or shall have so conveyed such estate, which deeds or conveyances by law are void as against creditors, the personal representative may, and it shall be his duty to, commence and prosecute to final judgment any proper action for the recovery of the same, and may recover for the benefit of the creditors all such real estate so fraudulently conveyed, and may also, for the benefit of the creditors, sue and recover all goods, chattels, rights and credits which may have been so fraudulently conveyed by the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance. [1965 c 145 § 11.48.140. Prior: 1917 c 156 § 153; prior: Code 1881 § 1534; 1854 p 291 § 147.] 11.48.150 11.48.150 Several personal representatives considered as one. In an action against several personal representatives, they shall all be considered as one person representing their testator or intestate, and judgment may be given and execution issued against all of them who are defendants in the action. [1965 c 145 § 11.48.150. Prior: Code 1881 § 719; 1877 p 146 § 723; 1869 p 165 § 660; RRS § 968.] 11.48.160 11.48.160 Default judgment not evidence of assets— Exception. When a judgment is given against a personal representative for want of answer, such judgment is not to be deemed evidence of assets in his hands, unless it appear that the complaint alleged assets and that the notice was served upon him. [1965 c 145 § 11.48.160. Prior: Code 1881 § 720; 1877 p 146 § 724; 1869 p 166 § 661; RRS § 969.] 11.48.190 11.48.190 Executor of executor may not sue for estate of first testator. An executor of an executor has no authority as such to commence or maintain an action or proceeding relating to the estate of the testator of the first executor, or to take any charge or control thereof. [1965 c 145 § 11.48.190. Prior: Code 1881 § 723; 1877 p 147 § 727; 1869 p 166 § 664; RRS § 972.] Administrator with will annexed on death of executor: RCW 11.28.060. 11.48.200 11.48.200 Arrest and attachment, when, authorized. In an action against a personal representative as such, the remedies of arrest and attachment shall not be allowed on account of the acts of his testator or intestate, but for his own acts as such personal representative, such remedies shall be allowed for the same causes in the manner and with like effect as in actions at law generally. [1965 c 145 § 11.48.200. Prior: Code 1881 § 724; 1877 p 147 § 729; 1869 p 167 § 666; RRS § 973.] 11.48.210 11.48.210 Compensation—Attorney’s fees. If testator by will makes provision for the compensation of his personal representative, that shall be taken as his full compensation unless he files in the court a written instrument renouncing all claim for the compensation provided by the will before qualifying as personal representative. The personal representative, when no compensation is provided in the will, or when he renounces all claim to the compensation provided in the will, shall be allowed such compensation for his services as the court shall deem just and reasonable. Additional compensation may be allowed for his services as attorney and for other services not required of a personal representative. An attorney performing services for the estate at the instance of the personal representative shall have such compensation therefor out of the estate as the court shall deem just and reasonable. Such compensation may be allowed at the final account; but at any time during administration a personal representative or his attorney may apply to the court for an allowance upon the compensation of the personal representative and upon attorney’s fees. If the court finds that the personal representative has failed to discharge his duties as such in any respect, it may deny him any compensation whatsoever or may reduce the compensation which would otherwise be allowed. [1965 c 145 § 11.48.210. Prior: 1917 c 156 § 158; RRS § 1528; prior: Code 1881 § 1541; 1854 p 295 § 164.] Rules of court: SPR 98.12W. Allowance of necessary expenses: RCW 11.48.050. Will contests, costs: RCW 11.24.050. Chapter 11.54 RCW FAMILY SUPPORT AND POSTDEATH CREDITOR’S CLAIM EXEMPTIONS Chapter 11.54 11.48.180 11.48.180 Liability of executor de son tort. No person is liable to an action as executor of his own wrong for having taken, received or interfered with the property of a deceased person, but is responsible to the personal representatives of such deceased person for the value of all property so taken or received, and for all injury caused by his interference with the estate of the deceased. [1965 c 145 § 11.48.180. Prior: Code 1881 § 722; 1877 p 146 § 726; 1869 p 166 § 663; RRS § 971.] [Title 11 RCW—page 44] Sections 11.54.010 11.54.020 11.54.030 11.54.040 11.54.050 11.54.060 11.54.070 Award to surviving spouse or children—Petition. Amount of basic award. Conditions to award. Increase in amount of award—Factors for consideration. Decrease in amount of award—Factors for consideration. Priority of awarded property—Effect of purchase or encumbrance on property. Immunity of award from debts and claims of creditors. (2006 Ed.) Family Support and Postdeath Creditor’s Claim Exemptions 11.54.080 11.54.090 11.54.100 Exemption of additional assets from claims of creditors—Petition—Notice—Court order. Venue for petition—Petition and hearing requirements— Notice of hearing. Exhaustion of estate—Closure of estate—Discharge of personal representative. 11.54.010 11.54.010 Award to surviving spouse or children— Petition. (1) Subject to RCW 11.54.030, the surviving spouse of a decedent may petition the court for an award from the property of the decedent. If the decedent is survived by children of the decedent who are not also the children of the surviving spouse, on petition of such a child the court may divide the award between the surviving spouse and all or any of such children as it deems appropriate. If there is not a surviving spouse, the minor children of the decedent may petition for an award. (2) The award may be made from either the community property or separate property of the decedent. Unless otherwise ordered by the court, the probate and nonprobate assets of the decedent abate in accordance with chapter 11.10 RCW in satisfaction of the award. (3) The award may be made whether or not probate proceedings have been commenced in the state of Washington. The court may not make this award unless the petition for the award is filed before the earliest of: (a) Eighteen months from the date of the decedent’s death if within twelve months of the decedent’s death either: (i) A personal representative has been appointed; or (ii) A notice agent has filed a declaration and oath as required in RCW 11.42.010(3)(a)(ii); or (b) The termination of any probate proceeding for the decedent’s estate that has been commenced in the state of Washington; or (c) Six years from the date of the death of the decedent. [1997 c 252 § 48.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.54.020 11.54.020 Amount of basic award. The amount of the basic award shall be the amount specified in RCW 6.13.030(2) with regard to lands. If an award is divided between a surviving spouse and the decedent’s children who are not the children of the surviving spouse, the aggregate amount awarded to all the claimants under this section shall be the amount specified in RCW 6.13.030(2) with respect to lands. The amount of the basic award may be increased or decreased in accordance with RCW 11.54.040 and 11.54.050. [1997 c 252 § 49.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.54.030 11.54.030 Conditions to award. (1) The court may not make an award unless the court finds that the funeral expenses, expenses of last sickness, and expenses of administration have been paid or provided for. (2) The court may not make an award to a surviving spouse or child who has participated, either as a principal or as an accessory before the fact, in the willful and unlawful killing of the decedent. [1997 c 252 § 50.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. (2006 Ed.) 11.54.050 11.54.040 11.54.040 Increase in amount of award—Factors for consideration. (1) If it is demonstrated to the satisfaction of the court with clear, cogent, and convincing evidence that a claimant’s present and reasonably anticipated future needs during the pendency of any probate proceedings in the state of Washington with respect to basic maintenance and support will not otherwise be provided for from other resources, and that the award would not be inconsistent with the decedent’s intentions, the amount of the award may be increased in an amount the court determines to be appropriate. (2) In determining the needs of the claimant, the court shall consider, without limitation, the resources available to the claimant and the claimant’s dependents, and the resources reasonably expected to be available to the claimant and the claimant’s dependents during the pendency of the probate, including income related to present or future employment and benefits flowing from the decedent’s probate and nonprobate estate. (3) In determining the intentions of the decedent, the court shall consider, without limitation: (a) Provisions made for the claimant by the decedent under the terms of the decedent’s will or otherwise; (b) Provisions made for third parties or other entities under the decedent’s will or otherwise that would be affected by an increased award; (c) If the claimant is the surviving spouse, the duration and status of the marriage of the decedent to the claimant at the time of the decedent’s death; (d) The effect of any award on the availability of any other resources or benefits to the claimant; (e) The size and nature of the decedent’s estate; and (f) Oral or written statements made by the decedent that are otherwise admissible as evidence. The fact that the decedent has named beneficiaries other than the claimant as recipients of the decedent’s estate is not of itself adequate to evidence such an intent as would prevent the award of an amount in excess of that provided for in RCW 6.13.030(2) with respect to lands. (4)(a) A petition for an increased award may only be made if a petition for an award has been granted under RCW 11.54.010. The request for an increased award may be made in conjunction with the petition for an award under RCW 11.54.010. (b) Subject to (a) of this subsection, a request for an increased award may be made at any time during the pendency of the probate proceedings. A request to modify an increased award may also be made at any time during the pendency of the probate proceedings by a person having an interest in the decedent’s estate that will be directly affected by the requested modification. [1997 c 252 § 51.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.54.050 11.54.050 Decrease in amount of award—Factors for consideration. (1) The court may decrease the amount of the award below the amount provided in RCW 11.54.020 in the exercise of its discretion if the recipient is entitled to receive probate or nonprobate property, including insurance, by reason of the death of the decedent. In such a case the award must be decreased by no more than the value of such other property as is received by reason of the death of the decedent. [Title 11 RCW—page 45] 11.54.060 Title 11 RCW: Probate and Trust Law The court shall consider the factors presented in RCW 11.54.040(2) in determining the propriety of the award and the proper amount of the award, if any. (2) An award to a surviving spouse is also discretionary and the amount otherwise allowable may be reduced if: (a) The decedent is survived by children who are not the children of the surviving spouse and the award would decrease amounts otherwise distributable to such children; or (b) the award would have the effect of reducing amounts otherwise distributable to any of the decedent’s minor children. In either case the court shall consider the factors presented in RCW 11.54.040 (2) and (3) and whether the needs of the minor children with respect to basic maintenance and support are and will be adequately provided for, both during and after the pendency of any probate proceedings if such proceedings are pending, considering support from any source, including support from the surviving spouse. [1997 c 252 § 52.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.54.060 11.54.060 Priority of awarded property—Effect of purchase or encumbrance on property. (1) The award has priority over all other claims made in the estate. In determining which assets must be made available to satisfy the award, the claimant is to be treated as a general creditor of the estate, and unless otherwise ordered by the court the assets shall abate in satisfaction of the award in accordance with chapter 11.10 RCW. (2) If the property awarded is being purchased on contract or is subject to any encumbrance, for purposes of the award the property must be valued net of the balance due on the contract and the amount of the encumbrance. The property awarded will continue to be subject to any such contract or encumbrance, and any award in excess of the basic award under RCW 11.54.010, whether of community property or the decedent’s separate property, is not immune from any lien for costs of medical expenses recoverable under RCW 43.20B.080. [1997 c 252 § 53.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.54.080 11.54.080 Exemption of additional assets from claims of creditors—Petition—Notice—Court order. (1) This section applies if the party entitled to petition for an award holds exempt property that is in an aggregate amount less than that specified in RCW 6.13.030(2) with respect to lands. (2) For purposes of this section, the party entitled to petition for an award is referred to as the "claimant." If multiple parties are entitled to petition for an award, all of them are deemed a "claimant" and may petition for an exemption of additional assets as provided in this section, if the aggregate amount of exempt property to be held by all the claimants after the making of the award does not exceed the amount specified in RCW 6.13.030(2) with respect to lands. (3) A claimant may petition the court for an order exempting other assets from the claims of creditors so that the aggregate amount of exempt property held by the claimants equals the amount specified in RCW 6.13.030(2) with respect to lands. The petition must: (a) Set forth facts to establish that the petitioner is entitled to petition for an award under RCW 11.54.010; (b) State the nature and value of those assets then held by all claimants that are exempt from the claims of creditors; and (c) Describe the nonexempt assets then held by the claimants, including any interest the claimants may have in any probate or nonprobate property of the decedent. (4) Notice of a petition for an order exempting assets from the claims of creditors must be given in accordance with RCW 11.96A.110. (5) At the hearing on the petition, the court shall order that certain assets of the claimants are exempt from the claims of creditors so that the aggregate amount of exempt property held by the claimants after the entry of the order is in the amount specified in RCW 6.13.030(2) with respect to lands. In the order the court shall designate those assets of the claimants that are so exempt. [1999 c 42 § 612; 1997 c 252 § 55.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.54.090 Retroactive application—1998 c 292: "(1) Sections 201 through 205 of this act are remedial in nature and apply retroactively to July 27, 1997, and thereafter. (2) Section 301 of this act is remedial in nature and applies retroactively to July 1, 1991, and thereafter." [1998 c 292 § 604.] 11.54.090 Venue for petition—Petition and hearing requirements—Notice of hearing. The petition for an award, for an increased or modified award, or for the exemption of assets from the claims of creditors as authorized by this chapter must be made to the court of the county in which the probate is being administered. If probate proceedings have not been commenced in the state of Washington, the petition must be made to the court of a county in which the decedent was domiciled at the time of death. If the decedent was not domiciled in the state of Washington at the time of death, the petition may be made to the court of any county in which the decedent’s estate could be administered under RCW 11.96A.050. The petition and the hearing must conform to RCW 11.96A.080 through 11.96A.200. Notice of the hearing on the petition must be given in accordance with RCW 11.96A.110. [1999 c 42 § 613; 1997 c 252 § 56.] Part headings and section captions not law—Effective dates—1998 c 292: See RCW 11.11.902 and 11.11.903. Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.54.070 11.54.070 Immunity of award from debts and claims of creditors. (1) Except as provided in RCW 11.54.060(2), property awarded and cash paid under this chapter is immune from all debts, including judgments and judgment liens, of the decedent and of the surviving spouse existing at the time of death. (2) Both the decedent’s and the surviving spouse’s interests in any community property awarded to the spouse under this chapter are immune from the claims of creditors. [1998 c 292 § 201; 1997 c 252 § 54.] [Title 11 RCW—page 46] (2006 Ed.) Sales, Exchanges, Leases, Mortgages, and Borrowing 11.54.100 Exhaustion of estate—Closure of estate— Discharge of personal representative. If an award provided by this chapter will exhaust the estate, and probate proceedings have been commenced in the state of Washington, the court in the order of award or allowance shall order the estate closed, discharge the personal representative, and exonerate the personal representative’s bond, if any. [1997 c 252 § 57.] 11.54.100 Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Chapter 11.56 RCW SALES, EXCHANGES, LEASES, MORTGAGES, AND BORROWING Chapter 11.56 Sections 11.56.005 11.56.010 11.56.020 11.56.030 11.56.040 11.56.045 11.56.050 11.56.060 11.56.070 11.56.080 11.56.090 11.56.100 11.56.110 11.56.115 11.56.120 11.56.180 11.56.210 11.56.220 11.56.230 11.56.240 11.56.250 11.56.265 11.56.280 Authority to exchange. Authority to sell, lease or mortgage. Sale, lease or mortgage of personal property. Sale, lease or mortgage of real estate—Petition—Notice— Hearing. Order directing mortgage. Order directing lease. Order directing sale. Public sales—Notice. Postponement, adjournment of sale—Notice. Private sales of realty—Notice—Bids. Minimum price—Private sale—Sale by negotiation—Reappraisement. Confirmation of sale—Approval—Resale. Offer of increased bid—Duty of court. Effect of confirmation. Conveyance after confirmation of sale. Sale of decedent’s contract interest in land. Assignment of decedent’s contract. Redemption of decedent’s mortgaged estate. Sale or mortgage to effect redemption. Sale of mortgaged property if redemption inexpedient. Sales directed by will. Broker’s fee and closing expenses—Sale, mortgage or lease. Borrowing on general credit of estate—Petition—Notice— Hearing. 11.56.030 § 122; RRS § 1492; prior: 1895 c 157 § 1; 1883 p 29 § 1; Code 1881 § 1486; 1854 p 284 § 97.] 11.56.020 11.56.020 Sale, lease or mortgage of personal property. The court may at any time order any personal property, including for purposes of this section a vendor’s interest in a contract for the sale of real estate, of the estate sold for the preservation of such property or for the payment of the debts of the estate or the expenses of administration or for the purpose of discharging any obligation of the estate or for any other reason which may to the court seem right and proper, and such order may be made either upon or without petition therefor, and such sales may be either at public or private sale or by negotiation and with or without notice of such sale, as the court may determine, and upon such terms and conditions as the court may decide upon. No notice of petition for sale of any personal property need be given, except as provided in RCW 11.28.240, unless the court expressly orders such notice. Where personal property is sold prior to appraisement, the sale price shall be deemed the value for appraisal. Personal property may be mortgaged, pledged or leased for the same reasons and purposes, and in the same manner as is hereinafter provided for real property. [1965 c 145 § 11.56.020. Prior: (i) 1917 c 156 § 123; RRS § 1493; prior: 1891 c 155 §§ 29, 30; 1883 p 29 § 1; Code 1881 § 1488; 1854 p 284 § 99. (ii) 1955 c 205 § 12; RCW 11.56.025.] Community property: Chapter 26.16 RCW. Descent and distribution of real and personal estate: RCW 11.04.015. Payment of claims where estate insufficient: RCW 11.76.150. Performance of decedent’s contracts: Chapter 11.60 RCW. Sale of decedent’s contract interest in land: RCW 11.56.180. 11.56.030 Limitation of actions, recovery of realty sold by executor or administrator: RCW 4.16.070. Registered land, probate may direct sale or mortgage of: RCW 65.12.590. Request for special notice of proceedings in probate—Prohibitions: RCW 11.28.240. Sale of property to pay estate and transfer taxes: RCW 83.100.110. 11.56.005 Authority to exchange. Whenever it shall appear upon the petition of the personal representative or of any person interested in the estate to be to the best interests of the estate to exchange any real or personal property of the estate for other property, the court may authorize the exchange upon such terms and conditions as it may prescribe, which include the payment or receipt of part cash by the personal representative. If personal property of the estate is to be exchanged, the procedure required by this chapter for the sale of such property shall apply so far as may be; if real property of the estate is to be exchanged, the procedure required by this chapter for the sale of such property shall apply so far as may be. [1965 c 145 § 11.56.005.] 11.56.005 11.56.010 Authority to sell, lease or mortgage. The court may order real or personal property sold, leased or mortgaged for the purposes hereinafter mentioned but no sale, lease or mortgage of any property of an estate shall be made except under an order of the court, unless otherwise provided by law. [1965 c 145 § 11.56.010. Prior: 1917 c 156 11.56.010 (2006 Ed.) 11.56.030 Sale, lease or mortgage of real estate— Petition—Notice—Hearing. Whenever it shall appear to the satisfaction of the court that any portion or all of the real property should be sold, mortgaged or leased for the purpose of raising money to pay the debts and obligations of the estate, and the expenses of administration, estate taxes, or for the support of the family, to make distribution, or for such other purposes as the court may deem right and proper, the court may order the sale, lease or mortgage of such portion of the property as appears to the court necessary for the purpose aforesaid. It shall be the duty of the personal representative to present a petition to the court giving a description of all the property of the estate and its character, the amount of the debts, expenses and obligations of the estate and such other things as will tend to assist the court in determining the necessity for the sale, lease or mortgage and the amount thereof. Unless the court shall by order expressly so provide, no notice of the hearing of such petition for sale, lease or mortgage need be given, except as provided in RCW 11.28.240 hereof; if, however, the court should order notice of such hearing, it shall determine upon the kind, character and time thereof. At the hearing of such petition the court may have brought before it such testimony or information as it may see fit to receive, for the purpose of determining whether it should order any of the property of the estate sold, leased or mortgaged. The absence of any allegation in the petition shall not deprive the court of jurisdiction to order [Title 11 RCW—page 47] 11.56.040 Title 11 RCW: Probate and Trust Law said sale, lease or mortgage, and the court may, if it see fit, order such sale, lease or mortgage without any petition having been previously presented. [1990 c 180 § 2; 1965 c 145 § 11.56.030. Prior: 1937 c 28 § 3; 1917 c 156 § 124; RRS § 1494; prior: Code 1881 § 1493; 1854 p 285 § 103.] 11.56.040 11.56.040 Order directing mortgage. If the court should determine that it is necessary or proper, for any of the said purposes, to mortgage any or all of said property, it may make an order directing the personal representative to mortgage such thereof as it may determine upon, and such order shall contain the terms and conditions of such transaction and authorize the personal representative to execute and deliver his note or notes and secure the same by mortgage, and thereafter it shall be the duty of such personal representative to comply with such order. The personal representative shall not deliver any such note, mortgage or other evidence of indebtedness until he has first presented same to the court and obtained its approval of the form. Every mortgage so made and approved shall be effectual to mortgage and encumber all the right, title and interest of the said estate in the property described therein at the time of the death of the said decedent, or acquired by his estate, and no irregularity in the proceedings shall impair or invalidate any mortgage given under such order of the court and approved by it. [1965 c 145 § 11.56.040. Prior: 1917 c 156 § 125; RRS § 1495; prior: Code 1881 § 1494; 1854 p 285 § 104.] 11.56.045 11.56.045 Order directing lease. If the court should determine that it is necessary or proper, for any of the said purposes to lease any or all of said property, it may make an order directing the personal representative to lease such thereof as it may determine upon, and such order shall contain the terms and conditions of such transaction and authorize the personal representative to execute the lease and thereafter it shall be the duty of the personal representative to comply with such order. The personal representative shall not execute such lease until he has first presented the same to the court and obtained its approval of the form. [1965 c 145 § 11.56.045.] 11.56.050 11.56.050 Order directing sale. If the court should determine that it is necessary to sell any or all of the real estate for the purposes mentioned in this title, then it may make and cause to be entered an order directing the personal representative to sell so much of the real estate as the court may determine necessary for the purposes aforesaid. Such order shall give a particular description of the property to be sold and the terms of such sale and shall provide whether such property shall be sold at public or private sale, or by negotiation. After the giving of such order it shall be the duty of the personal representative to sell such real estate in accordance with the order of the court and as in this title provided with reference to the public or private sales of real estate. [1994 c 221 § 49; 1965 c 145 § 11.56.050. Prior: 1917 c 156 § 126; RRS § 1496; prior: Code 1881 § 1494; 1854 p 285 § 104.] Effective dates—1994 c 221: See note following RCW 11.94.070. Abatement of assets: Chapter 11.10 RCW. [Title 11 RCW—page 48] 11.56.060 11.56.060 Public sales—Notice. When real property is directed to be sold by public sale, notice of the time and place of such sale shall be published in a legal newspaper of the county in which the estate is being administered, once each week for three successive weeks before such sale, in which notices the property ordered sold shall be described with proper certainty: PROVIDED, That where real property is located in a county other than the county in which the estate is being administered, publication shall also be made in a legal newspaper of that county. At the time and place named in such notices for the said sale, the personal representative shall proceed to sell the property upon the terms and conditions ordered by the court, and to the highest and best bidder. All sales of real estate at public sale shall be made at the front door of the court house of the county in which the lands are, unless the court shall by order otherwise direct. [1965 c 145 § 11.56.060. Prior: 1917 c 156 § 127; RRS § 1497; prior: 1888 p 187 § 1; Code 1881 § 1504; 1854 p 287 § 114.] 11.56.070 11.56.070 Postponement, adjournment of sale— Notice. The personal representative, should he deem it for the best interests of all concerned, may postpone such sale to a time fixed but not to exceed twenty days, and such postponement shall be made by proclamation of the personal representative at the time and place first appointed for the sale; if there be an adjournment of such sale for more than three days, then it shall be the duty of the personal representative to cause a notice of such adjournment to be published in a legal newspaper in the county in which notice was published as provided in RCW 11.56.060, in addition to making such proclamation. [1965 c 145 § 11.56.070. Prior: 1917 c 156 § 128; RRS § 1498; prior: Code 1881 § 1505; 1854 p 287 § 115.] 11.56.080 11.56.080 Private sales of realty—Notice—Bids. When a sale of real property is ordered to be made at private sale, notice of the same must be published in a legal newspaper of the county in which the estate is being administered, once a week for at least two successive weeks before the day on or after which the sale is to be made, in which the lands and tenements to be sold must be described with common certainty: PROVIDED, That where real property is located in a county other than the county in which the estate is being administered, publication shall also be made in a legal newspaper of that county. The notice must state the day on or after which the sale will be made and the place where offers or bids will be received. The day last referred to must be at least fifteen days from the first publication of notice and the sale must not be made before that day, but if made, must be made within twelve months thereafter. The bids or offers must be in writing, and may be left at the place designated in the notice or delivered to the personal representative personally, or may be filed in the office of the clerk of the court to which the return of sale must be made, at any time after the first publication of the notice and before the making of the sale. If it be shown that it will be for the best interest of the estate the court or judge may, by an order, shorten the time of notice, which shall not, however, be less than one week, and may provide that the sale may be made on or after a day less than fifteen, but not less than eight days from the first publication of the notice of sale, and the sale may be made to correspond with (2006 Ed.) Sales, Exchanges, Leases, Mortgages, and Borrowing such order. [1965 c 145 § 11.56.080. Prior: 1917 c 156 § 129; RRS § 1499; prior: 1888 p 187 § 1; Code 1881 § 1504; 1854 p 287 § 114.] 11.56.090 11.56.090 Minimum price—Private sale—Sale by negotiation—Reappraisement. No sale of real estate at private sale or sale by negotiation shall be confirmed by the court unless the gross sum offered is at least ninety percent of the appraised value thereof, nor unless such real estate shall have been appraised within one year immediately prior to such sale. If it has not been so appraised, or if the court is satisfied that the appraisement is too high or too low, appraisers may be appointed, and they must make an appraisement thereof in the same manner as in the case of the original appraisement of the estate, and which appraisement may be made at any time before the sale or the confirmation thereof. [1965 c 145 § 11.56.090. Prior: 1917 c 156 § 130; RRS § 1500; prior: 1891 c 155 § 31; Code 1881 § 1508; 1854 p 287 § 118.] 11.56.100 11.56.100 Confirmation of sale—Approval—Resale. The personal representative making any sale of real estate, either at public or private sale, or sale by negotiation shall within ten days after making such sale file with the clerk of the court his return of such sale, the same being duly verified. In the case of a sale by negotiation the personal representative shall publish a notice in one issue of a legal newspaper of the county in which the estate is being administered; such notice shall include the legal description of the property sold, the selling price and the date after which the sale can be confirmed: PROVIDED, That such confirmation date shall be at least ten days after such notice is published. At any time after the expiration of ten days from the publication of such notice, in the case of sale by negotiation, and at any time after the expiration of ten days from the filing of such return, in the case of public or private sale the court may approve and confirm such sale and direct proper instruments of transfer to be executed and delivered. But if the court shall be of the opinion that the proceedings were unfair, or that the sum obtained was disproportionate to the value of the property sold, or if made at private sale or sale by negotiation that it did not sell for at least ninety percent of the appraised value as in RCW 11.56.090 provided, and that a sum exceeding said bid by at least ten percent exclusive of the expense of a new sale, may be obtained, the court may refuse to approve or confirm such sale and may order a resale. On a resale, notice shall be given and the sale shall be conducted in all respects as though no previous sale had been made. [1965 c 145 § 11.56.100. Prior: 1917 c 156 § 131; RRS § 1501; prior: 1891 c 155 § 31; Code 1881 § 1508; 1854 p 287 § 118.] 11.56.120 whose bid was accepted shall be informed of such increased bid by registered or certified mail addressed to such bidder at any address which may have been given by him at the time of making such bid. Such bidder then shall have a period of five days, not including holidays, in which to make and file a bid better than that of the subsequent bidder. After the expiration of such five-day period the court may refuse to confirm the sale reported in the return of sale and direct a sale to the person making the best bid then on file, indicating which is the best bid, and a sale made pursuant to such direction shall need no further confirmation. Instead of such a direction, the court, upon application of the personal representative, may direct the reception of sealed bids. Thereupon the personal representative shall mail notice by registered or certified mail to all those who have made bids on such property, informing them that sealed bids will be received by the clerk of the court within ten days. At the expiration of such period the personal representative, in the presence of the clerk of the court, shall open such bids as shall have been submitted to the clerk within the time stated in the notice (whether by previous bidders or not) and shall file a recommendation of the acceptance of the bid which he deems best in view of the requirements of the particular estate. The court may thereupon direct a sale to the bidder whose bid is deemed best by the court and a sale made pursuant to such direction shall need no confirmation: PROVIDED, HOWEVER, That the court shall consider the net realization to the estate in determining the best bid. [1967 ex.s. c 106 § 2; 1967 c 168 § 18; 1965 c 145 § 11.56.110. Prior: 1955 c 154 § 1; 1917 c 156 § 132; RRS § 1502.] Effective date—1967 ex.s. c 106: "The provisions of this act shall take effect on July 1, 1967." [1967 ex.s. c 106 § 5.] Effective date—1967 c 168: See note following RCW 11.02.070. 11.56.115 11.56.115 Effect of confirmation. No petition or allegation thereof for the sale of real estate shall be considered jurisdictional, and confirmation by the court of any sale shall be absolutely conclusive as to the regularity of all proceedings leading up to and including such sale, and no instrument of conveyance of real estate made after confirmation of sale by the court shall be open to attack upon any grounds whatsoever except for fraud, and the confirmation by the court of any such sale shall be conclusive proof that all statutory provisions and all orders of the court with reference to such sale have been complied with. [1965 c 145 § 11.56.115. Prior: 1917 c 156 § 134; RCW 11.56.130; RRS § 1504; prior: Code 1881 § 1510; 1854 p 287 § 120.] Real estate sold by executor, etc., limitation of action: RCW 4.16.070. 11.56.120 11.56.110 11.56.110 Offer of increased bid—Duty of court. If, at any time before confirmation of any such sale, any person shall file with the clerk of the court a bid on such property in an amount not less than ten percent higher than the bid the acceptance of which was reported by the return of sale and shall deposit with the clerk not less than twenty percent of his bid in the form of cash, money order, cashier’s check or certified check made payable to the clerk, to be forfeited to the estate unless such bidder complies with his bid, the bidder (2006 Ed.) 11.56.120 Conveyance after confirmation of sale. Upon the confirmation of any such sale the court shall direct the personal representative to make, execute and deliver instruments conveying the title to the person to whom such property may be sold, and such instruments of conveyance shall be deemed to convey all the estate, rights and interests of the testator or intestate at the death of the deceased and any interest acquired by the estate. [1965 c 145 § 11.56.120. Prior: 1917 c 156 § 133; RRS § 1503; prior: Code 1881 § 1510; 1854 p 287 § 120.] [Title 11 RCW—page 49] 11.56.180 Title 11 RCW: Probate and Trust Law 11.56.180 11.56.180 Sale of decedent’s contract interest in land. If the deceased person at the time of his death was possessed of a contract for the purchase of lands, his interest in such lands under such contract may be sold on the application of his personal representative in the same manner as if he died seized of such lands; and the same proceedings may be had for that purpose as are prescribed in this title in respect to lands of which he died seized, except as hereinafter provided. [1965 c 145 § 11.56.180. Prior: 1917 c 156 § 139; RRS § 1509; prior: Code 1881 § 1519; 1854 p 289 § 129.] Performance of decedent’s contracts: Chapter 11.60 RCW. Sale of vendor’s interest in contract for sale of real estate: RCW 11.56.020. 11.56.210 11.56.210 Assignment of decedent’s contract. Upon the confirmation of such sale, the personal representative shall execute to the purchaser an assignment of the contract and deed, which shall vest in the purchaser, his heirs and assigns, all the right, title and interest of the persons entitled to the interest of the deceased in the land sold at the time of the sale, and such purchaser shall have the same rights and remedies against the vendor of such lands as the deceased would have had if living. [1965 c 145 § 11.56.210. Prior: 1917 c 156 § 142; RRS § 1512; prior: Code 1881 § 1522; 1854 p 289 § 132.] 11.56.220 11.56.220 Redemption of decedent’s mortgaged estate. If any person die having mortgaged any real or personal estate, and shall not have devised the same, or provided for any redemption thereof by will, the court, upon the application of any person interested, may order the personal representative to redeem the estate out of the assets, if it should appear to the satisfaction of the court that such redemption would be beneficial to the estate and not injurious to creditors. [1965 c 145 § 11.56.220. Prior: 1917 c 156 § 143; RRS § 1513; prior: Code 1881 § 1523; 1854 p 289 § 133.] 11.56.230 11.56.230 Sale or mortgage to effect redemption. If it shall be made to appear to the satisfaction of the court that it will be to the interest of the estate of any deceased person to sell or mortgage other personal estate or to sell or mortgage other real estate of the decedent than that mortgaged by him to redeem the property so mortgaged, the court may order the sale or mortgaging of any personal estate, or the sale or mortgaging of any real estate of the decedent which it may deem expedient to be sold or mortgaged for such purpose, which sale or mortgaging shall be conducted in all respects as other sales or mortgages of like property ordered by the court. [1965 c 145 § 11.56.230. Prior: 1917 c 156 § 144; RRS § 1514; prior: 1895 c 157 § 11; 1888 p 185 § 1.] 11.56.240 11.56.240 Sale of mortgaged property if redemption inexpedient. If such redemption be not deemed expedient, the court shall order such property to be sold at public or private sale, which sale shall be with the same notice and conducted in the same manner as required in other cases of real estate or personal property provided for in this title, and shall be sold subject to such mortgage, and the personal representative shall thereupon execute a conveyance thereof to the purchaser, which conveyance shall be effectual to convey to the purchaser all the right, title, and interest which the [Title 11 RCW—page 50] deceased had in the property, and the purchase money, after paying the expenses of the sale, shall be applied to the residue in due course of administration. [1965 c 145 § 11.56.240. Prior: 1917 c 156 § 145; RRS § 1515; prior: Code 1881 § 1524; 1873 p 296 § 211; 1854 p 290 § 134.] 11.56.250 11.56.250 Sales directed by will. When property is directed by will to be sold, or authority is given in the will to sell property, the executor may sell any property of the estate without the order of the court, and without any notice, and it shall not be necessary under such circumstances to make any application to the court with reference to such sales or have the same confirmed by the court. [1965 c 145 § 11.56.250. Prior: 1917 c 156 § 146; RRS § 1516; prior: Code 1881 § 1527.] 11.56.265 11.56.265 Broker’s fee and closing expenses—Sale, mortgage or lease. In connection with the sale, mortgage or lease of property, the court may authorize the personal representative to pay, out of the proceeds realized therefrom or out of the estate, the customary and reasonable auctioneer’s and broker’s fees and any necessary expenses for abstracting, title insurance, survey, revenue stamps and other necessary costs and expenses in connection therewith. [1965 c 145 § 11.56.265.] Allowance of necessary expenses to personal representative: RCW 11.48.050. 11.56.280 11.56.280 Borrowing on general credit of estate— Petition—Notice—Hearing. Whenever it shall appear to the satisfaction of the court that money is needed to pay debts of the estate, expenses of administration, or estate taxes, the court may by order authorize the personal representative to borrow such money, on the general credit of the estate, as appears to the court necessary for the purposes aforesaid. The time for repayment, rate of interest and form of note authorized shall be as specified by the court in its order. The money borrowed pursuant thereto shall be an obligation of the estate repayable with the same priority as unsecured claims filed against the estate. It shall be the duty of the personal representative to present a petition to the court giving a description of all the property of the estate and its character, the amount of the debts, expenses and tax obligations and such other things as will tend to assist the court in determining the necessity for the borrowing and the amount thereof. Unless the court shall by order expressly so provide, no notice of the hearing of such petition need be given, except to persons who have requested notice under the provisions of RCW 11.28.240; if, however, the court should order notice of such hearing, it shall determine upon the kind, character and time thereof. At the hearing of such petition the court may have brought before it such testimony or information as it may see fit to receive, for the foregoing purpose. The absence of any allegation in the petition shall not deprive the court of jurisdiction to authorize such borrowing. [1990 c 180 § 3; 1965 c 145 § 11.56.280.] Order of payment of debts: RCW 11.76.110. (2006 Ed.) Performance of Decedent’s Contracts Chapter 11.60 RCW PERFORMANCE OF DECEDENT’S CONTRACTS Chapter 11.60 Sections 11.60.010 11.60.020 11.60.030 11.60.040 11.60.060 Order for performance on application of personal representative. Petition, notice, and hearing when personal representative fails to make application. Hearing. Conveyance of real property—Effect. Procedure on death of person entitled to performance. Evidence, transaction with person since deceased: RCW 5.60.030. Sale of vendor’s interest in contract for sale of real estate: RCW 11.56.020. Sale or assignment of decedent’s contract interest in land: RCW 11.56.180, 11.56.210. 11.60.010 11.60.010 Order for performance on application of personal representative. If any person, who is bound by contract, in writing, shall die before performing said contract, the superior court of the county in which the estate is being administered, may upon application of the personal representative, without notice, make an order authorizing and directing the personal representative to perform such contract. [1965 c 145 § 11.60.010. Prior: 1917 c 156 § 188; RRS § 1558; prior: 1891 p 390 § 40; Code 1881 § 623; 1877 p 130 § 626; 1854 p 292 § 150.] 11.60.060 11.60.060 Procedure on death of person entitled to performance. If the person entitled to performance shall die before the commencement of the proceedings according to the provisions of this title or before the completion of performance, any person who would have been entitled to the performance under him, as heir, devisee, or otherwise, in case the performance had been made according to the terms of the contract, or the personal representative of such deceased person, for the benefit of persons entitled, may commence such proceedings, or prosecute the same if already commenced; and the performance shall inure to the persons who would have been entitled to it, or to the personal representative for their benefit. [1965 c 145 § 11.60.060. Prior: 1917 c 156 § 193; RRS § 1563; prior: 1891 c 155 § 47; Code 1881 § 532; 1877 p 132 § 635; 1854 p 294 § 159.] Chapter 11.62 RCW ESTATES UNDER $60,000—DISPOSITION OF PROPERTY Chapter 11.62 Sections 11.62.005 11.62.010 11.62.020 Guardianship, performance of contracts: RCW 11.92.130. 11.62.030 11.60.020 11.60.020 Petition, notice, and hearing when personal representative fails to make application. If the personal representative fails to make such application, then any person claiming to be entitled to such performance under such contract, may present a petition setting forth the facts upon which such claim is predicated. Notice of hearing shall be in accordance with the provisions of *RCW 11.16.081. [1965 c 145 § 11.60.020. Prior: 1917 c 156 § 189; RRS § 1559; prior: 1891 c 155 § 41; Code 1881 § 694; 1877 p 130 § 627; 1854 p 292 § 151.] *Reviser’s note: RCW 11.16.081 was repealed by 1969 c 70 § 5. Actions for recovery of property and on contract: RCW 11.48.090. 11.60.030 11.60.030 Hearing. At the time appointed for such hearing, or at such other time as the same may be adjourned to, upon proof of service of the notice as provided in *RCW 11.16.081, the court shall proceed to a hearing and determine the matter. [1965 c 145 § 11.60.030. Prior: 1917 c 156 § 190; RRS § 1560; prior: 1891 c 155 § 42; Code 1881 § 625; 1877 p 130 § 628; 1854 p 293 § 152.] *Reviser’s note: RCW 11.16.081 was repealed by 1969 c 70 § 5. 11.60.040 11.60.040 Conveyance of real property—Effect. In the case of real property, a conveyance executed under the provisions of this title shall so refer to the order authorizing the conveyance that the same may be readily found, but need not recite the record in the case generally, and the conveyance made in pursuance of such order shall pass to the grantee all the estate, right, title and interest contracted to be conveyed by the deceased, as fully as if the contracting party himself were still living and executed the conveyance in pursuance of such contract. [1965 c 145 § 11.60.040. Prior: 1917 c 156 § 191; RRS § 1561; prior: Code 1881 § 626; 1877 p 130 § 629; 1854 p 293 § 153.] (2006 Ed.) 11.62.005 Definitions. Disposition of personal property, debts by affidavit, proof of death—Contents of affidavit—Procedure—Securities. Effect of affidavit and proof of death—Discharge and release of transferor—Refusal to pay or deliver—Procedure—False affidavit—Conflicting affidavits—Accountability. Payment to surviving spouse of moneys on deposit of deceased credit union member—Limitation—Affidavit—Accounting to personal representative. Reviser’s note: Inheritance and gift taxes were repealed by 1981 2nd ex.s. c 7 § 83.100.160. For provisions relating to estate and transfer taxes, see chapter 83.100 RCW. 11.62.005 11.62.005 Definitions. As used in this chapter, the following terms shall have the meanings indicated. (1) "Personal property" shall include any tangible personal property, any instrument evidencing a debt, obligation, stock, chose in action, license or ownership, any debt or any other intangible property. (2)(a) "Successor" and "successors" shall mean (subject to subsection (2)(b) of this section): (i) That person or those persons who are entitled to the claimed property pursuant to the terms and provisions of the last will and testament of the decedent or by virtue of the laws of intestate succession contained in this title; and/or (ii) The surviving spouse of the decedent to the extent that the surviving spouse is entitled to the property claimed as his or her undivided one-half interest in the community property of said spouse and the decedent; and/or (iii) The department of social and health services, to the extent of funds expended or paid, in the case of claims provided under RCW 43.20B.080; and/or (iv) This state, in the case of escheat property. (b) Any person claiming to be a successor solely by reason of being a creditor of the decedent or of the decedent’s estate, except for the state as set forth in (a)(iii) and (iv) of this subsection, shall be excluded from the definition of "successor". (3) "Person" shall mean any individual or organization, specifically including but not limited to a bank, credit union, brokerage firm or stock transfer agent, corporation, government or governmental subdivision or agency, business trust, [Title 11 RCW—page 51] 11.62.010 Title 11 RCW: Probate and Trust Law estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity. [2006 c 360 § 15; 1994 c 21 § 1; 1988 c 64 § 24; 1977 ex.s. c 234 § 29.] Clarification of laws--Enforceability of act--Severability—2006 c 360: See notes following RCW 11.108.070. Conflict with federal requirements—Effective date—1994 c 21: See notes following RCW 43.20B.080. Captions—Severability—1988 c 64: See RCW 83.100.904 and 83.100.905. Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Legislative confirmation of effect of 1994 c 21: RCW 43.20B.090. 11.62.010 11.62.010 Disposition of personal property, debts by affidavit, proof of death—Contents of affidavit—Procedure—Securities. (1) At any time after forty days from the date of a decedent’s death, any person who is indebted to or who has possession of any personal property belonging to the decedent or to the decedent and his or her surviving spouse as a community, which debt or personal property is an asset which is subject to probate, shall pay such indebtedness or deliver such personal property, or so much of either as is claimed, to a person claiming to be a successor of the decedent upon receipt of proof of death and of an affidavit made by said person which meets the requirements of subsection (2) of this section. (2) An affidavit which is to be made pursuant to this section shall state: (a) The claiming successor’s name and address, and that the claiming successor is a "successor" as defined in RCW 11.62.005; (b) That the decedent was a resident of the state of Washington on the date of his or her death; (c) That the value of the decedent’s entire estate subject to probate, not including the surviving spouse’s community property interest in any assets which are subject to probate in the decedent’s estate, wherever located, less liens and encumbrances, does not exceed one hundred thousand dollars; (d) That forty days have elapsed since the death of the decedent; (e) That no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; (f) That all debts of the decedent including funeral and burial expenses have been paid or provided for; (g) A description of the personal property and the portion thereof claimed, together with a statement that such personal property is subject to probate; (h) That the claiming successor has given written notice, either by personal service or by mail, identifying his or her claim, and describing the property claimed, to all other successors of the decedent, and that at least ten days have elapsed since the service or mailing of such notice; and (i) That the claiming successor is either personally entitled to full payment or delivery of the property claimed or is entitled to full payment or delivery thereof on the behalf and with the written authority of all other successors who have an interest therein. (3) A transfer agent of any security shall change the registered ownership of the security claimed from the decedent [Title 11 RCW—page 52] to the person claiming to be the successor with respect to such security upon the presentation of proof of death and of an affidavit made by such person which meets the requirements of subsection (2) of this section. Any governmental agency required to issue certificates of ownership or of license registration to personal property shall issue a new certificate of ownership or of license registration to a person claiming to be a successor of the decedent upon receipt of proof of death and of an affidavit made by such person which meets the requirements of subsection (2) of this section. (4) No release from any Washington state or local taxing authority may be required before any assets or debts are paid or delivered to a successor of a decedent as required under this section. (5) A copy of the affidavit, including the decedent’s social security number, shall be mailed to the state of Washington, department of social and health services, office of financial recovery. [2006 c 360 § 16; 1995 1st sp.s. c 18 § 60; 1993 c 291 § 1. Prior: 1988 c 64 § 25; 1988 c 29 § 2; 1987 c 157 § 1; 1977 ex.s. c 234 § 11; 1974 ex.s. c 117 § 4.] Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. Conflict with federal requirements—Severability—Effective date— 1995 1st sp.s. c 18: See notes following RCW 74.39A.030. Captions—Severability—1988 c 64: See RCW 83.100.904 and 83.100.905. Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.62.020 11.62.020 Effect of affidavit and proof of death—Discharge and release of transferor—Refusal to pay or deliver—Procedure—False affidavit—Conflicting affidavits—Accountability. The person paying, delivering, transferring, or issuing personal property pursuant to RCW 11.62.010 is discharged and released to the same extent as if such person has dealt with a personal representative of the decedent, unless at the time of such payment, delivery, transfer, or issuance, such person had actual knowledge of the falsity of any statement which is required by RCW 11.62.010(2) as now or hereafter amended to be contained in the successor’s affidavit. Such person is not required to see to the application of the personal property, or to inquire into the truth of any matter specified in RCW 11.62.010 (1) or (2), or into the payment of any estate tax liability. An organization shall not be deemed to have actual knowledge of the falsity of any statement contained in an affidavit made pursuant to RCW 11.62.010(2) as now or hereafter amended until such time as said knowledge shall have been brought to the personal attention of the individual making the transfer, delivery, payment, or issuance of the personal property claimed under RCW 11.62.010 as now or hereafter amended. If any person to whom an affidavit and proof of death is delivered refuses to pay, deliver, or transfer any personal property, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled thereto. If more than one affidavit is delivered with reference to the same personal property, the person to (2006 Ed.) Partnership Property whom an affidavit is delivered may pay, deliver, transfer, or issue any personal property in response to the first affidavit received, provided that proof of death has also been received, or alternately implead such property into court for payment over to the person entitled thereto. Any person to whom payment, delivery, transfer, or issuance of personal property is made pursuant to RCW 11.62.010 as now or hereafter amended is answerable and accountable therefor to any personal representative of the estate of the decedent or to any other person having a superior right thereto. [1990 c 180 § 4; 1977 ex.s. c 234 § 12; 1974 ex.s. c 117 § 5.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.62.030 11.62.030 Payment to surviving spouse of moneys on deposit of deceased credit union member—Limitation— Affidavit—Accounting to personal representative. On the death of any member of any credit union organized under chapter 31.12 RCW or federal law, such credit union may pay to the surviving spouse the moneys of such member on deposit to the credit of said deceased member, including moneys deposited as shares in said credit union, in cases where the amount of deposit does not exceed the sum of one thousand dollars, upon receipt of an affidavit from the surviving spouse to the effect that the member died and no executor or administrator has been appointed for the member’s estate, and the member had on deposit in said credit union money not exceeding the sum of one thousand dollars. The payment of such deposit made in good faith to the spouse making the affidavit shall be a full acquittance and release of the credit union for the amount of the deposit so paid. No probate proceeding shall be necessary to establish the right of said surviving spouse to withdraw said deposits upon the filing of said affidavit: PROVIDED, That whenever a personal representative is appointed in an estate where a withdrawal of deposits has been had in compliance with this section, the spouse so withdrawing said deposits shall account for the same to the personal representative. The credit union may also pay out the moneys on deposit to the credit of the deceased upon presentation of an affidavit as provided in RCW 11.62.010, as now or hereafter amended. [1980 c 41 § 10.] Severability—1980 c 41: "If any provision of this amendatory act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1980 c 41 § 13.] Chapter 11.64 Chapter 11.64 RCW PARTNERSHIP PROPERTY Sections 11.64.002 11.64.008 11.64.016 11.64.022 11.64.030 11.64.040 (2006 Ed.) Inventory—Appraisement. Surviving partner may continue in possession. Security may be required. Failure to furnish inventory, list liabilities, permit appraisal, etc.—Show cause—Contempt of court—Receiver. Surviving partner or partners may purchase deceased’s interest—Valuation—Conditions of sale—Protection against partnership liabilities. Surviving partner may operate under agreement with estate— Termination. 11.64.022 11.64.002 11.64.002 Inventory—Appraisement. Within three months after receiving written request from the personal representative the surviving partner or partners of the partnership shall furnish the personal representative with a verified inventory of the assets of the partnership. The inventory shall state the value of the assets as shown by the books of the partnership and list the liabilities of the partnership. At the request of the personal representative, the surviving partner or partners shall permit the assets of the partnership to be appraised, which appraisal shall include the value of the assets of the partnership and a list of the liabilities. [1977 ex.s. c 234 § 13; 1965 c 145 § 11.64.002. Prior: 1951 c 197 § 1; prior: (i) 1917 c 156 § 88; RRS § 1458. (ii) 1917 c 156 § 91; RRS § 1461.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Inventory of estate to identify decedent’s share in partnership: RCW 11.44.015(1)(f). 11.64.008 11.64.008 Surviving partner may continue in possession. The surviving partner or partners may continue in possession of the partnership estate, pay its debts, and settle its business, and shall account to the personal representative of the decedent and shall pay over such balances as may, from time to time, be payable to him. [1977 ex.s. c 234 § 14; 1965 c 145 § 11.64.008. Prior: 1951 c 197 § 2.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. 11.64.016 11.64.016 Security may be required. If the surviving partner or partners commit waste, or if it appears to the court that it is for the best interest of the estate of the decedent, such court may, after a hearing, order the surviving partner or partners to give security for the faithful settlement of the partnership affairs and the payment to the personal representative of any amount due the estate. [1977 ex.s. c 234 § 15; 1965 c 145 § 11.64.016. Prior: 1951 c 197 § 3.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. 11.64.022 11.64.022 Failure to furnish inventory, list liabilities, permit appraisal, etc.—Show cause—Contempt of court—Receiver. If the surviving partner or partners fail or refuse to furnish an inventory or list of liabilities, to permit an appraisal, or to account to the personal representative, or to furnish a bond when required pursuant to RCW 11.64.016, the court shall order a citation to issue requiring the surviving partner or partners to appear and show cause why they have not furnished an inventory list of liabilities, or permitted an appraisal or why they should not account to the personal representative or file a bond. The citation shall be served not less than ten days before the return day designated therein, or such shorter period as the court upon a showing of good cause deems appropriate. If the surviving partner or partners neglect or refuse to file an inventory or list of liabilities, or to permit an appraisal, or fail to account to the court or to file a bond, after they have been directed to do so, they may be punished for a contempt of court as provided in chapter 7.21 RCW. Where the surviving partner or partners fail to file a bond after being ordered to do so by the court, the court may also appoint a receiver of the partnership estate under chapter [Title 11 RCW—page 53] 11.64.030 Title 11 RCW: Probate and Trust Law 7.60 RCW, and may order the costs and expenses of the proceedings to be paid out of the partnership estate or out of the estate of the decedent, or by the surviving partner or partners personally, or partly by each of the parties. [2004 c 165 § 39; 1989 c 373 § 15; 1977 ex.s. c 234 § 16; 1965 c 145 § 11.64.022. Prior: 1951 c 197 § 4.] Purpose—Captions not law—2004 c 165: See notes following RCW 7.60.005. Severability—1989 c 373: See RCW 7.21.900. Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. 11.64.030 11.64.030 Surviving partner or partners may purchase deceased’s interest—Valuation—Conditions of sale—Protection against partnership liabilities. The surviving partner or the surviving partners jointly, shall have the right at any time to petition the court to purchase the interests of a deceased partner in the partnership. Upon a hearing pursuant to such petition the court shall, in such manner as it sees fit, determine and by order fix the value of the interest of the deceased partner over and above all partnership debts and obligations, the price, terms, and conditions of such sale and the period of time during which the surviving partner or partners shall have the prior right to purchase the interest of the deceased partner. If any such surviving partner be also the personal representative of the estate of the deceased partner, such fact shall not affect his right to purchase, or to join with the other surviving partners to purchase such interest in the manner hereinbefore provided. The court shall make such orders in connection with such sale as it deems proper or necessary to protect the estate of the deceased against any liability for partnership debts or obligations. [1977 ex.s. c 234 § 17; 1965 c 145 § 11.64.030. Prior: 1951 c 197 § 5; prior: 1917 c 156 § 89; 1859 p 186 §§ 120-130; 1854 p 274 §§ 46-53; RRS § 1459.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. 11.64.040 11.64.040 Surviving partner may operate under agreement with estate—Termination. The court may, in instances where it is deemed advisable, authorize and direct the personal representative of the estate of a deceased partner to enter into an agreement with the surviving partner or partners under which the surviving partner or partners may continue to operate any going business of the former partnership until the further order of the court. The court may, in its discretion, revoke such authority and direction and thereby terminate such agreement at any time by further order, entered upon the application of the personal representative or the surviving partner or partners or any interested person or on its own motion. [1965 c 145 § 11.64.040. Prior: 1951 c 197 § 6; prior: 1917 c 156 § 90; 1859 p 186 §§ 120-130; 1854 p 274 §§ 46-53; RRS § 1460.] Chapter 11.66 Chapter 11.66 RCW SOCIAL SECURITY BENEFITS Sections 11.66.010 11.66.010 11.66.010 Social security benefits—Payment to survivors or department of social and health services— Effect. (1) If not less than thirty days after the death of an individual entitled at the time of death to a monthly benefit or benefits under Title II of the Social Security Act, all or part of the amount of such benefit or benefits, not in excess of one thousand dollars, is paid by the United States to (a) the surviving spouse, (b) one or more of the deceased’s children, or descendants of his deceased children, (c) the secretary of social and health services if the decedent was a resident of a state institution at the date of death and liable for the cost of his care in an amount at least as large as the amount of such benefits, (d) the deceased’s father or mother, or (e) the deceased’s brother or sister, preference being given in the order named if more than one request for payment shall have been made by or for such individuals, such payment shall be deemed to be a payment to the legal representative of the decedent and shall constitute a full discharge and release from any further claim for such payment to the same extent as if such payment had been made to an executor or administrator of the decedent’s estate. (2) The provisions of subsection (1) hereof shall apply only if an affidavit has been made and filed with the United States Department of Health, Education, and Welfare by the surviving spouse or other relative by whom or on whose behalf request for payment is made and such affidavit shows (a) the date of death of the deceased, (b) the relationship of the affiant to the deceased, (c) that no executor or administrator for the deceased has qualified or been appointed, nor to the affiant’s knowledge is administration of the deceased’s estate contemplated, and (d) that, to the affiant’s knowledge, there exists at the time of the filing of such affidavit, no relative of a closer degree of kindred to the deceased than the affiant: PROVIDED, That the affidavit filed by the secretary of social and health services shall meet the requirements of parts (a) and (c) of this subsection and, in addition, show that the decedent left no known surviving spouse or children and died while a resident of a state institution at the date of death and liable for the cost of his care in an amount at least as large as the amount of such benefits. [1979 c 141 § 12; 1967 c 175 § 2.] Effective date—1967 c 175: "This 1967 amendatory act shall take effect and be in force on and after the first day of July, 1967, in conformity with the terms and provisions of section 11.99.010, chapter 145, Laws of 1965 and RCW 11.99.010." [1967 c 175 § 3.] Disposition of property of deceased inmate of state institution: RCW 11.08.101, 11.08.111, 11.08.120. Chapter 11.68 Sections 11.68.011 11.68.021 11.68.041 11.68.050 11.68.060 Social security benefits—Payment to survivors or department of social and health services—Effect. [Title 11 RCW—page 54] Chapter 11.68 RCW SETTLEMENT OF ESTATES WITHOUT ADMINISTRATION Settlement without court intervention—Petition—Conditions—Exceptions. Hearing on petition for nonintervention powers. Petition for nonintervention powers—Notice requirements— Exceptions. Objections to granting of nonintervention powers—Restrictions. Death, resignation, or disablement of personal representative—Successor to administer nonintervention powers— Petition. (2006 Ed.) Settlement of Estates Without Administration 11.68.065 11.68.070 11.68.080 11.68.090 11.68.095 11.68.100 11.68.110 11.68.112 11.68.114 11.68.120 Report of affairs of estate—Petition by beneficiary—Filing— Notice—Hearing—Other accounting and information. Procedure when personal representative recreant to trust or subject to removal. Vacation or restriction of nonintervention powers following insolvency—Notice—Determinations affecting prior grants of nonintervention powers upon petition—Endorsement on prior orders. Powers of personal representative under nonintervention will—Scope—Relief from duties, restrictions, liabilities by will. Co-personal representatives—Powers. Closing of estate—Alternative decrees—Notice—Hearing— Fees. Declaration of completion of probate—Contents—Notice— Discharge of personal representative—Waiver of notice. Final distribution upon declaration and notice of filing of declaration of completion of probate—Special powers of personal representative—Discharge from liability. Declaration of completion of probate—Special powers of personal representative to hold reserve and deal with taxing authorities—Notice of filing of declaration—Discharge from liability. Nonintervention powers not deemed waived by obtaining order or decree. 11.68.011 11.68.011 Settlement without court intervention— Petition—Conditions—Exceptions. (1) A personal representative may petition the court for nonintervention powers, whether the decedent died testate or intestate. (2) Unless the decedent has specified in the decedent’s will, if any, that the court not grant nonintervention powers to the personal representative, the court shall grant nonintervention powers to a personal representative who petitions for the powers if the court determines that the decedent’s estate is solvent, taking into account probate and nonprobate assets, and that: (a) The petitioning personal representative was named in the decedent’s probated will as the personal representative; (b) The decedent died intestate, the petitioning personal representative is the decedent’s surviving spouse, the decedent’s estate is composed of community property only, and the decedent had no issue: (i) Who is living or in gestation on the date of the petition; (ii) whose identity is reasonably ascertainable on the date of the petition; and (iii) who is not also the issue of the petitioning spouse; or (c) The personal representative was not a creditor of the decedent at the time of the decedent’s death and the administration and settlement of the decedent’s will or estate with nonintervention powers would be in the best interests of the decedent’s beneficiaries and creditors. However, the administration and settlement of the decedent’s will or estate with nonintervention powers will be presumed to be in the beneficiaries’ and creditors’ best interest until a person entitled to notice under RCW 11.68.041 rebuts that presumption by coming forward with evidence that the grant of nonintervention powers would not be in the beneficiaries’ or creditors’ best interests. (3) The court may base its findings of facts necessary for the grant of nonintervention powers on: (a) Statements of witnesses appearing before the court; (b) representations contained in a verified petition for nonintervention powers, in an inventory made and returned upon oath into the court, or in an affidavit filed with the court; or (c) other proof submitted to the court. [1997 c 252 § 59.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. (2006 Ed.) 11.68.050 11.68.021 11.68.021 Hearing on petition for nonintervention powers. A hearing on a petition for nonintervention powers may be held at the time of the appointment of the personal representative or at any later time. [1997 c 252 § 60.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.68.041 11.68.041 Petition for nonintervention powers— Notice requirements—Exceptions. (1) Advance notice of the hearing on a petition for nonintervention powers referred to in RCW 11.68.011 is not required in those circumstances in which the court is required to grant nonintervention powers under RCW 11.68.011(2) (a) and (b). (2) In all other cases, if the petitioner wishes to obtain nonintervention powers, the personal representative shall give notice of the petitioner’s intention to apply to the court for nonintervention powers to all heirs, all beneficiaries of a gift under the decedent’s will, and all persons who have requested, and who are entitled to, notice under RCW 11.28.240, except that: (a) A person is not entitled to notice if the person has, in writing, either waived notice of the hearing or consented to the grant of nonintervention powers; and (b) An heir who is not also a beneficiary of a gift under a will is not entitled to notice if the will has been probated and the time for contesting the validity of the will has expired. (3) The notice required by this section must be either personally served or sent by regular mail at least ten days before the date of the hearing, and proof of mailing of the notice must be by affidavit filed in the cause. The notice must contain the decedent’s name, the probate cause number, the name and address of the personal representative, and must state in substance as follows: (a) The personal representative has petitioned the superior court of the state of Washington for . . . . . county, for the entry of an order granting nonintervention powers and a hearing on that petition will be held on . . . . ., the . . . . . day of . . . . ., . . . ., at . . . . . o’clock, . . M.; (b) The petition for an order granting nonintervention powers has been filed with the court; (c) Following the entry by the court of an order granting nonintervention powers, the personal representative is entitled to administer and close the decedent’s estate without further court intervention or supervision; and (d) A person entitled to notice has the right to appear at the time of the hearing on the petition for an order granting nonintervention powers and to object to the granting of nonintervention powers to the personal representative. (4) If notice is not required, or all persons entitled to notice have either waived notice of the hearing or consented to the entry of an order granting nonintervention powers as provided in this section, the court may hear the petition for an order granting nonintervention powers at any time. [1997 c 252 § 61.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.68.050 11.68.050 Objections to granting of nonintervention powers—Restrictions. (1) If at the time set for the hearing upon a petition for nonintervention powers, any person entitled to notice of the hearing on the petition under RCW [Title 11 RCW—page 55] 11.68.060 Title 11 RCW: Probate and Trust Law 11.68.041 shall appear and object to the granting of nonintervention powers to the personal representative of the estate, the court shall consider the objections, if any, in connection with its determination under RCW 11.68.011(2)(c) of whether a grant of nonintervention powers would be in the best interests of the decedent’s beneficiaries. (2) The nonintervention powers of a personal representative may not be restricted at a hearing on a petition for nonintervention powers in which the court is required to grant nonintervention powers under RCW 11.68.011(2) (a) and (b), unless a will specifies that the nonintervention powers of a personal representative may be restricted when the powers are initially granted. In all other cases, including without limitation any hearing on a petition that alleges that the personal representative has breached its duties to the beneficiaries of the estate, the court may restrict the powers of the personal representative in such manner as the court determines to be in the best interests of the decedent’s beneficiaries. [1997 c 252 § 62; 1977 ex.s. c 234 § 21; 1974 ex.s. c 117 § 17.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.68.060 11.68.060 Death, resignation, or disablement of personal representative—Successor to administer nonintervention powers—Petition. If any personal representative of the estate of the decedent dies, resigns, or otherwise becomes disabled from any cause from acting as the nonintervention personal representative, the successor personal representative, or a person who has petitioned to be appointed as a successor personal representative, may petition the court for nonintervention powers, and the court shall act, in accordance with RCW 11.68.011 through 11.68.041 and 11.68.050. [1997 c 252 § 63; 1977 ex.s. c 234 § 22; 1974 ex.s. c 117 § 18.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. personal, that has come into the hands of the personal representative; a statement of all property collected and paid out or distributed by the personal representative; a statement of claims filed and allowed against the estate and those rejected; any estate, inheritance, or fiduciary income tax returns filed by the personal representative; and such other information as the order may require. This subsection does not limit any power the court might otherwise have at any time during the administration of the estate to require the personal representative to account or furnish other information to any person interested in the estate. [1999 c 42 § 614; 1997 c 252 § 64.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.68.070 11.68.070 Procedure when personal representative recreant to trust or subject to removal. If any personal representative who has been granted nonintervention powers fails to execute his trust faithfully or is subject to removal for any reason specified in RCW 11.28.250 as now or hereafter amended, upon petition of any unpaid creditor of the estate who has filed a claim or any heir, devisee, legatee, or of any person on behalf of any incompetent heir, devisee, or legatee, such petition being supported by affidavit which makes a prima facie showing of cause for removal or restriction of powers, the court shall cite such personal representative to appear before it, and if, upon hearing of the petition it appears that said personal representative has not faithfully discharged said trust or is subject to removal for any reason specified in RCW 11.28.250 as now or hereafter amended, then, in the discretion of the court the powers of the personal representative may be restricted or the personal representative may be removed and a successor appointed. In the event the court shall restrict the powers of the personal representative in any manner, it shall endorse the words "Powers restricted" upon the original order of solvency together with the date of said endorsement, and in all such cases the cost of the citation, hearing, and reasonable attorney’s fees may be awarded as the court determines. [1977 ex.s. c 234 § 23; 1974 ex.s. c 117 § 19.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.68.065 11.68.065 Report of affairs of estate—Petition by beneficiary—Filing—Notice—Hearing—Other accounting and information. A beneficiary whose interest in an estate has not been fully paid or distributed may petition the court for an order directing the personal representative to deliver a report of the affairs of the estate signed and verified by the personal representative. The petition may be filed at any time after one year from the day on which the report was last delivered, or, if none, then one year after the order appointing the personal representative. Upon hearing of the petition after due notice as required in RCW 11.96A.110, the court may, for good cause shown, order the personal representative to deliver to the petitioner the report for any period not covered by a previous report. The report for the period shall include such of the following as the court may order: A description of the amount and nature of all property, real and [Title 11 RCW—page 56] 11.68.080 11.68.080 Vacation or restriction of nonintervention powers following insolvency—Notice—Determinations affecting prior grants of nonintervention powers upon petition—Endorsement on prior orders. (1) Within ten days after the personal representative has received from alleged creditors under chapter 11.40 RCW claims that have an aggregate face value that, when added to the other debts and to the taxes and expenses of greater priority under applicable law, would appear to cause the estate to be insolvent, the personal representative shall notify in writing all beneficiaries under the decedent’s will and, if any of the decedent’s property will pass according to the laws of intestate succession, all heirs, together with any unpaid creditors, other than a creditor whose claim is then barred under chapter 11.40 RCW or the otherwise applicable statute of limitations, that (2006 Ed.) Settlement of Estates Without Administration the estate might be insolvent. The personal representative shall file a copy of the written notice with the court. (2) Within ten days after an estate becomes insolvent, the perso nal r epresentativ e sh all petitio n und er RCW 11.96A.080 for a determination of whether the court should reaffirm, rescind, or restrict in whole or in part any prior grant of nonintervention powers. Notice of the hearing must be given in accordance with RCW 11.96A.110. (3) If, upon a petition under RCW 11.96A.080 of any personal representative, beneficiary under the decedent’s will, heir if any of the decedent’s property passes according to the laws of intestate succession, or any unpaid creditor with a claim that has been accepted or judicially determined to be enforceable, the court determines that the decedent’s estate is insolvent, the court shall reaffirm, rescind, or restrict in whole or in part any prior grant of nonintervention powers to the extent necessary to protect the best interests of the beneficiaries and creditors of the estate. (4) If the court rescinds or restricts a prior grant of nonintervention powers, the court shall endorse the term "powers rescinded" or "powers restricted" upon the prior order together with the date of the endorsement. [1999 c 42 § 615; 1997 c 252 § 65; 1977 ex.s. c 234 § 24; 1974 ex.s. c 117 § 20.] 11.68.100 privileges and powers conferred by this title, and may add duties, restrictions, liabilities, privileges, or powers to those imposed or granted by this title. If any common law or any statute referenced earlier in this subsection is in conflict with a will, the will controls whether or not specific reference is made in the will to this section. However, notwithstanding the rest of this subsection, a personal representative may not be relieved of the duty to act in good faith and with honest judgment. [2003 c 254 § 3; 1997 c 252 § 66; 1988 c 29 § 3; 1985 c 30 § 7. Prior: 1984 c 149 § 10; 1974 ex.s. c 117 § 21.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.68.095 Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.68.095 Co-personal representatives—Powers. All of the provisions of RCW 11.98.016 regarding the exercise of powers by co-trustees of a trust shall apply to the co-personal representatives of an estate in which the co-personal representatives have been granted nonintervention powers, as if, for purposes of the interpretation of that law, co-personal representatives were co-trustees and an estate were a trust. [1997 c 252 § 67.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.68.090 11.68.090 Powers of personal representative under nonintervention will—Scope—Relief from duties, restrictions, liabilities by will. (1) Any personal representative acting under nonintervention powers may borrow money on the general credit of the estate and may mortgage, encumber, lease, sell, exchange, convey, and otherwise have the same powers, and be subject to the same limitations of liability, that a trustee has under RCW 11.98.070 and chapters 11.100 and 11.102 RCW with regard to the assets of the estate, both real and personal, all without an order of court and without notice, approval, or confirmation, and in all other respects administer and settle the estate of the decedent without intervention of court. Except as otherwise specifically provided in this title or by order of court, a personal representative acting under nonintervention powers may exercise the powers granted to a personal representative under chapter 11.76 RCW but is not obligated to comply with the duties imposed on personal representatives by that chapter. A party to such a transaction and the party’s successors in interest are entitled to have it conclusively presumed that the transaction is necessary for the administration of the decedent’s estate. (2) Except as otherwise provided in chapter 11.108 RCW or elsewhere in order to preserve a marital deduction from estate taxes, a testator may by a will relieve the personal representative from any or all of the duties, restrictions, and liabilities imposed: Under common law; by chapters 11.54, 11.56, 11.100, 11.102, and 11.104A RCW; or by RCW 11.28.270 and 11.28.280, 11.68.095, and 11.98.070. In addition, a testator may likewise alter or deny any or all of the (2006 Ed.) 11.68.100 11.68.100 Closing of estate—Alternative decrees— Notice—Hearing—Fees. (1) When the estate is ready to be closed, the court, upon application by the personal representative who has nonintervention powers, shall have the authority and it shall be its duty, to make and cause to be entered a decree which either: (a) Finds and adjudges that all approved claims of the decedent have been paid, finds and adjudges the heirs of the decedent or those persons entitled to take under his will, and distributes the property of the decedent to the persons entitled thereto; or (b) Approves the accounting of the personal representative and settles the estate of the decedent in the manner provided for in the administration of those estates in which the personal representative has not acquired nonintervention powers. (2) Either decree provided for in this section shall be made after notice given as provided for in the settlement of estates by a personal representative who has not acquired nonintervention powers. The petition for either decree provided for in this section shall state the fees paid or proposed to be paid to the personal representative, his attorneys, accountants, and appraisers, and any heir, devisee, or legatee whose interest in the assets of a decedent’s estate would be reduced by the payment of said fees shall receive a copy of said petition with the notice of hearing thereon; at the request of the personal representative or any said heir, devisee, or legatee, the court shall, at the time of the hearing on either petition, determine the reasonableness of said fees. The court shall take into consideration all criteria forming the basis for the determination of the amount of such fees as contained in [Title 11 RCW—page 57] 11.68.110 Title 11 RCW: Probate and Trust Law the code of professional responsibility; in determining the reasonableness of the fees charged by any personal representative, accountants, and appraisers the court shall take into consideration the criteria forming the basis for the determination of attorney’s fees, to the extent applicable, and any other factors which the court determines to be relevant in the determination of the amount of fees to be paid to such personal representative. [1977 ex.s. c 234 § 25; 1974 ex.s. c 117 § 22.] Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.68.110 11.68.110 Declaration of completion of probate— Contents—Notice—Discharge of personal representative—Waiver of notice. (1) If a personal representative who has acquired nonintervention powers does not apply to the court for either of the final decrees provided for in RCW 11.68.100 as now or hereafter amended, the personal representative shall, when the administration of the estate has been completed, file a declaration that must state as follows: (a) The date of the decedent’s death and the decedent’s residence at the time of death; (b) Whether or not the decedent died testate or intestate; (c) If the decedent died testate, the date of the decedent’s last will and testament and the date of the order probating the will; (d) That each creditor’s claim which was justly due and properly presented as required by law has been paid or otherwise disposed of by agreement with the creditor, and that the amount of estate taxes due as the result of the decedent’s death has been determined, settled, and paid; (e) That the personal representative has completed the administration of the decedent’s estate without court intervention, and the estate is ready to be closed; (f) If the decedent died intestate, the names, addresses (if known), and relationship of each heir of the decedent, together with the distributive share of each heir; and (g) The amount of fees paid or to be paid to each of the following: (i) Personal representative or representatives; (ii) lawyer or lawyers; (iii) appraiser or appraisers; and (iv) accountant or accountants; and that the personal representative believes the fees to be reasonable and does not intend to obtain court approval of the amount of the fees or to submit an estate accounting to the court for approval. (2) Subject to the requirement of notice as provided in this section, unless an heir, devisee, or legatee of a decedent petitions the court either for an order requiring the personal representative to obtain court approval of the amount of fees paid or to be paid to the personal representative, lawyers, appraisers, or accountants, or for an order requiring an accounting, or both, within thirty days from the date of filing a declaration of completion of probate, the personal representative will be automatically discharged without further order of the court and the representative’s powers will cease thirty days after the filing of the declaration of completion of probate, and the declaration of completion of probate shall, at that time, be the equivalent of the entry of a decree of distribution in accordance with chapter 11.76 RCW for all legal intents and purposes. [Title 11 RCW—page 58] (3) Within five days of the date of the filing of the declaration of completion, the personal representative or the personal representative’s lawyer shall mail a copy of the declaration of completion to each heir, legatee, or devisee of the decedent, who: (a) Has not waived notice of the filing, in writing, filed in the cause; and (b) either has not received the full amount of the distribution to which the heir, legatee, or devisee is entitled or has a property right that might be affected adversely by the discharge of the personal representative under this section, together with a notice which shall be substantially as follows: CAPTION OF CASE NOTICE OF FILING OF DECLARATION OF COMPLETION OF PROBATE NOTICE IS GIVEN that the attached Declaration of Completion of Probate was filed by the undersigned in the above-entitled court on the . . . . day of . . . . . ., 19 . . .; unless you shall file a petition in the above-entitled court requesting the court to approve the reasonableness of the fees, or for an accounting, or both, and serve a copy thereof upon the personal representative or the personal representative’s lawyer, within thirty days after the date of the filing, the amount of fees paid or to be paid will be deemed reasonable, the acts of the personal representative will be deemed approved, the personal representative will be automatically discharged without further order of the court, and the Declaration of Completion of Probate will be final and deemed the equivalent of a Decree of Distribution entered under chapter 11.76 RCW. If you file and serve a petition within the period specified, the undersigned will request the court to fix a time and place for the hearing of your petition, and you will be notified of the time and place thereof, by mail, or personal service, not less than ten days before the hearing on the petition. Dated this . . . . day of . . . . . ., 19 . . . ............................... Personal Representative (4) If all heirs, devisees, and legatees of the decedent entitled to notice under this section waive, in writing, the notice required by this section, the personal representative will be automatically discharged without further order of the court and the declaration of completion of probate will become effective as a decree of distribution upon the date of filing thereof. In those instances where the personal representative has been required to furnish bond, and a declaration of completion is filed pursuant to this section, any bond furnished by the personal representative shall be automatically discharged upon the discharge of the personal representative. [1998 c 292 § 202; 1997 c 252 § 68; 1990 c 180 § 5; 1985 c 30 § 8. Prior: 1984 c 149 § 11; 1977 ex.s. c 234 § 26; 1974 ex.s. c 117 § 23.] Retroactive application—1998 c 292: See note following RCW 11.54.070. Part headings and section captions not law—Effective dates—1998 c 292: See RCW 11.11.902 and 11.11.903. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. (2006 Ed.) Settlement of Estates Without Administration Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. intervention, and the estate is ready to be closed, except for the determination of taxes and of interest and penalties thereon as permitted under this section; Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Effective date, application—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.68.112 11.68.112 Final distribution upon declaration and notice of filing of declaration of completion of probate— Special powers of personal representative—Discharge from liability. If the declaration of completion of probate and the notice of filing of declaration of completion of probate state that the personal representative intends to make final distribution within five business days after the final date on which a beneficiary could petition for an order to approve fees or to require an accounting, which date is referred to in this section as the "effective date of the declaration of completion," and if the notice of filing of declaration of completion of probate sent to each beneficiary who has not received everything to which that beneficiary is entitled from the decedent’s estate specifies the amount of the minimum distribution to be made to that beneficiary, the personal representative retains, for five business days following the effective date of the declaration of completion, the power to make the stated minimum distributions. In this case, the personal representative is discharged from all claims other than those relating to the actual distribution of the reserve, at the effective date of the declaration of completion. The personal representative is only discharged from liability for the distribution of the reserve when the whole reserve has been distributed and each beneficiary has received at least the distribution which that beneficiary’s notice stated that the beneficiary would receive. [1997 c 252 § 69.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.68.114 11.68.114 Declaration of completion of probate— Special powers of personal representative to hold reserve and deal with taxing authorities—Notice of filing of declaration—Discharge from liability. (1) The personal representative retains the powers to: Deal with the taxing authority of any federal, state, or local government; hold a reserve in an amount not to exceed three thousand dollars, for the determination and payment of any additional taxes, interest, and penalties, and of all reasonable expenses related directly or indirectly to such determination or payment; pay from the reserve the reasonable expenses, including compensation for services rendered or goods provided by the personal representative or by the personal representative’s employees, independent contractors, and other agents, in addition to any taxes, interest, or penalties assessed by a taxing authority; receive and hold any credit, including interest, from any taxing authority; and distribute the residue of the reserve to the intended beneficiaries of the reserve; if: (a) In lieu of the statement set forth in RCW 11.68.110(1)(e), the declaration of completion of probate states that: The personal representative has completed the administration of the decedent’s estate without court (2006 Ed.) 11.68.114 and (b) The notice of the filing of declaration of completion of probate must be in substantially the following form: CAPTION OF CASE NOTICE OF FILING OF DECLARATION OF COMPLETION OF PROBATE NOTICE IS GIVEN that the attached Declaration of Completion of Probate was filed by the undersigned in the above-entitled court on the . . . day of . . . . , . . . .; unless you file a petition in the above-entitled court requesting the court to approve the reasonableness of the fees, or for an accounting, or both, and serve a copy thereof upon the personal representative or the personal representative’s lawyer, within thirty days after the date of the filing: (i) The schedule of fees set forth in the Declaration of Completion of Probate will be deemed reasonable; (ii) The Declaration of Completion of Probate will be final and deemed the equivalent of a Decree of Distribution entered under chapter 11.76 RCW; (iii) The acts that the personal representative performed before the Declaration of Completion of Probate was filed will be deemed approved, and the personal representative will be automatically discharged without further order of the court with respect to all such acts; and (iv) The personal representative will retain the power to deal with the taxing authorities, together with $. . . . for the determination and payment of all remaining tax obligations. Only that portion of the reserve that remains after the settlement of any tax liability, and the payment of any expenses associated with such settlement, will be distributed to the persons legally entitled to the reserve. (2) If the requirements in subsection (1) of this section are met, the personal representative is discharged from all claims other than those relating to the settlement of any tax obligations and the actual distribution of the reserve, at the effective date of the declaration of completion. The personal representative is discharged from liability from the settlement of any tax obligations and the distribution of the reserve, and the personal representative’s powers cease, thirty days after the personal representative has mailed to those persons who would have shared in the distribution of the reserve had the reserve remained intact and has filed with the court copies of checks or receipts showing how the reserve was in fact distributed, unless a person with an interest in the reserve petitions the court earlier within the thirty-day period for an order requiring an accounting of the reserve or an order determining the reasonableness, or lack of reasonableness, of distributions made from the reserve. If the personal representative has been required to furnish a bond, any bond furnished by the personal representative is automatically discharged upon [Title 11 RCW—page 59] 11.68.120 Title 11 RCW: Probate and Trust Law the final discharge of the personal representative. [1998 c 292 § 203; 1997 c 252 § 70.] Retroactive application—1998 c 292: See note following RCW 11.54.070. Part headings and section captions not law—Effective dates—1998 c 292: See RCW 11.11.902 and 11.11.903. Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Chapter 11.76 Sections 11.76.010 11.76.020 11.76.030 11.76.040 11.76.050 11.76.060 11.68.120 11.68.120 Nonintervention powers not deemed waived by obtaining order or decree. A personal representative who has acquired nonintervention powers in accordance with this chapter shall not be deemed to have waived his nonintervention powers by obtaining any order or decree during the course of his administration of the estate. [1974 ex.s. c 117 § 24.] Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. Chapter 11.72 RCW DISTRIBUTION BEFORE SETTLEMENT Chapter 11.72 Sections 11.72.002 11.72.006 Delivery of specific property to distributee before final decree. Decree of partial distribution—Distribution of part of estate. 11.76.070 11.76.080 11.76.095 11.76.100 11.76.110 11.76.120 11.76.130 11.76.150 11.76.160 11.76.170 11.76.180 11.76.190 11.76.200 11.76.210 11.76.220 11.76.230 11.76.240 11.76.243 11.76.245 11.76.247 11.72.002 11.72.002 Delivery of specific property to distributee before final decree. Upon application of the personal representative, with or without notice as the court may direct, the court may order the personal representative to deliver to any distributee who consents to it, possession of any specific real or personal property to which he is entitled under the terms of the will or by intestacy, provided that other distributees and claimants are not prejudiced thereby. The court may at any time prior to the decree of final distribution order him to return such property to the personal representative, if it is for the best interests of the estate. The court may require the distributee to give security for such return. [1965 c 145 § 11.72.002.] 11.72.006 11.72.006 Decree of partial distribution—Distribution of part of estate. After the expiration of the time limited for the filing of claims and before final settlement of the accounts of the personal representative, a partial distribution may be decreed, with notice to interested persons, as the court may direct. Such distribution shall be as conclusive as a decree of final distribution with respect to the estate distributed except to the extent that other distributees and claimants are deprived of the fair share or amount which they would otherwise receive on final distribution. Before a partial distribution is so decreed, the court may require that security be given for the return of the property so distributed to the extent necessary to satisfy any distributees and claimants who may be prejudiced as aforesaid by the distribution. In the event of a request for a partial distribution asked by a person other than the personal representative of the estate, the costs of such proceedings and a reasonable allowance for attorneys fees shall be assessed against the applicant or applicants for the benefit of the estate. [1965 c 145 § 11.72.006. Formerly RCW 11.72.010 through 11.72.070.] [Title 11 RCW—page 60] Chapter 11.76 RCW SETTLEMENT OF ESTATES 11.76.250 Report of personal representative—Contents—Interim reports. Notice of hearing—Settlement of report. Final report and petition for distribution—Contents. Time and place of hearing—Notice. Hearing on final report—Decree of distribution. Continuance to cite in sureties on bond when account incorrect. Attorney’s fees to contestant of erroneous account or report. Representation of incapacitated person by guardian ad litem or limited guardian—Exception. Distribution of estates to minors. Receipts for expenses from personal representative. Order of payment of debts. Limitation on preference to mortgage or judgment. Expense of monument. Payment of claims where estate insufficient. Liability of personal representative. Action on claim not acted on—Contribution. Order maturing claim not due. Procedure on contingent and disputed claim. Agent for absentee distributee. Agent’s bond. Sale of unclaimed estate—Remittance of proceeds to department of revenue. Liability of agent. Claimant to proceeds of sale. Heirs may institute probate proceedings if no claimant appears. Procedure when claim made after time limitation. When court retains jurisdiction after entry of decree of distribution. Letters after final settlement. Destruction of receipts for expenses under probate proceedings: RCW 36.23.065. Estate and transfer taxes: Chapter 83.100 RCW. 11.76.010 Report of personal representative—Contents—Interim reports. Not less frequently than annually from the date of qualification, unless a final report has theretofore been rendered, the personal representative shall make, verify by his oath, and file with the clerk of the court a report of the affairs of the estate. Such report shall contain a statement of the claims filed and allowed and all those rejected, and if it be necessary to sell, mortgage, lease or exchange any property for the purpose of paying debts or settling any obligations against the estate or expenses of administration or allowance to the family, he may in such report set out the facts showing such necessity and ask for such sale, mortgage, lease or exchange; such report shall likewise state the amount of property, real and personal, which has come into his hands, and give a detailed statement of all sums collected by him, and of all sums paid out, and it shall state such other things and matters as may be proper or necessary to give the court full information regarding any transactions by him done or which should be done. Such personal representative may at any time, however, make, verify, and file any reports which in his judgment would be proper or which the court may order to be made. [1965 c 145 § 11.76.010. Prior: 1917 c 156 § 159; RRS § 1529; prior: Code 1881 § 1544; 1854 p 296 § 167.] 11.76.010 11.76.020 Notice of hearing—Settlement of report. It shall not be necessary for the personal representative to give any notice of the hearing of any report prior to the final report, except as in RCW 11.28.240 provided, but the court 11.76.020 (2006 Ed.) Settlement of Estates may require notice of the hearing of any such report. [1965 c 145 § 11.76.020. Prior: 1917 c 156 § 160; RRS § 1530.] 11.76.030 11.76.030 Final report and petition for distribution—Contents. When the estate shall be ready to be closed, such personal representative shall make, verify and file with the court his final report and petition for distribution. Such final report and petition shall, among other things, show that the estate is ready to be settled and shall show any moneys collected since the previous report, and any property which may have come into the hands of the personal representative since his previous report, and debts paid, and generally the condition of the estate at that time. It shall likewise set out the names and addresses, as nearly as may be, of all the legatees and devisees in the event there shall have been a will, and the names and addresses, as nearly as may be, of all the heirs who may be entitled to share in such estate, and shall give a particular description of all the property of the estate remaining undisposed of, and shall set out such other matters as may tend to inform the court of the condition of the estate, and it may ask the court for a settlement of the estate and distribution of property and the discharge of the personal representative. If the personal representative has been discharged without having legally closed the estate, without having legally obtained an adjudication as to the heirs, or without having legally procured a decree of distribution or final settlement the court may in its discretion upon petition of any person interested, cause all such steps to be taken in such estate as were omitted or defective. [1965 c 145 § 11.76.030. Prior: 1917 c 156 § 161; RRS § 1531; prior: 1891 c 155 § 34; Code 1881 § 1556; 1873 p 305 § 251; 1854 p 297 § 178.] Discharge of personal representative for cause: RCW 11.28.160, 11.28.250. 11.76.040 11.76.040 Time and place of hearing—Notice. When such final report and petition for distribution, or either, has been filed, the court, or the clerk of the court, shall fix a day for hearing it which must be at least twenty days subsequent to the day of the publication as hereinafter provided. Notice of the time and place fixed for the hearing shall be given by the personal representative by publishing a notice thereof in a legal newspaper published in the county for one publication at least twenty days preceding the time fixed for the hearing. It shall state in substance that a final report and petition for distribution have, or either thereof has, been filed with the clerk of the court and that the court is asked to settle such report, distribute the property to the heirs or persons entitled thereto, and discharge the personal representative, and it shall give the time and place fixed for the hearing of such final report and petition and shall be signed by the personal representative or the clerk of the court. Whenever a final report and petition for distribution, or either, shall have been filed in the estate of a decedent and a day fixed for the hearing of the same, the personal representative of such estate shall, not less than twenty days before the hearing, cause to be mailed a copy of the notice of the time and place fixed for hearing to each heir, legatee, devisee and distributee whose name and address are known to him, and proof of such mailing shall be made by affidavit and filed at or before the hearing. [1969 c 70 § 3; 1965 c 145 § 11.76.040. Prior: 1955 c 205 § 13; 1919 c 31 § 1; 1917 c 156 (2006 Ed.) 11.76.050 § 162; RRS § 1532. FORMER PART OF SECTION: re Notice of appointment as personal representative, now codified as RCW 11.28.237.] Request for special notice of proceedings in probate—Prohibitions: RCW 11.28.240. 11.76.050 11.76.050 Hearing on final report—Decree of distribution. Upon the date fixed for the hearing of such final report and petition for distribution, or either thereof, or any day to which such hearing may have been adjourned by the court, if the court be satisfied that the notice of the time and place of hearing has been given as provided herein, it may proceed to the hearing aforesaid. Any person interested may file objections to the said report and petition for distribution, or may appear at the time and place fixed for the hearing thereof and present his objections thereto. The court may take such testimony as to it appears proper or necessary to determine whether the estate is ready to be settled, and whether the transactions of the personal representative should be approved, and to determine who are the legatees or heirs or persons entitled to have the property distributed to them, and the court shall, if it approves such report, and finds the estate ready to be closed, cause to be entered a decree approving such report, find and adjudge the persons entitled to the remainder of the estate, and that all debts have been paid, and by such decree shall distribute the real and personal property to those entitled to the same. Upon the production of receipts from the beneficiaries or distributees for their portions of the estate, the court shall, if satisfied with the correctness thereof, adjudge the estate closed and discharge the personal representative. The court may, upon such final hearing, partition among the persons entitled thereto, the estate held in common and undivided, and designate and distribute their respective shares; or assign the whole or any part of said estate to one or more of the persons entitled to share therein. The person or persons to whom said estate is assigned shall pay or secure to the other parties interested in said estate their just proportion of the value thereof as determined by the court from the appraisement, or from any other evidence which the court may require. If it shall appear to the court at or prior to any final hearing that the estate cannot be fairly divided, then the whole or any part of said estate may be sold or mortgaged in the manner provided by law for the sale or mortgaging of property by personal representatives and the proceeds thereof distributed to the persons entitled thereto as provided in the final decree. The court shall have the authority to make partition, distribution and settlement of all estates in any manner which to the court seems right and proper, to the end that such estates may be administered and distributed to the persons entitled thereto. No estate shall be partitioned, nor sale thereof made where partition is impracticable except upon a hearing before the court and the court shall fix the values of the several pieces or parcels to be partitioned at the time of making such order of partition or sale; and may order the property sold and the proceeds distributed, or may order partition and distribute the several pieces or parcels, subject to such charges or burdens as shall be proper and equitable. The provisions of this section shall be concurrent with and not in derogation of other statutes as to partition of prop[Title 11 RCW—page 61] 11.76.060 Title 11 RCW: Probate and Trust Law erty or sale. [1965 c 145 § 11.76.050. Prior: 1921 c 93 § 1; 1917 c 156 § 163; RRS § 1533; prior: Code 1881 § 1557; 1854 p 297 § 179.] Partition: Chapter 7.52 RCW. 11.76.060 11.76.060 Continuance to cite in sureties on bond when account incorrect. If, at any hearing upon any report of any personal representative, it shall appear to the court before which said proceeding is pending that said personal representative has not fully accounted to the beneficiaries of his trust and that said report should not be approved as rendered, the court may continue said hearing to a day certain and may cite the surety upon the bond of said personal representative to appear upon the date fixed in said citation and show cause why the account should not be disapproved and judgment entered for any deficiency against said personal representative and the surety upon his bond. Said citation shall be personally served upon said surety in the manner provided by law for the service of summons in civil actions and shall be served not less than twenty days previous to said hearing. At said hearing any interested party, including the surety so cited, shall have the right to introduce any evidence which shall be material to the matter before the court. If, at said hearing, the report of said personal representative shall not be approved and the court shall find that said personal representative is indebted to the beneficiary of his trust in any amount, the court may thereupon enter final judgment against said personal representative and the surety upon his bond, which judgment shall be enforceable in the same manner and to the same extent as judgments in ordinary civil actions. [1965 c 145 § 11.76.060. Prior: 1937 c 28 § 1; RRS § 15901.] 11.76.070 11.76.070 Attorney’s fees to contestant of erroneous account or report. If, in any probate or guardianship proceeding, any personal representative shall fail or neglect to report to the court concerning his trust and any beneficiary or other interested party shall be reasonably required to employ legal counsel to institute legal proceedings to compel an accounting, or if an erroneous account or report shall be rendered by any personal representative and any beneficiary of said trust or other interested party shall be reasonably required to employ legal counsel to resist said account or report as rendered, and upon a hearing an accounting shall be ordered, or the account as rendered shall not be approved, and the said personal representative shall be charged with further liability, the court before which said proceeding is pending may, in its discretion, in addition to statutory costs, enter judgment for reasonable attorney’s fees in favor of the person or persons instituting said proceedings and against said personal representative, and in the event that the surety or sureties upon the bond of said personal representative be made a party to said proceeding, then jointly against said surety and said personal representative, which judgment shall be enforced in the same manner and to the same extent as judgments in ordinary civil actions. [1965 c 145 § 11.76.070. Prior: 1937 c 28 § 2; RRS § 1590-2.] Rules of court: SPR 98.12W. [Title 11 RCW—page 62] 11.76.080 11.76.080 Representation of incapacitated person by guardian ad litem or limited guardian—Exception. If there be any alleged incapacitated person as defined in RCW 11.88.010 interested in the estate who has no legally appointed guardian or limited guardian, the court: (1) At any stage of the proceeding in its discretion and for such purpose or purposes as it shall indicate, may appoint; and (2) For hearings held under RCW 11.54.010, 11.68.041, 11.68.100, and 11.76.050 or for entry of an order adjudicating testacy or intestacy and heirship when no personal representative is appointed to administer the estate of the decedent, shall appoint some disinterested person as guardian ad litem to represent the allegedly incapacitated person with reference to any petition, proceeding report, or adjudication of testacy or intestacy without the appointment of a personal representative to administer the estate of decedent in which the alleged incapacitated person may have an interest, who, on behalf of the alleged incapacitated person, may contest the same as any other person interested might contest it, and who shall be allowed by the court reasonable compensation for his or her services: PROVIDED, HOWEVER, That where a surviving spouse is the sole beneficiary under the terms of a will, the court may grant a motion by the personal representative to waive the appointment of a guardian ad litem for a person who is the minor child of the surviving spouse and the decedent and who is incapacitated solely for the reason of his or her being under eighteen years of age. [1997 c 252 § 71; 1977 ex.s. c 80 § 15; 1974 ex.s. c 117 § 45; 1971 c 28 § 1; 1969 c 70 § 4; 1965 c 145 § 11.76.080. Prior: 1917 c 156 § 164; RRS § 1534; prior: Code 1881 § 1558; 1854 p 297 § 180.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.76.095 11.76.095 Distribution of estates to minors. When a decree of distribution is made by the court in administration upon a decedent’s estate or when distribution is made by a personal representative under a nonintervention will and distribution is ordered under such decree or authorized under such nonintervention will to a person under the age of eighteen years, it shall be required that: (1) The money be deposited in a bank or trust company or be invested in an account in an insured financial institution for the benefit of the minor subject to withdrawal only upon the order of the court in the original probate proceeding, or upon said minor’s attaining the age of eighteen years and furnishing proof thereof satisfactory to the depositary; (2) A general guardian shall be appointed and qualify and the money or property be paid or delivered to such guardian prior to the discharge of the personal representative in the original probate proceeding; or (3) A custodian be selected and the money or property be transferred to the custodian subject to chapter 11.114 RCW. [1997 c 252 § 72; 1991 c 193 § 28; 1988 c 29 § 5; 1974 ex.s. c 117 § 12; 1971 c 28 § 3; 1965 c 145 § 11.76.095.] (2006 Ed.) Settlement of Estates Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. Effective date—Severability—1991 c 193: See RCW 11.114.903 and 11.114.904. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.76.100 11.76.100 Receipts for expenses from personal representative. In rendering his accounts or reports the personal representative shall produce receipts or canceled checks for the expenses and charges which he shall have paid, which receipts shall be filed and remain in court until the probate has been completed and the personal representative has been discharged; however, he may be allowed any item of expenditure, not exceeding twenty dollars, for which no receipt is produced, if such item be supported by his own oath, but such allowances without receipts shall not exceed the sum of three hundred dollars in any one estate. [1987 c 363 § 2; 1965 c 145 § 11.76.100. Prior: 1917 c 156 § 170; RRS § 1540; prior: Code 1881 § 1553; 1854 p 297 § 176.] 11.76.110 Order of payment of debts. After payment of costs of administration the debts of the estate shall be paid in the following order: (1) Funeral expenses in such amount as the court shall order. (2) Expenses of the last sickness, in such amount as the court shall order. (3) Wages due for labor performed within sixty days immediately preceding the death of decedent. (4) Debts having preference by the laws of the United States. (5) Taxes, or any debts or dues owing to the state. (6) Judgments rendered against the deceased in his lifetime which are liens upon real estate on which executions might have been issued at the time of his death, and debts secured by mortgages in the order of their priority. (7) All other demands against the estate. [1965 c 145 § 11.76.110. Prior: 1917 c 156 § 171; RRS § 1541; prior: Code 1881 § 1562; 1860 p 213 § 264; 1854 p 298 § 184.] 11.76.110 Borrowing on general credit of estate: RCW 11.56.280. Claims against estate: Chapter 11.40 RCW. Sale, etc., of property—Priority as to realty or personalty: Chapter 11.10 RCW. Tax constitutes debt—Priority of lien: RCW 82.32.240. Wages, preference on death of employer: RCW 49.56.020. 11.76.120 11.76.120 Limitation on preference to mortgage or judgment. The preference given in RCW 11.76.110 to a mortgage or judgment shall only extend to the proceeds of the property subject to the lien of such mortgage or judgment. [1965 c 145 § 11.76.120. Prior: 1917 c 156 § 172; RRS § 1542; prior: 1897 c 22 § 1; Code 1881 § 1653; 1854 p 298 § 185.] 11.76.130 11.76.130 Expense of monument. Personal representatives of the estate of any deceased person are hereby authorized to expend a reasonable amount out of the estate of the decedent to erect a monument or tombstone suitable to mark the grave or crypt of the said decedent, and the expense thereof shall be paid as the funeral expenses are paid. [1965 (2006 Ed.) 11.76.190 c 145 § 11.76.130. Prior: 1917 c 156 § 175; RRS § 1545; prior: Code 1881 § 1555; 1875 p 127 § 1.] 11.76.150 11.76.150 Payment of claims where estate insufficient. If the estate shall be insufficient to pay the debts of any class, each creditor shall be paid in proportion to his claim, and no other creditor of any lower class shall receive any payment until all those of the preceding class shall have been fully paid. [1965 c 145 § 11.76.150. Prior: 1917 c 156 § 174; RRS § 1544; prior: Code 1881 § 1564; 1854 p 298 § 186.] Appropriation to pay debts and expenses: Chapter 11.10 RCW. Community property: Chapter 26.16 RCW. Descent and distribution of real and personal estate: RCW 11.04.015. Priority of sale, etc. as between realty and personalty: Chapter 11.10 RCW. 11.76.160 11.76.160 Liability of personal representative. Whenever a decree shall have been made by the court for the payment of creditors, the personal representative shall be personally liable to each creditor for his claim or the dividend thereon, except when his inability to make the payment thereof from the property of the estate shall result without fault upon his part. The personal representative shall likewise be liable on his bond to each creditor. [1965 c 145 § 11.76.160. Prior: 1917 c 156 § 176; RRS § 1546; prior: 1891 c 155 § 35; Code 1881 § 1568; 1854 p 299 § 190.] 11.76.170 11.76.170 Action on claim not acted on—Contribution. If, after the accounts of the personal representative have been settled and the property distributed, it shall appear that there is a creditor or creditors whose claim or claims have been duly filed and not paid or disallowed, the said claim or claims shall not be a lien upon any of the property distributed, but the said creditor or creditors shall have a cause of action against the personal representative and his bond, for such an amount as such creditor or creditors would have been entitled to receive had the said claim been duly allowed and paid, and shall also have a cause of action against the distributees and creditors for a contribution from them in proportion to the amount which they have received. If the personal representative or his sureties be required to make any payment in this section provided for, he or they shall have a right of action against said distributees and creditors to compel them to contribute their just share. [1965 c 145 § 11.76.170. Prior: 1917 c 156 § 177; RRS § 1547; prior: Code 1881 § 1569; 1860 p 214 § 271; 1854 p 299 § 191.] 11.76.180 11.76.180 Order maturing claim not due. If there be any claim not due the court may in its discretion, after hearing upon such notice as may be determined by it, mature such claim and direct that the same be paid in the due course of the administration. [1965 c 145 § 11.76.180. Prior: 1917 c 156 § 178; RRS § 1548; prior: Code 1881 § 1567; 1854 p 298 § 189.] 11.76.190 11.76.190 Procedure on contingent and disputed claim. If there be any contingent or disputed claim against the estate, the amount thereof, or such part thereof as the holder would be entitled to, if the claim were established or absolute, shall be paid into the court, where it shall remain to be paid over to the party when he shall become entitled [Title 11 RCW—page 63] 11.76.200 Title 11 RCW: Probate and Trust Law thereto; or if he fail to establish his claim, to be paid over or distributed as the circumstances of the case may require. [1965 c 145 § 11.76.190. Prior: 1917 c 156 § 179; RRS § 1549; prior: Code 1881 § 1567; 1854 p 298 § 189.] 11.76.200 11.76.200 Agent for absentee distributee. When any estate has been or is about to be distributed by decree of the court as provided in this chapter, to any person who has not been located, the court shall appoint an agent for the purpose of representing the interests of such person and of taking possession and charge of said estate for the benefit of such absentee person: PROVIDED, That no public official may be appointed as agent under this section. [1965 c 145 § 11.76.200. Prior: 1955 ex.s. c 7 § 1; 1917 c 156 § 165; RRS § 1535.] 11.76.210 11.76.210 Agent’s bond. Such agent shall make, subscribe and file an oath for the faithful performance of his duties, and shall give a bond to the state, to be approved by the court, conditioned faithfully to manage and account for such estate, before he shall be authorized to receive any property of said estate. [1965 c 145 § 11.76.210. Prior: 1955 ex.s. c 7 § 2; 1917 c 156 § 166; RRS § 1536.] 11.76.220 11.76.220 Sale of unclaimed estate—Remittance of proceeds to department of revenue. If the estate remains in the hands of the agent unclaimed for three years, any property not in the form of cash shall be sold under order of the court, and all funds, after deducting a reasonable sum for expenses and services of the agent, to be fixed by the court, shall be paid into the county treasury. The county treasurer shall issue triplicate receipts therefor, one of which shall be filed with the county auditor, one with the court, and one with the department of revenue. If the funds remain in the county treasury unclaimed for a period of four years and ninety days, the county treasurer shall forthwith remit them to the department of revenue for deposit in the state treasury in the fund in which escheats and forfeitures are by law required to be deposited. [1975 1st ex.s. c 278 § 10; 1965 c 145 § 11.76.220. Prior: 1955 ex.s. c 7 § 4; 1917 c 156 § 167; RRS § 1537.] Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. Escheats: Chapter 11.08 RCW. 11.76.230 11.76.230 Liability of agent. The agent shall be liable on his bond for the care and preservation of the estate while in his hands, and for the payment of the funds to the county treasury, and may be sued thereon by any person interested including the state. [1965 c 145 § 11.76.230. Prior: 1955 ex.s. c 7 § 5; 1917 c 156 § 168; RRS § 1538.] ing the period specified above, the claimant shall forthwith notify the department of revenue in writing of such claim. The court, being first satisfied as to the right of such person to the estate, and after the filing of a clearance from the department of revenue, shall order the agent, or the county treasurer, as the case may be, to forthwith deliver the estate, or the proceeds thereof, if sold, to such person. [1975 1st ex.s. c 278 § 11; 1965 c 145 § 11.76.240. Prior: 1955 ex.s. c 7 § 6; 1917 c 156 § 169; RRS § 1539.] Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. 11.76.243 Heirs may institute probate proceedings if no claimant appears. If no person appears to claim the estate within four years after it is delivered to the county treasury, as provided by RCW 11.76.240, any heirs of the absentee person may institute probate proceedings on the estate of such absentee within ninety days thereafter. The fact that no claim has been made to the estate by the absentee person during the specified time shall be deemed prima facie proof of the death of such person for the purpose of issuing letters of administration in his estate. In the event letters of administration are issued within the period provided above, the county treasurer shall make payment of the funds held by him to the administrator upon being furnished a certified copy of the letters of administration. [1965 c 145 § 11.76.243. Prior: 1955 ex.s. c 7 § 7.] 11.76.243 11.76.245 Procedure when claim made after time limitation. After any time limitation prescribed in RCW 11.76.220, 11.76.240 or 11.76.243, the absentee claimant may, at any time, if the assets of the estate have not been claimed under the provisions of RCW 11.76.240 and 11.76.243, notify the department of revenue of his claim to the estate, and file in the court which had jurisdiction of the original probate a petition claiming the assets of the estate. The department of revenue may appear in answer to such petition. Upon proof being made to the probate court that the claimant is entitled to the estate assets, the court shall render its judgment to that effect and the assets shall be paid to the claimant without interest, upon appropriation made by the legislature. [1975 1st ex.s. c 278 § 12; 1965 c 145 § 11.76.245. Prior: 1955 ex.s. c 7 § 8.] 11.76.245 Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. 11.76.247 When court retains jurisdiction after entry of decree of distribution. After the entry of the decree of distribution in the probate proceedings the court shall retain jurisdiction for the purpose of carrying out the provisions of RCW 11.76.200, 11.76.210, 11.76.220, 11.76.230, 11.76.240, 11.76.243 and 11.76.245. [1965 c 145 § 11.76.247. Prior: 1955 ex.s. c 7 § 3.] 11.76.247 11.76.240 11.76.240 Claimant to proceeds of sale. During the time the estate is held by the agent, or within four years after it is delivered to the county treasury, claim may be made thereto only by the absentee person or his legal representative, excepting that if it clearly appears that such person died prior to the decedent in whose estate distribution was made to him, but leaving lineal descendants surviving, such lineal descendants may claim. If any claim to the estate is made dur[Title 11 RCW—page 64] 11.76.250 Letters after final settlement. A final settlement of the estate shall not prevent a subsequent issuance of letters of administration, should other property of the estate be discovered, or if it should become necessary and proper from any cause that letters should be again issued. [1965 c 145 § 11.76.250. Prior: 1917 c 156 § 180; RRS § 1550; prior: Code 1881 § 1603; 1854 p 304 § 224.] 11.76.250 (2006 Ed.) Estates of Absentees Chapter 11.80 Chapter 11.80 RCW ESTATES OF ABSENTEES Sections 11.80.010 11.80.020 11.80.030 11.80.040 11.80.050 11.80.055 11.80.060 11.80.070 11.80.080 11.80.090 11.80.100 11.80.110 11.80.120 11.80.130 Petition—Notice—Hearing—Appointment of trustee. Inventory and appraisement—Bond of trustee. Reports of trustee. Sale of property—Application of proceeds and income. Allowance for support of dependents—Sale of property. Continuation of absentee’s business—Performance of absentee’s contracts. Removal or resignation of trustee—Final account. Period of trusteeship. Provisional distribution—Notice of hearing—Will. Hearing—Distribution—Bond of distributees. Final distribution—Notice of hearing—Decree. Escheat for want of presumptive heirs. Personnel missing in action, interned, or captured construed as "absentee." Summary procedure without full trustee proceeding—When permitted—Application for order—Form. Unknown heirs, etc.—Pleading, etc.: RCW 4.28.140 through 4.28.160; Rules of court: CR 10. Written finding of presumed death, missing in action, etc.: RCW 5.40.020 through 5.40.040. 11.80.010 Petition—Notice—Hearing—Appointment of trustee. Whenever it shall be made to appear by petition to any judge of the superior court of any county that there is property in such county, either real or personal, that requires care and attention, or is in such a condition that it is a menace to the public health, safety or welfare, or that the custodian of such property appointed by the owner thereof is either unable or unwilling to continue longer in the care and custody thereof, and that the owner of such property has absented himself from the county and that his whereabouts is unknown and cannot with reasonable diligence be ascertained, or that the absentee owner is a person defined in RCW 11.80.120, which petition shall state the name of the absent owner, his approximate age, his last known place of residence, the circumstances under which he left and the place to which he was going, if known, his business or occupation and his physical appearance and habits so far as known, the judge to whom such petition is presented shall set a time for hearing such petition not less than six weeks from the date of filing, and shall by order direct that a notice of such hearing be published for three successive weeks in a legal newspaper published in the county where such petition is filed and in such other counties and states as will in the judgment of the court be most likely to come to the attention of the absentee or of persons who may know his whereabouts, which notice shall state the object of the petition and the date of hearing, and set forth such facts and circumstances as in the judgment of the court will aid in identifying the absentee, and shall contain a request that all persons having knowledge concerning the absentee shall advise the court of the facts: PROVIDED, HOWEVER, That the court may, upon the filing of said petition, appoint a temporary trustee, who shall have the powers, duties and qualifications of a special administrator. If it shall appear at such hearing that the whereabouts of the absentee is unknown, but there is reason to believe that upon further investigation and inquiry he may be found, the judge may continue the hearing and order such inquiry and advertisement as will in his discretion be liable to disclose the whereabouts of the absentee, but when it shall appear to the judge at such hearing or any adjournment thereof that the 11.80.010 (2006 Ed.) 11.80.040 whereabouts of the absentee cannot be ascertained, he shall appoint a suitable person resident of the county as trustee of such property, taking into consideration the character of the property and the fitness of such trustee to care for the same, preferring in such appointment the husband or wife of the absentee to his presumptive heirs, the presumptive heirs to kin more remote, the kin to strangers, and creditors to those who are not otherwise interested, provided they are fit persons to have the care and custody of the particular property in question and will accept the appointment and qualify as hereinafter provided. [1972 ex.s. c 83 § 1; 1965 c 145 § 11.80.010. Prior: 1915 c 39 § 1; RRS § 1715-1.] Special administrators: Chapter 11.32 RCW. 11.80.020 11.80.020 Inventory and appraisement—Bond of trustee. The trustee so appointed shall make, subscribe and file in the office of the clerk of the court an oath for the faithful performance of his duties, and shall, within such time as may be fixed by the judge, prepare and file an inventory of such property, and the judge shall thereupon appoint a disinterested and qualified person to appraise such property, and report his appraisement to the court within such time as the court may fix. Upon the coming in of the inventory and appraisement, the judge shall fix the amount of the bond to be given by the trustee, which bond shall in no case be less than the appraised value of the personal property and the annual rents and profits of the real property, and the trustee shall thereupon file with the clerk of the court a good and sufficient bond in the amount fixed and with surety to be approved by the court, conditioned for the faithful performance of his duties as trustee, and for accounting for such property, its rents, issues, profits, and increase. [1967 c 168 § 15; 1965 c 145 § 11.80.020. Prior: 1915 c 39 § 2; RRS § 1715-2.] 11.80.030 11.80.030 Reports of trustee. The trustee shall, at the expiration of one year from the date of his appointment and annually thereafter and at such times as the court may direct, make and file a report and account of his trusteeship, setting forth specifically the amounts received and expended and the conditions of the property. [1965 c 145 § 11.80.030. Prior: 1915 c 39 § 3; RRS § 1715-3.] 11.80.040 11.80.040 Sale of property—Application of proceeds and income. If necessary to pay debts against the absentee which have been duly approved and allowed in the same form and manner as provided for the approving and allowing of claims against the estate of a deceased person or for such other purpose as the court may deem proper for the preservation of the estate, the trustee may sell, lease or mortgage real or personal property of the estate under order of the court so to do, which order shall specify the particular property affected and the method, whether by public sale, private sale or by negotiation, and the terms thereof, and the trustee shall hold the proceeds of such sale, after deducting the necessary expenses thereof, subject to the order of the court. The trustee is authorized and empowered to, by order of the court, expend the proceeds received from the sale of such property, and also the rents, issues and profits accruing therefrom in the care, maintenance and upkeep of the property, so long as the trusteeship shall continue, and the trustee shall receive out of [Title 11 RCW—page 65] 11.80.050 Title 11 RCW: Probate and Trust Law such property such compensation for his services and those of his attorney as may be fixed by the court. The notices and procedures in conducting sales, leases and mortgages hereunder shall be as provided in chapter 11.56 RCW. [1965 c 145 § 11.80.040. Prior: 1915 c 39 § 4; RRS § 1715-4.] Rules of court: SPR 98.12W. 11.80.050 11.80.050 Allowance for support of dependents— Sale of property. Whenever a petition is filed in said estate from which it appears to the satisfaction of the court that the owner of such property left a husband or wife, child or children, dependent upon such absentee for support or upon the property in the estate of such absentee, either in whole or in part, the court shall hold a hearing on said petition, after such notice as the court may direct, and upon such hearing shall enter such order as it deems advisable and may order an allowance to be paid out of any of the property of such estate, either community or separate, as the court shall deem reasonable and necessary for the support and maintenance of such dependent or dependents, pending the return of the absentee, or until such time as the property of said estate may be provisionally distributed to the presumptive heirs or to the devisees and legatees. Such allowance shall be paid by the trustee to such persons and in such manner and at such periods of time as the court may direct. For the purpose of carrying out the provisions of this section the court may direct the sale of any of the property of the estate, either real or personal, in accordance with the provisions of RCW 11.80.040. [1965 c 145 § 11.80.050. Prior: 1925 ex.s. c 80 § 1; RRS § 1715-4a.] 11.80.080 Provisional distribution—Notice of hearing—Will. Whenever the owner of such property shall have been absent from the county for the space of five years and his whereabouts are unknown and cannot with reasonable diligence be ascertained, his presumptive heirs at law may apply to the court for an order of provisional distribution of such property, and to be let into provisional possession thereof: PROVIDED, That such provisional distribution may be made at any time prior to the expiration of five years, when it shall be made to appear to the satisfaction of the court that there are strong presumptions that the absentee is dead; and in determining the question of presumptive death, the court shall take into consideration the habits of the absentee, the motives of and the circumstances surrounding the absence, and the reasons which may have prevented the absentee from being heard of. Notice of hearing upon application for provisional distribution shall be published in like manner as notices for the appointment of trustees are published. If the absentee left a will in the possession of any person such person shall present such will at the time of hearing of the application for provisional distribution and if it shall be made to appear to the court that the absentee has left a will and the person in possession thereof shall fail to present it, a citation shall issue requiring him so to do, and such will shall be opened, read, proven, filed and recorded in the case, as are the wills of decedents. [1965 c 145 § 11.80.080. Prior: 1915 c 39 § 7; RRS § 1715-7.] 11.80.080 Notice for appointment of trustees: RCW 11.80.010. 11.80.090 Hearing—Distribution—Bond of distributees. If it shall appear to the satisfaction of the court upon the hearing of the application for provisional distribution that the absentee has been absent and his whereabouts unknown for the space of five years, or there are strong presumptions that he is dead, the court shall enter an order directing that the property in the hands of the trustee shall be provisionally distributed to the presumptive heirs, or to the devisees and legatees under the will, as the case may be, upon condition that such heirs, devisees and legatees respectively give and file in the court bonds with good and sufficient surety to be approved by the court, conditioned for the return of or accounting for the property provisionally distributed in case the absentee shall return and demand the same, which bonds shall be respectively in twice the amount of the value of the personal property distributed, and in ten times the amount of estimated annual rents, issues and profits of any real property so provisionally distributed. [1965 c 145 § 11.80.090. Prior: 1915 c 39 § 8; RRS § 1715-8.] 11.80.090 11.80.055 11.80.055 Continuation of absentee’s business—Performance of absentee’s contracts. Upon a showing of advantage to the estate of the absentee, the court may authorize the trustee to continue any business of the absentee in accordance with the provisions of RCW 11.48.025. The trustee may also obtain an order allowing the performance of the absentee’s contracts in accordance with the provisions of chapter 11.60 RCW. [1965 c 145 § 11.80.055.] 11.80.060 11.80.060 Removal or resignation of trustee—Final account. The court shall have the power to remove or to accept the resignation of such trustee and appoint another in his stead. At the termination of his trust, as hereinafter provided or in case of his resignation or removal, the trustee shall file a final account, which account shall be settled in the manner provided by law for settling the final accounts of personal representatives. [1965 c 145 § 11.80.060. Prior: 1915 c 39 § 5; RRS § 1715-5.] 11.80.070 11.80.070 Period of trusteeship. Such trusteeship shall continue until such time as the owner of such property shall return or shall appoint a duly authorized agent or attorney in fact to care for such property, or until such time as the property shall be provisionally distributed to the presumptive heirs, or to the devisees and legatees of the absentee as hereinafter provided, or until such time as the property shall escheat to the state as hereinafter provided. [1965 c 145 § 11.80.070. Prior: 1915 c 39 § 6; RRS § 1715-6.] [Title 11 RCW—page 66] 11.80.100 Final distribution—Notice of hearing— Decree. Whenever the owner of such property shall have been absent from the county for a space of seven years and his whereabouts are unknown and cannot with reasonable diligence be ascertained, his presumptive heirs at law or the legatees and devisees under the will, as the case may be, to whom the property has been provisionally distributed, may apply to the court for a decree of final distribution of such property and satisfaction, discharge and exoneration of the bonds given upon provisional distribution. Notice of hearing of such application shall be given in the same manner as 11.80.100 (2006 Ed.) Inheritance Rights of Slayers notice of hearing of application for the appointment of trustee and for provisional distribution and if at the final hearing it shall appear to the satisfaction of the court that the owner of the property has been absent and unheard of for the space of seven years and his whereabouts are unknown, the court shall exonerate the bonds given on provisional distribution and enter a decree of final distribution, distributing the property to the presumptive heirs at law of the absentee or to his devisees and legatees, as the case may be. [1965 c 145 § 11.80.100. Prior: 1915 c 39 § 9; RRS § 1715-9.] 11.80.110 11.80.110 Escheat for want of presumptive heirs. Whenever the owner of such property for which a trustee has been appointed under the provisions of this chapter shall have been absent and unheard of for a period of seven years and no presumptive heirs at law have appeared and applied for the provisional distribution of such property and no will of the absentee has been presented and proven, the trustee appointed under the provisions of the chapter shall apply to the court for a final settlement of his account and upon the settlement of such final account the property of the absentee shall be escheated in the manner provided by law for escheating property of persons who die intestate leaving no heirs. [1965 c 145 § 11.80.110. Prior: 1915 c 39 § 10; RRS § 171510.] Escheats: Chapter 11.08 RCW. Uniform unclaimed property act: Chapter 63.29 RCW. 11.80.120 11.80.120 Personnel missing in action, interned, or captured construed as "absentee." Any person serving in or with the armed forces of the United States, in or with the Red Cross, or in or with the merchant marine or otherwise, during any period of time when a state of hostilities exists between the United States and any other power and for one year thereafter, who has been reported or listed as missing in action, or interned in a neutral country, or captured by the enemy, shall be an "absentee" within the meaning of this chapter. [1972 ex.s. c 83 § 2.] 11.80.130 11.80.130 Summary procedure without full trustee proceeding—When permitted—Application for order— Form. (1) If the spouse of any absentee owner, or his next of kin, if said absentee has no spouse, shall wish to sell or transfer any property of the absentee which has a gross value of less than five thousand dollars, or shall require the consent of the absentee in any matter regarding the absentee’s children, or any other matter in which the gross value of the subject matter is less than five thousand dollars, such spouse or next of kin may apply to the superior court for an order authorizing said sale, transfer, or consent without opening a full trustee proceeding as provided in this chapter. The applicant may make the application without the assistance of an attorney. Said application shall be made by petition on the following form, which form shall be made readily available to the applicant by the clerk of the superior court. (2006 Ed.) 11.84.010 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF . . . . . . . . . . . . . . . . . . . . . . . . ., Plaintiff, vs. . . . . . . . . . . . . . . . . . . ., Defendant. ...................          No. . . . . PETITION FOR SUMMARY RELIEF Petitioner, . . . . . ., whose residence is . . . . . . . . ., and . . . . . . . . ., Washington, and who is the . . . . . . of the absentee, . . . . . ., states that the absentee has been . . . . . . . . . since . . . . . ., when . . . . . . . . . Petitioner desires to sell/transfer . . . . . . of the value of . . . . . ., because . . . . . . . . . The terms of the sale/transfer are . . . . . . . . . Petitioner requires the consent of the absentee for the purpose of . . . . . . . . . ....................... Petitioner (Affidavit of Acknowledgment) (2) The court may, without notice, enter an order on said petition if it deems the relief requested in said petition necessary to protect the best interests of the absentee or his dependents. (3) Such order shall be prima facie evidence of the validity of the proceedings and the authority of the petitioner to make a conveyance or transfer of the property or to give the absentee’s consent in any manner described by subsection (1) of this section. [1972 ex.s. c 83 § 3.] Chapter 11.84 Chapter 11.84 RCW INHERITANCE RIGHTS OF SLAYERS Sections 11.84.010 11.84.020 11.84.025 11.84.030 11.84.040 11.84.050 11.84.060 11.84.070 11.84.080 11.84.090 11.84.100 11.84.110 11.84.120 11.84.130 11.84.900 Definitions. Slayer not to benefit from death. Disposition of retirement system proceeds payable to slayer. Slayer deemed to predecease decedent. Distribution of decedent’s property. Distribution of property held jointly with slayer. Reversion and vested remainder. Property subject to divestment, etc. Contingent remainders and future interests. Property appointed—Powers of revocation or appointment. Insurance proceeds. Payment by insurance company, bank, etc.—No additional liability. Rights of persons without notice dealing with slayer. Record of conviction as evidence against claimant of property. Chapter to be construed broadly. 11.84.010 11.84.010 Definitions. As used in this chapter: (1) "Slayer" shall mean any person who participates, either as a principal or an accessory before the fact, in the wilful and unlawful killing of any other person. (2) "Decedent" shall mean any person whose life is so taken. (3) "Property" shall include any real and personal property and any right or interest therein. [1965 c 145 § 11.84.010. Prior: 1955 c 141 § 1.] [Title 11 RCW—page 67] 11.84.020 Title 11 RCW: Probate and Trust Law 11.84.020 Slayer not to benefit from death. No slayer shall in any way acquire any property or receive any benefit as the result of the death of the decedent, but such property shall pass as provided in the sections following. [1965 c 145 § 11.84.020. Prior: 1955 c 141 § 2.] 11.84.020 11.84.025 Disposition of retirement system proceeds payable to slayer. Proceeds payable to a slayer as the beneficiary of any benefits flowing from one of the retirement systems listed in RCW 41.50.030, by virtue of the decedent’s membership in the department of retirement systems or by virtue of the death of decedent, shall be paid instead as designated in RCW 41.04.273. [1998 c 292 § 502.] 11.84.025 Application—Conflict with federal requirements—1998 c 292: See notes following RCW 41.04.273. Part headings and section captions not law—Effective dates—1998 c 292: See RCW 11.11.902 and 11.11.903. 11.84.030 Slayer deemed to predecease decedent. The slayer shall be deemed to have predeceased the decedent as to property which would have passed from the decedent or his estate to the slayer under the statutes of descent and distribution or have been acquired by statutory right as surviving spouse or under any agreement made with the decedent under the provisions of RCW 26.16.120 as it now exists or is hereafter amended. [1965 c 145 § 11.84.030. Prior: 1955 c 141 § 3.] 11.84.030 held the particular estate or if the particular estate is held by a third person it shall remain in his hands for such period. [1965 c 145 § 11.84.060. Prior: 1955 c 141 § 6.] 11.84.070 11.84.070 Property subject to divestment, etc. Any interest in property whether vested or not, held by the slayer, subject to be divested, diminished in any way or extinguished, if the decedent survives him or lives to a certain age, shall be held by the slayer during his lifetime or until the decedent would have reached such age, but shall then pass as if the decedent had died immediately thereafter. [1965 c 145 § 11.84.070. Prior: 1955 c 141 § 7.] 11.84.080 11.84.080 Contingent remainders and future interests. As to any contingent remainder or executory or other future interest held by the slayer, subject to become vested in him or increased in any way for him upon the condition of the death of the decedent: (1) If the interest would not have become vested or increased if he had predeceased the decedent, he shall be deemed to have so predeceased the decedent; (2) In any case the interest shall not be vested or increased during the period of the life expectancy of the decedent. [1965 c 145 § 11.84.080. Prior: 1955 c 141 § 8.] 11.84.090 11.84.040 Distribution of decedent’s property. Property which would have passed to or for the benefit of the slayer by devise or legacy from the decedent shall be distributed as if he had predeceased the decedent. [1965 c 145 § 11.84.040. Prior: 1955 c 141 § 4.] 11.84.040 11.84.050 Distribution of property held jointly with slayer. (1) One-half of any property held by the slayer and the decedent as joint tenants, joint owners or joint obligees shall pass upon the death of the decedent to his estate, and the other half shall pass to his estate upon the death of the slayer, unless the slayer obtains a separation or severance of the property or a decree granting partition. (2) As to property held jointly by three or more persons, including the slayer and the decedent, any enrichment which would have accrued to the slayer as a result of the death of the decedent shall pass to the estate of the decedent. If the slayer becomes the final survivor, one-half of the property shall immediately pass to the estate of the decedent and the other half shall pass to his estate upon the death of the slayer, unless the slayer obtains a separation or severance of the property or a decree granting partition. (3) The provisions of this section shall not affect any enforceable agreement between the parties or any trust arising because a greater proportion of the property has been contributed by one party than by the other. [1965 c 145 § 11.84.050. Prior: 1955 c 141 § 5.] 11.84.050 11.84.060 Reversion and vested remainder. Property in which the slayer holds a reversion or vested remainder and would have obtained the right of present possession upon the death of the decedent shall pass to the estate of the decedent during the period of the life expectancy of decedent; if he 11.84.060 [Title 11 RCW—page 68] 11.84.090 Property appointed—Powers of revocation or appointment. (1) Property appointed by the will of the decedent to or for the benefit of the slayer shall be distributed as if the slayer had predeceased the decedent. (2) Property held either presently or in remainder by the slayer, subject to be divested by the exercise by the decedent of a power of revocation or a general power of appointment shall pass to the estate of the decedent, and property so held by the slayer, subject to be divested by the exercise by the decedent of a power of appointment to a particular person or persons or to a class of persons, shall pass to such person or persons, or in equal shares to the members of such class of persons, exclusive of the slayer. [1965 c 145 § 11.84.090. Prior: 1955 c 141 § 9.] 11.84.100 11.84.100 Insurance proceeds. (1) Insurance proceeds payable to the slayer as the beneficiary or assignee of any policy or certificate of insurance on the life of the decedent, or as the survivor of a joint life policy, shall be paid instead to the estate of the decedent, unless the policy or certificate designate some person other than the slayer or his estate as secondary beneficiary to him and in which case such proceeds shall be paid to such secondary beneficiary in accordance with the applicable terms of the policy. (2) If the decedent is beneficiary or assignee of any policy or certificate of insurance on the life of the slayer, the proceeds shall be paid to the estate of the decedent upon the death of the slayer, unless the policy names some person other than the slayer or his estate as secondary beneficiary, or unless the slayer by naming a new beneficiary or assigning the policy performs an act which would have deprived the decedent of his interest in the policy if he had been living. [1965 c 145 § 11.84.100. Prior: 1955 c 141 § 10.] (2006 Ed.) Disclaimer of Interests 11.84.110 11.84.110 Payment by insurance company, bank, etc.—No additional liability. Any insurance company making payment according to the terms of its policy or any bank or other person performing an obligation for the slayer as one of several joint obligees shall not be subjected to additional liability by the terms of this chapter if such payment or performance is made without written notice, at its home office or at an individual’s home or business address, of the killing by a slayer. [1965 c 145 § 11.84.110. Prior: 1955 c 141 § 11.] 11.84.120 11.84.120 Rights of persons without notice dealing with slayer. The provisions of this chapter shall not affect the rights of any person who, before the interests of the slayer have been adjudicated, purchases or has agreed to purchase, from the slayer for value and without notice property which the slayer would have acquired except for the terms of this chapter, but all proceeds received by the slayer from such sale shall be held by him in trust for the persons entitled to the property under the provisions of this chapter, and the slayer shall also be liable both for any portion of such proceeds which he may have dissipated and for any difference between the actual value of the property and the amount of such proceeds. [1965 c 145 § 11.84.120. Prior: 1955 c 141 § 12.] 11.84.130 11.84.130 Record of conviction as evidence against claimant of property. The record of his conviction of having participated in the wilful and unlawful killing of the decedent shall be admissible in evidence against a claimant of property in any civil action arising under this chapter. [1965 c 145 § 11.84.130. Prior: 1955 c 141 § 13.] Evidence, proof of public documents: Chapter 5.44 RCW; Rules of court: CR 44. 11.84.900 11.84.900 Chapter to be construed broadly. This chapter shall be construed broadly to effect the policy of this state that no person shall be allowed to profit by his own wrong, wherever committed. [1998 c 292 § 503; 1965 c 145 § 11.84.900. Prior: 1955 c 141 § 14.] Application—Conflict with federal requirements—1998 c 292: See notes following RCW 41.04.273. Part headings and section captions not law—Effective dates—1998 c 292: See RCW 11.11.902 and 11.11.903. Chapter 11.86 Chapter 11.86 RCW DISCLAIMER OF INTERESTS Sections 11.86.011 11.86.021 11.86.031 11.86.041 11.86.051 11.86.061 11.86.071 11.86.080 11.86.090 11.86.011 Definitions. Disclaimer of interest authorized. Contents of disclaimer—Time and filing requirements—Fee. Disposition of disclaimed interest. When disclaimer barred—Exception. Effect of spendthrift or similar restriction. Liability for distribution—Effect of disclaimer. Rights under other statutes or rules not abridged. Interests existing on June 7, 1973. 11.86.011 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Beneficiary" means the person entitled, but for the person’s disclaimer, to take an interest. (2006 Ed.) 11.86.021 (2) "Interest" includes the whole of any property, real or personal, legal or equitable, or any fractional part, share, or particular portion or specific assets thereof, any vested or contingent interest in any such property, any power to appoint, consume, apply, or expend property, or any other right, power, privilege, or immunity relating to property. "Interest" includes, but is not limited to, an interest created in any of the following manners: (a) By intestate succession; (b) Under a will; (c) Under a trust; (d) By succession to a disclaimed interest; (e) By virtue of an election to take against a will; (f) By creation of a power of appointment; (g) By exercise or nonexercise of a power of appointment; (h) By an inter vivos gift, whether outright or in trust; (i) By surviving the death of a depositor of a trust or P.O.D. account within the meaning of RCW 30.22.040; (j) Under an insurance or annuity contract; (k) By surviving the death of another joint tenant; (l) Under an employee benefit plan; (m) Under an individual retirement account, annuity, or bond; (n) Under a community property agreement; or (o) Any other interest created by any testamentary or inter vivos instrument or by operation of law. (3) "Creator of the interest" means a person who establishes, declares, or otherwise creates an interest. (4) "Disclaimer" means any writing which declines, refuses, renounces, or disclaims any interest that would otherwise be taken by a beneficiary. (5) "Disclaimant" means a beneficiary who executes a disclaimer on his or her own behalf or a person who executes a disclaimer on behalf of a beneficiary. (6) "Person" means an individual, corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, association, or other entity. (7) "Date of the transfer" means: (a) For an inter vivos transfer, the date of the creation of the interest; or (b) For a transfer upon the death of the creator of the interest, the date of the death of the creator. A joint tenancy interest of a deceased joint tenant shall be deemed to be transferred at the death of the joint tenant rather than at the creation of the joint tenancy. [1989 c 34 § 1.] 11.86.021 11.86.021 Disclaimer of interest authorized. (1) A beneficiary may disclaim an interest in whole or in part, or with reference to specific parts, shares or assets, in the manner provided in RCW 11.86.031. (2) Likewise, a beneficiary may so disclaim through an agent or attorney so authorized by written instrument. (3) A personal representative, guardian, attorney in fact if authorized under a durable power of attorney under chapter 11.94 RCW, or other legal representative of the estate of a minor, incompetent, or deceased beneficiary, may so disclaim on behalf of the beneficiary, with or without court order, if: [Title 11 RCW—page 69] 11.86.031 Title 11 RCW: Probate and Trust Law (a) The legal representative deems the disclaimer to be in the best interests of those interested in the estate of the beneficiary and of those who take the disclaimed interest because of the disclaimer, and not detrimental to the best interests of the beneficiary; and (b) In the case of a guardian, no order has been issued under RCW 11.92.140 determining that the disclaimer is not in the best interests of the beneficiary. [1989 c 34 § 2.] 11.86.031 11.86.031 Contents of disclaimer—Time and filing requirements—Fee. (1) The disclaimer shall: (a) Be in writing; (b) Be signed by the disclaimant; (c) Identify the interest to be disclaimed; and (d) State the disclaimer and the extent thereof. (2) The disclaimer shall be delivered or mailed as provided in subsection (3) of this section at any time after the creation of the interest, but in all events by nine months after the latest of: (a) The date the beneficiary attains the age of twenty-one years; (b) The date of the transfer; or (c) The date that the beneficiary is finally ascertained and the beneficiary’s interest is indefeasibly vested. (3) The disclaimer shall be mailed by first-class mail, or otherwise delivered, to the creator of the interest, the creator’s legal representative, or the holder of the legal title to the property to which the interest relates or, if the creator is dead and there is no legal representative or holder of legal title, to the person having possession of the property. (4) If the date of the transfer is the date of the death of the creator of the interest, a copy of the disclaimer may be filed with the clerk of the probate court in which the estate of the creator is, or has been, administered, or, if no probate administration has been commenced, then with the clerk of the court of any county provided by law as the place for probate administration of such person, where it shall be indexed under the name of the decedent in the probate index upon the payment of a fee established under *RCW 36.18.016. (5) The disclaimer of an interest in real property may be recorded, but shall constitute notice to all persons only from and after the date of recording. If recorded, a copy of the disclaimer shall be recorded in the office of the auditor in the county or counties where the real property is situated. [1995 c 292 § 4; 1989 c 34 § 3.] *Reviser’s note: The fee specified in RCW 36.18.016 for the filing of a disclaimer was deleted by section 18, chapter 457, Laws of 2005. 11.86.041 11.86.041 Disposition of disclaimed interest. (1) Unless the instrument creating an interest directs to the contrary, the interest disclaimed shall pass as if the beneficiary had died immediately prior to the date of the transfer of the interest. The disclaimer shall relate back to this date for all purposes. (2) Unless the beneficiary provides otherwise in the disclaimer, in addition to the interests disclaimed, the beneficiary shall also be deemed to have disclaimed the minimum of all interests in the disclaimed property necessary to make the disclaimer a qualified disclaimer for purposes of section 2518 of the Internal Revenue Code. [Title 11 RCW—page 70] (3) Any future interest taking effect in possession or enjoyment after termination of the interest disclaimed takes effect as if the beneficiary had died prior to the date of the beneficiary’s final ascertainment as a beneficiary and the indefeasible vesting of the interest. (4) The disclaimer is binding upon the beneficiary and all persons claiming through or under the beneficiary. (5) Unless the instrument creating the interest directs to the contrary, a beneficiary whose interest in a devise or bequest under a will has been disclaimed shall be deemed to have died for purposes of RCW 11.12.110. (6) In the case of a disclaimer of property over which the disclaimant has any power to direct the beneficial enjoyment of the disclaimed property, the disclaimant shall also be deemed to have disclaimed any power to direct the beneficial enjoyment of the disclaimed property, unless the power is limited by an ascertainable standard relating to the health, education, support, or maintenance of any person as described in section 2041 or 2514 of the Internal Revenue Code and applicable regulations adopted under those sections. This subsection applies unless the disclaimer specifically provides otherwise. This subsection shall not be deemed to otherwise prevent such a disclaimant from acting as trustee or personal representative over disclaimed property. [1999 c 43 § 1; 1997 c 252 § 73; 1991 c 7 § 1; 1989 c 34 § 4.] Retroactive application—1999 c 43: "This act applies retroactively to all disclaimers made after December 31, 1997." [1999 c 43 § 2.] Application—1997 c 252 §§ 1-73: See note following RCW 11.02.005. 11.86.051 11.86.051 When disclaimer barred—Exception. (1) A beneficiary may not disclaim an interest if: (a) The beneficiary has accepted the interest or a benefit thereunder; (b) The beneficiary has assigned, conveyed, encumbered, pledged, or otherwise transferred the interest, or has contracted therefor; (c) The interest has been sold or otherwise disposed of pursuant to judicial process; or (d) The beneficiary has waived the right to disclaim in writing. The written waiver of the right to disclaim also is binding upon all persons claiming through or under the beneficiary. (2) Notwithstanding the provisions of subsection (1)(a) through (c) of this section, a beneficiary’s receipt of a benefit from property shall not necessarily bar such beneficiary’s disclaimer of an interest in the same property when, prior to the date of the transfer of the interest to be disclaimed, the beneficiary already owned an interest in such property in joint tenancy, as community property, or otherwise. Any such receipt, in the absence of clear and convincing evidence to the contrary, shall be presumed to be an enjoyment or use of the interest the beneficiary already owned, and only after such interest and any benefit from such interest have been exhausted, shall the beneficiary be deemed to have received or accepted any part of the interest to be disclaimed. [2000 c 24 § 1; 1989 c 34 § 5.] 11.86.061 11.86.061 Effect of spendthrift or similar restriction. A beneficiary may disclaim under this chapter notwithstanding any limitation on the interest of the beneficiary in the (2006 Ed.) Guardianship—Appointment, Qualification, Removal of Guardians nature of a spendthrift provision or similar restriction. [1989 c 34 § 6.] 11.88.005 suit in own name: CR 17. Allowing child to work without permit, penalty: RCW 26.28.060. Bank soliciting appointment as guardian, penalty: RCW 30.04.260. 11.86.071 11.86.071 Liability for distribution—Effect of disclaimer. No legal representative of a creator of the interest, holder of legal title to property an interest in which is disclaimed, or person having possession of the property shall be liable for any otherwise proper distribution or other disposition made without actual knowledge of the disclaimer, or in reliance upon the disclaimer and without actual knowledge that the disclaimer is barred as provided in RCW 11.86.051. [1989 c 34 § 7.] Costs against guardian of infant plaintiff: RCW 4.84.140. Declaratory judgments: Chapter 7.24 RCW. Embezzlement by guardian: RCW 9A.56.010(19)(b). Eminent domain by corporations, service on guardian of minors, idiots, lunatics or distracted persons: RCW 8.20.020. by state, service of notice on guardian: RCW 8.04.020. Excise taxes, liability for, notice to department of revenue: RCW 82.32.240. Guardian may sue in own name: Rules of court: CR 17. Habeas corpus, granting of writ to guardian: RCW 7.36.020. 11.86.080 11.86.080 Rights under other statutes or rules not abridged. This chapter shall not abridge the right of any person, apart from this chapter, under any existing or future statute or rule of law, to disclaim any interest or to assign, convey, release, renounce or otherwise dispose of any interest. [1973 c 148 § 9.] 11.86.090 11.86.090 Interests existing on June 7, 1973. Any interest which exists on June 7, 1973 but which has not then become indefeasibly vested, or the taker of which has not then become finally ascertained, or of the existence of the transfer of which the beneficiary lacks knowledge, may be disclaimed after June 7, 1973 in the manner provided in RCW 11.86.031. However, for the purposes of RCW 11.86.031(2), the date on which the beneficiary first knows of the existence of the transfer shall be deemed to be the date of the transfer. [1989 c 34 § 8; 1973 c 148 § 10.] Incapacitated person, appearance by guardian: RCW 4.08.060. Industrial insurance benefits, appointment of guardian to manage: RCW 51.04.070. Investment of trust funds, guardians subject to chapter 30.24 RCW: RCW 11.100.015. Investments, authorized generally: Chapter 30.24 RCW. housing authority bonds: RCW 35.82.220. United States corporation bonds: RCW 39.60.010. Jurors, challenge of, guardian and ward relationship ground for implied bias: RCW 4.44.180. Lawful use of force: RCW 9A.16.020. Limitation of actions by ward against guardian, recovery of real estate sold by guardian: RCW 4.16.070. Mental illness, proceedings: Chapter 71.05 RCW. Minor’s personal service contracts, recovery by guardian barred: RCW 26.28.050. Motor vehicle financial responsibility, release by injured minor executed by guardian: RCW 46.29.120. Chapter 11.88 RCW GUARDIANSHIP—APPOINTMENT, QUALIFICATION, REMOVAL OF GUARDIANS Chapter 11.88 Sections 11.88.005 11.88.008 11.88.010 11.88.020 11.88.030 11.88.040 11.88.045 11.88.080 11.88.090 11.88.093 11.88.095 11.88.097 11.88.100 11.88.105 11.88.107 11.88.110 11.88.115 11.88.120 11.88.125 11.88.130 11.88.140 11.88.150 11.88.160 Legislative intent. "Professional guardian" defined. Authority to appoint guardians—Definitions—Venue—Nomination by principal. Qualifications. Petition—Contents—Hearing. Notice and hearing, when required—Service—Procedure. Legal counsel and jury trial—Proof—Medical report—Examinations—Waiver. Guardians nominated by will or durable power of attorney. Guardian ad litem—Mediation—Appointment—Qualifications—Notice of and statement by guardian ad litem—Hearing and notice—Attorneys’ fees and costs—Registry— Duties—Report—Responses—Fee. Ex parte communications—Removal. Disposition of guardianship petition. Guardian ad litem—Fees. Oath and bond of guardian or limited guardian. Reduction in amount of bond. When bond not required. Law on executors’ and administrators’ bonds applicable. Notice to department of revenue. Modification or termination of guardianship—Procedure. Standby limited guardian or limited guardian. Transfer of jurisdiction and venue. Termination of guardianship or limited guardianship. Administration of deceased incapacitated person’s estate. Guardianships involving veterans. Rules of court: Guardians capacity to sue: CR 17. judgment for and settlement of claims of minors: SPR 98.16W. probate proceedings, application for fee, notice: SPR 98.12W. (2006 Ed.) Name, action for change of—Fees: RCW 4.24.130. Partition: Chapter 7.52 RCW. Public assistance grants, appointment of guardian to receive: RCW 74.08.280, 74.12.250. Real estate licenses, guardian exemption: RCW 18.85.110. Savings and loan association, guardian may be member of: RCW 33.20.060. Seduction, action for seduction of ward: RCW 4.24.020. State hospital patients, superintendent custodian of estate: RCW 72.23.230. Support and care of dependent child, liability of guardian, procedure, judgment: RCW 13.34.160, 13.34.161. Uniform veterans’ guardianship act: Chapter 73.36 RCW. Veterans: RCW 73.04.140. Volunteer fire fighters’ relief, appointment of guardian for fire fighter: RCW 41.24.140. Washington uniform transfers to minors act: Chapter 11.114 RCW. Witness, guardian as: RCW 5.60.030. 11.88.005 11.88.005 Legislative intent. It is the intent of the legislature to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person. The legislature recognizes that people with incapacities have unique abilities and needs, and that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian. However, their liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to ade[Title 11 RCW—page 71] 11.88.008 Title 11 RCW: Probate and Trust Law quately manage their financial affairs. [1990 c 122 § 1; 1977 ex.s. c 309 § 1; 1975 1st ex.s. c 95 § 1.] Effective date—1990 c 122: "This act shall take effect on July 1, 1991." [1990 c 122 § 38.] Severability—1977 ex.s. c 309: "If any provision of this 1977 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1977 ex.s. c 309 § 18.] 11.88.008 11.88.008 "Professional guardian" defined. As used in this chapter, "professional guardian" means a guardian appointed under this chapter who is not a member of the incapacitated person’s family and who charges fees for carrying out the duties of court-appointed guardian of three or more incapacitated persons. [1997 c 312 § 2.] Effective date—1997 c 312: See note following RCW 11.88.020. 11.88.010 11.88.010 Authority to appoint guardians—Definitions—Venue—Nomination by principal. (1) The superior court of each county shall have power to appoint guardians for the persons and/or estates of incapacitated persons, and guardians for the estates of nonresidents of the state who have property in the county needing care and attention. (a) For purposes of this chapter, a person may be deemed incapacitated as to person when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety. (b) For purposes of this chapter, a person may be deemed incapacitated as to the person’s estate when the superior court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs. (c) A determination of incapacity is a legal not a medical decision, based upon a demonstration of management insufficiencies over time in the area of person or estate. Age, eccentricity, poverty, or medical diagnosis alone shall not be sufficient to justify a finding of incapacity. (d) A person may also be determined incapacitated if he or she is under the age of majority as defined in RCW 26.28.010. (e) For purposes of giving informed consent for health care pursuant to RCW 7.70.050 and 7.70.065, an "incompetent" person is any person who is (i) incompetent by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, of either managing his or her property or caring for himself or herself, or both, or (ii) incapacitated as defined in (a), (b), or (d) of this subsection. (f) For purposes of the terms "incompetent," "disabled," or "not legally competent," as those terms are used in the Revised Code of Washington to apply to persons incapacitated under this chapter, those terms shall be interpreted to mean "incapacitated" persons for purposes of this chapter. (2) The superior court for each county shall have power to appoint limited guardians for the persons and estates, or either thereof, of incapacitated persons, who by reason of their incapacity have need for protection and assistance, but who are capable of managing some of their personal and financial affairs. After considering all evidence presented as a result of such investigation, the court shall impose, by [Title 11 RCW—page 72] order, only such specific limitations and restrictions on an incapacitated person to be placed under a limited guardianship as the court finds necessary for such person’s protection and assistance. A person shall not be presumed to be incapacitated nor shall a person lose any legal rights or suffer any legal disabilities as the result of being placed under a limited guardianship, except as to those rights and disabilities specifically set forth in the court order establishing such a limited guardianship. In addition, the court order shall state the period of time for which it shall be applicable. (3) Venue for petitions for guardianship or limited guardianship shall lie in the county wherein the alleged incapacitated person is domiciled, or if such person resides in a facility supported in whole or in part by local, state, or federal funding sources, in either the county where the facility is located, the county of domicile prior to residence in the supported facility, or the county where a parent or spouse of the alleged incapacitated person is domiciled. If the alleged incapacitated person’s residency has changed within one year of the filing of the petition, any interested person may move for a change of venue for any proceedings seeking the appointment of a guardian or a limited guardian under this chapter to the county of the alleged incapacitated person’s last place of residence of one year or more. The motion shall be granted when it appears to the court that such venue would be in the best interests of the alleged incapacitated person and would promote more complete consideration of all relevant matters. (4) Under RCW 11.94.010, a principal may nominate, by a durable power of attorney, the guardian or limited guardian of his or her estate or person for consideration by the court if guardianship proceedings for the principal’s person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal’s most recent nomination in a durable power of attorney except for good cause or disqualification. (5) Imposition of a guardianship for an incapacitated person shall not result in the loss of the right to vote unless the court determines that the person is incompetent for purposes of rationally exercising the franchise in that the individual lacks the capacity to understand the nature and effect of voting such that she or he cannot make an individual choice. The court order establishing guardianship shall specify whether or not the individual retains voting rights. When a court determines that the person is incompetent for the purpose of rationally exercising the right to vote, the court shall notify the appropriate county auditor. [2005 c 236 § 3; (2005 c 236 § 2 expired January 1, 2006); 2004 c 267 § 139; 1991 c 289 § 1; 1990 c 122 § 2; 1984 c 149 § 176; 1977 ex.s. c 309 § 2; 1975 1st ex.s. c 95 § 2; 1965 c 145 § 11.88.010. Prior: 1917 c 156 § 195; RRS § 1565; prior: Code 1881 § 1604; 1873 p 314 § 299; 1855 p 15 § 1.] Effective date—2005 c 236 § 3: "Section 3 of this act takes effect January 1, 2006." [2005 c 236 § 5.] Expiration date—2005 c 236 § 2: "Section 2 of this act expires January 1, 2006." [2005 c 236 § 4.] Findings—2005 c 236: "The legislature finds that the right to vote is a fundamental liberty and that this liberty should not be confiscated without due process. When the state chooses to use guardianship proceedings as the basis for the denial of a fundamental liberty, an individual is entitled to basic procedural protections that will ensure fundamental fairness. These basic procedural protections should include clear notice and a meaningful oppor(2006 Ed.) Guardianship—Appointment, Qualification, Removal of Guardians tunity to be heard. The legislature further finds that the state has a compelling interest in ensuring that those who cast a ballot understand the nature and effect of voting is an individual decision, and that any restriction of voting rights imposed through guardianship proceedings should be narrowly tailored to meet this compelling interest." [2005 c 236 § 1.] Effective dates—2004 c 267: See note following RCW 29A.08.651. Effective date—1990 c 122: See note following RCW 11.88.005. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. 11.88.020 11.88.020 Qualifications. (1) Any suitable person over the age of eighteen years, or any parent under the age of eighteen years or, if the petition is for appointment of a professional guardian, any individual or guardianship service that meets any certification requirements established by the administrator for the courts, may, if not otherwise disqualified, be appointed guardian or limited guardian of the person and/or the estate of an incapacitated person. A financial institution subject to the jurisdiction of the department of financial institutions and authorized to exercise trust powers, and a federally chartered financial institution when authorized to do so, may act as a guardian of the estate of an incapacitated person without having to meet the certification requirements established by the administrator for the courts. No person is qualified to serve as a guardian who is (a) under eighteen years of age except as otherwise provided herein; (b) of unsound mind; (c) convicted of a felony or of a misdemeanor involving moral turpitude; (d) a nonresident of this state who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate and caused such appointment to be filed with the court; (e) a corporation not authorized to act as a fiduciary, guardian, or limited guardian in the state; (f) a person whom the court finds unsuitable. (2) The professional guardian certification requirements required under this section shall not apply to a testamentary guardian appointed under RCW 11.88.080. [1997 c 312 § 1; 1990 c 122 § 3; 1975 1st ex.s. c 95 § 3; 1971 c 28 § 4; 1965 c 145 § 11.88.020. Prior: 1917 c 156 § 196; RRS § 1566.] Effective date—1997 c 312: "Sections 1 and 2 of this act take effect January 1, 1999." [1997 c 312 § 4.] Effective date—1990 c 122: See note following RCW 11.88.005. Banks and trust companies may act as guardian: RCW 11.36.010. 11.88.030 11.88.030 Petition—Contents—Hearing. (1) Any person or *entity may petition for the appointment of a qualified person, trust company, national bank, or nonprofit corporation authorized in RCW 11.88.020 as the guardian or limited guardian of an incapacitated person. No liability for filing a petition for guardianship or limited guardianship shall attach to a petitioner acting in good faith and upon reasonable basis. A petition for guardianship or limited guardianship shall state: (a) The name, age, residence, and post office address of the alleged incapacitated person; (b) The nature of the alleged incapacity in accordance with RCW 11.88.010; (2006 Ed.) 11.88.030 (c) The approximate value and description of property, including any compensation, pension, insurance, or allowance, to which the alleged incapacitated person may be entitled; (d) Whether there is, in any state, a guardian or limited guardian, or pending guardianship action for the person or estate of the alleged incapacitated person; (e) The residence and post office address of the person whom petitioner asks to be appointed guardian or limited guardian; (f) The names and addresses, and nature of the relationship, so far as known or can be reasonably ascertained, of the persons most closely related by blood or marriage to the alleged incapacitated person; (g) The name and address of the person or facility having the care and custody of the alleged incapacitated person; (h) The reason why the appointment of a guardian or limited guardian is sought and the interest of the petitioner in the appointment, and whether the appointment is sought as guardian or limited guardian of the person, the estate, or both; (i) A description of any alternate arrangements previously made by the alleged incapacitated person, such as trusts or powers of attorney, including identifying any guardianship nominations contained in a power of attorney, and why a guardianship is nevertheless necessary; (j) The nature and degree of the alleged incapacity and the specific areas of protection and assistance requested and the limitation of rights requested to be included in the court’s order of appointment; (k) The requested term of the limited guardianship to be included in the court’s order of appointment; (l) Whether the petitioner is proposing a specific individual to act as guardian ad litem and, if so, the individual’s knowledge of or relationship to any of the parties, and why the individual is proposed. (2)(a) The attorney general may petition for the appointment of a guardian or limited guardian in any case in which there is cause to believe that a guardianship is necessary and no private party is able and willing to petition. (b) Prepayment of a filing fee shall not be required in any guardianship or limited guardianship brought by the attorney general. Payment of the filing fee shall be ordered from the estate of the incapacitated person at the hearing on the merits of the petition, unless in the judgment of the court, such payment would impose a hardship upon the incapacitated person, in which case the filing shall be waived. (3) No filing fee shall be charged by the court for filing either a petition for guardianship or a petition for limited guardianship if the petition alleges that the alleged incapacitated person has total assets of a value of less than three thousand dollars. (4)(a) Notice that a guardianship proceeding has been commenced shall be personally served upon the alleged incapacitated person and the guardian ad litem along with a copy of the petition for appointment of a guardian. Such notice shall be served not more than five court days after the petition has been filed. (b) Notice under this subsection shall include a clear and easily readable statement of the legal rights of the alleged incapacitated person that could be restricted or transferred to a guardian by a guardianship order as well as the right to [Title 11 RCW—page 73] 11.88.040 Title 11 RCW: Probate and Trust Law counsel of choice and to a jury trial on the issue of incapacity. Such notice shall be in substantially the following form and shall be in capital letters, double-spaced, and in a type size not smaller than ten-point type: IMPORTANT NOTICE PLEASE READ CAREFULLY A PETITION TO HAVE A GUARDIAN APPOINTED FOR YOU HAS BEEN FILED IN THE . . . . . . COUNTY SUPERIOR COURT BY . . . . . . IF A GUARDIAN IS APPOINTED, YOU COULD LOSE ONE OR MORE OF THE FOLLOWING RIGHTS: (1) TO MARRY OR DIVORCE; (2) TO VOTE OR HOLD AN ELECTED OFFICE; (3) TO ENTER INTO A CONTRACT OR MAKE OR REVOKE A WILL; (4) TO APPOINT SOMEONE TO ACT ON YOUR BEHALF; (5) TO SUE AND BE SUED OTHER THAN THROUGH A GUARDIAN; (6) TO POSSESS A LICENSE TO DRIVE; (7) TO BUY, SELL, OWN, MORTGAGE, OR LEASE PROPERTY; (8) TO CONSENT TO OR REFUSE MEDICAL TREATMENT; (9) TO DECIDE WHO SHALL PROVIDE CARE AND ASSISTANCE; (10) TO MAKE DECISIONS REGARDING SOCIAL ASPECTS OF YOUR LIFE. UNDER THE LAW, YOU HAVE CERTAIN RIGHTS. YOU HAVE THE RIGHT TO BE REPRESENTED BY A LAWYER OF YOUR OWN CHOOSING. THE COURT WILL APPOINT A LAWYER TO REPRESENT YOU IF YOU ARE UNABLE TO PAY OR PAYMENT WOULD RESULT IN A SUBSTANTIAL HARDSHIP TO YOU. YOU HAVE THE RIGHT TO ASK FOR A JURY TO DECIDE WHETHER OR NOT YOU NEED A GUARDIAN TO HELP YOU. YOU HAVE THE RIGHT TO BE PRESENT IN COURT AND TESTIFY WHEN THE HEARING IS HELD TO DECIDE WHETHER OR NOT YOU NEED A GUARDIAN. IF A GUARDIAN AD LITEM IS APPOINTED, YOU HAVE THE RIGHT TO REQUEST THE COURT TO REPLACE THAT PERSON. (5) All petitions filed under the provisions of this section shall be heard within sixty days unless an extension of time is requested by a party or the guardian ad litem within such sixty day period and granted for good cause shown. If an extension is granted, the court shall set a new hearing date. [1996 c 249 § 8; 1995 c 297 § 1; 1991 c 289 § 2; 1990 c 122 § 4; 1977 ex.s. c 309 § 3; 1975 1st ex.s. c 95 § 4; 1965 c 145 § 11.88.030. Prior: 1927 c 170 § 1; 1917 c 156 § 197; RRS § 1567; prior: 1909 c 118 § 1; 1903 c 130 § 1.] *Reviser’s note: Trust companies, national banks, and nonprofit corporations are no longer referred to in RCW 11.88.020, as amended by 1997 c 312 § 1. Intent—1996 c 249: See note following RCW 2.56.030. Effective date—1990 c 122: See note following RCW 11.88.005. [Title 11 RCW—page 74] Severability—1977 ex.s. c 309: See note following RCW 11.88.005. 11.88.040 11.88.040 Notice and hearing, when required—Service—Procedure. Before appointing a guardian or a limited guardian, notice of a hearing, to be held not less than ten days after service thereof, shall be served personally upon the alleged incapacitated person, if over fourteen years of age, and served upon the guardian ad litem. Before appointing a guardian or a limited guardian, notice of a hearing, to be held not less than ten days after service thereof, shall be given by registered or certified mail to the last known address requesting a return receipt signed by the addressee or an agent appointed by the addressee, or by personal service in the manner provided for services of summons, to the following: (1) The alleged incapacitated person, or minor, if under fourteen years of age; (2) A parent, if the alleged incapacitated person is a minor, all known children not residing with a notified person, and the spouse of the alleged incapacitated person if any; (3) Any other person who has been appointed as guardian or limited guardian, or the person with whom the alleged incapacitated person resides. No notice need be given to those persons named in subsections (2) and (3) of this section if they have signed the petition for the appointment of the guardian or limited guardian or have waived notice of the hearing. (4) If the petition is by a parent asking for appointment as guardian or limited guardian of a minor child under the age of fourteen years, or if the petition is accompanied by the written consent of a minor of the age of fourteen years or upward, who consents to the appointment of the guardian or limited guardian asked for, or if the petition is by a nonresident guardian of any minor or incapacitated person, then the court may appoint the guardian without notice of the hearing. The court for good cause may reduce the number of days of notice, but in every case, at least three days notice shall be given. The alleged incapacitated person shall be present in court at the final hearing on the petition: PROVIDED, That this requirement may be waived at the discretion of the court for good cause other than mere inconvenience shown in the report to be provided by the guardian ad litem pursuant to RCW 11.88.090 as now or hereafter amended, or if no guardian ad litem is required to be appointed pursuant to RCW 11.88.090, as now or hereafter amended, at the discretion of the court for good cause shown by a party. Alternatively, the court may remove itself to the place of residence of the alleged incapacitated person and conduct the final hearing in the presence of the alleged incapacitated person. Final hearings on the petition may be held in closed court without admittance of any person other than those necessary to the action or proceeding. If presence of the alleged incapacitated person is waived and the court does not remove itself to the place of residence of such person, the guardian ad litem shall appear in person at the final hearing on the petition. [1995 c 297 § 2; 1991 c 289 § 3; 1990 c 122 § 5; 1984 c 149 § 177; 1977 ex.s. c 309 § 4; 1975 1st ex.s. c 95 § 5; 1969 c 70 § 1; 1965 c 145 § 11.88.040. Prior: 1927 c 170 § 2; 1923 c 142 § 4; 1917 c 156 § 198; RRS § 1568; prior: 1909 c 118 § 2; 1903 c 130 §§ 2, 3.] (2006 Ed.) Guardianship—Appointment, Qualification, Removal of Guardians Effective date—1990 c 122: See note following RCW 11.88.005. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. 11.88.045 11.88.045 Legal counsel and jury trial—Proof— Medical report—Examinations—Waiver. (1)(a) Alleged incapacitated individuals shall have the right to be represented by willing counsel of their choosing at any stage in guardianship proceedings. The court shall provide counsel to represent any alleged incapacitated person at public expense when either: (i) The individual is unable to afford counsel, or (ii) the expense of counsel would result in substantial hardship to the individual, or (iii) the individual does not have practical access to funds with which to pay counsel. If the individual can afford counsel but lacks practical access to funds, the court shall provide counsel and may impose a reimbursement requirement as part of a final order. When, in the opinion of the court, the rights and interests of an alleged or adjudicated incapacitated person cannot otherwise be adequately protected and represented, the court on its own motion shall appoint an attorney at any time to represent such person. Counsel shall be provided as soon as practicable after a petition is filed and long enough before any final hearing to allow adequate time for consultation and preparation. Absent a convincing showing in the record to the contrary, a period of less than three weeks shall be presumed by a reviewing court to be inadequate time for consultation and preparation. (b) Counsel for an alleged incapacitated individual shall act as an advocate for the client and shall not substitute counsel’s own judgment for that of the client on the subject of what may be in the client’s best interests. Counsel’s role shall be distinct from that of the guardian ad litem, who is expected to promote the best interest of the alleged incapacitated individual, rather than the alleged incapacitated individual’s expressed preferences. (c) If an alleged incapacitated person is represented by counsel and does not communicate with counsel, counsel may ask the court for leave to withdraw for that reason. If satisfied, after affording the alleged incapacitated person an opportunity for a hearing, that the request is justified, the court may grant the request and allow the case to proceed with the alleged incapacitated person unrepresented. (2) During the pendency of any guardianship, any attorney purporting to represent a person alleged or adjudicated to be incapacitated shall petition to be appointed to represent the incapacitated or alleged incapacitated person. Fees for representation described in this section shall be subject to approval by the court pursuant to the provisions of RCW 11.92.180. (3) The alleged incapacitated person is further entitled to testify and present evidence and, upon request, entitled to a jury trial on the issues of his or her alleged incapacity. The standard of proof to be applied in a contested case, whether before a jury or the court, shall be that of clear, cogent, and convincing evidence. (4) In all proceedings for appointment of a guardian or limited guardian, the court must be presented with a written report from a physician licensed to practice under chapter 18.71 or 18.57 RCW, psychologist licensed under chapter 18.83 RCW, or advanced registered nurse practitioner licensed under chapter 18.79 RCW, selected by the guardian (2006 Ed.) 11.88.045 ad litem. If the alleged incapacitated person opposes the health care professional selected by the guardian ad litem to prepare the medical report, then the guardian ad litem shall use the health care professional selected by the alleged incapacitated person. The guardian ad litem may also obtain a supplemental examination. The physician, psychologist, or advanced registered nurse practitioner shall have personally examined and interviewed the alleged incapacitated person within thirty days of preparation of the report to the court and shall have expertise in the type of disorder or incapacity the alleged incapacitated person is believed to have. The report shall contain the following information and shall be set forth in substantially the following format: (a) The name and address of the examining physician, psychologist, or advanced registered nurse practitioner; (b) The education and experience of the physician, psychologist, or advanced registered nurse practitioner pertinent to the case; (c) The dates of examinations of the alleged incapacitated person; (d) A summary of the relevant medical, functional, neurological, or mental health history of the alleged incapacitated person as known to the examining physician, psychologist, or advanced registered nurse practitioner; (e) The findings of the examining physician, psychologist, or advanced registered nurse practitioner as to the condition of the alleged incapacitated person; (f) Current medications; (g) The effect of current medications on the alleged incapacitated person’s ability to understand or participate in guardianship proceedings; (h) Opinions on the specific assistance the alleged incapacitated person needs; (i) Identification of persons with whom the physician, psychologist, or advanced registered nurse practitioner has met or spoken regarding the alleged incapacitated person. The court shall not enter an order appointing a guardian or limited guardian until a medical or mental status report meeting the above requirements is filed. The requirement of filing a medical report is waived if the basis of the guardianship is minority. (5) During the pendency of an action to establish a guardianship, a petitioner or any person may move for temporary relief under chapter 7.40 RCW, to protect the alleged incapacitated person from abuse, neglect, abandonment, or exploitation, as those terms are defined in RCW 74.34.020, or to address any other emergency needs of the alleged incapacitated person. Any alternative arrangement executed before filing the petition for guardianship shall remain effective unless the court grants the relief requested under chapter 7.40 RCW, or unless, following notice and a hearing at which all parties directly affected by the arrangement are present, the court finds that the alternative arrangement should not remain effective. [2001 c 148 § 1; 1996 c 249 § 9; 1995 c 297 § 3; 1991 c 289 § 4; 1990 c 122 § 6; 1977 ex.s. c 309 § 5; 1975 1st ex.s. c 95 § 7.] Intent—1996 c 249: See note following RCW 2.56.030. Effective date—1990 c 122: See note following RCW 11.88.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. [Title 11 RCW—page 75] 11.88.080 Title 11 RCW: Probate and Trust Law 11.88.080 Guardians nominated by will or durable power of attorney. When either parent is deceased, the surviving parent of any minor child or a sole parent of a minor child, may by last will or durable power of attorney nominate a guardian or guardians of the person, or of the estate or both, of a minor child, whether born at the time of executing the instrument or afterwards, to continue during the minority of such child or for any less time. This nomination shall be effective in the event of the death or incapacity of such parent. Every guardian of the estate of a child shall give bond in like manner and with like conditions as required by RCW 11.88.100 and 11.88.110, and he or she shall have the same powers and perform the same duties with regard to the person and estate of the minor as a guardian appointed under this chapter. The court shall confirm the parent’s nomination unless the court finds, based upon evidence presented at a hearing on the matter, that the individual nominated in the surviving parent’s will or durable power of attorney is not qualified to serve. [2005 c 97 § 11; 1990 c 122 § 7; 1965 c 145 § 11.88.080. Prior: 1917 c 156 § 210; RRS § 1580; prior: Code 1881 § 1618; 1860 p 228 § 335.] 11.88.080 Effective date—1990 c 122: See note following RCW 11.88.005. 11.88.090 11.88.090 Guardian ad litem—Mediation—Appointment—Qualifications—Notice of and statement by guardian ad litem—Hearing and notice—Attorneys’ fees and costs—Registry—Duties—Report—Responses—Fee. (1) Nothing contained in RCW 11.88.080 through 11.88.120, 11.92.010 through 11.92.040, 11.92.060 through 11.92.120, 11.92.170, and 11.92.180 shall affect or impair the power of any court to appoint a guardian ad litem to defend the interests of any incapacitated person interested in any suit or matter pending therein, or to commence and prosecute any suit in his or her behalf. (2) Prior to the appointment of a guardian or a limited guardian, whenever it appears that the incapacitated person or incapacitated person’s estate could benefit from mediation and such mediation would likely result in overall reduced costs to the estate, upon the motion of the alleged incapacitated person or the guardian ad litem, or subsequent to such appointment, whenever it appears that the incapacitated person or incapacitated person’s estate could benefit from mediation and such mediation would likely result in overall reduced costs to the estate, upon the motion of any interested person, the court may: (a) Require any party or other person subject to the jurisdiction of the court to participate in mediation; (b) Establish the terms of the mediation; and (c) Allocate the cost of the mediation pursuant to *RCW 11.96.140. (3) Upon receipt of a petition for appointment of guardian or limited guardian, except as provided herein, the court shall appoint a guardian ad litem to represent the best interests of the alleged incapacitated person, who shall be a person found or known by the court to: (a) Be free of influence from anyone interested in the result of the proceeding; and (b) Have the requisite knowledge, training, or expertise to perform the duties required by this section. The guardian ad litem shall within five days of receipt of notice of appointment file with the court and serve, either [Title 11 RCW—page 76] personally or by certified mail with return receipt, each party with a statement including: His or her training relating to the duties as a guardian ad litem; his or her criminal history as defined in RCW 9.94A.030 for the period covering ten years prior to the appointment; his or her hourly rate, if compensated; whether the guardian ad litem has had any contact with a party to the proceeding prior to his or her appointment; and whether he or she has an apparent conflict of interest. Within three days of the later of the actual service or filing of the guardian ad litem’s statement, any party may set a hearing and file and serve a motion for an order to show cause why the guardian ad litem should not be removed for one of the following three reasons: (i) Lack of expertise necessary for the proceeding; (ii) an hourly rate higher than what is reasonable for the particular proceeding; or (iii) a conflict of interest. Notice of the hearing shall be provided to the guardian ad litem and all parties. If, after a hearing, the court enters an order replacing the guardian ad litem, findings shall be included, expressly stating the reasons for the removal. If the guardian ad litem is not removed, the court has the authority to assess to the moving party, attorneys’ fees and costs related to the motion. The court shall assess attorneys’ fees and costs for frivolous motions. No guardian ad litem need be appointed when a parent is petitioning for a guardian or a limited guardian to be appointed for his or her minor child and the minority of the child, as defined by RCW 11.92.010, is the sole basis of the petition. The order appointing the guardian ad litem shall recite the duties set forth in subsection (5) of this section. The appointment of a guardian ad litem shall have no effect on the legal competency of the alleged incapacitated person and shall not overcome the presumption of competency or full legal and civil rights of the alleged incapacitated person. (4)(a) The superior court of each county shall develop and maintain a registry of persons who are willing and qualified to serve as guardians ad litem in guardianship matters. The court shall choose as guardian ad litem a person whose name appears on the registry in a system of consistent rotation, except in extraordinary circumstances such as the need for particular expertise. The court shall develop procedures for periodic review of the persons on the registry and for probation, suspension, or removal of persons on the registry for failure to perform properly their duties as guardian ad litem. In the event the court does not select the person next on the list, it shall include in the order of appointment a written reason for its decision. (b) To be eligible for the registry a person shall: (i) Present a written statement outlining his or her background and qualifications. The background statement shall include, but is not limited to, the following information: (A) Level of formal education; (B) Training related to the guardian ad litem’s duties; (C) Number of years’ experience as a guardian ad litem; (D) Number of appointments as a guardian ad litem and the county or counties of appointment; (E) Criminal history, as defined in RCW 9.94A.030; and (F) Evidence of the person’s knowledge, training, and experience in each of the following: Needs of impaired elderly people, physical disabilities, mental illness, developmental disabilities, and other areas relevant to the needs of inca(2006 Ed.) Guardianship—Appointment, Qualification, Removal of Guardians pacitated persons, legal procedure, and the requirements of chapters 11.88 and 11.92 RCW. The written statement of qualifications shall include the names of any counties in which the person was removed from a guardian ad litem registry pursuant to a grievance action, and the name of the court and the cause number of any case in which the court has removed the person for cause; and (ii) Complete the training as described in (e) of this subsection. The training is not applicable to guardians ad litem appointed pursuant to special proceeding Rule 98.16W. (c) Superior court shall remove any person from the guardian ad litem registry who misrepresents his or her qualifications pursuant to a grievance procedure established by the court. (d) The background and qualification information shall be updated annually. (e) The department of social and health services shall convene an advisory group to develop a model guardian ad litem training program and shall update the program biennially. The advisory group shall consist of representatives from consumer, advocacy, and professional groups knowledgeable in developmental disabilities, neurological impairment, physical disabilities, mental illness, domestic violence, aging, legal, court administration, the Washington state bar association, and other interested parties. (f) The superior court shall require utilization of the model program developed by the advisory group as described in (e) of this subsection, to assure that candidates applying for registration as a qualified guardian ad litem shall have satisfactorily completed training to attain these essential minimum qualifications to act as guardian ad litem. (5) The guardian ad litem appointed pursuant to this section shall have the following duties: (a) To meet and consult with the alleged incapacitated person as soon as practicable following appointment and explain, in language which such person can reasonably be expected to understand, the substance of the petition, the nature of the resultant proceedings, the person’s right to contest the petition, the identification of the proposed guardian or limited guardian, the right to a jury trial on the issue of his or her alleged incapacity, the right to independent legal counsel as provided by RCW 11.88.045, and the right to be present in court at the hearing on the petition; (b) To obtain a written report according to RCW 11.88.045; and such other written or oral reports from other qualified professionals as are necessary to permit the guardian ad litem to complete the report required by this section; (c) To meet with the person whose appointment is sought as guardian or limited guardian and ascertain: (i) The proposed guardian’s knowledge of the duties, requirements, and limitations of a guardian; and (ii) The steps the proposed guardian intends to take or has taken to identify and meet the needs of the alleged incapacitated person; (d) To consult as necessary to complete the investigation and report required by this section with those known relatives, friends, or other persons the guardian ad litem determines have had a significant, continuing interest in the welfare of the alleged incapacitated person; (e) To investigate alternate arrangements made, or which might be created, by or on behalf of the alleged incapacitated (2006 Ed.) 11.88.090 person, such as revocable or irrevocable trusts, durable powers of attorney, or blocked accounts; whether good cause exists for any such arrangements to be discontinued; and why such arrangements should not be continued or created in lieu of a guardianship; (f) To provide the court with a written report which shall include the following: (i) A description of the nature, cause, and degree of incapacity, and the basis upon which this judgment was made; (ii) A description of the needs of the incapacitated person for care and treatment, the probable residential requirements of the alleged incapacitated person and the basis upon which these findings were made; (iii) An evaluation of the appropriateness of the guardian or limited guardian whose appointment is sought and a description of the steps the proposed guardian has taken or intends to take to identify and meet current and emerging needs of the incapacitated person; (iv) A description of any alternative arrangements previously made by the alleged incapacitated person or which could be made, and whether and to what extent such alternatives should be used in lieu of a guardianship, and if the guardian ad litem is recommending discontinuation of any such arrangements, specific findings as to why such arrangements are contrary to the best interest of the alleged incapacitated person; (v) A description of the abilities of the alleged incapacitated person and a recommendation as to whether a guardian or limited guardian should be appointed. If appointment of a limited guardian is recommended, the guardian ad litem shall recommend the specific areas of authority the limited guardian should have and the limitations and disabilities to be placed on the incapacitated person; (vi) An evaluation of the person’s mental ability to rationally exercise the right to vote and the basis upon which the evaluation is made; (vii) Any expression of approval or disapproval made by the alleged incapacitated person concerning the proposed guardian or limited guardian or guardianship or limited guardianship; (viii) Identification of persons with significant interest in the welfare of the alleged incapacitated person who should be advised of their right to request special notice of proceedings pursuant to RCW 11.92.150; and (ix) Unless independent counsel has appeared for the alleged incapacitated person, an explanation of how the alleged incapacitated person responded to the advice of the right to jury trial, to independent counsel and to be present at the hearing on the petition. Within forty-five days after notice of commencement of the guardianship proceeding has been served upon the guardian ad litem, and at least fifteen days before the hearing on the petition, unless an extension or reduction of time has been granted by the court for good cause, the guardian ad litem shall file its report and send a copy to the alleged incapacitated person and his or her counsel, spouse, all children not residing with a notified person, those persons described in (f)(viii) of this subsection, and persons who have filed a request for special notice pursuant to RCW 11.92.150. If the guardian ad litem needs additional time to finalize his or her report, then the guardian ad litem shall petition the court for a [Title 11 RCW—page 77] 11.88.093 Title 11 RCW: Probate and Trust Law postponement of the hearing or, with the consent of all other parties, an extension or reduction of time for filing the report. If the hearing does not occur within sixty days of filing the petition, then upon the two-month anniversary of filing the petition and on or before the same day of each following month until the hearing, the guardian ad litem shall file interim reports summarizing his or her activities on the proceeding during that time period as well as fees and costs incurred; (g) To advise the court of the need for appointment of counsel for the alleged incapacitated person within five court days after the meeting described in (a) of this subsection unless (i) counsel has appeared, (ii) the alleged incapacitated person affirmatively communicated a wish not to be represented by counsel after being advised of the right to representation and of the conditions under which court-provided counsel may be available, or (iii) the alleged incapacitated person was unable to communicate at all on the subject, and the guardian ad litem is satisfied that the alleged incapacitated person does not affirmatively desire to be represented by counsel. (6) If the petition is brought by an interested person or entity requesting the appointment of some other qualified person or entity and a prospective guardian or limited guardian cannot be found, the court shall order the guardian ad litem to investigate the availability of a possible guardian or limited guardian and to include the findings in a report to the court pursuant to subsection (5)(f) of this section. (7) The parties to the proceeding may file responses to the guardian ad litem report with the court and deliver such responses to the other parties and the guardian ad litem at any time up to the second day prior to the hearing. If a guardian ad litem fails to file his or her report in a timely manner, the hearing shall be continued to give the court and the parties at least fifteen days before the hearing to review the report. At any time during the proceeding upon motion of any party or on the court’s own motion, the court may remove the guardian ad litem for failure to perform his or her duties as specified in this chapter, provided that the guardian ad litem shall have five days’ notice of any motion to remove before the court enters such order. In addition, the court in its discretion may reduce a guardian ad litem’s fee for failure to carry out his or her duties. (8) The court appointed guardian ad litem shall have the authority, in the event that the alleged incapacitated person is in need of emergency life-saving medical services, and is unable to consent to such medical services due to incapacity pending the hearing on the petition to give consent for such emergency life-saving medical services on behalf of the alleged incapacitated person. (9) The court-appointed guardian ad litem shall have the authority to move for temporary relief under chapter 7.40 RCW to protect the alleged incapacitated person from abuse, neglect, abandonment, or exploitation, as those terms are defined in RCW 74.34.020, or to address any other emergency needs of the alleged incapacitated person. Any alternative arrangement executed before filing the petition for guardianship shall remain effective unless the court grants the relief requested under chapter 7.40 RCW, or unless, following notice and a hearing at which all parties directly [Title 11 RCW—page 78] affected by the arrangement are present, the court finds that the alternative arrangement should not remain effective. (10) The guardian ad litem shall receive a fee determined by the court. The fee shall be charged to the alleged incapacitated person unless the court finds that such payment would result in substantial hardship upon such person, in which case the county shall be responsible for such costs: PROVIDED, That the court may charge such fee to the petitioner, the alleged incapacitated person, or any person who has appeared in the action; or may allocate the fee, as it deems just. If the petition is found to be frivolous or not brought in good faith, the guardian ad litem fee shall be charged to the petitioner. The court shall not be required to provide for the payment of a fee to any salaried employee of a public agency. (11) Upon the presentation of the guardian ad litem report and the entry of an order either dismissing the petition for appointment of guardian or limited guardian or appointing a guardian or limited guardian, the guardian ad litem shall be dismissed and shall have no further duties or obligations unless otherwise ordered by the court. If the court orders the guardian ad litem to perform further duties or obligations, they shall not be performed at county expense. (12) The guardian ad litem shall appear in person at all hearings on the petition unless all parties provide a written waiver of the requirement to appear. (13) At any hearing the court may consider whether any person who makes decisions regarding the alleged incapacitated person or estate has breached a statutory or fiduciary duty. [2000 c 124 § 1; 1999 c 360 § 1; 1996 c 249 § 10; 1995 c 297 § 4; 1991 c 289 § 5; 1990 c 122 § 8; 1977 ex.s. c 309 § 6; 1975 1st ex.s. c 95 § 9; 1965 c 145 § 11.88.090. Prior: 1917 c 156 § 211; RRS § 1581; prior: Code 1881 § 1619; 1873 p 318 § 314; 1860 p 228 § 336.] Rules of court: Judgment for and settlement of claims of minors: SPR 98.16W. *Reviser’s note: RCW 11.96.140 was repealed by 1999 c 42 § 637, effective January 1, 2000. Grievance rules—2000 c 124: "Each superior court shall adopt rules establishing and governing procedures for filing, investigating, and adjudicating grievances made by or against guardians ad litem under Titles 11, 13, and 26 RCW." [2000 c 124 § 16.] Intent—1996 c 249: See note following RCW 2.56.030. Effective date—1990 c 122: See note following RCW 11.88.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. Costs against guardian of infant plaintiff: RCW 4.84.140. District judge, guardian ad litem if defendant minor, appointment of: RCW 12.04.150. Execution against for costs against infant plaintiff: RCW 4.84.140. Incapacitated persons appearance in civil action: RCW 4.08.060. appointment for civil actions: RCW 4.08.060. Liability for costs against infant plaintiffs: RCW 4.84.140. Minors, for appearance in civil actions: RCW 4.08.050. appointment for civil actions: RCW 4.08.050. district court proceedings: RCW 12.04.150. Registration of land titles, appointment for minors: RCW 65.12.145. 11.88.093 Ex parte communications—Removal. A guardian ad litem shall not engage in ex parte communications with any judicial officer involved in the matter for which he or she is appointed during the pendency of the pro11.88.093 (2006 Ed.) Guardianship—Appointment, Qualification, Removal of Guardians ceeding, except as permitted by court rule or statute for ex parte motions. Ex parte motions shall be heard in open court on the record. The record may be preserved in a manner deemed appropriate by the county where the matter is heard. The court, upon its own motion, or upon the motion of a party, may consider the removal of any guardian ad litem who violates this section from any pending case or from any court-authorized registry, and if so removed may require forfeiture of any fees for professional services on the pending case. [2000 c 124 § 10.] 11.88.095 11.88.095 Disposition of guardianship petition. (1) In determining the disposition of a petition for guardianship, the court’s order shall be based upon findings as to the capacities, condition, and needs of the alleged incapacitated person, and shall not be based solely upon agreements made by the parties. (2) Every order appointing a full or limited guardian of the person or estate shall include: (a) Findings as to the capacities, condition, and needs of the alleged incapacitated person; (b) The amount of the bond, if any, or a bond review period; (c) When the next report of the guardian is due; (d) Whether the guardian ad litem shall continue acting as guardian ad litem; (e) Whether a review hearing shall be required upon the filing of the inventory; (f) The authority of the guardian, if any, for investment and expenditure of the ward’s estate; and (g) Names and addresses of those persons described in RCW 11.88.090(5)(d), if any, whom the court believes should receive copies of further pleadings filed by the guardian with respect to the guardianship. (3) If the court determines that a limited guardian should be appointed, the order shall specifically set forth the limits by either stating exceptions to the otherwise full authority of the guardian or by stating the specific authority of the guardian. (4) In determining the disposition of a petition for appointment of a guardian or limited guardian of the estate only, the court shall consider whether the alleged incapacitated person is capable of giving informed medical consent or of making other personal decisions and, if not, whether a guardian or limited guardian of the person of the alleged incapacitated person should be appointed for that purpose. (5) Unless otherwise ordered, any powers of attorney or durable powers of attorney shall be revoked upon appointment of a guardian or limited guardian of the estate. If there is an existing medical power of attorney, the court must make a specific finding of fact regarding the continued validity of that medical power of attorney before appointing a guardian or limited guardian for the person. [1995 c 297 § 5; 1991 c 289 § 6; 1990 c 122 § 9.] Effective date—1990 c 122: See note following RCW 11.88.005. 11.88.097 11.88.097 Guardian ad litem—Fees. The court shall specify the hourly rate the guardian ad litem may charge for his or her services, and shall specify the maximum amount the guardian ad litem may charge without additional court (2006 Ed.) 11.88.100 review and approval. The court shall specify rates and fees in the order of appointment or at the earliest date the court is able to determine the appropriate rates and fees and prior to the guardian ad litem billing for his or her services. This section shall apply except as provided by local court rule. [2000 c 124 § 13.] 11.88.100 11.88.100 Oath and bond of guardian or limited guardian. Before letters of guardianship are issued, each guardian or limited guardian shall take and subscribe an oath and, unless dispensed with by order of the court as provided in RCW 11.88.105, file a bond, with sureties to be approved by the court, payable to the state, in such sum as the court may fix, taking into account the character of the assets on hand or anticipated and the income to be received and disbursements to be made, and such bond shall be conditioned substantially as follows: The condition of this obligation is such, that if the above bound A.B., who has been appointed guardian or limited guardian for C.D., shall faithfully discharge the office and trust of such guardian or limited guardian according to law and shall render a fair and just account of his guardianship or limited guardianship to the superior court of the county of . . . . . ., from time to time as he shall thereto be required by such court, and comply with all orders of the court, lawfully made, relative to the goods, chattels, moneys, care, management, and education of such incapacitated person, or his or her property, and render and pay to such incapacitated person all moneys, goods, chattels, title papers, and effects which may come into the hands or possession of such guardian or limited guardian, at such time and in such manner as the court may order, then this obligation shall be void, otherwise it shall remain in effect. The bond shall be for the use of the incapacitated person, and shall not become void upon the first recovery, but may be put in suit from time to time against all or any one of the obligors, in the name and for the use and benefit of any person entitled by the breach thereof, until the whole penalty is recovered thereon. The court may require an additional bond whenever for any reason it appears to the court that an additional bond should be given. In all guardianships or limited guardianships of the person, and in all guardianship or limited guardianships of the estate, in which the petition alleges that the alleged incapacitated person has total assets of a value of less than three thousand dollars, the court may dispense with the requirement of a bond pending filing of an inventory confirming that the estate has total assets of less than three thousand dollars: PROVIDED, That the guardian or limited guardian shall swear to report to the court any changes in the total assets of the incapacitated person increasing their value to over three thousand dollars: PROVIDED FURTHER, That the guardian or limited guardian shall file a yearly statement showing the monthly income of the incapacitated person if said monthly income, excluding moneys from state or federal benefits, is over the sum of five hundred dollars per month for any three consecutive months. [1990 c 122 § 10; 1983 c 271 § 1; 1977 ex.s. c 309 § 7; 1975 1st ex.s. c 95 § 10; 1965 c 145 § 11.88.100. Prior: 1961 c 155 § 1; 1951 c 242 § 1; 1947 c 145 § 1; 1945 c 41 § 1; 1917 c 156 § 203; Rem. Supp. 1947 § [Title 11 RCW—page 79] 11.88.105 Title 11 RCW: Probate and Trust Law 1573; prior: 1905 c 17 § 1; Code 1881 § 1612; 1860 p 226 § 329.] Effective date—1990 c 122: See note following RCW 11.88.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. Citation of surety on bond: RCW 11.92.056. Suretyship: Chapter 19.72 RCW. 11.88.105 11.88.105 Reduction in amount of bond. In cases where all or a portion of the estate consisting of cash or securities has been placed in possession of savings and loan associations or banks, trust companies, escrow corporations, or other corporations approved by the court and if a verified receipt signed by the custodian of the funds is filed by the guardian or limited guardian in court stating that such corporations hold the cash or securities subject to order of court, the court may in its discretion dispense with the bond or reduce the amount of the bond by the amount of such deposits. [1990 c 122 § 11; 1975 1st ex.s. c 95 § 11; 1965 c 145 § 11.88.105.] Effective date—1990 c 122: See note following RCW 11.88.005. 11.88.107 11.88.107 When bond not required. In all cases where a bank or trust company, authorized to act as guardian or limited guardian, or where a nonprofit corporation is authorized under its articles of incorporation to act as guardian or limited guardian, is appointed as guardian or limited guardian, or acts as guardian or limited guardian under an appointment as such heretofore made, no bond shall be required: PROVIDED, That in the case of appointment of a nonprofit corporation court approval shall be required before any bond requirement of this chapter may be waived. [1990 c 122 § 12; 1977 ex.s. c 309 § 8; 1975 1st ex.s. c 95 § 12; 1965 c 145 § 11.88.107.] Effective date—1990 c 122: See note following RCW 11.88.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. 11.88.110 11.88.110 Law on executors’ and administrators’ bonds applicable. All the provisions of this title relative to bonds given by executors and administrators shall apply to bonds given by guardians or limited guardians. [1975 1st ex.s. c 95 § 13; 1965 c 145 § 11.88.110. Prior: 1917 c 156 § 204; RRS § 1574; prior: Code 1881 § 1617; 1860 p 228 § 334.] 11.88.115 11.88.115 Notice to department of revenue. Duty of guardian to notify department of revenue; personal liability for taxes upon failure to give notice: See RCW 82.32.240. 11.88.120 11.88.120 Modification or termination of guardianship—Procedure. (1) At any time after establishment of a guardianship or appointment of a guardian, the court may, upon the death of the guardian or limited guardian, or, for other good reason, modify or terminate the guardianship or replace the guardian or limited guardian. (2) Any person, including an incapacitated person, may apply to the court for an order to modify or terminate a guardianship or to replace a guardian or limited guardian. If applicants are represented by counsel, counsel shall move for an order to show cause why the relief requested should not be granted. If applicants are not represented by counsel, they [Title 11 RCW—page 80] may move for an order to show cause, or they may deliver a written request to the clerk of the court. (3) By the next judicial day after receipt of an unrepresented person’s request to modify or terminate a guardianship order, or to replace a guardian or limited guardian, the clerk shall deliver the request to the court. The court may (a) direct the clerk to schedule a hearing, (b) appoint a guardian ad litem to investigate the issues raised by the application or to take any emergency action the court deems necessary to protect the incapacitated person until a hearing can be held, or (c) deny the application without scheduling a hearing, if it appears based on documents in the court file that the application is frivolous. Any denial of an application without a hearing shall be in writing with the reasons for the denial explained. A copy of the order shall be mailed by the clerk to the applicant, to the guardian, and to any other person entitled to receive notice of proceedings in the matter. Unless within thirty days after receiving the request from the clerk the court directs otherwise, the clerk shall schedule a hearing on the request and mail notice to the guardian, the incapacitated person, the applicant, all counsel of record, and any other person entitled to receive notice of proceedings in the matter. (4) In a hearing on an application to modify or terminate a guardianship, or to replace a guardian or limited guardian, the court may grant such relief as it deems just and in the best interest of the incapacitated person. (5) The court may order persons who have been removed as guardians to deliver any property or records belonging to the incapacitated person in accordance with the court’s order. Similarly, when guardians have died or been removed and property or records of an incapacitated person are being held by any other person, the court may order that person to deliver it in accordance with the court’s order. Disobedience of an order to deliver shall be punishable as contempt of court. [1991 c 289 § 7; 1990 c 122 § 14; 1977 ex.s. c 309 § 9; 1975 1st ex.s. c 95 § 14; 1965 c 145 § 11.88.120. Prior: 1917 c 156 § 209; RRS § 1579; prior: Code 1881 § 1616; 1860 p 227 § 333; 1855 p 17 § 11.] Effective date—1990 c 122: See note following RCW 11.88.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. 11.88.125 11.88.125 Standby limited guardian or limited guardian. (1) The person appointed by the court as either guardian or limited guardian of the person and/or estate of an incapacitated person, shall file in writing with the court, a notice designating a standby limited guardian or guardian to serve as limited guardian or guardian at the death or legal incapacity of the court-appointed guardian or limited guardian. The notice shall state the name, address, zip code, and telephone number of the designated standby or limited guardian. Notice of the guardian’s designation of the standby guardian shall be given to the standby guardian, the incapacitated person and his or her spouse and adult children, any facility in which the incapacitated person resides, and any person entitled to special notice under RCW 11.92.150 or any person entitled to receive pleadings pursuant to RCW 11.88.095(2)(g). Such standby guardian or limited guardian shall have all the powers, duties, and obligations of the regularly appointed guardian or limited guardian and in addition shall, within a period of thirty days from the death or adjudi(2006 Ed.) Guardianship—Appointment, Qualification, Removal of Guardians cation of incapacity of the regularly appointed guardian or limited guardian, file with the superior court in the county in which the guardianship or limited guardianship is then being administered, a petition for appointment of a substitute guardian or limited guardian. Upon the court’s appointment of a new, substitute guardian or limited guardian, the standby guardian or limited guardian shall make an accounting and report to be approved by the court, and upon approval of the court, the standby guardian or limited guardian shall be released from all duties and obligations arising from or out of the guardianship or limited guardianship. (2) Letters of guardianship shall be issued to the standby guardian or limited guardian upon filing an oath and posting a bond as required by RCW 11.88.100 as now or hereafter amended. The oath may be filed prior to the appointed guardian or limited guardian’s death. Notice of such appointment shall be provided to the standby guardian, the incapacitated person, and any facility in which the incapacitated person resides. The provisions of RCW 11.88.100 through 11.88.110 as now or hereafter amended shall apply to standby guardians and limited guardians. (3) In addition to the powers of a standby limited guardian or guardian as noted in subsection (1) of this section, the standby limited guardian or guardian shall have the authority to provide timely, informed consent to necessary medical procedures, as authorized in RCW 11.92.040 as now or hereafter amended, if the guardian or limited guardian cannot be located within four hours after the need for such consent arises. [1991 c 289 § 8; 1990 c 122 § 15; 1979 c 32 § 1; 1977 ex.s. c 309 § 10; 1975 1st ex.s. c 95 § 6.] Effective date—1990 c 122: See note following RCW 11.88.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. 11.88.130 11.88.130 Transfer of jurisdiction and venue. The court of any county having jurisdiction of any guardianship or limited guardianship proceeding is authorized to transfer jurisdiction and venue of the guardianship or limited guardianship proceeding to the court of any other county of the state upon application of the guardian, limited guardian, or incapacitated person and such notice to an alleged incapacitated person or other interested party as the court may require. Such transfers of guardianship or limited guardianship proceedings shall be made to the court of a county wherein either the guardian or limited guardian or alleged incapacitated person resides, as the court may deem appropriate, at the time of making application for such transfer. The original order providing for any such transfer shall be retained as a permanent record by the clerk of the court in which such order is entered, and a certified copy thereof together with the original file in such guardianship or limited guardianship proceeding and a certified transcript of all record entries up to and including the order for such change shall be transmitted to the clerk of the court to which such proceeding is transferred. [1990 c 122 § 16; 1975 1st ex.s. c 95 § 15; 1965 c 145 § 11.88.130. Prior: 1955 c 45 § 1.] 11.88.140 ORDER. A guardianship or limited guardianship is terminated: (a) Upon the attainment of full and legal age, as defined in RCW 26.28.010 as now or hereafter amended, of any person defined as an incapacitated person pursuant to RCW 11.88.010 as now or hereafter amended solely by reason of youth, RCW 26.28.020 to the contrary notwithstanding, subject to subsection (2) of this section; (b) By an adjudication of capacity or an adjudication of termination of incapacity; (c) By the death of the incapacitated person; (d) By expiration of the term of limited guardianship specified in the order appointing the limited guardian, unless prior to such expiration a petition has been filed and served, as provided in RCW 11.88.040 as now or hereafter amended, seeking an extension of such term. (2) TERMINATION OF GUARDIANSHIP FOR A MINOR BY DECLARATION OF COMPLETION. A guardianship for the benefit of a minor may be terminated upon the minor’s attainment of legal age, as defined in RCW 26.28.010 as now or hereafter amended, by the guardian filing a declaration that states: (a) The date the minor attained legal age; (b) That the guardian has paid all of the minor’s funds in the guardian’s possession to the minor, who has signed a receipt for the funds, and that the receipt has been filed with the court; (c) That the guardian has completed the administration of the minor’s estate and the guardianship is ready to be closed; and (d) The amount of fees paid or to be paid to each of the following: (i) The guardian, (ii) lawyer or lawyers, (iii) accountant or accountants; and that the guardian believes the fees are reasonable and does not intend to obtain court approval of the amount of the fees or to submit a guardianship accounting to the court for approval. Subject to the requirement of notice as provided in this section, unless the minor petitions the court either for an order requiring the guardian to obtain court approval of the amount of fees paid or to be paid to the guardian, lawyers, or accountants, or for an order requiring an accounting, or both, within thirty days from the filing of the declaration of completion of guardianship, the guardian shall be automatically discharged without further order of the court. The guardian’s powers will cease thirty days after filing the declaration of completion of guardianship. The declaration of completion of guardianship shall, at the time, be the equivalent of an entry of a decree terminating the guardianship, distributing the assets, and discharging the guardian for all legal intents and purposes. Within five days of the date of filing the declaration of completion of guardianship, the guardian or the guardian’s lawyer shall mail a copy of the declaration of completion to the minor together with a notice that shall be substantially as follows: Effective date—1990 c 122: See note following RCW 11.88.005. CAPTION OF CASE 11.88.140 11.88.140 Termination of guardianship or limited guardianship. (1) TERMINATION WITHOUT COURT (2006 Ed.) NOTICE OF FILING A DECLARATION OF COMPLETION OF GUARDIANSHIP [Title 11 RCW—page 81] 11.88.150 Title 11 RCW: Probate and Trust Law NOTICE IS GIVEN that the attached Declaration of Completion of Guardianship was filed by the undersigned in the above-entitled court on the . . . . . . day of . . . . . ., 19 . . .; unless you file a petition in the above-entitled court requesting the court to review the reasonableness of the fees, or for an accounting, or both, and serve a copy of the petition on the guardian or the guardian’s lawyer, within thirty days after the filing date, the amount of fees paid or to be paid will be deemed reasonable, the acts of the guardian will be deemed approved, the guardian will be automatically discharged without further order of the court and the Declaration of Completion of Guardianship will be final and deemed the equivalent of an order terminating the guardianship, discharging the guardian and decreeing the distribution of the guardianship assets. If you file and serve a petition within the period specified, the undersigned will request the court to fix a time and place for the hearing of your petition, and you will be notified of the time and place of the hearing, by mail, or by personal service, not less than ten days before the hearing on the petition. DATED this . . . . . . day of . . . . . ., 19 . . . ......................... Guardian If the minor, after reaching legal age, waives in writing the notice required by this section, the guardian will be automatically discharged without further order of the court and the declaration of completion of guardianship will be effective as an order terminating the guardianship without an accounting upon filing the declaration. If the guardian has been required to furnish a bond, and a declaration of completion of guardianship is filed according to this section, any bond furnished by the guardian shall be automatically discharged upon the discharge of the guardian. (3) TERMINATION ON COURT ORDER. A guardianship or limited guardianship may be terminated by court order after such notice as the court may require if the guardianship or limited guardianship is no longer necessary. The guardian or limited guardian shall, within thirty days of the date of termination, unless the court orders a different deadline for good cause, prepare and file with the court a final verified account of administration. The final verified account of administration shall contain the same information as required for (a) an intermediate verified account of administration of the estate under RCW 11.92.040(2) and (b) an intermediate personal care status report under RCW 11.92.043(2). (4) EFFECT OF TERMINATION. When a guardianship or limited guardianship terminates other than by the death of the incapacitated person, the powers of the guardian or limited guardian cease, except that a guardian or limited guardian of the estate may make disbursements for claims that are or may be allowed by the court, for liabilities already properly incurred for the estate or for the incapacitated person, and for expenses of administration. When a guardianship or limited guardianship terminates by death of the incapacitated person, the guardian or limited guardian of the estate may proceed under RCW 11.88.150 as now or hereafter amended, but the rights of all creditors against the incapacitated person’s estate shall be determined by the law of decedents’ [Title 11 RCW—page 82] estates. [1991 c 289 § 9; 1990 c 122 § 17; 1977 ex.s. c 309 § 11; 1975 1st ex.s. c 95 § 16; 1965 c 145 § 11.88.140.] Effective date—1990 c 122: See note following RCW 11.88.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. Procedure on removal or death of guardian or limited guardian: RCW 11.88.120. Settlement of estate upon termination: RCW 11.92.053. 11.88.150 11.88.150 Administration of deceased incapacitated person’s estate. (1) Upon the death of an incapacitated person, a guardian or limited guardian of the estate shall have authority to disburse or commit those funds under the control of the guardian or limited guardian as are prudent and within the means of the estate for the disposition of the deceased incapacitated person’s remains. Consent for such arrangement shall be secured according to RCW 68.50.160. If no person authorized by *RCW 68.50.150 accepts responsibility for giving consent, the guardian or limited guardian of the estate may consent, subject to the provisions of this section and to the known directives of the deceased incapacitated person. Reasonable financial commitments made by a guardian or limited guardian pursuant to this section shall be binding against the estate of the deceased incapacitated person. (2) Upon the death of an incapacitated person intestate the guardian or limited guardian of his estate has power under the letters issued to him and subject to the direction of the court to administer the estate as the estate of the deceased incapacitated person without further letters unless within forty days after death of the incapacitated person a petition is filed for letters of administration or for letters testamentary and the petition is granted. If the guardian or limited guardian elects to administer the estate under his letters of guardianship or limited guardianship, he shall petition the court for an order transferring the guardianship or limited guardianship proceeding to a probate proceeding, and upon court approval, the clerk of the court shall re-index the cause as a decedent’s estate, using the same file number which was assigned to the guardianship or limited guardianship proceeding. The guardian or limited guardian shall then be authorized to continue administration of the estate without the necessity for any further petition or hearing. Notice to creditors and other persons interested in the estate shall be published and may be combined with the notice of the guardian’s or limited guardian’s final account. This notice shall be given and published in the manner provided in chapter 11.40 RCW. Upon the hearing, the account may be allowed and the balance distributed to the persons entitled thereto, after the payment of such claims as may be allowed. Liability on the guardian’s or limited guardian’s bond shall continue until exonerated on settlement of his account, and may apply to the complete administration of the estate of the deceased incapacitated person with the consent of the surety. If letters of administration are granted upon petition filed within forty days after the death of the incapacitated person, the personal representative shall supersede the guardian or limited guardian in the administration of the estate and the estate shall be administered as a decedent’s estate as provided in this title, including the publication of notice to creditors and other interested persons and the barring of creditors claims. [1990 c 122 § 18; 1977 ex.s. c 309 § 12; 1975 1st ex.s. c 95 § 17; 1965 c 145 § 11.88.150.] (2006 Ed.) Guardianship—Powers and Duties of Guardian or Limited Guardian *Reviser’s note: The reference to RCW 68.50.150 appears to be erroneous. RCW 68.50.160 was apparently intended. RCW 68.50.150 was subsequently repealed by 2005 c 365 § 161. Effective date—1990 c 122: See note following RCW 11.88.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. Settlement of estate upon termination: RCW 11.92.053. 11.88.160 11.88.160 Guardianships involving veterans. For guardianships involving veterans see chapter 73.36 RCW. [1990 c 122 § 13.] Effective date—1990 c 122: See note following RCW 11.88.005. Chapter 11.92 RCW GUARDIANSHIP—POWERS AND DUTIES OF GUARDIAN OR LIMITED GUARDIAN Chapter 11.92 Sections 11.92.010 11.92.035 11.92.040 11.92.043 11.92.050 11.92.053 11.92.056 11.92.060 11.92.090 11.92.096 11.92.100 11.92.110 11.92.115 11.92.120 11.92.125 11.92.130 11.92.140 11.92.150 11.92.160 11.92.170 11.92.180 11.92.185 11.92.190 Guardians or limited guardians under court control—Legal age. Claims. Duties of guardian or limited guardian in general. Additional duties. Intermediate accounts—Hearing—Order. Settlement of estate upon termination. Citation of surety on bond. Guardian to represent incapacitated person—Compromise of claims—Service of process. Sale, exchange, lease, or mortgage of property. Guardian access to certain held assets. Petition—Contents. Sale of real estate. Return and confirmation of sale. Confirmation conclusive. Broker’s fee and closing expenses—Sale, exchange, mortgage, or lease of real estate. Performance of contracts. Court authorization for actions regarding guardianship funds. Request for special notice of proceedings. Citation for failure to file account or report. Removal of property of nonresident incapacitated person. Compensation and expenses of guardian or limited guardian— Attorney’s fees—Department of social and health services clients paying part of costs—Rules. Concealed or embezzled property. Detention of person in residential placement facility against will prohibited—Effect of court order—Service of notice of residential placement. Veterans: RCW 73.04.140. 11.92.010 11.92.010 Guardians or limited guardians under court control—Legal age. Guardians or limited guardians herein provided for shall at all times be under the general direction and control of the court making the appointment. For the purposes of chapters 11.88 and 11.92 RCW, all persons shall be of full and legal age when they shall be eighteen years old. [1975 1st ex.s. c 95 § 18; 1971 c 28 § 5; 1965 c 145 § 11.92.010. Prior: 1923 c 72 § 1; 1917 c 156 § 202; RRS § 1572. Formerly RCW 11.92.010 and 11.92.020.] Age of majority: RCW 26.28.010. Married persons deemed to be of full age: RCW 26.28.020. Termination of guardianship or limited guardianship upon attainment of legal age: RCW 11.88.140. Transfer of jurisdiction and venue: RCW 11.88.130. 11.92.035 11.92.035 Claims. (1) DUTY OF GUARDIAN TO PAY. A guardian of the estate is under a duty to pay from the estate all just claims against the estate of the incapacitated person, whether they constitute liabilities of the incapacitated (2006 Ed.) 11.92.040 person which arose prior to the guardianship or liabilities properly incurred by the guardian for the benefit of the incapacitated person or his or her estate and whether arising in contract or in tort or otherwise, upon allowance of the claim by the court or upon approval of the court in a settlement of the guardian’s accounts. The duty of the guardian to pay from the estate shall not preclude the guardian’s personal liability for his or her own contracts and acts made and performed on behalf of the estate as it exists according to the common law. If it appears that the estate is likely to be exhausted before all existing claims are paid, preference shall be given to (a) the expenses of administration including guardian’s fees, attorneys’ fees, and court costs; (b) prior claims for the care, maintenance and education of the incapacitated person and of the person’s dependents over other claims. Subject to court orders limiting such powers, a limited guardian of an estate shall have the same authority to pay claims. (2) CLAIMS MAY BE PRESENTED. Any person having a claim against the estate of an incapacitated person, or against the guardian of his or her estate as such, may file a written claim with the court for determination at any time before it is barred by the statute of limitations. After ten days’ notice to a guardian or limited guardian, a hearing on the claim shall be held, at which upon proof thereof and after consideration of any defenses or objections by the guardian, the court may enter an order for its allowance and payment from the estate. Any action against the guardian of the estate as such shall be deemed a claim duly filed. [1990 c 122 § 19; 1975 1st ex.s. c 95 § 19; 1965 c 145 § 11.92.035.] Effective date—1990 c 122: See note following RCW 11.88.005. Actions against guardian: RCW 11.92.060. Claims against estate of deceased incompetent or disabled person: RCW 11.88.150. Disbursement for claims on termination of guardianship or limited guardianship: RCW 11.88.140. 11.92.040 Duties of guardian or limited guardian in general. It shall be the duty of the guardian or limited guardian of an estate: (1) To file within three months after the guardian’s appointment a verified inventory of all the property of the incapacitated person which comes into the guardian’s possession or knowledge, including a statement of all encumbrances, liens, and other secured charges on any item; (2) To file annually, within ninety days after the anniversary date of the guardian’s or limited guardian’s appointment, and also within thirty days after termination of the appointment, unless the court for good cause orders a different deadline to file following termination, a written verified account of the administration, which account shall contain at least the following information: (a) Identification of property of the guardianship estate as of the date of the last account or, in the case of the initial account, as of the date of inventory; (b) Identification of all additional property received into the guardianship, including income by source; (c) Identification of all expenditures made during the account period by major categories; (d) Any adjustments to the guardianship estate required to establish its present fair market value, including gains or losses on sale or other disposition and any mortgages, deeds 11.92.040 [Title 11 RCW—page 83] 11.92.043 Title 11 RCW: Probate and Trust Law of trust or other encumbrances against the guardianship estate; and (e) Identification of all property held in the guardianship estate as of the date of account, the assessed value of any real property and the guardian’s estimate of the present fair market values of other property (including the basis on which such estimate is made), and the total net fair market value of the guardianship estate. In addition, immediately following such statement of present fair market value, the account shall set forth a statement of current amount of the guardian’s bond and any other court-ordered protection for the security of the guardianship assets; (3) The court in its discretion may allow reports at intervals of up to thirty-six months for estates with assets (exclusive of real property) having a value of not more than twice the homestead exemption. Notwithstanding contrary provisions of this section, the guardian or limited guardian of an estate need not file an annual report with the court if the funds of the guardianship are held for the benefit of a minor in a blocked account unless the guardian requests a withdrawal from such account, in which case the guardian shall provide a written verified account of the administration of the guardianship estate along with the guardian’s petition for the withdrawal. The guardian or limited guardian shall report any substantial change in income or assets of the guardianship estate within thirty days of the occurrence of the change. A hearing shall be scheduled for court review and determination of provision for increased bond or other provision in accordance with RCW 11.88.100; (4) To protect and preserve the guardianship estate, to apply it as provided in this chapter, to account for it faithfully, to perform all of the duties required by law, and at the termination of the guardianship or limited guardianship, to deliver the assets of the incapacitated person to the persons entitled thereto. Except as provided to the contrary herein, the court may authorize a guardian or limited guardian to do anything that a trustee can do under the provisions of RCW 11.98.070 for a period not exceeding one year from the date of the order or for a period corresponding to the interval in which the guardian’s or limited guardian’s report is required to be filed by the court pursuant to subsection (2) of this section, whichever period is longer; (5) To invest and reinvest the property of the incapacitated person in accordance with the rules applicable to investment of trust estates by trustees as provided in chapter 11.100 RCW, except that: (a) No investments shall be made without prior order of the court in any property other than unconditional interest bearing obligations of this state or of the United States and in obligations the interest and principal of which are unconditionally guaranteed by the United States, and in share accounts or deposits which are insured by an agency of the United States government. Such prior order of the court may authorize specific investments, or, in the discretion of the court, may authorize the guardian or limited guardian to invest and reinvest as provided in chapter 11.100 RCW without further order of the court; (b) If it is for the best interests of the incapacitated person that a specific property be used by the incapacitated person rather than sold and the proceeds invested, the court may so order; [Title 11 RCW—page 84] (6) To apply to the court no later than the filing of the inventory for an order authorizing disbursements on behalf of the incapacitated person: PROVIDED, HOWEVER, That the guardian or limited guardian of the estate, or the person, department, bureau, agency, or charitable organization having the care and custody of an incapacitated person, may apply to the court for an order directing the guardian or limited guardian of the estate to pay to the person, department, bureau, agency, or charitable organization having the care and custody of an incapacitated person, or if the guardian or limited guardian of the estate has the care and custody of the incapacitated person, directing the guardian or limited guardian of the estate to apply an amount weekly, monthly, quarterly, semi-annually, or annually, as the court may direct, to be expended in the care, maintenance, and education of the incapacitated person and of his or her dependents. In proper cases, the court may order payment of amounts directly to the incapacitated person for his or her maintenance or incidental expenses. The amounts authorized under this section may be decreased or increased from time to time by direction of the court. If payments are made to another under an order of the court, the guardian or limited guardian of the estate is not bound to see to the application thereof. [1991 c 289 § 10; 1990 c 122 § 20; 1985 c 30 § 9. Prior: 1984 c 149 § 12; 1979 c 32 § 2; 1977 ex.s. c 309 § 13; 1975 1st ex.s. c 95 § 20; 1965 c 145 § 11.92.040; prior: 1957 c 64 § 1; 1955 c 205 § 15; 1941 c 83 § 1; 1917 c 156 § 205; Rem. Supp. 1941 § 1575; prior: 1895 c 42 § 1; Code 1881 § 1614.] Effective date—1990 c 122: See note following RCW 11.88.005. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. Compulsory school attendance law, duty to comply with: RCW 28A.225.010. Disabled person, defined: RCW 11.88.010. 11.92.043 11.92.043 Additional duties. It shall be the duty of the guardian or limited guardian of the person: (1) To file within three months after appointment a personal care plan for the incapacitated person which shall include (a) an assessment of the incapacitated person’s physical, mental, and emotional needs and of such person’s ability to perform or assist in activities of daily living, and (b) the guardian’s specific plan for meeting the identified and emerging personal care needs of the incapacitated person. (2) To file annually or, where a guardian of the estate has been appointed, at the time an account is required to be filed under RCW 11.92.040, a report on the status of the incapacitated person, which shall include: (a) The address and name of the incapacitated person and all residential changes during the period; (b) The services or programs which the incapacitated person receives; (c) The medical status of the incapacitated person; (d) The mental status of the incapacitated person; (e) Changes in the functional abilities of the incapacitated person; (f) Activities of the guardian for the period; (2006 Ed.) Guardianship—Powers and Duties of Guardian or Limited Guardian (g) Any recommended changes in the scope of the authority of the guardian; (h) The identity of any professionals who have assisted the incapacitated person during the period. (3) To report to the court within thirty days any substantial change in the incapacitated person’s condition, or any changes in residence of the incapacitated person. (4) Consistent with the powers granted by the court, to care for and maintain the incapacitated person in the setting least restrictive to the incapacitated person’s freedom and appropriate to the incapacitated person’s personal care needs, assert the incapacitated person’s rights and best interests, and if the incapacitated person is a minor or where otherwise appropriate, to see that the incapacitated person receives appropriate training and education and that the incapacitated person has the opportunity to learn a trade, occupation, or profession. (5) Consistent with RCW 7.70.065, to provide timely, informed consent for health care of the incapacitated person, except in the case of a limited guardian where such power is not expressly provided for in the order of appointment or subsequent modifying order as provided in RCW 11.88.125 as now or hereafter amended, the standby guardian or standby limited guardian may provide timely, informed consent to necessary medical procedures if the guardian or limited guardian cannot be located within four hours after the need for such consent arises. No guardian, limited guardian, or standby guardian may involuntarily commit for mental health treatment, observation, or evaluation an alleged incapacitated person who is unable or unwilling to give informed consent to such commitment unless the procedures for involuntary commitment set forth in chapter 71.05 or 72.23 RCW are followed. Nothing in this section shall be construed to allow a guardian, limited guardian, or standby guardian to consent to: (a) Therapy or other procedure which induces convulsion; (b) Surgery solely for the purpose of psychosurgery; (c) Other psychiatric or mental health procedures that restrict physical freedom of movement, or the rights set forth in *RCW 71.05.370. A guardian, limited guardian, or standby guardian who believes these procedures are necessary for the proper care and maintenance of the incapacitated person shall petition the court for an order unless the court has previously approved the procedure within the past thirty days. The court may order the procedure only after an attorney is appointed in accordance with RCW 11.88.045 if no attorney has previously appeared, notice is given, and a hearing is held in accordance with RCW 11.88.040. [1991 c 289 § 11; 1990 c 122 § 21.] *Reviser’s note: RCW 71.05.370 was recodified as RCW 71.05.217 pursuant to 2005 c 504 § 108, effective July 1, 2005. Effective date—1990 c 122: See note following RCW 11.88.005. 11.92.050 11.92.050 Intermediate accounts—Hearing—Order. (1) Upon the filing of any intermediate guardianship or limited guardianship account required by statute, or of any intermediate account required by court rule or order, the guardian or limited guardian may petition the court for an order settling his or her account with regard to any receipts, expenditures, and investments made and acts done by the guardian or limited guardian to the date of the interim report. Upon such (2006 Ed.) 11.92.053 petition being filed, the court may in its discretion, where the size or condition of the estate warrants it, set a date for the hearing of the petition and require the service of the petition and a notice of the hearing as provided in RCW 11.88.040 as now or hereafter amended; and, in the event a hearing is ordered, the court may also appoint a guardian ad litem, whose duty it shall be to investigate the report of the guardian or limited guardian of the estate and to advise the court thereon at the hearing, in writing. At the hearing on the report of the guardian or limited guardian, if the court is satisfied that the actions of the guardian or limited guardian have been proper, and that the guardian or limited guardian has in all respects discharged his or her trust with relation to the receipts, expenditures, investments, and acts, then, in such event, the court shall enter an order approving such account. If the court has appointed a guardian ad litem, the order shall be final and binding upon the incapacitated person, subject only to the right of appeal as upon a final order; provided that at the time of final account of said guardian or limited guardian or within one year after the incapacitated person attains his or her majority any such interim account may be challenged by the incapacitated person on the ground of fraud. (2) The procedure established in subsection (1) of this section for financial accounts by guardians or limited guardians of the estate shall apply to personal care reports filed by guardians or limited guardians of the person under RCW 11.92.043. [1995 c 297 § 6; 1990 c 122 s 23; 1975 1st ex.s. c 95 s 21; 1965 c 145 s 11.92.050. Prior: 1943 c 29 s 1; Rem. Supp. 1943 s 1575-1.] Effective date—1990 c 122: See note following RCW 11.88.005. 11.92.053 11.92.053 Settlement of estate upon termination. Within ninety days after the termination of a guardianship for any reason, the guardian or limited guardian of the estate shall petition the court for an order settling his or her account as filed in accordance with RCW 11.92.040(2) with regard to any receipts, expenditures, and investments made and acts done by the guardian to the date of the termination. Upon the filing of the petition, the court shall set a date for the hearing of the petition after notice has been given in accordance with RCW 11.88.040. Any person interested may file objections to the petition or may appear at the time and place fixed for the hearing thereof and present his or her objections thereto. The court may take such testimony as it deems proper or necessary to determine whether an order settling the account should be issued and the transactions of the guardian be approved, and the court may appoint a guardian ad litem to review the report. At the hearing on the petition of the guardian or limited guardian, if the court is satisfied that the actions of the guardian or limited guardian have been proper, and that the guardian has in all respects discharged his or her trust with relation to the receipts, expenditures, investments, and acts, then, in such event, the court shall enter an order approving the account, and the order shall be final and binding upon the incapacitated person, subject only to the right of appeal as upon a final order. However, within one year after the incompetent attains his or her majority any such account may be challenged by the incapacitated person on the ground of [Title 11 RCW—page 85] 11.92.056 Title 11 RCW: Probate and Trust Law fraud. [1995 c 297 § 7; 1990 c 122 § 24; 1965 c 145 § 11.92.053.] Effective date—1990 c 122: See note following RCW 11.88.005. Administration of deceased incompetent’s estate: RCW 11.88.150. Procedure on removal or death of guardian—Delivery of estate to successor: RCW 11.88.120. Termination of guardianship: RCW 11.88.140. 11.92.056 11.92.056 Citation of surety on bond. If, at any hearing upon a petition to settle the account of any guardian or limited guardian, it shall appear to the court that said guardian or limited guardian has not fully accounted or that said account should not be settled, the court may continue said hearing to a day certain and may cite the surety or sureties upon the bond of said guardian or limited guardian to appear upon the date fixed in said citation and show cause why the account should not be disapproved and judgment entered for any deficiency against said guardian or limited guardian and the surety or sureties upon his or her bond. Said citation shall be personally served upon said surety or sureties in the manner provided by law for the service of summons in civil actions and shall be served not less than twenty days previous to said hearing. At said hearing any interested party, including the surety so cited, shall have the right to introduce any evidence which shall be material to the matter before the court. If, at said hearing, the final account of said guardian or limited guardian shall not be approved and the court shall find that said guardian or limited guardian is indebted to the incapacitated person in any amount, said court may thereupon enter final judgment against said guardian or limited guardian and the surety or sureties upon his or her bond, which judgment shall be enforceable in the same manner and to the same extent as judgments in ordinary civil actions. [1990 c 122 § 25; 1975 1st ex.s. c 95 § 22; 1965 c 145 § 11.92.056.] pacitated person before the appointment of a guardian of his or her estate, such guardian when appointed may be substituted as a party for the incapacitated person. If the appointment of the guardian of the estate is terminated, his or her successor may be substituted; if the incapacitated person dies, his or her personal representative may be substituted; if the incapacitated person is no longer incapacitated the person may be substituted. (3) GARNISHMENT, ATTACHMENT AND EXECUTION. When there is a guardian of the estate, the property and rights of action of the incapacitated person shall not be subject to garnishment or attachment, except for the foreclosure of a mortgage or other lien, and execution shall not issue to obtain satisfaction of any judgment against the incapacitated person or the guardian of the person’s estate as such. (4) COMPROMISE BY GUARDIAN. Whenever it is proposed to compromise or settle any claim by or against the incapacitated person or the guardian as such, whether arising as a result of personal injury or otherwise, and whether arising before or after appointment of a guardian, the court on petition of the guardian of the estate, if satisfied that such compromise or settlement will be for the best interests of the incapacitated person, may enter an order authorizing the settlement or compromise be made. (5) LIMITED GUARDIAN. Limited guardians may serve and be served with process or actions on behalf of the incapacitated person, but only to the extent provided for in the court order appointing a limited guardian. [1990 c 122 § 26; 1975 1st ex.s. c 95 § 23; 1965 c 145 § 11.92.060. Prior: 1917 c 156 § 206; RRS § 1576; prior: 1903 c 100 § 1; Code 1881 § 1611; 1860 p 226 § 328.] Rules of court: SPR 98.08W, 98.10W, 98.16W. Effective date—1990 c 122: See note following RCW 11.88.005. Action against guardian deemed claim: RCW 11.92.035. 11.92.090 Effective date—1990 c 122: See note following RCW 11.88.005. 11.92.060 11.92.060 Guardian to represent incapacitated person—Compromise of claims—Service of process. (1) GUARDIAN MAY SUE AND BE SUED. When there is a guardian of the estate, all actions between the incapacitated person or the guardian and third persons in which it is sought to charge or benefit the estate of the incapacitated person shall be prosecuted by or against the guardian of the estate as such. The guardian shall represent the interests of the incapacitated person in the action and all process shall be served on him or her. A guardian or limited guardian of the estate shall report to the court any action commenced against the incapacitated person and shall secure court approval prior to initiating any legal action in the name of the incapacitated person. (2) JOINDER, AMENDMENT AND SUBSTITUTION. When the guardian of the estate is under personal liability for his or her own contracts and acts made and performed on behalf of the estate the guardian may be sued both as guardian and in his or her personal capacity in the same action. Misnomer or the bringing of the action by or against the incapacitated person shall not be grounds for dismissal of the action and leave to amend or substitute shall be freely granted. If an action was commenced by or against the inca[Title 11 RCW—page 86] 11.92.090 Sale, exchange, lease, or mortgage of property. Whenever it shall appear to the satisfaction of a court by the petition of any guardian or limited guardian, that it is necessary or proper to sell, exchange, lease, mortgage, or grant an easement, license or similar interest in any of the real or personal property of the estate of the incapacitated person for the purpose of paying debts or for the care, support and education of the incapacitated person, or to redeem any property of the incapacitated person’s estate covered by mortgage or other lien, or for the purpose of making any investments, or for any other purpose which to the court may seem right and proper, the court may make an order directing such sale, exchange, lease, mortgage, or grant of easement, license or similar interest of such part or parts of the real or personal property as shall to the court seem proper. [1990 c 122 § 27; 1975 1st ex.s. c 95 § 24; 1965 c 145 § 11.92.090. Prior: 1917 c 156 § 212; RRS § 1582; prior: Code 1881 § 1620; 1855 p 17 § 14.] Effective date—1990 c 122: See note following RCW 11.88.005. 11.92.096 11.92.096 Guardian access to certain held assets. (1) All financial institutions as defined in RCW 30.22.040(12), all insurance companies holding a certificate of authority under chapter 48.05 RCW, or any agent who constitutes a salesperson or broker-dealer of securities under the defini(2006 Ed.) Guardianship—Powers and Duties of Guardian or Limited Guardian tions of RCW 21.20.005 (hereafter individually and collectively referenced as "institution") shall provide the guardian access and control over the asset(s) described in (a)(vii) of this subsection, including but not limited to delivery of the asset to the guardian, upon receipt of the following: (a) An affidavit containing as an attachment a true and correct copy of the guardian’s letters of guardianship and stating: (i) That as of the date of the affidavit, the affiant is a duly appointed guardian with authority over assets held by the institution but owned or subject to withdrawal or delivery to a client or depositor of the institution; (ii) The cause number of the guardianship; (iii) The name of the incapacitated person and the name of the client or depositor (which names shall be the same); (iv) The account or the safety deposit box number or numbers; (v) The address of the client or depositor; (vi) The name and address of the affiant-guardian being provided assets or access to assets; (vii) A description of and the value of the asset or assets, or, where the value cannot be readily ascertained, a reasonable estimate thereof, and a statement that the guardian receives delivery or control of each asset solely in its capacity as guardian; (viii) The date the guardian assumed control over the assets; and (ix) That a true and correct copy of the letters of guardianship duly issued by a court to the guardian is attached to the affidavit; and (b) An envelope, with postage prepaid, addressed to the clerk of the court issuing the letters of guardianship. The affidavit shall be sent in the envelope by the institution to the clerk of the court together with a statement signed by an agent of the institution that the description of the asset set forth in the affidavit appears to be accurate, and confirming in the case of cash assets, the value of the asset. (2) Any guardian provided with access to a safe deposit box pursuant to subsection (1) of this section shall make an inventory of the contents of the box and attach this inventory to the affidavit before the affidavit is sent to the clerk of the court and before the contents of the box are released to the guardian. Any inventory shall be prepared in the presence of an employee of the institution and the statement of the institution required under subsection (1) of this section shall include a statement executed by the employee that the inventory appears to be accurate. The institution may require payment by the guardian of any fees or charges then due in connection with the asset or account and of a reasonable fee for witnessing preparation of the inventory and preparing the statement required by this subsection or subsection (1) of this section. (3) Any institution to which an affidavit complying with subsection (1) of this section is submitted may rely on the affidavit without inquiry and shall not be subject to any liability of any nature whatsoever to any person whatsoever, including but not limited to the institution’s client or depositor or any other person with an ownership or other interest in or right to the asset, for the reliance or for providing the guardian access and control over the asset, including but not (2006 Ed.) 11.92.115 limited to delivery of the asset to the guardian. [1991 c 289 § 13.] 11.92.100 11.92.100 Petition—Contents. Such application shall be by petition, verified by the oath of the guardian or limited guardian, and shall substantially set forth: (1) The value and character of all personal estate belonging to the incapacitated person that has come to the knowledge or possession of such guardian or limited guardian. (2) The disposition of such personal estate. (3) The amount and condition of the incapacitated person’s personal estate, if any, dependent upon the settlement of any estate, or the execution of any trust. (4) The annual income of the real estate of the incapacitated person. (5) The amount of rent received and the application thereof. (6) The proposed manner of reinvesting the proceeds of the sale, if asked for that purpose. (7) Each item of indebtedness, or the amount and character of the lien, if the sale is requested for the liquidation thereof. (8) The age of the incapacitated person, where and with whom residing. (9) All other facts connected with the estate and condition of the incapacitated person necessary to enable the court to fully understand the same. If there is no personal estate belonging to the incapacitated person in possession or expectancy, and none has come into the hands of such guardian or limited guardian, and no rents have been received, the fact shall be stated in the application. [1990 c 122 § 28; 1975 1st ex.s. c 95 § 25; 1965 c 145 § 11.92.100. Prior: 1917 c 156 § 213; RRS § 1583; prior: Code 1881 § 1621; 1860 p 228 § 338; 1855 p 17 § 15.] Effective date—1990 c 122: See note following RCW 11.88.005. 11.92.110 11.92.110 Sale of real estate. The order directing the sale of any of the real property of the estate of the incapacitated person shall specify the particular property affected and the method, whether by public or private sale or by negotiation, and terms thereof, and with regard to the procedure and notices to be employed in conducting such sale, the provisions of RCW 11.56.060, 11.56.070, 11.56.080, and 11.56.110 shall be followed unless the court otherwise directs. [1990 c 122 § 29; 1975 1st ex.s. c 95 § 26; 1965 c 145 § 11.92.110. Prior: 1917 c 156 § 214; RRS § 1524; prior: Code 1881 § 1623; 1860 p 229 § 340.] Effective date—1990 c 122: See note following RCW 11.88.005. 11.92.115 11.92.115 Return and confirmation of sale. The guardian or limited guardian making any sale of real estate, either at public or private sale or sale by negotiation, shall within ten days after making such sale file with the clerk of the court his return of such sale, the same being duly verified. At any time after the expiration of ten days from the filing of such return, the court may, without notice, approve and confirm such sale and direct proper instruments of transfer to be executed and delivered. Upon the confirmation of any such sale, the court shall direct the guardian or limited guardian to make, execute and deliver instruments conveying the title to [Title 11 RCW—page 87] 11.92.120 Title 11 RCW: Probate and Trust Law the person to whom such property may be sold and such instruments of conveyance shall be deemed to convey all the estate, rights and interest of the incapacitated person and of the person’s estate. In the case of a sale by negotiation the guardians or limited guardians shall publish a notice in one issue of a legal newspaper published in the county in which the estate is being administered; the substance of such notice shall include the legal description of the property sold, the selling price and the date after which the sale may be confirmed: PROVIDED, That such confirmation date shall be at least ten days after such notice is published. [1990 c 122 § 30; 1975 1st ex.s. c 95 § 27; 1965 c 145 § 11.92.115.] Effective date—1990 c 122: See note following RCW 11.88.005. 11.92.120 11.92.120 Confirmation conclusive. No sale by any guardian or limited guardian of real or personal property shall be void or be set aside or be attacked because of any irregularities whatsoever, and none of the steps leading up to such sale or the confirmation thereof shall be jurisdictional, and the confirmation by the court of any such sale shall be conclusive as to the regularity and legality of such sale or sales, and the passing of title after confirmation by the court shall vest an absolute title in the purchaser, and such instrument of transfer may not be attacked for any purpose or any reason, except for fraud. [1975 1st ex.s. c 95 § 28; 1965 c 145 § 11.92.120. Prior: 1917 c 156 § 215; RRS § 1585; prior: Code 1881 § 1625; 1860 p 229 § 343.] 11.92.125 11.92.125 Broker’s fee and closing expenses—Sale, exchange, mortgage, or lease of real estate. In connection with the sale, exchange, mortgage, lease, or grant of easement or license in any property, the court may authorize the guardian or limited guardian to pay, out of the proceeds realized therefrom or out of the estate, the customary and reasonable auctioneer’s and broker’s fees and any necessary expenses for abstracting title insurance, survey, revenue stamps, and other necessary costs and expenses in connection therewith. [1977 ex.s. c 309 § 15; 1965 c 145 § 11.92.125.] Severability—1977 ex.s. c 309: See note following RCW 11.88.005. 11.92.130 11.92.130 Performance of contracts. If any person who is bound by contract in writing to perform shall become incapacitated before making the performance, the court having jurisdiction of the guardianship or limited guardianship of such property may, upon application of the guardian or limited guardian of the incapacitated person, or upon application of the person claiming to be entitled to the performance, make an order authorizing and directing the guardian or limited guardian to perform such contract. The application and the proceedings, shall, as nearly as may be, be the same as provided in chapter 11.60 RCW. [1990 c 122 § 31; 1975 1st ex.s. c 95 § 29; 1965 c 145 § 11.92.130. Prior: 1923 c 142 § 5; RRS § 1585a.] Effective date—1990 c 122: See note following RCW 11.88.005. 11.92.140 11.92.140 Court authorization for actions regarding guardianship funds. The court, upon the petition of a guardian of the estate of an incapacitated person other than the guardian of a minor, and after such notice as the court directs and other notice to all persons interested as required by chap[Title 11 RCW—page 88] ter 11.96A RCW, may authorize the guardian to take any action, or to apply funds not required for the incapacitated person’s own maintenance and support, in any fashion the court approves as being in keeping with the incapacitated person’s wishes so far as they can be ascertained and as designed to minimize insofar as possible current or prospective state or federal income and estate taxes, permit entitlement under otherwise available federal or state medical or other assistance programs, and to provide for gifts to such charities, relatives, and friends as would be likely recipients of donations from the incapacitated person. The action or application of funds may include but shall not be limited to the making of gifts, to the conveyance or release of the incapacitated person’s contingent and expectant interests in property including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety, to the exercise or release of the incapacitated person’s powers as donee of a power of appointment, the making of contracts, the creation of revocable or irrevocable trusts of property of the incapacitated person’s estate which may extend beyond the incapacitated person’s disability or life, the establishment of custodianships for the benefit of a minor under chapter 11.114 RCW, the Washington uniform transfers to minors act, the exercise of options of the incapacitated person to purchase securities or other property, the exercise of the incapacitated person’s right to elect options and to change beneficiaries under insurance and annuity policies and the surrendering of policies for their cash value, the exercise of the incapacitated person’s right to any elective share in the estate of the incapacitated person’s deceased spouse, and the renunciation or disclaimer of any interest acquired by testate or intestate succession or by inter vivos transfer. The guardian in the petition shall briefly outline the action or application of funds for which approval is sought, the results expected to be accomplished thereby and the savings expected to accrue. The proposed action or application of funds may include gifts of the incapacitated person’s personal or real property. Gifts may be for the benefit of prospective legatees, devisees, or heirs apparent of the incapacitated person, or may be made to individuals or charities in which the incapacitated person is believed to have an interest. Gifts may or may not, in the discretion of the court, be treated as advancements to donees who would otherwise inherit property from the incapacitated person under the incapacitated person’s will or under the laws of descent and distribution. The guardian shall also indicate in the petition that any planned disposition is consistent with the intentions of the incapacitated person insofar as the intentions can be ascertained, and if the incapacitated person’s intentions cannot be ascertained, the incapacitated person will be presumed to favor reduction in the incidence of the various forms of taxation and the partial distribution of the incapacitated person’s estate as provided in this section. The guardian shall not, however, be required to include as a beneficiary any person whom there is reason to believe would be excluded by the incapacitated person. No guardian may be required to file a petition as provided in this section, and a failure or refusal to so petition the court does not constitute a breach of the guardian’s fiduciary duties. [1999 c 42 § 616; 1991 c 193 § 32; 1990 c 122 § 32; 1985 c 30 § 10. Prior: 1984 c 149 § 13.] (2006 Ed.) Guardianship—Powers and Duties of Guardian or Limited Guardian Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Effective date—Severability—1991 c 193: See RCW 11.114.903 and 11.114.904. Effective date—1990 c 122: See note following RCW 11.88.005. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.92.180 or account, or to show cause for failure to do so, and thereupon the court shall issue such citation and hold a hearing thereon and enter such order as is required by the law and the facts. [1990 c 122 § 34; 1975 1st ex.s. c 95 § 31; 1965 c 145 § 11.92.160. Prior: 1925 ex.s. c 104 § 2; RRS § 1586-2.] Effective date—1990 c 122: See note following RCW 11.88.005. Attorney’s fee to contestant of erroneous account or report: RCW 11.76.070. 11.92.170 11.92.150 11.92.150 Request for special notice of proceedings. At any time after the issuance of letters of guardianship in the estate of any person and/or incapacitated person, any person interested in the estate, or in the incapacitated person, or any relative of the incapacitated person, or any authorized representative of any agency, bureau, or department of the United States government from or through which any compensation, insurance, pension or other benefit is being paid, or is payable, may serve upon the guardian or limited guardian, or upon the attorney for the guardian or limited guardian, and file with the clerk of the court where the guardianship or limited guardianship of the person and/or estate is pending, a written request stating the specific actions of which the applicant requests advance notice. Where the notice does not specify matters for which notice is requested, the guardian or limited guardian shall provide copies of all documents filed with the court and advance notice of his or her application for court approval of any action in the guardianship. The request for special written notice shall designate the name, address and post office address of the person upon whom the notice is to be served and no service shall be required under this section and RCW 11.92.160 as now or hereafter amended other than in accordance with the designation unless and until a new designation has been made. When any account, report, petition, or proceeding is filed in the estate of which special written notice is requested, the court shall fix a time for hearing which shall allow at least ten days for service of the notice before the hearing; and notice of the hearing shall be served upon the person designated in the written request at least ten days before the date fixed for the hearing. The service may be made by leaving a copy with the person designated, or that person’s authorized representative, or by mailing through the United States mail, with postage prepaid to the person and place designated. [1990 c 122 § 33; 1985 c 30 § 11. Prior: 1984 c 149 § 14; 1975 1st ex.s. c 95 § 30; 1969 c 18 § 1; 1965 c 145 § 11.92.150; prior: 1925 ex.s. c 104 § 1; RRS § 1586-1.] Effective date—1990 c 122: See note following RCW 11.88.005. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.92.160 11.92.160 Citation for failure to file account or report. Whenever any request for special written notice is served as provided in this section and RCW 11.92.150 as now or hereafter amended, the person making such request may, upon failure of any guardian or limited guardian for any incapacitated person, to file any account or report required by law, petition the court administering such estate for a citation requiring such guardian or limited guardian to file such report (2006 Ed.) 11.92.170 Removal of property of nonresident incapacitated person. Whenever it is made to appear that it would be in the best interests of the incapacitated person, the court may order the transfer of property in this state to a guardian or limited guardian of the estate of the incapacitated person appointed in another jurisdiction, or to a person or institution having similar authority with respect to the incapacitated person. [1990 c 122 § 35; 1977 ex.s. c 309 § 16; 1975 1st ex.s. c 95 § 32; 1965 c 145 § 11.92.170. Prior: 1917 c 156 § 217; RRS § 1587; prior: Code 1881 § 1628; 1873 p 320 § 323.] Effective date—1990 c 122: See note following RCW 11.88.005. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. 11.92.180 11.92.180 Compensation and expenses of guardian or limited guardian—Attorney’s fees—Department of social and health services clients paying part of costs— Rules. A guardian or limited guardian shall be allowed such compensation for his or her services as guardian or limited guardian as the court shall deem just and reasonable. Guardians and limited guardians shall not be compensated at county or state expense. Additional compensation may be allowed for other administrative costs, including services of an attorney and for other services not provided by the guardian or limited guardian. Where a guardian or limited guardian is an attorney, the guardian or limited guardian shall separately account for time for which compensation is requested for services as a guardian or limited guardian as contrasted to time for which compensation for legal services provided to the guardianship is requested. In all cases, compensation of the guardian or limited guardian and his or her expenses including attorney’s fees shall be fixed by the court and may be allowed at any annual or final accounting; but at any time during the administration of the estate, the guardian or limited guardian or his or her attorney may apply to the court for an allowance upon the compensation or necessary expenses of the guardian or limited guardian and for attorney’s fees for services already performed. If the court finds that the guardian or limited guardian has failed to discharge his or her duties as such in any respect, it may deny the guardian any compensation whatsoever or may reduce the compensation which would otherwise be allowed. Where the incapacitated person is a department of social and health services client residing in a nursing facility or in a residential or home setting and is required by the department of social and health services to contribute a portion of their income towards the cost of residential or supportive services then the department shall be entitled to notice of proceedings as described in RCW 11.92.150. The amount of guardianship fees and additional compensation for administrative costs shall not exceed the amount allowed by the department of social and health [Title 11 RCW—page 89] 11.92.185 Title 11 RCW: Probate and Trust Law services by rule. [1995 c 297 § 8; 1994 c 68 § 1; 1991 c 289 § 12; 1990 c 122 § 36; 1975 1st ex.s. c 95 § 33; 1965 c 145 § 11.92.180. Prior: 1917 c 156 § 216; RRS § 1586; prior: Code 1881 § 1627; 1855 p 19 § 25.] 11.94.140 11.94.150 11.94.900 Notice of hearing on court petition. Mental health treatment decisions—Compensation of agent prohibited—Reimbursement of expenses allowed. Application of 1984 c 149 §§ 26-31 as of January 1, 1985. 11.94.010 Rules of court: SPR 98.12W. Effective date—1990 c 122: See note following RCW 11.88.005. 11.92.185 Concealed or embezzled property. The court shall have authority to bring before it, in the manner prescribed by RCW 11.48.070, any person or persons suspected of having in his or her possession or having concealed, embezzled, conveyed or disposed of any of the property of the estate of incapacitated persons subject to administration under this title. [1990 c 122 § 37; 1975 1st ex.s. c 95 § 34; 1965 c 145 § 11.92.185.] 11.92.185 Effective date—1990 c 122: See note following RCW 11.88.005. 11.92.190 Detention of person in residential placement facility against will prohibited—Effect of court order—Service of notice of residential placement. No residential treatment facility which provides nursing or other care may detain a person within such facility against their will. Any court order, other than an order issued in accordance with the involuntary treatment provisions of chapters 10.77, 71.05, and 72.23 RCW, which purports to authorize such involuntary detention or purports to authorize a guardian or limited guardian to consent to such involuntary detention on behalf of an incapacitated person shall be void and of no force or effect. This section does not apply to the detention of a minor as provided in chapter 70.96A or 71.34 RCW. Nothing in this section shall be construed to require a court order authorizing placement of an incapacitated person in a residential treatment facility if such order is not otherwise required by law: PROVIDED, That notice of any residential placement of an incapacitated person shall be served, either before or after placement, by the guardian or limited guardian on such person, the guardian ad litem of record, and any attorney of record. [1996 c 249 § 11; 1977 ex.s. c 309 § 14.] 11.92.190 Intent—1996 c 249: See note following RCW 2.56.030. Severability—1977 ex.s. c 309: See note following RCW 11.88.005. Chapter 11.94 Chapter 11.94 RCW POWER OF ATTORNEY Sections 11.94.010 11.94.020 11.94.030 11.94.040 11.94.043 11.94.046 11.94.050 11.94.060 11.94.070 11.94.080 11.94.090 11.94.100 11.94.110 11.94.120 11.94.130 Designation—Authority—Effect of acts done—Appointment of guardian, effect—Accounting—Reliance on instrument. Effect of death, disability, or incompetence of principal—Acts without knowledge. Banking transactions. Liability for reliance on power of attorney document. Durable power of attorney—Revocation or termination. Durable power of attorney—Validity. Attorney or agent granted principal’s powers—Powers to be specifically provided for—Transfer of resources by principal’s attorney or agent. Conveyance or encumbrance of homestead. Limitations on powers to benefit attorneys-in-fact. Termination of marriage. Court petition. Persons allowed to file court petition. Ruling on court petition. Award of costs on court petition. Applicability of dispute resolution provisions to court petition. [Title 11 RCW—page 90] 11.94.010 Designation—Authority—Effect of acts done—Appointment of guardian, effect—Accounting— Reliance on instrument. (1) Whenever a principal designates another as his or her attorney in fact or agent, by a power of attorney in writing, and the writing contains the words "This power of attorney shall not be affected by disability of the principal," or "This power of attorney shall become effective upon the disability of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s disability, the authority of the attorney in fact or agent is exercisable on behalf of the principal as provided notwithstanding later disability or incapacity of the principal at law or later uncertainty as to whether the principal is dead or alive. All acts done by the attorney in fact or agent pursuant to the power during any period of disability or incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or the principal’s guardian or heirs, devisees, and personal representative as if the principal were alive, competent, and not disabled. A principal may nominate, by a durable power of attorney, the guardian or limited guardian of his or her estate or person for consideration by the court if protective proceedings for the principal’s person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal’s most recent nomination in a durable power of attorney except for good cause or disqualification. If a guardian thereafter is appointed for the principal, the attorney in fact or agent, during the continuance of the appointment, shall account to the guardian rather than the principal. The guardian has the same power the principal would have had if the principal were not disabled or incompetent, to revoke, suspend or terminate all or any part of the power of attorney or agency. (2) Persons shall place reasonable reliance on any determination of disability or incompetence as provided in the instrument that specifies the time and the circumstances under which the power of attorney document becomes effective. (3)(a) A principal may authorize his or her attorney-infact to provide informed consent for health care decisions on the principal’s behalf. If a principal has appointed more than one agent with authority to make mental health treatment decisions in accordance with a directive under chapter 71.32 RCW, to the extent of any conflict, the most recently appointed agent shall be treated as the principal’s agent for mental health treatment decisions unless provided otherwise in either appointment. (b) Unless he or she is the spouse, or adult child or brother or sister of the principal, none of the following persons may act as the attorney-in-fact for the principal: Any of the principal’s physicians, the physicians’ employees, or the owners, administrators, or employees of the health care facility or long-term care facility as defined in RCW 43.190.020 where the principal resides or receives care. Except when the principal has consented in a mental health advance directive executed under chapter 71.32 RCW to inpatient admission or (2006 Ed.) Power of Attorney electroconvulsive therapy, this authorization is subject to the same limitations as those that apply to a guardian under RCW 11.92.043(5) (a) through (c). (4) A parent or guardian, by a properly executed power of attorney, may authorize an attorney in fact to make health care decisions on behalf of one or more of his or her children, or children for whom he or she is the legal guardian, who are under the age of majority as defined in RCW 26.28.015, to be effective if the child has no other parent or legal representative readily available and authorized to give such consent. (5) A principal may further nominate a guardian or guardians of the person, or of the estate or both, of a minor child, whether born at the time of making the durable power of attorney or afterwards, to continue during the disability of the principal, during the minority of the child or for any less time by including such a provision in his or her power of attorney. (6) The authority of any guardian of the person of any minor child shall supersede the authority of a designated attorney in fact to make health care decisions for the minor only after such designated guardian has been appointed by the court. (7) In the event a conflict between the provisions of a will nominating a testamentary guardian under the authority of RCW 11.88.080 and the nomination of a guardian under the authority of this statute, the most recent designation shall control. [2005 c 97 § 12; 2003 c 283 § 27; 1995 c 297 § 9; 1989 c 211 § 1; 1985 c 30 § 25. Prior: 1984 c 149 § 26; 1974 ex.s. c 117 § 52.] Severability—Part headings not law—2003 c 283: See RCW 71.32.900 and 71.32.901. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.94.020 11.94.020 Effect of death, disability, or incompetence of principal—Acts without knowledge. (1) The death, disability, or incompetence of any principal who has executed a power of attorney in writing other than a power as described by RCW 11.94.010, does not revoke or terminate the agency as to the attorney in fact, agent, or other person who, without actual knowledge of the death, disability, or incompetence of the principal, acts in good faith under the power of attorney or agency. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and the principal’s heirs, devisees, and personal representatives. (2) An affidavit, executed by the attorney in fact, or agent, stating that the attorney did not have, at the time of doing an act pursuant to the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death, disability, or incompetence, is, in the absence of a showing of fraud or bad faith, conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable. (3) This section shall not be construed to alter or affect any provision for revocation or termination contained in the (2006 Ed.) 11.94.040 power of attorney. [1985 c 30 § 26. Prior: 1984 c 149 § 27; 1977 ex.s. c 234 § 27; 1974 ex.s. c 117 § 53.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Application, effective date—Severability—1977 ex.s. c 234: See notes following RCW 11.20.020. Application, construction—Severability—Effective date—1974 ex.s. c 117: See RCW 11.02.080 and notes following. 11.94.030 11.94.030 Banking transactions. If a principal, pursuant to RCW 11.94.010 or 11.94.020, has given a designated attorney in fact or agent all the principal’s powers of absolute ownership or has used language to indicate that the attorney in fact or agent has all the powers the principal would have if alive and competent, then that language, notwithstanding chapter 30.22 RCW, includes the authority (1) to deposit and to make payments from any account in a financial institution, as defined in RCW 30.22.040, in the name of the principal, and (2) to enter any safe deposit box to which the principal has a right of access, subject to any contrary provision in any agreement governing the safe deposit box. [1985 c 30 § 27. Prior: 1984 c 149 § 28.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.94.040 11.94.040 Liability for reliance on power of attorney document. (1) Any person acting without negligence and in good faith in reasonable reliance on a power of attorney shall not incur any liability. (2) If the attorney in fact presents the power of attorney to a third person and requests the person to accept the attorney in fact’s authority to act for the principal, and also presents to the person an acknowledged affidavit or declaration signed under penalty of perjury in the form designated in RCW 9A.72.085, signed and dated contemporaneously with presenting the power of attorney, which meets the requirements of subsection (3) of this section, and the person accepting the power of attorney has examined the power of attorney and confirmed the identity of the attorney in fact, then the person’s reliance on the power of attorney is presumed to be without negligence and in good faith in reasonable reliance, which presumption may be rebutted by clear and convincing evidence that the person accepting the power of attorney knew or should have known that one or more of the material statements in the affidavit is untrue. It shall not be found that an organization knew or should have known of circumstances that would revoke or terminate the power of attorney or limit or modify the authority of the attorney in fact, unless the individual accepting the power of attorney on behalf of the organization knew or should have known of the circumstances. (3) An affidavit presented pursuant to subsection (2) of this section shall state that: (a) The person presenting himself or herself as the attorney in fact and signing the affidavit or declaration is the person so named in the power of attorney; (b) If the attorney in fact is named in the power of attorney as a successor attorney in fact, the circumstances or con[Title 11 RCW—page 91] 11.94.043 Title 11 RCW: Probate and Trust Law ditions stated in the power of attorney that would cause that person to become the acting attorney in fact have occurred; (c) To the best of the attorney in fact’s knowledge, the principal is still alive; (d) To the best of the attorney in fact’s knowledge, at the time the power of attorney was signed, the principal was competent to execute the document and was not under undue influence to sign the document; (e) All events necessary to making the power of attorney effective have occurred; (f) The attorney in fact does not have actual knowledge of the revocation, termination, limitation, or modification of the power of attorney or of the attorney in fact’s authority; (g) The attorney in fact does not have actual knowledge of the existence of other circumstances that would limit, modify, revoke, or terminate the power of attorney or the attorney in fact’s authority to take the proposed action; (h) If the attorney in fact was married to the principal at the time of execution of the power of attorney, then at the time of signing the affidavit or declaration, the marriage of the principal and the attorney in fact has not been dissolved or declared invalid; and (i) The attorney in fact is acting in good faith pursuant to the authority given under the power of attorney. (4) Unless the document contains a time limit, the length of time which has elapsed from its date of execution shall not prevent a party from reasonably relying on the document. (5) Unless the document contains a requirement that it be filed for record to be effective, a person may place reasonable reliance on it regardless of whether it is so filed. [2001 c 203 § 2; 1985 c 30 § 28. Prior: 1984 c 149 § 29.] power to make, amend, alter, or revoke the principal’s wills or codicils, and shall not have the power, unless specifically provided otherwise in the document: To make, amend, alter, or revoke any of the principal’s life insurance, annuity, or similar contract beneficiary designations, employee benefit plan beneficiary designations, trust agreements, registration of the principal’s securities in beneficiary form, payable on death or transfer on death beneficiary designations, designation of persons as joint tenants with right of survivorship with the principal with respect to any of the principal’s property, community property agreements, or any other provisions for nonprobate transfer at death contained in nontestamentary instruments described in RCW 11.02.091; to make any gifts of property owned by the principal; to make transfers of property to any trust (whether or not created by the principal) unless the trust benefits the principal alone and does not have dispositive provisions which are different from those which would have governed the property had it not been transferred into the trust, or to disclaim property. (2) Nothing in subsection (1) of this section prohibits an attorney in fact or agent from making any transfer of resources not prohibited under chapter 74.09 RCW when the transfer is for the purpose of qualifying the principal for medical assistance or the limited casualty program for the medically needy. [2001 c 203 § 12; 1989 c 87 § 1; 1985 c 30 § 29. Prior: 1984 c 149 § 30.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.94.043 Durable power of attorney—Revocation or termination. The durable power of attorney provided for under this chapter shall continue in effect until revoked or terminated by the principal, by a court-appointed guardian, or by court order. [1989 c 211 § 2.] Effective dates—1989 c 87: "(1) Sections 7 and 8 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1989. (2) Sections 1 through 5 of this act shall take effect October 1, 1989." [1989 c 87 § 9.] 11.94.043 11.94.046 Durable power of attorney—Validity. (1) A durable power of attorney executed pursuant to chapter 11.94 RCW before July 23, 1989, that specifically authorizes an attorney-in-fact to make decisions relating to the health care of the principal shall be deemed valid, except for the exemptions provided for in RCW 11.94.010(3). (2) Nothing in this chapter affects the validity of a decision made under a durable power of attorney executed pursuant to chapter 11.94 RCW before July 23, 1989. [1989 c 211 § 3.] 11.94.046 11.94.050 Attorney or agent granted principal’s powers—Powers to be specifically provided for—Transfer of resources by principal’s attorney or agent. (1) Although a designated attorney in fact or agent has all powers of absolute ownership of the principal, or the document has language to indicate that the attorney in fact or agent shall have all the powers the principal would have if alive and competent, the attorney in fact or agent shall not have the 11.94.050 [Title 11 RCW—page 92] 11.94.060 11.94.060 Conveyance or encumbrance of homestead. If a principal, pursuant to RCW 11.94.010 or 11.94.020, has given a designated attorney in fact or agent all the principal’s powers of absolute ownership or has used language to indicate that the attorney in fact or agent has all the powers the principal would have if alive and competent, then these powers include the right to convey or encumber the principal’s homestead. [1985 c 30 § 30. Prior: 1984 c 149 § 31.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.94.070 11.94.070 Limitations on powers to benefit attorneys-in-fact. (1) The restrictions in RCW 11.95.100 through 11.95.150 on the power of a person holding a power of appointment apply to attorneys-in-fact holding the power to appoint to or for the benefit of the powerholder. (2) This section applies retroactively to July 25, 1993. [1994 c 221 § 67.] Effective dates—1994 c 221: "(1) Except as provided in section 74 of this act, sections 1 through 72 of this act shall take effect January 1, 1995. (2) *Section 3 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its (2006 Ed.) Power of Attorney existing public institutions, and shall take effect immediately [April 1, 1994]." [1994 c 221 § 75.] *Reviser’s note: "Section 3 of this act" is erroneous. This reference was apparently intended to be to section 67. The error arose in the renumbering of sections in the engrossing of amendments to Substitute House Bill No. 2270 (1994 c 221). 11.94.080 11.94.080 Termination of marriage. (1) An appointment of a principal’s spouse as attorney in fact, including appointment as successor or coattorney in fact, under a power of attorney shall be revoked upon entry of a decree of dissolution or legal separation or declaration of invalidity of the marriage of the principal and the attorney in fact, unless the power of attorney or the decree provides otherwise. The effect of this revocation shall be as if the spouse resigned as attorney in fact, or if named as successor attorney in fact, renounced the appointment, as of the date of entry of the decree or declaration, and the power of attorney shall otherwise remain in effect with respect to appointments of other persons as attorney in fact for the principal or procedures prescribed in the power of attorney to appoint other persons, and any terms relating to service by persons as attorney in fact. (2) This section applies to all decrees of dissolution and declarations of invalidity of marriage entered after July 22, 2001. [2001 c 203 § 1.] 11.94.090 11.94.090 Court petition. (1) A person designated in RCW 11.94.100 may file a petition requesting that the court: (a) Determine whether the power of attorney is in effect or has terminated; (b) Compel the attorney in fact to submit the attorney in fact’s accounts or report the attorney in fact’s acts as attorney in fact to the principal, the spouse of the principal, the guardian of the person or the estate of the principal, or to any other person required by the court in its discretion, if the attorney in fact has failed to submit an accounting or report within sixty days after written request from the person filing the petition, however, a government agency charged with the protection of vulnerable adults may file a petition upon the attorney in fact’s refusal or failure to submit an accounting upon written request and shall not be required to wait sixty days; (c) Ratify past acts or approve proposed acts of the attorney in fact; (d) Order the attorney in fact to exercise or refrain from exercising authority in a power of attorney in a particular manner or for a particular purpose; (e) Modify the authority of an attorney in fact under a power of attorney; (f) Remove the attorney in fact on a determination by the court of both of the following: (i) The attorney in fact has violated or is unfit to perform the fiduciary duties under the power of attorney; and (ii) The removal of the attorney in fact is in the best interest of the principal; (g) Approve the resignation of the attorney in fact and approve the final accountings of the resigning attorney in fact if submitted, subject to any orders the court determines are necessary to protect the principal’s interests; (h) Confirm the authority of a successor attorney in fact to act under a power of attorney upon removal or resignation of the previous attorney in fact; (2006 Ed.) 11.94.110 (i) Compel a third person to honor the authority of an attorney in fact, provided that a third person may not be compelled to honor the agent’s authority if the principal could not compel the third person to act in the same circumstances; (j) Order the attorney in fact to furnish a bond in an amount the court determines to be appropriate. (2) The petition shall contain a statement identifying the principal’s known immediate family members, and any other persons known to petitioner to be interested in the principal’s welfare or the principal’s estate, stating which of said persons have an interest in the action requested in the petition and explaining the determination of who is interested in the petition. [2001 c 203 § 3.] 11.94.100 11.94.100 Persons allowed to file court petition. (1) A petition may be filed under RCW 11.94.090 by any of the following persons: (a) The attorney in fact; (b) The principal; (c) The spouse of the principal; (d) The guardian of the estate or person of the principal; or (e) Any other interested person, as long as the person demonstrates to the court’s satisfaction that the person is interested in the welfare of the principal and has a good faith belief that the court’s intervention is necessary, and that the principal is incapacitated at the time of filing the petition or otherwise unable to protect his or her own interests. (2) Notwithstanding RCW 11.94.080, the principal may specify in the power of attorney by name certain persons who shall have no authority to bring a petition under RCW 11.94.090 with respect to the power of attorney. This provision is enforceable: (a) If the person so named is not at the time of filing the petition the guardian of the principal; (b) If at the time of signing the power of attorney the principal was represented by an attorney who advised the principal regarding the power of attorney and who signed a certificate at the time of execution of the power of attorney, stating that the attorney has advised the principal concerning his or her rights, the applicable law, and the effect and consequences of executing the power of attorney; or (c) If (a) and (b) of this subsection do not apply, unless the person so named can establish that the principal was unduly influenced by another or under mistaken beliefs when excluding the person from the petition process, or unless the person named is a government agency charged with protection of vulnerable adults. [2001 c 203 § 4.] 11.94.110 11.94.110 Ruling on court petition. In ruling on a petition filed under RCW 11.94.090 and ordering any relief, the court must consider the best interests of the principal and will order relief that is the least restrictive to the exercise of the power of attorney while still adequate in the court’s view to serve the principal’s best interests. Upon entry of an order ruling on a petition, the court’s oversight of the attorney in fact’s actions and of the operation of the power of attorney ends unless another petition is filed under this chapter or unless the order specifies further court involvement that is [Title 11 RCW—page 93] 11.94.120 Title 11 RCW: Probate and Trust Law necessary for a resolution of the issues raised in the petition. [2001 c 203 § 5.] 11.94.120 11.94.120 Award of costs on court petition. In any proceeding commenced by the filing of a petition under RCW 11.94.090 by a person other than the attorney in fact, the court may in its discretion award costs, including reasonable attorneys’ fees, to any person participating in the proceedings from any other person participating in the proceedings, or from the assets of the principal, as the court determines to be equitable. In determining what is equitable in making the award, the court must consider whether the petition was filed without reasonable cause, and order costs and fees paid by the attorney in fact individually only if the court determines that the attorney in fact has clearly violated his or her fiduciary duties or has refused without justification to cooperate with the principal or the principal’s guardian or personal representative. In a proceeding to compel a third party to accept a power of attorney, the court may order costs, including reasonable attorneys’ fees, to be paid by the third party only if the court determines that the third party did not have a good faith concern that the attorney in fact’s exercise of authority would be improper. To the extent this section is inconsistent with RCW 11.96A.150, this section controls the award of costs and attorneys’ fees in proceedings brought under RCW 11.94.090. [2001 c 203 § 6.] 11.94.130 11.94.130 Applicability of dispute resolution provisions to court petition. The provisions of chapter 11.96A RCW, except for RCW 11.96A.260 through 11.96A.320, are applicable to proceedings commenced by the filing of a petition under RCW 11.94.090. [2001 c 203 § 7.] agent to make mental health treatment decisions pursuant to a mental health advance directive under chapter 71.32 RCW shall be compensated for the performance of his or her duties as an agent to make mental health treatment decisions. This section does not prohibit an agent from receiving reimbursement for reasonable expenses incurred in the performance of his or her duties under chapter 71.32 RCW. [2003 c 283 § 28.] Severability—Part headings not law—2003 c 283: See RCW 71.32.900 and 71.32.901. 11.94.900 11.94.900 Application of 1984 c 149 §§ 26-31 as of January 1, 1985. Sections 26 through 31, chapter 149, Laws of 1984 apply as of January 1, 1985, to all existing or subsequently executed instruments but shall not apply to any instrument the terms of which expressly or impliedly make those sections inapplicable. [1985 c 30 § 140.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Chapter 11.95 Sections 11.95.010 11.95.020 11.95.030 11.95.040 11.95.060 11.95.070 11.95.100 11.95.110 11.95.120 11.94.140 11.94.140 Notice of hearing on court petition. (1) The following persons are entitled to notice of hearing on any petition under RCW 11.94.090: (a) The principal; (b) The principal’s spouse; (c) The attorney in fact; (d) The guardian of the estate or person of the principal; (e) Any other person identified in the petition as being interested in the action requested in the petition, or identified by the court as having a right to notice of the hearing. If a person would be excluded from bringing a petition under RCW 11.94.100(2), then that person is not entitled to notice of the hearing. (2) Notwithstanding subsection (1) of this section, if the whereabouts of the principal are unknown or the principal is otherwise unavailable to receive notice, the court may waive the requirement of notice to the principal, and if the principal’s spouse is similarly unavailable to receive notice, the court may waive the requirement of notice to the principal’s spouse. (3) Notice must be given as required under chapter 11.96A RCW, except that the parties entitled to notice shall be determined under this section. [2001 c 203 § 8.] 11.94.150 11.94.150 Mental health treatment decisions—Compensation of agent prohibited—Reimbursement of expenses allowed. No person appointed by a principal as an [Title 11 RCW—page 94] Chapter 11.95 RCW POWERS OF APPOINTMENT 11.95.130 11.95.140 11.95.150 11.95.160 Releases. Releases—Partial releases. Releases—Delivery. Releases—Effect of RCW 11.95.010 through 11.95.050 on prior releases. Exercise of powers of appointment. Application of chapter—Application of 1984 c 149. Exercise of power in favor of holder—Limitations. Exercise of power in favor of holder—Disregard of provision conferring absolute or similar power—Power of removal. Exercise of power in favor of holder—Income under marital deduction—Spousal power of appointment. Exercise of power in favor of holder—Inference of law. Exercise of power in favor of holder—Applicability. Exercise of power in favor of holder—Cause of action. Lapse of a power—Intent not to exercise a power—Treatment. Trust provisions may relieve trustee from duty, restriction, or liability imposed by statute: RCW 11.97.010. 11.95.010 11.95.010 Releases. Any power exercisable by deed, will, or otherwise, other than a power in trust which is imperative, is releasable, either with or without consideration, by written instrument signed by the holder and delivered as hereinafter provided. [1985 c 30 § 31. Prior: 1984 c 149 § 33; 1955 c 160 § 1. Formerly RCW 64.24.010.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.95.020 11.95.020 Releases—Partial releases. A power which is releasable may be released with respect to the whole or any part of the property subject to the power and may also be released in such manner as to reduce or limit the persons or objects, or classes of persons or objects, in whose favor the powers would otherwise be exercisable. A release of a power shall not be deemed to make imperative a power which was not imperative prior to the release, unless the instrument of release expressly so provides. [1985 c 30 § 32. Prior: 1984 c 149 § 34; 1955 c 160 § 2. Formerly RCW 64.24.020.] (2006 Ed.) Powers of Appointment Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.95.030 11.95.030 Releases—Delivery. (1) In order to be effective as a release of a power, the instrument of release must be delivered to any trustee or co-trustee of the property, and the person holding the property, to which the power relates. (2) In addition to the delivery required under subsection (1) of this section, a copy of the instrument of release may be published in a legal newspaper of general circulation in the county in which all or the greatest portion of the property is located at least once within thirty days of the delivery required under subsection (1) of this section, which shall from the time of publication constitute notice of the release to all other persons. [1995 c 91 § 1; 1985 c 30 § 33. Prior: 1984 c 149 § 35; 1955 c 160 § 3. Formerly RCW 64.24.030.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.95.040 11.95.040 Releases—Effect of RCW 11.95.010 through *11.95.050 on prior releases. The enactment of RCW 11.95.010 through *11.95.050 shall not be construed to impair the validity of any release heretofore made which was otherwise valid when executed. [1985 c 30 § 34. Prior: 1984 c 149 § 36; 1955 c 160 § 4. Formerly RCW 64.24.040.] *Reviser’s note: RCW 11.95.050 was repealed by 1995 c 91 § 2. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.95.060 11.95.060 Exercise of powers of appointment. (1) The holder of a testamentary or lifetime power of appointment may exercise the power by appointing property outright or in trust and may grant further powers to appoint. The powerholder may designate the trustee, powers, situs, and governing law for property appointed in trust. (2) The holder of a testamentary power may exercise the power only by the powerholder’s last will, signed before or after the effective date of the instrument granting the power, that manifests an intent to exercise the power. Unless the person holding the property subject to the power has within six months after the holder’s death received written notice that the powerholder’s last will has been admitted to probate or an adjudication of testacy has been entered with respect to the powerholder’s last will in some jurisdiction, the person may, until the time the notice is received, transfer the property subject to appointment on the basis that the power has not been effectively exercised. The person holding the property shall not incur liability to anyone for transfers so made if the person had no knowledge that the power had been exercised and had made a reasonable effort to determine if the power had been exercised. A testamentary residuary clause which does not manifest an intent to exercise a power is not deemed the exercise of a testamentary power. (3) The holder of a lifetime power of appointment shall exercise that power only by delivering a written instrument, (2006 Ed.) 11.95.110 signed by the holder, to the person holding the property subject to the power. If the holder conditions the distribution of the appointed property on a future event, the written instrument may be revoked in the same manner at any time before the property becomes distributable upon occurrence of the event specified, except that any contrary provisions in the written instrument exercising the power, including provisions stating the exercise of the power is irrevocable, shall be controlling. If the written instrument is revoked, the holder of the power may reappoint the property that was appointed in the instrument. In the absence of signing and delivery of such a written instrument, a lifetime power is not deemed exercised. [1989 c 33 § 1; 1985 c 30 § 36. Prior: 1984 c 149 § 38.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.95.070 11.95.070 Application of chapter—Application of 1984 c 149. (1) This chapter does not apply to any power as trustee described in and subject to RCW 11.98.019. (2) This chapter does not apply to the powers of a personal representative of the estate of a decedent when acting in the capacity of personal representative. (3) Sections 33 through 36, 38, and 39, chapter 149, Laws of 1984 and the 1984 recodification of RCW 64.24.050 as *RCW 11.95.050 apply as of January 1, 1985, to all existing or subsequently created powers of appointment, but not to any power of appointment that expressly or by necessary implication makes those 1984 changes inapplicable. [2006 c 360 § 8; 1985 c 30 § 37. Prior: 1984 c 149 § 39.] *Reviser’s note: RCW 11.95.050 was repealed by 1995 c 91 § 2. Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.95.100 11.95.100 Exercise of power in favor of holder—Limitations. If the standard governing the exercise of a lifetime or a testamentary power of appointment does not clearly indicate that a broader or more restrictive power of appointment is intended, the holder of the power of appointment may exercise it in his or her favor only for his or her health, education, support, or maintenance as described in section 2041 or 2514 of the Internal Revenue Code and the applicable regulations adopted under the section. [1993 c 339 § 7.] Severability—1993 c 339: See note following RCW 11.98.200. 11.95.110 11.95.110 Exercise of power in favor of holder—Disregard of provision conferring absolute or similar power—Power of removal. If the holder of a lifetime or testamentary power of appointment may exercise the power in his or her own favor only for his or her health, education, support, or maintenance as described in section 2041 or 2514 of the Internal Revenue Code and the applicable regulations adopted under that section, then a provision of the instrument creating the power of appointment that purports to confer "absolute," "sole," "complete," "conclusive," or a similar discretion shall be disregarded in the exercise of that power in [Title 11 RCW—page 95] 11.95.120 Title 11 RCW: Probate and Trust Law favor of the holder, and that power may then only be exercised reasonably and in accordance with the ascertainable standards set forth in RCW 11.95.100 and this section. A person who has the right to remove or replace a trustee does not possess nor may the person be deemed to possess, by virtue of having that right, the power of the trustee who is subject to removal or to replacement. [1993 c 339 § 8.] Severability—1993 c 339: See note following RCW 11.98.200. 11.95.120 11.95.120 Exercise of power in favor of holder— Income under marital deduction—Spousal power of appointment. Notwithstanding any provision of RCW 11.95.100 through 11.95.150 seemingly to the contrary, RCW 11.95.100 through 11.95.150 do not limit or restrict the distribution of income of a trust that qualifies or that otherwise could have qualified for the marital deduction under section 2056 or 2523 of the Internal Revenue Code, those Internal Revenue Code sections requiring that all income be distributed to the spouse of the decedent or of the trustor at least annually, whether or not an election was in fact made under section 2056(b)(7) or 2523(f) of the Internal Revenue Code. Further, RCW 11.95.100 through 11.95.150 do not limit or restrict the power of a spouse of the trustor or the spouse of the decedent to exercise a power of appointment described in section 2056(b)(5) or 2523(e) of the Internal Revenue Code with respect to that portion of the trust that could otherwise qualify for the marital deduction under either of those Internal Revenue Code sections. [1993 c 339 § 9.] Severability—1993 c 339: See note following RCW 11.98.200. 11.95.130 11.95.130 Exercise of power in favor of holder— Inference of law. RCW 11.95.100 through 11.95.150 do not raise an inference that the law of this state prior to July 25, 1993, was different than contained in RCW 11.95.100 through 11.95.150. [1993 c 339 § 10.] Severability—1993 c 339: See note following RCW 11.98.200. 11.95.140 11.95.140 Exercise of power in favor of holder— Applicability. (1)(a) RCW 11.95.100 and 11.95.110 respectively apply to a power of appointment created: (i) Under a will, codicil, trust agreement, or declaration of trust, deed, power of attorney, or other instrument executed after July 25, 1993, unless the terms of the instrument refer specifically to RCW 11.95.100 or 11.95.110 respectively and provide expressly to the contrary; or (ii) Under a testamentary trust, trust agreement, or declaration of trust executed before July 25, 1993, unless: (A) The trust is revoked, or amended to provide otherwise, and the terms of any amendment specifically refer to RCW 11.95.100 or 11.95.110, respectively, and provide expressly to the contrary; (B) All parties in interest, as defined in RCW 11.98.240(3), elect affirmatively, in the manner prescribed in RCW 11.98.240(4), not to be subject to the application of this subsection. The election must be made by the later of September 1, 2000, or three years after the date on which the trust becomes irrevocable; or (C) A person entitled to judicial proceedings for a declaration of rights or legal relations under RCW 11.96A.080 obtains a judicial determination that the application of this [Title 11 RCW—page 96] subsection (1)(a)(ii) to the trust is inconsistent with the provisions or purposes of the will or trust. (b) Notwithstanding (a) of this subsection, for the purposes of this section a codicil to a will, an amendment to a trust, or an amendment to another instrument that created the power of appointment in question shall not be deemed to cause that instrument to be executed after July 25, 1993, unless the codicil or amendment clearly shows an intent to have RCW 11.95.100 or 11.95.110 apply. (2) Notwithstanding subsection (1) of this section, RCW 11.95.100 through 11.95.150 shall apply to a power of appointment created under a will, codicil, trust agreement, or declaration of trust, deed, power of attorney, or other instrument executed prior to July 25, 1993, if the person who created the power of appointment had on July 25, 1993, the power to revoke, amend, or modify the instrument creating the power of appointment, unless: (a) The terms of the instrument specifically refer to RCW 11.95.100 or 11.95.110 respectively and provide expressly to the contrary; or (b) The person creating the power of appointment was not competent, on July 25, 1993, to revoke, amend, or modify the instrument creating the power of appointment and did not regain his or her competence to revoke, amend, or modify the instrument creating the power of appointment on or before his or her death or before the time at which the instrument could no longer be revoked, amended, or modified by the person. [1999 c 42 § 617; 1997 c 252 § 74; 1993 c 339 § 11.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Severability—1993 c 339: See note following RCW 11.98.200. 11.95.150 11.95.150 Exercise of power in favor of holder— Cause of action. RCW 11.95.100 through 11.95.140 neither create a new cause of action nor impair an existing cause of action that, in either case, relates to a power that was exercised before July 25, 1993. RCW 11.95.100 through 11.95.140 neither create a new cause of action nor impair an existing cause of action that in either case relates to a power proscribed, limited, or qualified under RCW 11.95.100 through 11.95.140. [1993 c 339 § 12.] Severability—1993 c 339: See note following RCW 11.98.200. 11.95.160 11.95.160 Lapse of a power—Intent not to exercise a power—Treatment. A person shall not be treated as having made a disposition in trust for the use of that individual by reason of a lapse of a power of withdrawal over the income or corpus of a trust created by another person. For this purpose, notification to the trustee of the trust of an intent not to exercise the power of withdrawal shall not be treated as a release of the power of withdrawal, but shall be treated as a lapse of the power. [2006 c 360 § 12.] Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. Chapter 11.96A RCW TRUST AND ESTATE DISPUTE RESOLUTION Chapter 11.96A Sections 11.96A.010 Purpose. (2006 Ed.) Trust and Estate Dispute Resolution 11.96A.020 11.96A.030 11.96A.040 11.96A.050 11.96A.060 11.96A.070 11.96A.080 11.96A.090 11.96A.100 11.96A.110 11.96A.115 11.96A.120 11.96A.130 11.96A.140 11.96A.150 11.96A.160 11.96A.170 11.96A.180 11.96A.190 11.96A.200 11.96A.210 11.96A.220 11.96A.230 11.96A.240 11.96A.250 11.96A.260 11.96A.270 11.96A.280 11.96A.290 11.96A.300 11.96A.310 11.96A.320 11.96A.900 11.96A.901 11.96A.902 General power of courts—Intent—Plenary power of the court. Definitions. Original jurisdiction in probate and trust matters—Powers of court. Venue in proceedings involving probate or trust matters. Exercise of powers—Orders, writs, process, etc. Statutes of limitation. Persons entitled to judicial proceedings for declaration of rights or legal relations. Judicial proceedings. Procedural rules. Notice in judicial proceedings under this title requiring notice. Discovery. Application of doctrine of virtual representation. Special notice. Waiver of notice. Cost—Attorneys’ fees. Appointment of guardian ad litem. Trial by jury. Execution on judgments. Execution upon trust income or vested remainder—Permitted, when. Appellate review. Purpose. Binding agreement. Entry of agreement with court—Effect. Judicial approval of agreement. Special representative. Findings—Intent. Intent—Parties can agree otherwise. Scope. Superior court—Venue. Mediation procedure. Arbitration procedure. Petition for order compelling compliance. Short title. Captions not law—1999 c 42. Effective date—1999 c 42. 11.96A.010 11.96A.010 Purpose. The overall purpose of this chapter is to set forth generally applicable statutory provisions for the resolution of disputes and other matters involving trusts and estates in a single chapter under Title 11 RCW. The provisions are intended to provide nonjudicial methods for the resolution of matters, such as mediation, arbitration, and agreement. The [This] chapter also provides for judicial resolution of disputes if other methods are unsuccessful. [1999 c 42 § 102.] 11.96A.020 11.96A.020 General power of courts—Intent—Plenary power of the court. (1) It is the intent of the legislature that the courts shall have full and ample power and authority under this title to administer and settle: (a) All matters concerning the estates and assets of incapacitated, missing, and deceased persons, including matters involving nonprobate assets and powers of attorney, in accordance with this title; and (b) All trusts and trust matters. (2) If this title should in any case or under any circumstance be inapplicable, insufficient, or doubtful with reference to the administration and settlement of the matters listed in subsection (1) of this section, the court nevertheless has full power and authority to proceed with such administration and settlement in any manner and way that to the court seems right and proper, all to the end that the matters be expeditiously administered and settled by the court. [1999 c 42 § 103.] (2006 Ed.) 11.96A.030 11.96A.030 11.96A.030 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Matter" includes any issue, question, or dispute involving: (a) The determination of any class of creditors, devisees, legatees, heirs, next of kin, or other persons interested in an estate, trust, nonprobate asset, or with respect to any other asset or property interest passing at death; (b) The direction of a personal representative or trustee to do or to abstain from doing any act in a fiduciary capacity; (c) The determination of any question arising in the administration of an estate or trust, or with respect to any nonprobate asset, or with respect to any other asset or property interest passing at death, that may include, without limitation, questions relating to: (i) The construction of wills, trusts, community property agreements, and other writings; (ii) a change of personal representative or trustee; (iii) a change of the situs of a trust; (iv) an accounting from a personal representative or trustee; or (v) the determination of fees for a personal representative or trustee; (d) The grant to a personal representative or trustee of any necessary or desirable power not otherwise granted in the governing instrument or given by law; (e) The amendment, reformation, or conformation of a will or a trust instrument to comply with statutes and regulations of the United States internal revenue service in order to achieve qualification for deductions, elections, and other tax requirements, including the qualification of any gift thereunder for the benefit of a surviving spouse who is not a citizen of the United States for the estate tax marital deduction permitted by federal law, including the addition of mandatory governing instrument requirements for a qualified domestic trust under section 2056A of the internal revenue code, the qualification of any gift thereunder as a qualified conservation easement as permitted by federal law, or the qualification of any gift for the charitable estate tax deduction permitted by federal law, including the addition of mandatory governing instrument requirements for a charitable remainder trust; and (f) With respect to any nonprobate asset, or with respect to any other asset or property interest passing at death, including joint tenancy property, property subject to a community property agreement, or assets subject to a pay on death or transfer on death designation: (i) The ascertaining of any class of creditors or others for purposes of chapter 11.18 or 11.42 RCW; (ii) The ordering of a qualified person, the notice agent, or resident agent, as those terms are defined in chapter 11.42 RCW, or any combination of them, to do or abstain from doing any particular act with respect to a nonprobate asset; (iii) The ordering of a custodian of any of the decedent’s records relating to a nonprobate asset to do or abstain from doing any particular act with respect to those records; (iv) The determination of any question arising in the administration under chapter 11.18 or 11.42 RCW of a nonprobate asset; (v) The determination of any questions relating to the abatement, rights of creditors, or other matter relating to the administration, settlement, or final disposition of a nonprobate asset under this title; [Title 11 RCW—page 97] 11.96A.040 Title 11 RCW: Probate and Trust Law (vi) The resolution of any matter referencing this chapter, including a determination of any questions relating to the ownership or distribution of an individual retirement account on the death of the spouse of the account holder as contemplated by RCW 6.15.020(6); (vii) The resolution of any other matter that could affect the nonprobate asset. (2) "Notice agent" has the meanings given in RCW 11.42.010. (3) "Nonprobate assets" has the meaning given in RCW 11.02.005. (4) "Party" or "parties" means each of the following persons who has an interest in the subject of the particular proceeding and whose name and address are known to, or are reasonably ascertainable by, the petitioner: (a) The trustor if living; (b) The trustee; (c) The personal representative; (d) An heir; (e) A beneficiary, including devisees, legatees, and trust beneficiaries; (f) The surviving spouse of a decedent with respect to his or her interest in the decedent’s property; (g) A guardian ad litem; (h) A creditor; (i) Any other person who has an interest in the subject of the particular proceeding; (j) The attorney general if required under RCW 11.110.120; (k) Any duly appointed and acting legal representative of a party such as a guardian, special representative, or attorney in fact; (l) Where applicable, the virtual representative of any person described in this subsection the giving of notice to whom would meet notice requirements as provided in RCW 11.96A.120; (m) Any notice agent, resident agent, or a qualified person, as those terms are defined in chapter 11.42 RCW; and (n) The owner or the personal representative of the estate of the deceased owner of the nonprobate asset that is the subject of the particular proceeding, if the subject of the particular proceeding relates to the beneficiary’s liability to a decedent’s estate or creditors under RCW 11.18.200. (5) "Persons interested in the estate or trust" means the trustor, if living, all persons beneficially interested in the estate or trust, persons holding powers over the trust or estate assets, the attorney general in the case of any charitable trust where the attorney general would be a necessary party to judicial proceedings concerning the trust, and any personal representative or trustee of the estate or trust. (6) "Principal place of administration of the trust" means the trustee’s usual place of business where the day-to-day records pertaining to the trust are kept, or the trustee’s residence if the trustee has no such place of business. (7) The "situs" of a trust means the place where the principal place of administration of the trust is located, unless otherwise provided in the instrument creating the trust. (8) "Trustee" means any acting and qualified trustee of the trust. [Title 11 RCW—page 98] (9) "Representative" and other similar terms refer to a person who virtually represents another under RCW 11.96A.120. (10) "Citation" or "cite" and other similar terms, when required of a person interested in the estate or trust or a party to a petition, means to give notice as required under RCW 11.96A.100. "Citation" or "cite" and other similar terms, when required of the court, means to order, as authorized under RCW 11.96A.020 and 11.96A.060, and as authorized by law. [2006 c 360 § 10; 2002 c 66 § 2; 1999 c 42 § 104.] Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. 11.96A.040 Original jurisdiction in probate and trust matters—Powers of court. (1) The superior court of every county has original subject matter jurisdiction over the probate of wills and the administration of estates of incapacitated, missing, and deceased individuals in all instances, including without limitation: (a) When a resident of the state dies; (b) When a nonresident of the state dies in the state; or (c) When a nonresident of the state dies outside the state. (2) The superior court of every county has original subject matter jurisdiction over trusts and all matters relating to trusts. (3) The superior courts may: Probate or refuse to probate wills, appoint personal representatives, administer and settle the affairs and the estates of incapacitated, missing, or deceased individuals including but not limited to decedents’ nonprobate assets; administer and settle matters that relate to nonprobate assets and arise under chapter 11.18 or 11.42 RCW; administer and settle all matters relating to trusts; administer and settle matters that relate to powers of attorney; award processes and cause to come before them all persons whom the courts deem it necessary to examine; order and cause to be issued all such writs and any other orders as are proper or necessary; and do all other things proper or incident to the exercise of jurisdiction under this section. (4) The subject matter jurisdiction of the superior court applies without regard to venue. A proceeding or action by or before a superior court is not defective or invalid because of the selected venue if the court has jurisdiction of the subject matter of the action. [2001 c 203 § 9; 1999 c 42 § 201.] 11.96A.040 11.96A.050 Venue in proceedings involving probate or trust matters. (1) Venue for proceedings pertaining to trusts shall be: (a) For testamentary trusts established under wills probated in the state of Washington, in the superior court of the county where letters testamentary were granted to a personal representative of the estate subject to the will or, in the alternative, the superior court of the county of the situs of the trust; and (b) For all other trusts, in the superior court of the county in which the situs of the trust is located, or, if the situs is not located in the state of Washington, in any county. (2) Venue for proceedings subject to chapter 11.88 or 11.92 RCW shall be determined under the provisions of those chapters. (3) Venue for proceedings pertaining to the probate of wills, the administration and disposition of a decedent’s prop11.96A.050 (2006 Ed.) Trust and Estate Dispute Resolution erty, including nonprobate assets, and any other matter not identified in subsection (1) or (2) of this section, may be in any county in the state of Washington. A party to a proceeding may request that venue be changed if the request is made within four months of the mailing of the notice of appointment and pendency of probate required by RCW 11.28.237, and except for good cause shown, venue must be moved as follows: (a) If the decedent was a resident of the state of Washington at the time of death, to the county of the decedent’s residence; or (b) If the decedent was not a resident of the state of Washington at the time of death, to any of the following: (i) Any county in which any part of the probate estate might be; (ii) If there are no probate assets, any county where any nonprobate asset might be; or (iii) The county in which the decedent died. (4) Once letters testamentary or of administration have been granted in the state of Washington, all orders, settlements, trials, and other proceedings under this title shall be had or made in the county in which such letters have been granted unless venue is moved as provided in subsection (2) of this section. (5) Venue for proceedings pertaining to powers of attorney shall be in the superior court of the county of the principal’s residence, except for good cause shown. (6) If venue is moved, an action taken before venue is changed is not invalid because of the venue. (7) Any request to change venue that is made more than four months after the commencement of the action may be granted in the discretion of the court. [2001 c 203 § 10; 1999 c 42 § 202.] 11.96A.060 11.96A.060 Exercise of powers—Orders, writs, process, etc. The court may make, issue, and cause to be filed or served, any and all manner and kinds of orders, judgments, citations, notices, summons, and other writs and processes that might be considered proper or necessary in the exercise of the jurisdiction or powers given or intended to be given by this title. [1999 c 42 § 203.] 11.96A.070 11.96A.070 Statutes of limitation. (1)(a) An action against the trustee of an express trust for a breach of fiduciary duty must be brought within three years from the earlier of: (i) The time the alleged breach was discovered or reasonably should have been discovered; (ii) the discharge of a trustee from the trust as provided in RCW 11.98.041 or by agreement of the parties under RCW 11.96A.220; or (iii) the time of termination of the trust or the trustee’s repudiation of the trust. (b) The provisions of (a) of this subsection apply to all express trusts, no matter when created, however it shall not apply to express trusts created before June 10, 1959, until the date that is three years after January 1, 2000. (c) For purposes of this section, "express trust" does not include resulting trusts, constructive trusts, business trusts in which certificates of beneficial interest are issued to the beneficiary, investment trusts, voting trusts, trusts in the nature of mortgages or pledges, trusts created by the judgment or (2006 Ed.) 11.96A.080 decree of a court not sitting in probate, liquidation trusts, or trusts for the sole purpose of paying dividends, interest, interest coupons, salaries, wages, pensions, or profits, trusts created in deposits in any financial institution under chapter 30.22 RCW, unless any such trust that is created in writing specifically incorporates this chapter in whole or in part. (2) Except as provided in RCW 11.96A.250 with respect to special representatives, an action against a personal representative for alleged breach of fiduciary duty by an heir, legatee, or other interested party must be brought before discharge of the personal representative. (3) The legislature hereby confirms the long standing public policy of promoting the prompt and efficient resolution of matters involving trusts and estates. To further implement this policy, the legislature adopts the following statutory provisions in order to: (a) Encourage and facilitate the participation of qualified individuals as special representatives; (b) serve the public’s interest in having a prompt and efficient resolution of matters involving trusts or estates; and (c) promote complete and final resolution of proceedings involving trusts and estates. (i) Actions against a special representative must be brought before the earlier of: (A) Three years from the discharge of the special representative as provided in RCW 11.96A.250; or (B) The entry of an order by a court of competent jurisdiction under RCW 11.96A.240 approving the written agreement executed by all interested parties in accord with the provisions of RCW 11.96A.220. (ii) If a legal action is commenced against the special representative after the expiration of the period during which claims may be brought against the special representative as provided in (c)(i) of this subsection, alleging property damage, property loss, or other civil liability caused by or resulting from an alleged act or omission of the special representative arising out of or by reason of the special representative’s duties or actions as special representative, the special representative shall be indemnified: (A) From the assets held in the trust or comprising the estate involved in the dispute; and (B) by the persons bringing the legal action, for all expenses, attorneys’ fees, judgments, settlements, decrees, or amounts due and owing or paid in satisfaction of or incurred in the defense of the legal action. To the extent possible, indemnification must be made first by the persons bringing the legal action, second from that portion of the trust or estate that is held for the benefit of, or has been distributed or applied to, the persons bringing the legal action, and third from the other assets held in the trust or comprising the estate involved in the dispute. (4) The tolling provisions of RCW 4.16.190 apply to this chapter except that the running of a statute of limitations under subsection (1) or (2) of this section, or any other applicable statute of limitations for any matter that is the subject of dispute under this chapter, is not tolled as to an individual who had a guardian ad litem, limited or general guardian of the estate, or a special representative to represent the person during the probate or dispute resolution proceeding. [1999 c 42 § 204.] 11.96A.080 Persons entitled to judicial proceedings for declaration of rights or legal relations. (1) Subject to 11.96A.080 [Title 11 RCW—page 99] 11.96A.090 Title 11 RCW: Probate and Trust Law the provisions of RCW 11.96A.260 through 11.96A.320, any party may have a judicial proceeding for the declaration of rights or legal relations with respect to any matter, as defined by RCW 11.96A.030; the resolution of any other case or controversy that arises under the Revised Code of Washington and references judicial proceedings under this title; or the determination of the persons entitled to notice under RCW 11.96A.110 or 11.96A.120. (2) The provisions of this chapter apply to disputes arising in connection with estates of incapacitated persons unless otherwise covered by chapters 11.88 and 11.92 RCW. The provisions of this chapter shall not supersede, but shall supplement, any otherwise applicable provisions and procedures contained in this title, including without limitation those contained in chapter 11.20, 11.24, 11.28, 11.40, 11.42, or 11.56 RCW. The provisions of this chapter shall not apply to actions for wrongful death under chapter 4.20 RCW. [1999 c 42 § 301.] 11.96A.090 11.96A.090 Judicial proceedings. (1) A judicial proceeding under this title is a special proceeding under the civil rules of court. The provisions of this title governing such actions control over any inconsistent provision of the civil rules. (2) A judicial proceeding under this title may be commenced as a new action or as an action incidental to an existing judicial proceeding relating to the same trust or estate or nonprobate asset. (3) Once commenced, the action may be consolidated with an existing proceeding or converted to a separate action upon the motion of a party for good cause shown, or by the court on its own motion. (4) The procedural rules of court apply to judicial proceedings under this title only to the extent that they are consistent with this title, unless otherwise provided by statute or ordered by the court under RCW 11.96A.020 or 11.96A.050, or other applicable rules of court. [1999 c 42 § 302.] 11.96A.100 11.96A.100 Procedural rules. Unless rules of court require or this title provides otherwise, or unless a court orders otherwise: (1) A judicial proceeding under RCW 11.96A.090 is to be commenced by filing a petition with the court; (2) A summons must be served in accordance with this chapter and, where not inconsistent with these rules, the procedural rules of court, however, if the proceeding is commenced as an action incidental to an existing judicial proceeding relating to the same trust or estate or nonprobate asset, notice must be provided by summons only with respect to those parties who were not already parties to the existing judicial proceedings; (3) The summons need only contain the following language or substantially similar language: SUPERIOR COURT OF WASHINGTON FOR (. . .) COUNTY IN RE . . . . . . [Title 11 RCW—page 100] ) ) ) ) No. . . . Summons TO THE RESPONDENT OR OTHER INTERESTED PARTY: A petition has been filed in the superior court of Washington for (. . .) County. Petitioner’s claim is stated in the petition, a copy of which is served upon you with this summons. In order to defend against or to object to the petition, you must answer the petition by stating your defense or objections in writing, and by serving your answer upon the person signing this summons not later than five days before the date of the hearing on the petition. Your failure to answer within this time limit might result in a default judgment being entered against you without further notice. A default judgment grants the petitioner all that the petitioner seeks under the petition because you have not filed an answer. If you wish to seek the advice of a lawyer, you should do so promptly so that your written answer, if any, may be served on time. This summons is issued under RCW 11.96A.100(3). (Signed) . . . . . . . . . . . . Print or Type Name Dated: . . . . . . Telephone Number: . . . . . . (4) Subject to other applicable statutes and court rules, the clerk of each of the superior courts shall fix the time for any hearing on a matter on application by a party, and no order of the court shall be required to fix the time or to approve the form or content of the notice of a hearing; (5) The answer to the petition and any counterclaims or cross-claims must be served on the parties or the parties’ virtual representatives and filed with the court at least five days before the date of the hearing, and all replies to the counterclaims and cross-claims must be served on the parties or the parties’ virtual representatives and filed with the court at least two days before the date of the hearing; (6) Proceedings under this chapter are subject to the mediation and arbitration provisions of this chapter. Except as specifically provided in RCW 11.96A.310, the provisions of chapter 7.06 RCW do not apply; (7) Testimony of witnesses may be by affidavit; (8) Unless requested otherwise by a party in a petition or answer, the initial hearing must be a hearing on the merits to resolve all issues of fact and all issues of law; (9) Any party may move the court for an order relating to a procedural matter, including discovery, and for summary judgment, in the original petition, answer, response, or reply, or in a separate motion, or at any other time; and (10) If the initial hearing is not a hearing on the merits or does not result in a resolution of all issues of fact and all issues of law, the court may enter any order it deems appropriate, which order may (a) resolve such issues as it deems proper, (b) determine the scope of discovery, and (c) set a schedule for further proceedings for the prompt resolution of the matter. [2001 c 14 § 1; 1999 c 42 § 303.] 11.96A.110 11.96A.110 Notice in judicial proceedings under this title requiring notice. (1) Subject to RCW 11.96A.160, in (2006 Ed.) Trust and Estate Dispute Resolution all judicial proceedings under this title that require notice, the notice must be personally served on or mailed to all parties or the parties’ virtual representatives at least twenty days before the hearing on the petition unless a different period is provided by statute or ordered by the court. The date of service shall be determined under the rules of civil procedure. (2) Proof of the service or mailing required in this section must be made by affidavit or declaration filed at or before the hearing. [1999 c 42 § 304.] 11.96A.115 Discovery. In all matters governed by this title, discovery shall be permitted only in the following matters: (1) A judicial proceeding that places one or more specific issues in controversy that has been commenced under RCW 11.96A.100, in which case discovery shall be conducted in accordance with the superior court civil rules and applicable local rules; or (2) A matter in which the court orders that discovery be permitted on a showing of good cause, in which case discovery shall be conducted in accordance with the superior court civil rules and applicable local rules unless otherwise limited by the order of the court. [2006 c 360 § 11.] 11.96A.150 classes of persons who might take on the happening of the additional future event. (3) A party is not virtually represented by a person receiving notice if a conflict of interest involving the matter is known to exist between the notified person and the party. (4) An action taken by the court is conclusive and binding upon each person receiving actual or constructive notice or who is otherwise virtually represented. [2001 c 203 § 11; 1999 c 42 § 305.] 11.96A.115 Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. 11.96A.120 Application of doctrine of virtual representation. (1) This section is intended to adopt the common law concept of virtual representation. This section supplements the common law relating to the doctrine of virtual representation and shall not be construed as limiting the application of that common law doctrine. (2) Any notice requirement in this title is satisfied if notice is given as follows: (a) Where an interest in an estate, trust, or nonprobate asset or an interest that may be affected by a power of attorney has been given to persons who comprise a certain class upon the happening of a certain event, notice may be given to the living persons who would constitute the class if the event had happened immediately before the commencement of the proceeding requiring notice, and the persons shall virtually represent all other members of the class; (b) Where an interest in an estate, trust, or nonprobate asset or an interest that may be affected by a power of attorney has been given to a living person, and the same interest, or a share in it, is to pass to the surviving spouse or to persons who are, or might be, the distributees, heirs, issue, or other kindred of that living person upon the happening of a future event, notice may be given to that living person, and the living person shall virtually represent the surviving spouse, distributees, heirs, issue, or other kindred of the person; and (c) Except as otherwise provided in this subsection, where an interest in an estate, trust, or nonprobate asset or an interest that may be affected by a power of attorney has been given to a person or a class of persons, or both, upon the happening of any future event, and the same interest or a share of the interest is to pass to another person or class of persons, or both, upon the happening of an additional future event, notice may be given to the living person or persons who would take the interest upon the happening of the first event, and the living person or persons shall virtually represent the persons and 11.96A.120 (2006 Ed.) 11.96A.130 11.96A.130 Special notice. Nothing in this chapter eliminates the requirement to give notice to a person who has requested special notice under RCW 11.28.240 or 11.92.150. [1999 c 42 § 306.] 11.96A.140 11.96A.140 Waiver of notice. Notwithstanding any other provision of this title, notice of a hearing does not need to be given to a legally competent person who has waived in writing notice of the hearing in person or by attorney, or who has appeared at the hearing without objecting to the lack of proper notice or personal jurisdiction. The waiver of notice may apply either to a specific hearing or to any and all hearings and proceedings to be held, in which event the waiver of notice is of continuing effect unless subsequently revoked by the filing of a written notice of revocation of the waiver and the mailing of a copy of the notice of revocation of the waiver to the other parties. Unless notice of a hearing is required to be given by publication, if all persons entitled to notice of the hearing waive the notice or appear at the hearing without objecting to the lack of proper notice or personal jurisdiction, the court may hear the matter immediately. A guardian of the estate or a guardian ad litem may make the waivers on behalf of the incapacitated person, and a trustee may make the waivers on behalf of any competent or incapacitated beneficiary of the trust. A consul or other representative of a foreign government, whose appearance has been entered as provided by law on behalf of any person residing in a foreign country, may make the waiver of notice on behalf of the person. [1999 c 42 § 307.] 11.96A.150 11.96A.150 Cost—Attorneys’ fees. (1) Either the superior court or the court on appeal may, in its discretion, order costs, including reasonable attorneys’ fees, to be awarded to any party: (a) From any party to the proceedings; (b) from the assets of the estate or trust involved in the proceedings; or (c) from any nonprobate asset that is the subject of the proceedings. The court may order the costs to be paid in such amount and in such manner as the court determines to be equitable. (2) This section applies to all proceedings governed by this title, including but not limited to proceedings involving trusts, decedent’s estates and properties, and guardianship matters. This section shall not be construed as being limited by any other specific statutory provision providing for the payment of costs, including RCW 11.68.070 and 11.24.050, unless such statute specifically provides otherwise. This statute [section] shall apply to matters involving guardians and guardians ad litem and shall not be limited or controlled by the provisions of *RCW 11.88.090(9). [1999 c 42 § 308.] [Title 11 RCW—page 101] 11.96A.160 Title 11 RCW: Probate and Trust Law *Reviser’s note: RCW 11.88.090 was amended by 1999 c 360 § 1, changing subsection (9) to subsection (10). 11.96A.160 11.96A.160 Appointment of guardian ad litem. (1) The court, upon its own motion or upon request of one or more of the parties, at any stage of a judicial proceeding or at any time in a nonjudicial resolution procedure, may appoint a guardian ad litem to represent the interests of a minor, incapacitated, unborn, or unascertained person, person whose identity or address is unknown, or a designated class of persons who are not ascertained or are not in being. If not precluded by a conflict of interest, a guardian ad litem may be appointed to represent several persons or interests. (2) The court-appointed guardian ad litem supersedes the special representative if so provided in the court order. (3) The court may appoint the guardian ad litem at an ex parte hearing, or the court may order a hearing as provided in RCW 11.96A.090 with notice as provided in this section and RCW 11.96A.110. (4) The guardian ad litem is entitled to reasonable compensation for services. Such compensation is to be paid from the principal of the estate or trust whose beneficiaries are represented. [1999 c 42 § 309.] 11.96A.170 11.96A.170 Trial by jury. If a party is entitled to a trial by jury and a jury is demanded, and the issues are not sufficiently made up by the written pleadings on file, the court, on due notice, shall settle and frame the issues to be tried. If a jury is not demanded, the court shall try the issues, and sign and file its findings and decision in writing, as provided for in civil actions. [1999 c 42 § 310.] 11.96A.180 11.96A.180 Execution on judgments. Judgment on the issues, as well as for costs, may be entered and enforced by execution or otherwise by the court as in civil actions. [1999 c 42 § 311.] 11.96A.190 11.96A.190 Execution upon trust income or vested remainder—Permitted, when. Nothing in RCW 6.32.250 shall forbid execution upon the income of any trust created by a person other than the judgment debtor for debt arising through the furnishing of the necessities of life to the beneficiary of such trust; or as to such income forbid the enforcement of any order of the superior court requiring the payment of support for the children under the age of eighteen of any beneficiary; or forbid the enforcement of any order of the superior court subjecting the vested remainder of any such trust upon its expiration to execution for the debts of the remainderman. [1999 c 42 § 312.] procedure is supplemental to, and may not derogate from, any other proceeding or provision authorized by statute or the common law. [1999 c 42 § 401.] 11.96A.220 11.96A.220 Binding agreement. RCW 11.96A.210 through 11.96A.250 shall be applicable to the resolution of any matter, as defined by RCW 11.96A.030, other than matters subject to chapter 11.88 or 11.92 RCW, or a trust for a minor or other incapacitated person created at its inception by the judgment or decree of a court unless the judgment or decree provides that RCW 11.96A.210 through 11.96A.250 shall be applicable. If all parties agree to a resolution of any such matter, then the agreement shall be evidenced by a written agreement signed by all parties. Subject to the provisions of RCW 11.96A.240, the written agreement shall be binding and conclusive on all persons interested in the estate or trust. The agreement shall identify the subject matter of the dispute and the parties. If the agreement or a memorandum of the agreement is to be filed with the court under RCW 11.96A.230, the agreement may, but need not, include provisions specifically addressing jurisdiction, governing law, the waiver of notice of the filing as provided in RCW 11.96A.230, and the discharge of any special representative who has acted with respect to the agreement. If a party who virtually represents another under RCW 11.96A.120 signs the agreement, then the party’s signature constitutes the signature of all persons whom the party virtually represents, and all the virtually represented persons shall be bound by the agreement. [1999 c 42 § 402.] 11.96A.230 11.96A.230 Entry of agreement with court—Effect. (1) Any party, or a party’s legal representative, may file the written agreement or a memorandum summarizing the written agreement with the court having jurisdiction over the estate or trust. The agreement or a memorandum of its terms may be filed within thirty days of the agreement’s execution by all parties only with the written consent of the special representative. The agreement or a memorandum of its terms may be filed after a special representative has commenced a proceeding under RCW 11.96A.240 only after the court has determined that the special representative has adequately represented and protected the parties represented. Failure to complete any action authorized or required under this subsection does not cause the written agreement to be ineffective and the agreement is nonetheless binding and conclusive on all persons interested in the estate or trust. (2) On filing the agreement or memorandum, the agreement will be deemed approved by the court and is equivalent to a final court order binding on all persons interested in the estate or trust. [2001 c 14 § 2; 1999 c 42 § 403.] 11.96A.200 11.96A.200 Appellate review. An interested party may seek appellate review of a final order, judgment, or decree of the court respecting a judicial proceeding under this title. The review must be done in the manner and way provided by law for appeals in civil actions. [1999 c 42 § 313.] 11.96A.210 11.96A.210 Purpose. The purpose of RCW 11.96A.220 through 11.96A.250 is to provide a binding nonjudicial procedure to resolve matters through written agreements among the parties interested in the estate or trust. The [Title 11 RCW—page 102] 11.96A.240 11.96A.240 Judicial approval of agreement. Within thirty days of execution of the agreement by all parties, the special representative may note a hearing for presentation of the written agreement to a court of competent jurisdiction. The special representative shall provide notice of the time and date of the hearing to each party to the agreement whose address is known, unless such notice has been waived. Proof of mailing or delivery of the notice must be filed with the court. At such hearing the court shall review the agreement (2006 Ed.) Trust and Estate Dispute Resolution on behalf of the parties represented by the special representative. The court shall determine whether or not the interests of the represented parties have been adequately represented and protected, and an order declaring the court’s determination shall be entered. If the court determines that such interests have not been adequately represented and protected, the agreement shall be declared of no effect. [1999 c 42 § 404.] 11.96A.250 11.96A.250 Special representative. (1)(a) The personal representative or trustee may petition the court having jurisdiction over the matter for the appointment of a special representative to represent a person who is interested in the estate or trust and: (i) Who is a minor; (ii) who is incompetent or disabled; (iii) who is yet unborn or unascertained; or (iv) whose identity or address is unknown. The petition may be heard by the court without notice. (b) In appointing the special representative the court shall give due consideration and deference to any nomination(s) made in the petition, the special skills required in the representation, and the need for a representative who will act independently and prudently. The nomination of a person as special representative by the personal representative or trustee and the person’s willingness to serve as special representative are not grounds by themselves for finding a lack of independence, however, the court may consider any interests that the nominating fiduciary may have in the estate or trust in making the determination. (c) The special representative may enter into a binding agreement on behalf of the person or beneficiary. The special representative may be appointed for more than one person or class of persons if the interests of such persons or class are not in conflict. The petition shall be verified. The petition and order appointing the special representative may be in the following form: CAPTION OF CASE PETITION FOR APPOINTMENT OF SPECIAL REPRESENTATIVE UNDER RCW 11.96A.250 The undersigned petitioner petitions the court for the appointment of a special representative in accordance with RCW 11.96A.250 and shows the court as follows: 1. Petitioner. Petitioner . . . is the qualified and presently acting (personal representative) (trustee) of the above (estate) (trust) having been named (personal representative) (trustee) under (describe will and reference probate order or describe trust instrument). 2. Issue Concerning (Estate) (Trust) Administration. A question concerning administration of the (estate) (trust) has arisen as to (describe issue, for example: Related to interpretation, construction, administration, distribution). The issues are appropriate for determination under RCW 11.96A.250. 3. Beneficiaries. The beneficiaries of the (estate) (trust) include persons who are unborn, unknown, or unascertained persons, or who are under eighteen years of age. 4. Special Representative. The nominated special representative . . . is a lawyer licensed to practice before the courts of this state or an individual with special skill or training in the administration of estates or trusts. The nominated special representative does not have an interest in the affected estate or trust and is not related to any person interested in the estate (2006 Ed.) 11.96A.250 or trust. The nominated special representative is willing to serve. The petitioner has no reason to believe that the nominated special representative will not act in an independent and prudent manner and in the best interests of the represented parties. (It is recommended that the petitioner also include information specifying the particular skills of the nominated special representative that relate to the matter in issue.) 5. Resolution. Petitioner desires to achieve a resolution of the questions that have arisen concerning the (estate) (trust). Petitioner believes that proceeding in accordance with the procedures permitted under RCW 11.96A.210 through 11.96A.250 would be in the best interests of the (estate) (trust) and the beneficiaries. 6. Request of Court. Petitioner requests that . . ., . . . an attorney licensed to practice in the State of Washington. (OR) . . . . an individual with special skill or training in the administration of estates or trusts be appointed special representative for those beneficiaries who are not yet adults, as well as for the unborn, unknown, and unascertained beneficiaries, as provided under RCW 11.96A.250. DATED this . . . day of . . . . ., . . . . ....................... (Petitioner or petitioner’s legal representative) VERIFICATION I certify under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. DATED . . . . . ., 2000, at . . . . . ., Washington. ......................... (Petitioner or other person having knowledge) CAPTION OF CASE ORDER FOR APPOINTMENT OF SPECIAL REPRESENTATIVE THIS MATTER having come on for hearing before this Court on Petition for Appointment of Special Representative filed herein, and it appearing that it would be in the best interests of the (estate) (trust) described in the Petition to appoint a special representative to address the issues that have arisen concerning the (estate) (trust) and the Court finding that the facts stated in the Petition are true, now, therefore, IT IS ORDERED that . . . is appointed under RCW 11.96A.250 as special representative for the (estate) (trust) beneficiaries who are not yet adult age, and for unborn, unknown, or unascertained beneficiaries to represent their respective interests in the (estate) (trust) as provided in RCW 11.96A.250. The special representative shall be discharged of responsibility with respect to the (estate) (trust) at such time as a written agreement is executed resolving the present issues, all as provided in that statute, or if an agreement is not reached within six months from entry of this Order, the special representative appointed under this Order shall be dis[Title 11 RCW—page 103] 11.96A.260 Title 11 RCW: Probate and Trust Law charged of responsibility, subject to subsequent reappointment under RCW 11.96A.250. DONE IN OPEN COURT this . . . day of . . . . ., . . . . .............................. JUDGE/COURT COMMISSIONER (2) Upon appointment by the court, the special representative shall file a certification made under penalty of perjury in accordance with RCW 9A.72.085 that he or she (a) is not interested in the estate or trust; (b) is not related to any person interested in the estate or trust; (c) is willing to serve; and (d) will act independently, prudently, and in the best interests of the represented parties. (3) The special representative must be a lawyer licensed to practice before the courts of this state or an individual with special skill or training in the administration of estates or trusts. The special representative may not have an interest in the affected estate or trust, and may not be related to a person interested in the estate or trust. The special representative is entitled to reasonable compensation for services that must be paid from the principal of the estate or trust whose beneficiaries are represented. (4) The special representative shall be discharged from any responsibility and shall have no further duties with respect to the estate or trust or with respect to any person interested in the estate or trust, on the earlier of: (a) The expiration of six months from the date the special representative was appointed unless the order appointing the special representative provides otherwise, or (b) the execution of the written agreement by all parties or their virtual representatives. Any action against a special representative must be brought within the time limits provided by RCW 11.96A.070(3)(c)(i). [2001 c 14 § 3; 1999 c 42 § 405.] Retroactive application—1999 c 42 § 405: "Section 405 of this act is remedial in nature and applies to all actions taken by special representatives from January 1, 1985, and thereafter." [1999 c 42 § 704.] framework governing the procedures governing these cases in the court system. Therefore, the legislature adopts RCW 11.96A.270 through 11.96A.320, that enhance *chapter 11.96 RCW and allow required mediation and arbitration in disputes involving trusts, estates, and nonprobate matters that are brought to the courts. RCW 11.96A.270 through 11.96A.320 also set forth specific civil procedures for handling trust and estate disputes in the court system. It is intended that the adoption of RCW 11.96A.270 through 11.96A.320 will encourage and direct all parties in trust, estate, and nonprobate matter disputes, and the court system, to provide for expeditious, complete, and final decisions to be made in disputed trust, estate, and nonprobate matters. [1999 c 42 § 501.] *Reviser’s note: Chapter 11.96 RCW was repealed by 1999 c 42 § 637, effective January 1, 2000. 11.96A.270 11.96A.270 Intent—Parties can agree otherwise. The intent of RCW 11.96A.260 through 11.96A.320 is to provide for the efficient settlement of disputes in trust, estate, and nonprobate matters through mediation and arbitration by providing any party the right to proceed first with mediation and then arbitration before formal judicial procedures may be utilized. Accordingly, any of the requirements or rights under RCW 11.96A.260 through 11.96A.320 are subject to any contrary agreement between the parties or the parties’ virtual representatives. [1999 c 42 § 502.] 11.96A.280 11.96A.280 Scope. A party may cause the matter to be presented for mediation and then arbitration, as provided under RCW 11.96A.260 through 11.96A.320. If a party causes the matter to be presented for resolution under RCW 11.96A.260 through 11.96A.320, then judicial resolution of the matter, as provided in RCW 11.96A.060 or by any other civil action, is available only by complying with the mediation and arbitration provisions of RCW 11.96A.260 through 11.96A.320. [1999 c 42 § 503.] 11.96A.260 11.96A.260 Findings—Intent. The legislature finds that it is in the interest of the citizens of the state of Washington to encourage the prompt and early resolution of disputes in trust, estate, and nonprobate matters. The legislature endorses the use of dispute resolution procedures by means other than litigation. The legislature also finds that the former chapter providing for the nonjudicial resolution of trust, estate, and nonprobate disputes, *chapter 11.96 RCW, has resulted in the successful resolution of thousands of disputes since 1984. The nonjudicial procedure has resulted in substantial savings of public funds by removing those disputes from the court system. Enhancement of the statutory framework supporting the nonjudicial process in *chapter 11.96 RCW would be beneficial and would foster even greater use of nonjudicial dispute methods to resolve trust, estate, and nonprobate disputes. The legislature further finds that it would be beneficial to allow parties to disputes involving trusts, estates, and nonprobate assets to have access to a process for required mediation followed by arbitration using mediators and arbitrators experienced in trust, estate, and nonprobate matters. Finally, the legislature also believes it would be beneficial to parties with disputes in trusts, estates, and nonprobate matters to clarify and streamline the statutory [Title 11 RCW—page 104] 11.96A.290 11.96A.290 Superior court—Venue. As used in RCW 11.96A.260 through 11.96A.320, "superior court" means: (1) Before the commencement of any legal proceedings, the appropriate superior court with respect to the matter as provided in RCW 11.96A.040; and (2) if legal proceedings have been commenced with respect to the matter, the superior court in which the proceedings are pending. [1999 c 42 § 504.] 11.96A.300 11.96A.300 Mediation procedure. (1) Notice of mediation. A party may cause the matter to be subject to mediation by service of written notice of mediation on all parties or the parties’ virtual representatives as follows: (a) If no hearing has been set. If no hearing on the matter has been set, by serving notice in substantially the following form before any petition setting a hearing on the matter is filed with the court: NOTICE OF MEDIATION UNDER RCW 11.96A.300 To: (Parties) Notice is hereby given that the following matter shall be resolved by mediation under RCW 11.96A.300: (2006 Ed.) Trust and Estate Dispute Resolution (State nature of matter) This matter must be resolved using the mediation procedures of RCW 11.96A.300 unless a petition objecting to mediation is filed with the superior court within twenty days of service of this notice. If a petition objecting to mediation is not filed within the twenty-day period, RCW 11.96A.300(4) requires you to furnish to all other parties or their virtual representatives a list of acceptable mediators within thirty days of your receipt of this notice. (Optional: Our list of acceptable mediators is as follows:) DATED: . . . . . . ................................. (Party or party’s legal representative) (b) If a hearing has been set. If a hearing on the matter has been set, by filing and serving notice in substantially the following form at least three days prior to the hearing that has been set on the matter: NOTICE OF MEDIATION UNDER RCW 11.96A.300 To: (Parties) Notice is hereby given that the following matter shall be resolved by mediation under RCW 11.96A.300: (State nature of matter) This matter must be resolved using the mediation procedures of RCW 11.96A.300 unless the court determines at the hearing set for . . . o’clock on . . . . . , (identify place of already set hearing), that mediation shall not apply pursuant to RCW 11.96A.300(3). If the court determines that mediation shall not apply, the court may decide the matter at the hearing, require arbitration, or direct other judicial proceedings. (Optional: Our list of acceptable mediators is as follows:) DATED: . . . . . . ................................. (Party or party’s legal representative) (2) Procedure when notice of mediation served before a hearing is set. The following provisions apply when notice of mediation is served before a hearing on the matter is set: (a) The written notice required in subsection (1)(a) of this section may be served at any time without leave of the court. (b) Any party may object to a notice of mediation under subsection (1)(a) of this section by filing a petition with the superior court and serving the petition on all parties or the parties’ virtual representatives. The party objecting to notice of mediation under subsection (1)(a) of this section must file and serve the petition objecting to mediation no later than twenty days after receipt of the written notice of mediation. The petition may include a request for determination of matters subject to judicial resolution under RCW 11.96A.080 through 11.96A.200, and may also request that the matters in issue be decided at the hearing. (c) The hearing on the petition objecting to mediation must be heard no later than twenty days after the filing of that petition. (2006 Ed.) 11.96A.300 (d) The party objecting to mediation must give notice of the hearing to all other parties at least ten days before the hearing and must include a copy of the petition. At the hearing, the court shall order that mediation proceed except for good cause shown. Such order shall not be subject to appeal or revision. If the court determines that the matter should not be subject to mediation, the court shall dispose of the matter by: (i) Deciding the matter at that hearing, but only if the petition objecting to mediation contains a request for that relief, (ii) requiring arbitration, or (iii) directing other judicial proceedings. (3) Procedure when notice of mediation served after hearing set. If the written notice of mediation required in subsection (1)(b) of this section is timely filed and served by a party and another party objects to mediation, by petition or orally at the hearing, the court shall order that mediation proceed except for good cause shown. Such order shall not be subject to appeal or revision. If the court determines that the matter should not be subject to mediation, the court shall dispose of the matter by: (a) Deciding the matter at that hearing, (b) requiring arbitration, or (c) directing other judicial proceedings. (4) Selection of mediator; mediator qualifications. (a) If a petition objecting to mediation is not filed as provided in subsection (3) of this section, or if a court determines that mediation shall apply, each party shall, within thirty days of receipt of the initial notice or within twenty days after the court determination, whichever is later, furnish all other parties or the parties’ virtual representatives a list of qualified and acceptable mediators. If the parties cannot agree on a mediator within ten days after the list is required to be furnished, a party may petition the court to appoint a mediator. All parties may submit a list of qualified and acceptable mediators to the court no later than the date on which the hearing on the petition is to be held. At the hearing the court shall select a qualified mediator from lists of acceptable mediators provided by the parties. (b) A qualified mediator must be: (i) An attorney licensed to practice before the courts of this state having at least five years of experience in estate and trust matters, (ii) an individual, who may be an attorney, with special skill or training in the administration of trusts and estates, or (iii) an individual, who may be an attorney, with special skill or training as a mediator. The mediator may not have an interest in an affected estate, trust, or nonprobate asset, and may not be related to a party. (5) Date for mediation. Upon designation of a mediator by the parties or court appointment of a mediator, the mediator and the parties or the parties’ virtual representatives shall establish a date for the mediation. If a date cannot be agreed upon within ten days of the designation or appointment of the mediator, a party may petition the court to set a date for the mediation session. (6) Duration of mediation. The mediation must last at least three hours unless the matter is earlier resolved. (7) Mediation agreement. A resolution of the matter that is the subject of the mediation must be evidenced by a nonjudicial dispute resolution agreement under RCW 11.96A.220. (8) Costs of mediation. Costs of the mediation, including reasonable compensation for the mediator’s services, shall be borne equally by the parties. The details of those costs and [Title 11 RCW—page 105] 11.96A.310 Title 11 RCW: Probate and Trust Law fees, including the compensation of the mediator, must be set forth in a mediation agreement between the mediator and all parties to the matter. Each party shall bear its own costs and expenses, including legal fees and witness expenses, in connection with the mediation proceeding: (a) Except as may occur otherwise as provided in RCW 11.96A.320, or (b) unless the matter is not resolved by mediation and the arbitrator or court finally resolving the matter directs otherwise. [2001 c 14 § 4; 1999 c 42 § 505.] 11.96A.310 11.96A.310 Arbitration procedure. (1) When arbitration available. Arbitration under RCW 11.96A.260 through 11.96A.320 is available only if: (a) A party has first petitioned for mediation under RCW 11.96A.300 and such mediation has been concluded; (b) The court has determined that mediation under RCW 11.96A.300 is not required and has not ordered that the matter be disposed of in some other manner; (c) All of the parties or the parties’ virtual representatives have agreed not to use the mediation procedures of RCW 11.96A.300; or (d) The court has ordered that the matter must be submitted to arbitration. (2) Commencement of arbitration. Arbitration must be commenced as follows: (a) If the matter is not settled through mediation under RCW 11.96A.300, or the court orders that mediation is not required, a party may commence arbitration by serving written notice of arbitration on all other parties or the parties’ virtual representatives. The notice must be served no later than twenty days after the later of the conclusion of the mediation procedure, if any, or twenty days after entry of the order providing that mediation is not required. If arbitration is ordered by the court under RCW 11.96A.300(3), arbitration must proceed in accordance with the order. (b) If the parties or the parties’ virtual representatives agree that mediation does not apply and have not agreed to another procedure for resolving the matter, a party may commence arbitration without leave of the court by serving written notice of arbitration on all other parties or the parties’ virtual representatives at any time before or at the initial judicial hearing on the matter. After the initial judicial hearing on the matter, the written notice required in subsection (1) of this section may only be served with leave of the court. Any notice required by this section must be in substantially the following form: NOTICE 11.96A.310 OF ARBITRATION UNDER RCW To: (Parties) Notice is hereby given that the following matter must be resolved by arbitration under RCW 11.96A.310: (State nature of matter) The matter must be resolved using the arbitration procedures of RCW 11.96A.310 unless a petition objecting to arbitration is filed with the superior court within twenty days of receipt of this notice. If a petition objecting to arbitration is not filed within the twenty-day period, RCW 11.96A.310 requires you to furnish to all other parties or the parties’ virtual represen[Title 11 RCW—page 106] tatives a list of acceptable arbitrators within thirty days of your receipt of this notice. (Optional: Our list of acceptable arbitrators is as follows:) DATED: . . . . . . ................................. (Party or party’s legal representative) (3) Objection to arbitration. A party may object to arbitration by filing a petition with the superior court and serving the petition on all parties or the parties’ virtual representatives. The objection to arbitration may be filed at any time unless a written notice of arbitration has been served, in which case the objection to arbitration must be filed and served no later than twenty days after receipt of the written notice of arbitration. The hearing on the objection to arbitration must be heard no later than twenty days after the filing of that petition. The party objecting to arbitration must give notice of the hearing to all parties at least ten days before the hearing and shall include a copy of the petition. At the hearing, the court shall order that arbitration proceed except for good cause shown. Such order shall not be subject to appeal or revision. If the court determines that the matter should not be subject to arbitration, the court shall dispose of the matter by: (a) Deciding the matter at that hearing, but only if the petition objecting to arbitration contains a request for such relief; or (b) directing other judicial proceedings. (4) Selection of arbitrator; qualifications of arbitrator. (a) If a petition objecting to arbitration is not filed as provided in subsection (3) of this section, or if a court determines that arbitration must apply, each party shall, within thirty days of receipt of the initial notice or within twenty days after the court determination, whichever is later, furnish all other parties or the parties’ virtual representatives a list of acceptable arbitrators. If the parties cannot agree on an arbitrator within ten days after the list is required to be furnished, a party may petition the court to appoint an arbitrator. All parties may submit a list of qualified and acceptable arbitrators to the court no later than the date on which the hearing on the petition is to be held. At the hearing the court shall select a qualified arbitrator from lists of acceptable arbitrators provided by the parties. (b) A qualified arbitrator must be an attorney licensed to practice before the courts of this state having at least five years of experience in trust or estate matters or five years of experience in litigation or other formal dispute resolution involving trusts or estates, or an individual, who may be an attorney, with special skill or training with respect to the matter. The arbitrator may be the same person selected and used as a mediator under the mediation procedures of RCW 11.96A.300. (5) Arbitration rules. Arbitration must be under chapter 7.06 RCW, mandatory arbitration of civil actions, as follows: (a) Chapter 7.06 RCW, the superior court mandatory arbitration rules adopted by the supreme court, and any local rules for mandatory arbitration adopted by the superior court apply to this title. If the superior court has not adopted chapter 7.06 RCW, then the local rules for mandatory arbitration applicable in King county apply, except all the duties of the director of arbitration must be performed by the presiding judge of the superior court. (2006 Ed.) Effect of Trust Instrument (b) If a party has already filed a petition with the court with respect to the matter that will be the subject of the arbitration proceedings, then all other parties to the arbitration proceedings who have not yet filed a reply thereto must file a reply with the arbitrator within ten days of the date on which the arbitrator is selected or appointed. (c) The arbitration provisions of this subsection apply to all matters in dispute. The dollar limits and restrictions to monetary damages of RCW 7.06.020 do not apply to arbitrations under this subsection. To the extent any provision in this title is inconsistent with chapter 7.06 RCW or the rules referenced in (a) of this subsection, the provisions of this title control. (d) The compensation of the arbitrator must be set by written agreement between the parties and the arbitrator. The arbitrator must be compensated at the arbitrator’s stated rate of compensation for acting as an arbitrator of disputes in trusts, estates, and nonprobate matters unless the parties or the parties’ virtual representatives agree otherwise. (e) Unless directed otherwise by the arbitrator in accord with subsection (6) of this section or RCW 11.96A.320, or unless the matter is not resolved by arbitration and the court finally resolving the matter directs otherwise: (i) Costs of the arbitration, including compensation for the arbitrator’s services, must be borne equally by the parties participating in the arbitration, with the details of those costs and fees to be set forth in an arbitration agreement between the arbitrator and all parties to the matter; and (ii) A party shall bear its own costs and expenses, including legal fees and witness expenses, in connection with the arbitration proceeding. (f) The arbitrator and the parties shall execute a written agreement setting forth the terms of the arbitration and the process to be followed. This agreement must also contain the fee agreement provided in (d) of this subsection. A dispute as to this agreement must be resolved by the director of arbitration. (g) The rules of evidence and discovery applicable to civil causes of action before the superior court as defined in RCW 11.96A.290 apply, unless the parties have agreed otherwise or the arbitrator rules otherwise. (6) Costs of arbitration. The arbitrator may order costs, including reasonable attorneys’ fees and expert witness fees, to be paid by any party to the proceedings as justice may require. (7) Decision of arbitrator. The arbitrator shall issue a final decision in writing within thirty days of the conclusion of the final arbitration hearing. Promptly after the issuance of the decision, the arbitrator shall serve each of the parties to the proceedings with a copy of the written arbitration decision. Proof of service shall be filed with the court. Service shall be made in conformity with CR 5(b) of the rules for superior court. (8) Arbitration decision may be filed with the court. The arbitrator or any party to the arbitration may file the arbitrator’s decision with the clerk of the superior court at any time after its issuance. Notice of such filing shall be promptly given to each party to the arbitration proceedings. (9) Appeal. (a) The final decision of the arbitrator may be appealed by filing a notice of appeal with the superior court requesting a trial de novo on all issues of law and fact. (2006 Ed.) 11.97.010 The notice of appeal must be filed within thirty days after the date on which the decision was served on the party filing the notice of appeal. A trial de novo shall then be held, including a right to jury, if demanded. (b) If an appeal is not filed within the time provided in (a) of this subsection, the arbitration decision is conclusive and binding on all parties. If the arbitrator’s decision has been filed with the clerk of the superior court, a judgment shall be entered and may be presented to the court by any party on ten days’ prior notice. The judgment when entered shall have the same force and effect as judgments in civil actions. (10) Costs on appeal of arbitration decision. The prevailing party in any such de novo superior court decision after an arbitration result must be awarded costs, including expert witness fees and attorneys’ fees, in connection with the judicial resolution of the matter. Such costs shall be charged against the nonprevailing parties in such amount and in such manner as the court determines to be equitable. The provisions of this subsection take precedence over the provisions of RCW 11.96A.150 or any other similar provision. [2001 c 14 § 5; 1999 c 42 § 506.] 11.96A.320 11.96A.320 Petition for order compelling compliance. If a party does not comply with any procedure of RCW 11.96A.260 through 11.96A.310, the other party or parties may petition the superior court for an order compelling compliance. A party obtaining an order compelling compliance is entitled to reimbursement of costs and attorneys’ fees incurred in connection with: The petition and any other actions taken after the issuance of the order to compel compliance with the order, unless the court at the hearing on the petition determines otherwise for good cause shown. Reimbursement must be from the party or parties whose failure to comply was the basis for the petition. [1999 c 42 § 507.] 11.96A.900 11.96A.900 Short title. This chapter may be known and cited as the trust and estate dispute resolution act or "TEDRA." [1999 c 42 § 101.] 11.96A.901 11.96A.901 Captions not law—1999 c 42. Part headings and captions used in chapter 42, Laws of 1999 are not any part of the law. [1999 c 42 § 701.] 11.96A.902 11.96A.902 Effective date—1999 c 42. This act takes effect January 1, 2000. [1999 c 42 § 703.] Chapter 11.97 Chapter 11.97 RCW EFFECT OF TRUST INSTRUMENT Sections 11.97.010 11.97.900 Power of trustor—Trust provisions control. Application of chapter. 11.97.010 11.97.010 Power of trustor—Trust provisions control. The trustor of a trust may by the provisions of the trust relieve the trustee from any or all of the duties, restrictions, and liabilities which would otherwise be imposed by chapters 11.95, 11.98, 11.100, and 11.104A RCW and RCW 11.106.020, or may alter or deny any or all of the privileges and powers conferred by those provisions; or may add duties, [Title 11 RCW—page 107] 11.97.900 Title 11 RCW: Probate and Trust Law restrictions, liabilities, privileges, or powers to those imposed or granted by those provisions. If any specific provision of those chapters is in conflict with the provisions of a trust, the provisions of the trust control whether or not specific reference is made in the trust to any of those chapters, except as provided in RCW 11.98.200 through 11.98.240 and 11.95.100 through 11.95.150. In no event may a trustee be relieved of the duty to act in good faith and with honest judgment. [2003 c 254 § 4; 1993 c 339 § 1; 1985 c 30 § 38. Prior: 1984 c 149 § 64; 1959 c 124 § 2. Formerly RCW 30.99.020.] Severability—1993 c 339: See note following RCW 11.98.200. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Banks and trust companies: Title 30 RCW. Cemeteries endowment and nonendowment care: Chapter 68.40 RCW. endowment care fund: Chapter 68.44 RCW. Certificate conferring trust powers on bank, fee: RCW 30.08.095. Conveyances and encumbrances of realty when held in trust: RCW 64.04.010. Corporate powers of trust companies, bond liability, securities, etc.: RCW 30.08.150 through 30.08.170. seals, effect of absence from instrument: RCW 64.04.105. Corporations articles to state if trust company: RCW 30.08.020. sole, property held in trust: RCW 24.12.030. Costs against trustees, civil actions: RCW 4.84.150. Employee benefit plans, trusts, duration, etc.: Chapter 49.64 RCW. Employees’ benefit deductions from wages are trust funds: RCW 49.52.010. 11.97.900 11.97.900 Application of chapter. This chapter applies to the provisions of chapters 11.95, 11.98, 11.100, and 11.104A RCW and to RCW 11.106.020. [2003 c 254 § 5; 1985 c 30 § 39. Prior: 1984 c 149 § 65.] Execution against property in trustee’s hands: RCW 6.17.110. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Husband and wife, property rights and liabilities: Chapter 26.16 RCW. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Chapter 11.98 Chapter 11.98 RCW TRUSTS Sections 11.98.009 11.98.016 11.98.019 11.98.029 11.98.039 11.98.041 11.98.045 11.98.051 11.98.055 11.98.060 11.98.065 11.98.070 11.98.080 11.98.090 11.98.100 11.98.110 11.98.130 11.98.140 11.98.150 11.98.160 11.98.170 11.98.200 11.98.210 11.98.220 11.98.230 11.98.240 11.98.900 11.98.910 11.98.920 Application of chapter. Exercise of powers by co-trustees. Relinquishment of powers by trustee. Resignation of trustee. Nonjudicial change of trustee—Judicial appointment or change of trustee—Liability and duties of successor fiduciary. Change of trustee—Discharge of outgoing trustee, when. Criteria for transfer of trust assets or administration. Nonjudicial transfer of trust assets or administration— Notice—Consent required. Judicial transfer of trust assets or administration. Power of successor trustee. Change in form of corporate trustee. Power of trustee. Consolidation of trusts. Nonliability of third persons without knowledge of breach. Nonliability for action or inaction based on lack of knowledge of events. Contract and tort liability. Rule against perpetuities. Distribution and vesting of assets. Distribution of assets after one hundred fifty year period. Effective date of irrevocable inter vivos trust—Effective date of revocable inter vivos or testamentary trust. Designation of trustee as beneficiary of life insurance policy or retirement plan—Determination of proper recipient of proceeds—Definitions—Beneficiary designations executed before January 1, 1985, not invalidated. Beneficiary trustee—Limitations on power. Beneficiary trustee—Disregard of provision conferring absolute or similar power—Power of removal. Beneficiary trustee—Inferences of law—Judicial review. Beneficiary trustee—Income under marital deduction—Spousal power of appointment. Beneficiary trustee—Applicability—Exceptions—Election of exception—Cause of action. Application of RCW 11.98.130 through 11.98.160. Severability—1959 c 124. Short title. Fiduciary bonds: RCW 48.28.020. Gifts for benefit of trust: RCW 11.12.250. Guardianship: Chapters 11.88, 11.92, 73.36 RCW. Insurance deposits held in trust: RCW 48.16.020, 48.16.070. equipment trust certificates: RCW 48.13.100. investment in trustees’ obligations: RCW 48.13.090. trustee group life insurance: RCW 48.24.070. Investment of trust funds: Chapter 11.100 RCW, RCW 30.24.080. Investment of trust funds in certain federally secured obligations: RCW 39.60.010. Loan agencies: Title 31 RCW. Loans to officers of trust corporation from trust funds prohibited: RCW 30.12.120. Mandamus: Chapter 7.16 RCW. Massachusetts trusts: Chapter 23.90 RCW. Mortgages and trust receipts: Title 61 RCW. Mutual savings banks: Title 32 RCW. Partnerships: Title 25 RCW. Personal property: Title 63 RCW. Pleadings, setoff against beneficiary or trustee of trust estate: RCW 4.32.120, 4.32.140. Powers of appointment, powers in trust: Chapter 11.95 RCW. Private seals abolished: RCW 64.04.090. Proceedings to impeach: RCW 42.04.040. Prohibition: Chapter 7.16 RCW. Property taxes exemptions: Chapter 84.36 RCW. generally: Title 84 RCW. Prudent person rule: Chapter 11.100 RCW. Recording, county auditor’s duties: Chapter 65.04 RCW. Recording and publication: Title 65 RCW. Registration of land titles assurance fund not liable for breach by trustee: RCW 65.12.700. encumbrances by trust deeds: RCW 65.12.420 through 65.12.450. fee for transfer in trust: RCW 65.12.790. transfers between trustees: RCW 65.12.490. transfers in trust: RCW 65.12.480. trustee may register land: RCW 65.12.500. trustees and receivers: RCW 65.12.600. Resulting state bank, provisions when not exercising trust powers: RCW 30.49.100. Assignment for the benefit of creditors: Chapter 7.08 RCW. Retail sales tax, "buyer" includes trust, business trust, etc.: RCW 82.08.010. Assignments to trustees, priority of wages: RCW 49.56.010. Savings and loan associations: Title 33 RCW. [Title 11 RCW—page 108] (2006 Ed.) Trusts Savings banks limitation on deposits: RCW 32.12.010. not to locate in same room with trust company: RCW 32.04.030. State depositaries: Chapter 43.85 RCW. Statute of frauds: Chapter 19.36 RCW. Trust business to be kept separate: RCW 30.04.240. Trust companies capital requirements: RCW 30.08.010. limitation to act as executor or administrator: RCW 11.36.010. Trust company as legal representative, advertising: RCW 30.04.260, 30.12.130. defined: RCW 30.04.010. Trust provisions may relieve trustee from duty, restriction, or liability imposed by statute: RCW 11.97.010. Trustees’ accounting act: Chapter 11.106 RCW. Trusts and monopolies: State Constitution Art. 12 § 22. Unclaimed property in hands of city police: Chapter 63.32 RCW. Uniform common trust fund act: Chapter 11.102 RCW. transfers to minors act: Chapter 11.114 RCW. unclaimed property act: Chapter 63.29 RCW. Use tax, "purchaser" includes trust, business trust, etc.: RCW 82.12.010. Wills, generally: Chapter 11.12 RCW. Witnesses, competency in actions involving fiduciaries: RCW 5.60.030. 11.98.009 11.98.009 Application of chapter. Except as provided in this section, this chapter applies to express trusts executed by the trustor after June 10, 1959, and does not apply to resulting trusts, constructive trusts, business trusts where certificates of beneficial interest are issued to the beneficiary, investment trusts, voting trusts, trusts in the nature of mortgages or pledges, trusts created by the judgment or decree of a court not sitting in probate, liquidation trusts, or trusts for the sole purpose of paying dividends, interest, interest coupons, salaries, wages, pensions or profits, trusts created in deposits in any financial institution pursuant to chapter 30.22 RCW, unless any such trust which is created in writing incorporates this chapter in whole or in part. [1985 c 30 § 40. Prior: 1984 c 149 § 67; 1983 c 3 § 49; 1959 c 124 § 1. Formerly RCW 30.99.010.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.016 11.98.016 Exercise of powers by co-trustees. (1) Any power vested in three or more trustees jointly may be exercised by a majority of such trustees; but no trustee who has not joined in exercising a power is liable to the beneficiaries or to others for the consequences of such exercise; nor is a dissenting trustee liable for the consequences of an act in which that trustee joins at the direction of the majority of the trustees, if that trustee expressed his or her dissent in writing to each of the co-trustees at or before the time of such joinder. (2) Where two or more trustees are appointed to execute a trust and one or more of them for any reason does not accept the appointment or having accepted ceases to be a trustee, the survivor or survivors shall execute the trust and shall succeed to all the powers, duties and discretionary authority given to the trustees jointly. (3) An individual trustee, with a co-trustee’s consent, may, by a signed, written instrument, delegate any power, (2006 Ed.) 11.98.029 duty, or authority as trustee to that co-trustee. This delegation is effective upon delivery of the instrument to that co-trustee and may be revoked at any time by delivery of a similar signed, written instrument to that co-trustee. However, if a power, duty, or authority is expressly conferred upon only one trustee, it shall not be delegated to a co-trustee. If that power, duty, or authority is expressly excluded from exercise by a trustee, it shall not be delegated to the excluded trustee. (4) If one trustee gives written notice to all other cotrustees of an action that the trustee proposes be taken, then the failure of any co-trustee to deliver a written objection to the proposal to the trustee, at the trustee’s then address of record and within fifteen days from the date the co-trustee actually receives the notice, constitutes formal approval by the co-trustee, unless the co-trustee had previously given written notice that was unrevoked at the time of the trustee’s notice, to that trustee that this fifteen-day notice provision is inoperative. (5) As to any effective delegation made under subsection (3) of this section, a co-trustee has no liability for failure to participate in the administration of the trust. Nothing in this section, however, otherwise excuses a co-trustee from liability for failure to participate in the administration of the trust and nothing in this section, including subsection (3) of this section, excuses a co-trustee from liability for the failure to attempt to prevent a breach of trust. [1985 c 30 § 41. Prior: 1984 c 149 § 68; 1959 c 124 § 3. Formerly RCW 30.99.030.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.019 11.98.019 Relinquishment of powers by trustee. Any trustee may, by written instrument delivered to any then acting co-trustee and to the current adult income beneficiaries of the trust, relinquish to any extent and upon any terms any or all of the trustee’s powers, rights, authorities, or discretions that are or may be tax sensitive in that they cause or may cause adverse tax consequences to the trustee or the trust. Any trustee not relinquishing such a power, right, authority, or discretion and upon whom it is conferred continues to have full power to exercise it. [1985 c 30 § 42. Prior: 1984 c 149 § 69.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.029 11.98.029 Resignation of trustee. Any trustee may resign, without judicial proceedings, by a writing signed by the trustee and filed with the trust records, to be effective upon the trustee’s discharge as provided in RCW 11.98.041. [1989 c 10 § 3. Prior: 1985 c 30 § 43; prior: 1959 c 124 § 4. Formerly RCW 30.99.040.] Intent—1989 c 10 § 3: "It is the intent of the legislature that RCW 11.98.029 be restored to full force and effect." [1989 c 10 § 2.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. [Title 11 RCW—page 109] 11.98.039 11.98.039 Title 11 RCW: Probate and Trust Law 11.98.039 Nonjudicial change of trustee—Judicial appointment or change of trustee—Liability and duties of successor fiduciary. (1) Where a vacancy occurs in the office of the trustee and there is a successor trustee who is willing to serve as trustee and (a) is named in the governing instrument as successor trustee or (b) has been selected to serve as successor trustee under the procedure established in the governing instrument for the selection of a successor trustee, the outgoing trustee, or any other interested party, shall give notice of such vacancy, whether arising because of the trustee’s resignation or because of any other reason, and of the successor trustee’s agreement to serve as trustee, to each adult distributee or permissible distributee of trust income or of trust principal or of both trust income and trust principal. If there are no such adults, no notice need be given. The successor trustee named in the governing instrument or selected pursuant to the procedure therefor established in the governing instrument shall be entitled to act as trustee except for good cause or disqualification. The successor trustee shall serve as of the effective date of the discharge of the predecessor trustee as provided in RCW 11.98.041. (2) Where a vacancy exists or occurs in the office of the trustee and there is no successor trustee who is named in the governing instrument or who has been selected to serve as successor trustee under the procedure established in the governing instrument for the selection of a successor trustee, and who is willing to serve as trustee, then all parties with an interest in the trust may agree to a nonjudicial change of the trustee under RCW 11.96A.220. The successor trustee shall serve as of the effective date of the discharge of the predecessor trustee as provided in RCW 11.98.041 or, in circumstances where there is no predecessor trustee, as of the effective date of the trustee’s appointment. (3) When there is a desire to name one or more co-trustees to serve with the existing trustee, then all parties with an interest in the trust may agree to the nonjudicial addition of one or more co-trustees under RCW 11.96A.220. The additional co-trustee shall serve as of the effective date of the cotrustee’s appointment. (4) Unless subsection (1), (2), or (3) of this section applies, any beneficiary of a trust, the trustor, if alive, or the trustee may petition the superior court having jurisdiction for the appointment or change of a trustee or co-trustee under the pro cedur es pro vided in RCW 11 .96 A.080 thro ugh 11.96A.200: (a) Whenever the office of trustee becomes vacant; (b) upon filing of a petition of resignation by a trustee; or (c) for any other reasonable cause. (5) For purposes of this subsection, the term fiduciary includes both trustee and personal representative. (a) Except as otherwise provided in the governing instrument, a successor fiduciary, absent actual knowledge of a breach of fiduciary duty: (i) Is not liable for any act or omission of a predecessor fiduciary and is not obligated to inquire into the validity or propriety of any such act or omission; (ii) is authorized to accept as conclusively accurate any accounting or statement of assets tendered to the successor fiduciary by a predecessor fiduciary; and (iii) is authorized to receipt only for assets actually delivered and has no duty to make further inquiry as to undisclosed assets of the trust or estate. (b) Nothing in this section relieves a successor fiduciary from liability for retaining improper investments, nor does [Title 11 RCW—page 110] this section in any way bar the successor fiduciary, trust beneficiaries, or other party in interest from bringing an action against a predecessor fiduciary arising out of the acts or omissions of the predecessor fiduciary, nor does it relieve the successor fiduciary of liability for its own acts or omissions except as specifically stated or authorized in this section. [2005 c 97 § 13; 1999 c 42 § 618; 1985 c 30 § 44. Prior: 1984 c 149 § 72; 1959 c 124 § 5. Formerly RCW 30.99.050.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.041 11.98.041 Change of trustee—Discharge of outgoing trustee, when. Where a vacancy occurs in the office of trustee under the circumstances described in RCW 11.98.039 (1) or (2), the outgoing trustee shall be discharged upon the agreement of all parties entitled to notice or upon the expiration of thirty days after notice is given of such vacancy as required by the applicable subsection of RCW 11.98.039, whichever occurs first, or if no notice is required under RCW 11.98.039(1), upon the date the vacancy occurs, unless before the effective date of such discharge a petition is filed under *RCW 11.98.039(3) regarding the appointment or change of a trustee of the trust. Where a petition is filed under *RCW 11.98.039(3) regarding the appointment or change of a trustee, the superior court having jurisdiction may discharge the trustee from the trust and may appoint a successor trustee upon such terms as the court may require. [1985 c 30 § 141.] *Reviser’s note: RCW 11.98.039 was amended by 2005 c 97 § 13, changing subsection (3) to subsection (4). Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.98.045 11.98.045 Criteria for transfer of trust assets or administration. (1) A trustee may transfer trust assets to a trustee in another jurisdiction or may transfer the place of administration of a trust to another jurisdiction if the trust instrument so provides or in accordance with RCW 11.98.051 or 11.98.055. (2) Transfer under this section is permitted only if: (a) The transfer would facilitate the economic and convenient administration of the trust; (b) The transfer would not materially impair the interests of the beneficiaries or others interested in the trust; (c) The transfer does not violate the terms of the trust; and (d) The new trustee is qualified and able to administer the trust or such assets on the terms set forth in the trust. (3) Acceptance of such transfer by a foreign corporate trustee or trust company under this section, RCW 11.98.051, or 11.98.055 shall not be construed to be doing a "trust business" as described in RCW 30.08.150(9). [1985 c 30 § 45. Prior: 1984 c 149 § 74.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. (2006 Ed.) Trusts 11.98.051 11.98.051 Nonjudicial transfer of trust assets or administration—Notice—Consent required. (1) The trustee may transfer trust assets or the place of administration in accordance with RCW 11.96A.220. In addition, the trustee shall give written notice to those persons entitled to notice as provided for under RCW 11.96A.110 and to the attorney general in the case of a charitable trust subject to chapter 11.110 RCW. The notice shall: (a) State the name and mailing address of the trustee; (b) Include a copy of the governing instrument of the trust; (c) Include a statement of assets and liabilities of the trust dated within ninety days of the notice; (d) State the name and mailing address of the trustee to whom the assets or administration will be transferred together with evidence that the trustee has agreed to accept the assets or trust administration in the manner provided by law of the new place of administration. The notice shall also contain a statement of the trustee’s qualifications and the name of the court, if any, having jurisdiction of that trustee or in which a proceeding with respect to the administration of the trust may be heard; (e) State the facts supporting the requirements of RCW 11.98.045(2); (f) Advise the beneficiaries of the right to petition for judicial determination of the proposed transfer as provided in RCW 11.98.055; and (g) Include a form on which the recipient may indicate consent or objection to the proposed transfer. (2) If the trustee receives written consent to the proposed transfer from all persons entitled to notice, the trustee may transfer the trust assets or place of administration as provided in the notice. Transfer in accordance with the notice is a full discharge of the trustee’s duties in relation to all property referred to therein. Any person dealing with the trustee is entitled to rely on the authority of the trustee to act and is not obliged to inquire into the validity or propriety of the transfer. [1999 c 42 § 619; 1985 c 30 § 46. Prior: 1984 c 149 § 75.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.055 11.98.055 Judicial transfer of trust assets or administration. (1) Any trustee, beneficiary, or beneficiary representative may petition the superior court of the county of the situs of the trust for a transfer of trust assets or transfer of the place of administration in accordance with RCW 11.96A.080 through 11.96A.200. (2) At the conclusion of the hearing, if the court finds the requirements of RCW 11.98.045(2) have been satisfied, it may direct the transfer of trust assets or the place of trust administration on such terms and conditions as it deems appropriate. The court in its discretion may provide for payment from the trust of reasonable fees and expenses for any party to the proceeding. Delivery of trust assets in accordance with the court’s order is a full discharge of the trustee’s duties in relation to all transferred property. [1999 c 42 § 620; 1985 c 30 § 47. Prior: 1984 c 149 § 76.] (2006 Ed.) 11.98.070 Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.060 11.98.060 Power of successor trustee. A successor trustee of a trust shall succeed to all the powers, duties and discretionary authority of the original trustee. [1985 c 30 § 48. Prior: 1959 c 124 § 6. Formerly RCW 30.99.060.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.98.065 11.98.065 Change in form of corporate trustee. Any appointment of a specific bank, trust company, or corporation as trustee is conclusively presumed to authorize the appointment or continued service of that entity’s successor in interest in the event of a merger, acquisition, or reorganization, and no court proceeding is necessary to affirm the appointment or continuance of service. [1985 c 30 § 49. Prior: 1984 c 149 § 78.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.070 11.98.070 Power of trustee. A trustee, or the trustees jointly, of a trust, in addition to the authority otherwise given by law, have discretionary power to acquire, invest, reinvest, exchange, sell, convey, control, divide, partition, and manage the trust property in accordance with the standards provided by law, and in so doing may: (1) Receive property from any source as additions to the trust or any fund of the trust to be held and administered under the provisions of the trust; (2) Sell on credit; (3) Grant, purchase or exercise options; (4) Sell or exercise subscriptions to stock or other corporate securities and to exercise conversion rights; (5) Deposit stock or other corporate securities with any protective or other similar committee; (6) Assent to corporate sales, leases, and encumbrances; (7) Vote trust securities in person or by proxy with power of substitution; and enter into voting trusts; (8) Register and hold any stocks, securities, or other property in the name of a nominee or nominees without mention of the trust relationship, provided the trustee or trustees are liable for any loss occasioned by the acts of any nominee, except that this subsection shall not apply to situations covered by subsection (31) of this section; (9) Grant leases of trust property, with or without options to purchase or renew, to begin within a reasonable period and for terms within or extending beyond the duration of the trust, for any purpose including exploration for and removal of oil, gas and other minerals; enter into community oil leases, pooling and unitization agreements; (10) Subdivide, develop, dedicate to public use, make or obtain the vacation of public plats, adjust boundaries, partition real property, and on exchange or partition to adjust dif[Title 11 RCW—page 111] 11.98.070 Title 11 RCW: Probate and Trust Law ferences in valuation by giving or receiving money or money’s worth; (11) Compromise or submit claims to arbitration; (12) Borrow money, secured or unsecured, from any source, including a corporate trustee’s banking department, or from the individual trustee’s own funds; (13) Make loans, either secured or unsecured, at such interest as the trustee may determine to any person, including any beneficiary of a trust, except that no trustee who is a beneficiary of a trust may participate in decisions regarding loans to such beneficiary from the trust, unless the loan is as described in *RCW 83.110.020(2), and then only to the extent of the loan, and also except that if a beneficiary or the grantor of a trust has the power to change a trustee of the trust, the power to loan shall be limited to loans at a reasonable rate of interest and for adequate security; (14) Determine the hazards to be insured against and maintain insurance for them; (15) Select any part of the trust estate in satisfaction of any partition or distribution, in kind, in money or both; make nonpro rata distributions of property in kind; allocate particular assets or portions of them or undivided interests in them to any one or more of the beneficiaries without regard to the income tax basis of specific property allocated to any beneficiary and without any obligation to make an equitable adjustment; (16) Pay any income or principal distributable to or for the use of any beneficiary, whether that beneficiary is under legal disability, to the beneficiary or for the beneficiary’s use to the beneficiary’s parent, guardian, custodian under the uniform gifts to minors act of any state, person with whom he resides, or third person; (17) Change the character of or abandon a trust asset or any interest in it; (18) Mortgage, pledge the assets or the credit of the trust estate, or otherwise encumber trust property, including future income, whether an initial encumbrance or a renewal or extension of it, for a term within or extending beyond the term of the trust, in connection with the exercise of any power vested in the trustee; (19) Make ordinary or extraordinary repairs or alterations in buildings or other trust property, demolish any improvements, raze existing structures, and make any improvements to trust property; (20) Create restrictions, easements, including easements to public use without consideration, and other servitudes; (21) Manage any business interest, including any farm or ranch interest, regardless of form, received by the trustee from the trustor of the trust, as a result of the death of a person, or by gratuitous transfer from any other transferor, and with respect to the business interest, have the following powers: (a) To hold, retain, and continue to operate that business interest solely at the risk of the trust, without need to diversify and without liability on the part of the trustee for any resulting losses; (b) To enlarge or diminish the scope or nature or the activities of any business; (c) To authorize the participation and contribution by the business to any employee benefit plan, whether or not quali[Title 11 RCW—page 112] fied as being tax deductible, as may be desirable from time to time; (d) To use the general assets of the trust for the purpose of the business and to invest additional capital in or make loans to such business; (e) To endorse or guarantee on behalf of the trust any loan made to the business and to secure the loan by the trust’s interest in the business or any other property of the trust; (f) To leave to the discretion of the trustee the manner and degree of the trustee’s active participation in the management of the business, and the trustee is authorized to delegate all or any part of the trustee’s power to supervise, manage, or operate to such persons as the trustee may select, including any partner, associate, director, officer, or employee of the business; and also including electing or employing directors, officers, or employees of the trustee to take part in the management of the business as directors or officers or otherwise, and to pay that person reasonable compensation for services without regard to the fees payable to the trustee; (g) To engage, compensate, and discharge or to vote for the engaging, compensating, and discharging of managers, employees, agents, lawyers, accountants, consultants, or other representatives, including anyone who may be a beneficiary of the trust or any trustee; (h) To cause or agree that surplus be accumulated or that dividends be paid; (i) To accept as correct financial or other statements rendered by any accountant for any sole proprietorship or by any partnership or corporation as to matters pertaining to the business except upon actual notice to the contrary; (j) To treat the business as an entity separate from the trust, and in any accounting by the trustee it is sufficient if the trustee reports the earning and condition of the business in a manner conforming to standard business accounting practice; (k) To exercise with respect to the retention, continuance, or disposition of any such business all the rights and powers that the trustor of the trust would have if alive at the time of the exercise, including all powers as are conferred on the trustee by law or as are necessary to enable the trustee to administer the trust in accordance with the instrument governing the trust, subject to any limitations provided for in the instrument; and (l) To satisfy contractual and tort liabilities arising out of an unincorporated business, including any partnership, first out of the business and second out of the estate or trust, but in no event may there be a liability of the trustee, except as provided in RCW 11.98.110 (2) and (4), and if the trustee is liable, the trustee is entitled to indemnification from the business and the trust, respectively; (22) Participate in the establishment of, and thereafter in the operation of, any business or other enterprise according to subsection (21) of this section except that the trustee shall not be relieved of the duty to diversify; (23) Cause or participate in, directly or indirectly, the formation, reorganization, merger, consolidation, dissolution, or other change in the form of any corporate or other business undertaking where trust property may be affected and retain any property received pursuant to the change; (24) Limit participation in the management of any partnership and act as a limited or general partner; (2006 Ed.) Trusts (25) Charge profits and losses of any business operation, including farm or ranch operation, to the trust estate as a whole and not to the trustee; make available to or invest in any business or farm operation additional moneys from the trust estate or other sources; (26) Pay reasonable compensation to the trustee or cotrustees considering all circumstances including the time, effort, skill, and responsibility involved in the performance of services by the trustee; (27) Employ persons, including lawyers, accountants, investment advisors, or agents, even if they are associated with the trustee, to advise or assist the trustee in the performance of the trustee’s duties or to perform any act, regardless of whether the act is discretionary, and to act without independent investigation upon their recommendations, except that: (a) A trustee may not delegate all of the trustee’s duties and responsibilities; (b) This power to employ and to delegate duties does not relieve the trustee of liability for such person’s discretionary acts, that, if done by the trustee, would result in liability to the trustee; (c) This power to employ and to delegate duties does not relieve the trustee of the duty to select and retain a person with reasonable care; (d) The trustee, or a successor trustee, may sue the person to collect any damages suffered by the trust estate even though the trustee might not be personally liable for those damages, subject to the statutes of limitation that would have applied had the claim been one against the trustee who was serving when the act or failure to act occurred; (28) Appoint an ancillary trustee or agent to facilitate management of assets located in another state or foreign country; (29) Retain and store such items of tangible personal property as the trustee selects and pay reasonable storage charges thereon from the trust estate; (30) Issue proxies to any adult beneficiary of a trust for the purpose of voting stock of a corporation acting as the trustee of the trust; (31) Place all or any part of the securities at any time held by the trustee in the care and custody of any bank, trust company, or member firm of the New York Stock Exchange with no obligation while the securities are so deposited to inspect or verify the same and with no responsibility for any loss or misapplication by the bank, trust company, or firm, so long as the bank, trust company, or firm was selected and retained with reasonable care, and have all stocks and registered securities placed in the name of the bank, trust company, or firm, or in the name of its nominee, and to appoint such bank, trust company, or firm agent as attorney to collect, receive, receipt for, and disburse any income, and generally may perform, but is under no requirement to perform, the duties and services incident to a so-called "custodian" account; (32) Determine at any time that the corpus of any trust is insufficient to implement the intent of the trust, and upon this determination by the trustee, terminate the trust by distribution of the trust to the current income beneficiary or beneficiaries of the trust or their legal representatives, except that this determination may only be made by the trustee if the (2006 Ed.) 11.98.080 trustee is neither the grantor nor the beneficiary of the trust, and if the trust has no charitable beneficiary; (33) Continue to be a party to any existing voting trust agreement or enter into any new voting trust agreement or renew an existing voting trust agreement with respect to any assets contained in trust; and (34)(a) Donate a qualified conservation easement, as defined by section 2031(c) of the Internal Revenue Code, on any real property, or consent to the donation of a qualified conservation easement on any real property by a personal representative of an estate of which the trustee is a devisee, to obtain the benefit of the estate tax exclusion allowed under section 2031(c) of the Internal Revenue Code or the deduction allowed under section 2055(f) of the Internal Revenue Code as long as: (i)(A) The governing instrument authorizes the donation of a qualified conservation easement on the real property; or (B) Each beneficiary that may be affected by the qualified conservation easement consents to the donation under the provisions of chapter 11.96A RCW; and (ii) The donation of a qualified conservation easement will not result in the insolvency of the decedent’s estate. (b) The authority granted under this subsection includes the authority to amend a previously donated qualified conservation easement, as defined under section 2031(c)(8)(B) of the Internal Revenue Code, and to amend a previously donated unqualified conservation easement for the purpose of making the easement a qualified conservation easement under section 2031(c)(8)(B). [2002 c 66 § 1; 1997 c 252 § 75; 1989 c 40 § 7; 1985 c 30 § 50. Prior: 1984 c 149 § 80; 1959 c 124 § 7. Formerly RCW 30.99.070.] *Reviser’s note: RCW 83.110.020 was repealed by 2005 c 332 § 15, effective January 1, 2006. Construction—1989 c 40: "(1) The amendments made in this act with respect to the excise tax imposed under section 4980A(d) of the Internal Revenue Code of 1986, as amended, are to be effective as to excise tax imposed by reason of a decedent’s death occurring after April 18, 1989. (2) The amendments made in this act regarding apportionment of the tax with respect to qualified real property, and regarding extensions to pay tax, shall be effective with respect to the tax attributable to deaths occurring after April 18, 1989. (3) The amendment to RCW 11.98.070(13) shall be effective with respect to loans described in RCW 83.110.020(2) made or committed to be made after April 18, 1989." [1989 c 40 § 8.] Severability—1989 c 40: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 c 40 § 9.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.080 11.98.080 Consolidation of trusts. (1) Two or more trusts may be consolidated if: (a) The trusts so provide; or (b) Whether provided in the trusts or not, in accordance with subsection (2) of this section, if all interested persons consent as provided in subsection (2)(b) of this section and the requirements of subsection (1)(d) of this section are satisfied; or [Title 11 RCW—page 113] 11.98.090 Title 11 RCW: Probate and Trust Law (c) Whether provided in the trusts or not, in accordance with subsection (3) of this section if the requirements of subsection (1)(d) of this section are satisfied; (d) Consolidation under subsection (2) or (3) of this section is permitted only if: (i) The dispositive provisions of each trust to be consolidated are substantially similar; (ii) Consolidation is not inconsistent with the intent of the trustor with regard to any trust to be consolidated; and (iii) Consolidation would facilitate administration of the trusts and would not materially impair the interests of the beneficiaries; (e) Trusts may be consolidated whether created inter vivos or by will, by the same or different instruments, by the same or different trustors, whether the trustees are the same, and regardless of where the trusts were created or administered. (2) The trustees of two or more trusts may consolidate the trusts on such terms and conditions as appropriate without court approval as provided in RCW 11.96A.220. (a) The trustee shall give written notice of proposed consolidation by personal service or by certified mail to the beneficiaries of every trust affected by the consolidation as provided in RCW 11.96A.110 and to any trustee of such trusts who does not join in the notice. The notice shall: (i) State the name and mailing address of the trustee; (ii) include a copy of the governing instrument of each trust to be consolidated; (iii) include a statement of assets and liabilities of each trust to be consolidated, dated within ninety days of the notice; (iv) fully describe the terms and manner of consolidation; and (v) state the reasons supporting the requirements of subsection (1)(d) of this section. The notice shall advise the recipient of the right to petition for a judicial determination of the proposed consolidation as provided in subsection (3) of this section. The notice shall include a form on which consent or objection to the proposed consolidation may be indicated. (b) If the trustee receives written consent to the proposed consolidation from all persons entitled to notice as provided in RCW 11.96A.110 or from their representatives, the trustee may consolidate the trusts as provided in the notice. Any person dealing with the trustee of the resulting consolidated trust is entitled to rely on the authority of that trustee to act and is not obliged to inquire into the validity or propriety of the consolidation under this section. (3)(a) Any trustee, beneficiary, or special representative may petition the superior court of the county in which the principal place of administration of a trust is located for an order consolidating two or more trusts under RCW 11.96A.080 through 11.96A.200. If nonjudicial consolidation has been commenced pursuant to subsection (2) of this section, a petition may be filed under this section unless the trustee has received all necessary consents. The principal place of administration of the trust is the trustee’s usual place of business where the records pertaining to the trust are kept, or the trustee’s residence if the trustee has no such place of business. (b) At the conclusion of the hearing, if the court finds that the requirements of subsection (1)(d) of this section have been satisfied, it may direct consolidation of two or more trusts on such terms and conditions as appropriate. The court in its discretion may provide for payment from one or more [Title 11 RCW—page 114] of the trusts of reasonable fees and expenses for any party to the proceeding. (4) This section applies to all trusts whenever created. (5) For powers of fiduciaries to divide trusts, see RCW 11.108.025. [1999 c 42 § 621; 1991 c 6 § 2; 1985 c 30 § 51. Prior: 1984 c 149 § 81.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.090 11.98.090 Nonliability of third persons without knowledge of breach. In the absence of knowledge of a breach of trust, no party dealing with a trustee is required to see to the application of any moneys or other properties delivered to the trustee. [1985 c 30 § 52. Prior: 1984 c 149 § 83; 1959 c 124 § 8. Formerly RCW 30.99.080.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.100 11.98.100 Nonliability for action or inaction based on lack of knowledge of events. When the happening of any event, including but not limited to such events as marriage, divorce, performance of educational requirements, or death, affects the administration or distribution of the trust, then a trustee who has exercised reasonable care to ascertain the happening of the event is not liable for any action or inaction based on lack of knowledge of the event. A corporate trustee is not liable prior to receiving such knowledge or notice in its trust department office where the trust is being administered. [1985 c 30 § 53. Prior: 1984 c 149 § 84; 1959 c 124 § 9. Formerly RCW 30.99.090.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.110 11.98.110 Contract and tort liability. As used in this section, a trust includes a probate estate, and a trustee includes a personal representative. The words "trustee" and "as trustee" mean "personal representative" and "as personal representative" where this section is being construed in regard to personal representatives. Actions on contracts which have been transferred to a trust and on contracts made by a trustee, and actions in tort for personal liability incurred by a trustee in the course of administration may be maintained by the party in whose favor the cause of action has accrued as follows: (1) The plaintiff may sue the trustee in the trustee’s representative capacity and any judgment rendered in favor of the plaintiff is collectible by execution out of the trust property: PROVIDED, HOWEVER, If the action is in tort, collection shall not be had from the trust property unless the court determines in the action that (a) the tort was a common incident of the kind of business activity in which the trustee or the trustee’s predecessor was properly engaged for the trust; or (b) that, although the tort was not a common incident (2006 Ed.) Trusts of such activity, neither the trustee nor the trustee’s predecessor, nor any officer or employee of the trustee or the trustee’s predecessor, was guilty of personal fault in incurring the liability; or (c) that, although the tort did not fall within classes (a) or (b) above, it increased the value of the trust property. If the tort is within classes (a) or (b) above, collection may be had of the full amount of damage proved, and if the tort is within class (c) above, collection may be had only to the extent of the increase in the value of the trust property. (2) If the action is on a contract made by the trustee, the trustee may be held personally liable on the contract, if personal liability is not excluded. Either the addition by the trustee of the words "trustee" or "as trustee" after the signature of a trustee to a contract or the transaction of business as trustee under an assumed name in compliance with chapter 19.80 RCW excludes the trustee from personal liability. If the action is on a contract transferred to the trust or trustee, subject to any rights therein vested at time of the transfer, the trustee is personally liable only if he or she has in writing assumed that liability. (3) In any such action against the trustee in the trustee’s representative capacity the plaintiff need not prove that the trustee could have secured reimbursement from the trust fund if the trustee had paid the plaintiff’s claim. (4) The trustee may also be held personally liable for any tort committed by him or her, or by his or her agents or employees in the course of their employments only if, and to the extent that, damages for the tort are not collectible from trust property as provided in and pursuant to subsection (1) of this section. (5) The procedure for all actions provided in this section is as provided in RCW 11.96A.080 through 11.96A.200. (6) Nothing in this section shall be construed to change the existing law with regard to the liability of the trustee of a charitable trust for the torts of the trustee. [1999 c 42 § 622; 1988 c 29 § 8; 1985 c 30 § 54. Prior: 1984 c 149 § 85; 1983 c 3 § 50; 1959 c 124 § 10. Formerly RCW 30.99.100.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.130 11.98.130 Rule against perpetuities. No provision of an instrument creating a trust, including the provisions of any further trust created, and no other disposition of property made pursuant to exercise of a power of appointment granted in or created through authority under such instrument is invalid under the rule against perpetuities, or any similar statute or common law, during the one hundred fifty years following the effective date of the instrument. Thereafter, unless the trust assets have previously become distributable or vested, the provision or other disposition of property is deemed to have been rendered invalid under the rule against perpetuities. [2001 c 60 § 1; 1985 c 30 § 55. Prior: 1984 c 149 § 87; 1965 c 145 § 11.98.010; prior: 1959 c 146 § 1. Formerly RCW 11.98.010.] Application—2001 c 60: "This act applies to any irrevocable trust with an effective date on or after January 1, 2002. Unless the trust instrument otherwise provides, this act does not apply to: (1) Any irrevocable trust with an (2006 Ed.) 11.98.160 effective date prior to January 1, 2002; or (2) a revocable inter vivos trust or testamentary trust with an effective date on or after January 1, 2002, if at all times after the date of enactment the creator of the revocable inter vivos trust or testamentary trust was not competent to revoke, amend, or modify the instrument." [2001 c 60 § 4.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.140 11.98.140 Distribution and vesting of assets. If, during the one hundred fifty years following the effective date of an instrument creating a trust, any of the trust assets should by the terms of the instrument or pursuant to any further trust or other disposition resulting from exercise of the power of appointment granted in or created through authority under such instrument, become distributable or any beneficial interest in any of the trust assets should by the terms of the instrument, or such further trust or other disposition become vested, such assets shall be distributed and such beneficial interest shall validly vest in accordance with the instrument, or such further trust or other disposition. [2001 c 60 § 2; 1985 c 30 § 56. Prior: 1984 c 149 § 88; 1965 c 145 § 11.98.020; prior: 1959 c 146 § 2. Formerly RCW 11.98.020.] Application—2001 c 60: See note following RCW 11.98.130. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.150 11.98.150 Distribution of assets after one hundred fifty year period. If, at the end of the one hundred fifty years following the effective date of an instrument creating a trust, any of the trust assets have not by the terms of the trust instrument become distributable or vested, then the assets shall be distributed as the superior court having jurisdiction directs, giving effect to the general intent of the creator of the trust or person exercising a power of appointment in the case of any further trust or other disposition of property made pursuant to the exercise of a power of appointment. [2001 c 60 § 3; 1985 c 30 § 57. Prior: 1984 c 149 § 89; 1965 c 145 § 11.98.030; prior: 1959 c 146 § 3. Formerly RCW 11.98.030.] Application—2001 c 60: See note following RCW 11.98.130. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.160 11.98.160 Effective date of irrevocable inter vivos trust—Effective date of revocable inter vivos or testamentary trust. For the purposes of RCW 11.98.130 through 11.98.150 the effective date of an instrument purporting to create an irrevocable inter vivos trust is the date on which it is executed by the trustor, and the effective date of an instrument purporting to create either a revocable inter vivos trust or a testamentary trust is the date of the trustor’s or testator’s death. [1989 c 14 § 2; 1985 c 30 § 58. Prior: 1984 c 149 § 90; 1965 c 145 § 11.98.040; prior: 1959 c 146 § 4. Formerly RCW 11.98.040.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. [Title 11 RCW—page 115] 11.98.170 Title 11 RCW: Probate and Trust Law Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.170 11.98.170 Designation of trustee as beneficiary of life insurance policy or retirement plan—Determination of proper recipient of proceeds—Definitions—Beneficiary designations executed before January 1, 1985, not invalidated. (1) Any life insurance policy or retirement plan payment provision may designate as beneficiary: (a) A trustee named or to be named by will, and immediately after the proving of the will, the proceeds of such insurance or of such plan designated as payable to that trustee, in part or in whole, shall be paid to the trustee in accordance with the beneficiary designation, to be held and disposed of under the terms of the will governing the testamentary trust; or (b) A trustee named or to be named under a trust agreement executed by the insured, the plan participant, or any other person, and the proceeds of such insurance or retirement plan designated as payable to such trustee, in part or in whole, shall be paid to the trustee in accordance with the beneficiary designation, to be held and disposed of by the trustee as provided in such trust agreement; a trust is valid even if the only corpus consists of the right of the trustee to receive as beneficiary insurance or retirement plan proceeds; any such trustee may also receive assets, other than insurance or retirement plan proceeds, by testamentary disposition or otherwise and, unless directed otherwise by the transferor of the assets, shall administer all property of the trust according to the terms of the trust agreement. (2) If no qualified trustee makes claim to the insurance policy or retirement plan proceeds from the insurance company or the plan administrator within twelve months after the death of the insured or plan participant, determination of the proper recipient of the proceeds shall be made pursuant to the judicial or nonjudicial dispute resolution procedures of chapter 11.96A RCW, unless prior to the institution of the judicial procedures, a qualified trustee makes claim to the proceeds, except that (a) if satisfactory evidence is furnished the insurance company or plan administrator within the twelve-month period showing that no trustee can or will qualify to receive such proceeds, payment shall be made to those otherwise entitled to the proceeds under the terms of the policy or retirement plan, including the terms of the beneficiary designation except that (b) if there is any dispute as to the proper recipient of insurance policy or retirement plan proceeds, the dispute shall be resolved pursuant to the judicial or nonjudicial resolution procedures in chapter 11.96A RCW. (3) The proceeds of the insurance or retirement plan as collected by the trustee are not subject to debts of the insured or the plan participant to any greater extent than if the proceeds were payable to any named beneficiary other than the personal representative or the estate of the insured or of the plan participant. (4) For purposes of this section the following definitions apply: (a) "Plan administrator" means the person upon whom claim must be made in order for retirement plan proceeds to be paid upon the death of the plan participant. (b) "Retirement plan" means any plan, account, deposit, annuity, or benefit, other than a life insurance policy, that [Title 11 RCW—page 116] provides for payment to a beneficiary designated by the plan participant for whom the plan is established. The term includes, without limitation, such plans regardless of source of funding, and, for example, includes pensions, annuities, stock bonus plans, employee stock ownership plans, profit sharing plans, self-employed retirement plans, individual retirement accounts, individual retirement annuities, and retirement bonds, as well as any other retirement plan or program. (c) "Trustee" includes any custodian under chapter 11.114 RCW or any similar statutory provisions of any other state and the terms "trust agreement" and "will" refer to the provisions of chapter 11.114 RCW or such similar statutory provisions of any other state. (5) Enactment of this section does not invalidate life insurance policy or retirement plan beneficiary designations executed prior to January 1, 1985, naming a trustee established by will or by trust agreement. [1999 c 42 § 623; 1991 c 193 § 29; 1985 c 30 § 59. Prior: 1984 c 149 § 91.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Effective date—Severability—1991 c 193: See RCW 11.114.903 and 11.114.904. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.98.200 11.98.200 Beneficiary trustee—Limitations on power. Due to the inherent conflict of interest that exists between a trustee and a beneficiary of a trust, unless the terms of a trust refer specifically to RCW 11.98.200 through 11.98.240 and provide expressly to the contrary, the powers conferred upon a trustee who is a beneficiary of the trust, other than the trustor as a trustee, cannot be exercised by the trustee to make: (1) Discretionary distributions of either principal or income to or for the benefit of the trustee, except to provide for the trustee’s health, education, maintenance, or support as described under section 2041 or 2514 of the Internal Revenue Code and the applicable regulations adopted under that section; (2) Discretionary allocations of receipts or expenses as between principal and income, unless the trustee acts in a fiduciary capacity whereby the trustee has no power to enlarge or shift a beneficial interest except as an incidental consequence of the discharge of the trustee’s fiduciary duties; or (3) Discretionary distributions of either principal or income to satisfy a legal obligation of the trustee. A proscribed power under this section that is conferred upon two or more trustees may be exercised by the trustees that are not disqualified under this section. If there is no trustee qualified to exercise a power proscribed under this section, a person described in RCW 11.96A.080 who is entitled to seek judicial proceedings with respect to a trust may apply to a court of competent jurisdiction to appoint another trustee who would not be disqualified, and the power may be exercised by another trustee appointed by the court. Alternatively, another trustee who would not be disqualified may be appointed in accordance with the provisions of the trust (2006 Ed.) Trusts instrument if the procedures are provided, or as set forth in RCW 11.98.039 as if the office of trustee were vacant, or by a nonjudicial dispute resolution agreement under RCW 11.96A.220. [1999 c 42 § 624; 1994 c 221 § 65; 1993 c 339 § 2.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Application—1994 c 221: "The 1994 c 221 amendments to RCW 11.98.200(3) are remedial in nature and apply retroactively to July 25, 1993." [1994 c 221 § 74.] Effective dates—1994 c 221: See note following RCW 11.94.070. Severability—1993 c 339: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1993 c 339 § 14.] 11.98.210 11.98.210 Beneficiary trustee—Disregard of provision conferring absolute or similar power—Power of removal. If a trustee is a beneficiary of the trust and the trust instrument confers the power to make distributions of principal or income for the trustee’s health, education, support, or maintenance as described in section 2041 or 2514 of the Internal Revenue Code and the applicable regulations adopted under that section, then a trust provision purporting to confer "absolute," "sole," "complete," "conclusive," or a similar discretion relating to the exercise of such trustee powers shall be disregarded in the exercise of the power, and the power may then only be exercised reasonably and in accordance with the ascertainable standard as set forth in RCW 11.98.200 and this section. A person who has the right to remove or to replace a trustee does not possess nor may the person be deemed to possess by virtue of having that right the powers of the trustee who is subject to removal or replacement. [1993 c 339 § 3.] Severability—1993 c 339: See note following RCW 11.98.200. 11.98.220 11.98.220 Beneficiary trustee—Inferences of law— Judicial review. RCW 11.98.200 through 11.98.240 do not raise any inference that the law of this state prior to July 25, 1993, was different than under RCW 11.98.200 through 11.98.240. Further, RCW 11.98.200 through 11.98.240 do not raise an inference that prior to July 25, 1993, a trustee’s exercise or failure to exercise a power described in RCW 11.98.200 through 11.98.240 was not subject to review by a court of competent jurisdiction for abuse of discretion or breach of fiduciary duty under chapter 11.96A RCW or other applicable law. Following July 25, 1993, the power of judicial review continues to apply. [1999 c 42 § 625; 1993 c 339 § 4.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Severability—1993 c 339: See note following RCW 11.98.200. 11.98.230 11.98.230 Beneficiary trustee—Income under marital deduction—Spousal power of appointment. Notwithstanding any provision of RCW 11.98.200 through 11.98.240 seemingly to the contrary, RCW 11.98.200 through 11.98.240 do not limit or restrict the distribution of income of a trust that qualifies or that otherwise could have qualified for the marital deduction under section 2056 or 2523 of the Internal Revenue Code, those Internal Revenue Code sections (2006 Ed.) 11.98.240 requiring that all income be distributed to the spouse of the decedent or of the trustor at least annually, whether or not an election was in fact made under section 2056(b)(7) or 2523(f) of the Internal Revenue Code. Further, RCW 11.98.200 through 11.98.240 do not limit or restrict the power of a spouse of the trustor or the spouse of the decedent to exercise a power of appointment described in section 2056(b)(5) or 2523(e) of the Internal Revenue Code with respect to that portion of the trust that could otherwise qualify for the marital deduction under either of those Internal Revenue Code sections. [1993 c 339 § 5.] Severability—1993 c 339: See note following RCW 11.98.200. 11.98.240 11.98.240 Beneficiary trustee—Applicability— Exceptions—Election of exception—Cause of action. (1)(a) RCW 11.98.200 and 11.98.210 respectively apply to: (i) A trust established under a will, codicil, trust agreement, declaration of trust, deed, or other instrument executed after July 25, 1993, unless the instrument’s terms refer specifically to RCW 11.98.200 or 11.98.210 respectively and provide expressly to the contrary. However, except for RCW 11.98.200(3), the 1994 c 221 amendments to RCW 11.98.200 apply to a trust established under a will, codicil, trust agreement, declaration of trust, deed, or other instrument executed after January 1, 1995, unless the instrument’s terms refer specifically to RCW 11.98.200 and provide expressly to the contrary. (ii) A trust created under a will, codicil, trust agreement, declaration of trust, deed, or other instrument executed before July 25, 1993, unless: (A) The trust is revoked or amended and the terms of the amendment refer specifically to RCW 11.98.200 and provide expressly to the contrary; (B) All parties in interest, as defined in subsection (3) of this section elect affirmatively, in the manner prescribed in subsection (4) of this section, not to be subject to the application of this subsection. The election must be made by the later of September 1, 2000, or three years after the date on which the trust becomes irrevocable; or (C) A person entitled to judicial proceedings for a declaration of rights or legal relations under RCW 11.96A.080 obtains a judicial determination that the application of this subsection (1)(a)(ii) to the trust is inconsistent with the provisions or purposes of the will or trust. (b) Notwithstanding (a) of this subsection, RCW 11.98.200 and 11.98.210 respectively apply to a trust established under a will or codicil of a decedent dying on or after July 25, 1993, and to an inter vivos trust to which the trustor had on or after July 25, 1993, the power to terminate, revoke, amend, or modify, unless: (i) The terms of the instrument specifically refer to RCW 11.98.200 or 11.98.210 respectively and provide expressly to the contrary; or (ii) The decedent or the trustor was not competent, on July 25, 1993, to change the disposition of his or her property, or to terminate, revoke, amend, or modify the trust, and did not regain his or her competence to dispose, terminate, revoke, amend, or modify before the date of the decedent’s death or before the trust could not otherwise be revoked, terminated, amended, or modified by the decedent or trustor. [Title 11 RCW—page 117] 11.98.900 Title 11 RCW: Probate and Trust Law (2) RCW 11.98.200 neither creates a new cause of action nor impairs an existing cause of action that, in either case, relates to a power proscribed under RCW 11.98.200 that was exercised before July 25, 1993. RCW 11.98.210 neither creates a new cause of action nor impairs an existing cause of action that, in either case, relates to a power proscribed, limited, or qualified under RCW 11.98.210. (3) For the purpose of subsection (1)(a)(ii) of this section, "parties in interest" means those persons identified as "parties" under RCW 11.96A.030(4). (4) The affirmative election required under subsection (1)(a)(ii)(B) of this section must be made in the following manner: (a) If the trust is revoked or amended, through a revocation of or an amendment to the trust; or (b) Through a nonjudicial dispute resolution agreement described in RCW 11.96A.220. [1999 c 42 § 626; 1997 c 252 § 76; 1994 c 221 § 66; 1993 c 339 § 6.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Effective dates—1994 c 221: See note following RCW 11.94.070. Severability—1993 c 339: See note following RCW 11.98.200. 11.98.900 11.98.900 Application of RCW 11.98.130 through 11.98.160. The provisions of RCW 11.98.130 through 11.98.160 are applicable to any instrument purporting to create a trust regardless of the date such instrument bears, unless it has been previously adjudicated in the courts of this state. [1985 c 30 § 60. Prior: 1984 c 149 § 93; 1971 ex.s. c 229 § 1; 1965 c 145 § 11.98.050; prior: 1959 c 146 § 5. Formerly RCW 11.98.050.] 11.99.013 11.99.015 11.99.020 11.99.030 11.99.010 Effective date of title. This title shall take effect and be in force on and after the first day of July, 1967; except that sections 11.44.055, 11.44.065, 11.44.070 and 11.44.080 shall take effect on July 1, 1965, and the repeal of the following acts or parts of acts as listed in section 11.99.015 shall also take effect on July 1, 1965, to wit: In subsection (10), section 1444, Code of 1881; in subsection (47), section 95, chapter 156, Laws of 1917; in subsection (48), section 1, chapter 23, Laws of 1919; in subsection (64), section 1, chapter 112, Laws of 1929; in subsection (66), section 123, chapter 180, Laws of 1935; in subsection (71), section 8, chapter 202, Laws of 1939; and in subsection (111), section 83.16.040, chapter 15, Laws of 1961. Except as above provided the procedures herein prescribed shall govern all proceedings in probate brought after the effective date of the title and, also, all further procedure and proceedings in probate then pending, except to the extent that in the opinion of the court their application in particular proceedings or part thereof would not be feasible or would work injustice, in which event the former procedure shall apply. [1965 c 145 § 11.99.010.] 11.99.010 11.99.013 Headings not part of law. Title headings, chapter headings, and section or subsection headings, as used in this title do not constitute any part of the law. [1965 c 145 § 11.99.013.] 11.99.013 11.99.015 Repeal. 11.99.015 Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Effective date—1959 c 146: The effective date of 1959 c 146, herein reenacted by 1965 c 145 § 11.98.050, was midnight June 10, 1959, see preface 1959 session laws. 11.98.910 11.98.910 Severability—1959 c 124. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect the other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. [1985 c 30 § 61. Prior: 1959 c 124 § 11. Formerly RCW 30.99.900.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.98.920 11.98.920 Short title. This act shall be known as the "Washington Trust Act." [1985 c 30 § 62. Prior: 1959 c 124 § 12. Formerly RCW 30.99.910.] Headings not part of law. Repeal. Savings clause—Rights not affected. Severability—1965 c 145. See 1965 c 145 § 11.99.015. 11.99.020 Savings clause—Rights not affected. No act done in any proceeding commenced before this title takes effect and no accrued right shall be impaired by its provisions. When a right is acquired, extinguished or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute in force before this title takes effect, such provisions shall remain in force and be deemed a part of this code with respect to such right. [1965 c 145 § 11.99.020.] 11.99.020 11.99.030 Severability—1965 c 145. If any provisions of this title or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the title which can be given effect without the invalid provision or application, and, to this end, provisions of this title are declared to be severable. [1965 c 145 § 11.99.030.] 11.99.030 Chapter 11.100 Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Chapter 11.100 RCW INVESTMENT OF TRUST FUNDS Sections Chapter 11.99 Chapter 11.99 RCW CONSTRUCTION Sections 11.99.010 Effective date of title. [Title 11 RCW—page 118] 11.100.010 11.100.015 11.100.020 11.100.023 11.100.025 11.100.030 Provisions of chapter to control—Alteration by controlling instrument. Guardians, guardianships and funds are subject to chapter. Management of trust assets by fiduciary. Authority of fiduciary to invest in certain enterprises. Marital deduction interests. Investment in savings accounts—Requirements. (2006 Ed.) Investment of Trust Funds 11.100.035 11.100.037 11.100.040 11.100.045 11.100.047 11.100.050 11.100.060 11.100.070 11.100.090 11.100.120 11.100.130 11.100.140 Investments in securities of certain investment trusts. Investment or distribution of funds held in fiduciary capacity—Deposit in other departments authorized—Collateral security required, exception. Court may permit deviation from terms of trust instrument. Fiduciary—Duty to beneficiaries. Fiduciary—Duty to diversify. Scope of chapter. Fiduciary may hold and retain trust property—Investments— Liability. Meaning of terms in trust instrument. Dealings with self or affiliate. Use of trust funds for life insurance. Person to whom power or authority to direct or control acts of fiduciary or investments of a trust is conferred deemed a fiduciary—Liability. Notice and procedure for nonroutine transactions. Trust provisions may relieve trustee from duty, restriction, or liability imposed by statute: RCW 11.97.010. 11.100.010 11.100.010 Provisions of chapter to control—Alteration by controlling instrument. Any corporation, association, or person handling or investing trust funds as a fiduciary shall be governed in the handling and investment of such funds as in this chapter specified. A fiduciary who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with requirements of this chapter. The specific requirements of this chapter may be expanded, restricted, eliminated, or otherwise altered by provisions of the controlling instrument. [1995 c 307 § 1; 1985 c 30 § 63. Prior: 1955 c 33 § 30.24.010; prior: 1947 c 100 § 1; Rem. Supp. 1947 § 3255-10a. Formerly RCW 30.24.010.] 11.100.025 (2) Except as may be provided to the contrary in the instrument, the following are among the factors that should be considered by a fiduciary in applying this total asset management approach: (a) The probable income as well as the probable safety of their capital; (b) Marketability of investments; (c) General economic conditions; (d) Length of the term of the investments; (e) Duration of the trust; (f) Liquidity needs; (g) Requirements of the beneficiary or beneficiaries; (h) Other assets of the beneficiary or beneficiaries, including earning capacity; and (i) Effect of investments in increasing or diminishing liability for taxes. (3) Within the limitations of the foregoing standard, and subject to any express provisions or limitations contained in any particular trust instrument, a fiduciary is authorized to acquire and retain every kind of property, real, personal, or mixed, and every kind of investment specifically including but not by way of limitation, debentures and other corporate obligations, and stocks, preferred or common, which persons of prudence, discretion, and intelligence acquire for their own account. [1995 c 307 § 2; 1985 c 30 § 65. Prior: 1984 c 149 § 97; 1955 c 33 § 30.24.020; prior: 1947 c 100 § 2; Rem. Supp. 1947 § 3255-10b. Formerly RCW 30.24.020.] Application—1995 c 307: See note following RCW 11.100.010. Application—1995 c 307: "This act applies prospectively only and not retroactively." [1995 c 307 § 7.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.100.015 11.100.015 Guardians, guardianships and funds are subject to chapter. In addition to other fiduciaries, a guardian of any estate is a fiduciary within the meaning of this chapter; and in addition to other trusts, a guardianship of any estate is a trust within the meaning of this chapter; and in addition to other trust funds, guardianship funds are trust funds within the meaning of this chapter. [1985 c 30 § 64. Prior: 1955 c 33 § 30.24.015; prior: 1951 c 218 § 1. Formerly RCW 30.24.015.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.100.020 11.100.020 Management of trust assets by fiduciary. (1) A fiduciary is authorized to acquire and retain every kind of property. In acquiring, investing, reinvesting, exchanging, selling and managing property for the benefit of another, a fiduciary, in determining the prudence of a particular investment, shall give due consideration to the role that the proposed investment or investment course of action plays within the overall portfolio of assets. In applying such total asset management approach, a fiduciary shall exercise the judgment and care under the circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, and if the fiduciary has special skills or is named trustee on the basis of representations of special skills or expertise, the fiduciary is under a duty to use those skills. (2006 Ed.) Endowment care funds to be invested in accordance with RCW 11.100.020: RCW 68.44.030. 11.100.023 11.100.023 Authority of fiduciary to invest in certain enterprises. Subject to the standards of RCW 11.100.020, a fiduciary is authorized to invest in new, unproven, untried, or other enterprises with a potential for significant growth whether producing a current return, either by investing directly therein or by investing as a limited partner or otherwise in one or more commingled funds which in turn invest primarily in such enterprises. The aggregate amount of investments held by a fiduciary under the authority of this section valued at cost shall not exceed ten percent of the net fair market value of the trust corpus, including investments made under the authority of this section valued at fair market value, immediately after any such investment is made. Any investment which would have been authorized by this section if in force at the time the investment was made is hereby authorized. [1985 c 30 § 66. Prior: 1984 c 149 § 98.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Securities in default ineligible for investment: RCW 30.24.080. 11.100.025 11.100.025 Marital deduction interests. Notwithstanding RCW 11.98.070(21)(a), 11.100.060, or any other statutory provisions to the contrary, with respect to trusts which require by their own terms or by operation of law that [Title 11 RCW—page 119] 11.100.030 Title 11 RCW: Probate and Trust Law all income be paid at least annually to the spouse of the trust’s creator, which do not provide that on the termination of the income interest that the entire then remaining trust estate be paid to the estate of the spouse of the trust’s creator, and for which a federal estate or gift tax marital deduction is claimed, any investment in or retention of unproductive property is subject to a power in the spouse of the trust’s creator to require either that any such asset be made productive, or that it be converted to productive assets within a reasonable period of time unless the instrument creating the interest provides otherwise. [1985 c 30 § 67. Prior: 1984 c 149 § 99.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Securities in default ineligible for investment: RCW 30.24.080. 11.100.030 11.100.030 Investment in savings accounts— Requirements. A corporation doing a trust business may invest trust funds in savings accounts with itself to the extent that deposits are insured by an agency of the federal government. Additional trust funds may be so invested by the corporation only if it first sets aside under the control of its trust department as collateral security: (1) Direct obligations of the United States or other obligations fully guaranteed by the United States as to principal and interest; or (2) Bonds or other obligations which constitute general obligations of any state of the United States or municipal subdivision thereof. The securities so deposited or securities substituted therefor as collateral shall at all times be at least equal in market value to the amount of the funds so deposited. [1985 c 30 § 68. Prior: 1984 c 149 § 101; 1967 c 133 § 3; 1955 c 33 § 30.24.030; prior: 1947 c 100 § 3; Rem. Supp. 1947 § 325510c. Formerly RCW 30.24.030.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.100.035 11.100.035 Investments in securities of certain investment trusts. (1) Within the standards of judgment and care established by law, and subject to any express provisions or limitations contained in any particular trust instrument, guardians, trustees, and other fiduciaries, whether individual or corporate, are authorized to acquire and retain securities of any open-end or closed-end management type investment company or investment trust registered under the federal investment company act of 1940 as now or hereafter amended. (2) Within the limitations of subsection (1) of this section, whenever the trust instrument directs, requires, authorizes, or permits investment in obligations of the United States government, the fiduciary may invest in and hold such obligations either directly or in the form of securities of, or other interests in, an open-end or closed-end management type investment company or investment trust registered under the federal investment company act of 1940, as now or hereafter amended, if both of the following conditions are met: [Title 11 RCW—page 120] (a) The portfolio of the investment company or investment trust is limited to obligations of the United States and to repurchase agreements fully collateralized by such obligations; and (b) The investment company or investment trust takes delivery of the collateral for any repurchase agreement either directly or through an authorized custodian. (3) If the fiduciary is a bank or trust company, then the fact that the fiduciary, or an affiliate of the fiduciary, provides services to the investment company or investment trust such as that of an investment advisor, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise, and is receiving reasonable compensation for those services does not preclude the bank or trust company from investing or reinvesting in the securities of the open-end or closed-end management investment company or investment trust. The fiduciary shall furnish a copy of the prospectus relating to the securities to each person to whom a regular periodic accounting would ordinarily be rendered under the trust instrument or under RCW 11.106.020, upon the request of that person. The restrictions set forth under RCW 11.100.090 may not be construed as prohibiting the fiduciary powers granted under this subsection. [1995 c 307 § 3; 1994 c 221 § 68; 1989 c 97 § 1; 1985 c 30 § 69. Prior: 1955 c 33 § 30.24.035; prior: 1951 c 132 § 1. Formerly RCW 30.24.035.] Application—1995 c 307: See note following RCW 11.100.010. Effective dates—1994 c 221: See note following RCW 11.94.070. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.100.037 11.100.037 Investment or distribution of funds held in fiduciary capacity—Deposit in other departments authorized—Collateral security required, exception. Funds held by a bank or trust company in a fiduciary capacity awaiting investment or distribution shall not be held uninvested or undistributed any longer than is reasonable for the proper management of the account. These funds, including managing agency accounts, may, unless prohibited by the instrument creating the trust or by other statutes of this state, be deposited in the commercial or savings or other department of the bank or trust company, only if the bank or trust company first sets aside under control of the trust department as collateral security: (1) Direct obligations of the United States or other obligations fully guaranteed by the United States as to principal and interest; or (2) Bonds or other obligations which constitute general obligations of any state of the United States or municipal subdivision thereof. The securities so deposited or securities substituted therefor as collateral shall at all times be at least equal in market value to the amount of the funds so deposited, but such security shall not be required to the extent that the funds so deposited are insured by an agency of the federal government. [1985 c 30 § 70. Prior: 1984 c 149 § 104; 1967 c 133 § 4. Formerly RCW 30.24.037.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. (2006 Ed.) Investment of Trust Funds 11.100.040 Court may permit deviation from terms of trust instrument. Nothing contained in this chapter shall be construed as restricting the power of a court of proper jurisdiction to permit a fiduciary to deviate from the terms of any will, agreement, or other instrument relating to the acquisition, investment, reinvestment, exchange, retention, sale, or management of fiduciary property. [1985 c 30 § 71. Prior: 1955 c 33 § 30.24.040; prior: 1947 c 100 § 4; Rem. Supp. 1947 § 3255-10d. Formerly RCW 30.24.040.] 11.100.040 Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.100.045 11.100.045 Fiduciary—Duty to beneficiaries. A fiduciary shall invest and manage the trust assets solely in the interests of the trust beneficiaries. If a trust has two or more beneficiaries, the fiduciary shall act impartially in investing and managing the trust assets, taking into account any differing interests of the beneficiaries. [1995 c 307 § 4.] Application—1995 c 307: See note following RCW 11.100.010. 11.100.047 Fiduciary—Duty to diversify. Subject to the provisions of RCW 11.100.060 and any express provisions in the trust instrument to the contrary, a fiduciary shall diversify the investments of the trust unless the fiduciary reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying. [1995 c 307 § 5.] 11.100.047 Application—1995 c 307: See note following RCW 11.100.010. 11.100.050 11.100.050 Scope of chapter. The provisions of this chapter govern fiduciaries acting under wills, agreements, court orders, and other instruments effective before or after January 1, 1985. [1985 c 30 § 72. Prior: 1984 c 149 § 107; 1955 c 33 § 30.24.050; prior: 1947 c 100 § 5; Rem. Supp. 1947 § 3255-10e. Formerly RCW 30.24.050.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.100.060 Fiduciary may hold and retain trust property—Investments—Liability. Subject to express provisions to the contrary in the trust instrument, any fiduciary may hold and retain any real or personal property received into or acquired by the trust from any source. Except as to trust property acquired for consideration, a fiduciary may hold and retain any such property without need for diversification as to kinds or amount and whether or not the property is income producing. Any fiduciary may invest funds held in trust under an instrument creating the trust in any manner and in any investment or in any class of investments authorized by the instrument. The investments described in this section are permissible even though the securities or other property are not permitted under other provisions of this chapter, and even though the securities may be securities issued by the corporation that is the fiduciary. A fiduciary is not liable for any loss incurred with respect to any investment held under the authority of or pursuant to this section if that investment was permitted when 11.100.060 (2006 Ed.) 11.100.130 received or when the investment was made by the fiduciary, and if the fiduciary exercises due care and prudence in the disposition or retention of any such investment. [1985 c 30 § 73. Prior: 1984 c 149 § 108.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.100.070 11.100.070 Meaning of terms in trust instrument. The terms "legal investment" or "authorized investment" or words of similar import, as used in any such instrument, shall be taken to mean any investment which is permitted by the terms of RCW 11.100.020. [1985 c 30 § 74. Prior: 1984 c 149 § 110; 1955 c 33 § 30.24.070; prior: 1947 c 100 § 7; 1941 c 41 § 13; Rem. Supp. 1947 § 3255-13. Formerly RCW 30.24.070.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.100.090 11.100.090 Dealings with self or affiliate. Unless the instrument creating the trust expressly provides to the contrary, any fiduciary in carrying out the obligations of the trust, may not buy or sell investments from or to himself, herself, or itself or any affiliated or subsidiary company or association. This section shall not be construed as prohibiting the trustee’s powers under RCW 11.98.070(12). [1985 c 30 § 75. Prior: 1984 c 149 § 111; 1955 c 33 § 30.24.090; prior: 1947 c 100 § 9; 1941 c 41 § 17; Rem. Supp. 1947 § 3255-17. Formerly RCW 30.24.090.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.100.120 11.100.120 Use of trust funds for life insurance. Subject to the standards of RCW 11.100.020, a fiduciary is authorized to use trust funds to acquire life insurance upon the life of any beneficiary or upon the life of another in whose life such beneficiary has an insurable interest. [1985 c 30 § 76. Prior: 1984 c 149 § 112; 1973 1st ex.s. c 89 § 1. Formerly RCW 30.24.120.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Insurabl e inte re st , guardian, trustee o r othe r fi duciary: RCW 48.18.030(3)(c). 11.100.130 11.100.130 Person to whom power or authority to direct or control acts of fiduciary or investments of a trust is conferred deemed a fiduciary—Liability. Whenever power or authority to direct or control the acts of a fiduciary or the investments of a trust is conferred directly or indirectly upon any person other than the designated trustee of the trust, such person shall be deemed to be a fiduciary and shall be liable to the beneficiaries of the trust and to the designated trustee to the same extent as if he or she were a designated trustee in relation to the exercise or nonexercise of such [Title 11 RCW—page 121] 11.100.140 Title 11 RCW: Probate and Trust Law power or authority. [1995 c 307 § 6; 1985 c 30 § 77. Prior: 1973 1st ex.s. c 89 § 2. Formerly RCW 30.24.130.] Application—1995 c 307: See note following RCW 11.100.010. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.100.140 Notice and procedure for nonroutine transactions. (1) A trustee shall not enter into a significant nonroutine transaction in the absence of a compelling circumstance without: (a) Providing the written notice called for by subsection (4) of this section; and (b) If the significant nonroutine transaction is of the type described in subsection (2)(a) of this section, obtaining an independent appraisal, or selling in an open-market transaction. (2) A "significant nonroutine transaction" for the purpose of this section is defined as any of the following: (a) Any sale, option, lease, or other agreement, binding for a period of ten years or more, dealing with any interest in real estate other than real estate purchased by the trustee or a vendor’s interest in a real estate contract, the value of which constitutes twenty-five percent or more of the net fair market value of trust principal at the time of the transaction; or (b) The sale of any item or items of tangible personal property, including a sale of precious metals or investment gems other than precious metals or investment gems purchased by the trustee, the value of which constitutes twentyfive percent or more of the net fair market value of trust principal at the time of the transaction; or (c) The sale of shares of stock in a corporation whose stock is not traded on the open market, if the stock in question constitutes more than twenty-five percent of the corporation’s outstanding shares; or (d) The sale of shares of stock in any corporation where the stock to be sold constitutes a controlling interest, or would cause the trust to no longer own a controlling interest, in the corporation. (3) A "compelling circumstance" for the purpose of this section is defined as a condition, fact, or event that the trustee believes necessitates action without compliance with this section in order to avoid immediate and significant detriment to the trust. If faced with a compelling circumstance, the trustee shall give the notice called for in subsection (4) of this section and may thereafter enter into the significant nonroutine transaction without waiting for the expiration of the twenty-day period. (4) The written notice required by this section shall set forth such material facts as necessary to advise properly the recipient of the notice of the nature and terms of the intended transaction. This notice shall be given to the trustor, if living, to each person who is eighteen years or older and to whom income is presently payable or for whom income is presently being accumulated for distribution as income and for whom an address is known to the trustee, and to the attorney general if the trust is a charitable trust under RCW 11.110.020. The notice shall be mailed by United States certified mail, postage prepaid, return receipt requested, to the recipient’s lastknown address, or may be personally served, at least twenty days prior to the trustee entering into any binding agreements. 11.100.140 [Title 11 RCW—page 122] (5) The trustor, if living, or persons entitled to notice under this section may, by written instrument, waive any requirement imposed by this section. (6) Except as required by this section for nonroutine transactions defined in subsection (2) of this section, a trustee shall not be required to notify beneficiaries of a trust of the trustee’s intended action, to obtain an independent appraisal, or to sell in an open-market transaction. (7) Any person dealing with a trustee may rely upon the trustee’s written statement that the requirements of this section have been met for a particular transaction. If a trustee gives such a statement, the transaction shall be final unless the party relying on the statement has actual knowledge that the requirements of this section have not been met. (8) The requirements of this section, and any similar requirements imposed by prior case law, shall not apply to personal representatives or to those trusts excluded from the definition of express trusts under RCW 11.98.009. [1985 c 30 § 78. Prior: 1984 c 149 § 114.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Chapter 11.102 Chapter 11.102 RCW COMMON TRUST FUNDS Sections 11.102.010 11.102.020 11.102.030 11.102.040 11.102.050 Funds authorized—Investment—Rules and regulations— "Affiliated" defined. Accounting. Applicability of chapter. Interpretation of chapter. Short title. 11.102.010 11.102.010 Funds authorized—Investment—Rules and regulations—"Affiliated" defined. Any bank or trust company qualified to act as fiduciary in this state, or in any other state if affiliated with a bank or trust company qualified to act as fiduciary in this state, may establish common trust funds for the purpose of furnishing investments to itself and its affiliated or related bank or trust company as fiduciary, or to itself and its affiliated or related bank or trust company, and others, as cofiduciaries; and may, as such fiduciary or cofiduciary, invest funds which it lawfully holds for investment in interests in such common trust funds, if such investment is not prohibited by the instrument, judgment, decree, or order creating such fiduciary relationship, and if, in the case of cofiduciaries, the bank or trust company procures the consent of its cofiduciary or cofiduciaries to such investment: PROVIDED, That any bank or trust company qualified to act as fiduciary in the state of its charter, which is not a member of the federal reserve system, shall, in the operation of such common trust fund, comply with the rules and regulations as made from time to time by the director of financial institutions in the state where chartered and in Washington the director is hereby authorized and empowered to make such rules and regulations as he or she may deem necessary and proper in the premises. "Affiliated" as used in this section means two or more banks or trust companies: (2006 Ed.) Washington Principal and Income Act of 2002 (1) In which twenty-five percent or more of their voting shares, excluding shares owned by the United States or by any company wholly owned by the United States, are directly or indirectly owned or controlled by a holding company; or (2) In which the election of a majority of the directors is controlled in any manner by a holding company. [1994 c 92 § 1; 1985 c 30 § 79. Prior: 1979 c 105 § 1; 1955 c 33 § 30.28.010; prior: 1943 c 55 § 1; Rem. Supp. 1943 § 3388. Formerly RCW 30.28.010.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. ARTICLE 2 DECEDENT’S ESTATE OR TERMINATING INCOME INTEREST 11.104A.050 Determination and distribution of net income. 11.104A.060 Distribution to residuary and remainder beneficiaries. ARTICLE 3 APPORTIONMENT AT BEGINNING AND END OF INCOME INTEREST 11.104A.070 When right to income begins and ends. 11.104A.080 Apportionment of receipts and disbursements when decedent dies or income interest begins. 11.104A.090 Apportionment when income interest ends. ARTICLE 4 ALLOCATION OF RECEIPTS DURING ADMINISTRATION OF TRUST PART 1: RECEIPTS FROM ENTITIES 11.102.020 11.102.020 Accounting. Unless ordered by a court of competent jurisdiction the bank or trust company operating such common trust funds is not required to render a court accounting with regard to such funds; but it may, by application to the superior court, secure approval of such an accounting on such conditions as the court may establish. [1985 c 30 § 80. Prior: 1955 c 33 § 30.28.020; prior: 1943 c 55 § 2; Rem. Supp. 1943 § 3388-1. Formerly RCW 30.28.020.] 11.104A.100 Character of receipts. 11.104A.110 Distribution from trust or estate. 11.104A.120 Business and other activities conducted by trustee. PART 2: RECEIPTS NOT NORMALLY APPORTIONED 11.104A.130 11.104A.140 11.104A.150 11.104A.160 Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.102.030 11.102.030 Applicability of chapter. This chapter shall apply to fiduciary relationships in existence on June 11, 1943, or thereafter established. [1985 c 30 § 81. Prior: 1955 c 33 § 30.28.030; prior: 1943 c 55 § 7; Rem. Supp. 1943 § 3388-6. Formerly RCW 30.28.030.] 11.102.040 Interpretation of chapter. This chapter shall be so interpreted and construed to effectuate its general purpose to make uniform the laws of those states which enact it. [1985 c 30 § 82. Prior: 1955 c 33 § 30.28.040; prior: 1943 c 55 § 3; Rem. Supp. 1943 § 3388-2. Formerly RCW 30.28.040.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.102.050 11.102.050 Short title. This chapter may be cited as the uniform common trust fund act. [1985 c 30 § 83. Prior: 1955 c 33 § 30.28.050; prior: 1943 c 55 § 4; Rem. Supp. 1943 § 3388-3. Formerly RCW 30.28.050.] Principal receipts. Rental property. Obligation to pay money. Insurance policies and similar contracts. PART 3: RECEIPTS NORMALLY APPORTIONED 11.104A.170 11.104A.180 11.104A.190 11.104A.200 11.104A.210 11.104A.220 11.104A.230 11.104A.240 Insubstantial allocations not required. Deferred compensation, annuities, and similar payments. Liquidating asset. Minerals, water, and other natural resources. Timber. Property not productive of income. Derivatives and options. Asset-backed securities. ARTICLE 5 ALLOCATION OF DISBURSEMENTS DURING ADMINISTRATION OF TRUST Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.102.040 11.104A.005 11.104A.250 11.104A.260 11.104A.270 11.104A.280 11.104A.290 11.104A.300 Disbursements from income. Disbursements from principal. Transfers from income to principal for depreciation. Transfers from income to reimburse principal. Income taxes. Adjustments between principal and income because of taxes. ARTICLE 6 MISCELLANEOUS PROVISIONS 11.104A.900 11.104A.901 11.104A.902 11.104A.903 11.104A.904 11.104A.905 Uniformity of application and construction. Application of chapter 11.96A RCW. Severability—2002 c 345. Captions, article and part headings not law—2002 c 345. Effective date—2002 c 345. Application of act to existing trusts and estates. ARTICLE 1 DEFINITIONS; FIDUCIARY DUTIES AND POWERS; REMEDIES Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.104A.001 Short title. This chapter may be cited as the Washington principal and income act of 2002. [2002 c 345 § 101.] 11.104A.001 Chapter 11.104A Chapter 11.104A RCW WASHINGTON PRINCIPAL AND INCOME ACT OF 2002 11.104A.005 Definitions. In this chapter: (1) "Accounting period" means a calendar year unless another twelve-month period is selected by a fiduciary. The term includes a portion of a calendar year or other twelvemonth period that begins when an income interest begins or ends when an income interest ends. (2) "Beneficiary" includes, in the case of a decedent’s estate, an heir, legatee, and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary. 11.104A.005 Sections ARTICLE 1 DEFINITIONS; FIDUCIARY DUTIES AND POWERS; REMEDIES 11.104A.001 11.104A.005 11.104A.010 11.104A.020 11.104A.030 11.104A.040 (2006 Ed.) Short title. Definitions. Fiduciary duties—General principles. Fiduciary’s power to adjust. Judicial control of discretionary powers. Power to convert to unitrust. [Title 11 RCW—page 123] 11.104A.010 Title 11 RCW: Probate and Trust Law (3) "Fiduciary" means a personal representative or a trustee. The term includes an executor, administrator, successor personal representative, special administrator, and a person performing substantially the same function. (4) "Income" means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in Article 4 of this chapter. (5) "Income beneficiary" means a person to whom net income of a trust is or may be payable. (6) "Income interest" means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustee’s discretion. (7) "Mandatory income interest" means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute. (8) "Net income" means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under this chapter to or from income during the period. (9) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity. (10) "Principal" means property held in trust for distribution to a remainder beneficiary. (11) "Remainder beneficiary" means a person entitled to receive principal, including when an income interest ends. (12) "Terms of a trust" means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding. The "terms of a trust" shall include without limitation such modifications as may be made from time to time with respect to the trust under chapter 11.96A RCW or otherwise under Washington or applicable federal laws. (13) "Trustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court. [2002 c 345 § 102.] 11.104A.010 11.104A.010 Fiduciary duties—General principles. (a) In allocating receipts and disbursements to or between principal and income, and with respect to any matter within the scope of this chapter, a fiduciary: (1) Shall administer a trust or estate in accordance with the terms of the trust or the will, even if there is a different provision in this chapter; (2) May administer a trust or estate by the exercise of a discretionary power of administration given to the fiduciary by the terms of the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by this chapter; (3) Shall administer a trust or estate in accordance with this chapter if the terms of the trust or the will do not contain a different provision or do not give the fiduciary a discretionary power of administration; and (4) Shall add a receipt or charge a disbursement to principal to the extent that the terms of the trust and this chapter [Title 11 RCW—page 124] do not provide a rule for allocating the receipt or disbursement to or between principal and income. (b) In exercising the power to adjust under RCW 11.104A.020 (a) or (e) or another discretionary power of administration regarding a matter within the scope of this chapter, whether granted by the terms of a trust, a will, or this chapter, a fiduciary shall administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries. A determination in accordance with this chapter is presumed to be fair and reasonable to all of the beneficiaries. [2002 c 345 § 103.] 11.104A.020 11.104A.020 Fiduciary’s power to adjust. (a) A trustee may adjust between principal and income to the extent the trustee considers necessary if the trustee invests and manages trust assets as a prudent investor, the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trust’s income, and the trustee determines, after applying the rules in RCW 11.104A.010(a), that the trustee is unable to comply with RCW 11.104A.010(b). (b) In deciding whether and to what extent to exercise the power conferred by subsection (a) of this section, a trustee shall consider all factors relevant to the trust and its beneficiaries, including the following factors to the extent they are relevant: (1) The nature, purpose, and expected duration of the trust; (2) The intent of the settlor; (3) The identity and circumstances of the beneficiaries; (4) The needs for liquidity, regularity of income, and preservation and appreciation of capital; (5) The assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property; the extent to which an asset is used by a beneficiary; and whether an asset was purchased by the trustee or received from the settlor; (6) The net amount allocated to income under the other sections in this chapter and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available; (7) Whether and to what extent the terms of the trust give the trustee the power to invade principal or accumulate income or prohibit the trustee from invading principal or accumulating income, and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income; (8) The actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; and (9) The anticipated tax consequences of an adjustment. (c) A trustee may not make an adjustment: (1) That diminishes the income interest in a trust that requires all of the income to be paid at least annually to a spouse and for which an estate tax or gift tax marital deduction would be allowed, in whole or in part, if the trustee did not have the power to make the adjustment; (2006 Ed.) Washington Principal and Income Act of 2002 (2) That reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion; (3) That changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets; (4) From any amount that is permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside; (5) If possessing or exercising the power to make an adjustment causes an individual to be treated as the owner of all or part of the trust for income tax purposes, and the individual would not be treated as the owner if the trustee did not possess the power to make an adjustment; (6) If possessing or exercising the power to make an adjustment causes all or part of the trust assets to be included for estate tax purposes in the estate of an individual who has the power to remove a trustee or appoint a trustee, or both, and the assets would not be included in the estate of the individual if the trustee did not possess the power to make an adjustment; (7) If the trustee is a beneficiary of the trust; or (8) If the trustee is not a beneficiary, but the adjustment would benefit the trustee directly or indirectly. (d) If subsection (c)(5), (6), (7), or (8) of this section applies to a trustee and there is more than one trustee or an additional trustee who is appointed by a court order, a binding agreement, or otherwise under chapter 11.96A RCW, a cotrustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee or trustees is not permitted by the terms of the trust. (e) A personal representative serving with nonintervention powers under chapter 11.68 RCW may adjust between principal and income to the extent the personal representative considers necessary, if the personal representative invests and manages assets of the estate as a prudent investor and the personal representative determines, after applying the rules of RCW 11.104A.010(a), that the personal representative is unable to comply with RCW 11.104A.010(b). In deciding whether and to what extent to exercise the power conferred by this subsection, the personal representative shall consider all factors relevant to the estate and its beneficiaries, including factors comparable to those a trustee would consider under subsection (b) of this section if considering such an adjustment. A personal representative may not make an adjustment under circumstances comparable to those that are described in subsection (c) of this section and that prohibit a trustee from making such an adjustment, although a copersonal representative, or an additional personal representative who is appointed by a court order, a binding agreement, or otherwise under chapter 11.96A RCW, to whom such limitations do not apply may make the adjustment unless the exercise of the power by the remaining personal representative or personal representatives is not permitted by the terms of a will. (f) A fiduciary may release the entire power conferred by subsection (a) of this section or may release only the power to adjust from income to principal or the power to adjust from principal to income if the fiduciary is uncertain about whether possessing or exercising the power will cause a result described in subsection (c)(1) through (6) or (8) of this (2006 Ed.) 11.104A.030 section or if the fiduciary determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection (c) of this section. The release may be permanent or for a specified period, including a period measured by the life of an individual. (g) Terms of a trust that limit the power of a fiduciary to make an adjustment between principal and income do not affect the application of this section unless it is clear from the terms of the trust that the terms are intended to deny the fiduciary the power of adjustment conferred by subsection (a) of this section. (h) Unless a beneficiary has requested the fiduciary in writing that the fiduciary consider an adjustment, nothing in this section imposes a duty on the fiduciary to make an adjustment and the fiduciary is not liable for not considering whether to make an adjustment under this section. [2002 c 345 § 104.] 11.104A.030 Judicial control of discretionary powers. (a) A court shall not change a fiduciary’s decision to exercise or not to exercise a discretionary power conferred by this chapter unless it determines that the decision was an abuse of the fiduciary’s discretion. A court shall not determine that a fiduciary abused its discretion merely because the court would have exercised the discretion in a different manner or would not have exercised the discretion. (b) The decisions to which subsection (a) of this section apply include: (1) A determination under RCW 11.104A.020 (a) or (e) of whether and to what extent an amount should be transferred from principal to income or from income to principal. (2) A determination of: (i) The factors that are relevant to the trust or estate and its beneficiaries; (ii) the extent to which they are relevant; and (iii) the weight, if any, to be given to the relevant factors, in deciding whether and to what extent to exercise the power conferred by RCW 11.104A.020 (a) or (e). (3) A determination under RCW 11.104A.040(g). (c) If a court determines that a fiduciary has abused its discretion, the remedy is to restore the income and remainder beneficiaries to the positions they would have occupied if the fiduciary had not abused its discretion, according to the following principles: (1) To the extent that the abuse of discretion has resulted in no distribution to a beneficiary or a distribution that is too small, the court may require the fiduciary to distribute from the trust to the beneficiary an amount that the court determines will restore the beneficiary, in whole or in part, to his or her appropriate position. (2) To the extent that the abuse of discretion has resulted in a distribution to a beneficiary that is too large, the court may restore the beneficiaries, the trust, or both, in whole or in part, to their appropriate positions by requiring the fiduciary to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or requiring that beneficiary to return some or all of the distribution to the trust. (3) To the extent that the court does not restore under (1) and (2) of this subsection the beneficiaries, the trust, or both, to the positions they would have occupied if the fiduciary had 11.104A.030 [Title 11 RCW—page 125] 11.104A.040 Title 11 RCW: Probate and Trust Law not abused its discretion, the court may require the fiduciary to pay an appropriate amount from its own funds to one or more of the beneficiaries or the trust, or both. The fiduciary has no liability under this section unless the beneficiary alleging the abuse of discretion establishes that the fiduciary did not exercise its discretion in good faith and with honest judgment. (d) Upon a petition by the fiduciary, the court having jurisdiction over the trust or estate shall determine whether a proposed exercise or nonexercise by the fiduciary of a discretionary power conferred by the act will result in an abuse of the fiduciary’s discretion. If the petition describes the proposed exercise or nonexercise of the power and contains sufficient information to inform the beneficiaries of the reasons for the proposal, the facts upon which the fiduciary relies, and an explanation of how the income and remainder beneficiaries will be affected by the proposed exercise or nonexercise of the power, a beneficiary who challenges the proposed exercise or nonexercise has the burden of establishing that it will result in an abuse of discretion. (e) The fiduciary shall be reimbursed for any and all costs, including without limitation all attorneys’ fees and costs of defense, and all liabilities that the fiduciary may incur in connection with any claim or action relating in any way to the fiduciary’s exercise of its discretion under this chapter, except to the extent that the beneficiary establishes that the fiduciary did not exercise its discretion in good faith and with honest judgment. All attorneys’ fees and costs shall be advanced to the fiduciary as incurred and shall only be collected from the fiduciary after it has been determined that the fiduciary did not exercise its discretion in good faith and with honest judgment. [2002 c 345 § 105.] 11.104A.040 11.104A.040 Power to convert to unitrust. (a)(1) In this section, "beneficiary" means a person who has an interest in the trust to be converted and who has the legal capacity to act in his, her, or its own right with respect to all actions that such person may take under this section. (2) In this section, "unitrust" means both a trust converted into a unitrust under this section and a trust initially established as a unitrust. Unless inconsistent with the terms of the trust or will, subsections (f), (g), (h), (i), and (m) of this section apply to the unitrust initially so established. (b) Unless expressly prohibited by the terms of the trust, a trustee may release the power to make adjustments under RCW 11.104A.020 and convert a trust into a unitrust as described in this section if all of the following apply: (1) The trustee determines that the conversion will enable the trustee better to carry out the intent of the settlor or testator and the purposes of the trust. (2) The trustee gives written notice of the trustee’s intention to release the power to adjust and to convert the trust into a unitrust and of how the unitrust will operate, including what initial decisions the trustee will make under this section, to each beneficiary who, on the date the notice is given: (i) Is a distributee or permissible distributee of trust income or principal; or (ii) Would be a distributee or permissible distributee of trust principal if the interests of the distributees described in (2)(i) of this subsection terminated and the trust then termi[Title 11 RCW—page 126] nated immediately before the notice was given and if no powers of appointment were exercised. (3) There is at least one beneficiary under (2)(i) of this subsection and at least one other person who is a beneficiary under (2)(ii) of this subsection. (4) No beneficiary objects to the conversion to a unitrust in a writing delivered to the trustee within sixty days after the notice is given under (2) of this subsection. (c) The parties, as defined by RCW 11.96A.030(4), may agree to convert a trust to or from a unitrust by means of a binding agreement under chapter 11.96A RCW. (d)(1) The trustee may petition the court under chapter 11.96A RCW to order a conversion to a unitrust if either of the following apply: (i) A party, as defined by RCW 11.96A.030(4), timely objects to the conversion to a unitrust; or (ii) There are no beneficiaries under (2)(i) and (ii) of this subsection. (2) A party, as defined by RCW 11.96A.030(4), may request a trustee to convert to a unitrust. If the trustee does not convert, the party, as defined by RCW 11.96A.030(4), may petition the court to order the conversion. (3) The court shall approve the conversion or direct the requested conversion if the court concludes that the conversion will enable the trustee to better carry out the intent of the settlor or testator and the purposes of the trust. (e) In deciding whether to exercise a power to convert to a unitrust under this section, a trustee may consider, among other things, the factors set forth in RCW 11.104A.020(b). (f) After a trust is converted to a unitrust, all of the following apply: (1) The trustee shall follow an investment policy seeking a total return for the investments held by the trust, whether the return is to be derived: (i) From appreciation of principal; (ii) From earnings and distributions from principal; or (iii) From both. (2) The trustee shall make regular distributions in accordance with the terms of the trust, or the terms of the will, as the case may be, construed in accordance with the provisions of this section. (3) Unless expressly prohibited by the terms of the trust, the term "income" in the terms of a trust or a will means an annual distribution, the "unitrust distribution," equal to the percentage, the "payout percentage," that is no less than three percent and no more than five percent and that the trustee may determine in the trustee’s discretion from time to time, or, if the trustee makes no determination, that shall be four percent of the net fair market value of the trust’s assets, whether such assets would be considered income or principal under other provisions of this chapter, averaged over the lesser of: (i) The three preceding years; or (ii) The period during which the trust has been in existence. (g) The trustee may in the trustee’s discretion from time to time determine all of the following: (1) The effective date of a conversion to a unitrust. (2) The provisions for prorating a unitrust distribution for a short year in which a beneficiary’s right to payments commences or ceases. (2006 Ed.) Washington Principal and Income Act of 2002 (3) The frequency of unitrust distributions during the year. (4) The effect of other payments from or contributions to the trust on the trust’s valuation. (5) Whether to value the trust’s assets annually or more frequently. (6) What valuation dates to use. (7) How frequently to value nonliquid assets and whether to estimate their value. (8) Whether to omit from the calculations trust property occupied or possessed by a beneficiary. (9) Any other matters necessary for the proper functioning of the unitrust. (h)(1) Expenses which would be deducted from income if the trust were not a unitrust may not be deducted from the unitrust distribution. (2) Unless otherwise provided by the terms of the trust, the unitrust distribution shall be paid from net income, as such term would be determined if the trust were not a unitrust. To the extent net income is insufficient, the unitrust distribution shall be paid from net realized short-term capital gains. To the extent net income and net realized short-term capital gains are insufficient, the unitrust distribution shall be paid from net realized long-term capital gains. To the extent net income and net realized short-term and long-term capital gains are insufficient, the unitrust distribution shall be paid from the principal of the trust. (3) To the extent necessary to cause gains from the sale or exchange of unitrust assets to be treated as income under any federal, state, or local income tax (for example, section 643 of the Internal Revenue Code and its regulations, including Treasury Regulation § 1.643(b)-1, as amended or renumbered), the trustee has the discretionary power to allocate the gains to income, so long as the power is reasonably and impartially exercised. (i) The trustee or, if the trustee declines to do so, a beneficiary may petition the court: (1) To change the payout percentage. (2) To provide for a distribution of net income, as would be determined if the trust were not a unitrust, in excess of the unitrust distribution if such distribution is necessary to preserve a tax benefit. (3) To average the valuation of the trust’s net assets over a period other than three years. (4) To reconvert from a unitrust. (j) Upon a reconversion, the power to adjust under RCW 11.104A.020 is revived. (k) A conversion to a unitrust does not affect a provision in the terms of a trust directing or authorizing the trustee to distribute principal or authorizing a beneficiary to withdraw a portion or all of the principal. (l) A trustee may not possess or exercise any power under this section in any of the following circumstances: (1) The unitrust distribution would be made from any amount that is permanently set aside for charitable purposes under the terms of a trust and for which a charitable deduction from a federal gift or estate tax has been taken unless both income and principal are so set aside. (2) The possession or exercise of the power would cause an individual to be treated as the owner of all or part of the trust for federal income tax purposes and the individual (2006 Ed.) 11.104A.050 would not be treated as the owner if the trustee did not possess or exercise the power. (3) The possession or exercise of the power would cause all or any part of the trust estate to be subject to any federal gift or estate tax with respect to the individual and the trust estate would not be subject to such taxation if the trustee did not possess or exercise the power. (4) The possession or exercise of the power would result in the disallowance of a federal gift or estate tax marital deduction which would be allowed if the trustee did not have the power. (5) The trustee is a beneficiary of the trust. (m) If subsection (l)(2), (3), or (5) of this section applies to a trustee and there is more than one trustee or an additional trustee who is appointed by a court order, a binding agreement, or otherwise under chapter 11.96A RCW, a cotrustee to whom subsection (l)(2), (3), or (5) of this section does not apply may possess and exercise the power unless the possession or exercise of the power by the remaining trustee or trustees is not permitted by the terms of the trust. If subsection (l)(2), (3), or (5) of this section restricts all trustees from possessing or exercising a power under this section, the trustee may petition a court under chapter 11.96A RCW for the court to effect the intended conversion or action. (n) A trustee may release any power conferred by this section if any of the following applies: (1) The trustee is uncertain about whether possessing or exercising the power will cause a result described in subsection (l)(2), (3), or (4) of this section. (2) The trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection (l) of this section. The release may be permanent or for a specified period, including a period measured by the life of an individual. [2006 c 360 § 1; 2002 c 345 § 106.] Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. ARTICLE 2 DECEDENT’S ESTATE OR TERMINATING INCOME INTEREST 11.104A.050 11.104A.050 Determination and distribution of net income. After a decedent dies, and subject to chapter 11.10 RCW, in the case of an estate, or after an income interest in a trust ends, the following rules apply: (1) A fiduciary of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in Articles 3 through 5 of this chapter which apply to trustees and the rules in subsection (5) of this section. The fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property. (2) A fiduciary shall determine the remaining net income of a decedent’s estate or a terminating income interest under the rules in Articles 3 through 5 of this chapter which apply to trustees, except to the extent that the following apply: (i) The fiduciary shall include in net income all income from property used to discharge liabilities; [Title 11 RCW—page 127] 11.104A.060 Title 11 RCW: Probate and Trust Law (ii) The fiduciary shall pay from income or principal, in the fiduciary’s discretion, family allowances; fees of attorneys, accountants, and fiduciaries; court costs and other expenses of administration; and interest on death taxes, but the fiduciary may pay those expenses from income of property passing to a trust for which the fiduciary claims an estate tax marital or charitable deduction only to the extent that the payment of those expenses from income will not cause the reduction or loss of the deduction; and (iii) The fiduciary shall pay from principal all other disbursements made or incurred in connection with the settlement of a decedent’s estate or the winding up of a terminating income interest, including debts, funeral expenses, disposition of remains, and death taxes and related penalties that are apportioned to the estate or terminating income interest by the will, the terms of the trust, or applicable law. (3) A fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright the interest or any other amount provided by the will, the terms of a trust, or applicable law from net income determined under subsection (2) of this section or from principal to the extent that net income is insufficient. Otherwise, no outright gift of a pecuniary amount whether under a will, or under a trust after an income interest ends shall receive interest or any other income. (4) A fiduciary shall distribute the net income remaining after distributions required by subsection (3) of this section in the manner described in RCW 11.104A.060 to all other beneficiaries, including a beneficiary who receives a pecuniary amount in trust, even if the beneficiary holds an unqualified power to withdraw assets from the trust or other presently exercisable general power of appointment over the trust. (5) A fiduciary may not reduce principal or income receipts from property described in subsection (1) of this section because of a payment described in RCW 11.104A.250 or 11.104A.260 to the extent that the will, the terms of the trust, or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a third party. The net income and principal receipts from the property are determined by including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedent’s death or an income interest’s terminating event, and by making a reasonable provision for amounts that the fiduciary believes the estate or terminating income interest may become obligated to pay after the property is distributed. [2006 c 360 § 2; 2002 c 345 § 201.] Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. 11.104A.060 11.104A.060 Distribution to residuary and remainder beneficiaries. (a) Each beneficiary described in RCW 11.104A.050(4) is entitled to receive a portion of the net income equal to the beneficiary’s fractional interest in undistributed principal assets, using values as of the distribution date. If a fiduciary makes more than one distribution of assets to beneficiaries to whom this section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each distribution date, to the net income the fiduciary has received after the date of death or terminat[Title 11 RCW—page 128] ing event or earlier distribution date but has not distributed as of the current distribution date. (b) In determining a beneficiary’s share of net income, the following rules apply: (1) The beneficiary is entitled to receive a portion of the net income equal to the beneficiary’s fractional interest in the undistributed principal assets immediately before the distribution date, including assets that later may be sold to meet principal obligations. (2) The beneficiary’s fractional interest in the undistributed principal assets must be calculated without regard to property specifically given to a beneficiary and property required to pay pecuniary amounts not in trust. (3) The beneficiary’s fractional interest in the undistributed principal assets must be calculated on the basis of the aggregate value of those assets as of the distribution date without reducing the value by any unpaid principal obligation. (4) The distribution date for purposes of this section may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed. (c) If a fiduciary does not distribute all of the collected but undistributed net income to each person as of a distribution date, the fiduciary shall maintain appropriate records showing the interest of each beneficiary in that net income. (d) A fiduciary may apply the rules in this section, to the extent that the fiduciary considers it appropriate, to net gain or loss realized after the date of death or terminating event or earlier distribution date from the disposition of a principal asset if this section applies to the income from the asset. [2002 c 345 § 202.] ARTICLE 3 APPORTIONMENT AT BEGINNING AND END OF INCOME INTEREST 11.104A.070 11.104A.070 When right to income begins and ends. (a) An income beneficiary is entitled to net income from the date on which the income interest begins. An income interest begins on the date specified in the terms of the trust or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest. (b) An asset becomes subject to a trust: (1) On the date it is transferred to the trust in the case of an asset that is transferred to a trust during the transferor’s life; (2) On the date of a testator’s death in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the testator’s estate; or (3) On the date of an individual’s death in the case of an asset that is transferred to a fiduciary by a third party because of the individual’s death. (c) An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined under subsection (d) of this section, even if there is an intervening period of administration to wind up the preceding income interest. (d) An income interest ends on the day before an income beneficiary dies or another terminating event occurs, or on (2006 Ed.) Washington Principal and Income Act of 2002 the last day of a period during which there is no beneficiary to whom a trustee may distribute income. [2002 c 345 § 301.] ADMINISTRATION OF TRUST PART 1: RECEIPTS FROM ENTITIES 11.104A.100 11.104A.080 11.104A.080 Apportionment of receipts and disbursements when decedent dies or income interest begins. (a) A trustee shall allocate an income receipt or disbursement other than one to which RCW 11.104A.050(1) applies to principal if its due date occurs before a decedent dies in the case of an estate or before an income interest begins in the case of a trust or successive income interest. (b) A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and it is a periodic due date. An income receipt or disbursement must be treated as accruing from day to day if its due date is not periodic or it has no due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins must be allocated to principal and the balance must be allocated to income. (c) An item of income or an obligation is due on the date the payer is required to make a payment. If a payment date is not stated, there is no due date for the purposes of this chapter. Distributions to shareholders or other owners from an entity to which RCW 11.104A.100 applies are deemed to be due on the date fixed by the entity for determining who is entitled to receive the distribution or, if no date is fixed, on the declaration date for the distribution. A due date is periodic for receipts or disbursements that must be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals. [2002 c 345 § 302.] 11.104A.090 11.104A.090 Apportionment when income interest ends. (a) In this section, "undistributed income" means net income received before the date on which an income interest ends. The term does not include an item of income or expense that is due or accrued or net income that has been added or is required to be added to principal under the terms of the trust. (b) When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, the beneficiary’s share of the undistributed income that is not disposed of under the terms of the trust unless the beneficiary has an unqualified power to revoke more than five percent of the trust principal immediately before the income interest ends. In the latter case, the undistributed income from the portion of the trust that may be revoked must be added to principal. (c) When a trustee’s obligation to pay a fixed annuity or a fixed fraction of the value of the trust’s assets ends, the trustee shall prorate the final payment if and to the extent required by applicable law to accomplish a purpose of the trust or its settlor relating to income, gift, estate, or other tax requirements. [2002 c 345 § 303.] ARTICLE 4 ALLOCATION OF RECEIPTS DURING (2006 Ed.) 11.104A.110 11.104A.100 Character of receipts. (a) In this section, "entity" means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or any other organization in which a trustee has an interest. "Entity" does not mean a trust or estate to which RCW 11.104A.110 applies, a business or activity to which RCW 11.104A.120 applies, or an assetbacked security to which RCW 11.104A.240 applies. (b) Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity. (c) A trustee shall allocate the following receipts from an entity to principal: (1) Property other than money; (2) Money received in one distribution or a series of related distributions in exchange for part or all of a trust’s interest in the entity; (3) Money received in total or partial liquidation of the entity; and (4) Money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes. (d) Money is received in partial liquidation: (1) To the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or (2) If the total amount of money and property distributed in a distribution or series of related distributions is greater than twenty percent of the entity’s gross assets, as shown by the entity’s year-end financial statements immediately preceding the initial distribution. (e) Money is not received in partial liquidation, nor may it be taken into account under subsection (d)(2) of this section, to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money. (f) A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity’s board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation’s board of directors. [2002 c 345 § 401.] 11.104A.110 11.104A.110 Distribution from trust or estate. A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest in a trust that is an investment entity, and shall allocate to principal an amount received as a distribution of principal from such a trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such a trust to a trustee, RCW 11.104A.100 or 11.104A.240 applies to a receipt from the trust. [2002 c 345 § 402.] [Title 11 RCW—page 129] 11.104A.120 Title 11 RCW: Probate and Trust Law 11.104A.120 11.104A.120 Business and other activities conducted by trustee. (a) If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the trust’s general accounting records, the trustee may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets. The trustee shall maintain such records in accordance with principles of accounting that are generally accepted. (b) A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts must be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity, and the extent to which the remaining net cash receipts are accounted for as principal or income in the trust’s general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the trust’s general accounting records to the extent the trustee determines that the amount received is no longer required in the conduct of the business. (c) Activities for which a trustee may maintain separate accounting records include: (1) Retail, manufacturing, service, and other traditional business activities; (2) Farming; (3) Raising and selling livestock and other animals; (4) Management of rental properties; (5) Extraction of minerals and other natural resources; (6) Timber operations; and (7) Activities to which RCW 11.104A.230 applies. [2002 c 345 § 403.] PART 2: RECEIPTS NOT NORMALLY APPORTIONED 11.104A.130 11.104A.130 Principal receipts. A trustee shall allocate to principal: (1) To the extent not allocated to income under this chapter, assets received from a transferor during the transferor’s lifetime, a decedent’s estate, a trust with a terminating income interest, or a payer under a contract naming the trust or its trustee as beneficiary; (2) Money or other property received from the sale, exchange, liquidation, or change in form of a principal asset, including realized profit, subject to this article; (3) Amounts recovered from third parties to reimburse the trust because of disbursements described in RCW 11.104A.260(a)(7) or for other reasons to the extent not based on the loss of income; (4) Proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income; (5) Net income received in an accounting period during which there is no beneficiary to whom a trustee may or must distribute income; and (6) Other receipts as provided in Part 3 of this article. [2002 c 345 § 404.] [Title 11 RCW—page 130] 11.104A.140 Rental property. To the extent that a trustee accounts for receipts from rental property pursuant to this section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, must be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustee’s contractual obligations have been satisfied with respect to that amount. [2002 c 345 § 405.] 11.104A.140 11.104A.150 11.104A.150 Obligation to pay money. (a) An amount received as interest, whether determined at a fixed, variable, or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, must be allocated to income without any provision for amortization of premium. (b) A trustee shall allocate to principal an amount received from the sale, redemption, or other disposition of an obligation to pay money to the trustee more than one year after it is purchased or acquired by the trustee, including an obligation whose purchase price or value when it is acquired is less than its value at maturity. If the obligation matures within one year after it is purchased or acquired by the trustee, an amount received in excess of its purchase price or its value when acquired by the trust must be allocated to income. (c) This section does not apply to an obligation to which RCW 11.104A.180, 11.104A.190, 11.104A.200, 11.104A.210, 11.104A.230, or 11.104A.240 applies. [2002 c 345 § 406.] 11.104A.160 Insurance policies and similar contracts. (a) Except as otherwise provided in subsection (b) of this section, a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal. (b) A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to RCW 11.104A.120, loss of profits from a business. (c) This section does not apply to a contract to which RCW 11.104A.180 applies. [2002 c 345 § 407.] 11.104A.160 PART 3: RECEIPTS NORMALLY APPORTIONED 11.104A.170 Insubstantial allocations not required. If a trustee determines that an allocation between principal and income required by RCW 11.104A.180, 11.104A.190, 11.104A.200, 11.104A.210, or 11.104A.240 is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances described in RCW 11.104A.020(c) applies to the allocation. This power may be exercised by a cotrustee in the circum stances described in R CW 11.104A.020(d) and may be released for the reasons and in 11.104A.170 (2006 Ed.) Washington Principal and Income Act of 2002 the manner described in RCW 11.104A.020(f). An allocation is presumed to be insubstantial if: (1) The amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than ten percent; or (2) The value of the asset producing the receipt for which the allocation would be made is less than ten percent of the total value of the trust’s assets at the beginning of the accounting period. [2002 c 345 § 408.] 11.104A.180 11.104A.180 Deferred compensation, annuities, and similar payments. (a) In this section, "payment" means a payment that a trustee may receive over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payer in exchange for future payments. The term includes a payment made in money or property from the payer’s general assets or from a separate fund created by the payer, including a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus, or stock-ownership plan. (b) To the extent that a payment is characterized as interest or a dividend or a payment made in lieu of interest or a dividend, a trustee shall allocate it to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend, or an equivalent payment. (c) If no part of a payment is characterized as interest, a dividend, or an equivalent payment, a trustee shall allocate to income four percent of the total value of the interests of the trustee in the plan, annuity, or similar payment as of the first business day of the accounting period and the balance to principal. (d) If, to obtain an estate tax marital deduction for a trust, a trustee must allocate more of a payment to income than provided for by this section, the trustee shall allocate to income the additional amount necessary to obtain the marital deduction. (e) This section does not apply to payments to which RCW 11.104A.190 applies. [2002 c 345 § 409.] 11.104A.190 11.104A.190 Liquidating asset. (a) In this section, "liquidating asset" means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, royalty right, and right to receive payments during a period of more than one year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to RCW 11.104A.180, resources subject to RCW 11.104A.200, timber subject to RCW 11.104A.210, an activity subject to RCW 11.104A.230, an asset subject to RCW 11.104A.240, or any asset for which the trustee establishes a reserve for depreciation under RCW 11.104A.270. (b) A trustee shall allocate to income ten percent of the receipts from a liquidating asset and the balance to principal. [2002 c 345 § 410.] (2006 Ed.) 11.104A.210 11.104A.200 Minerals, water, and other natural resources. (a) To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources pursuant to this section, the trustee shall allocate them as follows: (1) If received as nominal delay rental or nominal annual rent on a lease, a receipt must be allocated to income; (2) If received from a production payment, a receipt must be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance must be allocated to principal; (3) If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus, or delay rental is more than nominal, ninety percent must be allocated to principal and the balance to income; or (4) If an amount is received from a working interest or any other interest not provided for in (1), (2), or (3) of this subsection, ninety percent of the net amount received must be allocated to principal and the balance to income. (b) An amount received on account of an interest in water that is renewable must be allocated to income. If the water is not renewable, ninety percent of the amount must be allocated to principal and the balance to income. (c) This chapter applies whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust. (d) If a trust owns an interest in minerals, water, or other natural resources on January 1, 2003, the trustee may allocate receipts from the interest as provided in this chapter or in the manner used by the trustee before January 1, 2003. If the trust acquires an interest in minerals, water, or other natural resources after January 1, 2003, the trustee shall allocate receipts from the interest as provided in this chapter. [2002 c 345 § 411.] 11.104A.200 11.104A.210 11.104A.210 Timber. (a) To the extent that a trustee accounts for receipts from the sale of timber and related products pursuant to this section, the trustee shall allocate the net receipts: (1) To income to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest; (2) To principal to the extent that the amount of timber removed from the land exceeds the rate of growth of the timber or the net receipts are from the sale of standing timber; (3) To or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease or contract and applying the rules in (1) and (2) of this subsection; or (4) To principal to the extent that advance payments, bonuses, and other payments are not allocated pursuant to (1), (2), or (3) of this subsection. (b) In determining net receipts to be allocated pursuant to subsection (a) of this section, a trustee shall deduct and transfer to principal a reasonable amount for depletion. (c) This chapter applies whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust. [Title 11 RCW—page 131] 11.104A.220 Title 11 RCW: Probate and Trust Law (d) If a trust owns an interest in timberland on January 1, 2003, the trustee may allocate net receipts from the sale of timber and related products as provided in this chapter or in the manner used by the trustee before January 1, 2003. If the trust acquires an interest in timberland after January 1, 2003, the trustee shall allocate net receipts from the sale of timber and related products as provided in this chapter. [2002 c 345 § 412.] 11.104A.220 11.104A.220 Property not productive of income. (a) If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under RCW 11.104A.020 and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by RCW 11.104A.020(a). The trustee may decide which action or combination of actions to take. (b) In cases not governed by subsection (a) of this section, proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period. [2002 c 345 § 413.] 11.104A.230 11.104A.230 Derivatives and options. (a) In this section, "derivative" means a contract or financial instrument or a combination of contracts and financial instruments which gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or other market indicator for an asset or a group of assets. (b) To the extent that a trustee does not account under RCW 11.104A.120 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions. (c) If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option must be allocated to principal. An amount paid to acquire the option must be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, must be allocated to principal. [2002 c 345 § 414.] 11.104A.240 11.104A.240 Asset-backed securities. (a) In this section, "asset-backed security" means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets [Title 11 RCW—page 132] only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset to which RCW 11.104A.100 or 11.104A.180 applies. (b) If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment which the payer identifies as being from interest or other current return and shall allocate the balance of the payment to principal. (c) If a trust receives one or more payments in exchange for the trust’s entire interest in an asset-backed security in one accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that will result in the liquidation of the trust’s interest in the security over more than one accounting period, the trustee shall allocate ten percent of the payment to income and the balance to principal. [2002 c 345 § 415.] ARTICLE 5 ALLOCATION OF DISBURSEMENTS DURING ADMINISTRATION OF TRUST 11.104A.250 11.104A.250 Disbursements from income. A trustee shall make the following disbursements from income to the extent that they are not disbursements to which RCW 11.104A.050(2) (ii) or (iii) applies: (1) One-half of the regular compensation of the trustee and of any person providing investment advisory or custodial services to the trustee; (2) One-half of all expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests; (3) All of the other ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and expenses of a proceeding or other matter that concerns primarily the income interest; and (4) Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset. [2002 c 345 § 501.] 11.104A.260 11.104A.260 Disbursements from principal. (a) A trustee shall make the following disbursements from principal: (1) The remaining one-half of the disbursements described in RCW 11.104A.250 (1) and (2); (2) All of the trustee’s compensation calculated on principal as a fee for acceptance, distribution, or termination, and disbursements made to prepare property for sale; (3) Payments on the principal of a trust debt; (4) Expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property; (5) Premiums paid on a policy of insurance not described in RCW 11.104A.250(4) of which the trust is the owner and beneficiary; (6) Estate, inheritance, and other transfer taxes, including penalties, apportioned to the trust; and (2006 Ed.) Washington Principal and Income Act of 2002 (7) Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common law claims by third parties, and defending claims based on environmental matters. (b) If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation. (c) For disbursements not covered in this section or RCW 11.104A.250, see RCW 11.104A.110(a)(4). [2002 c 345 § 502.] 11.104A.270 11.104A.270 Transfers from income to principal for depreciation. (a) In this section, "depreciation" means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one year. (b) A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation: (1) Of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary; or (2) Under this section if the trustee is accounting under RCW 11.104A.120 for the business or activity in which the asset is used. (c) An amount transferred to principal need not be held as a separate fund. [2002 c 345 § 503.] 11.104A.280 11.104A.280 Transfers from income to reimburse principal. (a) If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements. (b) Principal disbursements to which subsection (a) of this section applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a third party: (1) An amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs; (2) A capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments; (3) Disbursements made to prepare property for rental, including tenant allowances, leasehold improvements, and broker’s commissions; (4) Periodic payments on an obligation secured by a principal asset to the extent that the amount transferred from (2006 Ed.) 11.104A.300 income to principal for depreciation is less than the periodic payments; and (5) Disbursements described in RCW 11.104A.260(a)(7). (c) If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection (a) of this section. [2002 c 345 § 504.] 11.104A.290 11.104A.290 Income taxes. (a) A tax required to be paid by a trustee based on receipts allocated to income must be paid from income. (b) A tax required to be paid by a trustee based on receipts allocated to principal must be paid from principal, even if the tax is called an income tax by the taxing authority. (c) A tax required to be paid by a trustee on the trust’s share of an entity’s taxable income must be paid proportionately: (1) From income to the extent that receipts from the entity are allocated to income; and (2) From principal to the extent that: (i) Receipts from the entity are allocated to principal; and (ii) The trust’s share of the entity’s taxable income exceeds the total receipts described in (1) and (2)(i) of this subsection. (d) For purposes of this section, receipts allocated to principal or income must be reduced by the amount distributed to a beneficiary from principal or income for which the trust receives a deduction in calculating the tax. [2002 c 345 § 505.] 11.104A.300 11.104A.300 Adjustments between principal and income because of taxes. (a) A fiduciary may make adjustments between principal and income to offset the shifting of economic interests or tax benefits between income beneficiaries and remainder beneficiaries which arise from: (1) Elections and decisions, other than those described in subsection (b) of this section, that the fiduciary makes from time to time regarding tax matters; (2) An income tax or any other tax that is imposed upon the fiduciary or a beneficiary as a result of a transaction involving or a distribution from the estate or trust; or (3) The ownership by an estate or trust of an interest in an entity whose taxable income, whether or not distributed, is includable in the taxable income of the estate, trust, or a beneficiary. (b) If the amount of an estate tax marital deduction or charitable contribution deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes, and as a result estate taxes paid from principal are increased and income taxes paid by an estate, trust, or beneficiary are decreased, each estate, trust, or beneficiary that benefits from the decrease in income tax shall reimburse the principal from which the increase in estate tax is paid. The total reimbursement must equal the increase in the estate tax to the extent that the principal used to pay the increase would have qualified for a marital deduction or charitable contribution deduction but for the payment. The proportionate share of the reim[Title 11 RCW—page 133] 11.104A.900 Title 11 RCW: Probate and Trust Law bursement for each estate, trust, or beneficiary whose income taxes are reduced must be the same as its proportionate share of the total decrease in income tax. An estate or trust shall reimburse principal from income. [2002 c 345 § 506.] ARTICLE 6 MISCELLANEOUS PROVISIONS 11.104A.900 11.104A.900 Uniformity of application and construction. In applying and construing chapter 345, Laws of 2002, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact similar laws. [2002 c 345 § 602.] 11.104A.901 11.104A.901 Application of chapter 11.96A RCW. Nothing in chapter 345, Laws of 2002 is intended to restrict the application of chapter 11.96A RCW to issues, questions, or disputes that arise under or that relate to chapter 345, Laws of 2002. Any and all such issues, questions, or disputes shall be resolved judicially or nonjudicially under chapter 11.96A RCW. [2002 c 345 § 603.] 11.104A.902 11.104A.902 Severability—2002 c 345. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2002 c 345 § 604.] 11.104A.903 11.104A.903 Captions, article and part headings not law—2002 c 345. Captions, article headings, and part headings used in this chapter are not any part of the law. [2002 c 345 § 605.] 11.104A.904 11.104A.904 Effective date—2002 c 345. This act takes effect January 1, 2003. [2002 c 345 § 606.] 11.106.010 11.106.010 Scope of chapter—Exceptions. This chapter does not apply to resulting trusts, constructive trusts, business trusts where certificates of beneficial interest are issued to the beneficiaries, investment trusts, voting trusts, insurance trusts prior to the death of the insured, trusts in the nature of mortgages or pledges, trusts created by judgment or decree of a federal court or of the superior court when not sitting in probate, liquidation trusts or trusts for the sole purpose of paying dividends, interest or interest coupons, salaries, wages or pensions; nor does this chapter apply to personal representatives. [1985 c 30 § 95. Prior: 1984 c 149 § 128; 1955 c 33 § 30.30.010; prior: 1951 c 226 § 10. Formerly RCW 30.30.010.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.106.020 11.106.020 Trustee’s annual statement. The trustee or trustees appointed by any will, deed, or agreement executed shall mail or deliver at least annually to each adult income trust beneficiary a written itemized statement of all current receipts and disbursements made by the trustee of the funds of the trust both principal and income, and upon the request of any such beneficiary shall furnish the beneficiary an itemized statement of all property then held by that trustee, and may also file any such statement in the superior court of the county in which the trustee or one of the trustees resides. [1985 c 30 § 96. Prior: 1984 c 149 § 129; 1955 c 33 § 30.30.020; prior: 1951 c 226 § 2. Formerly RCW 30.30.020.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Trust provisions may relieve trustee from duty, restriction, or liability imposed by statute: RCW 11.97.010. 11.106.030 11.104A.905 11.104A.905 Application of act to existing trusts and estates. Except as specifically provided otherwise in the terms of a trust or a will, chapter 345, Laws of 2002 shall apply to any receipt or expense received or incurred on or after January 1, 2003, by any trust or decedent’s estate, whether established before, on, or after January 1, 2003, and whether the asset involved was acquired by the fiduciary before, on, or after January 1, 2003. [2002 c 345 § 607.] Chapter 11.106 Chapter 11.106 RCW TRUSTEES’ ACCOUNTING ACT Sections 11.106.010 11.106.020 11.106.030 11.106.040 11.106.050 11.106.060 11.106.070 11.106.080 11.106.090 11.106.100 11.106.110 Scope of chapter—Exceptions. Trustee’s annual statement. Intermediate and final accounts—Contents—Filing. Petition for statement of account. Account filed—Return day—Notice. Account filed—Objections—Appointment of guardians ad litem—Representatives. Court to determine accuracy, validity—Decree. Effect of decree. Appeal from decree. Waiver of accounting by beneficiary. Modification under chapter 11.97 RCW—How constituted. [Title 11 RCW—page 134] 11.106.030 Intermediate and final accounts—Contents—Filing. In addition to the statement required by RCW 11.106.020 any such trustee or trustees whenever it or they so desire, may file in the superior court of the county in which the trustees or one of the trustees resides an intermediate account under oath showing: (1) The period covered by the account; (2) The total principal with which the trustee is chargeable according to the last preceding account or the inventory if there is no preceding account; (3) An itemized statement of all principal funds received and disbursed during such period; (4) An itemized statement of all income received and disbursed during such period, unless waived; (5) The balance of such principal and income remaining at the close of such period and how invested; (6) The names and addresses of all living beneficiaries, including contingent beneficiaries, of the trust, and a statement as to any such beneficiary known to be under legal disability; (7) A description of any possible unborn or unascertained beneficiary and his interest in the trust fund. After the time for termination of the trust has arrived, the trustee or trustees may also file a final account in similar (2006 Ed.) Trustees’ Accounting Act manner. [1985 c 30 § 97. Prior: 1984 c 149 § 130; 1955 c 33 § 30.30.030; prior: 1951 c 226 § 3. Formerly RCW 30.30.030.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.106.100 Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Purpose—Intent—Severability—1977 ex.s. c 80: See notes following RCW 4.16.190. 11.106.070 Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. 11.106.070 Court to determine accuracy, validity— Decree. Upon the return date or at some later date fixed by the court if so requested by one or more of the parties, the court without the intervention of a jury and after hearing all the evidence submitted shall determine the correctness of the account and the validity and propriety of all actions of the trustee or trustees set forth in the account including the purchase, retention, and disposition of any of the property and funds of the trust, and shall render its decree either approving or disapproving the account or any part of it, and surcharging the trustee or trustees for all losses, if any, caused by negligent or wilful breaches of trust. [1985 c 30 § 101. Prior: 1984 c 149 § 134; 1955 c 33 § 30.30.070; prior: 1951 c 226 § 7. Formerly RCW 30.30.070.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.106.040 11.106.040 Petition for statement of account. At any time after the later of one year from the inception of the trust or one year after the day on which a report was last filed, any settlor or beneficiary of a trust may file a petition under RCW 11.96A.080 with the superior court in the county where the trustee or one of the trustees resides asking the court to direct the trustee or trustees to file in the court an account. At the hearing on such petition the court may order the trustee to file an account for good cause shown. [1999 c 42 § 627; 1985 c 30 § 98. Prior: 1984 c 149 § 131; 1955 c 33 § 30.30.040; prior: 1951 c 226 § 4. Formerly RCW 30.30.040.] 11.106.080 11.106.050 11.106.050 Account filed—Return day—Notice. When any account has been filed pursuant to RCW 11.106.030 or 11.106.040, the clerk of the court where filed shall fix a return day therefor as provided in RCW 11.96A.100(4) and issue a notice. The notice shall state the time and place for the return date, the name or names of the trustee or trustees who have filed the account, that the account has been filed, that the court is asked to settle the account, and that any objections or exceptions to the account must be filed with the clerk of the court on or before the return date. The notice shall be given as provided for notices under RCW 11.96A.110. [1999 c 42 § 628; 1985 c 30 § 99. Prior: 1984 c 149 § 132; 1955 c 33 § 30.30.050; prior: 1951 c 226 § 5. Formerly RCW 30.30.050.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.106.060 11.106.060 Account filed—Objections—Appointment of guardians ad litem—Representatives. Upon or before the return date any beneficiary of the trust may file the beneficiary’s written objections or exceptions to the account filed or to any action of the trustee or trustees set forth in the account. The court shall appoint guardians ad litem as provided in RCW 11.96A.160 and the court may allow representatives to be appointed under RCW 11.96A.120 or 11.96A.250 to represent the persons listed in those sections. [1999 c 42 § 629; 1985 c 30 § 100. Prior: 1984 c 149 § 133; 1977 ex.s. c 80 § 31; 1955 c 33 § 30.30.060; prior: 1951 c 226 § 6. Formerly RCW 30.30.060.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. (2006 Ed.) 11.106.080 Effect of decree. The decree rendered under RCW 11.106.070 shall be deemed final, conclusive, and binding upon all the parties interested including all incompetent, unborn, and unascertained beneficiaries of the trust subject only to the right of appeal under RCW 11.106.090. [1985 c 30 § 102. Prior: 1984 c 149 § 135; 1955 c 33 § 30.30.080; prior: 1951 c 226 § 8. Formerly RCW 30.30.080.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.106.090 11.106.090 Appeal from decree. The decree rendered under RCW 11.106.070 shall be a final order from which any party in interest may appeal as in civil actions to the supreme court or the court of appeals of the state of Washington. [1985 c 30 § 103. Prior: 1984 c 149 § 136; 1971 c 81 § 80; 1955 c 33 § 30.30.090; prior: 1951 c 226 § 9. Formerly RCW 30.30.090.] Rules of court: Method of appellate review superseded by RAP 2.2(a)(3), 18.22. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.106.100 11.106.100 Waiver of accounting by beneficiary. Any adult beneficiary entitled to an accounting under either RCW 11.106.020 or 11.106.030 may waive such an accounting by a separate instrument delivered to the trustee. [1985 c 30 § 104. Prior: 1984 c 149 § 137; 1955 c 33 § 30.30.100; prior: 1951 c 226 § 11. Formerly RCW 30.30.100.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. [Title 11 RCW—page 135] 11.106.110 Title 11 RCW: Probate and Trust Law Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.106.110 11.106.110 Modification under chapter 11.97 RCW—How constituted. This chapter is declared to be of similar import to the uniform trustees’ accounting act. Any modification under chapter 11.97 RCW, including waiver, of the requirements of this chapter in any will, deed, or agreement heretofore or hereafter executed shall be given effect whether the waiver refers to the uniform trustees’ accounting act by name or other reference or to any other act of like or similar import. [1985 c 30 § 105. Prior: 1984 c 149 § 138; 1955 c 33 § 30.30.110; prior: 1951 c 226 § 12. Formerly RCW 30.30.110.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Chapter 11.108 Chapter 11.108 RCW MISCELLANEOUS PROVISIONS FOR DISTRIBUTIONS MADE BY A GOVERNING INSTRUMENT (Formerly: Trust gift distribution) Sections 11.108.010 11.108.020 11.108.025 11.108.030 11.108.040 11.108.050 11.108.060 11.108.070 11.108.900 Definitions. Marital deduction gift—Compliance with Internal Revenue Code—Fiduciary powers. Election to qualify property for the marital deduction—Generation-skipping transfer tax allocations. Pecuniary bequests—Valuation of assets if distribution other than money. Construction of certain marital deduction formula bequests. Marital deduction gift in trust. Marital deduction gift—Survivorship requirement—Limits— Property to be held in trust. Presumptions for the interpretation, construction, and administration of governing instrument. Application of chapter—Application of 2006 c 360. 11.108.010 11.108.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) The term "pecuniary bequest" means a gift in a governing instrument which either is expressly stated as a fixed dollar amount or is a gift of a dollar amount determinable by the governing instrument, and a gift expressed in terms of a "sum" or an "amount," unless the context dictates otherwise, is a gift of a dollar amount. (2) As the context might require, the term "marital deduction" means either the federal or state estate tax deduction or the federal gift tax deduction allowed for transfers to spouses under the Internal Revenue Code or applicable state law. (3) The term "maximum marital deduction" means the maximum amount qualifying for the marital deduction. (4) The term "marital deduction gift" means a gift intended to qualify for the marital deduction as indicated by a preponderance of the evidence including the governing instrument and extrinsic evidence whether or not the governing instrument is found to be ambiguous. (5) The term "governing instrument" includes, but is not limited to: Will and codicils; revocable trusts and amendments or addenda to revocable trusts; irrevocable trusts; ben[Title 11 RCW—page 136] eficiary designations under life insurance policies, annuities, employee benefit plans, and individual retirement accounts; payable-on-death, trust, or joint with right of survivorship bank or brokerage accounts; transfer on death designations or transfer on death or pay on death securities; and documents exercising powers of appointment. (6) The term "fiduciary" means trustee or personal representative. Reference to a fiduciary in the singular includes the plural where the context requires. (7) The term "gift" refers to all gifts, legacies, devises, and bequests made in a governing instrument, whether outright or in trust, and whether made during the life of the transferor or as a result of the transferor’s death. (8) The term "transferor" means the testator, donor, grantor, or other person making a gift. (9) The term "spouse" includes the transferor’s surviving spouse in the case of a deceased transferor. [2006 c 360 § 3; 1997 c 252 § 81; 1993 c 73 § 2; 1990 c 224 § 2; 1988 c 64 § 27; 1985 c 30 § 106. Prior: 1984 c 149 § 140.] Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. Captions—Severability—1988 c 64: See RCW 83.100.904 and 83.100.905. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.108.020 11.108.020 Marital deduction gift—Compliance with Internal Revenue Code—Fiduciary powers. (1) If a governing instrument contains a marital deduction gift, the governing instrument shall be construed to comply with the marital deduction provisions of the Internal Revenue Code in every respect. (2) If a governing instrument contains a marital deduction gift, any fiduciary operating under the governing instrument has all the powers, duties, and discretionary authority necessary to comply with the marital deduction provisions of the Internal Revenue Code. The fiduciary shall not take any action or have any power that may impair that deduction, but this does not require the fiduciary to make the elections under either section 2056(b)(7) or 2523(f) of the Internal Revenue Code that is referred to in RCW 11.108.025. [1997 c 252 § 82; 1993 c 73 § 3; 1988 c 64 § 28; 1985 c 30 § 107. Prior: 1984 c 149 § 141.] Captions—Severability—1988 c 64: See RCW 83.100.904 and 83.100.905. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.108.025 11.108.025 Election to qualify property for the marital deduction—Generation-skipping transfer tax allocations. Unless a governing instrument directs to the contrary: (1) The fiduciary shall have the power to make elections, in whole or in part, to qualify property for the marital deduction as qualified terminable interest property under section 2056(b)(7) or 2523(f) of the Internal Revenue Code or, if the surviving spouse is not a citizen of the United States, under section 2056A of the Internal Revenue Code. Further, the (2006 Ed.) Miscellaneous Provisions for Distributions Made by a Governing Instrument fiduciary shall have the power to make generation-skipping transfer tax allocations under section 2632 of the Internal Revenue Code. (2) The fiduciary making an election under section 2056(b)(7), 2523(f), or 2056A of the Internal Revenue Code or making an allocation under section 2632 of the Internal Revenue Code may benefit personally from the election or allocation, with no duty to reimburse any other person interested in the election or allocation. The fiduciary shall have no duty to make any equitable adjustment and shall have no duty to treat interested persons impartially in respect of the election or allocation. (3) The fiduciary of a trust, if an election is made under section 2056(b)(7), 2523(f), or 2056A of the Internal Revenue Code, if an allocation is made under section 2632 of the Internal Revenue Code, or if division of a trust is of benefit to the persons interested in the trust, may divide the trust into two or more separate trusts, of equal or unequal value, if: (a) The terms of the separate trusts which result are substantially identical to the terms of the trust before division; (b) In the case of a trust otherwise qualifying for the marital deduction under the Internal Revenue Code, the division shall not prevent a separate trust for which the election is made from qualifying for the marital deduction; and (c) The allocation of assets shall be based upon the fair market value of the assets at the time of the division. (4) For state and federal estate tax purposes, a fiduciary may make inconsistent elections under section 2056(b)(7) or 2056A of the Internal Revenue Code and under similar provisions of applicable state law. [2006 c 360 § 5; 1997 c 252 § 83; 1993 c 73 § 4; 1991 c 6 § 1; 1990 c 179 § 2; 1988 c 64 § 29.] Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. Captions—Severability—1988 c 64: See RCW 83.100.904 and 83.100.905. 11.108.030 11.108.030 Pecuniary bequests—Valuation of assets if distribution other than money. (1) If a governing instrument authorizes the fiduciary to satisfy a pecuniary bequest in whole or in part by distribution of property other than money, the assets selected for that purpose shall be valued at their respective fair market values on the date or dates of distribution, unless the governing instrument expressly provides otherwise. If the governing instrument permits the fiduciary to value the assets selected for the distribution as of a date other than the date or dates of distribution, then, unless the governing instrument expressly provides otherwise, the assets selected by the fiduciary for that purpose shall have an aggregate fair market value on the date or dates of distribution which, when added to any cash distributed, will amount to no less than the amount of that gift as stated in, or determined by, the governing instrument. (2) A marital deduction gift shall be satisfied only with assets that qualify for those deductions. [1985 c 30 § 108. Prior: 1984 c 149 § 142.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. (2006 Ed.) 11.108.040 11.108.040 11.108.040 Construction of certain marital deduction formula bequests. (1) If a testator, under the terms of a governing instrument executed prior to September 12, 1981, leaves outright to or in trust for the benefit of that testator’s surviving spouse an amount or fractional share of that testator’s estate or a trust estate expressed in terms of one-half of that testator’s federal adjusted gross estate, or by any other reference to the maximum estate tax marital deduction allowable under federal law without referring, either in that governing instrument or in any codicil or amendment thereto, specifically to the unlimited federal estate tax marital deduction enacted as part of the economic recovery tax act of 1981, such expression shall, unless subsection (2) or (3) of this section applies, be construed as referring to the unlimited federal estate tax marital deduction, and also as expressing such amount or fractional share, as the case may be, in terms of the minimum amount which will cause the least possible amount of federal estate tax to be payable as a result of the testator’s death, taking into account other property passing to the surviving spouse that qualifies for the marital deduction, at the value at which it qualifies, and also taking into account all credits against the federal estate tax, but only to the extent that the use of these credits do not increase the death tax payable. (2) If this subsection applies to a testator, such expression shall be construed as referring to the estate tax marital deduction allowed by federal law immediately prior to the enactment of the unlimited estate tax marital deduction as a part of the economic recovery tax act of 1981. This subsection applies if subsection (3) of this section does not apply and: (a) The application of this subsection to the testator will not cause an increase in the federal estate taxes payable as a result of the testator’s death over the amount of such taxes which would be payable if subsection (1) of this section applied; or (b) The testator is survived by a blood or adopted descendant who is not also a blood or adopted descendant of the testator’s surviving spouse, unless such person or persons have entered into an agreement under RCW 11.96A.220; or (c) The testator amended the governing instrument containing such expression after December 31, 1981, without amending such expression to refer expressly to the unlimited federal estate tax marital deduction. (3) If the governing instrument contains language expressly stating that federal law of a particular time prior to January 1, 1982, is to govern the construction or interpretation of such expression, the expression shall be construed as referring to the marital deduction allowable under federal law in force and effect as of that time. (4) If subsection (2) or (3) of this section applies to the testator, the expression shall not be construed as referring to any property that the personal representative of the testator’s estate or other authorized fiduciary elects to qualify for the federal estate tax marital deduction as qualified terminable interest property. If subsection (1) of this section applies to the testator, any provision shall be construed as referring to any property that the personal representative of the testator’s estate or other authorized fiduciary elects to qualify for the federal estate tax marital deduction as qualified terminable interest property, but only to the extent that such construction [Title 11 RCW—page 137] 11.108.050 Title 11 RCW: Probate and Trust Law does not cause the amount or fractional share left to or for the benefit of the surviving spouse to be reduced below the amount that would pass under subsection (2) or (3) of this section, whichever is applicable. (5) This section is effective with respect to testators dying after December 31, 1982. [1999 c 42 § 630; 1985 c 30 § 109. Prior: 1984 c 149 § 143.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.108.050 11.108.050 Marital deduction gift in trust. If a governing instrument contains a marital deduction gift in trust, then in addition to the other provisions of this chapter, each of the following applies to the trust to the extent necessary to qualify the gift for the marital deduction: (1) If the transferor’s spouse is a citizen of the United States at the time of the transfer: (a) The transferor’s spouse is entitled to all of the income from the trust, payable annually or at more frequent intervals, during the spouse’s life; (b) During the life of the transferor’s spouse, a person may not appoint or distribute any part of the trust property to a person other than the transferor’s spouse; (c) The transferor’s spouse may compel the trustee of the trust to make any unproductive property of the trust productive, or to convert the unproductive property into productive property, within a reasonable time; and (d) The transferor’s spouse may, alone and in all events, dispose of all of the trust property, including accrued or undistributed income, remaining after the spouse’s death under a testamentary general power of appointment, as defined in section 2041 of the Internal Revenue Code. However, this subsection (1)(d) does not apply to: (i) A marital deduction gift in trust which is described in subsection (2) of this section; (ii) that portion of a marital deduction gift in trust that has qualified for the marital deduction as a result of an election under section 2056(b)(7) or 2523(f) of the Internal Revenue Code; and (iii) that portion of marital deduction gift in trust that would have qualified for the marital deduction but for the fiduciary’s decision not to make the election under section 2056(b)(7) or 2523(f) of the Internal Revenue Code; (2) If the transferor’s spouse is not a citizen of the United States at the time of the transfer, then to the extent necessary to qualify the gift for the marital deduction, subsection (1)(a), (b), and (c) of this section and each of the following applies to the trust: (a) At least one trustee of the trust must be an individual citizen of the United States or a domestic corporation, and a distribution, other than a distribution of income, may not be made from the trust unless a trustee who is an individual citizen of the United States or a domestic corporation has the right to withhold from the distribution the tax imposed under section 2056A of the Internal Revenue Code on the distribution; (b) The trust must meet such requirements as the secretary of the treasury of the United States by regulations pre[Title 11 RCW—page 138] scribes to ensure collection of estate tax, under section 2056A(b) of the Internal Revenue Code; and (c) Subsection (2)(a) and (b) of this section no longer apply to the trust if the transferor’s spouse becomes a citizen of the United States and: (i) The transferor’s spouse was a resident of the United States at all times after the transferor’s death and before becoming a citizen; (ii) tax has not been imposed on the trust under section 2056A(b)(1)(A) of the Internal Revenue Code before the transferor’s spouse becomes a citizen; or (iii) the transferor’s spouse makes an election under section 2056A(b)(12)(C) of the Internal Revenue Code regarding tax imposed on distributions from the trust before becoming a citizen; and (3) Subsection (1) of this section does not apply to: (a) A trust: (i) That provides for a life estate or term of years for the exclusive benefit of the transferor’s spouse, with the remainder payable to the such spouse’s estate; or (ii) created exclusively for the benefit of the estate of the transferor’s spouse; and (b) An interest of the transferor’s spouse in a charitable remainder annuity trust or charitable remainder unitrust described in section 664 of the Internal Revenue Code, if the transferor’s spouse is the only noncharitable beneficiary. [1997 c 252 § 84; 1993 c 73 § 5; 1990 c 179 § 3; 1985 c 30 § 110. Prior: 1984 c 149 § 144.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.108.060 11.108.060 Marital deduction gift—Survivorship requirement—Limits—Property to be held in trust. For an estate that exceeds the amount exempt from state or federal tax by virtue of the credit under section 2010 of the Internal Revenue Code, if taking into account applicable adjusted taxable gifts as defined in section 2001(b) of the Internal Revenue Code, any marital deduction gift that is conditioned upon the transferor’s spouse surviving the transferor for a period of more than six months, is governed by the following: (1) A survivorship requirement expressed in the governing instrument in excess of six months or which may exceed six months, other than survival by a spouse of a common disaster resulting in the death of the transferor, does not apply to property passing under the marital deduction gift, and for the gift, the survivorship requirement may not exceed the period ending six months following the transferor’s date of death, as established under section 2056(b)(3) of the Internal Revenue Code. (2) If the property that is the subject of the marital deduction gift is passing or is to be held in trust, as opposed to passing outright, it must be held in a trust meeting the requirements of section 2056(b)(7) of the Internal Revenue Code the corpus of which must: (a) Pass as though the spouse failed to survive the transferor if the spouse, in fact, fails to survive the term specified in the governing instrument; and (b) pass to the spouse under the terms of the governing instrument if the spouse, in fact, survives the term specified in the governing instrument. [2006 c 360 § 6; 1999 c 44 § 1; 1997 c 252 § 86; 1989 c 35 § 1; 1985 c 30 § 111. Prior: 1984 c 149 § 145.] Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. (2006 Ed.) Charitable Trusts Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.110.010 (2) Sections 3 through 6, chapter 360, Laws of 2006 are remedial in nature and shall be liberally applied in order to achieve the purposes of chapter 360, Laws of 2006. [2006 c 360 § 7; 1999 c 42 § 631; 1985 c 30 § 112. Prior: 1984 c 149 § 146.] 11.108.070 11.108.070 Presumptions for the interpretation, construction, and administration of governing instrument. (1) The legislature finds that the citizens and residents of the state, and nonresidents of the state having property located in Washington, desire to take full advantage of the exemptions, exclusions, deductions, and credits allowable under the federal estate, gift, income, and generation-skipping transfer taxes, and the Washington counterparts to those taxes, if any, unless the facts and circumstances indicate otherwise, or the transferor has expressed a contrary intent in the governing instrument. (2) In interpreting, construing, or administering a governing instrument, absent a clear expression of intent by the transferor to the contrary, the following presumptions apply and may only be rebutted by clear, cogent, and convincing evidence to the contrary, but these presumptions of intent do not require the making of any particular voluntary tax election: (a) The transferor intended to take advantage of the maximum benefit of tax deductions, exemptions, exclusions, or credits; (b) The transferor intended any gift to a spouse made outright and free of trust is to qualify for the gift or estate tax marital deduction and to be a marital deduction gift; and (c) If the governing instrument refers to a trust as a marital trust, QTIP trust, or spousal trust, or refers to qualified terminable interest property, QTIP, or QTIP property, sections 2044, 2056, and 2523 of the Internal Revenue Code or similar provisions of applicable state law, the transferor intended the property passing to such a trust and the trust to qualify for the applicable gift or estate tax martial [marital] deduction, and for the gift to qualify for a marital deduction gift. (3) References in this chapter to provisions of the Internal Revenue Code include references to similar provisions, if any, of applicable state law. [2006 c 360 § 4.] Clarification of laws—Enforceability of act—Severability—2006 c 360: See notes following RCW 11.108.070. Clarification of laws—Enforceability of act—2006 c 360: "This act clarifies and declares the existing laws of this state. This act is enforceable as to all persons and all trusts regardless of when the trust was created." [2006 c 360 § 17.] 11.110.250 Severability—2006 c 360: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2006 c 360 § 18.] 11.110.270 Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Chapter 11.110 Chapter 11.110 RCW CHARITABLE TRUSTS Sections 11.110.010 11.110.020 11.110.040 11.110.051 11.110.060 11.110.070 11.110.075 11.110.090 11.110.100 11.110.110 11.110.120 11.110.125 11.110.130 11.110.140 11.110.200 11.110.210 11.110.220 11.110.230 11.110.260 11.110.900 Purpose of chapter. Definitions. Information, documents, and reports are public records— Inspection—Publication. Registration of trustee—Requirements—Exception—Application of chapter to nonregistered trustees. Instrument establishing trust, inventory of assets, registration status, successor trustee information, and amendments to be filed. Tax or information return or report—Filing—Rules—Forms. Trust not exclusively for charitable purposes—Instrument and information not public—Access. Uniformity of chapter with laws of other states. Investigations by attorney general authorized—Appearance and production of books, papers, documents, etc., may be required. Order to appear—Effect—Enforcement—Appellate review. Proceedings to secure compliance and proper trust administration—Attorney general to be notified of judicial proceedings involving charitable trust—Powers and duties additional. Violations—Refusal to file reports, perform duties, etc. Violations—Civil action may be prosecuted. Penalty. Tax Reform Act of 1969, state implementation—Application of RCW 11.110.200 through 11.110.260 to certain trusts defined in federal code. Tax Reform Act of 1969, state implementation—Trust instruments deemed to contain prohibiting provisions. Tax Reform Act of 1969, state implementation—Trust instruments deemed to contain certain provisions for distribution. Tax Reform Act of 1969, state implementation—Rights, powers, of courts, attorney general, not impaired. Tax Reform Act of 1969, state implementation—Application to trust created after June 10, 1971, or amendment to existing trust. Tax Reform Act of 1969, state implementation—Severability—RCW 11.110.200 through 11.110.260. Tax Reform Act of 1969, state implementation—Not for profit corporations. Severability—1967 ex.s. c 53. Fees—Charitable trusts—Charitable solicitations: RCW 43.07.125. 11.108.900 11.108.900 Application of chapter—Application of 2006 c 360. (1) This chapter applies to all estates, trusts, and governing instruments in existence on or any time after March 7, 1984, and to all proceedings with respect thereto after that date, whether the proceedings commenced before or after that date, and including distributions made after that date. This chapter shall not apply to any governing instrument the terms of which expressly or by necessary implication make this chapter inapplicable. The judicial and nonjudicial dispute resolution procedures of chapter 11.96A RCW apply to this chapter. (2006 Ed.) 11.110.010 11.110.010 Purpose of chapter. The purpose of this chapter is to facilitate public supervision over the administration of public charitable trusts and similar relationships and to clarify and implement the powers and duties of the attorney general and the secretary of state with relation thereto. [1993 c 471 § 25; 1985 c 30 § 113. Prior: 1967 ex.s. c 53 § 1. Formerly RCW 19.10.010.] Severability—Effective date—1993 c 471: See RCW 19.09.914 and 19.09.915. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. [Title 11 RCW—page 139] 11.110.020 Title 11 RCW: Probate and Trust Law 11.110.020 11.110.020 Definitions. When used in this chapter, unless the context otherwise requires: "Person" means an individual, organization, group, association, partnership, corporation, or any combination of them. "Trustee" means (1) any person holding property in trust for a public charitable purpose; except the United States, its states, territories, and possessions, the District of Columbia, Puerto Rico, and their agencies and subdivisions; and (2) a corporation formed for the administration of a charitable trust or holding assets subject to limitations permitting their use only for charitable, religious, eleemosynary, benevolent, educational, or similar purposes: PROVIDED, That the term "trustee" does not apply to (a) religious corporations duly organized and operated in good faith as religious organizations, which have received a declaration of current tax exempt status from the government of the United States; their duly organized branches or chapters; and charities, agencies, and organizations affiliated with and forming an integral part of said organization, or operated, supervised, or controlled directly by such religious corporations nor any officer of any such religious organization who holds property for religious purposes: PROVIDED, That if such organization has not received from the United States government a declaration of current tax exempt status prior to the time it receives property under the terms of a charitable trust, this exemption shall be applicable for two years only from the time of receiving such property, or until such tax exempt status is finally declared, whichever is sooner; or (b) an educational institution which is nonprofit and charitable, having a program of primary, secondary, or collegiate instruction comparable in scope to that of any public school or college operated by the state of Washington or any of its school districts. [1985 c 30 § 114. Prior: 1971 ex.s. c 226 § 1; 1967 ex.s. c 53 § 2. Formerly RCW 19.10.020.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.110.040 11.110.040 Information, documents, and reports are public records—Inspection—Publication. All information, documents, and reports filed with the secretary of state under this chapter are matters of public record and shall be open to public inspection, subject to reasonable regulation: PROVIDED, That the secretary of state shall withhold from public inspection any trust instrument so filed whose content is not exclusively for charitable purposes. The secretary of state may publish, on a periodic or other basis, such information as may be necessary or appropriate in the public interest concerning the registration, reports, and information filed with the secretary of state or any other matters relevant to the administration and enforcement of this chapter. [1993 c 471 § 26; 1985 c 30 § 115. Prior: 1967 ex.s. c 53 § 4. Formerly RCW 19.10.040.] Severability—Effective date—1993 c 471: See RCW 19.09.914 and 19.09.915. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.110.051 11.110.051 Registration of trustee—Requirements— Exception—Application of chapter to nonregistered trustees. (1) Except as provided in subsection (2) of this sec[Title 11 RCW—page 140] tion, a trustee, as defined by RCW 11.110.020, must register with the secretary of state if, as to a particular charitable trust: (a) The trustee holds assets in trust, invested for incomeproducing purposes, exceeding a value established by the secretary of state by rule; (b) Under the terms of the trust all or part of the principal or income of the trust can or must currently be expended for charitable purposes; and (c) The trust instrument does not require the distribution of the entire trust corpus within a period of one year or less. (2) A trustee of a trust, in which the only charitable interest is in the nature of a remainder, is not required to register during any life estate or other term that precedes the charitable interest. This exclusion from registration applies to trusts which have more than one noncharitable life income beneficiary, even if the death of one such beneficiary obligates the trustee to distribute a remainder interest to charity. (3) A trustee of a charitable trust that is not required to register pursuant to this section is subject to all requirements of this chapter other than those governing registration and reporting to the secretary of state. [1997 c 124 § 1.] 11.110.060 11.110.060 Instrument establishing trust, inventory of assets, registration status, successor trustee information, and amendments to be filed. (1) Every trustee required to file under RCW 11.110.051 shall file with the secretary of state within four months after receiving possession or control of the trust corpus, or after the trust becomes a trust described by RCW 11.110.051(1): (a) A copy of the instrument establishing his or her title, powers, or duties; (b) An inventory of the assets of such charitable trust; and (c) A registration form setting forth the trustee’s name, mailing address, physical address if different, and additional identifying information required by the secretary by rule. (2) A successor trustee to a previously registered trust shall file a registration form and inventory of assets within four months after receiving possession or control of the trust corpus. (3) A trustee required to register shall file with the secretary of state copies of all amendments to the trust instrument within four months of the making of the amendment. [1997 c 124 § 2; 1993 c 471 § 28; 1985 c 30 § 117. Prior: 1984 c 149 § 150; 1971 ex.s. c 226 § 2; 1967 ex.s. c 53 § 6. Formerly RCW 19.10.060.] Severability—Effective date—1993 c 471: See RCW 19.09.914 and 19.09.915. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.110.070 11.110.070 Tax or information return or report— Filing—Rules—Forms. Every trustee required to register under RCW 11.110.051 shall file with the secretary of state a copy of each publicly available United States tax or information return or report of the trust at the time that the trustee files with the internal revenue service. The secretary may provide by rule for the exemption from reporting under this section by some or all trusts not required to file a federal tax (2006 Ed.) Charitable Trusts or information return, and for a substitute form containing similar information to be used by any trusts not so exempted. [1997 c 124 § 3; 1993 c 471 § 29; 1985 c 30 § 118. Prior: 1971 ex.s. c 226 § 3; 1967 ex.s. c 53 § 7. Formerly RCW 19.10.070.] Severability—Effective date—1993 c 471: See RCW 19.09.914 and 19.09.915. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.110.075 11.110.075 Trust not exclusively for charitable purposes—Instrument and information not public—Access. A trust is not exclusively for charitable purposes, within the meaning of RCW 11.110.040, when the instrument creating it contains a trust for several or mixed purposes, and any one or more of such purposes is not charitable within the meaning of RCW 11.110.020, as enacted or hereafter amended. Such instrument shall be withheld from public inspection by the secretary of state and no information as to such noncharitable purpose shall be made public. The attorney general shall have free access to such information. [1997 c 124 § 4; 1993 c 471 § 30; 1985 c 30 § 120. Prior: 1984 c 149 § 154; 1971 ex.s. c 226 § 5. Formerly RCW 19.10.075.] Severability—Effective date—1993 c 471: See RCW 19.09.914 and 19.09.915. 11.110.120 11.110.110 11.110.110 Order to appear—Effect—Enforcement—Appellate review. When the attorney general requires the attendance of any person, as provided in RCW 11.110.100, he shall issue an order setting forth the time when and the place where attendance is required and shall cause the same to be delivered to or sent by registered mail to the person at least fourteen days before the date fixed for attendance. Such order shall have the same force and effect as a subpoena, and, upon application of the attorney general, obedience to the order may be enforced by any superior court judge in the county where the person receiving it resides or is found, in the same manner as though the notice were a subpoena. The court, after hearing, for good cause, and upon application of any person aggrieved by the order, shall have the right to alter, amend, revise, suspend, or postpone all or any part of its provisions. In any case where the order is not enforced by the court according to its terms, the reasons for the court’s actions shall be clearly stated in the record, and shall be subject to review by the supreme court or the court of appeals. [1988 c 202 § 20; 1985 c 30 § 124. Prior: 1984 c 149 § 157; 1971 c 81 § 64; 1967 ex.s. c 53 § 11. Formerly RCW 19.10.110.] Rules of court: Writ procedure superseded by RAP 2.1(b), 2.2, 18.22. Severability—1988 c 202: See note following RCW 2.24.050. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.110.090 11.110.090 Uniformity of chapter with laws of other states. It is the purpose of this chapter to make uniform the laws of this and other states on the subject of charitable trusts and similar relationships. Recognizing the necessity for uniform application and enforcement of this chapter, its provisions are hereby declared mandatory and they shall not be superseded by the provisions of any trust instrument or similar instrument to the contrary. [1985 c 30 § 122. Prior: 1967 ex.s. c 53 § 9. Formerly RCW 19.10.090.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.110.100 11.110.100 Investigations by attorney general authorized—Appearance and production of books, papers, documents, etc., may be required. The attorney general may investigate transactions and relationships of trustees and other persons subject to this chapter for the purpose of determining whether the trust or other relationship is administered according to law and the terms and purposes of the trust, or to determine compliance with this chapter in any other respect. He may require any officer, agent, trustee, fiduciary, beneficiary, or other person, to appear, at a time and place designated by the attorney general in the county where the person resides or is found, to give information under oath and to produce books, memoranda, papers, documents of title, and evidence of assets, liabilities, receipts, or disbursements in the possession or control of the person ordered to appear. [1985 c 30 § 123. Prior: 1967 ex.s. c 53 § 10. Formerly RCW 19.10.100.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. (2006 Ed.) 11.110.120 11.110.120 Proceedings to secure compliance and proper trust administration—Attorney general to be notified of judicial proceedings involving charitable trust—Powers and duties additional. The attorney general may institute appropriate proceedings to secure compliance with this chapter and to secure the proper administration of any trust or other relationship to which this chapter applies. He shall be notified of all judicial proceedings involving or affecting the charitable trust or its administration in which, at common law, he is a necessary or proper party as representative of the public beneficiaries. The notification shall be given as provided in RCW 11.96A.110, but this notice requirement may be waived at the discretion of the attorney general. The powers and duties of the attorney general provided in this chapter are in addition to his existing powers and duties, and are not to be construed to limit or to restrict the exercise of the powers or the performance of the duties of the attorney general or of any prosecuting attorney which they may exercise or perform under any other provision of law. Except as provided herein, nothing in this chapter shall impair or restrict the jurisdiction of any court with respect to any of the matters covered by it. [1999 c 42 § 632; 1985 c 30 § 125. Prior: 1984 c 149 § 158; 1967 ex.s. c 53 § 12. Formerly RCW 19.10.120.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. [Title 11 RCW—page 141] 11.110.125 Title 11 RCW: Probate and Trust Law 11.110.125 11.110.125 Violations—Refusal to file reports, perform duties, etc. The willful refusal by a trustee to make or file any report or to perform any other duties expressly required by this chapter, or to comply with any valid rule adopted by the secretary of state under this chapter, shall constitute a breach of trust and a violation of this chapter. [1993 c 471 § 32; 1985 c 30 § 126. Prior: 1971 ex.s. c 226 § 6. Formerly RCW 19.10.125.] Severability—Effective date—1993 c 471: See RCW 19.09.914 and 19.09.915. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.110.130 11.110.130 Violations—Civil action may be prosecuted. A civil action for a violation of this chapter may be prosecuted by the attorney general or by a prosecuting attorney. [1993 c 471 § 33; 1985 c 30 § 127. Prior: 1967 ex.s. c 53 § 13. Formerly RCW 19.10.130.] Severability—Effective date—1993 c 471: See RCW 19.09.914 and 19.09.915. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.110.140 11.110.140 Penalty. Every false statement of material fact knowingly made or caused to be made by any person in any statement or report filed under this chapter and every other violation of this chapter is a gross misdemeanor. [1985 c 30 § 128. Prior: 1967 ex.s. c 53 § 14. Formerly RCW 19.10.140.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. 11.110.200 11.110.200 Tax Reform Act of 1969, state implementation—Application of RCW 11.110.200 through 11.110.260 to certain trusts defined in federal code. RCW 11.110.200 through 11.110.260 shall apply only to trusts which are "private foundations" as defined in section 509 of the Internal Revenue Code, "charitable trusts" as described in section 4947(a)(1) of the Internal Revenue Code, or "splitinterest trusts" as described in section 4947(a)(2) of the Internal Revenue Code. With respect to any such trust created after December 31, 1969, RCW 11.110.200 through 11.110.260 shall apply from such trust’s creation. With respect to any such trust created before January 1, 1970, RCW 11.110.200 through 11.110.260 shall apply only to such trust’s federal taxable years beginning after December 31, 1971. [1993 c 73 § 6; 1985 c 30 § 129. Prior: 1984 c 149 § 161; 1971 c 58 § 1. Formerly RCW 19.10.200.] give rise to any liability for the tax imposed by section 4941(a) of the Internal Revenue Code; (2) Retaining any "excess business holdings," as defined in section 4943(c) of the Internal Revenue Code, which would give rise to any liability for the tax imposed by section 4943(a) of the Internal Revenue Code; (3) Making any investments which would jeopardize the carrying out of any of the exempt purposes of the trust, within the meaning of section 4944 of the Internal Revenue Code, so as to give rise to any liability for the tax imposed by section 4944(a) of the Internal Revenue Code; and (4) Making any "taxable expenditures," as defined in section 4945(d) of the Internal Revenue Code, which would give rise to any liability for the tax imposed by section 4945(a) of the Internal Revenue Code: PROVIDED, That this section shall not apply either to those split-interest trusts or to amounts thereof which are not subject to the prohibitions applicable to private foundations by reason of the provisions of section 4947 of the Internal Revenue Code. [1993 c 73 § 7; 1985 c 30 § 130. Prior: 1984 c 149 § 162; 1971 c 58 § 2. Formerly RCW 19.10.210.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.110.220 11.110.220 Tax Reform Act of 1969, state implementation—Trust instruments deemed to contain certain provisions for distribution. The trust instrument of each trust to which RCW 11.110.200 through 11.110.260 applies, except "split-interest" trusts, shall be deemed to contain a provision requiring the trustee to distribute, for the purposes specified in the trust instrument, for each taxable year of the trust, amounts at least sufficient to avoid liability for the tax imposed by section 4942(a) of the Internal Revenue Code. [1993 c 73 § 8; 1985 c 30 § 131. Prior: 1984 c 149 § 163; 1971 c 58 § 3. Formerly RCW 19.10.220.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.110.230 11.110.230 Tax Reform Act of 1969, state implementation—Rights, powers, of courts, attorney general, not impaired. Nothing in RCW 11.110.200 through 11.110.260 shall impair the rights and powers of the courts or the attorney general of this state with respect to any trust. [1985 c 30 § 132. Prior: 1984 c 149 § 164; 1971 c 58 § 4. Formerly RCW 19.10.230.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.110.210 11.110.210 Tax Reform Act of 1969, state implementation—Trust instruments deemed to contain prohibiting provisions. The trust instrument of each trust to which RCW 11.110.200 through 11.110.260 applies shall be deemed to contain provisions prohibiting the trustee from: (1) Engaging in any act of "self-dealing," as defined in section 4941(d) of the Internal Revenue Code, which would [Title 11 RCW—page 142] 11.110.250 11.110.250 Tax Reform Act of 1969, state implementation—Application to trust created after June 10, 1971, or amendment to existing trust. Nothing in RCW 11.110.200 through 11.110.260 shall limit the power of a person who creates a trust after June 10, 1971 or the power of a person who has retained or has been granted the right to amend a trust created before June 10, 1971, to include a spe(2006 Ed.) Uniform Transfers to Minors Act cific provision in the trust instrument or an amendment thereto, as the case may be, which provides that some or all of the provisions of RCW 11.110.210 and 11.110.220 shall have no application to such trust. [1985 c 30 § 134. Prior: 1984 c 149 § 167; 1971 c 58 § 6. Formerly RCW 19.10.250.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.110.260 11.110.260 Tax Reform Act of 1969, state implementat ion—Severability —RCW 11.110.200 t hroug h 11.110.260. If any provision of RCW 11.110.200 through 11.110.260 or the application thereof to any trust is held invalid, such invalidity shall not affect the other provisions or applications of RCW 11.110.200 through 11.110.260 which can be given effect without the invalid provision or application, and to this end the provisions of RCW 11.110.200 through 11.110.260 are declared to be severable. [1985 c 30 § 135. Prior: 1984 c 149 § 168; 1971 c 58 § 7. Formerly RCW 19.10.260.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Severability—Effective dates—1984 c 149: See notes following RCW 11.02.005. 11.110.270 11.110.270 Tax Reform Act of 1969, state implementation—Not for profit corporations. See RCW 24.40.010 through 24.40.070. 11.110.900 11.110.900 Severability—1967 ex.s. c 53. If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1985 c 30 § 136. Prior: 1967 ex.s. c 53 § 15. Formerly RCW 19.10.900.] Short title—Application—Purpose—Severability—1985 c 30: See RCW 11.02.900 through 11.02.903. Chapter 11.114 RCW UNIFORM TRANSFERS TO MINORS ACT Chapter 11.114 Sections 11.114.010 11.114.020 11.114.030 11.114.040 11.114.050 11.114.060 11.114.070 11.114.080 11.114.090 11.114.100 11.114.110 11.114.120 11.114.130 11.114.140 11.114.150 11.114.160 11.114.170 11.114.180 11.114.190 11.114.200 11.114.210 (2006 Ed.) Definitions. Scope and jurisdiction. Nomination of custodian—Designation of custodian by representative or specified person. Transfer by gift or exercise of power of appointment. Transfer authorized by will or trust. Other transfer by fiduciary. Transfer by obligor. Receipt for custodial property. Manner of creating custodial property and effecting transfer— Designation of initial custodian—Control. Single custodianship. Validity and effect of transfer. Care of custodial property. Powers of custodian. Use of custodial property. Custodian’s expenses, compensation, and bond. Exemption of third person from liability. Liability to third persons. Renunciation, resignation, death, or removal of custodian— Designation of successor custodian. Accounting by and determination of liability of custodian. Termination of custodianship. Applicability. 11.114.220 11.114.230 11.114.900 11.114.901 11.114.902 11.114.903 11.114.904 11.114.010 Effect on existing custodianships. Uniformity of application and construction. Short title. Captions not law. Savings—1991 c 193. Effective date—1991 c 193. Severability—1991 c 193. 11.114.010 11.114.010 Definitions. (Effective until July 1, 2007.) Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Adult" means an individual who has attained the age of twenty-one years. (2) "Benefit plan" means an employer’s plan for the benefit of an employee or partner. (3) "Broker" means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person’s own account or for the account of others. (4) "Guardian" means a person appointed or qualified by a court to act as general, limited, or temporary guardian of a minor’s property or a person legally authorized to perform substantially the same functions. Conservator means guardian for transfers made under another state’s law but enforceable in this state’s courts. (5) "Court" means a superior court of the state of Washington. (6) "Custodial property" means (a) any interest in property transferred to a custodian under this chapter and (b) the income from and proceeds of that interest in property. (7) "Custodian" means a person so designated under RCW 11.114.090 or a successor or substitute custodian designated under RCW 11.114.180. (8) "Financial institution" means a bank, trust company, savings institution, or credit union, chartered and supervised under state or federal law. (9) "Legal representative" means an individual’s personal representative or guardian. (10) "Member of the minor’s family" means the minor’s parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption. (11) "Minor" means an individual who has not attained the age of twenty-one years. (12) "Person" means an individual, corporation, organization, or other legal entity. (13) "State" includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States. (14) "Transfer" means a transaction that creates custodial property under RCW 11.114.090. (15) "Transferor" means a person who makes a transfer under this chapter. (16) "Trust company" means a financial institution, corporation, or other legal entity, authorized to exercise general trust powers. [1991 c 193 § 1.] 11.114.010 11.114.010 Definitions. (Effective July 1, 2007.) Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Adult" means an individual other than the minor who has attained the age of twenty-one years and is older than the minor. [Title 11 RCW—page 143] 11.114.020 Title 11 RCW: Probate and Trust Law (2) "Benefit plan" means an employer’s plan for the benefit of an employee or partner. (3) "Broker" means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person’s own account or for the account of others. (4) "Guardian" means a person appointed or qualified by a court to act as general, limited, or temporary guardian of a minor’s property or a person legally authorized to perform substantially the same functions. Conservator means guardian for transfers made under another state’s law but enforceable in this state’s courts. (5) "Court" means a superior court of the state of Washington. (6) "Custodial property" means (a) any interest in property transferred to a custodian under this chapter and (b) the income from and proceeds of that interest in property. (7) "Custodian" means a person so designated under RCW 11.114.090 or a successor or substitute custodian designated under RCW 11.114.180. (8) "Financial institution" means a bank, trust company, savings institution, or credit union, chartered and supervised under state or federal law. (9) "Legal representative" means an individual’s personal representative or guardian. (10) "Member of the minor’s family" means the minor’s parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption. (11) "Minor" means an individual who has not attained the age of twenty-five years. (12) "Person" means an individual, corporation, organization, or other legal entity. (13) "State" includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States. (14) "Transfer" means a transaction that creates custodial property under RCW 11.114.090. (15) "Transferor" means a person who makes a transfer under this chapter. (16) "Trust company" means a financial institution, corporation, or other legal entity, authorized to exercise general trust powers. [2006 c 204 § 1; 1991 c 193 § 1.] Effective date—2006 c 204: See note following RCW 11.114.090. 11.114.020 11.114.020 Scope and jurisdiction. (Effective until July 1, 2007.) (1) This chapter applies to a transfer that refers to this chapter in the designation under RCW 11.114.090(1) by which the transfer is made if at the time of the transfer, the transferor, the minor, or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to this chapter despite a subsequent change in residence of a transferor, the minor, or the custodian, or the removal of custodial property from this state. (2) A person designated as custodian under this chapter is subject to personal jurisdiction in this state with respect to any matter relating to the custodianship. (3) A transfer that purports to be made and which is valid under the uniform transfers to minors act, the uniform gifts to minors act, or a substantially similar act of another state is [Title 11 RCW—page 144] governed by the law of the designated state and may be executed and is enforceable in this state if at the time of the transfer, the transferor, the minor, or the custodian is a resident of the designated state or the custodial property is located in the designated state. (4) A matter under this chapter subject to court determination is governed by the procedures provided in RCW 11.96A.080 through 11.96A.200. However, no guardian ad litem is required for the minor, except under RCW 11.114.190(1), in the case of a petition by a [an] unrepresented minor under the age of fourteen years. [1999 c 42 § 633; 1991 c 193 § 2.] Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. 11.114.020 11.114.020 Scope and jurisdiction. (Effective July 1, 2007.) (1) This chapter applies to a transfer that refers to this chapter in the designation under RCW 11.114.090(1) by which the transfer is made if at the time of the transfer, the transferor, the minor, or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to this chapter despite a subsequent change in residence of a transferor, the minor, or the custodian, or the removal of custodial property from this state. (2) A person designated as custodian under this chapter is subject to personal jurisdiction in this state with respect to any matter relating to the custodianship. (3) A transfer that purports to be made and which is valid under the uniform transfers to minors act, the uniform gifts to minors act, or a substantially similar act of another state is governed by the law of the designated state and may be executed and is enforceable in this state if at the time of the transfer, the transferor, the minor, or the custodian is a resident of the designated state or the custodial property is located in the designated state. (4) A matter under this chapter subject to court determination is governed by the procedures provided in RCW 11.96A.080 through 11.96A.200. However, no guardian ad litem is required for the minor, except under RCW 11.114.190(1), in the case of a petition by an unrepresented minor under the age of eighteen years. [2006 c 204 § 2; 1999 c 42 § 633; 1991 c 193 § 2.] Effective date—2006 c 204: See note following RCW 11.114.090. Part headings and captions not law—Effective date—1999 c 42: See RCW 11.96A.901 and 11.96A.902. 11.114.030 Nomination of custodian—Designation of custodian by representative or specified person. (1) A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian followed in substance by the words: ". . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act." The nomination may name one or more persons as substitute custodians to whom the property shall be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines, or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercis11.114.030 (2006 Ed.) Uniform Transfers to Minors Act ing a power of appointment, or in a writing designating a beneficiary of contractual rights which is registered with or delivered to the payor, issuer, or other obligor of the contractual rights. As an alternative to naming a specific person as custodian, the nomination may provide that the custodian may be designated by the legal representative of, or other person specified by, the person having the right to designate the recipient of the property described in this subsection. The person having the right of designation of the custodian is authorized to designate himself or herself as custodian, if he or she falls within the class of persons eligible to serve as custodian under RCW 11.114.090(1). (2) A custodian nominated under this section shall be a person to whom a transfer of property of that kind may be made under RCW 11.114.090(1). (3) Instead of designating one specific minor, the designation may specify multiple persons or a class or classes of persons, but when the custodial property is actually created under subsection (4) of this section, it must be constituted as a separate custodianship for each beneficiary, and each beneficiary’s interest in it must be determined in accordance with the governing instrument and applicable law. (4) The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under RCW 11.114.090. Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to RCW 11.114.090. [1998 c 292 § 301; 1991 c 193 § 3.] Retroactive application—1998 c 292: See note following RCW 11.54.070. Part headings and section captions not law—Effective dates—1998 c 292: See RCW 11.11.902 and 11.11.903. 11.114.040 11.114.040 Transfer by gift or exercise of power of appointment. A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to RCW 11.114.090. [1991 c 193 § 4.] 11.114.050 11.114.050 Transfer authorized by will or trust. (1) A personal representative or trustee may make an irrevocable transfer pursuant to RCW 11.114.090 to a custodian for the benefit of a minor as authorized in the governing will or trust. The personal representative or trustee may designate himself or herself as custodian provided he or she falls within the class of persons eligible to serve as custodian under RCW 11.114.090(1). (2) If the testator or grantor has nominated a custodian under RCW 11.114.030 to receive the custodial property, the transfer shall be made to that person. (3) If the testator or grantor has not nominated a custodian under RCW 11.114.030, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under RCW 11.114.090(1). The personal representative or (2006 Ed.) 11.114.090 trustee may designate himself or herself as custodian, provided he or she falls within the class of persons eligible to serve as custodian under RCW 11.114.090(1). [1991 c 193 § 5.] 11.114.060 11.114.060 Other transfer by fiduciary. (1) A personal representative or trustee may make an irrevocable transfer to an adult or trust company for the benefit of a minor pursuant to RCW 11.114.090, in the absence of a will or under a will or trust that does not contain an authorization to do so, but only if: (a) The personal representative or trustee, or the court if an order is requested under (c) of this subsection, considers the transfer to be in the best interest of the minor; (b) The transfer is not prohibited by or inconsistent with provisions of the applicable will, trust instrument, or other governing instrument; and (c) The transfer is authorized by the court if it exceeds thirty thousand dollars in value. The personal representative, the trustee, or a member of the minor’s family may select the custodian, subject to court approval. The personal representative or trustee may serve as custodian, provided he or she falls within the class of persons eligible to serve as custodian under RCW 11.114.090(1). (2) A member of the minor’s family may request that the court establish a custodianship if a custodianship has not already been established, regardless of the value of the transfer. [1991 c 193 § 6.] 11.114.070 11.114.070 Transfer by obligor. (1) Subject to subsections (2) and (3) of this section, a person not subject to RCW 11.114.050 or 11.114.060 who holds property of or owes a liquidated debt to a minor not having a guardian may make an irrevocable transfer to a custodian for the benefit of the minor pursuant to RCW 11.114.090. (2) If a person having the right to do so under RCW 11.114.030 has nominated a custodian under that section to receive the custodial property, the transfer shall be made to that person. (3) If no custodian has been nominated under RCW 11.114.030, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, a transfer under this section may be made to an adult member of the minor’s family or to a trust company unless the property exceeds thirty thousand dollars in value. (4) A member of the minor’s family or the person who holds the property of the minor or who owes a debt to the minor may request that the court establish a custodianship if not previously established, regardless of the value of the transfer. [1991 c 193 § 7.] 11.114.080 11.114.080 Receipt for custodial property. A written confirmation of delivery by a custodian constitutes a sufficient receipt and discharge of the transferor for custodial property transferred to the custodian under this chapter. [1991 c 193 § 8.] 11.114.090 11.114.090 Manner of creating custodial property and effecting transfer—Designation of initial custodian— [Title 11 RCW—page 145] 11.114.090 Title 11 RCW: Probate and Trust Law Control. (Effective until July 1, 2007.) (1) Custodial property is created and a transfer is made if: (a) An uncertificated security or a certificated security in registered form is either: (i) Registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; or (ii) Delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection (2) of this section; (b) Money is paid or delivered, or a security held in the name of a broker, financial institution, or its nominee is transferred, to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; (c) The ownership of a life or endowment insurance policy or annuity contract is either: (i) Registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; or (ii) Assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; (d) An irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; (e) An interest in real property is recorded in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; (f) A certificate of title issued by a department or agency of a state or of the United States which evidences title to tangible personal property is either: (i) Issued in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; or (ii) Delivered to an adult other than the transferor or to a trust company, endorsed to that person followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; or [Title 11 RCW—page 146] (g) An interest in any property not described in (a) through (f) of this subsection is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set forth in subsection (2) of this section. (2) An instrument in the following form satisfies the requirements of subsection (1)(a)(ii) and (g) of this section: "TRANSFER UNDER THE WASHINGTON UNIFORM TRANSFERS TO MINORS ACT I, . . . . . . (name of transferor or name and representative capacity if a fiduciary) hereby transfer to . . . . . . (name of custodian), as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act, the following: (insert a description of the custodial property sufficient to identify it). Dated: . . . . . . . . . . . . . . . ..................... (Signature) . . . . . . (name of custodian) acknowledges receipt of the property described above as custodian for the minor named above under the Washington uniform transfers to minors act. Dated: . . . . . . . . . . . . . . . .................... " (Signature of Custodian) (3) A transferor shall place the custodian in control of the custodial property as soon as practicable. [1991 c 193 § 9.] 11.114.090 11.114.090 Form and manner of creating custodial property and effecting transfer. (Effective July 1, 2007.) (1) Custodial property is created and a transfer is made if: (a) An uncertificated security or a certificated security in registered form is either: (i) Registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; or (ii) Delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection (2) of this section; (b) Money is paid or delivered, or a security held in the name of a broker, financial institution, or its nominee is transferred, to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; (c) The ownership of a life or endowment insurance policy or annuity contract is either: (i) Registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: " . . . . . . as custodian (2006 Ed.) Uniform Transfers to Minors Act for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; or (ii) Assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; (d) An irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; (e) An interest in real property is recorded in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; (f) A certificate of title issued by a department or agency of a state or of the United States which evidences title to tangible personal property is either: (i) Issued in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; or (ii) Delivered to an adult other than the transferor or to a trust company, endorsed to that person followed in substance by the words: " . . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act"; or (g) An interest in any property not described in (a) through (f) of this subsection is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set forth in subsection (2) of this section. (2) An instrument in the following form satisfies the requirements of subsection (1)(a)(ii) and (g) of this section: "TRANSFER UNDER THE WASHINGTON UNIFORM TRANSFERS TO MINORS ACT I, . . . . . . (name of transferor or name and representative capacity if a fiduciary) hereby transfer to . . . . . . (name of custodian), as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act, the following: (insert a description of the custodial property sufficient to identify it). (Electing the following paragraph is optional to the transferor): â If . . . . . . (name of custodian) is or becomes unable to act or to continue to act as custodian, the alternate or successor custodian shall be the first of the following persons, in order of preference and succession, who is then able and willing to act as custodian: (insert the name(s) of the alternate or successor custodian(s)). 1. . . . . . . 2. . . . . . . (2006 Ed.) 11.114.110 3. . . . . . . (Electing the following paragraph is optional to the transferor): â I elect to extend the custodianship to the minor’s twenty-fifth birthday. I UNDERSTAND THAT ELECTING TO EXTEND CUSTODIANSHIP TO AGE TWENTY-FIVE MAY CAUSE ME TO LOSE MY ANNUAL EXCLUSION FROM FEDERAL GIFT TAX AND THAT I SHOULD CONSULT WITH AN ATTORNEY OR TAX ADVISOR BEFORE MAKING THIS ELECTION. Dated: . . . . . . . . . . . . . . . ..................... (Signature) . . . . . . (name of custodian) acknowledges receipt of the property described above as custodian for the minor named above under the Washington uniform transfers to minors act. Dated: . . . . . . . . . . . . . . . .................... " (Signature of Custodian) (3) A transferor shall place the custodian in control of the custodial property as soon as practicable. [2006 c 204 § 3; 1991 c 193 § 9.] Effective date—2006 c 204: "This act takes effect July 1, 2007." [2006 c 204 § 9.] 11.114.100 11.114.100 Single custodianship. A transfer may be made only for one minor, and only one person may be the custodian. All custodial property held under this chapter by the same custodian for the benefit of the same minor constitutes a single custodianship. [1991 c 193 § 10.] 11.114.110 11.114.110 Validity and effect of transfer. (1) The validity of a transfer made in a manner prescribed in this chapter is not affected by: (a) Failure of the transferor to comply with RCW 11.114.090(3) concerning possession and control; (b) Designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under RCW 11.114.090(1); or (c) Death or incapacity of a person nominated under RCW 11.114.030 or designated under RCW 11.114.090 as custodian or the disclaimer of the office by that person. (2) A transfer made pursuant to RCW 11.114.090 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in this chapter, and neither the minor nor the minor’s legal representative has any right, power, duty, or authority with respect to the custodial property except as provided in this chapter. (3) By making a transfer, the transferor incorporates in the disposition all the provisions of this chapter and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights, and immunities provided in this chapter. [1991 c 193 § 11.] [Title 11 RCW—page 147] 11.114.120 Title 11 RCW: Probate and Trust Law 11.114.120 11.114.120 Care of custodial property. (Effective until July 1, 2007.) (1) A custodian shall, as soon as custodial property is made available to the custodian: (a) Take control of custodial property; (b) Register or record title to custodial property if appropriate; and (c) Collect, hold, manage, invest, and reinvest custodial property. (2) In dealing with custodial property, a custodian shall observe the standard of care applicable to fiduciaries under chapter 11.100 RCW. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. A custodian, in the custodian’s discretion and without liability to the minor or the minor’s estate, may retain any custodial property received from a transferor according to the same standards as apply to a fiduciary holding trust funds under RCW 11.100.060. However, the provisions of RCW 11.100.025, 11.100.040, and 11.100.140 shall not apply to a custodian. (3) A custodian may invest in or pay premiums on life insurance or endowment policies on (a) the life of the minor only if the minor or the minor’s estate is the sole beneficiary, or (b) the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor’s estate, or the custodian in the capacity of custodian, is the irrevocable beneficiary. (4) A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor’s interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: ". . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act." (5) A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor’s tax returns, and shall make them available upon request for inspection by a parent or legal representative of the minor or by the minor if the minor has attained the age of fourteen years. [1991 c 193 § 12.] tion and without liability to the minor or the minor’s estate, may retain any custodial property received from a transferor according to the same standards as apply to a fiduciary holding trust funds under RCW 11.100.060. However, the provisions of RCW 11.100.025, 11.100.040, and 11.100.140 shall not apply to a custodian. (3) A custodian may invest in or pay premiums on life insurance or endowment policies on (a) the life of the minor only if the minor or the minor’s estate is the sole beneficiary, or (b) the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor’s estate, or the custodian in the capacity of custodian, is the irrevocable beneficiary. (4) A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor’s interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: ". . . . . . as custodian for . . . . . . (name of minor) under the Washington uniform transfers to minors act." (5) A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor’s tax returns, and shall make them available upon request for inspection by a parent or legal representative of the minor or by the minor if the minor has attained the age of eighteen years. [2006 c 204 § 4; 1991 c 193 § 12.] Effective date—2006 c 204: See note following RCW 11.114.090. 11.114.130 11.114.130 Powers of custodian. (1) A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property, including without limitation all the powers granted to a trustee under RCW 11.98.070, but a custodian may exercise those rights, powers, and authority only in a custodial capacity. (2) This section does not relieve a custodian from liability for breach of RCW 11.114.120. [1991 c 193 § 13.] 11.114.140 11.114.120 11.114.120 Care of custodial property. (Effective July 1, 2007.) (1) A custodian shall, as soon as custodial property is made available to the custodian: (a) Take control of custodial property; (b) Register or record title to custodial property if appropriate; and (c) Collect, hold, manage, invest, and reinvest custodial property. (2) In dealing with custodial property, a custodian shall observe the standard of care applicable to fiduciaries under chapter 11.100 RCW. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. A custodian, in the custodian’s discre[Title 11 RCW—page 148] 11.114.140 Use of custodial property. (Effective until July 1, 2007.) (1) A custodian may deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to (a) the duty or ability of the custodian personally or of any other person to support the minor, or (b) any other income or property of the minor which may be applicable or available for that purpose. (2) On petition of an interested person or the minor if the minor has attained the age of fourteen years, the court may order the custodian to deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor. (2006 Ed.) Uniform Transfers to Minors Act (3) A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor. [1991 c 193 § 14.] 11.114.140 11.114.140 Use of custodial property. (Effective July 1, 2007.) (1) A custodian may deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to (a) the duty or ability of the custodian personally or of any other person to support the minor, or (b) any other income or property of the minor which may be applicable or available for that purpose. (2) On petition of an interested person or the minor if the minor has attained the age of eighteen years, the court may order the custodian to deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor. (3) A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor. [2006 c 204 § 5; 1991 c 193 § 14.] Effective date—2006 c 204: See note following RCW 11.114.090. 11.114.150 11.114.150 Custodian’s expenses, compensation, and bond. (1) A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian’s duties. (2) Except for one who is a transferor under RCW 11.114.040, a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year. (3) Except as provided in RCW 11.114.180(6), a custodian need not give a bond. (4) Notwithstanding RCW 11.114.190, a custodian not compensated for services is not liable for losses to the custodial property unless they result from bad faith, intentional wrongdoing, or gross negligence, or from failure to maintain the standard of prudence in investing the custodial property provided in this chapter. [1991 c 193 § 15.] 11.114.160 11.114.160 Exemption of third person from liability. A third person in good faith and without court order may act on the instructions of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian or successor custodian and, in the absence of knowledge, is not responsible for determining: (1) The validity of the purported custodian’s designation; (2) The propriety of, or the authority under this chapter for, any act of the purported custodian; (3) The validity or propriety under this chapter of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or (4) The propriety of the application of any property of the minor delivered to the purported custodian. [1991 c 193 § 16.] (2006 Ed.) 11.114.180 11.114.170 11.114.170 Liability to third persons. (1) A claim based on: (a) A contract entered into by a custodian acting in a custodial capacity; (b) An obligation arising from the ownership or control of custodial property; (c) A tort committed during the custodianship, may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable therefor; or (d) A noncontractual obligation, including obligations in tort, is collectible from the custodial property only if: (i) The obligation was a common incident of the kind of business activity in which the custodian or the custodian’s predecessor was properly engaged for the custodianship; (ii) Neither the custodian nor the custodian’s predecessor, nor any officer or employee of the custodian or the custodian’s predecessor was personally at fault in incurring the obligation; or (iii) Although the obligation did not fall within (d)(i) or (ii) of this subsection, the incident that gave rise to the obligation increased the value of the custodial property. If the obligation is within (d)(i) or (ii) or [of] this subsection, collection may be had of the full amount of damage proved. If the obligation is within (d)(iii) of this subsection, collection may be had only to the extent of the increase in the value of the trust property. (2) A custodian is not personally liable: (a) On a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity. The addition of the words "custodian" or "as custodian" after the signature of a custodian is adequate revelation of this capacity; or (b) For an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodial property is not liable for the obligation under *(b) of this subsection and unless the custodian is personally at fault. (3) A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault. [1991 c 193 § 17.] *Reviser’s note: The reference to (b) of this subsection appears erroneous. Reference to subsection (1)(b) of this section was apparently intended. 11.114.180 11.114.180 Renunciation, resignation, death, or removal of custodian—Designation of successor custodian. (Effective until July 1, 2007.) (1) A person nominated under RCW 11 .114.030 or designated under RCW 11.114.090 as custodian may decline to serve. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing, and eligible to serve was nominated under RCW 11.114.030, the person who made the nomination may nominate a substitute custodian under RCW 11.114.030; otherwise the transferor or the transferor’s legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under RCW 11.114.090(1). The custodian so designated has the rights of a successor custodian. [Title 11 RCW—page 149] 11.114.180 Title 11 RCW: Probate and Trust Law (2) A custodian at any time may designate a trust company or an adult other than a transferor under RCW 11.114.040 as successor custodian by executing and dating an instrument of designation. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed, and custodial property is transferred to the successor custodian. (3) A custodian may resign at any time by delivering written notice to the minor, if the minor has attained the age of fourteen years, and to the successor custodian, and by delivering the custodial property to the successor custodian. (4) If a custodian is ineligible, dies, or becomes incapacitated and no successor custodian has been designated as provided in this chapter, and the minor has attained the age of fourteen years, the minor may designate as successor custodian, in the manner prescribed in subsection (2) of this section, an adult member of the minor’s family, a guardian of the minor, or a trust company. If the minor has not attained the age of fourteen years or fails to act within sixty days after the ineligibility, death, or incapacity, the guardian of the minor becomes successor custodian. If the minor has no guardian or the guardian declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor’s family, or any other interested person may petition the court to designate a successor custodian. (5) A custodian who declines to serve under subsection (1) of this section or resigns under subsection (3) of this section, or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received. (6) A transferor, the legal representative of a transferor, an adult member of the minor’s family, a guardian of the minor, or the minor if the minor has attained the age of fourteen years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under RCW 11.114.040 or to require the custodian to give appropriate bond. [1991 c 193 § 18.] 11.114.180 11.114.180 Renunciation, resignation, death, or removal of custodian—Designation of successor custodian. (Effective July 1, 2007.) (1) A person nominated under RCW 11.114.030 or designated under RCW 11.114.090 as custodian may decline to serve. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing, and eligible to serve was nominated under RCW 11.114.030, the person who made the nomination may nominate a substitute custodian under RCW 11.114.030; otherwise the transferor or the transferor’s legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under RCW 11.114.090(1). The custodian so designated has the rights of a successor custodian. (2) A custodian at any time may designate a trust company or an adult other than a transferor under RCW 11.114.040 as successor custodian by executing and dating [Title 11 RCW—page 150] an instrument of designation. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed, and custodial property is transferred to the successor custodian. (3) A custodian may resign at any time by delivering written notice to the minor, if the minor has attained the age of eighteen years, and to the successor custodian, and by delivering the custodial property to the successor custodian. (4) If a custodian is ineligible, dies, or becomes incapacitated and no successor custodian has been designated as provided in this chapter, and the minor has attained the age of eighteen years, the minor may designate as successor custodian, in the manner prescribed in subsection (2) of this section, an adult member of the minor’s family, a guardian of the minor, or a trust company. If the minor has not attained the age of eighteen years or fails to act within sixty days after the ineligibility, death, or incapacity, the guardian of the minor becomes successor custodian. If the minor has no guardian or the guardian declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor’s family, or any other interested person may petition the court to designate a successor custodian. (5) A custodian who declines to serve under subsection (1) of this section or resigns under subsection (3) of this section, or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received. (6) A transferor, the legal representative of a transferor, an adult member of the minor’s family, a guardian of the minor, or the minor if the minor has attained the age of eighteen years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under RCW 11.114.040 or to require the custodian to give appropriate bond. [2006 c 204 § 6; 1991 c 193 § 18.] Effective date—2006 c 204: See note following RCW 11.114.090. 11.114.190 11.114.190 Accounting by and determination of liability of custodian. (Effective until July 1, 2007.) (1) A minor who has attained the age of fourteen years, the minor’s legal representative, an adult member of the minor’s family, a transferor, or a transferor’s legal representative may petition the court (a) for an accounting by the custodian or the custodian’s legal representative; or (b) for a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under RCW 11.114.170 to which the minor or the minor’s legal representative was a party. (2) A successor custodian may petition the court for an accounting by the predecessor custodian. (3) The court, in a proceeding under this chapter or in any other proceeding, may require or permit the custodian or the custodian’s legal representative to account. (4) If a custodian is removed under RCW 11.114.180(6), the court shall require an accounting and order delivery of the (2006 Ed.) Uniform Transfers to Minors Act custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property. [1991 c 193 § 19.] 11.114.190 11.114.190 Accounting by and determination of liability of custodian. (Effective July 1, 2007.) (1) A minor who has attained the age of eighteen years, the minor’s legal representative, an adult member of the minor’s family, a transferor, or a transferor’s legal representative may petition the court (a) for an accounting by the custodian or the custodian’s legal representative; or (b) for a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under RCW 11.114.170 to which the minor or the minor’s legal representative was a party. (2) A successor custodian may petition the court for an accounting by the predecessor custodian. (3) The court, in a proceeding under this chapter or in any other proceeding, may require or permit the custodian or the custodian’s legal representative to account. (4) If a custodian is removed under RCW 11.114.180(6), the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property. [2006 c 204 § 7; 1991 c 193 § 19.] Effective date—2006 c 204: See note following RCW 11.114.090. 11.114.220 custodian property is transferred under RCW 11.114.040, 11.114.050, or 11.114.060; or (b) The custodial property is transferred under RCW 11.114.070. In that case, the person nominating the custodian under RCW 11.114.030 may elect to extend the custodianship. If no custodian has been nominated under RCW 11.114.030, the court establishing the custodianship under RCW 11.114.070(4) may extend the custodianship if it determines that doing so would not be contrary to the interest of the minor. (3) An extension of the custodianship under subsection (2) of this section will be valid only if the transfer creating the custodianship is made on or after July 1, 2007. (4) Any bank, trust company, insurance company, registered broker-dealer, investment company regulated under the federal Investment Company Act of 1940, investment advisor regulated under the federal Investment Advisors Act of 1940, or other person who makes custodianship forms available for adoption in contemplation of selling assets to or managing assets for a custodianship shall include, in any form made available on or after July 1, 2007, an option to extend the custodianship under subsection (2) of this section and a warning to the transferor that exercising the option to extend may result in the transfer not qualifying for annual exclusion from federal gift tax. An instrument in the form described in RCW 11.114.090(2) will satisfy the requirements of this subsection. [2006 c 204 § 8; 1991 c 193 § 20.] Effective date—2006 c 204: See note following RCW 11.114.090. 11.114.200 11.114.200 Termination of custodianship. (Effective until July 1, 2007.) Subject to RCW 11.114.220, the custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor’s estate upon the earlier of: (1) The minor’s attainment of twenty-one years of age with respect to custodial property transferred under RCW 11.114.040 or 11.114.050; (2) The minor’s attainment of eighteen years of age with respect to custodial property transferred under RCW 11.114.060 or 11.114.070; or (3) The minor’s death. [1991 c 193 § 20.] 11.114.210 11.114.210 Applicability. This chapter applies to a transfer within the scope of RCW 11.114.020 made after July 1, 1991, if: (1) The transfer purports to have been made under the Washington uniform gifts to minors act; or (2) The instrument by which the transfer purports to have been made uses in substance the designation "as custodian under the uniform gifts to minors act" or "as custodian under the uniform transfers to minors act" of any other state, and the application of this chapter is necessary to validate the transfer. [1991 c 193 § 21.] 11.114.200 11.114.200 Termination of custodianship—Extension. (Effective July 1, 2007.) (1) Subject to RCW 11.114.220, the custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor’s estate upon the earlier of: (a) The minor’s attainment of twenty-one years of age with respect to custodial property transferred under RCW 11.114.040 or 11.114.050; (b) The minor’s attainment of eighteen years of age with respect to custodial property transferred under RCW 11.114.060 or 11.114.070; or (c) The minor’s death. (2) The transferor may, in the initial nomination of custodian, extend the custodianship to the earlier of the minor’s attainment of twenty-five years of age or the minor’s death unless: (a) The governing will, trust, or instrument creating the power of appointment specifically provides otherwise if the (2006 Ed.) 11.114.220 11.114.220 Effect on existing custodianships. (1) Any transfer of custodial property as now defined in this chapter made before July 1, 1991, is validated notwithstanding that there was no specific authority in the Washington uniform gifts to minors act for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made. (2) This chapter applies to all transfers made before July 1, 1991, in a manner and form prescribed in the Washington uniform gifts to minors act, except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on July 1, 1991. However, as to any custodianship established after August 9, 1971, but prior to January 1, 1985, a minor has the right after attaining the age of eighteen to demand delivery from the custodian of all or any portion of the custodial property. [1991 c 193 § 22.] [Title 11 RCW—page 151] 11.114.230 Title 11 RCW: Probate and Trust Law 11.114.230 11.114.230 Uniformity of application and construction. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it. [1991 c 193 § 23.] 11.114.900 11.114.900 Short title. This chapter may be cited as the uniform transfers to minors act. [1991 c 193 § 24.] 11.114.901 11.114.901 Captions not law. Section headings as used in this chapter do not constitute any part of the law. [1991 c 193 § 25.] 11.114.902 11.114.902 Savings—1991 c 193. To the extent that this chapter, by virtue of RCW 11.114.220(2), does not apply to transfers made in a manner prescribed in the uniform gifts to minors act of Washington or to the powers, duties, and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of the uniform gifts to minors act of Washington does not affect those transfers or those powers, duties, and immunities. [1991 c 193 § 26.] 11.114.903 11.114.903 Effective date—1991 c 193. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1991. [1991 c 193 § 34.] 11.114.904 11.114.904 Severability—1991 c 193. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1991 c 193 § 35.] Chapter 11.118 Chapter 11.118 RCW TRUSTS—ANIMALS Sections 11.118.005 11.118.010 11.118.020 11.118.030 11.118.040 11.118.050 11.118.060 11.118.070 11.118.080 11.118.090 11.118.100 11.118.110 Purpose—Intent. Definition. Validity of animal trust. Use of trust principal or income. Termination of trust. Enforcement of trust provisions. Accounting requirements. Appointment and removal of trustee. Construction of trust language. Application of rule against perpetuities—Effective date of trust. Trustee powers. Application of chapter. 11.118.005 11.118.005 Purpose—Intent. The purpose of this chapter is to recognize and validate certain trusts that are established for the benefit of animals. Under the common law such trusts were unenforceable at law. The legislature intends that such trusts be recognized as valid, and that such trusts be enforceable in accordance with their terms. [2001 c 327 § 1.] 11.118.020 11.118.020 Validity of animal trust. A trust for the care of one or more animals is valid. The animals that are to be benefited by the trust may be individually identified, or may be identified in such other manner that they can be readily identified. Unless otherwise provided in the trust instrument or in this chapter, the trust will terminate when no animal that is designated as a beneficiary of the trust remains living. [2001 c 327 § 3.] 11.118.030 11.118.030 Use of trust principal or income. Except as expressly provided otherwise in the trust instrument or in RCW 11.118.070, and except as may be necessary to pay the trustee reasonable compensation and to reimburse the trustee for reasonable costs incurred on behalf of the trust, no portion of the principal or income of the trust may be converted to the use of the trustee or to any use other than for the trust’s purpose or for the benefit of the designated animal or animals. [2001 c 327 § 4.] 11.118.040 11.118.040 Termination of trust. Upon termination of the trust, the trustee shall transfer the unexpended trust property in the following order: (1) As directed in the instrument; (2) If the trust was created in a nonresiduary clause in the trustor’s will or in a codicil to the trustor’s will and the will or codicil does not direct otherwise, under the residuary clause in the trustor’s will, which shall be read as though the testator died on the date the trust terminated; and (3) If no taker is produced by the application of subsection (1) or (2) of this section, to the trustor’s heirs under RCW 11.04.015, as it exists at the time of the trust’s termination. [2001 c 327 § 5.] 11.118.050 11.118.050 Enforcement of trust provisions. The intended use of the principal or income can be enforced by a person designated for that purpose in the trust instrument, by the person having custody of an animal that is a beneficiary of the trust, or by a person appointed by a court upon application to it by any person. A person with an interest in the welfare of the animal may petition for an order appointing or removing a person designated or appointed to enforce the trust. [2001 c 327 § 6.] 11.118.060 11.118.060 Accounting requirements. Except as ordered by the court or required by the trust instrument, no filing, report, registration, or periodic accounting shall be required of the trust or the trustee. [2001 c 327 § 7.] 11.118.070 11.118.070 Appointment and removal of trustee. If no trustee is designated or no designated trustee is willing or able to serve, the court shall name a trustee. The court may order the removal of an acting trustee and the transfer of the property to another trustee if it is necessary or appropriate in order to assure that the intended use is carried out. A court may also make such other orders and determinations as shall be advisable to carry out the intent of the trustor and the purpose of this chapter. [2001 c 327 § 8.] 11.118.010 11.118.010 Definition. As used in this chapter, "animal" means a nonhuman animal with vertebrae. [2001 c 327 § 2.] [Title 11 RCW—page 152] 11.118.080 11.118.080 Construction of trust language. In construing the language of a trust for an animal, the governing (2006 Ed.) Trusts—Animals 11.118.110 instrument shall be liberally construed to provide the protections of this chapter. It is presumed that language contained in a trust for an animal is not merely precatory or honorary in nature unless it can be shown by clear and cogent evidence that such was the trustor’s intent. Extrinsic evidence is admissible in determining the trustor’s intent. [2001 c 327 § 9.] 11.118.090 Application of rule against perpetuities— Effective date of trust. RCW 11.98.130 through 11.98.160 apply to trusts that are subject to this chapter. [2001 c 327 § 11.] 11.118.090 11.118.100 Trustee powers. Except as otherwise provided in the trust instrument or in this chapter, all powers and duties conferred on a trustee under Washington law also apply to the trustee of a trust for animals. [2001 c 327 § 12.] 11.118.100 11.118.110 Application of chapter. This chapter applies to trusts that are created on or after July 22, 2001, and to trusts that are in existence on July 22, 2001, but that are revocable by the trustor on July 22, 2001. If a trustor is incompetent to exercise a power of revocation on July 22, 2001, this chapter does not apply to such trust unless the trustor later becomes competent to exercise such power of revocation, in which case this chapter applies to such trust. [2001 c 327 § 13.] 11.118.110 (2006 Ed.) [Title 11 RCW—page 153] Title 12 Title 12 DISTRICT COURTS—CIVIL PROCEDURE Chapters 12.04 Commencement of actions. 12.08 Pleadings. 12.12 Trial. 12.16 Witnesses and depositions. 12.20 Judgments. 12.28 Replevin. 12.36 Small claims appeals. 12.40 Small claims. District and other inferior courts—1961 Act: Chapter 3.30 RCW. Garnishment: Chapter 6.27 RCW. 12.04.010 12.04.010 Civil actions—Commencement. Civil actions in the several justices’ courts of this state may be instituted either by the voluntary appearance and agreement of the parties, by the service of a summons, or by the service upon the defendant of a true copy of the complaint and notice, which notice shall be attached to the copy of the complaint and cite the defendant to be and appear before the justice at the time and place therein specified, which shall not be less than six nor more than twenty days from the date of filing the complaint. [Code 1881 § 1712; 1873 p 335 § 19; 1860 p 245 § 26; RRS § 1755.] General provisions regarding district judges: Title 3 RCW. 12.04.020 Jurisdiction of justice of the peace: State Constitution Art. 4 § 10 (Amendment 28). Justice without unnecessary delay: State Constitution Art. 1 § 10. Ne exeat, jurisdiction of district judge: RCW 7.44.060. Public bodies may retain collection agencies to collect public debts—Fees: RCW 19.16.500. Removal of certain civil actions to superior court: Chapter 4.14 RCW. Rules for courts of limited jurisdiction: Volume 0. 12.04.020 Action to recover debt—Summons—Service. A party desiring to commence an action before a justice of the peace, for the recovery of a debt by summons, shall file his claim with the justice of the peace, verified by his own oath, or that of his agent or attorney, and thereupon the justice of the peace shall, on payment of his fees, if demanded, issue a summons to the opposite party, which summons shall be in the following form, or as nearly as the case will admit, viz: The State of Washington, Chapter 12.04 Chapter 12.04 RCW COMMENCEMENT OF ACTIONS Sections 12.04.010 12.04.020 12.04.030 12.04.040 12.04.050 12.04.060 12.04.070 12.04.080 12.04.090 12.04.100 12.04.110 12.04.120 12.04.130 12.04.140 12.04.150 12.04.160 12.04.170 12.04.180 12.04.190 12.04.200 12.04.201 12.04.203 12.04.204 12.04.205 12.04.206 12.04.207 12.04.208 Civil actions—Commencement. Action to recover debt—Summons—Service. Action by complaint and notice. Service of complaint and notice. Process—Who may serve. Process—Service by constable or sheriff. Process—Return—Fees. Process—Service by person appointed by justice—Return— Exceptions. Proof of service. Service by publication. Proof of service by publication. Written admission as proof of service. Jurisdiction, when acquired. Action by person under eighteen years. Action against defendant under eighteen years—Guardian ad litem. Time for appearance. Security for nonresident costs. Cost bond in lieu of security. Penalty for failure to execute process or false return. Forms or equivalents prescribed. Form of subpoena. Form of execution—Form of execution against principal and surety, after expiration of stay of execution. Form of order in replevin. Form of a writ of attachment. Form of undertaking in replevin. Form of undertaking in attachment—Form of undertaking to discharge attachment. Form of undertaking to indemnify constable on claim of property by a third person. Reviser’s note: References in this chapter to justices of the peace and courts to be construed to mean district judges and courts: See RCW 3.30.015. (2006 Ed.) . . . . . . . . . . . . . . . County.      ss. To the sheriff or any constable of said county: In the name of the state of Washington, you are hereby commanded to summon . . . . . . if he (or they) be found in your county to be and appear before me at . . . . . . on . . . . day of . . . . . . at . . . . o’clock p.m. or a.m., to answer the complaint of . . . . . . for a failure to pay him a certain demand, amounting to . . . . . . dollars and . . . . cents, upon . . . . . . . . . . . (here state briefly the nature of the claim) and of this writ make due service and return. Given under my hand this . . . . day of . . . . . 19 . . . . . . . . . . . . . . ., Justice of the Peace. And the summons shall specify a certain place, day and hour for the appearance and answer of the defendant, not less than six nor more than twenty days from the date of filing plaintiff’s claim with the justice, which summons shall be served at least five days before the time of trial mentioned therein, and shall be served by the officer delivering to the defendant, or leaving at his place of abode with some person over twelve years of age, a true copy of such summons, certified by the officer to be such. [Code 1881 § 1713; 1873 p 335 § 20; 1860 p 245 § 29; RRS § 1758.] 12.04.030 12.04.030 Action by complaint and notice. Any person desiring to commence an action before a justice of the peace, by the service of a complaint and notice, can do so by filing his complaint verified by his own oath or that of his agent or attorney with the justice, and when such complaint is so filed, upon payment of his fees if demanded, the justice [Title 12 RCW—page 1] 12.04.040 Title 12 RCW: District Courts—Civil Procedure shall attach thereto a notice, which shall be substantially as follows: The State of Washington, . . . . . . . . . . . . . . . County.      ss. To . . . . . . . . . . . . . . You are hereby notified to be and appear at my office in . . . . . . on the . . . . day of . . . . . ., 19 . . ., at the hour of . . . . M., to answer to the foregoing complaint or judgment will be taken against you as confessed and the prayer of the plaintiff granted. Dated . . . . . ., 19 . . . . . . . . . . . . . . . . . . . . . . ., J. P. [Code 1881 § 1714; 1873 p 336 § 21; 1860 p 245 § 29; RRS § 1759.] 12.04.040 12.04.040 Service of complaint and notice. The complaint and notice shall be served at least five days before the time mentioned in the notice for the defendant to appear and answer the complaint, by delivering to the defendant, or leaving at his place of abode, with some person over twelve years of age, a true copy of the complaint and notice. [1925 ex.s. c 181 § 1; Code 1881 § 1715; 1873 p 337 § 22; RRS § 1761.] 12.04.050 12.04.050 Process—Who may serve. All process issued by district court judges of the state and all executions and writs of attachment or of replevin shall be served by a sheriff or a deputy, but a summons or notice and complaint may be served by any citizen of the state of Washington over the age of eighteen years and not a party to the action. [1987 c 442 § 1102; 1971 ex.s. c 292 § 11; 1903 c 19 § 1; 1895 c 102 § 1; 1893 c 108 § 1; Code 1881 § 1716; 1873 p 337 § 23; RRS § 1762. Formerly RCW 12.04.050 and 12.04.060, part.] Severability—1971 ex.s. c 292: See note following RCW 26.28.010. 12.04.060 12.04.060 Process—Service by constable or sheriff. All process in actions and proceedings in justice courts, having a salaried constable, when served by an officer, shall be served by such constable or by the sheriff of the county or his duly appointed deputy; and all fees for such service shall be paid into the county treasury. [1909 c 132 § 1; RRS § 1760. FORMER PARTS OF SECTION: 1903 c 19 § 1, part, now codified in RCW 12.04.050.] 12.04.070 12.04.070 Process—Return—Fees. Every constable or sheriff serving process or complaint and notice shall return in writing, the time, manner and place of service and indorse thereon the legal fees therefor and shall sign his name to such return, and any person other than one of said officers serving summons or complaint and notice shall file with the justice his affidavit, stating the time, place and manner of the service of such summons or notice and complaint and shall indorse thereon the legal fees therefor. [1959 c 99 § 1; 1903 c 19 § 2; 1895 c 102 § 2; 1893 c 108 § 2; Code 1881 § 1717; 1873 p 337 § 24; 1860 p 246 § 37; 1854 p 229 § 31; RRS § 1763.] [Title 12 RCW—page 2] 12.04.080 12.04.080 Process—Service by person appointed by justice—Return—Exceptions. Any justice may, by appointment in writing, authorize any person other than the parties to the proceeding, or action, to serve any subpoena, summons, or notice and complaint issued by such justice; and any such person making such service shall return on such process or paper, in writing, the time and manner of service, and shall sign his name to such return, and be entitled to like fees for making such service as a sheriff or constable, and shall indorse his fees for service thereon: PROVIDED, It shall not be lawful for any justice to issue process or papers to any person but a regularly qualified sheriff or constable, in any precinct where such officers reside, unless from sickness or some other cause said sheriff or constable is not able to serve the same: PROVIDED FURTHER, That it shall be lawful for notice and complaint or summons in a civil action in the justice court to be served by any person eighteen years of age or over and not a party to the action in which the summons or notice and complaint shall be issued without previous appointment by the justice. [1971 ex.s. c 292 § 12; 1903 c 19 § 3; Code 1881 § 1718; 1873 p 337 § 25; RRS § 1764.] Severability—1971 ex.s. c 292: See note following RCW 26.28.010. 12.04.090 12.04.090 Proof of service. Proof of service in either of the above cases shall be as follows: When made by a constable or sheriff his return signed by him and indorsed on the paper or process. When made by any person other than such officer, then by the affidavit of the person making the service. [Code 1881 § 1719; 1873 p 337 § 26; RRS § 1765.] 12.04.100 12.04.100 Service by publication. In case personal service cannot be had by reason of the absence of the defendant from the county in which the action is sought to be commenced, it shall be proper to publish the summons or notice with a brief statement of the object and prayer of the claim or complaint, in some newspaper of general circulation in the county wherein the action is commenced, which notice shall be published not less than once a week for three weeks prior to the time fixed for the hearing of the cause, which shall not be less than four weeks from the first publication of the notice. The notice may be substantially as follows: The State of Washington, County of . . . . . . . . . .      ss. In justice’s court, . . . . . . justice. To . . . . . . . . . . . . . . You are hereby notified that . . . . . . has filed a complaint (or claim as the case may be) against you in said court which will come on to be heard at my office in . . . . . . . ., in . . . . . . county, state of Washington, on the . . . . day of . . . . . ., A.D. 19 . . ., at the hour of . . . . o’clock . . . .m., and unless you appear and then and there answer, the same will be taken as confessed and the demand of the plaintiff granted. The object and demand of said claim (or complaint, as the case may be) is (here insert a brief statement). (2006 Ed.) Commencement of Actions Complaint filed . . . . . ., A.D. 19 . . . . . . . . . . . . . . . . . . . . . . ., J. P. [1985 c 469 § 6; Code 1881 § 1720; 1873 p 337 § 27; RRS § 1766.] Legal publications: Chapter 65.16 RCW. 12.04.110 12.04.110 Proof of service by publication. Proof of service, in case of publication, shall be the affidavit of the publisher, printer, foreman or principal clerk, showing the same. [Code 1881 § 1721; 1873 p 338 § 28; RRS § 1767.] 12.04.120 12.04.120 Written admission as proof of service. The written admission of the defendant, his agent or attorney, indorsed upon any summons, complaint and notice, or other paper, shall be complete proof of service in any case. [Code 1881 § 1722; 1873 p 338 § 29; RRS § 1768.] 12.04.130 12.04.130 Jurisdiction, when acquired. The court shall be deemed to have obtained possession of the case from the time the complaint or claim is filed, after completion of service, whether by publication or otherwise, and shall have control of all subsequent proceedings. [Code 1881 § 1723; 1873 p 338 § 30; RRS § 1769.] 12.04.201 12.04.160 12.04.160 Time for appearance. The parties shall be entitled to one hour in which to make their appearance after the time mentioned in the summons or notice for appearance, but shall not be required to remain longer than that time, unless both parties appear; and the justice being present, is actually engaged in the trial of another action or proceeding; in such case he may postpone the time of appearance until the close of such trial. [1957 c 89 § 1; Code 1881 § 1755; 1873 p 344 § 54; 1854 p 230 § 42; RRS § 1773.] 12.04.170 12.04.170 Security for nonresident costs. Whenever the plaintiff in an action, or in a garnishment or other proceeding is a nonresident of the county or begins such action or proceeding as the assignee of some other person, or of a firm or corporation, as to all causes of action sued upon, the justice may require of him security for the costs in the action or proceeding in a sum not exceeding fifty dollars, at the time of the commencement of the action, and after an action or proceeding has been commenced by such nonresident or assignee plaintiff, the defendant or garnishee defendant may require such security by motion; and all proceedings shall be stayed until such security has been given. [1929 c 102 § 1; 1905 c 10 § 1; Code 1881 § 1725; 1854 p 228 § 27; RRS § 1777.] 12.04.140 12.04.140 Action by person under eighteen years. Except as provided under RCW 26.50.020, no action shall be commenced by any person under the age of eighteen years, except by his guardian, or until a next friend for such a person shall have been appointed. Whenever requested, the justice shall appoint some suitable person, who shall consent thereto in writing, to be named by such plaintiff, to act as his or her next friend in such action, who shall be responsible for the costs therein. [1992 c 111 § 10; 1971 ex.s. c 292 § 75; Code 1881 § 1753; 1873 p 343 § 52; 1854 p 230 § 40; RRS § 1771.] Severability—1992 c 111: See RCW 26.50.903. Findings—1992 c 111: See note following RCW 26.50.030. Severability—1971 ex.s. c 292: See note following RCW 26.28.010. 12.04.150 12.04.150 Action against defendant under eighteen years—Guardian ad litem. After service and return of process against a defendant under the age of eighteen years, the action shall not be further prosecuted, until a guardian for such defendant shall have been appointed, except as provided under RCW 26.50.020. Upon the request of such defendant, the justice shall appoint some person who shall consent thereto in writing, to be guardian of the defendant in defense of the action; and if the defendant shall not appear on the return day of the process, or if he or she neglect or refuse to nominate such guardian, the justice may, at the request of the plaintiff, appoint any discreet person as such guardian. The consent of the guardian or next friend shall be filed with the justice; and such guardian for the defendant shall not be liable for any costs in the action. [1992 c 111 § 11; 1971 ex.s. c 292 § 76; Code 1881 § 1754; 1873 p 343 § 53; 1854 p 230 § 41; RRS § 1772.] Severability—1992 c 111: See RCW 26.50.903. Findings—1992 c 111: See note following RCW 26.50.030. Severability—1971 ex.s. c 292: See note following RCW 26.28.010. (2006 Ed.) 12.04.180 12.04.180 Cost bond in lieu of security. In lieu of separate security for each action or proceeding in any court, the plaintiff may cause to be executed and filed in the court a bond in the penal sum of fifty dollars running to the state of Washington, with surety approved by the court, and conditioned for the payment of all judgments for costs which may thereafter be rendered against him in that court. Any defendant or garnishee who shall thereafter recover a judgment for costs in said court against the principal on such bond shall likewise be entitled to judgment against the sureties. Such bond shall not be sufficient unless the penalty thereof is unimpaired by any outstanding obligation at the time of the commencement of the action. [1929 c 102 § 2; RRS § 1777 1/2.] 12.04.190 12.04.190 Penalty for failure to execute process or false return. If any officer, without showing good cause therefor, fail to execute any process to him delivered, and make due return thereof, or make a false return, such officer, for every such offense, shall pay to the party injured ten dollars, and all damage such party may have sustained by reason thereof, to be recovered in a civil action. [Code 1881 § 1752; 1873 p 343 § 51; 1854 p 230 § 39; RRS § 1776.] 12.04.200 12.04.200 Forms or equivalents prescribed. The forms or equivalent forms as set forth in RCW 12.04.201 through 12.04.208 may be used by justices of the peace, in civil actions and proceedings under this chapter. [1957 c 89 § 3. Prior: Code 1881 § 1885, part; 1873 p 373 c 16, part; 1863 p 370 c 16, part; 1854 p 253 c 19, part; RRS § 1890, part.] 12.04.201 [Title 12 RCW—page 3] 12.04.203 Title 12 RCW: District Courts—Civil Procedure 12.04.201 Form of subpoena. FORM OF SUBPOENA State of Washington, County of . . . . . . . . . . . . . . .,      ss. To . . . . . . . . . . . . . . : In the name of the state of Washington, you are hereby required to appear before the undersigned, one of the justices of the peace in and for said county, on the . . . . day of . . . . . ., 19 . . ., at . . . . o’clock in the . . . . noon, at his office in . . . . . ., to give evidence in a certain cause, then and there to be tried, between A B, plaintiff, and C D, defendant, on the part of (the plaintiff, or defendant as the case may be). Given under my hand this . . . . day of . . . . . . . ., 19 . . . J. P., Justice of the Peace. [1957 c 89 § 4. Prior: Code 1881 § 1885, part; 1873 p 373 c 16, part; 1863 p 370 c 16, part; 1854 p 253 c 19, part; RRS § 1890, part.] 12.04.203 Form of execution—Form of execution against principal and surety, after expiration of stay of execution. 12.04.203 FORM OF EXECUTION State of Washington, County of . . . . . . . . . . . . . . .,      ss. To the sheriff or any constable of said county: Whereas, judgment against C D, for the sum of . . . . . . . . . dollars, and . . . . . . . . . dollars cost of suit, was recovered on the . . . . day of . . . . . ., 19 . . ., before the undersigned, one of the justices of the peace in and for said county, at the suit of A B. These are, therefore, in the name of the state of Washington, to command you to levy on the goods and chattels of the said C D (excepting such as the law exempts), and make sale thereof according to law, to the amount of said sum and costs upon this writ, and the same return to me within thirty days, to be rendered to the said A B, for his debt, interests and costs. Given under my hand this . . . . day of . . . . . . . ., 19 . . . J. P., Justice of the Peace. FORM OF EXECUTION AGAINST PRINCIPAL AND SURETY, AFTER EXPIRATION OF STAY OF EXECUTION State of Washington, County of . . . . . . . . . . . . . . .,      ss. To the sheriff or any constable of said county: [Title 12 RCW—page 4] Whereas, judgment against C D for the sum of . . . . . . . . . dollars, and for . . . . . . . . . dollars, costs of suit, was recovered on the . . . . day of . . . . . ., 19 . . ., before the undersigned, one of the justices of the peace in and for said county, at the suit of A B; and whereas, on the . . . . day of . . . . . ., 19 . . ., E F became surety to pay said judgment and costs, in . . . . . . month from the date of the judgment aforesaid, agreeably to law, in the payment of which said C D and E F have failed; these are, therefore, in the name, etc., [as in the common form]. [1957 c 89 § 5. Prior: Code 1881 § 1895, part; 1873 p 373 c 16, part; 1863 p 370 c 16, part; 1854 p 253 c 19, part; RRS § 1890, part.] 12.04.204 12.04.204 Form of order in replevin. FORM OF ORDER IN REPLEVIN State of Washington, County of . . . . . . . . . . . . . . .,      ss. To the sheriff or any constable of said county: In the name of the state of Washington, you are hereby commanded to take the personal property mentioned and described in the within affidavit, and deliver the same to the plaintiff, upon receiving a proper undertaking, unless before such delivery, the defendant enter into a sufficient undertaking for the delivery thereof to the plaintiff, if delivery be adjudged. Given under my hand this . . . . day of . . . . . . . ., 19 . . . J. P., Justice of the Peace. [1957 c 89 § 6. Prior: Code 1881 § 1885, part; 1873 p 373 c 16, part; 1863 p 370 c 16, part; 1854 p 253 c 19, part; RRS § 1890, part.] 12.04.205 12.04.205 Form of a writ of attachment. FORM OF A WRIT OF ATTACHMENT State of Washington, County of . . . . . . . . . . . . . . .,      ss. To the sheriff or any constable of said county: In the name of the state of Washington, you are commanded to attach, and safely keep, the goods and chattels, moneys, effects and credits of C D, (excepting such as the law exempts), or so much thereof as shall satisfy the sum of . . . . . . dollars, with interest and cost of suit, in whosesoever hands or possession the same may be found in your county, and to provide that the goods and chattels so attached may be subject to further proceeding thereon, as the law requires; and of this writ make legal service and due return. Given under my hand this . . . . day of . . . . . . . . . ., 19 . . . J. P., Justice of the Peace. (2006 Ed.) Pleadings [1957 c 89 § 7. Prior: Code 1881 § 1885, part; 1873 p 373 c 16, part; 1863 p 370 c 16, part; 1854 p 253 c 19, part; RRS § 1890, part.] 12.04.206 Form of undertaking in replevin. 12.04.206 FORM OF UNDERTAKING IN REPLEVIN Whereas, A B, plaintiff, has commenced an action before J P, one of the justices of the peace in and for . . . . . . county, against C D, defendant, for the recovery of certain personal property, mentioned and described in the affidavit of the plaintiff, to wit: [here set forth the property claimed]. Now, therefore we, A B, plaintiff, E F and G H, acknowledge ourselves bound unto C D in the sum of . . . . . . dollars for the prosecution of the action for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against the plaintiff. Dated the . . . . day of . . . . . ., 19 . . . A B, E F, G H. [1957 c 89 § 8. Prior: Code 1881 § 1885, part; 1873 p 373 c 16, part; 1863 p 370 c 16, part; 1854 p 253 c 19, part; RRS § 1890, part.] 12.04.207 Form of undertaking in attachment— Form of undertaking to discharge attachment. 12.04.207 FORM OF UNDERTAKING IN ATTACHMENT Whereas, an application has been made by A B, plaintiff, to J P, one of the justices of the peace in and for . . . . . . county, for a writ of attachment against the personal property of C D, defendant; Now, therefore, we, A B, plaintiff, and E F, acknowledge ourselves bound to C D in the sum of . . . . . . dollars, that if the defendant recover judgment in this action, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the said attachment and not exceeding the sum of . . . . . . dollars. Dated the . . . . day of . . . . . ., 19 . . . A B, E F. FORM OF UNDERTAKING TO DISCHARGE ATTACHMENT Whereas, a writ of attachment has been issued by J P, one of the justices of the peace in and for . . . . . . county, against the personal property of C D, defendant, in an action in which A B is plaintiff; Now, therefore, we C D, defendant, E F, and G H, acknowledge ourselves bound unto J K, constable, in the sum of . . . . . . dollars, [double the value of the property], engaging to deliver the property attached, to wit: [here set forth a list of articles attached], or pay the value thereof to the sheriff or constable, to whom the execution upon a judgment obtained by plaintiff in the aforesaid action may be issued. Dated this . . . . day of . . . . . ., 19 . . . C D, E F, G H. [1957 c 89 § 9. Prior: Code 1881 § 1885, part; 1873 p 373 c 16, part; 1863 p 370 c 16, part; 1854 p 253 § 19, part; RRS § 1890, part.] 12.04.208 Form of undertaking to indemnify constable on claim of property by a third person. 12.04.208 (2006 Ed.) 12.08.040 FORM OF UNDERTAKING TO INDEMNIFY CONSTABLE ON CLAIM OF PROPERTY BY A THIRD PERSON Whereas, L M, claims to be owner of, and have the right to possession of certain personal property, to wit: [here describe it] which has been taken by J K, constable in . . . . . . county, upon an execution by J P, justice of the peace in and for the county of . . . . . ., upon a judgment obtained by A B, plaintiff, against C D, defendant; Now, therefore, we A B, plaintiff, E F, and G H, acknowledge ourselves bound unto the said J K, constable, in the sum of . . . . . . dollars, to indemnify the said J K against such claim. A B, E F, G H. [1957 c 89 § 10. Prior: Code 1881 § 1885, part; 1873 p 373 c 16, part; 1863 p 370 c 16, part; 1854 p 253 c 19, part; RRS § 1890, part.] Chapter 12.08 Chapter 12.08 RCW PLEADINGS Sections 12.08.010 12.08.020 12.08.030 12.08.040 12.08.050 12.08.060 12.08.070 12.08.080 12.08.090 12.08.100 12.08.110 12.08.120 When pleadings take place. What constitute pleadings. Pleadings oral or written. Docketing or filing. Denial of knowledge or information—Effect. Pleading account or instrument. Verification. Uncontroverted allegations—Effect. Objections to pleadings—Amendment. Variance between pleading and proof. Amendments—Continuance. Setoff—Pleading. 12.08.010 When pleadings take place. The pleadings in justice’s court shall take place upon the appearance of the parties, unless they shall have been previously filed or unless the justice shall, for good cause shown, allow a longer time than the time of appearance. [Code 1881 § 1756; 1873 p 344 § 55; 1854 p 231 § 43; RRS § 1778.] 12.08.010 12.08.020 What constitute pleadings. The pleadings in the justice’s court shall be: (1) The complaint of the plaintiff, which shall state in a plain and direct manner the facts constituting the cause of action. (2) The answer of the defendant, which may contain a denial of the complaint, or any part thereof; and also a statement, in a plain and direct manner, of any facts constituting a defense. (3) When the answer sets up a setoff, by way of defense, the reply of the plaintiff. [Code 1881 § 1757; 1873 p 344 § 56; 1854 p 231 § 44; RRS § 1779.] 12.08.020 12.08.030 Pleadings oral or written. The pleadings in justices’ courts may be oral or in writing. [1957 c 89 § 11; Code 1881 § 1758; 1873 p 344 § 57; 1854 p 231 § 45; RRS § 1780.] 12.08.030 12.08.040 Docketing or filing. When the pleadings are oral, the substance of them shall be entered by the justice in his docket. When in writing they shall be filed in his office and a reference made to them in his docket. Pleadings shall 12.08.040 [Title 12 RCW—page 5] 12.08.050 Title 12 RCW: District Courts—Civil Procedure not be required to be in any particular form, but shall be such as to enable a person of common understanding to know what is intended. [Code 1881 § 1759; 1873 p 345 § 58; 1854 p 231 § 46; RRS § 1781.] 12.08.050 12.08.050 Denial of knowledge or information— Effect. A statement in an answer or reply, that the party has not sufficient knowledge or information, in respect to a particular allegation in the previous pleadings of the adverse party to form a belief, shall be deemed equivalent to a denial. [Code 1881 § 1760; 1873 p 345 § 59; 1854 p 231 § 47; RRS § 1782.] 12.08.110 Amendments—Continuance. The pleadings may be amended at any time before the trial, or during the trial, or upon appeal, to supply any deficiency or omissions in the allegations or denials, necessary to support the action or defense, when by such amendment substantial justice will be promoted. If the amendment be made after the issue, and it be made to appear to the satisfaction of the court that a continuance is necessary to the adverse party in consequence of such amendment, a continuance shall be granted. The court may also, in its discretion, require as a condition of an amendment, the payment of costs to the adverse party. [Code 1881 § 1766; 1873 p 346 § 65; 1854 p 232 § 53; RRS § 1788.] 12.08.110 12.08.060 12.08.060 Pleading account or instrument. When the cause of action, or setoff, arises upon an account or instrument for the payment of money only, it shall be sufficient for the party to deliver the account or instrument, or a copy thereof, to the court, and to state that there is due to him thereon, from the adverse party, a specified sum, which he claims to recover or setoff. The court may, at the time of pleading, require that the original account, or instrument, be exhibited to the inspection of the adverse party, with liberty to copy the same; or if not so exhibited, may prohibit its being given in evidence. [Code 1881 § 1761; 1873 p 345 § 60; 1854 p 231 § 48; RRS § 1783.] 12.08.120 Setoff—Pleading. To entitle a defendant to any setoff he may have against the plaintiff, he must allege the same in his answer; and the statutes regulating setoffs in the superior court, shall in all respects be applicable to a setoff in a justice’s court, if the amount claimed to be setoff, after deducting the amount found due to the plaintiff, be within the jurisdiction of the justice of the peace; judgment may, in like manner, be rendered by the justice in favor of the defendant, for the balance found due the plaintiff. [Code 1881 § 1767; 1873 p 346 § 66; 1854 p 232 § 54; RRS § 1789.] 12.08.120 Reviser’s note: Justices of the peace and courts to be construed to mean district judges and courts: See RCW 3.30.015. 12.08.070 12.08.070 Verification. Every complaint, answer or reply shall be verified by the oath of the party pleading; or if he be not present, by the oath of his attorney or agent, to the effect that he believes it to be true. The verification shall be oral, or in writing, in conformity with the pleading verified. [Code 1881 § 1762; 1873 p 345 § 61; 1854 p 232 § 49; RRS § 1784.] 12.08.080 12.08.080 Uncontroverted allegations—Effect. Every material allegation in a complaint, or relating to a setoff in an answer, not denied by the pleading of the adverse party, shall, on the trial, be taken to be true, except that when a defendant, who has not been served with a copy of the complaint, fails to appear and answer, the plaintiff cannot recover without proving his case. [Code 1881 § 1763; 1873 p 345 § 62; 1854 p 232 § 50; RRS § 1785.] 12.08.090 12.08.090 Objections to pleadings—Amendment. Either party may object to a pleading by his adversary, or to any part thereof that is not sufficiently explicit for him to understand it, or that it contains no cause of action or defense although it be taken as true. If the court deem the objection well founded, it shall order the pleading to be amended; and if the party refuse to amend, the defective pleading shall be disregarded. [Code 1881 § 1764; 1873 p 345 § 63; 1854 p 232 § 51; RRS § 1786.] Chapter 12.12 Chapter 12.12 RCW TRIAL Sections 12.12.010 12.12.020 12.12.030 12.12.070 12.12.080 12.12.090 Continuances limited. Trial by justice. Jury—Number—Qualifications—Fee. Oath administered. Delivery of verdict. Discharge of jury. 12.12.010 Continuances limited. When the pleadings of the party shall have taken place, the justice shall, upon the application of either party, and sufficient cause be shown on oath, continue the case for any time not exceeding sixty days. If the continuance be on account of absence of testimony, it shall be for such reasonable time as will enable the party to procure such testimony, and shall be at the cost of the party applying therefor, unless otherwise ordered by the justice; and in all other respects shall be governed by the law applicable to continuance in the superior court. [1957 c 89 § 12; Code 1881 § 1769; 1873 p 346 § 68; 1854 p 232 § 56; RRS § 1847.] 12.12.010 12.12.020 Trial by justice. Upon issue joined, if a jury trial be not demanded, the justice shall hear the evidence, and decide all questions of law and fact, and render judgment accordingly. [Code 1881 § 1782; 1873 p 350 § 81; 1854 p 237 § 82; RRS § 1848.] 12.12.020 12.08.100 12.08.100 Variance between pleading and proof. A variance between the proof on the trial, and the allegations in a pleading, shall be disregarded as immaterial, unless the court be satisfied that the adverse party has been misled to his prejudice thereby. [Code 1881 § 1765; 1873 p 346 § 64; 1854 p 232 § 52; RRS § 1787.] [Title 12 RCW—page 6] 12.12.030 Jury—Number—Qualifications—Fee. After the appearance of the defendant, and before the judge shall proceed to enquire into the merits of the cause, either party may demand a jury to try the action, which jury shall be composed of six good and lawful persons having the qualifi12.12.030 (2006 Ed.) Witnesses and Depositions cations of jurors in the superior court of the same county, unless the parties shall agree upon a lesser number: PROVIDED, That the party demanding the jury shall first pay to the clerk of the court the sum of one hundred twenty-five dollars, which shall be paid over by the clerk of the court to the county, and such amount shall be taxed as costs against the losing party. [2005 c 457 § 13; 1981 c 260 § 3. Prior: 1977 ex.s. c 248 § 2; 1977 ex.s. c 53 § 2; 1888 p 118 § 1; Code 1881 § 1770; 1863 p 438 § 51; 1862 p 58 § 1; 1854 p 235 § 70; RRS § 1849.] Intent—2005 c 457: See note following RCW 43.08.250. 12.12.070 12.12.070 Oath administered. When the jury is selected, the justice shall administer to them an oath or affirmation, well and truly to try the cause. [Code 1881 § 1776; 1873 p 348 § 75; 1854 p 236 § 76; RRS § 1853.] 12.12.080 12.12.080 Delivery of verdict. When the jury have agreed on their verdict, they shall deliver the same to the justice, publicly, who shall enter it on his docket. [Code 1881 § 1777; 1873 p 348 § 76; 1854 p 236 § 77; RRS § 1854.] 12.12.090 12.12.090 Discharge of jury. Whenever a justice shall be satisfied that a jury, sworn in any civil cause before him, having been out a reasonable time, cannot agree on their verdict, he may discharge them, and issue a new venire, unless the parties consent that the justice may render judgment on the evidence before him, or upon such other evidence as they may produce. [Code 1881 § 1778; 1873 p 348 § 77; 1854 p 236 § 78; RRS § 1855.] Chapter 12.16 Chapter 12.16 RCW WITNESSES AND DEPOSITIONS Sections 12.16.015 12.16.020 12.16.030 12.16.040 12.16.050 12.16.060 12.16.070 12.16.080 12.16.090 District court may compel attendance of witness. Service of subpoena. Attachment for nonappearance. Service of attachment—Fees. Damages for nonappearance. Party to action as adverse witness. Testimony of party may be rebutted. Procedure on party’s refusal to testify. Examination of party in his own behalf. Oaths and affirmations: Chapter 5.28 RCW. 12.16.015 12.16.015 District court may compel attendance of witness. Any person may be compelled to attend as a witness before a district court in accordance with chapter 5.56 RCW. [1984 c 258 § 702.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 12.16.020 12.16.020 Service of subpoena. A subpoena may be served by any person above the age of eighteen years, by reading it to the witness, or by delivering to him a copy at his usual place of abode. [Code 1881 § 1870; 1873 p 370 § 169; 1854 p 233 § 58; RRS § 1899.] 12.16.030 12.16.030 Attachment for nonappearance. Whenever it shall appear to the satisfaction of the justice, by proof made before him, that any person, duly subpoenaed to appear (2006 Ed.) 12.16.080 before him in an action, shall have failed, without a just cause, to attend as a witness, in conformity to such subpoena, and the party in whose behalf such subpoena was issued, or his agent, shall make oath that the testimony of such witness is material, the justice shall have the power to issue an attachment to compel the attendance of such witness: PROVIDED, That no attachment shall issue against a witness in any civil action, unless his fees for mileage and one day’s attendance have been tendered or paid in advance, if previously demanded by such witness from the person serving the subpoena. [Code 1881 § 1871; 1873 p 370 § 170; 1854 p 233 § 59; RRS § 1900.] Attachment of a witness: RCW 5.56.070. When witness must attend: RCW 5.56.010. 12.16.040 12.16.040 Service of attachment—Fees. Every such attachment may be directed to any sheriff or constable of the county in which the justice resides, and shall be executed in the same manner as a warrant; and the fees of the officer for issuing and serving the same shall be paid by the person against whom the same was issued, unless he show reasonable cause, to the satisfaction of the justice, for his omission to attend; in which case the party requiring such attachment shall pay all such costs. [Code 1881 § 1872; 1873 p 370 § 171; 1854 p 233 § 60; RRS § 1901.] Attachment, to whom directed—Execution: RCW 5.56.080. 12.16.050 12.16.050 Damages for nonappearance. Every person subpoenaed as aforesaid, and neglecting to appear, shall also be liable to the party in whose behalf he may have been subpoenaed, for all damages which such party may have sustained by reason of his nonappearance: PROVIDED, That such witness had the fees allowed for mileage and one day’s attendance paid, or tendered him, in advance, if demanded by him at the time of the service. [Code 1881 § 1873; 1873 p 371 § 172; 1854 p 234 § 61; RRS § 1902.] Result of failure to attend: RCW 5.56.060, 5.56.061. When witness must attend: RCW 5.56.010. 12.16.060 12.16.060 Party to action as adverse witness. A party to an action may be examined as a witness, at the instance of the adverse party, and for that purpose may be compelled in the same manner, and subject to the same rules of examination, as any other witness, to testify at the trial, or appear and have his deposition taken. [Code 1881 § 1874; 1873 p 371 § 173; 1854 p 234 § 62; RRS § 1903.] 12.16.070 12.16.070 Testimony of party may be rebutted. The examination of a party thus taken, may be rebutted by adverse testimony. [Code 1881 § 1875; 1873 p 371 § 174; 1854 p 234 § 63; RRS § 1904.] 12.16.080 12.16.080 Procedure on party’s refusal to testify. If a party refuse to attend and testify at the trial, or give his deposition before trial, when required, his complaint, answer or reply, may be stricken out, and judgment taken against him. [Code 1881 § 1876; 1873 p 371 § 175; 1854 p 234 § 64; RRS § 1905.] Penalty for failure to testify: Rules of court: CR 43(f)(3). [Title 12 RCW—page 7] 12.16.090 Title 12 RCW: District Courts—Civil Procedure 12.16.090 12.16.090 Examination of party in his own behalf. A party examined by an adverse party may be examined on his own behalf, in respect to any matter pertinent to the issue. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to qualify or explain his answer thereto, or to discharge, when his answer would charge himself, such adverse party may offer himself as a witness, and he shall be so received. [Code 1881 § 1877; 1873 p 371 § 176; 1854 p 234 § 65; RRS § 1906.] application for setting the same aside shall be considered an entry of general appearance in the case by the applicant, and the case shall duly proceed to a trial upon the merits: PROVIDED, That, no justice of the peace shall pay out or turn over money or property received by him by virtue of any default judgment until the expiration of the ten days for moving to set aside such default judgment has expired. [1915 c 41 § 1; Code 1881 § 1781; 1873 p 349 § 79; 1863 p 349 § 62; 1854 p 237 § 81; RRS § 1858.] 12.20.030 Chapter 12.20 Chapter 12.20 RCW JUDGMENTS Sections 12.20.010 12.20.020 12.20.030 12.20.040 12.20.050 12.20.060 12.20.070 Judgment of dismissal. Judgment by default. Judgment on merits. Tender—Effect of, on judgment. Setoff—Limitation of judgment. Judgment for costs—Attorney’s fee. Proceedings where title to land is involved. Reviser’s note: References in this chapter to justices of the peace and courts to be construed to mean district judges and courts: See RCW 3.30.015. 12.20.010 12.20.010 Judgment of dismissal. Judgment that the action be dismissed, without prejudice to a new action, may be entered, with costs, in the following cases: (1) When the plaintiff voluntarily dismisses the action before it is finally submitted. (2) When he fails to appear at the time specified in the notice, upon continuance, or within one hour thereafter. (3) When it is objected at the trial, and appears by the evidence that the action is brought in the wrong county [precinct]; but if the objection be taken and overruled, it shall be cause only of reversal or appeal; if not taken at the trial it shall be deemed waived, and shall not be cause of reversal. [Code 1881 § 1780; 1873 p 348 § 79; 1863 p 349 § 61; 1854 p 236 § 80; RRS § 1857.] 12.20.020 12.20.020 Judgment by default. When the defendant fails to appear and plead at the time specified in the notice, or within one hour thereafter, judgment shall be given as follows: (1) When the defendant has been served with a true copy of the complaint, judgment shall be given without further evidence for the sum specified therein; (2) In other cases, the justice shall hear the evidence of the plaintiff, and render judgment for such sum only as shall appear by the evidence to be just, but in no case exceed the amount specified in the complaint. (3) The justice shall have full power at any time after a judgment has been given by default for failure of the defendant to appear and plead at the proper time, to vacate and set aside said judgment for any good cause and upon such terms as he shall deem sufficient and proper. Such judgment shall only be set aside upon five days notice in writing served upon the plaintiff or the plaintiff’s attorney and filed with the justice within ten days after the entry of the judgment. The justice shall hear the application to set aside such judgment either upon affidavits or oral testimony as he may deem proper. In case such judgment is set aside the making of the [Title 12 RCW—page 8] 12.20.030 Judgment on merits. Upon the verdict of a jury, the justice shall immediately render judgment thereon. When the trial is by the justice, judgment shall be entered within three days after the close of the trial. [1957 c 89 § 13; Code 1881 § 1783; 1873 p 350 § 82; 1854 p 237 § 83; RRS § 1859.] 12.20.040 12.20.040 Tender—Effect of, on judgment. If the defendant, at any time before the trial, offer in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with costs then accrued; but if he do not accept such offer before the trial, and fail to recover on the trial of the action, a sum greater than the offer, such plaintiff shall not recover any costs that may accrue after he shall have been notified of the offer of the defendant, but such costs shall be adjudged against him, and if he recover, deducted from his recovery. But the offer and failure to accept it, shall not be given in evidence to affect the recovery, otherwise than as to costs, as above provided. [Code 1881 § 1784; 1873 p 350 § 83; 1863 p 350 § 65; 1854 p 237 § 84; RRS § 1860.] 12.20.050 12.20.050 Setoff—Limitation of judgment. When the setoff of the defendant proved shall exceed the claim of the plaintiff, and such excess in amount exceed the jurisdiction of a justice of the peace, the court shall allow such amount as is necessary to cancel the plaintiff’s claim, and give the defendant a judgment for costs; but in such case, the court shall not render judgment for any further sum in favor of the defendant. [Code 1881 § 1768; 1873 p 346 § 67; 1854 p 232 § 55; RRS § 1861.] 12.20.060 12.20.060 Judgment for costs—Attorney’s fee. When the prevailing party in district court is entitled to recover costs as authorized in RCW 4.84.010 in a civil action, the judge shall add the amount thereof to the judgment; in case of failure of the plaintiff to recover or of dismissal of the action, the judge shall enter up a judgment in favor of the defendant for the amount of his or her costs; and in case any party so entitled to costs is represented in the action by an attorney, the judge shall include attorney’s fees in the amount provided in RCW 4.84.060 as part of the costs: PROVIDED, HOWEVER, That the plaintiff shall not be entitled to such attorney fee unless he or she obtains, exclusive of costs, a judgment in the sum of fifty dollars or more: AND PROVIDED FURTHER, That if the plaintiff obtains judgment, exclusive of costs, of at least fifty dollars but less than two hundred dollars, the judge shall include attorney fees of one hundred twenty-five dollars as part of the costs. [2004 c 123 § 2; 1993 c 341 § 1; 1985 c 240 § 2; 1984 c 258 § 89; 1975-’76 2nd (2006 Ed.) Replevin ex.s. c 30 § 1; 1915 c 43 § 1; 1893 c 12 § 1; Code 1881 § 1785; 1873 p 350 § 84; 1854 p 237 § 85; RRS § 1862.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Attorneys’ fee as costs in damage actions of ten thousand dollars or less: RCW 4.84.250 through 4.84.300. 12.20.070 12.20.070 Proceedings where title to land is involved. If it appear on the trial of any cause before a justice of the peace, from the evidence of either party, that the title to lands is in question, which title shall be disputed by the other, the justice shall immediately make an entry thereof in his docket, and cease all further proceedings in the cause, and shall certify and return to the superior court of the county, a transcript of all the entries made in his docket, relating to the cause, together with all the process and other papers relating to the action, in the same manner, and within the same time, as upon an appeal; and thereupon the parties shall file their pleadings, and the superior court shall proceed in the cause to final judgment and execution, in the same manner as if the said action had been originally commenced therein, and the cost shall abide the event of the suit. [Code 1881 § 1868; 1873 p 369 § 167; 1854 p 235 § 69; RRS § 1863.] Chapter 12.28 Chapter 12.28 RCW REPLEVIN Sections 12.28.005 Chapter 7.64 RCW available to plaintiff in action to recover possession of personal property. 12.28.005 Chapter 7.64 RCW available to plaintiff in action to recover possession of personal property. The plaintiff in an action to recover the possession of personal property may claim and obtain the immediate delivery of the property, after a hearing, as provided in chapter 7.64 RCW. [1979 ex.s. c 132 § 8.] 12.28.005 Severability—1979 ex.s. c 132: See RCW 7.64.900. Chapter 12.36 Chapter 12.36 RCW SMALL CLAIMS APPEALS (Formerly: Appeals) Sections 12.36.010 12.36.020 12.36.030 12.36.050 12.36.055 12.36.080 12.36.090 Appeal in small claims action authorized. Appeal—Procedure—Notice filing—Fee—Bond or undertaking—Service—Costs of record preparation. Stay of proceedings—Procedures—Return of property upon stay—Enforcement upon denial. Certification of record by district court—Transmittal to superior court—Powers of superior court upon transmittal. Trial of an appeal from small claims judgment. No dismissal for defective bond—Notice. Judgment against appellant and sureties. Costs in appeal from district courts: RCW 4.84.130. 12.36.010 12.36.010 Appeal in small claims action authorized. Any person wishing to appeal a judgment or decision in a small claims action may, in person or by his or her agent, appeal to the superior court of the county where the judgment was rendered or decision made: PROVIDED, There shall be no appeal allowed unless the amount in controversy, exclusive of costs, exceeds two hundred fifty dollars: PROVIDED (2006 Ed.) 12.36.030 FURTHER, That an appeal from the court’s determination or order on a traffic infraction proceeding may be taken only in accordance with RCW 46.63.090(5). [1997 c 352 § 7; 1979 ex.s. c 136 § 21; 1929 c 58 § 1; RRS § 1910. Prior: 1905 c 20 § 1; 1891 c 29 § 1; Code 1881 § 1858; 1873 p 367 § 156; 1854 p 252 § 160.] Effective date—Severability—1979 ex.s. c 136: See notes following RCW 46.63.010. 12.36.020 12.36.020 Appeal—Procedure—Notice filing—Fee— Bond or undertaking—Service—Costs of record preparation. (1) To appeal a judgment or decision in a small claims action, an appellant shall file a notice of appeal in the district court, pay the statutory superior court filing fee, post the required bond or undertaking, and serve a copy of the notice of appeal on all parties of record within thirty days after the judgment is rendered or decision made. (2) No appeal may be allowed, nor proceedings on the judgment or decision stayed, unless a bond or undertaking shall be executed on the part of the appellant and filed with and approved by the district court. The bond or undertaking shall be executed with two or more personal sureties, or a surety company as surety, to be approved by the district court, in a sum equal to twice the amount of the judgment and costs, or twice the amount in controversy, whichever is greater, conditioned that the appellant will pay any judgment, including costs, as may be rendered on appeal. No bond is required if the appellant is a county, city, town, or school district. (3) When an appellant has filed a notice of appeal, paid the statutory superior court filing fee and the costs of preparation of the complete record as set forth in RCW 3.62.060(7), and posted the bond or undertaking as required, the clerk of the district court shall immediately file a copy of the notice of appeal, the filing fee, and the bond or undertaking with the superior court. [1998 c 52 § 1; 1997 c 352 § 8; 1929 c 58 § 2; RRS § 1911. Prior: 1891 c 29 § 1; Code 1881 § 1859; 1873 p 367 §§ 157, 158; 1854 p 252 §§ 161, 162.] 12.36.030 12.36.030 Stay of proceedings—Procedures—Return of property upon stay—Enforcement upon denial. When an appeal and any necessary bond or undertaking are properly filed in superior court pursuant to RCW 12.36.020(3), the appellant may move in superior court to stay all further proceedings in the district court. If the stay is granted, all further proceedings in district court on the judgment shall be suspended. If proceedings have commenced on motion of the appellant the court may order the proceedings halted and such process recalled. If any property is held pursuant to such proceedings at the time the stay is granted and the process recalled, such property shall be returned immediately to the party entitled to such property. If the requested stay is denied, or no stay is requested, the judgment will be enforced in superior court in the same manner as any other judgment rendered in that court. [1998 c 52 § 2; 1997 c 352 § 9; 1929 c 58 § 3; RRS § 1912. Prior: Code 1881 § 1861; 1873 p 368 § 160; 1854 p 252 § 164.] [Title 12 RCW—page 9] 12.36.050 Title 12 RCW: District Courts—Civil Procedure 12.36.050 12.36.050 Certification of record by district court— Transmittal to superior court—Powers of superior court upon transmittal. (1) Within fourteen days after a small claims appeal has been filed in superior court by the clerk of the district court pursuant to RCW 12.36.020(3), the complete record as defined in subsection (2) of this section shall be made and certified by the clerk of the district court to be correct. The clerk shall then immediately transmit the complete record to superior court. The superior court shall then become possessed of the cause. All further proceedings shall be in the superior court, including enforcement of any judgment rendered. Any superior court procedures such as arbitration or other methods of dispute resolution may be utilized by the superior court in its discretion. (2) The complete record shall consist of a transcript of all entries made in the district court docket relating to the case, together with all the process and other papers relating to the case filed with the district court and a contemporaneous recording made of the proceeding. [2001 c 156 § 1; 1998 c 52 § 3; 1997 c 352 § 10; 1929 c 58 § 5; RRS §§ 1914, 1915. Prior: 1891 c 29 § 4; Code 1881 § 1863; 1873 p 368 § 162; 1854 p 252 § 166. Formerly RCW 12.36.050 and 12.36.060.] 12.36.055 12.36.055 Trial of an appeal from small claims judgment. (1) The appeal from a small claims judgment or decision shall be de novo upon the record of the case, as entered by the district court. (2) Any cases heard in superior court pursuant to this section may be heard by a duly appointed commissioner. As used in this chapter "judge" includes any duly appointed commissioner. [2001 c 156 § 2; 1997 c 352 § 11.] 12.36.080 12.36.080 No dismissal for defective bond—Notice. No appeal under this chapter shall be dismissed on account of any defect in the bond on appeal, if, within ten days of notice to appellant of such defect, the appellant executes and files in the court currently possessed of the cause such bond as should have been executed at the time of taking the appeal, and pay all costs that may have accrued by reason of such defect. [1998 c 52 § 4; 1997 c 352 § 12; 1929 c 58 § 7; RRS § 1917. Prior: Code 1881 § 1867; 1873 p 369 § 165; 1854 p 253 § 169.] 12.40.045 12.40.050 12.40.060 12.40.070 12.40.080 12.40.090 12.40.100 12.40.105 12.40.110 12.40.120 12.40.800 Recovery of fees as court costs. Requisites of claim. Requisites of notice. Verification of claim. Hearing. Informal pleadings. Payment of monetary judgment. Increase of judgment upon failure to pay. Procedure on nonpayment. Appeals—Setting aside judgments. Small claims informational brochure—Preparation and distribution. 12.40.010 12.40.010 Department authorized—Jurisdictional amount. In every district court there shall be created and organized by the court a department to be known as the "small claims department of the district court." The small claims department shall have jurisdiction, but not exclusive, in cases for the recovery of money only if the amount claimed does not exceed four thousand dollars. [2001 c 154 § 1; 1991 c 71 § 1; 1988 c 85 § 1; 1984 c 258 § 57; 1981 c 331 § 10; 1979 c 102 § 4; 1973 c 128 § 1; 1970 ex.s. c 83 § 1; 1963 c 123 § 1; 1919 c 187 § 1; RRS § 1777-1.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Court Congestion Reduction Act of 1981—Purpose—Severability—1981 c 331: See notes following RCW 2.32.070. Application, savings—Effective date—Severability—1979 c 102: See notes following RCW 3.66.020. 12.40.020 12.40.020 Action—Commencement—Fee. A small claims action shall be commenced by the plaintiff filing a claim, in the form prescribed by RCW 12.40.050, in the small claims department. A filing fee of fourteen dollars plus any surcharge authorized by RCW 7.75.035 shall be paid when the claim is filed. Any party filing a counterclaim, crossclaim, or third-party claim in such action shall pay to the court a filing fee of fourteen dollars plus any surcharge authorized by RCW 7.75.035. [2005 c 457 § 14; 1990 c 172 § 3; 1984 c 258 § 58; 1919 c 187 § 2; RRS § 1777-2.] Intent—2005 c 457: See note following RCW 43.08.250. Effective date—1990 c 172: See note following RCW 7.75.035. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 12.40.025 12.36.090 12.36.090 Judgment against appellant and sureties. In all cases of appeal to the superior court under this chapter, if the judgment is against the appellant, in whole or in part, such judgment shall be rendered against the appellant and his or her sureties on the bond on appeal. [1997 c 352 § 13; 1929 c 58 § 8; RRS § 1918. Prior: Code 1881 § 1867; 1873 p 369 § 166; 1854 p 253 § 170.] Chapter 12.40 Chapter 12.40 RCW SMALL CLAIMS Sections 12.40.010 12.40.020 12.40.025 12.40.027 12.40.030 12.40.040 Department authorized—Jurisdictional amount. Action—Commencement—Fee. Transfer of action to small claims department. Removal to superior court—Restrictions—Simultaneous maintenance of claims—Joinder of claims on appeal. Setting case for hearing—Notice—Time of trial. Service of notice of claim—Fee. [Title 12 RCW—page 10] 12.40.025 Transfer of action to small claims department. A defendant in a district court proceeding in which the claim is within the jurisdictional amount for the small claims department may in accordance with court rules transfer the action to the small claims department. In the event of such a transfer the provisions of RCW 12.40.070 shall not be applicable if the plaintiff was an assignee of the claim at the time the action was commenced nor shall the provisions of RCW 12.40.080 prohibit an attorney from representing the plaintiff if he was the attorney of record for the plaintiff at the time the action was commenced. [1984 c 258 § 59; 1970 ex.s. c 83 § 2.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 12.40.027 12.40.027 Removal to superior court—Restrictions—Simultaneous maintenance of claims—Joinder of claims on appeal. RCW 4.14.010 regarding removal of actions to superior court shall not apply to cases originally (2006 Ed.) Small Claims filed in small claims court, or transferred to the small claims court pursuant to RCW 12.40.025. No defendant or third party defendant may remove a small claims case from small claims court as a matter of right by merely filing a claim or counterclaim or other request for relief that is beyond the jurisdiction of the small claims court. Claims, counterclaims, or other requests for relief filed by a defendant or third party defendant in excess of the jurisdiction of small claims court may be maintained simultaneously in superior court as a separate action brought by such defendant or third party defendant. Such a superior court action does not affect the jurisdiction of the small claims court to hear the original small claims case. The decision of the small claims court shall have no preclusive effect on a superior court action brought pursuant to this section. If the small claims case is appealed, it shall be automatically joined with any superior court case filed pursuant to this section, and the procedures set forth in RCW 12.36.055 shall not apply. Nothing in this section may be construed to limit the small claims court from transferring a small claims case to district court or superior court after notice and hearing. [1997 c 352 § 5.] 12.40.080 Severability—1981 c 194: See note following RCW 36.18.040. 12.40.045 12.40.045 Recovery of fees as court costs. In the event persons other than the sheriff or duly appointed deputies charge a fee for services in excess of the fees allowed under RCW 36.18.040, the prevailing party incurring such charges shall be entitled to recover as court costs only the amount of the fees for such services as provided in RCW 36.18.040. [1981 c 194 § 4.] Severability—1981 c 194: See note following RCW 36.18.040. 12.40.050 12.40.050 Requisites of claim. A claim filed in the small claims department shall contain: (1) The name and address of the plaintiff; (2) a statement, in brief and concise form, of the nature and amount of the claim and when the claim accrued; and (3) the name and residence of the defendant, if known to the plaintiff, for the purpose of serving the notice of claim on the defendant. [1984 c 258 § 62; 1919 c 187 § 5; RRS § 1777-5.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 12.40.060 12.40.030 Setting case for hearing—Notice—Time of trial. Upon filing of a claim, the court shall set a time for hearing on the matter. The court shall issue a notice of the claim which shall be served upon the defendant to notify the defendant of the hearing date. A trial need not be held on this first appearance, if dispute resolution services are offered instead of trial, or local practice rules provide that trials will be held on different days. [1997 c 352 § 1; 1984 c 258 § 60; 1981 c 330 § 3; 1980 c 162 § 11; 1963 c 123 § 2; 1919 c 187 § 3; RRS § 1777-3.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Severability—1981 c 330: See note following RCW 3.62.060. 12.40.060 Requisites of notice. The notice of claim directed to the defendant shall contain: (1) The name and address of the plaintiff; (2) a brief and concise statement of the nature and amount of the claim; (3) a statement directing and requiring defendant to appear personally in the small claims department at a time certain, which shall not be less than five days from the date of service of the notice; and (4) a statement advising the defendant that in case of his or her failure to appear, judgment will be given against defendant for the amount of the claim. [1984 c 258 § 63; 1981 c 331 § 11; 1919 c 187 § 6; RRS § 1777-6.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 12.40.030 Severability—1980 c 162: See note following RCW 3.02.010. 12.40.040 Service of notice of claim—Fee. The notice of claim can be served either as provided for the service of summons or complaint and notice in civil actions or by registered or certified mail if a return receipt with the signature of the party being served is filed with the court. No other legal document or process is to be served with the notice of claim. Information from the court regarding the small claims department, local small claims procedure, dispute resolution services, or other matters related to litigation in the small claims department may be included with the notice of claim when served. The notice of claim shall be served promptly after filing the claim. Service must be complete at least ten days prior to the first hearing. The person serving the notice of claim shall be entitled to receive from the plaintiff, besides mileage, the fee specified in RCW 36.18.040 for such service; which sum, together with the filing fee set forth in RCW 12.40.020, shall be added to any judgment given for plaintiff. [1997 c 352 § 2; 1984 c 258 § 61; 1981 c 194 § 3; 1970 ex.s. c 83 § 3; 1959 c 263 § 9; 1919 c 187 § 4; RRS § 1777-4.] Court Congestion Reduction Act of 1981—Purpose—Severability—1981 c 331: See notes following RCW 2.32.070. 12.40.040 Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. (2006 Ed.) 12.40.070 12.40.070 Verification of claim. A claim must be verified by the real claimant, and no claim shall be filed or prosecuted in the small claims department by the assignee of the claim. [1984 c 258 § 64; 1919 c 187 § 7; RRS § 1777-7.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 12.40.080 12.40.080 Hearing. (1) No attorney at law, legal paraprofessional, nor any person other than the plaintiff and defendant, shall appear or participate with the prosecution or defense of litigation in the small claims department without the consent of the judicial officer hearing the case. A corporation may not be represented by an attorney at law or legal paraprofessional except as set forth in RCW 12.40.025. (2) In the small claims department it shall not be necessary to summon witnesses, but the plaintiff and defendant in any claim shall have the privilege of offering evidence in their behalf by witnesses appearing at trial. (3) The judge may informally consult witnesses or otherwise investigate the controversy between the parties and give judgment or make such orders as the judge may deem to be right, just, and equitable for the disposition of the contro[Title 12 RCW—page 11] 12.40.090 Title 12 RCW: District Courts—Civil Procedure versy. [1997 c 352 § 3; 1991 c 71 § 2; 1984 c 258 § 65; 1981 c 331 § 12; 1919 c 187 § 8; RRS § 1777-8.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Court Congestion Reduction Act of 1981—Purpose—Severability—1981 c 331: See notes following RCW 2.32.070. 12.40.090 12.40.090 Informal pleadings. A formal pleading, other than the claim and notice, shall not be necessary to define the issue between the parties. The hearing and disposition of the actions shall be informal, with the sole object of dispensing speedy and quick justice between the litigants. An attachment, garnishment or execution shall not issue from the small claims department on any claim except as provided in this chapter. [1984 c 258 § 66; 1919 c 187 § 9; RRS § 17779.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 12.40.100 12.40.100 Payment of monetary judgment. If a monetary judgment or order is entered, it shall be the judgment debtor’s duty to pay the judgment upon such terms and conditions as the judge shall prescribe. If the judgment is not paid to the prevailing party at the time the judgment is entered and the judgment debtor is present in court, the court may order a payment plan. [1984 c 258 § 67; 1983 c 254 § 1; 1919 c 187 § 10; RRS § 1777-10.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Effective date—1983 c 254: "This act shall take effect on January 1, 1984." [1983 c 254 § 5.] 12.40.105 12.40.105 Increase of judgment upon failure to pay. If the losing party fails to pay the judgment within thirty days or within the period otherwise ordered by the court, the judgment shall be increased by: (1) An amount sufficient to cover costs of certification of the judgment under RCW 12.40.110; (2) the amount specified in RCW 36.18.012(2); and (3) any other costs incurred by the prevailing party to enforce the judgment, including but not limited to reasonable attorneys’ fees, without regard to the jurisdictional limits on the small claims department. [2004 c 70 § 1; 1998 c 52 § 5; 1995 c 292 § 5; 1983 c 254 § 2.] Effective date—1983 c 254: See note following RCW 12.40.100. 12.40.110 12.40.110 Procedure on nonpayment. (1) If the losing party fails to pay the judgment according to the terms and conditions thereof within thirty days or is in arrears on any payment plan, and the prevailing party so notifies the court, the court shall certify the judgment in substantially the following form: Washington. In the District Court of . . . . . . County. . . . . . . . . . . . . . . . Plaintiff, vs. . . . . . . . . . . . . . . . Defendant. In the Small Claims Department. [Title 12 RCW—page 12] This is to certify that: (1) In a certain action on the . . . . day of . . . . . . 19 . . ., wherein . . . . . . . . . was plaintiff and . . . . . . . . . defendant, jurisdiction of said defendant having been had by personal service (or otherwise) as provided by law, judgment was entered against . . . . . . in the sum of . . . . . . dollars; (2) the judgment has not been paid within *twenty days or the period otherwise ordered by the court; and (3) pursuant to RCW 12.40.105, the amount of the judgment is hereby increased by any costs of certification under this section and the amount specified in RCW 36.18.012(2). Witness my hand this . . . . day of . . . . . ., 19 . . . ................................. Clerk of the Small Claims Department. (2) The clerk shall forthwith enter the judgment transcript on the judgment docket of the district court; and thereafter garnishment, execution, and other process on execution provided by law may issue thereon, as in other judgments of district courts. (3) Transcripts of such judgments may be filed and entered in judgment lien dockets in superior courts with like effect as in other cases. [1998 c 52 § 6; 1995 c 292 § 6; 1984 c 258 § 68; 1983 c 254 § 3; 1975 1st ex.s. c 40 § 1; 1973 c 128 § 2; 1919 c 187 § 11; RRS § 1777-11.] *Reviser’s note: 1998 c 52 extended the payment period to thirty days in RCW 12.40.105 and subsection (1) of this section, but failed to conform the text of the certification form. Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. Effective date—1983 c 254: See note following RCW 12.40.100. Inclusion of reasonable costs and attorneys’ fees in execution: RCW 6.17.110. 12.40.120 12.40.120 Appeals—Setting aside judgments. No appeal shall be permitted from a judgment of the small claims department of the district court where the amount claimed was less than two hundred fifty dollars. No appeal shall be permitted by a party who requested the exercise of jurisdiction by the small claims department where the amount claimed by that party was less than one thousand dollars. A party in default may seek to have the default judgment set aside according to the court rules applicable to setting aside judgments in district court. [1997 c 352 § 4; 1988 c 85 § 2; 1984 c 258 § 69; 1970 ex.s. c 83 § 4.] Court Improvement Act of 1984—Effective dates—Severability— Short title—1984 c 258: See notes following RCW 3.30.010. 12.40.800 12.40.800 Small claims informational brochure— Preparation and distribution. The administrator for the courts and the district and municipal court judges’ association shall prepare a model small claims informational brochure and distribute the model brochure to all small claims departments in the state. This brochure may be modified as necessary by each small claims department and shall be made available to all parties in any small claims action. [1994 c 32 § 7; 1988 c 85 § 3.] (2006 Ed.) Title 13 Title 13 JUVENILE COURTS AND JUVENILE OFFENDERS Chapters 13.04 Basic juvenile court act. 13.06 Juvenile offenders—Consolidated juvenile services programs. 13.16 Places of detention. 13.20 Management of detention facilities—Counties with populations of one million or more. 13.24 Interstate compact on juveniles. 13.32A Family reconciliation act. 13.34 Juvenile court act—Dependency and termination of parent-child relationship. 13.40 Juvenile justice act of 1977. 13.50 Keeping and release of records by juvenile justice or care agencies. 13.60 Missing children clearinghouse. 13.64 Emancipation of minors. 13.70 Substitute care of children—Review board system. 13.80 Learning and life skills grant program. Action against parent for willful injury to property by minor: RCW 4.24.190. Age of majority: Chapter 26.28 RCW. Alcoholic beverage control: Title 66 RCW. Child abuse: Chapter 26.44 RCW. custody, action by nonparent: Chapter 26.10 RCW. custody or visitation, denial: RCW 26.09.255. domestic violence prevention: Chapter 26.50 RCW. labor: Chapters 26.28, 28A.225, 49.12 RCW. welfare agencies: Chapter 74.15 RCW. Children and family services: Chapter 74.14A RCW. Chapter 13.04 Chapter 13.04 RCW BASIC JUVENILE COURT ACT (Formerly: Juvenile courts) Sections 13.04.005 13.04.011 13.04.021 13.04.030 13.04.033 13.04.035 13.04.037 13.04.040 13.04.043 13.04.047 13.04.050 13.04.093 13.04.116 13.04.135 13.04.145 13.04.155 13.04.160 13.04.180 13.04.240 13.04.300 13.04.450 Short title. Definitions. Juvenile court—How constituted—Cases tried without jury. Juvenile court—Exclusive original jurisdiction—Exceptions. Appeal of court order—Procedure—Priority, when. Administrator of juvenile court, probation counselor, and detention services—Appointment. Administrator—Adoption of standards for detention facilities for juveniles—Revision and inspection. Administrator—Appointment of probation counselors and persons in charge of detention facilities—Powers and duties, compensation—Collection of fines. Administrator—Obtaining interpreters. Administrator or staff—Health and dental examination and care—Consent. Expenses of probation officers. Hearings—Duties of prosecuting attorney or attorney general. Juvenile not to be confined in jail or holding facility for adults, exceptions—Enforcement. Establishment of house or room of detention. Educational program for juveniles in detention facilities. Notification to school principal of conviction, adjudication, or diversion agreement—Provision of information to teachers and other personnel—Confidentiality. Fees not allowed. Board of visitation. Court order not deemed conviction of crime. Juvenile may be both dependent and an offender. Chapters 13.04 and 13.40 RCW as exclusive authority for adjudication and disposition of juvenile offenders—Chapter 10.22 RCW does not apply to proceedings under chapter 13.40 RCW. Compulsory school attendance: Chapter 28A.225 RCW. Council for the prevention of child abuse and neglect: Chapter 43.121 RCW. Division of children and youth services; construed in connection with and supplemental to the juvenile court law: RCW 72.05.170 through 72.05.210. Educational aid for children with disabilities: Chapter 28A.155 RCW. Firearms: RCW 9.41.080, 9.41.240. Juvenile may be both dependent and an offender: RCW 13.04.300. Jurisdiction over Indians as to juvenile delinquency and dependent children: Chapter 37.12 RCW. Missing children clearinghouse and hot line: Chapter 13.60 RCW. Juvenile laws and court processes and procedures—Informational materials: RCW 2.56.130. Record of traffic charges of juveniles to be furnished juvenile court: RCW 46.20.293. Relinquishment of permanent care of child: RCW 26.33.090. Leaving children in parked automobile: RCW 9.91.060. Schools designated close security institutions: RCW 72.05.130. Out-of-home care—Social study required: RCW 74.13.065. Temporary assistance for needy families: Chapter 74.12 RCW. Public bodies may retain collection agencies to collect public debts—Fees: RCW 19.16.500. Transfer from minimum security to close security institution—Court order required: RCW 72.05.130(3). Public institutions, division of children and youth services: Chapter 72.05 RCW. Report of child abuse: Chapter 26.44 RCW. State institutions: Title 72 RCW. Tobacco: RCW 26.28.080. Vacation and modification of judgments—Causes for enumerated: RCW 4.72.010(5). Witnesses—Who are disqualified—Privileged communications: RCW 5.60.060. Youth development and conservation corps: Chapter 79A.05 RCW. (2006 Ed.) 13.04.005 13.04.005 Short title. This chapter shall be known as the "basic juvenile court act". [1977 ex.s. c 291 § 1.] Effective dates—1977 ex.s. c 291: "Section 57 of this 1977 amendatory act is necessary for the immediate preservation of the public peace, health and safety, the support of state government and its existing public institutions, and shall take effect on July 1, 1977. The remainder of this 1977 amendatory act shall take effect on July 1, 1978." [1977 ex.s. c 291 § 83.] Severability—1977 ex.s. c 291: "If any provision of this 1977 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1977 ex.s. c 291 § 82.] [Title 13 RCW—page 1] 13.04.011 Title 13 RCW: Juvenile Courts and Juvenile Offenders 13.04.011 13.04.011 Definitions. For purposes of this title: (1) "Adjudication" has the same meaning as "conviction" in RCW 9.94A.030, and the terms must be construed identically and used interchangeably; (2) Except as specifically provided in RCW 13.40.020 and chapter 13.24 RCW, "juvenile," "youth," and "child" mean any individual who is under the chronological age of eighteen years; (3) "Juvenile offender" and "juvenile offense" have the meaning ascribed in RCW 13.40.020; (4) "Court" when used without further qualification means the juvenile court judge(s) or commissioner(s); (5) "Parent" or "parents," except as used in chapter 13.34 RCW, means that parent or parents who have the right of legal custody of the child. "Parent" or "parents" as used in chapter 13.34 RCW, means the biological or adoptive parents of a child unless the legal rights of that person have been terminated by judicial proceedings; (6) "Custodian" means that person who has the legal right to custody of the child. [1997 c 338 § 6; 1992 c 205 § 119; 1979 c 155 § 1; 1977 ex.s. c 291 § 2.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. Effective date—1979 c 155: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately [March 29, 1979]." [1979 c 155 § 89.] Severability—1979 c 155: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1979 c 155 § 88.] Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.04.021 13.04.021 Juvenile court—How constituted—Cases tried without jury. (1) The juvenile court shall be a division of the superior court. In judicial districts having more than one judge of the superior court, the judges of such court shall annually assign one or more of their number to the juvenile court division. In any judicial district having a court commissioner, the court commissioner shall have the power, authority, and jurisdiction, concurrent with a juvenile court judge, to hear all cases under this chapter and to enter judgment and make orders with the same power, force, and effect as any judge of the juvenile court, subject to motion or demand by any party within ten days from the entry of the order or judgment by the court commissioner as provided in RCW 2.24.050. In any judicial district having a family law commissioner appointed pursuant to chapter 26.12 RCW, the family law commissioner shall have the power, authority, and jurisdiction, concurrent with a juvenile court judge, to hear cases under Title 13 RCW and chapter 28A.225 RCW as provided in RCW 26.12.010, and to enter judgment and make orders with the same power, force, and effect as any judge of the juvenile court, subject to motion or demand by any party within ten days from the entry of the order or judgment by the court commissioner as provided in RCW 2.24.050. [Title 13 RCW—page 2] (2) Cases in the juvenile court shall be tried without a jury. [1999 c 397 § 5; 1994 sp.s. c 7 § 538; 1988 c 232 § 3; 1979 c 155 § 2; 1977 ex.s. c 291 § 3.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.04.030 13.04.030 Juvenile court—Exclusive original jurisdiction—Exceptions. (1) Except as provided in this section, the juvenile courts in this state shall have exclusive original jurisdiction over all proceedings: (a) Under the interstate compact on placement of children as provided in chapter 26.34 RCW; (b) Relating to children alleged or found to be dependent as provided in chapter 26.44 RCW and in RCW 13.34.030 through *13.34.170; (c) Relating to the termination of a parent and child relationship as provided in RCW 13.34.180 through 13.34.210; (d) To approve or disapprove out-of-home placement as provided in RCW 13.32A.170; (e) Relating to juveniles alleged or found to have committed offenses, traffic or civil infractions, or violations as provided in RCW 13.40.020 through 13.40.230, unless: (i) The juvenile court transfers jurisdiction of a particular juvenile to adult criminal court pursuant to RCW 13.40.110; (ii) The statute of limitations applicable to adult prosecution for the offense, traffic or civil infraction, or violation has expired; (iii) The alleged offense or infraction is a traffic, fish, boating, or game offense, or traffic or civil infraction committed by a juvenile sixteen years of age or older and would, if committed by an adult, be tried or heard in a court of limited jurisdiction, in which instance the appropriate court of limited jurisdiction shall have jurisdiction over the alleged offense or infraction, and no guardian ad litem is required in any such proceeding due to the juvenile’s age: PROVIDED, That if such an alleged offense or infraction and an alleged offense or infraction subject to juvenile court jurisdiction arise out of the same event or incident, the juvenile court may have jurisdiction of both matters: PROVIDED FURTHER, That the jurisdiction under this subsection does not constitute "transfer" or a "decline" for purposes of RCW 13.40.110(1) or (e)(i) of this subsection: PROVIDED FURTHER, That courts of limited jurisdiction which confine juveniles for an alleged offense or infraction may place juveniles in juvenile detention facilities under an agreement with the officials responsible for the administration of the juvenile detention facility in RCW 13.04.035 and 13.20.060; (iv) The alleged offense is a traffic or civil infraction, a violation of compulsory school attendance provisions under chapter 28A.225 RCW, or a misdemeanor, and a court of limited jurisdiction has assumed concurrent jurisdiction over those offenses as provided in **RCW 13.04.0301; or (v) The juvenile is sixteen or seventeen years old on the date the alleged offense is committed and the alleged offense is: (A) A serious violent offense as defined in RCW 9.94A.030; (2006 Ed.) Basic Juvenile Court Act (B) A violent offense as defined in RCW 9.94A.030 and the juvenile has a criminal history consisting of: (I) One or more prior serious violent offenses; (II) two or more prior violent offenses; or (III) three or more of any combination of the following offenses: Any class A felony, any class B felony, vehicular assault, or manslaughter in the second degree, all of which must have been committed after the juvenile’s thirteenth birthday and prosecuted separately; (C) Robbery in the first degree, rape of a child in the first degree, or drive-by shooting, committed on or after July 1, 1997; (D) Burglary in the first degree committed on or after July 1, 1997, and the juvenile has a criminal history consisting of one or more prior felony or misdemeanor offenses; or (E) Any violent offense as defined in RCW 9.94A.030 committed on or after July 1, 1997, and the juvenile is alleged to have been armed with a firearm. (I) In such a case the adult criminal court shall have exclusive original jurisdiction, except as provided in (e)(v)(E)(II) of this subsection. (II) The juvenile court shall have exclusive jurisdiction over the disposition of any remaining charges in any case in which the juvenile is found not guilty in the adult criminal court of the charge or charges for which he or she was transferred, or is convicted in the adult criminal court of a lesser included offense that is not also an offense listed in (e)(v) of this subsection. The juvenile court shall enter an order extending juvenile court jurisdiction if the juvenile has turned eighteen years of age during the adult criminal court proceedings pursuant to RCW 13.40.300. However, once the case is returned to juvenile court, the court may hold a decline hearing pursuant to RCW 13.40.110 to determine whether to retain the case in juvenile court for the purpose of disposition or return the case to adult criminal court for sentencing. If the juvenile challenges the state’s determination of the juvenile’s criminal history under (e)(v) of this subsection, the state may establish the offender’s criminal history by a preponderance of the evidence. If the criminal history consists of adjudications entered upon a plea of guilty, the state shall not bear a burden of establishing the knowing and voluntariness of the plea; (f) Under the interstate compact on juveniles as provided in chapter 13.24 RCW; (g) Relating to termination of a diversion agreement under RCW 13.40.080, including a proceeding in which the divertee has attained eighteen years of age; (h) Relating to court validation of a voluntary consent to an out-of-home placement under chapter 13.34 RCW, by the parent or Indian custodian of an Indian child, except if the parent or Indian custodian and child are residents of or domiciled within the boundaries of a federally recognized Indian reservation over which the tribe exercises exclusive jurisdiction; (i) Relating to petitions to compel disclosure of information filed by the department of social and health services pursuant to RCW 74.13.042; and (j) Relating to judicial determinations and permanency planning hearings involving developmentally disabled children who have been placed in out-of-home care pursuant to a voluntary placement agreement between the child’s parent, (2006 Ed.) 13.04.030 guardian, or legal custodian and the department of social and health services. (2) The family court shall have concurrent original jurisdiction with the juvenile court over all proceedings under this section if the superior court judges of a county authorize concurrent jurisdiction as provided in RCW 26.12.010. (3) The juvenile court shall have concurrent original jurisdiction with the family court over child custody proceedings under chapter 26.10 RCW as provided for in RCW 13.34.155. (4) A juvenile subject to adult superior court jurisdiction under subsection (1)(e)(i) through (v) of this section, who is detained pending trial, may be detained in a detention facility as defined in RCW 13.40.020 pending sentencing or a dismissal. [2005 c 290 § 1; 2005 c 238 § 1; 2000 c 135 § 2. Prior: 1997 c 386 § 17; 1997 c 341 § 3; 1997 c 338 § 7; prior: 1995 c 312 § 39; 1995 c 311 § 15; 1994 sp.s. c 7 § 519; 1988 c 14 § 1; 1987 c 170 § 1; 1985 c 354 § 29; 1984 c 272 § 1; 1981 c 299 § 1; 1980 c 128 § 6; 1979 c 155 § 3; 1977 ex.s. c 291 § 4; 1937 c 65 § 1; 1929 c 176 § 1; 1921 c 135 § 1; 1913 c 160 § 2; RRS § 1987-2.] Reviser’s note: *(1) RCW 13.34.170 was recodified as RCW 13.34.161 pursuant to 2000 c 122 § 41. **(2) RCW 13.04.0301 was decodified September 2003. (3) This section was amended by 2005 c 238 § 1 and by 2005 c 290 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Application—1997 c 386: See note following RCW 13.50.010. Finding—Intent—1997 c 341: "The legislature finds that a swift and certain response to a juvenile who begins engaging in acts of delinquency may prevent the offender from becoming a chronic or more serious offender. However, given pressing demands to address serious offenders, the system does not always respond to minor offenders expeditiously and effectively. Consequently, this act is adopted to implement an experiment to determine whether granting courts of limited jurisdiction concurrent jurisdiction over certain juvenile offenses will improve the system’s effectiveness in curbing delinquency. The legislature may ascertain whether this approach might be successful on a larger scale by conducting an experiment with local governments, which are the laboratories of democracy." [1997 c 341 § 1.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Short title—1995 c 312: See note following RCW 13.32A.010. Application of 1994 sp.s. c 7 amendments: "Provisions governing exceptions to juvenile court jurisdiction in the amendments to RCW 13.04.030 contained in section 519, chapter 7, Laws of 1994 sp. sess. shall apply to serious violent and violent offenses committed on or after June 13, 1994. The criminal history which may result in loss of juvenile court jurisdiction upon the alleged commission of a serious violent or violent offense may have been acquired on, before, or after June 13, 1994." [1994 sp.s. c 7 § 540.] Finding—Intent—Severability—Effective dates—Contingent expiration date—1994 sp.s. c 7: See notes following RCW 43.70.540. Savings—1988 c 14: "Any court validation of a voluntary consent to relinquishment or adoption of an Indian child which was obtained in a juvenile court or superior court pursuant to chapter 26.33 RCW after July 25, 1987, and before June 9, 1988, shall be valid and effective in all respects." [1988 c 14 § 2.] Severability—1987 c 170: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1987 c 170 § 15.] Severability—Effective date—1985 c 354: See RCW 71.34.900 and 71.34.901. [Title 13 RCW—page 3] 13.04.033 Title 13 RCW: Juvenile Courts and Juvenile Offenders Effective date—Severability—1980 c 128: See notes following RCW 46.63.060. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. Court commissioners: Chapter 2.24 RCW, state Constitution Art. 4 § 23. Jurisdiction of superior courts: State Constitution Art. 4 § 6 (Amendment 65). 13.04.033 13.04.033 Appeal of court order—Procedure—Priority, when. (1) Any person aggrieved by a final order of the court may appeal the order as provided by this section. All appeals in matters other than those related to commission of a juvenile offense shall be taken in the same manner as in other civil cases. Except as otherwise provided in this title, all appeals in matters related to the commission of a juvenile offense shall be taken in the same manner as criminal cases and the right to collateral relief shall be the same as in criminal cases. The order of the juvenile court shall stand pending the disposition of the appeal: PROVIDED, That the court or the appellate court may upon application stay the order. (2) If the final order from which an appeal is taken grants the custody of the child to, or withholds it from, any of the parties, or if the child is committed as provided under this chapter, the appeal shall be given priority in hearing. (3) In the absence of a specific direction from the party seeking review to file the notice, or the court-appointed guardian ad litem, the court may dismiss the review pursuant to RAP 18.9. To the extent that this enactment [1990 c 284] conflicts with the requirements of RAP 5.3(a) or RAP 5.3(b) this enactment [1990 c 284] shall supersede the conflicting rule. [1990 c 284 § 35; 1979 c 155 § 4; 1977 ex.s. c 291 § 5.] Rules of court: Rules of Appellate Procedure. Finding—Effective date—1990 c 284: See notes following RCW 74.13.250. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.04.035 13.04.035 Administrator of juvenile court, probation counselor, and detention services—Appointment. Juvenile court shall be administered by the superior court, except that by local court rule and agreement with the legislative authority of the county this service may be administered by the legislative authority of the county. Juvenile probation counselor and detention services shall be administered by the superior court, except that (1) by local court rule and agreement with the county legislative authority, these services may be administered by the county legislative authority; (2) if a consortium of three or more counties, located east of the Cascade mountains and whose combined population exceeds five hundred thirty thousand, jointly operates a juvenile correctional facility, the county legislative authorities may prescribe for alternative administration of the juvenile correctional facility by ordinance; and (3) in any county with a population of one million or more, probation and detention services shall be administered in accordance with chapter 13.20 RCW. The administrative body shall appoint an administrator of juvenile court, probation counselor, and detention [Title 13 RCW—page 4] services who shall be responsible for day-to-day administration of such services, and who may also serve in the capacity of a probation counselor. One person may, pursuant to the agreement of more than one administrative body, serve as administrator of more than one juvenile court. [1996 c 284 § 1; 1991 c 363 § 10; 1979 c 155 § 5; 1977 ex.s. c 291 § 6.] Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. Prosecuting attorney as party to juvenile court proceedings—Exception, procedure: RCW 13.40.090. 13.04.037 13.04.037 Administrator—Adoption of standards for detention facilities for juveniles—Revision and inspection. The administrator shall after consultation with the state planning agency established under Title II of the federal juvenile justice and delinquency prevention act of 1974 (P.L. No. 93-415; 42 U.S.C. 5611 et seq.) following a public hearing, and after approval of the body responsible for administering the juvenile court, and no later than one hundred eighty days after the effective date of chapter 291, Laws of 1977 ex. sess., adopt standards for the regulation and government of detention facilities for juveniles. Such standards may be revised from time to time, according to the procedure outlined in this section. Each detention facility shall keep a copy of such standards available for inspection at all times. Such standards shall be reviewed and the detention facilities shall be inspected annually by the administrator. [1977 ex.s. c 291 § 7.] Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.04.040 13.04.040 Administrator—Appointment of probation counselors and persons in charge of detention facilities—Powers and duties, compensation—Collection of fines. The administrator shall, in any county or judicial district in the state, appoint or designate one or more persons of good character to serve as probation counselors during the pleasure of the administrator. The probation counselor shall: (1) Receive and examine referrals to the juvenile court for the purpose of considering the filing of a petition or information pursuant to chapter 13.32A or 13.34 RCW or RCW 13.40.070; (2) Make recommendations to the court regarding the need for continued detention or shelter care of a child unless otherwise provided in this title; (3) Arrange and supervise diversion agreements as provided in RCW 13.40.080, and ensure that the requirements of such agreements are met except as otherwise provided in this title; (4) Prepare predisposition studies as required in RCW 13.40.130, and be present at the disposition hearing to respond to questions regarding the predisposition study: PROVIDED, That such duties shall be performed by the department for cases relating to dependency or to the termination of a parent and child relationship which is filed by the department unless otherwise ordered by the court; and (2006 Ed.) Basic Juvenile Court Act (5) Supervise court orders of disposition to ensure that all requirements of the order are met. All probation counselors shall possess all the powers conferred upon sheriffs and police officers to serve process and make arrests of juveniles under their supervision for the violation of any state law or county or city ordinance. The administrator may, in any county or judicial district in the state, appoint one or more persons who shall have charge of detention rooms or houses of detention. The probation counselors and persons appointed to have charge of detention facilities shall each receive compensation which shall be fixed by the legislative authority of the county, or in cases of joint counties, judicial districts of more than one county, or joint judicial districts such sums as shall be agreed upon by the legislative authorities of the counties affected, and such persons shall be paid as other county officers are paid. The administrator is hereby authorized, and to the extent possible is encouraged to, contract with private agencies existing within the community for the provision of services to youthful offenders and youth who have entered into diversion agreements pursuant to RCW 13.40.080. The administrator shall establish procedures for the collection of fines assessed under RCW 13.40.080 (2)(d) and (14) and for the payment of the fines into the county general fund. [2004 c 120 § 10; 1995 c 312 § 40; 1983 c 191 § 14; 1979 c 155 § 6; 1977 ex.s. c 291 § 8; 1959 c 331 § 9; 1951 c 270 § 1; 1921 c 43 § 1; 1913 c 160 § 3; RRS § 1987-3.] Effective date—2004 c 120: See note following RCW 13.40.010. Short title—1995 c 312: See note following RCW 13.32A.010. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.04.043 Administrator—Obtaining interpreters. The administrator of juvenile court shall obtain interpreters as needed consistent with the intent and practice of chapter 2.43 RCW, to enable non-English speaking youth and their families to participate in detention, probation, or court proceedings and programs. [1993 c 415 § 6.] 13.04.043 Intent—1993 c 415: See note following RCW 2.56.031. 13.04.047 Administrator or staff—Health and dental examination and care—Consent. (1) The administrator of the juvenile court or authorized staff may consent as provided in this section to the provision of health and dental examinations and care, and necessary treatment for medical and dental conditions requiring prompt attention, for juveniles lawfully detained at or sentenced to a detention facility. The treatment may include treatment provided at medical or dental facilities outside the juvenile detention facility and treatment provided within the juvenile detention facility for the period of time the youth is in the custody of the facility. Juveniles shall not be transported for treatment outside the facility if treatment services are available within the facility. (2) The examination, care, and treatment may be provided without parental consent when prompt attention is required if the administrator of the juvenile court or authorized staff have been unable to secure permission for treatment from the parent or parents, guardian, or other person 13.04.116 having custody of the child after reasonable attempts to do so before the provision of the medical and dental services. (3) Treatment shall not be authorized for juveniles whose parent or parents, guardian, or other person having custody of the child informs the administrator of the juvenile court of objections to the treatment before the treatment is provided except where *RCW 69.54.060 applies. [1983 c 267 § 2.] *Reviser’s note: RCW 69.54.060 was repealed by 1989 c 270 § 35. Employment of dental hygienist without supervision of dentist authorized: RCW 18.29.056. 13.04.050 13.04.050 Expenses of probation officers. The probation officers, and assistant probation officers, and deputy probation officers in all counties of the state shall be allowed such necessary incidental expenses as may be authorized by the judge of the juvenile court, and the same shall be a charge upon the county in which the court appointing them has jurisdiction, and the expenses shall be paid out of the county treasury upon a written order of the judge of the juvenile court of said county directing the county auditor to draw his warrant upon the county treasurer for the specified amount of such expenses. [1913 c 160 § 4; RRS § 1987-4.] 13.04.093 13.04.093 Hearings—Duties of prosecuting attorney or attorney general. It shall be the duty of the prosecuting attorney to act in proceedings relating to the commission of a juvenile offense as provided in RCW 13.40.070 and 13.40.090 and in proceedings as provided in chapter 71.34 RCW. It shall be the duty of the prosecuting attorney to handle delinquency cases under chapter 13.24 RCW and it shall be the duty of the attorney general to handle dependency cases under chapter 13.24 RCW. It shall be the duty of the attorney general in contested cases brought by the department to present the evidence supporting any petition alleging dependency or seeking the termination of a parent and child relationship or any contested case filed under RCW 26.33.100 or approving or disapproving out-of-home placement: PROVIDED, That in each county with a population of less than two hundred ten thousand, the attorney general may contract with the prosecuting attorney of the county to perform the duties of the attorney general under this section. [1995 c 312 § 41; 1991 c 363 § 11; 1985 c 354 § 30; 1985 c 7 § 4; 1979 ex.s. c 165 § 6; 1977 ex.s. c 291 § 9.] 13.04.047 (2006 Ed.) Short title—1995 c 312: See note following RCW 13.32A.010. Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. Severability—Effective date—1985 c 354: See RCW 71.34.900 and 71.34.901. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.04.116 13.04.116 Juvenile not to be confined in jail or holding facility for adults, exceptions—Enforcement. (1) A juvenile shall not be confined in a jail or holding facility for adults, except: (a) For a period not exceeding twenty-four hours excluding weekends and holidays and only for the purpose of an initial court appearance in a county where no juvenile detention facility is available, a juvenile may be held in an adult facility provided that the confinement is separate from the sight and sound of adult inmates; or [Title 13 RCW—page 5] 13.04.135 Title 13 RCW: Juvenile Courts and Juvenile Offenders (b) For not more than six hours and pursuant to a lawful detention in the course of an investigation, a juvenile may be held in an adult facility provided that the confinement is separate from the sight and sound of adult inmates. (2) For purposes of this section a juvenile is an individual under the chronological age of eighteen years who has not been transferred previously to adult courts. (3) The department of social and health services shall monitor and enforce compliance with this section. (4) This section shall not be construed to expand or limit the authority to lawfully detain juveniles. [1987 c 462 § 1; 1985 c 50 § 1.] Effective dates—1987 c 462: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions. Sections 15 and 21 of this act shall take effect immediately. Sections 1 through 11 and sections 16, 17, 22 and 23 of this act shall take effect January 1, 1988." [1987 c 462 § 24.] Places of detention: Chapter 13.16 RCW. Transfer of juvenile to department of corrections facility: RCW 13.40.280. 13.04.135 13.04.135 Establishment of house or room of detention. Counties containing more than fifty thousand inhabitants shall, and counties containing a lesser number of inhabitants may, provide and maintain at public expense, a detention room or house of detention, separated or removed from any jail, or police station, to be in charge of a matron, or other person of good character, wherein all children within the provisions of this chapter shall, when necessary, be sheltered. [1983 c 98 § 2; 1945 c 121 § 1; 1913 c 160 § 13; Rem. Supp. 1945 1987-13. Formerly RCW 13.16.010.] Detention in facility under jurisdiction of juvenile court—Financial responsibility for cost of detention: RCW 13.34.161, 13.16.085. tiality. (1) Whenever a minor enrolled in any common school is convicted in adult criminal court, or adjudicated or entered into a diversion agreement with the juvenile court on any of the following offenses, the court must notify the principal of the student’s school of the disposition of the case, after first notifying the parent or legal guardian that such notification will be made: (a) A violent offense as defined in RCW 9.94A.030; (b) A sex offense as defined in RCW 9.94A.030; (c) Inhaling toxic fumes under chapter 9.47A RCW; (d) A controlled substances violation under chapter 69.50 RCW; (e) A liquor violation under RCW 66.44.270; and (f) Any crime under chapters 9.41, 9A.36, 9A.40, 9A.46, and 9A.48 RCW. (2) The principal must provide the information received under subsection (1) of this section to every teacher of any student who qualifies under subsection (1) of this section and any other personnel who, in the judgment of the principal, supervises the student or for security purposes should be aware of the student’s record. The principal must provide the information to teachers and other personnel based on any written records that the principal maintains or receives from a juvenile court administrator or a law enforcement agency regarding the student. (3) Any information received by a principal or school personnel under this section is confidential and may not be f u r t h e r d i ss e m in a te d e x c e p t a s p r o v id e d i n R C W 28A.225.330, other statutes or case law, and the family and educational and privacy rights act of 1994, 20 U.S.C. Sec. 1232g et seq. [2000 c 27 § 1; 1997 c 266 § 7.] Findings—Intent—Severability—1997 c 266: See notes following RCW 28A.600.455. 13.04.145 13.04.145 Educational program for juveniles in detention facilities. A program of education shall be provided for by the several counties and school districts of the state for common school age persons confined in each of the detention facilities staffed and maintained by the several counties of the state under this chapter and chapters 13.16 and 13.20 RCW. The division of duties, authority, and liabilities of the several counties and school districts of the state respecting the educational programs is the same in all respects as set forth in RCW 28A.190.030 through 28A.190.060 respecting programs of education for state residential school residents. For the purposes of this section, the terms "department of social and health services," "residential school" or "schools," and "superintendent or chief administrator of a residential school" as used in RCW 28A.190.030 through 28A.190.060 shall be respectively construed to mean "the several counties of the state," "detention facilities," and "the administrator of juvenile court detention services." Nothing in this section shall prohibit a school district from utilizing the services of an educational service district subject to RCW 28A.310.180. [1990 c 33 § 551; 1983 c 98 § 1.] Purpose—Statutory references—Severability—1990 c 33: See RCW 28A.900.100 through 28A.900.102. Juvenile facilities, educational programs: RCW 28A.190.010. 13.04.155 13.04.155 Notification to school principal of conviction, adjudication, or diversion agreement—Provision of information to teachers and other personnel—Confiden[Title 13 RCW—page 6] 13.04.160 Fees not allowed. No fees shall be charged or collected by any officer or other person for filing petition, serving summons, or other process under this chapter. [1913 c 160 § 16; RRS § 1987-16.] 13.04.160 13.04.180 Board of visitation. In each county, the judge presiding over the juvenile court sessions, as defined in this chapter, may appoint a board of four reputable citizens, who shall serve without compensation, to constitute a board of visitation, whose duty it shall be to visit as often as twice a year all institutions, societies and associations within the county receiving children under this chapter, as well as all homes for children or other places where individuals are holding themselves out as caretakers of children, also to visit other institutions, societies and associations within the state receiving and caring for children, whenever requested to do so by the judge of the juvenile court: PROVIDED, The actual expenses of such board may be paid by the county commissioners when members thereof are requested to visit institutions outside of the county seat, and no member of the board shall be required to visit any institutions outside the county unless his actual traveling expenses shall be paid as aforesaid. Such visits shall be made by not less than two members of the board, who shall go together or make a joint report. The board of visitors shall report to the court from time to time the condition of children received by or in charge of such institutions, societies, associations, or individuals. It 13.04.180 (2006 Ed.) Juvenile Offenders—Consolidated Juvenile Services Programs shall be the duty of every institution, society, or association, or individual receiving and caring for children to permit any member or members of the board of visitation to visit and inspect such institution, society, association or home where such child is kept, in all its departments, so that a full report may be made to the court. [1913 c 160 § 18; RRS § 1987-18.] 13.04.240 13.04.240 Court order not deemed conviction of crime. An order of court adjudging a child delinquent or dependent under the provisions of this chapter shall in no case be deemed a conviction of crime. [1961 c 302 § 16. Prior: 1913 c 160 § 10, part; RCW 13.04.090, part.] 13.04.300 13.04.300 Juvenile may be both dependent and an offender. Nothing in chapter 13.04, 13.06, 13.32A, 13.34, or 13.40 RCW may be construed to prevent a juvenile from being found both dependent and an offender if there exists a factual basis for such a finding. [1983 c 3 § 15; 1979 c 155 § 14.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.04.450 13.04.450 Chapters 13.04 and 13.40 RCW as exclusive authority for adjudication and disposition of juvenile offenders—Chapter 10.22 RCW does not apply to proceedings under chapter 13.40 RCW. The provisions of chapters 13.04 and 13.40 RCW, as now or hereafter amended, shall be the exclusive authority for the adjudication and disposition of juvenile offenders except where otherwise expressly provided. Chapter 10.22 RCW does not apply to juvenile offender proceedings, including diversion, under chapter 13.40 RCW. [1985 c 257 § 5; 1981 c 299 § 20.] Severability—1985 c 257: See note following RCW 13.34.165. Chapter 13.06 RCW JUVENILE OFFENDERS—CONSOLIDATED JUVENILE SERVICES PROGRAMS Chapter 13.06 (Formerly: Probation services—Special supervision programs) Sections 13.06.010 13.06.020 13.06.030 13.06.040 13.06.050 13.06.055 Intention. State to share in cost. Rules—Standards—"Consolidated juvenile services" defined. Application by county or counties for state financial aid. Conditions for receiving state funds—Criteria for distribution of funds—Annual report on programs to reduce racial disproportionality. Housing authorities law—Group homes or halfway houses for released juveniles or developmentally disabled. Juvenile may be both dependent and an offender: RCW 13.04.300. 13.06.010 13.06.010 Intention. It is the intention of the legislature in enacting this chapter to increase the protection afforded the citizens of this state, to require community planning, to provide necessary services and supervision for juvenile offenders in the community when appropriate, to reduce reliance on state-operated correctional institutions for offenders whose standard range disposition does not include commitment of the offender to the department, and to encourage the community to efficiently and effectively provide community services to juvenile offenders through consolidation of service delivery systems. [1983 c 191 § 1; 1969 ex.s. c 165 § 1.] (2006 Ed.) 13.06.050 Effective date—1969 ex.s. c 165: "This act shall become effective on July 1, 1969." [1969 ex.s. c 165 § 7.] 13.06.020 13.06.020 State to share in cost. From any state moneys made available for such purpose, the state of Washington, through the department of social and health services, shall, in accordance with this chapter and applicable departmental rules, share in the cost of providing services to juveniles. [1983 c 191 § 2; 1979 c 141 § 13; 1969 ex.s. c 165 § 2.] 13.06.030 13.06.030 Rules—Standards—"Consolidated juvenile services" defined. The department of social and health services shall adopt rules prescribing minimum standards for the operation of consolidated juvenile services programs for juvenile offenders and such other rules as may be necessary for the administration of the provisions of this chapter. Consolidated juvenile services is a mechanism through which the department of social and health services supports local county comprehensive program plans in providing services to offender groups. Standards shall be sufficiently flexible to support current programs which have demonstrated effectiveness and efficiency, to foster development of innovative and improved services for juvenile offenders, to permit direct contracting with private vendors, and to encourage community support for and assistance to local programs. The secretary of social and health services shall seek advice from appropriate juvenile justice system participants in developing standards and procedures for the operation of consolidated juvenile services programs and the distribution of funds under this chapter. [1983 c 191 § 3; 1979 c 141 § 14; 1969 ex.s. c 165 § 3.] 13.06.040 13.06.040 Application by county or counties for state financial aid. Any county or group of counties may make application to the department of social and health services in the manner and form prescribed by the department for financial aid for the cost of consolidated juvenile services programs. Any such application must include a plan or plans for providing consolidated services to juvenile offenders in accordance with standards of the department. [1983 c 191 § 4; 1979 c 141 § 15; 1969 ex.s. c 165 § 4.] 13.06.050 13.06.050 Conditions for receiving state funds—Criteria for distribution of funds—Annual report on programs to reduce racial disproportionality. No county shall be entitled to receive any state funds provided by this chapter until its application and plan are approved, and unless and until the minimum standards prescribed by the department of social and health services are complied with and then only on such terms as are set forth in this section. In addition, any county making application for state funds under this chapter that also operates a juvenile detention facility must have standards of operations in place that include: Intake and admissions, medical and health care, communication, correspondence, visiting and telephone use, security and control, sanitation and hygiene, juvenile rights, rules and discipline, property, juvenile records, safety and emergency procedures, programming, release and transfer, training and staff development, and food service. (1) The distribution of funds to a county or a group of counties shall be based on criteria including but not limited to [Title 13 RCW—page 7] 13.06.055 Title 13 RCW: Juvenile Courts and Juvenile Offenders the county’s per capita income, regional or county at-risk populations, juvenile crime or arrest rates, rates of poverty, size of racial minority populations, existing programs, and the effectiveness and efficiency of consolidating local programs towards reducing commitments to state correctional facilities for offenders whose standard range disposition does not include commitment of the offender to the department and reducing reliance on other traditional departmental services. (2) The secretary will reimburse a county upon presentation and approval of a valid claim pursuant to the provisions of this chapter based on actual performance in meeting the terms and conditions of the approved plan and contract. Funds received by participating counties under this chapter shall not be used to replace local funds for existing programs. (3) The secretary, in conjunction with the human rights commission, shall evaluate the effectiveness of programs funded under this chapter in reducing racial disproportionality. The secretary shall investigate whether implementation of such programs has reduced disproportionality in counties with initially high levels of disproportionality. The analysis shall indicate which programs are cost-effective in reducing disproportionality in such areas as alternatives to detention, intake and risk assessment standards pursuant to RCW 13.40.038, alternatives to incarceration, and in the prosecution and adjudication of juveniles. The secretary shall report his or her findings to the legislature by December 1, 1994, and December 1 of each year thereafter. [1993 c 415 § 7; 1983 c 191 § 5; 1979 c 151 § 9; 1977 ex.s. c 307 § 1; 1973 1st ex.s. c 198 § 1; 1971 ex.s. c 165 § 1; 1969 ex.s. c 165 § 5.] Intent—1993 c 415: See note following RCW 2.56.031. Effective date—1977 ex.s. c 307: "This 1977 amendatory act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1977." [1977 ex.s. c 307 § 3.] Effective date—1973 1st ex.s. c 198: "This 1973 amendatory act is necessary for the immediate preservation of the public peace, health and safety, the support of the state government and its existing public institutions, and shall take effect on July 1, 1973." [1973 1st ex.s. c 198 § 3.] 13.06.055 13.06.055 Housing authorities law—Group homes or halfway houses for released juveniles or developmentally disabled. See RCW 35.82.285. County juvenile detention facilities—Policy—Detention and risk assessment standards: RCW 13.40.038. Employment of dental hygienist without supervision of a dentist authorized: RCW 18.29.056. 13.16.010 13.16.010 Establishment of house or room of detention. See RCW 13.04.135. 13.16.020 13.16.020 Lack of detention facilities constitutes emergency. The attention of the legislature having been called to the absence of juvenile detention facilities in the various counties of the state, the legislature hereby declares that this situation constitutes an emergency demanding the invocation by the several counties affected of the emergency powers granted by virtue of RCW 36.40.140 through 36.40.200. [1945 c 188 § 1; Rem. Supp. 1945 § 2004-1.] 13.16.030 13.16.030 Mandatory function of counties. The construction, acquisition and maintenance of juvenile detention facilities for dependent, wayward and delinquent children, separate and apart from the detention facilities for adults, is hereby declared to be a mandatory function of the several counties of the state. [1945 c 188 § 2; Rem. Supp. 1945 § 2004-2.] 13.16.040 13.16.040 Counties authorized to acquire facilities and employ adequate staffs. Boards of county commissioners in the various counties now suffering from a lack of adequate detention facilities for dependent, delinquent and wayward children shall, in the manner provided by law, declare an emergency and appropriate, in the manner provided by law, sufficient funds to meet all demands for adequate care of dependent, delinquent and wayward children. All appropriations made under the provisions of RCW 13.16.020 through 13.16.080 are to be used exclusively for the acquisition, purchase, construction or leasing of real and personal property and the employment and payment of salaries for an adequate staff of juvenile officers and necessary clerical staff and assistants and for furnishing suitable food, clothing and recreational facilities for dependent, delinquent and wayward children. [1945 c 188 § 3; Rem. Supp. 1945 § 2004-3.] 13.16.050 Chapter 13.16 Chapter 13.16 RCW PLACES OF DETENTION Sections 13.16.010 13.16.020 13.16.030 13.16.040 13.16.050 13.16.060 13.16.070 13.16.080 13.16.085 13.16.090 13.16.100 Establishment of house or room of detention. Lack of detention facilities constitutes emergency. Mandatory function of counties. Counties authorized to acquire facilities and employ adequate staffs. Federal or state aid. Statutory debt limits may be exceeded. Bonds may be issued without vote of electors. Allocation of budgeted funds. Financial responsibility for cost of detention. Juvenile not to be confined in jail or holding facility for adults, exceptions—Enforcement. Motion pictures. Child welfare agencies: Chapter 74.15 RCW. welfare services: Chapter 74.13 RCW. [Title 13 RCW—page 8] 13.16.050 Federal or state aid. In connection with the financing of facilities and the employment of a staff of juvenile officers for dependent, delinquent and wayward children, the various boards of county commissioners affected shall attempt to secure such advances, loans, grants in aid, donations as gifts as may be secured from the federal government or any of its agencies or from the state government or from other public or private institutions or individuals. [1945 c 188 § 4; Rem. Supp. 1945 § 2004-4.] 13.16.060 13.16.060 Statutory debt limits may be exceeded. Appropriations made under authority and by virtue of RCW 13.16.020 through 13.16.080 and debts incurred by any county in carrying out the provisions of RCW 13.16.020 through 13.16.080 may exceed all statutory limitations otherwise applicable and limiting the debt any county may incur. [1945 c 188 § 5; Rem. Supp. 1945 § 2004-5.] (2006 Ed.) Management of Detention Facilities—Counties with Populations of One Million or More 13.16.070 13.16.070 Bonds may be issued without vote of electors. In order to carry out the provisions of RCW 13.16.020 through 13.16.080 the several counties affected shall utilize any and all methods available to them by law for financing the program authorized by RCW 13.16.020 through 13.16.080 and may fund any and all debts incurred by the issuance of general obligation bonds of the county in the manner provided by law, without submitting the same to a vote of the people. [1945 c 188 § 6; Rem. Supp. 1945 § 20046.] Chapter 13.20 RCW MANAGEMENT OF DETENTION FACILITIES— COUNTIES WITH POPULATIONS OF ONE MILLION OR MORE Chapter 13.20 (Formerly: Management of detention facilities—Class AA counties) Sections 13.20.010 13.20.020 13.20.030 13.20.040 13.20.050 13.20.060 13.16.080 13.16.080 Allocation of budgeted funds. In order to carry out the provisions of RCW 13.16.020 through 13.16.080 the board of county commissioners is hereby authorized, any law to the contrary notwithstanding, to allocate any funds that may be available in any item or class of the budget as presently constituted to the fund to be used to carry out the provisions of RCW 13.16.020 through 13.16.080. [1945 c 188 § 7; Rem. Supp. 1945 § 2004-7.] 13.16.085 13.16.085 Financial responsibility for cost of detention. In any case in which a child under eighteen years of age has been placed in any detention facility under the jurisdiction of the juvenile court, the court may inquire into the facts concerning the necessity or propriety of such child’s detention notwithstanding the fact that such child may not have been found to be either a dependent or a delinquent child. The court may, either in the proceedings involving the question of dependency or delinquency of such child or in a separate proceeding, upon the parent or parents, guardian, or other person having custody of said child being duly summoned or voluntarily appearing, proceed to inquire into the necessity or propriety of such detention and into the ability of such person or persons to pay the cost of such detention. If the court finds that such detention was necessary or proper for the welfare of the child or for the protection of the community, and if the court also finds the parent or parents, guardian, or other person having the custody of such child able to pay or contribute to the payment of the cost of such detention, the court may enter such order or decree as shall be equitable in the premises, and may enforce the same by execution or in any way a court of equity may enforce its decrees. [1955 c 369 § 1.] Basic juvenile court act: Chapter 13.04 RCW. 13.16.090 13.16.090 Juvenile not to be confined in jail or holding facility for adults, exceptions—Enforcement. See RCW 13.04.116. 13.20.040 Board of managers—Appointment authorized—Composition. Terms of office—Removal—Vacancies. Chairman—Quorum—Organization—Rules of procedure. Powers and duties of board. Compensation of members. Transfer of administration of juvenile court services to county executive—Authorized—Advisory board—Procedure. Employment of dental hygienist without supervision of a dentist authorized: RCW 18.29.056. Places of detention: Chapter 13.16 RCW. Places of detention—Basic juvenile court act: Chapter 13.04 RCW. 13.20.010 13.20.010 Board of managers—Appointment authorized—Composition. The judges of the superior court of any county with a population of one million or more are hereby authorized, by majority vote, to appoint a board of managers to administer, subject to the approval and authority of such superior court, the probation and detention services for dependent and delinquent children coming under the jurisdiction of the juvenile court. Such board shall consist of four citizens of the county and the judge who has been selected to preside over the juvenile court. [1991 c 363 § 12; 1955 c 232 § 1.] Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. 13.20.020 13.20.020 Terms of office—Removal—Vacancies. The nonjudicial members of the board first appointed shall be appointed for the respective terms of one, two, three, and four years and until their successors are appointed and qualified; and thereafter their successors shall be appointed for terms of four years and until their successors are appointed and qualified. Any such member of the board may be removed at any time by majority vote of the judges of the superior court. Vacancies on the board may be filled at any time by majority vote of said judges, and such appointee shall hold office for the remainder of the term of the member in whose stead he was appointed. [1955 c 232 § 2.] 13.20.030 13.20.030 Chairman—Quorum—Organization— Rules of procedure. The judicial member of the board shall be the chairman thereof; a majority thereof shall constitute a quorum for the transaction of business; and the board shall have authority to organize itself in such manner and to establish such rules of procedure as it deems proper for the performance of its duties. [1955 c 232 § 3.] 13.16.100 13.16.100 Motion pictures. Motion pictures unrated after November 1968 or rated R, X, or NC-17 by the motion picture association of America shall not be shown in juvenile detention facilities or facilities operated by the division of juvenile rehabilitation in the department of social and health services. [1994 sp.s. c 7 § 807.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. (2006 Ed.) 13.20.040 13.20.040 Powers and duties of board. The juvenile court board of managers shall: (1) Have general supervision and care of all physical structures and grounds connected with the rendition of probation and detention services and power to do everything necessary to the proper maintenance thereof within the limits of the appropriations authorized. [Title 13 RCW—page 9] 13.20.050 Title 13 RCW: Juvenile Courts and Juvenile Offenders (2) Subject to the approval and authority of said superior court, the board of managers shall have authority and power to determine the type and extent of probation and detention services to be conducted in connection with the juvenile court, and authority over all matters concerning employment, job classifications, salary scales, qualifications, and number of personnel necessarily involved in the rendition of probation and detention services. (3) Prepare, in accordance with the provisions of the county budget law, and file with the county auditor a detailed and itemized estimate, both of probable revenues from sources other than taxation and of all expenditures required for the rendition of the services under the jurisdiction of said board. (4) Prepare and file with the superior court on July 1st of each year, and at such other times and in such form as the court shall require, a report of its operations. [1955 c 232 § 4.] 13.20.050 Compensation of members. No member of the board shall receive any compensation or emolument whatever for services as such board member. [1955 c 232 § 5.] 13.20.050 13.20.060 Transfer of administration of juvenile court services to county executive—Authorized—Advisory board—Procedure. In addition, and alternatively, to the authority granted by RCW 13.20.010, the judges of the superior court of any county with a population of one million or more operating under a county charter providing for an elected county executive are hereby authorized, by a majority vote, subject to approval by ordinance of the legislative authority of the county to transfer to the county executive the responsibility for, and administration of all or part of juvenile court services, including detention, intake and probation. The superior court and county executive of such county are further authorized to establish a five-member juvenile court advisory board to advise the county in its administration of such services, facilities and programs. If the advisory board is established, two members of the advisory board shall be appointed by the superior court, two members shall be appointed by the county executive, and one member shall be selected by the vote of the other four members. The county is authorized to contract or otherwise make arrangements with other public or private agencies to provide all or a part of such services, facilities and programs. Subsequent to any transfer to the county of responsibility and administration of such services, facilities and programs pursuant to the foregoing authority, the judges of such superior court, by majority vote subject to the approval by ordinance of the legislative authority of the county, may retransfer the same to the superior court. [1991 c 363 § 13; 1975 1st ex.s. c 124 § 1.] 13.20.060 Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. Chapter 13.24 RCW INTERSTATE COMPACT ON JUVENILES Chapter 13.24 Sections 13.24.010 13.24.011 Execution of compact. Execution of compact. [Title 13 RCW—page 10] 13.24.020 13.24.021 13.24.030 13.24.035 13.24.040 13.24.050 13.24.060 13.24.900 Juvenile compact administrator. Designation of state council. Supplementary agreements. Governor authorized and directed to execute supplementary compact—Contents. Financial arrangements. Fees. Responsibilities of state departments, agencies and officers. Short title. 13.24.010 13.24.010 Execution of compact. (Contingent delayed repeal.) The governor is hereby authorized and directed to execute a compact on behalf of this state with any other state or states legally joining therein in the form substantially as follows: INTERSTATE COMPACT ON JUVENILES The contracting states solemnly agree: ARTICLE I—Findings and Purposes That juveniles who are not under proper supervision and control, or who have absconded, escaped or run away, are likely to endanger their own health, morals and welfare, and the health, morals and welfare of others. The cooperation of the states party to this compact is therefore necessary to provide for the welfare and protection of juveniles and of the public with respect to: (1) Cooperative supervision of delinquent juveniles on probation or parole; (2) The return, from one state to another, of delinquent juveniles who have escaped or absconded; (3) The return, from one state to another, of nondelinquent juveniles who have run away from home; and (4) Additional measures for the protection of juveniles and of the public, which any two or more of the party states may find desirable to undertake cooperatively. In carrying out the provisions of this compact the party states shall be guided by the noncriminal, reformative and protective policies which guide their laws concerning delinquent, neglected or dependent juveniles generally. It shall be the policy of the states party to this compact to cooperate and observe their respective responsibilities for the prompt return and acceptance of juveniles and delinquent juveniles who become subject to the provisions of this compact. The provisions of this compact shall be reasonably and liberally construed to accomplish the foregoing purposes. ARTICLE II—Existing Rights and Remedies That all remedies and procedures provided by this compact shall be in addition to and not in substitution for other rights, remedies and procedures, and shall not be in derogation of parental rights and responsibilities. ARTICLE III—Definitions That, for the purposes of this compact, "delinquent juvenile" means any juvenile who has been adjudged delinquent and who, at the time the provisions of this compact are invoked, is still subject to the jurisdiction of the court that has made such adjudication or to the jurisdiction or supervision of an agency or institution pursuant to an order of such court; "probation or parole" means any kind of conditional release of juveniles authorized under the laws of the states party hereto; "court" means any court having jurisdiction over (2006 Ed.) Interstate Compact on Juveniles delinquent, neglected or dependent children; "state" means any state, territory or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico; and "residence" or any variant thereof means a place at which a home or regular place of abode is maintained. ARTICLE IV—Return of Runaways (a) That the parent, guardian, person or agency entitled to legal custody of a juvenile who has not been adjudged delinquent but who has run away without the consent of such parent, guardian, person or agency may petition the appropriate court in the demanding state for the issuance of a requisition for his return. The petition shall state the name and age of the juvenile, the name of the petitioner and the basis of entitlement to the juvenile’s custody, the circumstances of his running away, his location if known at the time application is made, and such other facts as may tend to show that the juvenile who has run away is endangering his own welfare or the welfare of others and is not an emancipated minor. The petition shall be verified by affidavit, shall be executed in duplicate, and shall be accompanied by two certified copies of the document or documents on which the petitioner’s entitlement to the juvenile’s custody is based, such as birth certificates, letters of guardianship, or custody decrees. Such further affidavits and other documents as may be deemed proper may be submitted with such petition. The judge of the court to which this application is made may hold a hearing thereon to determine whether for the purposes of this compact the petitioner is entitled to the legal custody of the juvenile, whether or not it appears that the juvenile has in fact run away without consent, whether or not he is an emancipated minor, and whether or not it is in the best interest of the juvenile to compel his return to the state. If the judge determines, either with or without a hearing, that the juvenile should be returned, he shall present to the appropriate court or to the executive authority of the state where the juvenile is alleged to be located, a written requisition for the return of such juvenile. Such requisition shall set forth the name and age of the juvenile, the determination of the court that the juvenile has run away without the consent of a parent, guardian, person or agency entitled to his legal custody, and that it is in the best interest and for the protection of such juvenile that he be returned. In the event that a proceeding for the adjudication of the juvenile as a delinquent, neglected or dependent juvenile is pending in the court at the time when such juvenile runs away, the court may issue a requisition for the return of such juvenile upon its own motion, regardless of the consent of the parent, guardian, person or agency entitled to legal custody, reciting therein the nature and circumstances of the pending proceeding. The requisition shall in every case be executed in duplicate and shall be signed by the judge. One copy of the requisition shall be filed with the compact administrator of the demanding state, there to remain on file subject to the provisions of law governing records of such court. Upon the receipt of a requisition demanding the return of a juvenile who has run away, the court or the executive authority to whom the requisition is addressed shall issue an order to any peace officer or other appropriate person directing him to take into custody and detain such juvenile. Such detention order must substantially recite the facts necessary to the validity of its issuance hereunder. No juvenile detained upon (2006 Ed.) 13.24.010 such order shall be delivered over to the officer whom the court demanding him shall have appointed to receive him, unless he shall first be taken forthwith before a judge of a court in the state, who shall inform him of the demand made for his return, and who may appoint counsel or guardian ad litem for him. If the judge of such court shall find that the requisition is in order, he shall deliver such juvenile over to the officer whom the court demanding him shall have appointed to receive him. The judge, however, may fix a reasonable time to be allowed for the purpose of testing the legality of the proceeding. Upon reasonable information that a person is a juvenile who has run away from another state party to this compact without the consent of a parent, guardian, person or agency entitled to his legal custody, such juvenile may be taken into custody without a requisition and brought forthwith before a judge of the appropriate court who may appoint counsel or guardian ad litem for such juvenile and who shall determine after a hearing whether sufficient cause exists to hold the person, subject to the order of the court, for his own protection and welfare, for such a time not exceeding ninety days as will enable his return to another state party to this compact pursuant to a requisition for his return from a court of that state. If, at the time when a state seeks the return of a juvenile who has run away, there is pending in the state wherein he is found any criminal charge, or any proceeding to have him adjudicated a delinquent juvenile for an act committed in such state, or if he is suspected of having committed within such state a criminal offense or an act of juvenile delinquency, he shall not be returned without the consent of such state until discharged from prosecution or other form of proceeding, imprisonment, detention or supervision for such offense or juvenile delinquency. The duly accredited officers of any state party to this compact, upon the establishment of their authority and the identity of the juvenile being returned, shall be permitted to transport such juvenile through any and all states party to this compact, without interference. Upon his return to the state from which he ran away, the juvenile shall be subject to such further proceedings as may be appropriate under the laws of that state. (b) That the state to which a juvenile is returned under this article shall be responsible for payment of the transportation costs of such return. (c) That "juvenile" as used in this article means any person who is a minor under the law of the state of residence of the parent, guardian, person or agency entitled to the legal custody of such minor. ARTICLE V—Return of Escapees and Absconders (a) That the appropriate person or authority from whose probation or parole supervision a delinquent juvenile has absconded or from whose institutional custody he has escaped shall present to the appropriate court or to the executive authority of the state where the delinquent juvenile is alleged to be located a written requisition for the return of such delinquent juvenile. Such requisition shall state the name and age of the delinquent juvenile, the particulars of his adjudication as a delinquent juvenile, the circumstances of the breach of the terms of his probation or parole or of his escape from an institution or agency vested with his legal custody or supervision, and the location of such delinquent [Title 13 RCW—page 11] 13.24.010 Title 13 RCW: Juvenile Courts and Juvenile Offenders juvenile, if known, at the time the requisition is made. The requisition shall be verified by affidavit, shall be executed in duplicate, and shall be accompanied by two certified copies of the judgment, formal adjudication, or order of commitment which subjects such delinquent juvenile to probation or parole or to the legal custody of the institution or agency concerned. Such further affidavits and other documents as may be deemed proper may be submitted with such requisition. One copy of the requisition shall be filed with the compact administrator of the demanding state, there to remain on file subject to the provisions of law governing records of the appropriate court. Upon the receipt of a requisition demanding the return of a delinquent juvenile who has absconded or escaped, the court or the executive authority to whom the requisition is addressed shall issue an order to any peace officer or other appropriate person directing him to take into custody and detain such delinquent juvenile. Such detention order must substantially recite the facts necessary to the validity of its issuance hereunder. No delinquent juvenile detained upon such order shall be delivered over to the officer whom the appropriate person or authority demanding him shall have appointed to receive him, unless he shall first be taken forthwith before a judge of an appropriate court in the state, who shall inform him of the demand made for his return and who may appoint counsel or guardian ad litem for him. If the judge of such court shall find that the requisition is in order, he shall deliver such delinquent juvenile over to the officer whom the appropriate person or authority demanding him shall have appointed to receive him. The judge, however, may fix a reasonable time to be allowed for the purpose of testing the legality of the proceeding. Upon reasonable information that a person is a delinquent juvenile who has absconded while on probation or parole, or escaped from an institution or agency vested with his legal custody or supervision in any state party to this compact, such person may be taken into custody in any other state party to this compact without a requisition. But in such event, he must be taken forthwith before a judge of the appropriate court, who may appoint counsel or guardian ad litem for such person and who shall determine, after a hearing, whether sufficient cause exists to hold the person subject to the order of the court for such a time, not exceeding ninety days, as will enable his detention under a detention order issued on a requisition pursuant to this article. If, at the time when a state seeks the return of a delinquent juvenile who has either absconded while on probation or parole or escaped from an institution or agency vested with his legal custody or supervision, there is pending in the state wherein he is detained any criminal charge or any proceeding to have him adjudicated a delinquent juvenile for an act committed in such state, or if he is suspected of having committed within such state a criminal offense or an act of juvenile delinquency, he shall not be returned without the consent of such state until discharged from prosecution or other form of proceeding, imprisonment, detention or supervision for such offense or juvenile delinquency. The duly accredited officers of any state party to this compact, upon the establishment of their authority and the identity of the delinquent juvenile being returned, shall be permitted to transport such delinquent juvenile through any and all states party to this compact, without interference. Upon his return to the state from which he escaped or [Title 13 RCW—page 12] absconded, the delinquent juvenile shall be subject to such further proceedings as may be appropriate under the laws of that state. (b) That the state to which a delinquent juvenile is returned under this article shall be responsible for payment of the transportation costs of such return. ARTICLE VI—Voluntary Return Procedure That any delinquent juvenile who has absconded while on probation or parole, or escaped from an institution or agency vested with his legal custody or supervision in any state party to this compact, and any juvenile who has run away from any state party to this compact, who is taken into custody without a requisition in another state party to this compact under the provisions of article IV (a) or of article V (a), may consent to his immediate return to the state from which he absconded, escaped or ran away. Such consent shall be given by the juvenile or delinquent juvenile and his counsel or guardian ad litem, if any, by executing or subscribing a writing, in the presence of a judge of the appropriate court, which states that the juvenile or delinquent juvenile and his counsel or guardian ad litem, if any, consent to his return to the demanding state. Before such consent shall be executed or subscribed, however, the judge, in the presence of counsel or guardian ad litem, if any, shall inform the juvenile or delinquent juvenile of his rights under this compact. When the consent has been duly executed, it shall be forwarded to and filed with the compact administrator of the state in which the court is located and the judge shall direct the officer having the juvenile or delinquent juvenile in custody to deliver him to the duly accredited officer or officers of the state demanding his return, and shall cause to be delivered to such officer or officers a copy of the consent. The court may, however, upon the request of the state to which the juvenile or delinquent juvenile is being returned, order him to return unaccompanied to such state and shall provide him with a copy of such court order; in such event a copy of the consent shall be forwarded to the compact administrator of the state to which said juvenile or delinquent juvenile is ordered to return. ARTICLE VII—Cooperative Supervision of Probationers and Parolees (a) That the duly constituted judicial and administrative authorities of a state party to this compact (herein called "sending state") may permit any delinquent juvenile within such state, placed on probation or parole, to reside in any other state party to this compact (herein called "receiving state") while on probation or parole, and the receiving state shall accept such delinquent juvenile, if the parent, guardian or person entitled to the legal custody of such delinquent juvenile is residing or undertakes to reside within the receiving state. Before granting such permission, opportunity shall be given to the receiving state to make such investigations as it deems necessary. The authorities of the sending state shall send to the authorities of the receiving state copies of pertinent court orders, social case studies and all other available information which may be of value to and assist the receiving state in supervising a probationer or parolee under this compact. A receiving state, in its discretion, may agree to accept supervision of a probationer or parolee in cases where the parent, guardian or person entitled to the legal custody of the (2006 Ed.) Interstate Compact on Juveniles delinquent juvenile is not a resident of the receiving state, and if so accepted the sending state may transfer supervision accordingly. (b) That each receiving state will assume the duties of visitation and of supervision over any such delinquent juvenile and in the exercise of those duties will be governed by the same standards of visitation and supervision that prevail for its own delinquent juveniles released on probation or parole. (c) That, after consultation between the appropriate authorities of the sending state and of the receiving state as to the desirability and necessity of returning such a delinquent juvenile, the duly accredited officers of a sending state may enter a receiving state and there apprehend and retake any such delinquent juvenile on probation or parole. For that purpose, no formalities will be required, other than establishing the authority of the officer and the identity of the delinquent juvenile to be retaken and returned. The decision of the sending state to retake a delinquent juvenile on probation or parole shall be conclusive upon and not reviewable within the receiving state, but if, at the time the sending state seeks to retake a delinquent juvenile on probation or parole, there is pending against him within the receiving state any criminal charge or any proceeding to have him adjudicated a delinquent juvenile for any act committed in such state, or if he is suspected of having committed within such state a criminal offense or an act of juvenile delinquency, he shall not be returned without the consent of the receiving state until discharged from prosecution or other form of proceeding, imprisonment, detention or supervision for such offense or juvenile delinquency. The duly accredited officers of the sending state shall be permitted to transport delinquent juveniles being so returned through any and all states party to this compact, without interference. (d) That the sending state shall be responsible under this article for paying the costs of transporting any delinquent juvenile to the receiving state or of returning any delinquent juvenile to the sending state. ARTICLE VIII—Responsibility for Costs (a) That the provisions of articles IV (b), V (b) and VII (d) of this compact shall not be construed to alter or affect any internal relationship among the departments, agencies and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor. (b) That nothing in this compact shall be construed to prevent any party state or subdivision thereof from asserting any right against any person, agency or other entity in regard to costs for which such party state or subdivision thereof may be responsible pursuant to articles IV (b), V (b) or VII (d) of this compact. ARTICLE IX—Detention Practices That, to every extent possible, it shall be the policy of states party to this compact that no juvenile or delinquent juvenile shall be placed or detained in any prison, jail or lockup nor be detained or transported in association with criminal, vicious or dissolute persons. (2006 Ed.) 13.24.010 ARTICLE X—Supplementary Agreements That the duly constituted administrative authorities, of a state party to this compact may enter into supplementary agreements with any other state or states party hereto for the cooperative care, treatment and rehabilitation of delinquent juveniles whenever they shall find that such agreements will improve the facilities or programs available for such care, treatment and rehabilitation. Such care, treatment and rehabilitation may be provided in an institution located within any state entering into such supplementary agreement. Such supplementary agreements shall: (1) Provide the rates to be paid for the care, treatment and custody of such delinquent juveniles, taking into consideration the character of facilities, services and subsistence furnished; (2) Provide that the delinquent juvenile shall be given a court hearing prior to his being sent to another state for care, treatment and custody; (3) Provide that the state receiving such a delinquent juvenile in one of its institutions shall act solely as agent for the state sending such delinquent juvenile; (4) Provide that the sending state shall at all times retain jurisdiction over delinquent juveniles sent to an institution in another state; (5) Provide for reasonable inspection of such institutions by the sending state; (6) Provide that the consent of the parent, guardian, person or agency entitled to the legal custody of said delinquent juvenile shall be secured prior to his being sent to another state; and (7) Make provision for such other matters and details as shall be necessary to protect the rights and equities of such delinquent juveniles and of the cooperating states. ARTICLE XI—Acceptance of Federal and Other Aid That any state party to this compact may accept any and all donations, gifts and grants of money, equipment and services from the federal or any local government, or any agency thereof and from any person, firm or corporation, for any of the purposes and functions of this compact, and may receive and utilize the same subject to the terms, conditions and regulations governing such donations, gifts and grants. ARTICLE XII—Compact Administrators That the governor of each state party to this compact shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this compact. ARTICLE XIII—Execution of Compact That this compact shall become operative immediately upon its execution by any state as between it and any other state or states so executing. When executed it shall have the full force and effect of law within such state, the form of execution to be in accordance with the laws of the executing state. [Title 13 RCW—page 13] 13.24.011 Title 13 RCW: Juvenile Courts and Juvenile Offenders ARTICLE XIV—Renunciation That this compact shall continue in force and remain binding upon each executing state until renounced by it. Renunciation of this compact shall be by the same authority which executed it, by sending six months’ notice in writing of its intention to withdraw from the compact to the other states party hereto. The duties and obligations of a renouncing state under article VII hereof shall continue as to parolees and probationers residing therein at the time of withdrawal until retaken or finally discharged. Supplementary agreements entered into under article X hereof shall be subject to renunciation as provided by such supplementary agreements, and shall not be subject to the six months’ renunciation notice of the present article. ARTICLE XV—Severability That the provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state participating therein, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. [1955 c 284 § 1.] Reviser’s note: This section is repealed on July 1, 2004, or upon adoption of the interstate compact for juveniles by thirty-five or more states, whichever occurs later. See 2003 c 180 § 3. 13.24.011 13.24.011 Execution of compact. (Contingent effective date.) EXECUTION OF THE COMPACT The governor is hereby authorized and directed to execute a compact on behalf of this state with any other state or states legally joining therein in the form substantially as follows. No provision of this compact will interfere with this state’s authority to determine policy regarding juvenile offenders and nonoffenders within this state. THE INTERSTATE COMPACT FOR JUVENILES ARTICLE I - Purpose The compacting states to this interstate compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents, and status offenders who are on probation or parole and who have absconded, escaped, or run away from supervision and control and in so doing have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence. The compacting states also recognize that congress, by enacting the crime control act, 4 U.S.C. Sec. 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime. [Title 13 RCW—page 14] It is the purpose of this compact, through means of joint and cooperative action among the compacting states, to: (1) Ensure that the adjudicated juveniles and status offenders subject to this compact are provided adequate supervision and services in the receiving state as ordered by the adjudicating judge or parole authority in the sending state; (2) ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected; (3) return juveniles who have run away, absconded, or escaped from supervision or control or have been accused of an offense to the state requesting their return; (4) make contracts for the cooperative institutionalization in public facilities in member states for delinquent youth needing special services; (5) provide for the effective tracking and supervision of juveniles; (6) equitably allocate the costs, benefits, and obligations of the compacting states; (7) establish procedures to manage the movement between states of juvenile offenders released to the community under the jurisdiction of courts, juvenile departments, or any other criminal or juvenile justice agency that has jurisdiction over juvenile offenders; (8) ensure immediate notice to jurisdictions where defined offenders may travel or relocate across state lines; (9) establish procedures to resolve pending charges (detainers) against juvenile offenders before transfer or release to the community under the terms of this compact; (10) establish a system of uniform data collection on information pertaining to juveniles subject to this compact that allows access by authorized juvenile justice and criminal justice officials, and regular reporting of compact activities to heads of state executive, judicial, and legislative branches and juvenile and criminal justice administrators; (11) monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance; (12) coordinate training and education regarding the regulation of interstate movement of juveniles for officials involved in such activity; and (13) coordinate the implementation and operation of the compact with the interstate compact for the placement of children, the interstate compact for adult offender supervision, and other compacts affecting juveniles particularly in those cases where concurrent or overlapping supervision issues arise. It is the policy of the compacting states that the activities conducted by the interstate commission created in this section are the formation of public policies and therefore are public business. Furthermore, the compacting states shall cooperate and observe their individual and collective duties and responsibilities for the prompt return and acceptance of juveniles subject to the provisions of this compact. The provisions of this compact shall be reasonably and liberally construed to accomplish the purposes and policies of the compact. ARTICLE II - Definitions As used in this compact, unless the context clearly requires a different construction: (1) "Bylaws" means those bylaws established by the interstate commission for its governance, or for directing or controlling its actions or conduct. (2) "Commissioner" means the voting representative of each compacting state appointed under Article III of this compact. (2006 Ed.) Interstate Compact on Juveniles (3) "Compact administrator" means the individual in each compacting state appointed under the terms of this compact, responsible for the administration and management of the state’s supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the interstate commission, and policies adopted by the state council under this compact. (4) "Compacting state" means any state that has enacted the enabling legislation for this compact. (5) "Court" means any court having jurisdiction over delinquent, neglected, or dependent children. (6) "Deputy compact administrator" means the individual, if any, in each compacting state appointed to act on behalf of a compact administrator under the terms of this compact responsible for the administration and management of the state’s supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the interstate commission, and policies adopted by the state council under this compact. (7) "Interstate commission" means the interstate commission for juveniles created by Article III of this compact. (8) "Juvenile" means any person defined as a juvenile in any member state or by the rules of the interstate commission, including: (a) An accused delinquent, meaning a person charged with an offense that, if committed by an adult, would be a criminal offense; (b) An adjudicated delinquent, meaning a person found to have committed an offense that, if committed by an adult, would be a criminal offense; (c) An accused status offender, meaning a person charged with an offense that would not be a criminal offense if committed by an adult; (d) An adjudicated status offender, meaning a person found to have committed an offense that would not be a criminal offense if committed by an adult; and (e) A nonoffender, meaning a person in need of supervision who has not been accused or adjudicated a status offender or delinquent. (9) "Noncompacting state" means any state that has not enacted the enabling legislation for this compact. (10) "Probation or parole" means any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states. (11) "Rule" means a written statement by the interstate commission issued under Article VI of this compact that is of general applicability, implements, interprets, or prescribes a policy or provision of the compact or an organizational, procedural, or practice requirement of the commission, and has the force and effect of statutory law in a compacting state. This includes the amendment, repeal, or suspension of an existing rule. (12) "State" means a state of the United States, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands. ARTICLE III - Interstate Commission for Juveniles (1) The compacting states hereby create the "interstate commission for juveniles." The interstate commission shall be a body corporate and joint agency of the compacting (2006 Ed.) 13.24.011 states. The interstate commission shall have all the responsibilities, powers, and duties set forth in this section, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact. (2) The interstate commission shall consist of commissioners appointed by the appropriate appointing authority in each state under the rules and requirements of each compacting state and in consultation with the state council for interstate juvenile supervision. The commissioner shall be the compact administrator, deputy compact administrator, or designee from that state who shall serve on the interstate commission in such capacity under the applicable law of the compacting state. (3) In addition to the commissioners who are the voting representatives of each state, the interstate commission shall include individuals who are not commissioners, but who are members of interested organizations. Such noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general, interstate compact for adult offender supervision, interstate compact for the placement of children, juvenile justice and juvenile corrections officials, and crime victims. All noncommissioner members of the interstate commission shall be nonvoting members. The interstate commission may provide in its bylaws for such additional nonvoting members, including members of other national organizations, in such numbers as shall be determined by the commission. (4) Each compacting state represented at any meeting of the commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the interstate commission. (5) The interstate commission shall meet at least once each calendar year. The chair may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public. (6) The interstate commission shall establish an executive committee, which shall include commission officers, members, and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the interstate commission during periods when the interstate commission is not in session, with the exception of rule making and/or amendment to the compact. The executive committee shall oversee the day-to-day activities of the administration of the compact managed by an executive director and interstate commission staff, administer enforcement and compliance with the compact, its bylaws, and rules, and perform such other duties as directed by the interstate commission or set forth in the bylaws. (7) Each member of the interstate commission may cast a vote to which that compacting state is entitled and to participate in the business and affairs of the interstate commission. A member shall vote in person and shall not delegate a vote to another compacting state. However, a commissioner, in consultation with the state council, shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specified meeting. The bylaws may provide for [Title 13 RCW—page 15] 13.24.011 Title 13 RCW: Juvenile Courts and Juvenile Offenders members’ participation in meetings by telephone or other means of telecommunication or electronic communication. (8) The interstate commission’s bylaws shall establish conditions and procedures under which the interstate commission shall make its information and official records available to the public for inspection or copying. The interstate commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests. (9) Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The interstate commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to: (a) Relate solely to the interstate commission’s internal personnel practices and procedures; (b) Disclose matters specifically exempted from disclosure by statute; (c) Disclose trade secrets or commercial or financial information that is privileged or confidential; (d) Involve accusing any person of a crime, or formally censuring any person; (e) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; (f) Disclose investigative records compiled for law enforcement purposes; (g) Disclose information contained in or related to examination, operating, or condition reports prepared by, or on behalf of or for the use of, the interstate commission with respect to a regulated person or entity for the purpose of regulation or supervision of such person or entity; (h) Disclose information, the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or (i) Specifically relate to the interstate commission’s issuance of a subpoena, or its participation in a civil action or other legal proceeding. (10) For every closed meeting, the interstate commission’s legal counsel shall publicly certify that, in the legal counsel’s opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The interstate commission shall keep minutes that fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefore, including a description of each of the views expressed on any item and the record of any roll call vote reflected in the vote of each member on the question. All documents considered in connection with any action shall be identified in the minutes. (11) The interstate commission shall collect standardized data concerning the interstate movement of juveniles as directed through its rules that specify the data to be collected, the means of collection and data exchange, and reporting requirements. Such methods of data collection, exchange, and reporting shall insofar as is reasonably possible conform to current technology and coordinate its information functions with the appropriate repository of records. [Title 13 RCW—page 16] ARTICLE IV - Powers and Duties of the Interstate Commission The commission has the following powers and duties: (1) Provide for dispute resolution among compacting states; (2) Adopt rules to effect the purposes and obligations of this compact which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact; (3) Oversee, supervise, and coordinate the interstate movement of juveniles subject to this compact and any bylaws adopted and rules adopted by the interstate commission; (4) Enforce compliance with the compact provisions, the rules adopted by the interstate commission, and the bylaws, using all necessary and proper means, including but not limited to the use of judicial process; (5) Establish and maintain offices that are located within one or more of the compacting states; (6) Purchase and maintain insurance and bonds; (7) Borrow, accept, hire, or contract for personnel services; (8) Establish and appoint committees and hire staff that it deems necessary to carry out its functions including, but not limited to, an executive committee as required by Article III of this compact that may act on behalf of the interstate commission in carrying out its powers and duties; (9) Elect or appoint officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties and determine their qualifications, and to establish the interstate commission’s personnel policies and programs relating to inter alia, conflicts of interest, rates of compensation, and qualifications of personnel; (10) Accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, use, and dispose of the donations and grants; (11) Lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, real, personal, or mixed; (12) Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed; (13) Establish a budget and make expenditures and levy dues as provided in Article VIII of this compact; (14) Sue and be sued; (15) Adopt a seal and bylaws governing the management and operation of the interstate commission; (16) Perform such functions as may be necessary or appropriate to achieve the purposes of this compact; (17) Report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the interstate commission during the preceding year. Reports shall also include any recommendations adopted by the interstate commission; (18) Coordinate education, training, and public awareness regarding the interstate movement of juveniles for officials involved in such activity; (19) Establish uniform standards of the reporting, collecting, and exchanging of data; and (2006 Ed.) Interstate Compact on Juveniles (20) Maintain its corporate books and records in accordance with the bylaws. ARTICLE V - Organization and Operation of the Interstate Commission Section A. Bylaws The interstate commission shall, by a majority of the members present and voting, within twelve months after the first interstate commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to: (1) Establishing the fiscal year of the interstate commission; (2) Establishing an executive committee and such other committees as may be necessary; (3) Providing for the establishment of committees governing any general or specific delegation of any authority or function of the interstate commission; (4) Providing reasonable procedures for calling and conducting meetings of the interstate commission, and ensuring reasonable notice of each such meeting; (5) Establishing the titles and responsibilities of the officers of the interstate commission; (6) Providing a mechanism for concluding the operations of the interstate commission and the return of any surplus funds that may exist upon the termination of the compact after the payment and/or reserving of all of its debts and obligations; (7) Providing "start-up" rules for initial administration of the compact; and (8) Establishing standards and procedures for compliance and technical assistance in carrying out the compact. Section B. Officers and staff (1) The interstate commission shall, by a majority of the members, elect annually from among its members a chair and a vice-chair, each of whom has the authority and duties that are specified in the bylaws. The chair or, in the chair’s absence or disability, the vice-chair shall preside at all meetings of the interstate commission. The officers so elected shall serve without compensation or remuneration from the interstate commission. However, subject to the availability of budgeted funds, the officers shall be reimbursed for any ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the interstate commission. (2) The interstate commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions, and for such compensation as the interstate commission deems appropriate. The executive director shall serve as secretary to the interstate commission, but shall not be a member and shall hire and supervise such other staff as authorized by the interstate commission. Section C. Qualified immunity, defense, and indemnification (1) The commission’s executive director and employees are immune from suit and liability, either personally or in their official capacity, for any claim for damage to, loss of (2006 Ed.) 13.24.011 property, personal injury, or other civil liability caused or arising out of or relating to any actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities. However, any such person is not protected from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person. (2) The liability of any commissioner, or the employee or agent of a commissioner, acting within the scope of such person’s employment or duties for acts, errors, or omissions occurring within such person’s state may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees, and agents. Nothing in this subsection shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person. (3) The interstate commission shall defend the executive director or the employees or representatives of the interstate commission and, subject to the approval of the attorney general of the state represented by any commissioner of a compacting state, shall defend such commissioner or the commissioner’s representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities, if the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person. (4) The interstate commission shall indemnify and hold the commissioner of a compacting state, or the commissioner’s representatives or employees, or the interstate commission’s representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities, if the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons. ARTICLE VI - Rule-making Functions of the Interstate Commission (1) The interstate commission shall adopt and publish rules in order to effectively and efficiently achieve the purposes of the compact. (2) Rule making shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rule making shall substantially conform to the principles of the "model state administrative procedures act," 1981 Act, Uniform Laws Annotated, Vol. 15, p.1 (2000), or such other administrative procedures act, as the interstate commission deems appropriate consistent with due process requirements under the United States Constitution as now or hereafter interpreted by the United States supreme court. All rules and amendments become binding as of the date speci[Title 13 RCW—page 17] 13.24.011 Title 13 RCW: Juvenile Courts and Juvenile Offenders fied, as published with the final version of the rule as approved by the commission. (3) When adopting a rule, the interstate commission shall, at a minimum: (a) Publish the proposed rule’s entire text stating the reason or reasons for that proposed rule; (b) Allow and invite any and all persons to submit written data, facts, opinions, and arguments, which information shall be added to the record, and be made publicly available; (c) Provide an opportunity for an informal hearing if petitioned by ten or more persons; and (d) Adopt a final rule and its effective date, if appropriate, based on input from state or local officials, or interested parties. (4) The interstate commission shall allow, not later than sixty days after a rule is adopted, any interested person to file a petition in the United States district court for the District of Columbia or in the federal district court where the interstate commission’s principal office is located for judicial review of such rule. If the court finds that the interstate commission’s action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the model state administrative procedures act. (5) If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that rule to have no further force and effect in any compacting state. (6) The existing rules governing the operation of the interstate compact on juveniles superseded by chapter 180, Laws of 2003 shall be null and void twelve months after the first meeting of the interstate commission created under this section. (7) Upon determination by the interstate commission that a state of emergency exists, it may adopt an emergency rule that becomes effective immediately upon adoption. However, the usual rule-making procedures shall be retroactively applied to the rule as soon as reasonably possible, but no later than ninety days after the effective date of the emergency rule. ARTICLE VII - Oversight, Enforcement, and Dispute Resolution by the Interstate Commission Section A. Oversight (1) The interstate commission shall oversee the administration and operations of the interstate movement of juveniles subject to this compact in the compacting states and shall monitor such activities being administered in noncompacting states that may significantly affect compacting states. (2) The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact’s purposes and intent. The provisions of this compact and the rules adopted under this section shall be received by all the judges, public officers, commissions, and departments of the state government as evidence of the authorized statute and administrative rules. All courts shall take judicial notice of the compact and the rules. In any judicial or administrative [Title 13 RCW—page 18] proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities, or actions of the interstate commission, it shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes. Section B. Dispute resolution (1) The compacting states shall report to the interstate commission on all issues and activities necessary for the administration of the compact as well as issues and activities pertaining to compliance with the compact and its bylaws and rules. (2) The interstate commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues that are subject to the compact and that may arise among compacting states and between compacting and noncompacting states. The commission shall adopt a rule providing for both mediation and binding dispute resolution for disputes among the compacting states. (3) The interstate commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact using any or all means set forth in Article XI of this compact. ARTICLE VIII - Finance (1) The interstate commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities. (2) The interstate commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the interstate commission and its staff which must be in a total amount sufficient to cover the interstate commission’s annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the interstate commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state and shall adopt a rule binding upon all compacting states that governs the assessment. (3) The interstate commission shall not incur any obligations of any kind before securing the funds adequate to meet the same; nor shall the interstate commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state. (4) The interstate commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the interstate commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the interstate commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the interstate commission. ARTICLE IX - The State Council Each member state shall create a state council for interstate juvenile supervision. While each state may determine the membership of its own state council, its membership must (2006 Ed.) Interstate Compact on Juveniles include at least one representative from the legislative, judicial, and executive branches of government, victims groups, and the compact administrator, deputy compact administrator, or designee. Each compacting state retains the right to determine the qualifications of the compact administrator or deputy compact administrator. Each state council will advise and may exercise oversight and advocacy concerning that state’s participation in interstate commission activities and other duties as may be determined by that state, including but not limited to development of policy concerning operations and procedures of the compact within that state. Pursuant to this compact, the governor shall designate an individual who shall be the compact administrator and who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms of the compact. The governor shall designate the compact administrator from a list of six individuals, three of whom are recommended by the Washington association of juvenile court administrators and three of whom are recommended by the juvenile rehabilitation administration of the department of social and health services. The administrator shall serve subject to the pleasure of the governor. The administrator shall cooperate with all departments, agencies, and officers of and in the government of this state and its subdivisions in facilitating the proper administration of the compact or of any supplementary agreement or agreements entered into by this state. ARTICLE X - Compacting States, Effective Date, and Amendment (1) Any state, the District of Columbia or its designee, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands as defined in Article II of this compact is eligible to become a compacting state. (2) The compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five of the states. The initial effective date shall be the later of July 1, 2004, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter, it shall become effective and binding as to any other compacting state upon enactment of the compact into law by that state. The governors of nonmember states or their designees shall be invited to participate in the activities of the interstate commission on a nonvoting basis before adoption of the compact by all states and territories of the United States. (3) The interstate commission may propose amendments to the compact for enactment by the compacting states. No amendment shall become effective and binding upon the interstate commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states. ARTICLE XI - Withdrawal, Default, Termination, and Judicial Enforcement Section A. Withdrawal (1) Once effective, the compact shall continue in force and remain binding upon each and every compacting state. However, a compacting state may withdraw from the com(2006 Ed.) 13.24.011 pact by repealing the statute that enacted the compact into law. (2) The effective date of withdrawal is the effective date of the repeal. (3) The withdrawing state shall immediately notify the chair of the interstate commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The interstate commission shall notify the other compacting states of the withdrawing state’s intent to withdraw within sixty days of its receipt thereof. (4) The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal. (5) Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the interstate commission. Section B. Technical Assistance, Fines, Suspension, Termination, and Default (1) If the interstate commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this compact, or the bylaws or adopted rules, the interstate commission may impose any or all of the following penalties: (a) Remedial training and technical assistance as directed by the interstate commission; (b) Alternative dispute resolution; (c) Fines, fees, and costs in such amounts as set by the interstate commission; and (d) Suspension or termination of membership in the compact, which shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted and the interstate commission has determined that the offending state is in default. Immediate notice of suspension shall be given by the interstate commission to the governor, the chief justice or the chief judicial officer of the state, the majority and minority leaders of the defaulting state’s legislature, and the state council. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, the bylaws, or rules and any other grounds designated in commission bylaws and rules. The interstate commission shall immediately notify the defaulting state in writing of the penalty imposed by the interstate commission and of the default pending a cure of the default. The commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the commission, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges, and benefits conferred by this compact shall be terminated from the effective date of termination. (2) Within sixty days of the effective date of termination of a defaulting state, the interstate commission shall notify the governor, the chief justice or chief judicial officer, the majority and minority leaders of the defaulting state’s legislature, and the state council of such termination. [Title 13 RCW—page 19] 13.24.020 Title 13 RCW: Juvenile Courts and Juvenile Offenders (3) The defaulting state is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination. (4) The interstate commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the interstate commission and the defaulting state. (5) Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the interstate commission pursuant to the rules. Section C. Judicial enforcement The interstate commission may, by majority vote of the members, initiate legal action in the United States district court for the District of Columbia or, at the discretion of the interstate commission, in the federal district where the interstate commission has its offices, to enforce compliance with the provisions of the compact, its rules, and bylaws against any compacting state in default. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorneys’ fees. Section D. Dissolution of compact (1) The compact dissolves effective upon the date of the withdrawal or default of the compacting state, which reduces membership in the compact to one compacting state. (2) Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the interstate commission shall be concluded and any surplus funds shall be distributed in accordance with the bylaws. ARTICLE XII - Severability and Construction (1) The provisions of this compact are severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact are enforceable. (2) The provisions of this compact shall be liberally construed to effectuate its purposes. ARTICLE XIII - Binding Effect of Compact and Other Laws (3) Upon the request of a party to a conflict over meaning or interpretation of interstate commission actions, and upon a majority vote of the compacting states, the interstate commission may issue advisory opinions regarding such meaning or interpretation. (4) In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the interstate commission shall be ineffective and such obligations, duties, powers, or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers, or jurisdiction are delegated by law in effect at the time this compact becomes effective. [2003 c 180 § 1.] Contingent effective date—2003 c 180: "This act takes effect July 1, 2004, or when the interstate compact for juveniles is adopted by thirty-five or more states, whichever occurs later." [2003 c 180 § 4.] 13.24.020 13.24.020 Juvenile compact administrator. (Contingent delayed repeal.) Pursuant to said compact, the governor is hereby authorized and empowered to designate an officer who shall be the compact administrator and who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms of the compact. Said compact administrator shall serve subject to the pleasure of the governor. The compact administrator is hereby authorized, empowered and directed to cooperate with all departments, agencies and officers of and in the government of this state and its subdivisions in facilitating the proper administration of the compact or of any supplementary agreement or agreements entered into by this state thereunder. [1955 c 284 § 2.] Reviser’s note: This section is repealed on July 1, 2004, or upon adoption of the interstate compact for juveniles by thirty-five or more states, whichever occurs later. See 2003 c 180 § 3. 13.24.021 13.24.021 Designation of state council. (Contingent effective date.) Pursuant to the compact created in RCW 13.24.011, the governor is hereby authorized and empowered to designate a state council as required in Article IX of the compact. [2003 c 180 § 2.] Contingent effective date—2003 c 180: See note following RCW 13.24.011. 13.24.030 Section A. Other laws (1) Nothing in this section prevents the enforcement of any other law of a compacting state that is consistent with this compact. (2) All compacting states’ laws other than state constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict. Section B. Binding effect of the compact (1) All lawful actions of the interstate commission, including all rules and bylaws adopted by the interstate commission, are binding upon the compacting states. (2) All agreements between the interstate commission and the compacting states are binding in accordance with their terms. [Title 13 RCW—page 20] 13.24.030 Supplementary agreements. The compact administrator is hereby authorized and empowered to enter into supplementary agreements with appropriate officials of other states pursuant to the compact. In the event that such supplementary agreement shall require or contemplate the use of any institution or facility of this state or require or contemplate the provision of any service by this state, said supplementary agreement shall have no force or effect until approved by the head of the department or agency under whose jurisdiction said institution or facility is operated or whose department or agency will be charged with the rendering of such service. [1955 c 284 § 3.] 13.24.035 13.24.035 Governor authorized and directed to execute supplementary compact—Contents. (1) The governor is hereby authorized and directed to execute a compact (2006 Ed.) Family Reconciliation Act amending and supplementing the interstate compact on juveniles on behalf of this state with any other state or states legally joining therein in the form substantially as set forth in subsection (2) of this section. (2)(a) All provisions and procedures of Articles V and VI of the interstate compact on juveniles shall be construed to apply to any juvenile charged with being a delinquent by reason of a violation of any criminal law. Any juvenile charged with being a delinquent by reason of violating any criminal law, shall be returned to the requesting state upon a requisition to the state where the juvenile may be found. A petition in such case shall be filed in a court of competent jurisdiction in the requesting state where the violation of criminal law is alleged to have been committed. The petition may be filed regardless of whether the juvenile has left the state before or after the filing of the petition. The requisition described in Article V of the compact shall be forwarded by the judge of the court in which the petition has been filed. (b) This amendment provides additional remedies and shall be binding only as among and between those party states which substantially execute the same. [1979 c 155 § 36.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.040 13.32A.042 13.32A.044 13.32A.050 13.32A.060 13.32A.065 13.32A.065 13.32A.070 13.32A.080 13.32A.082 13.32A.084 13.32A.086 13.32A.090 13.32A.095 13.32A.100 13.32A.110 13.32A.120 13.32A.125 13.24.040 13.24.040 Financial arrangements. The compact administrator, subject to the approval of the office of financial management, may make or arrange for any payments necessary to discharge any financial obligations imposed upon this state by the compact or by any supplementary agreement entered into thereunder. [1979 ex.s. c 86 § 1; 1955 c 284 § 4.] 13.32A.130 Severability—1979 ex.s. c 86: "If any provision of this 1979 act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1979 ex.s. c 86 § 9.] 13.32A.152 13.24.050 Fees. Any judge of this state who appoints counsel or guardian ad litem pursuant to the provision of the compact may, in his discretion, fix a fee to be paid out of funds available for disposition by the court but no such fee shall exceed twenty-five dollars. [1955 c 284 § 5.] 13.24.050 13.24.060 13.24.060 Responsibilities of state departments, agencies and officers. The courts, departments, agencies and officers of this state and its subdivisions shall enforce this compact and shall do all things appropriate to the effectuation of its purposes and intent which may be within their respective jurisdictions. [1955 c 284 § 6.] 13.24.900 Short title. This chapter may be cited as the "uniform interstate compact on juveniles." [1955 c 284 § 7.] 13.24.900 Chapter 13.32A Chapter 13.32A RCW FAMILY RECONCILIATION ACT (Formerly: Procedures for families in conflict) Sections 13.32A.010 13.32A.015 13.32A.020 13.32A.030 (2006 Ed.) Legislative findings and intent. At-risk youth services—Intent. Short title. Definitions—Regulating leave from semi-secure facility. 13.32A.140 13.32A.150 13.32A.160 13.32A.170 13.32A.175 13.32A.177 13.32A.178 13.32A.179 13.32A.180 13.32A.190 13.32A.191 13.32A.192 13.32A.194 13.32A.196 13.32A.197 13.32A.198 13.32A.200 13.32A.205 13.32A.210 13.32A.250 13.32A.300 Chapter 13.32A Family reconciliation services. Multidisciplinary team—Formation. Multidisciplinary team—Purpose—Authority. Officer taking child into custody—When authorized—Maximum time of custody—Transporting to crisis residential center—Report on suspected abuse or neglect. Officer taking child into custody—Procedure—Transporting to home, crisis residential center, custody of department, or juvenile detention facility. Officer taking child into custody—Placing in detention— Detention review hearing—Hearing on contempt (as amended by 2000 c 123). Officer taking child into custody—Placing in detention— Detention review hearing—Hearing on contempt (as amended by 2000 c 162). Immunity from liability for law enforcement officer and person with whom child is placed. Unlawful harboring of a minor—Penalty—Defense—Prosecution of adult for involving child in commission of offense. Providing shelter to minor—Requirement to notify parent, law enforcement, or department. Providing shelter to minor—Immunity from liability. Duty of law enforcement agencies to identify runaway children under RCW 43.43.510. Duty to inform parents—Transportation to child’s home or out-of-home placement—Notice to department. Unauthorized leave from crisis residential center—Notice to parents, law enforcement, and the department. Family reconciliation services for child in out-of-home placement. Interstate compact to apply, when. Out-of-home placement—Agreement, continuation—Petition to approve or continue. Temporary out-of-home placement in semi-secure crisis residential center. Child admitted to secure facility—Maximum hours of custody—Evaluation for semi-secure facility or release to department—Parental right to remove child—Reconciliation effort—Information to parent and child—Written statement of services and rights—Crisis residential center immunity from liability. Out-of-home placement—Child in need of services petition by department—Procedure. Out-of-home placement—Child in need of services petition by child or parent. Child in need of services petition—Service on parents— Notice to department—Required notice regarding Indian children. Out-of-home placement—Court action upon filing of child in need of services petition—Child placement. Out-of-home placement—Fact-finding hearing. Out-of-home placement—Contribution to child’s support— Enforcement of order. Out-of-home placement—Determination of support payments. Out-of-home placement—Child support—Exceptions. Out-of-home placement—Disposition hearing—Court order—Dispositional plan—Child subject to contempt proceedings—Dismissal of order at request of department or parent. Out-of-home placement—Court order—No placement in secure residence. Out-of-home placement dispositional order—Review hearings—Time limitation on out-of-home placement—Termination of placement at request of parent. At-risk youth—Petition by parent. At-risk youth petition—Prehearing procedures. At-risk youth petition—Court procedures. At-risk youth petition—Dispositional hearing. Disposition hearing—Additional orders for specialized treatment—Review hearings—Limitation—Use of state funds. At-risk youth—Review by court. Hearings under chapter—Time or place—Public excluded. Acceptance of petitions by court—Damages. Foster home placement—Parental preferences. Failure to comply with order as civil contempt—Motion— Penalties. No entitlement to services created by chapter. Consistency required in administration of statutes applicable to runaway youth, at-risk youth, and families in conflict: RCW 43.20A.770. Family preservation services: Chapter 74.14C RCW. Foster placement prevention: Chapter 74.14C RCW. Implementation of chapters 13.32A and 13.34 RCW: RCW 74.13.036. [Title 13 RCW—page 21] 13.32A.010 Title 13 RCW: Juvenile Courts and Juvenile Offenders Juvenile may be both dependent and an offender: RCW 13.04.300. Services for families-in-conflict: RCW 74.14A.020. Transitional treatment program for gang and drug-involved juvenile offenders: RCW 13.40.310. 13.32A.010 13.32A.010 Legislative findings and intent. The legislature finds that within any group of people there exists a need for guidelines for acceptable behavior and that, presumptively, the experience and maturity of parents make them better qualified to establish guidelines beneficial to and protective of their children. The legislature further finds that it is the right and responsibility of adults to establish laws for the benefit and protection of the society; and that, in the same manner, the right and responsibility for establishing reasonable guidelines for the family unit belongs to the adults within that unit. Further, absent abuse or neglect, parents have the right to exercise control over their children. The legislature reaffirms its position stated in RCW 13.34.020 that the family unit is the fundamental resource of American life which should be nurtured and that it should remain intact in the absence of compelling evidence to the contrary. The legislature recognizes there is a need for services and assistance for parents and children who are in conflict. These conflicts are manifested by children who exhibit various behaviors including: Running away, substance abuse, serious acting out problems, mental health needs, and other behaviors that endanger themselves or others. The legislature finds many parents do not know their rights regarding their adolescent children and law enforcement. Parents and courts feel they have insufficient legal recourse for the chronic runaway child who is endangering himself or herself through his or her behavior. The legislature further recognizes that for chronic runaways whose behavior puts them in serious danger of harming themselves or others, secure facilities must be provided to allow opportunities for assessment, treatment, and to assist parents and protect their children. The legislature intends to give tools to parents, courts, and law enforcement to keep families together and reunite them whenever possible. The legislature recognizes that some children run away to protect themselves from abuse or neglect in their homes. Abused and neglected children should be dealt with pursuant to chapter 13.34 RCW and it is not the intent of the legislature to handle dependency matters under this chapter. The legislature intends services offered under this chapter be on a voluntary basis whenever possible to children and their families and that the courts be used as a last resort. The legislature intends to increase the safety of children through the preservation of families and the provision of assessment, treatment, and placement services for children in need of services and at-risk youth including services and assessments conducted under chapter 13.32A RCW and RCW 74.13.033. Within available funds, the legislature intends to provide these services through crisis residential centers in which children and youth may safely reside for a limited period of time. The time in residence shall be used to conduct an assessment of the needs of the children, youth, and their families. The assessments are necessary to identify appropriate services and placement options that will reduce the likelihood that children will place themselves in dangerous or life-threatening situations. [Title 13 RCW—page 22] The legislature recognizes that crisis residential centers provide an opportunity for children to receive short-term necessary support and nurturing in cases where there may be abuse or neglect. The legislature intends that center staff provide an atmosphere of concern, care, and respect for children in the center and their parents. The legislature intends to provide for the protection of children who, through their behavior, are endangering themselves. The legislature intends to provide appropriate residential services, including secure facilities, to protect, stabilize, and treat children with serious problems. The legislature further intends to empower parents by providing them with the assistance they require to raise their children. [2000 c 123 § 1; 1995 c 312 § 1; 1979 c 155 § 15.] Short title—1995 c 312: "This act may be known and cited as the "Becca bill."" [1995 c 312 § 2.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.015 13.32A.015 At-risk youth services—Intent. It is the intent of the legislature to: (1) Preserve, strengthen, and reconcile families experiencing problems with at-risk youth; (2) Provide a legal process by which parents who are experiencing problems with at-risk youth can request and receive assistance from juvenile courts in providing appropriate care, treatment, and supervision to such youth; and (3) Assess the effectiveness of the family reconciliation services program. The legislature does not intend by this enactment to grant any parent the right to file an at-risk youth petition or receive juvenile court assistance in dealing with an at-risk youth. The purpose of chapter 276, Laws of 1990 is to create a process by which a parent of an at-risk youth may request and receive assistance subject to the availability of juvenile court services and resources. Recognizing that these services and resources are limited, the legislature intends that counties have the authority to impose reasonable limits on the utilization of juvenile court services and resources in matters related to atrisk youth. Any responsibilities imposed upon the department under chapter 276, Laws of 1990 shall be contingent upon the availability of funds specifically appropriated by the legislature for such purpose. [1990 c 276 § 1.] 13.32A.020 13.32A.020 Short title. This chapter shall be known and may be cited as the family reconciliation act. [1990 c 276 § 2; 1979 c 155 § 16.] Conflict with federal requirements—1990 c 276: "If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. The rules under this act shall meet federal requirements that are a necessary condition to the receipt of federal funds by the state." [1990 c 276 § 19.] Severability—1990 c 276: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1990 c 276 § 20.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. (2006 Ed.) Family Reconciliation Act 13.32A.030 13.32A.030 Definitions—Regulating leave from semi-secure facility. As used in this chapter the following terms have the meanings indicated unless the context clearly requires otherwise: (1) "Abuse or neglect" means the injury, sexual abuse, sexual exploitation, negligent treatment, or maltreatment of a child by any person under circumstances which indicate that the child’s health, welfare, and safety is harmed, excluding conduct permitted under RCW 9A.16.100. An abused child is a child who has been subjected to child abuse or neglect as defined in this section. (2) "Administrator" means the individual who has the daily administrative responsibility of a crisis residential center, or his or her designee. (3) "At-risk youth" means a juvenile: (a) Who is absent from home for at least seventy-two consecutive hours without consent of his or her parent; (b) Who is beyond the control of his or her parent such that the child’s behavior endangers the health, safety, or welfare of the child or any other person; or (c) Who has a substance abuse problem for which there are no pending criminal charges related to the substance abuse. (4) "Child," "juvenile," and "youth" mean any unemancipated individual who is under the chronological age of eighteen years. (5) "Child in need of services" means a juvenile: (a) Who is beyond the control of his or her parent such that the child’s behavior endangers the health, safety, or welfare of the child or other person; (b) Who has been reported to law enforcement as absent without consent for at least twenty-four consecutive hours on two or more separate occasions from the home of either parent, a crisis residential center, an out-of-home placement, or a court-ordered placement; and (i) Has exhibited a serious substance abuse problem; or (ii) Has exhibited behaviors that create a serious risk of harm to the health, safety, or welfare of the child or any other person; or (c)(i) Who is in need of: (A) Necessary services, including food, shelter, health care, clothing, or education; or (B) services designed to maintain or reunite the family; (ii) Who lacks access to, or has declined to utilize, these services; and (iii) Whose parents have evidenced continuing but unsuccessful efforts to maintain the family structure or are unable or unwilling to continue efforts to maintain the family structure. (6) "Child in need of services petition" means a petition filed in juvenile court by a parent, child, or the department seeking adjudication of placement of the child. (7) "Crisis residential center" means a secure or semisecure facility established pursuant to chapter 74.13 RCW. (8) "Custodian" means the person or entity who has the legal right to the custody of the child. (9) "Department" means the department of social and health services. (10) "Extended family member" means an adult who is a grandparent, brother, sister, stepbrother, stepsister, uncle, aunt, or first cousin with whom the child has a relationship (2006 Ed.) 13.32A.030 and is comfortable, and who is willing and available to care for the child. (11) "Guardian" means that person or agency that (a) has been appointed as the guardian of a child in a legal proceeding other than a proceeding under chapter 13.34 RCW, and (b) has the right to legal custody of the child pursuant to such appointment. The term "guardian" does not include a "dependency guardian" appointed pursuant to a proceeding under chapter 13.34 RCW. (12) "Multidisciplinary team" means a group formed to provide assistance and support to a child who is an at-risk youth or a child in need of services and his or her parent. The team shall include the parent, a department case worker, a local government representative when authorized by the local government, and when appropriate, members from the mental health and substance abuse disciplines. The team may also include, but is not limited to, the following persons: Educators, law enforcement personnel, probation officers, employers, church persons, tribal members, therapists, medical personnel, social service providers, placement providers, and extended family members. The team members shall be volunteers who do not receive compensation while acting in a capacity as a team member, unless the member’s employer chooses to provide compensation or the member is a state employee. (13) "Out-of-home placement" means a placement in a foster family home or group care facility licensed pursuant to chapter 74.15 RCW or placement in a home, other than that of the child’s parent, guardian, or legal custodian, not required to be licensed pursuant to chapter 74.15 RCW. (14) "Parent" means the parent or parents who have the legal right to custody of the child. "Parent" includes custodian or guardian. (15) "Secure facility" means a crisis residential center, or portion thereof, that has locking doors, locking windows, or a secured perimeter, designed and operated to prevent a child from leaving without permission of the facility staff. (16) "Semi-secure facility" means any facility, including but not limited to crisis residential centers or specialized foster family homes, operated in a manner to reasonably assure that youth placed there will not run away. Pursuant to rules established by the department, the facility administrator shall establish reasonable hours for residents to come and go from the facility such that no residents are free to come and go at all hours of the day and night. To prevent residents from taking unreasonable actions, the facility administrator, where appropriate, may condition a resident’s leaving the facility upon the resident being accompanied by the administrator or the administrator’s designee and the resident may be required to notify the administrator or the administrator’s designee of any intent to leave, his or her intended destination, and the probable time of his or her return to the center. (17) "Staff secure facility" means a structured group care facility licensed under rules adopted by the department with a ratio of at least one adult staff member to every two children. (18) "Temporary out-of-home placement" means an outof-home placement of not more than fourteen days ordered by the court at a fact-finding hearing on a child in need of services petition. [2000 c 123 § 2; 1997 c 146 § 1; 1996 c 133 § 9; 1995 c 312 § 3; 1990 c 276 § 3; 1985 c 257 § 6; 1979 c 155 § 17.] [Title 13 RCW—page 23] 13.32A.040 Title 13 RCW: Juvenile Courts and Juvenile Offenders Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. Severability—1985 c 257: See note following RCW 13.34.165. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.040 13.32A.040 Family reconciliation services. Families who are in conflict or who are experiencing problems with atrisk youth or a child who may be in need of services may request family reconciliation services from the department. The department may involve a local multidisciplinary team in its response in determining the services to be provided and in providing those services. Such services shall be provided to alleviate personal or family situations which present a serious and imminent threat to the health or stability of the child or family and to maintain families intact wherever possible. Family reconciliation services shall be designed to develop skills and supports within families to resolve problems related to at-risk youth, children in need of services, or family conflicts. These services may include but are not limited to referral to services for suicide prevention, psychiatric or other medical care, or psychological, mental health, drug or alcohol treatment, welfare, legal, educational, or other social services, as appropriate to the needs of the child and the family, and training in parenting, conflict management, and dispute resolution skills. [2000 c 123 § 3; 1995 c 312 § 5; 1994 c 304 § 3; 1990 c 276 § 4; 1981 c 298 § 1; 1979 c 155 § 18.] Short title—1995 c 312: See note following RCW 13.32A.010. Effective date—1994 c 304: See note following RCW 28A.635.060. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. Severability—1981 c 298: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1981 c 298 § 20.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.042 13.32A.042 Multidisciplinary team—Formation. (1)(a) The administrator of a crisis residential center may convene a multidisciplinary team, which is to be locally based and administered, at the request of a child placed at the center or the child’s parent. (b) If the administrator has reasonable cause to believe that a child is a child in need of services and the parent is unavailable or unwilling to continue efforts to maintain the family structure, the administrator shall immediately convene a multidisciplinary team. (c) A parent may disband a team twenty-four hours, excluding weekends and holidays, after receiving notice of formation of the team under (b) of this subsection unless a petition has been filed under RCW 13.32A.140. If a petition has been filed the parent may not disband the team until the hearing is held under RCW 13.32A.179. The court may allow the team to continue if an out-of-home placement is ordered under RCW 13.32A.179(3). Upon the filing of an at-risk [Title 13 RCW—page 24] youth or dependency petition the team shall cease to exist, unless the parent requests continuation of the team or unless the out-of-home placement was ordered under RCW 13.32A.179(3). (2) The secretary shall request participation of appropriate state agencies to assist in the coordination and delivery of services through the multidisciplinary teams. Those agencies that agree to participate shall provide the secretary all information necessary to facilitate forming a multidisciplinary team and the secretary shall provide this information to the administrator of each crisis residential center. (3) The secretary shall designate within each region a department employee who shall have responsibility for coordination of the state response to a request for creation of a multidisciplinary team. The secretary shall advise the administrator of each crisis residential center of the name of the appropriate employee. Upon a request of the administrator to form a multidisciplinary team the employee shall provide a list of the agencies that have agreed to participate in the multidisciplinary team. (4) The administrator shall also seek participation from representatives of mental health and drug and alcohol treatment providers as appropriate. (5) A parent shall be advised of the request to form a multidisciplinary team and may select additional members of the multidisciplinary team. The parent or child may request any person or persons to participate including, but not limited to, educators, law enforcement personnel, court personnel, family therapists, licensed health care practitioners, social service providers, youth residential placement providers, other family members, church representatives, and members of their own community. The administrator shall assist in obtaining the prompt participation of persons requested by the parent or child. (6) When an administrator of a crisis residential center requests the formation of a team, the state agencies must respond as soon as possible. [2000 c 123 § 4; 1995 c 312 § 13.] Short title—1995 c 312: See note following RCW 13.32A.010. 13.32A.044 13.32A.044 Multidisciplinary team—Purpose— Authority. (1) The purpose of the multidisciplinary team is to assist in a coordinated referral of the family to available social and health-related services. (2) The team shall have the authority to evaluate the juvenile, and family members, if appropriate and agreed to by the parent, and shall: (a) With parental input, develop a plan of appropriate available services and assist the family in obtaining those services; (b) Make a referral to the designated chemical dependency specialist or the county designated mental health professional, if appropriate; (c) Recommend no further intervention because the juvenile and his or her family have resolved the problem causing the family conflict; or (d) With the parent’s consent, work with them to achieve reconciliation of the child and family. (3) At the first meeting of the multidisciplinary team, it shall choose a member to coordinate the team’s efforts. The (2006 Ed.) Family Reconciliation Act parent member of the multidisciplinary team must agree with the choice of coordinator. The team shall meet or communicate as often as necessary to assist the family. (4) The coordinator of the multidisciplinary team may assist in filing a child in need of services petition when requested by the parent or child or an at-risk youth petition when requested by the parent. The multidisciplinary team shall have no standing as a party in any action under this title. (5) If the administrator is unable to contact the child’s parent, the multidisciplinary team may be used for assistance. If the parent has not been contacted within five days the administrator shall contact the department and request the case be reviewed for a dependency filing under chapter 13.34 RCW. [2000 c 123 § 5; 1995 c 312 § 14.] Short title—1995 c 312: See note following RCW 13.32A.010. 13.32A.050 13.32A.050 Officer taking child into custody—When authorized—Maximum time of custody—Transporting to crisis residential center—Report on suspected abuse or neglect. (1) A law enforcement officer shall take a child into custody: (a) If a law enforcement agency has been contacted by the parent of the child that the child is absent from parental custody without consent; or (b) If a law enforcement officer reasonably believes, considering the child’s age, the location, and the time of day, that a child is in circumstances which constitute a danger to the child’s safety or that a child is violating a local curfew ordinance; or (c) If an agency legally charged with the supervision of a child has notified a law enforcement agency that the child has run away from placement; or (d) If a law enforcement agency has been notified by the juvenile court that the court finds probable cause exists to believe that the child has violated a court placement order issued under this chapter or chapter 13.34 RCW or that the court has issued an order for law enforcement pick-up of the child under this chapter or chapter 13.34 RCW. (2) Law enforcement custody shall not extend beyond the amount of time reasonably necessary to transport the child to a destination authorized by law and to place the child at that destination. Law enforcement custody continues until the law enforcement officer transfers custody to a person, agency, or other authorized entity under this chapter, or releases the child because no placement is available. Transfer of custody is not complete unless the person, agency, or entity to whom the child is released agrees to accept custody. (3) If a law enforcement officer takes a child into custody pursuant to either subsection (1)(a) or (b) of this section and transports the child to a crisis residential center, the officer shall, within twenty-four hours of delivering the child to the center, provide to the center a written report detailing the reasons the officer took the child into custody. The center shall provide the department with a copy of the officer’s report. (4) If the law enforcement officer who initially takes the juvenile into custody or the staff of the crisis residential center have reasonable cause to believe that the child is absent from home because he or she is abused or neglected, a report shall be made immediately to the department. (2006 Ed.) 13.32A.060 (5) Nothing in this section affects the authority of any political subdivision to make regulations concerning the conduct of minors in public places by ordinance or other local law. (6) If a law enforcement officer has a reasonable suspicion that a child is being unlawfully harbored in violation of RCW 13.32A.080, the officer shall remove the child from the custody of the person harboring the child and shall transport the child to one of the locations specified in RCW 13.32A.060. (7) No child may be placed in a secure facility except as provided in this chapter. [2000 c 123 § 6; 1997 c 146 § 2; 1996 c 133 § 10; 1995 c 312 § 6; 1994 sp.s. c 7 § 505; 1990 c 276 § 5; 1986 c 288 § 1; 1985 c 257 § 7; 1981 c 298 § 2; 1979 c 155 § 19.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. Severability—1986 c 288: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1986 c 288 § 13.] Severability—1985 c 257: See note following RCW 13.34.165. Severability—1981 c 298: See note following RCW 13.32A.040. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.060 13.32A.060 Officer taking child into custody—Procedure—Transporting to home, crisis residential center, custody of department, or juvenile detention facility. (1) An officer taking a child into custody under RCW 13.32A.050(1) (a) or (b) shall inform the child of the reason for such custody and shall: (a) Transport the child to his or her home or to a parent at his or her place of employment, if no parent is at home. The parent may request that the officer take the child to the home of an adult extended family member, responsible adult, crisis residential center, the department, or a licensed youth shelter. In responding to the request of the parent, the officer shall take the child to a requested place which, in the officer’s belief, is within a reasonable distance of the parent’s home. The officer releasing a child into the custody of a parent, an adult extended family member, responsible adult, or a licensed youth shelter shall inform the person receiving the child of the reason for taking the child into custody and inform all parties of the nature and location of appropriate services available in the community; or (b) After attempting to notify the parent, take the child to a designated crisis residential center’s secure facility or a center’s semi-secure facility if a secure facility is full, not available, or not located within a reasonable distance if: (i) The child expresses fear or distress at the prospect of being returned to his or her home which leads the officer to believe there is a possibility that the child is experiencing some type of abuse or neglect; [Title 13 RCW—page 25] 13.32A.065 Title 13 RCW: Juvenile Courts and Juvenile Offenders (ii) It is not practical to transport the child to his or her home or place of the parent’s employment; or (iii) There is no parent available to accept custody of the child; or (c) After attempting to notify the parent, if a crisis residential center is full, not available, or not located within a reasonable distance, request the department to accept custody of the child. If the department determines that an appropriate placement is currently available, the department shall accept custody and place the child in an out-of-home placement. Upon accepting custody of a child from the officer, the department may place the child in an out-of-home placement for up to seventy-two hours, excluding Saturdays, Sundays, and holidays, without filing a child in need of services petition, obtaining parental consent, or obtaining an order for placement under chapter 13.34 RCW. Upon transferring a child to the department’s custody, the officer shall provide written documentation of the reasons and the statutory basis for taking the child into custody. If the department declines to accept custody of the child, the officer may release the child after attempting to take the child to the following, in the order listed: The home of an adult extended family member; a responsible adult; or a licensed youth shelter. The officer shall immediately notify the department if no placement option is available and the child is released. (2) An officer taking a child into custody under RCW 13.32A.050(1) (c) or (d) shall inform the child of the reason for custody. An officer taking a child into custody under RCW 13.32A.050(1)(c) may release the child to the supervising agency, or shall take the child to a designated crisis residential center’s secure facility. If the secure facility is not available, not located within a reasonable distance, or full, the officer shall take the child to a semi-secure crisis residential center. An officer taking a child into custody under RCW 13.32A.050(1)(d) may place the child in a juvenile detention facility as provided in RCW 13.32A.065 or a secure facility, except that the child shall be taken to detention whenever the officer has been notified that a juvenile court has entered a detention order under this chapter or chapter 13.34 RCW. (3) Every officer taking a child into custody shall provide the child and his or her parent or parents or responsible adult with a copy of the statement specified in RCW 13.32A.130(6). (4) Whenever an officer transfers custody of a child to a crisis residential center or the department, the child may reside in the crisis residential center or may be placed by the department in an out-of-home placement for an aggregate total period of time not to exceed seventy-two hours excluding Saturdays, Sundays, and holidays. Thereafter, the child may continue in out-of-home placement only if the parents have consented, a child in need of services petition has been filed, or an order for placement has been entered under chapter 13.34 RCW. (5) The department shall ensure that all law enforcement authorities are informed on a regular basis as to the location of all designated secure and semi-secure facilities within centers in their jurisdiction, where children taken into custody under RCW 13.32A.050 may be taken. [2000 c 162 § 11; 2000 c 162 § 1; 2000 c 123 § 7; 1997 c 146 § 3; 1996 c 133 § 11; 1995 c 312 § 7; 1994 sp.s. c 7 § 506; 1985 c 257 § 8; 1981 c 298 § 3; 1979 c 155 § 20.] [Title 13 RCW—page 26] Reviser’s note: This section was amended by 2000 c 123 § 7 and by 2000 c 162 § 11, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—2000 c 162 §§ 11-17: "Sections 11 through 17 of this act take effect July 1, 2002." [2000 c 162 § 21.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Severability—1985 c 257: See note following RCW 13.34.165. Severability—1981 c 298: See note following RCW 13.32A.040. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.065 13.32A.065 Officer taking child into custody—Placing in detention—Detention review hearing—Hearing on contempt (as amended by 2000 c 123). (1) ((A child may be placed in detention after being taken into custody pursuant to RCW 13.32A.050(1)(d).)) If a child is placed in detention under RCW 13.32A.050(1)(d), the court shall hold a detention review hearing within twenty-four hours, excluding Saturdays, Sundays, and holidays. The court shall release the child after twenty-four hours, excluding Saturdays, Sundays, and holidays, unless: (a) A motion and order to show why the child should not be held in contempt has been filed and served on the child at or before the detention hearing; and (b) The court believes that the child would not appear at a hearing on contempt. (2) If the court orders the child to remain in detention, the court shall set the matter for a hearing on contempt within seventy-two hours, excluding Saturdays, Sundays, and holidays. [2000 c 123 § 8; 1996 c 133 § 12; 1981 c 298 § 4.] 13.32A.065 13.32A.065 Officer taking child into custody—Placing in detention—Detention review hearing—Hearing on contempt (as amended by 2000 c 162). (1) A child may be placed in ((either (a) a secure facility that is a separate, secure section of a juvenile detention facility; or (b))) detention after being taken into custody pursuant to RCW 13.32A.050(1)(d). ((In no case may a child in contempt be confined in a secure facility that is freestanding outside a juvenile detention facility.)) The court shall hold a detention review hearing within twenty-four hours, excluding Saturdays, Sundays, and holidays. The court shall release the child after twenty-four hours, excluding Saturdays, Sundays, and holidays, unless: (a) A motion and order to show why the child should not be held in contempt has been filed and served on the child at or before the detention hearing; and (b) The court believes that the child would not appear at a hearing on contempt. (2) If the court ((finds that the conditions in subsection (1)(a) and (b) of this section have been met)) orders the child to remain in detention, the court ((may order the child to remain confined either in (a) a secure facility that is a separate, secure section of a juvenile detention facility; or (b) detention, and)) shall set the matter for a hearing on contempt within seventy-two hours, excluding Saturdays, Sundays, and holidays. ((In no case may a child in contempt be confined in a secure facility that is free-standing outside a juvenile detention facility.)) [2000 c 162 § 12; 2000 c 162 § 2; 1996 c 133 § 12; 1981 c 298 § 4.] Reviser’s note: RCW 13.32A.065 was amended by 2000 c 123 § 8 without cognizance of its amendment by 2000 c 162 §§ 2 and 12. For rule of construction concerning sections amended more than once during the same legislative session, see RCW 1.12.025. Effective date—2000 c 162 §§ 11-17: See note following RCW 13.32A.060. Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Severability—1981 c 298: See note following RCW 13.32A.040. 13.32A.070 13.32A.070 Immunity from liability for law enforcement officer and person with whom child is placed. (1) A (2006 Ed.) Family Reconciliation Act law enforcement officer acting in good faith pursuant to this chapter is immune from civil or criminal liability for such action. (2) A person with whom a child is placed pursuant to this chapter and who acts reasonably and in good faith is immune from civil or criminal liability for the act of receiving the child. The immunity does not release the person from liability under any other law. [1996 c 133 § 13; 1995 c 312 § 8; 1986 c 288 § 2; 1981 c 298 § 5; 1979 c 155 § 21.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Severability—1986 c 288: See note following RCW 13.32A.050. Severability—1981 c 298: See note following RCW 13.32A.040. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.080 13.32A.080 Unlawful harboring of a minor—Penalty—Defense—Prosecution of adult for involving child in commission of offense. (1)(a) A person commits the crime of unlawful harboring of a minor if the person provides shelter to a minor without the consent of a parent of the minor and after the person knows that the minor is away from the home of the parent, without the parent’s permission, and if the person intentionally: (i) Fails to release the minor to a law enforcement officer after being requested to do so by the officer; or (ii) Fails to disclose the location of the minor to a law enforcement officer after being requested to do so by the officer, if the person knows the location of the minor and had either taken the minor to that location or had assisted the minor in reaching that location; or (iii) Obstructs a law enforcement officer from taking the minor into custody; or (iv) Assists the minor in avoiding or attempting to avoid the custody of the law enforcement officer. (b) It is a defense to a prosecution under this section that the defendant had custody of the minor pursuant to a court order. (2) Unlawful harboring of a minor is punishable as a gross misdemeanor. (3) Any person who provides shelter to a child, absent from home, may notify the department’s local community service office of the child’s presence. (4) An adult responsible for involving a child in the commission of an offense may be prosecuted under existing criminal statutes including, but not limited to: (a) Distribution of a controlled substance to a minor, as defined in RCW 69.50.406; (b) Promoting prostitution as defined in chapter 9A.88 RCW; and (c) Complicity of the adult in the crime of a minor, under RCW 9A.08.020. [2000 c 123 § 9; 1994 sp.s. c 7 § 507; 1981 c 298 § 6; 1979 c 155 § 22.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Severability—1981 c 298: See note following RCW 13.32A.040. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. (2006 Ed.) 13.32A.090 13.32A.082 13.32A.082 Providing shelter to minor—Requirement to notify parent, law enforcement, or department. (1) Any person who, without legal authorization, provides shelter to a minor and who knows at the time of providing the shelter that the minor is away from the parent’s home without the permission of the parent, or other lawfully prescribed residence, shall promptly report the location of the child to the parent, the law enforcement agency of the jurisdiction in which the person lives, or the department. The report may be made by telephone or any other reasonable means. (2) Unless the context clearly requires otherwise, the definitions in this subsection apply throughout this section. (a) "Shelter" means the person’s home or any structure over which the person has any control. (b) "Promptly report" means to report within eight hours after the person has knowledge that the minor is away from a lawfully prescribed residence or home without parental permission. (3) When the department receives a report under subsection (1) of this section, it shall make a good faith attempt to notify the parent that a report has been received and offer services designed to resolve the conflict and accomplish a reunification of the family. [2000 c 123 § 10; 1996 c 133 § 14; 1995 c 312 § 34.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. 13.32A.084 13.32A.084 Providing shelter to minor—Immunity from liability. If a person provides the notice required in RCW 13.32A.082, he or she is immune from liability for any cause of action arising from providing shelter to the child. The immunity shall not extend to acts of intentional misconduct or gross negligence by the person providing the shelter. [1995 c 312 § 36.] Short title—1995 c 312: See note following RCW 13.32A.010. 13.32A.086 13.32A.086 Duty of law enforcement agencies to identify runaway children under RCW 43.43.510. Whenever a law enforcement agency receives a report from a parent that his or her child, or child over whom the parent has custody, has without permission of the parent left the home or residence lawfully prescribed for the child under circumstances where the parent believes that the child has run away from the home or the residence, the agency shall provide for placing information identifying the child in files under RCW 43.43.510. [1995 c 312 § 37.] Short title—1995 c 312: See note following RCW 13.32A.010. 13.32A.090 13.32A.090 Duty to inform parents—Transportation to child’s home or out-of-home placement—Notice to department. (1) The administrator of a designated crisis residential center or the department shall perform the duties under subsection (3) of this section: (a) Upon admitting a child who has been brought to the center by a law enforcement officer under RCW 13.32A.060; (b) Upon admitting a child who has run away from home or has requested admittance to the center; [Title 13 RCW—page 27] 13.32A.095 Title 13 RCW: Juvenile Courts and Juvenile Offenders (c) Upon learning from a person under RCW 13.32A.082 that the person is providing shelter to a child absent from home; or (d) Upon learning that a child has been placed with a responsible adult pursuant to RCW 13.32A.060. (2) Transportation expenses of the child shall be at the parent’s expense to the extent of his or her ability to pay, with any unmet transportation expenses assumed by the department. (3) When any of the circumstances under subsection (1) of this section are present, the administrator of a center or the department shall perform the following duties: (a) Immediately notify the child’s parent of the child’s whereabouts, physical and emotional condition, and the circumstances surrounding his or her placement; (b) Initially notify the parent that it is the paramount concern of the family reconciliation service personnel to achieve a reconciliation between the parent and child to reunify the family and inform the parent as to the procedures to be followed under this chapter; (c) Inform the parent whether a referral to children’s protective services has been made and, if so, inform the parent of the standard pursuant to RCW 26.44.020(12) governing child abuse and neglect in this state; and either (d)(i) Arrange transportation for the child to the residence of the parent, as soon as practicable, when the child and his or her parent agrees to the child’s return home or when the parent produces a copy of a court order entered under this chapter requiring the child to reside in the parent’s home; or (ii) Arrange transportation for the child to: (i) [(A)] An out-of-home placement which may include a licensed group care facility or foster family when agreed to by the child and parent; or (ii) [(B)] a certified or licensed mental health or chemical dependency program of the parent’s choice. (4) If the administrator of the crisis residential center performs the duties listed in subsection (3) of this section, he or she shall also notify the department that a child has been admitted to the crisis residential center. [2000 c 123 § 11; 1996 c 133 § 7; 1995 c 312 § 10; 1990 c 276 § 6; 1981 c 298 § 7; 1979 c 155 § 23.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. Severability—1981 c 298: See note following RCW 13.32A.040. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.095 13.32A.095 Unauthorized leave from crisis residential center—Notice to parents, law enforcement, and the department. The administrator of a crisis residential center shall notify parents, the appropriate law enforcement agency, and the department immediately as to any unauthorized leave from the center by a child placed at the center. [2000 c 123 § 12; 1996 c 133 § 15; 1995 c 312 § 21.] 13.32A.100 13.32A.100 Family reconciliation services for child in out-of-home placement. Where a child is placed in an outof-home placement pursuant to RCW 13.32A.090(3)(d)(ii), the department shall make available family reconciliation services in order to facilitate the reunification of the family. Any such placement may continue as long as there is agreement by the child and parent. [2000 c 123 § 13; 1996 c 133 § 16; 1981 c 298 § 8; 1979 c 155 § 24.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Severability—1981 c 298: See note following RCW 13.32A.040. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.110 13.32A.110 Interstate compact to apply, when. If a child who has a legal residence outside the state of Washington is admitted to a crisis residential center or is released by a law enforcement officer to the department, and the child refuses to return home, the provisions of RCW 13.24.010 shall apply. [1996 c 133 § 17; 1979 c 155 § 25.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Interstate compact on juveniles: Chapter 13.24 RCW. 13.32A.120 13.32A.120 Out-of-home placement—Agreement, continuation—Petition to approve or continue. (1) Where either a child or the child’s parent or the person or facility currently providing shelter to the child notifies the center that such individual or individuals cannot agree to the continuation of an out-of-home placement arrived at pursuant to RCW 13.32A.090(3)(d)(ii), the administrator of the center shall immediately contact the remaining party or parties to the agreement and shall attempt to bring about the child’s return home or to an alternative living arrangement agreeable to the child and the parent as soon as practicable. (2) If a child and his or her parent cannot agree to an outof-home placement under RCW 13.32A.090(3)(d)(ii), either the child or parent may file a child in need of services petition to approve an out-of-home placement or the parent may file an at-risk youth petition. (3) If a child and his or her parent cannot agree to the continuation of an out-of-home placement under RCW 13.32A.090(3)(d)(ii), either the child or parent may file a child in need of services petition to continue an out-of-home placement or the parent may file an at-risk youth petition. [2000 c 123 § 14; 1996 c 133 § 18; 1995 c 312 § 11; 1990 c 276 § 7; 1979 c 155 § 26.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.125 Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. [Title 13 RCW—page 28] 13.32A.125 Temporary out-of-home placement in semi-secure crisis residential center. In approving a petition under this chapter, a child may be placed in a semi(2006 Ed.) Family Reconciliation Act secure crisis residential center as a temporary out-of-home placement under the following conditions: (1) No other suitable out-of-home placement is available; (2) space is available in the semi-secure crisis residential center; and (3) no child will be denied access for a five-day placement due to this placement. Any child referred to a semi-secure crisis residential center by a law enforcement officer, the department, or himself or herself shall have priority over a temporary out-of-home placement in the facility. Any out-of-home placement order shall be subject to this priority, and the administrator of the semi-secure crisis residential center shall transfer the temporary out-of-home placement youth to a new out-of-home placement as necessary to ensure access for youth needing the semi-secure crisis residential center. [1995 c 312 § 44.] Short title—1995 c 312: See note following RCW 13.32A.010. 13.32A.130 13.32A.130 Child admitted to secure facility—Maximum hours of custody—Evaluation for semi-secure facility or release to department—Parental right to remove child—Reconciliation effort—Information to parent and child—Written statement of services and rights—Crisis residential center immunity from liability. (1) A child admitted to a secure facility shall remain in the facility for at least twenty-four hours after admission but for not more than five consecutive days. If the child admitted under this section is transferred between secure and semi-secure facilities, the aggregate length of time spent in all such centers or facilities may not exceed five consecutive days per admission. (2)(a)(i) The facility administrator shall determine within twenty-four hours after a child’s admission to a secure facility whether the child is likely to remain in a semi-secure facility and may transfer the child to a semi-secure facility or release the child to the department. The determination shall be based on: (A) The need for continued assessment, protection, and treatment of the child in a secure facility; and (B) the likelihood the child would remain at a semi-secure facility until his or her parents can take the child home or a petition can be filed under this title. (ii) In making the determination the administrator shall consider the following information if known: (A) The child’s age and maturity; (B) the child’s condition upon arrival at the center; (C) the circumstances that led to the child’s being taken to the center; (D) whether the child’s behavior endangers the health, safety, or welfare of the child or any other person; (E) the child’s history of running away; and (F) the child’s willingness to cooperate in the assessment. (b) If the administrator of a secure facility determines the child is unlikely to remain in a semi-secure facility, the administrator shall keep the child in the secure facility pursuant to this chapter and in order to provide for space for the child may transfer another child who has been in the facility for at least seventy-two hours to a semi-secure facility. The administrator shall only make a transfer of a child after determining that the child who may be transferred is likely to remain at the semi-secure facility. (c) A crisis residential center administrator is authorized to transfer a child to a crisis residential center in the area where the child’s parents reside or where the child’s lawfully prescribed residence is located. (2006 Ed.) 13.32A.130 (d) An administrator may transfer a child from a semisecure facility to a secure facility whenever he or she reasonably believes that the child is likely to leave the semi-secure facility and not return and after full consideration of all factors in (a)(i) and (ii) of this subsection. (3) If no parent is available or willing to remove the child during the first seventy-two hours following admission, the department shall consider the filing of a petition under RCW 13.32A.140. (4) Notwithstanding the provisions of subsection (1) of this section, the parents may remove the child at any time during the five-day period unless the staff of the crisis residential center has reasonable cause to believe that the child is absent from the home because he or she is abused or neglected or if allegations of abuse or neglect have been made against the parents. The department or any agency legally charged with the supervision of a child may remove a child from a crisis residential center at any time after the first twenty-four-hour period after admission has elapsed and only after full consideration by all parties of the factors in subsection (2)(a) of this section. (5) Crisis residential center staff shall make reasonable efforts to protect the child and achieve a reconciliation of the family. If a reconciliation and voluntary return of the child has not been achieved within forty-eight hours from the time of admission, and if the administrator of the center does not consider it likely that reconciliation will be achieved within the five-day period, then the administrator shall inform the parent and child of: (a) The availability of counseling services; (b) the right to file a child in need of services petition for an out-of-home placement, the right of a parent to file an at-risk youth petition, and the right of the parent and child to obtain assistance in filing the petition; (c) the right to request the facility administrator or his or her designee to form a multidisciplinary team; (d) the right to request a review of any out-of-home placement; (e) the right to request a mental health or chemical dependency evaluation by a county-designated professional or a private treatment facility; and (f) the right to request treatment in a program to address the child’s at-risk behavior under RCW 13.32A.197. (6) At no time shall information regarding a parent’s or child’s rights be withheld. The department shall develop and distribute to all law enforcement agencies and to each crisis residential center administrator a written statement delineating the services and rights. The administrator of the facility or his or her designee shall provide every resident and parent with a copy of the statement. (7) A crisis residential center and any person employed at the center acting in good faith in carrying out the provisions of this section are immune from criminal or civil liability for such actions. [2000 c 162 § 13; 2000 c 162 § 3; 2000 c 123 § 15; 1997 c 146 § 4; 1996 c 133 § 8; 1995 c 312 § 12; 1994 sp.s. c 7 § 508; 1992 c 205 § 206; 1990 c 276 § 8; 1985 c 257 § 9; 1981 c 298 § 9; 1979 c 155 § 27.] Reviser’s note: This section was amended by 2000 c 123 § 15 and by 2000 c 162 § 13, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—2000 c 162 §§ 11-17: See note following RCW 13.32A.060. [Title 13 RCW—page 29] 13.32A.140 Title 13 RCW: Juvenile Courts and Juvenile Offenders Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. Severability—1985 c 257: See note following RCW 13.34.165. Severability—1981 c 298: See note following RCW 13.32A.040. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.140 13.32A.140 Out-of-home placement—Child in need of services petition by department—Procedure. Unless the department files a dependency petition, the department shall file a child in need of services petition to approve an out-of-home placement on behalf of a child under any of the following sets of circumstances: (1) The child has been admitted to a crisis residential center or has been placed by the department in an out-ofhome placement, and: (a) The parent has been notified that the child was so admitted or placed; (b) The child cannot return home, and legal authorization is needed for out-of-home placement beyond seventy-two hours; (c) No agreement between the parent and the child as to where the child shall live has been reached; (d) No child in need of services petition has been filed by either the child or parent; (e) The parent has not filed an at-risk youth petition; and (f) The child has no suitable place to live other than the home of his or her parent. (2) The child has been admitted to a crisis residential center and: (a) Seventy-two hours, including Saturdays, Sundays, and holidays, have passed since such placement; (b) The staff, after searching with due diligence, have been unable to contact the parent of such child; and (c) The child has no suitable place to live other than the home of his or her parent. (3) An agreement between parent and child made pursuant to RCW 13.32A.090(3)(d)(ii) or pursuant to RCW 13.32A.120(1) is no longer acceptable to parent or child, and: (a) The party to whom the arrangement is no longer acceptable has so notified the department; (b) Seventy-two hours, including Saturdays, Sundays, and holidays, have passed since such notification; (c) No new agreement between parent and child as to where the child shall live has been reached; (d) No child in need of services petition has been filed by either the child or the parent; (e) The parent has not filed an at-risk youth petition; and (f) The child has no suitable place to live other than the home of his or her parent. Under the circumstances of subsections (1), (2), or (3) of this section, the child shall remain in an out-of-home placement until a child in need of services petition filed by the [Title 13 RCW—page 30] department on behalf of the child is reviewed and resolved by the juvenile court. The department may authorize emergency medical or dental care for a child admitted to a crisis residential center or placed in an out-of-home placement by the department. The state, when the department files a child in need of services petition under this section, shall be represented as provided for in RCW 13.04.093. [2000 c 123 § 16; 1997 c 146 § 5; 1996 c 133 § 19; 1995 c 312 § 15; 1990 c 276 § 9; 1981 c 298 § 10; 1979 c 155 § 28.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. Severability—1981 c 298: See note following RCW 13.32A.040. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.150 13.32A.150 Out-of-home placement—Child in need of services petition by child or parent. (1) Except as otherwise provided in this chapter, the juvenile court shall not accept the filing of a child in need of services petition by the child or the parents or the filing of an at-risk youth petition by the parent, unless verification is provided that the department has completed a family assessment. The family assessment shall involve the multidisciplinary team if one exists. The family assessment or plan of services developed by the multidisciplinary team shall be aimed at family reconciliation, reunification, and avoidance of the out-of-home placement of the child. If the department is unable to complete an assessment within two working days following a request for assessment the child or the parents may proceed under subsection (2) of this section or the parent may proceed under RCW 13.32A.191. (2) A child or a child’s parent may file with the juvenile court a child in need of services petition to approve an out-ofhome placement for the child. The department shall, when requested, assist either a parent or child in the filing of the petition. The petition must be filed in the county where the parent resides. The petition shall allege that the child is a child in need of services and shall ask only that the placement of a child outside the home of his or her parent be approved. The filing of a petition to approve the placement is not dependent upon the court’s having obtained any prior jurisdiction over the child or his or her parent, and confers upon the court a special jurisdiction to approve or disapprove an out-ofhome placement under this chapter. (3) A petition may not be filed if the child is the subject of a proceeding under chapter 13.34 RCW. [2000 c 123 § 17; 1996 c 133 § 20; 1995 c 312 § 16; 1992 c 205 § 208; 1990 c 276 § 10; 1989 c 269 § 1; 1981 c 298 § 11; 1979 c 155 § 29.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. Severability—1981 c 298: See note following RCW 13.32A.040. (2006 Ed.) Family Reconciliation Act Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.152 13.32A.152 Child in need of services petition—Service on parents—Notice to department—Required notice regarding Indian children. (1) Whenever a child in need of services petition is filed by: (a) A youth pursuant to RCW 13.32A.150; (b) the child or the child’s parent pursuant to RCW 13.32A.120; or (c) the department pursuant to RCW 13.32A.140, the filing party shall have a copy of the petition served on the parents of the youth. Service shall first be attempted in person and if unsuccessful, then by certified mail with return receipt. (2) Whenever a child in need of services petition is filed by a youth or parent pursuant to RCW 13.32A.150, the court shall immediately notify the department that a petition has been filed. (3)(a) Whenever the court or the petitioning party knows or has reason to know that an Indian child is involved, the petitioning party shall promptly provide notice to the child’s parent or Indian custodian and to the agent designated by the child’s Indian tribe to receive such notices. Notice shall be by certified mail with return receipt requested. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, notice shall be given to the secretary of the interior in the manner described in 25 C.F.R. 23.11. If the child may be a member of more than one tribe, the petitioning party shall send notice to all tribes the petitioner has reason to know may be affiliated with the child. (b) The notice shall: (i) Contain a statement notifying the parent or custodian and the tribe of the pending proceeding; and (ii) notify the tribe of the tribe’s right to intervene and/or request that the case be transferred to tribal court. [2004 c 64 § 5; 2000 c 123 § 18; 1996 c 133 § 21; 1995 c 312 § 4.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. 13.32A.160 13.32A.160 Out-of-home placement—Court action upon filing of child in need of services petition—Child placement. (1) When a proper child in need of services petition to approve an out-of-home placement is filed under RCW 13.32A.120, 13.32A.140, or 13.32A.150 the juvenile court shall: (a)(i) Schedule a fact-finding hearing to be held: (A) For a child who resides in a place other than his or her parent’s home and other than an out-of-home placement, within five calendar days unless the last calendar day is a Saturday, Sunday, or holiday, in which case the hearing shall be held on the preceding judicial day; or (B) for a child living at home or in an out-of-home placement, within ten days; and (ii) notify the parent, child, and the department of such date; (b) notify the parent of the right to be represented by counsel and, if indigent, to have counsel appointed for him or her by the court; (c) appoint legal counsel for the child; (d) inform the child and his or her parent of the legal consequences of the court approving or disapproving a child in need of services petition; (e) notify the parents of their rights under this chapter and chapters 11.88, 13.34, 70.96A, and 71.34 RCW, including the right to file an at-risk youth petition, the right to submit an application for admission of their child to a treat(2006 Ed.) 13.32A.170 ment facility for alcohol, chemical dependency, or mental health treatment, and the right to file a guardianship petition; and (f) notify all parties, including the department, of their right to present evidence at the fact-finding hearing. (2) Upon filing of a child in need of services petition, the child may be placed, if not already placed, by the department in a crisis residential center, foster family home, group home facility licensed under chapter 74.15 RCW, or any other suitable residence other than a HOPE center to be determined by the department. The court may place a child in a crisis residential center for a temporary out-of-home placement as long as the requirements of RCW 13.32A.125 are met. (3) If the child has been placed in a foster family home or group care facility under chapter 74.15 RCW, the child shall remain there, or in any other suitable residence as determined by the department, pending resolution of the petition by the court. Any placement may be reviewed by the court within three judicial days upon the request of the juvenile or the juvenile’s parent. [2000 c 123 § 19; 1997 c 146 § 6; 1996 c 133 § 22; 1995 c 312 § 17; 1990 c 276 § 11; 1989 c 269 § 2; 1979 c 155 § 30.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.170 13.32A.170 Out-of-home placement—Fact-finding hearing. (1) The court shall hold a fact-finding hearing to consider a proper child in need of services petition, giving due weight to the intent of the legislature that families have the right to place reasonable restrictions and rules upon their children, appropriate to the individual child’s developmental level. The court may appoint legal counsel and/or a guardian ad litem to represent the child and advise parents of their right to be represented by legal counsel. At the commencement of the hearing, the court shall advise the parents of their rights as set forth in RCW 13.32A.160(1). If the court approves or denies a child in need of services petition, a written statement of the reasons must be filed. (2) The court may approve an order stating that the child shall be placed in a residence other than the home of his or her parent only if it is established by a preponderance of the evidence, including a departmental recommendation for approval or dismissal of the petition, that: (a) The child is a child in need of services as defined in RCW 13.32A.030(5); (b) If the petitioner is a child, he or she has made a reasonable effort to resolve the conflict; (c) Reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child’s home and to make it possible for the child to return home; and (d) A suitable out-of-home placement resource is available. The court may not grant a petition filed by the child or the department if it is established that the petition is based only upon a dislike of reasonable rules or reasonable discipline established by the parent. [Title 13 RCW—page 31] 13.32A.175 Title 13 RCW: Juvenile Courts and Juvenile Offenders The court may not grant the petition if the child is the subject of a proceeding under chapter 13.34 RCW. (3) Following the fact-finding hearing the court shall: (a) Approve a child in need of services petition and, if appropriate, enter a temporary out-of-home placement for a period not to exceed fourteen days pending approval of a disposition decision to be made under RCW 13.32A.179(2); (b) approve an at-risk youth petition filed by the parents and dismiss the child in need of services petition; or (c) dismiss the petition. At any time the court may order the department to review the case to determine whether the case is appropriate for a dependency petition under chapter 13.34 RCW. [2000 c 123 § 20; 1996 c 133 § 23; 1995 c 312 § 18; 1989 c 269 § 3; 1987 c 524 § 1; 1985 c 257 § 10; 1984 c 188 § 1; 1981 c 298 § 12; 1979 c 155 § 31.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Severability—1985 c 257: See note following RCW 13.34.165. Severability—1981 c 298: See note following RCW 13.32A.040. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.175 13.32A.175 Out-of-home placement—Contribution to child’s support—Enforcement of order. In any proceeding in which the court approves an out-of-home placement, the court shall inquire into the ability of parents to contribute to the child’s support. If the court finds that the parents are able to contribute to the support of the child, the court shall order them to make such support payments as the court deems equitable. The court may enforce such an order by execution or in any way in which a court of equity may enforce its orders. However, payments shall not be required of a parent who has both opposed the placement and continuously sought reconciliation with, and the return of, the child. All orders entered in a proceeding approving out-of-home placement shall be in compliance with the provisions of RCW 26.23.050. [1995 c 312 § 19; 1987 c 435 § 13; 1981 c 298 § 15.] Short title—1995 c 312: See note following RCW 13.32A.010. Effective date—1987 c 435: See RCW 26.23.900. Severability—1981 c 298: See note following RCW 13.32A.040. 13.32A.177 13.32A.177 Out-of-home placement—Determination of support payments. A determination of support payments ordered under RCW 13.32A.175 shall be based upon chapter 26.19 RCW. [1995 c 312 § 22; 1988 c 275 § 14.] Short title—1995 c 312: See note following RCW 13.32A.010. Effective dates—Severability—1988 c 275: See notes following RCW 26.19.001. 13.32A.178 13.32A.178 Out-of-home placement—Child support—Exceptions. The department of social and health services shall promulgate rules that create good cause exceptions to the establishment and enforcement of child support from parents of children in out-of-home placement under chapter 13.34 or 13.32A RCW that do not violate federal funding requirements. The department shall present the rules and the department’s plan for implementation of the rules to [Title 13 RCW—page 32] the appropriate committees of the legislature prior to the 2002 legislative session. [2001 c 332 § 8.] 13.32A.179 Out-of-home placement—Disposition hearing—Court order—Dispositional plan—Child subject to contempt proceedings—Dismissal of order at request of department or parent. (1) A disposition hearing shall be held no later than fourteen days after the approval of the temporary out-of-home placement. The parents, child, and department shall be notified by the court of the time and place of the hearing. (2) At the conclusion of the disposition hearing, the court may: (a) Reunite the family and dismiss the petition; (b) approve an at-risk youth petition filed by the parents and dismiss the child in need of services petition; (c) approve an outof-home placement requested in the child in need of services petition by the parents; or (d) order an out-of-home placement at the request of the child or the department not to exceed ninety days. At any time the court may order the department to review the matter for purposes of filing a dependency petition under chapter 13.34 RCW. Whether or not the court approves or orders an out-of-home placement, the court may also order any conditions of supervision as set forth in RCW 13.32A.196(3). (3) The court may only enter an order under subsection (2)(d) of this section if it finds by clear, cogent, and convincing evidence that: (a)(i) The order is in the best interest of the family; (ii) the parents have not requested an out-of-home placement; (iii) the parents have not exercised any other right listed in RCW 13.32A.160(1)(e); (iv) the child has made reasonable efforts to resolve the problems that led to the filing of the petition; (v) the problems cannot be resolved by delivery of services to the family during continued placement of the child in the parental home; (vi) reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child’s home and to make it possible for the child to return home; and (vii) a suitable out-of-home placement resource is available; (b)(i) the order is in the best interest of the child; and (ii) the parents are unavailable; or (c) the parent’s actions cause an imminent threat to the child’s health or safety. (4) The court may order the department to submit a dispositional plan if such a plan would assist the court in ordering a suitable disposition in the case. The plan, if ordered, shall address the needs of the child, and the perceived needs of the parents if the order was entered under subsection (2)(d) of this section or if specifically agreed to by the parents. If the parents do not agree or the order was not entered under subsection (2)(d) of this section the plan may only make recommendations regarding services in which the parents may voluntarily participate. If the court orders the department to prepare a plan, the department shall provide copies of the plan to the parent, the child, and the court. If the parties or the court desire the department to be involved in any future proceedings or case plan development, the department shall be provided with timely notification of all court hearings. (5) A child who fails to comply with a court order issued under this section shall be subject to contempt proceedings, as provided in this chapter, but only if the noncompliance occurs within one year after the entry of the order. 13.32A.179 (2006 Ed.) Family Reconciliation Act (6) After the court approves or orders an out-of-home placement, the parents or the department may request, and the court may grant, dismissal of the child in need of services proceeding when it is not feasible for the department to provide services due to one or more of the following circumstances: (a) The child has been absent from court approved placement for thirty consecutive days or more; (b) The parents or the child, or all of them, refuse to cooperate in available, appropriate intervention aimed at reunifying the family; or (c) The department has exhausted all available and appropriate resources that would result in reunification. (7) The court shall dismiss a placement made under subsection (2)(c) of this section upon the request of the parents. [2000 c 123 § 21; 1997 c 146 § 7; 1996 c 133 § 24; 1995 c 312 § 20.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. 13.32A.180 Out-of-home placement—Court order— No placement in secure residence. (1) If the court orders a three-month out-of-home placement for the child, the court shall specify the person or agency with whom the child shall be placed, those parental powers which will be temporarily awarded to such agency or person including but not limited to the right to authorize medical, dental, and optical treatment, and parental visitation rights. Any agency or residence at which the child is placed must, at a minimum, comply with minimum standards for licensed family foster homes. (2) No placement made pursuant to this section may be in a secure residence as defined by the federal Juvenile Justice and Delinquency Prevention Act of 1974. [1995 c 312 § 23; 1979 c 155 § 32.] 13.32A.180 13.32A.191 return home is capricious. If out-of-home placement is continued, the court may modify the dispositional plan. (3) Out-of-home placement may not be continued past one hundred eighty days from the day the review hearing commenced. The court shall order the child to return to the home of the parent at the expiration of the placement. If an out-of-home placement is disapproved prior to one hundred eighty days, the court shall enter an order requiring the child to return to the home of the child’s parent. (4) The parents and the department may request, and the juvenile court may grant, dismissal of an out-of-home placement order when it is not feasible for the department to provide services due to one or more of the following circumstances: (a) The child has been absent from court approved placement for thirty consecutive days or more; (b) The parents or the child, or all of them, refuse to cooperate in available, appropriate intervention aimed at reunifying the family; or (c) The department has exhausted all available and appropriate resources that would result in reunification. (5) The court shall terminate a placement made under this section upon the request of a parent unless the placement is made pursuant to RCW 13.32A.179(3). (6) The court may dismiss a child in need of services petition filed by a parent at any time if the court finds good cause to believe that continuation of out-of-home placement would serve no useful purpose. (7) The court shall dismiss a child in need of services proceeding if the child is the subject of a proceeding under chapter 13.34 RCW. [1996 c 133 § 25; 1995 c 312 § 24; 1989 c 269 § 5; 1984 c 188 § 2; 1981 c 298 § 13; 1979 c 155 § 33.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Short title—1995 c 312: See note following RCW 13.32A.010. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Severability—1981 c 298: See note following RCW 13.32A.040. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.190 Out-of-home placement dispositional order—Review hearings—Time limitation on out-ofhome placement—Termination of placement at request of parent. (1) Upon making a dispositional order under RCW 13.32A.179, the court shall schedule the matter on the calendar for review within three months, advise the parties of the date thereof, appoint legal counsel and/or a guardian ad litem to represent the child at the review hearing, advise parents of their right to be represented by legal counsel at the review hearing, and notify the parties of their rights to present evidence at the hearing. Where resources are available, the court shall encourage the parent and child to participate in programs for reconciliation of their conflict. (2) At the review hearing, the court shall approve or disapprove the continuation of the dispositional plan in accordance with this chapter. The court shall determine whether reasonable efforts have been made to reunify the family and make it possible for the child to return home. The court shall discontinue the placement and order that the child return home if the court has reasonable grounds to believe that the parents have made reasonable efforts to resolve the conflict and the court has reason to believe that the child’s refusal to 13.32A.191 At-risk youth—Petition by parent. (1) A child’s parent may file with the juvenile court a petition in the interest of a child alleged to be an at-risk youth. The department shall, when requested, assist the parent in filing the petition. The petition shall be filed in the county where the petitioner resides. The petition shall set forth the name, age, and residence of the child and the names and residence of the child’s parents and shall allege that: (a) The child is an at-risk youth; (b) The petitioner has the right to legal custody of the child; (c) Court intervention and supervision are necessary to assist the parent to maintain the care, custody, and control of the child; and (d) Alternatives to court intervention have been attempted or there is good cause why such alternatives have not been attempted. (2) The petition shall set forth facts that support the allegations in this section and shall generally request relief available under this chapter. The petition need not specify any proposed disposition following adjudication of the petition. The filing of an at-risk youth petition is not dependent upon 13.32A.190 (2006 Ed.) 13.32A.191 [Title 13 RCW—page 33] 13.32A.192 Title 13 RCW: Juvenile Courts and Juvenile Offenders the court’s having obtained any prior jurisdiction over the child or his or her parent and confers upon the court the special jurisdiction to assist the parent in maintaining parental authority and responsibility for the child. (3) A petition may not be filed if a dependency petition is pending under chapter 13.34 RCW. [2000 c 123 § 22; 1995 c 312 § 25.] Short title—1995 c 312: See note following RCW 13.32A.010. 13.32A.192 13.32A.192 At-risk youth petition—Prehearing procedures. (1) When a proper at-risk youth petition is filed by a child’s parent under this chapter, the juvenile court shall: (a)(i) Schedule a fact-finding hearing to be held: (A) For a child who resides in a place other than his or her parent’s home and other than an out-of-home placement, within five calendar days unless the last calendar day is a Saturday, Sunday, or holiday, in which case the hearing shall be held on the preceding judicial day; or (B) for a child living at home or in an out-of-home placement, within ten days; and (ii) notify the parent and the child of such date; (b) Notify the parent of the right to be represented by counsel at the parent’s own expense; (c) Appoint legal counsel for the child; (d) Inform the child and his or her parent of the legal consequences of the court finding the child to be an at-risk youth; and (e) Notify the parent and the child of their rights to present evidence at the fact-finding hearing. (2) Unless out-of-home placement of the child is otherwise authorized or required by law, the child shall reside in the home of his or her parent or in an out-of-home placement requested by the parent or child and approved by the parent. (3) If upon sworn written or oral declaration of the petitioning parent, the court has reason to believe that a child has willfully and knowingly violated a court order issued pursuant to subsection (2) of this section, the court may issue an order directing law enforcement to take the child into custody and place the child in a juvenile detention facility or in a secure facility within a crisis residential center. If the child is placed in detention, a review shall be held as provided in RCW 13.32A.065. (4) If both a child in need of services petition and an atrisk youth petition have been filed with regard to the same child, the petitions and proceedings shall be consolidated as an at-risk youth petition. Pending a fact-finding hearing regarding the petition, the child may be placed in the parent’s home or in an out-of-home placement if not already placed in a temporary out-of-home placement pursuant to a child in need of services petition. The child or the parent may request a review of the child’s placement including a review of any court order requiring the child to reside in the parent’s home. [1997 c 146 § 8; 1996 c 133 § 26; 1995 c 312 § 26; 1990 c 276 § 12.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. [Title 13 RCW—page 34] 13.32A.194 13.32A.194 At-risk youth petition—Court procedures. (1) The court shall hold a fact-finding hearing to consider a proper at-risk youth petition. The court shall grant the petition and enter an order finding the child to be an at-risk youth if the allegations in the petition are established by a preponderance of the evidence, unless the child is the subject of a proceeding under chapter 13.34 RCW. If the petition is granted, the court shall enter an order requiring the child to reside in the home of his or her parent or in an out-of-home placement as provided in RCW 13.32A.192(2). (2) The court may order the department to submit a dispositional plan if such a plan would assist the court in ordering a suitable disposition in the case. If the court orders the department to prepare a plan, the department shall provide copies of the plan to the parent, the child, and the court. If the parties or the court desire the department to be involved in any future proceedings or case plan development, the department shall be provided timely notification of all court hearings. (3) If the court grants or denies an at-risk youth petition, a statement of the written reasons shall be entered into the records. If the court denies an at-risk youth petition, the court shall verbally advise the parties that the child is required to remain within the care, custody, and control of his or her parent. [2000 c 123 § 23; 1996 c 133 § 27; 1995 c 312 § 27; 1990 c 276 § 13.] Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. 13.32A.196 13.32A.196 At-risk youth petition—Dispositional hearing. (1) A dispositional hearing shall be held no later than fourteen days after the fact-finding hearing. Each party shall be notified of the time and date of the hearing. (2) At the dispositional hearing regarding an adjudicated at-risk youth, the court shall consider the recommendations of the parties and the recommendations of any dispositional plan submitted by the department. The court may enter a dispositional order that will assist the parent in maintaining the care, custody, and control of the child and assist the family to resolve family conflicts or problems. (3) The court may set conditions of supervision for the child that include: (a) Regular school attendance; (b) Counseling; (c) Participation in a substance abuse or mental health outpatient treatment program; (d) Reporting on a regular basis to the department or any other designated person or agency; and (e) Any other condition the court deems an appropriate condition of supervision including but not limited to: Employment, participation in an anger management program, and refraining from using alcohol or drugs. (4) No dispositional order or condition of supervision ordered by a court pursuant to this section shall include involuntary commitment of a child for substance abuse or mental health treatment. (2006 Ed.) Family Reconciliation Act (5) The court may order the parent to participate in counseling services or any other services for the child requiring parental participation. The parent shall cooperate with the court-ordered case plan and shall take necessary steps to help implement the case plan. The parent shall be financially responsible for costs related to the court-ordered plan; however, this requirement shall not affect the eligibility of the parent or child for public assistance or other benefits to which the parent or child may otherwise be entitled. (6) The parent may request dismissal of an at-risk youth proceeding or out-of-home placement at any time. Upon such a request, the court shall dismiss the matter and cease court supervision of the child unless: (a) A contempt action is pending in the case; (b) a petition has been filed under RCW 13.32A.150 and a hearing has not yet been held under RCW 13.32A.179; or (c) an order has been entered under RCW 13.32A.179(3) and the court retains jurisdiction under that subsection. The court may retain jurisdiction over the matter for the purpose of concluding any pending contempt proceedings, including the full satisfaction of any penalties imposed as a result of a contempt finding. (7) The court may order the department to monitor compliance with the dispositional order, assist in coordinating the provision of court-ordered services, and submit reports at subsequent review hearings regarding the status of the case. [2000 c 123 § 24; 1995 c 312 § 28; 1991 c 364 § 14; 1990 c 276 § 14.] Short title—1995 c 312: See note following RCW 13.32A.010. Findings—Construction—Conflict with federal requirements— 1991 c 364: See notes following RCW 70.96A.020. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. 13.32A.197 13.32A.197 Disposition hearing—Additional orders for specialized treatment—Review hearings—Limitation—Use of state funds. (1) In a disposition hearing, after a finding that a child is a child in need of services or an at-risk youth, the court may adopt the additional orders authorized under this section if it finds that the child involved in those proceedings is not eligible for inpatient treatment for a mental health or substance abuse condition and requires specialized treatment. The court may order that a child be placed in a staff secure facility, other than a crisis residential center, that will provide for the child’s participation in a program designed to remedy his or her behavioral difficulties or needs. The court may not enter this order unless, at the disposition hearing, it finds that the placement is clearly necessary to protect the child and that a less restrictive order would be inadequate to protect the child, given the child’s age, maturity, propensity to run away from home, past exposure to serious risk when the child ran away from home, and possible future exposure to serious risk should the child run away from home again. (2) The order shall require periodic court review of the placement, with the first review hearing conducted not more than thirty days after the date of the placement. At each review hearing the court shall advise the parents of their rights under RCW 13.32A.160(1), review the progress of the child, and determine whether the orders are still necessary for the protection of the child or a less restrictive placement (2006 Ed.) 13.32A.200 would be adequate. The court shall modify its orders as it finds necessary to protect the child. Reviews of orders adopted under this section are subject to the review provisions under RCW 13.32A.190 and 13.32.198 [13.32A.198]. (3) Placements in staff secure facilities under this section shall be limited to children who meet the statutory definition of a child in need of services or an at-risk youth as defined in RCW 13.32A.030. (4) State funds may only be used to pay for placements under this section if, and to the extent that, such funds are appropriated to expressly pay for them. [1996 c 133 § 3.] Findings—1996 c 133: "The legislature finds that no children should be exposed to the dangers inherent in living on the streets. The legislature further finds that there are children who are not mentally ill or chemically dependent who are living on the street in dangerous situations. These children through their at-risk behavior place themselves at great personal risk and danger. The legislature further finds that these children with at-risk behaviors should receive treatment for their problems that result in excessive opposition to parental authority." [1996 c 133 § 1.] Short title—1996 c 133: "This act shall be known and cited as the "Becca Too" bill." [1996 c 133 § 2.] Intent—Construction—1996 c 133: "It is the intent of the legislature that the changes in this act be construed to expedite the administrative and judicial processes provided for in the existing and amended statutes to assist in assuring that children placed in a crisis residential center have an appropriate placement available to them at the conclusion of their stay at the center." [1996 c 133 § 38.] 13.32A.198 13.32A.198 At-risk youth—Review by court. (1) Upon making a disposition regarding an adjudicated at-risk youth, the court shall schedule the matter on the calendar for review within three months, advise the parties of the date thereof, appoint legal counsel for the child, advise the parent of the right to be represented by legal counsel at the review hearing at the parent’s own expense, and notify the parties of their rights to present evidence at the hearing. (2) At the review hearing, the court shall approve or disapprove the continuation of court supervision in accordance with the goal of assisting the parent to maintain the care, custody, and control of the child. The court shall determine whether the parent and child are complying with the dispositional plan. If court supervision is continued, the court may modify the dispositional plan. (3) Court supervision of the child may not be continued past one hundred eighty days from the day the review hearing commenced unless the court finds, and the parent agrees, that there are compelling reasons for an extension of supervision. Any extension granted pursuant to this subsection shall not exceed ninety days. (4) The court may dismiss an at-risk youth proceeding at any time if the court finds good cause to believe that continuation of court supervision would serve no useful purpose or that the parent is not cooperating with the court-ordered case plan. The court shall dismiss an at-risk youth proceeding if the child is the subject of a proceeding under chapter 13.34 RCW. [1990 c 276 § 15.] Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. 13.32A.200 13.32A.200 Hearings under chapter—Time or place—Public excluded. All hearings pursuant to this chapter may be conducted at any time or place within the county [Title 13 RCW—page 35] 13.32A.205 Title 13 RCW: Juvenile Courts and Juvenile Offenders of the residence of the parent and such cases shall not be heard in conjunction with the business of any other division of the superior court. The public shall be excluded from hearings and only such persons who are found by the court to have a direct interest in the case or the work of the court shall be admitted to the proceedings. [2000 c 123 § 25; 1979 c 155 § 34.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.32A.205 13.32A.205 Acceptance of petitions by court—Damages. No superior court may refuse to accept for filing a properly completed and presented child in need of services petition or an at-risk youth petition. To be properly presented, the petitioner shall verify that the family assessment required under RCW 13.32A.150 has been completed. In the event of an improper refusal that is appealed and reversed, the petitioner shall be awarded actual damages, costs, and attorneys’ fees. [1995 c 312 § 32.] Short title—1995 c 312: See note following RCW 13.32A.010. 13.32A.210 13.32A.210 Foster home placement—Parental preferences. In an attempt to minimize the inherent intrusion in the lives of families involved in the foster care system and to maintain parental authority where appropriate, the department, absent good cause, shall follow the wishes of the natural parent regarding the placement of the child. Preferences such as family constellation, ethnicity, and religion shall be given consideration when matching children to foster homes. Parental authority is appropriate in areas that are not connected with the abuse or neglect that resulted in the dependency and should be integrated through the foster care team. [1990 c 284 § 24.] Finding—Effective date—1990 c 284: See notes following RCW 74.13.250. 13.32A.250 13.32A.250 Failure to comply with order as civil contempt—Motion—Penalties. (1) In all child in need of services proceedings and at-risk youth proceedings, the court shall verbally notify the parents and the child of the possibility of a finding of contempt for failure to comply with the terms of a court order entered pursuant to this chapter. Except as otherwise provided in this section, the court shall treat the parents and the child equally for the purposes of applying contempt of court processes and penalties under this section. (2) Failure by a party to comply with an order entered under this chapter is a civil contempt of court as provided in RCW 7.21.030(2)(e), subject to the limitations of subsection (3) of this section. (3) The court may impose remedial sanctions including a fine of up to one hundred dollars and confinement for up to seven days, or both for contempt of court under this section. (4) A child placed in confinement for contempt under this section shall be placed in confinement only in a secure juvenile detention facility operated by or pursuant to a contract with a county. (5) A motion for contempt may be made by a parent, a child, juvenile court personnel, or by any public agency, organization, or person having custody of the child under a court order adopted pursuant to this chapter. [Title 13 RCW—page 36] (6) Whenever the court finds probable cause to believe, based upon consideration of a motion for contempt and the information set forth in a supporting declaration, that a child has violated a placement order entered under this chapter, the court may issue an order directing law enforcement to pick up and take the child to detention. The order may be entered ex parte without prior notice to the child or other parties. Following the child’s admission to detention, a detention review hearing must be held in accordance with RCW 13.32A.065. [2000 c 162 § 14; 2000 c 162 § 4; 1998 c 296 § 37; 1996 c 133 § 28; 1995 c 312 § 29; 1990 c 276 § 16. Prior: 1989 c 373 § 16; 1989 c 269 § 4; 1981 c 298 § 14.] Effective date—2000 c 162 §§ 11-17: See note following RCW 13.32A.060. Findings—Intent—1998 c 296 §§ 36-39: See note following RCW 7.21.030. Findings—Intent—Part headings not law—Short title—1998 c 296: See notes following RCW 74.13.025. Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Short title—1995 c 312: See note following RCW 13.32A.010. Intent—1990 c 276: See RCW 13.32A.015. Conflict with federal requirements—Severability—1990 c 276: See notes following RCW 13.32A.020. Severability—1989 c 373: See RCW 7.21.900. Severability—1981 c 298: See note following RCW 13.32A.040. 13.32A.300 13.32A.300 No entitlement to services created by chapter. Nothing in this chapter shall be construed to create an entitlement to services nor to create judicial authority to order the provision at public expense of services to any person or family where the department has determined that such services are unavailable or unsuitable or that the child or family are not eligible for such services. [1995 c 312 § 43.] Short title—1995 c 312: See note following RCW 13.32A.010. Chapter 13.34 RCW JUVENILE COURT ACT—DEPENDENCY AND TERMINATION OF PARENT-CHILD RELATIONSHIP Chapter 13.34 Sections 13.34.010 13.34.020 13.34.025 13.34.030 13.34.040 13.34.050 13.34.055 13.34.060 13.34.062 13.34.065 13.34.067 13.34.070 13.34.080 13.34.090 13.34.092 13.34.094 13.34.100 Short title. Legislative declaration of family unit as resource to be nurtured—Rights of child. Child dependency cases—Coordination of services. Definitions. Petition to court to deal with dependent child—Application of Indian child welfare act. Court order to take child into custody, when—Hearing. Custody by law enforcement officer—Release from liability. Shelter care—Placement—Notice of custody and rights to be given to parties. Shelter care—Notice of custody and rights—Shelter care order. Shelter care—Recommendation as to further need—Release. Shelter care—Case conference—Service agreement. Summons when petition filed—Service procedure—Hearing, when—Contempt upon failure to appear—Required notice regarding Indian children. Summons when petition filed—Publication of notice. Rights under chapter proceedings. Rights under chapter proceedings—Appointment of counsel— Notice. Description of services provided to parents. Appointment of guardian ad litem—Background information—Rights—Appointment of counsel for child—Review. (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship 13.34.102 13.34.105 13.34.107 13.34.108 13.34.110 13.34.115 13.34.120 13.34.125 13.34.130 13.34.132 13.34.134 13.34.136 13.34.138 13.34.142 13.34.145 13.34.150 13.34.155 13.34.160 13.34.161 13.34.165 13.34.174 13.34.176 13.34.180 13.34.190 13.34.200 13.34.210 13.34.230 13.34.231 13.34.232 13.34.233 13.34.234 13.34.235 13.34.236 13.34.240 13.34.245 13.34.250 13.34.260 13.34.270 13.34.300 13.34.315 13.34.320 13.34.330 13.34.340 13.34.350 13.34.360 13.34.370 13.34.380 13.34.390 (2006 Ed.) Guardian ad litem—Training—Registry—Selection—Substitution—Exception. Guardian ad litem—Duties—Immunity—Access to information. Guardian ad litem—Ex parte communications—Removal. Guardian ad litem—Fees. Hearings—Fact-finding and disposition—Time and place, notice. Hearings—Public excluded when in the best interests of the child—Notes and records—Video recordings. Social study and reports made available at disposition hearing—Contents—Notice to parents. Voluntary adoption plan—Consideration of preferences for proposed placement. Order of disposition for a dependent child, alternatives—Petition seeking termination of parent-child relationship—Contact with siblings—Placement with relatives. Petition seeking termination of parent-child relationship— Requirements. Permanent placement of child. Permanency plan of care. Review hearings—Findings—Housing assistance. Current placement episode—Calculation. Permanency plan required—Permanency planning hearing— Time limits—Review hearing—Petition for termination of parental rights—Guardianship petition—Agency responsibility to provide services to parents—Due process rights. Modification of orders. Concurrent jurisdiction over nonparental actions for child custody. Order of support for dependent child. Order of support for dependent child—Noncompliance— Enforcement of judgment. Civil contempt—Grounds—Motion—Penalty—Detention review hearing. Order of alcohol or substance abuse diagnostic investigation and evaluation—Treatment plan—Breach of plan—Reports. Violation of alcohol or substance abuse treatment conditions—Hearing—Notice—Modification of order. Order terminating parent and child relationship—Petition— Filing—Allegations. Order terminating parent and child relationship—Findings. Order terminating parent and child relationship—Rights of parties when granted. Order terminating parent and child relationship—Custody where no one has parental rights. Guardianship for dependent child—Petition for—Notice to, intervention by, department. Guardianship for dependent child—Hearing—Rights of parties—Rules of evidence—Guardianship established, when. Guardianship for dependent child—Order, contents—Rights and duties of dependency guardian. Guardianship for dependent child—Modification or termination of order—Hearing—Termination of guardianship. Guardianship for dependent child—Dependency guardian may receive foster care payments. Guardianship for dependent child—Review hearing requirements not applicable—Exception. Guardianship for dependent child—Qualifications for dependency guardian—Consideration of preferences of parent. Acts, records, and proceedings of Indian tribe or band given full faith and credit. Voluntary consent to foster care placement for Indian child— Validation—Withdrawal of consent—Termination. Preference characteristics when placing Indian child in foster care home. Foster home placement—Parental preferences—Foster parent contact with birth parents encouraged. Child with developmental disability—Out-of-home placement—Permanency planning hearing. Relevance of failure to cause juvenile to attend school to neglect petition. Health care—Evaluation and treatment. Inpatient mental health treatment—When parental consent required—Hearing. Inpatient mental health treatment—Placement. Release of records—Disclosure to treating physician. Dependent children—Information sharing—Guidelines. Transfer of newborn to qualified person—Criminal liability— Notification to child protective services—Definitions. Evaluation of parties—Selection of evaluators. Visitation policies and protocols—Development—Elements. Comprehensive services for drug-affected and alcoholaffected mothers and infants. 13.34.800 13.34.801 13.34.802 13.34.803 13.34.805 13.34.8051 13.34.810 13.34.025 Drug-affected and alcohol-affected infants—Model project. Rules—Definition of "drug-affected infant." Rules—Definition of "alcohol-affected infant." Drug-affected and alcohol-affected infants—Comprehensive plan—Report. Drug-affected infants—Study. Drug-affected infants—Study—Alcohol-affected infants to be included. Implementation of chapter 314, Laws of 1998. Family preservation services: Chapter 74.14C RCW. Foster placement prevention: Chapter 74.14C RCW. Implementation of chapters 13.32A and 13.34 RCW: RCW 74.13.036. Information about rights: RCW 26.44.100 through 26.44.120. Juvenile may be both dependent and an offender: RCW 13.04.300. Out-of-home care—Social study required: RCW 74.13.065. Out-of-home placement: RCW 13.32A.140 through 13.32A.190. Procedures for families in conflict, interstate compact to apply, when: RCW 13.32A.110. Therapeutic family home program for youth in custody under chapter 13.34 RCW: RCW 74.13.170. Transitional living programs for youth in the process of being emancipated: RCW 74.13.037. 13.34.010 13.34.010 Short title. This chapter shall be known as the "Juvenile Court Act in Cases Relating to Dependency of a Child and the Termination of a Parent and Child Relationship". [1977 ex.s. c 291 § 29.] Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.020 13.34.020 Legislative declaration of family unit as resource to be nurtured—Rights of child. The legislature declares that the family unit is a fundamental resource of American life which should be nurtured. Toward the continuance of this principle, the legislature declares that the family unit should remain intact unless a child’s right to conditions of basic nurture, health, or safety is jeopardized. When the rights of basic nurture, physical and mental health, and safety of the child and the legal rights of the parents are in conflict, the rights and safety of the child should prevail. In making reasonable efforts under this chapter, the child’s health and safety shall be the paramount concern. The right of a child to basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of any proceeding under this chapter. [1998 c 314 § 1; 1990 c 284 § 31; 1987 c 524 § 2; 1977 ex.s. c 291 § 30.] Finding—Effective date—1990 c 284: See notes following RCW 74.13.250. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.025 13.34.025 Child dependency cases—Coordination of services. The department of social and health services shall develop methods for coordination of services to parents and children in child dependency cases. To the maximum extent possible under current funding levels, the department must: (1) Coordinate and integrate services to children and families, using service plans and activities that address the children’s and families’ multiple needs, including ensuring that siblings have regular visits with each other, as appropriate. Assessment criteria should screen for multiple needs; [Title 13 RCW—page 37] 13.34.030 Title 13 RCW: Juvenile Courts and Juvenile Offenders (2) Develop treatment plans for the individual needs of the client in a manner that minimizes the number of contacts the client is required to make; and (3) Access training for department staff to increase skills across disciplines to assess needs for mental health, substance abuse, developmental disabilities, and other areas. [2002 c 52 § 2; 2001 c 256 § 2.] Intent—2002 c 52: "It is the intent of the legislature to recognize that those sibling relationships a child has are an integral aspect of the family unit, which should be nurtured. The legislature presumes that nurturing the existing sibling relationships is in the best interest of a child, in particular in those situations where a child cannot be with their parents, guardians, or legal custodians as a result of court intervention." [2002 c 52 § 1.] Finding—2001 c 256: "The department of social and health services serves parents and children with multiple needs, which cannot be resolved in isolation. Further, the complexity of service delivery systems is a barrier for families in crisis when a child is removed or a parent is removed from the home. The department must undertake efforts to streamline the delivery of services." [2001 c 256 § 1.] 13.34.030 13.34.030 Definitions. For purposes of this chapter: (1) "Abandoned" means when the child’s parent, guardian, or other custodian has expressed, either by statement or conduct, an intent to forego, for an extended period, parental rights or responsibilities despite an ability to exercise such rights and responsibilities. If the court finds that the petitioner has exercised due diligence in attempting to locate the parent, no contact between the child and the child’s parent, guardian, or other custodian for a period of three months creates a rebuttable presumption of abandonment, even if there is no expressed intent to abandon. (2) "Child" and "juvenile" means any individual under the age of eighteen years. (3) "Current placement episode" means the period of time that begins with the most recent date that the child was removed from the home of the parent, guardian, or legal custodian for purposes of placement in out-of-home care and continues until: (a) The child returns home; (b) an adoption decree, a permanent custody order, or guardianship order is entered; or (c) the dependency is dismissed, whichever occurs first. (4) "Dependency guardian" means the person, nonprofit corporation, or Indian tribe appointed by the court pursuant to this chapter for the limited purpose of assisting the court in the supervision of the dependency. (5) "Dependent child" means any child who: (a) Has been abandoned; (b) Is abused or neglected as defined in chapter 26.44 RCW by a person legally responsible for the care of the child; or (c) Has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child’s psychological or physical development. (6) "Developmental disability" means a disability attributable to mental retardation, cerebral palsy, epilepsy, autism, or another neurological or other condition of an individual found by the secretary to be closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation, which disability originates before the individual attains age eighteen, which has contin[Title 13 RCW—page 38] ued or can be expected to continue indefinitely, and which constitutes a substantial handicap to the individual. (7) "Guardian" means the person or agency that: (a) Has been appointed as the guardian of a child in a legal proceeding other than a proceeding under this chapter; and (b) has the legal right to custody of the child pursuant to such appointment. The term "guardian" shall not include a "dependency guardian" appointed pursuant to a proceeding under this chapter. (8) "Guardian ad litem" means a person, appointed by the court to represent the best interests of a child in a proceeding under this chapter, or in any matter which may be consolidated with a proceeding under this chapter. A "courtappointed special advocate" appointed by the court to be the guardian ad litem for the child, or to perform substantially the same duties and functions as a guardian ad litem, shall be deemed to be guardian ad litem for all purposes and uses of this chapter. (9) "Guardian ad litem program" means a court-authorized volunteer program, which is or may be established by the superior court of the county in which such proceeding is filed, to manage all aspects of volunteer guardian ad litem representation for children alleged or found to be dependent. Such management shall include but is not limited to: Recruitment, screening, training, supervision, assignment, and discharge of volunteers. (10) "Indigent" means a person who, at any stage of a court proceeding, is: (a) Receiving one of the following types of public assistance: Temporary assistance for needy families, general assistance, poverty-related veterans’ benefits, food stamps or food stamp benefits transferred electronically, refugee resettlement benefits, medicaid, or supplemental security income; or (b) Involuntarily committed to a public mental health facility; or (c) Receiving an annual income, after taxes, of one hundred twenty-five percent or less of the federally established poverty level; or (d) Unable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel. (11) "Out-of-home care" means placement in a foster family home or group care facility licensed pursuant to chapter 74.15 RCW or placement in a home, other than that of the child’s parent, guardian, or legal custodian, not required to be licensed pursuant to chapter 74.15 RCW. (12) "Preventive services" means preservation services, as defined in chapter 74.14C RCW, and other reasonably available services, including housing services, capable of preventing the need for out-of-home placement while protecting the child. Housing services may include, but are not limited to, referrals to federal, state, local, or private agencies or organizations, assistance with forms and applications, or financial subsidies for housing. (13) "Shelter care" means temporary physical care in a facility licensed pursuant to RCW 74.15.030 or in a home not required to be licensed pursuant to RCW 74.15.030. (14) "Sibling" means a child’s birth brother, birth sister, adoptive brother, adoptive sister, half-brother, or half-sister, (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship or as defined by the law or custom of the Indian child’s tribe for an Indian child as defined in 25 U.S.C. Sec. 1903(4). (15) "Social study" means a written evaluation of matters relevant to the disposition of the case and shall contain the following information: (a) A statement of the specific harm or harms to the child that intervention is designed to alleviate; (b) A description of the specific services and activities, for both the parents and child, that are needed in order to prevent serious harm to the child; the reasons why such services and activities are likely to be useful; the availability of any proposed services; and the agency’s overall plan for ensuring that the services will be delivered. The description shall identify the services chosen and approved by the parent; (c) If removal is recommended, a full description of the reasons why the child cannot be protected adequately in the home, including a description of any previous efforts to work with the parents and the child in the home; the in-home treatment programs that have been considered and rejected; the preventive services that have been offered or provided and have failed to prevent the need for out-of-home placement, unless the health, safety, and welfare of the child cannot be protected adequately in the home; and the parents’ attitude toward placement of the child; (d) A statement of the likely harms the child will suffer as a result of removal; (e) A description of the steps that will be taken to minimize the harm to the child that may result if separation occurs including an assessment of the child’s relationship and emotional bond with any siblings, and the agency’s plan to provide ongoing contact between the child and the child’s siblings if appropriate; and (f) Behavior that will be expected before determination that supervision of the family or placement is no longer necessary. [2003 c 227 § 2; 2002 c 52 § 3; 2000 c 122 § 1; 1999 c 267 § 6; 1998 c 130 § 1; 1997 c 386 § 7; 1995 c 311 § 23; 1994 c 288 § 1; 1993 c 241 § 1; 1988 c 176 § 901; 1987 c 524 § 3; 1983 c 311 § 2; 1982 c 129 § 4; 1979 c 155 § 37; 1977 ex.s. c 291 § 31.] Intent—2003 c 227: See note following RCW 13.34.130. Intent—2002 c 52: See note following RCW 13.34.025. Findings—Intent—Severability—1999 c 267: See notes following RCW 43.20A.790. Conflict with federal requirements—1993 c 241: "If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. The rules under this act shall meet federal requirements that are a necessary condition to the receipt of federal funds by the state." [1993 c 241 § 5.] Severability—1988 c 176: See RCW 71A.10.900. Legislative finding—1983 c 311: "The legislature finds that in order for the state to receive federal funds for family foster care under Title IV-B and Title IV-E of the social security act, all children in family foster care must be subjected to periodic court review. Unfortunately, this includes children who are developmentally disabled and who are placed in family foster care solely because their parents have determined that the children’s service needs require out-of-home placement. Except for providing such needed services, the parents of these children are completely competent to care for the children. The legislature intends by this act to minimize the embarrassment and inconvenience of developmentally disabled persons and their families caused by complying with these federal requirements." [1983 c 311 § 1.] (2006 Ed.) 13.34.050 Severability—1982 c 129: See note following RCW 9A.04.080. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.040 13.34.040 Petition to court to deal with dependent child—Application of Indian child welfare act. (1) Any person may file with the clerk of the superior court a petition showing that there is within the county, or residing within the county, a dependent child and requesting that the superior court deal with such child as provided in this chapter. There shall be no fee for filing such petitions. (2) In counties having paid probation officers, these officers shall, to the extent possible, first determine if a petition is reasonably justifiable. Each petition shall be verified and contain a statement of facts constituting a dependency, and the names and residence, if known to the petitioner, of the parents, guardian, or custodian of the alleged dependent child. (3) Every petition filed in proceedings under this chapter shall contain a statement alleging whether the child is or may be an Indian child as defined in 25 U.S.C. Sec. 1903. If the child is an Indian child as defined under the Indian child welfare act, the provisions of the act shall apply. (4) Every order or decree entered under this chapter shall contain a finding that the Indian child welfare act does or does not apply. Where there is a finding that the Indian child welfare act does apply, the decree or order must also contain a finding that all notice requirements and evidentiary requirements under the Indian child welfare act have been satisfied. [2004 c 64 § 3; 2000 c 122 § 2; 1977 ex.s. c 291 § 32; 1913 c 160 § 5; RRS § 1987-5. Formerly RCW 13.04.060.] Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.050 13.34.050 Court order to take child into custody, when—Hearing. (Effective until January 1, 2007.) (1) The court may enter an order directing a law enforcement officer, probation counselor, or child protective services official to take a child into custody if: (a) A petition is filed with the juvenile court alleging that the child is dependent and that the child’s health, safety, and welfare will be seriously endangered if not taken into custody; (b) an affidavit or declaration is filed by the department in support of the petition setting forth specific factual information evidencing reasonable grounds that the child’s health, safety, and welfare will be seriously endangered if not taken into custody and at least one of the grounds set forth demonstrates a risk of imminent harm to the child. "Imminent harm" for purposes of this section shall include, but not be limited to, circumstances of sexual abuse, or sexual exploitation as defined in RCW 26.44.020; and (c) the court finds reasonable grounds to believe the child is dependent and that the child’s health, safety, and welfare will be seriously endangered if not taken into custody. (2) Any petition that does not have the necessary affidavit or declaration demonstrating a risk of imminent harm requires that the parents are provided notice and an opportunity to be heard before the order may be entered. [Title 13 RCW—page 39] 13.34.050 Title 13 RCW: Juvenile Courts and Juvenile Offenders (3) The petition and supporting documentation must be served on the parent, and if the child is in custody at the time the child is removed, on the entity with custody other than the parent. Failure to effect service does not invalidate the petition if service was attempted and the parent could not be found. [2000 c 122 § 3; 1998 c 328 § 1; 1979 c 155 § 38; 1977 ex.s. c 291 § 33.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.050 13.34.050 Court order to take child into custody, when—Hearing. (Effective January 1, 2007.) (1) The court may enter an order directing a law enforcement officer, probation counselor, or child protective services official to take a child into custody if: (a) A petition is filed with the juvenile court alleging that the child is dependent and that the child’s health, safety, and welfare will be seriously endangered if not taken into custody; (b) an affidavit or declaration is filed by the department in support of the petition setting forth specific factual information evidencing reasonable grounds that the child’s health, safety, and welfare will be seriously endangered if not taken into custody and at least one of the grounds set forth demonstrates a risk of imminent harm to the child. "Imminent harm" for purposes of this section shall include, but not be limited to, circumstances of sexual abuse, sexual exploitation as defined in RCW 26.44.020, and a parent’s failure to perform basic parental functions, obligations, and duties as the result of substance abuse; and (c) the court finds reasonable grounds to believe the child is dependent and that the child’s health, safety, and welfare will be seriously endangered if not taken into custody. (2) Any petition that does not have the necessary affidavit or declaration demonstrating a risk of imminent harm requires that the parents are provided notice and an opportunity to be heard before the order may be entered. (3) The petition and supporting documentation must be served on the parent, and if the child is in custody at the time the child is removed, on the entity with custody other than the parent. Failure to effect service does not invalidate the petition if service was attempted and the parent could not be found. [2005 c 512 § 9; 2000 c 122 § 3; 1998 c 328 § 1; 1979 c 155 § 38; 1977 ex.s. c 291 § 33.] Finding—Intent—Effective date—Short title—2005 c 512: See notes following RCW 26.44.100. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.055 13.34.055 Custody by law enforcement officer— Release from liability. (1) A law enforcement officer shall take into custody a child taken in violation of RCW 9A.40.060 or 9A.40.070. The law enforcement officer shall make every reasonable effort to avoid placing additional trauma on the child by obtaining such custody at times and in a manner least disruptive to the child. The law enforcement officer shall return the child to the person or agency having the right to physical custody unless the officer has reasonable grounds to believe the child should be taken into custody [Title 13 RCW—page 40] under RCW 13.34.050 or 26.44.050. If there is no person or agency having the right to physical custody available to take custody of the child, the officer may place the child in shelter care as provided in RCW 13.34.060. (2) A law enforcement officer or public employee acting reasonably and in good faith shall not be held liable in any civil action for returning the child to a person having the apparent right to physical custody. [1984 c 95 § 4.] Severability—1984 c 95: See note following RCW 9A.40.060. 13.34.060 13.34.060 Shelter care—Placement—Notice of custody and rights to be given to parties. (1) A child taken into custody pursuant to RCW 13.34.050 or 26.44.050 shall be immediately placed in shelter care. A child taken by a relative of the child in violation of RCW 9A.40.060 or 9A.40.070 shall be placed in shelter care only when permitted under RCW 13.34.055. (a) Unless there is reasonable cause to believe that the health, safety, or welfare of the child would be jeopardized or that the efforts to reunite the parent and child will be hindered, priority placement for a child in shelter care shall be with any person described in RCW 74.15.020(2)(a). The person must be willing and available to care for the child and be able to meet any special needs of the child. The person must be willing to facilitate the child’s visitation with siblings, if such visitation is part of the supervising agency’s plan or is ordered by the court. If a child is not initially placed with a relative pursuant to this section, the supervising agency shall make an effort within available resources to place the child with a relative on the next business day after the child is taken into custody. The supervising agency shall document its effort to place the child with a relative pursuant to this section. Nothing within this subsection (1)(a) establishes an entitlement to services or a right to a particular placement. (b) Whenever a child is taken into custody pursuant to this section, the supervising agency may authorize evaluations of the child’s physical or emotional condition, routine medical and dental examination and care, and all necessary emergency care. In no case may a child who is taken into custody pursuant to RCW 13.34.055, 13.34.050, or 26.44.050 be detained in a secure detention facility. No child may be held longer than seventy-two hours, excluding Saturdays, Sundays and holidays, after such child is taken into custody unless a court order has been entered for continued shelter care. The child and his or her parent, guardian, or custodian shall be informed that they have a right to a shelter care hearing. The court shall hold a shelter care hearing within seventy-two hours after the child is taken into custody, excluding Saturdays, Sundays, and holidays. If a parent, guardian, or legal custodian desires to waive the shelter care hearing, the court shall determine, on the record and with the parties present, whether such waiver is knowing and voluntary. (2) Whenever a child is taken into custody by child protective services pursuant to a court order issued under RCW 13.34.050 or when child protective services is notified that a child has been taken into custody pursuant to RCW 26.44.050 or 26.44.056, child protective services shall make reasonable efforts to inform the parents, guardian, or legal custodian of the fact that the child has been taken into custody, the reasons why the child was taken into custody, and (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship their legal rights under this title as soon as possible and in no event shall notice be provided more than twenty-four hours after the child has been taken into custody or twenty-four hours after child protective services has been notified that the child has been taken into custody. The notice of custody and rights may be given by any means reasonably certain of notifying the parents including, but not limited to, written, telephone, or in person oral notification. If the initial notification is provided by a means other than writing, child protective services shall make reasonable efforts to also provide written notification. [2002 c 52 § 4; 2000 c 122 § 4; 1999 c 17 § 2; 1998 c 328 § 2; 1990 c 246 § 1; 1987 c 524 § 4. Prior: 1984 c 188 § 3; 1984 c 95 § 5; 1983 c 246 § 1; 1982 c 129 § 5; 1979 c 155 § 39; 1977 ex.s. c 291 § 34.] Intent—2002 c 52: See note following RCW 13.34.025. Finding—1999 c 17: "The legislature has found that any intervention into the life of a child is also an intervention in the life of the parent, guardian, or legal custodian, and that the bond between child and parent is a critical element of child development. The legislature now also finds that children who cannot be with their parents, guardians, or legal custodians are best cared for, whenever possible and appropriate by family members with whom they have a relationship. This is particularly important when a child cannot be in the care of a parent, guardian, or legal custodian as a result of a court intervention." [1999 c 17 § 1.] Severability—1990 c 246: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1990 c 246 § 11.] Severability—1984 c 95: See note following RCW 9A.40.060. Severability—1982 c 129: See note following RCW 9A.04.080. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.062 13.34.062 Shelter care—Notice of custody and rights—Shelter care order. (1) The written notice of custody and rights required by RCW 13.34.060 shall be in substantially the following form: "NOTICE Your child has been placed in temporary custody under the supervision of Child Protective Services (or other person or agency). You have important legal rights and you must take steps to protect your interests. 1. A court hearing will be held before a judge within 72 hours of the time your child is taken into custody excluding Saturdays, Sundays, and holidays. You should call the court at (insert appropriate phone number here) for specific information about the date, time, and location of the court hearing. 2. You have the right to have a lawyer represent you at the hearing. Your right to representation continues after the shelter care hearing. You have the right to records the department intends to rely upon. A lawyer can look at the files in your case, talk to child protective services and other agencies, tell you about the law, help you understand your rights, and help you at hearings. If you cannot afford a lawyer, the court will appoint one to represent you. To get a court-appointed lawyer you must contact: (explain local procedure) . 3. At the hearing, you have the right to speak on your own behalf, to introduce evidence, to examine witnesses, and (2006 Ed.) 13.34.062 to receive a decision based solely on the evidence presented to the judge. 4. If your hearing occurs before a court commissioner, you have the right to have the decision of the court commissioner reviewed by a superior court judge. To obtain that review, you must, within ten days after the entry of the decision of the court commissioner, file with the court a motion for revision of the decision, as provided in RCW 2.24.050. You should be present at any shelter care hearing. If you do not come, the judge will not hear what you have to say. You may call the Child Protective Services’ caseworker for more information about your child. The caseworker’s name and telephone number are: (insert name and telephone number) . 5. You have a right to a case conference to develop a written service agreement following the shelter care hearing. The service agreement may not conflict with the court’s order of shelter care. You may request that a multidisciplinary team, family group conference, or prognostic staffing be convened for your child’s case. You may participate in these processes with your counsel present." Upon receipt of the written notice, the parent, guardian, or legal custodian shall acknowledge such notice by signing a receipt prepared by child protective services. If the parent, guardian, or legal custodian does not sign the receipt, the reason for lack of a signature shall be written on the receipt. The receipt shall be made a part of the court’s file in the dependency action. If after making reasonable efforts to provide notification, child protective services is unable to determine the whereabouts of the parents, guardian, or legal custodian, the notice shall be delivered or sent to the last known address of the parent, guardian, or legal custodian. (2) If child protective services is not required to give notice under RCW 13.34.060(2) and subsection (1) of this section, the juvenile court counselor assigned to the matter shall make all reasonable efforts to advise the parents, guardian, or legal custodian of the time and place of any shelter care hearing, request that they be present, and inform them of their basic rights as provided in RCW 13.34.090. (3) Reasonable efforts to advise and to give notice, as required in RCW 13.34.060(2) and subsections (1) and (2) of this section, shall include, at a minimum, investigation of the whereabouts of the parent, guardian, or legal custodian. If such reasonable efforts are not successful, or the parent, guardian, or legal custodian does not appear at the shelter care hearing, the petitioner shall testify at the hearing or state in a declaration: (a) The efforts made to investigate the whereabouts of, and to advise, the parent, guardian, or legal custodian; and (b) Whether actual advice of rights was made, to whom it was made, and how it was made, including the substance of any oral communication or copies of written materials used. (4) The court shall hear evidence regarding notice given to, and efforts to notify, the parent, guardian, or legal custodian and shall examine the need for shelter care. The court shall hear evidence regarding the efforts made to place the child with a relative. The court shall make an express finding as to whether the notice required under RCW 13.34.060(2) and subsections (1) and (2) of this section was given to the [Title 13 RCW—page 41] 13.34.065 Title 13 RCW: Juvenile Courts and Juvenile Offenders parent, guardian, or legal custodian. All parties have the right to present testimony to the court regarding the need or lack of need for shelter care. Hearsay evidence before the court regarding the need or lack of need for shelter care must be supported by sworn testimony, affidavit, or declaration of the person offering such evidence. (5)(a) A shelter care order issued pursuant to RCW 13.34.065 shall include the requirement for a case conference as provided in RCW 13.34.067. However, if the parent is not present at the shelter care hearing, or does not agree to the case conference, the court shall not include the requirement for the case conference in the shelter care order. (b) If the court orders a case conference, the shelter care order shall include notice to all parties and establish the date, time, and location of the case conference which shall be no later than thirty days prior to the fact-finding hearing. (c) The court may order a conference or meeting as an alternative to the case conference required under RCW 13.34.067 so long as the conference or meeting ordered by the court meets all requirements under RCW 13.34.067, including the requirement of a written agreement specifying the services to be provided to the parent. (6) A shelter care order issued pursuant to RCW 13.34.065 may be amended at any time with notice and hearing thereon. The shelter care decision of placement shall be modified only upon a showing of change in circumstances. No child may be placed in shelter care for longer than thirty days without an order, signed by the judge, authorizing continued shelter care. (7) Any parent, guardian, or legal custodian who for good cause is unable to attend the initial shelter care hearing may request that a subsequent shelter care hearing be scheduled. The request shall be made to the clerk of the court where the petition is filed prior to the initial shelter care hearing. Upon the request of the parent, the court shall schedule the hearing within seventy-two hours of the request, excluding Saturdays, Sundays, and holidays. The clerk shall notify all other parties of the hearing by any reasonable means. [2004 c 147 § 2; 2001 c 332 § 2; 2000 c 122 § 5.] Effective date—2004 c 147: See note following RCW 13.34.067. (iii) The parent, guardian, or custodian to whom the child could be released has been charged with violating RCW 9A.40.060 or 9A.40.070. If the court does not release the child to his or her parent, guardian, or legal custodian, and the child was initially placed with a relative pursuant to RCW 13.34.060(1), the court shall order continued placement with a relative, unless there is reasonable cause to believe the health, safety, or welfare of the child would be jeopardized. If the child was not initially placed with a relative, and the court does not release the child to his or her parent, guardian, or legal custodian, the supervising agency shall make reasonable efforts to locate a relative pursuant to RCW 13.34.060(1). If a relative is not available, the court shall order continued shelter care or order placement with another suitable person, and the court shall set forth its reasons for the order. The court shall enter a finding as to whether RCW 13.34.060(2) and subsections (1) and (2) of this section have been complied with. If actual notice was not given to the parent, guardian, or legal custodian and the whereabouts of such person is known or can be ascertained, the court shall order the supervising agency or the department of social and health services to make reasonable efforts to advise the parent, guardian, or legal custodian of the status of the case, including the date and time of any subsequent hearings, and their rights under RCW 13.34.090. (3) An order releasing the child on any conditions specified in this section may at any time be amended, with notice and hearing thereon, so as to return the child to shelter care for failure of the parties to conform to the conditions originally imposed. The court shall consider whether nonconformance with any conditions resulted from circumstances beyond the control of the parent and give weight to that fact before ordering return of the child to shelter care. (4) If a child is returned home from shelter care a second time in the case, or if the supervisor of the caseworker deems it necessary, the multidisciplinary team may be reconvened. (5) If a child is returned home from shelter care a second time in the case a law enforcement officer must be present and file a report to the department. [2001 c 332 § 3; 2000 c 122 § 7.] 13.34.067 Shelter care—Case conference—Service agreement. (1) Following shelter care and no later than thirty days prior to fact-finding, the department shall convene a case conference as required in the shelter care order to develop and specify in a written service agreement the expectations of both the department and the parent regarding voluntary services for the parent. The case conference shall include the parent, counsel for the parent, caseworker, counsel for the state, guardian ad litem, counsel for the child, and any other person agreed upon by the parties. Once the shelter care order is entered, the department is not required to provide additional notice of the case conference to any participants in the case conference. The written service agreement expectations must correlate with the court’s findings at the shelter care hearing. The written service agreement must set forth specific services to be provided to the parent. The case conference agreement must be agreed to and signed by the parties. The court shall not consider the content 13.34.067 13.34.065 13.34.065 Shelter care—Recommendation as to further need—Release. (1) The juvenile court probation counselor shall submit a recommendation to the court as to the further need for shelter care unless the petition has been filed by the department, in which case the recommendation shall be submitted by the department. (2) The court shall release a child alleged to be dependent to the care, custody, and control of the child’s parent, guardian, or legal custodian unless the court finds there is reasonable cause to believe that: (a) After consideration of the specific services that have been provided, reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child’s home and to make it possible for the child to return home; and (b)(i) The child has no parent, guardian, or legal custodian to provide supervision and care for such child; or (ii) The release of such child would present a serious threat of substantial harm to such child; or [Title 13 RCW—page 42] (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship of the discussions at the case conference at the time of the fact-finding hearing for the purposes of establishing that the child is a dependent child, and the court shall not consider any documents or written materials presented at the case conference but not incorporated into the case conference agreement, unless the documents or written materials were prepared for purposes other than or as a result of the case conference and are otherwise admissible under the rules of evidence. (2) At any other stage in a dependency proceeding, the department, upon the parent’s request, shall convene a case conference. [2004 c 147 § 1; 2001 c 332 § 1.] Effective date—2004 c 147: "This act takes effect July 1, 2004." [2004 c 147 § 5.] 13.34.070 13.34.070 Summons when petition filed—Service procedure—Hearing, when—Contempt upon failure to appear—Required notice regarding Indian children. (1) Upon the filing of the petition, the clerk of the court shall issue a summons, one directed to the child, if the child is twelve or more years of age, and another to the parents, guardian, or custodian, and such other persons as appear to the court to be proper or necessary parties to the proceedings, requiring them to appear personally before the court at the time fixed to hear the petition. If the child is developmentally disabled and not living at home, the notice shall be given to the child’s custodian as well as to the child’s parent. The developmentally disabled child shall not be required to appear unless requested by the court. When the custodian is summoned, the parent or guardian or both shall also be served with a summons. The fact-finding hearing on the petition shall be held no later than seventy-five days after the filing of the petition, unless exceptional reasons for a continuance are found. The party requesting the continuance shall have the burden of proving by a preponderance of the evidence that exceptional circumstances exist. To ensure that the hearing on the petition occurs within the seventy-five day time limit, the court shall schedule and hear the matter on an expedited basis. (2) A copy of the petition shall be attached to each summons. (3) The summons shall advise the parties of the right to counsel. The summons shall also inform the child’s parent, guardian, or legal custodian of his or her right to appointed counsel, if indigent, and of the procedure to use to secure appointed counsel. (4) The summons shall advise the parents that they may be held responsible for the support of the child if the child is placed in out-of-home care. (5) The judge may endorse upon the summons an order directing any parent, guardian, or custodian having the custody or control of the child to bring the child to the hearing. (6) If it appears from affidavit or sworn statement presented to the judge that there is probable cause for the issuance of a warrant of arrest or that the child needs to be taken into custody pursuant to RCW 13.34.050, the judge may endorse upon the summons an order that an officer serving the summons shall at once take the child into custody and take him or her to the place of shelter designated by the court. (7) If the person summoned as provided in this section is subject to an order of the court pursuant to subsection (5) or (2006 Ed.) 13.34.080 (6) of this section, and if the person fails to abide by the order, he or she may be proceeded against as for contempt of court. The order endorsed upon the summons shall conspicuously display the following legend: NOTICE: VIOLATION OF THIS ORDER IS SUBJECT TO PROCEEDING FOR CONTEMPT OF COURT PURSUANT TO RCW 13.34.070. (8) If a party to be served with a summons can be found within the state, the summons shall be served upon the party personally as soon as possible following the filing of the petition, but in no case later than fifteen court days before the fact-finding hearing, or such time as set by the court. If the party is within the state and cannot be personally served, but the party’s address is known or can with reasonable diligence be ascertained, the summons may be served upon the party by mailing a copy by certified mail as soon as possible following the filing of the petition, but in no case later than fifteen court days before the hearing, or such time as set by the court. If a party other than the child is without the state but can be found or the address is known, or can with reasonable diligence be ascertained, service of the summons may be made either by delivering a copy to the party personally or by mailing a copy thereof to the party by certified mail at least ten court days before the fact-finding hearing, or such time as set by the court. (9) Service of summons may be made under the direction of the court by any person eighteen years of age or older who is not a party to the proceedings or by any law enforcement officer, probation counselor, or department employee. (10)(a) Whenever the court or the petitioning party in a proceeding under this chapter knows or has reason to know that an Indian child is involved, the petitioning party shall promptly provide notice to the child’s parent or Indian custodian and to the agent designated by the child’s Indian tribe to receive such notices. Notice shall be by certified mail with return receipt requested. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, notice shall be given to the secretary of the interior in the manner described in 25 C.F.R. 23.11. If the child may be a member of more than one tribe, the petitioning party shall send notice to all tribes the petitioner has reason to know may be affiliated with the child. (b) The notice shall: (i) Contain a statement notifying the parent or custodian and the tribe of the pending proceeding; and (ii) notify the tribe of the tribe’s right to intervene and/or request that the case be transferred to tribal court. [2004 c 64 § 4; 2000 c 122 § 8; 1993 c 358 § 1; 1990 c 246 § 2; 1988 c 194 § 2; 1983 c 311 § 3; 1983 c 3 § 16; 1979 c 155 § 40; 1977 ex.s. c 291 § 35; 1913 c 160 § 6; RRS § 1987-6. Formerly RCW 13.04.070.] Severability—1990 c 246: See note following RCW 13.34.060. Legislative finding—1983 c 311: See note following RCW 13.34.030. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.080 13.34.080 Summons when petition filed—Publication of notice. (1) The court shall direct the clerk to publish [Title 13 RCW—page 43] 13.34.090 Title 13 RCW: Juvenile Courts and Juvenile Offenders notice in a legal newspaper printed in the county, qualified to publish summons, once a week for three consecutive weeks, with the first publication of the notice to be at least twentyfive days prior to the date fixed for the hearing when it appears by the petition or verified statement that: (a)(i) The parent or guardian is a nonresident of this state; or (ii) The name or place of residence or whereabouts of the parent or guardian is unknown; and (b) After due diligence, the person attempting service of the summons or notice provided for in RCW 13.34.070 has been unable to make service, and a copy of the notice has been deposited in the post office, postage prepaid, directed to such person at his or her last known place of residence. If the parent, guardian, or legal custodian is believed to be a resident of another state or a county other than the county in which the petition has been filed, notice also shall be published in the county in which the parent, guardian, or legal custodian is believed to reside. (2) Publication may proceed simultaneously with efforts to provide service in person or by mail, when the court determines there is reason to believe that service in person or by mail will not be successful. Notice shall be directed to the parent, parents, or other person claiming the right to the custody of the child, if their names are known. If their names are unknown, the phrase "To whom it may concern" shall be used, apply to, and be binding upon, those persons whose names are unknown. The name of the court, the name of the child (or children if of one family), the date of the filing of the petition, the date of hearing, and the object of the proceeding in general terms shall be set forth. There shall be filed with the clerk an affidavit showing due publication of the notice. The cost of publication shall be paid by the county at a rate not greater than the rate paid for other legal notices. The publication of notice shall be deemed equivalent to personal service upon all persons, known or unknown, who have been designated as provided in this section. [2000 c 122 § 9; 1990 c 246 § 3; 1988 c 201 § 1; 1979 c 155 § 41; 1977 ex.s. c 291 § 36; 1961 c 302 § 4; 1913 c 160 § 7; RRS § 1987-7. Formerly RCW 13.04.080.] Severability—1990 c 246: See note following RCW 13.34.060. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.090 13.34.090 Rights under chapter proceedings. (1) Any party has a right to be represented by an attorney in all proceedings under this chapter, to introduce evidence, to be heard in his or her own behalf, to examine witnesses, to receive a decision based solely on the evidence adduced at the hearing, and to an unbiased fact-finder. (2) At all stages of a proceeding in which a child is alleged to be dependent, the child’s parent, guardian, or legal custodian has the right to be represented by counsel, and if indigent, to have counsel appointed for him or her by the court. Unless waived in court, counsel shall be provided to the child’s parent, guardian, or legal custodian, if such person (a) has appeared in the proceeding or requested the court to appoint counsel and (b) is financially unable to obtain counsel because of indigency. [Title 13 RCW—page 44] (3) If a party to an action under this chapter is represented by counsel, no order shall be provided to that party for his or her signature without prior notice and provision of the order to counsel. (4) Copies of department of social and health services or supervising agency records to which parents have legal access pursuant to chapter 13.50 RCW shall be given to the child’s parent, guardian, legal custodian, or his or her legal counsel, prior to any shelter care hearing and within fifteen days after the department or supervising agency receives a written request for such records from the parent, guardian, legal custodian, or his or her legal counsel. These records shall be provided to the child’s parents, guardian, legal custodian, or legal counsel a reasonable period of time prior to the shelter care hearing in order to allow an opportunity to review the records prior to the hearing. These records shall be legible and shall be provided at no expense to the parents, guardian, legal custodian, or his or her counsel. When the records are served on legal counsel, legal counsel shall have the opportunity to review the records with the parents and shall review the records with the parents prior to the shelter care hearing. [2000 c 122 § 10. Prior: 1998 c 328 § 3; 1998 c 141 § 1; 1990 c 246 § 4; 1979 c 155 § 42; 1977 ex.s. c 291 § 37.] Severability—1990 c 246: See note following RCW 13.34.060. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. Notice of rights: RCW 26.44.105. 13.34.092 13.34.092 Rights under chapter proceedings— Appointment of counsel—Notice. At the commencement of the shelter care hearing the court shall advise the parties of basic rights as provided in RCW 13.34.090 and appoint counsel pursuant to RCW 13.34.090 if the parent or guardian is indigent unless counsel has been retained by the parent or guardian or the court finds that the right to counsel has been expressly and voluntarily waived in court. [2000 c 122 § 6.] 13.34.094 13.34.094 Description of services provided to parents. The department shall, within existing resources, provide to parents requesting or participating in a multidisciplinary team, family group conference, case conference, or prognostic staffing information that describes these processes prior to the processes being undertaken. [2004 c 147 § 3; 2001 c 332 § 6.] Effective date—2004 c 147: See note following RCW 13.34.067. 13.34.100 13.34.100 Appointment of guardian ad litem—Background information—Rights—Appointment of counsel for child—Review. (1) The court shall appoint a guardian ad litem for a child who is the subject of an action under this chapter, unless a court for good cause finds the appointment unnecessary. The requirement of a guardian ad litem may be deemed satisfied if the child is represented by independent counsel in the proceedings. (2) If the court does not have available to it a guardian ad litem program with a sufficient number of volunteers, the court may appoint a suitable person to act as guardian ad litem for the child under this chapter. Another party to the (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship proceeding or the party’s employee or representative shall not be so appointed. (3) Each guardian ad litem program shall maintain a background information record for each guardian ad litem in the program. The background file shall include, but is not limited to, the following information: (a) Level of formal education; (b) Training related to the guardian’s duties; (c) Number of years’ experience as a guardian ad litem; (d) Number of appointments as a guardian ad litem and the county or counties of appointment; (e) The names of any counties in which the person was removed from a guardian ad litem registry pursuant to a grievance action, and the name of the court and the cause number of any case in which the court has removed the person for cause; and (f) Criminal history, as defined in RCW 9.94A.030. The background information report shall be updated annually. As a condition of appointment, the guardian ad litem’s background information record shall be made available to the court. If the appointed guardian ad litem is not a member of a guardian ad litem program the person shall provide the background information to the court. Upon appointment, the guardian ad litem, or guardian ad litem program, shall provide the parties or their attorneys with a statement containing: His or her training relating to the duties as a guardian ad litem; the name of any counties in which the person was removed from a guardian ad litem registry pursuant to a grievance action, and the name of the court and the cause number of any case in which the court has removed the person for cause; and his or her criminal history as defined in RCW 9.94A.030 for the period covering ten years prior to the appointment. The background statement shall not include identifying information that may be used to harm a guardian ad litem, such as home addresses and home telephone numbers, and for volunteer guardians ad litem the court may allow the use of maiden names or pseudonyms as necessary for their safety. (4) The appointment of the guardian ad litem shall remain in effect until the court discharges the appointment or no longer has jurisdiction, whichever comes first. The guardian ad litem may also be discharged upon entry of an order of guardianship. (5) A guardian ad litem through counsel, or as otherwise authorized by the court, shall have the right to present evidence, examine and cross-examine witnesses, and to be present at all hearings. A guardian ad litem shall receive copies of all pleadings and other documents filed or submitted to the court, and notice of all hearings according to court rules. The guardian ad litem shall receive all notice contemplated for a parent or other party in all proceedings under this chapter. (6) If the child requests legal counsel and is age twelve or older, or if the guardian ad litem or the court determines that the child needs to be independently represented by counsel, the court may appoint an attorney to represent the child’s position. (7) For the purposes of child abuse prevention and treatment act (42 U.S.C. Secs. 5101 et seq.) grants to this state under P.L. 93-247, or any related state or federal legislation, a person appointed pursuant to RCW 13.34.100 shall be (2006 Ed.) 13.34.102 deemed a guardian ad litem to represent the best interests of the minor in proceedings before the court. (8) When a court-appointed special advocate or volunteer guardian ad litem is requested on a case, the program shall give the court the name of the person it recommends and the appointment shall be effective immediately. The court shall appoint the person recommended by the program. If a party in a case reasonably believes the court-appointed special advocate or volunteer is inappropriate or unqualified, the party may request a review of the appointment by the program. The program must complete the review within five judicial days and remove any appointee for good cause. If the party seeking the review is not satisfied with the outcome of the review, the party may file a motion with the court for the removal of the court-appointed special advocate on the grounds the advocate or volunteer is inappropriate or unqualified. [2000 c 124 § 2; 1996 c 249 § 13; 1994 c 110 § 2; 1993 c 241 § 2; 1988 c 232 § 1; 1979 c 155 § 43; 1977 ex.s. c 291 § 38.] Grievance rules—2000 c 124: See note following RCW 11.88.090. Intent—1996 c 249: See note following RCW 2.56.030. Conflict with federal requirements—1993 c 241: See note following RCW 13.34.030. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.102 13.34.102 Guardian ad litem—Training—Registry—Selection—Substitution—Exception. (1) All guardians ad litem must comply with the training requirements established under RCW 2.56.030(15), prior to their appointment in cases under Title 13 RCW, except that volunteer guardians ad litem or court-appointed special advocates may comply with alternative training requirements approved by the administrative office of the courts that meet or exceed the statewide requirements. (2)(a) Each guardian ad litem program for compensated guardians ad litem shall establish a rotational registry system for the appointment of guardians ad litem. If a judicial district does not have a program the court shall establish the rotational registry system. Guardians ad litem shall be selected from the registry except in exceptional circumstances as determined and documented by the court. The parties may make a joint recommendation for the appointment of a guardian ad litem from the registry. (b) In judicial districts with a population over one hundred thousand, a list of three names shall be selected from the registry and given to the parties along with the background information as specified in RCW 13.34.100(3), including their hourly rate for services. Each party may, within three judicial days, strike one name from the list. If more than one name remains on the list, the court shall make the appointment from the names on the list. In the event all three names are stricken the person whose name appears next on the registry shall be appointed. (c) If a party reasonably believes that the appointed guardian ad litem lacks the necessary expertise for the proceeding, charges an hourly rate higher than what is reasonable for the particular proceeding, or has a conflict of interest, the party may, within three judicial days from the appoint[Title 13 RCW—page 45] 13.34.105 Title 13 RCW: Juvenile Courts and Juvenile Offenders ment, move for substitution of the appointed guardian ad litem by filing a motion with the court. (d) The superior court shall remove any person from the guardian ad litem registry who misrepresents his or her qualifications pursuant to a grievance procedure established by the court. (3) The rotational registry system shall not apply to court-appointed special advocate programs. [2005 c 282 § 26; 2000 c 124 § 3; 1997 c 41 § 6; 1996 c 249 § 17.] Intent—1996 c 249: See note following RCW 2.56.030. 13.34.105 Guardian ad litem—Duties—Immunity— Access to information. (1) Unless otherwise directed by the court, the duties of the guardian ad litem include but are not limited to the following: (a) To investigate, collect relevant information about the child’s situation, and report to the court factual information regarding the best interests of the child; (b) To monitor all court orders for compliance and to bring to the court’s attention any change in circumstances that may require a modification of the court’s order; (c) To report to the court information on the legal status of a child’s membership in any Indian tribe or band; (d) Court-appointed special advocates and guardians ad litem may make recommendations based upon an independent investigation regarding the best interests of the child, which the court may consider and weigh in conjunction with the recommendations of all of the parties; and (e) To represent and be an advocate for the best interests of the child. (2) A guardian ad litem shall be deemed an officer of the court for the purpose of immunity from civil liability. (3) Except for information or records specified in *RCW 13.50.100(5), the guardian ad litem shall have access to all information available to the state or agency on the case. Upon presentation of the order of appointment by the guardian ad litem, any agency, hospital, school organization, division or department of the state, doctor, nurse, or other health care provider, psychologist, psychiatrist, police department, or mental health clinic shall permit the guardian ad litem to inspect and copy any records relating to the child or children involved in the case, without the consent of the parent or guardian of the child, or of the child if the child is under the age of thirteen years, unless such access is otherwise specifically prohibited by law. (4) A guardian ad litem may release confidential information, records, and reports to the office of the family and children’s ombudsman for the purposes of carrying out its duties under chapter 43.06A RCW. (5) The guardian ad litem shall release case information in accordance with the provisions of RCW 13.50.100. [2000 c 124 § 4; 1999 c 390 § 2; 1993 c 241 § 3.] or she is appointed during the pendency of the proceeding, except as permitted by court rule or statute for ex parte motions. Ex parte motions shall be heard in open court on the record. The record may be preserved in a manner deemed appropriate by the county where the matter is heard. The court, upon its own motion, or upon the motion of a party, may consider the removal of any guardian ad litem or courtappointed special advocate who violates this section from any pending case or from any court-authorized registry, and if so removed may require forfeiture of any fees for professional services on the pending case. [2000 c 124 § 11.] 13.34.105 *Reviser’s note: RCW 13.50.100 was amended by 2003 c 105 § 2, changing subsection (5) to subsection (7). Conflict with federal requirements—1993 c 241: See note following RCW 13.34.030. 13.34.107 Guardian ad litem—Ex parte communications—Removal. A guardian ad litem or court-appointed special advocate shall not engage in ex parte communications with any judicial officer involved in the matter for which he 13.34.107 [Title 13 RCW—page 46] 13.34.108 13.34.108 Guardian ad litem—Fees. The court shall specify the hourly rate the guardian ad litem may charge for his or her services, and shall specify the maximum amount the guardian ad litem may charge without additional court review and approval. The court shall specify rates and fees in the order of appointment or at the earliest date the court is able to determine the appropriate rates and fees and prior to the guardian ad litem billing for his or her services. This section shall apply except as provided by local court rule. [2000 c 124 § 14.] 13.34.110 13.34.110 Hearings—Fact-finding and disposition— Time and place, notice. (1) The court shall hold a fact-finding hearing on the petition and, unless the court dismisses the petition, shall make written findings of fact, stating the reasons therefor. The rules of evidence shall apply at the factfinding hearing and the parent, guardian, or legal custodian of the child shall have all of the rights provided in RCW 13.34.090(1). The petitioner shall have the burden of establishing by a preponderance of the evidence that the child is dependent within the meaning of RCW 13.34.030. (2)(a) The parent, guardian, or legal custodian of the child may waive his or her right to a fact-finding hearing by stipulating or agreeing to the entry of an order of dependency establishing that the child is dependent within the meaning of RCW 13.34.030. The parent, guardian, or legal custodian may also stipulate or agree to an order of disposition pursuant to RCW 13.34.130 at the same time. Any stipulated or agreed order of dependency or disposition must be signed by the parent, guardian, or legal custodian and his or her attorney, unless the parent, guardian, or legal custodian has waived his or her right to an attorney in open court, and by the petitioner and the attorney, guardian ad litem, or court-appointed special advocate for the child, if any. If the department of social and health services is not the petitioner and is required by the order to supervise the placement of the child or provide services to any party, the department must also agree to and sign the order. (b) Entry of any stipulated or agreed order of dependency or disposition is subject to approval by the court. The court shall receive and review a social study before entering a stipulated or agreed order and shall consider whether the order is consistent with the allegations of the dependency petition and the problems that necessitated the child’s placement in out-of-home care. No social file or social study may be considered by the court in connection with the fact-finding hearing or prior to factual determination, except as otherwise admissible under the rules of evidence. (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship (c) Prior to the entry of any stipulated or agreed order of dependency, the parent, guardian, or legal custodian of the child and his or her attorney must appear before the court and the court within available resources must inquire and establish on the record that: (i) The parent, guardian, or legal custodian understands the terms of the order or orders he or she has signed, including his or her responsibility to participate in remedial services as provided in any disposition order; (ii) The parent, guardian, or legal custodian understands that entry of the order starts a process that could result in the filing of a petition to terminate his or her relationship with the child within the time frames required by state and federal law if he or she fails to comply with the terms of the dependency or disposition orders or fails to substantially remedy the problems that necessitated the child’s placement in out-of-home care; (iii) The parent, guardian, or legal custodian understands that the entry of the stipulated or agreed order of dependency is an admission that the child is dependent within the meaning of RCW 13.34.030 and shall have the same legal effect as a finding by the court that the child is dependent by at least a preponderance of the evidence, and that the parent, guardian, or legal custodian shall not have the right in any subsequent proceeding for termination of parental rights or dependency guardianship pursuant to this chapter or nonparental custody pursuant to chapter 26.10 RCW to challenge or dispute the fact that the child was found to be dependent; and (iv) The parent, guardian, or legal custodian knowingly and willingly stipulated and agreed to and signed the order or orders, without duress, and without misrepresentation or fraud by any other party. If a parent, guardian, or legal custodian fails to appear before the court after stipulating or agreeing to entry of an order of dependency, the court may enter the order upon a finding that the parent, guardian, or legal custodian had actual notice of the right to appear before the court and chose not to do so. The court may require other parties to the order, including the attorney for the parent, guardian, or legal custodian, to appear and advise the court of the parent’s, guardian’s, or legal custodian’s notice of the right to appear and understanding of the factors specified in this subsection. A parent, guardian, or legal custodian may choose to waive his or her presence at the in-court hearing for entry of the stipulated or agreed order of dependency by submitting to the court through counsel a completed stipulated or agreed dependency fact-finding/disposition statement in a form determined by the Washington state supreme court pursuant to General Rule GR 9. (3) Immediately after the entry of the findings of fact, the court shall hold a disposition hearing, unless there is good cause for continuing the matter for up to fourteen days. If good cause is shown, the case may be continued for longer than fourteen days. Notice of the time and place of the continued hearing may be given in open court. If notice in open court is not given to a party, that party shall be notified by certified mail of the time and place of any continued hearing. Unless there is reasonable cause to believe the health, safety, or welfare of the child would be jeopardized or efforts to reunite the parent and child would be hindered, the court shall direct the department to notify those adult persons who: (a) (2006 Ed.) 13.34.120 Are related by blood or marriage to the child in the following degrees: Parent, grandparent, brother, sister, stepparent, stepbrother, stepsister, uncle, or aunt; (b) are known to the department as having been in contact with the family or child within the past twelve months; and (c) would be an appropriate placement for the child. Reasonable cause to dispense with notification to a parent under this section must be proved by clear, cogent, and convincing evidence. The parties need not appear at the fact-finding or dispositional hearing if the parties, their attorneys, the guardian ad litem, and court-appointed special advocates, if any, are all in agreement. [2001 c 332 § 7; 2000 c 122 § 11. Prior: 1995 c 313 § 1; 1995 c 311 § 27; 1993 c 412 § 7; 1991 c 340 § 3; 1983 c 311 § 4; 1979 c 155 § 44; 1977 ex.s. c 291 § 39; 1961 c 302 § 5; prior: 1913 c 160 § 10, part; RCW 13.04.090, part. Formerly RCW 13.04.091.] Legislative finding—1983 c 311: See note following RCW 13.34.030. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.115 Hearings—Public excluded when in the best interests of the child—Notes and records—Video recordings. (1) All hearings shall be public, and conducted at any time or place within the limits of the county, except if the judge finds that excluding the public is in the best interests of the child. (2) Either parent, or the child’s attorney or guardian ad litem, may move to close a hearing at any time. If the judge finds that it is in the best interests of the child the court shall exclude the public. (3) If the public is excluded from the hearing, the following people may attend the closed hearing unless the judge finds it is not in the best interests of the child: (a) The child’s relatives; (b) The child’s foster parents if the child resides in foster care; and (c) Any person requested by the parent. (4) Stenographic notes or any device which accurately records the proceedings may be required as provided in other civil cases pursuant to RCW 2.32.200. (5) Any video recording of the proceedings may be released pursuant to RCW 13.50.100, however, the video recording may not be televised, broadcast, or further disseminated to the public. [2003 c 228 § 1; 2000 c 122 § 12.] 13.34.115 13.34.120 Social study and reports made available at disposition hearing—Contents—Notice to parents. (1) To aid the court in its decision on disposition, a social study shall be made by the person or agency filing the petition. A parent may submit a counselor’s or health care provider’s evaluation of the parent, which shall either be included in the social study or considered in conjunction with the social study. The study shall include all social files and may also include facts relating to the child’s cultural heritage, and shall be made available to the court. The court shall consider the social file, social study, guardian ad litem report, the court-appointed special advocate’s report, if any, and any reports filed by a party at the disposition hearing in addition to evidence produced at the fact-finding hearing. At least ten working days 13.34.120 [Title 13 RCW—page 47] 13.34.125 Title 13 RCW: Juvenile Courts and Juvenile Offenders before the disposition hearing, the department shall mail to the parent and his or her attorney a copy of the agency’s social study and proposed service plan, which shall be in writing or in a form understandable to the parents or custodians. In addition, the department shall provide an opportunity for parents to review and comment on the plan at the local office closest to the parents’ residence. If the parents disagree with the agency’s plan or any part thereof, the parents shall submit to the court at least twenty-four hours before the hearing, in writing, or signed oral statement, an alternative plan to correct the problems which led to the finding of dependency. This section shall not interfere with the right of the parents or custodians to submit oral arguments regarding the disposition plan at the hearing. (2)(a) The guardian ad litem or court-appointed special advocate shall file his or her report with the court and with the parties pursuant to court rule prior to a hearing for which a report is required. The report shall include a written list of persons interviewed and reports or documentation considered. If the report makes particular recommendations, the report shall include specific information on which the guardian ad litem or court-appointed special advocate relied in making each particular recommendation. (b) The parties to the proceeding may file written responses to the guardian ad litem’s or court-appointed special advocate’s report with the court and deliver such responses to the other parties at a reasonable time or pursuant to court rule before the hearing. The court shall consider any written responses to the guardian ad litem’s or courtappointed special advocate’s report, including any factual information or recommendations provided in the report. [2000 c 124 § 5; 2000 c 122 § 13; 1998 c 328 § 4; 1996 c 249 § 14; 1994 c 288 § 2; 1993 c 412 § 8; 1987 c 524 § 5; 1979 c 155 § 45; 1977 ex.s. c 291 § 40.] Reviser’s note: This section was amended by 2000 c 122 § 13 and by 2000 c 124 § 5, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Intent—1996 c 249: See note following RCW 2.56.030. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.125 13.34.125 Voluntary adoption plan—Consideration of preferences for proposed placement. In those cases where an alleged father, birth parent, or parent has indicated his or her intention to make a voluntary adoption plan for the child and has agreed to the termination of his or her parental rights, the department shall follow the wishes of the alleged father, birth parent, or parent regarding the proposed adoptive placement of the child, if the court determines that the adoption is in the best interest of the child, and the prospective adoptive parents chosen by the alleged father, birth parent, or parent are properly qualified to adopt in compliance with the standards in this chapter and chapter 26.33 RCW. If the department has filed a termination petition, an alleged father’s, birth parent’s, or parent’s preferences regarding the proposed adoptive placement of the child shall be given consideration. [1999 c 173 § 2.] [Title 13 RCW—page 48] Severability—1999 c 173: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1999 c 173 § 4.] 13.34.130 13.34.130 Order of disposition for a dependent child, alternatives—Petition seeking termination of parentchild relationship—Contact with siblings—Placement with relatives. If, after a fact-finding hearing pursuant to RCW 13.34.110, it has been proven by a preponderance of the evidence that the child is dependent within the meaning of RCW 13.34.030 after consideration of the social study prepared pursuant to RCW 13.34.110 and after a disposition hearing has been held pursuant to RCW 13.34.110, the court shall enter an order of disposition pursuant to this section. (1) The court shall order one of the following dispositions of the case: (a) Order a disposition other than removal of the child from his or her home, which shall provide a program designed to alleviate the immediate danger to the child, to mitigate or cure any damage the child has already suffered, and to aid the parents so that the child will not be endangered in the future. In determining the disposition, the court should choose those services, including housing assistance, that least interfere with family autonomy and are adequate to protect the child. (b) Order the child to be removed from his or her home and into the custody, control, and care of a relative or the department or a licensed child placing agency for placement in a foster family home or group care facility licensed pursuant to chapter 74.15 RCW or in a home not required to be licensed pursuant to chapter 74.15 RCW. Unless there is reasonable cause to believe that the health, safety, or welfare of the child would be jeopardized or that efforts to reunite the parent and child will be hindered, such child shall be placed with a person who is: (i) Related to the child as defined in RCW 74.15.020(2)(a) with whom the child has a relationship and is comfortable; and (ii) willing and available to care for the child. (2) Placement of the child with a relative under this subsection shall be given preference by the court. An order for out-of-home placement may be made only if the court finds that reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child’s home and to make it possible for the child to return home, specifying the services that have been provided to the child and the child’s parent, guardian, or legal custodian, and that preventive services have been offered or provided and have failed to prevent the need for out-of-home placement, unless the health, safety, and welfare of the child cannot be protected adequately in the home, and that: (a) There is no parent or guardian available to care for such child; (b) The parent, guardian, or legal custodian is not willing to take custody of the child; or (c) The court finds, by clear, cogent, and convincing evidence, a manifest danger exists that the child will suffer serious abuse or neglect if the child is not removed from the home and an order under RCW 26.44.063 would not protect the child from danger. (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship (3) If the court has ordered a child removed from his or her home pursuant to subsection (1)(b) of this section, the court shall consider whether it is in a child’s best interest to be placed with, have contact with, or have visits with siblings. (a) There shall be a presumption that such placement, contact, or visits are in the best interests of the child provided that: (i) The court has jurisdiction over all siblings subject to the order of placement, contact, or visitation pursuant to petitions filed under this chapter or the parents of a child for whom there is no jurisdiction are willing to agree; and (ii) There is no reasonable cause to believe that the health, safety, or welfare of any child subject to the order of placement, contact, or visitation would be jeopardized or that efforts to reunite the parent and child would be hindered by such placement, contact, or visitation. In no event shall parental visitation time be reduced in order to provide sibling visitation. (b) The court may also order placement, contact, or visitation of a child with a step-brother or step-sister provided that in addition to the factors in (a) of this subsection, the child has a relationship and is comfortable with the step-sibling. (4) If the court has ordered a child removed from his or her home pursuant to subsection (1)(b) of this section, the court may order that a petition seeking termination of the parent and child relationship be filed if the requirements of RCW 13.34.132 are met. (5) If there is insufficient information at the time of the disposition hearing upon which to base a determination regarding the suitability of a proposed placement with a relative, the child shall remain in foster care and the court shall direct the supervising agency to conduct necessary background investigations as provided in chapter 74.15 RCW and report the results of such investigation to the court within thirty days. However, if such relative appears otherwise suitable and competent to provide care and treatment, the criminal history background check need not be completed before placement, but as soon as possible after placement. Any placements with relatives, pursuant to this section, shall be contingent upon cooperation by the relative with the agency case plan and compliance with court orders related to the care and supervision of the child including, but not limited to, court orders regarding parent-child contacts, sibling contacts, and any other conditions imposed by the court. Noncompliance with the case plan or court order shall be grounds for removal of the child from the relative’s home, subject to review by the court. [2003 c 227 § 3; 2002 c 52 § 5; 2000 c 122 § 15. Prior: 1999 c 267 § 16; 1999 c 267 § 9; 1999 c 173 § 3; prior: 1998 c 314 § 2; 1998 c 130 § 2; 1997 c 280 § 1; prior: 1995 c 313 § 2; 1995 c 311 § 19; 1995 c 53 § 1; 1994 c 288 § 4; 1992 c 145 § 14; 1991 c 127 § 4; prior: 1990 c 284 § 32; 1990 c 246 § 5; 1989 1st ex.s. c 17 § 17; prior: 1988 c 194 § 1; 1988 c 190 § 2; 1988 c 189 § 2; 1984 c 188 § 4; prior: 1983 c 311 § 5; 1983 c 246 § 2; 1979 c 155 § 46; 1977 ex.s. c 291 § 41.] Intent—2003 c 227: "It is the intent of the legislature to recognize the importance of emotional ties formed by siblings with each other, especially in those circumstances which warrant court intervention into family relationships. It is the intent of the legislature to encourage the courts and public (2006 Ed.) 13.34.132 agencies which deal with families to acknowledge and give thoughtful consideration to the quality and nature of sibling relationships when intervening in family relationships. It is not the intent of the legislature to create legal obligations or responsibilities between siblings and other family members whether by blood or marriage, step families, foster families, or adopted families that do not already exist. Neither is it the intent of the legislature to mandate sibling placement, contact, or visitation if there is reasonable cause to believe that the health, safety, or welfare of a child or siblings would be jeopardized. Finally, it is not the intent of the legislature to manufacture or anticipate family relationships which do not exist at the time of the court intervention, or to disrupt already existing positive family relationships." [2003 c 227 § 1.] Intent—2002 c 52: See note following RCW 13.34.025. Findings—Intent—Severability—1999 c 267: See notes following RCW 43.20A.790. Short title—Purpose—Entitlement not granted—Federal waivers—1999 c 267 §§ 10-26: See RCW 74.15.900 and 74.15.901. Severability—1999 c 173: See note following RCW 13.34.125. Finding—Effective date—1990 c 284: See notes following RCW 74.13.250. Severability—1990 c 246: See note following RCW 13.34.060. Legislative finding—1983 c 311: See note following RCW 13.34.030. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.132 13.34.132 Petition seeking termination of parentchild relationship—Requirements. A court may order that a petition seeking termination of the parent and child relationship be filed if the following requirements are met: (1) The court has removed the child from his or her home pursuant to RCW 13.34.130; (2) Termination is recommended by the supervising agency; (3) Termination is in the best interests of the child; and (4) Because of the existence of aggravated circumstances, reasonable efforts to unify the family are not required. Notwithstanding the existence of aggravated circumstances, reasonable efforts may be required if the court or department determines it is in the best interests of the child. In determining whether aggravated circumstances exist by clear, cogent, and convincing evidence, the court shall consider one or more of the following: (a) Conviction of the parent of rape of the child in the first, second, or third degree as defined in RCW 9A.44.073, 9A.44.076, and 9A.44.079; (b) Conviction of the parent of criminal mistreatment of the child in the first or second degree as defined in RCW 9A.42.020 and 9A.42.030; (c) Conviction of the parent of one of the following assault crimes, when the child is the victim: Assault in the first or second degree as defined in RCW 9A.36.011 and 9A.36.021 or assault of a child in the first or second degree as defined in RCW 9A.36.120 or 9A.36.130; (d) Conviction of the parent of murder, manslaughter, or homicide by abuse of the child’s other parent, sibling, or another child; (e) Conviction of the parent of attempting, soliciting, or conspiring to commit a crime listed in (a), (b), (c), or (d) of this subsection; (f) A finding by a court that a parent is a sexually violent predator as defined in RCW 71.09.020; [Title 13 RCW—page 49] 13.34.134 Title 13 RCW: Juvenile Courts and Juvenile Offenders (g) Failure of the parent to complete available treatment ordered under this chapter or the equivalent laws of another state, where such failure has resulted in a prior termination of parental rights to another child and the parent has failed to effect significant change in the interim. In the case of a parent of an Indian child, as defined in the Indian Child Welfare Act, P.L. 95-608 (25 U.S.C. Sec. 1903), the court shall also consider tribal efforts to assist the parent in completing treatment and make it possible for the child to return home; (h) An infant under three years of age has been abandoned; (i) Conviction of the parent, when a child has been born of the offense, of: (A) A sex offense under chapter 9A.44 RCW; or (B) incest under RCW 9A.64.020. [2000 c 122 § 16.] 13.34.134 13.34.134 Permanent placement of child. If reasonable efforts are not ordered under RCW 13.34.132, a permanency planning hearing shall be held within thirty days of the court order to file a petition to terminate parental rights. Reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child. [2000 c 122 § 17.] 13.34.136 13.34.136 Permanency plan of care. (1) Whenever a child is ordered removed from the child’s home, the agency charged with his or her care shall provide the court with: (a) A permanency plan of care that shall identify one of the following outcomes as a primary goal and may identify additional outcomes as alternative goals: Return of the child to the home of the child’s parent, guardian, or legal custodian; adoption; guardianship; permanent legal custody; longterm relative or foster care, until the child is age eighteen, with a written agreement between the parties and the care provider; successful completion of a responsible living skills program; or independent living, if appropriate and if the child is age sixteen or older. The department shall not discharge a child to an independent living situation before the child is eighteen years of age unless the child becomes emancipated pursuant to chapter 13.64 RCW; (b) Unless the court has ordered, pursuant to RCW 13.34.130(4), that a termination petition be filed, a specific plan as to where the child will be placed, what steps will be taken to return the child home, what steps the agency will take to promote existing appropriate sibling relationships and/or facilitate placement together or contact in accordance with the best interests of each child, and what actions the agency will take to maintain parent-child ties. All aspects of the plan shall include the goal of achieving permanence for the child. (i) The agency plan shall specify what services the parents will be offered to enable them to resume custody, what requirements the parents must meet to resume custody, and a time limit for each service plan and parental requirement. (ii) Visitation is the right of the family, including the child and the parent, in cases in which visitation is in the best interest of the child. Early, consistent, and frequent visitation is crucial for maintaining parent-child relationships and making it possible for parents and children to safely reunify. The [Title 13 RCW—page 50] agency shall encourage the maximum parent and child and sibling contact possible, when it is in the best interest of the child, including regular visitation and participation by the parents in the care of the child while the child is in placement. Visitation shall not be limited as a sanction for a parent’s failure to comply with court orders or services where the health, safety, or welfare of the child is not at risk as a result of the visitation. Visitation may be limited or denied only if the court determines that such limitation or denial is necessary to protect the child’s health, safety, or welfare. The court and the agency should rely upon community resources, relatives, foster parents, and other appropriate persons to provide transportation and supervision for visitation to the extent that such resources are available, and appropriate, and the child’s safety would not be compromised. (iii) A child shall be placed as close to the child’s home as possible, preferably in the child’s own neighborhood, unless the court finds that placement at a greater distance is necessary to promote the child’s or parents’ well-being. (iv) The agency charged with supervising a child in placement shall provide all reasonable services that are available within the agency, or within the community, or those services which the department has existing contracts to purchase. It shall report to the court if it is unable to provide such services; and (c) If the court has ordered, pursuant to RCW 13.34.130(4), that a termination petition be filed, a specific plan as to where the child will be placed, what steps will be taken to achieve permanency for the child, services to be offered or provided to the child, and, if visitation would be in the best interests of the child, a recommendation to the court regarding visitation between parent and child pending a factfinding hearing on the termination petition. The agency shall not be required to develop a plan of services for the parents or provide services to the parents if the court orders a termination petition be filed. However, reasonable efforts to ensure visitation and contact between siblings shall be made unless there is reasonable cause to believe the best interests of the child or siblings would be jeopardized. (2) If the court determines that the continuation of reasonable efforts to prevent or eliminate the need to remove the child from his or her home or to safely return the child home should not be part of the permanency plan of care for the child, reasonable efforts shall be made to place the child in a timely manner and to complete whatever steps are necessary to finalize the permanent placement of the child. (3) The court shall consider the child’s relationships with the child’s siblings in accordance with RCW 13.34.130(3). [2004 c 146 § 1; 2003 c 227 § 4; 2002 c 52 § 6; 2000 c 122 § 18.] Intent—2003 c 227: See note following RCW 13.34.130. Intent—2002 c 52: See note following RCW 13.34.025. 13.34.138 13.34.138 Review hearings—Findings—Housing assistance. (Effective until January 1, 2007.) (1) Except for children whose cases are reviewed by a citizen review board under chapter 13.70 RCW, the status of all children found to be dependent shall be reviewed by the court at least every six months from the beginning date of the placement episode or the date dependency is established, whichever is first, at a (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship hearing in which it shall be determined whether court supervision should continue. The initial review hearing shall be an in-court review and shall be set six months from the beginning date of the placement episode or no more than ninety days from the entry of the disposition order, whichever comes first. The initial review hearing may be a permanency planning hearing when necessary to meet the time frames set forth in RCW 13.34.145(3) or 13.34.134. The review shall include findings regarding the agency and parental completion of disposition plan requirements, and if necessary, revised permanency time limits. This review shall consider both the agency’s and parent’s efforts that demonstrate consistent measurable progress over time in meeting the disposition plan requirements. The requirements for the initial review hearing, including the in-court requirement, shall be accomplished within existing resources. The supervising agency shall provide a foster parent, preadoptive parent, or relative with notice of, and their right to an opportunity to be heard in, a review hearing pertaining to the child, but only if that person is currently providing care to that child at the time of the hearing. This section shall not be construed to grant party status to any person who has been provided an opportunity to be heard. (a) A child shall not be returned home at the review hearing unless the court finds that a reason for removal as set forth in RCW 13.34.130 no longer exists. The parents, guardian, or legal custodian shall report to the court the efforts they have made to correct the conditions which led to removal. If a child is returned, casework supervision shall continue for a period of six months, at which time there shall be a hearing on the need for continued intervention. (b) If the child is not returned home, the court shall establish in writing: (i) Whether reasonable services have been provided to or offered to the parties to facilitate reunion, specifying the services provided or offered; (ii) Whether the child has been placed in the least-restrictive setting appropriate to the child’s needs, including whether consideration and preference has been given to placement with the child’s relatives; (iii) Whether there is a continuing need for placement and whether the placement is appropriate; (iv) Whether there has been compliance with the case plan by the child, the child’s parents, and the agency supervising the placement; (v) Whether progress has been made toward correcting the problems that necessitated the child’s placement in outof-home care; (vi) Whether the parents have visited the child and any reasons why visitation has not occurred or has been infrequent; (vii) Whether additional services, including housing assistance, are needed to facilitate the return of the child to the child’s parents; if so, the court shall order that reasonable services be offered specifying such services; and (viii) The projected date by which the child will be returned home or other permanent plan of care will be implemented. (c) The court at the review hearing may order that a petition seeking termination of the parent and child relationship be filed. (2006 Ed.) 13.34.138 (2) The court’s ability to order housing assistance under RCW 13.34.130 and this section is: (a) Limited to cases in which homelessness or the lack of adequate and safe housing is the primary reason for an out-of-home placement; and (b) subject to the availability of funds appropriated for this specific purpose. (3) The court shall consider the child’s relationship with siblings in accordance with RCW 13.34.130(3). [2003 c 227 § 5; 2001 c 332 § 5; 2000 c 122 § 19.] Intent—2003 c 227: See note following RCW 13.34.130. 13.34.138 13.34.138 Review hearings—Findings—In-home placement requirements—Housing assistance. (Effective January 1, 2007.) (1) Except for children whose cases are reviewed by a citizen review board under chapter 13.70 RCW, the status of all children found to be dependent shall be reviewed by the court at least every six months from the beginning date of the placement episode or the date dependency is established, whichever is first, at a hearing in which it shall be determined whether court supervision should continue. The initial review hearing shall be an in-court review and shall be set six months from the beginning date of the placement episode or no more than ninety days from the entry of the disposition order, whichever comes first. The initial review hearing may be a permanency planning hearing when necessary to meet the time frames set forth in RCW 13.34.145(3) or 13.34.134. The review shall include findings regarding the agency and parental completion of disposition plan requirements, and if necessary, revised permanency time limits. This review shall consider both the agency’s and parent’s efforts that demonstrate consistent measurable progress over time in meeting the disposition plan requirements. The requirements for the initial review hearing, including the incourt requirement, shall be accomplished within existing resources. The supervising agency shall provide a foster parent, preadoptive parent, or relative with notice of, and their right to an opportunity to be heard in, a review hearing pertaining to the child, but only if that person is currently providing care to that child at the time of the hearing. This section shall not be construed to grant party status to any person who has been provided an opportunity to be heard. (a) A child shall not be returned home at the review hearing unless the court finds that a reason for removal as set forth in RCW 13.34.130 no longer exists. The parents, guardian, or legal custodian shall report to the court the efforts they have made to correct the conditions which led to removal. If a child is returned, casework supervision shall continue for a period of six months, at which time there shall be a hearing on the need for continued intervention. (b) If the child is not returned home, the court shall establish in writing: (i) Whether reasonable services have been provided to or offered to the parties to facilitate reunion, specifying the services provided or offered; (ii) Whether the child has been placed in the least-restrictive setting appropriate to the child’s needs, including whether consideration and preference has been given to placement with the child’s relatives; (iii) Whether there is a continuing need for placement and whether the placement is appropriate; [Title 13 RCW—page 51] 13.34.142 Title 13 RCW: Juvenile Courts and Juvenile Offenders (iv) Whether there has been compliance with the case plan by the child, the child’s parents, and the agency supervising the placement; (v) Whether progress has been made toward correcting the problems that necessitated the child’s placement in outof-home care; (vi) Whether the parents have visited the child and any reasons why visitation has not occurred or has been infrequent; (vii) Whether additional services, including housing assistance, are needed to facilitate the return of the child to the child’s parents; if so, the court shall order that reasonable services be offered specifying such services; and (viii) The projected date by which the child will be returned home or other permanent plan of care will be implemented. (c) The court at the review hearing may order that a petition seeking termination of the parent and child relationship be filed. (2)(a) In any case in which the court orders that a dependent child may be returned to or remain in the child’s home, the in-home placement shall be contingent upon the following: (i) The compliance of the parents with court orders related to the care and supervision of the child, including compliance with an agency case plan; and (ii) The continued participation of the parents, if applicable, in available substance abuse or mental health treatment if substance abuse or mental illness was a contributing factor to the removal of the child. (b) The following may be grounds for removal of the child from the home, subject to review by the court: (i) Noncompliance by the parents with the agency case plan or court order; (ii) The parent’s inability, unwillingness, or failure to participate in available services or treatment for themselves or the child, including substance abuse treatment if a parent’s substance abuse was a contributing factor to the abuse or neglect; or (iii) The failure of the parents to successfully and substantially complete available services or treatment for themselves or the child, including substance abuse treatment if a parent’s substance abuse was a contributing factor to the abuse or neglect. (3) The court’s ability to order housing assistance under RCW 13.34.130 and this section is: (a) Limited to cases in which homelessness or the lack of adequate and safe housing is the primary reason for an out-of-home placement; and (b) subject to the availability of funds appropriated for this specific purpose. (4) The court shall consider the child’s relationship with siblings in accordance with RCW 13.34.130(3). [2005 c 512 § 3; 2003 c 227 § 5; 2001 c 332 § 5; 2000 c 122 § 19.] Finding—Intent—Effective date—Short title—2005 c 512: See notes following RCW 26.44.100. Intent—2003 c 227: See note following RCW 13.34.130. 13.34.142 Current placement episode—Calculation. If the most recent date that a child was removed from the home of the parent, guardian, or legal custodian for purposes of placement in out-of-home care occurred prior to the filing 13.34.142 [Title 13 RCW—page 52] of a dependency petition or after filing but prior to entry of a disposition order, such time periods shall be included when calculating the length of the child’s current placement episode. [2000 c 122 § 14.] 13.34.145 Permanency plan required—Permanency planning hearing—Time limits—Review hearing—Petition for termination of parental rights—Guardianship petition—Agency responsibility to provide services to parents—Due process rights. (1) A permanency plan shall be developed no later than sixty days from the time the supervising agency assumes responsibility for providing services, including placing the child, or at the time of a hearing under RCW 13.34.130, whichever occurs first. The permanency planning process continues until a permanency planning goal is achieved or dependency is dismissed. The planning process shall include reasonable efforts to return the child to the parent’s home. (a) Whenever a child is placed in out-of-home care pursuant to RCW 13.34.130, the agency that has custody of the child shall provide the court with a written permanency plan of care directed towards securing a safe, stable, and permanent home for the child as soon as possible. The plan shall identify one of the following outcomes as the primary goal and may also identify additional outcomes as alternative goals: Return of the child to the home of the child’s parent, guardian, or legal custodian; adoption; guardianship; permanent legal custody; long-term relative or foster care, until the child is age eighteen, with a written agreement between the parties and the care provider; a responsible living skills program; and independent living, if appropriate and if the child is age sixteen or older and the provisions of subsection (2) of this section are met. (b) The identified outcomes and goals of the permanency plan may change over time based upon the circumstances of the particular case. (c) Permanency planning goals should be achieved at the earliest possible date, preferably before the child has been in out-of-home care for fifteen months. In cases where parental rights have been terminated, the child is legally free for adoption, and adoption has been identified as the primary permanency planning goal, it shall be a goal to complete the adoption within six months following entry of the termination order. (d) For purposes related to permanency planning: (i) "Guardianship" means a dependency guardianship, a legal guardianship pursuant to chapter 11.88 RCW, or equivalent laws of another state or a federally recognized Indian tribe. (ii) "Permanent custody order" means a custody order entered pursuant to chapter 26.10 RCW. (iii) "Permanent legal custody" means legal custody pursuant to chapter 26.10 RCW or equivalent laws of another state or of a federally recognized Indian tribe. (2) Whenever a permanency plan identifies independent living as a goal, the plan shall also specifically identify the services that will be provided to assist the child to make a successful transition from foster care to independent living. Before the court approves independent living as a permanency plan of care, the court shall make a finding that the provision of services to assist the child in making a transition 13.34.145 (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship from foster care to independent living will allow the child to manage his or her financial, personal, social, educational, and nonfinancial affairs. The department shall not discharge a child to an independent living situation before the child is eighteen years of age unless the child becomes emancipated pursuant to chapter 13.64 RCW. (3) A permanency planning hearing shall be held in all cases where the child has remained in out-of-home care for at least nine months and an adoption decree, guardianship order, or permanent custody order has not previously been entered. The hearing shall take place no later than twelve months following commencement of the current placement episode. (4) Whenever a child is removed from the home of a dependency guardian or long-term relative or foster care provider, and the child is not returned to the home of the parent, guardian, or legal custodian but is placed in out-of-home care, a permanency planning hearing shall take place no later than twelve months, as provided in subsection (3) of this section, following the date of removal unless, prior to the hearing, the child returns to the home of the dependency guardian or long-term care provider, the child is placed in the home of the parent, guardian, or legal custodian, an adoption decree, guardianship order, or a permanent custody order is entered, or the dependency is dismissed. (5) No later than ten working days prior to the permanency planning hearing, the agency having custody of the child shall submit a written permanency plan to the court and shall mail a copy of the plan to all parties and their legal counsel, if any. (6) At the permanency planning hearing, the court shall enter findings as required by RCW 13.34.138 and shall review the permanency plan prepared by the agency. If the child has resided in the home of a foster parent or relative for more than six months prior to the permanency planning hearing, the court shall also enter a finding regarding whether the foster parent or relative was informed of the hearing as required in RCW 74.13.280 and 13.34.138. If a goal of longterm foster or relative care has been achieved prior to the permanency planning hearing, the court shall review the child’s status to determine whether the placement and the plan for the child’s care remain appropriate. In cases where the primary permanency planning goal has not been achieved, the court shall inquire regarding the reasons why the primary goal has not been achieved and determine what needs to be done to make it possible to achieve the primary goal. In all cases, the court shall: (a)(i) Order the permanency plan prepared by the agency to be implemented; or (ii) Modify the permanency plan, and order implementation of the modified plan; and (b)(i) Order the child returned home only if the court finds that a reason for removal as set forth in RCW 13.34.130 no longer exists; or (ii) Order the child to remain in out-of-home care for a limited specified time period while efforts are made to implement the permanency plan. (7) If the court orders the child returned home, casework supervision shall continue for at least six months, at which time a review hearing shall be held pursuant to RCW (2006 Ed.) 13.34.145 13.34.138, and the court shall determine the need for continued intervention. (8) The juvenile court may hear a petition for permanent legal custody when: (a) The court has ordered implementation of a permanency plan that includes permanent legal custody; and (b) the party pursuing the permanent legal custody is the party identified in the permanency plan as the prospective legal custodian. During the pendency of such proceeding, the court shall conduct review hearings and further permanency planning hearings as provided in this chapter. At the conclusion of the legal guardianship or permanent legal custody proceeding, a juvenile court hearing shall be held for the purpose of determining whether dependency should be dismissed. If a guardianship or permanent custody order has been entered, the dependency shall be dismissed. (9) Continued juvenile court jurisdiction under this chapter shall not be a barrier to the entry of an order establishing a legal guardianship or permanent legal custody when the requirements of subsection (8) of this section are met. (10) Following the first permanency planning hearing, the court shall hold a further permanency planning hearing in accordance with this section at least once every twelve months until a permanency planning goal is achieved or the dependency is dismissed, whichever occurs first. (11) Except as provided in RCW 13.34.235, the status of all dependent children shall continue to be reviewed by the court at least once every six months, in accordance with RCW 13.34.138, until the dependency is dismissed. Prior to the second permanency planning hearing, the agency that has custody of the child shall consider whether to file a petition for termination of parental rights. (12) Nothing in this chapter may be construed to limit the ability of the agency that has custody of the child to file a petition for termination of parental rights or a guardianship petition at any time following the establishment of dependency. Upon the filing of such a petition, a fact-finding hearing shall be scheduled and held in accordance with this chapter unless the agency requests dismissal of the petition prior to the hearing or unless the parties enter an agreed order terminating parental rights, establishing guardianship, or otherwise resolving the matter. (13) The approval of a permanency plan that does not contemplate return of the child to the parent does not relieve the supervising agency of its obligation to provide reasonable services, under this chapter, intended to effectuate the return of the child to the parent, including but not limited to, visitation rights. The court shall consider the child’s relationships with siblings in accordance with RCW 13.34.130. (14) Nothing in this chapter may be construed to limit the procedural due process rights of any party in a termination or guardianship proceeding filed under this chapter. [2003 c 227 § 6. Prior: 2000 c 135 § 4; 2000 c 122 § 20; 1999 c 267 § 17; prior: 1998 c 314 § 3; 1998 c 130 § 3; prior: 1995 c 311 § 20; 1995 c 53 § 2; 1994 c 288 § 5; 1993 c 412 § 1; 1989 1st ex.s. c 17 § 18; 1988 c 194 § 3.] Intent—2003 c 227: See note following RCW 13.34.130. Findings—Intent—Severability—1999 c 267: See notes following RCW 43.20A.790. Short title—Purpose—Entitlement not granted—Federal waivers—1999 c 267 §§ 10-26: See RCW 74.15.900 and 74.15.901. [Title 13 RCW—page 53] 13.34.150 Title 13 RCW: Juvenile Courts and Juvenile Offenders 13.34.150 13.34.150 Modification of orders. Any order made by the court in the case of a dependent child may be changed, modified, or set aside, only upon a showing of a change in circumstance or as provided in RCW 13.34.120. [1993 c 412 § 9; 1990 c 246 § 6; 1977 ex.s. c 291 § 43; 1913 c 160 § 15; RRS § 1987-15. Formerly RCW 13.04.150.] Severability—1990 c 246: See note following RCW 13.34.060. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.155 13.34.155 Concurrent jurisdiction over nonparental actions for child custody. (1) The court hearing the dependency petition may hear and determine issues related to chapter 26.10 RCW in a dependency proceeding as necessary to facilitate a permanency plan for the child or children as part of the dependency disposition order or a dependency review order or as otherwise necessary to implement a permanency plan of care for a child. The parents, guardians, or legal custodian of the child must agree, subject to court approval, to establish a permanent custody order. This agreed order may have the concurrence of the other parties to the dependency including the supervising agency, the guardian ad litem of the child, and the child if age twelve or older, and must also be in the best interests of the child. If the petitioner for a custody order under chapter 26.10 RCW is not a party to the dependency proceeding, he or she must agree on the record or by the filing of a declaration to the entry of a custody order. Once an order is entered under chapter 26.10 RCW, and the dependency petition dismissed, the department shall not continue to supervise the placement. (2) Any court order determining issues under chapter 26.10 RCW is subject to modification upon the same showing and standards as a court order determining Title 26 RCW issues. (3) Any order entered in the dependency court establishing or modifying a permanent legal custody order under chapter 26.10 RCW shall also be filed in the chapter 26.10 RCW action by the prevailing party. Once filed, any order establishing or modifying permanent legal custody shall survive dismissal of the dependency proceeding. [2000 c 135 § 1.] 13.34.160 13.34.160 Order of support for dependent child. (1) In an action brought under this chapter, the court may inquire into the ability of the parent or parents of the child to pay child support and may enter an order of child support as set forth in chapter 26.19 RCW. The court may enforce the same by execution, or in any way in which a court of equity may enforce its decrees. All child support orders entered pursuant to this chapter shall be in compliance with the provisions of RCW 26.23.050. (2) For purposes of this section, if a dependent child’s parent is an unmarried minor parent or pregnant minor applicant, then the parent or parents of the minor shall also be deemed a parent or parents of the dependent child. However, liability for child support under this subsection only exists if the parent or parents of the unmarried minor parent or pregnant minor applicant are provided the opportunity for a hearing on their ability to provide support. Any child support order requiring such a parent or parents to provide support for [Title 13 RCW—page 54] the minor parent’s child may be effective only until the minor parent reaches eighteen years of age. (3) In the absence of a court order setting support, the department may establish an administrative order for support upon receipt of a referral or application for support enforcement services. [2004 c 183 § 1; 1997 c 58 § 505; 1993 c 358 § 2; 1987 c 435 § 14; 1981 c 195 § 8; 1977 ex.s. c 291 § 44; 1969 ex.s. c 138 § 1; 1961 c 302 § 7; 1913 c 160 § 8; RRS § 1987-8. Formerly RCW 13.04.100.] Effective date—2004 c 183: "This act takes effect July 1, 2004." [2004 c 183 § 6.] Short title—Part headings, captions, table of contents not law— Exemptions and waivers from federal law—Conflict with federal requirements—Severability—1997 c 58: See RCW 74.08A.900 through 74.08A.904. Effective date—1987 c 435: See RCW 26.23.900. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.161 13.34.161 Order of support for dependent child— Noncompliance—Enforcement of judgment. In any case in which the court has ordered a parent or parents, guardian, or other person having custody of a child to pay support under RCW 13.34.160 and the order has not been complied with, the court may, upon such person or persons being duly summoned or voluntarily appearing, proceed to inquire into the amount due upon the order and enter judgment for that amount against the defaulting party or parties, and the judgment shall be docketed as are other judgments for the payment of money. In such judgments, the county in which the order is entered shall be the judgment creditor, or the state may be the judgment creditor where the child is in the custody of a state agency. Judgments may be enforced by the prosecuting attorney of the county, or the attorney general where the state is the judgment creditor and any moneys recovered shall be paid into the registry of the juvenile court and shall be disbursed to such person, persons, agency, or governmental department as the court finds is entitled to it. Such judgments shall remain valid and enforceable for a period of ten years after the date of entry. [2000 c 122 § 22; 1981 c 195 § 9; 1977 ex.s. c 291 § 45; 1961 c 302 § 8; 1955 c 188 § 1. Formerly RCW 13.34.170, 13.04.105.] Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. Financial responsibility for costs of detention: RCW 13.16.085. 13.34.165 13.34.165 Civil contempt—Grounds—Motion—Penalty—Detention review hearing. (1) Failure by a party to comply with an order entered under this chapter is civil contempt of court as provided in RCW 7.21.030(2)(e). (2) The maximum term of confinement that may be imposed as a remedial sanction for contempt of court under this section is confinement for up to seven days. (3) A child held for contempt under this section shall be confined only in a secure juvenile detention facility operated by or pursuant to a contract with a county. (4) A motion for contempt may be made by a parent, juvenile court personnel, or by any public agency, organization, or person having custody of the child under a court order entered pursuant to this chapter. (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship (5) Whenever the court finds probable cause to believe, based upon consideration of a motion for contempt and the information set forth in a supporting declaration, that a child has violated a placement order entered under this chapter, the court may issue an order directing law enforcement to pick up and take the child to detention. The order may be entered ex parte without prior notice to the child or other parties. Following the child’s admission to detention, a detention review hearing must be held in accordance with RCW 13.32A.065. [2000 c 122 § 21; 1998 c 296 § 38; 1996 c 133 § 29; 1989 c 373 § 17; 1985 c 257 § 1.] Findings—Intent—1998 c 296 §§ 36-39: See note following RCW 7.21.030. Findings—Intent—Part headings not law—Short title—1998 c 296: See notes following RCW 74.13.025. Findings—Short title—Intent—Construction—1996 c 133: See notes following RCW 13.32A.197. Severability—1989 c 373: See RCW 7.21.900. Severability—1985 c 257: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 257 § 12.] 13.34.174 13.34.174 Order of alcohol or substance abuse diagnostic investigation and evaluation—Treatment plan— Breach of plan—Reports. (1) The provisions of this section shall apply when a court orders a party to undergo an alcohol or substance abuse diagnostic investigation and evaluation. (2) The facility conducting the investigation and evaluation shall make a written report to the court stating its findings and recommendations including family-based services or treatment when appropriate. If its findings and recommendations support treatment, it shall also recommend a treatment plan setting out: (a) Type of treatment; (b) Nature of treatment; (c) Length of treatment; (d) A treatment time schedule; and (e) Approximate cost of the treatment. The affected person shall be included in developing the appropriate treatment plan. The treatment plan must be signed by the treatment provider and the affected person. The initial written progress report based on the treatment plan shall be sent to the appropriate persons six weeks after initiation of treatment. Subsequent progress reports shall be provided after three months, six months, twelve months, and thereafter every six months if treatment exceeds twelve months. Reports are to be filed with the court in a timely manner. Close-out of the treatment record must include summary of pretreatment and posttreatment, with final outcome and disposition. The report shall also include recommendations for ongoing stability and decrease in destructive behavior. Each report shall also be filed with the court and a copy given to the person evaluated and the person’s counsel. A copy of the treatment plan shall also be given to the department’s caseworker and to the guardian ad litem. Any program for chemical dependency shall meet the program requirements contained in chapter 70.96A RCW. (3) If the court has ordered treatment pursuant to a dependency proceeding it shall also require the treatment (2006 Ed.) 13.34.180 program to provide, in the reports required by subsection (2) of this section, status reports to the court, the department, the supervising child-placing agency if any, and the person or person’s counsel regarding the person’s cooperation with the treatment plan proposed and the person’s progress in treatment. (4) If a person subject to this section fails or neglects to carry out and fulfill any term or condition of the treatment plan, the program or agency administering the treatment shall report such breach to the court, the department, the guardian ad litem, the supervising child-placing agency if any, and the person or person’s counsel, within twenty-four hours, together with its recommendation. These reports shall be made as a declaration by the person who is personally responsible for providing the treatment. (5) Nothing in this chapter may be construed as allowing the court to require the department to pay for the cost of any alcohol or substance abuse evaluation or treatment program. [2000 c 122 § 23; 1993 c 412 § 5.] 13.34.176 13.34.176 Violation of alcohol or substance abuse treatment conditions—Hearing—Notice—Modification of order. (1) The court, upon receiving a report under RCW 13.34.174(4) or at the department’s request, may schedule a show cause hearing to determine whether the person is in violation of the treatment conditions. All parties shall be given notice of the hearing. The court shall hold the hearing within ten days of the request for a hearing. At the hearing, testimony, declarations, reports, or other relevant information may be presented on the person’s alleged failure to comply with the treatment plan and the person shall have the right to present similar information on his or her own behalf. (2) If the court finds that there has been a violation of the treatment conditions it shall modify the dependency order, as necessary, to ensure the safety of the child. The modified order shall remain in effect until the party is in full compliance with the treatment requirements. [2000 c 122 § 24; 1993 c 412 § 6.] 13.34.180 13.34.180 Order terminating parent and child relationship—Petition—Filing—Allegations. (1) A petition seeking termination of a parent and child relationship may be filed in juvenile court by any party to the dependency proceedings concerning that child. Such petition shall conform to the requirements of RCW 13.34.040, shall be served upon the parties as provided in RCW 13.34.070(8), and shall allege all of the following unless subsection (2) or (3) of this section applies: (a) That the child has been found to be a dependent child; (b) That the court has entered a dispositional order pursuant to RCW 13.34.130; (c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency; (d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided; [Title 13 RCW—page 55] 13.34.190 Title 13 RCW: Juvenile Courts and Juvenile Offenders (e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. A parent’s failure to substantially improve parental deficiencies within twelve months following entry of the dispositional order shall give rise to a rebuttable presumption that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. The presumption shall not arise unless the petitioner makes a showing that all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future have been clearly offered or provided. In determining whether the conditions will be remedied the court may consider, but is not limited to, the following factors: (i) Use of intoxicating or controlled substances so as to render the parent incapable of providing proper care for the child for extended periods of time or for periods of time that present a risk of imminent harm to the child, and documented unwillingness of the parent to receive and complete treatment or documented multiple failed treatment attempts; or (ii) Psychological incapacity or mental deficiency of the parent that is so severe and chronic as to render the parent incapable of providing proper care for the child for extended periods of time or for periods of time that present a risk of imminent harm to the child, and documented unwillingness of the parent to receive and complete treatment or documentation that there is no treatment that can render the parent capable of providing proper care for the child in the near future; and (f) That continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home. (2) In lieu of the allegations in subsection (1) of this section, the petition may allege that the child was found under such circumstances that the whereabouts of the child’s parent are unknown and no person has acknowledged paternity or maternity and requested custody of the child within two months after the child was found. (3) In lieu of the allegations in subsection (1)(b) through (f) of this section, the petition may allege that the parent has been convicted of: (a) Murder in the first degree, murder in the second degree, or homicide by abuse as defined in chapter 9A.32 RCW against another child of the parent; (b) Manslaughter in the first degree or manslaughter in the second degree, as defined in chapter 9A.32 RCW against another child of the parent; (c) Attempting, conspiring, or soliciting another to commit one or more of the crimes listed in (a) or (b) of this subsection; or (d) Assault in the first or second degree, as defined in chapter 9A.36 RCW, against the surviving child or another child of the parent. (4) Notice of rights shall be served upon the parent, guardian, or legal custodian with the petition and shall be in substantially the following form: "NOTICE A petition for termination of parental rights has been filed against you. You have important legal rights and you must take steps to protect your interests. [Title 13 RCW—page 56] This petition could result in permanent loss of your parental rights. 1. You have the right to a fact-finding hearing before a judge. 2. You have the right to have a lawyer represent you at the hearing. A lawyer can look at the files in your case, talk to the department of social and health services and other agencies, tell you about the law, help you understand your rights, and help you at hearings. If you cannot afford a lawyer, the court will appoint one to represent you. To get a courtappointed lawyer you must contact: (explain local procedure) . 3. At the hearing, you have the right to speak on your own behalf, to introduce evidence, to examine witnesses, and to receive a decision based solely on the evidence presented to the judge. You should be present at this hearing. You may call (insert agency) for more information about your child. The agency’s name and telephone number are (insert name and telephone number) ." [2001 c 332 § 4; 2000 c 122 § 25; 1998 c 314 § 4; 1997 c 280 § 2. Prior: 1993 c 412 § 2; 1993 c 358 § 3; 1990 c 246 § 7; 1988 c 201 § 2; 1987 c 524 § 6; 1979 c 155 § 47; 1977 ex.s. c 291 § 46.] Severability—1990 c 246: See note following RCW 13.34.060. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.190 13.34.190 Order terminating parent and child relationship—Findings. After hearings pursuant to RCW 13.34.110 or 13.34.130, the court may enter an order terminating all parental rights to a child only if the court finds that: (1)(a) The allegations contained in the petition as provided in RCW 13.34.180(1) are established by clear, cogent, and convincing evidence; or (b) The provisions of RCW 13.34.180(1) (a), (b), (e), and (f) are established beyond a reasonable doubt and if so, then RCW 13.34.180(1) (c) and (d) may be waived. When an infant has been abandoned, as defined in RCW 13.34.030, and the abandonment has been proved beyond a reasonable doubt, then RCW 13.34.180(1) (c) and (d) may be waived; or (c) The allegation under RCW 13.34.180(2) is established beyond a reasonable doubt. In determining whether RCW 13.34.180(1) (e) and (f) are established beyond a reasonable doubt, the court shall consider whether one or more of the aggravated circumstances listed in RCW 13.34.132 exist; or (d) The allegation under RCW 13.34.180(3) is established beyond a reasonable doubt; and (2) Such an order is in the best interests of the child. [2000 c 122 § 26; 1998 c 314 § 5; 1993 c 412 § 3; 1992 c 145 § 15; 1990 c 284 § 33; 1979 c 155 § 48; 1977 ex.s. c 291 § 47.] Finding—Effective date—1990 c 284: See notes following RCW 74.13.250. (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.200 13.34.200 Order terminating parent and child relationship—Rights of parties when granted. (1) Upon the termination of parental rights pursuant to RCW 13.34.180, all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support existing between the child and parent shall be severed and terminated and the parent shall have no standing to appear at any further legal proceedings concerning the child: PROVIDED, That any support obligation existing prior to the effective date of the order terminating parental rights shall not be severed or terminated. The rights of one parent may be terminated without affecting the rights of the other parent and the order shall so state. (2) An order terminating the parent and child relationship shall not disentitle a child to any benefit due the child from any third person, agency, state, or the United States, nor shall any action under this chapter be deemed to affect any rights and benefits that an Indian child derives from the child’s descent from a member of a federally recognized Indian tribe. (3) An order terminating the parent-child relationship shall include a statement addressing the status of the child’s sibling relationships and the nature and extent of sibling placement, contact, or visits. [2003 c 227 § 7; 2000 c 122 § 27; 1977 ex.s. c 291 § 48.] Intent—2003 c 227: See note following RCW 13.34.130. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.210 13.34.210 Order terminating parent and child relationship—Custody where no one has parental rights. If, upon entering an order terminating the parental rights of a parent, there remains no parent having parental rights, the court shall commit the child to the custody of the department or to a licensed child-placing agency willing to accept custody for the purpose of placing the child for adoption. If an adoptive home has not been identified, the department or agency shall place the child in a licensed foster home, or take other suitable measures for the care and welfare of the child. The custodian shall have authority to consent to the adoption of the child consistent with chapter 26.33 RCW, the marriage of the child, the enlistment of the child in the armed forces of the United States, necessary surgical and other medical treatment for the child, and to consent to such other matters as might normally be required of the parent of the child. If a child has not been adopted within six months after the date of the order and a guardianship of the child under RCW 13.34.231 or chapter 11.88 RCW, or a permanent custody order under chapter 26.10 RCW, has not been entered by the court, the court shall review the case every six months until a decree of adoption is entered except for those cases which are reviewed by a citizen review board under chapter 13.70 RCW. The supervising agency shall take reasonable steps to ensure that the child maintains relationships with siblings as provided in RCW 13.34.130(3) and shall report to the court the status and extent of such relationships. [2003 c 227 (2006 Ed.) 13.34.232 § 8; 2000 c 122 § 28; 1991 c 127 § 6; 1988 c 203 § 2; 1979 c 155 § 49; 1977 ex.s. c 291 § 49.] Intent—2003 c 227: See note following RCW 13.34.130. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.34.230 13.34.230 Guardianship for dependent child—Petition for—Notice to, intervention by, department. Any party to a dependency proceeding, including the supervising agency, may file a petition in juvenile court requesting that guardianship be created as to a dependent child. The department of social and health services shall receive notice of any guardianship proceedings and have the right to intervene in the proceedings. [1981 c 195 § 1; 1979 c 155 § 51.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.34.231 13.34.231 Guardianship for dependent child—Hearing—Rights of parties—Rules of evidence—Guardianship established, when. At the hearing on a dependency guardianship petition, all parties have the right to present evidence and cross examine witnesses. The rules of evidence apply to the conduct of the hearing. A guardianship shall be established if the court finds by a preponderance of the evidence that: (1) The child has been found to be a dependent child under RCW 13.34.030; (2) A dispositional order has been entered pursuant to RCW 13.34.130; (3) The child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency under RCW 13.34.030; (4) The services ordered under RCW 13.34.130 and 13.34.136 have been offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been offered or provided; (5) There is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future; and (6) A guardianship, rather than termination of the parentchild relationship or continuation of efforts to return the child to the custody of the parent, would be in the best interest of the child. [2000 c 122 § 29; 1994 c 288 § 6; 1981 c 195 § 2.] 13.34.232 13.34.232 Guardianship for dependent child— Order, contents—Rights and duties of dependency guardian. (1) If the court has made a finding under RCW 13.34.231, it shall enter an order establishing a dependency guardianship for the child. The order shall: (a) Appoint a person or agency to serve as dependency guardian for the limited purpose of assisting the court to supervise the dependency; (b) Specify the dependency guardian’s rights and responsibilities concerning the care, custody, and control of the child. A dependency guardian shall not have the authority to consent to the child’s adoption; [Title 13 RCW—page 57] 13.34.233 Title 13 RCW: Juvenile Courts and Juvenile Offenders (c) Specify the dependency guardian’s authority, if any, to receive, invest, and expend funds, benefits, or property belonging to the child; (d) Specify an appropriate frequency of visitation between the parent and the child; and (e) Specify the need for any continued involvement of the supervising agency and the nature of that involvement, if any. (2) Unless the court specifies otherwise in the guardianship order, the dependency guardian shall maintain the physical custody of the child and have the following rights and duties: (a) Protect, discipline, and educate the child; (b) Provide food, clothing, shelter, education as required by law, and routine health care for the child; (c) Consent to necessary health and surgical care and sign a release of health care information to appropriate authorities, pursuant to law; (d) Consent to social and school activities of the child; and (e) Provide an annual written accounting to the court regarding receipt by the dependency guardian of any funds, benefits, or property belonging to the child and expenditures made therefrom. (3) As used in this section, the term "health care" includes, but is not limited to, medical, dental, psychological, and psychiatric care and treatment. (4) The child shall remain dependent for the duration of the guardianship. While the guardianship remains in effect, the dependency guardian shall be a party to any dependency proceedings pertaining to the child. (5) The guardianship shall remain in effect only until the child is eighteen years of age or until the court terminates the guardianship order, whichever occurs sooner. [1994 c 288 § 7; 1993 c 412 § 4; 1981 c 195 § 3.] 13.34.233 Guardianship for dependent child—Modification or termination of order—Hearing—Termination of guardianship. (1) Any party may request the court under RCW 13.34.150 to modify or terminate a dependency guardianship order. Notice of any motion to modify or terminate the guardianship shall be served on all other parties, including any agency that was responsible for supervising the child’s placement at the time the guardianship petition was filed. Notice in all cases shall be served upon the department. If the department was not previously a party to the guardianship proceeding, the department shall nevertheless have the right to: (a) Initiate a proceeding to modify or terminate a guardianship; and (b) intervene at any stage of such a proceeding. (2) The guardianship may be modified or terminated upon the motion of any party or the department if the court finds by a preponderance of the evidence that there has been a substantial change of circumstances subsequent to the establishment of the guardianship and that it is in the child’s best interest to modify or terminate the guardianship. The court shall hold a hearing on the motion before modifying or terminating a guardianship. (3) Upon entry of an order terminating the guardianship, the dependency guardian shall not have any rights or responsibilities with respect to the child and shall not have legal standing to participate as a party in further dependency proceedings pertaining to the child. The court may allow the child’s dependency guardian to attend dependency review proceedings pertaining to the child for the sole purpose of providing information about the child to the court. (4) Upon entry of an order terminating the guardianship, the child shall remain dependent and the court shall either return the child to the child’s parent or order the child into the custody, control, and care of the department or a licensed child-placing agency for placement in a foster home or group care facility licensed pursuant to chapter 74.15 RCW or in a home not required to be licensed pursuant to such chapter. The court shall not place a child in the custody of the child’s parent unless the court finds that reasons for removal as set forth in RCW 13.34.130 no longer exist and that such placement is in the child’s best interest. The court shall thereafter conduct reviews as provided in RCW 13.34.138 and, where applicable, shall hold a permanency planning hearing in accordance with RCW 13.34.145. [2000 c 122 § 30; 1995 c 311 § 24; 1994 c 288 § 8; 1981 c 195 § 4.] 13.34.234 13.34.234 Guardianship for dependent child— Dependency guardian may receive foster care payments. Establishment of a dependency guardianship under RCW 13.34.231 and 13.34.232 does not preclude the dependency guardian from receiving foster care payments. [1994 c 288 § 9; 1981 c 195 § 5.] 13.34.235 13.34.235 Guardianship for dependent child— Review hearing requirements not applicable—Exception. A dependency guardianship is not subject to the review hearing requirements of RCW 13.34.138 unless ordered by the court under RCW 13.34.232(1)(e). [2000 c 122 § 31; 1981 c 195 § 6.] 13.34.233 [Title 13 RCW—page 58] 13.34.236 13.34.236 Guardianship for dependent child—Qualifications for dependency guardian—Consideration of preferences of parent. (1) Any person over the age of twenty-one years who is not otherwise disqualified by this section, any nonprofit corporation, or any Indian tribe may be appointed the dependency guardian of a child under RCW 13.34.232. No person is qualified to serve as a dependency guardian unless the person meets the minimum requirements to care for children as provided in RCW 74.15.030. (2) If the preferences of a child’s parent were not considered under RCW 13.34.260 as they relate to the proposed dependency guardian, the court shall consider such preferences before appointing the dependency guardian. [1994 c 288 § 10; 1981 c 195 § 7.] 13.34.240 13.34.240 Acts, records, and proceedings of Indian tribe or band given full faith and credit. The courts of this state shall give full faith and credit as provided for in the United States Constitution to the public acts, records, and judicial proceedings of any Indian tribe or band in any proceeding brought pursuant to this chapter to the same extent that full faith and credit is given to the public acts, records, and judicial proceedings of any other state. [1979 c 155 § 52.] (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.34.245 13.34.245 Voluntary consent to foster care placement for Indian child—Validation—Withdrawal of consent— Termination. (1) Where any parent or Indian custodian voluntarily consents to foster care placement of an Indian child and a petition for dependency has not been filed regarding the child, such consent shall not be valid unless executed in writing before the court and filed with the court. The consent shall be accompanied by the written certification of the court that the terms and consequences of the consent were fully explained in detail to the parent or Indian custodian during the court proceeding and were fully understood by the parent or Indian custodian. The court shall also certify in writing either that the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood. Any consent given prior to, or within ten days after, the birth of the Indian child shall not be valid. (2) To obtain court validation of a voluntary consent to foster care placement, any person may file a petition for validation alleging that there is located or residing within the county an Indian child whose parent or Indian custodian wishes to voluntarily consent to foster care placement of the child and requesting that the court validate the consent as provided in this section. The petition shall contain the name, date of birth, and residence of the child, the names and residences of the consenting parent or Indian custodian, and the name and location of the Indian tribe in which the child is a member or eligible for membership. The petition shall state whether the placement preferences of 25 U.S.C. Sec. 1915 (b) or (c) will be followed. Reasonable attempts shall be made by the petitioner to ascertain and set forth in the petition the identity, location, and custodial status of any parent or Indian custodian who has not consented to foster care placement and why that parent or Indian custodian cannot assume custody of the child. (3) Upon filing of the petition for validation, the clerk of the court shall schedule the petition for a hearing on the court validation of the voluntary consent no later than forty-eight hours after the petition has been filed, excluding Saturdays, Sundays, and holidays. Notification of time, date, location, and purpose of the validation hearing shall be provided as soon as possible to the consenting parent or Indian custodian, the department or other child-placing agency which is to assume responsibility for the child’s placement and care pursuant to the consent to foster care placement, and the Indian tribe in which the child is enrolled or eligible for enrollment as a member. If the identity and location of any nonconsenting parent or Indian custodian is known, reasonable attempts shall be made to notify the parent or Indian custodian of the consent to placement and the validation hearing. Notification under this subsection may be given by the most expedient means, including, but not limited to, mail, personal service, telephone, and telegraph. (4) Any parent or Indian custodian may withdraw consent to a voluntary foster care placement, made under this section, at any time. Unless the Indian child has been taken in custody pursuant to RCW 13.34.050 or 26.44.050, placed in shelter care pursuant to RCW 13.34.060, or placed in foster (2006 Ed.) 13.34.260 care pursuant to RCW 13.34.130, the Indian child shall be returned to the parent or Indian custodian upon withdrawal of consent to foster care placement of the child. (5) Upon termination of the voluntary foster care placement and return of the child to the parent or Indian custodian, the department or other child-placing agency which had assumed responsibility for the child’s placement and care pursuant to the consent to foster care placement shall file with the court written notification of the child’s return and shall also send such notification to the Indian tribe in which the child is enrolled or eligible for enrollment as a member and to any other party to the validation proceeding including any noncustodial parent. [1997 c 386 § 18; 1987 c 170 § 2.] Application—1997 c 386: See note following RCW 13.50.010. Severability—1987 c 170: See note following RCW 13.04.030. 13.34.250 13.34.250 Preference characteristics when placing Indian child in foster care home. Whenever appropriate, an Indian child shall be placed in a foster care home with the following characteristics which shall be given preference in the following order: (1) Relatives; (2) An Indian family of the same tribe as the child; (3) An Indian family of a Washington Indian tribe of a similar culture to that tribe; (4) Any other family which can provide a suitable home for an Indian child, such suitability to be determined through consultation with a local Indian child welfare advisory committee. [1979 c 155 § 53.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.34.260 13.34.260 Foster home placement—Parental preferences—Foster parent contact with birth parents encouraged. (1) In an attempt to minimize the inherent intrusion in the lives of families involved in the foster care system and to maintain parental authority where appropriate, the department, absent good cause, shall follow the wishes of the natural parent regarding the placement of the child. Preferences such as family constellation, sibling relationships, ethnicity, and religion shall be considered when matching children to foster homes. Parental authority is appropriate in areas that are not connected with the abuse or neglect that resulted in the dependency and shall be integrated through the foster care team. (2) When a child is placed in out-of-home care foster parents are encouraged to: (a) Provide consultation to the foster care team based upon their experience with the child placed in their care; (b) Assist the birth parents by helping them understand their child’s needs and correlating appropriate parenting responses; (c) Participate in educational activities, and enter into community-building activities with birth families and other foster families; (d) Transport children to family time visits with birth families and assist children and their families in maximizing the purposefulness of family time. (3) For purposes of this section, "foster care team" means the foster parent currently providing care, the currently [Title 13 RCW—page 59] 13.34.270 Title 13 RCW: Juvenile Courts and Juvenile Offenders assigned social worker, and the parent or parents; and "birth family" means the persons described in RCW 74.15.020(2)(a). [2003 c 226 § 2; 2002 c 52 § 7; 2000 c 122 § 32; 1990 c 284 § 25.] Findings—Intent—2003 c 226: "The legislature finds that a large group of children spend a significant part of their lives in foster care. Each individual connected to a child in an out-of-home placement must have an abiding appreciation of the seriousness of the child’s separation from his or her family and the past, whether that separation is short, long, or permanent in nature. It is the intent of the legislature to recognize and honor the history and the family connections that each child brings to an out-of-home placement. The legislature finds that creating and sanctioning a connection between a child’s birth parents and foster family, when appropriate, can result in better relationships among birth families, children, foster families, and social workers. Creating and sanctioning this connection can result in greater foster placement stability and fewer disruptions for children, as well as greater satisfaction for foster parents and social workers." [2003 c 226 § 1.] Intent—2002 c 52: See note following RCW 13.34.025. Finding—Effective date—1990 c 284: See notes following RCW 74.13.250. 13.34.270 13.34.270 Child with developmental disability—Outof-home placement—Permanency planning hearing. (1) Whenever the department places a child with a developmental disability in out-of-home care pursuant to RCW 74.13.350, the department shall obtain a judicial determination within one hundred eighty days of the placement that continued placement is in the best interests of the child. If the child’s out-of-home placement ends before one hundred eighty days have elapsed, no judicial determination is required. (2) To obtain the judicial determination, the department shall file a petition alleging that there is located or residing within the county a child who has a developmental disability and that the child has been placed in out-of-home care pursuant to RCW 74.13.350. The petition shall request that the court review the child’s placement, make a determination whether continued placement is in the best interests of the child, and take other necessary action as provided in this section. The petition shall contain the name, date of birth, and residence of the child and the names and residences of the child’s parent or legal guardian who has agreed to the child’s placement in out-of-home care. Reasonable attempts shall be made by the department to ascertain and set forth in the petition the identity, location, and custodial status of any parent who is not a party to the placement agreement and why that parent cannot assume custody of the child. (3) Upon filing of the petition, the clerk of the court shall schedule the petition for a hearing to be held no later than fourteen calendar days after the petition has been filed. The department shall provide notification of the time, date, and purpose of the hearing to the parent or legal guardian who has agreed to the child’s placement in out-of-home care. The department shall also make reasonable attempts to notify any parent who is not a party to the placement agreement, if the parent’s identity and location is known. Notification under this section may be given by the most expedient means, including but not limited to, mail, personal service, and telephone. [Title 13 RCW—page 60] (4) The court shall appoint a guardian ad litem for the child as provided in RCW 13.34.100, unless the court for good cause finds the appointment unnecessary. (5) Permanency planning hearings shall be held as provided in this section. At the hearing, the court shall review whether the child’s best interests are served by continued outof-home placement and determine the future legal status of the child. (a) For children age ten and under, a permanency planning hearing shall be held in all cases where the child has remained in out-of-home care for at least nine months and an adoption decree or guardianship order under chapter 11.88 RCW has not previously been entered. The hearing shall take place no later than twelve months following commencement of the child’s current placement episode. (b) For children over age ten, a permanency planning hearing shall be held in all cases where the child has remained in out-of-home care for at least fifteen months and an adoption decree or guardianship order under chapter 11.88 RCW has not previously been entered. The hearing shall take place no later than eighteen months following commencement of the current placement episode. (c) No later than ten working days before the permanency planning hearing, the department shall submit a written permanency plan to the court and shall mail a copy of the plan to all parties. The plan shall be directed toward securing a safe, stable, and permanent home for the child as soon as possible. The plan shall identify one of the following outcomes as the primary goal and may also identify additional outcomes as alternative goals: Return of the child to the home of the child’s parent or legal guardian; adoption; guardianship; or long-term out-of-home care, until the child is age eighteen, with a written agreement between the parties and the child’s care provider. (d) If a goal of long-term out-of-home care has been achieved before the permanency planning hearing, the court shall review the child’s status to determine whether the placement and the plan for the child’s care remains appropriate. In cases where the primary permanency planning goal has not been achieved, the court shall inquire regarding the reasons why the primary goal has not been achieved and determine what needs to be done to make it possible to achieve the primary goal. (e) Following the first permanency planning hearing, the court shall hold a further permanency planning hearing in accordance with this section at least once every twelve months until a permanency planning goal is achieved or the voluntary placement agreement is terminated. (6) Any party to the voluntary placement agreement may terminate the agreement at any time. Upon termination of the agreement, the child shall be returned to the care of the child’s parent or legal guardian, unless the child has been taken into custody pursuant to RCW 13.34.050 or 26.44.050, placed in shelter care pursuant to RCW 13.34.060, or placed in foster care pursuant to RCW 13.34.130. The department shall notify the court upon termination of the voluntary placement agreement and return of the child to the care of the child’s parent or legal guardian. Whenever a voluntary placement agreement is terminated, an action under this section shall be dismissed. (2006 Ed.) Juvenile Court Act—Dependency and Termination of Parent-Child Relationship (7) When state or federal funds are expended for the care and maintenance of a child with a developmental disability, placed in care as a result of an action under this chapter, the department shall refer the case to the division of child support, unless the department finds that there is good cause not to pursue collection of child support against the parent or parents of the child. (8) This section does not prevent the department from filing a dependency petition if there is reason to believe that the child is a dependent child as defined in RCW 13.34.030. An action filed under this section shall be dismissed upon the filing of a dependency petition regarding a child who is the subject of the action under this section. [2004 c 183 § 2; 2000 c 122 § 33; 1998 c 229 § 2; 1997 c 386 § 19.] Effective date—2004 c 183: See note following RCW 13.34.160. Application—1997 c 386: See note following RCW 13.50.010. 13.34.300 13.34.300 Relevance of failure to cause juvenile to attend school to neglect petition. The legislature finds that it is the responsibility of the custodial parent, parents or guardian to ensure that children within the custody of such individuals attend school as provided for by law. To this end, while a parent’s failure to cause a juvenile to attend school should not alone provide a basis for a neglect petition against the parent or guardian, when a neglect petition is filed on the basis of other evidence, a parent or guardian’s failure to take reasonable steps to ensure that the juvenile attends school may be relevant to the question of the appropriate disposition of a neglect petition. [2000 c 122 § 34; 1979 ex.s. c 201 § 3.] 13.34.315 13.34.315 Health care—Evaluation and treatment. Whenever a child is ordered removed from his or her home pursuant to this chapter, the agency charged with his or her care may authorize an evaluation and treatment for the child’s routine and necessary medical, dental, or mental health care, and all necessary emergency care. [2006 c 221 § 2.] Finding—2006 c 221: "The legislature recognizes that foster children have enhanced health care needs and that it is necessary to improve the system of providing health care for foster children. The legislature further recognizes the importance of meeting the mental health needs of children in foster care, as well as their medical and dental health care needs. The legislature finds that there must be greater coordination and integration of systems, in particular coordination between children’s administration and the health and recovery services administration as well as other agencies that provide or pay for health services for foster youth, to ensure that the health care needs of children in foster care are met in a timely manner." [2006 c 221 § 1.] 13.34.320 13.34.320 Inpatient mental health treatment—When parental consent required—Hearing. The department shall obtain the prior consent of a child’s parent, legal guardian, or legal custodian before a dependent child is admitted into an inpatient mental health treatment facility. If the child’s parent, legal guardian, or legal custodian is unavailable or does not agree with the proposed admission, the department shall request a hearing and provide notice to all interested parties to seek prior approval of the juvenile court before such admission. In the event that an emergent situation creating a risk of substantial harm to the health and welfare of a child in the custody of the department does not allow time for the department to obtain prior approval or to request a court hearing before consenting to the admission of the child into an inpatient mental health hospital, the department shall (2006 Ed.) 13.34.350 seek court approval by requesting that a hearing be set on the first available court date. [1999 c 188 § 2.] Intent—1999 c 188: "It is the intent of the legislature that minor children in the care and custody of the department of social and health services under chapter 13.34 RCW be provided the most appropriate possible mental health care consistent with the child’s best interests, family reconciliation, the child’s medical need for mental health treatment, available state and community resources, and professional standards of medical care. The legislature intends that admission of such minors for mental health hospitalization be made pursuant to the criteria and standards for mental health services for minors established in chapter 71.34 RCW, and that minor children in the care and custody of the department in need of mental health hospitalization shall retain all rights set forth therein. The legislature specifically intends that this act may not be construed to affect the standards or procedures established for the involuntary commitment of minors under chapter 71.34 RCW." [1999 c 188 § 1.] 13.34.330 13.34.330 Inpatient mental health treatment—Placement. A dependent child who is admitted to an inpatient mental health facility shall be placed in a facility, with available treatment space, that is closest to the family home, unless the department, in consultation with the admitting authority finds that admission in the facility closest to the child’s home would jeopardize the health or safety of the child. [1999 c 188 § 3.] Intent—1999 c 188: See note following RCW 13.34.320. 13.34.340 13.34.340 Release of records—Disclosure to treating physician. For minors who cannot consent to the release of their records with the department because they are not old enough to consent to treatment, or, if old enough, lack the capacity to consent, or if the minor is receiving treatment involuntarily with a provider the department has authorized to provide mental health treatment under RCW 13.34.320, the department shall disclose, upon the treating physician’s request, all relevant records, including the minor’s passport as established under RCW 74.13.285, in the department’s possession that the treating physician determines contain information required for treatment of the minor. The treating physician shall maintain all records received from the department in a manner that distinguishes the records from any other records in the minor’s file with the treating physician and the department records may not be disclosed by the treating physician to any other person or entity absent a court order except that, for medical purposes only, a treating physician may disclose the department records to another treating physician. [2000 c 122 § 35; 1999 c 188 § 4.] Intent—1999 c 188: See note following RCW 13.34.320. 13.34.350 13.34.350 Dependent children—Information sharing—Guidelines. In order to facilitate communication of information needed to serve the best interest of any child who is the subject of a dependency case filed under this chapter, the department of social and health services shall, consistent with state and federal law governing the release of confidential information, establish guidelines, and shall use those guidelines for the facilitation of communication of relevant information among divisions, providers, the courts, the family, caregivers, caseworkers, and others. [2001 c 52 § 2.] Finding—2001 c 52: "Recent analysis of the child dependency system following the death of Zy’Nyia Nobles indicated poor communication of relevant information from the courts, to the department, within programs between caseworkers, between divisions, among specialists, caregivers, and [Title 13 RCW—page 61] 13.34.360 Title 13 RCW: Juvenile Courts and Juvenile Offenders family. Appropriate service delivery necessitates communication of relevant information. Barriers to appropriate communication must be eliminated." [2001 c 52 § 1.] Construction—2001 c 52: "Nothing in this act shall be construed to create a private right of action or claim against the department of social and health services on the part of any individual or organization." [2001 c 52 § 4.] 13.34.360 Transfer of newborn to qualified person— Criminal liability—Notification to child protective services—Definitions. (1) For purposes of this section: (a) "Appropriate location" means (i) the emergency department of a hospital licensed under chapter 70.41 RCW during the hours the hospital is in operation; or (ii) a fire station during its hours of operation and while fire personnel are present. (b) "Newborn" means a live human being who is less than seventy-two hours old. (c) "Qualified person" means (i) any person that the parent transferring the newborn reasonably believes is a bona fide employee, volunteer, or medical staff member of the hospital and who represents to the parent transferring the newborn that he or she can and will summon appropriate resources to meet the newborn’s immediate needs; or (ii) a fire fighter, volunteer, or emergency medical technician at a fire station who represents to the parent transferring the newborn that he or she can and will summon appropriate resources to meet the newborn’s immediate needs. (2) A parent of a newborn who transfers the newborn to a qualified person at an appropriate location is not subject to criminal liability under RCW 9A.42.060, 9A.42.070, 9A.42.080, 26.20.030, or 26.20.035. (3)(a) The qualified person at an appropriate location shall not require the parent transferring the newborn to provide any identifying information in order to transfer the newborn. (b) The qualified person at an appropriate location shall attempt to protect the anonymity of the parent who transfers the newborn, while providing an opportunity for the parent to anonymously give the qualified person such information as the parent knows about the family medical history of the parents and the newborn. The qualified person at an appropriate location shall provide referral information about adoption options, counseling, appropriate medical and emotional aftercare services, domestic violence, and legal rights to the parent seeking to transfer the newborn. (c) If a parent of a newborn transfers the newborn to a qualified person at an appropriate location pursuant to this section, the qualified person shall cause child protective services to be notified within twenty-four hours after receipt of such a newborn. Child protective services shall assume custody of the newborn within twenty-four hours after receipt of notification. (d) A hospital or fire station, its employees, volunteers, and medical staff are immune from any criminal or civil liability for accepting or receiving a newborn under this section. [2002 c 331 § 2.] newborn children nor to change existing law relating to notification to parents under chapter 13.34 RCW, but rather to assure that abandonment does not occur and that all newborns have an opportunity for adequate health care and a stable home life." [2002 c 331 § 1.] Effective date—2002 c 331: "Sections 1 through 7 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately [April 3, 2002]." [2002 c 331 § 9.] 13.34.360 Intent—2002 c 331: "The legislature intends to increase the likelihood that pregnant women will obtain adequate prenatal care and will provide their newborns with adequate health care during the first few days of their lives. The legislature recognizes that prenatal and postdelivery health care for newborns and their mothers is especially critical to their survival and well-being. The legislature does not intend to encourage the abandonment of [Title 13 RCW—page 62] 13.34.370 13.34.370 Evaluation of parties—Selection of evaluators. The court may order expert evaluations of parties to obtain information regarding visitation issues or other issues in a case. These evaluations shall be performed by appointed evaluators who are mutually agreed upon by the court, the state, and the parents’ counsel, and, if the child is to be evaluated, by the representative for the child. If no agreement can be reached, the court shall select the expert evaluator. [2004 c 146 § 2.] 13.34.380 13.34.380 Visitation policies and protocols—Development—Elements. The department of social and health services shall develop consistent policies and protocols, based on current relevant research, concerning visitation for dependent children to be implemented consistently throughout the state. The department shall develop the policies and protocols in consultation with researchers in the field, community-based agencies, court-appointed special advocates, parents’ representatives, and court representatives. The policies and protocols shall include, but not be limited to: The structure and quality of visitations; and training for caseworkers, visitation supervisors, and foster parents related to visitation. The policies and protocols shall be consistent with the provisions of this chapter and implementation of the policies and protocols shall be consistent with relevant orders of the court. [2004 c 146 § 3.] 13.34.390 13.34.390 Comprehensive services for drug-affected and alcohol-affected mothers and infants. The department of social and health services and the department of health shall develop and expand comprehensive services for drugaffected and alcohol-affected mothers and infants. Subject to funds appropriated for this purpose, the expansion shall be in evidence-based, research-based, or consensus-based practices, as those terms are defined in *section 603 of this act, and shall expand capacity in underserved regions of the state. [2005 c 504 § 303.] *Reviser’s note: Section 603 of this act was vetoed by the governor. Findings—Intent—Severability—Application—Construction— Captions, part headings, subheadings not law—Adoption of rules— Effective dates—2005 c 504: See notes following RCW 71.05.027. Alphabetization—Correction of references—2005 c 504: See note following RCW 71.05.020. 13.34.800 13.34.800 Drug-affected and alcohol-affected infants—Model project. To the extent funds are appropriated, the department shall operate a model project to provide services to women who give birth to infants exposed to the nonprescription use of controlled substances or abuse of alcohol by the mother during pregnancy. Within available funds, the project may be offered in one site in each of the three department’s administrative regions that have the highest (2006 Ed.) Juvenile Justice Act of 1977 Chapter 13.40 incidence of drug-affected or alcohol-affected infants annually. The project shall accept women referred to it by the department following the birth of a drug-affected or alcoholaffected infant. The model project shall be concluded by July 1, 2002. [1998 c 314 § 30.] compare the reduction with the rate of birth of drug-affected infants born to women referred to chemical dependency treatment programs. The study shall identify the factors that promote or discourage the ability of women to avoid giving birth to drug-affected infants. [1998 c 314 § 31.] Effective date—1998 c 314: "Sections 18 through 24, 26 through 28, 30 through 39, and 41 through 44 of this act take effect January 1, 1999." [1998 c 314 § 46.] Effective date—1998 c 314: See note following RCW 13.34.800. 13.34.801 Rules—Definition of "drug-affected infant." By July 1, 1999, the department of social and health services, in consultation with the department of health, shall adopt rules to implement chapter 314, Laws of 1998, including a definition of "drug-affected infant," which shall be limited to infants who are affected by a mother’s nonprescription use of controlled substances. [1998 c 314 § 25.] 13.34.801 13.34.802 Rules—Definition of "alcohol-affected infant." By July 1, 1999, the department of social and health services, in consultation with the department of health, shall adopt rules to implement chapter 314, Laws of 1998, including a definition of "alcohol-affected infant," which shall be limited to infants who are affected by a mother’s abuse of alcohol. [1998 c 314 § 29.] 13.34.802 13.34.803 Drug-affected and alcohol-affected infants—Comprehensive plan—Report. (1) The departments of health and social and health services shall develop a comprehensive plan for providing services to mothers who (a) have delivered a drug or alcohol exposed or affected infant, and (b) meet the definition of at-risk eligible persons in RCW 74.09.790 and who have a child up to three years of age. The services to be provided by the plan will include those defined in RCW 74.09.790. The plan shall provide for the coordination of services through community-based programs and among: (i) The departments; (ii) the departments’ divisions; and (iii) other state agencies. The plan shall include recommendations to the legislature for implementing the plan and any alternative methods for addressing the needs of these mothers and their children. (2) In developing the plan, the department of health shall inventory the community-based programs that may be accessed to provide services to these mothers and their children; evaluate implementing services for these mothers through extension of the maternity care access system; and evaluate the fiscal impact of the plan. In performing the fiscal evaluation, the department shall calculate potential long-term cost savings to the state resulting from reduced use of the medical, juvenile justice, public assistance, and dependency systems by children and mothers receiving services under the plan. (3) The department shall submit a report describing the plan to the appropriate committees of the house of representatives and senate by November 1, 1998. [1998 c 314 § 40.] 13.34.803 13.34.8051 13.34.8051 Drug-affected infants—Study—Alcoholaffected infants to be included. To the extent funds are appropriated, the institute for public policy study referenced in RCW 13.34.805 shall include alcohol-affected births. [1998 c 314 § 32.] Effective date—1998 c 314: See note following RCW 13.34.800. 13.34.810 13.34.810 Implementation of chapter 314, Laws of 1998. The department of community, trade, and economic development shall contract with The Evergreen State College for completion of the study by the Washington institute for public policy ordered pursuant to sections 14 through 16, chapter 314, Laws of 1998. The department of community, trade, and economic development shall contract with the department of social and health services for the purpose of implementing *sections 18 through 44, chapter 314, Laws of 1998. No funds for administrative expenses may be deducted by the department of community, trade, and economic development prior to allocation as provided in this section. [1998 c 314 § 48.] *Reviser’s note: Sections 18 through 24, 26 through 28, and 39 of this act were vetoed by the governor. Chapter 13.40 Sections 13.40.005 13.40.010 13.40.020 13.40.030 13.40.0351 13.40.0357 13.40.038 13.40.040 13.40.045 13.40.050 13.40.054 13.40.056 13.40.060 13.40.070 13.40.077 13.34.805 Drug-affected infants—Study. To the extent funds are appropriated, the institute for public policy shall study the cost-effectiveness of chapter 314, Laws of 1998 and report to the governor and legislature not later than January 1, 2002. The study shall measure the reduction in the birth rate of drug-affected infants among women and shall 13.34.805 (2006 Ed.) Chapter 13.40 RCW JUVENILE JUSTICE ACT OF 1977 13.40.080 13.40.085 13.40.090 Juvenile disposition standards commission—Abolished—References to commission—Transfer of powers, duties, and functions. Short title—Intent—Purpose. Definitions. Security guidelines—Legislative review—Limitations on permissible ranges of confinement. Equal application of guidelines and standards. Juvenile offender sentencing standards. County juvenile detention facilities—Policy—Detention and risk assessment standards. Taking juvenile into custody, grounds—Detention of, grounds—Detention pending disposition—Release on bond, conditions—Bail jumping. Escapees—Arrest warrants. Detention procedures—Notice of hearing—Conditions of release—Consultation with parent, guardian, or custodian. Probation bond or collateral—Modification or revocation of probation bond. Nonrefundable bail fee. Jurisdiction of actions—Transfer of case and records, when— Change in venue, grounds. Complaints—Screening—Filing information—Diversion— Modification of community supervision—Notice to parent or guardian—Probation counselor acting for prosecutor— Referral to mediation or reconciliation programs. Recommended prosecuting standards for charging and plea dispositions. Diversion agreement—Scope—Limitations—Restitution orders—Divertee’s rights—Diversion unit’s powers and duties—Interpreters—Modification—Fines. Diversion services costs—Fees—Payment by parent or legal guardian. Prosecuting attorney as party to juvenile court proceedings— Exception, procedure. [Title 13 RCW—page 63] 13.40.005 13.40.100 13.40.110 13.40.120 13.40.127 13.40.130 13.40.135 13.40.140 13.40.145 13.40.150 13.40.160 13.40.165 13.40.167 13.40.180 13.40.185 13.40.190 13.40.192 13.40.193 13.40.196 13.40.198 13.40.200 13.40.205 13.40.210 13.40.212 13.40.215 13.40.217 13.40.220 13.40.230 13.40.240 13.40.250 13.40.265 13.40.280 13.40.285 13.40.300 13.40.310 13.40.320 13.40.400 13.40.430 13.40.440 13.40.450 13.40.460 13.40.462 13.40.464 13.40.466 Title 13 RCW: Juvenile Courts and Juvenile Offenders Summons or other notification issued upon filing of information—Procedure—Order to take juvenile into custody— Contempt of court, when. Hearing on question of declining jurisdiction—Held, when— Findings. Hearings—Time and place. Deferred disposition. Procedure upon plea of guilty or not guilty to information allegations—Notice—Adjudicatory and disposition hearing— Disposition standards used in sentencing. Sexual motivation special allegation—Procedures. Juveniles entitled to usual judicial rights—Notice of—Open court—Privilege against self-incrimination—Waiver of rights, when. Payment of fees for legal services by publicly funded counsel—Hearing—Order or decree—Entering and enforcing judgments. Disposition hearing—Scope—Factors to be considered prior to entry of dispositional order. Disposition order—Court’s action prescribed—Disposition outside standard range—Right of appeal—Special sex offender disposition alternative. Chemical dependency disposition alternative. Mental health disposition alternative. Disposition order—Consecutive terms when two or more offenses—Limitations. Disposition order—Confinement under departmental supervision or in juvenile facility, when. Disposition order—Restitution for loss—Modification of restitution order. Legal financial obligations—Enforceability—Treatment of obligations upon age of eighteen or conclusion of juvenile court jurisdiction—Extension of judgment. Firearms—Length of confinement. Firearms—Special allegation. Penalty assessments—Jurisdiction of court. Violation of order of restitution, community supervision, fines, penalty assessments, or confinement—Modification of order after hearing—Scope—Rights—Use of fines. Release from physical custody, when—Authorized leaves— Leave plan and order—Notice. Setting of release date—Administrative release authorized, when—Parole program, revocation or modification of, scope—Intensive supervision program—Parole officer’s right of arrest. Intensive supervision program—Elements—Report. Juveniles found to have committed violent or sex offense or stalking—Notification of discharge, parole, leave, release, transfer, or escape—To whom given—School attendance— Definitions. Juveniles adjudicated of sex offenses—Release of information authorized. Costs of support, treatment, and confinement—Order—Contempt of court. Appeal from order of disposition—Jurisdiction—Procedure— Scope—Release pending appeal. Construction of RCW references to juvenile delinquents or juvenile delinquency. Traffic and civil infraction cases. Firearm, alcohol, and drug violations. Transfer of juvenile to department of corrections facility— Grounds—Hearing—Term—Retransfer to a facility for juveniles. Juvenile offender sentenced to terms in juvenile and adult facilities—Transfer to department of corrections—Term of confinement. Commitment of juvenile beyond age twenty-one prohibited— Jurisdiction of juvenile court after juvenile’s eighteenth birthday. Transitional treatment program for gang and drug-involved juvenile offenders. Juvenile offender basic training camp program. Applicability of RCW 10.01.040 to chapter. Disparity in disposition of juvenile offenders—Data collection. Chapter 9.92 RCW not to affect dispositions under juvenile justice act. Chapters 13.04 and 13.40 RCW as exclusive authority for adjudication and disposition of juvenile offenders. Juvenile rehabilitation programs—Administration. Reinvesting in youth program. Reinvesting in youth program—Guidelines. Reinvesting in youth account. [Title 13 RCW—page 64] 13.40.468 13.40.470 13.40.480 13.40.500 13.40.510 13.40.520 13.40.530 13.40.540 13.40.550 13.40.560 13.40.570 13.40.580 13.40.590 13.40.600 13.40.610 13.40.620 13.40.630 13.40.640 Juvenile rehabilitation administration—State quality assurance program. Vulnerable youth committed to residential facilities—Protection from sexually aggressive youth—Assessment process. Student records and information—Reasons for release—Who may request. Community juvenile accountability programs—Findings— Purpose. Community juvenile accountability programs—Establishment—Proposals—Guidelines. Community juvenile accountability programs—Grants. Community juvenile accountability programs—Effectiveness standards. Community juvenile accountability programs—Information collection—Report. Community juvenile accountability programs—Short title. Juvenile accountability incentive account. Sexual misconduct by state employees, contractors. Youth courts—Diversion. Youth court programs. Youth court jurisdiction. Youth court notification of satisfaction of conditions. Appearance before youth court with parent, guardian, or legal custodian. Youth court dispositions. Youth court nonrefundable fee. Health and dental examination and care for juveniles in detention facility— Consent: RCW 13.04.047. Juvenile may be both dependent and an offender: RCW 13.04.300. Treatment of juvenile offenders: RCW 74.14A.030, 74.14A.040. 13.40.005 13.40.005 Juvenile disposition standards commission—Abolished—References to commission—Transfer of powers, duties, and functions. (1) The juvenile disposition standards commission is hereby abolished and its powers, duties, and functions are hereby transferred to the sentencing guidelines commission. All references to the director or the juvenile disposition standards commission in the Revised Code of Washington shall be construed to mean the director or the sentencing guidelines commission. (2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the juvenile disposition standards commission shall be delivered to the custody of the sentencing guidelines commission. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the juvenile disposition standards commission shall be made available to the sentencing guidelines commission. All funds, credits, or other assets held by the juvenile disposition standards commission shall be assigned to the sentencing guidelines commission. (b) Any appropriations made to the juvenile disposition standards commission shall, on June 30, 1997, be transferred and credited to the sentencing guidelines commission. (c) If any question arises as to the transfer of any personnel, funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned. (3) All employees of the juvenile disposition standards commission are transferred to the jurisdiction of the sentencing guidelines commission. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the sentencing guidelines commission to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate (2006 Ed.) Juvenile Justice Act of 1977 thereafter in accordance with the laws and rules governing state civil service. (4) All rules and all pending business before the juvenile disposition standards commission shall be continued and acted upon by the sentencing guidelines commission. All existing contracts and obligations shall remain in full force and shall be performed by the sentencing guidelines commission. (5) The transfer of the powers, duties, functions, and personnel of the juvenile disposition standards commission shall not affect the validity of any act performed before June 30, 1997. (6) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification. (7) Nothing contained in this section may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the personnel board as provided by law. [1995 c 269 § 301.] Reviser’s note: 1995 c 269 directed that this section be added to chapter 9.94A RCW. This section has been codified in chapter 13.40 RCW, which relates more directly to the juvenile disposition standards commission. Effective date—1995 c 269 § 301: "Section 301 of this act shall take effect June 30, 1996." [1996 c 232 § 8; 1995 c 269 § 3603.] Part headings not law—1995 c 269: "Part headings as used in this act do not constitute any part of the law." [1995 c 269 § 3601.] Severability—1995 c 269: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1995 c 269 § 3602.] 13.40.010 13.40.010 Short title—Intent—Purpose. (1) This chapter shall be known and cited as the Juvenile Justice Act of 1977. (2) It is the intent of the legislature that a system capable of having primary responsibility for, being accountable for, and responding to the needs of youthful offenders and their victims, as defined by this chapter, be established. It is the further intent of the legislature that youth, in turn, be held accountable for their offenses and that communities, families, and the juvenile courts carry out their functions consistent with this intent. To effectuate these policies, the legislature declares the following to be equally important purposes of this chapter: (a) Protect the citizenry from criminal behavior; (b) Provide for determining whether accused juveniles have committed offenses as defined by this chapter; (c) Make the juvenile offender accountable for his or her criminal behavior; (d) Provide for punishment commensurate with the age, crime, and criminal history of the juvenile offender; (e) Provide due process for juveniles alleged to have committed an offense; (f) Provide necessary treatment, supervision, and custody for juvenile offenders; (2006 Ed.) 13.40.020 (g) Provide for the handling of juvenile offenders by communities whenever consistent with public safety; (h) Provide for restitution to victims of crime; (i) Develop effective standards and goals for the operation, funding, and evaluation of all components of the juvenile justice system and related services at the state and local levels; (j) Provide for a clear policy to determine what types of offenders shall receive punishment, treatment, or both, and to determine the jurisdictional limitations of the courts, institutions, and community services; (k) Provide opportunities for victim participation in juvenile justice process, including court hearings on juvenile offender matters, and ensure that Article I, section 35 of the Washington state Constitution, the victim bill of rights, is fully observed; and (l) Encourage the parents, guardian, or custodian of the juvenile to actively participate in the juvenile justice process. [2004 c 120 § 1; 1997 c 338 § 8; 1992 c 205 § 101; 1977 ex.s. c 291 § 55.] Effective date—2004 c 120: "This act takes effect July 1, 2004." [2004 c 120 § 11.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Part headings not law—1992 c 205: "Part headings as used in this act do not constitute any part of the law." [1992 c 205 § 405.] Severability—1992 c 205: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1992 c 205 § 406.] Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.020 13.40.020 Definitions. For the purposes of this chapter: (1) "Community-based rehabilitation" means one or more of the following: Employment; attendance of information classes; literacy classes; counseling, outpatient substance abuse treatment programs, outpatient mental health programs, anger management classes, education or outpatient treatment programs to prevent animal cruelty, or other services; or attendance at school or other educational programs appropriate for the juvenile as determined by the school district. Placement in community-based rehabilitation programs is subject to available funds; (2) Community-based sanctions may include one or more of the following: (a) A fine, not to exceed five hundred dollars; (b) Community restitution not to exceed one hundred fifty hours of community restitution; (3) "Community restitution" means compulsory service, without compensation, performed for the benefit of the community by the offender as punishment for committing an offense. Community restitution may be performed through public or private organizations or through work crews; (4) "Community supervision" means an order of disposition by the court of an adjudicated youth not committed to the department or an order granting a deferred disposition. A community supervision order for a single offense may be for a period of up to two years for a sex offense as defined by RCW 9.94A.030 and up to one year for other offenses. As a [Title 13 RCW—page 65] 13.40.020 Title 13 RCW: Juvenile Courts and Juvenile Offenders mandatory condition of any term of community supervision, the court shall order the juvenile to refrain from committing new offenses. As a mandatory condition of community supervision, the court shall order the juvenile to comply with the mandatory school attendance provisions of chapter 28A.225 RCW and to inform the school of the existence of this requirement. Community supervision is an individualized program comprised of one or more of the following: (a) Community-based sanctions; (b) Community-based rehabilitation; (c) Monitoring and reporting requirements; (d) Posting of a probation bond; (5) "Confinement" means physical custody by the department of social and health services in a facility operated by or pursuant to a contract with the state, or physical custody in a detention facility operated by or pursuant to a contract with any county. The county may operate or contract with vendors to operate county detention facilities. The department may operate or contract to operate detention facilities for juveniles committed to the department. Pretrial confinement or confinement of less than thirty-one days imposed as part of a disposition or modification order may be served consecutively or intermittently, in the discretion of the court; (6) "Court," when used without further qualification, means the juvenile court judge(s) or commissioner(s); (7) "Criminal history" includes all criminal complaints against the respondent for which, prior to the commission of a current offense: (a) The allegations were found correct by a court. If a respondent is convicted of two or more charges arising out of the same course of conduct, only the highest charge from among these shall count as an offense for the purposes of this chapter; or (b) The criminal complaint was diverted by a prosecutor pursuant to the provisions of this chapter on agreement of the respondent and after an advisement to the respondent that the criminal complaint would be considered as part of the respondent’s criminal history. A successfully completed deferred adjudication that was entered before July 1, 1998, or a deferred disposition shall not be considered part of the respondent’s criminal history; (8) "Department" means the department of social and health services; (9) "Detention facility" means a county facility, paid for by the county, for the physical confinement of a juvenile alleged to have committed an offense or an adjudicated offender subject to a disposition or modification order. "Detention facility" includes county group homes, inpatient substance abuse programs, juvenile basic training camps, and electronic monitoring; (10) "Diversion unit" means any probation counselor who enters into a diversion agreement with an alleged youthful offender, or any other person, community accountability board, youth court under the supervision of the juvenile court, or other entity except a law enforcement official or entity, with whom the juvenile court administrator has contracted to arrange and supervise such agreements pursuant to RCW 13.40.080, or any person, community accountability board, or other entity specially funded by the legislature to arrange and supervise diversion agreements in accordance with the requirements of this chapter. For purposes of this [Title 13 RCW—page 66] subsection, "community accountability board" means a board comprised of members of the local community in which the juvenile offender resides. The superior court shall appoint the members. The boards shall consist of at least three and not more than seven members. If possible, the board should include a variety of representatives from the community, such as a law enforcement officer, teacher or school administrator, high school student, parent, and business owner, and should represent the cultural diversity of the local community; (11) "Foster care" means temporary physical care in a foster family home or group care facility as defined in RCW 74.15.020 and licensed by the department, or other legally authorized care; (12) "Institution" means a juvenile facility established pursuant to chapters 72.05 and 72.16 through 72.20 RCW; (13) "Intensive supervision program" means a parole program that requires intensive supervision and monitoring, offers an array of individualized treatment and transitional services, and emphasizes community involvement and support in order to reduce the likelihood a juvenile offender will commit further offenses; (14) "Juvenile," "youth," and "child" mean any individual who is under the chronological age of eighteen years and who has not been previously transferred to adult court pursuant to RCW 13.40.110 or who is otherwise under adult court jurisdiction; (15) "Juvenile offender" means any juvenile who has been found by the juvenile court to have committed an offense, including a person eighteen years of age or older over whom jurisdiction has been extended under RCW 13.40.300; (16) "Local sanctions" means one or more of the following: (a) 0-30 days of confinement; (b) 0-12 months of community supervision; (c) 0-150 hours of community restitution; or (d) $0-$500 fine; (17) "Manifest injustice" means a disposition that would either impose an excessive penalty on the juvenile or would impose a serious, and clear danger to society in light of the purposes of this chapter; (18) "Monitoring and reporting requirements" means one or more of the following: Curfews; requirements to remain at home, school, work, or court-ordered treatment programs during specified hours; restrictions from leaving or entering specified geographical areas; requirements to report to the probation officer as directed and to remain under the probation officer’s supervision; and other conditions or limitations as the court may require which may not include confinement; (19) "Offense" means an act designated a violation or a crime if committed by an adult under the law of this state, under any ordinance of any city or county of this state, under any federal law, or under the law of another state if the act occurred in that state; (20) "Probation bond" means a bond, posted with sufficient security by a surety justified and approved by the court, to secure the offender’s appearance at required court proceedings and compliance with court-ordered community supervision or conditions of release ordered pursuant to RCW 13.40.040 or 13.40.050. It also means a deposit of cash (2006 Ed.) Juvenile Justice Act of 1977 or posting of other collateral in lieu of a bond if approved by the court; (21) "Respondent" means a juvenile who is alleged or proven to have committed an offense; (22) "Restitution" means financial reimbursement by the offender to the victim, and shall be limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical treatment for physical injury to persons, lost wages resulting from physical injury, and costs of the victim’s counseling reasonably related to the offense. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses. Nothing in this chapter shall limit or replace civil remedies or defenses available to the victim or offender; (23) "Secretary" means the secretary of the department of social and health services. "Assistant secretary" means the assistant secretary for juvenile rehabilitation for the department; (24) "Services" means services which provide alternatives to incarceration for those juveniles who have pleaded or been adjudicated guilty of an offense or have signed a diversion agreement pursuant to this chapter; (25) "Sex offense" means an offense defined as a sex offense in RCW 9.94A.030; (26) "Sexual motivation" means that one of the purposes for which the respondent committed the offense was for the purpose of his or her sexual gratification; (27) "Surety" means an entity licensed under state insurance laws or by the state department of licensing, to write corporate, property, or probation bonds within the state, and justified and approved by the superior court of the county having jurisdiction of the case; (28) "Violation" means an act or omission, which if committed by an adult, must be proven beyond a reasonable doubt, and is punishable by sanctions which do not include incarceration; (29) "Violent offense" means a violent offense as defined in RCW 9.94A.030; (30) "Youth court" means a diversion unit under the supervision of the juvenile court. [2004 c 120 § 2. Prior: 2002 c 237 § 7; 2002 c 175 § 19; 1997 c 338 § 10; (1997 c 338 § 9 expired July 1, 1998); prior: 1995 c 395 § 2; 1995 c 134 § 1; prior: 1994 sp.s. c 7 § 520; 1994 c 271 § 803; 1994 c 261 § 18; 1993 c 373 § 1; 1990 1st ex.s. c 12 § 1; 1990 c 3 § 301; 1989 c 407 § 1; 1988 c 145 § 17; 1983 c 191 § 7; 1981 c 299 § 2; 1979 c 155 § 54; 1977 ex.s. c 291 § 56.] Effective date—2004 c 120: See note following RCW 13.40.010. Effective date—2002 c 175: See note following RCW 7.80.130. 13.40.0351 Severability—1993 c 373: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1993 c 373 § 3.] Effective date—1990 1st ex.s. c 12: "This act shall take effect July 1, 1990." [1990 1st ex.s. c 12 § 5.] Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.030 13.40.030 Security guidelines—Legislative review— Limitations on permissible ranges of confinement. (1) The secretary shall submit guidelines pertaining to the nature of the security to be imposed on youth placed in his or her custody based on the age, offense(s), and criminal history of the juvenile offender. Such guidelines shall be submitted to the legislature for its review no later than November 1st of each year. The department shall include security status definitions in the security guidelines it submits to the legislature pursuant to this section. (2) The permissible ranges of confinement resulting from a finding of manifest injustice under RCW 13.40.0357 are subject to the following limitations: (a) Where the maximum term in the range is ninety days or less, the minimum term in the range may be no less than fifty percent of the maximum term in the range; (b) Where the maximum term in the range is greater than ninety days but not greater than one year, the minimum term in the range may be no less than seventy-five percent of the maximum term in the range; and (c) Where the maximum term in the range is more than one year, the minimum term in the range may be no less than eighty percent of the maximum term in the range. [2003 c 207 § 5; 1996 c 232 § 5; 1989 c 407 § 3; 1985 c 73 § 1; 1983 c 191 § 6; 1981 c 299 § 5; 1979 c 155 § 55; 1977 ex.s. c 291 § 57.] Effective dates—1996 c 232: See note following RCW 9.94A.850. Legislative ratification—1989 c 271: "The legislature ratifies the juvenile disposition standards commission guidelines submitted to the 1989 legislature and endorses the action to increase penalties for juvenile drug offenders." [1989 c 271 § 602.] Effective date—1985 c 73: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect June 30, 1985." [1985 c 73 § 3.] Alphabetization of definitions—1997 c 338: "The code reviser shall alphabetize the definitions in RCW 13.40.020 and correct any references." [1997 c 338 § 71.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Purpose—Severability—1994 c 271: See notes following RCW 9A.28.020. Finding—Intent—1994 c 261: See note following RCW 16.52.011. (2006 Ed.) 13.40.0351 13.40.0351 Equal application of guidelines and standards. The sentencing guidelines and prosecuting standards apply equally to juvenile offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or the previous record of the offender. [1989 c 407 § 5.] [Title 13 RCW—page 67] 13.40.0357 Title 13 RCW: Juvenile Courts and Juvenile Offenders 13.40.0357 Juvenile offender sentencing standards. (Effective until July 1, 2007.) E DESCRIPTION AND OFFENSE CATEGORY C 13.40.0357 JUVENILE DISPOSITION OFFENSE CATEGORY DESCRIPTION (RCW CITATION) JUVENILE DISPOSITION CATEGORY FOR ATTEMPT, BAILJUMP, CONSPIRACY, OR SOLICITATION ................................................ Arson and Malicious Mischief A Arson 1 (9A.48.020) B+ B Arson 2 (9A.48.030) C C Reckless Burning 1 (9A.48.040) D D Reckless Burning 2 (9A.48.050) E B Malicious Mischief 1 (9A.48.070) C C Malicious Mischief 2 (9A.48.080) D D Malicious Mischief 3 (9A.48.090(2) (a) and (c)) E E Malicious Mischief 3 (9A.48.090(2)(b)) E E Tampering with Fire Alarm Apparatus (9.40.100) E E Tampering with Fire Alarm Apparatus with Intent to Commit Arson (9.40.105) E A Possession of Incendiary Device (9.40.120) B+ A B+ C+ D+ B+ D+ C+ D+ C+ Assault and Other Crimes Involving Physical Harm Assault 1 (9A.36.011) Assault 2 (9A.36.021) Assault 3 (9A.36.031) Assault 4 (9A.36.041) Drive-By Shooting (9A.36.045) Reckless Endangerment (9A.36.050) Promoting Suicide Attempt (9A.36.060) Coercion (9A.36.070) Custodial Assault (9A.36.100) B+ B B D D E C C D Burglary and Trespass Burglary 1 (9A.52.020) C+ Residential Burglary (9A.52.025) C Burglary 2 (9A.52.030) C Burglary Tools (Possession of) (9A.52.060) E Criminal Trespass 1 (9A.52.070) E Criminal Trespass 2 (9A.52.080) E Mineral Trespass (78.44.330) C Vehicle Prowling 1 (9A.52.095) D Vehicle Prowling 2 (9A.52.100) E E C C+ E B+ C B+ C+ D+ E C+ E D+ E D+ Drugs Possession/Consumption of Alcohol (66.44.270) E Illegally Obtaining Legend Drug (69.41.020) D Sale, Delivery, Possession of Legend Drug with Intent to Sell (69.41.030(2)(a)) D+ Possession of Legend Drug (69.41.030(2)(b)) E Violation of Uniform Controlled Substances Act - Narcotic, Methamphetamine, or Flunitrazepam Sale (69.50.401(2) (a) or (b)) B+ Violation of Uniform Controlled Substances Act - Nonnarcotic Sale (69.50.401(2)(c)) C [Title 13 RCW—page 68] C+ E B C C C Possession of Marihuana <40 grams (69.50.4014) E Fraudulently Obtaining Controlled Substance (69.50.403) C Sale of Controlled Substance for Profit (69.50.410) C+ Unlawful Inhalation (9.47A.020) E Violation of Uniform Controlled Substances Act - Narcotic, Methamphetamine, or Flunitrazepam Counterfeit Substances (69.50.4011(2) (a) or (b)) B Violation of Uniform Controlled Substances Act - Nonnarcotic Counterfeit Substances (69.50.4011(2) (c), (d), or (e)) C Violation of Uniform Controlled Substances Act - Possession of a Controlled Substance (69.50.4013) C Violation of Uniform Controlled Substances Act - Possession of a Controlled Substance (69.50.4012) C Firearms and Weapons Theft of Firearm (9A.56.300) Possession of Stolen Firearm (9A.56.310) Carrying Loaded Pistol Without Permit (9.41.050) Possession of Firearms by Minor (<18) (9.41.040(2)(a)(iii)) Possession of Dangerous Weapon (9.41.250) Intimidating Another Person by use of Weapon (9.41.270) E A+ A+ B+ C+ B+ Homicide Murder 1 (9A.32.030) Murder 2 (9A.32.050) Manslaughter 1 (9A.32.060) Manslaughter 2 (9A.32.070) Vehicular Homicide (46.61.520) A B+ C+ D+ C+ A B+ C+ Kidnapping Kidnap 1 (9A.40.020) Kidnap 2 (9A.40.030) Unlawful Imprisonment (9A.40.040) B+ C+ D+ E B C E B+ B+ Obstructing Governmental Operation Obstructing a Law Enforcement Officer (9A.76.020) Resisting Arrest (9A.76.040) Introducing Contraband 1 (9A.76.140) Introducing Contraband 2 (9A.76.150) Introducing Contraband 3 (9A.76.160) Intimidating a Public Servant (9A.76.180) Intimidating a Witness (9A.72.110) E E C D E C+ C+ C+ D+ E E Public Disturbance Riot with Weapon (9A.84.010(2)(b)) Riot Without Weapon (9A.84.010(2)(a)) Failure to Disperse (9A.84.020) Disorderly Conduct (9A.84.030) D+ E E E A A- Sex Crimes Rape 1 (9A.44.040) Rape 2 (9A.44.050) B+ B+ B B E C D+ D D C C E C E (2006 Ed.) Juvenile Justice Act of 1977 C+ AB+ B C D+ E B+ C+ E B+ AB B C D B C A B+ B+ C+ C D D B C D C E B+ C D E C C E D B B C C D E A B (2006 Ed.) Rape 3 (9A.44.060) Rape of a Child 1 (9A.44.073) Rape of a Child 2 (9A.44.076) Incest 1 (9A.64.020(1)) Incest 2 (9A.64.020(2)) Indecent Exposure (Victim <14) (9A.88.010) Indecent Exposure (Victim 14 or over) (9A.88.010) Promoting Prostitution 1 (9A.88.070) Promoting Prostitution 2 (9A.88.080) O & A (Prostitution) (9A.88.030) Indecent Liberties (9A.44.100) Child Molestation 1 (9A.44.083) Child Molestation 2 (9A.44.086) D+ B+ C+ C D C E V E C+ D+ E C+ B+ C+ Theft, Robbery, Extortion, and Forgery Theft 1 (9A.56.030) C Theft 2 (9A.56.040) D Theft 3 (9A.56.050) E Theft of Livestock 1 and 2 (9A.56.080 and 9A.56.083) C Forgery (9A.60.020) D Robbery 1 (9A.56.200) B+ Robbery 2 (9A.56.210) C+ Extortion 1 (9A.56.120) C+ Extortion 2 (9A.56.130) D+ Identity Theft 1 (9.35.020(2)) D Identity Theft 2 (9.35.020(3)) E Improperly Obtaining Financial Information (9.35.010) E Possession of Stolen Property 1 (9A.56.150)C Possession of Stolen Property 2 (9A.56.160)D Possession of Stolen Property 3 (9A.56.170)E Taking Motor Vehicle Without Permission 1 and 2 (9A.56.070 and 9A.56.075) D Motor Vehicle Related Crimes Driving Without a License (46.20.005) Hit and Run - Death (46.52.020(4)(a)) Hit and Run - Injury (46.52.020(4)(b)) Hit and Run-Attended (46.52.020(5)) Hit and Run-Unattended (46.52.010) Vehicular Assault (46.61.522) Attempting to Elude Pursuing Police Vehicle (46.61.024) Reckless Driving (46.61.500) Driving While Under the Influence (46.61.502 and 46.61.504) E C+ D E E D 13.40.0357 Other Offense Equivalent to an Adult Class C Felony D Other Offense Equivalent to an Adult Gross Misdemeanor E Other Offense Equivalent to an Adult Misdemeanor E Violation of Order of Restitution, Community Supervision, or Confinement (13.40.200)2 V D E Escape 1 and 2 and Attempted Escape 1 and 2 are classed as C offenses and the standard range is established as follows: 1 1st escape or attempted escape during 12-month period 4 weeks confinement 2nd escape or attempted escape during 12-month period - 8 weeks confinement 3rd and subsequent escape or attempted escape during 12-month period - 12 weeks confinement If the court finds that a respondent has violated terms of an order, it may impose a penalty of up to 30 days of confinement. 2 JUVENILE SENTENCING STANDARDS This schedule must be used for juvenile offenders. The court may select sentencing option A, B, C, D, or RCW 13.40.167. OPTION A JUVENILE OFFENDER SENTENCING GRID STANDARD RANGE A+ 180 WEEKS TO AGE 21 YEARS A 103 WEEKS TO 129 WEEKS A- 15-36 WEEKS EXCEPT 30-40 WEEKS FOR 15-17 YEAR OLDS Current B+ Offense Category B 80-100 WEEKS 103-129 WEEKS 15-36 WEEKS 52-65 WEEKS 80-100 103-129 WEEKS WEEKS LOCAL SANCTIONS (LS) 15-36 WEEKS D E C+ E C LS D+ LS D LS E 52-65 WEEKS 52-65 WEEKS LS Other Animal Cruelty 1 (16.52.205) C Bomb Threat (9.61.160) C Escape 11 (9A.76.110) C Escape 21 (9A.76.120) C Escape 3 (9A.76.130) E Obscene, Harassing, Etc., Phone Calls (9.61.230) E Other Offense Equivalent to an Adult Class A Felony B+ Other Offense Equivalent to an Adult Class B Felony C LS 15-36 WEEKS 15-36 WEEKS Local Sanctions: 0 to 30 Days 0 to 12 Months Community Supervision 0 to 150 Hours Community Restitution $0 to $500 Fine 0 1 2 3 4 or more PRIOR ADJUDICATIONS NOTE: References in the grid to days or weeks mean periods of confinement. (1) The vertical axis of the grid is the current offense category. The current offense category is determined by the offense of adjudication. [Title 13 RCW—page 69] 13.40.0357 Title 13 RCW: Juvenile Courts and Juvenile Offenders (2) The horizontal axis of the grid is the number of prior adjudications included in the juvenile’s criminal history. Each prior felony adjudication shall count as one point. Each prior violation, misdemeanor, and gross misdemeanor adjudication shall count as 1/4 point. Fractional points shall be rounded down. (3) The standard range disposition for each offense is determined by the intersection of the column defined by the prior adjudications and the row defined by the current offense category. (4) RCW 13.40.180 applies if the offender is being sentenced for more than one offense. (5) A current offense that is a violation is equivalent to an offense category of E. However, a disposition for a violation shall not include confinement. OR OPTION B SUSPENDED DISPOSITION ALTERNATIVE (1) If the offender is subject to a standard range disposition involving confinement by the department, the court may impose the standard range and suspend the disposition on condition that the offender comply with one or more local sanctions and any educational or treatment requirement. The treatment programs provided to the offender must be research-based best practice programs as identified by the Washington state institute for public policy or the joint legislative audit and review committee. (2) If the offender fails to comply with the suspended disposition, the court may impose sanctions pursuant to RCW 13.40.200 or may revoke the suspended disposition and order the disposition’s execution. (3) An offender is ineligible for the suspended disposition option under this section if the offender is: (a) Adjudicated of an A+ offense; (b) Fourteen years of age or older and is adjudicated of one or more of the following offenses: (i) A class A offense, or an attempt, conspiracy, or solicitation to commit a class A offense; (ii) Manslaughter in the first degree (RCW 9A.32.060); or (iii) Assault in the second degree (RCW 9A.36.021), extortion in the first degree (RCW 9A.56.120), kidnapping in the second degree (RCW 9A.40.030), robbery in the second degree (RCW 9A.56.210), residential burglary (RCW 9A.5 2.0 25 ) , bu rg lar y i n th e seco nd deg r ee ( R CW 9A.52.030), drive-by shooting (RCW 9A.36.045), vehicular homicide (RCW 46.61.520), hit and run death (RCW 46.52.020(4)(a)), intimidating a witness (RCW 9A.72.110), violation of the uniform controlled substances act (RCW 69.50.401 (2)(a) and (b)), or manslaughter 2 (RCW 9A.32.070), when the offense includes infliction of bodily harm upon another or when during the commission or immediate withdrawal from the offense the respondent was armed with a deadly weapon; (c) Ordered to serve a disposition for a firearm violation under RCW 13.40.193; or (d) Adjudicated of a sex offense as defined in RCW 9.94A.030. [Title 13 RCW—page 70] OR OPTION C CHEMICAL DEPENDENCY DISPOSITION ALTERNATIVE If the juvenile offender is subject to a standard range disposition of local sanctions or 15 to 36 weeks of confinement and has not committed an A- or B+ offense, the court may impose a disposition under RCW 13.40.160(4) and 13.40.165. OR OPTION D MANIFEST INJUSTICE If the court determines that a disposition under option A, B, or C would effectuate a manifest injustice, the court shall impose a disposition outside the standard range under RCW 13.40.160(2). [2004 c 117 § 1. Prior: 2003 c 378 § 2; 2003 c 335 § 6; 2003 c 53 § 97; prior: 2002 c 324 § 3; 2002 c 175 § 20; 2001 c 217 § 13; 2000 c 66 § 3; 1998 c 290 § 5; prior: 1997 c 338 § 12; (1997 c 338 § 11 expired July 1, 1998); 1997 c 66 § 6; 1996 c 205 § 6; 1995 c 395 § 3; 1994 sp.s. c 7 § 522; 1989 c 407 § 7.] Effective date—2004 c 117: "This act takes effect July 1, 2004." [2004 c 117 § 3.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Study and report—2002 c 324: See note following RCW 9A.56.070. Effective date—2002 c 175: See note following RCW 7.80.130. Captions not law—2001 c 217: See note following RCW 9.35.005. Application—Effective date—Severability—1998 c 290: See notes following RCW 69.50.401. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Evaluation—Report—1997 c 338: "The legislature finds it critical to evaluate the effectiveness of the revisions made in this act to juvenile sentencing for purposes of measuring improvements in public safety and reduction of recidivism. To accomplish this evaluation, the Washington state institute for public policy shall conduct a study of the sentencing revisions. The study shall: (1) Be conducted starting January 1, 2001; (2) examine whether the revisions have affected the rate of initial offense commission and recidivism; (3) determine the impacts of the revisions by age, race, and gender impacts of the revisions; (4) compare the utilization and effectiveness of sentencing alternatives and manifest injustice determinations before and after the revisions; and (5) examine the impact and effectiveness of changes made in the exclusive original jurisdiction of juvenile court over juvenile offenders. The institute shall report the results of the study to the governor and legislature not later than July 1, 2002." [1997 c 338 § 59.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. 13.40.0357 13.40.0357 Juvenile offender sentencing standards. (Effective July 1, 2007.) DESCRIPTION AND OFFENSE CATEGORY JUVENILE DISPOSITION OFFENSE CATEGORY DESCRIPTION (RCW CITATION) JUVENILE DISPOSITION CATEGORY FOR ATTEMPT, BAILJUMP, CONSPIRACY, OR SOLICITATION ................................................ Arson and Malicious Mischief A Arson 1 (9A.48.020) B+ (2006 Ed.) Juvenile Justice Act of 1977 B C D B C D A Arson 2 (9A.48.030) C Reckless Burning 1 (9A.48.040) D Reckless Burning 2 (9A.48.050) E Malicious Mischief 1 (9A.48.070) C Malicious Mischief 2 (9A.48.080) D Malicious Mischief 3 (9A.48.090(2) (a) and (c)) E Malicious Mischief 3 (9A.48.090(2)(b)) E Tampering with Fire Alarm Apparatus (9.40.100) E Tampering with Fire Alarm Apparatus with Intent to Commit Arson (9.40.105) E Possession of Incendiary Device (9.40.120) B+ A B+ C+ D+ B+ D+ C+ D+ C+ Assault and Other Crimes Involving Physical Harm Assault 1 (9A.36.011) Assault 2 (9A.36.021) Assault 3 (9A.36.031) Assault 4 (9A.36.041) Drive-By Shooting (9A.36.045) Reckless Endangerment (9A.36.050) Promoting Suicide Attempt (9A.36.060) Coercion (9A.36.070) Custodial Assault (9A.36.100) B+ B B D D E C C D Burglary and Trespass Burglary 1 (9A.52.020) C+ Residential Burglary (9A.52.025) C Burglary 2 (9A.52.030) C Burglary Tools (Possession of) (9A.52.060) E Criminal Trespass 1 (9A.52.070) E Criminal Trespass 2 (9A.52.080) E Mineral Trespass (78.44.330) C Vehicle Prowling 1 (9A.52.095) D Vehicle Prowling 2 (9A.52.100) E E E E E C C+ E B+ C E C C+ E B (2006 Ed.) C C C Drugs Possession/Consumption of Alcohol (66.44.270) E Illegally Obtaining Legend Drug (69.41.020) D Sale, Delivery, Possession of Legend Drug with Intent to Sell (69.41.030(2)(a)) D+ Possession of Legend Drug (69.41.030(2)(b)) E Violation of Uniform Controlled Substances Act - Narcotic, Methamphetamine, or Flunitrazepam Sale (69.50.401(2) (a) or (b)) B+ Violation of Uniform Controlled Substances Act - Nonnarcotic Sale (69.50.401(2)(c)) C Possession of Marihuana <40 grams (69.50.4014) E Fraudulently Obtaining Controlled Substance (69.50.403) C Sale of Controlled Substance for Profit (69.50.410) C+ Unlawful Inhalation (9.47A.020) E Violation of Uniform Controlled Substances Act - Narcotic, Methamphetamine, or Flunitrazepam Counterfeit Substances (69.50.4011(2) (a) or (b)) B Violation of Uniform Controlled Substances Act - Nonnarcotic Counterfeit Substances (69.50.4011(2) (c), (d), or (e)) C Violation of Uniform Controlled Substances Act - Possession of a Controlled Substance (69.50.4013) C Violation of Uniform Controlled Substances Act - Possession of a Controlled Substance (69.50.4012) C Firearms and Weapons Theft of Firearm (9A.56.300) Possession of Stolen Firearm (9A.56.310) Carrying Loaded Pistol Without Permit (9.41.050) Possession of Firearms by Minor (<18) (9.41.040(2)(a)(iii)) Possession of Dangerous Weapon (9.41.250) Intimidating Another Person by use of Weapon (9.41.270) E A+ A+ B+ C+ B+ Homicide Murder 1 (9A.32.030) Murder 2 (9A.32.050) Manslaughter 1 (9A.32.060) Manslaughter 2 (9A.32.070) Vehicular Homicide (46.61.520) A B+ C+ D+ C+ A B+ C+ Kidnapping Kidnap 1 (9A.40.020) Kidnap 2 (9A.40.030) Unlawful Imprisonment (9A.40.040) B+ C+ D+ E B C E B+ B+ Obstructing Governmental Operation Obstructing a Law Enforcement Officer (9A.76.020) Resisting Arrest (9A.76.040) Introducing Contraband 1 (9A.76.140) Introducing Contraband 2 (9A.76.150) Introducing Contraband 3 (9A.76.160) Intimidating a Public Servant (9A.76.180) Intimidating a Witness (9A.72.110) E E C D E C+ C+ C+ D+ E E Public Disturbance Riot with Weapon (9A.84.010(2)(b)) Riot Without Weapon (9A.84.010(2)(a)) Failure to Disperse (9A.84.020) Disorderly Conduct (9A.84.030) D+ E E E B B E C B+ C+ D+ E C+ E D+ E D+ 13.40.0357 D+ D D A AC+ AB+ B C D+ E B+ C+ Sex Crimes Rape 1 (9A.44.040) Rape 2 (9A.44.050) Rape 3 (9A.44.060) Rape of a Child 1 (9A.44.073) Rape of a Child 2 (9A.44.076) Incest 1 (9A.64.020(1)) Incest 2 (9A.64.020(2)) Indecent Exposure (Victim <14) (9A.88.010) Indecent Exposure (Victim 14 or over) (9A.88.010) Promoting Prostitution 1 (9A.88.070) Promoting Prostitution 2 (9A.88.080) C C E C E B+ B+ D+ B+ C+ C D E E C+ D+ [Title 13 RCW—page 71] 13.40.0357 E B+ AB B C D B C A B+ B+ C+ C D D B C D C E B+ C D E C C E D B+ B+ B B C C D E A B C D E Title 13 RCW: Juvenile Courts and Juvenile Offenders O & A (Prostitution) (9A.88.030) Indecent Liberties (9A.44.100) Child Molestation 1 (9A.44.083) Child Molestation 2 (9A.44.086) E C+ B+ C+ Theft, Robbery, Extortion, and Forgery Theft 1 (9A.56.030) C Theft 2 (9A.56.040) D Theft 3 (9A.56.050) E Theft of Livestock 1 and 2 (9A.56.080 and 9A.56.083) C Forgery (9A.60.020) D Robbery 1 (9A.56.200) B+ Robbery 2 (9A.56.210) C+ Extortion 1 (9A.56.120) C+ Extortion 2 (9A.56.130) D+ Identity Theft 1 (9.35.020(2)) D Identity Theft 2 (9.35.020(3)) E Improperly Obtaining Financial Information (9.35.010) E Possession of Stolen Property 1 (9A.56.150)C Possession of Stolen Property 2 (9A.56.160)D Possession of Stolen Property 3 (9A.56.170)E Taking Motor Vehicle Without Permission 1 and 2 (9A.56.070 and 9A.56.075) D Motor Vehicle Related Crimes Driving Without a License (46.20.005) Hit and Run - Death (46.52.020(4)(a)) Hit and Run - Injury (46.52.020(4)(b)) Hit and Run-Attended (46.52.020(5)) Hit and Run-Unattended (46.52.010) Vehicular Assault (46.61.522) Attempting to Elude Pursuing Police Vehicle (46.61.024) Reckless Driving (46.61.500) Driving While Under the Influence (46.61.502 and 46.61.504) Violation of Order of Restitution, Community Supervision, or Confinement (13.40.200)2 V Escape 1 and 2 and Attempted Escape 1 and 2 are classed as C offenses and the standard range is established as follows: 1 1st escape or attempted escape during 12-month period 4 weeks confinement 2nd escape or attempted escape during 12-month period - 8 weeks confinement 3rd and subsequent escape or attempted escape during 12-month period - 12 weeks confinement If the court finds that a respondent has violated terms of an order, it may impose a penalty of up to 30 days of confinement. 2 JUVENILE SENTENCING STANDARDS This schedule must be used for juvenile offenders. The court may select sentencing option A, B, C, D, or RCW 13.40.167. OPTION A JUVENILE OFFENDER SENTENCING GRID STANDARD RANGE A+ E C+ D E E D D E E Felony Driving While Under the Influence (46.61.502(6)) B Felony Physical Control of a Vehicle While Under the Influence (46.61.504(6)) B Other Animal Cruelty 1 (16.52.205) C Bomb Threat (9.61.160) C Escape 11 (9A.76.110) C Escape 21 (9A.76.120) C Escape 3 (9A.76.130) E Obscene, Harassing, Etc., Phone Calls (9.61.230) E Other Offense Equivalent to an Adult Class A Felony B+ Other Offense Equivalent to an Adult Class B Felony C Other Offense Equivalent to an Adult Class C Felony D Other Offense Equivalent to an Adult Gross Misdemeanor E Other Offense Equivalent to an Adult Misdemeanor E [Title 13 RCW—page 72] V 180 WEEKS TO AGE 21 YEARS A 103 WEEKS TO 129 WEEKS A- 15-36 WEEKS EXCEPT 30-40 WEEKS FOR 15-17 YEAR OLDS Current B+ Offense Category B C+ 52-65 WEEKS 80-100 WEEKS 103-129 WEEKS 15-36 WEEKS 52-65 WEEKS 80-100 103-129 WEEKS WEEKS LOCAL SANCTIONS (LS) 15-36 WEEKS 52-65 WEEKS LS 15-36 WEEKS C LS D+ LS D LS E 15-36 WEEKS Local Sanctions: 0 to 30 Days 0 to 12 Months Community Supervision 0 to 150 Hours Community Restitution $0 to $500 Fine LS 0 1 2 3 4 or more PRIOR ADJUDICATIONS NOTE: References in the grid to days or weeks mean periods of confinement. (1) The vertical axis of the grid is the current offense category. The current offense category is determined by the offense of adjudication. (2) The horizontal axis of the grid is the number of prior adjudications included in the juvenile’s criminal history. Each prior felony adjudication shall count as one point. Each prior violation, misdemeanor, and gross misdemeanor adjudication shall count as 1/4 point. Fractional points shall be rounded down. (2006 Ed.) Juvenile Justice Act of 1977 13.40.038 OR (3) The standard range disposition for each offense is determined by the intersection of the column defined by the prior adjudications and the row defined by the current offense category. (4) RCW 13.40.180 applies if the offender is being sentenced for more than one offense. (5) A current offense that is a violation is equivalent to an offense category of E. However, a disposition for a violation shall not include confinement. If the juvenile offender is subject to a standard range disposition of local sanctions or 15 to 36 weeks of confinement and has not committed an A- or B+ offense, the court may impose a disposition under RCW 13.40.160(4) and 13.40.165. OR OR OPTION C CHEMICAL DEPENDENCY DISPOSITION ALTERNATIVE OPTION D MANIFEST INJUSTICE OPTION B SUSPENDED DISPOSITION ALTERNATIVE (1) If the offender is subject to a standard range disposition involving confinement by the department, the court may impose the standard range and suspend the disposition on condition that the offender comply with one or more local sanctions and any educational or treatment requirement. The treatment programs provided to the offender must be research-based best practice programs as identified by the Washington state institute for public policy or the joint legislative audit and review committee. (2) If the offender fails to comply with the suspended disposition, the court may impose sanctions pursuant to RCW 13.40.200 or may revoke the suspended disposition and order the disposition’s execution. (3) An offender is ineligible for the suspended disposition option under this section if the offender is: (a) Adjudicated of an A+ offense; (b) Fourteen years of age or older and is adjudicated of one or more of the following offenses: (i) A class A offense, or an attempt, conspiracy, or solicitation to commit a class A offense; (ii) Manslaughter in the first degree (RCW 9A.32.060); or (iii) Assault in the second degree (RCW 9A.36.021), extortion in the first degree (RCW 9A.56.120), kidnapping in the second degree (RCW 9A.40.030), robbery in the second degree (RCW 9A.56.210), residential burglary (RCW 9A.5 2.0 25 ) , bu rg lar y i n th e seco nd deg r ee ( R CW 9A.52.030), drive-by shooting (RCW 9A.36.045), vehicular homicide (RCW 46.61.520), hit and run death (RCW 46.52.020(4)(a)), intimidating a witness (RCW 9A.72.110), violation of the uniform controlled substances act (RCW 69.50.401 (2)(a) and (b)), or manslaughter 2 (RCW 9A.32.070), when the offense includes infliction of bodily harm upon another or when during the commission or immediate withdrawal from the offense the respondent was armed with a deadly weapon; (c) Ordered to serve a disposition for a firearm violation under RCW 13.40.193; or (d) Adjudicated of a sex offense as defined in RCW 9.94A.030. (2006 Ed.) If the court determines that a disposition under option A, B, or C would effectuate a manifest injustice, the court shall impose a disposition outside the standard range under RCW 13.40.160(2). [2006 c 73 § 14; 2004 c 117 § 1. Prior: 2003 c 378 § 2; 2003 c 335 § 6; 2003 c 53 § 97; prior: 2002 c 324 § 3; 2002 c 175 § 20; 2001 c 217 § 13; 2000 c 66 § 3; 1998 c 290 § 5; prior: 1997 c 338 § 12; (1997 c 338 § 11 expired July 1, 1998); 1997 c 66 § 6; 1996 c 205 § 6; 1995 c 395 § 3; 1994 sp.s. c 7 § 522; 1989 c 407 § 7.] Effective date—2006 c 73: See note following RCW 46.61.502. Effective date—2004 c 117: "This act takes effect July 1, 2004." [2004 c 117 § 3.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Study and report—2002 c 324: See note following RCW 9A.56.070. Effective date—2002 c 175: See note following RCW 7.80.130. Captions not law—2001 c 217: See note following RCW 9.35.005. Application—Effective date—Severability—1998 c 290: See notes following RCW 69.50.401. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Evaluation—Report—1997 c 338: "The legislature finds it critical to evaluate the effectiveness of the revisions made in this act to juvenile sentencing for purposes of measuring improvements in public safety and reduction of recidivism. To accomplish this evaluation, the Washington state institute for public policy shall conduct a study of the sentencing revisions. The study shall: (1) Be conducted starting January 1, 2001; (2) examine whether the revisions have affected the rate of initial offense commission and recidivism; (3) determine the impacts of the revisions by age, race, and gender impacts of the revisions; (4) compare the utilization and effectiveness of sentencing alternatives and manifest injustice determinations before and after the revisions; and (5) examine the impact and effectiveness of changes made in the exclusive original jurisdiction of juvenile court over juvenile offenders. The institute shall report the results of the study to the governor and legislature not later than July 1, 2002." [1997 c 338 § 59.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. 13.40.038 13.40.038 County juvenile detention facilities—Policy—Detention and risk assessment standards. It is the policy of this state that all county juvenile detention facilities provide a humane, safe, and rehabilitative environment and that unadjudicated youth remain in the community whenever possible, consistent with public safety and the provisions of chapter 13.40 RCW. The counties shall develop and implement detention intake standards and risk assessment standards to determine whether detention is warranted and if so whether the juvenile [Title 13 RCW—page 73] 13.40.040 Title 13 RCW: Juvenile Courts and Juvenile Offenders should be placed in secure, nonsecure, or home detention to implement the goals of this section. Inability to pay for a less restrictive detention placement shall not be a basis for denying a respondent a less restrictive placement in the community. The detention and risk assessment standards shall be developed and implemented no later than December 31, 1992. [1992 c 205 § 105; 1986 c 288 § 7.] Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. Severability—1986 c 288: See note following RCW 13.32A.050. 13.40.040 Taking juvenile into custody, grounds— Detention of, grounds—Detention pending disposition— Release on bond, conditions—Bail jumping. (1) A juvenile may be taken into custody: (a) Pursuant to a court order if a complaint is filed with the court alleging, and the court finds probable cause to believe, that the juvenile has committed an offense or has violated terms of a disposition order or release order; or (b) Without a court order, by a law enforcement officer if grounds exist for the arrest of an adult in identical circumstances. Admission to, and continued custody in, a court detention facility shall be governed by subsection (2) of this section; or (c) Pursuant to a court order that the juvenile be held as a material witness; or (d) Where the secretary or the secretary’s designee has suspended the parole of a juvenile offender. (2) A juvenile may not be held in detention unless there is probable cause to believe that: (a) The juvenile has committed an offense or has violated the terms of a disposition order; and (i) The juvenile will likely fail to appear for further proceedings; or (ii) Detention is required to protect the juvenile from himself or herself; or (iii) The juvenile is a threat to community safety; or (iv) The juvenile will intimidate witnesses or otherwise unlawfully interfere with the administration of justice; or (v) The juvenile has committed a crime while another case was pending; or (b) The juvenile is a fugitive from justice; or (c) The juvenile’s parole has been suspended or modified; or (d) The juvenile is a material witness. (3) Notwithstanding subsection (2) of this section, and within available funds, a juvenile who has been found guilty of one of the following offenses shall be detained pending disposition: Rape in the first or second degree (RCW 9A.44.040 and 9A.44.050); or rape of a child in the first degree (RCW 9A.44.073). (4) Upon a finding that members of the community have threatened the health of a juvenile taken into custody, at the juvenile’s request the court may order continued detention pending further order of the court. (5) Except as provided in RCW 9.41.280, a juvenile detained under this section may be released upon posting a probation bond set by the court. The juvenile’s parent or guardian may sign for the probation bond. A court authorizing such a release shall issue an order containing a statement of conditions imposed upon the juvenile and shall set the date 13.40.040 [Title 13 RCW—page 74] of his or her next court appearance. The court shall advise the juvenile of any conditions specified in the order and may at any time amend such an order in order to impose additional or different conditions of release upon the juvenile or to return the juvenile to custody for failing to conform to the conditions imposed. In addition to requiring the juvenile to appear at the next court date, the court may condition the probation bond on the juvenile’s compliance with conditions of release. The juvenile’s parent or guardian may notify the court that the juvenile has failed to conform to the conditions of release or the provisions in the probation bond. If the parent notifies the court of the juvenile’s failure to comply with the probation bond, the court shall notify the surety. As provided in the terms of the bond, the surety shall provide notice to the court of the offender’s noncompliance. A juvenile may be released only to a responsible adult or the department of social and health services. Failure to appear on the date scheduled by the court pursuant to this section shall constitute the crime of bail jumping. [2002 c 171 § 2; 1999 c 167 § 2; 1997 c 338 § 13; 1995 c 395 § 4; 1979 c 155 § 57; 1977 ex.s. c 291 § 58.] Effective date—2002 c 171: See note following RCW 72.01.410. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.045 13.40.045 Escapees—Arrest warrants. The secretary, assistant secretary, or the secretary’s designee shall issue arrest warrants for juveniles who escape from department residential custody. The secretary, assistant secretary, or the secretary’s designee may issue arrest warrants for juveniles who abscond from parole supervision or fail to meet conditions of parole. These arrest warrants shall authorize any law enforcement, probation and parole, or peace officer of this state, or any other state where the juvenile is located, to arrest the juvenile and to place the juvenile in physical custody pending the juvenile’s return to confinement in a state juvenile rehabilitation facility. [1997 c 338 § 14; 1994 sp.s. c 7 § 518.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. 13.40.050 13.40.050 Detention procedures—Notice of hearing—Conditions of release—Consultation with parent, guardian, or custodian. (1) When a juvenile taken into custody is held in detention: (a) An information, a community supervision modification or termination of diversion petition, or a parole modification petition shall be filed within seventy-two hours, Saturdays, Sundays, and holidays excluded, or the juvenile shall be released; and (2006 Ed.) Juvenile Justice Act of 1977 (b) A detention hearing, a community supervision modification or termination of diversion petition, or a parole modification petition shall be held within seventy-two hours, Saturdays, Sundays, and holidays excluded, from the time of filing the information or petition, to determine whether continued detention is necessary under RCW 13.40.040. (2) Notice of the detention hearing, stating the time, place, and purpose of the hearing, stating the right to counsel, and requiring attendance shall be given to the parent, guardian, or custodian if such person can be found and shall also be given to the juvenile if over twelve years of age. (3) At the commencement of the detention hearing, the court shall advise the parties of their rights under this chapter and shall appoint counsel as specified in this chapter. (4) The court shall, based upon the allegations in the information, determine whether the case is properly before it or whether the case should be treated as a diversion case under RCW 13.40.080. If the case is not properly before the court the juvenile shall be ordered released. (5) Notwithstanding a determination that the case is properly before the court and that probable cause exists, a juvenile shall at the detention hearing be ordered released on the juvenile’s personal recognizance pending further hearing unless the court finds detention is necessary under RCW 13.40.040. (6) If detention is not necessary under RCW 13.40.040, the court shall impose the most appropriate of the following conditions or, if necessary, any combination of the following conditions: (a) Place the juvenile in the custody of a designated person agreeing to supervise such juvenile; (b) Place restrictions on the travel of the juvenile during the period of release; (c) Require the juvenile to report regularly to and remain under the supervision of the juvenile court; (d) Impose any condition other than detention deemed reasonably necessary to assure appearance as required; (e) Require that the juvenile return to detention during specified hours; or (f) Require the juvenile to post a probation bond set by the court under terms and conditions as provided in *RCW 13.40.040(4). (7) A juvenile may be released only to a responsible adult or the department. (8) If the parent, guardian, or custodian of the juvenile in detention is available, the court shall consult with them prior to a determination to further detain or release the juvenile or treat the case as a diversion case under RCW 13.40.080. (9) A person notified under this section who fails without reasonable cause to appear and abide by the order of the court may be proceeded against as for contempt of court. In determining whether a parent, guardian, or custodian had reasonable cause not to appear, the court may consider all factors relevant to the person’s ability to appear as summoned. [1997 c 338 § 15; 1995 c 395 § 5; 1992 c 205 § 106; 1979 c 155 § 58; 1977 ex.s. c 291 § 59.] *Reviser’s note: RCW 13.40.040 was amended by 2002 c 171 § 2, changing subsection (4) to subsection (5). Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. (2006 Ed.) 13.40.060 Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.054 13.40.054 Probation bond or collateral—Modification or revocation of probation bond. (1) As provided in this chapter, the court may order a juvenile to post a probation bond as defined in RCW 13.40.020 or to deposit cash or post other collateral in lieu of a probation bond, to enhance public safety, increase the likelihood that a respondent will appear as required to respond to charges, and increase compliance with community supervision imposed under various alternative disposition options. The parents or guardians of the juvenile may sign for a probation bond on behalf of the juvenile or deposit cash or other collateral in lieu of a bond if approved by the court. (2) A parent or guardian who has signed for a probation bond, deposited cash, or posted other collateral on behalf of a juvenile has the right to notify the court if the juvenile violates any of the terms and conditions of the bond. The parent or guardian who signed for a probation bond may move the court to modify the terms of the bond or revoke the bond without penalty to the surety or parent. The court shall notify the surety if a parent or guardian notifies the court that the juvenile has violated conditions of the probation bond and has requested modification or revocation of the bond. At a hearing on the motion, the court may consider the nature and seriousness of the violation or violations and may either keep the bond in effect, modify the terms of the bond with the consent of the parent or guardian and surety, or revoke the bond. If the court revokes the bond the court may require full payment of the face amount of the bond. In the alternative, the court may revoke the bond and impose a partial payment for less than the full amount of the bond or may revoke the bond without imposing any penalty. In reaching its decision, the court may consider the timeliness of the parent’s or guardian’s notification to the court and the efforts of the parent and surety to monitor the offender’s compliance with conditions of the bond and release. A surety shall have the same obligations and rights as provided sureties in adult criminal cases. Rules of forfeiture and revocation of bonds issued in adult criminal cases shall apply to forfeiture and revocation of probation bonds issued under this chapter except as specifically provided in this subsection. [1995 c 395 § 1.] 13.40.056 13.40.056 Nonrefundable bail fee. When a juvenile charged with an offense posts a probation bond or deposits cash or posts other collateral in lieu of a bond, ten dollars of the total amount required to be posted as bail shall be paid in cash as a nonrefundable bail fee. The bail fee shall be distributed to the county for costs associated with implementing chapter 395, Laws of 1995. [1995 c 395 § 9.] 13.40.060 13.40.060 Jurisdiction of actions—Transfer of case and records, when—Change in venue, grounds. (1) All actions under this chapter shall be commenced and tried in [Title 13 RCW—page 75] 13.40.070 Title 13 RCW: Juvenile Courts and Juvenile Offenders the county where any element of the offense was committed except as otherwise specially provided by statute. In cases in which diversion is provided by statute, venue is in the county in which the juvenile resides or in the county in which any element of the offense was committed. (2)(a) The court upon motion of any party or upon its own motion may, at any time, transfer a proceeding to another juvenile court when there is reason to believe that an impartial proceeding cannot be held in the county in which the proceeding was begun; and (b) A court may transfer a proceeding to another juvenile court following disposition for the purposes of supervision and enforcement of the disposition order. (3) If the court orders a transfer of the proceeding pursuant to subsection (2)(b) of this section: (a) The case and copies of only those legal and social documents pertaining thereto shall be transferred to the county in which the juvenile resides, without regard to whether or not his or her custodial parent resides there, for supervision and enforcement of the disposition order. (b) If any restitution is yet to be determined, the originating court shall transfer the case to the new county with the exception of the restitution. Venue over restitution shall be retained by the originating court for purposes of establishing a restitution order. Once restitution is determined, the originating county shall then transfer venue over modification and enforcement of the restitution to the new county. (c) The court of the receiving county may modify and enforce the disposition order, including restitution. (d) The clerk of the originating county shall maintain the account receivable in the judicial information system and all payments shall be made to the clerk of the originating county. (e) Any collection of the offender legal financial obligation shall be managed by the juvenile probation department of the new county while the offender is under juvenile probation supervision, or by the clerk of the original county at the conclusion of supervision by juvenile probation. The probation department of the new county shall notify the clerk of the originating county when they end supervision of the offender. (f) In cases where a civil judgment has already been established, venue may not be transferred to another county. [2005 c 165 § 1; 1997 c 338 § 16; 1989 c 71 § 1; 1981 c 299 § 6; 1979 c 155 § 59; 1977 ex.s. c 291 § 60.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Effective date—1989 c 71: "This act shall take effect September 1, 1989." [1989 c 71 § 2.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.070 13.40.070 Complaints—Screening—Filing information—Diversion—Modification of community supervision—Notice to parent or guardian—Probation counselor acting for prosecutor—Referral to mediation or reconciliation programs. (1) Complaints referred to the juvenile court alleging the commission of an offense shall be referred [Title 13 RCW—page 76] directly to the prosecutor. The prosecutor, upon receipt of a complaint, shall screen the complaint to determine whether: (a) The alleged facts bring the case within the jurisdiction of the court; and (b) On a basis of available evidence there is probable cause to believe that the juvenile did commit the offense. (2) If the identical alleged acts constitute an offense under both the law of this state and an ordinance of any city or county of this state, state law shall govern the prosecutor’s screening and charging decision for both filed and diverted cases. (3) If the requirements of subsections (1)(a) and (b) of this section are met, the prosecutor shall either file an information in juvenile court or divert the case, as set forth in subsections (5), (6), and (7) of this section. If the prosecutor finds that the requirements of subsection (1)(a) and (b) of this section are not met, the prosecutor shall maintain a record, for one year, of such decision and the reasons therefor. In lieu of filing an information or diverting an offense a prosecutor may file a motion to modify community supervision where such offense constitutes a violation of community supervision. (4) An information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney and conform to chapter 10.37 RCW. (5) Where a case is legally sufficient, the prosecutor shall file an information with the juvenile court if: (a) An alleged offender is accused of a class A felony, a class B felony, an attempt to commit a class B felony, a class C felony listed in RCW 9.94A.411(2) as a crime against persons or listed in RCW 9A.46.060 as a crime of harassment, or a class C felony that is a violation of RCW 9.41.080 or 9.41.040(2)(a)(iii); or (b) An alleged offender is accused of a felony and has a criminal history of any felony, or at least two gross misdemeanors, or at least two misdemeanors; or (c) An alleged offender has previously been committed to the department; or (d) An alleged offender has been referred by a diversion unit for prosecution or desires prosecution instead of diversion; or (e) An alleged offender has two or more diversion agreements on the alleged offender’s criminal history; or (f) A special allegation has been filed that the offender or an accomplice was armed with a firearm when the offense was committed. (6) Where a case is legally sufficient the prosecutor shall divert the case if the alleged offense is a misdemeanor or gross misdemeanor or violation and the alleged offense is the offender’s first offense or violation. If the alleged offender is charged with a related offense that must or may be filed under subsections (5) and (7) of this section, a case under this subsection may also be filed. (7) Where a case is legally sufficient and falls into neither subsection (5) nor (6) of this section, it may be filed or diverted. In deciding whether to file or divert an offense under this section the prosecutor shall be guided only by the length, seriousness, and recency of the alleged offender’s criminal history and the circumstances surrounding the commission of the alleged offense. (2006 Ed.) Juvenile Justice Act of 1977 (8) Whenever a juvenile is placed in custody or, where not placed in custody, referred to a diversion interview, the parent or legal guardian of the juvenile shall be notified as soon as possible concerning the allegation made against the juvenile and the current status of the juvenile. Where a case involves victims of crimes against persons or victims whose property has not been recovered at the time a juvenile is referred to a diversion unit, the victim shall be notified of the referral and informed how to contact the unit. (9) The responsibilities of the prosecutor under subsections (1) through (8) of this section may be performed by a juvenile court probation counselor for any complaint referred to the court alleging the commission of an offense which would not be a felony if committed by an adult, if the prosecutor has given sufficient written notice to the juvenile court that the prosecutor will not review such complaints. (10) The prosecutor, juvenile court probation counselor, or diversion unit may, in exercising their authority under this section or RCW 13.40.080, refer juveniles to mediation or victim offender reconciliation programs. Such mediation or victim offender reconciliation programs shall be voluntary for victims. [2003 c 53 § 98; 2001 c 175 § 2; 1997 c 338 § 17; 1994 sp.s. c 7 § 543; 1992 c 205 § 107; 1989 c 407 § 9; 1983 c 191 § 18; 1981 c 299 § 7; 1979 c 155 § 60; 1977 ex.s. c 291 § 61.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Application—1994 sp.s. c 7 §§ 540-545: See note following RCW 13.50.010. Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.077 Recommended prosecuting standards for charging and plea dispositions. 13.40.077 RECOMMENDED PROSECUTING STANDARDS FOR CHARGING AND PLEA DISPOSITIONS INTRODUCTION: These standards are intended solely for the guidance of prosecutors in the state of Washington. They are not intended to, do not, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party in litigation with the state. Evidentiary sufficiency. (1) Decision not to prosecute. STANDARD: A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists, in situations where prosecution would serve no public purpose, would defeat the underlying purpose of the law in question, or would result in decreased respect for the law. The decision not to prosecute or divert shall not be influenced by the race, gender, religion, or creed of the suspect. (2006 Ed.) 13.40.077 GUIDELINES/COMMENTARY: Examples The following are examples of reasons not to prosecute which could satisfy the standard. (a) Contrary to Legislative Intent - It may be proper to decline to charge where the application of criminal sanctions would be clearly contrary to the intent of the legislature in enacting the particular statute. (b) Antiquated Statute - It may be proper to decline to charge where the statute in question is antiquated in that: (i) It has not been enforced for many years; (ii) Most members of society act as if it were no longer in existence; (iii) It serves no deterrent or protective purpose in today’s society; and (iv) The statute has not been recently reconsidered by the legislature. This reason is not to be construed as the basis for declining cases because the law in question is unpopular or because it is difficult to enforce. (c) De Minimis Violation - It may be proper to decline to charge where the violation of law is only technical or insubstantial and where no public interest or deterrent purpose would be served by prosecution. (d) Confinement on Other Charges - It may be proper to decline to charge because the accused has been sentenced on another charge to a lengthy period of confinement; and (i) Conviction of the new offense would not merit any additional direct or collateral punishment; (ii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and (iii) Conviction of the new offense would not serve any significant deterrent purpose. (e) Pending Conviction on Another Charge - It may be proper to decline to charge because the accused is facing a pending prosecution in the same or another county; and (i) Conviction of the new offense would not merit any additional direct or collateral punishment; (ii) Conviction in the pending prosecution is imminent; (iii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and (iv) Conviction of the new offense would not serve any significant deterrent purpose. (f) High Disproportionate Cost of Prosecution - It may be proper to decline to charge where the cost of locating or transporting, or the burden on, prosecution witnesses is highly disproportionate to the importance of prosecuting the offense in question. The reason should be limited to minor cases and should not be relied upon in serious cases. (g) Improper Motives of Complainant - It may be proper to decline charges because the motives of the complainant are improper and prosecution would serve no public purpose, would defeat the underlying purpose of the law in question, or would result in decreased respect for the law. (h) Immunity - It may be proper to decline to charge where immunity is to be given to an accused in order to prosecute another where the accused information or testimony will reasonably lead to the conviction of others who are responsible for more serious criminal conduct or who represent a greater danger to the public interest. [Title 13 RCW—page 77] 13.40.077 Title 13 RCW: Juvenile Courts and Juvenile Offenders (i) Victim Request - It may be proper to decline to charge because the victim requests that no criminal charges be filed and the case involves the following crimes or situations: (i) Assault cases where the victim has suffered little or no injury; (ii) Crimes against property, not involving violence, where no major loss was suffered; (iii) Where doing so would not jeopardize the safety of society. Care should be taken to insure that the victim’s request is freely made and is not the product of threats or pressure by the accused. The presence of these factors may also justify the decision to dismiss a prosecution which has been commenced. Notification The prosecutor is encouraged to notify the victim, when practical, and the law enforcement personnel, of the decision not to prosecute. (2) Decision to prosecute. STANDARD: Crimes against persons will be filed if sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify conviction by a reasonable and objective fact-finder. With regard to offenses prohibited by RCW 9A.44.040, 9A.44.050, 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, 9A.44.089, and 9A.64.020 the prosecutor should avoid prefiling agreements or diversions intended to place the accused in a program of treatment or counseling, so that treatment, if determined to be beneficial, can be proved under *RCW 13.40.160(4). Crimes against property/other crimes will be filed if the admissible evidence is of such convincing force as to make it probable that a reasonable and objective fact-finder would convict after hearing all the admissible evidence and the most plausible defense that could be raised. The categorization of crimes for these charging standards shall be the same as found in RCW 9.94A.411(2). The decision to prosecute or use diversion shall not be influenced by the race, gender, religion, or creed of the respondent. (3) Selection of Charges/Degree of Charge (a) The prosecutor should file charges which adequately describe the nature of the respondent’s conduct. Other offenses may be charged only if they are necessary to ensure that the charges: (i) Will significantly enhance the strength of the state’s case at trial; or (ii) Will result in restitution to all victims. (b) The prosecutor should not overcharge to obtain a guilty plea. Overcharging includes: (i) Charging a higher degree; (ii) Charging additional counts. This standard is intended to direct prosecutors to charge those crimes which demonstrate the nature and seriousness of a respondent’s criminal conduct, but to decline to charge crimes which are not necessary to such an indication. Crimes which do not merge as a matter of law, but which arise from the same course of conduct, do not all have to be charged. (4) Police Investigation [Title 13 RCW—page 78] A prosecuting attorney is dependent upon law enforcement agencies to conduct the necessary factual investigation which must precede the decision to prosecute. The prosecuting attorney shall ensure that a thorough factual investigation has been conducted before a decision to prosecute is made. In ordinary circumstances the investigation should include the following: (a) The interviewing of all material witnesses, together with the obtaining of written statements whenever possible; (b) The completion of necessary laboratory tests; and (c) The obtaining, in accordance with constitutional requirements, of the suspect’s version of the events. If the initial investigation is incomplete, a prosecuting attorney should insist upon further investigation before a decision to prosecute is made, and specify what the investigation needs to include. (5) Exceptions In certain situations, a prosecuting attorney may authorize filing of a criminal complaint before the investigation is complete if: (a) Probable cause exists to believe the suspect is guilty; and (b) The suspect presents a danger to the community or is likely to flee if not apprehended; or (c) The arrest of the suspect is necessary to complete the investigation of the crime. In the event that the exception to the standard is applied, the prosecuting attorney shall obtain a commitment from the law enforcement agency involved to complete the investigation in a timely manner. If the subsequent investigation does not produce sufficient evidence to meet the normal charging standard, the complaint should be dismissed. (6) Investigation Techniques The prosecutor should be fully advised of the investigatory techniques that were used in the case investigation including: (a) Polygraph testing; (b) Hypnosis; (c) Electronic surveillance; (d) Use of informants. (7) Prefiling Discussions with Defendant Discussions with the defendant or his or her representative regarding the selection or disposition of charges may occur prior to the filing of charges, and potential agreements can be reached. (8) Plea dispositions: STANDARD (a) Except as provided in subsection (2) of this section, a respondent will normally be expected to plead guilty to the charge or charges which adequately describe the nature of his or her criminal conduct or go to trial. (b) In certain circumstances, a plea agreement with a respondent in exchange for a plea of guilty to a charge or charges that may not fully describe the nature of his or her criminal conduct may be necessary and in the public interest. Such situations may include the following: (i) Evidentiary problems which make conviction of the original charges doubtful; (ii) The respondent’s willingness to cooperate in the investigation or prosecution of others whose criminal conduct is more serious or represents a greater public threat; (2006 Ed.) Juvenile Justice Act of 1977 (iii) A request by the victim when it is not the result of pressure from the respondent; (iv) The discovery of facts which mitigate the seriousness of the respondent’s conduct; (v) The correction of errors in the initial charging decision; (vi) The respondent’s history with respect to criminal activity; (vii) The nature and seriousness of the offense or offenses charged; (viii) The probable effect of witnesses. (c) No plea agreement shall be influenced by the race, gender, religion, or creed of the respondent. This includes but is not limited to the prosecutor’s decision to utilize such disposition alternatives as the Special Sex Offender Disposition Alternative, the Chemical Dependency Disposition Alternative, and manifest injustice. (9) Disposition recommendations: STANDARD The prosecutor may reach an agreement regarding disposition recommendations. The prosecutor shall not agree to withhold relevant information from the court concerning the plea agreement. [1997 c 338 § 18; 1996 c 9 § 1.] *Reviser’s note: RCW 13.40.160 was amended by 1999 c 91 § 2, changing subsection (4) to subsection (3). Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. 13.40.080 13.40.080 Diversion agreement—Scope—Limitations—Restitution orders—Divertee’s rights—Diversion unit’s powers and duties—Interpreters—Modification— Fines. (1) A diversion agreement shall be a contract between a juvenile accused of an offense and a diversion unit whereby the juvenile agrees to fulfill certain conditions in lieu of prosecution. Such agreements may be entered into only after the prosecutor, or probation counselor pursuant to this chapter, has determined that probable cause exists to believe that a crime has been committed and that the juvenile committed it. Such agreements shall be entered into as expeditiously as possible. (2) A diversion agreement shall be limited to one or more of the following: (a) Community restitution not to exceed one hundred fifty hours, not to be performed during school hours if the juvenile is attending school; (b) Restitution limited to the amount of actual loss incurred by any victim; (c) Attendance at up to ten hours of counseling and/or up to twenty hours of educational or informational sessions at a community agency. The educational or informational sessions may include sessions relating to respect for self, others, and authority; victim awareness; accountability; self-worth; responsibility; work ethics; good citizenship; literacy; and life skills. For purposes of this section, "community agency" may also mean a community-based nonprofit organization, if approved by the diversion unit. The state shall not be liable for costs resulting from the diversion unit exercising the option to permit diversion agreements to mandate attendance (2006 Ed.) 13.40.080 at up to ten hours of counseling and/or up to twenty hours of educational or informational sessions; (d) A fine, not to exceed one hundred dollars; (e) Requirements to remain during specified hours at home, school, or work, and restrictions on leaving or entering specified geographical areas; and (f) Upon request of any victim or witness, requirements to refrain from any contact with victims or witnesses of offenses committed by the juvenile. (3) Notwithstanding the provisions of subsection (2) of this section, youth courts are not limited to the conditions imposed by subsection (2) of this section in imposing sanctions on juveniles pursuant to RCW 13.40.630. (4) In assessing periods of community restitution to be performed and restitution to be paid by a juvenile who has entered into a diversion agreement, the court officer to whom this task is assigned shall consult with the juvenile’s custodial parent or parents or guardian. To the extent possible, the court officer shall advise the victims of the juvenile offender of the diversion process, offer victim impact letter forms and restitution claim forms, and involve members of the community. Such members of the community shall meet with the juvenile and advise the court officer as to the terms of the diversion agreement and shall supervise the juvenile in carrying out its terms. (5)(a) A diversion agreement may not exceed a period of six months and may include a period extending beyond the eighteenth birthday of the divertee. (b) If additional time is necessary for the juvenile to complete restitution to a victim, the time period limitations of this subsection may be extended by an additional six months. (c) If the juvenile has not paid the full amount of restitution by the end of the additional six-month period, then the juvenile shall be referred to the juvenile court for entry of an order establishing the amount of restitution still owed to the victim. In this order, the court shall also determine the terms and conditions of the restitution, including a payment plan extending up to ten years if the court determines that the juvenile does not have the means to make full restitution over a shorter period. For the purposes of this subsection (5)(c), the juvenile shall remain under the court’s jurisdiction for a maximum term of ten years after the juvenile’s eighteenth birthday. Prior to the expiration of the initial ten-year period, the juvenile court may extend the judgment for restitution an additional ten years. The court may relieve the juvenile of the requirement to pay full or partial restitution if the juvenile reasonably satisfies the court that he or she does not have the means to make full or partial restitution and could not reasonably acquire the means to pay the restitution over a ten-year period. If the court relieves the juvenile of the requirement to pay full or partial restitution, the court may order an amount of community restitution that the court deems appropriate. The county clerk shall make disbursements to victims named in the order. The restitution to victims named in the order shall be paid prior to any payment for other penalties or monetary assessments. A juvenile under obligation to pay restitution may petition the court for modification of the restitution order. (6) The juvenile shall retain the right to be referred to the court at any time prior to the signing of the diversion agreement. [Title 13 RCW—page 79] 13.40.080 Title 13 RCW: Juvenile Courts and Juvenile Offenders (7) Divertees and potential divertees shall be afforded due process in all contacts with a diversion unit regardless of whether the juveniles are accepted for diversion or whether the diversion program is successfully completed. Such due process shall include, but not be limited to, the following: (a) A written diversion agreement shall be executed stating all conditions in clearly understandable language; (b) Violation of the terms of the agreement shall be the only grounds for termination; (c) No divertee may be terminated from a diversion program without being given a court hearing, which hearing shall be preceded by: (i) Written notice of alleged violations of the conditions of the diversion program; and (ii) Disclosure of all evidence to be offered against the divertee; (d) The hearing shall be conducted by the juvenile court and shall include: (i) Opportunity to be heard in person and to present evidence; (ii) The right to confront and cross-examine all adverse witnesses; (iii) A written statement by the court as to the evidence relied on and the reasons for termination, should that be the decision; and (iv) Demonstration by evidence that the divertee has substantially violated the terms of his or her diversion agreement. (e) The prosecutor may file an information on the offense for which the divertee was diverted: (i) In juvenile court if the divertee is under eighteen years of age; or (ii) In superior court or the appropriate court of limited jurisdiction if the divertee is eighteen years of age or older. (8) The diversion unit shall, subject to available funds, be responsible for providing interpreters when juveniles need interpreters to effectively communicate during diversion unit hearings or negotiations. (9) The diversion unit shall be responsible for advising a divertee of his or her rights as provided in this chapter. (10) The diversion unit may refer a juvenile to community-based counseling or treatment programs. (11) The right to counsel shall inure prior to the initial interview for purposes of advising the juvenile as to whether he or she desires to participate in the diversion process or to appear in the juvenile court. The juvenile may be represented by counsel at any critical stage of the diversion process, including intake interviews and termination hearings. The juvenile shall be fully advised at the intake of his or her right to an attorney and of the relevant services an attorney can provide. For the purpose of this section, intake interviews mean all interviews regarding the diversion agreement process. The juvenile shall be advised that a diversion agreement shall constitute a part of the juvenile’s criminal history as defined by RCW 13.40.020(7). A signed acknowledgment of such advisement shall be obtained from the juvenile, and the document shall be maintained by the diversion unit together with the diversion agreement, and a copy of both documents shall be delivered to the prosecutor if requested by the prose[Title 13 RCW—page 80] cutor. The supreme court shall promulgate rules setting forth the content of such advisement in simple language. (12) When a juvenile enters into a diversion agreement, the juvenile court may receive only the following information for dispositional purposes: (a) The fact that a charge or charges were made; (b) The fact that a diversion agreement was entered into; (c) The juvenile’s obligations under such agreement; (d) Whether the alleged offender performed his or her obligations under such agreement; and (e) The facts of the alleged offense. (13) A diversion unit may refuse to enter into a diversion agreement with a juvenile. When a diversion unit refuses to enter a diversion agreement with a juvenile, it shall immediately refer such juvenile to the court for action and shall forward to the court the criminal complaint and a detailed statement of its reasons for refusing to enter into a diversion agreement. The diversion unit shall also immediately refer the case to the prosecuting attorney for action if such juvenile violates the terms of the diversion agreement. (14) A diversion unit may, in instances where it determines that the act or omission of an act for which a juvenile has been referred to it involved no victim, or where it determines that the juvenile referred to it has no prior criminal history and is alleged to have committed an illegal act involving no threat of or instance of actual physical harm and involving not more than fifty dollars in property loss or damage and that there is no loss outstanding to the person or firm suffering such damage or loss, counsel and release or release such a juvenile without entering into a diversion agreement. A diversion unit’s authority to counsel and release a juvenile under this subsection includes the authority to refer the juvenile to community-based counseling or treatment programs. Any juvenile released under this subsection shall be advised that the act or omission of any act for which he or she had been referred shall constitute a part of the juvenile’s criminal history as defined by RCW 13.40.020(7). A signed acknowledgment of such advisement shall be obtained from the juvenile, and the document shall be maintained by the unit, and a copy of the document shall be delivered to the prosecutor if requested by the prosecutor. The supreme court shall promulgate rules setting forth the content of such advisement in simple language. A juvenile determined to be eligible by a diversion unit for release as provided in this subsection shall retain the same right to counsel and right to have his or her case referred to the court for formal action as any other juvenile referred to the unit. (15) A diversion unit may supervise the fulfillment of a diversion agreement entered into before the juvenile’s eighteenth birthday and which includes a period extending beyond the divertee’s eighteenth birthday. (16) If a fine required by a diversion agreement cannot reasonably be paid due to a change of circumstance, the diversion agreement may be modified at the request of the divertee and with the concurrence of the diversion unit to convert an unpaid fine into community restitution. The modification of the diversion agreement shall be in writing and signed by the divertee and the diversion unit. The number of hours of community restitution in lieu of a monetary penalty shall be converted at the rate of the prevailing state minimum wage per hour. (2006 Ed.) Juvenile Justice Act of 1977 (17) Fines imposed under this section shall be collected and paid into the county general fund in accordance with procedures established by the juvenile court administrator under RCW 13.04.040 and may be used only for juvenile services. In the expenditure of funds for juvenile services, there shall be a maintenance of effort whereby counties exhaust existing resources before using amounts collected under this section. [2004 c 120 § 3. Prior: 2002 c 237 § 8; 2002 c 175 § 21; 1999 c 91 § 1; 1997 c 338 § 70; 1997 c 121 § 8; 1996 c 124 § 1; 1994 sp.s. c 7 § 544; 1992 c 205 § 108; 1985 c 73 § 2; 1983 c 191 § 16; 1981 c 299 § 8; 1979 c 155 § 61; 1977 ex.s. c 291 § 62.] Effective date—2004 c 120: See note following RCW 13.40.010. Effective date—2002 c 175: See note following RCW 7.80.130. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Application—1994 sp.s. c 7 §§ 540-545: See note following RCW 13.50.010. Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. Effective date—1985 c 73: See note following RCW 13.40.030. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.085 13.40.085 Diversion services costs—Fees—Payment by parent or legal guardian. The county legislative authority may authorize juvenile court administrators to establish fees to cover the costs of the administration and operation of diversion services provided under this chapter. The parent or legal guardian of a juvenile who receives diversion services must pay for the services based on the parent’s or guardian’s ability to pay. The juvenile court administrators shall develop a fair and equitable payment schedule. No juvenile who is eligible for diversion as provided in this chapter may be denied diversion services based on an inability to pay for the services. [1993 c 171 § 1.] 13.40.090 13.40.090 Prosecuting attorney as party to juvenile court proceedings—Exception, procedure. The county prosecuting attorney shall be a party to all juvenile court proceedings involving juvenile offenders or alleged juvenile offenders. The prosecuting attorney may, after giving appropriate notice to the juvenile court, decline to represent the state of Washington in juvenile court matters except felonies unless requested by the court on an individual basis to represent the state at an adjudicatory hearing in which case he or she shall participate. When the prosecutor declines to represent the state, then such function may be performed by the juvenile court probation counselor authorized by the court or local court rule to serve as the prosecuting authority. If the prosecuting attorney elects not to participate, the prosecuting attorney shall file with the county clerk each year by the first Monday in July notice of intent not to participate. In a county wherein the prosecuting attorney has elected not (2006 Ed.) 13.40.110 to participate in juvenile court, he or she shall not thereafter until the next filing date participate in juvenile court proceedings unless so requested by the court on an individual basis, in which case the prosecuting attorney shall participate. [1977 ex.s. c 291 § 63.] Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.100 13.40.100 Summons or other notification issued upon filing of information—Procedure—Order to take juvenile into custody—Contempt of court, when. (1) Upon the filing of an information the alleged offender shall be notified by summons, warrant, or other method approved by the court of the next required court appearance. (2) If notice is by summons, the clerk of the court shall issue a summons directed to the juvenile, if the juvenile is twelve or more years of age, and another to the parents, guardian, or custodian, and such other persons as appear to the court to be proper or necessary parties to the proceedings, requiring them to appear personally before the court at the time fixed to hear the petition. Where the custodian is summoned, the parent or guardian or both shall also be served with a summons. (3) A copy of the information shall be attached to each summons. (4) The summons shall advise the parties of the right to counsel. (5) The judge may endorse upon the summons an order directing the parents, guardian, or custodian having the custody or control of the juvenile to bring the juvenile to the hearing. (6) If it appears from affidavit or sworn statement presented to the judge that there is probable cause for the issuance of a warrant of arrest or that the juvenile needs to be taken into custody pursuant to RCW 13.34.050, the judge may endorse upon the summons an order that an officer serving the summons shall at once take the juvenile into custody and take the juvenile to the place of detention or shelter designated by the court. (7) Service of summons may be made under the direction of the court by any law enforcement officer or probation counselor. (8) If the person summoned as herein provided fails without reasonable cause to appear and abide the order of the court, the person may be proceeded against as for contempt of court. In determining whether a parent, guardian, or custodian had reasonable cause not to appear, the court may consider all factors relevant to the person’s ability to appear as summoned. [1997 c 338 § 19; 1979 c 155 § 62; 1977 ex.s. c 291 § 64.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.110 13.40.110 Hearing on question of declining jurisdiction—Held, when—Findings. (1) The prosecutor, respon[Title 13 RCW—page 81] 13.40.120 Title 13 RCW: Juvenile Courts and Juvenile Offenders dent, or the court on its own motion may, before a hearing on the information on its merits, file a motion requesting the court to transfer the respondent for adult criminal prosecution and the matter shall be set for a hearing on the question of declining jurisdiction. Unless waived by the court, the parties, and their counsel, a decline hearing shall be held when: (a) The respondent is fifteen, sixteen, or seventeen years of age and the information alleges a class A felony or an attempt, solicitation, or conspiracy to commit a class A felony; (b) The respondent is seventeen years of age and the information alleges assault in the second degree, extortion in the first degree, indecent liberties, child molestation in the second degree, kidnapping in the second degree, or robbery in the second degree; or (c) The information alleges an escape by the respondent and the respondent is serving a minimum juvenile sentence to age twenty-one. (2) The court after a decline hearing may order the case transferred for adult criminal prosecution upon a finding that the declination would be in the best interest of the juvenile or the public. The court shall consider the relevant reports, facts, opinions, and arguments presented by the parties and their counsel. (3) When the respondent is transferred for criminal prosecution or retained for prosecution in juvenile court, the court shall set forth in writing its finding which shall be supported by relevant facts and opinions produced at the hearing. [1997 c 338 § 20; 1990 c 3 § 303; 1988 c 145 § 18; 1979 c 155 § 63; 1977 ex.s. c 291 § 65.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Effective date—Savings—Application—1988 c 145: See notes following RCW 9A.44.010. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.120 13.40.120 Hearings—Time and place. All hearings may be conducted at any time or place within the limits of the judicial district, and such cases may not be heard in conjunction with other business of any other division of the superior court. [1981 c 299 § 9; 1979 c 155 § 64; 1977 ex.s. c 291 § 66.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.127 13.40.127 Deferred disposition. (1) A juvenile is eligible for deferred disposition unless he or she: (a) Is charged with a sex or violent offense; (b) Has a criminal history which includes any felony; (c) Has a prior deferred disposition or deferred adjudication; or (d) Has two or more adjudications. [Title 13 RCW—page 82] (2) The juvenile court may, upon motion at least fourteen days before commencement of trial and, after consulting the juvenile’s custodial parent or parents or guardian and with the consent of the juvenile, continue the case for disposition for a period not to exceed one year from the date the juvenile is found guilty. The court shall consider whether the offender and the community will benefit from a deferred disposition before deferring the disposition. (3) Any juvenile who agrees to a deferral of disposition shall: (a) Stipulate to the admissibility of the facts contained in the written police report; (b) Acknowledge that the report will be entered and used to support a finding of guilt and to impose a disposition if the juvenile fails to comply with terms of supervision; and (c) Waive the following rights to: (i) A speedy disposition; and (ii) call and confront witnesses. The adjudicatory hearing shall be limited to a reading of the court’s record. (4) Following the stipulation, acknowledgment, waiver, and entry of a finding or plea of guilt, the court shall defer entry of an order of disposition of the juvenile. (5) Any juvenile granted a deferral of disposition under this section shall be placed under community supervision. The court may impose any conditions of supervision that it deems appropriate including posting a probation bond. Payment of restitution under RCW 13.40.190 shall be a condition of community supervision under this section. The court may require a juvenile offender convicted of animal cruelty in the first degree to submit to a mental health evaluation to determine if the offender would benefit from treatment and such intervention would promote the safety of the community. After consideration of the results of the evaluation, as a condition of community supervision, the court may order the offender to attend treatment to address issues pertinent to the offense. (6) A parent who signed for a probation bond has the right to notify the counselor if the juvenile fails to comply with the bond or conditions of supervision. The counselor shall notify the court and surety of any failure to comply. A surety shall notify the court of the juvenile’s failure to comply with the probation bond. The state shall bear the burden to prove, by a preponderance of the evidence, that the juvenile has failed to comply with the terms of community supervision. (7) A juvenile’s lack of compliance shall be determined by the judge upon written motion by the prosecutor or the juvenile’s juvenile court community supervision counselor. If a juvenile fails to comply with terms of supervision, the court shall enter an order of disposition. (8) At any time following deferral of disposition the court may, following a hearing, continue the case for an additional one-year period for good cause. (9) At the conclusion of the period set forth in the order of deferral and upon a finding by the court of full compliance with conditions of supervision and payment of full restitution, the respondent’s conviction shall be vacated and the court shall dismiss the case with prejudice, except that a conviction under RCW 16.52.205 shall not be vacated. [2004 c 117 § 2; 2001 c 175 § 3; 1997 c 338 § 21.] Effective date—2004 c 117: See note following RCW 13.40.0357. (2006 Ed.) Juvenile Justice Act of 1977 Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. 13.40.130 13.40.130 Procedure upon plea of guilty or not guilty to information allegations—Notice—Adjudicatory and disposition hearing—Disposition standards used in sentencing. (1) The respondent shall be advised of the allegations in the information and shall be required to plead guilty or not guilty to the allegation(s). The state or the respondent may make preliminary motions up to the time of the plea. (2) If the respondent pleads guilty, the court may proceed with disposition or may continue the case for a dispositional hearing. If the respondent denies guilt, an adjudicatory hearing date shall be set. The court shall notify the parent, guardian, or custodian who has custody of a juvenile described in the charging document of the dispositional or adjudicatory hearing and shall require attendance. (3) At the adjudicatory hearing it shall be the burden of the prosecution to prove the allegations of the information beyond a reasonable doubt. (4) The court shall record its findings of fact and shall enter its decision upon the record. Such findings shall set forth the evidence relied upon by the court in reaching its decision. (5) If the respondent is found not guilty he or she shall be released from detention. (6) If the respondent is found guilty the court may immediately proceed to disposition or may continue the case for a dispositional hearing. Notice of the time and place of the continued hearing may be given in open court. If notice is not given in open court to a party, the party and the parent, guardian, or custodian who has custody of the juvenile shall be notified by mail of the time and place of the continued hearing. (7) The court following an adjudicatory hearing may request that a predisposition study be prepared to aid the court in its evaluation of the matters relevant to disposition of the case. (8) The disposition hearing shall be held within fourteen days after the adjudicatory hearing or plea of guilty unless good cause is shown for further delay, or within twenty-one days if the juvenile is not held in a detention facility, unless good cause is shown for further delay. (9) In sentencing an offender, the court shall use the disposition standards in effect on the date of the offense. (10) A person notified under this section who fails without reasonable cause to appear and abide by the order of the court may be proceeded against as for contempt of court. In determining whether a parent, guardian, or custodian had reasonable cause not to appear, the court may consider all factors relevant to the person’s ability to appear as summoned. [1997 c 338 § 22; 1981 c 299 § 10; 1979 c 155 § 65; 1977 ex.s. c 291 § 67.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. (2006 Ed.) 13.40.140 Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.135 13.40.135 Sexual motivation special allegation—Procedures. (1) The prosecuting attorney shall file a special allegation of sexual motivation in every juvenile offense other than sex offenses as defined in *RCW 9.94A.030(33) (a) or (c) when sufficient admissible evidence exists, which, when considered with the most plausible, reasonably consistent defense that could be raised under the evidence, would justify a finding of sexual motivation by a reasonable and objective fact-finder. (2) In a juvenile case wherein there has been a special allegation the state shall prove beyond a reasonable doubt that the juvenile committed the offense with a sexual motivation. The court shall make a finding of fact of whether or not the sexual motivation was present at the time of the commission of the offense. This finding shall not be applied to sex offenses as defined in *RCW 9.94A.030(33) (a) or (c). (3) The prosecuting attorney shall not withdraw the special allegation of "sexual motivation" without approval of the court through an order of dismissal. The court shall not dismiss the special allegation unless it finds that such an order is necessary to correct an error in the initial charging decision or unless there are evidentiary problems which make proving the special allegation doubtful. [1997 c 338 § 23; 1990 c 3 § 604.] *Reviser’s note: RCW 9.94A.030 was amended by 1999 c 352 § 8, changing subsection (33)(c) to subsection (33)(d). RCW 9.94A.030 was also amended by 1999 c 196 § 2, changing subsection (33) to subsection (36). RCW 9.94A.030 was subsequently amended by 2000 c 28 § 2, changing subsection (36) to subsection (37), effective July 1, 2001. RCW 9.94A.030 was subsequently amended by 2001 2nd sp.s. c 12 § 301, changing subsection (37) to subsection (38). RCW 9.94A.030 was subsequently amended by 2005 c 436 § 1, changing subsection (38) to subsection (41). RCW 9.94A.030 was subsequently amended by 2006 c 122 § 7, changing subsection (41) to subsection (42). Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Effective date—Application—1990 c 3 §§ 601-605: See note following RCW 9.94A.835. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 13.40.140 13.40.140 Juveniles entitled to usual judicial rights— Notice of—Open court—Privilege against self-incrimination—Waiver of rights, when. (1) A juvenile shall be advised of his or her rights when appearing before the court. (2) A juvenile and his or her parent, guardian, or custodian shall be advised by the court or its representative that the juvenile has a right to be represented by counsel at all critical stages of the proceedings. Unless waived, counsel shall be provided to a juvenile who is financially unable to obtain counsel without causing substantial hardship to himself or herself or the juvenile’s family, in any proceeding where the juvenile may be subject to transfer for criminal prosecution, or in any proceeding where the juvenile may be in danger of confinement. The ability to pay part of the cost of counsel does not preclude assignment. In no case may a juvenile be deprived of counsel because of a parent, guardian, or custodian refusing to pay therefor. The juvenile shall be fully [Title 13 RCW—page 83] 13.40.145 Title 13 RCW: Juvenile Courts and Juvenile Offenders advised of his or her right to an attorney and of the relevant services an attorney can provide. (3) The right to counsel includes the right to the appointment of experts necessary, and the experts shall be required pursuant to the procedures and requirements established by the supreme court. (4) Upon application of a party, the clerk of the court shall issue, and the court on its own motion may issue, subpoenas requiring attendance and testimony of witnesses and production of records, documents, or other tangible objects at any hearing, or such subpoenas may be issued by an attorney of record. (5) All proceedings shall be transcribed verbatim by means which will provide an accurate record. (6) The general public and press shall be permitted to attend any hearing unless the court, for good cause, orders a particular hearing to be closed. The presumption shall be that all such hearings will be open. (7) In all adjudicatory proceedings before the court, all parties shall have the right to adequate notice, discovery as provided in criminal cases, opportunity to be heard, confrontation of witnesses except in such cases as this chapter expressly permits the use of hearsay testimony, findings based solely upon the evidence adduced at the hearing, and an unbiased fact-finder. (8) A juvenile shall be accorded the same privilege against self-incrimination as an adult. An extrajudicial statement which would be constitutionally inadmissible in a criminal proceeding may not be received in evidence at an adjudicatory hearing over objection. Evidence illegally seized or obtained may not be received in evidence over objection at an adjudicatory hearing to prove the allegations against the juvenile if the evidence would be inadmissible in an adult criminal proceeding. An extrajudicial admission or confession made by the juvenile out of court is insufficient to support a finding that the juvenile committed the acts alleged in the information unless evidence of a corpus delicti is first independently established in the same manner as required in an adult criminal proceeding. (9) Waiver of any right which a juvenile has under this chapter must be an express waiver intelligently made by the juvenile after the juvenile has been fully informed of the right being waived. (10) Whenever this chapter refers to waiver or objection by a juvenile, the word juvenile shall be construed to refer to a juvenile who is at least twelve years of age. If a juvenile is under twelve years of age, the juvenile’s parent, guardian, or custodian shall give any waiver or offer any objection contemplated by this chapter. [1981 c 299 § 11; 1979 c 155 § 66; 1977 ex.s. c 291 § 68.] another person legally obligated to support the juvenile to appear, and the court may inquire into the ability of those persons to pay a reasonable sum representing in whole or in part the fees for legal services provided by publicly funded counsel and the costs incurred by the public in producing a verbatim report of proceedings and clerk’s papers for use in the appellate courts. If, after hearing, the court finds the juvenile, parent, or other legally obligated person able to pay part or all of the attorney’s fees and costs incurred on appeal, the court may enter such order or decree as is equitable and may enforce the order or decree by execution, or in any way in which a court of equity may enforce its decrees. In no event may the court order an amount to be paid for attorneys’ fees that exceeds the average per case fee allocation for juvenile proceedings in the county where the services have been provided or the average per case fee allocation for juvenile appeals established by the Washington supreme court. In any case in which there is no compliance with an order or decree of the court requiring a juvenile, parent, or other person legally obligated to support the juvenile to pay for legal services provided by publicly funded counsel, the court may, upon such person or persons being properly summoned or voluntarily appearing, proceed to inquire into the amount due upon the order or decree and enter judgment for that amount against the defaulting party or parties. Judgment shall be docketed in the same manner as are other judgments for the payment of money. The county in which such judgments are entered shall be denominated the judgment creditor, and the judgments may be enforced by the prosecuting attorney of that county. Any moneys recovered thereon shall be paid into the registry of the court and shall be disbursed to such person, persons, agency, or governmental entity as the court finds entitled thereto. Such judgments shall remain valid and enforceable for a period of ten years subsequent to entry. When the juvenile reaches the age of eighteen or at the conclusion of juvenile court jurisdiction, whichever occurs later, the superior court clerk must docket the remaining balance of the juvenile’s legal financial obligations in the same manner as other judgments for the payment of money. The judgment remains valid and enforceable until ten years from the date of its imposition. The clerk of superior court may seek extension of the judgment for legal financial obligations, including crime victims’ assessments, in the same manner as RCW 6.17.020 for purposes of collection as allowed under RCW 36.18.190. [1997 c 121 § 6; 1995 c 275 § 4; 1984 c 86 § 1.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Finding—Severability—1995 c 275: See notes following RCW 10.73.150. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.145 13.40.145 Payment of fees for legal services by publicly funded counsel—Hearing—Order or decree— Entering and enforcing judgments. Upon disposition or at the time of a modification or at the time an appellate court remands the case to the trial court following a ruling in favor of the state the court may order the juvenile or a parent or [Title 13 RCW—page 84] 13.40.150 13.40.150 Disposition hearing—Scope—Factors to be considered prior to entry of dispositional order. (1) In disposition hearings all relevant and material evidence, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value, even though such evidence may not be admissible in a hearing on the information. The youth or the youth’s counsel and the prosecuting attorney shall be afforded an opportunity (2006 Ed.) Juvenile Justice Act of 1977 to examine and controvert written reports so received and to cross-examine individuals making reports when such individuals are reasonably available, but sources of confidential information need not be disclosed. The prosecutor and counsel for the juvenile may submit recommendations for disposition. (2) For purposes of disposition: (a) Violations which are current offenses count as misdemeanors; (b) Violations may not count as part of the offender’s criminal history; (c) In no event may a disposition for a violation include confinement. (3) Before entering a dispositional order as to a respondent found to have committed an offense, the court shall hold a disposition hearing, at which the court shall: (a) Consider the facts supporting the allegations of criminal conduct by the respondent; (b) Consider information and arguments offered by parties and their counsel; (c) Consider any predisposition reports; (d) Consult with the respondent’s parent, guardian, or custodian on the appropriateness of dispositional options under consideration and afford the respondent and the respondent’s parent, guardian, or custodian an opportunity to speak in the respondent’s behalf; (e) Allow the victim or a representative of the victim and an investigative law enforcement officer to speak; (f) Determine the amount of restitution owing to the victim, if any, or set a hearing for a later date not to exceed one hundred eighty days from the date of the disposition hearing to determine the amount, except that the court may continue the hearing beyond the one hundred eighty days for good cause; (g) Determine the respondent’s offender score; (h) Consider whether or not any of the following mitigating factors exist: (i) The respondent’s conduct neither caused nor threatened serious bodily injury or the respondent did not contemplate that his or her conduct would cause or threaten serious bodily injury; (ii) The respondent acted under strong and immediate provocation; (iii) The respondent was suffering from a mental or physical condition that significantly reduced his or her culpability for the offense though failing to establish a defense; (iv) Prior to his or her detection, the respondent compensated or made a good faith attempt to compensate the victim for the injury or loss sustained; and (v) There has been at least one year between the respondent’s current offense and any prior criminal offense; (i) Consider whether or not any of the following aggravating factors exist: (i) In the commission of the offense, or in flight therefrom, the respondent inflicted or attempted to inflict serious bodily injury to another; (ii) The offense was committed in an especially heinous, cruel, or depraved manner; (iii) The victim or victims were particularly vulnerable; (2006 Ed.) 13.40.160 (iv) The respondent has a recent criminal history or has failed to comply with conditions of a recent dispositional order or diversion agreement; (v) The current offense included a finding of sexual motivation pursuant to RCW 13.40.135; (vi) The respondent was the leader of a criminal enterprise involving several persons; (vii) There are other complaints which have resulted in diversion or a finding or plea of guilty but which are not included as criminal history; and (viii) The standard range disposition is clearly too lenient considering the seriousness of the juvenile’s prior adjudications. (4) The following factors may not be considered in determining the punishment to be imposed: (a) The sex of the respondent; (b) The race or color of the respondent or the respondent’s family; (c) The creed or religion of the respondent or the respondent’s family; (d) The economic or social class of the respondent or the respondent’s family; and (e) Factors indicating that the respondent may be or is a dependent child within the meaning of this chapter. (5) A court may not commit a juvenile to a state institution solely because of the lack of facilities, including treatment facilities, existing in the community. [1998 c 86 § 1; 1997 c 338 § 24; 1995 c 268 § 5; 1992 c 205 § 109; 1990 c 3 § 605; 1981 c 299 § 12; 1979 c 155 § 67; 1977 ex.s. c 291 § 69.] Effective date—1998 c 86: "This act takes effect July 1, 1998." [1998 c 86 § 2.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Purpose—1995 c 268: See note following RCW 9.94A.030. Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010. Effective date—Application—1990 c 3 §§ 601-605: See note following RCW 9.94A.835. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.160 Disposition order—Court’s action prescribed—Disposition outside standard range—Right of appeal—Special sex offender disposition alternative. (1) The standard range disposition for a juvenile adjudicated of an offense is determined according to RCW 13.40.0357. (a) When the court sentences an offender to a local sanction as provided in RCW 13.40.0357 option A, the court shall impose a determinate disposition within the standard ranges, except as provided in subsection (2), (3), (4), (5), or (6) of this section. The disposition may be comprised of one or more local sanctions. (b) When the court sentences an offender to a standard range as provided in RCW 13.40.0357 option A that includes a term of confinement exceeding thirty days, commitment 13.40.160 [Title 13 RCW—page 85] 13.40.160 Title 13 RCW: Juvenile Courts and Juvenile Offenders shall be to the department for the standard range of confinement, except as provided in subsection (2), (3), (4), (5), or (6) of this section. (2) If the court concludes, and enters reasons for its conclusion, that disposition within the standard range would effectuate a manifest injustice the court shall impose a disposition outside the standard range, as indicated in option D of RCW 13.40.0357. The court’s finding of manifest injustice shall be supported by clear and convincing evidence. A disposition outside the standard range shall be determinate and shall be comprised of confinement or community supervision, or a combination thereof. When a judge finds a manifest injustice and imposes a sentence of confinement exceeding thirty days, the court shall sentence the juvenile to a maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range. A disposition outside the standard range is appealable under RCW 13.40.230 by the state or the respondent. A disposition within the standard range is not appealable under RCW 13.40.230. (3) When a juvenile offender is found to have committed a sex offense, other than a sex offense that is also a serious violent offense as defined by RCW 9.94A.030, and has no history of a prior sex offense, the court, on its own motion or the motion of the state or the respondent, may order an examination to determine whether the respondent is amenable to treatment. The report of the examination shall include at a minimum the following: The respondent’s version of the facts and the official version of the facts, the respondent’s offense history, an assessment of problems in addition to alleged deviant behaviors, the respondent’s social, educational, and employment situation, and other evaluation measures used. The report shall set forth the sources of the evaluator’s information. The examiner shall assess and report regarding the respondent’s amenability to treatment and relative risk to the community. A proposed treatment plan shall be provided and shall include, at a minimum: (a)(i) Frequency and type of contact between the offender and therapist; (ii) Specific issues to be addressed in the treatment and description of planned treatment modalities; (iii) Monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members, legal guardians, or others; (iv) Anticipated length of treatment; and (v) Recommended crime-related prohibitions. The court on its own motion may order, or on a motion by the state shall order, a second examination regarding the offender’s amenability to treatment. The evaluator shall be selected by the party making the motion. The defendant shall pay the cost of any second examination ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost. After receipt of reports of the examination, the court shall then consider whether the offender and the community will benefit from use of this special sex offender disposition alternative and consider the victim’s opinion whether the offender should receive a treatment disposition under this section. If the court determines that this special sex offender disposition alternative is appropriate, then the court shall [Title 13 RCW—page 86] impose a determinate disposition within the standard range for the offense, or if the court concludes, and enters reasons for its conclusions, that such disposition would cause a manifest injustice, the court shall impose a disposition under option D, and the court may suspend the execution of the disposition and place the offender on community supervision for at least two years. As a condition of the suspended disposition, the court may impose the conditions of community supervision and other conditions, including up to thirty days of confinement and requirements that the offender do any one or more of the following: (b)(i) Devote time to a specific education, employment, or occupation; (ii) Undergo available outpatient sex offender treatment for up to two years, or inpatient sex offender treatment not to exceed the standard range of confinement for that offense. A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment. The respondent shall not change sex offender treatment providers or treatment conditions without first notifying the prosecutor, the probation counselor, and the court, and shall not change providers without court approval after a hearing if the prosecutor or probation counselor object to the change; (iii) Remain within prescribed geographical boundaries and notify the court or the probation counselor prior to any change in the offender’s address, educational program, or employment; (iv) Report to the prosecutor and the probation counselor prior to any change in a sex offender treatment provider. This change shall have prior approval by the court; (v) Report as directed to the court and a probation counselor; (vi) Pay all court-ordered legal financial obligations, perform community restitution, or any combination thereof; (vii) Make restitution to the victim for the cost of any counseling reasonably related to the offense; (viii) Comply with the conditions of any court-ordered probation bond; or (ix) The court shall order that the offender shall not attend the public or approved private elementary, middle, or high school attended by the victim or the victim’s siblings. The parents or legal guardians of the offender are responsible for transportation or other costs associated with the offender’s change of school that would otherwise be paid by the school district. The court shall send notice of the disposition and restriction on attending the same school as the victim or victim’s siblings to the public or approved private school the juvenile will attend, if known, or if unknown, to the approved private schools and the public school district board of directors of the district in which the juvenile resides or intends to reside. This notice must be sent at the earliest possible date but not later than ten calendar days after entry of the disposition. The sex offender treatment provider shall submit quarterly reports on the respondent’s progress in treatment to the court and the parties. The reports shall reference the treatment plan and include at a minimum the following: Dates of attendance, respondent’s compliance with requirements, treatment activities, the respondent’s relative progress in (2006 Ed.) Juvenile Justice Act of 1977 treatment, and any other material specified by the court at the time of the disposition. At the time of the disposition, the court may set treatment review hearings as the court considers appropriate. Except as provided in this subsection (3), after July 1, 1991, examinations and treatment ordered pursuant to this subsection shall only be conducted by certified sex offender treatment providers or certified affiliate sex offender treatment providers under chapter 18.155 RCW. A sex offender therapist who examines or treats a juvenile sex offender pursuant to this subsection does not have to be certified by the department of health pursuant to chapter 18.155 RCW if the court finds that: (A) The offender has already moved to another state or plans to move to another state for reasons other than circumventing the certification requirements; (B) no certified sex offender treatment providers or certified affiliate sex offender treatment providers are available for treatment within a reasonable geographical distance of the offender’s home; and (C) the evaluation and treatment plan comply with this subsection (3) and the rules adopted by the department of health. If the offender violates any condition of the disposition or the court finds that the respondent is failing to make satisfactory progress in treatment, the court may revoke the suspension and order execution of the disposition or the court may impose a penalty of up to thirty days’ confinement for violating conditions of the disposition. The court may order both execution of the disposition and up to thirty days’ confinement for the violation of the conditions of the disposition. The court shall give credit for any confinement time previously served if that confinement was for the offense for which the suspension is being revoked. For purposes of this section, "victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged. "Victim" may also include a known parent or guardian of a victim who is a minor child unless the parent or guardian is the perpetrator of the offense. A disposition entered under this subsection (3) is not appealable under RCW 13.40.230. (4) If the juvenile offender is subject to a standard range disposition of local sanctions or 15 to 36 weeks of confinement and has not committed an A- or B+ offense, the court may impose the disposition alternative under RCW 13.40.165. (5) If a juvenile is subject to a commitment of 15 to 65 weeks of confinement, the court may impose the disposition alternative under RCW 13.40.167. (6) When the offender is subject to a standard range commitment of 15 to 36 weeks and is ineligible for a suspended disposition alternative, a manifest injustice disposition below the standard range, special sex offender disposition alternative, chemical dependency disposition alternative, or mental health disposition alternative, the court in a county with a pilot program under *RCW 13.40.169 may impose the disposition alternative under *RCW 13.40.169. (7) RCW 13.40.193 shall govern the disposition of any juvenile adjudicated of possessing a firearm in violation of RCW 9.41.040(2)(a)(iii) or any crime in which a special finding is entered that the juvenile was armed with a firearm. (2006 Ed.) 13.40.165 (8) Whenever a juvenile offender is entitled to credit for time spent in detention prior to a dispositional order, the dispositional order shall specifically state the number of days of credit for time served. (9) Except as provided under subsection (3), (4), (5), or (6) of this section, or option B of RCW 13.40.0357, or RCW 13.40.127, the court shall not suspend or defer the imposition or the execution of the disposition. (10) In no case shall the term of confinement imposed by the court at disposition exceed that to which an adult could be subjected for the same offense. [2004 c 120 § 4; 2004 c 38 § 11. Prior: 2003 c 378 § 3; 2003 c 53 § 99; 2002 c 175 § 22; 1999 c 91 § 2; prior: 1997 c 338 § 25; 1997 c 265 § 1; 1995 c 395 § 7; 1994 sp.s. c 7 § 523; 1992 c 45 § 6; 1990 c 3 § 302; 1989 c 407 § 4; 1983 c 191 § 8; 1981 c 299 § 13; 1979 c 155 § 68; 1977 ex.s. c 291 § 70.] Reviser’s note: *(1) RCW 13.40.169 expired July 1, 2005. (2) This section was amended by 2004 c 38 § 11 and by 2004 c 120 § 4, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—2004 c 120: See note following RCW 13.40.010. Effective date—2004 c 38: See note following RCW 18.155.075. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Effective date—2002 c 175: See note following RCW 7.80.130. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Severability—1997 c 265: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1997 c 265 § 9.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Severability—Application—1992 c 45: See notes following RCW 9.94A.840. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.165 13.40.165 Chemical dependency disposition alternative. (1) The purpose of this disposition alternative is to ensure that successful treatment options to reduce recidivism are available to eligible youth, pursuant to RCW 70.96A.520. The court must consider eligibility for the chemical dependency disposition alternative when a juvenile offender is subject to a standard range disposition of local sanctions or 15 to 36 weeks of confinement and has not committed an A- or B+ offense, other than a first time B+ offense under chapter 69.50 RCW. The court, on its own motion or the motion of the state or the respondent if the evidence shows that the offender may be chemically dependent or substance abusing, may order an examination by a chemical dependency counselor from a chemical dependency treatment facility approved under chapter 70.96A RCW to determine if the youth is chemically dependent or substance abusing. The offender shall pay the cost of any examination ordered under this subsection unless the court finds that the offender is indigent and [Title 13 RCW—page 87] 13.40.167 Title 13 RCW: Juvenile Courts and Juvenile Offenders no third party insurance coverage is available, in which case the state shall pay the cost. (2) The report of the examination shall include at a minimum the following: The respondent’s version of the facts and the official version of the facts, the respondent’s offense history, an assessment of drug-alcohol problems and previous treatment attempts, the respondent’s social, educational, and employment situation, and other evaluation measures used. The report shall set forth the sources of the examiner’s information. (3) The examiner shall assess and report regarding the respondent’s relative risk to the community. A proposed treatment plan shall be provided and shall include, at a minimum: (a) Whether inpatient and/or outpatient treatment is recommended; (b) Availability of appropriate treatment; (c) Monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members, legal guardians, or others; (d) Anticipated length of treatment; and (e) Recommended crime-related prohibitions. (4) The court on its own motion may order, or on a motion by the state or the respondent shall order, a second examination. The evaluator shall be selected by the party making the motion. The requesting party shall pay the cost of any examination ordered under this subsection unless the requesting party is the offender and the court finds that the offender is indigent and no third party insurance coverage is available, in which case the state shall pay the cost. (5)(a) After receipt of reports of the examination, the court shall then consider whether the offender and the community will benefit from use of this chemical dependency disposition alternative and consider the victim’s opinion whether the offender should receive a treatment disposition under this section. (b) If the court determines that this chemical dependency disposition alternative is appropriate, then the court shall impose the standard range for the offense, or if the court concludes, and enters reasons for its conclusion, that such disposition would effectuate a manifest injustice, the court shall impose a disposition above the standard range as indicated in option D of RCW 13.40.0357 if the disposition is an increase from the standard range and the confinement of the offender does not exceed a maximum of fifty-two weeks, suspend execution of the disposition, and place the offender on community supervision for up to one year. As a condition of the suspended disposition, the court shall require the offender to undergo available outpatient drug/alcohol treatment and/or inpatient drug/alcohol treatment. For purposes of this section, inpatient treatment may not exceed ninety days. As a condition of the suspended disposition, the court may impose conditions of community supervision and other sanctions, including up to thirty days of confinement, one hundred fifty hours of community restitution, and payment of legal financial obligations and restitution. (6) The drug/alcohol treatment provider shall submit monthly reports on the respondent’s progress in treatment to the court and the parties. The reports shall reference the treatment plan and include at a minimum the following: Dates of attendance, respondent’s compliance with requirements, [Title 13 RCW—page 88] treatment activities, the respondent’s relative progress in treatment, and any other material specified by the court at the time of the disposition. At the time of the disposition, the court may set treatment review hearings as the court considers appropriate. If the offender violates any condition of the disposition or the court finds that the respondent is failing to make satisfactory progress in treatment, the court may impose sanctions pursuant to RCW 13.40.200 or revoke the suspension and order execution of the disposition. The court shall give credit for any confinement time previously served if that confinement was for the offense for which the suspension is being revoked. (7) For purposes of this section, "victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the offense charged. "Victim" may also include a known parent or guardian of a victim who is a minor child or is not a minor child but is incapacitated, incompetent, disabled, or deceased. (8) Whenever a juvenile offender is entitled to credit for time spent in detention prior to a dispositional order, the dispositional order shall specifically state the number of days of credit for time served. (9) In no case shall the term of confinement imposed by the court at disposition exceed that to which an adult could be subjected for the same offense. (10) A disposition under this section is not appealable under RCW 13.40.230. [2004 c 120 § 5; 2003 c 378 § 6. Prior: 2002 c 175 § 23; 2002 c 42 § 1; 2001 c 164 § 1; 1997 c 338 § 26.] Effective date—2004 c 120: See note following RCW 13.40.010. Effective date—2002 c 175: See note following RCW 7.80.130. Effectiveness standards—1997 c 338 § 26: "The University of Washington shall develop standards for measuring effectiveness of treatment programs established under section 26 of this act. The standards shall be developed and presented to the governor and legislature not later than January 1, 1998. The standards shall include methods for measuring success factors following treatment. Success factors shall include, but need not be limited to, continued use of alcohol or controlled substances, arrests, violations of terms of community supervision, and convictions for subsequent offenses." [1997 c 338 § 27.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. 13.40.167 13.40.167 Mental health disposition alternative. (1) When an offender is subject to a standard range disposition involving confinement by the department, the court may: (a) Impose the standard range; or (b) Suspend the standard range disposition on condition that the offender complies with the terms of this mental health disposition alternative. (2) The court may impose this disposition alternative when the court finds the following: (a) The offender has a current diagnosis, consistent with the American psychiatry association diagnostic and statistical manual of mental disorders, of axis I psychiatric disorder, excluding youth that are diagnosed as solely having a conduct disorder, oppositional defiant disorder, substance abuse disorder, paraphilia, or pedophilia; (2006 Ed.) Juvenile Justice Act of 1977 (b) An appropriate treatment option is available in the local community; (c) The plan for the offender identifies and addresses requirements for successful participation and completion of the treatment intervention program including: Incentives and graduated sanctions designed specifically for amenable youth, including the use of detention, detoxication, and inpatient or outpatient substance abuse treatment and psychiatric hospitalization, and structured community support consisting of mental health providers, probation, educational and vocational advocates, child welfare services, and family and community support. For any mental health treatment ordered for an offender under this section, the treatment option selected shall be chosen from among programs which have been successful in addressing mental health needs of juveniles and successful in mental health treatment of juveniles and identified as research-based best practice programs. A list of programs which meet these criteria shall be agreed upon by: The Washington association of juvenile court administrators, the juvenile rehabilitation administration of the department of social and health services, a representative of the division of public behavioral health and justice policy at the University of Washington, and the Washington institute for public policy. The list of programs shall be created not later than July 1, 2003. The group shall provide the list to all superior courts, its own membership, the legislature, and the governor. The group shall meet annually and revise the list as appropriate; and (d) The offender, offender’s family, and community will benefit from use of the mental health disposition alternative. (3) The court on its own motion may order, or on motion by either party, shall order a comprehensive mental health evaluation to determine if the offender has a designated mental disorder. The court may also order a chemical dependency evaluation to determine if the offender also has a cooccurring chemical dependency disorder. The evaluation shall include at a minimum the following: The offender’s version of the facts and the official version of the facts, the offender’s offense, an assessment of the offender’s mental health and drug-alcohol problems and previous treatment attempts, and the offender’s social, criminal, educational, and employment history and living situation. (4) The evaluator shall determine if the offender is amenable to research-based treatment. A proposed case management and treatment plan shall include at a minimum: (a) The availability of treatment; (b) Anticipated length of treatment; (c) Whether one or more treatment interventions are proposed and the anticipated sequence of those treatment interventions; (d) The education plan; (e) The residential plan; and (f) The monitoring plan. (5) The court on its own motion may order, or on motion by either party, shall order a second mental health or chemical dependency evaluation. The party making the motion shall select the evaluator. The requesting party shall pay the cost of any examination ordered under this subsection and subsection (3) of this section unless the court finds the offender is indigent and no third party insurance coverage is available, in which case the state shall pay the cost. (2006 Ed.) 13.40.180 (6) Upon receipt of the assessments, evaluations, and reports the court shall consider whether the offender and the community will benefit from use of the mental health disposition alternative. The court shall consider the victim’s opinion whether the offender should receive the option. (7) If the court determines that the mental health disposition alternative is appropriate, the court shall impose a standard range disposition, suspend execution of the disposition, and place the offender on community supervision up to one year and impose one or more other local sanctions. Confinement in a secure county detention facility, other than county group homes, inpatient psychiatric treatment facilities, and substance abuse programs, shall be limited to thirty days. As a condition of a suspended disposition, the court shall require the offender to participate in the recommended treatment interventions. (8) The treatment providers shall submit monthly reports to the court and parties on the offender’s progress in treatment. The report shall reference the treatment plan and include at a minimum the following: Dates of attendance, offender’s compliance with requirements, treatment activities, medication management, the offender’s relative progress in treatment, and any other material specified by the court at the time of the disposition. (9) If the offender fails to comply with the suspended disposition, the court may impose sanctions pursuant to RCW 13.40.200 or may revoke the suspended disposition and order the disposition’s execution. (10) An offender is ineligible for the mental health disposition option under this section if: (a) The offender is ordered to serve a disposition for a firearm violation under RCW 13.40.193; or (b) The offense for which the disposition is being considered is: (i) An offense category A+, A, or A- offense, or an attempt, conspiracy, or solicitation to commit a class A+, A, or A- offense; (ii) Manslaughter in the second degree (RCW 9A.32.070); (iii) A sex offense as defined in RCW 9.94A.030; or (iv) Any offense category B+ or B offense, when the offense includes infliction of bodily harm upon another or when during the commission or immediate withdrawal from the offense the respondent was armed with a deadly weapon. (11) Subject to funds appropriated for this specific purpose, the costs incurred by the juvenile courts for the mental health and chemical dependency evaluations, treatment, and costs of supervision required under this section shall be paid by the department’s juvenile rehabilitation administration. [2005 c 508 § 1; 2003 c 378 § 4.] 13.40.180 13.40.180 Disposition order—Consecutive terms when two or more offenses—Limitations. Where a disposition is imposed on a youth for two or more offenses, the terms shall run consecutively, subject to the following limitations: (1) Where the offenses were committed through a single act or omission, omission, or through an act or omission which in itself constituted one of the offenses and also was an element of the other, the aggregate of all the terms shall not [Title 13 RCW—page 89] 13.40.185 Title 13 RCW: Juvenile Courts and Juvenile Offenders exceed one hundred fifty percent of the term imposed for the most serious offense; (2) The aggregate of all consecutive terms shall not exceed three hundred percent of the term imposed for the most serious offense; and (3) The aggregate of all consecutive terms of community supervision shall not exceed two years in length, or require payment of more than two hundred dollars in fines or the performance of more than two hundred hours of community restitution. [2002 c 175 § 24; 1981 c 299 § 14; 1977 ex.s. c 291 § 72.] Effective date—2002 c 175: See note following RCW 7.80.130. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.185 13.40.185 Disposition order—Confinement under departmental supervision or in juvenile facility, when. (1) Any term of confinement imposed for an offense which exceeds thirty days shall be served under the supervision of the department. If the period of confinement imposed for more than one offense exceeds thirty days but the term imposed for each offense is less than thirty days, the confinement may, in the discretion of the court, be served in a juvenile facility operated by or pursuant to a contract with the state or a county. (2) Whenever a juvenile is confined in a detention facility or is committed to the department, the court may not directly order a juvenile into a particular county or state facility. The juvenile court administrator and the secretary, assistant secretary, or the secretary’s designee, as appropriate, has the sole discretion to determine in which facility a juvenile should be confined or committed. The counties may operate a variety of detention facilities as determined by the county legislative authority subject to available funds. [1994 sp.s. c 7 § 524; 1981 c 299 § 15.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. 13.40.190 13.40.190 Disposition order—Restitution for loss— Modification of restitution order. (1) In its dispositional order, the court shall require the respondent to make restitution to any persons who have suffered loss or damage as a result of the offense committed by the respondent. In addition, restitution may be ordered for loss or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which, pursuant to a plea agreement, are not prosecuted. The payment of restitution shall be in addition to any punishment which is imposed pursuant to the other provisions of this chapter. The court may determine the amount, terms, and conditions of the restitution including a payment plan extending up to ten years if the court determines that the respondent does not have the means to make full restitution over a shorter period. Restitution may include the costs of counseling reasonably related to the offense. If the respondent participated in the crime with another person or other persons, all such participants shall be jointly and severally responsible for the payment of restitution. For the purposes of this section, the respondent shall remain under the court’s jurisdiction for a maximum term of ten years after the [Title 13 RCW—page 90] respondent’s eighteenth birthday. Prior to the expiration of the ten-year period, the juvenile court may extend the judgment for the payment of restitution for an additional ten years. At any time, the court may determine that the respondent is not required to pay, or may relieve the respondent of the requirement to pay, full or partial restitution to any insurance provider authorized under Title 48 RCW if the respondent reasonably satisfies the court that he or she does not have the means to make full or partial restitution to the insurance provider and could not reasonably acquire the means to pay the insurance provider the restitution over a ten-year period. (2) Regardless of the provisions of subsection (1) of this section, the court shall order restitution in all cases where the victim is entitled to benefits under the crime victims’ compensation act, chapter 7.68 RCW. If the court does not order restitution and the victim of the crime has been determined to be entitled to benefits under the crime victims’ compensation act, the department of labor and industries, as administrator of the crime victims’ compensation program, may petition the court within one year of entry of the disposition order for entry of a restitution order. Upon receipt of a petition from the department of labor and industries, the court shall hold a restitution hearing and shall enter a restitution order. (3) If an order includes restitution as one of the monetary assessments, the county clerk shall make disbursements to victims named in the order. The restitution to victims named in the order shall be paid prior to any payment for other penalties or monetary assessments. (4) For purposes of this section, "victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the offense charged. "Victim" may also include a known parent or guardian of a victim who is a minor child or is not a minor child but is incapacitated, incompetent, disabled, or deceased. (5) A respondent under obligation to pay restitution may petition the court for modification of the restitution order. [2004 c 120 § 6. Prior: 1997 c 338 § 29; 1997 c 121 § 9; 1996 c 124 § 2; 1995 c 33 § 5; 1994 sp.s. c 7 § 528; 1987 c 281 § 5; 1985 c 257 § 2; 1983 c 191 § 9; 1979 c 155 § 69; 1977 ex.s. c 291 § 73.] Effective date—2004 c 120: See note following RCW 13.40.010. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1987 c 281: See note following RCW 7.68.020. Severability—1985 c 257: See note following RCW 13.34.165. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.192 13.40.192 Legal financial obligations—Enforceability—Treatment of obligations upon age of eighteen or conclusion of juvenile court jurisdiction—Extension of judgment. If a juvenile is ordered to pay legal financial obligations, including fines, penalty assessments, attorneys’ fees, court costs, and restitution, the money judgment remains (2006 Ed.) Juvenile Justice Act of 1977 enforceable for a period of ten years. When the juvenile reaches the age of eighteen years or at the conclusion of juvenile court jurisdiction, whichever occurs later, the superior court clerk must docket the remaining balance of the juvenile’s legal financial obligations in the same manner as other judgments for the payment of money. The judgment remains valid and enforceable until ten years from the date of its imposition. The clerk of the superior court may seek extension of the judgment for legal financial obligations, including crime victims’ assessments, in the same manner as RCW 6.17.020 for purposes of collection as allowed under RCW 36.18.190. [1997 c 121 § 7.] 13.40.193 13.40.193 Firearms—Length of confinement. (1) If a respondent is found to have been in possession of a firearm in violation of RCW 9.41.040(2)(a)(iii), the court shall impose a minimum disposition of ten days of confinement. If the offender’s standard range of disposition for the offense as indicated in RCW 13.40.0357 is more than thirty days of confinement, the court shall commit the offender to the department for the standard range disposition. The offender shall not be released until the offender has served a minimum of ten days in confinement. (2) If the court finds that the respondent or an accomplice was armed with a firearm, the court shall determine the standard range disposition for the offense pursuant to RCW 13.40.160. If the offender or an accomplice was armed with a firearm when the offender committed any felony other than possession of a machine gun, possession of a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, or use of a machine gun in a felony, the following periods of total confinement must be added to the sentence: For a class A felony, six months; for a class B felony, four months; and for a class C felony, two months. The additional time shall be imposed regardless of the offense’s juvenile disposition offense category as designated in RCW 13.40.0357. (3) When a disposition under this section would effectuate a manifest injustice, the court may impose another disposition. When a judge finds a manifest injustice and imposes a disposition of confinement exceeding thirty days, the court shall commit the juvenile to a maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range. When a judge finds a manifest injustice and imposes a disposition of confinement less than thirty days, the disposition shall be comprised of confinement or community supervision or both. (4) Any term of confinement ordered pursuant to this section shall run consecutively to any term of confinement imposed in the same disposition for other offenses. [2003 c 53 § 100; 1997 c 338 § 30; 1994 sp.s. c 7 § 525.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Intent—Severability—Effective dates—Contingent expiration date—1994 sp.s. c 7: See notes following RCW 43.70.540. (2006 Ed.) 13.40.200 13.40.196 13.40.196 Firearms—Special allegation. A prosecutor may file a special allegation that the offender or an accomplice was armed with a firearm when the offender committed the alleged offense. If a special allegation has been filed and the court finds that the offender committed the alleged offense, the court shall also make a finding whether the offender or an accomplice was armed with a firearm when the offender committed the offense. [1994 sp.s. c 7 § 526.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. 13.40.198 13.40.198 Penalty assessments—Jurisdiction of court. If a respondent is ordered to pay a penalty assessment pursuant to a dispositional order entered under this chapter, he or she shall remain under the court’s jurisdiction for a maximum term of ten years after the respondent’s eighteenth birthday. Prior to the expiration of the ten-year period, the juvenile court may extend the judgment for the payment of a penalty assessment for an additional ten years. [2000 c 71 § 1.] Effective date—2000 c 71: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 22, 2000]." [2000 c 71 § 4.] 13.40.200 13.40.200 Violation of order of restitution, community supervision, fines, penalty assessments, or confinement—Modification of order after hearing—Scope— Rights—Use of fines. (1) When a respondent fails to comply with an order of restitution, community supervision, penalty assessments, or confinement of less than thirty days, the court upon motion of the prosecutor or its own motion, may modify the order after a hearing on the violation. (2) The hearing shall afford the respondent the same due process of law as would be afforded an adult probationer. The court may issue a summons or a warrant to compel the respondent’s appearance. The state shall have the burden of proving by a preponderance of the evidence the fact of the violation. The respondent shall have the burden of showing that the violation was not a willful refusal to comply with the terms of the order. If a respondent has failed to pay a fine, penalty assessments, or restitution or to perform community restitution hours, as required by the court, it shall be the respondent’s burden to show that he or she did not have the means and could not reasonably have acquired the means to pay the fine, penalty assessments, or restitution or perform community restitution. (3) If the court finds that a respondent has willfully violated the terms of an order pursuant to subsections (1) and (2) of this section, it may impose a penalty of up to thirty days’ confinement. Penalties for multiple violations occurring prior to the hearing shall not be aggregated to exceed thirty days’ confinement. Regardless of the number of times a respondent is brought to court for violations of the terms of a single disposition order, the combined total number of days spent by the respondent in detention shall never exceed the maximum term to which an adult could be sentenced for the underlying offense. (4) If a respondent has been ordered to pay a fine or monetary penalty and due to a change of circumstance cannot reasonably comply with the order, the court, upon motion of the [Title 13 RCW—page 91] 13.40.205 Title 13 RCW: Juvenile Courts and Juvenile Offenders respondent, may order that the unpaid fine or monetary penalty be converted to community restitution unless the monetary penalty is the crime victim penalty assessment, which cannot be converted, waived, or otherwise modified, except for schedule of payment. The number of hours of community restitution in lieu of a monetary penalty or fine shall be converted at the rate of the prevailing state minimum wage per hour. The monetary penalties or fines collected shall be deposited in the county general fund. A failure to comply with an order under this subsection shall be deemed a failure to comply with an order of community supervision and may be proceeded against as provided in this section. (5) When a respondent has willfully violated the terms of a probation bond, the court may modify, revoke, or retain the probation bond as provided in RCW 13.40.054. [2004 c 120 § 7; 2002 c 175 § 25; 1997 c 338 § 31; 1995 c 395 § 8; 1986 c 288 § 5; 1983 c 191 § 15; 1979 c 155 § 70; 1977 ex.s. c 291 § 74.] Effective date—2004 c 120: See note following RCW 13.40.010. Effective date—2002 c 175: See note following RCW 7.80.130. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Severability—1986 c 288: See note following RCW 13.32A.050. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.205 13.40.205 Release from physical custody, when— Authorized leaves—Leave plan and order—Notice. (1) A juvenile sentenced to a term of confinement to be served under the supervision of the department shall not be released from the physical custody of the department prior to the release date established under RCW 13.40.210 except as otherwise provided in this section. (2) A juvenile serving a term of confinement under the supervision of the department may be released on authorized leave from the physical custody of the department only if consistent with public safety and if: (a) Sixty percent of the minimum term of confinement has been served; and (b) The purpose of the leave is to enable the juvenile: (i) To visit the juvenile’s family for the purpose of strengthening or preserving family relationships; (ii) To make plans for parole or release which require the juvenile’s personal appearance in the community and which will facilitate the juvenile’s reintegration into the community; or (iii) To make plans for a residential placement out of the juvenile’s home which requires the juvenile’s personal appearance in the community. (3) No authorized leave may exceed seven consecutive days. The total of all pre-minimum term authorized leaves granted to a juvenile prior to final discharge from confinement shall not exceed thirty days. (4) Prior to authorizing a leave, the secretary shall require a written leave plan, which shall detail the purpose of the leave and how it is to be achieved, the address at which the juvenile shall reside, the identity of the person responsible [Title 13 RCW—page 92] for supervising the juvenile during the leave, and a statement by such person acknowledging familiarity with the leave plan and agreeing to supervise the juvenile and to notify the secretary immediately if the juvenile violates any terms or conditions of the leave. The leave plan shall include such terms and conditions as the secretary deems appropriate and shall be signed by the juvenile. (5) Upon authorizing a leave, the secretary shall issue to the juvenile an authorized leave order which shall contain the name of the juvenile, the fact that the juvenile is on leave from a designated facility, the time period of the leave, and the identity of an appropriate official of the department to contact when necessary. The authorized leave order shall be carried by the juvenile at all times while on leave. (6) Prior to the commencement of any authorized leave, the secretary shall give notice of the leave to the appropriate law enforcement agency in the jurisdiction in which the juvenile will reside during the leave period. The notice shall include the identity of the juvenile, the time period of the leave, the residence of the juvenile during the leave, and the identity of the person responsible for supervising the juvenile during the leave. (7) The secretary may authorize a leave, which shall not exceed forty-eight hours plus travel time, to meet an emergency situation such as a death or critical illness of a member of the juvenile’s family. The secretary may authorize a leave, which shall not exceed the period of time medically necessary, to obtain medical care not available in a juvenile facility maintained by the department. In cases of emergency or medical leave the secretary may waive all or any portions of subsections (2)(a), (3), (4), (5), and (6) of this section. (8) If requested by the juvenile’s victim or the victim’s immediate family, the secretary shall give notice of any leave to the victim or the victim’s immediate family. (9) A juvenile who violates any condition of an authorized leave plan may be taken into custody and returned to the department in the same manner as an adult in identical circumstances. (10) Notwithstanding the provisions of this section, a juvenile placed in minimum security status may participate in work, educational, community restitution, or treatment programs in the community up to twelve hours a day if approved by the secretary. Such a release shall not be deemed a leave of absence. (11) Subsections (6), (7), and (8) of this section do not apply to juveniles covered by RCW 13.40.215. [2002 c 175 § 26; 1990 c 3 § 103; 1983 c 191 § 10.] Effective date—2002 c 175: See note following RCW 7.80.130. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 13.40.210 Setting of release date—Administrative release authorized, when—Parole program, revocation or modification of, scope—Intensive supervision program— Parole officer’s right of arrest. (1) The secretary shall set a release date for each juvenile committed to its custody. The release date shall be within the prescribed range to which a juvenile has been committed under RCW 13.40.0357 or 13.40.030 except as provided in RCW 13.40.320 concerning offenders the department determines are eligible for the juvenile offender basic training camp program. Such dates shall 13.40.210 (2006 Ed.) Juvenile Justice Act of 1977 be determined prior to the expiration of sixty percent of a juvenile’s minimum term of confinement included within the prescribed range to which the juvenile has been committed. The secretary shall release any juvenile committed to the custody of the department within four calendar days prior to the juvenile’s release date or on the release date set under this chapter. Days spent in the custody of the department shall be tolled by any period of time during which a juvenile has absented himself or herself from the department’s supervision without the prior approval of the secretary or the secretary’s designee. (2) The secretary shall monitor the average daily population of the state’s juvenile residential facilities. When the secretary concludes that in-residence population of residential facilities exceeds one hundred five percent of the rated bed capacity specified in statute, or in absence of such specification, as specified by the department in rule, the secretary may recommend reductions to the governor. On certification by the governor that the recommended reductions are necessary, the secretary has authority to administratively release a sufficient number of offenders to reduce in-residence population to one hundred percent of rated bed capacity. The secretary shall release those offenders who have served the greatest proportion of their sentence. However, the secretary may deny release in a particular case at the request of an offender, or if the secretary finds that there is no responsible custodian, as determined by the department, to whom to release the offender, or if the release of the offender would pose a clear danger to society. The department shall notify the committing court of the release at the time of release if any such early releases have occurred as a result of excessive in-residence population. In no event shall an offender adjudicated of a violent offense be granted release under the provisions of this subsection. (3)(a) Following the release of any juvenile under subsection (1) of this section, the secretary may require the juvenile to comply with a program of parole to be administered by the department in his or her community which shall last no longer than eighteen months, except that in the case of a juvenile sentenced for rape in the first or second degree, rape of a child in the first or second degree, child molestation in the first degree, or indecent liberties with forcible compulsion, the period of parole shall be twenty-four months and, in the discretion of the secretary, may be up to thirty-six months when the secretary finds that an additional period of parole is necessary and appropriate in the interests of public safety or to meet the ongoing needs of the juvenile. A parole program is mandatory for offenders released under subsection (2) of this section. The decision to place an offender on parole shall be based on an assessment by the department of the offender’s risk for reoffending upon release. The department shall prioritize available parole resources to provide supervision and services to offenders at moderate to high risk for reoffending. (b) The secretary shall, for the period of parole, facilitate the juvenile’s reintegration into his or her community and to further this goal shall require the juvenile to refrain from possessing a firearm or using a deadly weapon and refrain from committing new offenses and may require the juvenile to: (i) Undergo available medical, psychiatric, drug and alcohol, sex offender, mental health, and other offense-related treat(2006 Ed.) 13.40.210 ment services; (ii) report as directed to a parole officer and/or designee; (iii) pursue a course of study, vocational training, or employment; (iv) notify the parole officer of the current address where he or she resides; (v) be present at a particular address during specified hours; (vi) remain within prescribed geographical boundaries; (vii) submit to electronic monitoring; (viii) refrain from using illegal drugs and alcohol, and submit to random urinalysis when requested by the assigned parole officer; (ix) refrain from contact with specific individuals or a specified class of individuals; (x) meet other conditions determined by the parole officer to further enhance the juvenile’s reintegration into the community; (xi) pay any court-ordered fines or restitution; and (xii) perform community restitution. Community restitution for the purpose of this section means compulsory service, without compensation, performed for the benefit of the community by the offender. Community restitution may be performed through public or private organizations or through work crews. (c) The secretary may further require up to twenty-five percent of the highest risk juvenile offenders who are placed on parole to participate in an intensive supervision program. Offenders participating in an intensive supervision program shall be required to comply with all terms and conditions listed in (b) of this subsection and shall also be required to comply with the following additional terms and conditions: (i) Obey all laws and refrain from any conduct that threatens public safety; (ii) report at least once a week to an assigned community case manager; and (iii) meet all other requirements imposed by the community case manager related to participating in the intensive supervision program. As a part of the intensive supervision program, the secretary may require day reporting. (d) After termination of the parole period, the juvenile shall be discharged from the department’s supervision. (4)(a) The department may also modify parole for violation thereof. If, after affording a juvenile all of the due process rights to which he or she would be entitled if the juvenile were an adult, the secretary finds that a juvenile has violated a condition of his or her parole, the secretary shall order one of the following which is reasonably likely to effectuate the purpose of the parole and to protect the public: (i) Continued supervision under the same conditions previously imposed; (ii) intensified supervision with increased reporting requirements; (iii) additional conditions of supervision authorized by this chapter; (iv) except as provided in (a)(v) and (vi) of this subsection, imposition of a period of confinement not to exceed thirty days in a facility operated by or pursuant to a contract with the state of Washington or any city or county for a portion of each day or for a certain number of days each week with the balance of the days or weeks spent under supervision; (v) the secretary may order any of the conditions or may return the offender to confinement for the remainder of the sentence range if the offense for which the offender was sentenced is rape in the first or second degree, rape of a child in the first or second degree, child molestation in the first degree, indecent liberties with forcible compulsion, or a sex offense that is also a serious violent offense as defined by RCW 9.94A.030; and (vi) the secretary may order any of the conditions or may return the offender to confinement for the remainder of the sentence range if the youth has completed [Title 13 RCW—page 93] 13.40.212 Title 13 RCW: Juvenile Courts and Juvenile Offenders the basic training camp program as described in RCW 13.40.320. (b) If the department finds that any juvenile in a program of parole has possessed a firearm or used a deadly weapon during the program of parole, the department shall modify the parole under (a) of this subsection and confine the juvenile for at least thirty days. Confinement shall be in a facility operated by or pursuant to a contract with the state or any county. (5) A parole officer of the department of social and health services shall have the power to arrest a juvenile under his or her supervision on the same grounds as a law enforcement officer would be authorized to arrest the person. (6) If so requested and approved under chapter 13.06 RCW, the secretary shall permit a county or group of counties to perform functions under subsections (3) through (5) of this section. [2002 c 175 § 27. Prior: 2001 c 137 § 2; 2001 c 51 § 1; 1997 c 338 § 32; 1994 sp.s. c 7 § 527; 1990 c 3 § 304; 1987 c 505 § 4; 1985 c 287 § 1; 1985 c 257 § 4; 1983 c 191 § 11; 1979 c 155 § 71; 1977 ex.s. c 291 § 75.] Effective date—2002 c 175: See note following RCW 7.80.130. Effective date—2001 c 51: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [April 17, 2001]." [2001 c 51 § 2.] Findings—Intent—1997 c 338 §§ 32 and 34: See note following RCW 13.40.212. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Intent—Severability—Effective dates—Contingent expiration date—1994 sp.s. c 7: See notes following RCW 43.70.540. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Intent—1985 c 257 § 4: "To promote both public safety and the welfare of juvenile offenders, it is the intent of the legislature that services to juvenile offenders be delivered in the most effective and efficient means possible. Section 4 of this act facilitates those objectives by permitting counties to supervise parole of juvenile offenders. This is consistent with the philosophy of chapter 13.06 RCW to deliver community services to juvenile offenders comprehensively at the county level." [1985 c 257 § 3.] Severability—1985 c 257: See note following RCW 13.34.165. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.212 13.40.212 Intensive supervision program—Elements—Report. (1) The department shall, no later than January 1, 1999, implement an intensive supervision program as a part of its parole services that includes, at a minimum, the following program elements: (a) A process of case management involving coordinated and comprehensive planning, information exchange, continuity and consistency, service provision and referral, and monitoring. The components of the case management system shall include assessment, classification, and selection criteria; individual case planning that incorporates a family and community perspective; a mixture of intensive surveillance and services; a balance of incentives and graduated consequences coupled with the imposition of realistic, enforceable [Title 13 RCW—page 94] conditions; and service brokerage with community resources and linkage with social networks; (b) Administration of transition services that transcend traditional agency boundaries and professional interests and include courts, institutions, aftercare, education, social and mental health services, substance abuse treatment, and employment and vocational training; and (c) A plan for information management and program evaluation that maintains close oversight over implementation and quality control, and determines the effectiveness of both the processes and outcomes of the program. (2) The department shall report annually to the legislature, beginning December 1, 1999, on the department’s progress in meeting the intensive supervision program evaluation goals required under subsection (1)(c) of this section. [1997 c 338 § 34.] Findings—Intent—1997 c 338 §§ 32 and 34: "The legislature finds the present system of transitioning youths from residential status to parole status to discharge is insufficient to provide adequate rehabilitation and public safety in many instances, particularly in cases of offenders at highest risk of reoffending. The legislature further finds that an intensive supervision program based on the following principles holds much promise for positively impacting recidivism rates for juvenile offenders: (1) Progressive increase in responsibility and freedom in the community; (2) facilitation of youths’ interaction and involvement with their communities; (3) involvement of both the youth and targeted community support systems such as family, peers, schools, and employers, on the qualities needed for constructive interaction and successful adjustment with the community; (4) development of new resources, supports, and opportunities where necessary; and (5) ongoing monitoring and testing of youth on their ability to abide by community rules and standards. The legislature intends for the department to create an intensive supervision program based on the principles stated in this section that will be available to the highest risk juvenile offenders placed on parole." [1997 c 338 § 33.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. 13.40.215 13.40.215 Juveniles found to have committed violent or sex offense or stalking—Notification of discharge, parole, leave, release, transfer, or escape—To whom given—School attendance—Definitions. (1)(a) Except as provided in subsection (2) of this section, at the earliest possible date, and in no event later than thirty days before discharge, parole, or any other authorized leave or release, or before transfer to a community residential facility, the secretary shall send written notice of the discharge, parole, authorized leave or release, or transfer of a juvenile found to have committed a violent offense, a sex offense, or stalking, to the following: (i) The chief of police of the city, if any, in which the juvenile will reside; (ii) The sheriff of the county in which the juvenile will reside; and (iii) The approved private schools and the common school district board of directors of the district in which the juvenile intends to reside or the approved private school or public school district in which the juvenile last attended school, whichever is appropriate, except when it has been determined by the department that the juvenile is twenty-one years old or will be in the community for less than seven con(2006 Ed.) Juvenile Justice Act of 1977 secutive days on approved leave and will not be attending school during that time. (b) After July 25, 1999, the department shall send a written notice to approved private and public schools under the same conditions identified in subsection (1)(a)(iii) of this section when a juvenile adjudicated of any offense is transferred to a community residential facility, discharged, paroled, released, or granted a leave. The community residential facility shall provide written notice of the offender’s criminal history to any school that the offender attends while residing at the community residential facility and to any employer that employs the offender while residing at the community residential facility. (c) The same notice as required by (a) of this subsection shall be sent to the following, if such notice has been requested in writing about a specific juvenile: (i) The victim of the offense for which the juvenile was found to have committed or the victim’s next of kin if the crime was a homicide; (ii) Any witnesses who testified against the juvenile in any court proceedings involving the offense; and (iii) Any person specified in writing by the prosecuting attorney. Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the juvenile. The notice to the chief of police or the sheriff shall include the identity of the juvenile, the residence where the juvenile will reside, the identity of the person, if any, responsible for supervising the juvenile, and the time period of any authorized leave. (d) The thirty-day notice requirements contained in this subsection shall not apply to emergency medical furloughs. (e) The existence of the notice requirements in this subsection will not require any extension of the release date in the event the release plan changes after notification. (2)(a) If a juvenile found to have committed a violent offense, a sex offense, or stalking escapes from a facility of the department, the secretary shall immediately notify, by the most reasonable and expedient means available, the chief of police of the city and the sheriff of the county in which the juvenile resided immediately before the juvenile’s arrest. If previously requested, the secretary shall also notify the witnesses and the victim of the offense which the juvenile was found to have committed or the victim’s next of kin if the crime was a homicide. If the juvenile is recaptured, the secretary shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the department learns of such recapture. (b) The secretary may authorize a leave, for a juvenile found to have committed a violent offense, a sex offense, or stalking, which shall not exceed forty-eight hours plus travel time, to meet an emergency situation such as a death or critical illness of a member of the juvenile’s family. The secretary may authorize a leave, which shall not exceed the time medically necessary, to obtain medical care not available in a juvenile facility maintained by the department. Prior to the commencement of an emergency or medical leave, the secretary shall give notice of the leave to the appropriate law enforcement agency in the jurisdiction in which the juvenile (2006 Ed.) 13.40.217 will be during the leave period. The notice shall include the identity of the juvenile, the time period of the leave, the residence of the juvenile during the leave, and the identity of the person responsible for supervising the juvenile during the leave. If previously requested, the department shall also notify the witnesses and victim of the offense which the juvenile was found to have committed or the victim’s next of kin if the offense was a homicide. In case of an emergency or medical leave the secretary may waive all or any portion of the requirements for leaves pursuant to RCW 13.40.205 (2)(a), (3), (4), and (5). (3) If the victim, the victim’s next of kin, or any witness is under the age of sixteen, the notice required by this section shall be sent to the parents or legal guardian of the child. (4) The secretary shall send the notices required by this chapter to the last address provided to the department by the requesting party. The requesting party shall furnish the department with a current address. (5) Upon discharge, parole, transfer to a community residential facility, or other authorized leave or release, a convicted juvenile sex offender shall not attend a public or approved private elementary, middle, or high school that is attended by a victim or a sibling of a victim of the sex offender. The parents or legal guardians of the convicted juvenile sex offender shall be responsible for transportation or other costs associated with or required by the sex offender’s change in school that otherwise would be paid by a school district. Upon discharge, parole, transfer to a community residential facility, or other authorized leave or release of a convicted juvenile sex offender, the secretary shall send written notice of the discharge, parole, or other authorized leave or release and the requirements of this subsection to the common school district board of directors of the district in which the sex offender intends to reside or the district in which the sex offender last attended school, whichever is appropriate. The secretary shall send a similar notice to any approved private school the juvenile will attend, if known, or if unknown, to the approved private schools within the district the juvenile resides or intends to reside. (6) For purposes of this section the following terms have the following meanings: (a) "Violent offense" means a violent offense under RCW 9.94A.030; (b) "Sex offense" means a sex offense under RCW 9.94A.030; (c) "Stalking" means the crime of stalking as defined in RCW 9A.46.110; (d) "Next of kin" means a person’s spouse, parents, siblings, and children. [1999 c 198 § 1; 1997 c 265 § 2; 1995 c 324 § 1. Prior: 1994 c 129 § 6; 1994 c 78 § 1; 1993 c 27 § 1; 1990 c 3 § 101.] Severability—1997 c 265: See note following RCW 13.40.160. Findings—Intent—1994 c 129: See note following RCW 4.24.550. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 13.40.217 13.40.217 Juveniles adjudicated of sex offenses— Release of information authorized. (1) In addition to any other information required to be released under this chapter, the department is authorized, pursuant to RCW 4.24.550, to [Title 13 RCW—page 95] 13.40.220 Title 13 RCW: Juvenile Courts and Juvenile Offenders release relevant information that is necessary to protect the public concerning juveniles adjudicated of sex offenses. (2) In order for public agencies to have the information necessary for notifying the public about sex offenders as authorized in RCW 4.24.550, the secretary shall issue to appropriate law enforcement agencies narrative notices regarding the pending release of sex offenders from the department’s juvenile rehabilitation facilities. The narrative notices shall, at a minimum, describe the identity and criminal history behavior of the offender and shall include the department’s risk level classification for the offender. For sex offenders classified as either risk level II or III, the narrative notices shall also include the reasons underlying the classification. (3) For the purposes of this section, the department shall classify as risk level I those offenders whose risk assessments indicate a low risk of reoffense within the community at large. The department shall classify as risk level II those offenders whose risk assessments indicate a moderate risk of reoffense within the community at large. The department shall classify as risk level III those offenders whose risk assessments indicate a high risk of reoffense within the community at large. [1997 c 364 § 2; 1990 c 3 § 102.] Severability—1997 c 364: See note following RCW 4.24.550. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. 13.40.220 Costs of support, treatment, and confinement—Order—Contempt of court. (1) Whenever legal custody of a child is vested in someone other than his or her parents, under this chapter, and not vested in the department of social and health services, after due notice to the parents or other persons legally obligated to care for and support the child, and after a hearing, the court may order and decree that the parent or other legally obligated person shall pay in such a manner as the court may direct a reasonable sum representing in whole or in part the costs of support, treatment, and confinement of the child after the decree is entered. (2) If the parent or other legally obligated person willfully fails or refuses to pay such sum, the court may proceed against such person for contempt. (3) Whenever legal custody of a child is vested in the department under this chapter, the parents or other persons legally obligated to care for and support the child shall be liable for the costs of support, treatment, and confinement of the child, in accordance with the department’s reimbursement of cost schedule. The department shall adopt a reimbursement of cost schedule based on the costs of providing such services, and shall determine an obligation based on the responsible parents’ or other legally obligated person’s ability to pay. The department is authorized to adopt additional rules as appropriate to enforce this section. (4) To enforce subsection (3) of this section, the department shall serve on the parents or other person legally obligated to care for and support the child a notice and finding of financial responsibility requiring the parents or other legally obligated person to appear and show cause in an adjudicative proceeding why the finding of responsibility and/ or the amount thereof is incorrect and should not be ordered. This notice and finding shall relate to the costs of support, treatment, and confinement of the child in accordance with the 13.40.220 [Title 13 RCW—page 96] department’s reimbursement of cost schedule adopted under this section, including periodic payments to be made in the future. The hearing shall be held pursuant to chapter 34.05 RCW, the Administrative Procedure Act, and the rules of the department. (5) The notice and finding of financial responsibility shall be served in the same manner prescribed for the service of a summons in a civil action or may be served on the parent or legally obligated person by certified mail, return receipt requested. The receipt shall be prima facie evidence of service. (6) If the parents or other legally obligated person objects to the notice and finding of financial responsibility, then an application for an adjudicative hearing may be filed within twenty days of the date of service of the notice. If an application for an adjudicative proceeding is filed, the presiding or reviewing officer shall determine the past liability and responsibility, if any, of the parents or other legally obligated person and shall also determine the amount of periodic payments to be made in the future. If the parents or other legally responsible person fails to file an application within twenty days, the notice and finding of financial responsibility shall become a final administrative order. (7) Debts determined pursuant to this section are subject to collection action without further necessity of action by a presiding or reviewing officer. The department may collect the debt in accordance with RCW 43.20B.635, 43.20B.640, 74.20A.060, and 74.20A.070. The department shall exempt from payment parents receiving adoption support under RCW 74.13.100 through 74.13.145, parents eligible to receive adoption support under RCW 74.13.150, and a parent or other legally obligated person when the parent or other legally obligated person, or such person’s child, spouse, or spouse’s child, was the victim of the offense for which the child was committed. (8) An administrative order entered pursuant to this section shall supersede any court order entered prior to June 13, 1994. (9) The department shall be subrogated to the right of the child and his or her parents or other legally responsible person to receive support payments for the benefit of the child from any parent or legally obligated person pursuant to a support order established by a superior court or pursuant to RCW 74.20A.055. The department’s right of subrogation under this section is limited to the liability established in accordance with its cost schedule for support, treatment, and confinement, except as addressed in subsection (10) of this section. (10) Nothing in this section precludes the department from recouping such additional support payments from the child’s parents or other legally obligated person as required to qualify for receipt of federal funds. The department may adopt such rules dealing with liability for recoupment of support, treatment, or confinement costs as may become necessary to entitle the state to participate in federal funds unless such rules would be expressly prohibited by law. If any law dealing with liability for recoupment of support, treatment, or confinement costs is ruled to be in conflict with federal requirements which are a prescribed condition of the allocation of federal funds, such conflicting law is declared to be inoperative solely to the extent of the conflict. [1995 c 300 § 1; 1994 sp.s. c 7 § 529; 1993 c 466 § 1; 1977 ex.s. c 291 § 76.] (2006 Ed.) Juvenile Justice Act of 1977 Effective date—1995 c 300: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [May 9, 1995]." [1995 c 300 § 2.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.230 13.40.230 Appeal from order of disposition—Jurisdiction—Procedure—Scope—Release pending appeal. (1) Dispositions reviewed pursuant to RCW 13.40.160 shall be reviewed in the appropriate division of the court of appeals. An appeal under this section shall be heard solely upon the record that was before the disposition court. No written briefs may be required, and the appeal shall be heard within thirty days following the date of sentencing and a decision rendered within fifteen days following the argument. The supreme court shall promulgate any necessary rules to effectuate the purposes of this section. (2) To uphold a disposition outside the standard range, the court of appeals must find (a) that the reasons supplied by the disposition judge are supported by the record which was before the judge and that those reasons clearly and convincingly support the conclusion that a disposition within the range would constitute a manifest injustice, and (b) that the sentence imposed was neither clearly excessive nor clearly too lenient. (3) If the court does not find subsection (2)(a) of this section it shall remand the case for disposition within the standard range. (4) If the court finds subsection (2)(a) but not subsection (2)(b) of this section it shall remand the case with instructions for further proceedings consistent with the provisions of this chapter. (5) The disposition court may impose conditions on release pending appeal as provided in RCW *13.40.040(4) and 13.40.050(6). (6) Appeal of a disposition under this section does not affect the finality or appeal of the underlying adjudication of guilt. [1997 c 338 § 35; 1981 c 299 § 16; 1979 c 155 § 72; 1977 ex.s. c 291 § 77.] 13.40.265 Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.250 13.40.250 Traffic and civil infraction cases. A traffic or civil infraction case involving a juvenile under the age of sixteen may be diverted in accordance with the provisions of this chapter or filed in juvenile court. (1) If a notice of a traffic or civil infraction is filed in juvenile court, the juvenile named in the notice shall be afforded the same due process afforded to adult defendants in traffic infraction cases. (2) A monetary penalty imposed upon a juvenile under the age of sixteen who is found to have committed a traffic or civil infraction may not exceed one hundred dollars. At the juvenile’s request, the court may order performance of a number of hours of community restitution in lieu of a monetary penalty, at the rate of the prevailing state minimum wage per hour. (3) A diversion agreement entered into by a juvenile referred pursuant to this section shall be limited to thirty hours of community restitution, or educational or informational sessions. (4) Traffic or civil infractions referred to a youth court pursuant to this section are subject to the conditions imposed by RCW 13.40.630. (5) If a case involving the commission of a traffic or civil infraction or offense by a juvenile under the age of sixteen has been referred to a diversion unit, an abstract of the action taken by the diversion unit may be forwarded to the department of licensing in the manner provided for in RCW 46.20.270(2). [2002 c 237 § 19; 2002 c 175 § 28; 1997 c 338 § 36; 1980 c 128 § 16.] Reviser’s note: This section was amended by 2002 c 175 § 28 and by 2002 c 237 § 19, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—2002 c 175: See note following RCW 7.80.130. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Effective date—Severability—1980 c 128: See notes following RCW 46.63.060. 13.40.265 *Reviser’s note: RCW 13.40.040 was amended by 2002 c 171 § 2, changing subsection (4) to subsection (5). Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective dates—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.40.240 13.40.240 Construction of RCW references to juvenile delinquents or juvenile delinquency. All references to juvenile delinquents or juvenile delinquency in other chapters of the Revised Code of Washington shall be construed as meaning juvenile offenders or the commitment of an offense by juveniles as defined by this chapter. [1977 ex.s. c 291 § 78.] (2006 Ed.) 13.40.265 Firearm, alcohol, and drug violations. (1)(a) If a juvenile thirteen years of age or older is found by juvenile court to have committed an offense while armed with a firearm or an offense that is a violation of RCW 9.41.040(2)(a)(iii) or chapter 66.44, 69.41, 69.50, or 69.52 RCW, the court shall notify the department of licensing within twenty-four hours after entry of the judgment. (b) Except as otherwise provided in (c) of this subsection, upon petition of a juvenile who has been found by the court to have committed an offense that is a violation of chapter 66.44, 69.41, 69.50, or 69.52 RCW, the court may at any time the court deems appropriate notify the department of licensing that the juvenile’s driving privileges should be reinstated. (c) If the offense is the juvenile’s first violation of chapter 66.44, 69.41, 69.50, or 69.52 RCW, the juvenile may not petition the court for reinstatement of the juvenile’s privilege to drive revoked pursuant to RCW 46.20.265 until ninety [Title 13 RCW—page 97] 13.40.280 Title 13 RCW: Juvenile Courts and Juvenile Offenders days after the date the juvenile turns sixteen or ninety days after the judgment was entered, whichever is later. If the offense is the juvenile’s second or subsequent violation of chapter 66.44, 69.41, 69.50, or 69.52 RCW, the juvenile may not petition the court for reinstatement of the juvenile’s privilege to drive revoked pursuant to RCW 46.20.265 until the date the juvenile turns seventeen or one year after the date judgment was entered, whichever is later. (2)(a) If a juvenile enters into a diversion agreement with a diversion unit pursuant to RCW 13.40.080 concerning an offense that is a violation of chapter 66.44, 69.41, 69.50, or 69.52 RCW, the diversion unit shall notify the department of licensing within twenty-four hours after the diversion agreement is signed. (b) If a diversion unit has notified the department pursuant to (a) of this subsection, the diversion unit shall notify the department of licensing when the juvenile has completed the agreement. [2003 c 53 § 101; 1997 c 338 § 37; 1994 sp.s. c 7 § 435; 1989 c 271 § 116; 1988 c 148 § 2.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. Severability—1989 c 271: See note following RCW 9.94A.510. Legislative finding—1988 c 148: "The legislature finds that many persons under the age of eighteen unlawfully use intoxicating liquor and controlled substances. The use of these substances by juveniles can cause serious damage to their physical, mental, and emotional well-being, and in some instances results in life-long disabilities. The legislature also finds that juveniles who unlawfully use alcohol and controlled substances frequently operate motor vehicles while under the influence of and impaired by alcohol or drugs. Juveniles who use these substances often have seriously impaired judgment and motor skills and pose an unduly high risk of causing injury or death to themselves or other persons on the public highways. The legislature also finds that juveniles will be deterred from the unlawful use of alcohol and controlled substances if their driving privileges are suspended or revoked for using illegal drugs or alcohol." [1988 c 148 § 1.] Severability—1988 c 148: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1988 c 148 § 10.] continuing and serious threat to the safety of others in the institution. The department of social and health services shall establish rules for the conduct of the hearing, including provision of counsel for the juvenile offender. (3) Assaults made against any staff member at a juvenile corrections institution that are reported to a local law enforcement agency shall require a hearing held by the department of social and health services review board within ten judicial working days. The board shall determine whether the accused juvenile offender represents a continuing and serious threat to the safety of others in the institution. (4) Upon conviction in a court of law for custodial assault as defined in RCW 9A.36.100, the department of social and health services review board shall conduct a second hearing, within five judicial working days, to recommend to the secretary of the department of social and health services that the convicted juvenile be transferred to an adult correctional facility if the review board has determined the juvenile offender represents a continuing and serious threat to the safety of others in the institution. The juvenile has the burden to show cause why the transfer to an adult correctional facility should not occur. (5) A juvenile offender transferred to an institution operated by the department of corrections shall not remain in such an institution beyond the maximum term of confinement imposed by the juvenile court. (6) A juvenile offender who has been transferred to the department of corrections under this section may, in the discretion of the secretary of the department of social and health services and with the consent of the secretary of the department of corrections, be transferred from an institution operated by the department of corrections to a facility for juvenile offenders deemed appropriate by the secretary. [1989 c 410 § 2; 1989 c 407 § 8; 1983 c 191 § 22.] Reviser’s note: This section was amended by 1989 c 407 § 8 and by 1989 c 410 § 2, each without reference to the other. Both amendments are incorporated in the publication of this section pursuant to RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Purpose—1989 c 410: "The legislature recognizes the ever-increasing severity of offenses committed by juvenile offenders residing in this state’s juvenile detention facilities and the increasing aggressive nature of detained juveniles due to drugs and gang-related violence. The purpose of this act is to provide necessary protection to state employees and juvenile residents of these institutions from assaults committed against them by juvenile detainees." [1989 c 410 § 1.] 13.40.285 13.40.280 13.40.280 Transfer of juvenile to department of corrections facility—Grounds—Hearing—Term—Retransfer to a facility for juveniles. (1) The secretary, with the consent of the secretary of the department of corrections, has the authority to transfer a juvenile presently or hereafter committed to the department of social and health services to the department of corrections for appropriate institutional placement in accordance with this section. (2) The secretary of the department of social and health services may, with the consent of the secretary of the department of corrections, transfer a juvenile offender to the department of corrections if it is established at a hearing before a review board that continued placement of the juvenile offender in an institution for juvenile offenders presents a [Title 13 RCW—page 98] 13.40.285 Juvenile offender sentenced to terms in juvenile and adult facilities—Transfer to department of corrections—Term of confinement. A juvenile offender ordered to serve a term of confinement with the department of social and health services who is subsequently sentenced to the department of corrections may, with the consent of the department of corrections, be transferred by the secretary of social and health services to the department of corrections to serve the balance of the term of confinement ordered by the juvenile court. The juvenile and adult sentences shall be served consecutively. In no case shall the secretary credit time served as a result of an adult conviction against the term of confinement ordered by the juvenile court. [1983 c 191 § 23.] (2006 Ed.) Juvenile Justice Act of 1977 13.40.300 13.40.300 Commitment of juvenile beyond age twenty-one prohibited—Jurisdiction of juvenile court after juvenile’s eighteenth birthday. (1) In no case may a juvenile offender be committed by the juvenile court to the department of social and health services for placement in a juvenile correctional institution beyond the juvenile offender’s twenty-first birthday. A juvenile may be under the jurisdiction of the juvenile court or the authority of the department of social and health services beyond the juvenile’s eighteenth birthday only if prior to the juvenile’s eighteenth birthday: (a) Proceedings are pending seeking the adjudication of a juvenile offense and the court by written order setting forth its reasons extends jurisdiction of juvenile court over the juvenile beyond his or her eighteenth birthday; (b) The juvenile has been found guilty after a fact finding or after a plea of guilty and an automatic extension is necessary to allow for the imposition of disposition; (c) Disposition has been held and an automatic extension is necessary to allow for the execution and enforcement of the court’s order of disposition. If an order of disposition imposes commitment to the department, then jurisdiction is automatically extended to include a period of up to twelve months of parole, in no case extending beyond the offender’s twenty-first birthday; or (d) While proceedings are pending in a case in which jurisdiction has been transferred to the adult criminal court pursuant to RCW 13.04.030, the juvenile turns eighteen years of age and is subsequently found not guilty of the charge for which he or she was transferred, or is convicted in the adult criminal court of a lesser included offense, and an automatic extension is necessary to impose the disposition as required by RCW 13.04.030(1)(e)(v)(E). (2) If the juvenile court previously has extended jurisdiction beyond the juvenile offender’s eighteenth birthday and that period of extension has not expired, the court may further extend jurisdiction by written order setting forth its reasons. (3) In no event may the juvenile court have authority to extend jurisdiction over any juvenile offender beyond the juvenile offender’s twenty-first birthday except for the purpose of enforcing an order of restitution or penalty assessment. (4) Notwithstanding any extension of jurisdiction over a person pursuant to this section, the juvenile court has no jurisdiction over any offenses alleged to have been committed by a person eighteen years of age or older. [2005 c 238 § 2; 2000 c 71 § 2; 1994 sp.s. c 7 § 530; 1986 c 288 § 6; 1983 c 191 § 17; 1981 c 299 § 17; 1979 c 155 § 73; 1975 1st ex.s. c 170 § 1. Formerly RCW 13.04.260.] Effective date—2000 c 71: See note following RCW 13.40.198. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Severability—1986 c 288: See note following RCW 13.32A.050. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.40.310 13.40.310 Transitional treatment program for gang and drug-involved juvenile offenders. (1) The department of social and health services may contract with a communitybased nonprofit organization to establish a three-step transitional treatment program for gang and drug-involved juvenile (2006 Ed.) 13.40.320 offenders committed to the custody of the department under chapter 13.40 RCW. Any such program shall provide six to twenty-four months of treatment. The program shall emphasize the principles of self-determination, unity, collective work and responsibility, cooperative economics, and creativity. The program shall be culturally relevant and appropriate and shall include: (a) A culturally relevant and appropriate institutionbased program that provides comprehensive drug and alcohol services, individual and family counseling, and a wilderness experience of constructive group living, rigorous physical exercise, and academic studies; (b) A culturally relevant and appropriate communitybased structured group living program that focuses on individual goals, positive community involvement, coordinated drug and alcohol treatment, coordinated individual and family counseling, academic and vocational training, and employment in apprenticeship, internship, and entrepreneurial programs; and (c) A culturally relevant and appropriate transitional group living program that provides support services, academic services, and coordinated individual and family counseling. (2) Participation in any such program shall be on a voluntary basis. (3) The department shall adopt rules as necessary to implement any such program. [1991 c 326 § 4.] Finding—1991 c 326: "The legislature finds that a destructive lifestyle of drug and street gang activity is rapidly becoming prevalent among some of the state’s youths. Gang and drug activity may be a culturally influenced phenomenon which the legislature intends public and private agencies to consider and address in prevention and treatment programs. Gang and druginvolved youths are more likely to become addicted to drugs or alcohol, live in poverty, experience high unemployment, be incarcerated, and die of violence than other youths." [1991 c 326 § 3.] Part headings not law—Severability—1991 c 326: See RCW 71.36.900 and 71.36.901. 13.40.320 13.40.320 Juvenile offender basic training camp program. (1) The department of social and health services shall establish a medium security juvenile offender basic training camp program. This program for juvenile offenders serving a term of confinement under the supervision of the department is exempt from the licensing requirements of chapter 74.15 RCW. (2) The department may contract under this chapter with private companies, the national guard, or other federal, state, or local agencies to operate the juvenile offender basic training camp. (3) The juvenile offender basic training camp shall be a structured and regimented model emphasizing the building up of an offender’s self-esteem, confidence, and discipline. The juvenile offender basic training camp program shall provide participants with basic education, prevocational training, work-based learning, work experience, work ethic skills, conflict resolution counseling, substance abuse intervention, anger management counseling, and structured intensive physical training. The juvenile offender basic training camp program shall have a curriculum training and work schedule that incorporates a balanced assignment of these or other rehabilitation and training components for no less than sixteen hours per day, six days a week. [Title 13 RCW—page 99] 13.40.400 Title 13 RCW: Juvenile Courts and Juvenile Offenders The department shall develop standards for the safe and effective operation of the juvenile offender basic training camp program, for an offender’s successful program completion, and for the continued after-care supervision of offenders who have successfully completed the program. (4) Offenders eligible for the juvenile offender basic training camp option shall be those with a disposition of not more than sixty-five weeks. Violent and sex offenders shall not be eligible for the juvenile offender basic training camp program. (5) If the court determines that the offender is eligible for the juvenile offender basic training camp option, the court may recommend that the department place the offender in the program. The department shall evaluate the offender and may place the offender in the program. The evaluation shall include, at a minimum, a risk assessment developed by the department and designed to determine the offender’s suitability for the program. No juvenile who is assessed as a high risk offender or suffers from any mental or physical problems that could endanger his or her health or drastically affect his or her performance in the program shall be admitted to or retained in the juvenile offender basic training camp program. (6) All juvenile offenders eligible for the juvenile offender basic training camp sentencing option shall spend one hundred twenty days of their disposition in a juvenile offender basic training camp. This period may be extended for up to forty days by the secretary if a juvenile offender requires additional time to successfully complete the basic training camp program. If the juvenile offender’s activities while in the juvenile offender basic training camp are so disruptive to the juvenile offender basic training camp program, as determined by the secretary according to standards developed by the department, as to result in the removal of the juvenile offender from the juvenile offender basic training camp program, or if the offender cannot complete the juvenile offender basic training camp program due to medical problems, the secretary shall require that the offender be committed to a juvenile institution to serve the entire remainder of his or her disposition, less the amount of time already served in the juvenile offender basic training camp program. (7) All offenders who successfully graduate from the juvenile offender basic training camp program shall spend the remainder of their disposition on parole in a juvenile rehabilitation administration intensive aftercare program in the local community. Violation of the conditions of parole is subject to sanctions specified in RCW 13.40.210(4). The program shall provide for the needs of the offender based on his or her progress in the aftercare program as indicated by ongoing assessment of those needs and progress. The intensive aftercare program shall monitor postprogram juvenile offenders and assist them to successfully reintegrate into the community. In addition, the program shall develop a process for closely monitoring and assessing public safety risks. The intensive aftercare program shall be designed and funded by the department of social and health services. (8) The department shall also develop and maintain a data base to measure recidivism rates specific to this incarceration program. The data base shall maintain data on all juvenile offenders who complete the juvenile offender basic training camp program for a period of two years after they have [Title 13 RCW—page 100] completed the program. The data base shall also maintain data on the criminal activity, educational progress, and employment activities of all juvenile offenders who participated in the program. [2002 c 354 § 234; 2001 c 137 § 1; 1997 c 338 § 38; 1995 c 40 § 1; 1994 sp.s. c 7 § 532.] Short title—Headings, captions not law—Severability—Effective dates—2002 c 354: See RCW 41.80.907 through 41.80.910. Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Findings and intent—Juvenile basic training camps—1994 sp.s. c 7: "The legislature finds that the number of juvenile offenders and the severity of their crimes is increasing rapidly statewide. In addition, many juvenile offenders continue to reoffend after they are released from the juvenile justice system causing disproportionately high and expensive rates of recidivism. The legislature further finds that juvenile criminal behavior is often the result of a lack of self-discipline, the lack of systematic work habits and ethics, the inability to deal with authority figures, and an unstable or unstructured living environment. The legislature further finds that the department of social and health services currently operates an insufficient number of confinement beds to meet the rapidly growing juvenile offender population. Together these factors are combining to produce a serious public safety hazard and the need to develop more effective and stringent juvenile punishment and rehabilitation options. The legislature intends that juvenile offenders who enter the state rehabilitation system have the opportunity and are given the responsibility to become more effective participants in society by enhancing their personal development, work ethics, and life skills. The legislature recognizes that structured incarceration programs for juvenile offenders such as juvenile offender basic training camps, can instill the self-discipline, accountability, self-esteem, and work ethic skills that could discourage many offenders from returning to the criminal justice system. Juvenile offender basic training camp incarceration programs generally emphasize life skills training, prevocational work skills training, anger management, dealing with difficult athome family problems and/or abuses, discipline, physical training, structured and intensive work activities, and educational classes. The legislature further recognizes that juvenile offenders can benefit from a highly structured basic training camp environment and the public can also benefit through increased public protection and reduced cost due to lowered rates of recidivism." [1994 sp.s. c 7 § 531.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. 13.40.400 13.40.400 Applicability of RCW 10.01.040 to chapter. The provisions of RCW 10.01.040 apply to chapter 13.40 RCW. [1979 c 155 § 74.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.40.430 13.40.430 Disparity in disposition of juvenile offenders—Data collection. The administrative office of the courts shall collect such data as may be necessary to monitor any disparity in processing or disposing of cases involving juvenile offenders due to economic, gender, geographic, or racial factors that may result from implementation of section 1, chapter 373, Laws of 1993. The administrative office of the courts may, in consultation with juvenile courts, determine a format for the collection of such data and a schedule for the reporting of such data and shall keep a minimum of five years of data at any given time. [2005 c 282 § 27; 2003 c 207 § 13; 1993 c 373 § 2.] Severability—1993 c 373: See note following RCW 13.40.020. 13.40.440 13.40.440 Chapter 9.92 RCW not to affect dispositions under juvenile justice act. See RCW 9.92.200. (2006 Ed.) Juvenile Justice Act of 1977 13.40.450 13.40.450 Chapters 13.04 and 13.40 RCW as exclusive authority for adjudication and disposition of juvenile offenders. See RCW 13.04.450. 13.40.460 13.40.460 Juvenile rehabilitation programs— Administration. The secretary, assistant secretary, or the secretary’s designee shall manage and administer the department’s juvenile rehabilitation responsibilities, including but not limited to the operation of all state institutions or facilities used for juvenile rehabilitation. The secretary or assistant secretary shall: (1) Prepare a biennial budget request sufficient to meet the confinement and rehabilitative needs of the juvenile rehabilitation program, as forecast by the office of financial management; (2) Create by rule a formal system for inmate classification. This classification system shall consider: (a) Public safety; (b) Internal security and staff safety; (c) Rehabilitative resources both within and outside the department; (d) An assessment of each offender’s risk of sexually aggressive behavior as provided in RCW 13.40.470; and (e) An assessment of each offender’s vulnerability to sexually aggressive behavior as provided in RCW 13.40.470; (3) Develop agreements with local jurisdictions to develop regional facilities with a variety of custody levels; (4) Adopt rules establishing effective disciplinary policies to maintain order within institutions; (5) Develop a comprehensive diagnostic evaluation process to be used at intake, including but not limited to evaluation for substance addiction or abuse, literacy, learning disabilities, fetal alcohol syndrome or effect, attention deficit disorder, and mental health; (6) Develop placement criteria: (a) To avoid assigning youth who present a moderate or high risk of sexually aggressive behavior to the same sleeping quarters as youth assessed as vulnerable to sexual victimization under RCW 13.40.470(1)(c); and (b) To avoid placing a juvenile offender on parole status who has been assessed as a moderate to high risk for sexually aggressive behavior in a department community residential program with another child who is: (i) Dependent under chapter 13.34 RCW, or an at-risk youth or child in need of services under chapter 13.32A RCW; and (ii) not also a juvenile offender on parole status; (7) Develop a plan to implement, by July 1, 1995: (a) Substance abuse treatment programs for all state juvenile rehabilitation facilities and institutions; (b) Vocational education and instruction programs at all state juvenile rehabilitation facilities and institutions; and (c) An educational program to establish self-worth and responsibility in juvenile offenders. This educational program shall emphasize instruction in character-building principles such as: Respect for self, others, and authority; victim awareness; accountability; work ethics; good citizenship; and life skills; and (8)(a) The juvenile rehabilitation administration shall develop uniform policies related to custodial assaults consistent with RCW 72.01.045 and 9A.36.100 that are to be fol(2006 Ed.) 13.40.462 lowed in all juvenile rehabilitation administration facilities; and (b) The juvenile rehabilitation administration will report assaults in accordance with the policies developed in (a) of this subsection. [2003 c 229 § 1; 1999 c 372 § 2; 1997 c 386 § 54; 1994 sp.s. c 7 § 516.] Implementation deadline—1997 c 386 § 54: "The policy developed under RCW 13.40.460(6)(b) shall be implemented within the juvenile rehabilitation administration and the division of children and family services by July 1, 1998." [1997 c 386 § 55.] Finding—Intent—1997 c 386 §§ 50-55: See note following RCW 13.40.470. Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. 13.40.462 13.40.462 Reinvesting in youth program. (1) The department of social and health services juvenile rehabilitation administration shall establish a reinvesting in youth program that awards grants to counties for implementing research-based early intervention services that target juvenile justice-involved youth and reduce crime, subject to the availability of amounts appropriated for this specific purpose. (2) Effective July 1, 2007, any county or group of counties may apply for participation in the reinvesting in youth program. (3) Counties that participate in the reinvesting in youth program shall have a portion of their costs of serving youth through the research-based intervention service models paid for with moneys from the reinvesting in youth account established pursuant to RCW 13.40.466. (4) The department of social and health services juvenile rehabilitation administration shall review county applications for funding through the reinvesting in youth program and shall select the counties that will be awarded grants with funds appropriated to implement this program. The department, in consultation with the Washington state institute for public policy, shall develop guidelines to determine which counties will be awarded funding in accordance with the reinvesting in youth program. At a minimum, counties must meet the following criteria in order to participate in the reinvesting in youth program: (a) Counties must match state moneys awarded for research-based early intervention services with nonstate resources that are at least proportional to the expected local government share of state and local government cost avoidance that would result from the implementation of such services; (b) Counties must demonstrate that state funds allocated pursuant to this section are used only for the intervention service models authorized pursuant to RCW 13.40.464; (c) Counties must participate fully in the state quality assurance program established in RCW 13.40.468 to ensure fidelity of program implementation. If no state quality assurance program is in effect for a particular selected researchbased service, the county must submit a quality assurance plan for state approval with its grant application. Failure to demonstrate continuing compliance with quality assurance plans shall be grounds for termination of state funding; and (d) Counties that submit joint applications must submit for approval by the department of social and health services [Title 13 RCW—page 101] 13.40.464 Title 13 RCW: Juvenile Courts and Juvenile Offenders juvenile rehabilitation administration multicounty plans for efficient program delivery. (5) The department of social and health services juvenile rehabilitation administration shall convene a technical advisory committee comprised of representatives from the house of representatives, the senate, the governor’s office of financial management, the department of social and health services juvenile rehabilitation administration, the family policy council, the juvenile court administrator’s association, and the Washington association of counties to assist in the implementation of chapter 304, Laws of 2006. [2006 c 304 § 2.] Finding—Intent—2006 c 304: "The legislature finds that there are youth and family-focused intervention services that have been proven through rigorous evaluation in the state of Washington and elsewhere to significantly reduce violence and crime while saving more public safety dollars than they cost. Under current state laws, no local government acting alone has the financial incentive to invest in these cost-effective services because the savings accrue to multiple levels of government with the largest savings going to the state. It is the intent of the legislature to create incentives for local government to invest in cost-effective intervention services that reduce crime by reimbursing local governments with a portion of the cost savings that accrue to the state as the result of local investments in such services." [2006 c 304 § 1.] Entitlement not created—2006 c 304: "Nothing in this act creates an entitlement for a county or group of counties to receive funding under the program in sections 2 and 3 of this act." [2006 c 304 § 8.] Effective date—2006 c 304: "This act takes effect July 1, 2006." [2006 c 304 § 9.] 13.40.464 13.40.464 Reinvesting in youth program—Guidelines. (1)(a) In order to receive funding through the reinvesting in youth program established pursuant to RCW 13.40.462, intervention service models must meet the following minimum criteria: (i) There must be scientific evidence from at least one rigorous evaluation study of the specific service model that measures recidivism reduction; (ii) There must be evidence that the specific service model’s results can be replicated outside of an academic research environment; (iii) The evaluation or evaluations of the service model must permit dollar cost estimates of both benefits and costs so that the benefit-cost ratio of the model can be calculated; and (iv) The public taxpayer benefits to all levels of state and local government must exceed the service model costs. (b) In calendar year 2006, for use beginning in fiscal year 2008, the Washington state institute for public policy shall publish a list of service models that are eligible for reimbursement through the investing in youth program. As authorized by the board of the institute and to the extent necessary to respond to new research and information, the institute shall periodically update the list of service models. The institute shall use the technical advisory committee established in RCW 13.40.462(5) to review and provide comments on the list of service models that are eligible for reimbursement. (2) In calendar year 2006, for use beginning in fiscal year 2008, the Washington state institute for public policy shall review and update the methodology for calculating cost savings resulting from implementation of this program. As authorized by the board of the institute and to the extent necessary to respond to new research and information, the institute shall periodically further review and update the methodology. As authorized by the board of the institute, when the [Title 13 RCW—page 102] institute reviews and updates the methodology for calculating cost savings, the institute shall provide an estimate of savings and avoided costs resulting from this program, along with a projection of future savings and avoided costs, to the appropriate committees of the legislature. The institute shall use the technical advisory committee established in RCW 13.40.462(5) to review and provide comments on its methodology and cost calculations. (3) In calendar year 2006, for use beginning in fiscal year 2008, the department of social and health services’ juvenile rehabilitation administration shall establish a distribution formula to provide funding to local governments that implement research-based intervention services pursuant to this program. The department shall periodically update the distribution formula. The distribution formula shall require that the state allocation to local governments be proportional to the expected state government share of state and local government cost avoidance that would result from the implementation of such services based on the methodology maintained by the Washington state institute for public policy pursuant to subsection (2) of this section. The department shall use the technical advisory committee established in RCW 13.40.462(5) to review and provide comments on its proposed distribution formula. (4) The department of social and health services juvenile rehabilitation administration shall provide a report to the legislature on the initial cost savings calculation methodology and distribution formula by October 1, 2006. [2006 c 304 § 3.] Finding—Intent—Entitlement not created—Effective date—2006 c 304: See notes following RCW 13.40.462. 13.40.466 13.40.466 Reinvesting in youth account. (1) The reinvesting in youth account is created in the state treasury. Moneys in the account shall be spent only after appropriation. Expenditures from the account may be used to reimburse local governments for the implementation of the reinvesting in youth program established in RCW 13.40.462 and 13.40.464. (2) Revenues to the reinvesting in youth account consist of revenues appropriated to or deposited in the account. (3) The department of social and health services juvenile rehabilitation administration shall review and monitor the expenditures made by any county or group of counties that is funded, in whole or in part, with funds provided through the reinvesting in youth account. Counties shall repay any funds that are not spent in accordance with RCW 13.40.462 and 13.40.464. [2006 c 304 § 4.] Finding—Intent—Entitlement not created—Effective date—2006 c 304: See notes following RCW 13.40.462. 13.40.468 13.40.468 Juvenile rehabilitation administration— State quality assurance program. The department of social and health services juvenile rehabilitation administration shall establish a state quality assurance program. The juvenile rehabilitation administration shall monitor the implementation of intervention services funded pursuant to RCW 13.40.466 and shall evaluate adherence to service model design and service completion rate. [2006 c 304 § 6.] Finding—Intent—Entitlement not created—Effective date—2006 c 304: See notes following RCW 13.40.462. (2006 Ed.) Juvenile Justice Act of 1977 13.40.470 13.40.470 Vulnerable youth committed to residential facilities—Protection from sexually aggressive youth— Assessment process. (1) The department shall implement a policy for protecting youth committed to state-operated or state-funded residential facilities under this chapter who are vulnerable to sexual victimization by other youth committed to those facilities who are sexually aggressive. The policy shall include, at a minimum, the following elements: (a) Development and use of an assessment process for identifying youth, within thirty days of commitment to the department, who present a moderate or high risk of sexually aggressive behavior for the purposes of this section. The assessment process need not require that every youth who is adjudicated or convicted of a sex offense as defined in RCW 9.94A.030 be determined to be sexually aggressive, nor shall a sex offense adjudication or conviction be required in order to determine a youth is sexually aggressive. Instead, the assessment process shall consider the individual circumstances of the youth, including his or her age, physical size, sexual abuse history, mental and emotional condition, and other factors relevant to sexual aggressiveness. The definition of "sexually aggressive youth" in RCW 74.13.075 does not apply to this section to the extent that it conflicts with this section; (b) Development and use of an assessment process for identifying youth, within thirty days of commitment to the department, who may be vulnerable to victimization by youth identified under (a) of this subsection as presenting a moderate or high risk of sexually aggressive behavior. The assessment process shall consider the individual circumstances of the youth, including his or her age, physical size, sexual abuse history, mental and emotional condition, and other factors relevant to vulnerability; (c) Development and use of placement criteria to avoid assigning youth who present a moderate or high risk of sexually aggressive behavior to the same sleeping quarters as youth assessed as vulnerable to sexual victimization, except that they may be assigned to the same multiple-person sleeping quarters if those sleeping quarters are regularly monitored by visual surveillance equipment or staff checks; (d) Development and use of procedures for minimizing, within available funds, unsupervised contact in state-operated or state-funded residential facilities between youth presenting moderate to high risk of sexually aggressive behavior and youth assessed as vulnerable to sexual victimization. The procedures shall include taking reasonable steps to prohibit any youth committed under this chapter who present a moderate to high risk of sexually aggressive behavior from entering any sleeping quarters other than the one to which they are assigned, unless accompanied by an authorized adult. (2) For the purposes of this section, the following terms have the following meanings: (a) "Sleeping quarters" means the bedrooms or other rooms within a residential facility where youth are assigned to sleep. (b) "Unsupervised contact" means contact occurring outside the sight or hearing of a responsible adult for more than a reasonable period of time under the circumstances. [1997 c 386 § 50.] Finding—Intent—1997 c 386 §§ 50-55: "The legislature finds that the placement of children and youth in state-operated or state-funded residential (2006 Ed.) 13.40.500 facilities must be done in such a manner as to protect children who are vulnerable to sexual victimization from youth who are sexually aggressive. To achieve this purpose, the legislature intends the department of social and health services to develop a policy for assessing sexual aggressiveness and vulnerability to sexual victimization of children and youth who are placed in state-operated or state-funded residential facilities." [1997 c 386 § 49.] 13.40.480 13.40.480 Student records and information—Reasons for release—Who may request. (1) Pursuant to RCW 28A.600.475, and to the extent permitted by the family educational and privacy rights act of 1974, 20 U.S.C. Sec. 1232g(b), and in order to serve the juvenile while in detention and to prepare any postconviction services, schools shall make all student records and information necessary for risk assessment, security classification, and placement available to court personnel and the department within three working days of a request under this section. (2)(a) When a juvenile has one or more prior convictions, a request for records shall be made by the county prosecuting attorney, or probation department if available, to the school not more than ten days following the juvenile’s arrest or detention, whichever occurs later, and prior to trial. The request may be made by subpoena. (b) Where a juvenile has no prior conviction, a request to release records shall be made by subpoena upon the juvenile’s conviction. When the request for a juvenile’s student records and information is made by subpoena following conviction, the court or other issuing agency shall order the school on which the subpoena is served not to disclose to any person the existence or contents of the subpoena or any information furnished in response to the subpoena. When the court or issuing agency so orders, the school shall not provide notice to the juvenile or his or her parents. [1998 c 269 § 12.] Intent—Finding—Effective date—1998 c 269: See notes following RCW 72.05.020. 13.40.500 13.40.500 Community juvenile accountability programs—Findings—Purpose. The legislature finds that meaningful community involvement is vital to the juvenile justice system’s ability to respond to the serious problem of juvenile crime. Citizens and crime victims need to be active partners in responding to crime, in the management of resources, and in the disposition decisions regarding juvenile offenders in their community. Involvement of citizens and crime victims increase offender accountability and build healthier communities, which will reduce recidivism and crime rates in Washington state. The legislature also finds that local governments are in the best position to develop, coordinate, and manage local community prevention, intervention, and corrections programs for juvenile offenders, and to determine local resource priorities. Local community management will build upon local values and increase local control of resources, encourage the use of a comprehensive range of community-based intervention strategies. The primary purpose of RCW 13.40.500 through 13.40.540, the community juvenile accountability act, is to provide a continuum of community-based programs that emphasize the juvenile offender’s accountability for his or her actions while assisting him or her in the development of skills necessary to function effectively and positively in the [Title 13 RCW—page 103] 13.40.510 Title 13 RCW: Juvenile Courts and Juvenile Offenders community in a manner consistent with public safety. [1997 c 338 § 60.] Evaluation—Report—1997 c 338 §§ 60-64: "The Washington state institute for public policy shall evaluate the costs and benefits of the programs funded in sections 60 through 64 of this act. The evaluation must measure whether the programs cost-effectively reduce recidivism and crime rates in Washington state. The institute shall submit reports to the governor and the legislature by December 1, 1998, and December 1, 2000." [1997 c 338 § 65.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. 13.40.510 13.40.510 Community juvenile accountability programs—Establishment—Proposals—Guidelines. (1) In order to receive funds under RCW 13.40.500 through 13.40.540, local governments may, through their respective agencies that administer funding for consolidated juvenile services, submit proposals that establish community juvenile accountability programs within their communities. These proposals must be submitted to the juvenile rehabilitation administration of the department of social and health services for certification. (2) The proposals must: (a) Demonstrate that the proposals were developed with the input of the community public health and safety networks established under RCW 70.190.060, and the local law and justice councils established under RCW 72.09.300; (b) Describe how local community groups or members are involved in the implementation of the programs funded under RCW 13.40.500 through 13.40.540; (c) Include a description of how the grant funds will contribute to the expected outcomes of the program and the reduction of youth violence and juvenile crime in their community. Data approaches are not required to be replicated if the networks have information that addresses risks in the community for juvenile offenders. (3) A local government receiving a grant under this section shall agree that any funds received must be used efficiently to encourage the use of community-based programs that reduce the reliance on secure confinement as the sole means of holding juvenile offenders accountable for their crimes. The local government shall also agree to account for the expenditure of all funds received under the grant and to submit to audits for compliance with the grant criteria developed under RCW 13.40.520. (4) The juvenile rehabilitation administration, in consultation with the Washington association of juvenile court administrators, the state law and justice advisory council, and the family policy council, shall establish guidelines for programs that may be funded under RCW 13.40.500 through 13.40.540. The guidelines must: (a) Target diverted and adjudicated juvenile offenders; (b) Include assessment methods to determine services, programs, and intervention strategies most likely to change behaviors and norms of juvenile offenders; (c) Provide maximum structured supervision in the community. Programs should use natural surveillance and community guardians such as employers, relatives, teachers, clergy, and community mentors to the greatest extent possible; [Title 13 RCW—page 104] (d) Promote good work ethic values and educational skills and competencies necessary for the juvenile offender to function effectively and positively in the community; (e) Maximize the efficient delivery of treatment services aimed at reducing risk factors associated with the commission of juvenile offenses; (f) Maximize the reintegration of the juvenile offender into the community upon release from confinement; (g) Maximize the juvenile offender’s opportunities to make full restitution to the victims and amends to the community; (h) Support and encourage increased court discretion in imposing community-based intervention strategies; (i) Be compatible with research that shows which prevention and early intervention strategies work with juvenile offenders; (j) Be outcome-based in that it describes what outcomes will be achieved or what outcomes have already been achieved; (k) Include an evaluation component; and (l) Recognize the diversity of local needs. (5) The state law and justice advisory council, with the assistance of the family policy council and the governor’s juvenile justice advisory committee, may provide support and technical assistance to local governments for training and education regarding community-based prevention and intervention strategies. [1997 c 338 § 61.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Evaluation—Report—1997 c 338 §§ 60-64: See note following RCW 13.40.500. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. 13.40.520 13.40.520 Community juvenile accountability programs—Grants. (1) The state may make grants to local governments for the provision of community-based programs for juvenile offenders. The grants must be made under a grant formula developed by the juvenile rehabilitation administration, in consultation with the Washington association of juvenile court administrators. (2) Upon certification by the juvenile rehabilitation administration that a proposal satisfies the application and selection criteria, grant funds will be distributed to the local government agency that administers funding for consolidated juvenile services. [1997 c 338 § 62.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Evaluation—Report—1997 c 338 §§ 60-64: See note following RCW 13.40.500. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. 13.40.530 13.40.530 Community juvenile accountability programs—Effectiveness standards. The legislature recognizes the importance of evaluation and outcome measurements of programs serving juvenile offenders in order to ensure cost-effective use of public funds. The Washington state institute for public policy shall develop standards for measuring the effectiveness of juvenile accountability programs established and approved under (2006 Ed.) Juvenile Justice Act of 1977 RCW 13.40.510. The standards must be developed and presented to the governor and legislature not later than January 1, 1998. The standards must include methods for measuring success factors following intervention. Success factors include, but are not limited to, continued use of alcohol or controlled substances, arrests, violations of terms of community supervision, convictions for subsequent offenses, and restitution to victims. [1997 c 338 § 63.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Evaluation—Report—1997 c 338 §§ 60-64: See note following RCW 13.40.500. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. 13.40.540 13.40.540 Community juvenile accountability programs—Information collection—Report. (1) Each community juvenile accountability program approved and funded under RCW 13.40.500 through 13.40.540 shall comply with the information collection requirements in subsection (2) of this section and the reporting requirements in subsection (3) of this section. (2) The information collected by each community juvenile accountability program must include, at a minimum for each juvenile participant: (a) The name, date of birth, gender, social security number, and, when available, the juvenile information system (JUVIS) control number; (b) an initial intake assessment of each juvenile participating in the program; (c) a list of all juveniles who completed the program; and (d) an assessment upon completion or termination of each juvenile, including outcomes and, where applicable, reasons for termination. (3) The juvenile rehabilitation administration shall annually compile the data and report to the legislature on: (a) The programs funded under RCW 13.40.500 through 13.40.540; (b) the total cost for each funded program and cost per juvenile; and (c) the essential elements of the program. [1997 c 338 § 64.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Evaluation—Report—1997 c 338 §§ 60-64: See note following RCW 13.40.500. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. 13.40.550 13.40.550 Community juvenile accountability programs—Short title. RCW 13.40.500 through 13.40.540 may be known as the community juvenile accountability act. [1997 c 338 § 66.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. 13.40.560 13.40.560 Juvenile accountability incentive account. The juvenile accountability incentive account is created in the custody of the state treasurer. Federal awards for juvenile accountability incentives received by the secretary of the department of social and health services shall be deposited into the account. Interest earned from the inception of the trust account shall be deposited in the account. Expenditures (2006 Ed.) 13.40.570 from the account may be used only for the purposes specified in the federal award or awards. Moneys in the account may be spent only after appropriation. [1999 c 182 § 1.] 13.40.570 Sexual misconduct by state employees, contractors. (1) When the secretary has reasonable cause to believe that sexual intercourse or sexual contact between an employee and an offender has occurred, notwithstanding any rule adopted under chapter 41.06 RCW the secretary shall immediately suspend the employee. (2) The secretary shall immediately institute proceedings to terminate the employment of any person: (a) Who is found by the department, based on a preponderance of the evidence, to have had sexual intercourse or sexual contact with the offender; or (b) Upon a guilty plea or conviction for any crime specified in chapter 9A.44 RCW when the victim was an offender. (3) When the secretary has reasonable cause to believe that sexual intercourse or sexual contact between the employee of a contractor and an offender has occurred, the secretary shall require the employee of a contractor to be immediately removed from any employment position which would permit the employee to have any access to any offender. (4) The secretary shall disqualify for employment with a contractor in any position with access to an offender, any person: (a) Who is found by the department, based on a preponderance of the evidence, to have had sexual intercourse or sexual contact with the offender; or (b) Upon a guilty plea or conviction for any crime specified in chapter 9A.44 RCW when the victim was an offender. (5) The secretary, when considering the renewal of a contract with a contractor who has taken action under subsection (3) or (4) of this section, shall require the contractor to demonstrate that there has been significant progress made in reducing the likelihood that any of its employees will have sexual intercourse or sexual contact with an offender. The secretary shall examine whether the contractor has taken steps to improve hiring, training, and monitoring practices and whether the employee remains with the contractor. The secretary shall not renew a contract unless he or she determines that significant progress has been made. (6)(a) For the purposes of RCW 50.20.060, a person terminated under this section shall be considered discharged for misconduct. (b)(i) The department may, within its discretion or upon request of any member of the public, release information to an individual or to the public regarding any person or contract terminated under this section. (ii) An appointed or elected public official, public employee, or public agency as defined in RCW 4.24.470 is immune from civil liability for damages for any discretionary release of relevant and necessary information, unless it is shown that the official, employee, or agency acted with gross negligence or in bad faith. The immunity provided under this section applies to the release of relevant and necessary information to other public officials, public employees, or public agencies, and to the public. (iii) Except as provided in chapter 42.56 RCW, or elsewhere, nothing in this section shall impose any liability upon 13.40.570 [Title 13 RCW—page 105] 13.40.580 Title 13 RCW: Juvenile Courts and Juvenile Offenders a public official, public employee, or public agency for failing to release information authorized under this section. Nothing in this section implies that information regarding persons designated in subsection (2) of this section is confidential except as may otherwise be provided by law. (7) The department shall adopt rules to implement this section. The rules shall reflect the legislative intent that this section prohibits individuals who are employed by the department or a contractor of the department from having sexual intercourse or sexual contact with offenders. The rules shall also reflect the legislative intent that when a person is employed by the department or a contractor of the department, and has sexual intercourse or sexual contact with an offender against the employed person’s will, the termination provisions of this section shall not be invoked. (8) As used in this section: (a) "Contractor" includes all subcontractors of a contractor; (b) "Offender" means a person under the jurisdiction or supervision of the department; and (c) "Sexual intercourse" and "sexual contact" have the meanings provided in RCW 9A.44.010. [2005 c 274 § 210; 1999 c 72 § 1.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Application—1999 c 72: "Nothing in section 1 or 2 of this act affects any collective bargaining agreement in place on July 25, 1999." [1999 c 72 § 3.] 13.40.580 13.40.580 Youth courts—Diversion. Youth courts provide a diversion for cases involving juvenile offenders, in which participants, under the supervision of an adult coordinator, may serve in various capacities within the program, acting in the role of jurors, lawyers, bailiffs, clerks, and judges. Youths who appear before youth courts are youths eligible for diversion pursuant to RCW 13.40.070 (6) and (7). Youth courts have no jurisdiction except as provided for in chapter 237, Laws of 2002. Youth courts are diversion units and not courts established under Article IV of the state Constitution. [2002 c 237 § 9.] 13.40.590 13.40.590 Youth court programs. (1) The administrative office of the courts shall encourage the juvenile courts to work with cities and counties to implement, expand, or use youth court programs for juveniles who commit diversioneligible offenses, civil, or traffic infractions. Program operations of youth court programs may be funded by government and private grants. Youth court programs are limited to those that: (a) Are developed using the guidelines for creating and operating youth court programs developed by nationally recognized experts in youth court projects; (b) Target offenders age eight through seventeen; and (c) Emphasize the following principles: (i) Youth must be held accountable for their problem behavior; (ii) Youth must be educated about the impact their actions have on themselves and others including their victims, their families, and their community; (iii) Youth must develop skills to resolve problems with their peers more effectively; and [Title 13 RCW—page 106] (iv) Youth should be provided a meaningful forum to practice and enhance newly developed skills. (2) Youth court programs under this section may be established by private nonprofit organizations and schools, upon prior approval and under the supervision of juvenile court. [2002 c 237 § 10.] 13.40.600 13.40.600 Youth court jurisdiction. (1) Youth courts have authority over juveniles ages eight through seventeen who: (a) Along with their parent, guardian, or legal custodian, voluntarily and in writing request youth court involvement; (b) Admit they have committed the offense they are referred for; (c) Along with their parent, guardian, or legal custodian, waive any privilege against self-incrimination concerning the offense; and (d) Along with their parent, guardian, or legal custodian, agree to comply with the youth court disposition of the case. (2) Youth courts shall not exercise authority over youth who are under the continuing jurisdiction of the juvenile court for law violations, including a youth with a matter pending before the juvenile court but which has not yet been adjudicated. (3) Youth courts may decline to accept a youth for youth court disposition for any reason and may terminate a youth from youth court participation at any time. (4) A youth or his or her parent, guardian, or legal custodian may withdraw from the youth court process at any time. (5) Youth courts shall give any victims of a juvenile the opportunity to be notified, present, and heard in any youth court proceeding. [2002 c 237 § 11.] 13.40.610 13.40.610 Youth court notification of satisfaction of conditions. Youth court may not notify the juvenile court of satisfaction of conditions until all ordered restitution has been paid. [2002 c 237 § 12.] 13.40.620 13.40.620 Appearance before youth court with parent, guardian, or legal custodian. Every youth appearing before a youth court shall be accompanied by his or her parent, guardian, or legal custodian. [2002 c 237 § 13.] 13.40.630 13.40.630 Youth court dispositions. (1) Youth court dispositional options include those delineated in RCW 13.40.080, and may also include: (a) Participating in law-related education classes, appropriate counseling, treatment, or other education [educational] programs; (b) Providing periodic reports to the youth court; (c) Participating in mentoring programs; (d) Serving as a participant in future youth court proceedings; (e) Writing apology letters; or (f) Writing essays. (2) Youth courts shall not impose a term of confinement or detention. Youth courts may require that the youth pay reasonable fees to participate in youth court and in classes, counseling, treatment, or other educational programs that are the disposition of the youth court. (2006 Ed.) Keeping and Release of Records by Juvenile Justice or Care Agencies (3) A youth court disposition shall be completed within one hundred eighty days from the date of referral. (4) Pursuant to RCW 13.40.080(1), a youth court disposition shall be reduced to writing and signed by the youth and his or her parent, guardian, or legal custodian accepting the disposition terms. (5) [A] youth court shall notify the juvenile court upon successful or unsuccessful completion of the disposition. (6) [A] youth court shall notify the prosecutor or probation counselor of a failure to successfully complete the youth court disposition. [2002 c 237 § 14.] 13.40.640 13.40.640 Youth court nonrefundable fee. A youth court may require that a youth pay a nonrefundable fee, not exceeding thirty dollars, to cover the costs of administering the program. The fee may be reduced or waived for a participant. Fees shall be paid to and accounted for by the youth court. [2002 c 237 § 15.] Chapter 13.50 RCW KEEPING AND RELEASE OF RECORDS BY JUVENILE JUSTICE OR CARE AGENCIES Chapter 13.50 Sections 13.50.010 13.50.050 13.50.100 13.50.140 13.50.150 13.50.160 13.50.200 13.50.250 Definitions—Conditions when filing petition or information— Duties to maintain accurate records and access. Records relating to commission of juvenile offenses—Maintenance of, access to, and destruction—Release of information to schools. Records not relating to commission of juvenile offenses— Maintenance and access—Release of information for child custody hearings—Disclosure of unfounded allegations prohibited. Disclosure of privileged information to office of family and children’s ombudsman—Privilege not waived as to others. Confidential records—Expungement to protect due process rights. Disposition records—Provision to schools. Records of motor vehicle operation violation forwarded. Records chapter applicable to. Office of family and children’s ombudsman: Chapter 43.06A RCW. 13.50.010 13.50.010 Definitions—Conditions when filing petition or information—Duties to maintain accurate records and access. (1) For purposes of this chapter: (a) "Juvenile justice or care agency" means any of the following: Police, diversion units, court, prosecuting attorney, defense attorney, detention center, attorney general, the legislative children’s oversight committee, the office of family and children’s ombudsman, the department of social and health services and its contracting agencies, schools; persons or public or private agencies having children committed to their custody; and any placement oversight committee created under RCW 72.05.415; (b) "Official juvenile court file" means the legal file of the juvenile court containing the petition or information, motions, memorandums, briefs, findings of the court, and court orders; (c) "Records" means the official juvenile court file, the social file, and records of any other juvenile justice or care agency in the case; (d) "Social file" means the juvenile court file containing the records and reports of the probation counselor. (2006 Ed.) 13.50.010 (2) Each petition or information filed with the court may include only one juvenile and each petition or information shall be filed under a separate docket number. The social file shall be filed separately from the official juvenile court file. (3) It is the duty of any juvenile justice or care agency to maintain accurate records. To this end: (a) The agency may never knowingly record inaccurate information. Any information in records maintained by the department of social and health services relating to a petition filed pursuant to chapter 13.34 RCW that is found by the court to be false or inaccurate shall be corrected or expunged from such records by the agency; (b) An agency shall take reasonable steps to assure the security of its records and prevent tampering with them; and (c) An agency shall make reasonable efforts to insure the completeness of its records, including action taken by other agencies with respect to matters in its files. (4) Each juvenile justice or care agency shall implement procedures consistent with the provisions of this chapter to facilitate inquiries concerning records. (5) Any person who has reasonable cause to believe information concerning that person is included in the records of a juvenile justice or care agency and who has been denied access to those records by the agency may make a motion to the court for an order authorizing that person to inspect the juvenile justice or care agency record concerning that person. The court shall grant the motion to examine records unless it finds that in the interests of justice or in the best interests of the juvenile the records or parts of them should remain confidential. (6) A juvenile, or his or her parents, or any person who has reasonable cause to believe information concerning that person is included in the records of a juvenile justice or care agency may make a motion to the court challenging the accuracy of any information concerning the moving party in the record or challenging the continued possession of the record by the agency. If the court grants the motion, it shall order the record or information to be corrected or destroyed. (7) The person making a motion under subsection (5) or (6) of this section shall give reasonable notice of the motion to all parties to the original action and to any agency whose records will be affected by the motion. (8) The court may permit inspection of records by, or release of information to, any clinic, hospital, or agency which has the subject person under care or treatment. The court may also permit inspection by or release to individuals or agencies, including juvenile justice advisory committees of county law and justice councils, engaged in legitimate research for educational, scientific, or public purposes. The court may also permit inspection of, or release of information from, records which have been sealed pursuant to *RCW 13.50.050(11). The court shall release to the sentencing guidelines commission records needed for its research and data-gathering functions under RCW 9.94A.850 and other statutes. Access to records or information for research purposes shall be permitted only if the anonymity of all persons mentioned in the records or information will be preserved. Each person granted permission to inspect juvenile justice or care agency records for research purposes shall present a notarized statement to the court stating that the names of juveniles and parents will remain confidential. [Title 13 RCW—page 107] 13.50.050 Title 13 RCW: Juvenile Courts and Juvenile Offenders (9) Juvenile detention facilities shall release records to the sentencing guidelines commission under RCW 9.94A.850 upon request. The commission shall not disclose the names of any juveniles or parents mentioned in the records without the named individual’s written permission. (10) Requirements in this chapter relating to the court’s authority to compel disclosure shall not apply to the legislative children’s oversight committee or the office of the family and children’s ombudsman. [1998 c 269 § 4. Prior: 1997 c 386 § 21; 1997 c 338 § 39; 1996 c 232 § 6; 1994 sp.s. c 7 § 541; 1993 c 374 § 1; 1990 c 246 § 8; 1986 c 288 § 11; 1979 c 155 § 8.] *Reviser’s note: RCW 13.50.050 was amended by 1999 c 198 § 4, changing subsection (11) to subsection (12). Alphabetization—1998 c 269: "The code reviser shall alphabetize the definitions in RCW 13.50.010 and 74.15.020 and correct any references." [1998 c 269 § 18.] Intent—Finding—Effective date—1998 c 269: See notes following RCW 72.05.020. Application—1997 c 386: "Sections 8 through 14 and 17 through 34 of this act apply only to incidents occurring on or after January 1, 1998." [1997 c 386 § 67.] Effective date—1997 c 386: "Sections 8 through 13 and 21 through 34 of this act take effect January 1, 1998." [1997 c 386 § 68.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Effective dates—1996 c 232: See note following RCW 9.94A.850. Application—1994 sp.s. c 7 §§ 540-545: "Sections 540 through 545 of this act shall apply to offenses committed on or after July 1, 1994." [1994 sp.s. c 7 § 917.] Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Severability—1990 c 246: See note following RCW 13.34.060. Severability—1986 c 288: See note following RCW 13.32A.050. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.50.050 13.50.050 Records relating to commission of juvenile offenses—Maintenance of, access to, and destruction— Release of information to schools. (1) This section governs records relating to the commission of juvenile offenses, including records relating to diversions. (2) The official juvenile court file of any alleged or proven juvenile offender shall be open to public inspection, unless sealed pursuant to subsection (12) of this section. (3) All records other than the official juvenile court file are confidential and may be released only as provided in this section, RCW 13.50.010, 13.40.215, and 4.24.550. (4) Except as otherwise provided in this section and RCW 13.50.010, records retained or produced by any juvenile justice or care agency may be released to other participants in the juvenile justice or care system only when an investigation or case involving the juvenile in question is being pursued by the other participant or when that other participant is assigned the responsibility for supervising the juvenile. (5) Except as provided in RCW 4.24.550, information not in an official juvenile court file concerning a juvenile or a juvenile’s family may be released to the public only when [Title 13 RCW—page 108] that information could not reasonably be expected to identify the juvenile or the juvenile’s family. (6) Notwithstanding any other provision of this chapter, the release, to the juvenile or his or her attorney, of law enforcement and prosecuting attorneys’ records pertaining to investigation, diversion, and prosecution of juvenile offenses shall be governed by the rules of discovery and other rules of law applicable in adult criminal investigations and prosecutions. (7) Upon the decision to arrest or the arrest, law enforcement and prosecuting attorneys may cooperate with schools in releasing information to a school pertaining to the investigation, diversion, and prosecution of a juvenile attending the school. Upon the decision to arrest or the arrest, incident reports may be released unless releasing the records would jeopardize the investigation or prosecution or endanger witnesses. If release of incident reports would jeopardize the investigation or prosecution or endanger witnesses, law enforcement and prosecuting attorneys may release information to the maximum extent possible to assist schools in protecting other students, staff, and school property. (8) The juvenile court and the prosecutor may set up and maintain a central record-keeping system which may receive information on all alleged juvenile offenders against whom a complaint has been filed pursuant to RCW 13.40.070 whether or not their cases are currently pending before the court. The central record-keeping system may be computerized. If a complaint has been referred to a diversion unit, the diversion unit shall promptly report to the juvenile court or the prosecuting attorney when the juvenile has agreed to diversion. An offense shall not be reported as criminal history in any central record-keeping system without notification by the diversion unit of the date on which the offender agreed to diversion. (9) Upon request of the victim of a crime or the victim’s immediate family, the identity of an alleged or proven juvenile offender alleged or found to have committed a crime against the victim and the identity of the alleged or proven juvenile offender’s parent, guardian, or custodian and the circumstance of the alleged or proven crime shall be released to the victim of the crime or the victim’s immediate family. (10) Subject to the rules of discovery applicable in adult criminal prosecutions, the juvenile offense records of an adult criminal defendant or witness in an adult criminal proceeding shall be released upon request to prosecution and defense counsel after a charge has actually been filed. The juvenile offense records of any adult convicted of a crime and placed under the supervision of the adult corrections system shall be released upon request to the adult corrections system. (11) In any case in which an information has been filed pursuant to RCW 13.40.100 or a complaint has been filed with the prosecutor and referred for diversion pursuant to RCW 13.40.070, the person the subject of the information or complaint may file a motion with the court to have the court vacate its order and findings, if any, and, subject to subsection (23) of this section, order the sealing of the official juvenile court file, the social file, and records of the court and of any other agency in the case. (12) The court shall not grant any motion to seal records made pursuant to subsection (11) of this section that is filed on or after July 1, 1997, unless it finds that: (2006 Ed.) Keeping and Release of Records by Juvenile Justice or Care Agencies (a) For class B offenses other than sex offenses, since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent five consecutive years in the community without committing any offense or crime that subsequently results in conviction. For class C offenses other than sex offenses, since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent two consecutive years in the community without committing any offense or crime that subsequently results in conviction. For gross misdemeanors and misdemeanors, since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent two consecutive years in the community without committing any offense or crime that subsequently results in conviction. For diversions, since completion of the diversion agreement, the person has spent two consecutive years in the community without committing any offense or crime that subsequently results in conviction or diversion; (b) No proceeding is pending against the moving party seeking the conviction of a juvenile offense or a criminal offense; (c) No proceeding is pending seeking the formation of a diversion agreement with that person; (d) The person has not been convicted of a class A or sex offense; and (e) Full restitution has been paid. (13) The person making a motion pursuant to subsection (11) of this section shall give reasonable notice of the motion to the prosecution and to any person or agency whose files are sought to be sealed. (14) If the court grants the motion to seal made pursuant to subsection (11) of this section, it shall, subject to subsection (23) of this section, order sealed the official juvenile court file, the social file, and other records relating to the case as are named in the order. Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed. Any agency shall reply to any inquiry concerning confidential or sealed records that records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual. (15) Inspection of the files and records included in the order to seal may thereafter be permitted only by order of the court upon motion made by the person who is the subject of the information or complaint, except as otherwise provided in RCW 13.50.010(8) and subsection (23) of this section. (16) Any adjudication of a juvenile offense or a crime subsequent to sealing has the effect of nullifying the sealing order. Any charging of an adult felony subsequent to the sealing has the effect of nullifying the sealing order for the purposes of chapter 9.94A RCW. The administrative office of the courts shall ensure that the superior court judicial information system provides prosecutors access to information on the existence of sealed juvenile records. (17)(a) A person eighteen years of age or older whose criminal history consists of only one referral for diversion may request that the court order the records in that case destroyed. The request shall be granted, subject to subsection (2006 Ed.) 13.50.050 (23) of this section, if the court finds that two years have elapsed since completion of the diversion agreement. (b) A person twenty-three years of age or older whose criminal history consists of only referrals for diversion may request that the court order the records in those cases destroyed. The request shall be granted, subject to subsection (23) of this section, if the court finds that all diversion agreements have been successfully completed and no proceeding is pending against the person seeking the conviction of a criminal offense. (18) If the court grants the motion to destroy records made pursuant to subsection (17) of this section, it shall, subject to subsection (23) of this section, order the official juvenile court file, the social file, and any other records named in the order to be destroyed. (19) The person making the motion pursuant to subsection (17) of this section shall give reasonable notice of the motion to the prosecuting attorney and to any agency whose records are sought to be destroyed. (20) Any juvenile to whom the provisions of this section may apply shall be given written notice of his or her rights under this section at the time of his or her disposition hearing or during the diversion process. (21) Nothing in this section may be construed to prevent a crime victim or a member of the victim’s family from divulging the identity of the alleged or proven juvenile offender or his or her family when necessary in a civil proceeding. (22) Any juvenile justice or care agency may, subject to the limitations in subsection (23) of this section and (a) and (b) of this subsection, develop procedures for the routine destruction of records relating to juvenile offenses and diversions. (a) Records may be routinely destroyed only when the person the subject of the information or complaint has attained twenty-three years of age or older, or is eighteen years of age or older and his or her criminal history consists entirely of one diversion agreement and two years have passed since completion of the agreement. (b) The court may not routinely destroy the official juvenile court file or recordings or transcripts of any proceedings. (23) No identifying information held by the Washington state patrol in accordance with chapter 43.43 RCW is subject to destruction or sealing under this section. For the purposes of this subsection, identifying information includes photographs, fingerprints, palmprints, soleprints, toeprints and any other data that identifies a person by physical characteristics, name, birthdate or address, but does not include information regarding criminal activity, arrest, charging, diversion, conviction or other information about a person’s treatment by the criminal justice system or about the person’s behavior. (24) Information identifying child victims under age eighteen who are victims of sexual assaults by juvenile offenders is confidential and not subject to release to the press or public without the permission of the child victim or the child’s legal guardian. Identifying information includes the child victim’s name, addresses, location, photographs, and in cases in which the child victim is a relative of the alleged perpetrator, identification of the relationship between the child and the alleged perpetrator. Information identifying a child victim of sexual assault may be released to law [Title 13 RCW—page 109] 13.50.100 Title 13 RCW: Juvenile Courts and Juvenile Offenders enforcement, prosecutors, judges, defense attorneys, or private or governmental agencies that provide services to the child victim of sexual assault. [2004 c 42 § 1. Prior: 2001 c 175 § 1; 2001 c 174 § 1; 2001 c 49 § 2; 1999 c 198 § 4; 1997 c 338 § 40; 1992 c 188 § 7; 1990 c 3 § 125; 1987 c 450 § 8; 1986 c 257 § 33; 1984 c 43 § 1; 1983 c 191 § 19; 1981 c 299 § 19; 1979 c 155 § 9.] Rules of court: Superior Court Criminal Rules (CrR), generally. Discovery: CrR 4.7. Intent—2001 c 49: "The legislature intends to change the results of the holding of State v. T. K., 139 Wn. 2d 320 (1999), and have any motion made after July 1, 1997, to seal juvenile records be determined by the provisions of RCW 13.50.050 in effect after July 1, 1997." [2001 c 49 § 1.] Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357. Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060. Findings—Intent—Severability—1992 c 188: See notes following RCW 7.69A.020. Index, part headings not law—Severability—Effective dates— Application—1990 c 3: See RCW 18.155.900 through 18.155.902. Severability—1986 c 257: See note following RCW 9A.56.010. Effective date—1986 c 257 §§ 17-35: See note following RCW 9.94A.030. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.50.100 13.50.100 Records not relating to commission of juvenile offenses—Maintenance and access—Release of information for child custody hearings—Disclosure of unfounded allegations prohibited. (1) This section governs records not covered by RCW 13.50.050. (2) Records covered by this section shall be confidential and shall be released only pursuant to this section and RCW 13.50.010. (3) Records retained or produced by any juvenile justice or care agency may be released to other participants in the juvenile justice or care system only when an investigation or case involving the juvenile in question is being pursued by the other participant or when that other participant is assigned the responsibility of supervising the juvenile. Records covered under this section and maintained by the juvenile courts which relate to the official actions of the agency may be entered in the statewide judicial information system. However, truancy records associated with a juvenile who has no other case history, and records of a juvenile’s parents who have no other case history, shall be removed from the judicial information system when the juvenile is no longer subject to the compulsory attendance laws in chapter 28A.225 RCW. A county clerk is not liable for unauthorized release of this data by persons or agencies not in his or her employ or otherwise subject to his or her control, nor is the county clerk liable for inaccurate or incomplete information collected from litigants or other persons required to provide identifying data pursuant to this section. (4) Subject to (a) of this subsection, the department of social and health services may release information retained in the course of conducting child protective services investigations to a family or juvenile court hearing a petition for custody under chapter 26.10 RCW. (a) Information that may be released shall be limited to information regarding investigations in which: (i) The juve[Title 13 RCW—page 110] nile was an alleged victim of abandonment or abuse or neglect; or (ii) the petitioner for custody of the juvenile, or any individual aged sixteen or older residing in the petitioner’s household, is the subject of a founded or currently pending child protective services investigation made by the department subsequent to October 1, 1998. (b) Additional information may only be released with the written consent of the subject of the investigation and the juvenile alleged to be the victim of abandonment or abuse and neglect, or the parent, custodian, guardian, or personal representative of the juvenile, or by court order obtained with notice to all interested parties. (5) Any disclosure of records or information by the department of social and health services pursuant to this section shall not be deemed a waiver of any confidentiality or privilege attached to the records or information by operation of any state or federal statute or regulation, and any recipient of such records or information shall maintain it in such a manner as to comply with such state and federal statutes and regulations and to protect against unauthorized disclosure. (6) A contracting agency or service provider of the department of social and health services that provides counseling, psychological, psychiatric, or medical services may release to the office of the family and children’s ombudsman information or records relating to services provided to a juvenile who is dependent under chapter 13.34 RCW without the consent of the parent or guardian of the juvenile, or of the juvenile if the juvenile is under the age of thirteen years, unless such release is otherwise specifically prohibited by law. (7) A juvenile, his or her parents, the juvenile’s attorney and the juvenile’s parent’s attorney, shall, upon request, be given access to all records and information collected or retained by a juvenile justice or care agency which pertain to the juvenile except: (a) If it is determined by the agency that release of this information is likely to cause severe psychological or physical harm to the juvenile or his or her parents the agency may withhold the information subject to other order of the court: PROVIDED, That if the court determines that limited release of the information is appropriate, the court may specify terms and conditions for the release of the information; or (b) If the information or record has been obtained by a juvenile justice or care agency in connection with the provision of counseling, psychological, psychiatric, or medical services to the juvenile, when the services have been sought voluntarily by the juvenile, and the juvenile has a legal right to receive those services without the consent of any person or agency, then the information or record may not be disclosed to the juvenile’s parents without the informed consent of the juvenile unless otherwise authorized by law; or (c) That the department of social and health services may delete the name and identifying information regarding persons or organizations who have reported alleged child abuse or neglect. (8) A juvenile or his or her parent denied access to any records following an agency determination under subsection (7) of this section may file a motion in juvenile court requesting access to the records. The court shall grant the motion unless it finds access may not be permitted according to the standards found in subsection (7)(a) and (b) of this section. (2006 Ed.) Missing Children Clearinghouse (9) The person making a motion under subsection (8) of this section shall give reasonable notice of the motion to all parties to the original action and to any agency whose records will be affected by the motion. (10) Subject to the rules of discovery in civil cases, any party to a proceeding seeking a declaration of dependency or a termination of the parent-child relationship and any party’s counsel and the guardian ad litem of any party, shall have access to the records of any natural or adoptive child of the parent, subject to the limitations in subsection (7) of this section. A party denied access to records may request judicial review of the denial. If the party prevails, he or she shall be awarded attorneys’ fees, costs, and an amount not less than five dollars and not more than one hundred dollars for each day the records were wrongfully denied. (11) No unfounded allegation of child abuse or neglect as defined in RCW 26.44.020(12) may be disclosed to a child-placing agency, private adoption agency, or any other licensed provider. [2003 c 105 § 2; 2001 c 162 § 2; 2000 c 162 § 18; 1999 c 390 § 3; 1997 c 386 § 22; 1995 c 311 § 16; 1990 c 246 § 9; 1983 c 191 § 20; 1979 c 155 § 10.] Application—Effective date—1997 c 386: See notes following RCW 13.50.010. the same manner as provided in RCW 46.20.270. [1979 c 155 § 13; 1977 ex.s. c 291 § 14. Formerly RCW 13.04.278.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective date—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.50.250 13.50.250 Records chapter applicable to. This chapter applies to all juvenile justice or care agency records created on or after July 1, 1978. [1979 c 155 § 11.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Chapter 13.60 RCW MISSING CHILDREN CLEARINGHOUSE Chapter 13.60 Sections 13.60.010 13.60.020 13.60.030 13.60.040 Severability—1990 c 246: See note following RCW 13.34.060. Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. 13.50.140 13.50.140 Disclosure of privileged information to office of family and children’s ombudsman—Privilege not waived as to others. Any communication or advice privileged under RCW 5.60.060 that is disclosed by the office of the attorney general or the department of social and health services to the office of the family and children’s ombudsman may not be deemed to be a waiver of the privilege as to others. [1999 c 390 § 8.] 13.50.150 13.50.150 Confidential records—Expungement to protect due process rights. Nothing in this chapter shall be construed to prevent the expungement of any juvenile record ordered expunged by a court to preserve the due process rights of its subject. [1977 ex.s. c 291 § 13. Formerly RCW 13.04.276, see 1979 c 155 § 12.] Effective date—Severability—1979 c 155: See notes following RCW 13.04.011. Effective date—Severability—1977 ex.s. c 291: See notes following RCW 13.04.005. 13.50.160 13.50.160 Disposition records—Provision to schools. Records of disposition for a juvenile offense must be provided to schools as provided in RCW 13.04.155. [1997 c 266 § 8.] Findings—Intent—Severability—1997 c 266: See notes following RCW 28A.600.455. 13.50.200 13.50.200 Records of motor vehicle operation violation forwarded. Notwithstanding any other provision of this chapter, whenever a child is arrested for a violation of any law, including municipal ordinances, regulating the operation of vehicles on the public highways, a copy of the traffic citation and a record of the action taken by the court shall be forwarded by the juvenile court to the department of licensing in (2006 Ed.) 13.60.020 13.60.100 13.60.110 13.60.120 Missing children clearinghouse—Hot line—Distribution of information. Entry of information on missing children into missing person computer network—Access. Information and education regarding missing children—Plan. Children receiving services from department of social and health services—Reporting by the department—Notification of child’s whereabouts. Task force on missing and exploited children—Findings, intent. Task force on missing and exploited children—Establishment—Activities—Annual reports. Task force on missing and exploited children—Advisory board. 13.60.010 13.60.010 Missing children clearinghouse—Hot line—Distribution of information. The Washington state patrol shall establish a missing children clearinghouse which shall include the maintenance and operation of a toll-free, twenty-four-hour telephone hotline. The clearinghouse shall distribute information to local law enforcement agencies, school districts, the department of social and health services, and the general public regarding missing children. The information shall include pictures, bulletins, training sessions, reports, and biographical materials that will assist in local law enforcement efforts to locate missing children. The state patrol shall also maintain a regularly updated computerized link with national and other statewide missing person systems or clearinghouses. "Child" or "children," as used in this chapter, means an individual under eighteen years of age. [1985 c 443 § 22.] Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. 13.60.020 13.60.020 Entry of information on missing children into missing person computer network—Access. Local law enforcement agencies shall file an official missing person report and enter biographical information into the state missing person computerized network within twelve hours after notification of a missing child is received under *RCW 13.32A.050 (1), (3), or (4). The patrol shall collect such information as will enable it to retrieve immediately the following information about a missing child: Name, date of birth, social security number, fingerprint classification, relevant physical descriptions, and known associates and locations. Access to the preceding information shall be available [Title 13 RCW—page 111] 13.60.030 Title 13 RCW: Juvenile Courts and Juvenile Offenders *Reviser’s note: RCW 13.32A.050 was amended by 1995 c 312 § 6, changing subsections (1), (3), and (4) to subsection (1)(a), (c), and (d), respectively. management, and training. The legislature intends that the task force will increase the effectiveness of a specific case investigation by drawing from the combined resources, knowledge, and technical expertise of the members of the task force. [1999 c 168 § 1.] Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. Short title—1999 c 168: "This act may be known and cited as the Teekah Lewis act." [1999 c 168 § 4.] to appropriate law enforcement agencies, and to parents and legal guardians, when appropriate. [1985 c 443 § 23.] 13.60.030 13.60.030 Information and education regarding missing children—Plan. The superintendent of public instruction shall meet semiannually with the Washington state patrol to develop a coordinated plan for the distribution of information and education of teachers and students in the school districts of the state regarding the missing children problem in the state. The superintendent of public instruction shall encourage local school districts to cooperate by providing the state patrol information on any missing children that may be identified within the district. [1985 c 443 § 24.] Severability—Effective date—1985 c 443: See notes following RCW 7.69.010. 13.60.040 13.60.040 Children receiving services from department of social and health services—Reporting by the department—Notification of child’s whereabouts. The department of social and health services shall develop a procedure for reporting missing children information to the missing children clearinghouse on children who are receiving departmental services in each of its administrative regions. The purpose of this procedure is to link parents to missing children. When the department has obtained information that a minor child has been located at a facility funded by the department, the department shall notify the clearinghouse and the child’s legal custodian, advising the custodian of the child’s whereabouts or that the child is subject to a dependency action. The department shall inform the clearinghouse when reunification occurs. [1999 c 267 § 18.] Findings—Intent—Severability—1999 c 267: See notes following RCW 43.20A.790. Short title—Purpose—Entitlement not granted—Federal waivers—1999 c 267 §§ 10-26: See RCW 74.15.900 and 74.15.901. 13.60.100 13.60.100 Task force on missing and exploited children—Findings, intent. The legislature finds a compelling need to address the problem of missing children, whether those children have been abducted by a stranger, are missing due to custodial interference, or are classified as runaways. Washington state ranks twelfth in the nation for active cases of missing juveniles and, at any given time, more than one thousand eight hundred Washington children are reported as missing. The potential for physical and psychological trauma to these children is extreme. Therefore, the legislature finds that it is paramount for the safety of these children that there be a concerted effort to resolve cases of missing and exploited children. Due to the complexity of many child abduction cases, most law enforcement personnel are unprepared and lack adequate resources to successfully and efficiently investigate these crimes. Therefore, it is the intent of the legislature that a multiagency task force be established within the Washington state patrol, to be available to assist local jurisdictions in missing child cases through referrals, on-site assistance, case [Title 13 RCW—page 112] 13.60.110 Task force on missing and exploited children—Establishment—Activities—Annual reports. (1) A task force on missing and exploited children is established in the Washington state patrol. The task force shall be under the direction of the chief of the state patrol. (2) The task force is authorized to assist law enforcement agencies, upon request, in cases involving missing or exploited children by: (a) Direct assistance and case management; (b) Technical assistance; (c) Personnel training; (d) Referral for assistance from local, state, national, and international agencies; and (e) Coordination and information sharing among local, state, interstate, and federal law enforcement and social service agencies. (3) To maximize the efficiency and effectiveness of state resources and to improve interagency cooperation, the task force shall, where feasible, use existing facilities, systems, and staff made available by the state patrol and other local, state, interstate, and federal law enforcement and social service agencies. The chief of the state patrol may employ such additional personnel as are necessary for the work of the task force and may share personnel costs with other agencies. (4) The chief of the state patrol shall seek public and private grants and gifts to support the work of the task force. (5) By December 1, 2001, and annually thereafter, the chief of the state patrol shall submit a report to the appropriate committees of the legislature. The report shall establish performance measurements and objectives for the task force and assess the accomplishments of the task force. (6) For the purposes of RCW 13.60.100 through 13.60.120, "exploited children" means children under the age of eighteen who are employed, used, persuaded, induced, enticed, or coerced to engage in, or assist another person to engage in, sexually explicit conduct. "Exploited children" also means the rape, molestation, or use for prostitution of children under the age of eighteen. [1999 c 168 § 2.] 13.60.110 Short title—1999 c 168: See note following RCW 13.60.100. 13.60.120 Task force on missing and exploited children—Advisory board. The advisory board on missing and exploited children is established to advise the chief of the Washington state patrol on the objectives, conduct, management, and coordination of the various activities of the task force on missing and exploited children. (1) The chief of the state patrol shall appoint five members to the advisory board: (a) One member shall be a county prosecuting attorney or a representative and shall be appointed in consultation with the elected county prosecutors; (b) two members shall be a municipal police chief and a county sheriff, or their representatives, and shall be appointed in consultation with the association of sheriffs and police 13.60.120 (2006 Ed.) Emancipation of Minors chiefs under RCW 36.28A.010; (c) one member shall be a representative of the state patrol; and (d) one member shall be a representative of parents of missing or exploited children. (2) A sixth member of the board shall represent and be appointed by the attorney general. (3) To improve interagency communication and coordination, the chief of the state patrol shall invite representatives of federal law enforcement agencies and state social service agencies to participate in the advisory board. (4) The members of the board shall be qualified on the basis of knowledge and experience as may contribute to the effective performance of the board’s duties. The board shall elect its own chair from among its members. Meetings of the board may be convened at the call of the chair or by a majority of the members. (5) The term of each member of the board shall be two years and shall be conditioned upon the member retaining the official position from which the member was appointed. [1999 c 168 § 3.] Short title—1999 c 168: See note following RCW 13.60.100. Chapter 13.64 Chapter 13.64 RCW EMANCIPATION OF MINORS 13.64.060 hearing. No summons shall be required. Service shall be waived if proof is made to the court that the address of the parent or parents, guardian, or custodian is unavailable or unascertainable. The petitioner shall also serve notice of the hearing on the department if the petitioner is subject to dependency disposition order under RCW 13.34.130. The hearing shall be held no later than sixty days after the date on which the petition is filed. [1993 c 294 § 3.] 13.64.040 13.64.040 Hearing on petition. (1) The hearing on the petition shall be before a judicial officer, sitting without a jury. Prior to the presentation of proof the judicial officer shall determine whether: (a) The petitioning minor understands the consequences of the petition regarding his or her legal rights and responsibilities; (b) a guardian ad litem should be appointed to investigate the allegations of the petition and file a report with the court. (2) For the purposes of this section, the term "judicial officer" means: (a) A judge; (b) a superior court commissioner of a unified family court if the county operates a unified family court; or (c) any superior court commissioner if the county does not operate a unified family court. The term does not include a judge pro tempore. [2001 c 161 § 1; 1993 c 294 § 4.] Sections 13.64.050 13.64.010 13.64.020 13.64.030 13.64.040 13.64.050 13.64.060 13.64.070 13.64.080 13.64.900 Declaration of emancipation. Petition for emancipation—Filing fees. Service of petition—Notice—Date of hearing. Hearing on petition. Emancipation decree—Certified copy—Notation of emancipated status. Power and capacity of emancipated minor. Declaration of emancipation—Voidable. Forms to initiate petition of emancipation. Effective date—1993 c 294. 13.64.010 13.64.010 Declaration of emancipation. Any minor who is sixteen years of age or older and who is a resident of this state may petition in the superior court for a declaration of emancipation. [1993 c 294 § 1.] 13.64.020 13.64.020 Petition for emancipation—Filing fees. (1) A petition for emancipation shall be signed and verified by the petitioner, and shall include the following information: (a) The full name of the petitioner, the petitioner’s birthdate, and the state and county of birth; (b) a certified copy of the petitioner’s birth certificate; (c) the name and last known address of the petitioner’s parent or parents, guardian, or custodian; (d) the petitioner’s present address, and length of residence at that address; (e) a declaration by the petitioner indicating that he or she has the ability to manage his or her financial affairs, including any supporting information; and (f) a declaration by the petitioner indicating that he or she has the ability to manage his or her personal, social, educational, and nonfinancial affairs, including any supporting information. (2) Fees for this section are set under RCW 36.18.014. [1995 c 292 § 7; 1993 c 294 § 2.] 13.64.030 13.64.030 Service of petition—Notice—Date of hearing. The petitioner shall serve a copy of the filed petition and notice of hearing on the petitioner’s parent or parents, guardian, or custodian at least fifteen days before the emancipation (2006 Ed.) 13.64.050 Emancipation decree—Certified copy— Notation of emancipated status. (1) The court shall grant the petition for emancipation, except as provided in subsection (2) of this section, if the petitioner proves the following facts by clear and convincing evidence: (a) That the petitioner is sixteen years of age or older; (b) that the petitioner is a resident of the state; (c) that the petitioner has the ability to manage his or her financial affairs; and (d) that the petitioner has the ability to manage his or her personal, social, educational, and nonfinancial affairs. (2) A parent, guardian, custodian, or in the case of a dependent minor, the department, may oppose the petition for emancipation. The court shall deny the petition unless it finds, by clear and convincing evidence, that denial of the grant of emancipation would be detrimental to the interests of the minor. (3) Upon entry of a decree of emancipation by the court the petitioner shall be given a certified copy of the decree. The decree shall instruct the petitioner to obtain a Washington driver’s license or a Washington identification card and direct the department of licensing make a notation of the emancipated status on the license or identification card. [1993 c 294 § 5.] 13.64.060 13.64.060 Power and capacity of emancipated minor. (1) An emancipated minor shall be considered to have the power and capacity of an adult, except as provided in subsection (2) of this section. A minor shall be considered emancipated for the purposes of, but not limited to: (a) The termination of parental obligations of financial support, care, supervision, and any other obligation the parent may have by virtue of the parent-child relationship, including obligations imposed because of marital dissolution; (b) The right to sue or be sued in his or her own name; (c) The right to retain his or her own earnings; [Title 13 RCW—page 113] 13.64.070 Title 13 RCW: Juvenile Courts and Juvenile Offenders (d) The right to establish a separate residence or domicile; (e) The right to enter into nonvoidable contracts; (f) The right to act autonomously, and with the power and capacity of an adult, in all business relationships, including but not limited to property transactions; (g) The right to work, and earn a living, subject only to the health and safety regulations designed to protect those under age of majority regardless of their legal status; and (h) The right to give informed consent for receiving health care services. (2) An emancipated minor shall not be considered an adult for: (a) The purposes of the adult criminal laws of the state unless the decline of jurisdiction procedures contained in RCW 13.40.110 are used or the minor is tried in criminal court pursuant to *RCW 13.04.030(1)(e)(iv); (b) the criminal laws of the state when the emancipated minor is a victim and the age of the victim is an element of the offense; or (c) those specific constitutional and statutory age requirements regarding voting, use of alcoholic beverages, possession of firearms, and other health and safety regulations relevant to the minor because of the minor’s age. [1994 sp.s. c 7 § 436; 1993 c 294 § 6.] *Reviser’s note: RCW 13.04.030 was amended by 1997 c 341 § 3, changing subsection (1)(e)(iv) to subsection (1)(e)(v). Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540. Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439460: See note following RCW 9.41.010. 13.64.070 13.64.070 Declaration of emancipation—Voidable. A declaration of emancipation obtained by fraud is voidable. The voiding of any such declaration shall not affect any obligations, rights, or interests that arose during the period the declaration was in effect. [1993 c 294 § 7.] 13.70.110 13.70.120 13.70.130 13.70.140 13.70.150 Child in substitute care under dependency proceeding—Procedures—Review. Board recommendations. Funds from public and private sources. Review by court. Indian children—Local Indian child welfare advisory committee may serve as citizen review board. 13.70.003 13.70.003 Substitute care of children—Citizen review board system—Purpose—Application of administrative procedures and standards. The legislature recognizes the importance of permanency and continuity to children and of fairness to parents in the provision of child welfare services. The legislature intends to create a citizen review board system that will function in an advisory capacity to the judiciary, the department, and the legislature. The purpose of the citizen review board system is to: (1) Provide periodic review of cases involving substitute care of children in a manner that complies with case review requirements and time lines imposed by federal laws pertaining to child welfare services; (2) Improve the quality of case review provided to children in substitute care and their families; and (3) Provide a means for community involvement in monitoring cases of children in substitute care. In order to accomplish the foregoing purposes, the citizen review board system shall not be subject to the procedures and standards usually applicable to judicial and administrative hearings, except as otherwise specifically provided in this chapter and RCW 13.34.138, 13.34.145, and 26.44.115. Nothing in this chapter and RCW 13.34.138, 13.34.145, and 26.44.115 shall limit the ability of the department to utilize court review hearings and administrative reviews to meet the periodic review requirements imposed by federal law. [2000 c 122 § 36; 1989 1st ex.s. c 17 § 1.] 13.64.080 13.64.080 Forms to initiate petition of emancipation. The administrative office of the courts shall prepare and distribute to the county court clerks appropriate forms for minors seeking to initiate a petition of emancipation. [2005 c 282 § 28; 1993 c 294 § 8.] 13.64.900 13.64.900 Effective date—1993 c 294. This act shall take effect January 1, 1994. [1993 c 294 § 11.] Chapter 13.70 RCW SUBSTITUTE CARE OF CHILDREN—REVIEW BOARD SYSTEM Chapter 13.70 Sections 13.70.003 13.70.010 13.70.020 13.70.030 13.70.040 13.70.050 13.70.060 13.70.070 13.70.080 13.70.090 13.70.100 Substitute care of children—Citizen review board system— Purpose—Application of administrative procedures and standards. Definitions. Role of supreme court—Procedures. Composition of board—Quorum. Guidelines for appointment to boards. Training programs for board members. Confidentiality requirements. Board access to records. Review of case—Employee duties. Board—Powers and duties—Immunity. Child in substitute care—No dependency petition—Procedures—Review. [Title 13 RCW—page 114] 13.70.010 13.70.010 Definitions. Unless the context requires otherwise, the definitions in this section apply throughout this chapter. (1) "Board" means the local citizen review board established pursuant to this chapter. (2) "Child" means a person less than eighteen years of age. (3) "Committee" means a local Indian child welfare adviso ry co mm ittee establish ed pur suant to WAC 388-70-610, as now existing or hereafter amended by the department. (4) "Conflict of interest" means that a person appointed to a board has a personal or pecuniary interest in a case being reviewed by that board. (5) "Court" means the juvenile court. (6) "Custodian" means that person who has legal custody of the child. (7) "Department" means the department of social and health services. (8) "Mature child" means a child who is able to understand and participate in the decision-making process without excessive anxiety or fear. A child twelve years old or over shall be rebuttably presumed to be a mature child. (2006 Ed.) Substitute Care of Children—Review Board System (9) "Parent" or "parents" means the biological or adoptive parents of a child unless the legal rights of that person have been terminated by judicial proceedings. (10) "Placement episode" means the period of time that begins with the date the child was removed from the home of the parent or legal custodian for the purposes of placement in substitute care and continues until the child returns home or an adoption decree or guardianship order is entered. (11) "Records" means any information in written form, pictures, photographs, charts, graphs, recordings, or documents pertaining to a case. (12) "Resides" or "residence," when used in reference to the residence of a child, means the place where the child is actually living and not the legal residence or domicile of the parent or guardian. (13) "Substitute care" means an out-of-home placement of a child for purposes related to the provision of child welfare services in accordance with chapter 74.13 RCW where the child is in the care, custody, and control of the department pursuant to a proceeding under chapter 13.34 RCW or pursuant to the written consent of the child’s parent or parents or custodian. [1991 c 127 § 3; 1989 1st ex.s. c 17 § 3.] 13.70.020 Role of supreme court—Procedures. The supreme court is requested to: (1) Establish and approve policies and procedures for the creation, recruitment, and operation of local citizen substitute care review boards; (2) Approve and cause to have conducted training programs for board members; (3) Provide consultation services on request to the boards; (4) Establish reporting procedures to be followed by the boards to provide data for the evaluation of this chapter; (5) Monitor the boards to ensure the impartiality of reviews and consistency of review standards throughout the state; (6) Employ staff and provide for support services for the boards which shall be provided with staff through the local juvenile court in accordance with guidelines and procedures established by the supreme court; (7) Direct the administrator for the courts to carry out duties prescribed by the supreme court relating to the administration of this chapter; (8) Submit a report to the governor, the appropriate committees of the legislature, and the public on January 1, 1991, and biennially thereafter. The report shall address the following issues: (a) State laws, policies, and practices affecting permanence and appropriate care for children in the custody of the department and other agencies; (b) Whether the boards are effective in bringing about permanence and appropriate care for children in the custody of the department and other agencies; and (c) Whether adequate resources are available to permit the department to make reasonable efforts to keep families together. (9) Adopt rules regarding: (a) Procedures for providing written notice of the review to the department, any other child placement agency directly responsible for supervising the placement of the child, the 13.70.020 (2006 Ed.) 13.70.060 child’s parents and their attorneys, the child’s legal custodians and their attorneys, mature children and their attorneys, the court-appointed attorney and guardian ad litem of any child, any prosecuting attorney or attorney general actively involved in the case, and the child’s Indian tribe if the child is an Indian as defined in the Indian child welfare act, 25 U.S.C. 1901, et seq. The notice shall include advice that persons receiving a notice may participate in the review and be accompanied by a representative; (b) Procedures for removing members from the board for nonparticipation or other good cause. [1989 1st ex.s. c 17 § 4.] 13.70.030 13.70.030 Composition of board—Quorum. Each board shall be composed of five members appointed by the juvenile court. Three members shall constitute a quorum. [1989 1st ex.s. c 17 § 5.] 13.70.040 13.70.040 Guidelines for appointment to boards. Each board shall be appointed according to the following guidelines: (1) Members of each board shall represent the various socioeconomic and ethnic groups of the area served. (2) No person employed by a juvenile court or by the department for purposes related to the provision of child welfare services under chapter 74.13 RCW may serve on any board. No more than one person from any private agency or individual licensed by the department to provide child welfare services under chapter 74.13 RCW may serve on any board. A majority of the members on each board shall be persons who have no current professional or volunteer relationship with the department. (3) No person who has had a child of his or her own, or one under his or her control, placed in substitute care within the last two years may serve on any board. (4) All board members must be of good character and must demonstrate the understanding, ability, and judgment necessary to carry out the duties under this chapter. (5) All board members shall serve a term of two years, except that if a vacancy occurs, a successor shall be appointed to serve the unexpired term. The terms of the initial members shall be staggered. Members shall be limited to two terms unless there are insufficient volunteers to replace them. (6) Each board shall elect annually from its membership a chair and vice-chair to serve in the absence of the chair. (7) Board members shall be domiciled within the counties of the appointing courts. [1989 1st ex.s. c 17 § 6.] 13.70.050 13.70.050 Training programs for board members. Prior to reviewing cases, all persons appointed to serve as board members shall participate in a training program established and approved by the supreme court. Board members shall participate in at least sixteen hours of training prior to reviewing cases and, thereafter, at least eight hours of training annually. [1989 1st ex.s. c 17 § 7.] 13.70.060 13.70.060 Confidentiality requirements. (1) Before beginning to serve on a board, each member shall swear or affirm to the court that the member shall keep confidential the [Title 13 RCW—page 115] 13.70.070 Title 13 RCW: Juvenile Courts and Juvenile Offenders information reviewed by the board and its actions and recommendations in individual cases. (2) A member of a board who violates the duty imposed by subsection (1) of this section is subject to dismissal from the board and other penalties as provided by law. [1989 1st ex.s. c 17 § 8.] 13.70.070 13.70.070 Board access to records. Each board shall have access to the following information unless disclosure is otherwise specifically prohibited by law: (1) Any records of the court which are pertinent to the case; (2) Any records of the department pertaining to the child, the child’s parents, or legal custodian; and (3) Any records in the possession of an agency or other entity pertaining to the child, the child’s parents, or legal custodian if such records are relevant to review of the case. [1989 1st ex.s. c 17 § 9.] 13.70.080 13.70.080 Review of case—Employee duties. The department and any other agency directly responsible for the care and placement of the child in substitute care shall require the employee who has primary case-planning responsibility for the case to attend the review. If the employee is unable to attend the review, an employee with knowledge of the case plan shall attend the review. [1989 1st ex.s. c 17 § 10.] 13.70.090 13.70.090 Board—Powers and duties—Immunity. (1) Whenever a member of a board has a potential conflict of interest in a case being reviewed, the member shall declare to the board the nature of the potential conflict prior to participating in the case review. The declaration of the member shall be recorded in the official records of the board and disclosed to all parties participating in the review. If, in the judgment of the majority of the local board, the potential conflict of interest may prevent the member from fairly and objectively reviewing the case, the board may remove the member from participation in the review. (2) The board shall keep accurate records, including a verbatim record of board reviews, and retain these records. (3) The board may hold joint or separate reviews for groups of siblings. (4) The board may disclose information to participants in the board review of a case. Before participating in a board review, each participant shall swear or affirm to the board that the participant shall keep confidential the information disclosed by the board in the case review and to disclose it only as authorized by law. (5) Members of the board shall be held immune from suit and not be held liable in any civil action for recommendations made or activities performed under this chapter. [1989 1st ex.s. c 17 § 11.] 13.70.100 13.70.100 Child in substitute care—No dependency petition—Procedures—Review. (1) This section shall apply to cases where a child has been placed in substitute care pursuant to written parental consent and a dependency petition has not been filed under chapter 13.34 RCW. If a dependency petition is subsequently filed and the child’s placement in substitute care continues pursuant to a court order entered [Title 13 RCW—page 116] in a proceeding under chapter 13.34 RCW, the provisions set forth in RCW 13.70.110 shall apply. (2) Within thirty days following commencement of the placement episode, the department shall send a copy of the written parental consent to the juvenile court with jurisdiction over the geographical area in which the child resides. (3) Within forty-five days following commencement of the placement episode, the court shall assign the child’s case to a board and forward to the board a copy of the written parental consent to placement. (4) The board shall review the case plan for each child in substitute care whose case is assigned to the board by the court. The review shall take place at times set by the board. The first review shall occur within ninety days following commencement of the placement episode. The second review shall occur within six months following commencement of the placement episode. The final board review shall occur no later than six months following the second review unless the child is no longer in substitute care or unless a guardianship order or adoption decree is entered. (5) The board shall prepare written findings and recommendations with respect to: (a) Whether reasonable efforts were made before the placement to prevent or eliminate the need for removal of the child from the home; (b) Whether reasonable efforts have been made subsequent to the placement to make it possible for the child to be returned home; (c) Whether the child has been placed in the least-restrictive setting appropriate to the child’s needs, including whether consideration has been given to placement with the child’s relatives; (d) Whether there is a continuing need for and whether the placement is appropriate; (e) Whether there has been compliance with the case plan; (f) Whether progress has been made toward alleviating the need for placement; (g) A likely date by which the child may be returned home or other permanent plan of care may be implemented; and (h) Other problems, solutions, or alternatives the board determines should be explored. (6) Within ten working days following the review, the board shall send a copy of its findings and recommendations to the child’s parents and their attorneys, the child’s custodians and their attorneys, mature children and their attorneys, and the department and other child placement agencies directly responsible for supervising the child’s placement. If the child is an Indian as defined in the Indian child welfare act, 25 U.S.C. 1901 et seq., a copy of the board’s findings and recommendations shall also be sent to the child’s Indian tribe. (7) If the department is unable or unwilling to implement the board recommendations, the department shall submit to the board, within ten working days after receipt of the findings and recommendations, an implementation report setting forth the reasons why the department in unable or unwilling to implement the board’s recommendations. The report will also set forth the case plan which the department intends to implement. (2006 Ed.) Substitute Care of Children—Review Board System (8) The court shall not review the findings and recommendations of the board in cases where the child has been placed in substitute care with signed parental consent unless a dependency petition has been filed and the child has been taken into custody under RCW 13.34.050. [1993 c 505 § 2; 1989 1st ex.s. c 17 § 12.] 13.70.110 Child in substitute care under dependency proceeding—Procedures—Review. (1) This section shall apply to cases where a child has been placed in substitute care pursuant to a proceeding under chapter 13.34 RCW. (2) Within forty-five days following commencement of the placement episode, the court shall assign the child’s case to a board and forward to the board a copy of the dependency petition and any shelter care or dependency disposition orders which have been entered in the case by the court. (3) The board shall review the case plan for each child whose case is assigned to the board by the court. The review shall take place at times set by the board. The first review shall occur within ninety days following commencement of the placement episode. The second review shall occur within six months following commencement of the placement episode. The next review shall occur within one year after commencement of the placement episode. Within twelve months following commencement of the placement episode, a permanency planning hearing shall be held before the court in accordance with RCW 13.34.145. Thereafter, the court shall assign the child’s case for a board review or a court review hearing pursuant to RCW 13.34.134. A board review or a court review hearing shall take place at least once every six months until the child is no longer within the jurisdiction of the court or no longer in substitute care or until a guardianship order or adoption decree is entered. After the permanency planning hearing, a court review hearing must occur at least once a year as provided in RCW 13.34.138. The board shall review any case where a petition to terminate parental rights has been denied, and such review shall occur as soon as practical but no later than forty-five days after the denial. (4) The board shall prepare written findings and recommendations with respect to: (a) Whether reasonable efforts were made before the placement to prevent or eliminate the need for removal of the child from the home, including whether consideration was given to removing the alleged offender, rather than the child, from the home; (b) Whether reasonable efforts have been made subsequent to the placement to make it possible for the child to be returned home; (c) Whether the child has been placed in the least-restrictive setting appropriate to the child’s needs, including whether consideration has been given to placement with the child’s relatives; (d) Whether there is a continuing need for placement and whether the placement is appropriate; (e) Whether there has been compliance with the case plan; (f) Whether progress has been made toward alleviating the need for placement; (g) A likely date by which the child may be returned home or other permanent plan of care may be implemented; and 13.70.110 (2006 Ed.) 13.70.130 (h) Other problems, solutions, or alternatives the board determines should be explored. (5) Within ten working days following the review, the board shall send a copy of its findings and recommendations to the parents and their attorneys, the child’s custodians and their attorneys, mature children and their attorneys, other attorneys or guardians ad litem appointed by the court to represent children, the department and other child placement agencies directly responsible for supervising the child’s placement, and any prosecuting attorney or attorney general actively involved in the case. If the child is an Indian as defined in the Indian child welfare act, 25 U.S.C. Sec. 1901 et seq., a copy of the board’s findings and recommendations shall also be sent to the child’s Indian tribe. (6) If the department is unable or unwilling to implement the board recommendations, the department shall submit to the board, within ten working days after receipt of the findings and recommendations, an implementation report setting forth the reasons why the department is unable or unwilling to implement the board’s recommendations. The report will also set forth the case plan which the department intends to implement. (7) Within forty-five days following the review, the board shall either: (a) Schedule the case for further review by the board; or (b) Submit to the court the board’s findings and recommendations and the department’s implementation reports, if any. If the board’s recommendations are different from the existing court-ordered case plan, the board shall also file with the court a motion for a review hearing. (8) Within ten days of receipt of the board’s written findings and recommendations and the department’s implementation report, if any, the court shall review the findings and recommendations and implementation reports, if any. The court may on its own motion schedule a review hearing. (9) Unless modified by subsequent court order, the court-ordered case plan and court orders that are in effect at the time that a board reviews a case shall remain in full force and effect. Board findings and recommendations are advisory only and do not in any way modify existing court orders or court-ordered case plans. (10) The findings and recommendations of the board and the department’s implementation report, if any, shall become part of the department’s case file and the court social file pertaining to the child. (11) Nothing in this section shall limit or otherwise modify the rights of any party to a dependency proceeding to request and receive a court review hearing pursuant to the provisions of chapter 13.34 RCW or applicable court rules. [2000 c 122 § 37; 1991 c 127 § 5; 1989 1st ex.s. c 17 § 13.] 13.70.120 13.70.120 Board recommendations. In addition to reviewing individual cases of children in substitute care, boards may make recommendations to the court and the department concerning substitute care services, policies, procedures, and laws. [1989 1st ex.s. c 17 § 14.] 13.70.130 [Title 13 RCW—page 117] 13.70.140 Title 13 RCW: Juvenile Courts and Juvenile Offenders 13.70.130 Funds from public and private sources. The administrative office of the courts may apply for and receive funds from federal, local, and private sources for carrying out the purposes of this chapter. [2005 c 282 § 29; 1989 1st ex.s. c 17 § 15.] 13.70.140 13.70.140 Review by court. A permanency planning hearing shall be held before the court in accordance with RCW 13.34.145. Thereafter, court review hearings shall occur at least once every six months, under RCW 13.34.138, until the child is no longer within the jurisdiction of the court or the child returns home or a guardianship order or adoption decree is entered. The court may review the case more frequently upon the court’s own motion or upon the request of any party to the proceeding. [2000 c 122 § 38; 1993 c 505 § 4; 1989 1st ex.s. c 17 § 16.] return to a school program, or enter a postsecondary education or job-training program. [1994 c 152 § 1.] 13.80.020 13.80.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Court-involved youth" means those youth under the age of twenty-one who, within the past twenty-four months: (a) Have served a court-imposed sentence; (b) Are or have been on probation or parole; or (c) Are involved in a legal proceeding in which the youth may be found to have committed a criminal or juvenile offense and are not participating in a diversion agreement under RCW 13.40.080. (2) "Department" means the department of social and health services. [1994 c 152 § 2.] 13.70.150 13.70.150 Indian children—Local Indian child welfare advisory committee may serve as citizen review board. (1) If a case involves an Indian child, as defined by 25 U.S.C. Sec. 1903 or by department rule or policy, the court may appoint the local Indian child welfare advisory committee to serve as the citizen review board for the case unless otherwise requested by the child’s tribe or by the local Indian child welfare advisory committee. (2) The provisions of RCW 13.70.030, 13.70.040, 13.70.050, and 13.70.090(1) shall not apply to cases in which the court has appointed a committee to serve as a citizen review board. All other provisions of this chapter shall apply to such cases. (3) Within ten days following court appointment of a committee to serve as a citizen review board for a particular case, the committee shall notify the court whether the committee will accept the case for review. If the committee accepts a case for review, the committee shall conduct the review in accordance with the requirements of this chapter except as otherwise provided in this section. If the committee does not accept a case for review, the court shall immediately reassign the case to an available board. (4) The requirements of this chapter do not affect tribal sovereignty and shall not apply to cases involving Indian children who are under tribal court jurisdiction or wardship. [1991 c 127 § 1.] Chapter 13.80 Chapter 13.80 RCW LEARNING AND LIFE SKILLS GRANT PROGRAM Sections 13.80.010 13.80.020 13.80.030 13.80.040 13.80.050 Purpose. Definitions. Program grants. Rules. Evaluation. 13.80.010 13.80.010 Purpose. The learning and life skills grant program is created. The purpose of the program is to provide services, to the extent funds are appropriated, for courtinvolved youth under the age of twenty-one to help the youth attain the necessary life skills and educational skills to obtain a certificate of educational competency, obtain employment, [Title 13 RCW—page 118] 13.80.030 13.80.030 Program grants. (1) The learning and life skills program grants shall be administered by the department. (2) The department shall select individual school districts or groups of school districts through an educational service district that agree to establish a program for courtinvolved youth. To be eligible for grants, the district shall agree to expend for the program no less than the amount of state funds received on a full-time equivalent student basis for the number of full-time equivalent students participating in the program. The school district shall also transmit to the program any federal funds received for students participating in the program. During the 1994-95 school year, only school districts or educational service districts operating a program for court-involved youth on or before June 1, 1993, are eligible for grants. (3) The department shall grant funds, to the extent funds are appropriated, to selected districts for the district to provide or contract for the provision of facilities and case management and counseling services for students in the program. (4) In selecting districts, the department shall require districts to enter into agreements. Districts participating in the program shall agree to the following: To serve only courtinvolved youth in the program and give priority to those students who have few other educational options; to design a program to meet the specific needs of court-involved youth generally and the specific needs of individual students; to collaborate with the county courts and local community organizations; and to define program goals clearly. (5) The department has the authority to withhold grant funds if the terms of the agreement are not met. (6) Selected districts shall establish procedures to keep daily attendance records for students participating in the program. (7) Selected districts shall agree to participate fully in an evaluation of the program by the department. [1994 c 152 § 3.] 13.80.040 13.80.040 Rules. The department may adopt rules, as necessary, to carry out its duties under this program. [1994 c 152 § 4.] (2006 Ed.) Learning and Life Skills Grant Program 13.80.050 13.80.050 Evaluation. The department shall periodically evaluate the program including but not limited to providing data on the youth served, the type and extent of court involvement, the type of services provided, the length of stay of each student in the program, the academic progress of the youth, the recidivism rate, and rates of employment and enrollment in postsecondary education. [1994 c 152 § 5.] 13.80.050 (2006 Ed.) [Title 13 RCW—page 119] Title 14 AERONAUTICS Title 14 Chapters 14.07 Municipal airports—1941 act. 14.08 Municipal airports—1945 act. 14.12 Airport zoning. 14.16 Aircraft and airman regulations. 14.20 Aircraft dealers. 14.30 Western regional short haul air transportation compact. Aeronautics, department of transportation, division of: Chapter 47.68 RCW. Aircraft excise tax: Chapter 82.48 RCW. Assessment of air transportation companies for property tax purposes: Chapter 84.12 RCW. Lease of county property for airport purposes: RCW 36.34.180. Operating aircraft recklessly or under influence of intoxicants or drugs: RCW 47.68.220. Public bodies may retain collection agencies to collect public debts—Fees: RCW 19.16.500. Recycling: RCW 70.93.095. Chapter 14.07 Chapter 14.07 RCW MUNICIPAL AIRPORTS—1941 ACT Sections 14.07.010 14.07.020 14.07.030 14.07.040 General powers—Municipal purpose and public use. Acquisition of property—Eminent domain—Exemption. Appropriation of money or conveyance of property to other municipalities. Acts ratified and confirmed—Chapter cumulative. Lease of property for airport purposes county property: RCW 36.34.180. port district property: RCW 53.08.080. Municipal airports—1945 act: Chapter 14.08 RCW. 14.07.010 General powers—Municipal purpose and public use. Any city, town, port district or county is hereby authorized and empowered by and through their appropriate corporate authorities to acquire, maintain and operate, within or without the boundaries of the counties in which such city, town or port district is situated, sites and other facilities for landings, terminals, housing, repair and care of dirigibles, airplanes, and seaplanes, and seaplanes for the aerial transportation of persons, property and mail or for use of military and naval aircraft, either jointly with another city, town, port district, county, the state of Washington, or the United States of America or severally, and the same is hereby declared to be a municipal purpose and a public use. [1941 c 21 § 1; Rem. Supp. 1941 § 2722-8. Prior: 1933 ex.s. c 3 § 1; 1929 c 93 § 1; 1919 c 48 § 1.] 14.07.010 county, the state of Washington or the United States of America. Any city, town, port district and county is hereby empowered to acquire lands and other property for said purpose by the exercise of the power of eminent domain under the procedure that is or shall be provided by law for the condemnation and appropriation of private property for any of their respective corporate uses, and no property shall be exempt from such condemnation, appropriation or disposition by reason of the same having been or being dedicated, appropriated, or otherwise held to public use: PROVIDED, HOWEVER, That nothing in this chapter shall authorize or entitle any city, town, port district or county to acquire by eminent domain any site or other facilities for landings, terminals, housing, repair and care of dirigibles, airplanes, and seaplanes for aerial transportation of persons, property, mail or military or naval aircraft, now or hereafter owned by any other city, town, port district or county. [1941 c 21 § 2; Rem. Supp. 1941 § 2722-9. Prior: 1933 ex.s. c 3 § 1; 1929 c 93 § 1; 1919 c 48 § 1.] 14.07.030 14.07.030 Appropriation of money or conveyance of property to other municipalities. Any city, town, port district or county is authorized and empowered by and through their corporate authorities to appropriate sums of money and pay the same to any other city, town, port district or county, or deed and convey property already owned to such city, town, port district or county, for use in acquiring and maintaining sites and other facilities for landings, terminals, housing, repair and care of dirigibles, airplanes and seaplanes for the aerial transportation of persons, property, mail or military and naval aircraft and need not require consideration other than the benefit which may be derived by the city, town, port district or county on account of the use therefor and development of such property for said purposes. [1941 c 21 § 3; Rem. Supp. 1941 § 2722-10.] 14.07.040 14.07.040 Acts ratified and confirmed—Chapter cumulative. All acts of any such municipality in the exercise or attempted exercise of any powers herein conferred are hereby ratified and confirmed. The provisions of this chapter shall be cumulative and nothing herein contained shall abridge or limit the powers of the city, town, port district or county under existing law. [1941 c 21 § 4; Rem. Supp. 1941 § 2722-11. Prior: 1933 ex.s. c 3 § 1; 1929 c 93 § 1; 1919 c 48 § 1.] Chapter 14.08 14.07.020 Acquisition of property—Eminent domain—Exemption. Such municipalities may also acquire by purchase, condemnation or lease, lands and other property for said purpose and dispose of such lands and other property, including property acquired by tax foreclosure proceedings, by sale or gift for public use to any city, town, port district, 14.07.020 (2006 Ed.) Chapter 14.08 RCW MUNICIPAL AIRPORTS—1945 ACT Sections 14.08.010 14.08.015 14.08.020 Definition—"Municipality." Definitions. Airports a public purpose. [Title 14 RCW—page 1] 14.08.010 14.08.030 14.08.070 14.08.080 14.08.090 14.08.100 14.08.112 14.08.114 14.08.116 14.08.118 14.08.120 14.08.122 14.08.160 14.08.190 14.08.200 14.08.290 14.08.300 14.08.302 14.08.304 14.08.310 14.08.330 14.08.340 14.08.350 14.08.360 14.08.370 Title 14 RCW: Aeronautics Acquisition of property and easements—Eminent domain— Encroachments prohibited. Prior acquisition of airport property validated. Method of defraying cost. Issuance of bonds—Security. Raising of funds and disposition of revenue. Revenue bonds authorized—Purpose—Special fund— Redemption. Issuance of funding or refunding bonds authorized. Port district revenue bond financing powers not repealed or superseded. Revenue warrants authorized. Specific powers of municipalities operating airports. Adoption of regulations by airport operator for airport rental and use and collection of charges. Federal aid. Establishment of airports on waters and reclaimed land. Joint operations. County airport districts authorized. Governing body of district. Board of airport district commissioners—Petition—Order establishing. Board of airport district commissioners—Members—Election—Terms—Expenses. Assistance to other municipalities. Jurisdiction of municipality over airport and facilities exclusive—Concurrent jurisdiction over adjacent territory—Fire code enforcement by agreement. Interpretation and construction. Severability—1945 c 182. Short title. Repeal. Lease of property for airport purposes county property: RCW 36.34.180. port district property: RCW 53.08.080. Municipal airports—1941 act: Chapter 14.07 RCW. 14.08.010 14.08.010 Definition—"Municipality." (1) For the purpose of this chapter, unless herein specifically otherwise provided, the definitions of words, terms and phrases appearing in the state aeronautic department act of this state are hereby adopted. (2) As used in this chapter, unless the context otherwise requires: "Municipality" means any county, city, town, airport district, or port district of this state; "airport purposes" means and includes airport, restricted landing area and other air navigation facility purposes. [1987 c 254 § 3; 1945 c 182 § 1; Rem. Supp. 1945 § 2722-30.] Reviser’s note: The state aeronautic department act (chapter 252, Laws of 1945) contained no definitions. It was repealed by chapter 165, Laws of 1947, codified herein as chapter 47.68 RCW. 14.08.015 Definitions. (1) "Airport charges" means charges of an airport operator for tie-downs, landing fees, the occupation of a hangar by an aircraft, and all other charges owing or to become owing under a contract between an aircraft owner and an airport operator or under an officially adopted regulation and/or tariff including, but not limited to, the cost of sale and related expenses. (2) "Aircraft" means every species of aircraft or other mechanical device capable of being used for the purpose of aerial flight. (3) "Airport operator" means any municipality as defined in RCW 14.08.010(2) or state agency which owns and/or operates an airport. (4) "Owner" means (a) every natural person, firm, partnership, corporation, association, trust, estate, or organization, or agent thereof with actual or apparent authority, who expressly or impliedly contracts for use of airport property for landing, parking, or hangaring aircraft, and (b) includes 14.08.015 [Title 14 RCW—page 2] the registered owner or owners and lienholders of record with the federal aviation administration. [1987 c 254 § 1.] 14.08.020 14.08.020 Airports a public purpose. The acquisition of any lands for the purpose of establishing airports or other air navigation facilities; the acquisition of airport protection privileges; the acquisition, establishment, construction, enlargement, improvement, maintenance, equipment and operation of airports and other air navigation facilities, and the exercise of any other powers herein granted to municipalities, are hereby declared to be public, governmental, county and municipal functions, exercised for a public purpose, and matters of public necessity, and such lands and other property, easements and privileges acquired and used by such municipalities in the manner and for the purposes enumerated in this chapter shall and are hereby declared to be acquired and used for public, governmental, county and municipal purposes and as a matter of public necessity. [1961 c 74 § 1; 1945 c 182 § 3; Rem. Supp. 1945 § 2722-32.] 14.08.030 14.08.030 Acquisition of property and easements— Eminent domain—Encroachments prohibited. (1) Every municipality is hereby authorized, through its governing body, to acquire property, real or personal, for the purpose of establishing, constructing, and enlarging airports and other air navigation facilities and to acquire, establish, construct, enlarge, improve, maintain, equip, operate, and regulate such airports and other air navigation facilities and structures and other property incidental to their operation, either within or without the territorial limits of such municipality and within or without this state; to make, prior to any such acquisition, investigations, surveys, and plans; to construct, install and maintain airport facilities for the servicing of aircraft and for the comfort and accommodation of air travelers; and to purchase and sell equipment and supplies as an incident to the operation of its airport properties. It may not, however, acquire or take over any airport or other air navigation facility owned or controlled by any other municipality of the state without the consent of such municipality. It may use for airport purposes any available property that is now or may at any time hereafter be owned or controlled by it. Such air navigation facilities as are established on airports shall be supplementary to and coordinated in design and operation with those established and operated by the federal and state governments. (2) Property needed by a municipality for an airport or restricted landing area, or for the enlargement of either, or for other airport purposes, may be acquired by purchase, gift, devise, lease or other means if such municipality is able to agree with the owners of said property on the terms of such acquisition, and otherwise by condemnation in the manner provided by the law under which such municipality is authorized to acquire like property for public purposes, full power to exercise the right of eminent domain for such purposes being hereby granted every municipality both within and without its territorial limits. If but one municipality is involved and the charter of such municipality prescribes a method of acquiring property by condemnation, proceedings shall be had pursuant to the provisions of such charter and may be followed as to property within or without its territo(2006 Ed.) Municipal Airports—1945 Act rial limits. Any title to real property so acquired shall be in fee simple, absolute and unqualified in any way. The fact that the property needed has been acquired by the owner under power of eminent domain, shall not prevent its acquisition by the municipality by the exercise of the right of eminent domain herein conferred. (3) Where necessary, in order to provide unobstructed air space for the landing and taking off of aircraft utilizing airports or restricted landing areas acquired or operated under the provisions of this chapter, every municipality is authorized to acquire, in the same manner as is provided for the acquisition of property for airport purposes, easements through or other interests in air spaces over land or water, interests in airport hazards outside the boundaries of the airports or restricted landing areas and such other airport protection privileges as are necessary to insure safe approaches to the landing areas of said airports or restricted landing areas and the safe and efficient operation thereof. It is also hereby authorized to acquire, in the same manner, the right or easement, for a term of years or perpetually, to place or maintain suitable marks for the daytime marking and suitable lights for the nighttime marking of airport hazards, including the right of ingress and egress to or from such airport hazards, for the purpose of maintaining and repairing such lights and marks. This authority shall not be so construed as to limit any right, power or authority to zone property adjacent to airports and restricted landing areas under the provisions of any law of this state. (4) It shall be unlawful for anyone to build, rebuild, create, or cause to be built, rebuilt, or created any object, or plant, cause to be planted or permit to grow higher any tree or trees or other vegetation, which shall encroach upon any airport protection privileges acquired pursuant to the provisions of this section. Any such encroachment is declared to be a public nuisance and may be abated in the manner prescribed by law for the abatement of public nuisances, or the municipality in charge of the airport or restricted landing area for which airport protection privileges have been acquired as in this section provided may go upon the land of others and remove any such encroachment without being liable for damages in so doing. [1945 c 182 § 2; Rem. Supp. 1945 § 272231. Formerly RCW 14.08.030, 14.08.040, 14.08.050, and 14.08.060.] Reviser’s note: Caption for 1945 c 182 § 2, reads as follows: "Municipalities may acquire airports." 14.08.070 14.08.070 Prior acquisition of airport property validated. Any acquisition of property within or without the limits of any municipality for airports and other air navigation facilities, or of airport protection privileges, heretofore made by any such municipality in any manner, together with the conveyance and acceptance thereof, is hereby legalized and made valid and effective. [1945 c 182 § 4; Rem. Supp. 1945 § 2722-33.] 14.08.080 14.08.080 Method of defraying cost. The cost of investigating, surveying, planning, acquiring, establishing, constructing, enlarging or improving or equipping airports and other air navigation facilities, and the sites therefor, including structures and other property incidental to their operation, in accordance with the provisions of this chapter (2006 Ed.) 14.08.112 may be paid for by appropriation of moneys available therefor, or wholly or partly from the proceeds of bonds of the municipality, as the governing body of the municipality shall determine. The word "cost" includes awards in condemnation proceedings and rentals where an acquisition is by lease. [1945 c 182 § 5; Rem. Supp. 1945 § 2722-34.] Reviser’s note: Caption for 1945 c 182 § 5 reads as follows: "Purchase price and costs of improvement may be paid from appropriations or bond issues." 14.08.090 14.08.090 Issuance of bonds—Security. Any bonds to be issued by any municipality pursuant to the provisions of this chapter shall be authorized and issued in the manner and within the limitation prescribed by the Constitution and laws of this state or the charter of the municipality for the issuance and authorization of bonds thereof for public purposes generally, secured by the revenues of the airport, a mortgage on facilities, or a general tax levy as allowed by law, if the plan and system resolution are approved by the secretary of transportation or the state auditor. [1995 c 301 § 32; 1984 c 7 § 4; 1945 c 182 § 6; Rem. Supp. 1945 § 2722-35.] Severability—1984 c 7: See note following RCW 47.01.141. Levy of taxes: Chapter 84.52 RCW. Public contracts and indebtedness: Title 39 RCW. 14.08.100 14.08.100 Raising of funds and disposition of revenue. (1) The governing bodies having power to appropriate moneys within the municipalities in this state for the purpose of acquiring, establishing, constructing, enlarging, improving, maintaining, equipping or operating airports and other air navigation facilities under the provisions of this chapter, are hereby authorized to appropriate and cause to be raised by taxation or otherwise in such municipalities, moneys sufficient to carry out therein the provisions of this chapter. (2) The revenues obtained from the ownership, control and operation of any such airport or other air navigation facility shall be used, first, to finance the maintenance and operating expenses thereof, and, second, to make payments of interest on and current principal requirements of any outstanding bonds or certificates issued for the acquisition or improvement thereof, and to make payment of interest on any mortgage heretofore made. Revenues in excess of the foregoing requirements may be applied to finance the extension or improvement of the airport or other air navigation facilities, and to construct, maintain, lease, and otherwise finance buildings and facilities for industrial or commercial use: PROVIDED, That such portion of the airport property to be devoted to said industrial or commercial use be first found by the governing body to be not required for airport purposes. [1959 c 231 § 1; 1945 c 182 § 7; Rem. Supp. 1945 § 2722-36. Formerly RCW 14.08.100, 14.08.110.] 14.08.112 14.08.112 Revenue bonds authorized—Purpose— Special fund—Redemption. (1) Municipalities, including any governmental subdivision which may be hereafter authorized by law to own, control and operate an airport or other air navigation facility, are hereby authorized to issue revenue bonds to provide part or all of the funds required to accomplish the powers granted them by chapter 14.08 RCW, and to construct, acquire by purchase or condemnation, equip, add [Title 14 RCW—page 3] 14.08.114 Title 14 RCW: Aeronautics to, extend, enlarge, improve, replace and repair airports, facilities and structures thereon including but not being limited to facilities for the servicing of aircraft and for the comfort and accommodation of air travelers, and other properties incidental to the operation of airports and to pay all costs incidental thereto. The legislative body of the municipality shall create a special fund for the sole purpose of paying the principal of and interest on the bonds of each issue, into which fund the legislative body shall obligate the municipality to pay an amount of the gross revenue derived from its ownership, control, use and operation of the airport and all airport facilities and structures thereon and used and operated in connection therewith, including but not being limited to fees charged for all uses of the airport and facilities, rentals derived from leases of part or all of the airport, buildings and any or all air navigation facilities thereon, fees derived from concessions granted, and proceeds of sales of part or all of the airport and any or all buildings and structures thereon or equipment therefor, sufficient to pay the principal and interest as the same shall become due, and to maintain adequate reserves therefor if necessary. Revenue bonds and the interest thereon shall be payable only out of and shall be a valid claim of the owner thereof only as against the special fund and the revenue pledged to it, and shall not constitute a general indebtedness of the municipality. Each revenue bond and any interest coupon attached thereto shall name the fund from which it is payable and state upon its face that it is only payable therefrom; however, all revenue bonds and any interest coupons issued under RCW 14.08.112 and 14.08.114 shall be negotiable instruments within the provisions and intent of the negotiable instruments law of this state. Each issue of revenue bonds may be bearer coupon bonds or may be registered either as to principal only or as to principal and interest as provided in RCW 39.46.030; shall be in the denomination or denominations the legislative body of the municipality shall deem proper; shall be payable at the time or times and at the place or places as shall be determined by the legislative body; shall bear interest at such rate or rates as authorized by the legislative body; shall be signed on behalf of the municipality by the chairman of the county legislative authority, mayor of the city or town, president of the port commission, and similar officer of any other municipality, shall be attested by the county auditor, the clerk or comptroller of the city or town, the secretary of the port commission, and similar officer of any other municipality, one of which signatures may be a facsimile signature, and shall have the seal of the municipality impressed thereon; any interest coupons attached thereto shall be signed by the facsimile signatures of said officials. Revenue bonds shall be sold in the manner as the legislative body of the municipality shall deem best, either at public or private sale. The municipality at the time of the issuance of revenue bonds may provide covenants as it may deem necessary to secure and guarantee the payment of the principal thereof and interest thereon, including but not being limited to covenants to create a reserve fund or account and to authorize the payment or deposit of certain moneys therein for the purpose of securing or guaranteeing the payment of the principal and interest, to establish and maintain rates, charges, fees, rentals and sales prices sufficient to pay the principal and interest [Title 14 RCW—page 4] and to maintain an adequate coverage over annual debt service, to appoint a trustee for the bond owners and a trustee for the safeguarding and disbursing of the proceeds of sale of the bonds and to fix the powers and duties of the trustee or trustees, and to make any and all other covenants as the legislative body may deem necessary to its best interest and that of its inhabitants to accomplish the most advantageous sale possible of the bonds. The legislative body may also provide that revenue bonds payable out of the same source or sources may later be issued on a parity with revenue bonds being issued and sold. The legislative body of the municipality may include an amount for working capital and an amount necessary for interest during the period of construction of the airport or any facilities plus six months, in the principal amount of any revenue bond issue; if it deems it to the best interest of the municipality and its inhabitants, it may provide in any contract for the construction or acquisition of an airport or facilities that payment therefor shall be made only in revenue bonds at the par value thereof. If the municipality or any of its officers shall fail to carry out any of its or their obligations, pledges or covenants made in the authorization, issuance and sale of bonds, the owner of any bond or the trustee may bring action against the municipality and/or said officers to compel the performance of any or all of the covenants. (2) Notwithstanding subsection (1) of this section, such bonds may be issued and sold in accordance with chapter 39.46 RCW. [1983 c 167 § 16; 1970 ex.s. c 56 § 3; 1969 ex.s. c 232 § 2; 1957 c 53 § 1.] Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. Purpose—1970 ex.s. c 56: See note following RCW 39.52.020. Validation—Saving—Severability—1969 ex.s. c 232: See notes following RCW 39.52.020. 14.08.114 14.08.114 Issuance of funding or refunding bonds authorized. When any municipality has outstanding revenue bonds or warrants payable solely from revenues derived from the ownership, control, use and operation of the airport and all its facilities and structures thereon used and operated in connection therewith, the legislative body thereof may provide for the issuance of funding or refunding bonds to fund or refund outstanding warrants or bonds or any part thereof at or before maturity, and may combine various outstanding warrants and various series and issues of outstanding bonds in the amount thereof to be funded or refunded and may issue funding or refunding bonds to pay any redemption premium and interest payable on the outstanding revenue warrants or bonds being funded or refunded. The legislative body of the municipality shall create a special fund for the sole purpose of paying the principal of and interest on funding or refunding bonds, into which fund the legislative body shall obligate the municipality to pay an amount of the gross revenue derived from its ownership, control, use and operation of the airport and all airport facilities and structures thereon as provided in RCW 14.08.112, sufficient to pay the principal and interest as the same shall become due, and to maintain adequate reserves therefor if necessary. Bonds and the interest thereon shall be payable only out of and shall be a valid claim of the owner thereof only as against the special fund and the (2006 Ed.) Municipal Airports—1945 Act revenue pledged to it, and shall not constitute a general indebtedness of the municipality. The net interest cost to maturity on funding or refunding bonds shall be at such rate or rates as shall be authorized by the legislative body. The municipality may exchange funding or refunding bonds at par for the warrants or bonds which are being funded or refunded, or it may sell the funding or refunding bonds in the manner as it shall deem for the best interest of the municipality and its inhabitants, either at public or private sale. Funding or refunding bonds shall be governed by and issued under and in accordance with the provisions of RCW 14.08.112 with respect to revenue bonds unless there is a specific provision to the contrary in this section. [1983 c 167 § 17; 1970 ex.s. c 56 § 4; 1969 ex.s. c 232 § 3; 1957 c 53 § 2.] Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. Purpose—1970 ex.s. c 56: See note following RCW 39.52.020. Validation—Saving—Severability—1969 ex.s. c 232: See notes following RCW 39.52.020. 14.08.116 Port district revenue bond financing powers not repealed or superseded. Nothing in RCW 14.08.112 and 14.08.114 shall repeal or supersede revenue bond financing powers otherwise granted to port districts under the provisions of chapter 53.40 RCW. [1957 c 53 § 3.] 14.08.116 14.08.118 Revenue warrants authorized. Municipalities, including any governmental subdivision which may be hereafter authorized by law to own, control and operate an airport, or other air navigation facility, may issue revenue warrants for the same purposes for which they may issue revenue bonds, and the provisions of RCW 14.08.112 as now or hereafter amended relating to the terms, conditions, covenants, issuance, and sale of revenue bonds shall be applicable to such revenue warrants. Revenue warrants so issued shall not constitute a general indebtedness of the municipality. [1971 ex.s. c 176 § 1.] 14.08.118 14.08.120 Specific powers of municipalities operating airports. In addition to the general powers conferred in this chapter, and without limitation thereof, a municipality that has established or may hereafter establish airports, restricted landing areas, or other air navigation facilities, or that has acquired or set apart or may hereafter acquire or set apart real property for that purpose or purposes is authorized: (1) To vest authority for the construction, enlargement, improvement, maintenance, equipment, operation, and regulation thereof in an officer, a board, or body of the municipality by ordinance or resolution that prescribes the powers and duties of the officer, board, or body; and the municipality may also vest authority for industrial and commercial development in a municipal airport commission consisting of at least five resident taxpayers of the municipality to be appointed by the governing board of the municipality by an ordinance or resolution that includes (a) the terms of office, which may not exceed six years and which shall be staggered so that not more than three terms will expire in the same year, (b) the method of appointment and filling vacancies, (c) a provision that there shall be no compensation but may provide for a per diem of not to exceed twenty-five dollars per 14.08.120 (2006 Ed.) 14.08.120 day plus travel expenses for time spent on commission business, (d) the powers and duties of the commission, and (e) any other matters necessary to the exercise of the powers relating to industrial and commercial development. The expense of the construction, enlargement, improvement, maintenance, equipment, industrial and commercial development, operation, and regulation are the responsibility of the municipality. (2) To adopt and amend all needed rules, regulations, and ordinances for the management, government, and use of any properties under its control, whether within or outside the territorial limits of the municipality; to provide fire protection for the airport, including the acquisition and operation of fire protection equipment and facilities, and the right to contract with any private body or political subdivision of the state for the furnishing of such fire protection; to appoint airport guards or police, with full police powers; to fix by ordinance or resolution, as may be appropriate, penalties for the violation of the rules, regulations, and ordinances, and enforce those penalties in the same manner in which penalties prescribed by other rules, regulations, and ordinances of the municipality are enforced. For the purposes of such management and government and direction of public use, that part of all highways, roads, streets, avenues, boulevards, and territory that adjoins the limits of any airport or restricted landing area acquired or maintained under the provisions of this chapter is under like control and management of the municipality. It may also adopt and enact rules, regulations, and ordinances designed to safeguard the public upon or beyond the limits of private airports or landing strips within the municipality or its police jurisdiction against the perils and hazards of instrumentalities used in aerial navigation. Rules, regulations, and ordinances shall be published as provided by general law or the charter of the municipality for the publication of similar rules, regulations, and ordinances. They shall conform to and be consistent with the laws of this state and the rules of the state department of transportation and shall be kept in conformity, as nearly as may be, with the then current federal legislation governing aeronautics and the regulations duly promulgated thereunder and the rules and standards issued from time to time pursuant thereto. (3) To create a special airport fund, and provide that all receipts from the operation of the airport be deposited in the fund, which fund shall remain intact from year to year and may be pledged to the payment of aviation bonds, or kept for future maintenance, construction, or operation of airports or airport facilities. (4) To lease airports or other air navigation facilities, or real property acquired or set apart for airport purposes, to private parties, any municipal or state government or the national government, or any department thereof, for operation; to lease or assign to private parties, any municipal or state government or the national government, or any department thereof, for operation or use consistent with the purposes of this chapter, space, area, improvements, or equipment of such airports; to authorize its lessees to construct, alter, repair, or improve the leased premises at the cost of the lessee and to reimburse its lessees for such cost, provided the cost is paid solely out of funds fully collected from the airport’s tenants; to sell any part of such airports, other air navigation facilities or real property to any municipal or state [Title 14 RCW—page 5] 14.08.122 Title 14 RCW: Aeronautics government, or to the United States or any department or instrumentality thereof, for aeronautical purposes or purposes incidental thereto, and to confer the privileges of concessions of supplying upon its airports goods, commodities, things, services, and facilities: PROVIDED, That in each case in so doing the public is not deprived of its rightful, equal, and uniform use thereof. (5) Acting through its governing body, to sell or lease any property, real or personal, acquired for airport purposes and belonging to the municipality, which, in the judgment of its governing body, may not be required for aircraft landings, aircraft takeoffs or related aeronautic purposes, in accordance with the laws of this state, or the provisions of the charter of the municipality, governing the sale or leasing of similar municipally owned property. The municipal airport commission, if one has been organized and appointed under subsection (1) of this section, may lease any airport property for aircraft landings, aircraft takeoffs, or related aeronautic purposes. If there is a finding by the governing body of the municipality that any airport property, real or personal, is not required for aircraft landings, aircraft takeoffs, or related aeronautic purposes, then the municipal airport commission may lease such space, land, area, or improvements, or construct improvements, or take leases back for financing purposes, grant concessions on such space, land, area, or improvements, all for industrial or commercial purposes, by private negotiation and under such terms and conditions that seem just and proper to the municipal airport commission. Any such lease of real property for aircraft manufacturing or aircraft industrial purposes or to any manufacturer of aircraft or aircraft parts or for any other business, manufacturing, or industrial purpose or operation relating to, identified with, or in any way dependent upon the use, operation, or maintenance of the airport, or for any commercial or industrial purpose may be made for any period not to exceed seventy-five years, but any such lease of real property made for a longer period than ten years shall contain provisions requiring the municipality and the lessee to permit the rentals for each fiveyear period thereafter, to be readjusted at the commencement of each such period if written request for readjustment is given by either party to the other at least thirty days before the commencement of the five-year period for which the readjustment is requested. If the parties cannot agree upon the rentals for the five-year period, they shall submit to have the disputed rentals for the period adjusted by arbitration. The lessee shall pick one arbitrator, and the governing body of the municipality shall pick one, and the two so chosen shall select a third. After a review of all pertinent facts the board of arbitrators may increase or decrease such rentals or continue the previous rate thereof. The proceeds of the sale of any property the purchase price of which was obtained by the sale of bonds shall be deposited in the bond sinking fund. If all the proceeds of the sale are not needed to pay the principal of bonds remaining unpaid, the remainder shall be paid into the airport fund of the municipality. The proceeds of sales of property the purchase price of which was paid from appropriations of tax funds shall be paid into the airport fund of the municipality. (6) To determine the charges or rental for the use of any properties under its control and the charges for any services or accommodations, and the terms and conditions under [Title 14 RCW—page 6] which such properties may be used: PROVIDED, That in all cases the public is not deprived of its rightful, equal, and uniform use of the property. Charges shall be reasonable and uniform for the same class of service and established with due regard to the property and improvements used and the expense of operation to the municipality. The municipality shall have and may enforce liens, as provided by law for liens and enforcement thereof, for repairs to or improvement or storage or care of any personal property, to enforce the payment of any such charges. (7) To impose a customer facility charge upon customers of rental car companies accessing the airport for the purposes of financing, designing, constructing, operating, and maintaining consolidated rental car facilities and common use transportation equipment and facilities which are used to transport the customer between the consolidated car rental facilities and other airport facilities. The airport operator may require the rental car companies to collect the facility charges, and any facility charges so collected shall be deposited in a trust account for the benefit of the airport operator and remitted at the direction of the airport operator, but no more often than once per month. The charge shall be calculated on a per-day basis. Facility charges may not exceed the reasonable costs of financing, designing, constructing, operating, and maintaining the consolidated car rental facilities and common use transportation equipment and facilities and may not be used for any other purpose. (8) To exercise all powers necessarily incidental to the exercise of the general and special powers granted in this section. [2005 c 76 § 1; 1990 c 215 § 1; 1984 c 7 § 5; 1961 c 74 § 2; 1959 c 231 § 2; 1957 c 14 § 1. Prior: 1953 c 178 § 1; 1945 c 182 § 8; Rem. Supp. 1945 § 2722-37. Formerly RCW 14.08.120 through 14.08.150 and 14.08.320.] Severability—1984 c 7: See note following RCW 47.01.141. Continuation of existing law—1957 c 14: "The provisions of section 1 of this act shall be construed as a restatement and continuation of existing law, and not as a new enactment. It shall not be construed as affecting any existing right acquired under its provisions, nor as affecting any proceeding instituted thereunder." [1957 c 14 § 2.] Validating—1957 c 14: "The provisions of section 1 of this act are retroactive and any actions or proceedings had or taken under the provisions of RCW 14.08.120 through 14.08.150 or 14.08.320 are hereby ratified, validated and confirmed." [1957 c 14 § 3.] Appointment of police officers by port districts operating airports: RCW 53.08.280. 14.08.122 14.08.122 Adoption of regulations by airport operator for airport rental and use and collection of charges. An airport operator may adopt all regulations necessary for rental and use of airport facilities and for the expeditious collection of airport charges. The regulations may also establish procedures for the enforcement of these regulations by the airport operator. The regulations shall include the following: (1) Procedures authorizing airport personnel to take reasonable measures including, but not limited to, the use of chains, ropes, and locks to secure aircraft within the airport facility so that the aircraft are in the possession and control of the airport operator and cannot be removed from the airport. These procedures may be used if an owner hangaring or parking an aircraft at the airport fails, after being notified that charges are owing and of the owner’s right to contest that such charges are owing, to pay the airport charges owed or to (2006 Ed.) Municipal Airports—1945 Act commence legal proceedings. Notification shall be by registered mail to the owner at his or her last known address. In the case of an aircraft where an owner’s address cannot be determined or obtained after reasonable effort, the airport operator need not give such notice prior to securing the aircraft. At the time of securing the aircraft, an authorized airport employee shall attach to the aircraft a readily visible notice and shall make a reasonable attempt to send a copy of the notice to the owner at his or her last known address by registered mail, return receipt requested, and an additional copy of the notice by first class mail. The notice shall be of a reasonable size and shall contain the following information: (a) The date and time the notice was attached; (b) A reasonable description of the aircraft; (c) The identity of the authorized employee; (d) The amount of airport charges owing; (e) A statement that if the account is not paid in full within ninety days from the time the notice was attached the aircraft may be sold at public auction to satisfy the airport charges; (f) A statement of the owner’s right to commence legal proceedings to contest the charges owing and to have the aircraft released upon posting of an adequate cash bond or other security; and (g) The address and telephone number where additional information may be obtained concerning the release of the aircraft. (2) Procedures authorizing airport personnel at their discretion to move aircraft to an area within the airport operator’s control or for storage with private persons under the airport operator’s control as bailees of the airport facility. Costs of any such procedure shall be paid by the aircraft’s owner. (3) If an aircraft is secured under subsection (1) of this section or moved under conditions authorized by subsection (2) of this section the owner who is obligated for hangaring or parking or other airport charges may regain possession of the aircraft by: (a) Making arrangements satisfactory with the airport operator for the immediate removal of the aircraft from the airport’s hangar, or making arrangements for authorized parking; and (b) By making payment to the airport operator of all airport charges or by posting with the airport operator a sufficient cash bond or other security acceptable to such operator, to be held in trust by the airport operator pending written agreement of the parties with respect to payment by the aircraft owner of the amount owing, or pending resolution of charges in a civil action in a court of competent jurisdiction. Upon written agreement or judicial resolution, the trust shall terminate and the airport operator shall receive so much of the bond or other security as is necessary to satisfy the agreement, or any judgment, costs, and interest as may be awarded to the airport operator. The balance shall be refunded immediately to the owner at the owner’s last known address by registered mail, return receipt requested. The airport operator shall send to the owner by first class mail a notice that the balance of funds was forwarded to him or her by registered mail, return receipt requested. (4) If an aircraft parked or hangared at an airport is abandoned, the airport operator may authorize the public sale of (2006 Ed.) 14.08.122 the aircraft by authorized personnel to the highest and best bidder for cash as follows: (a) If an aircraft has been secured by the airport operator under subsection (1) of this section and is not released to the owner under the bonding provisions of this section within ninety days after notifying or attempting to notify the owner under subsection (1) of this section, or in all other cases, for ninety days after the airport operator secures the aircraft, the aircraft shall be conclusively presumed to have been abandoned by the owner; (b) Before the aircraft is sold, the owner of the aircraft shall be given at least twenty days’ notice of sale by registered mail, return receipt requested, if the name and address of the owner are known, and the notice of sale shall be published at least once, more than ten but less than twenty days before the sale, in a newspaper of general circulation in the county in which the airport is located. The notice shall include the name of the aircraft, if any, its aircraft identification number, the last known owner and address, the time and place of sale, the amount of airport charges that will be owing at the time of sale, a reasonable description of the aircraft to be sold and a statement that the airport operator may bid all or part of its airport charges at the sale and may become a purchaser at the sale; (c) Before the aircraft is sold, any person seeking to redeem an impounded aircraft under this section may commence a lawsuit in the superior court of the county in which the aircraft was impounded, to contest the validity of the impoundment or the amount of airport charges owing. Such lawsuit must be commenced within ten days of the date the notification was provided under subsection (1) of this section, or the right to a hearing is waived and the owner is liable for any airport charges owing the airport operator. In the event of litigation, the prevailing party is entitled to reasonable attorneys’ fees and costs; (d) The proceeds of a sale under this section shall first be applied to payment of airport charges owed. The balance, if any, shall be deposited with the department of revenue to be held in trust for the owner or owners and lienholders for a period of one year. If more than one owner appears on the aircraft title, and/or if any liens appear on the title, the department must, if a claim is made, interplead the balance into a court of competent jurisdiction for distribution. The department may release the balance to the legal owner provided that the claim is made within one year of sale and only one legal owner and no lienholders appear on the title. If no valid claim is made within one year of the date of sale, the excess funds from the sale shall be deposited in the aircraft search and rescue, safety, and education account created in *RCW 47.68.236. If the sale is for a sum less than the applicable airport charges, the airport operator is entitled to assert a claim against the aircraft owner or owners for the deficiency; (e) In the event that no one purchases the aircraft at a sale, or that the aircraft is not removed from the premises or other arrangements are not made within ten days of the sale, title to the aircraft shall revert to the airport operator. (5) The regulations authorized under this section shall be enforceable only if: (a) The airport operator has had its tariff and/or regulations, including any and all regulations authorizing the impoundment of an aircraft that is the subject of delinquent [Title 14 RCW—page 7] 14.08.160 Title 14 RCW: Aeronautics airport charges, conspicuously posted at the airport manager’s office at all times.[;] (b) All impounding remedies available to the airport operator are included in any written contract for airport charges between an airport operator and an aircraft owner; and (c) All rules and regulations authorized under this section are adopted either pursuant to chapter 34.05 RCW, or by resolution of the appropriate legislative authority, as applicable. [1999 c 302 § 1; 1987 c 254 § 2.] *Reviser’s note: RCW 47.68.236 was repealed by 2005 c 341 § 5. 14.08.160 14.08.160 Federal aid. (1) A municipality is authorized to accept, receive, and receipt for federal moneys and other moneys, either public or private, for the acquisition, construction, enlargement, improvement, maintenance, equipment, or operation of airports and other air navigation facilities and sites therefor, and to comply with the provisions of the laws of the United States and any rules and regulations made thereunder for the expenditure of federal moneys upon airports and other air navigation facilities. (2) The governing body of any municipality is authorized to designate the state secretary of transportation as its agent to accept, receive, and receipt for federal moneys on its behalf for airport purposes and to contract for the acquisition, construction, enlargement, improvement, maintenance, equipment, or operation of airports or other air navigation facilities, and may enter into an agreement with the secretary of transportation prescribing the terms and conditions of such agency in accordance with federal laws, rules, and regulations and applicable laws of this state. Such moneys as are paid over by the United States government shall be paid over to the municipality under such terms and conditions as may be imposed by the United States government in making the grant. (3) All contracts for the acquisition, construction, enlargement, improvement, maintenance, equipment, or operation of airports or other air navigation facilities, made by the municipality itself or through the agency of the state secretary of transportation, shall be made pursuant to the laws of this state governing the making of like contracts, except that where the acquisition, construction, improvement, enlargement, maintenance, equipment, or operation is financed wholly or partly with federal moneys, the municipality or the secretary of transportation, as its agent, may let contracts in the manner prescribed by the federal authorities, acting under the laws of the United States, and any rules or regulations made thereunder, notwithstanding any other state law to the contrary. [1984 c 7 § 6; 1945 c 182 § 9; Rem. Supp. 1945 § 2722-38. Formerly RCW 14.08.160, 14.08.170, and 14.08.180.] Severability—1984 c 7: See note following RCW 47.01.141. 14.08.190 14.08.190 Establishment of airports on waters and reclaimed land. (1) The powers herein granted to a municipality to establish and maintain airports shall include the power to establish and maintain such airports in, over and upon any public waters of this state within the limits or jurisdiction of or bordering on the municipality, any submerged land under such public waters, and any artificial or reclaimed [Title 14 RCW—page 8] land which before the artificial making or reclamation thereof constituted a portion of the submerged land under such public waters, and as well the power to construct and maintain terminal buildings, landing floats, causeways, roadways and bridges for approaches to or connecting with the airport, and landing floats and breakwaters for the protection of any such airport. (2) All the other powers herein granted municipalities with reference to airports on land are granted to them with reference to such airports in, over and upon public waters, submerged land under public waters, and artificial or reclaimed land. [1945 c 182 § 10; Rem. Supp. 1945 § 272239.] 14.08.200 Joint operations. (1) All powers, rights, and authority granted to any municipality in this chapter may be exercised and enjoyed by two or more municipalities, or by this state and one or more municipalities therein, acting jointly, either within or outside the territorial limits of either or any of the municipalities and within or outside this state, or by this state or any municipality therein acting jointly with any other state or municipality therein, either within or outside this state if the laws of the other state permit such joint action. (2) For the purposes of this section only, unless another intention clearly appears or the context requires otherwise, this state is included in the term "municipality," and all the powers conferred upon municipalities in this chapter, if not otherwise conferred by law, are conferred upon this state when acting jointly with any municipality or municipalities. Where reference is made to the "governing body" of a municipality, that term means, as to the state, its secretary of transportation. (3) Any two or more municipalities may enter into agreements with each other, duly authorized by ordinances or resolution, as may be appropriate, for joint action under this section. Concurrent action by the governing bodies of the municipalities involved constitutes joint action. (4) Each such agreement shall specify its terms; the proportionate interest which each municipality shall have in the property, facilities, and privileges involved, and the proportion of preliminary costs, cost of acquisition, establishment, construction, enlargement, improvement, and equipment, and of expenses of maintenance, operation, and regulation to be borne by each, and make such other provisions as may be necessary to carry out the provisions of this section. It shall provide for amendments thereof and for conditions and methods of termination; for the disposition of all or any part of the property, facilities, and privileges jointly owned if the property, facilities, and privileges, or any part thereof, cease to be used for the purposes provided in this section or if the agreement is terminated, and for the distribution of the proceeds received upon any such disposition, and of any funds or other property jointly owned and undisposed of, and the assumption or payment of any indebtedness arising from the joint venture which remains unpaid, upon any such disposition or upon a termination of the agreement. (5) Municipalities acting jointly as authorized in this section shall create a board from the inhabitants of the municipalities for the purpose of acquiring property for, establishing, constructing, enlarging, improving, maintaining, equip14.08.200 (2006 Ed.) Municipal Airports—1945 Act ping, operating, and regulating the airports and other air navigation facilities and airport protection privileges to be jointly acquired, controlled, and operated. The board shall consist of members to be appointed by the governing body of each municipality involved, the number to be appointed by each to be provided for by the agreement for the joint venture. Each member shall serve for such time and upon such terms as to compensation, if any, as may be provided for in the agreement. (6) Each such board shall organize, select officers for terms to be fixed by the agreement, and adopt and from time to time amend rules of procedure. (7) Such board may exercise, on behalf of the municipalities acting jointly by which it is appointed, all the powers of each of the municipalities granted by this chapter, except as provided in this section. Real property, airports, restricted landing areas, air protection privileges, or personal property costing in excess of a sum to be fixed by the joint agreement, may be acquired, and condemnation proceedings may be instituted, only by approval of the governing bodies of each of the municipalities involved. Upon the approval of the governing body, or if no approval is necessary then upon the board’s own determination, such property may be acquired by private negotiation under such terms and conditions as seem just and proper to the board. The total amount of expenditures to be made by the board for any purpose in any calendar year shall be determined by the municipalities involved by the approval by each on or before the preceding December 1st, of a budget for the ensuing calendar year, which budget may be amended or supplemented by joint resolution of the municipalities involved during the calendar year for which the original budget was approved. Rules and regulations provided for by RCW 14.08.120(2) become effective only upon approval of each of the appointing governing bodies. No real property and no airport, other navigation facility, or air protection privilege, owned jointly, may be disposed of by the board by sale except by authority of all the appointing governing bodies, but the board may lease space, land area, or improvements and grant concessions on airports for aeronautical purposes, or other purposes which will not interfere with the aeronautical purposes of such airport, air navigation facility, or air protection privilege by private negotiation under such terms and conditions as seem just and proper to the board, subject to the provisions of RCW 14.08.120(4). Subject to the provisions of the agreement for the joint venture, and when it appears to the board to be in the best interests of the municipalities involved, the board may sell any personal property by private negotiations under such terms and conditions as seem just and proper to the board. (8) Each municipality, acting jointly with another pursuant to the provisions of this section, is authorized and empowered to enact, concurrently with the other municipalities involved, such ordinances as are provided for by RCW 14.08.120(2), and to fix by such ordinances penalties for the violation thereof. When so adopted, the ordinances have the same force and effect within the municipalities and on any property jointly controlled by them or adjacent thereto, whether within or outside the territorial limits of either or any of them, as ordinances of each municipality involved, and may be enforced in any one of the municipalities in the same manner as are its individual ordinances. The consent of the (2006 Ed.) 14.08.290 state secretary of transportation to any such ordinance, where the state is a party to the joint venture, is equivalent to the enactment of the ordinance by a municipality. The publication provided for in RCW 14.08.120(2) shall be made in each municipality involved in the manner provided by law or charter for publication of its individual ordinances. (9) Condemnation proceedings shall be instituted, in the names of the municipalities jointly, and the property acquired shall be held by the municipalities as tenants in common. The provisions of RCW 14.08.030(2) apply to such proceedings. (10) For the purpose of providing funds for necessary expenditures in carrying out the provisions of this section, a joint fund shall be created and maintained, into which each of the municipalities involved shall deposit its proportionate share as provided by the joint agreement. Such funds shall be provided for by bond issues, tax levies, and appropriations made by each municipality in the same manner as though it were acting separately under the authority of this chapter. The revenues obtained from the ownership, control, and operation of the airports and other air navigation facilities jointly controlled shall be paid into the fund, to be expended as provided in this chapter. Revenues in excess of cost of maintenance and operating expenses of the joint properties shall be divided or allowed to accumulate for future anticipated expenditures as may be provided in the original agreement, or amendments thereto, for the joint venture. The action of municipalities involved in heretofore permitting such revenues to so accumulate is declared to be legal and valid. (11) The governing body may by joint directive designate some person having experience in financial or fiscal matters as treasurer of the joint operating agency. Such a treasurer shall possess all the powers, responsibilities, and duties that the county treasurer and auditor possess for a joint operating agency related to creating and maintaining funds, issuing warrants, and investing surplus funds. The governing body may, and if the treasurer is not the county treasurer it shall, require a bond, with a surety company authorized to do business in the state of Washington, in an amount and under the terms and conditions which the governing body finds will protect the joint operating agency. The premium on such bond shall be paid by the joint operating agency. All disbursements from the joint fund shall be made by order of the board in accordance with such rules and regulations and for such purposes as the appointing governing bodies, acting jointly, shall prescribe. If no such joint directive is made by the governing appointing bodies to designate a treasurer, then the provisions of RCW 43.09.285 apply to such joint fund. (12) Specific performance of the provisions of any joint agreement entered into as provided for in this section may be enforced as against any party thereto by the other party or parties thereto. [1987 c 254 § 4; 1984 c 7 § 7; 1967 c 182 § 1; 1949 c 120 § 1; 1945 c 182 § 11; Rem. Supp. 1949 § 272240. Formerly RCW 14.08.200 through 14.08.280.] Severability—1984 c 7: See note following RCW 47.01.141. Joint operations by municipal corporations or political subdivisions, deposit and control of funds: RCW 43.09.285. 14.08.290 14.08.290 County airport districts authorized. The establishment of county airport districts is hereby authorized. Written application for the formation of such a district signed [Title 14 RCW—page 9] 14.08.300 Title 14 RCW: Aeronautics by at least one hundred registered voters, who reside and own real estate in the proposed districts, shall be filed with the board of county commissioners. The board shall immediately transmit the application to the proper registrar of voters for the proposed district who shall check the names, residence and registration of the signers with the records of his office and shall, as soon as possible, certify to said board the number of qualified signers. If the requisite number of signers is so certified, the board shall thereupon place the proposition: "Shall a county airport district be established in the following area: (describing the proposed district)?," upon the ballot for vote of the people of the proposed district at the next election, general or special. If a majority of the voters on such proposition shall vote in favor of the proposition, the board, shall, by resolution, declare the district established. If the requisite number of qualified persons have not signed the application, further signatures may be added and certified until the requisite number have signed and the above procedure shall be thereafter followed. The area of such district may be the area of the county including incorporated cities and towns, or such portion or portions thereof as the board may determine to be the most feasible for establishing an airport. When established, an airport district shall be a municipality as defined in this chapter and entitled to all the powers conferred by this chapter and exercised by municipal corporations in this state. The airport district is hereby empowered to levy not more than seventyfive cents per thousand dollars of assessed value of the property lying within the said airport district: PROVIDED, HOWEVER, Such levy shall not be made unless first approved at any election called for the purpose of voting on such levy. [1973 1st ex.s. c 195 § 1; 1949 c 194 § 1; 1945 c 182 § 12; Rem. Supp. 1949 § 2722-41.] Severability—Effective dates and termination dates—Construction—1973 1st ex.s. c 195: See notes following RCW 84.52.043. 14.08.300 14.08.300 Governing body of district. The governing body of a county airport district shall be the board of county commissioners except as in this chapter provided. [1951 c 114 § 1; 1945 c 182 § 13; Rem. Supp. 1945 § 2722-42.] 14.08.302 14.08.302 Board of airport district commissioners— Petition—Order establishing. One hundred or more registered voters in any county airport district may make, sign and file a petition with the board of county commissioners asking that thereafter the airport district be governed by a board of airport district commissioners. Within ten days after receipt of such petition, the board of county commissioners shall check the petition. If the petition be found adequate and to be signed by the prescribed number of legal voters, the board of county commissioners shall within a reasonable time call a public hearing, notice of which shall be given by publication one week in advance thereof in a newspaper circulating within the district, at which arguments shall be heard for or against the proposal and if it shall appear to the county commissioners that the residents of the district so desire they shall enter an order declaring that the county airport district shall be governed by a board of three airport district commissioners. [1951 c 114 § 2.] [Title 14 RCW—page 10] 14.08.304 14.08.304 Board of airport district commissioners— Members—Election—Terms—Expenses. The board of airport district commissioners shall consist of three members. The first commissioners shall be appointed by the county legislative authority. At the next general district election, held as provided in *RCW 29.13.020, three airport district commissioners shall be elected. The terms of office of airport district commissioners shall be two years, or until their successors are elected and qualified and have assumed office in accordance with *RCW 29.04.170. Members of the board of airport district commissioners shall be elected at each regular district general election on a nonpartisan basis in accordance with the general election law. Vacancies on the board of airport district commissioners shall occur and shall be filled as provided in chapter 42.12 RCW. Members of the board of airport district commissioners shall receive no compensation for their services, but shall be reimbursed for actual necessary traveling and sustenance expenses incurred while engaged on official business. [1994 c 223 § 4; 1979 ex.s. c 126 § 3; 1951 c 114 § 3.] *Reviser’s note: RCW 29.13.020 and 29.04.170 were recodified as RCW 29A.04.330 and 29A.20.040, respectively, pursuant to 2003 c 111 § 2401, effective July 1, 2004. Purpose—1979 ex.s. c 126: See RCW 29A.20.040(1). Nonpartisan primaries and elections: Chapter 29A.52 RCW. 14.08.310 14.08.310 Assistance to other municipalities. Whenever the governing body of any municipality determines that the public interest and the interests of the municipality will be served by assisting any other municipality in exercising the powers and authority granted by this chapter, such first-mentioned municipality is expressly authorized and empowered to furnish such assistance by gift, or lease with or without rental, of real property, by the donation, lease with or without rental, or loan, of personal property, and by the appropriation of moneys, which may be provided for by taxation or the issuance of bonds in the same manner as funds might be provided for the same purposes if the municipality were exercising the powers heretofore granted in its own behalf. [1945 c 182 § 14; Rem. Supp. 1945 § 2722-43.] 14.08.330 14.08.330 Jurisdiction of municipality over airport and facilities exclusive—Concurrent jurisdiction over adjacent territory—Fire code enforcement by agreement. Every airport and other air navigation facility controlled and operated by any municipality, or jointly controlled and operated pursuant to the provisions of this chapter, shall, subject to federal and state laws, rules, and regulations, be under the exclusive jurisdiction and control of the municipality or municipalities controlling and operating it. The municipality or municipalities shall have concurrent jurisdiction over the adjacent territory described in RCW 14.08.120(2). No other municipality in which the airport or air navigation facility is located shall have any police jurisdiction of the same or any authority to charge or exact any license fees or occupation taxes for the operations. However, by agreement with the municipality operating and controlling the airport or air navigation facility, a municipality in which an airport or air navigation facility is located may be responsible for the administration and enforcement of the uniform fire code, as adopted by that municipality under RCW 19.27.040, on that portion (2006 Ed.) Airport Zoning of any airport or air navigation facility located within its jurisdictional boundaries. [1985 c 246 § 1; 1945 c 182 § 15; Rem. Supp. 1945 § 2722-44.] 14.08.340 Interpretation and construction. This act shall be so interpreted and construed as to make uniform so far as possible the laws and regulations of this state and other states and of the government of the United States having to do with the subject of aeronautics. [1945 c 182 § 17; Rem. Supp. 1945 § 2722-46.] 14.08.340 14.08.350 Severability—1945 c 182. If any provision of this act or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the provisions or application of this act which can be given effect without the invalid provisions or application, and to this end the provisions of this act are declared to be severable. [1945 c 182 § 16.] 14.12.030 (5) "Person" means any individual, firm, copartnership, corporation, company, association, joint stock association or body politic, including the state and its political subdivisions, and includes any trustee, receiver, assignee, or other similar representative thereof. (6) "Structure" means any object constructed or installed by man, including, but without limitation, buildings, towers, smokestacks, and overhead transmission lines. (7) "Tree" means any object of natural growth. [1945 c 174 § 1; Rem. Supp. 1945 § 2722-15.] 14.08.350 14.08.360 Short title. This act may be cited as the "Revised Airports Act." [1945 c 182 § 18.] 14.08.360 14.08.370 Repeal. All acts and parts of acts in conflict with this act are hereby repealed. [1945 c 182 § 19.] 14.08.370 Chapter 14.12 Chapter 14.12 RCW AIRPORT ZONING Sections 14.12.010 14.12.020 14.12.030 14.12.050 14.12.070 14.12.090 14.12.110 14.12.140 14.12.180 14.12.190 14.12.200 14.12.210 14.12.220 14.12.900 14.12.910 Definitions. Airport hazards contrary to public interest. Power to adopt airport zoning regulations. Relation to comprehensive zoning regulations. Procedure for adoption of zoning regulations. Airport zoning requirements. Permits and variances. Board of adjustment. Administration of airport zoning regulations. Appeals. Judicial review. Enforcement and remedies. Acquisition of air rights. Severability—1945 c 174. Short title. Municipal airports, subject to county’s comprehensive plan and zoning ordinances: RCW 35.22.415. Planning commissions: Chapter 35.63 RCW. 14.12.010 Definitions. As used in this chapter, unless the context otherwise requires: (1) "Airports" means any area of land or water designed and set aside for the landing and taking-off of aircraft and utilized or to be utilized in the interest of the public for such purposes. (2) "Airport hazard" means any structure or tree or use of land which obstructs the airspace required for the flight of aircraft in landing or taking-off at an airport or is otherwise hazardous to such landing or taking-off of aircraft. (3) "Airport hazard area" means any area of land or water upon which an airport hazard might be established if not prevented as provided in this chapter. (4) "Political subdivision" means any county, city, town, port district or other municipal or quasi municipal corporation authorized by law to acquire, own or operate an airport. 14.12.010 (2006 Ed.) 14.12.020 14.12.020 Airport hazards contrary to public interest. It is hereby found that an airport hazard endangers the lives and property of users of the airport and of occupants of land in its vicinity, and also, if of the obstruction type, in effect reduces the size of the area available for the landing, taking-off and maneuvering of aircraft thus tending to destroy or impair the utility of the airport and the public investment therein. Accordingly, it is hereby declared: (1) That the creation or establishment of an airport hazard is a public nuisance and an injury to the community served by the airport in question; (2) that it is therefore necessary in the interest of the public health, public safety, and general welfare that the creation or establishment of airport hazards be prevented; and (3) that this should be accomplished, to the extent legally possible, by exercise of the police power, without compensation. It is further declared that both the prevention of the creation or establishment of airport hazards and the elimination, removal, alteration, mitigation, or marking and lighting of existing airport hazards are public purposes for which political subdivisions may raise and expend public funds and acquire land or property interests therein. [1945 c 174 § 2; Rem. Supp. 1945 § 2722-16.] 14.12.030 14.12.030 Power to adopt airport zoning regulations. (1) In order to prevent the creation or establishment of airport hazards, every political subdivision having an airport hazard area within its territorial limits may adopt, administer, and enforce, under the police power and in the manner and upon the conditions hereinafter prescribed, airport zoning regulations for such airport hazard area, which regulations may divide such area into zones, and, within such zones, specify the land uses permitted and regulate and restrict the height to which structures and trees may be erected or allowed to grow. (2) Where an airport is owned or controlled by a political subdivision and any airport hazard area appertaining to such airport is located outside the territorial limits of said political subdivision, the political subdivision owning or controlling the airport and the political subdivision within which the airport hazard area is located may, by ordinance or resolution duly adopted, create a joint airport zoning board, which board shall have the same power to adopt, administer and enforce airport zoning regulations applicable to the airport hazard area in question as that vested by subsection (1) in the political subdivision within which such area is located. Each such joint board shall have as members two representatives appointed by each political subdivision participating in its creation and in addition a chairman elected by a majority of the members so appointed. [1945 c 174 § 3; Rem. Supp. 1945 § 2722-17. Formerly RCW 14.12.030 and 14.12.040.] [Title 14 RCW—page 11] 14.12.050 Title 14 RCW: Aeronautics 14.12.050 Relation to comprehensive zoning regulations. (1) Incorporation. In the event that a political subdivision has adopted, or hereafter adopts, a comprehensive zoning ordinance regulating, among other things, the height of buildings, any airport zoning regulations applicable to the same area or portion thereof, may be incorporated in and made a part of such comprehensive zoning regulations, and be administered and enforced in connection therewith. (2) Conflict. In the event of conflict between any airport zoning regulations adopted under this chapter and any other regulations applicable to the same area, whether the conflict be with respect to the height of structures or trees, the use of land, or any other matter, and whether such other regulations were adopted by the political subdivision which adopted the airport zoning regulations or by some other political subdivision, the more stringent limitation or requirement shall govern and prevail. [1945 c 174 § 4; Rem. Supp. 1945 § 272218. Formerly RCW 14.12.050 and 14.12.060.] 14.12.050 14.12.070 Procedure for adoption of zoning regulations. (1) Notice and hearing. No airport zoning regulations shall be adopted, amended, or changed under this chapter except by action of the legislative body of the political subdivision in question, or the joint board provided for in RCW 14.12.030(2), after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days’ notice of the hearing shall be published in an official paper, or a paper of general circulation, in the political subdivision or subdivisions in which is located the airport hazard area to be zoned. (2) Airport zoning commission. Prior to the initial zoning of any airport hazard area under this chapter, the political subdivision or joint airport zoning board which is to adopt the regulations shall appoint a commission, to be known as the airport zoning commission, to recommend the boundaries of the various zones to be established and the regulations to be adopted therefor. Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report, and the legislative body of the political subdivision or the joint airport zoning board shall not hold its public hearings or take other action until it has received the final report of such commission. Where a city plan commission or comprehensive zoning commission already exists, it may be appointed as the airport zoning commission. [1945 c 174 § 5; Rem. Supp. 1945 § 2722-19. Formerly RCW 14.12.070 and 14.12.080.] 14.12.070 Public meetings: Chapter 42.30 RCW. 14.12.090 Airport zoning requirements. (1) Reasonableness. All airport zoning regulations adopted under this chapter shall be reasonable and none shall impose any requirement or restriction which is not reasonably necessary to effectuate the purposes of this chapter. In determining what regulations it may adopt, each political subdivision and joint airport zoning board shall consider, among other things, the character of the flying operations expected to be conducted at the airport, the nature of the terrain within the airport hazard area, the character of the neighborhood, and the uses to which the property to be zoned is put and adaptable. (2) Nonconforming uses. No airport zoning regulations adopted under this chapter shall require the removal, lower14.12.090 [Title 14 RCW—page 12] ing, or other change or alteration of any structure or tree not conforming to the regulations when adopted or amended, or otherwise interfere with the continuance of any nonconforming use, except as provided in RCW 14.12.110(3). [1945 c 174 § 6; Rem. Supp. 1945 § 2722-20. Formerly RCW 14.12.090 and 14.12.100.] 14.12.110 14.12.110 Permits and variances. (1) Permits. Any airport zoning regulations adopted under this chapter may require that a permit be obtained before any new structure or use may be constructed or established and before any existing use or structure may be substantially changed or substantially altered or repaired. In any event, however, all such regulations shall provide that before any nonconforming structure or tree may be replaced, substantially altered or repaired, rebuilt, allowed to grow higher, or replanted, a permit must be secured from the administrative agency authorized to administer and enforce the regulations, authorizing such replacement, change or repair. No permit shall be granted that would allow the establishment or creation of an airport hazard or permit a nonconforming structure or tree or nonconforming use to be made or become higher or become a greater hazard to air navigation than it was when the applicable regulation was adopted or than it is when the application for a permit is made. Except as provided herein, all applications for permits shall be granted. (2) Variances. Any person desiring to erect any structure, or increase the height of any structure, or permit the growth of any tree, or otherwise use his property in violation of airport zoning regulations adopted under this chapter, may apply to the board of adjustment for a variance from the zoning regulations in question. Such variances shall be allowed where a literal application or enforcement of the regulations would result in practical difficulty or unnecessary hardship and the relief granted would not be contrary to the public interest but do substantial justice and be in accordance with the spirit of the regulations and this chapter: PROVIDED, That any variance may be allowed subject to any reasonable conditions that the board of adjustment may deem necessary to effectuate the purposes of this chapter. (3) Hazard marking and lighting. In granting any permit or variance under this section, the administrative agency or board of adjustment may, if it deems such action advisable to effectuate the purposes of this chapter and reasonable in the circumstances, so condition such permit or variance as to require the owner of the structure or tree in question to permit the political subdivision, at its own expense, to install, operate, and maintain thereon such markers and lights as may be necessary to indicate to flyers the presence of an airport hazard. [1945 c 174 § 7; Rem. Supp. 1945 § 2722-21. Formerly RCW 14.12.110, 14.12.120, and 14.12.130.] 14.12.140 14.12.140 Board of adjustment. (1) All airport zoning regulations adopted under this chapter shall provide for a board of adjustment to have and exercise the following powers: (a) To hear and decide appeals from any order, requirement, decision, or determination made by the administrative agency in the enforcement of the airport zoning regulations, as provided in RCW 14.12.190. (2006 Ed.) Airport Zoning (b) To hear and decide any special exceptions to the terms of the airport zoning regulations upon which such board may be required to pass under such regulations. (c) To hear and decide specific variances under RCW 14.12.110(2). (2) Where a zoning board of appeals or adjustment already exists, it may be appointed as the board of adjustment. Otherwise, the board of adjustment shall consist of five members, each to be appointed for a term of three years by the authority adopting the regulations and to be removable by the appointing authority for cause, upon written charges and after public hearing. (3) The concurring vote of a majority of the members of the board of adjustment shall be sufficient to reverse any order, requirement, decision, or determination of the administrative agency, or to decide in favor of the applicant on any matter upon which it is required to pass under the airport zoning regulations, or to effect any variation in such regulations. (4) The board shall adopt rules in accordance with the provisions of the ordinance or resolution by which it was created. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All hearings of the board shall be public. The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall immediately be filed in the office of the board and shall be a public record. [1945 c 174 § 10; Rem. Supp. 1945 § 2722-24. Formerly RCW 14.12.140, 14.12.150, 14.12.160, and 14.12.170.] 14.12.180 14.12.180 Administration of airport zoning regulations. All airport zoning regulations adopted under this chapter shall provide for the administration and enforcement of such regulations by an administrative agency which may be an agency created by such regulations or any official, board, or other existing agency of the political subdivision adopting the regulations or of one of the political subdivisions which participated in the creation of the joint airport zoning board adopting the regulations, if satisfactory to that political subdivision, but in no case shall such administrative agency be or include any member of the board of adjustment. The duties of any administrative agency designated pursuant to this chapter shall include that of hearing and deciding all permits under RCW 14.12.110(1), but such agency shall not have or exercise any of the powers herein delegated to the board of adjustment. [1945 c 174 § 9; Rem. Supp. 1945 § 2722-23.] 14.12.190 14.12.190 Appeals. (1) Any person aggrieved, or taxpayer affected, by any decision of an administrative agency made in its administration of airport zoning regulations adopted under this chapter, or any governing body of a political subdivision, or any joint airport zoning board, which is of the opinion that a decision or [of] such an administrative agency is an improper application of airport zoning regulations of concern to such governing body or board, may appeal to the board of adjustment authorized to hear and decide appeals from the decisions of such administrative agency. (2006 Ed.) 14.12.200 (2) All appeals taken under this section must be taken within a reasonable time, as provided by the rules of the board, by filing with the agency from which the appeal is taken and with the board, a notice of appeal specifying the grounds thereof. The agency from which the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. (3) An appeal shall stay all proceedings in furtherance of the action appealed from, unless the agency from which the appeal is taken certifies to the board, after the notice of appeal has been filed with it, that by reason of the facts stated in the certificate a stay would, in its opinion, cause imminent peril to life or property. In such cases proceedings shall not be stayed otherwise than by order of the board or notice to the agency from which the appeal is taken and on due cause shown. (4) The board shall fix a reasonable time for the hearing of appeals, give public notice and due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing any party may appear in person or by agent or by attorney. (5) The board may, in conformity with the provisions of this chapter, reverse or affirm wholly or partly, or modify, the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the administrative agency from which the appeal is taken. [1945 c 174 § 8; Rem. Supp. 1945 § 2722-22.] 14.12.200 14.12.200 Judicial review. (1) Any person aggrieved, or taxpayer affected, by any decision of the board of adjustment, or any governing body of a political subdivision or any joint airport zoning board which is of the opinion that a decision of a board of adjustment is illegal, may present to the superior court of the county in which the airport is located a verified petition setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition shall be presented to the court within thirty days after the decision is filed in the office of the board. (2) Upon presentation of such petition the court may allow a writ of review directed to the board of adjustment to review such decision of the board. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a supersedeas. (3) The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified. (4) The court shall have exclusive jurisdiction to affirm, modify, or set aside the decision brought up for review, in whole or in part, and if need be, to order further proceedings by the board of adjustment. The findings of fact by the board, if supported by substantial evidence, shall be accepted by the court as conclusive, and no objection to a decision of the board shall be considered by the court unless such objection shall have been urged before the board, or, if it was not so [Title 14 RCW—page 13] 14.12.210 Title 14 RCW: Aeronautics urged, unless there were reasonable grounds for failure to do so. (5) Costs shall not be allowed against the board of adjustment unless it appears to the court that it acted with gross negligence, in bad faith, or with malice, in making the decision appealed from. (6) In any case in which airport zoning regulations adopted under this chapter, although generally reasonable, are held by a court to interfere with the use or enjoyment of a particular structure or parcel of land to such extent, or to be so onerous in their application to such a structure or parcel of land, as to constitute a taking or deprivation of that property in violation of the Constitution of this state or the Constitution of the United States, such holding shall not affect the application of such regulations to other structures and parcels of land. [1945 c 174 § 11; Rem. Supp. 1945 § 2722-25.] end the provisions of this chapter are declared to be severable. [1945 c 174 § 14.] 14.12.910 Short title. This act shall be known and may be cited as the "Airport Zoning Act." [1945 c 174 § 15.] 14.12.910 Chapter 14.16 RCW AIRCRAFT AND AIRMAN REGULATIONS Chapter 14.16 Sections 14.16.010 14.16.020 14.16.030 14.16.040 14.16.050 14.16.060 14.16.080 14.16.090 14.16.900 Definitions. Federal licensing of aircraft required. Federal licensing of airmen. Possession of license. Traffic rules. Penalty. Downed aircraft rescue transmitter required—Exceptions. Certain aircraft to carry survival kit—Contents—Misdemeanor to operate without—Exceptions. Severability—1929 c 157. 14.12.210 14.12.210 Enforcement and remedies. Each violation of this chapter or of any regulations, orders, or rulings promulgated or made pursuant to this chapter, shall constitute a misdemeanor, and each day a violation continues to exist shall constitute a separate offense. In addition, the political subdivision or agency adopting zoning regulations under this chapter may institute in any court of competent jurisdiction, an action to prevent, restrain, correct or abate any violation of this chapter, or of airport zoning regulations adopted under this chapter, or of any order or ruling made in connection with their administration or enforcement, and the court shall adjudge to the plaintiff such relief, by way of injunction (which may be mandatory) or otherwise, as may be proper under all the facts and circumstances of the case, in order fully to effectuate the purposes of this chapter and of the regulations adopted and orders and rulings made pursuant thereto. [1945 c 174 § 12; Rem. Supp. 1945 § 2722-26.] 14.12.220 14.12.220 Acquisition of air rights. In any case in which: (1) It is desired to remove, lower, or otherwise terminate a nonconforming structure or use; or (2) the approach protection necessary cannot, because of constitutional limitations, be provided by airport zoning regulations under this chapter; or (3) it appears advisable that the necessary approach protection be provided by acquisition of property rights rather than by airport zoning regulations, the political subdivision within which the property or nonconforming use is located or the political subdivision owning the airport or served by it may acquire, by purchase, grant, or condemnation in the manner provided by the law under which political subdivisions are authorized to acquire real property for public purposes, such air right, avigation casement [easement], or other estate or interest in the property or nonconforming structure or use in question as may be necessary to effectuate the purposes of this chapter. [1945 c 174 § 13; Rem. Supp. 1945 § 2722-27.] 14.12.900 14.12.900 Severability—1945 c 174. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect the provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this [Title 14 RCW—page 14] Operating aircraft recklessly or under influence of intoxicants or drugs: RCW 47.68.220. 14.16.010 Definitions. In this chapter "aircraft" means any contrivance now known or hereafter invented, used, or designed for navigation of or flight in the air, except a parachute or other contrivance designed for such navigation but used primarily as safety equipment. The term "airman" means any individual (including the person in command and any pilot, mechanic, or member of the crew) who engages in the navigation of aircraft while under way and any individual who is in charge of the inspection, overhauling, or repairing of aircraft. "Operating aircraft" means performing the services of aircraft pilot. "Person" means any individual, proprietorship, partnership, corporation, or trust. "Downed aircraft rescue transmitter" means a transmitter of a type approved by the state department of transportation or the federal aviation administration with sufficient transmission power and reliability that it will be automatically activated upon the crash of an aircraft so as to transmit a signal on a preset frequency so that it will be effective to assist in the location of the downed aircraft. "Air school" means air school as defined in RCW 47.68.020(11). [1984 c 7 § 8; 1969 ex.s. c 205 § 1; 1929 c 157 § 1; RRS § 2722-1.] 14.16.010 Severability—1984 c 7: See note following RCW 47.01.141. 14.16.020 Federal licensing of aircraft required. The public safety requiring and the advantages of uniform regulation making it desirable in the interest of aeronautical progress that aircraft operating within this state should conform with respect to design, construction, and airworthiness to the standards prescribed by the United States government with respect to navigation of aircraft subject to its jurisdiction, it shall be unlawful for any person to navigate any aircraft within this state unless it is licensed and registered by the department of commerce of the United States in the manner prescribed by the lawful rules and regulations of the United States government then in force: PROVIDED, HOWEVER, That for the first thirty days after entrance into this state this section shall not apply to aircraft owned by a nonresident of this state other than aircraft carrying persons or property for hire, if such aircraft is licensed and registered and displays identification marks in compliance with the laws 14.16.020 (2006 Ed.) Aircraft Dealers of the state, territory or foreign country of which its owner is a resident. [1929 c 157 § 2; RRS § 2722-2.] Aircraft certificates required: RCW 47.68.230. Federal aviation program: Title 49, chapter 20, U.S.C. 14.16.030 14.16.030 Federal licensing of airmen. The public safety requiring and the advantages of uniform regulation making it desirable in the interest of aeronautical progress that a person serving as an airman within this state should have the qualifications necessary for obtaining and holding the class of license required by the United States government with respect to such an airman subject to its jurisdiction, it shall be unlawful for any person to serve as an airman within this state unless he have such a license: PROVIDED, HOWEVER, That for the first thirty days after entrance into this state this section shall not apply to nonresidents of this state operating aircraft within this state, other than aircraft carrying persons or property for hire, if such person shall have fully complied with the laws of the state, territory or foreign country of his residence respecting the licensing of airmen. [1929 c 157 § 3; RRS § 2722-3.] Airman and airwoman certificates required: RCW 47.68.230. Federal aviation program: Title 49, chapter 20, U.S.C. 14.16.040 14.16.040 Possession of license. The certificate of the license herein required shall be kept in the personal possession of the licensee when he is serving as an airman within this state, and must be presented for inspection upon the demand of any passenger, any peace officer of this state, or any official, manager, or person in charge of any airport or landing field in this state upon which he shall land. [1929 c 157 § 4; RRS § 2722-4.] 14.16.050 14.16.050 Traffic rules. The public safety requiring and the advantages of uniform regulation making it desirable in the interest of aeronautical progress that any person operating aircraft within this state should conform to the air traffic rules now or hereafter established by the secretary of commerce of the United States for the navigation of aircraft subject to the jurisdiction of the United States, it shall be unlawful for any person to navigate any aircraft within this state otherwise than in conformity with said air traffic rules. [1929 c 157 § 5; RRS § 2722-5.] Federal aviation program: Title 49, chapter 20, U.S.C. Chapter 14.20 owned by and used exclusively in the service of the United States government; (3) aircraft registered under the laws of a foreign country; (4) aircraft owned by the manufacturer thereof while being operated for test or experimental purposes, or for the purpose of training crews for purchasers of the aircraft; and (5) aircraft used by any air carrier or supplemental air carrier operating in accordance with the provisions of a certificate of public conveyance and necessity under the provisions of the Federal Aviation Act of 1958, Public Law 85-726, as amended. [1987 c 273 § 1; 1969 ex.s. c 205 § 2.] 14.16.090 14.16.090 Certain aircraft to carry survival kit— Contents—Misdemeanor to operate without—Exceptions. (1) Any aircraft used to carry persons or property for compensation, or any aircraft that is rented or leased without a pilot shall be equipped with a survival kit consisting of those items prescribed by the department of transportation, which shall include, at least the following: (a) A tube tent or similar sheltering device; (b) a horn, whistle, or similar audible device capable of emitting a signal one-quarter of a mile; (c) a mirror; (d) matches; (e) a candle and/or another firestarting device; and (f) survival instruction. (2) It shall be unlawful for any person to operate such aircraft without such a survival kit: PROVIDED, HOWEVER, That nothing in this section shall apply to: (a) Instructional flights by an air school, with the exception of solo flights by students; (b) aircraft owned by and exclusively in the service of the United States government; (c) aircraft registered under the laws of a foreign country; (d) aircraft owned by the manufacturer thereof while being operated for test or experimental purposes, or for the purpose of training crews for purchasers of the aircraft; and (e) aircraft used by any air carrier or supplemental air carrier operating in accordance with the provisions of a certificate of public conveyance and necessity under the provisions of the federal aviation act of 1958, Public Law 85-726, as amended. [1987 c 273 § 2.] 14.16.900 14.16.900 Severability—1929 c 157. If any provision of this act is declared unconstitutional or the application thereof to any person or circumstance is held invalid, the validity of the remainder of the act and the application of such provision to other persons and circumstances shall not be affected thereby. [1929 c 157 § 7.] 14.16.060 14.16.060 Penalty. Any person who violates any provision of this chapter shall be guilty of an offense punishable by a fine of not exceeding five hundred dollars or by imprisonment not exceeding six months, or by both such fine and imprisonment. [1929 c 157 § 6; RRS § 2722-6.] 14.16.080 14.16.080 Downed aircraft rescue transmitter required—Exceptions. Any aircraft used to carry persons or property for compensation, or any aircraft that is rented or leased without a pilot, shall be equipped with a fully functional downed aircraft rescue transmitter and it shall be unlawful for any person to operate such aircraft without such a transmitter: PROVIDED, HOWEVER, Nothing in this section shall apply to (1) instructional flights by an air school, with the exception of solo flights by students; (2) aircraft (2006 Ed.) Chapter 14.20 Chapter 14.20 RCW AIRCRAFT DEALERS Sections 14.20.010 14.20.020 14.20.030 14.20.040 14.20.050 14.20.060 14.20.070 14.20.080 14.20.090 14.20.100 Definitions. Aircraft dealer licensure—Penalty. Application for license—Contents. Certificates. License and certificate fees. Payment of fees—Fund—Possession and display of licenses and certificates. Surety bonds. Branches and subagencies. Denial, suspension, revocation of license—Grounds. Appeal from secretary’s order. Aircraft excise tax: Chapter 82.48 RCW. [Title 14 RCW—page 15] 14.20.010 Title 14 RCW: Aeronautics 14.20.010 Definitions. When used in this chapter and RCW 47.68.250 and 82.48.100: (1) "Person" includes a firm, partnership, or corporation; (2) "Dealer" means a person engaged in the business of selling, exchanging, or acting as a broker of aircraft or who offers for sale two or more aircraft within a calendar year; (3) "Aircraft" means any weight-carrying device or structure for navigation of the air, designed to be supported by the air, but which is heavier than air and is mechanically driven; (4) "Secretary" means the secretary of the state department of transportation. [1993 c 208 § 1; 1984 c 7 § 9; 1955 c 150 § 1.] 14.20.010 Severability—1984 c 7: See note following RCW 47.01.141. 14.20.020 Aircraft dealer licensure—Penalty. (1) It is unlawful for a person to act as an aircraft dealer without a currently valid aircraft dealer’s license issued under this chapter. (2)(a) Except as provided in (b) of this subsection, a person acting as an aircraft dealer without a currently issued aircraft dealer’s license is guilty of a misdemeanor and shall be punished by either a fine of not more than one thousand dollars or by imprisonment for not more than ninety days, or both. (b) A person convicted on a second or subsequent conviction within a five-year period is guilty of a gross misdemeanor and shall be punished by either a fine of not more than five thousand dollars or by imprisonment for not more than one year, or both. (3) In addition to, or in lieu of, the penalties provided in this section, or as a condition to the suspension of a sentence that may be imposed under this section, the court in its discretion may prohibit the violator from acting as an aircraft dealer within the state for such a period as it may determine but not to exceed one year. Violation of the duly imposed prohibition of the court may be treated as a separate offense under this section or as contempt of court. (4) Any person applying for an aircraft dealer’s license shall do so at the office of the secretary on a form provided for that purpose by the secretary. [2003 c 53 § 102; 1993 c 208 § 2; 1984 c 7 § 10; 1983 c 135 § 1; 1955 c 150 § 2.] 14.20.020 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1984 c 7: See note following RCW 47.01.141. 14.20.030 Application for license—Contents. Applications for an aircraft dealer’s license shall contain: (1) The name under which the dealer’s business is conducted and the address of the dealer’s established place of business; (2) The residence address of each owner, director, or principal officer of the aircraft dealer, and, if a foreign corporation, the state of incorporation and names of its resident officers or managers; (3) The make or makes of aircraft for which franchised, if any; (4) Whether or not used aircraft are dealt in; (5) A certificate that the applicant is a dealer having an established place of business at the address shown on the application, which place of business is open during regular 14.20.030 [Title 14 RCW—page 16] business hours to inspection by the secretary or his representatives; and (6) Whether or not the applicant has ever been denied an aircraft dealer’s license or has had one which has been denied, suspended, or revoked. [1984 c 7 § 11; 1955 c 150 § 3.] Severability—1984 c 7: See note following RCW 47.01.141. 14.20.040 14.20.040 Certificates. During such time as aircraft are held by a dealer for sale, exchange, delivery, test, or demonstration purposes solely as stock in trade of the dealer’s business, an aircraft dealer’s certificate may be used on the aircraft in lieu of a registration certificate or fee and in lieu of payment of excise tax. The secretary shall issue one aircraft dealer’s certificate with each aircraft dealer’s license. Additional aircraft dealer’s certificates shall be issued to an aircraft dealer upon request and the payment of the fee provided in RCW 14.20.050. Nothing contained in this section, however, may be construed to prevent transferability among dealer aircraft of any aircraft dealer’s certificate, and the certificate need be displayed on dealer aircraft only while in actual use or flight. Every aircraft dealer’s certificate issued expires on December 31st, and may be renewed upon renewal of an aircraft dealer’s license. [1984 c 7 § 12; 1955 c 150 § 4.] Severability—1984 c 7: See note following RCW 47.01.141. 14.20.050 14.20.050 License and certificate fees. The fee for original aircraft dealer’s license for each calendar year or fraction thereof is seventy-five dollars, which includes one aircraft dealer’s certificate and which must be renewed annually for a fee of seventy-five dollars. Additional aircraft dealer certificates may be obtained for ten dollars each per year. If any dealer fails or neglects to apply for renewal of his license prior to February 1st in each year, his license shall be declared canceled by the secretary, in which case any such dealer desiring a license shall reapply and pay a fee of seventy-five dollars. [1998 c 187 § 1; 1984 c 7 § 13; 1955 c 150 § 5.] Severability—1984 c 7: See note following RCW 47.01.141. 14.20.060 14.20.060 Payment of fees—Fund—Possession and display of licenses and certificates. The fees set forth in RCW 14.20.050 shall be paid to the secretary. The fee for any calendar year may be paid on and after the first day of December of the preceding year. The secretary shall give appropriate receipts therefor. The fees collected under this chapter shall be credited to the aeronautics account of the transportation fund. The secretary may prescribe requirements for the possession and exhibition of aircraft dealer’s licenses and aircraft dealer’s certificates. [1998 c 187 § 2; 1984 c 7 § 14; 1955 c 150 § 6.] Severability—1984 c 7: See note following RCW 47.01.141. 14.20.070 14.20.070 Surety bonds. Before issuing an aircraft dealer license, the secretary shall require the applicant to file with the secretary a surety bond in the amount of twenty-five thousand dollars running to the state, and executed by a surety company authorized to do business in the state. The bond shall be approved by the attorney general as to form and (2006 Ed.) Western Regional Short Haul Air Transportation Compact conditioned that the dealer shall conduct his business in conformity with the provisions of this chapter, RCW 47.68.250, and 82.48.100. Any person who has suffered any loss or damage by reason of any act by a dealer which constitutes ground for refusal, suspension, or revocation of license under RCW 14.20.090 has a right of action against the aircraft dealer and the surety upon the bond. Successive recoveries against the bond shall be permitted, but the aggregate liability of the surety to all persons shall in no event exceed the amount of the bond. [1984 c 7 § 15; 1983 c 135 § 2; 1983 c 3 § 17; 1955 c 150 § 7.] Chapter 14.30 14.20.100 Appeal from secretary’s order. If the secretary issues an order that any person is not entitled to an aircraft dealer’s license or that an existing license should be suspended or revoked, he shall forthwith notify the applicant or dealer in writing. The applicant has thirty days from the date of the secretary’s order to appeal therefrom to the superior court of Thurston county, which he may do by filing a notice of the appeal with the clerk of the superior court and at the same time filing a copy of the notice with the secretary. [1984 c 7 § 17; 1955 c 150 § 10.] 14.20.100 Severability—1984 c 7: See note following RCW 47.01.141. Severability—1984 c 7: See note following RCW 47.01.141. Surety insurance: Chapter 48.28 RCW. 14.20.080 14.20.080 Branches and subagencies. Every dealer maintaining a branch or subagency in another city or town in this state shall be required to have a separate aircraft dealer’s license for such branch or subagency, in the same manner as though each constituted a separate and distinct dealer. [1955 c 150 § 8.] Chapter 14.30 RCW WESTERN REGIONAL SHORT HAUL AIR TRANSPORTATION COMPACT Chapter 14.30 (See chapter 81.96 RCW) 14.20.090 14.20.090 Denial, suspension, revocation of license— Grounds. The secretary shall refuse to issue an aircraft dealer’s license or shall suspend or revoke an aircraft dealer’s license whenever he has reasonable grounds to believe that the dealer has: (1) Forged or altered any federal certificate, permit, rating, or license relating to ownership and airworthiness of an aircraft; (2) Sold or disposed of an aircraft which he knows or has reason to know has been stolen or appropriated without the consent of the owner; (3) Wilfully misrepresented any material fact in the application for an aircraft dealer’s license, aircraft dealer’s certificate, or registration certificate; (4) Wilfully withheld or caused to be withheld from a purchaser of an aircraft any document referred to in subsection (1) of this section if applicable, or an affidavit to the effect that there are no liens, mortgages, or encumbrances of any type on the aircraft other than noted thereon, if the document or affidavit has been requested by the purchaser; (5) Suffered or permitted the cancellation of his bond or the exhaustion of the penalty thereof; (6) Used an aircraft dealer’s certificate for any purpose other than those permitted by this chapter or RCW 47.68.250 and 82.48.100; (7) Been adjudged guilty of a crime that directly relates to the business of an aircraft dealer and the time elapsed since the conviction is less than ten years, or had a judgment entered against the dealer within the preceding five years in any civil action involving fraud, misrepresentation, or conversion. For the purpose of this section, the term "adjudged guilty" means, in addition to a final conviction in either a state or municipal court, an unvacated forfeiture of bail or collateral deposited to secure a defendant’s appearance in court, the payment of a fine, a plea of guilty, or a finding of guilt regardless of whether the imposition of the sentence is deferred or the penalty is suspended. [1984 c 7 § 16; 1983 c 135 § 3; 1983 c 3 § 18; 1955 c 150 § 9.] Severability—1984 c 7: See note following RCW 47.01.141. (2006 Ed.) [Title 14 RCW—page 17] Title 15 Chapters 15.04 15.08 15.09 15.13 15.14 15.15 15.17 15.19 15.21 15.24 15.26 15.28 15.30 15.35 15.36 15.37 15.44 15.48 15.49 15.53 15.54 15.58 15.60 15.61 15.62 15.64 15.65 15.66 15.70 15.74 15.76 15.80 15.83 15.85 15.86 15.88 15.89 15.92 15.100 15.105 15.110 Title 15 AGRICULTURE AND MARKETING General provisions. Horticultural pests and diseases. Horticultural pest and disease board. Horticultural plants and facilities—Inspection and licensing. Planting stock. Certified seed potatoes. Standards of grades and packs. Ginseng. Washington fresh fruit sales limitation act. Washington apple commission. Tree fruit research act. Soft tree fruits. Controlled atmosphere storage of fruits and vegetables. Washington state milk pooling act. Milk and milk products. Milk and milk products for animal food. Dairy products commission. Seed bailment contracts. Seeds. Commercial feed. Fertilizers, minerals, and limes. Washington pesticide control act. Apiaries. Ladybugs and other beneficial insects. Honey bee commission. Farm marketing. Washington state agricultural commodity boards. Washington state agricultural commodity commissions. Rural rehabilitation. Hardwoods commission. Agricultural fairs, youth shows, exhibitions. Weighmasters. Agricultural marketing and fair practices. Aquaculture marketing. Organic food products. Wine commission. Washington beer commission. Center for sustaining agriculture and natural resources. Forest products commission. From the heart of Washington program. Energy freedom program. Agister and trainer liens: Chapter 60.56 RCW. Agricultural labor exempt from unemployment compensation: RCW 50.04.150. exemptions for certain workers from minimum wage act: RCW 49.46.010. processing and marketing associations: Chapter 24.34 RCW. products, commission merchants, dealers, brokers, etc.: Chapter 20.01 RCW. Animals belonging to another, killing, maiming, or disfiguring: RCW 9A.48.070 through 9A.48.090. (2006 Ed.) crimes relating to: Chapter 9.08 RCW. fur farming: Chapter 16.72 RCW. generally: Title 16 RCW. larcenous appropriation of livestock: Chapter 9A.56 RCW, RCW 9A.56.100. Bureau of statistics: Chapter 43.07 RCW. Burning permits within fire protection district: RCW 52.12.101. Commission merchants: Chapter 20.01 RCW. Cooperative associations: Chapter 23.86 RCW. Crimes brands and marks: Chapter 9.16 RCW. relating to animals: Chapter 9.08 RCW. relating to fires: Chapter 9A.48 RCW. Crops liens: Chapter 60.11 RCW. mortgages: Article 62A.9A RCW. Dealers in hay or straw, certified vehicle weights required: RCW 20.01.125. Department of agriculture: Chapters 43.17, 43.23 RCW. Eggs and egg products: Chapter 69.25 RCW. Farm labor contractors: Chapter 19.30 RCW. Farm vehicles, gross weight fees: RCW 46.16.090. Food, drug, and cosmetic act: Chapter 69.04 RCW. Food and beverages, worker’s permits: Chapter 69.06 RCW. Food lockers: Chapter 19.32 RCW. Fraud in measurement of agricultural products: RCW 9.45.122 through 9.45.126. Grain elevators, warehouses, etc.: Title 22 RCW. warehouse insurance: Chapter 22.09 RCW. Grain and other commodities, standard grades: Chapter 22.09 RCW. Grain and terminal warehouses, commodity inspection: Chapter 22.09 RCW. Granges: Chapter 24.28 RCW. Grazing ranges: RCW 79.10.125, chapter 79.13 RCW. Honey: Chapter 69.28 RCW. Insect pests and plant diseases: Chapter 17.24 RCW. Investment of agricultural commodity commission funds in savings or time deposits of banks, trust companies and mutual savings banks: RCW 15.66.185. Liability of agricultural landowners for injuries to recreation users—Limitation: RCW 4.24.210. Liens agister and trainer: Chapter 60.56 RCW. chattel, crop liens: Chapter 60.08 RCW. crop: Chapter 60.11 RCW. orchards and orchard lands: Chapter 60.16 RCW. services of sires: Chapter 60.52 RCW. warehouseman’s: Article 62A.7 RCW. Mosquito control: Chapter 70.22 RCW. Motor vehicles juvenile agricultural driving permits: RCW 46.20.070. lamps on farm tractors, equipment, etc.: RCW 46.37.160. Nuisances, agricultural activities: RCW 7.48.300 through 7.48.310. Orchards and orchard lands, liens: Chapter 60.16 RCW. Pest control compact: Chapter 17.34 RCW. Pesticide application: Chapter 17.21 RCW. [Title 15 RCW—page 1] Chapter 15.04 Title 15 RCW: Agriculture and Marketing Public bodies may retain collection agencies to collect public debts—Fees: RCW 19.16.500. Services of sires, lien: Chapter 60.52 RCW. Soil conservation: Chapter 89.08 RCW. State international trade fairs: RCW 43.31.800 through 43.31.850. Swine, garbage feeding: Chapter 16.36 RCW. Vocational agriculture education—Service areas—Programs in local school districts: RCW 28A.300.090. Washington clean air act: Chapter 70.94 RCW. Weeds destruction by cities: RCW 35.21.310. generally: Title 17 RCW. Weights and measures generally: Chapter 19.94 RCW. standards, packages, boxes, etc.: Chapter 19.94 RCW. shall be deposited in the fair fund created under RCW 15.76.115. [1998 c 345 § 1; 1961 c 11 § 15.04.090. Prior: 1953 c 119 § 1.] Severability—1998 c 345: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1998 c 345 § 14.] Effective date—Contingent effective date—1998 c 345: "(1) Sections 1 through 9, and *16 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately [April 3, 1998]. (2) Sections 10 through 12 of this act take effect July 1, 2001, if the repeal of RCW 67.16.100, 67.16.105, and 67.16.170 under section 9 of this act becomes effective." [1998 c 345 § 15.] *Reviser’s note: Section 16 of this act was vetoed by the governor. 15.04.110 Chapter 15.04 Chapter 15.04 RCW GENERAL PROVISIONS Sections 15.04.010 15.04.090 15.04.110 15.04.120 15.04.150 15.04.160 15.04.200 15.04.300 15.04.400 15.04.402 15.04.410 15.04.415 Definitions. Lease of unnecessary lands to nonprofit groups—Funds. Control of predatory birds. Control of predatory birds—Expenditures and contracts. Berry harvesting by youthful workers—Legislative finding. Berry harvesting by youthful workers—Authorized—Restrictions. Agricultural development or trade promotion and promotional hosting—Expenditures, approval by commodity commission—Exemption from housing requirements. Guide to state and federal programs of assistance to farm families. Findings—Department’s duty to promote agriculture, protect public health and welfare. Department to advance private sector, economic well-being of agricultural industry. Declarations of "Washington state grown"—Restrictions— Violations unlawful—Application of consumer protection act. Information on product country of origin—Findings—Use of placards. Bacon, packaging at retail to reveal quality and leanness, director’s duties: RCW 69.04.205 through 69.04.207. 15.04.010 Definitions. As used in this title except where otherwise defined: "Department" means the department of agriculture. "Director" means the director of agriculture. "Person" includes any individual, firm, corporation, trust, association, cooperative, copartnership, society, any other organization of individuals, and any other business unit, device, or arrangement. [1961 c 11 § 15.04.010. Prior: (i) 1941 c 56 § 3; Rem. Supp. 1941 § 2828-4. (ii) 1941 c 56 § 4; Rem. Supp. 1941 § 2828-5. (iii) 1943 c 150 § 1, part; 1937 c 148 § 1, part; 1927 c 311 § 1, part; 1921 c 141 § 1, part; 1915 c 166 § 1, part; Rem. Supp. 1943 § 2839, part.] 15.04.010 15.04.090 Lease of unnecessary lands to nonprofit groups—Funds. The director of agriculture may, at his discretion, for a period of not to exceed ten years, lease state lands which are now or may hereafter be, under his direction and control, the retention of which he deems unnecessary for present state purposes or needs, to any nonprofit group or organization having educational, agricultural or youth development purposes. Such leases shall be upon such terms as the director deems beneficial to the state. All rental funds received by the director under the provisions of this section 15.04.090 [Title 15 RCW—page 2] 15.04.110 Control of predatory birds. The director of the state department of agriculture may control birds which he determines to be injurious to agriculture, and for this purpose enter into written agreements with the federal and state governments, political subdivisions and agencies of such governments, political subdivisions and agencies of this state including counties, municipal corporations and associations and individuals, when such cooperation will implement the control of predatory birds injurious to agriculture. [1961 c 247 § 1.] 15.04.120 15.04.120 Control of predatory birds—Expenditures and contracts. For the purpose of carrying out the provisions of RCW 15.04.110 the director may make expenditures and contract for personal services, control materials and equipment as required to carry out such predatory bird control functions. [1961 c 247 § 2.] 15.04.150 15.04.150 Berry harvesting by youthful workers— Legislative finding. The legislature finds that the crops of berry growers in the state are imperiled by a recent change in the federal law relating to youthful agricultural workers. Since the berry harvest season is so short that few migrant agricultural workers find the trip to this state to pick berries worth the trouble, the long-established use of younger pickers must be permitted to the extent where such employment will not interfere with interstate commerce and the federal law. Further, the legislature finds that such employment is healthful, a good indoctrination for youth in the work ethic and the role of agriculture in society, and an opportunity youths welcome to earn extra spending money. [1975 1st ex.s. c 238 § 1.] 15.04.160 15.04.160 Berry harvesting by youthful workers— Authorized—Restrictions. (1) An employee engaged to pick berries in this state outside of school hours for the school district where such employee is living while so employed may be less than twelve years of age: PROVIDED, That (a) the employee is employed with the consent of his parent or person standing in the place of his parent, (b) the berries are for sale within the state only, and are not to be shipped out of the state in any form; (c) the secretary of agriculture or his designated representative has certified that there are not sufficient workers available in the immediate area to harvest the crop without such youthful employees, and (d) all employees (2006 Ed.) General Provisions of any employer engaging youthful employees are paid at the same rate for picking berries. (2) Each basket, package, or other container containing berries or berry products picked by an employee under twelve years of age shall be distinctively marked so as to insure that the berries do not enter interstate commerce: PROVIDED HOWEVER, That nothing in RCW 15.04.150 and 15.04.160 shall apply to employers who are exempt from the federal fair labor standards act. [1975 1st ex.s. c 238 § 2.] 15.04.200 15.04.200 Agricultural development or trade promotion and promotional hosting—Expenditures, approval by commodity commission—Exemption from housing requirements. (1) Under the authority of Article VIII of the state Constitution as amended, agricultural commodity commission expenditures for agricultural development or trade promotion and promotional hosting by an agricultural commodities commission under chapters 15.24, 15.28, 15.44, 15.65, 15.66, 15.88, 15.89, and 16.67 RCW shall be pursuant to specific budget items as approved by the agricultural commodity commission at the annual public hearings on the agricultural commodity commission budget. (2) Agricultural commodity commissions shall adopt rules governing promotional hosting expenditures by agricultural commodity commission employees, agents or commissioners. The rules shall identify officials and agents authorized to make expenditures and the objectives of the expenditures. Individual agricultural commodity commission commissioners shall make promotional hosting expenditures, or seek reimbursements for these expenditures, only in those instances where the expenditures have been approved by the agricultural commodity commission. All payments and reimbursements shall be identified and supported on vouchers. (3) Agricultural commodity commissions shall be exempt from the requirements of RCW 43.01.090 and 43.19.500 and chapter 43.82 RCW. [2006 c 330 § 24; 1987 c 452 § 16; 1986 c 203 § 24; 1985 c 26 § 1.] Construction—Severability—2006 c 330: See RCW 15.89.900 and 15.89.901. Construction—Effective dates—Severability—1987 c 452: See RCW 15.88.900 through 15.88.902. Severability—1986 c 203: See note following RCW 15.17.230. Effective date—Contingency—1985 c 26: "This act shall take effect January 1, 1986, if the proposed amendment to Article VIII, of the state Constitution authorizing agricultural commodity assessments for agricultural development or trade promotion and promotional hosting to be deemed a public use for a public purpose is validly submitted to and is approved and ratified by the voters at a general election held in November 1985. If the proposed amendment is not so approved and ratified, this act shall be null and void in its entirety." [1985 c 26 § 2.] The proposed constitutional amendment was approved by the voters on November 5, 1985. See Article VIII, section 11 of the state Constitution. 15.04.300 15.04.300 Guide to state and federal programs of assistance to farm families. The department of agriculture is authorized to develop, in cooperation with Washington State University and other state agencies, an informational guide to programs offered by state and federal agencies which would be of assistance to farm families. The informational guide shall be made available to farmers and ranchers (2006 Ed.) 15.04.410 through county extension offices, farm organizations, and other appropriate means. [1987 c 393 § 26.] 15.04.400 15.04.400 Findings—Department’s duty to promote agriculture, protect public health and welfare. The history, economy, culture, and the future of Washington state to a large degree all involve agriculture, which is vital to the economic well-being of the state. The legislature finds that farmers and ranchers are responsible stewards of the land, but are increasingly subjected to complaints and unwarranted restrictions that encourage, and even force, the premature removal of lands from agricultural uses. The legislature further finds that it is now in the overriding public interest that support for agriculture be clearly expressed and that adequate protection be given to agricultural lands, uses, activities, and operations. The legislature further finds that the department of agriculture has a duty to promote and protect agriculture and its dependent rural community in Washington state however, the duty shall not be construed as to diminish the responsibility of the department to fully carry out its assigned regulatory responsibilities to protect the public health and welfare. [1994 c 46 § 9; 1991 c 280 § 1.] Effective date—1994 c 46: See note following RCW 15.58.070. 15.04.402 15.04.402 Department to advance private sector, economic well-being of agricultural industry. The department shall seek to enhance, protect, and perpetuate the ability of the private sector to produce food and fiber. Additionally, the department shall seek, consistent with its regulatory responsibilities, to maintain the economic well-being of the agricultural industry and its dependent rural community in Washington state. [1994 c 46 § 10; 1991 c 280 § 2.] Effective date—1994 c 46: See note following RCW 15.58.070. 15.04.410 15.04.410 Declarations of "Washington state grown"—Restrictions—Violations unlawful—Application of consumer protection act. (1) Before being offered for retail sale in this state, any agricultural commodity, defined under RCW 15.66.010, that was grown or raised in this state may be advertised, labeled, described, sold, marked, or otherwise held out, with the words "Washington state grown," or other similar language indicating that the product is from Washington state grown or raised agricultural commodities. (2) An agricultural commodity that was not grown or raised in this state and packages of that product shall not be advertised, labeled, described, sold, marked, or otherwise held out as "Washington state grown," or in any way as to imply that such product is a Washington state grown or raised agricultural commodity. (3) It is unlawful for any person to violate this section. (4) The legislature finds that the practices covered by this section are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. Violations of this section are not reasonable in relation to the development and preservation of business. A violation of this section is an unfair or deceptive act in trade or commerce and an unfair method of competition for the [Title 15 RCW—page 3] 15.04.415 Title 15 RCW: Agriculture and Marketing purpose of applying the consumer protection act, chapter 19.86 RCW. [1995 c 97 § 1.] 15.04.415 Information on product country of origin—Findings—Use of placards. (1) The legislature finds that it is a common practice for consumers to be provided information as to the country [of] origin for many products available to them for purchase. The legislature finds that consumers have a right to know the origin of the fresh fruits and vegetables being offered to them at retail sale. The legislature finds that there is value to the consumer being able to make an informed buying decision as to whether the fresh fruit or vegetable was produced under standards and conditions required in the United States. Further, the legislature finds that consumers should be given the ability to make an informed choice to buy fresh fruits and vegetables that are grown in Washington state as a means of supporting the economy of the state. (2) Stores or other businesses offering fresh fruit and vegetables for retail sale to consumers shall place a placard on the bin, shelf, or other location the product is displayed that informs the consumer where the fruit or vegetable was grown if it was grown in the United States or grown in Washington. The placard shall indicate that the product was either "Grown in United States" or "Grown in Washington." Placards are not required if (a) the product was grown outside of the United States, or (b) each item in the bin, shelf, or other location contains a sticker or label that indicates where the fruit or vegetable product was grown. [2002 c 40 § 1.] 15.04.415 Chapter 15.08 RCW HORTICULTURAL PESTS AND DISEASES Chapter 15.08 Sections 15.08.010 15.08.020 15.08.025 15.08.030 15.08.040 15.08.050 15.08.060 15.08.070 15.08.080 15.08.090 15.08.100 15.08.110 15.08.120 15.08.130 15.08.140 15.08.150 15.08.160 15.08.170 15.08.180 15.08.190 15.08.200 15.08.210 15.08.220 15.08.230 15.08.240 15.08.250 15.08.260 15.08.270 Definitions. Methods of prevention, control and disinfection. Disinfection of fruit trees—Procedures to be followed. Duty to disinfect, destroy—Disposal of cuttings. Authority to enter premises—Interference unlawful. Condemnation of infected property—Disposal of, unlawful. Condemnation of infected property—Notice to owner—Division into classes. Condemnation of infected property—Use of condemned fruit, vegetables—Permit. Condemnation of infected property—Service of notice—Personal, constructive, substituted. Condemnation of infected property—Duty to comply— Inspector’s duty on failure—Lien for costs. Foreclosure of lien—Sale—Notice of impounding—Contents. Sale proceeds—Deficiency—Action to recover. Record of proceedings—Verified copy as evidence. Record of premises disinfected—Costs—Lien. Hearing on costs—Notice—Service. Payment and release—Order on amount—Priority of lien. Payment date—Cancellation of lien. Failure to pay—Conversion into taxes—Use. Inspection board—Creation—Duties—Powers. Report of inspection—Nuisance abatement. Notice of hearing—Service—Adjournments. Order of abatement. Appeals—Bond for damages. Disinfection of public properties. Dumping infected products, containers, prohibited. Host-free districts—Director’s duties. Horticultural tax. Basis for estimating the tax. Pest control compact: Chapter 17.34 RCW. 15.08.010 Definitions. As used in this chapter: 15.08.010 [Title 15 RCW—page 4] (1) "Supervisor" means an assistant director known as the supervisor of plant industry. (2) "Horticultural premises" includes orchards, vineyards, nurseries, berry farms, vegetable farms, cultivated cranberry marshes, packing houses, dryhouses, warehouses, depots, docks, cars, vessels and other places where nursery stock, fruits, vegetables and other horticultural products are grown, stored, packed, shipped, held for shipment or delivery, sold or otherwise disposed of. (3) "Nursery stock" includes, but is not limited to, any horticultural, floricultural, viticultural, and vegetable plant, for planting, propagation or ornamentation, growing or otherwise, including cut plant material. (4) "Pests and diseases" means, but is not limited to, any living stage of any insect, mite, nematode, slug, snail, protozoa, or other invertebrate animal, bacteria, fungus, other parasitic plant, weed, or reproductive part thereof, virus or any organism similar to or allied with any of the foregoing, or any infectious substance, which can directly or indirectly injure or cause disease or damage in or to any plant or parts thereof, or any processed, manufactured, or other products of plants. (5) "Nuisance" means any plant, produce or property found in any commercial area upon which is found any pest or disease that is or may be a source of infestation of other properties. (6) "Commercial area" means a district where any horticultural product is being produced to the extent that a producer is dependent thereon, in whole or in part, for his livelihood. (7) "Infect," and its derivatives "infected," "infecting," and "infection," means affected by or infested with pests or diseases as above defined. (8) "Disinfect," and its derivatives, means the control, cure, or eradication of such pests or diseases by cutting or destroying infected parts or the application of effective pesticides. [1981 c 296 § 4; 1961 c 11 § 15.08.010. Prior: (i) 1943 c 150 § 1, part; 1937 c 148 § 1, part; 1927 c 311 § 1, part; 1921 c 141 § 1, part; 1915 c 166 § 1, part; Rem. Supp. 1943 § 2839, part. (ii) 1941 c 20 § 2; Rem. Supp. 1941 § 2849-1b. (iii) 1941 c 20 § 3; Rem. Supp. 1941 § 2849-1c. (iv) 1941 c 20 § 4; Rem. Supp. 1941 § 2849-1d. (v) 1923 c 37 § 3, part; 1921 c 141 § 4, part; 1915 c 166 § 5, part; RRS § 2843, part.] Severability—1981 c 296: "If any provision of this amendatory act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1981 c 296 § 40.] 15.08.020 15.08.020 Methods of prevention, control and disinfection. The following methods shall be used for the prevention, control or disinfection of pests and diseases: (1) Bacterial diseases, removal and destruction of infected plant or part thereof, care being used to disinfect removal tools to prevent infection therefrom; (2) Fungus diseases, spraying with effective fungicide; (3) Chewing or sucking insect pests, spraying with effective insecticide; (4) Fungus insect pests, spraying with other effective solutions or emulsions described in circulars issued by the director. [1961 c 11 § 15.08.020. Prior: 1923 c 37 § 3, part; 1921 c 141 § 4, part; 1915 c 166 § 5, part; RRS § 2843, part.] (2006 Ed.) Horticultural Pests and Diseases 15.08.025 15.08.025 Disinfection of fruit trees—Procedures to be followed. The method for disinfecting fruit trees required to be disinfected under the provisions of this chapter shall be as prescribed in the official published recommendations of the Washington State University for the proper prevention, control and eradication of pests and diseases of fruit trees. Whenever specific recommendations for disinfecting fruit trees are not set forth in the official published recommendations of the Washington State University, the generally accepted horticultural practices for the prevention, control and eradication of any pests and diseases in the producing area shall be used. The burden of proving that the proper procedures as set forth in this section have been followed shall be upon the person ordered to disinfect fruit trees. The disinfection of fruit trees as in this section set forth shall in no way limit the authority of the inspection board to determine that such fruit trees constitute a nuisance and thus shall be subject to removal as provided for in this chapter. [1981 c 296 § 5; 1965 c 27 § 2.] Severability—1981 c 296: See note following RCW 15.08.010. Purpose—1965 c 27: "The production of tree fruits in the state of Washington is a major agricultural industry promoting the general economic welfare of the state and beneficial to the health of the public. The proper maintenance of fruit tree orchards to insure the continued and increased benefits to the health and welfare of the state makes it necessary to prevent, eradicate and control any pests or diseases which are or may be injurious to such fruit trees and the produce therefrom. Such prevention, eradication and control of pests and diseases which are or may be injurious to fruit trees and their crops may require chemical or biological control or removal of host trees which may be hosts and breeding places for such diseases and pests. The provisions of this act are adopted under the police power of the state for the purpose of protecting its health and general welfare, presently and in the future." [1965 c 27 § 1.] 15.08.030 15.08.030 Duty to disinfect, destroy—Disposal of cuttings. It is the duty of every owner, shipper, consignee, or other person in charge of fruits, vegetables, or nursery stock, and the owner, lessee, or occupant of horticultural premises, to use sufficient methods of prevention to keep said properties free from infection by pests or disease. In event any of said properties become infected it is the duty of said persons to use effective methods to control or destroy the infection by disinfection as in this chapter defined. All fruits, vegetables and nursery stock which cannot be successfully disinfected shall be promptly destroyed. In counties where black stem rust infection occurs every owner or person in charge of premises on which barberry bushes of the rust-producing varieties are growing shall forthwith destroy such bushes. Within forty-eight hours after removal of any cuttings or prunings from bacterially infected trees or plants infected with fruit tree leaf roller egg clusters the person removing same shall disinfect or destroy them by burning or scorching. [1961 c 11 § 15.08.030. Prior: (i) 1927 c 311 § 3; 1923 c 37 § 2; 1915 c 166 § 4; RRS § 2842. (ii) 1921 c 141 § 8; 1915 c 166 § 18; RRS § 2856.] 15.08.040 15.08.040 Authority to enter premises—Interference unlawful. The director, supervisor and horticultural inspectors are authorized to at any time enter horticultural premises and any structure where fruit, vegetables, nursery stock, or (2006 Ed.) 15.08.070 horticultural products are grown or situated for any purpose, to inspect the same for infection. No person shall hinder or interfere with any such officer in entering or inspecting or performing any duty imposed upon him. [1961 c 11 § 15.08.040. Prior: 1915 c 166 § 9; RRS § 2847.] 15.08.050 15.08.050 Condemnation of infected property—Disposal of, unlawful. If the premises or property inspected is found to be infected the inspecting officer shall condemn the same and serve upon the owner or person in charge thereof a written notice of the condemnation, describing the premises or property with reasonable certainty, and ordering the infected portion to be disinfected, or to be destroyed if incapable of disinfection, within a time and in a manner stated therein, and giving notice that if the order is not complied with in the time stated, the officer will disinfect or destroy the property and charge the expense thereof to the owner or against the premises. No person shall ship, sell, or otherwise dispose of or part with possession of, or transport, any such condemned property until all requirements of said notice and order are complied with and written permit of the inspector so to do is issued. [1961 c 11 § 15.08.050. Prior: 1943 c 150 § 4, part; 1929 c 150 § 1, part; 1925 ex.s. c 108 § 1, part; 1919 c 195 § 2 1/2, part; 1915 c 166 § 10, part; Rem. Supp. 1943 § 2848, part.] 15.08.060 15.08.060 Condemnation of infected property— Notice to owner—Division into classes. Said notice of condemnation shall also grant permission to the owner or person in charge of infected fruit, vegetables, or nursery stock to divide the same into classes: (1) The portion not infected; (2) The infected portion which is capable of successful disinfection; and (3) The infected portion which is incapable of successful disinfection and must be destroyed. Said notice shall require the owner or person to disinfect class (2) and destroy class (3) within the time stated. [1961 c 11 § 15.08.060. Prior: 1943 c 150 § 4, part; 1929 c 150 § 1, part; 1925 ex.s. c 108 § 1, part; 1919 c 195 § 2 1/2, part; 1915 c 166 § 10, part; Rem. Supp. 1943 § 2848, part.] 15.08.070 15.08.070 Condemnation of infected property—Use of condemned fruit, vegetables—Permit. In the case of fruit or vegetables which cannot be successfully disinfected the inspector may grant to the owner or person in charge thereof a written permit to use the condemned products for stock feed, or manufacture the same into byproducts, or ship them to a byproduct factory; and it is unlawful for the person receiving such permit to sell or dispose of such products without first having the same manufactured into a byproduct or shipped to a byproduct factory, or to divert any such shipment when made, or for the consignee of such shipment to sell or dispose of the same until it is manufactured into a byproduct. [1961 c 11 § 15.08.070. Prior: 1943 c 150 § 4, part; 1929 c 150 § 1, part; 1925 ex.s. c 108 § 1, part; 1919 c 195 § 2 1/2, part; 1915 c 166 § 10, part; Rem. Supp. 1943 § 2848, part.] [Title 15 RCW—page 5] 15.08.080 Title 15 RCW: Agriculture and Marketing 15.08.080 15.08.080 Condemnation of infected property—Service of notice—Personal, constructive, substituted. Personal service of said notice shall be made upon the person in possession or in charge of said premises or property if possible. If such person is not the owner, or personal service cannot be made on such person, then a copy of the notice shall be mailed or telegraphed to the owner at his home or post office address if known or can with reasonable diligence be ascertained. If personal service cannot be made upon any person in possession or charge of the premises or property and the name and address of the owner thereof are not known or cannot be so ascertained, then the notice shall be served by posting the same in some conspicuous place on the premises where the property to be disinfected or destroyed is situated, which service by posting shall be construed to be constructive personal service upon such owner. If the name and address of the owner are not known or cannot be so ascertained, service upon the person in possession or charge of the premises or property shall constitute substituted personal service upon the owner, in the absence of fraud or gross neglect. [1961 c 11 § 15.08.080. Prior: 1943 c 150 § 4, part; 1929 c 150 § 1, part; 1925 ex.s. c 108 § 1, part; 1919 c 195 § 2 1/2, part; 1915 c 166 § 10, part; Rem. Supp. 1943 § 2848, part.] 15.08.090 15.08.090 Condemnation of infected property—Duty to comply—Inspector’s duty on failure—Lien for costs. Except as hereinabove provided, upon service of said notice the owner or person in possession or charge of the premises or property shall comply with its terms within the time specified. In case of their failure so to do, the inspector may enter the premises and perform or cause to be performed the services required in the notice. He shall keep an accurate account of the expense of performing said services, which shall become a lien on the premises or property which may be foreclosed in the manner herein provided. The lien on personal property shall have preference over all other liens. If the inspector has not disinfected or destroyed the property it may be declared a nuisance as herein provided and treated as such. [1961 c 11 § 15.08.090. Prior: (i) 1943 c 150 § 4, part; 1929 c 150 § 1, part; 1925 ex.s. c 108 § 1, part; 1919 c 195 § 2 1/2, part; 1915 c 166 § 10, part; Rem. Supp. 1943 § 2848, part. (ii) 1943 c 150 § 5; 1935 c 168 § 4; 1931 c 27 § 2; 1927 c 311 § 4; 1915 c 166 § 11; Rem. Supp. 1943 § 2849.] or vegetables. [1961 c 11 § 15.08.100. Prior: 1915 c 166 § 12, part; RRS § 2850, part.] 15.08.110 15.08.110 Sale proceeds—Deficiency—Action to recover. Such sales may be either at public auction or private sale, whichever, in the sound discretion of the officer, will be to the best interests of the state and owner of the property. The proceeds thereof shall be applied to payment of: First, costs of sale; second, expenses of disinfection; third, accrued transportation and storage charges. The balance, if any, shall be paid to the owner. Should such proceeds be insufficient to pay the costs of sale and expenses of disinfection, the deficiency may be recovered from the owner or person in charge in an action brought in the name of the state on the relation of the director by the prosecuting attorney of the county when directed to do so by the attorney general. [1961 c 11 § 15.08.110. Prior: 1915 c 166 § 12, part; RRS § 2850, part.] 15.08.120 15.08.120 Record of proceedings—Verified copy as evidence. The inspector shall make and sign a record of the proceedings, stating the name of the owner or reputed owner of the property, if known; location of the property, date of inspection and the results thereof; date and manner of giving notice to disinfect; failure to disinfect; disinfection by the inspector; the cost thereof in detail; date and manner of giving notice of impounding and sale; date, place, and manner of sale; name of the purchaser; and amount of the proceeds and disposition thereof. Upon demand of the owner or person in charge of the property, the inspector shall furnish him with a verified copy of the record, and tender him the balance of the proceeds. If no demand is made within thirty days of the sale, or if the tender is refused, the inspector shall file a verified copy of the record with and remit any balance of the proceeds to the director, and if it is not claimed by the owner within six months, it shall be deposited in the state treasury. The record or a verified copy thereof shall be admissible in evidence as prima facie evidence of the truth of its contents. [1961 c 11 § 15.08.120. Prior: 1915 c 166 § 12, part; RRS § 2850, part.] 15.08.130 15.08.100 15.08.100 Foreclosure of lien—Sale—Notice of impounding—Contents. The officer disinfecting personal property may enforce the lien thereon provided for in RCW 15.08.090 by impounding and selling the property. He shall give notice of the impounding and proposed sale by posting a written notice in a conspicuous place upon the premises where the property is impounded and serve said notice upon the owner or person in charge of the property in the manner provided for service of notice to disinfect in RCW 15.08.080. Said notice shall state that the property, describing it with reasonable certainty, has been impounded, where it is situated, the amount of costs and expenses charged against it, and that unless same are paid within a specified time the property will be sold to satisfy said charges, accrued transportation and storage charges, if any, and costs of sale. Said specified time shall not be less than ten days after giving of the notice, except that immediate sale may be made of perishable fruits [Title 15 RCW—page 6] 15.08.130 Record of premises disinfected—Costs— Lien. The inspector disinfecting any horticultural premises shall make and sign a detailed record of the proceedings, stating the legal description of the premises; give the name of the owner or reputed owner; the date of inspection and the results thereof; date and manner of giving notice to disinfect; failure to disinfect; disinfection by the inspector; and the cost thereof in detail. If the cost is not paid within five days from the completion of the disinfecting, the inspector shall file with the auditor of the county in which the premises are situated two verified copies of the above record, and a claim of lien against the premises for the amount of the costs and therein refer to the record, which the auditor shall record as other lien claims. The auditor shall charge the same fees as are charged for filing and recording other liens. [1961 c 11 § 15.08.130. Prior: 1927 c 311 § 5, part; 1921 c 141 § 5, part; 1915 c 166 § 14, part; RRS § 2852, part.] (2006 Ed.) Horticultural Pests and Diseases 15.08.140 15.08.140 Hearing on costs—Notice—Service. The county auditor shall forthwith issue warrants in payment of the labor employed in the work, and thereupon the county shall be subrogated to all rights of the laborers so paid. He shall fix the day for hearing on the record before the county commissioners, which shall be not less than twenty days from the date of filing. He shall prepare a notice directed to the owner or reputed owner of the premises of the filing of the record and claim and the hearing thereon, the time and place of the hearing and the amount of the claim. The sheriff shall serve the notice in the manner provided for service of the notice to disinfect, and file with the auditor before the hearing, his return of service and the amount of his fees, which shall be the same as for service of summons in civil proceedings. [1961 c 11 § 15.08.140. Prior: 1927 c 311 § 5, part; 1921 c 141 § 5, part; 1915 c 166 § 14, part; RRS § 2852, part.] 15.08.150 15.08.150 Payment and release—Order on amount— Priority of lien. If before or at the hearing the amount of the claim and the auditor’s and sheriff’s fees are paid to the county treasurer, he shall deliver to the auditor a duplicate receipt of the payment and the auditor shall cancel the lien and notify the county commissioners thereof. The treasurer shall pay the funds to the persons entitled thereto as appears from the records in the auditor’s office. If payment is not made, the auditor shall present to the board of county commissioners a verified copy of the record and claim, which shall be accepted in any proceeding as prima facie evidence of the truth of the contents thereof. The board shall receive and consider the record and claim and all sworn testimony offered, and shall enter an order fixing the amount of the claim and costs, and direct the amount paid from the current expense fund, and the auditor shall draw warrants therefor. The auditor shall record the order in his office as other lien claims and it shall be a lien against the premises in favor of the county, and shall bear interest at six percent per year from the date of the order. [1961 c 11 § 15.08.150. Prior: 1927 c 311 § 5, part; 1921 c 141 § 5, part; 1915 c 166 § 14, part; RRS § 2852, part.] 15.08.160 15.08.160 Payment date—Cancellation of lien. The lien and interest may be paid on or before the first Monday in October following the entry of the order, upon presenting to the treasurer, a statement from the auditor showing the amount due. Upon payment the treasurer shall stamp the statement and file it in his records, and shall issue a receipt to the person making the payment, showing payment and shall deliver a duplicate to the auditor, who shall then cancel the lien. [1961 c 11 § 15.08.160. Prior: 1927 c 311 § 5, part; 1921 c 141 § 5, part; 1915 c 166 § 14, part; RRS § 2852, part.] 15.08.170 15.08.170 Failure to pay—Conversion into taxes— Use. If the lien and interest are not paid on or before such first Monday in October the commissioners, when levying taxes for the ensuing year, shall also levy on the premises covered by the lien, a tax for the amount of the lien and interest, together with a penalty of six percent, which tax shall be collected as other taxes for current expenses. The auditor shall then cancel the lien and note thereon that the amount thereof has been charged against the premises as taxes. (2006 Ed.) 15.08.200 The tax shall be credited to the current expense fund and used to defray the expense of horticultural inspection and disinfection in the county, whether or not such expenditure has been included in the estimates made in the current county budget. [1961 c 11 § 15.08.170. Prior: 1927 c 311 § 5, part; 1921 c 141 § 5, part; 1915 c 166 § 14, part; RRS § 2852, part.] 15.08.180 15.08.180 Inspection board—Creation—Duties— Powers. If a horticultural inspector finds premises or property infected, he shall make a written report thereof to the inspector-at-large in his district stating the disease or infestation found, the estimated extent thereof, and whether in his opinion it is or will become a nuisance. Upon receipt of the report the inspector-at-large shall appoint a person residing within three miles of the said premises or property and who is a grower of horticultural products which could be infected from said premises or property, and who, with the inspectorat-large or someone delegated by him from his department, shall appoint a third person likewise a grower of agricultural products which could be so infected. Said three persons shall constitute an inspection board whose duty shall be to forthwith examine the infested premises or property so as to determine whether same or any part thereof is infested with any pest or disease named in RCW 15.08.010. The board members shall have the same power of entry and inspection as the director, supervisor or horticultural inspector and shall be compensated at the rate of four dollars per day to be paid from the county current expense budget for horticulture. [1961 c 11 § 15.08.180. Prior: (i) 1941 c 20 § 5; 1915 c 166 § 6; Rem. Supp. 1941 § 2849-1e. (ii) 1941 c 20 § 7, part; Rem. Supp. 1941 § 2849-1g, part.] 15.08.190 15.08.190 Report of inspection—Nuisance abatement. Said board shall make a written report to the inspector-at-large of its findings, signed under oath by a majority of its members and stating: (1) Whether said premises or a part thereof are infested, (2) If infested, the nature and extent of infestation, and (3) Whether the infestation constitutes a nuisance. If the report shows the premises infested and constituting a nuisance, it and the findings of the inspector, shall be transmitted forthwith to the prosecuting attorney of the county. Within five days the prosecuting attorney shall file in the superior court a petition, signed and verified by him, describing the premises or property, giving the names of the owners, encumbrancers and other persons interested therein, as ascertained from the county records, containing a recital of the proceedings taken under RCW 15.08.050, 15.08.060, 15.08.070, 15.08.080, 15.08.090, and 15.08.180, and praying for an order declaring the premises or property to be a nuisance. Said report of the inspection board shall be attached to the petition as an exhibit and made a part thereof. [1961 c 11 § 15.08.190. Prior: 1941 c 20 §§ 6, 7, part, 8; Rem. Supp. §§2849-1f, 2849-1g, part, 2849-1h.] 15.08.200 15.08.200 Notice of hearing—Service—Adjournments. A notice containing a description of the premises, stating the objects and purposes of the petition and the time and place of presentation of the petition to the court, shall be served upon every person named as interested in the premises [Title 15 RCW—page 7] 15.08.210 Title 15 RCW: Agriculture and Marketing at least five days prior to the time of presentation. Service of the notice shall be as nearly as possible in the manner provided by law for service of summons in a civil action, except that if service is had by publication the period of publication shall be two weekly publications in a newspaper published or of general circulation in the county, and the service shall be deemed completed on the expiration of fifteen days after the date of the first publication. Proof of service may be made by affidavit of the person serving or publishing the notice and shall be filed with the clerk of the court on or before the time of presentation of the petition. On application of any party or its own motion the court may adjourn the hearing from time to time, and may order new or further notice to be given any person whose interest may be affected. [1961 c 11 § 15.08.200. Prior: (i) 1941 c 20 § 9; 1937 c 71 § 2; Rem. Supp. §2849-2. (ii) 1937 c 71 § 3; RRS § 2849-3.] 15.08.210 15.08.210 Order of abatement. At the hearing there must be competent proof that all parties interested in the premises or property have been duly served with said notice, and that the procedure prescribed in RCW 15.08.050, 15.08.060, 15.08.070, 15.08.080, 15.08.090, and 15.08.180 has been duly followed. The report of the inspection board shall be prima facie evidence that the premises are infested and constitute a nuisance. If there is no showing that said board acted in a capricious, arbitrary or unfair manner, the court shall accept the recommendation of said board and forthwith decree the plants, produce or property on the premises to constitute a nuisance and order the inspector-at-large of the district and the county commissioners to destroy the same, or abate the nuisance in such other manner as the court may direct. The costs of destruction or abatement, and of the proceedings shall be taxed against the defendants therein. [1961 c 11 § 15.08.210. Prior: (i) 1941 c 20 § 10; Rem. Supp. 1941 § 2849-2a. (ii) 1937 c 71 § 4; RRS § 2849-4.] 15.08.220 15.08.220 Appeals—Bond for damages. An appeal may be taken from the decree by filing notice thereof not later than ten days after issuance of the decree. The appellant shall be required to file an appeal bond of not less than one thousand dollars and sufficient in amount to cover possible damages to neighboring properties due to delay in carrying out the decree. [1961 c 11 § 15.08.220. Prior: 1941 c 20 §§ 11, 12; Rem. Supp. 1941 §§ 2849-2b, 2849-2c.] 15.08.230 15.08.230 Disinfection of public properties. The director may require the governing body of counties, cities, towns and irrigation and school districts or other political subdivisions of the state to disinfect or destroy all infected trees, shrubs, or other nursery stock growing upon public property within their respective jurisdictions, or the director may disinfect or destroy such infected trees, shrubs, or other nursery stock. [1981 c 296 § 6; 1961 c 11 § 15.08.230. Prior: 1915 c 166 § 19; RRS § 2857.] Severability—1981 c 296: See note following RCW 15.08.010. [Title 15 RCW—page 8] 15.08.240 Dumping infected products, containers, prohibited. It shall be unlawful for a property owner or lessee to permit the piling or dumping, or for a person to pile or dump, any infected product on any property or to pile or dump infected containers where the dumping of the infected products or containers might constitute a source of infestation to horticultural products. [1961 c 11 § 15.08.240. Prior: 1943 c 150 § 6; 1941 c 20 § 14; Rem. Supp. 1943 § 2849-2e.] 15.08.240 15.08.250 Host-free districts—Director’s duties. Whenever the director determines that a particular pest cannot be eradicated or effectively controlled by ordinary means, or that it is impractical to eradicate or control it without the destruction in whole or in part of uninfected host plants, he may issue a proclamation setting out the host-free period or host-free district, or both, describing the host plant and the district wherein planting, growing, cultivating, or maintenance in any manner of any plants or products capable of continuing the particular pests is prohibited during a specified period of time and until the menace therefrom no longer exists. [1961 c 11 § 15.08.250. Prior: 1941 c 20 § 13; Rem. Supp. 1941 § 2849-2d.] 15.08.250 15.08.260 Horticultural tax. At the time of making the regular annual tax levy the board of county commissioners of each county shall include a tax, to be known as the "horticultural tax," upon the taxable property of the county in an amount sufficient to meet the expense of inspecting and disinfecting nursery stock, fruits, vegetables, horticultural or agricultural products, and horticultural premises under the provisions of this title. Said tax shall be levied and collected in the same manner as are general taxes and when collected shall be placed in the county current expense fund. [1961 c 11 § 15.08.260. Prior: 1919 c 195 § 3, part; 1915 c 166 § 13, part; RRS § 2851, part.] 15.08.260 15.08.270 Basis for estimating the tax. In estimating the amount to be levied for said horticultural tax the board shall take into consideration the expense of such inspection and disinfection for the ensuing year, and the amount which will be collected under the provisions of this chapter on properties disinfected. [1961 c 11 § 15.08.270. Prior: 1919 c 195 § 3, part; 1915 c 166 § 13, part; RRS § 2851, part.] 15.08.270 Chapter 15.09 RCW HORTICULTURAL PEST AND DISEASE BOARD Chapter 15.09 Sections 15.09.010 15.09.020 15.09.030 15.09.040 15.09.050 15.09.055 15.09.060 15.09.070 15.09.080 15.09.090 15.09.100 15.09.110 15.09.120 15.09.131 15.09.135 15.09.140 15.09.900 Purpose. Creation of board. Members—Appointment—Terms. Meeting—Quorum—Officers. Powers and duties. Contracts and agreements. Owner’s duty to control pests and diseases. Right of entry—Search warrant. Failure to control horticultural pests and diseases—Remedies. Hearing on liability of owner for costs or charges—Review. Payment of expenses and costs—Penalty—Collection. Refund of charges paid. Disposition of moneys collected. Operating budget—Source of funds. Assessment—Public hearing—Rate—County review—Lien. Abolishment of board. Chapter cumulative. (2006 Ed.) Horticultural Pest and Disease Board 15.09.010 15.09.010 Purpose. The purpose of this chapter is to enable counties to more effectively control and prevent the spread of horticultural pests and diseases. [1969 c 113 § 1.] 15.09.020 15.09.020 Creation of board. Either upon receiving a petition filed by twenty-five landowners within the county or on its own motion, the board of county commissioners in order to achieve the purposes of this chapter may, following a hearing, create a horticultural pest and disease board. [1969 c 113 § 2.] 15.09.030 15.09.030 Members—Appointment—Terms. Each horticultural pest and disease board shall be comprised of five voting members, four of whom shall be appointed by the board of county commissioners and one of whom shall be appointed by the director. In addition, the chief county extension agent, or a county extension agent appointed by the chief agent, shall be a nonvoting member of the board. Of the four members appointed by the board of county commissioners, one of such members shall have at least a practical knowledge of horticultural pests and diseases, and the other members shall be residents of the county, shall own land within the county and shall be engaged in the primary and commercial production of a horticultural product or products. Such appointed members shall serve a term of two years and shall serve without salary. [1988 c 254 § 7; 1969 c 113 § 3.] 15.09.040 15.09.040 Meeting—Quorum—Officers. Within thirty days after the appointed seats on the horticultural pest and disease board have been filled, the board shall conduct its first meeting. A majority of the voting members of the board shall constitute a quorum for the transaction of business and shall be necessary for any action taken by the board. The board shall elect from its members a chairman and such other officers as may be necessary. [1969 c 113 § 4.] 15.09.050 15.09.050 Powers and duties. Each horticultural pest and disease board shall have the following powers and duties: (1) To receive complaints concerning the infection of horticultural pests and diseases on any parcel of land within the county; (2) To inspect or cause to be inspected any parcel of land within the county for the purpose of ascertaining the presence of horticultural pests and diseases as provided by RCW 15.09.070; (3) To order any landowner to control and prevent the spread of horticultural pests and diseases from his property, as provided by RCW 15.09.080; (4) To control and prevent the spread of horticultural pests and diseases on any property within the county as provided by RCW 15.09.080, and to charge the owner for the expense of such work in accordance with RCW 15.09.080 and 15.09.090; (5) To employ such persons and purchase such goods and machinery as the board of county commissioners may provide; (6) To adopt, following a hearing, such rules and regulations as may be necessary for the administration of this chapter. [1969 c 113 § 5.] (2006 Ed.) 15.09.080 15.09.055 Contracts and agreements. The horticultural pest and disease board may enter into contracts and agreements with federal, state, and local government agencies, Indian tribes, and any other organization to perform any duties pursuant to the identification, detection, control, or eradication of horticultural pests and diseases. [2000 c 144 § 35.] 15.09.055 15.09.060 Owner’s duty to control pests and diseases. Each owner of land containing any plant or plants shall perform or cause to be performed such acts as may be necessary to control and to prevent the spread of horticultural pests and diseases, as such pests and diseases are defined under RCW 15.08.010, as now or hereafter amended, or as such pests and diseases are defined by the director of the department of agriculture in accordance with the purpose of this chapter and with the provisions of the Administrative Procedure Act, chapter 34.05 RCW. The word "owner" as used in this section shall mean the possessor or possessors of any form of legal or equitable title to land and entitlement to possession. For purposes of liability under this chapter, the owners of land shall be jointly and severally liable. [1969 c 113 § 6.] 15.09.060 15.09.070 Right of entry—Search warrant. Any authorized agent or employee of the county horticultural pest and disease board may enter upon any property for the purpose of administering this chapter and any power exercisable pursuant thereto, including the taking of specimens, general inspection, and the performance of such acts as are necessary for controlling and preventing the spreading of horticultural pests and diseases. Such entry may be without the consent of the owner, and no action for trespass or damages shall lie so long as such entry and any activities connected therewith are undertaken and prosecuted with reasonable care. Should any such employee or authorized agent of the county horticultural pest and disease board be denied access to such property where such access was sought to carry out the purpose and provisions of this chapter, the said board may apply to any court of competent jurisdiction for a search warrant authorizing access to such property for said purpose. The court may upon such application issue the search warrant for the purpose requested. [1969 c 113 § 7.] 15.09.070 15.09.080 Failure to control horticultural pests and diseases—Remedies. (1) Whenever the horticultural pest and disease control board finds that an owner of land has failed to control and prevent the spread of horticultural pests and diseases on his land, as is his duty under RCW 15.09.060, it shall provide such person with written notice, which notice shall identify the pests and diseases found to be present and shall order prompt control or disinfection action to be taken within a specified and reasonable time period. (2) If the person to whom the notice is directed fails to take action in accordance with this notice, then the board shall perform or cause to be performed such measures as are necessary to control and prevent the spread of the pests and diseases on such property and the expense of this work shall be charged to such person. Any action that the board determines requires the destruction of infested plants, absent the consent of the owner, shall be subject to the provisions of subsection (3) of this section. 15.09.080 [Title 15 RCW—page 9] 15.09.090 Title 15 RCW: Agriculture and Marketing (3) In the event the owner of land fails to control and prevent the spread of horticultural pests and diseases as required by RCW 15.09.060, and the county horticultural pest and disease board determines that actions it has taken to control and prevent the spread of such pests or diseases has not been effective or the county horticultural pest and disease board determines that no reasonable measures other than removal of the plants will control and prevent the spread of such pests or diseases, the county horticultural pest and disease board may petition the superior court of the county in which the property is situated for an order directing the owner to show cause why the plants should not be removed at the owner’s expense and for an order authorizing removal of said infected plants. The petition shall state: (a) The legal description of the property on which the plants are located; (b) the name and place of residence, if known, of the owners of said property; (c) that the county horticultural pest and disease board has, through its officers or agents, inspected said property and that the plants thereon, or some of them, are infested with a horticultural pest or disease as defined by RCW 15.08.010; (d) the dates of all notices and orders delivered to the owners pursuant to this section; (e) that the owner has failed to control and prevent the spread of said horticultural pest or disease; and (f) that the county horticultural pest and disease board has determined that the measures taken by it have not controlled or prevented the spread of the pest or disease or that no reasonable measure can be taken that will control and prevent the spread of such pest or disease except removal of the plants. The petition shall request an order directing the owner to appear and show cause why the plants on said property shall not be removed at the expense of the owner, to be collected as provided in this chapter. The order to show cause shall direct the owner to appear on a date certain and show cause, if any, why the plants on the property described in the petition should not be removed at the owner’s expense. The order to show cause and petition shall be served on the owner not less than five days before the hearing date specified in the order in the same manner as a summons and complaint. In the event the owner fails to appear or fails to show by competent evidence that the horticultural pest or disease has been controlled, then the court shall authorize the county horticultural pest and disease board to remove the plants at the owner’s expense, to be collected as provided by this chapter. If the procedure provided herein is followed, no action for damages for removal of the plants shall lie against the county horticultural pest and disease board, its officers or agents, or the county in which it is situated. [1991 c 257 § 1; 1982 c 153 § 4; 1969 c 113 § 8.] Severability—Effective date—1982 c 153: See notes following RCW 17.24.210. 15.09.090 15.09.090 Hearing on liability of owner for costs or charges—Review. Any person upon request and pursuant to the rules and regulations of the horticultural pest and disease board shall be entitled to a hearing before the board on any charge or cost for which such person is alleged to be liable under subsection (2) of RCW 15.09.080. Any determination or final action by the board shall be subject to judicial review by a proceeding in the superior court of the county where the property is situated and to any damages suffered on account of disinfection work wrongfully undertaken, but no stay or [Title 15 RCW—page 10] injunction shall lie to delay any such disinfection work subsequent to notice given pursuant to RCW 15.09.080. [1969 c 113 § 9.] 15.09.100 15.09.100 Payment of expenses and costs—Penalty— Collection. Any amount charged to the owner of land in accordance with the provisions of RCW 15.09.080 and 15.09.090 shall be paid by such owner within sixty days of the date in which he was billed for such amount. If payment is not made within such sixty day period, the amount of such charge, together with a ten percent penalty surcharge, shall, for purposes of collection, become a tax lien under RCW 84.60.010, as now or hereafter amended, and shall be promptly collected as such by the county treasurer: PROVIDED, That where good cause is shown the board may extend for an additional two months the time period during which payment shall be made. [1969 c 113 § 10.] 15.09.110 15.09.110 Refund of charges paid. In regard to any charge made pursuant to RCW 15.09.080, if either the horticultural pest and disease board or the superior court on judicial review disallows such charge, then any amount paid on such charge, together with any interest or penalty, shall be promptly refunded by the county from the county’s current expense fund or from any other county funds available. In addition, the county shall pay six percent simple annual interest on such amount refunded. [1969 c 113 § 11.] 15.09.120 15.09.120 Disposition of moneys collected. Any moneys collected under this chapter shall be placed in the county current expense fund together with any taxes collected pursuant to the provisions of RCW 15.08.260, as now or hereafter amended. [1969 c 113 § 12.] 15.09.131 15.09.131 Operating budget—Source of funds. Funding of the operating budget of a horticultural pest and disease board may be derived from any or all of the following: (1) Moneys from the county general fund or other general revenues, as appropriated by the board of county commissioners or other county legislative authority; (2) A horticultural tax, as authorized in RCW 15.08.260, levied by the county board of commissioners or other county legislative authority; or (3) An assessment against all lands. [2000 c 144 § 33.] 15.09.135 15.09.135 Assessment—Public hearing—Rate— County review—Lien. (1) Prior to the levying of an assessment authorized in RCW 15.09.131, the horticultural pest and disease board shall hold a public hearing at which it will gather information to serve as a basis for classification and then classify the lands into suitable classification, including but not limited to orchard lands, range lands, dry lands, nonuse lands, forest lands, or federal lands. (2) The board shall develop and forward to the county board of commissioners or other county legislative authority, as a proposed level of assessment for each class, an amount that seems just. The assessment rate shall be either uniform per acre in its respective class, a flat rate per parcel, or a flat rate per parcel rate plus a uniform rate per acre: PROVIDED, (2006 Ed.) Horticultural Plants and Facilities—Inspection and Licensing That if no benefits are found to accrue to a class of land, a zero assessment may be levied. (3) The county board of commissioners or other county legislative authority, upon receipt of the proposed levels of assessment from the horticultural pest and disease board, after a hearing, shall accept or modify by resolution, or refer back to the horticultural pest and disease board for its reconsideration, all or any portion of the proposed levels of assessment. (4) The amount of the assessment constitutes a lien against the property. The assessments shall be subject to the same provisions as those for property tax collections, as provided in RCW 84.56.020, and shall be collected by the county treasurer under the authority in RCW 84.56.035. [2000 c 144 § 34.] 15.09.140 15.09.140 Abolishment of board. Upon receipt of a petition signed by twenty-five landowners within the county or on its own motion, the board of county commissioners may abolish the pest and disease board following a hearing and a finding that the purposes of this chapter would not be sufficiently served by the continued existence of such board. [1969 c 113 § 14.] 15.09.900 15.09.900 Chapter cumulative. The effects of the provisions of this chapter on the provisions of chapter 15.08 RCW shall be cumulative. [1969 c 113 § 15.] Chapter 15.13 RCW HORTICULTURAL PLANTS AND FACILITIES— INSPECTION AND LICENSING Chapter 15.13 Sections 15.13.250 15.13.260 15.13.262 15.13.265 15.13.270 15.13.280 15.13.285 15.13.290 15.13.300 15.13.310 15.13.315 15.13.320 15.13.335 15.13.340 15.13.360 15.13.370 15.13.380 15.13.390 15.13.400 15.13.410 15.13.420 15.13.425 15.13.430 15.13.440 15.13.445 (2006 Ed.) Definitions. Enforcement—Rules—Scope. Application of administrative procedure act. Enforcement—Access to nursery dealer premises—Inspection. Licensing exemptions—Permits for clubs, conservation districts, nonprofit associations, educational organizations. Nursery dealer licenses—Farmers markets—Application— Fees—Expiration—Posting—Audit. Nursery dealer licenses—Fee surcharge. Nursery dealer licenses—Additional charge for late renewal. Nursery dealer licenses—Application—Contents. Assessment on gross sale price of wholesale market value of certain horticultural plants—Method for determining—Due date—Gross sale period—Audit. Grapevine certification and nursery improvement program— Advisory committee. Fruit tree certification and nursery improvement program— Advisory committee. Nursery advisory committee—Members—Terms. Late fee on delinquent assessments. Hearings—Subpoenas. Request by licensee for inspector’s services during shipping season—Certificate of inspection—Other requests for inspection and/or certification services—Fees. Inspection fees—When due and payable—Arrears. Unlawful selling, shipment, or transport of plants within state, when. Unlawful shipment or delivery of plants into state, when— Certificate and inspection requirements—Rules—Hearing. Shipments into state to be marked or tagged. Unlawful acts enumerated. False advertisements. Hold order on damaged, infested, or infected plants—Selling or moving unlawful. Order of condemnation—Grounds for issuance. Order or action of director—Hearing opportunity. 15.13.447 15.13.450 15.13.455 15.13.470 15.13.477 15.13.480 15.13.490 15.13.920 15.13.940 15.13.250 Prohibition on recovery of damages. Injunction to prevent violations. Injunction to restrain operation as nursery dealer without valid license—Costs, attorneys’ fees, and expenses. Disposition of moneys collected under chapter—Expenditure. Compliance agreements. Cooperative contracts or agreements to further chapter— Agreements to facilitate export. Compliance with chapter—Violation—Penalties. Chapter cumulative and nonexclusive. Severability—1971 ex.s. c 33. Prior law: 1961 c 11 §§ 15.12.010 through 15.12.110; 1961 c 221 §§ 1 through 23 (codified as RCW 15.13.010 through 15.13.210, 15.13.900, and 15.13.910). 15.13.250 15.13.250 Definitions. For the purpose of this chapter: (1) "Department" means the department of agriculture of the state of Washington. (2) "Director" means the director of the department or the director’s duly authorized representative. (3) "Person" means any individual, firm, partnership, corporation, company, society and association, and every officer, agent or employee thereof. (4) "Horticultural plant" includes, but is not limited to, any horticultural, floricultural, or viticultural plant, or turf, for planting, propagation or ornamentation growing or otherwise. The term does not apply to potato, garlic, or onion planting stock or to cut plant material, except plant parts used for propagative purposes. (5) "Horticultural facilities" means, but is not limited to, the premises where horticultural plants are grown, stored, handled or delivered for sale or transportation, or where records required under this chapter are stored or kept, and all vehicles and equipment used to transport horticultural plants. (6) "Plant pests" means, but is not limited to, a living stage of insect, mite, or other arthropod; nematode; slug, snail, or other mollusk; protozoa or other invertebrate animals; bacteria; fungus; virus; viroid; phytoplasma; weed or parasitic plant; or any organisms similar to or allied with any of the plant pests listed in this section; or any infectious substance; which can directly or indirectly injure or cause disease or damage to any plant or plant product or that threatens the diversity or abundance of native species. (7) "Inspection and/or certification" means, but is not limited to, the inspection by the director of horticultural plants at any time prior to, during, or subsequent to harvest or sale and the issuance by the director of a written certificate stating if the horticultural plants are in compliance with the provisions of this chapter and rules adopted under this chapter. Inspection may include, but is not limited to, examination of horticultural plants, taking samples, destructive testing, conducting interviews, taking photographs, and examining records. (8) "Nursery dealer" means any person who sells horticultural plants or plants, grows, receives, or handles horticultural plants for the purpose of selling or planting for another person. (9) "Sell" means to sell, hold for sale, offer for sale, handle, or to use as an inducement for the sale of another article or product. (10) "Master license system" means the mechanism established by chapter 19.02 RCW by which master licenses, endorsed for individual state-issued licenses, are issued and renewed utilizing a master application and a master license [Title 15 RCW—page 11] 15.13.260 Title 15 RCW: Agriculture and Marketing expiration date common to each renewable license endorsement. (11) "Certificate" or "certificate of inspection" means an official document certifying compliance with the requirements of this chapter. The term "certificate" includes labels, rubber stamp imprints, tags, permits, written statements, or any other form of certification document that accompanies the movement of inspected and certified plant material. (12) "Turf" means field-cultivated turf grass sod consisting of grass varieties, or blends of grass varieties, and dichondra for use in residential and commercial landscapes. (13) "This chapter" means this chapter and the rules adopted under this chapter. (14) "Compliance agreement" means a written agreement between the department and a person engaged in growing, handling, or moving articles, plants, or plant products regulated under this chapter or title, in which the person agrees to comply with stipulated requirements. (15) "Consignor" means the person named in the invoice, bill, or other shipping document accompanying a horticultural plant as the person from whom the horticultural plant has been received for shipment. [2000 c 144 § 1; 1993 c 120 § 1; 1990 c 261 § 1; 1985 c 36 § 1; 1982 c 182 § 19; 1971 ex.s. c 33 § 1.] Severability—1982 c 182: See RCW 19.02.901. 15.13.260 15.13.260 Enforcement—Rules—Scope. The director shall enforce the provisions of this chapter and may adopt any rule necessary to carry out its purpose and provisions including but not limited to the following: (1) The director may adopt rules establishing standards for grades and/or classifications for any horticultural plant. (2) The director shall adopt rules for labeling or tagging horticultural plants. (3) The director may adopt rules for the inspection and/or certification of any horticultural plant as to variety, quality, size and freedom from infestation by plant pests. (4) The director shall adopt rules establishing fees for nursery dealer licenses and for inspection of horticultural plants and methods of fee collection. (5) The director may adopt rules prescribing minimum informational requirements for advertising for the sale of horticultural plants within the state. (6) The director may adopt rules establishing categories of sales and fees for permits established in RCW 15.13.270. [2000 c 144 § 2; 1993 c 120 § 2; 1990 c 261 § 2; 1985 c 36 § 2; 1971 ex.s. c 33 § 2.] 15.13.262 15.13.262 Application of administrative procedure act. Chapter 34.05 RCW governs the rights, remedies, and procedures respecting the administration of this chapter, including rule making, assessment of civil penalties, emergency actions, and license suspension, revocation, or denial. [2000 c 144 § 3.] 15.13.265 15.13.265 Enforcement—Access to nursery dealer premises—Inspection. (1) The director may enter and inspect the horticultural facilities of a nursery dealer at reasonable times for the purpose of carrying out the provisions of this chapter. [Title 15 RCW—page 12] (2) If the director is denied access, the director may apply to a court of competent jurisdiction for a search warrant authorizing access to the premises. The court may upon such application issue the search warrant for the purposes requested. The warrant shall be issued on probable cause. It is sufficient probable cause to show (a) the inspection is pursuant to a general administrative practice to determine compliance with this chapter or (b) the director has reason to believe that a violation of this chapter has occurred, is occurring, or may occur. (3) Denial of access to the director to perform inspections may subject a nursery dealer to revocation of the nursery license. [2000 c 144 § 4; 1993 c 120 § 7.] 15.13.270 15.13.270 Licensing exemptions—Permits for clubs, conservation districts, nonprofit associations, educational organizations. The provisions of this chapter relating to licensing do not apply to: (1) Persons making casual or isolated sales that do not exceed one hundred dollars annually; (2) any garden club, conservation district, or charitable nonprofit association conducting not more than three sales per year for not more than four consecutive days each of horticultural plants which are grown by or donated to its members; (3) educational organizations associated with private or public secondary schools. However, such a club, conservation district, association, or organization shall apply to the director for a permit to conduct such sales. All horticultural plants sold under such a permit shall be in compliance with the provisions of this chapter. [2000 c 144 § 5; 1993 c 120 § 3; 1990 c 261 § 3; 1985 c 36 § 3; 1983 1st ex.s. c 73 § 2; 1971 ex.s. c 33 § 3.] 15.13.280 15.13.280 Nursery dealer licenses—Farmers markets—Application—Fees—Expiration—Posting—Audit. (1) No person shall act as a nursery dealer without a license for each place of business where horticultural plants are sold except as provided in RCW 15.13.270. Any person applying for such a license shall apply through the master license system. The application shall be accompanied by the appropriate fee. The director shall establish a schedule of fees for retail and wholesale nursery dealer licenses based upon the person’s gross annual sales of horticultural plants at each place of business. The schedule for retail licenses shall include separate fees for at least the following two categories: (a) A person whose gross annual sales of horticultural plants do not exceed two thousand five hundred dollars; and (b) A person whose gross annual sales of horticultural plants exceed two thousand five hundred dollars. (2) A person conducting both retail and wholesale sales of horticultural plants at the same place of business shall secure one of the following: (a) A retail nursery dealer license if retail sales of the horticultural plants exceed such wholesale sales; or (b) A wholesale nursery dealer license if wholesale sales of the horticultural plants exceed such retail sales. (3) The director may issue a wholesale nursery dealer license to a person operating as a farmers market at which individual producers are selling directly to consumers. The license shall be at the appropriate level to cover all persons (2006 Ed.) Horticultural Plants and Facilities—Inspection and Licensing selling horticultural plants at each site at which the person operates a market. (4) The licensing fee that must accompany an application for a new license shall be based upon the applicant’s estimated gross sales of horticultural plants for the ensuing licensing year. The fee for renewing a license shall be based upon the licensee’s gross sales of these products during the preceding licensing year. (5) The license expires on the master license expiration date unless it has been revoked or suspended prior to the expiration date by the director for cause. Each license shall be posted in a conspicuous place open to the public in the location for which it was issued. (6) The department may audit licensees during normal business hours to determine that appropriate fees have been paid. [2000 c 144 § 6; 1993 c 120 § 4; 1987 c 35 § 1; 1985 c 36 § 4; 1983 1st ex.s. c 73 § 3; 1982 c 182 § 20; 1971 ex.s. c 33 § 4.] Severability—1982 c 182: See RCW 19.02.901. Master license expiration date: RCW 19.02.090. system existing licenses or permits registered under, when: RCW 19.02.810. generally: RCW 15.13.250(10). to include additional licenses: RCW 19.02.110. 15.13.285 15.13.285 Nursery dealer licenses—Fee surcharge. The director may, with the advice of the nursery advisory committee, establish by rule a surcharge to the fee for a nursery dealer license. The surcharge shall not exceed twenty percent of the license fee and shall be paid at the same time that the license fee is paid. Moneys collected from the surcharge shall be deposited in the agricultural local fund and shall be used solely to support research projects which are of general benefit to the nursery industry and are recommended by the nursery advisory committee. [2000 c 144 § 7; 1992 c 23 § 1.] Effective date—1992 c 23: "This act shall take effect on July 1, 1992." [1992 c 23 § 2.] 15.13.290 15.13.290 Nursery dealer licenses—Additional charge for late renewal. If any application for renewal of a nursery dealer license is not filed prior to the master license expiration date, the master license delinquency fee shall be assessed under chapter 19.02 RCW and shall be paid by the applicant before the renewal license is issued. [2000 c 144 § 8; 1982 c 182 § 21; 1971 ex.s. c 33 § 5.] Severability—1982 c 182: See RCW 19.02.901. Master license delinquency fee—Rate—Disposition: RCW 19.02.085. expiration date: RCW 19.02.090. system—Existing licenses or permits registered under, when: RCW 19.02.810. 15.13.300 15.13.300 Nursery dealer licenses—Application— Contents. Application for a license shall include: (1) The full name of the person applying for the license and if the applicant is an individual, receiver, trustee, firm, partnership, association, or corporation, the full name of each member of the firm or partnership, or the names of the officers of the association or corporation. (2) The principal business address of the applicant in the state and elsewhere. (2006 Ed.) 15.13.315 (3) The address for the location or locations for which the licenses are being applied. (4) The names of the persons authorized to receive and accept service of summons and legal notices of all kinds for the applicant. (5) Any other necessary information prescribed by the director. [2000 c 144 § 9; 1982 c 182 § 22; 1971 ex.s. c 33 § 6.] Severability—1982 c 182: See RCW 19.02.901. Master license system existing licenses or permits registered under, when: RCW 19.02.810. generally: Chapter 19.02 RCW. 15.13.310 15.13.310 Assessment on gross sale price of wholesale market value of certain horticultural plants—Method for determining—Due date—Gross sale period—Audit. (1) An annual assessment shall be levied on the gross sale price of the wholesale market value for all horticultural plants of the genera Chaenomeles, Cydonia, Crataegus, Malus, Prunus, Pyrus, Sorbus, and Vitis produced in Washington, and sold within the state or shipped from the state by any licensed nursery dealer during any license period. This annual assessment is based on the first sale price of such nursery stock except for rootstocks which are replanted and/or grafted or budded and planted for growing-on in the nursery. The director shall by rule determine the rate of an assessment needed to carry out the grapevine and fruit tree certification and nursery improvement programs set forth in RCW 15.13.470 and chapter 15.14 RCW. The wholesale market price may be determined by the wholesale catalogue price of the seller of the horticultural plants assessed under this section or of the shipper moving such nursery stock out of the state. If the seller or shipper does not have a catalogue, then the wholesale market price may be based on the actual selling price or an average wholesale market price. The director in determining the average wholesale market price may use catalogues of various businesses licensed under the provisions of this chapter or any other reasonable method. (2) The assessment is due and payable on the first day of July of each year. (3) The gross sale period shall be from July 1 to June 30 of the previous year. (4) The department may audit the records of licensees during normal business hours to determine that the appropriate assessment has been paid. [2002 c 215 § 1; 2000 c 144 § 10; 1993 c 120 § 5; 1990 c 261 § 4; 1987 c 35 § 2; 1983 1st ex.s. c 73 § 4; 1971 ex.s. c 33 § 7.] 15.13.315 15.13.315 Grapevine certification and nursery improvement program—Advisory committee. An advisory committee is established to advise the director in the administration of the grapevine certification and nursery improvement program. (1) The committee consists of two grapevine nursery dealers; three grape growers, at least two of whom grow wine grapes; one winery representative; a university researcher; and the director. (2) When appointing this committee, the director shall consider names submitted by the Washington association of wine grape growers and the Washington state grape society. [Title 15 RCW—page 13] 15.13.320 Title 15 RCW: Agriculture and Marketing (3) The terms of the members of the committee shall be staggered and the members shall serve a term of three years and until their successor has been appointed. [2002 c 215 § 2.] 15.13.320 15.13.320 Fruit tree certification and nursery improvement program—Advisory committee. An advisory committee is hereby established to advise the director in the administration of the fruit tree certification and nursery improvement program. (1) The committee shall consist of five fruit tree nursery dealers and the director or the director’s designated appointee. (2) When appointing this committee, the director shall consider names submitted by the Washington state nursery and landscape association. (3) The terms of the members of the committee shall be staggered and the members shall serve a term of three years and until their successor has been appointed. In the event a committee member resigns, is disqualified, or vacates a position on the committee for any other reason the vacancy shall be filled by the director under the provisions of this section governing appointments. [2000 c 144 § 11; 1993 c 120 § 6; 1990 c 261 § 5; 1983 1st ex.s. c 73 § 5; 1971 ex.s. c 33 § 8.] 15.13.335 15.13.335 Nursery advisory committee—Members— Terms. A nursery advisory committee is hereby established to advise the director in the administration of this chapter. (1) The committee shall consist of not less than four members, representing the interests of licensed nursery dealers and the nursery industry, appointed by the director in consultation with the following persons: The president of (a) the Washington state floricultural association, (b) the Washington state bulb association, and (c) the Washington state nursery and landscape association; and the director or the director’s designated appointee. (2) The terms of the members of the committee shall be staggered and the members shall serve a term of three years and until their successors have been appointed. In the event a committee member resigns, is disqualified, or vacates a position on the committee for any other reason, the vacancy shall be filled by the director under the provisions of this section governing appointments. [2000 c 144 § 12; 1990 c 261 § 6; 1983 1st ex.s. c 73 § 6.] 15.13.340 15.13.340 Late fee on delinquent assessments. (1) A late fee of twenty percent of the amount due shall be levied on all delinquent assessments for each license period the assessment is delinquent. (2) The director shall not issue a nursery dealer license to any applicant who has failed to pay any assessment due under the provisions of this chapter. [2000 c 144 § 13; 1971 ex.s. c 33 § 10.] 15.13.360 15.13.360 Hearings—Subpoenas. The director may issue subpoenas to compel the attendance of witnesses and/or production of books, documents, and records for purposes of investigating compliance with this chapter or for any hearing under this chapter. [2000 c 144 § 14; 1971 ex.s. c 33 § 12.] [Title 15 RCW—page 14] 15.13.370 Request by licensee for inspector’s services during shipping season—Certificate of inspection— Other requests for inspection and/or certification services—Fees. (1) Any person licensed under the provisions of this chapter may request the services of a department inspector at the licensee’s place of business or point of shipment during the shipping season. Subsequent to inspection the inspector shall issue to the licensee a certificate of inspection signed by the inspector covering any horticultural plants which the inspector finds to be in compliance with the provisions of this chapter. (2) Any person financially interested in any horticultural plants may request inspection and/or certification services provided for horticultural plants under this chapter. (3) To facilitate the marketing of agricultural commodities and other plant products, the director may provide, if requested, special inspections or certifications not otherwise authorized under this chapter and shall prescribe a fee for that service. [2002 c 215 § 3; 2000 c 144 § 15; 1993 c 120 § 8; 1990 c 261 § 8; 1971 ex.s. c 33 § 13.] 15.13.370 15.13.380 Inspection fees—When due and payable— Arrears. (1) The inspection fees provided for in this chapter shall become due and payable upon billing by the department. (2) A late charge of one and one-half percent per month shall be assessed on the unpaid balance against persons more than thirty days in arrears. (3) In addition to any other penalties, the director may refuse to perform any inspection or certification service for any person who is in arrears or who fails to pay any assessment due under the provisions of this chapter or assessments required by law to any agricultural commodity commission unless the person makes payment in full prior to such inspection or certification service. [2000 c 144 § 16; 1990 c 261 § 9; 1971 ex.s. c 33 § 14.] 15.13.380 15.13.390 Unlawful selling, shipment, or transport of plants within state, when. It is unlawful for any person to sell, ship, or transport any horticultural plant in this state unless it meets standards established in rule for freedom from infestation by plant pests and the other requirements of this chapter. [2000 c 144 § 17; 1993 c 120 § 9; 1971 ex.s. c 33 § 15.] 15.13.390 15.13.400 Unlawful shipment or delivery of plants into state, when—Certificate and inspection requirements—Rules—Hearing. (1) It is unlawful for any person to ship or deliver any horticultural plant into this state unless it is accompanied by an inspection certificate from the state or country of origin stating that the horticultural plant meets the requirements of this chapter. The director may require the shipper or receiver to file a copy of the manifest of nursery cargo or shipment of horticultural plants into this state with the director on or before the date the horticultural plants enter into the state. (2) The director may by rule require that any or all such horticultural plants delivered or shipped into the state be inspected for conformance with the requirements of this chapter prior to release by the person delivering or transporting such horticultural plants even though accompanied by 15.13.400 (2006 Ed.) Horticultural Plants and Facilities—Inspection and Licensing acceptable inspection certificates issued by the state or country of origin. (3) Any shipment found not to be in compliance with the requirements of this chapter may be returned to the consignor at the consignor’s expense. The consignor may subsequently request a hearing which shall be held in conformance with RCW 34.05.479 or other applicable provision of chapter 34.05 RCW. [2000 c 144 § 18; 1993 c 120 § 10; 1971 ex.s. c 33 § 16.] 15.13.410 15.13.410 Shipments into state to be marked or tagged. Each shipment of horticultural plants transported or shipped into the state and/or offered for retail sale within the state shall be legibly marked or tagged in a conspicuous manner. The director may, whenever the director finds that any horticultural plant is not properly marked, order it off sale until it is properly marked, or order that it be returned to the consignor for proper marking. [2000 c 144 § 19; 1993 c 120 § 11; 1990 c 261 § 10; 1971 ex.s. c 33 § 17.] 15.13.420 15.13.420 Unlawful acts enumerated. It is unlawful for any person: (1) To falsely claim to be an agent or representative of any nursery dealer in horticultural plants; (2) To sell or distribute horticultural plants by any method which has the capacity and tendency or effect of deceiving any purchaser or prospective purchaser as to the quantity, size, grade, kind, species, age, method of propagation, maturity, condition, vigor, hardiness, number of times transplanted, growth ability, growth characteristics, rate of growth or time required before flowering or fruiting, price, origin or place where grown, or in any other material respect; (3) To alter an official certificate or other official inspection document for plant materials covered by this chapter or to falsely represent a document as an official certificate; (4) To substitute any horticultural plant or agricultural commodity for a horticultural plant or agricultural commodity covered by an inspection certificate. [2000 c 144 § 20; 1993 c 120 § 12; 1990 c 261 § 11; 1971 ex.s. c 33 § 18.] 15.13.425 15.13.425 False advertisements. No publisher, radio and television broadcast licensee, advertising agency, or agency or medium for the dissemination of an advertisement, except the grower, packer, distributor, or seller of the article to which the advertisement relates, shall be subject to the penalties of RCW 15.13.490(2) by reason of dissemination of any false advertisement, unless the person has refused on the request of the director to furnish the name and address of the grower, packer, distributor, seller, or advertising agency in the state of Washington, who caused dissemination of the false advertisement. [2000 c 144 § 21; 1993 c 120 § 13.] 15.13.470 Treatment or other corrective measures shall be the sole responsibility of the persons holding the plant material for sale. It is unlawful to sell or move such plants until released in writing by the director. [2000 c 144 § 22; 1993 c 120 § 14; 1971 ex.s. c 33 § 19.] 15.13.440 15.13.440 Order of condemnation—Grounds for issuance. The director shall condemn any horticultural plants shipped or sold when such horticultural plants are found to be dead, in a dying condition, seriously broken, diseased or infested to the extent that treatment is not practical, damaged, frozen, or abnormally potbound. The director shall order such horticultural plants to be destroyed or returned at shipper’s option. [2000 c 144 § 23; 1993 c 120 § 15; 1990 c 261 § 12; 1971 ex.s. c 33 § 20.] 15.13.445 15.13.445 Order or action of director—Hearing opportunity. Upon issuance of an order or upon action by the director under RCW 15.13.400, 15.13.410, 15.13.430, or 15.13.440, the consignor of the plant material may request a hearing under chapter 34.05 RCW. [2000 c 144 § 24; 1993 c 120 § 16.] 15.13.447 15.13.447 Prohibition on recovery of damages. No state court shall allow the recovery of damages from administrative action, hold order, or condemnation order if the court finds there was probable cause for the action. [2000 c 144 § 25.] 15.13.450 15.13.450 Injunction to prevent violations. The director may bring an action to enjoin the violation of any provision of this chapter or any rule adopted under this chapter in the superior court in Thurston county or the county in which the violation occurs, notwithstanding the existence of other remedies at law. [2000 c 144 § 26; 1971 ex.s. c 33 § 21.] 15.13.455 15.13.455 Injunction to restrain operation as nursery dealer without valid license—Costs, attorneys’ fees, and expenses. (1) The director may apply to the superior court of Thurston county for a prompt hearing on, and the court shall have jurisdiction upon, and for cause shown the court shall, without proof that an adequate remedy at law does not exist, grant an injunction restraining any person from operating as a nursery dealer without a valid license. (2) An order restraining any person from operating as a nursery dealer without a valid license shall contain such provision for the payment of pertinent court costs and reasonable attorneys’ fees and administrative expenses as is equitable and the court deems appropriate in the circumstances. [2000 c 144 § 27; 1983 1st ex.s. c 73 § 7.] 15.13.470 15.13.430 15.13.430 Hold order on damaged, infested, or infected plants—Selling or moving unlawful. When the director has cause to believe that any horticultural plants are damaged or are infested or infected by any plant pest, the director may issue a hold order on such horticultural plants. A hold order may prescribe conditions under which plants must be held to prevent spread of the infestation or infection. (2006 Ed.) 15.13.470 Disposition of moneys collected under chapter—Expenditure. (1) Except as provided in RCW 15.13.285 and in subsections (2) and (3) of this section, all moneys collected under this chapter shall be paid to the director, deposited in an account within the agricultural local fund, and used solely for carrying out this chapter. No appropriation is required for the disbursement of moneys from the account by the director. [Title 15 RCW—page 15] 15.13.477 Title 15 RCW: Agriculture and Marketing (2) All fees collected under RCW 15.13.310 shall be deposited in the planting stock certification account within the agricultural local fund to be used only for the Washington grapevine and fruit tree certification and nursery improvement programs as set forth in this chapter and chapter 15.14 RCW. (3) All moneys collected for civil penalties under this chapter shall be deposited in the nursery research account within the agricultural local fund. [2002 c 215 § 4; 2000 c 144 § 28; 1999 c 144 § 16; 1993 c 120 § 17; 1990 c 261 § 13; 1987 c 35 § 3; 1985 c 36 § 5; 1975 1st ex.s. c 257 § 1; 1971 ex.s. c 33 § 25.] Effective date—1975 1st ex.s. c 257: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions and shall take effect on July 1, 1975." [1975 1st ex.s. c 257 § 13.] 15.13.477 15.13.477 Compliance agreements. The director may enter into compliance agreements with any person for the purpose of carrying out the provisions of this chapter. [2000 c 144 § 29.] Chapter 15.14 Chapter 15.14 RCW PLANTING STOCK Sections 15.14.010 15.14.015 15.14.025 15.14.035 15.14.045 15.14.050 15.14.065 15.14.075 15.14.085 15.14.095 15.14.105 15.14.115 15.14.125 15.14.135 15.14.145 15.14.900 15.14.920 Definitions. Rules—Scope. Certificates—Samples for inspection and testing—Publish information—Notify purchasers of results. Inspection of property, premises, or records—Denial of access—Search warrant. Compliance agreements authorized—Suspension or cancellation—Hearing. Registered, foundation, and breeder planting stock—Availability to producers and commercial growers—Restrictions on use—Fees. Acceptance as certified, registered, foundation, or breeder planting stock. Agreements with Washington State University, governmental entities, and other organizations. Acquisition of property—Use of property. Failure to meet certification requirements—Director’s options—Notice—Hearing. Unlawful acts. Injunctions. Late charge on fee or assessment. Noncompliance by growers—Director may withhold services. Deposit of funds in planting stock certification account—Use. Chapter cumulative and nonexclusive. Severability—1961 c 83. 15.13.480 15.13.480 Cooperative contracts or agreements to further chapter—Agreements to facilitate export. The director may cooperate with and enter into contracts or agreements with governmental agencies of this state and other states, agencies of the federal government, and any other organization in order to carry out the purpose and provisions of this chapter. The director may enter into agreements with the United States department of agriculture for the purpose of issuing phytosanitary certificates and other inspection documents, according to federal procedures, to facilitate the export of products from the state. [2000 c 144 § 30; 1993 c 120 § 18; 1971 ex.s. c 33 § 26.] 15.13.490 15.13.490 Compliance with chapter—Violation— Penalties. Any person who fails to comply with this chapter may be subject to: (1) Denial, revocation, or suspension of the person’s nursery dealer license; and/or (2) A civil penalty in an amount of not more than one thousand dollars for each violation. Each violation shall be a separate and distinct offense. Every person who, through an act of commission or omission, procures, aids, or abets in the violation shall be considered to have violated this section and may be subject to the civil penalty provided in this section. [2000 c 144 § 31; 1990 c 261 § 14; 1985 c 36 § 6; 1971 ex.s. c 33 § 27.] 15.13.920 15.13.920 Chapter cumulative and nonexclusive. The provisions of this chapter shall be cumulative and nonexclusive and shall not affect any other remedy. [1971 ex.s. c 33 § 22.] 15.13.940 15.13.940 Severability—1971 ex.s. c 33. If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances is not affected. [1971 ex.s. c 33 § 28.] [Title 15 RCW—page 16] 15.14.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Department" means the department of agriculture of the state of Washington. (2) "Director" means the director of the department or the director’s designee. (3) "Person" means an individual, firm, partnership, corporation, company, association, or public entity and every officer, agent, or employee of these entities. (4) "Plant pests" means, but is not limited to, any living stage of any insects, mites, nematodes, slugs, snails, protozoa, or other invertebrate animals, bacteria, fungi, other parasitic plants or weeds or reproductive parts thereof, viruses or any organisms similar to or allied with any of the foregoing, or any infectious substance, which can directly or indirectly injure or cause disease or damage to any plant or parts thereof, or any processed, manufactured, or other products of plants. (5) "Micropropagated plants" means plants propagated using aseptic laboratory techniques and an artificial culture medium. (6) "Tolerance" means the maximum acceptable percentage of planting stock that is diseased, infected by plant pests, defective, or off-type based on visual inspection or laboratory testing by the director or other authorized person. (7) "Planting stock" includes any plant material used in the propagation of horticultural, floricultural, viticultural, or olericultural plants for the purpose of being sold, offered for sale, or distributed for planting or reproduction purposes. (8) "Breeder planting stock" means plant propagating materials directly controlled by the originating or sponsoring plant breeder or institution, which provides the source of foundation planting stock. (9) "Foundation planting stock" means planting stock that has been so handled as to maintain genetic characteristics and that has been: (a) Increased directly from breeder planting stock; or 15.14.010 (2006 Ed.) Planting Stock (b) Designated as foundation planting stock by the director. (10) "Registered planting stock" means planting stock of a quality suitable for the production of certified planting stock that has been so handled as to maintain genetic characteristics and that is: (a) Increased directly from foundation or registered planting stock; or (b) Designated as registered planting stock by the director. (11) "Certified planting stock" means the progeny of foundation, registered, or certified planting stock that has been so handled as to maintain genetic characteristics, that has met certification standards authorized by this chapter, and that has been certified by the director. [1999 c 144 § 1; 1989 c 354 § 84; 1983 c 3 § 19; 1961 c 83 § 1.] Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. 15.14.015 15.14.015 Rules—Scope. The director may adopt rules necessary to carry out the purpose and provisions of this chapter concerning, but not limited to: (1) Certification of planting stock as to freedom from infection by plant pests, variety, classification, and grade. (2) Establishment of tolerances for planting stock that is diseased, infected with plant pests, defective, or off-type. (3) Establishment of standards and grades for planting stock. (4) Labeling, identification, grading, and packing of foundation, registered, and certified planting stock. (5) Inspection and testing of foundation, registered, and certified planting stock prior to planting during the growing season or seasons, prior to and during harvest, and subsequent to harvest. (6) Exclusion and removal of diseased, infected with plant pests, defective, or off-type plants from foundation, registered, and certified planting stock. (7) Establishing processes, site requirements, and criteria for participation in programs authorized by this chapter. (8) Cultivation and sanitation practices in growing, storing, distributing, and processing foundation, registered, and certified planting stock. (9) Establishing recordkeeping requirements. (10) Production, utilization, and testing of micropropagated plants for foundation, registered, and certified planting stock. (11) Establishment of fees and assessments for inspection, testing, and certification of planting stock and other services authorized by this chapter. [1999 c 144 § 2; 1961 c 83 § 3. Formerly RCW 15.14.030.] 15.14.025 15.14.025 Certificates—Samples for inspection and testing—Publish information—Notify purchasers of results. The director may: (1) Issue certificates stating that planting stock found by the director or other authorized person to be in compliance with rules adopted under this chapter is foundation, registered, or certified planting stock. (2006 Ed.) 15.14.075 (2) Take samples in reasonable amounts as necessary of planting stock to inspect and test for genetic characteristics and/or freedom from infection by plant pests. (3) Publish names of growers participating in certification programs and inspection results. (4) Require growers participating in certification programs to notify purchasers of planting stock when postharvest inspections or tests show the planting stock represented as foundation, registered, or certified has failed to meet minimum standards for certification. [1999 c 144 § 3; 1961 c 83 § 7. Formerly RCW 15.14.070.] 15.14.035 15.14.035 Inspection of property, premises, or records—Denial of access—Search warrant. In order to carry out the purposes of this chapter, the director may enter at reasonable times as determined by the director and inspect any property or premises and any records required under this chapter. If the director is denied access to any property, premises, or records, the director may suspend, cancel, or refuse certification or other approval of the planting stock or may apply to a court of competent jurisdiction for a search warrant authorizing access to the property, premises, or records. The court may upon the application issue a search warrant for the purpose requested. [1999 c 144 § 4.] 15.14.045 15.14.045 Compliance agreements authorized—Suspension or cancellation—Hearing. The director may enter into compliance agreements with any grower of foundation, registered, or certified planting stock for the purpose of carrying out the provisions of this chapter. The director may suspend or cancel any compliance agreement for cause. Upon notice by the director to suspend or cancel a compliance agreement, a person may request a hearing under chapter 34.05 RCW. [1999 c 144 § 5.] 15.14.050 15.14.050 Registered, foundation, and breeder planting stock—Availability to producers and commercial growers—Restrictions on use—Fees. For purposes of maintaining and/or improving the genetic characteristics and freedom from infection by plant pests of any registered, foundation, and breeder planting stock, the director may acquire, propagate, and distribute registered, foundation, and breeder planting stock to producers and commercial growers. The director may charge fees for the planting stock and may place restrictions on its use and propagation by producers and commercial growers. [1999 c 144 § 6; 1961 c 83 § 5.] 15.14.065 15.14.065 Acceptance as certified, registered, foundation, or breeder planting stock. The director may accept as certified, registered, foundation, or breeder planting stock any planting stock grown or produced by Washington State University, the United States department of agriculture or other propagators whose plant materials are produced in conformance with the requirements of this chapter and rules adopted under this chapter. [1999 c 144 § 7; 1961 c 83 § 11. Formerly RCW 15.14.110.] 15.14.075 15.14.075 Agreements with Washington State University, governmental entities, and other organizations. The director may cooperate with and enter into agreements [Title 15 RCW—page 17] 15.14.085 Title 15 RCW: Agriculture and Marketing with Washington State University, the United States department of agriculture, other state and federal agencies, and any other organization in order to carry out the purposes and provisions of this chapter. [1999 c 144 § 8; 1961 c 83 § 12. Formerly RCW 15.14.120.] 15.14.085 15.14.085 Acquisition of property—Use of property. The director may acquire by gift, grant, or endowment from public or private sources, as may be made in trust or otherwise, for the use and benefit of the purposes of this chapter, real property and any other type property, and expend the same or any income therefrom according to the terms of the gift, grant, or endowment. [1999 c 144 § 9; 1961 c 83 § 4. Formerly RCW 15.14.040.] 15.14.095 15.14.095 Failure to meet certification requirements—Director’s options—Notice—Hearing. The director may suspend, cancel, or refuse certification or other approval of any planting stock that fails to meet the certification requirements authorized in this chapter. Upon notice by the director to suspend, cancel, or refuse certification or other approval of any planting stock, a person may request a hearing under chapter 34.05 RCW. [1999 c 144 § 10.] 15.14.105 15.14.105 Unlawful acts. It is unlawful for any person to sell, offer for sale, hold for sale, label, identify, represent, or to advertise any planting stock as being certified, registered, foundation, or breeder planting stock unless it complies with the requirements of this chapter and rules adopted under this chapter. [1999 c 144 § 11; 1961 c 83 § 14. Formerly RCW 15.14.140.] 15.14.115 15.14.115 Injunctions. The director may bring an action to enjoin the violation or threatened violation of any provision of this chapter or any rule adopted pursuant to this chapter in the superior court of Thurston county, notwithstanding the existence of other remedies at law. [1961 c 83 § 15. Formerly RCW 15.14.150.] 15.14.125 15.14.125 Late charge on fee or assessment. A late charge of one and one-half percent per month shall be assessed on the unpaid balance against persons more than thirty days in arrears for any fee or assessment authorized by this chapter. [1999 c 144 § 12.] 15.14.135 15.14.135 Noncompliance by growers—Director may withhold services. The director may withhold services to growers of planting stock for refusal to comply with the provisions of this chapter or its rules, for nonpayment of fees and assessment moneys owed to the department by law, or for nonpayment of any assessment moneys due to an agricultural commodity commission. [1999 c 144 § 13.] 15.14.145 15.14.145 Deposit of funds in planting stock certification account—Use. All the moneys collected under the provisions of this chapter shall be paid to the director and deposited in the planting stock certification account within the agricultural local fund and shall be used only to carry out the purposes and provisions of this chapter. [1999 c 144 § 14; 1961 c 83 § 13. Formerly RCW 15.14.130.] [Title 15 RCW—page 18] 15.14.900 15.14.900 Chapter cumulative and nonexclusive. The provisions of this chapter shall be cumulative and nonexclusive and shall not affect any other remedy. [1961 c 83 § 16.] 15.14.920 15.14.920 Severability—1961 c 83. If any provisions of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances is not affected. [1961 c 83 § 18.] Chapter 15.15 Chapter 15.15 RCW CERTIFIED SEED POTATOES Sections 15.15.005 15.15.010 15.15.020 15.15.900 Legislative findings. Restricted seed potato production area—Growers’ petition— Department of agriculture—Director—Rules. Violation or threatened violation of chapter—Action to enjoin. Effective date—1997 c 176. 15.15.005 15.15.005 Legislative findings. The legislature finds that the production of high quality certified seed potatoes within the state requires conditions that are as free as possible from insect pests and plant diseases and that ensuring these conditions exist is in the public interest. The legislature further finds that the production of other potatoes intermixed with or in close proximity to a concentrated seed potato production area poses an increased risk of introduction of plant diseases and insect pests. [1997 c 176 § 1.] 15.15.010 15.15.010 Restricted seed potato production area— Growers’ petition—Department of agriculture—Director—Rules. Growers of seed potatoes, certified in accordance with rules adopted under chapter 15.14 RCW, may submit a petition to the director of the department of agriculture requesting that the director establish a restricted seed potato production area. The petition shall include the proposed geographic boundaries of the restricted seed potato production area, and the types of restrictions that are proposed to apply to the growing of nonseed potatoes. The petition shall contain the signatures of at least fifty percent of the growers of certified seed potatoes who have produced at least fifty percent of the certified seed potatoes within the proposed restricted seed potato production area in each of the two preceding years. Upon receipt of a petition submitted in accordance with this section, the director of the department of agriculture shall, within sixty days of receipt of the petition, investigate the need of establishing a restricted seed potato production area. The director may propose rules and hold public hearings in the area affected by the proposed rules. The director has the authority to adopt rules in accordance with chapter 34.05 RCW to establish restricted seed potato production areas to prevent the increased exposure to plant diseases and insect pests that adversely affect the ability to meet standards for certification of seed potatoes established under chapter 15.14 RCW. [1997 c 176 § 2.] 15.15.020 15.15.020 Violation or threatened violation of chapter—Action to enjoin. The director of the department of agriculture may bring an action to enjoin the violation or (2006 Ed.) Standards of Grades and Packs threatened violation of any provision of this chapter or any rule made pursuant to this chapter in a court of competent jurisdiction of the county in which such violation occurs or is about to occur. [1997 c 176 § 3.] 15.15.900 15.15.900 Effective date—1997 c 176. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [April 23, 1997]. [1997 c 176 § 5.] Chapter 15.17 Chapter 15.17 RCW STANDARDS OF GRADES AND PACKS Sections 15.17.010 15.17.020 15.17.030 15.17.050 15.17.060 15.17.080 15.17.090 15.17.140 15.17.143 15.17.150 15.17.170 15.17.190 15.17.200 15.17.210 15.17.213 15.17.230 15.17.240 15.17.243 15.17.260 15.17.270 15.17.290 15.17.900 15.17.940 Purpose. Definitions. Enforcement—Director’s duties—Rules. Rules—Authority of director. Adoption of standards. Fresh fruits—Culls—Basket markings—Designation on bills of lading, invoices, etc. Private grades or brands—Approval and registration. Inspections and certifications—Request for—Fees. Certificates of compliance—Petition by shipper—Rules. Inspections and certifications—Fees adopted by rule—Failure to pay. Inspection certificate or other official document as evidence. Inspections—Right of access—Samples—Denial of access— Search warrants. Noncomplying fruits or vegetables—Enforcement procedure—Notice—Hearing. Fruits or vegetables—Unlawful practices when selling, offering for sale, or shipping—Containers—Director’s powers— Rules. Exemption of certain fruits or vegetables from chapter. Fruit and vegetable inspection districts. Fruit and vegetable inspection account—District subaccounts—Fees—Rules. District two—Transfer of funds—Control of Rhagoletis pomonella. Injunctions. Cooperation with governmental agencies. Violation of chapter or rules—Suspension—Civil penalty. Provisions cumulative and nonexclusive. Severability—1963 c 122. Grain and other commodities, standard grades: Chapter 22.09 RCW. Weights and measures, standards, packages, boxes, etc.: Chapter 19.94 RCW. 15.17.010 15.17.010 Purpose. The purpose of this chapter is to provide for the fair and orderly marketing of fruits and vegetables in the state of Washington by establishing uniform grades and standards and by providing for the inspection of these products. This chapter is vital to protecting the national and international reputation of fruit and vegetable products grown and shipped from this state and protecting consumers from the sale of inferior and misrepresented fruits and vegetables. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the immediate and future health, safety, and general welfare of the citizens of this state. [1998 c 154 § 1; 1963 c 122 § 1.] 15.17.020 15.17.020 Definitions. For the purpose of this chapter: (1) "Agent" means broker, commission merchant, solicitor, seller, or consignor, and any other person acting upon the actual or implied authority of another. (2006 Ed.) 15.17.020 (2) "Certification" means, but is not limited to, the issuance by the director of an inspection certificate or other official document stating the grade, classification, and/or condition of any fruits or vegetables, and/or if the fruits or vegetables are free of plant pests and/or other defects. (3) "Combination grade" means two or more grades packed together as one, except cull grades, with a minimum percent of the product of the higher grade, as established by rule. (4) "Compliance agreement" means an agreement entered into between the department and a shipper or packer, that authorizes the shipper or packer to issue certificates of compliance for fruits and vegetables. (5) "Container" means any container or subcontainer used to prepackage any fruits or vegetables. This does not include a container used by a retailer to package fruits or vegetables sold from a bulk display to a consumer. (6) "Deceptive arrangement or display" means any bulk lot or load, arrangement, or display of fruits or vegetables which has in the exposed surface, fruits or vegetables which are so superior in quality, size, condition, or any other respect to those which are concealed, or the unexposed portion, as to materially misrepresent any part of the bulk lot or load, arrangement, or display. (7) "Deceptive pack" means the pack of any container which has in the outer layer or any exposed surface fruits or vegetables which are in quality, size, condition, or any other respect so superior to those in the interior of the container in the unexposed portion as to materially misrepresent the contents. Such pack is deceptive when the outer or exposed surface is composed of fruits or vegetables whose size is not an accurate representation of the variation of the size of the fruits or vegetables in the entire container, even though the fruits or vegetables in the container are virtually uniform in size or comply with the specific standards adopted under this chapter. (8) "Department" means the department of agriculture of the state of Washington. (9) "Director" means the director of the department or his or her duly authorized representative. (10) "District manager" means a person representing the director in charge of overall operation of a fruit and vegetable inspection district established under RCW 15.17.230. (11) "Facility" means, but is not limited to, the premises where fruits and vegetables are grown, stored, handled, or delivered for sale or transportation, and all vehicles and equipment, whether aerial or surface, used to transport fruits and vegetables. (12) "Fruits and vegetables" means any unprocessed fruits or vegetables. (13) "Handler" means any person engaged in the business of handling, selling, processing, storing, shipping, or distributing fruits or vegetables that he or she has purchased or acquired from a producer. (14) "Inspection" means, but is not limited to, the inspection by the director of any fruits or vegetables at any time prior to, during, or subsequent to harvest. (15) "Mislabel" means the placing or presence of any false or misleading statement, design, or device upon any wrapper, container, container label or lining, or any placard [Title 15 RCW—page 19] 15.17.030 Title 15 RCW: Agriculture and Marketing used in connection with and having reference to fruits or vegetables. (16) "Person" means any individual, firm, partnership, corporation, company, society, or association, and every officer, agent, or employee thereof. (17) "Plant pests" means, but is not limited to, any living stage of any insects, mites, nematodes, slugs, snails, protozoa, or other invertebrate animals, bacteria, fungi, viruses, or any organisms similar to or allied with any of the foregoing, or any infectious substance, which can directly or indirectly injure or cause disease or damage in any plant or parts thereof, or any processed, manufactured, or other products of plants. (18) "Sell" means to sell, offer for sale, hold for sale, or ship or transport in bulk or in containers. (19) "Standards" means grades, classifications, and other inspection criteria for fruits and vegetables. [1998 c 154 § 2; 1996 c 188 § 1; 1963 c 122 § 2.] 15.17.030 15.17.030 Enforcement—Director’s duties—Rules. (1) The director shall enforce and carry out the provisions of this chapter and may adopt the necessary rules to carry out its purpose. (2) The director shall, whenever he or she considers the adoption of rules or amendments to existing rules, consult with growers, associations of growers or other industry associations, or other persons affected by such rules or amendments. [1998 c 154 § 3; 1963 c 122 § 3.] 15.17.050 15.17.050 Rules—Authority of director. (Expires December 31, 2007.) (1) The director shall adopt rules providing standards for apples, apricots, Italian prunes, peaches, sweet cherries, pears, potatoes, and asparagus, except for asparagus shipped out-of-state for fresh packing, and may adopt rules providing standards for any other fruit or vegetable. When establishing these standards, the director shall consider the factors of maturity, soundness, color, shape, size, and freedom from mechanical and plant pest injury and other factors important to marketing. (2) The director shall adopt rules providing for mandatory inspection of apples, apricots, Italian prunes, peaches, sweet cherries, pears, and asparagus and may adopt rules providing for mandatory inspection of any other fruit or vegetable. (3) The director may adopt rules: (a) Fixing the sizes and dimensions of containers to be used for the packing or handling of any fruits or vegetables; and (b) Establishing combination grades for fruits and vegetables. The standards for combination grades shall, by percentage quantities, include two or more of the grades provided for under this chapter. [2004 c 211 § 1; 1998 c 154 § 4; 1963 c 122 § 5.] Expiration date—2004 c 211 § 1: "Section 1 of this act expires December 31, 2007." [2005 c 234 § 1; 2004 c 211 § 2.] Effective date—2004 c 211: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 29, 2004]." [2004 c 211 § 3.] [Title 15 RCW—page 20] 15.17.050 15.17.050 Rules—Authority of director. (Effective December 31, 2007.) (1) The director shall adopt rules providing standards for apples, apricots, Italian prunes, peaches, sweet cherries, pears, potatoes, and asparagus and may adopt rules providing standards for any other fruit or vegetable. When establishing these standards, the director shall consider the factors of maturity, soundness, color, shape, size, and freedom from mechanical and plant pest injury and other factors important to marketing. (2) The director shall adopt rules providing for mandatory inspection of apples, apricots, Italian prunes, peaches, sweet cherries, pears, and asparagus and may adopt rules providing for mandatory inspection of any other fruit or vegetable. (3) The director may adopt rules: (a) Fixing the sizes and dimensions of containers to be used for the packing or handling of any fruits or vegetables; and (b) Establishing combination grades for fruits and vegetables. The standards for combination grades shall, by percentage quantities, include two or more of the grades provided for under this chapter. [1998 c 154 § 4; 1963 c 122 § 5.] 15.17.060 15.17.060 Adoption of standards. The director may adopt any United States or other state’s standard for any fruits and vegetables, if that standard is determined by the director to be substantially equivalent to or better than the standard adopted under this chapter. [1998 c 154 § 5; 1963 c 122 § 6.] 15.17.080 15.17.080 Fresh fruits—Culls—Basket markings— Designation on bills of lading, invoices, etc. It is unlawful for any person to sell for fresh consumption any fresh fruits classified as culls under the provisions of this chapter or rules adopted hereunder unless such fruit is packed in one-half bushel or one bushel wooden baskets ring faced, with the fruit in the ring face representative of the size and quality of the fruit in such baskets. The baskets shall be lidded and the words "cull" including the kind of fruit and variety must appear on the top and side of each basket and on any label in clear and legible letters at least two and one-half inches high. Every bill of lading, invoice, memorandum, and document referring to the fruit shall designate them as culls. [1998 c 154 § 6; 1963 c 122 § 8.] 15.17.090 15.17.090 Private grades or brands—Approval and registration. The director may approve and register a private grade or brand for any fruit or vegetable. The private grade or brand shall not be lower than the second grade and/or classification established under the provisions of this chapter or rules adopted under this chapter for the fruit or vegetable. [1998 c 154 § 7; 1963 c 122 § 9.] 15.17.140 15.17.140 Inspections and certifications—Request for—Fees. (1) Any person financially interested in any fruits or vegetables in this state may request inspection and/or certification services provided for those fruits or vegetables under this chapter. (2) To facilitate the movement or sale of fruits and vegetables or other agricultural commodities, the director may (2006 Ed.) Standards of Grades and Packs provide, if requested by growers or other interested persons, special inspections or certifications not otherwise authorized under this chapter and shall prescribe a fee for that service. (3) Persons requesting services shall be responsible for payment of fees for those services prescribed by the director under RCW 15.17.150. [1998 c 154 § 9; 1963 c 122 § 14.] 15.17.143 15.17.143 Certificates of compliance—Petition by shipper—Rules. Any shipper or packer of apples, apricots, cherries, pears, peaches, Italian prunes, potatoes, or asparagus may petition the director for authority to issue certificates of compliance for each season. The director may issue certificate of compliance agreements, granting this authority, on terms and conditions defined by rule. Certificates of compliance shall only be issued for fruits or vegetables that are in full compliance with this chapter and the rules adopted under this chapter. [1998 c 154 § 20.] 15.17.150 15.17.150 Inspections and certifications—Fees adopted by rule—Failure to pay. The director shall adopt rules establishing the necessary fees to recover the costs of providing inspection and/or certification or other requested services. (1) The fees are due and payable upon billing. (2) A late fee of one and one-half percent per month on the unpaid balance shall be assessed against persons more than thirty days in arrears. (3) In addition to other penalties, the director may refuse to perform any inspection or certification service provided under this chapter for any person in arrears unless the person makes payment in full prior to such inspection or certification service. (4) The director may refuse to perform inspection or certification service for any person who has failed to pay assessments required by law to any agricultural commodity commission. [1998 c 154 § 10; 1963 c 122 § 15.] 15.17.210 15.17.200 Noncomplying fruits or vegetables— Enforcement procedure—Notice—Hearing. (1) For the purposes of this section, "lot" means any lot or any part of a lot. (2) When the director determines that any lot of fruits or vegetables fails to comply with the requirements of this chapter, the director may issue a hold order prohibiting the sale or movement of that lot except under conditions that may be prescribed. (3)(a) Written notice of the hold order must be provided to the person in possession of the lot of fruits or vegetables and a tag may be affixed to the lot or its containers. It is unlawful for any person except the director to alter, deface, or remove the tag or notice or to move or allow the lot of fruits or vegetables to be moved except under the conditions prescribed on the tag or notice. (b) The notice shall include: (i) A description of the lot that is in noncompliance; (ii) The location of the lot; (iii) The reason that the hold order is placed on the lot; (iv) Any reconditioning, other corrective measures, or diversion to processing that may be required to release the lot for sale; (v) Time frames to affect the reconditioning or other corrective measures; and (vi) A reference to the violation of this chapter that provides the basis for the hold order. (c) Any corrective measures required by the notice pursuant to (b)(iv) of this subsection and the costs associated therewith are the sole responsibility of the person holding the fruits or vegetables for sale. (4) Upon issuance of a hold order by the director under this section, the seller or holder of the fruits or vegetables may request a hearing. The request for hearing must be in writing and filed with the director. Any hearing shall be held in conformance with RCW 34.05.422 and 34.05.479. [1998 c 154 § 13; 1987 c 202 § 172; 1963 c 122 § 20.] 15.17.200 Intent—1987 c 202: See note following RCW 2.04.190. 15.17.170 15.17.170 Inspection certificate or other official document as evidence. Every inspection certificate or other official document issued by the director under the provisions of this chapter shall be received in all the courts of the state as prima facie evidence of the statements therein. [1998 c 154 § 11; 1963 c 122 § 17.] 15.17.190 15.17.190 Inspections—Right of access—Samples— Denial of access—Search warrants. The director may enter during business hours and inspect any facility where any fruits or vegetables are processed, stored, packed, delivered for shipment, loaded, shipped, being transported, or sold, and may inspect all fruits or vegetables and the containers and the equipment in that facility. The director may take for inspection representative samples of fruits or vegetables and containers as may be necessary to determine whether or not this chapter or rules adopted under this chapter have been violated. If the director is denied access to any facility, the director may apply to a court of competent jurisdiction for a search warrant authorizing access to the facility. The court may upon such application issue a search warrant for the purpose requested. [1998 c 154 § 12; 1963 c 122 § 19.] (2006 Ed.) 15.17.210 Fruits or vegetables—Unlawful practices when selling, offering for sale, or shipping—Containers— Director’s powers—Rules. It is unlawful: (1) To sell any fruits or vegetables: (a) As meeting the standards for any fruit or vegetable as prescribed by the director unless they in fact do so; (b) For which no standards have been established under this chapter unless ninety percent or more by weight or count, as determined by the director, are free from plant pest injury that has penetrated or damaged the edible portions and from worms, mold, slime, or decay; (c) In containers other than the size and dimensions prescribed by the director by rule; (d) Unless the containers in which the fruits or vegetables are placed or packed are marked with the proper grade and additional information as may be prescribed by rule. The additional information may include: (i) The name and address of the grower, or packer, or distributor; (ii) The varieties of the fruits or vegetables; (iii) The size, weight, and either volume or count, or both, of the fruits or vegetables; 15.17.210 [Title 15 RCW—page 21] 15.17.213 Title 15 RCW: Agriculture and Marketing (e) Which are in containers marked or advertised for sale or sold as being either graded or classified, or both, according to the standards prescribed by the director by rule unless the fruits or vegetables conform with the standards; (f) Which are deceptively packed; (g) Which are deceptively arranged or displayed; (h) Which are mislabeled; or (i) Which do not conform to this chapter or rules adopted under this chapter; (2) For any person to ship or transport or any carrier to accept any lot of fruits or vegetables without an inspection certificate, permit, or certificate of compliance when the director has prescribed by rule that such products be accompanied by an inspection certificate, permit, or certificate of compliance. The inspection certificate, permit, or certificate of compliance shall be on a form prescribed by the director and may include methods of denoting that all assessments provided for by law have been paid before the fruits or vegetables may lawfully be delivered or accepted for shipment; (3) For any person to refuse to submit any container, load, or display of fruits or vegetables for inspection by the director, or refuse to stop any vehicle or equipment containing such products for the purpose of inspection by the director; (4) For any person to move any fruits or vegetables or their containers to which any tag has been affixed, except as provided in RCW 15.17.200; or (5) After October 1st of any calendar year, for any person to sell containers of apples, containing apples harvested in a prior calendar year, to any retailer or wholesaler for the purpose of resale to the public for fresh consumption. [2002 c 316 § 1; 1998 c 154 § 14; 1994 c 67 § 2; 1963 c 122 § 21.] 15.17.213 15.17.213 Exemption of certain fruits or vegetables from chapter. (1) This chapter does not apply: (a) To the movement in bulk of any fruits or vegetables from the premises where they are grown or produced to a packing shed, warehouse, or processing plant for the purpose of storing, grading, packing, labeling, or processing prior to entering commercial channels for wholesale or retail sale; (b) To any processed, canned, frozen, or dehydrated fruits or vegetables; (c) To any infected or infested fruits or vegetables to be manufactured into byproducts or to be shipped to a byproducts plant; or (d) To the sale of up to five hundred pounds per day of any fruit or vegetable by any producer or handler directly to an individual ultimate consumer unless otherwise established by rule for an individual commodity. These fruits and vegetables shall meet the requirements of RCW 15.17.210(1)(b). (2) The inspection requirements of this chapter do not apply to the sale or transportation within a zone of production, as defined by rule, of any fruit or vegetable named in RCW 15.17.050(1) or any combination of those fruits and vegetables to a fruit or produce stand or farmers market in a quantity specified by the director by rule. [1998 c 154 § 8; 1963 c 122 § 13. Formerly RCW 15.17.130.] 15.17.230 15.17.230 Fruit and vegetable inspection districts. For the purpose of this chapter the state shall be divided into [Title 15 RCW—page 22] not less than two fruit and vegetable inspection districts. The director, by rule, shall establish the boundaries of the districts and may adjust the boundaries for purposes of efficiency and economy. [2002 c 322 § 1; 1998 c 154 § 15; 1986 c 203 § 2; 1975 1st ex.s. c 7 § 1; 1969 ex.s. c 76 § 2; 1963 c 122 § 23.] Effective date—2002 c 322: See note following RCW 15.17.240. Severability—1986 c 203: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1986 c 203 § 25.] 15.17.240 15.17.240 Fruit and vegetable inspection account— District subaccounts—Fees—Rules. (1) The fruit and vegetable inspection account is created in the custody of the state treasurer. All fees collected under this chapter must be deposited into the account. The director may authorize expenditures from the account solely for the implementation and enforcement of this chapter and any other expenditures authorized by statute or session law and applying specifically to the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures. The director shall establish and maintain an account within the fruit and vegetable inspection account for each district established under RCW 15.17.230. (2) By August 1, 2004, and by August 1st of each evennumbered year thereafter, the director shall review the balance of each of the district accounts in the fruit and vegetable inspection account at the end of the previous fiscal year. If the balance in the district account exceeds the sum of the following: An amount equal to the total expenditures of the district served by that account for the last six months of that previous fiscal year; any budgeted capital expenditures from the account for the current fiscal year; and six hundred thousand dollars, the director shall temporarily and equally, on a percentage basis, reduce each of the fees accruing to the district account until such time that the district account has a balance equal to the amount of the total expenditures from the account for the last seven months of the previous fiscal year, at which time the fees shall be returned to the amounts before the temporary reduction. In making the reductions, the director shall attempt to reduce fees for a twelve-month period so as to apply the reductions to as many of the persons who annually pay fees for services provided by the district. The temporary fee reductions shall be initially provided through the adoption of emergency rules. The emergency and subsequent rules temporarily reducing the fees are exempt from the requirements of RCW 34.05.310 and chapter 19.85 RCW. These fees shall be reinstated through the expiration of the rules temporarily reducing them and the authority to reinstate them is hereby granted. [2002 c 322 § 2; 1998 c 154 § 16; 1975 c 40 § 3; 1963 c 122 § 24.] Effective date—2002 c 322: "This act takes effect July 1, 2002. However, the director of the department of agriculture and the state treasurer may take actions before July 1, 2002, to permit the creation of the fruit and vegetable inspection account and the district accounts described in RCW 15.17.240 by July 1, 2002." [2002 c 322 § 8.] 15.17.243 15.17.243 District two—Transfer of funds—Control of Rhagoletis pomonella. The district manager for district two as defined in *WAC 16-458-075 is authorized to transfer two hundred thousand dollars from the fruit and vegetable (2006 Ed.) Ginseng district fund to the plant pest account within the agricultural local fund. The amount transferred is to be derived from fees collected for state inspections of tree fruits and is to be used solely for activities related to the control of Rhagoletis pomonella in district two. The transfer of funds shall occur by June 1, 1997. On June 30, 2009, any unexpended portion of the two hundred thousand dollars shall be transferred to the fruit and vegetable inspection account and deposited in the district account for the district that includes Yakima county. [2005 c 49 § 1; 2003 c 14 § 1; 2002 c 322 § 4; 2001 c 92 § 1; 1999 c 47 § 1; 1997 c 227 § 1.] *Reviser’s note: WAC 16-458-075 was repealed by WSR 04-11-078, filed May 18, 2004, effective June 18, 2004. Later enactment, see chapter 16-390 WAC. Effective date—2003 c 14: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect June 30, 2003." [2003 c 14 § 2.] Effective date—2002 c 322: See note following RCW 15.17.240. Effective date—2001 c 92: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect June 30, 2001." [2001 c 92 § 2.] Effective date—1999 c 47: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect June 30, 1999." [1999 c 47 § 2.] Effective date—1997 c 227: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [April 26, 1997]." [1997 c 227 § 3.] 15.17.260 Injunctions. The director may bring an action to enjoin the violation of any provision of this chapter or rule adopted pursuant to this chapter in the superior court of Thurston county or of any county in which such violation occurs, notwithstanding the existence of other remedies at law. [1998 c 154 § 17; 1963 c 122 § 26.] 15.17.260 15.17.270 Cooperation with governmental agencies. The director may cooperate with and enter into agreements with governmental agencies of this state, other states, and agencies of federal government in order to carry out the purpose and provisions of this chapter. [1963 c 122 § 31.] 15.17.270 15.17.290 Violation of chapter or rules—Suspension—Civil penalty. Any person who violates this chapter or rules adopted under this chapter may be subject to: (1) Suspension of any compliance agreement under this chapter to which the person is a party for a period not to exceed twelve consecutive months; and/or (2) A civil penalty in an amount of not more than one thousand dollars for each violation. [1998 c 154 § 18; 1963 c 122 § 30.] 15.17.290 15.17.900 Provisions cumulative and nonexclusive. The provisions of this chapter shall be cumulative and nonexclusive and shall not affect any other remedy. [1963 c 122 § 27.] 15.17.900 15.17.940 Severability—1963 c 122. If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the 15.17.940 (2006 Ed.) 15.19.030 application of the provision to other persons or circumstances is not affected. [1963 c 122 § 33.] Chapter 15.19 Chapter 15.19 RCW GINSENG Sections 15.19.010 15.19.020 15.19.030 15.19.040 15.19.050 15.19.060 15.19.070 15.19.080 15.19.090 15.19.100 15.19.110 15.19.900 Definitions. Enforcement of chapter. Adoption of rules. Fees established by rule—Deposit—Use—Failure to pay. Inspection of facility—Entry—Samples—Search warrant. Injunctions. Cooperative agency agreements. Public disclosure of information—Exemption. Violations of chapter or rules—Unlawful. Violations of chapter or rules—Penalties. Remedies. Severability—1998 c 154. 15.19.010 15.19.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Department" means the department of agriculture of the state of Washington. (2) "Director" means the director of the department or his or her duly authorized representative. (3) "Facility" means, but is not limited to, the premises where ginseng is grown, stored, dried, handled, or delivered for sale or transportation, or where records required by rule under this chapter are stored or kept, and all vehicles and equipment, whether aerial or surface, used to transport ginseng. (4) "Grower" means a person who grows cultivated, wild simulated, and/or woodsgrown American ginseng and sells it to a dealer. (5) "Person" means any individual, firm, partnership, corporation, company, society, or association, and every officer, agent, or employee thereof. [1998 c 154 § 21.] 15.19.020 15.19.020 Enforcement of chapter. The director shall enforce and carry out the provisions of this chapter and may adopt the necessary rules to carry out its purpose. [1998 c 154 § 22.] 15.19.030 15.19.030 Adoption of rules. In addition to the powers conferred on the director under this chapter, the director has the power to adopt rules: (1) Establishing certification requirements for American ginseng (Panax quinquefolius L.). Certification factors include: (a) Place of origin; (b) Whether the ginseng is wild or cultivated; (c) Weight; and (d) Date of harvest; and may include whether the ginseng meets requirements for freedom from infestation by plant pests as required by the importing country; (2) Requiring the registration of ginseng growers and of dealers who purchase and/or sell American ginseng for the purpose of foreign export; and [Title 15 RCW—page 23] 15.19.040 Title 15 RCW: Agriculture and Marketing (3) Requiring that records be maintained by ginseng growers and by dealers who purchase or sell American ginseng for the purpose of foreign export. The director may adopt any other rules necessary to comply with the requirements of the convention on international trade in endangered species of wild fauna and flora (27 U.S.T. 108); the endangered species act of 1973, as amended (16 U.S.C. Sec. 1531 et seq.); and 50 C.F.R. Part 23 (1995), as they existed on June 6, 1996, or a subsequent date as may be provided by rule, consistent with the purposes of this section. [1998 c 154 § 23.] 15.19.040 15.19.040 Fees established by rule—Deposit—Use— Failure to pay. (1) The director shall adopt rules establishing fees to recover the costs of providing ginseng certification activities authorized under this chapter. All moneys collected under this chapter shall be paid to the director, deposited in an account within the agricultural local fund, and used solely for carrying out the purposes of this chapter and rules adopted under this chapter. (2) In addition to other penalties, the director may refuse to perform any inspection or certification service authorized under this chapter for any person in arrears unless the person makes payment in full prior to performing the service. [1998 c 154 § 24.] 15.19.050 15.19.050 Inspection of facility—Entry—Samples— Search warrant. The director may enter at reasonable times as determined by the director and inspect any facility and any records required under this chapter. The director may take for inspection those representative samples of ginseng necessary to determine whether or not this chapter or rules adopted under this chapter have been violated. If the director is denied access to any facility or records, the director may apply to a court of competent jurisdiction for a search warrant authorizing access to the facility or records. The court may upon such application issue a search warrant for the purpose requested. [1998 c 154 § 25.] 15.19.060 15.19.060 Injunctions. The director may bring an action to enjoin any violation of this chapter or rule adopted under this chapter in the superior court of Thurston county or of any county in which a violation occurs, notwithstanding the existence of other remedies at law. [1998 c 154 § 26.] 15.19.070 15.19.070 Cooperative agency agreements. The director may cooperate with and enter into agreements with governmental agencies of this state, other states, and agencies of the federal government in order to carry out the purpose and provisions of this chapter. [1998 c 154 § 27.] 15.19.080 15.19.080 Public disclosure of information—Exemption. The department shall not disclose information obtained under this chapter regarding the purchases, sales, or production of an individual American ginseng grower or dealer, except for providing reports to the United States fish and wildlife service. This information is exempt from public disclosure required by chapter 42.56 RCW. [2005 c 274 § 211; 1998 c 154 § 28.] [Title 15 RCW—page 24] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. 15.19.090 15.19.090 Violations of chapter or rules—Unlawful. It is unlawful for a person to sell, offer for sale, hold for sale, or ship or transport American ginseng for foreign export in violation of this chapter or rules adopted under this chapter. [1998 c 154 § 29.] 15.19.100 15.19.100 Violations of chapter or rules—Penalties. Any person who violates the provisions of this chapter or rules adopted under this chapter may be subject to: (1) A civil penalty in an amount of not more than one thousand dollars for each violation; and/or (2) Denial, revocation, or suspension of any registration or application for registration issued under this chapter. Upon notice by the director to deny, revoke, or suspend a registration or application for registration, a person may request a hearing under chapter 34.05 RCW. [1998 c 154 § 30.] 15.19.110 Remedies. The provisions of this chapter are cumulative and nonexclusive and do not affect any other remedy. [1998 c 154 § 31.] 15.19.110 15.19.900 15.19.900 Severability—1998 c 154. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1998 c 154 § 32.] Chapter 15.21 Chapter 15.21 RCW WASHINGTON FRESH FRUIT SALES LIMITATION ACT Sections 15.21.010 15.21.020 15.21.030 15.21.040 15.21.050 15.21.060 15.21.070 15.21.900 15.21.910 15.21.920 Declaration of purpose. Unlawful practices. Cost. Combination sales. Injunction. Penalties. Exempt sales. Chapter cumulative. Short title. Severability—1965 c 61. 15.21.010 Declaration of purpose. Limitations or restrictions placed on the buyer by the seller offering fresh fruit for sale as to the amount that such prospective buyer may purchase of the total amount of such fresh fruit owned, possessed or controlled by the seller, may lead to or cause confusion, deceptive trade practices, and interfere with the orderly marketing of fresh fruit necessary for the public health and welfare, and is hereby declared to be a business affected with the public interest. The provisions of this chapter are enacted in the exercise of the police powers of the state for the purpose of protecting the general health and welfare of the people of this state. [1965 c 61 § 1.] 15.21.010 15.21.020 Unlawful practices. It shall be unlawful to cause a limitation to be placed on the amount of fresh fruit that a purchaser may buy at retail or wholesale when such fresh fruit is offered for sale, through any media, below cost 15.21.020 (2006 Ed.) Washington Apple Commission to the seller. The foregoing shall apply to all such fresh fruit offered for sale below cost and owned, possessed or controlled by such seller. [1965 c 61 § 2.] Chapter 15.24 15.24.010 Chapter 15.24 RCW WASHINGTON APPLE COMMISSION (Formerly: Apple advertising commission) Sections 15.21.030 15.21.030 Cost. Cost for the purpose of this chapter, shall be that price paid for fresh fruit by the seller or the actual replacement cost for such fresh fruit: PROVIDED, That the delivered invoice price to such seller shall be prima facie evidence of the price paid for such fresh fruit by the seller. [1965 c 61 § 3.] 15.21.040 15.21.040 Combination sales. When one or more items are offered for sale or sold with one or more items at a combined price, or offered individually or as a package or a unit to be given with the sale of one or more items, each and all such items shall for the purpose of this chapter be deemed to be offered for sale, and as to such transaction the cost basis shall be the combined cost basis of all such items as determined pursuant to RCW 15.21.030. [1965 c 61 § 4.] 15.21.050 15.21.050 Injunction. Any person, prosecuting attorney, or the attorney general may bring an action to enjoin the violation or threatened violation of the provisions of this chapter in the superior court in the county where such violation occurs or is about to occur, notwithstanding the existence of any other remedies at law. [1965 c 61 § 5.] 15.21.060 15.21.060 Penalties. (1) Except as provided in subsection (2) of this section, any person violating the provisions of this chapter is guilty of a misdemeanor. (2) A second or subsequent violation is a gross misdemeanor. Any offense committed more than five years after a previous conviction shall be considered a first offense. [2003 c 53 § 103; 1965 c 61 § 6.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 15.21.070 15.21.070 Exempt sales. The provisions of this chapter shall not apply to the following sales at retail or sales at wholesale: (1) When fresh fruit is sold for charitable purposes or to relief agencies; (2) When fresh fruit is sold on contract to departments of the government or governmental institutions; (3) When fresh fruit is sold by any officer acting under the order or direction of any court. [1965 c 61 § 7.] 15.21.900 15.21.900 Chapter cumulative. The provisions of this chapter shall be cumulative and nonexclusive and shall not affect any other remedy. [1965 c 61 § 8.] 15.21.910 15.21.910 Short title. This chapter may be cited as the Washington fresh fruit sales limitation act. [1965 c 61 § 9.] 15.21.920 15.21.920 Severability—1965 c 61. If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances is not affected. [1965 c 61 § 10.] (2006 Ed.) 15.24.010 15.24.015 15.24.020 15.24.030 15.24.033 15.24.035 15.24.040 15.24.050 15.24.060 15.24.065 15.24.070 15.24.073 15.24.080 15.24.085 15.24.086 15.24.090 15.24.100 15.24.110 15.24.120 15.24.130 15.24.140 15.24.150 15.24.160 15.24.170 15.24.180 15.24.190 15.24.200 15.24.210 15.24.215 15.24.800 15.24.802 15.24.804 15.24.806 15.24.808 15.24.810 15.24.812 15.24.814 15.24.816 15.24.818 15.24.900 15.24.910 15.24.920 15.24.921 Definitions. Commission—Purpose. Commission created—Generally. Members—Appointment—Terms—District representation— Meetings. Members—Transition to appointed commission—Appointments by director. Members—Appointments by director—Advisory ballot. Members—Nominations to the advisory ballot. Vacancies—Quorum—Compensation—Travel expenses. Commission records as evidence. Plans, programs, and projects—Approval by director. Powers and duties—Agency of state government. Rule-making proceedings—Exemptions. Research, advertising, and educational campaign—Beneficial purposes. Promotional printing not restricted by public printer laws. Promotional printing contracts—Contractual conditions of employment. Decrease or increase in assessments—Grounds—Procedure— Oversight by director. Assessments levied—Procedure for eliminating assessment. Collection of assessments—Due prior to shipment—Stamps— Rule-making exemption—Assessment imposed under RCW 15.26.120. Records kept by dealers, handlers, processors. Returns rendered by dealers, handlers, processors. Right to inspect. Treasurer—Bond—Duties—Funds. Promotional plans—Purpose—Authority of commission— Limitation on liability. Rules and regulations—Filing—Publication. Enforcement. Claims enforceable against commission assets—Nonliability of other persons and entities—Exception—Application of chapter 4.92 RCW. Penalties. Prosecutions. Funding staff support—Rules. Financing assistance for commission building. General obligation bonds to fund commission building. Bond issuance and sale. Bond proceeds, etc., to state building construction account. Expenditure of bond proceeds. Fund for payment of bond principal and interest. Certification and payment of bond principal and interest. RCW 15.24.810 and 15.24.812 not exclusive method of payment. Bonds constitute legal investments for state and other public funds. Bonds to be issued only after certification of sufficiency of funds. Purpose of chapter—Regulation of apples and apple products—Existing comprehensive scheme—Applicable laws. Liberal construction. Severability—1967 c 240. Severability—2004 c 178. Investment of agricultural commodity commission funds in savings or time deposits of banks, trust companies and mutual savings banks: RCW 15.66.185. 15.24.010 15.24.010 Definitions. As used in this chapter: (1) "Commission" means the Washington apple commission; (2) "Ship" means to load apples into a conveyance for transport, except apples being moved from the orchard where grown to a packing house or warehouse within the immediate area of production; (3) "Handler" means any person who ships or initiates a shipping operation, whether for himself, herself, or for another; [Title 15 RCW—page 25] 15.24.015 Title 15 RCW: Agriculture and Marketing (4) "Dealer" means any person who handles, ships, buys, or sells apples, or who acts as sales or purchasing agent, broker, or factor of apples; (5) "Processor" and "processing plant" means every person to whom and every place to which apples are delivered for drying, dehydrating, canning, pressing, powdering, extracting, cooking, or for use in producing a product or manufacturing a manufactured article; (6) "Processing apples" means all apples delivered to a processing plant for drying, dehydrating, canning, pressing, powdering, extracting, cooking, or for use in producing a product or manufacturing a manufactured article. However, "processing apples" does not include fresh apples sliced or cut for raw consumption; (7) "Fresh apples" means all apples other than processing apples; (8) "Director" means the director of the department of agriculture or his or her duly authorized representative; (9) "Grower district No. 1" includes the counties of Chelan, Okanogan, and Douglas; (10) "Grower district No. 2" includes the counties of Kittitas, Yakima, Benton, and Franklin; (11) "Grower district No. 3" includes all counties in the state not included in the first and second districts; (12) "Dealer district No. 1" includes the area of the state north of Interstate 90; (13) "Dealer district No. 2" includes the area of the state south of Interstate 90; and (14) "Executive officer" includes, but is not limited to, the principal management executive, sales manager, general manager, or other executive employee of similar responsibility and authority. [2002 c 313 § 115; 1989 c 354 § 53; 1967 c 240 § 22; 1963 c 145 § 1; 1961 c 11 § 15.24.010. Prior: 1937 c 195 § 2; RRS § 2874-2.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1989 c 354: See note following RCW 15.36.012. 15.24.015 15.24.015 Commission—Purpose. The commission exists primarily for the benefit of the people of the state of Washington and its economy. The legislature hereby charges the commission, with oversight by the director, to speak on behalf of the Washington state government with regard to apples and apple-related issues. [2004 c 178 § 1.] 15.24.020 15.24.020 Commission created—Generally. There is hereby created a Washington apple commission to be thus known and designated. The commission shall be composed of nine practical apple producers and four practical apple dealers. In addition, the director shall be a full voting member of the commission and may in his or her place appoint any other employee of the department of agriculture as a designee to attend commission meetings and otherwise represent the director and exercise the director’s vote. The nine producer members shall be citizens and residents of this state, over the age of twenty-five years, each of whom, either individually or as an executive officer of a corporation, firm or partnership, is and has been actually engaged in growing and producing apples within the state of Washington for a period of five years, currently operates a commercial producing orchard in the district represented, and [Title 15 RCW—page 26] has during that period derived a substantial portion of his or her income therefrom. The four dealer members shall be persons who, either individually or as executive officers of a corporation, firm, partnership, association, or cooperative organization, are and have been actively engaged as dealers in apples within the state of Washington for a period of five years, and are citizens and residents of this state, and are engaged as apple dealers in the district represented. The qualifications of members of the commission as herein set forth must continue during their term of office. A person who meets the qualifications of both a producer and a dealer as set forth in this section may serve as either a producer member or a dealer member. [2004 c 178 § 2; 2002 c 313 § 116; 1989 c 354 § 54; 1967 c 240 § 23; 1963 c 145 § 2; 1961 c 11 § 15.24.020. Prior: 1949 c 191 § 1, part; 1937 c 195 § 3, part; Rem. Supp. 1949 § 2874-3, part.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1989 c 354: See note following RCW 15.36.012. 15.24.030 15.24.030 Members—Appointment—Terms—District representation—Meetings. Thirteen persons, not including the director or the director’s representative, with the qualifications stated in RCW 15.24.020 shall be members of the commission. Nine of the members shall be producer members, and four shall be dealer members. The number of producer members to be appointed from each grower district shall be determined in accordance with the relative acreages of planted commercial apple orchards within the various districts as of July 1, 2003, according to the most recent census of acreages published by the United States department of agriculture, agricultural statistics service. The number of producer members to be appointed from each of the grower districts shall be subject to readjustment every ten years thereafter in accordance with the then most recent census of acreages of planted commercial apple orchards published by the United States department of agriculture, agricultural statistics service. In the event the information from the United States department of agriculture’s agricultural statistics service is not published with respect to the specifically defined districts, the commission shall adopt rules to establish equitable apportionment based on the available information. However, at all times at least two producer members shall be from district 1, one of which shall be from Okanogan county; district 2 shall never have fewer than two producer members; and district 3 shall never have fewer than one producer member. The commission shall adopt rules to effect the efficient transition of reapportioned positions. The regular term of office of the members of the commission shall be three years from March 1 following their appointment by the director and until their successors are appointed. The commission shall hold its annual meeting during the month of March each year and shall hold such other meetings during the year as it shall determine. The first commission meeting that takes place after June 10, 2004, shall be held in Wenatchee, and subsequent commission meetings shall alternate between Yakima and Wenatchee. [2004 c 178 § 3; 1989 c 354 § 55; 1967 c 240 § 24; 1963 c 145 § 3; 1961 c 11 § 15.24.030. Prior: 1949 c 191 § 1, part; 1937 c 195 § 3, part; Rem. Supp. 1949 § 2874-3, part.] Severability—1989 c 354: See note following RCW 15.36.012. (2006 Ed.) Washington Apple Commission 15.24.033 15.24.033 Members—Transition to appointed commission—Appointments by director. To accomplish the transition to a commission structure as set forth in RCW 15.24.030, the names of the currently elected commission members shall be forwarded to the director for appointment within thirty days of June 10, 2004, for appointment for the remainder of their current terms. Thereafter, the director shall appoint commission members pursuant to the commission structure set forth in RCW 15.24.030 as the current commission member terms expire. As part of the transition, in order to achieve proper representation of producer members relative to planted acreages, as each current producer position expires the director shall appoint a replacement producer member from the district then most underrepresented until the initial balance of representation is achieved. Notwithstanding other provisions of this chapter, nominations for transitioning positions required for underrepresented districts shall be made from the district to be represented by the new commission member. Thereafter, reallocations shall be accomplished as provided in RCW 15.24.030. [2004 c 178 § 4.] 15.24.035 Members—Appointments by director— Advisory ballot. (1) The director shall appoint the members of the commission. (2) Candidates for positions on the commission shall be nominated to the director in accordance with subsection (3) of this section. (3) Not less than sixty days nor more than seventy-five days prior to the commencement of a commission member’s term, the commission shall cause an advisory vote to be held for the director-appointed positions. Advisory ballots shall be mailed to all affected producers for producer positions and to affected dealers for dealer positions and shall be returned to the commission not less than thirty days prior to the commencement of the term. The advisory ballot shall be conducted in a manner so that it is a secret ballot. The names of the two candidates receiving the most votes in the advisory vote shall be forwarded to the director for potential appointment to the commission. In the event only two candidates are nominated for a position, an advisory vote need not be held and the candidates’ names shall be forwarded to the director for potential appointment. If only one candidate is nominated for a position, the commission shall select a second candidate whose name will be forwarded to the director. (4) Any candidate whose name is forwarded to the director for potential appointment shall submit to the director a letter stating why he or she wishes to be appointed to the commission. The director may select either person for the position or may reject both nominees and request a new advisory vote with nominees selected by the commission and, if desired, by the director. [2004 c 178 § 5.] 15.24.035 15.24.040 15.24.040 Members—Nominations to the advisory ballot. The commission shall call a meeting of apple growers, and meetings of apple dealers in dealer district No. 1 and dealer district No. 2 for the purpose of nominating to the advisory ballot for nomination to the director their respective members of the commission, when a term is about to expire, or when a vacancy exists, except as provided in RCW 15.24.050, as amended, at times and places to be fixed by the (2006 Ed.) 15.24.050 commission. The meetings shall be held not later than February 15th of each year and insofar as practicable, the meetings of the growers shall be held at the same time and place as the annual meeting of the Washington state horticultural association, or the annual meeting of any other producer organization which represents a majority of the state’s apple producers, as determined by the commission, but not while the same is in actual session. Public notice of such meetings shall be given by the commission in such manner as it may determine: PROVIDED, That nonreceipt of the notice by any interested person shall not invalidate the proceedings. Any qualified person may be nominated orally for such positions at the respective meetings. Nominations may also be made within five days after any such meeting by written petition filed in the office of the commission, signed by not less than five apple growers or dealers, as the case may be, residing within the district or within the subdivision if the nomination is made from a subdivision. Nominees to be forwarded to the director for appointment to producer positions on the commission shall be selected by a majority of the votes cast by the apple growers in the respective districts. Each grower who operates a commercial producing apple orchard within the district being represented, whether an individual proprietor, partnership, joint venture, or corporation, is entitled to one vote. As to bona fide leased or rented orchards, only the lessee-operator, if otherwise qualified, shall be entitled to vote. An individual commercial orchard operator, if otherwise qualified, shall be entitled to vote as such, even though he or she is also a member of a partnership or corporation which votes for other apple acreage. Nominees to be forwarded to the director for appointment to dealer positions on the commission shall be selected by a majority of the votes cast by the apple dealers in the respective districts, each dealer being entitled to one vote. [2004 c 178 § 6; 2002 c 313 § 117; 1989 c 354 § 56; 1967 c 240 § 25; 1963 c 145 § 4; 1961 c 11 § 15.24.040. Prior: 1949 c 191 § 1, part; 1937 c 195 § 3, part; Rem. Supp. 1949 § 28743, part.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1989 c 354: See note following RCW 15.36.012. 15.24.050 15.24.050 Vacancies—Quorum—Compensation— Travel expenses. In the event a position becomes vacant due to resignation, disqualification, death, or for any other reason, such position shall be filled for the balance of the unexpired term by appointment by the director from at least two nominees submitted by the remaining members of the commission. A majority of the voting members shall constitute a quorum for the transaction of all business and the carrying out of the duties of the commission. Each member of the commission shall be compensated in accordance with RCW 43.03.230 and shall be reimbursed for actual travel expenses incurred in carrying out the provisions of this chapter. Employees of the commission may also be reimbursed for actual travel expenses when on official commission business. [2004 c 178 § 7; 2002 c 313 § 118; 1984 c 287 § 12; 1975-’76 2nd ex.s. c 34 § 12; 1967 c 240 § 26; 1961 c 11 § 15.24.050. Prior: 1949 c 191 § 1, part; 1937 c 195 § 3, part; Rem. Supp. 1949 § 2874-3, part.] [Title 15 RCW—page 27] 15.24.060 Title 15 RCW: Agriculture and Marketing Effective dates—2002 c 313: See note following RCW 15.65.020. Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. 15.24.060 15.24.060 Commission records as evidence. Copies of the proceedings, records and acts of the commission, when certified by the secretary and authenticated by the corporate seal, shall be admissible in any court as prima facie evidence of the truth of the statements contained therein. [1961 c 11 § 15.24.060. Prior: 1937 c 195 § 4, part; RRS § 2874-4, part.] 15.24.065 15.24.065 Plans, programs, and projects—Approval by director. (1) The commission shall develop and submit to the director for approval any plans, programs, and projects concerning the following: (a) The establishment, issuance, effectuation, and administration of appropriate programs or projects within the commission’s powers and duties; (b) The establishment and effectuation of market research projects, market development projects, or both to the end that the marketing and utilization of apples may be encouraged, expanded, improved, or made more efficient; and (c) The establishment and effectuation of, and/or support of industry organizations work regarding, market access project and programs, trade banner work and industry organization support. (2) The director shall review the commission’s programs to ensure that they properly benefit the people of the state of Washington and its economy and properly speak the message of the state. (3) The commission, prior to the beginning of its fiscal year, shall prepare and submit to the director for approval its project and program plans and its budget on a fiscal period basis. (4) The director shall strive to review and make a determination of all submissions described in this section in a timely manner. [2004 c 178 § 8.] 15.24.070 15.24.070 Powers and duties—Agency of state government. The Washington apple commission is hereby declared and created an agency of the Washington state government. The powers and duties of the commission shall include the following: (1) To elect a chair and such other officers as it deems advisable; and to adopt, rescind, and amend rules and orders for the exercise of its powers under this chapter, which shall have the force and effect of the law when not inconsistent with existing laws; (2) To administer and enforce the provisions of this chapter, and do all things reasonably necessary to effectuate the purposes of this chapter; (3) To employ and at its pleasure discharge a manager, secretary, agents, attorneys, and employees as it deems necessary, and to prescribe their duties and powers and fix their compensation; (4) To establish offices and incur expense and enter into contracts and to create such liabilities as may be reasonable for the proper administration and enforcement of this chapter. [Title 15 RCW—page 28] Expenses may include reasonable, prudent use of promotional hosting to benefit the purposes of this chapter; (5) To investigate and prosecute violations of this chapter; (6) To conduct scientific research to develop and discover the health, food, therapeutic, and dietetic value of apples and apple products; (7) To keep accurate record of all of its dealings, which shall be open to inspection and audit by the state auditor; (8) To sue and be sued and have all of the powers of an agency; (9) To expend funds for commodity-related education, training, and leadership programs as the commission deems expedient; (10) To borrow money and incur indebtedness; (11) To accept gifts, grants, conveyances, bequests, and devises, of real or personal property, or both, in trust or otherwise, and sell, lease, exchange, invest, or expend these donations or the proceeds, rents, profits, and income from the donations on any appropriate activity of the commission except as limited by the donor’s terms. The commission shall adopt rules to govern and protect the receipt and expenditure of the proceeds, rents, profits, and income of all such gifts, grants, conveyances, bequests, and devises. The authority to make expenditures granted by this subsection includes the authority to make expenditures to provide scholarships or financial assistance to persons as defined in RCW 1.16.080 or entities associated with the apple industry, but is not limited to the authority to make expenditures for such a purpose; (12) To engage in appropriate fund-raising activities for the purpose of supporting the activities of the commission authorized by this chapter; (13) To retain, discharge, or contract with, at its pleasure, accountants, marketing agencies, and other professional consultants as necessary, under procedures for hiring, discharging, and review as adopted by the commission; (14) To maintain, protect, acquire, or own intellectual property rights, including without limitation, licenses, trademarks, copyrights, artwork, or patents and to sell or license any or all of such rights and collect royalties therefrom and from commission-funded research related to apples; (15) To apply for and administer federal market access programs and/or similar programs or projects and provide matching funds as may be necessary; (16) With oversight by the director, provide funding and support to organizations providing general support and leadership to and representation of the apple industry; (17) With oversight by the director, to speak on behalf of the Washington state government on a nonexclusive basis with regard to apples and apple-related issues, including but not limited to trade negotiations, market access negotiations, and the like, and to fund industry organizations engaging in such activities; (18) To fund, conduct, or otherwise participate in scientific research relating to apples, including without limitation research regarding pests, pesticides, food safety, irrigation, transportation, and environmental stewardship; (19) To provide services relating to the production, promotion, sale and/or distribution of Washington apples on a fee-for-services basis. However, (a) the product of such services shall belong to the funding party, and (b) the fees for (2006 Ed.) Washington Apple Commission such services shall include a reasonable charge for the commission’s overhead expenses as determined by the commission; and (20) To gather, maintain, and distribute data relating to the production, processing, shipment, and sales of apples, in connection with its ordinary operations and collection of assessments and particularly in connection with services provided on a fee for service basis. [2004 c 178 § 9; 2002 c 313 § 119; 1994 c 134 § 1; 1987 c 393 § 3; 1986 c 203 § 3; 1963 c 145 § 5; 1961 c 11 § 15.24.070. Prior: (i) 1937 c 195 § 8; RRS § 2874-8. (ii) 1937 c 195 § 5; RRS § 2874-5. (iii) 1937 c 195 § 4, part; RRS § 2874-4, part.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1986 c 203: See note following RCW 15.17.230. 15.24.073 15.24.073 Rule-making proceedings—Exemptions. Rule-making proceedings conducted under this chapter are exempt from compliance with RCW 34.05.310 and the provisions of chapter 19.85 RCW, the regulatory fairness act, when the proposed rule is subject to a referendum. [2002 c 313 § 125.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.24.080 15.24.080 Research, advertising, and educational campaign—Beneficial purposes. In order to benefit the people of this state, the state’s economy and its general tax revenues, the commission shall provide for and conduct a comprehensive and extensive research, advertising, and educational campaign as continuous as the crop, sales, and market conditions reasonably require. It shall investigate and ascertain the needs of producers, conditions of the markets, and extent to which public convenience and necessity require research and advertising to be conducted. [2002 c 313 § 120; 1961 c 11 § 15.24.080. Prior: 1937 c 195 § 13, part; RRS § 2874-13, part.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.24.085 15.24.085 Promotional printing not restricted by public printer laws. The restrictive provisions of chapter 43.78 RCW shall not apply to promotional printing and literature for the Washington apple commission, the Washington state fruit commission, or the Washington state dairy products commission. [2002 c 313 § 121; 1961 c 11 § 15.24.085. Prior: 1953 c 222 § 1.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.24.086 15.24.086 Promotional printing contracts—Contractual conditions of employment. All such printing contracts provided for in this section and RCW 15.24.085 shall be executed and performed under conditions of employment which shall substantially conform to the laws of this state respecting hours of labor, the minimum wage scale, and the rules and regulations of the department of labor and industries regarding conditions of employment, hours of labor, and minimum wages, and the violation of such provision of any contract shall be ground for cancellation thereof. [1994 c 164 § 1; 1973 1st ex.s. c 154 § 20; 1961 c 11 § 15.24.086. Prior: 1953 c 222 § 2.] Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. (2006 Ed.) 15.24.100 15.24.090 15.24.090 Decrease or increase in assessments— Grounds—Procedure—Oversight by director. If it appears from investigation by the director and the commission that the revenue from the assessment levied on fresh apples under this chapter is too high or is inadequate to accomplish the purposes of this chapter, then with the oversight of the director the commission shall adopt a resolution setting forth the necessities of the industry, the extent and probable cost of the required research or other expenditures, the extent of public convenience, interest, and necessity, and probable revenue from the assessment levied. With the oversight of the director, and subject to the approval by vote of at least two-thirds for increases, or a majority for decreases, of the producers voting; and approval of voting producers who operate at least two-thirds for increases, or a majority for decreases, of the acreage voted in the same election, the commission shall thereupon decrease or increase the assessment to a sum determined by the commission to be necessary for those purposes. However, if a different rate is determined for any specific variety or for fresh apples sliced or cut for raw consumption, that different rate must be applied to that variety or those sliced or cut apples. A decrease or an increase becomes effective sixty days after the resolution is adopted or on any other date provided for in the resolution, but shall be first referred by the commission to a referendum mail ballot by the apple growers of this state conducted under the supervision of the director and be approved by at least two-thirds for increases, or a majority for decreases, of the growers voting on it and also be approved by voting growers who operate at least two-thirds for increases, or a majority for decreases, of the acreage voted in the same election. After the mail ballot, if favorable to the increase or decrease, the commission shall nevertheless exercise its independent judgment and discretion as to whether or not to approve the increase or decrease. [2004 c 178 § 10; 2002 c 313 § 122; 1983 c 95 § 1; 1979 c 20 § 1; 1967 c 240 § 27; 1963 c 145 § 6; 1961 c 11 § 15.24.090. Prior: 1953 c 43 § 1; 1937 c 195 § 13, part; RRS § 2874-13, part.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.24.100 15.24.100 Assessments levied—Procedure for eliminating assessment. (1) Subject to subsection (2) of this section, there is hereby levied upon all fresh apples grown annually in this state, and all apples packed as Washington apples, including fresh sliced, an assessment of eight and seventyfive one-hundredths cents per one hundred pounds of apples, based on net shipping weight, or reasonable equivalent net product assessment measurement as determined by the commission, plus such annual decreases or increases thereof as are imposed pursuant to the provisions of RCW 15.24.090. All moneys collected hereunder shall be expended to effectuate the purpose and objects of this chapter. (2) No sooner than five years from June 10, 2004, a petition may be filed with the commission to reduce the assessment authorized in this section to zero. To be valid, the petition must be signed by at least eight percent of all apple growers eligible to vote in commission referendum elections. The petition shall contain the name of a person designated to represent the petitioners. (a) Upon receipt of a valid petition, the commission shall prepare a document discussing the substance of the petition. [Title 15 RCW—page 29] 15.24.110 Title 15 RCW: Agriculture and Marketing A statement in favor of the petition shall be written by the proponents of the petition. A statement opposing the petition may be written by the commission or an opponent. The document and a notice of public hearing shall be sent to apple growers eligible to vote in commission referendum elections at least twenty days prior to the scheduled public hearings. The commission shall hold public hearings in Yakima and Wenatchee on the petition. (b) Following the public hearings, the question of whether to reduce the assessment authorized in this section to zero shall be referred to a referendum mail ballot. The commission shall certify to the director a list of apple growers eligible to vote in commission referendum elections. The referendum shall be conducted and supervised by the director using the certified list. Inadvertent failure to notify an affected grower does not invalidate a referendum. (c) The referendum will be approved if a simple majority of apple growers voting in the referendum election vote in favor of the elimination of the assessment. The director will certify the results of the vote. (d) The referendum vote shall be binding and may not be overturned by action of the commission or director. If the referendum is approved, the commission shall immediately commence activities to wind down its operations. However, the elimination of the assessment shall not be effective until six months from the date the referendum result is certified by the director. If the referendum fails, neither the commission nor the director will take further action on the petition. (e) The commission is responsible for all its own costs and all the director’s costs associated with the hearing, notice, and referendum process. A subsequent petition may not be filed any sooner than five years following the certification of the results of any previously held referendum conducted under this subsection. [2004 c 178 § 11; 2002 c 313 § 123; 1967 c 240 § 28; 1963 c 145 § 7; 1961 c 11 § 15.24.100. Prior: 1937 c 195 § 9; RRS § 2874-9.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.24.110 15.24.110 Collection of assessments—Due prior to shipment—Stamps—Rule-making exemption—Assessment imposed under RCW 15.26.120. The assessments on fresh apples shall be paid, or provision made therefor satisfactory to the commission, prior to shipment, and no fresh apples shall be carried, transported, or shipped by any person or by any carrier, railroad, truck, boat, or other conveyance until the assessment has been paid or provision made therefor satisfactory to the commission. The commission shall by rule prescribe the method of collection, and for that purpose may require stamps to be known as "Washington apple stamps" to be purchased from the commission and attached to the containers, invoices, shipping documents, inspection certificates, releases, or receiving receipts or tickets. Rule-making procedures conducted under this section are exempt from the provisions of RCW 43.135.055 when adoption of the rule or rules is determined by a referendum vote of the persons taxed under this chapter. The commission may also collect assessments imposed under RCW 15.26.120, and in that event, the commission shall establish and be reimbursed by the Washington tree [Title 15 RCW—page 30] fruit research commission an amount representing a reasonable approximation of the actual costs to the commission of such collection. [2004 c 178 § 12; 2002 c 313 § 124; 1967 c 240 § 29; 1961 c 11 § 15.24.110. Prior: 1937 c 195 § 12; RRS § 2874-12.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.24.120 15.24.120 Records kept by dealers, handlers, processors. Each dealer, handler, and processor shall keep a complete and accurate record of all apples handled, shipped, or processed by him. This record shall be in such form and contain such information as the commission may by rule or regulation prescribe, and shall be preserved for a period of two years, and be subject to inspection at any time upon demand of the commission or its agents. [1961 c 11 § 15.24.120. Prior: 1937 c 195 § 10; RRS § 2874-10.] 15.24.130 15.24.130 Returns rendered by dealers, handlers, processors. Each dealer, handler, and processor shall at such times as the commission may by rule or regulation require, file with the commission a return under oath on forms to be furnished by the commission, stating the quantity of apples handled, shipped, or processed by him during the period prescribed by the commission. The return shall contain such further information as the commission may require. [1961 c 11 § 15.24.130. Prior: 1937 c 195 § 11; RRS § 2874-11.] 15.24.140 15.24.140 Right to inspect. The commission may inspect the premises and records of any carrier, handler, dealer, or processor for the purpose of enforcing this chapter and the collection of the excise tax. [1961 c 11 § 15.24.140. Prior: 1937 c 195 § 19; RRS § 2874-19.] 15.24.150 15.24.150 Treasurer—Bond—Duties—Funds. The commission shall appoint a treasurer who shall file with it a fidelity bond executed by a surety company authorized to do business in this state, in favor of the commission and the state, in the penal sum of fifty thousand dollars, conditioned upon the faithful performance of his duties and strict accounting of all funds of the commission. All money received by the commission, or any other state official from the assessment herein levied, shall be paid to the treasurer, deposited in such banks as the commission may designate, and disbursed by order of the commission. None of the provisions of RCW 43.01.050 shall apply to money collected under this chapter. [1961 c 11 § 15.24.150. Prior: 1937 c 195 § 6; RRS § 2874-6.] 15.24.160 15.24.160 Promotional plans—Purpose—Authority of commission—Limitation on liability. To maintain and complement the existing comprehensive regulatory scheme, the commission may employ, designate as agent, act in concert with, and enter into contracts with any person, council, or commission, including but not limited to the director, state agencies such as the Washington state fruit commission and its successors, statewide horticultural associations, organizations or associations engaged in tracking the movement and marketing of horticultural products, and organizations or associations of horticultural growers, for the purpose of promoting the general welfare of the apple industry and particu(2006 Ed.) Washington Apple Commission larly for the purpose of assisting in the sale and distribution of apples in domestic or foreign commerce, and expend its funds or such portion thereof as it may deem necessary or advisable for such purpose and for the purpose of paying its proportionate share of the cost of any program providing direct or indirect assistance to the sale and distribution of apples in domestic or foreign commerce. For such purposes it may employ and pay for legal counsel and contract and pay for other professional services. The liability of the state for the acts of the commission, or upon its contracts, shall be limited solely to the assets of the commission. In any civil or criminal action or proceeding for violation of any statute, including a rule adopted under that statute, or common law against monopolies or combinations in restraint of trade, including any action under chapter 19.86 RCW, proof that the act complained of was done in compliance with the provisions of this chapter, and in furtherance of the purposes and provisions of this chapter, is a complete defense to such an action or proceeding. [2004 c 178 § 13; 2002 c 313 § 126; 1961 c 11 § 15.24.160. Prior: 1947 c 280 § 3; Rem. Supp. 1947 § 2909-3.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.24.170 15.24.170 Rules and regulations—Filing—Publication. Rules, regulations, and orders made by the commission shall be filed with the director and published in a legal newspaper in the cities of Wenatchee and Yakima within five days after being made, and shall become effective pursuant to the provisions of RCW 34.05.380. [2002 c 313 § 127; 1975 1st ex.s. c 7 § 37; 1961 c 11 § 15.24.170. Prior: 1937 c 195 § 18; RRS § 2874-18.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.24.180 15.24.180 Enforcement. All county and state law enforcement officers and all employees and agents of the department shall enforce this chapter. [1961 c 11 § 15.24.180. Prior: 1937 c 195 § 16; RRS § 2874-16.] 15.24.190 15.24.190 Claims enforceable against commission assets—Nonliability of other persons and entities— Exception—Application of chapter 4.92 RCW. Obligations incurred by the commission and any other liabilities or claims against the commission shall be enforced only against the assets of the commission, and, except to the extent of such assets, no liability for the debts or actions of the commission exists against either the state of Washington or any subdivision or instrumentality thereof, or against any member, employee, or agent of the commission in his or her individual capacity. Except as otherwise provided in this chapter, neither the members of the commission nor its employees may be held individually responsible for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employee, save for their own individual acts of dishonesty or crime. No such person or employee may be held responsible individually for any act or omission of any other member of the commission. The liability of the members of the commission shall be several and not joint, and no member is liable for the default of any other member. This provision confirms that commissioners have been, and continue to be, state officers or volunteers for pur(2006 Ed.) 15.24.800 poses of RCW 4.92.075 and are entitled to the defenses, indemnifications, limitations of liability, and other protections and benefits of chapter 4.92 RCW, as provided in that chapter. [2004 c 178 § 14; 1987 c 393 § 4; 1961 c 11 § 15.24.190. Prior: 1937 c 195 § 7; RRS § 2874-7.] 15.24.200 15.24.200 Penalties. (1) Any person who violates or aids in the violation of any provision of this chapter is guilty of a gross misdemeanor. (2) Any person who violates or aids in the violation of any rule or regulation of the commission is guilty of a misdemeanor. [2003 c 53 § 104; 1961 c 11 § 15.24.200. Prior: 1937 c 195 § 14; RRS § 2874-14.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 15.24.210 15.24.210 Prosecutions. Any prosecution brought under this chapter may be instituted in any county in which the defendant or any defendant resides, or in which the violation was committed, or in which the defendant or any defendant has his principal place of business. The superior courts are hereby vested with jurisdiction to enforce the provisions of this chapter and the rules and regulations of the commission issued hereunder, and to prevent and restrain violations thereof. [1961 c 11 § 15.24.210. Prior: 1937 c 195 § 15; RRS § 2874-15.] 15.24.215 15.24.215 Funding staff support—Rules. The director may provide by rule for a method to fund staff support for all commodity boards and commissions in accordance with RCW 43.23.033 if a position is not directly funded by the legislature and costs related to the specific activity undertaken on behalf of an individual commodity board or commission. The commission shall provide funds to the department according to the rules adopted by the director. [2002 c 313 § 72.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.24.800 15.24.800 Financing assistance for commission building. The legislature hereby finds that, in order to permit the Washington apple commission to accomplish more efficiently its important public purposes, as enumerated in chapter 15.24 RCW, it is necessary for the state to assist in financing a new building for the commission, to be located on Euclid Avenue in Chelan county, and housing commission offices, warehouse space, and a display room. The state’s assistance shall augment approximately five hundred thousand dollars in commission funds which will be applied directly to the payment of the costs of this project. The state’s assistance shall be in the amount of eight hundred thousand dollars, or so much thereof as may be required, to be provided from the proceeds from the sale and issuance of general obligation bonds of the state, the principal of and interest on which shall be reimbursed to the state treasury by the commission from revenues derived from the assessments levied pursuant to chapter 15.24 RCW and other sources. [2002 c 313 § 128; 1987 c 6 § 1.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1987 c 6: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the [Title 15 RCW—page 31] 15.24.802 Title 15 RCW: Agriculture and Marketing application of the provision to other persons or circumstances is not affected." [1987 c 6 § 12.] 15.24.802 15.24.802 General obligation bonds to fund commission building. For the purpose of providing part of the funds necessary for the Washington apple commission to undertake a capital project consisting of the land acquisition for, and the design, construction, furnishing, and equipping of, the building described in RCW 15.24.800, and to pay the administrative costs of such project, including costs of bond issuance and retirement, salaries and related costs of officials and employees of the state, and other expenses incidental to the administration of such project, the state finance committee is authorized to issue general obligation bonds of the state of Washington in the sum of eight hundred thousand dollars, or so much thereof as may be required. [2002 c 313 § 129; 1987 c 6 § 2.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1987 c 6: See note following RCW 15.24.800. withdraw from any general state revenues received in the state treasury and deposit in the state general obligation bond retirement fund, or a special account in such fund, the amount certified by the state finance committee to be due on the payment date. [1987 c 6 § 6.] Severability—1987 c 6: See note following RCW 15.24.800. 15.24.812 Certification and payment of bond principal and interest. On or before June 30 of each year, the state finance committee shall certify to the Washington apple commission the principal and interest payments determined under RCW 15.24.810, exclusive of deposit interest credit, attributable to the bonds issued under RCW 15.24.802. On each date on which any interest or principal and interest payment is due, the commission shall cause the amount certified by the state finance committee to be due on such date to be paid out of the commission’s general fund to the state treasurer for deposit into the general fund of the state treasury. [2002 c 313 § 132; 1987 c 6 § 7.] 15.24.812 Effective dates—2002 c 313: See note following RCW 15.65.020. 15.24.804 15.24.804 Bond issuance and sale. The bonds authorized in RCW 15.24.802 shall be issued and sold in accordance with the provisions of chapter 39.42 RCW. [1987 c 6 § 3.] Severability—1987 c 6: See note following RCW 15.24.800. 15.24.806 15.24.806 Bond proceeds, etc., to state building construction account. The proceeds from the sale of the bonds authorized in RCW 15.24.802, together with all grants, donations, transferred funds, and all other moneys which the state finance committee or the Washington apple commission may direct the state treasurer to deposit therein, shall be deposited in the state building construction account in the state treasury. [2002 c 313 § 130; 1987 c 6 § 4.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1987 c 6: See note following RCW 15.24.800. Severability—1987 c 6: See note following RCW 15.24.800. 15.24.814 RCW 15.24.810 and 15.24.812 not exclusive method of payment. The legislature may provide additional means for raising moneys for the payment of the principal of and interest on the bonds authorized in RCW 15.24.802, and RCW 15.24.810 and 15.24.812 shall not be deemed to provide an exclusive method for the payment of such principal and interest. [1987 c 6 § 8.] 15.24.814 Severability—1987 c 6: See note following RCW 15.24.800. 15.24.816 Bonds constitute legal investments for state and other public funds. The bonds authorized by RCW 15.24.802 shall constitute legal investments for all state funds or for funds under state control and all funds of any other public body. [1987 c 6 § 9.] 15.24.816 Severability—1987 c 6: See note following RCW 15.24.800. 15.24.808 15.24.808 Expenditure of bond proceeds. Subject to legislative appropriation, all proceeds from the sale of the bonds authorized in RCW 15.24.802 shall be administered and expended by the Washington apple commission exclusively for the purposes specified in RCW 15.24.802. [2002 c 313 § 131; 1987 c 6 § 5.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1987 c 6: See note following RCW 15.24.800. 15.24.810 15.24.810 Fund for payment of bond principal and interest. The state general obligation bond retirement fund shall be used for the payment of the principal of and interest on the bonds authorized to be issued under RCW 15.24.802. The state finance committee may provide for the creation of one or more separate accounts in such fund to facilitate payment of such principal and interest. On or before June 30 of each year, the state finance committee shall certify to the state treasurer the amounts required in the next succeeding twelve months for the payment of the principal of and the interest on such bonds coming due in accordance with the provisions of the bond proceedings. Not less than thirty days prior to the date on which any interest or principal and interest payment is due, the state treasurer shall [Title 15 RCW—page 32] 15.24.818 Bonds to be issued only after certification of sufficiency of funds. The bonds authorized by RCW 15.24.802 shall be issued only after the treasurer of the Washington apple commission has certified that the net proceeds of the bonds, together with all money to be made available by the commission for the purposes described in RCW 15.24.802, shall be sufficient for such purposes; and also that, based upon the treasurer’s estimates of future income from assessments levied pursuant to chapter 15.24 RCW and other sources, an adequate balance will be maintained in the commission’s general fund to enable the commission to meet the requirements of RCW 15.24.812 during the life of the bonds to be issued. [2002 c 313 § 133; 1987 c 6 § 10.] 15.24.818 Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1987 c 6: See note following RCW 15.24.800. 15.24.900 Purpose of chapter—Regulation of apples and apple products—Existing comprehensive scheme— Applicable laws. (1) This chapter is passed: (a) In the exercise of the police power of the state to assure, through this chapter, and other chapters, that the apple industry is highly regulated to protect the public health, to 15.24.900 (2006 Ed.) Washington Apple Commission prevent fraudulent practices, to promote the welfare of the state, and to stabilize and protect the apple industry of the state as a vital and integral part of its economy for the benefit of all its citizens; (b) Because the apple crop grown in Washington comprises one of the major agricultural crops of Washington, and that therefore the business of selling and distributing such crop and the expanding and protection of its market is of public interest; (c) Because it is necessary and expedient to enhance the reputation of Washington apples in domestic and foreign markets; (d) Because it is necessary to discover the health giving qualities and food and dietetic value of Washington apples, and to spread that knowledge throughout the world in order to increase the consumption of Washington apples; (e) Because Washington grown apples are handicapped by high freight rates in competition with eastern and foreign grown apples in the markets of the world, and this disadvantage can only be overcome by education and advertising; (f) Because the stabilizing and promotion of the apple industry, the enlarging of its markets, and the increasing of the consumption of apples are necessary to assure and increase the payment of taxes to the state and its subdivisions, to alleviate unemployment within the state, and increase wages for agricultural labor; (g) To disseminate information giving the public full knowledge of the manner of production, the cost and expense thereof, the care taken to produce and sell only apples of the finest quality, the methods and care used in preparing for market, and the methods of sale and distribution to increase the amount secured by the producer therefor, so that they can pay higher wages and pay their taxes, and by such information to reduce the cost of distribution so that the spread between the cost to the consumer and the amount received by the producer will be reduced to the minimum absolutely necessary; and (h) To protect the general public by educating it in reference to the various varieties and grades of Washington apples, the time to use and consume each variety, and the uses to which each variety should be put. (2) The history, economy, culture, and future of Washington state’s agricultural industry involves the apple industry. In order to develop and promote apples and apple products as part of an existing comprehensive scheme to regulate those products, the legislature declares: (a) That it is vital to the continued economic well-being of the citizens of this state and their general welfare that its apple and apple products be properly promoted by establishing orderly, fair, sound, efficient, and unhampered marketing, grading, and standards of and for apples and apple products; and by working to stabilize the apple industry and by increasing consumption of apples and apple products within the state, nation, and internationally; (b) That apple producers operate within a regulatory environment that imposes burdens on them for the benefit of society and the citizens of the state and includes restrictions on marketing autonomy. Those restrictions may impair the agricultural producer’s ability to compete in local, domestic, and foreign markets; (2006 Ed.) 15.24.900 (c) That it is in the overriding public interest that support for the apple industry be clearly expressed, that adequate protection be given to agricultural commodities, uses, activities, and operations, and that apples and apple products be promoted individually, as well as part of a comprehensive promotion of the agricultural industry to: (i) Enhance the reputation and image of Washington state’s agricultural industry; (ii) Increase the sale and use of apples and apple products in local, domestic, and foreign markets; (iii) Protect the public and consumers by correcting any false or misleading information and by educating the public in reference to the quality, care, and methods used in the production of apples and apple products, and in reference to the various sizes, grades, and varieties of apples and the uses to which each should be put; (iv) Increase the knowledge of the health-giving qualities and dietetic value of apple products; and (v) Support and engage in programs or activities that benefit the production, handling, processing, marketing, and uses of apples and apple products; (d) That the apple industry is a highly regulated industry and that this chapter and the rules adopted under it are only one aspect of the regulation of the industry. Other regulations and restraints applicable to the apple industry include: (i) Washington agriculture general provisions, chapter 15.04 RCW; (ii) Pests and diseases, chapter 15.08 RCW; (iii) Standards of grades and packs, chapter 15.17 RCW; (iv) Tree fruit research, chapter 15.26 RCW; (v) Controlled atmosphere storage, chapter 15.30 RCW; (vi) Higher education in agriculture, chapter 28.30 [28B.30] RCW; (vii) Department of agriculture, chapter 43.23 RCW; (viii) Fertilizers, minerals, and limes under chapter 15.54 RCW; (ix) Organic food products act under chapter 15.86 RCW; (x) Intrastate commerce in food, drugs, and cosmetics under chapter 69.04 RCW and rules; (xi) Horticultural plants and facilities—Inspection and licensing under chapter 15.13 RCW; (xii) Planting stock under chapter 15.14 RCW; (xiii) Washington pesticide control act under chapter 15.58 RCW; (xiv) Farm marketing under chapter 15.64 RCW; (xv) Insect pests and plant diseases under chapter 17.24 RCW; (xvi) Weights and measures under chapter 19.94 RCW; (xvii) Agricultural products—Commission merchants, dealers, brokers, buyers, and agents under chapter 20.01 RCW; and (xviii) The federal insecticide, fungicide, and rodenticide act under 7 U.S.C. Sec. 136; and (e) That this chapter is in the exercise of the police powers of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state. [2002 c 313 § 134; 1961 c 11 § 15.24.900. Prior: 1937 c 195 § 1; RRS § 2874-1.] Effective dates—2002 c 313: See note following RCW 15.65.020. [Title 15 RCW—page 33] 15.24.910 Title 15 RCW: Agriculture and Marketing 15.24.910 Liberal construction. This chapter shall be liberally construed. [1961 c 11 § 15.24.910. Prior: 1937 c 195 § 17; RRS § 2874-17.] 15.24.910 15.24.920 15.24.920 Severability—1967 c 240. See note following RCW 43.23.010. 15.24.921 15.24.921 Severability—2004 c 178. If any section, subsection, sentence, clause, or part of this act is for any reason held to be invalid or unconstitutional, the judicial decision does not affect the remainder of this act and its application to other persons or circumstances. The legislature declares that each section, subsection, sentence, clause, and part of this act was enacted with the intent that if any portion of this act is severed, the remainder of this act is capable of accomplishing its legislative purpose. [2004 c 178 § 16.] Chapter 15.26 Chapter 15.26 RCW TREE FRUIT RESEARCH ACT Sections 15.26.010 15.26.020 15.26.030 15.26.040 15.26.050 15.26.060 15.26.070 15.26.080 15.26.090 15.26.100 15.26.110 15.26.120 15.26.125 15.26.130 15.26.140 15.26.150 15.26.155 15.26.160 15.26.170 15.26.180 15.26.190 15.26.200 15.26.210 15.26.220 15.26.230 15.26.235 15.26.240 15.26.250 15.26.260 15.26.265 15.26.270 15.26.280 15.26.290 15.26.295 15.26.300 15.26.900 15.26.910 Short title. Purpose. Definitions. Tree fruit research commission created—Membership. Qualifications of members. Appointment of members. Terms of members. Vacancies. Quorum. Compensation—Travel expenses. Powers of commission. Assessments levied—Referendum. Assessment on cherries in excess of the fiscal growth factor under chapter 43.135 RCW—Washington tree fruit research commission. List of producers. Increase in assessments by referendum. Additional assessments for special projects. Additional assessment. Suspension of assessments. Payment of assessments required before purchase, receipt or shipment of fruit. Records of persons receiving fruit. Return of dealers, handlers, and processors—Filing—Contents. Assessments—When due and payable—Collection. Assessments—Constitute personal debt. Assessments—Failure to pay—Collection. Disposition of moneys collected—Treasurer’s bond. Collection, administration, and dispersal of funds for industry service programs. Nonliability of state, members, employees. Collection of assessments for commission by apple commission and state fruit commission. Legal costs and expenses to be borne by commission. Funding staff support—Rules. Copies of commission’s proceedings, records, acts as evidence. Moneys collected retained by commission. Contracts with public or private agencies to carry out chapter. Certain records exempt from public disclosure—Exceptions— Actions not prohibited by chapter. Violations—Penalty. Chapter cumulative. Severability—1969 c 129. 15.26.010 15.26.010 Short title. This chapter shall be known and cited as the "tree fruit research act." [1969 c 129 § 1.] 15.26.020 15.26.020 Purpose. The purpose of this chapter is for the creation of a commission which shall promote and carry [Title 15 RCW—page 34] on research and administer specific industry service programs, including but not limited to sanitation programs, which will or may benefit the planting, production, harvesting, handling, processing or shipment of tree fruit of this state, which shall collect assessments on tree fruit in this state and which shall coordinate its research efforts with those of other state, federal, or private agencies doing similar research. [1983 c 281 § 1; 1969 c 129 § 2.] 15.26.030 15.26.030 Definitions. As used in this chapter, unless a different meaning is plainly required by the context: (1) "Department" means the department of agriculture of the state of Washington. (2) "Director" means the director of the department of agriculture or his duly authorized representative. (3) "Person" means any natural persons, firm, partnership, exchange, association, trustee, receiver, corporation, and any member, officer, or employee thereof or assignee for the benefit of creditors. (4) "Producer" means any person who owns or is engaged in the business of commercially producing tree fruit or has orchard plantings intended for commercial tree fruit production. (5) "Sanitation program" means a program designed to eliminate pests and/or plants or trees which serve as hosts to pests or diseases of tree fruits. [1983 c 281 § 2; 1969 c 129 § 3.] 15.26.040 15.26.040 Tree fruit research commission created— Membership. There is hereby created the Washington tree fruit research commission, to be thus known and designated. The commission shall be composed of nine members. Three members to be appointed by the Washington state fruit commission, five members to be appointed by the *apple advertising commission, and one member representing the winter pear industry to be appointed by the director. The director or his duly authorized representative shall be ex officio member with a vote, to represent all assessed commodities. The appointed members of the commission shall serve at the will of their respective appointers even though appointed for specific terms as set forth in RCW 15.26.070. [1969 c 129 § 4.] *Reviser’s note: The "Washington state apple advertising commission" was renamed the "Washington apple commission" by 2002 c 313 § 115. 15.26.050 15.26.050 Qualifications of members. Nine members of the commission shall be producers who are citizens and residents of this state. Each producer member shall be over the age of twenty-five years and have been actively engaged in growing tree fruits in this state and deriving a substantial portion of his income therefrom, or having a substantial amount of orchard acreage devoted to tree fruit production or as an owner, lessee, partner or an employee or officer of a firm engaged in the production of tree fruit whose responsibility to such firm shall be primarily in the production of tree fruit. Such employee or officer of such firm shall be actually engaged in such duties relating to the production of tree fruit with such firm or any other such firm for a period of at least five years. The qualifications of the members of the commission set forth in this section shall continue during their term of office. [1969 c 129 § 5.] (2006 Ed.) Tree Fruit Research Act 15.26.060 15.26.060 Appointment of members. The *apple advertising commission shall appoint producer members to positions one through five on the commission. The Washington state fruit commission shall appoint producer members to positions six through eight on the commission. The director shall appoint a producer who derives a substantial portion of his income from the production of winter pears. [1969 c 129 § 6.] *Reviser’s note: The "Washington state apple advertising commission" was renamed the "Washington apple commission" by 2002 c 313 § 115. 15.26.070 15.26.070 Terms of members. The terms of the members of commission shall be staggered and each shall serve for a term of three years and until their successor has been appointed and qualified: PROVIDED, That the first appointments to the commission beginning July 30, 1969, shall be for the following terms: (1) Positions one, four, and seven, one year. (2) Positions two, five, and eight, two years. (3) Positions three, six, and nine, three years. [1969 c 129 § 7.] 15.26.080 15.26.080 Vacancies. In the event a commission member resigns, is disqualified, or vacates his position on the commission for any other reason, the appointing agency that originally appointed such member shall within sixty days appoint a new member to fill the term of the vacated member. [1969 c 129 § 8.] 15.26.090 15.26.090 Quorum. A majority of the members of the commission shall constitute a quorum for the transaction of all business and carrying out the duties of the commission: PROVIDED, That on all fiscal matters, approval for passage must be by at least two-thirds majority of the said quorum. [1969 c 129 § 9.] 15.26.100 15.26.100 Compensation—Travel expenses. Each member of the commission shall be compensated in accordance with RCW 43.03.230 and shall be reimbursed for actual travel expenses incurred in carrying out the provisions of this chapter. Employees of the commission may also be reimbursed for actual travel expenses when out of state on official commission business. [1984 c 287 § 13; 1975-’76 2nd ex.s. c 34 § 13; 1969 c 129 § 10.] Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. 15.26.110 15.26.110 Powers of commission. The powers of the commission shall include the following: (1) To elect a chairman, treasurer, and such other officers as it deems advisable; (2) To adopt any rules and regulations necessary to carry out the purposes and provisions of this chapter, in conformance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW, as enacted or hereafter amended; (3) To administer and carry out the provisions of this chapter and do all those things necessary to carry out its purposes; (2006 Ed.) 15.26.120 (4) To employ and at its pleasure discharge a manager, secretary, agents, and employees as it deems necessary, and prescribe their duties and fix their compensation; (5) To own, lease or contract for any real or personal property necessary to carry out the purposes of this chapter, and transfer and convey the same; (6) To establish offices and incur expenses and enter into contracts and to create such liabilities as may be reasonable for administration and enforcement of this chapter; (7) Make necessary disbursements for the operation of the commission in carrying out the purposes and provisions of this chapter; (8) To employ, subject to the approval of the attorney general, attorneys necessary, and to maintain in its own name any and all legal actions, including actions for injunction, mandatory injunctions, or civil recovery, or proceedings before administrative tribunals or other government authorities necessary to carry out the purpose of this chapter; (9) To carry on any research which will or may benefit the planting, production, harvesting, handling, processing, or shipment of any tree fruit subject to the provisions of this chapter. To contract with any person, private or public, public agency, federal, state or local, or enter into agreements with other states or federal agencies, to carry on such research jointly or enter into joint contracts with such states or federal agencies or other recognized private or public agencies, to carry on desired research provided for in this chapter; (10) To appoint annually, ex officio commission members without a vote who are experts in research whether public or private in any area concerning or related to tree fruit to serve at the pleasure of the commission; (11) Such other powers and duties that are necessary to carry out the purpose of this chapter. [1969 c 129 § 11.] 15.26.120 15.26.120 Assessments levied—Referendum. There is hereby levied on all commercial tree fruit produced in this state or held out as being produced in this state for fresh or processing use, an assessment, initially not to exceed ten cents per ton on all such tree fruits, except that such assessment for apples for fresh shipment shall be at the rate of onehalf cent per one hundred pounds gross billing weight. Such assessment on all such commercial tree fruit shall not become effective until approved by a majority of such commercial producers of tree fruit voting in a referendum conducted jointly by the *apple advertising commission, Washington state fruit commission and the department. The respective commissions shall supply all known producers of tree fruits subject to their respective commissions with a ballot for the referendum and the department shall supply all known tree fruit producers not subject to either of the commissions with a ballot wherein all known producers may approve or disapprove such assessment. The commission may waive the payment of assessments by any class of producers of minimal amounts of tree fruit when the commission determines subsequent to a hearing that the cost of collecting and keeping records of such assessments is disproportionate to the return to the commission. [1969 c 129 § 12.] *Reviser’s note: The "Washington state apple advertising commission" was renamed the "Washington apple commission" by 2002 c 313 § 115. Collection by the Washington apple commission: RCW 15.24.110. [Title 15 RCW—page 35] 15.26.125 Title 15 RCW: Agriculture and Marketing 15.26.125 15.26.125 Assessment on cherries in excess of the fiscal growth factor under chapter 43.135 RCW—Washington tree fruit research commission. The Washington tree fruit research commission may raise the assessment on cherries in excess of the fiscal growth factor under chapter 43.135 RCW from the assessment of two dollars per ton in effect under chapter 16-560 WAC on July 1, 1995, to four dollars per ton. The commission may also establish an additional assessment on all tree fruits under RCW 15.26.155 of not more than eight cents per ton. The assessment limits established by this section are set solely to provide prior legislative authority for the purposes of RCW 43.135.055 and may not be construed as providing a limitation on the authority of the tree fruit research commission to alter assessments in any manner not limited by RCW 43.135.055. However, any alteration in assessments made under the authority of this section shall be made in compliance with the procedural requirements established by this chapter for altering or amending such assessments. [1995 c 109 § 2.] Effective date—1995 c 109: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1995." [1995 c 109 § 3.] 15.26.130 15.26.130 List of producers. The Washington apple commission and the Washington state fruit commission shall supply the director with a list of known producers subject to paying assessments to the respective commissions. The director, in addition, shall at the commission’s cost compile a list of known tree fruit producers producing fruit not subject to assessments of the Washington apple commission and the Washington state fruit commission but subject to assessments or becoming subject to assessments under the provisions of this chapter. In compiling such list the director shall publish notice to producers of such tree fruit, requiring them to file with the director a report giving the producer’s name, mailing address and orchard location. The notice shall be published once a week for four consecutive weeks in weekly or daily newspapers of general circulation in the area or areas where such tree fruit is produced. All producer reports shall be filed with the director within twenty days from the date of last publication of notice or thirty days of mailing notice to producers of such tree fruit, whichever is later. The director shall for the purpose of conducting any referendum affecting tree fruits subject to the provisions of this chapter keep such list up to date when conducting such referendum. Every person who becomes a producer after the list is compiled shall file with the director a similar report, giving his or her name, mailing address and orchard location. Such list shall be final and conclusive in conducting referendums and failure to notify a producer shall not be cause for the invalidation of any referendum. [2002 c 313 § 135; 1969 c 129 § 13.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.26.140 15.26.140 Increase in assessments by referendum. The producers of tree fruit subject to the provisions of this chapter may subsequent to approving initial assessment increase such assessment by referendum when approved by a majority of the producers voting. [1969 c 129 § 14.] [Title 15 RCW—page 36] 15.26.150 15.26.150 Additional assessments for special projects. The producers of any specific tree fruit subject to the provisions of this chapter may at any time by referendum conducted by the department and approved by a majority of the producers voting of such specific tree fruit establish an additional assessment on such specific tree fruit for special research projects of special interest to such specific tree fruit. [1969 c 129 § 15.] 15.26.155 15.26.155 Additional assessment. The producers of tree fruit subject to the provisions of this chapter may at any time, by referendum conducted by the department and approved by a majority of the producers voting, establish an additional assessment for programs including but not limited to sanitation programs and the reregistration of plant protection products for use on minor crops. The members of the commission may, subject to approval by two-thirds of the voting members of the commission, suspend all or part of the assessments on tree fruit under this section. [1991 c 257 § 2; 1983 c 281 § 3.] 15.26.160 15.26.160 Suspension of assessments. The members of the commission may, subject to approval by two-thirds of the voting members of the commission, suspend for a period not exceeding one crop year at a time all or part of the assessments on tree fruit subject to the provisions of this chapter. [1969 c 129 § 16.] 15.26.170 15.26.170 Payment of assessments required before purchase, receipt or shipment of fruit. Such assessments will be due from the producers. No person shall purchase, or receive for sale, or shipment out of state any tree fruits subject to the provisions of this chapter until he has received proof that the assessment due and payable the commission has been paid. [1969 c 129 § 17.] 15.26.180 15.26.180 Records of persons receiving fruit. Any person receiving commercial tree fruits from any producer thereof or any producer of tree fruit who prepared or processed his own tree fruit for sale, or shipment for sale shall keep complete and accurate records of all such tree fruit. Such records shall meet the requirements of rules or regulations prescribed by the commission and shall be kept for two years subject to inspection by duly authorized representatives of the commission. [1969 c 129 § 18.] 15.26.190 15.26.190 Return of dealers, handlers, and processors—Filing—Contents. Every dealer, handler, and processor shall at such times as the commission may by rule or regulation require, file with the commission a return under oath on forms to be prescribed and furnished by the commission, stating the quantity of tree fruit, subject to the provisions of this chapter, handled, shipped, or processed by him during the period or periods of time prescribed by the commission. Such return shall contain such further information as may be necessary to carry out the objects and purposes of this chapter. [1969 c 129 § 19.] 15.26.200 15.26.200 Assessments—When due and payable— Collection. Such assessments on tree fruits shall be due and (2006 Ed.) Tree Fruit Research Act payable by the producer thereof by the end of the next business day that such tree fruits are sold or shipped for sale unless such time is extended as provided for in RCW 15.26.210 by rule or regulation of the commission. The commission may by rule or regulation provide that such assessments shall be collected from the producer and remitted by the person purchasing, or receiving such tree fruit for sale, processing, or shipment anywhere. [1969 c 129 § 20.] 15.26.210 15.26.210 Assessments—Constitute personal debt. Any due and payable assessments herein levied shall constitute a personal debt of every person so assessed or who otherwise owes the same and shall be due and payable as provided for in RCW 15.26.200, unless the commission by rules or regulations provides for payment to be made not later than thirty days after the time set forth in RCW 15.26.200: PROVIDED, That such extension of time shall not apply to any person who is in arrears in his payments to the commission. [1969 c 129 § 21.] 15.26.220 15.26.220 Assessments—Failure to pay—Collection. In the event any person fails to pay the full amount of such assessment or such other sum on or before the due date, the commission may add to such unpaid assessment or sum an amount not more than ten percent but not less than one dollar of the same to defray the cost of enforcing the collection of such assessment, together with interest on the unpaid balance of one percent per month commencing the first month following the month in which payment was due. In the event of failure of such person or persons to pay any such due and payable assessment or other such sum, the commission may bring a civil action against such person or persons in a state court of competent jurisdiction for the collection thereof, together with the interest and the above specified ten percent thereon, and such reasonable attorneys’ fees as may be allowed by the court, and such action shall be tried and judgment rendered as in any other cause of action for debt due and payable. [1969 c 129 § 22.] 15.26.230 15.26.230 Disposition of moneys collected—Treasurer’s bond. All money collected under the authority of this chapter shall be paid to the treasurer of the commission, and be deposited by him in banks designated by the commission, and disbursed on the order of the commission. The treasurer shall file with the commission a fidelity bond, executed by a surety company authorized to do business in this state, in favor of the state and the commission, jointly and severally, in a sum to be fixed by the commission, but not less than twenty-five thousand dollars, and conditioned upon his faithful performance of his duties and his strict accounting of all funds of the commission. RCW 43.01.050 shall not apply to money collected under this chapter. [1969 c 129 § 23.] 15.26.265 vice programs and regarding the administration of the assessments collected under RCW 15.26.155. [1983 c 281 § 4.] 15.26.240 15.26.240 Nonliability of state, members, employees. Obligations incurred by the commission shall be enforced only against the assets of the commission in the same manner as if it were a corporation and no liability for the debts or acts of the commission shall exist against either the state of Washington, or against any member, officer, employee, or agent of the commission in his individual capacity. The members of the commission including employees of the commission, shall not be held responsible individually in any way whatsoever to any person for errors in judgment, mistakes or other acts, either of commission or omission as principal, agent, person or employee, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other member of the commission. The liability of the members of the commission shall not be several and joint and no member shall be liable for the default of any other member. [1969 c 129 § 24.] 15.26.250 15.26.250 Collection of assessments for commission by apple commission and state fruit commission. The Washington apple commission and Washington state fruit commission in order to avoid unnecessary duplication of costs and efforts in collecting assessments for tree fruits at the time said commissions collect assessments due under the provisions of their acts may also collect the assessment due the commission on such tree fruit. Such assessments on winter pears may be collected by the Washington state fruit commission or in a manner prescribed by the commission. Assessments collected for the commission by the Washington apple commission and the Washington state fruit commission shall be forwarded to the commissions expeditiously. No fee shall be charged the commission for the collection of assessments because the research conducted by the commission shall be of direct benefit to all commercial growers of tree fruits in the state of Washington. However, the commission shall reimburse at actual cost to the department or the Washington state fruit commission or apple commission any assessment collected for the commission by such agencies for any tree fruit subject to the provisions of this chapter, but not subject to pay assessments to the Washington state fruit commission or the Washington apple commission. [2002 c 313 § 136; 1969 c 129 § 25.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.26.260 15.26.260 Legal costs and expenses to be borne by commission. All legal costs and expenses that may be incurred in the collection of delinquent accounts owed this commission shall be borne by the commission; except as provided for otherwise in RCW 15.26.220. [1969 c 129 § 26.] 15.26.235 15.26.235 Collection, administration, and dispersal of funds for industry service programs. Funds collected and expenditures made for specific industry service programs shall be collected, administered, and dispersed separately from all other funds authorized and collected for research by the commission. The commission may appoint a committee to advise them regarding the need for specific industry ser(2006 Ed.) 15.26.265 15.26.265 Funding staff support—Rules. The director may provide by rule for a method to fund staff support for all commodity boards and commissions in accordance with RCW 43.23.033 if a position is not directly funded by the legislature and costs related to the specific activity undertaken on behalf of an individual commodity board or commission. [Title 15 RCW—page 37] 15.26.270 Title 15 RCW: Agriculture and Marketing The commission shall provide funds to the department according to the rules adopted by the director. [2002 c 313 § 73.] Effective dates—2002 c 313: See note following RCW 15.65.020. previous conviction shall be considered a first offense. [2003 c 53 § 105; 1969 c 129 § 30.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 15.26.900 15.26.270 15.26.270 Copies of commission’s proceedings, records, acts as evidence. Copies of the commission’s proceedings, records, and acts when certified by the secretary and authenticated by the commission’s seal shall be admissible in all courts as prima facie evidence of the truth of all statements therein. [1969 c 129 § 27.] 15.26.280 15.26.280 Moneys collected retained by commission. All moneys collected by the commission under the provisions of this chapter shall be retained by the commission for the purpose of carrying out the purpose and provisions of this chapter. The commission may accept and retain any moneys from private persons or private or public agencies to carry out the purposes and provisions of this chapter. [1969 c 129 § 28.] 15.26.290 15.26.290 Contracts with public or private agencies to carry out chapter. The commission may enter into agreement or contract with any private person or any private or public agency whether federal, state or local in order to carry out the purposes and provisions of this chapter. [1969 c 129 § 29.] 15.26.295 15.26.295 Certain records exempt from public disclosure—Exceptions—Actions not prohibited by chapter. (1) Under RCW 42.56.380, certain agricultural business records, commission records, and department of agriculture records relating to the commission and producers of agricultural commodities are exempt from public disclosure. (2) Financial and commercial information and records submitted to either the department or the commission for the purpose of administering this chapter may be shared between the department and the commission. They may also be used, if required, in any suit or administrative hearing involving any provision of this chapter or a marketing order. (3) This chapter does not prohibit: (a) The issuance of general statements based upon the reports of persons subject to this chapter as long as the statements do not identify the information furnished by any person; or (b) The publication by the director or the commission of the name of any person violating this chapter and a statement of the manner of the violation by that person. [2005 c 274 § 212; 2002 c 313 § 67.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.26.900 Chapter cumulative. The provisions of this chapter shall be cumulative and nonexclusive and shall not affect any other remedy. [1969 c 129 § 32.] 15.26.910 15.26.910 Severability—1969 c 129. If any provision of this act or its application to any person or circumstances is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1969 c 129 § 33.] Chapter 15.28 Sections 15.28.010 15.28.015 15.28.020 15.28.023 15.28.024 15.28.030 15.28.040 15.28.050 15.28.055 15.28.060 15.28.070 15.28.080 15.28.090 15.28.100 15.28.103 15.28.105 15.28.110 15.28.120 15.28.130 15.28.140 15.28.150 15.28.160 15.28.170 15.28.175 15.28.180 15.28.190 15.28.200 15.28.210 15.28.220 15.28.230 15.28.240 15.28.250 15.28.260 15.28.270 15.28.280 15.28.290 15.28.300 15.28.305 15.28.310 15.28.315 15.26.300 15.26.300 Violations—Penalty. (1) Except as provided in subsection (2) of this section, any person violating any provision of this chapter or any rule or regulation adopted hereunder is guilty of a misdemeanor. (2) A second or subsequent violation is a gross misdemeanor. Any offense committed more than five years after a [Title 15 RCW—page 38] Chapter 15.28 RCW SOFT TREE FRUITS 15.28.320 15.28.325 15.28.901 15.28.910 Definitions. Regulating soft tree fruits—Commission created—Existing comprehensive scheme—Applicable laws. Commission composition—Voting—Quorum. Director appoints members—Nominations—Advisory vote. Transition to director appointed commission. Qualifications of voting members. Appointment of voting members—Positions. Terms of office. Terms of present members. Nominating meetings—Notice—Appointment—Ballots— Advisory vote—Eligible voters. Establishment of subdistricts—Rules and regulations. Vacancies on commission—How filled. Compensation of members—Travel expenses. Powers of commission. Commission’s plans, programs, and projects—Director’s approval required. Commission speaks for state—Director’s oversight. Duties of commission. Copies of records as evidence. State, personal, nonliability—Obligations limited by collections—Defense to certain civil or criminal actions. District advisory and state commodity committees. Committee organization—Duties. Annual assessment—Exemption—Brined sweet cherries assessable. Research and advertising—Power to increase assessment. Promotional printing and literature—Contracts. Increase of assessment for specific fruit or classification—Procedure. Deposit of funds—Treasurer’s bond. Use of funds—Contributions. Records kept—Preservation—Inspection of. Returns to commission. Due date of assessments—Delinquent penalty. Collection rules—Use of "stamps." Responsibility for payment of assessments—Due upon receipt—Delinquencies—Civil action. Publications by commission—Subscriptions. Violations—Penalty. Venue of actions—Jurisdiction of courts. Duty to enforce. Rules and regulations—Filing—Publication. Rule making—Exemptions. Authority to agents of commission to inspect. Certain records exempt from public disclosure—Exceptions— Actions not prohibited by chapter. Funding staff support—Rules. Costs of implementing RCW 15.28.103. Severability—2004 c 99. Liberal construction. 15.28.010 15.28.010 Definitions. As used in this chapter: (2006 Ed.) Soft Tree Fruits (1) "Commission" means the Washington state fruit commission. (2) "Shipment" or "shipped" includes loading in a conveyance to be transported to market for resale, and includes delivery to a processor or processing plant, but does not include movement from the orchard where grown to a packing or storage plant within this state for fresh shipment; (3) "Handler" means any person who ships or initiates the shipping operation, whether as owner, agent or otherwise; (4) "Dealer" means any person who handles, ships, buys, or sells soft tree fruits other than those grown by him or her, or who acts as sales or purchasing agent, broker, or factor of soft tree fruits; (5) "Processor" or "processing plant" includes every person or plant receiving soft tree fruits for the purpose of drying, dehydrating, canning, pressing, powdering, extracting, cooking, quick-freezing, brining, or for use in manufacturing a product; (6) "Soft tree fruits" mean Bartlett pears and all varieties of cherries, apricots, prunes, plums, and peaches, which includes all varieties of nectarines. "Bartlett pears" means and includes all standard Bartlett pears and all varieties, strains, subvarieties, and sport varieties of Bartlett pears including Red Bartlett pears, that are harvested and utilized at approximately the same time and approximately in the same manner. (7) "Commercial fruit" or "commercial grade" means soft tree fruits meeting the requirements of any established or recognized fresh fruit or processing grade. Fruit bought or sold on orchard run basis and not subject to cull weighback shall be deemed to be "commercial fruit." (8) "Cull grade" means fruit of lower than commercial grade except when such fruit included with commercial fruit does not exceed the permissible tolerance permitted in a commercial grade; (9) "Producer" means any person who is a grower of any soft tree fruit; (10) "District No. 1" or "first district" includes the counties of Chelan, Okanogan, Grant, Douglas, Ferry, Stevens, Pend Oreille, Spokane and Lincoln; (11) "District No. 2" or "second district" includes the counties of Kittitas, Yakima, and Benton county north of the Yakima river; (12) "District No. 3" or "third district" comprises all of the state not included in the first and second districts; (13) "Mail" or "send" for purposes of any notice relating to rule making, referenda, or elections means regular mail or electronic distribution, as provided in RCW 34.05.260 for rule making. "Electronic distribution" or "electronically" means distribution by electronic mail or facsimile mail; (14) "Department" means the department of agriculture; (15) "Director" means the director of agriculture. [2002 c 313 § 104; 1989 c 354 § 27; 1973 c 11 § 1; 1963 c 51 § 1; 1961 c 11 § 15.28.010. Prior: 1955 c 47 § 1; 1947 c 73 § 1; Rem. Supp. 1947 § 2909-10.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1989 c 354: See note following RCW 15.36.012. 15.28.015 15.28.015 Regulating soft tree fruits—Commission created—Existing comprehensive scheme—Applicable (2006 Ed.) 15.28.015 laws. The history, economy, culture, and the future of Washington state’s agriculture involves the production of soft tree fruits. In order to develop and promote Washington’s soft tree fruits as part of an existing comprehensive regulatory scheme the legislature declares: (1) That the Washington state fruit commission is created; (2) That it is vital to the continued economic well-being of the citizens of this state and their general welfare that its soft tree fruits be properly promoted by (a) enabling the soft tree fruit industry to help themselves in establishing orderly, fair, sound, efficient, and unhampered cooperative marketing, grading, and standardizing of soft tree fruits they produce; and (b) working to stabilize the soft tree fruit industry by increasing consumption of soft tree fruits within the state, the nation, and internationally; (3) That producers of soft tree fruits operate within a regulatory environment that imposes burdens on them for the benefit of society and the citizens of the state and includes restrictions on marketing autonomy. Those restrictions may impair the producers of soft tree fruits in their ability to compete in local, domestic, and foreign markets; (4) That it is in the overriding public interest that support for the soft tree fruit industry be clearly expressed, that adequate protection be given to agricultural commodities, uses, activities, and operations, and that soft tree fruits be promoted individually, and as part of a comprehensive industry to: (a) Enhance the reputation and image of Washington state’s agriculture industry; (b) Increase the sale and use of Washington state’s soft tree fruits in local, domestic, and foreign markets; (c) Protect the public by educating the public in reference to the quality, care, and methods used in the production of Washington state’s soft tree fruits; (d) Increase the knowledge of the health-giving qualities and dietetic value of soft tree fruits; (e) Support and engage in cooperative programs or activities that benefit the production, handling, processing, marketing, and uses of soft tree fruits produced in Washington state; (5) That this chapter is enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state and to stabilize and protect the soft tree fruit industry of the state; and (6) That the production and marketing of soft tree fruit is a highly regulated industry and that the provisions of this chapter and the rules adopted under it are only one aspect of the regulated industry. Other regulations and restraints applicable to the soft tree fruit industry include: (a) The federal marketing order under 7 C.F.R. Part 922 (apricots); (b) The federal marketing order under 7 C.F.R. Part 923 (sweet cherries); (c) The federal marketing order under 7 C.F.R. Part 924 (prunes); (d) The federal marketing order under 7 C.F.R. Part 930 (tart cherries); (e) The federal marketing order under 7 C.F.R. Part 931 (Bartlett pears); [Title 15 RCW—page 39] 15.28.020 Title 15 RCW: Agriculture and Marketing the director-appointed positions. Advisory ballots shall be mailed to all affected producers and shall be returned to the director not less than thirty days prior to the commencement of the term. The advisory ballot shall be conducted in a manner so that it is a secret ballot. The names of the two candidates receiving the most votes in the advisory vote shall be forwarded to the director for potential appointment to the commission. In the event there are only two candidates nominated for a position, an advisory vote may not be held and the candidates’ names shall be forwarded to the director for potential appointment. If only one candidate is nominated for a position, the commission shall select a second candidate whose name will be forwarded to the director. (4) Any candidate whose name is forwarded to the director for potential appointment shall submit to the director a letter stating why he or she wishes to be appointed to the commission. The director may select either person for the position. [2003 c 396 § 16.] (f) Tree fruit research act under chapter 15.26 RCW; (g) Controlled atmosphere storage of fruits and vegetables under chapter 15.30 RCW; (h) Organic food products act under chapter 15.86 RCW; (i) Intrastate commerce in food, drugs, and cosmetics under chapter 69.04 RCW and rules; (j) Washington food processing act under chapter 69.07 RCW; (k) Washington food storage warehouses act under chapter 69.10 RCW; (l) Weighmasters under chapter 15.80 RCW; (m) Horticultural pests and diseases under chapter 15.08 RCW; (n) Horticultural plants and facilities—Inspection and licensing under chapter 15.13 RCW; (o) Planting stock under chapter 15.14 RCW; (p) Standards of grades and packs under chapter 15.17 RCW; (q) Washington pesticide control act under chapter 15.58 RCW; (r) Farm marketing under chapter 15.64 RCW; (s) Insect pests and plant diseases under chapter 17.24 RCW; (t) Weights and measures under chapter 19.94 RCW; (u) Agricultural products—Commission merchants, dealers, brokers, buyers, and agents under chapter 20.01 RCW; and (v) Rules under the Washington Administrative Code, Title 16. [2002 c 313 § 103.] 15.28.024 Transition to director appointed commission. To accomplish the transition to a commission structure where the director appoints a majority of commission members, the names of the currently elected commission members shall be forwarded to the director for appointment to the commission within thirty days of May 20, 2003. Thereafter, the director shall appoint commission members pursuant to RCW 15.28.023 as the current commission member terms expire. [2003 c 396 § 17.] Effective dates—2002 c 313: See note following RCW 15.65.020. Effective date—2003 c 396: See note following RCW 15.66.030. Effective date—2003 c 396: See note following RCW 15.66.030. 15.28.024 15.28.020 15.28.020 Commission composition—Voting—Quorum. The commission is composed of seventeen voting members, as follows: Ten producers, four dealers, and two processors, who are appointed as provided in this chapter. The director, or an authorized representative, shall be a voting member of the commission. Other sections of this chapter that relate to the selection of voting members shall not apply to the director or his or her authorized representative. A majority of the voting members constitute a quorum for the transaction of any business. [2003 c 396 § 13; 2002 c 313 § 105; 1967 c 191 § 1; 1961 c 11 § 15.28.020. Prior: (i) 1947 c 73 § 2; Rem. Supp. 1947 § 2901-11. (ii) 1947 c 73 § 9; Rem. Supp. 1947 § 2909-18. (iii) 1947 c 73 § 13, part; Rem. Supp. 1947 § 2909-22, part.] Effective date—2003 c 396: See note following RCW 15.66.030. Effective dates—2002 c 313: See note following RCW 15.65.020. Effective date—1967 c 191: "This act is necessary for the immediate preservation of the public peace, health and safety, the support of the state government and its existing public institutions, and shall take effect immediately: PROVIDED, That section 5 of this 1967 amendatory act shall not take effect until July 1, 1968." [1967 c 191 § 9.] 15.28.023 15.28.023 Director appoints members—Nominations—Advisory vote. (1) The director shall appoint the members of the commission. (2) Candidates for positions on the commission shall be nominated under RCW 15.28.060. (3) Not less than sixty days nor more than seventy-five days prior to the commencement of a commission member’s term, the director shall cause an advisory vote to be held for [Title 15 RCW—page 40] 15.28.030 15.28.030 Qualifications of voting members. All voting members must be citizens and residents of this state. Each producer member must be over the age of twenty-five years, and be, and for five years have been, actively engaged in growing soft tree fruits in this state, and deriving a substantial portion of his income therefrom, or have a substantial amount of orchard acreage devoted to soft tree fruit production as an owner, lessee, partner, or a stockholder owning at least ten percent of the voting stock in a corporation engaged in the production of soft tree fruit. He cannot be engaged directly in business as a dealer. Each dealer member must be actively engaged, either individually or as an executive officer, employee or sales manager on a management level, or managing agent of an organization, as a dealer. Each processor member must be engaged, either individually or as an executive officer, employee on a management level, sales manager, or managing agent of an organization, as a processor. Only one dealer member may be in the employ of any one person or organization engaged in business as a dealer. Only one processor member may be in the employ of any one person or organization engaged in business as a processor. Said qualifications must continue throughout each member’s term of office. [1967 c 191 § 2; 1961 c 11 § 15.28.030. Prior: 1947 c 73 § 3; Rem. Supp. 1947 § 2909-12.] 15.28.040 15.28.040 Appointment of voting members—Positions. Of the producer members, four shall be appointed from the first district and occupy positions one, two, three and four; four shall be appointed from the second district and (2006 Ed.) Soft Tree Fruits occupy positions five, six, seven and eight, and two shall be appointed from the third district and occupy positions nine and ten. Of the dealer members, two shall be appointed from each of the first and second districts and respectively occupy positions eleven and twelve from the first district and positions thirteen and fourteen from the second district. The processor members shall be appointed from the state at large and occupy positions fifteen and sixteen. The dealer member position previously referred to as position twelve shall henceforth be position thirteen. The processor member position heretofore referred to as position fourteen shall cease to exist on March 21, 1967. The processor member position heretofore referred to as thirteen shall be known as position sixteen. [2003 c 396 § 14; 1967 c 191 § 3; 1961 c 11 § 15.28.040. Prior: 1947 c 73 § 4; Rem. Supp. 1947 § 290913.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.28.050 15.28.050 Terms of office. The regular term of office of the members of the commission shall be three years commencing on May 1, following the date of appointment and until their successors are appointed and qualified, except, however, that the first term of dealer position twelve in the first district shall be for two years and expire May 1, 1969. [2003 c 396 § 15; 1967 c 191 § 4; 1961 c 11 § 15.28.050. Prior: 1947 c 73 § 5; Rem. Supp. 1947 § 2909-14.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.28.055 15.28.055 Terms of present members. Present members of the state fruit commission as provided for in RCW 15.28.020 shall serve until the first day of May of the year in which their terms would ordinarily expire and until their successors are elected and qualified. [1967 c 191 § 8.] 15.28.060 15.28.060 Nominating meetings—Notice—Appointment—Ballots—Advisory vote—Eligible voters. The director shall call meetings at times and places concurred upon by the director and the commission for the purpose of nominating producer, dealer or processor members for potential appointment to the commission when such members’ terms are about to expire. Notice of such meetings shall be given at least sixty days prior to the time the respective members’ term is about to expire. The nominating meetings shall be held at least sixty days prior to the expiration of the respective members’ term of office. Notice shall be given by the commission by mail to all known persons having a right to vote for such respective nominee’s potential appointment to the commission. Further, the commission shall publish notice at least once in a newspaper of general circulation in the district where the nomination is to be held. Such a newspaper may be published daily or weekly. The failure of any person entitled to receive notice of such nominating meeting shall not invalidate such nominating meeting or the appointment of a member nominated at such meeting. Any person qualified to serve on the commission may be nominated orally at the nomination meetings. Written nominations, signed by five persons qualified to vote for the said nominee, may be made for five days subsequent to the nomi(2006 Ed.) 15.28.090 nation meeting. Such written nominations shall be filed with the commission at its Yakima office. The director shall cause an advisory vote to be held for commission positions. The advisory vote shall be by secret mail ballot. Persons qualified to vote for members of the commission shall, except as otherwise provided by law or rule or regulation of the commission, vote only in the district in which their activities make them eligible to vote for a potential member of the commission. A producer to be eligible to vote in the advisory vote for a nominee as a producer member of the commission must be a commercial producer of soft tree fruits paying assessments to the commission. When a legal entity acting as a producer, dealer, or processor is qualified to vote for a candidate in any district or area to serve in a specified position on the commission, such legal entity may cast only one vote for such candidate, regardless of the number of persons comprising such legal entity or stockholders owning stock therein. [2003 c 396 § 18; 1967 c 191 § 6; 1963 c 51 § 2; 1961 c 11 § 15.28.060. Prior: 1947 c 73 § 6; Rem. Supp. 1947 § 2909-15.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.28.070 15.28.070 Establishment of subdistricts—Rules and regulations. The commission shall have the authority, subject to the provisions of chapter 34.05 RCW (Administrative Procedure Act), for adopting rules and regulations, after public hearing, establishing one or more subdistricts in any one of the three districts. Such subdistricts shall include a substantial portion of the soft tree fruit producing area in the district in which they are formed. The commission shall, when a subdistrict has been formed within one of the districts as in this section provided for, assign one of the districts’ producer positions on the commission to said subdistrict. Such producer position may only be filled by a producer residing in such subdistrict, whether by apportionment or appointment. [2003 c 396 § 19; 1967 c 191 § 7; 1961 c 11 § 15.28.070. Prior: 1947 c 73 § 7; Rem. Supp. 1947 § 2909-16.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.28.080 15.28.080 Vacancies on commission—How filled. In the event a position becomes vacant due to resignation, disqualification, death, or for any other reason, such position, until the next annual nominating meeting, shall be filled by vote of the remaining members of the commission. Following the next annual nomination meeting, the director shall appoint one of the two nominees selected by advisory ballot to fill the balance of the unexpired term. [2003 c 396 § 20; 1961 c 11 § 15.28.080. Prior: 1947 c 73 § 8; Rem. Supp. 1947 § 2909-17.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.28.090 15.28.090 Compensation of members—Travel expenses. Each member of the commission shall be compensated in accordance with RCW 43.03.230 and shall be reimbursed for actual travel expenses incurred in carrying out the provisions of this chapter. Employees of the commission may also be reimbursed for actual travel expenses when out of state on official commission business. [1984 c 287 § 14; [Title 15 RCW—page 41] 15.28.100 Title 15 RCW: Agriculture and Marketing 1975-’76 2nd ex.s. c 34 § 14; 1967 c 191 § 5; 1961 c 11 § 15.28.090. Prior: 1947 c 73 § 10; Rem. Supp. 1947 § 290919.] (4) The director shall strive to review and make a determination of all submissions described in this section in a timely manner. [2003 c 396 § 21.] Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. Effective date—2003 c 396: See note following RCW 15.66.030. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. Effective date—1967 c 191: See note following RCW 15.28.020. 15.28.100 15.28.100 Powers of commission. The Washington state fruit commission is hereby declared and created a corporate body. The commission has power: (1) To exercise all of the powers of a corporation; (2) To elect a chairman and such other officers as it may deem advisable; (3) To adopt, amend or repeal, from time to time, necessary and proper rules, regulations and orders for the performance of its duties, which rules, regulations and orders shall have the force of laws when not inconsistent with existing laws; (4) To employ, and at its pleasure discharge, such attorneys, advertising manager, agents or agencies, clerks and employees, as it deems necessary and fix their compensation; (5) To establish offices, and incur such expenses, enter into such contracts, and create such liabilities, as it deems reasonably necessary for the proper administration of this chapter; (6) To accept contributions of, or match private, state or federal funds available for research, and make contributions to persons or state or federal agencies conducting such research; (7) To administer and enforce this chapter, and do and perform all acts and exercise all powers deemed reasonably necessary, proper or advisable to effectuate the purposes of this chapter, and to perpetuate and promote the general welfare of the soft tree fruit industry of this state; (8) To sue and be sued. [1961 c 11 § 15.28.100. Prior: (i) 1947 c 73 § 13, part; Rem. Supp. 1947 § 2909-22, part. (ii) 1947 c 73 § 15, part; Rem. Supp. 1947 § 2909-24, part. (iii) 1947 c 73 § 17, part; Rem. Supp. 1947 § 2909-26, part.] 15.28.103 15.28.103 Commission’s plans, programs, and projects—Director’s approval required. (1) The commission shall develop and submit to the director for approval any plans, programs, and projects concerning the following: (a) The establishment, issuance, effectuation, and administration of appropriate programs or projects for the advertising and promotion of the affected commodities; and (b) The establishment and effectuation of market research projects, market development projects, or both to the end that the marketing and utilization of the affected commodities may be encouraged, expanded, improved, or made more efficient. (2) The director shall review the commission’s advertising or promotion program to ensure that no false claims are being made concerning the affected commodities. (3) The commission, prior to the beginning of its fiscal year, shall prepare and submit to the director for approval its research plan, its commodity-related education and training plan, and its budget on a fiscal period basis. [Title 15 RCW—page 42] 15.28.105 15.28.105 Commission speaks for state—Director’s oversight. The commission exists primarily for the benefit of the people of the state of Washington and its economy. The legislature hereby charges the commission, with oversight by the director, to speak on behalf of Washington state government with regard to its particular commodities. [2003 c 396 § 22.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.28.110 15.28.110 Duties of commission. The commission’s duties are: (1) To adopt a commission seal; (2) To elect a secretary-manager and a treasurer, and fix their compensation. The same person may be elected to both offices; (3) To establish classifications of soft tree fruits; (4) To conduct scientific research and develop the healthful, therapeutic, and dietetic value of fruits, and promote the general welfare of the soft tree fruit industry of the state; (5) To conduct a comprehensive advertising and educational campaign to effectuate the objects of this chapter; (6) To increase the production, and develop and expand the markets, and improve the handling and quality of fruits; (7) To keep accurate accounts and records of all of its dealings, which shall be open to inspection and audit by the state auditor; (8) To investigate and prosecute violations of this chapter; and (9) To serve as an advisory committee to the director with regard to the adoption and enforcement of rules: (a) Governing the grading, packing, and size and dimensions of commercial containers of soft tree fruits; and (b) Fixing commercial grades of soft tree fruits and the issuance of certificates of inspection for those fruits. [2002 c 313 § 106; 1961 c 11 § 15.28.110. Prior: (i) 1947 c 73 § 13, part; Rem. Supp. 1947 § 2909-22, part. (ii) 1947 c 73 § 14; Rem. Supp. 1947 § 2909-23. (iii) 1947 c 73 § 15, part; Rem. Supp. 1947 § 2909-24, part. (iv) 1947 c 73 § 17, part; Rem. Supp. 1947 § 2909-26, part.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.28.120 15.28.120 Copies of records as evidence. Copies of the commission’s proceedings, records, and acts, when certified by the secretary and authenticated by the corporate seal, shall be admissible in all courts as prima facie evidence of the truth of all statements therein. [1961 c 11 § 15.28.120. Prior: 1947 c 73 § 13, part; Rem. Supp. 1947 § 2909-22, part.] 15.28.130 15.28.130 State, personal, nonliability—Obligations limited by collections—Defense to certain civil or criminal actions. Neither the state, nor any member, agent, or employee of the commission, is liable for the acts of the commission, or upon its contracts. (2006 Ed.) Soft Tree Fruits All salaries, expenses, costs, obligations, and liabilities of the commission, and claims arising from the administration of this chapter, are payable only from funds collected under this chapter. In any civil or criminal action or proceeding for violation of any rule of [or] statutory or common law against monopolies or combinations in restraint of trade, including any action under chapter 19.86 RCW, proof that the act complained of was done in compliance with the provisions of this chapter, and in furtherance of the purposes and provisions of this chapter, is a complete defense to such an action or proceeding. [2002 c 313 § 107; 1961 c 11 § 15.28.130. Prior: 1947 c 73 § 16; Rem. Supp. 1947 § 2909-25.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.28.140 15.28.140 District advisory and state commodity committees. There shall be separate district advisory committees and separate state commodity committees for each of the following soft tree fruits, to wit: Bartlett pears, peaches, apricots, prunes and plums, and cherries. The growers, dealers, or processors of each of the soft tree fruits, at their respective annual district meetings may elect separate district advisory committees for each of the soft tree fruits grown, handled, or processed in their respective districts. The district advisory committee shall consist of five members comprising three growers, one dealer and one processor of the respective soft tree fruit groups. Each state commodity committee shall consist of two members from, and selected by, each district advisory committee for each soft fruit. [1961 c 11 § 15.28.140. Prior: 1947 c 73 § 11; Rem. Supp. 1947 § 290920.] 15.28.150 15.28.150 Committee organization—Duties. Each district advisory committee and each state commodity committee shall select one of its members as chairman. Meetings may be called by the chairman or by any two members of any committee by giving reasonable written notice of the meeting to each member of such committee. A majority of the members shall be necessary to constitute a quorum. The district advisory committees and state commodity committees shall consult with and advise the commission on matters pertaining to the soft tree fruits which they respectively represent, and the commission shall give due consideration to their recommendations. Any grower, dealer, or processor, if qualified, may be a member of more than one committee. [1961 c 11 § 15.28.150. Prior: 1947 c 73 § 12; Rem. Supp. 1947 § 290921.] 15.28.160 15.28.160 Annual assessment—Exemption—Brined sweet cherries assessable. An annual assessment is hereby levied upon all commercial soft tree fruits grown in the state or packed as Washington soft tree fruit of fifty cents per two thousand pounds (net weight) of said fruits, when shipped fresh or delivered to processors, whether in bulk, loose in containers, or packaged in any style of package, except, that all sales of five hundred pounds or less of such fruits sold by the producer direct to the consumer shall be exempt from said assessments. Sweet cherries which are brined are deemed to be commercial soft tree fruit and therefore assessable hereun(2006 Ed.) 15.28.180 der. [1989 c 354 § 28; 1963 c 51 § 3; 1961 c 11 § 15.28.160. Prior: 1947 c 73 § 18; Rem. Supp. 1947 § 2909-27.] Severability—1989 c 354: See note following RCW 15.36.012. 15.28.170 15.28.170 Research and advertising—Power to increase assessment. The commission shall investigate the needs of soft tree fruit producers, the condition of the markets, and extent to which the same require advertising and research. If the investigation shows that the revenue from the assessments levied is inadequate to accomplish the objects of this chapter, it shall report its findings to the director, showing the necessities of the industry, the probable cost of the required program, and the probable revenue from the existing levy. It may then increase the assessments to be levied to an amount not exceeding two dollars per each two thousand pounds (net weight) of such fruits so contained or packed. [1961 c 11 § 15.28.170. Prior: 1947 c 73 § 25; Rem. Supp. 1947 § 2909-34.] 15.28.175 15.28.175 Promotional printing and literature— Contracts. Promotional printing and literature not restricted by laws relating to public printer, see RCW 15.24.085. Conditions of employment, etc., in contracts, see RCW 15.24.086. 15.28.180 15.28.180 Increase of assessment for specific fruit or classification—Procedure. (1) The same assessment shall be made for each soft tree fruit, except that if a two-thirds majority of the state commodity committee of any fruit recommends in writing the levy of an additional assessment on that fruit, or any classification thereof, for any year or years, the commission may levy such assessment for that year or years up to the maximum of eighteen dollars for each two thousand pounds of any fruit except cherries or any classification thereof, as to which the assessment may be increased to a maximum of thirty dollars for each two thousand pounds, and except pears covered by this chapter, as to which the assessment may be increased to a maximum of eighteen dollars for each two thousand pounds: PROVIDED, That no increase in the assessment on pears becomes effective unless the increase is first referred by the commission to a referendum by the Bartlett pear growers of the state and is approved by a majority of the growers voting on the referendum. The method and procedure of conducting the referendum shall be determined by the commission. Any funds so raised shall be expended solely for the purposes provided in this chapter and solely for such fruit, or classification thereof. The commission has the authority in its discretion to exempt in whole or in part from future assessments under this chapter, during such period as the commission may prescribe, any of the soft tree fruits or any particular strain or classification of them. (2) An assessment levied under this chapter may be increased in excess of the fiscal growth factor as determined under chapter 43.135 RCW if the assessment is submitted by referendum to the growers who are subject to the assessment and the increase is approved by a majority of those voting on the referendum. The method and procedure of conducting the referendum shall be determined by the commission. [1997 c 303 § 3; 1992 c 87 § 1; 1983 1st ex.s. c 73 § 1; 1977 ex.s. c 8 [Title 15 RCW—page 43] 15.28.190 Title 15 RCW: Agriculture and Marketing § 1; 1965 ex.s. c 43 § 1; 1963 c 51 § 4; 1961 c 11 § 15.28.180. Prior: 1947 c 73 § 26; Rem. Supp. 1947 § 2909-35.] 15.28.220. Prior: 1947 c 73 § 21; Rem. Supp. 1947 § 290930.] Findings—1997 c 303: See note following RCW 43.135.055. 15.28.230 Effective date—1997 c 303 §§ 1-3: See note following RCW 43.135.055. 15.28.190 15.28.190 Deposit of funds—Treasurer’s bond. All money collected under the authority of this chapter shall be paid to the treasurer of the commission, deposited by him in banks designated by the commission, and disbursed on its order. The treasurer shall file with the commission a fidelity bond, executed by a surety company authorized to do business in this state, in favor of the state and the commission, jointly and severally, in the sum of fifty thousand dollars, and conditioned upon his faithful performance of his duties and his strict accounting of all funds of the commission. None of the provisions of RCW 43.01.050 shall apply to money collected under this chapter. [1961 c 11 § 15.28.190. Prior: 1947 c 73 § 15, part; Rem. Supp. 1947 § 2909-24, part.] 15.28.200 15.28.200 Use of funds—Contributions. All moneys collected from such levy shall be expended exclusively to effectuate the purposes and objects of this chapter. They shall be generally expended on promotion and improvement of the various commodities approximately in the ratio that funds are derived from such commodities, after deducting suitable amounts for general overhead and basic general research, unless a majority of the functioning state commodity committees consent to a larger expenditure on behalf of any commodity or commodities. Any funds contributed to the commission by any special group or raised by an additional levy on any commodity or classification thereof, shall be expended only in connection with such commodity. [1961 c 11 § 15.28.200. Prior: 1947 c 73 § 19; Rem. Supp. 1947 § 2909-28.] 15.28.210 15.28.210 Records kept—Preservation—Inspection of. Every dealer, handler, and processor shall keep a complete and accurate record of all soft tree fruits handled, shipped, or processed by him. Such record shall be in simple form and contain such information as the commission shall by rule or regulation prescribe. The records shall be preserved by such handler, dealer, and processor for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written request of the commission or its duly authorized agents. [1961 c 11 § 15.28.210. Prior: 1947 c 73 § 20; Rem. Supp. 1947 § 2909-29.] 15.28.220 15.28.220 Returns to commission. Every dealer, handler, and processor shall at such times as the commission may by rule or regulation require, file with the commission a return under oath on forms to be prescribed and furnished by the commission, stating the quantity of soft tree fruits handled, shipped, or processed by him during the period or periods of time prescribed by the commission. Such return shall contain such further information as may be necessary to carry out the objects and purposes of this chapter. [1961 c 11 § [Title 15 RCW—page 44] 15.28.230 Due date of assessments—Delinquent penalty. All assessments levied and imposed by this chapter shall be due prior to shipment and shall become delinquent if not paid within thirty days after the time established for such payment according to regulations of the commission. A delinquent penalty shall be payable on any such delinquent assessment, calculated as interest on the principal amount due at the rate of ten percent per annum. Any delinquent penalty shall not be charged back against the grower unless he caused such delay in payment of the assessment due. [1961 c 11 § 15.28.230. Prior: 1955 c 47 § 2; 1947 c 73 § 22; Rem. Supp. 1947 § 2909-31.] 15.28.240 15.28.240 Collection rules—Use of "stamps." The commission shall by rule or regulation prescribe the method of collection, and for that purpose may require stamps to be known as "Washington state fruit commission stamps" to be purchased from the commission and fixed or attached to the container, invoices, shipping documents, inspection certificates, releases, or receiving receipts or tickets. Stamps shall be canceled immediately upon being so attached or fixed, and the date of cancellation shall be placed thereon. [1961 c 11 § 15.28.240. Prior: 1947 c 73 § 23; Rem. Supp. 1947 § 290932.] 15.28.250 15.28.250 Responsibility for payment of assessments—Due upon receipt—Delinquencies—Civil action. Unless the assessment has been paid by the grower and evidence thereof submitted by him or her, the dealer, handler, or processor is responsible for the payment of all assessments under this chapter on all soft tree fruits handled, shipped, or processed by him or her but he or she shall charge the same against the grower, who shall be primarily responsible for such payment. Assessments are due upon receipt of an invoice for the assessments. If the assessment becomes delinquent, the department shall cease to provide inspection services under chapter 15.17 RCW to the delinquent party until that party pays all delinquent assessments, interest, and penalties. Any assessment due and payable under this section constitutes a personal debt of every person so assessed or who otherwise owes the same. In addition, the commission may add to such unpaid assessment or sum an amount not exceeding ten percent of the same to defray the cost of enforcing the collecting of the same. In the event of failure of such person or persons to pay any such due and payable assessment or other such sum, the commission may bring a civil action against such person or persons, together with the specified ten percent thereon, and such action shall be tried and judgment rendered as in any other cause of action for debt due and payable. [2002 c 313 § 108; 1961 c 11 § 15.28.250. Prior: 1947 c 73 § 24; Rem. Supp. 1947 § 2909-33.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.28.260 15.28.260 Publications by commission—Subscriptions. If the commission publishes a bulletin or other publication, or a section in some established trade publication, for (2006 Ed.) Soft Tree Fruits the dissemination of information to the soft tree fruit industry in this state, the first two dollars of any assessment paid annually by each grower, handler, dealer, and processor of such fruit shall be applied to the payment of his subscription to such bulletin or publication. [1961 c 11 § 15.28.260. Prior: 1947 c 73 § 27; Rem. Supp. 1947 § 2909-36.] 15.28.270 15.28.270 Violations—Penalty. Every person shall be guilty of a misdemeanor who: (1) Violates or aids in the violation of any provision of this chapter, or (2) Violates or aids in the violation of any rule or regulation of the commission. [1961 c 11 § 15.28.270. Prior: 1947 c 73 § 28; Rem. Supp. 1947 § 2909-37.] 15.28.280 15.28.280 Venue of actions—Jurisdiction of courts. Any prosecution brought under this chapter may be instituted or brought in any county in the state in which the defendant or any of the defendants reside, or in which the violation was committed, or in which the defendant or any of the defendants has his principal place of business. The several superior courts of the state are hereby vested with jurisdiction to enforce this chapter and to prevent and restrain violations thereof, or of any rule or regulation promulgated by the commission. [1961 c 11 § 15.28.280. Prior: 1947 c 73 § 29; Rem. Supp. 1947 § 2909-38.] 15.28.290 15.28.290 Duty to enforce. It shall be the duty of all state and county law enforcement officers and all employees and agents of the department to aid in the enforcement of this chapter. [1961 c 11 § 15.28.290. Prior: 1947 c 73 § 30; Rem. Supp. 1947 § 2909-39.] 15.28.300 15.28.300 Rules and regulations—Filing—Publication. Every rule, regulation, or order promulgated by the commission shall be filed with the director, and shall be published in a legal newspaper of general circulation in each of the three districts. All such rules, regulations, or orders shall become effective pursuant to the provisions of RCW 34.05.380. [1985 c 469 § 7; 1975 1st ex.s. c 7 § 38; 1961 c 11 § 15.28.300. Prior: 1947 c 73 § 31; Rem. Supp. 1947 § 290940.] 15.28.910 15.28.315 15.28.315 Certain records exempt from public disclosure—Exceptions—Actions not prohibited by chapter. (1) Under RCW 42.56.380, certain agricultural business records, commission records, and department of agriculture records relating to the commission and producers of agricultural commodities are exempt from public disclosure. (2) Financial and commercial information and records submitted to either the department or the commission for the purpose of administering this chapter may be shared between the department and the commission. They may also be used, if required, in any suit or administrative hearing involving any provision of this chapter or a marketing order. (3) This chapter does not prohibit: (a) The issuance of general statements based upon the reports of persons subject to this chapter as long as the statements do not identify the information furnished by any person; or (b) The publication by the director or the commission of the name of any person violating this chapter and a statement of the manner of the violation by that person. [2005 c 274 § 213; 2002 c 313 § 68.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.28.320 15.28.320 Funding staff support—Rules. The director may provide by rule for a method to fund staff support for all commodity boards and commissions in accordance with RCW 43.23.033 if a position is not directly funded by the legislature and costs related to the specific activity undertaken on behalf of an individual commodity board or commission. The commission shall provide funds to the department according to the rules adopted by the director. [2002 c 313 § 74.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.28.325 15.28.325 Costs of implementing RCW 15.28.103. The costs incurred by the department of agriculture associated with the implementation of RCW 15.28.103 shall be paid for by the commission. [2003 c 396 § 23.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.28.901 15.28.305 15.28.305 Rule making—Exemptions. Rule-making proceedings conducted under this chapter are exempt from compliance with RCW 34.05.310 and the provisions of chapter 19.85 RCW, the regulatory fairness act, when adoption of the rule is determined by a referendum vote of the affected parties. [2002 c 313 § 109.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.28.310 15.28.310 Authority to agents of commission to inspect. Agents of the commission, upon specific written authorization signed by the chairman or secretary-manager thereof, shall have the right to inspect the premises, books, records, documents, and all other instruments of any carrier, railroad, truck, boat, grower, handler, dealer, and processor for the purpose of enforcing this chapter and collecting the assessments levied hereunder. [1961 c 11 § 15.28.310. Prior: 1947 c 73 § 32; Rem. Supp. 1947 § 2909-41.] (2006 Ed.) 15.28.901 Severability—2004 c 99. If any section, subsection, sentence, clause, or part of this chapter is for any reason held to be invalid or unconstitutional, the judicial decision does not affect the remainder of the chapter and its application to other persons or circumstances. The legislature declares that each section, subsection, sentence, clause, and part of this chapter was enacted with the intent that if any portion of this chapter is severed, the remainder of the chapter is capable of accomplishing its legislative purpose. [2004 c 99 § 1.] Effective date—2004 c 99: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 24, 2004]." [2004 c 99 § 4.] 15.28.910 15.28.910 Liberal construction. This chapter shall be liberally construed. [1961 c 11 § 15.28.910. Prior: 1947 c 73 § 33, part; Rem. Supp. 1947 § 2909-42, part.] [Title 15 RCW—page 45] Chapter 15.30 Title 15 RCW: Agriculture and Marketing Chapter 15.30 RCW CONTROLLED ATMOSPHERE STORAGE OF FRUITS AND VEGETABLES Chapter 15.30 Sections 15.30.010 15.30.020 15.30.030 15.30.040 15.30.050 15.30.060 15.30.070 15.30.080 15.30.090 15.30.100 15.30.110 15.30.120 15.30.130 15.30.140 15.30.150 15.30.160 15.30.170 15.30.180 15.30.190 15.30.200 15.30.210 15.30.220 15.30.230 15.30.240 15.30.250 15.30.260 15.30.900 15.30.910 Definitions. Annual license required—Expiration date. Application for license, contents—Issuance, prerequisites. Annual license fee. Enforcement—Rules authorized, procedure. Rules—Oxygen content, temperature, and time period to be maintained—Classification of fruits, vegetables as controlled atmosphere stored. License renewal date—Penalty for late renewal, exception. Denial, suspension, revocation of license—Grounds—Hearing required. Denial, suspension, revocation of license—Hearings subject to Administrative Procedure Act. Subpoenas—Witnesses and fees. Issuance of warehouse number—Use of letters "CA"—Marking containers with letters and number. Licensee to make daily determination of air components— Record, form, contents. Identity of fruit and vegetables to be maintained by CA number and inspection number to retail market. Maturity and condition standards may be higher than for fruit and vegetables not subject to chapter. Minimum condition and maturity standards for apples. Inspection, certification prior to using "CA" or similar designation—Eradication required, when. Inspection, certification may be requested by financially interested person. Fees for inspection and certification. Certificate as evidence. Disposition of fees. Unlawful sales, acts, or use of words "controlled atmosphere storage" and terms of similar import. Injunctions authorized. Chapter cumulative and nonexclusive. Prior civil or criminal liability not affected. Penalties for violating chapter. Cooperation, agreements with other governmental agencies. Fruits and vegetables in storage prior to enactment of chapter. Severability—1961 c 29. 15.30.010 15.30.010 Definitions. For the purpose of this chapter: (1) "Department" means the department of agriculture of the state of Washington. (2) "Director" means the director of the department or his duly appointed representative. (3) "Person" means a natural person, individual, or firm, partnership, corporation, company, society and association and every officer, agent or employee thereof. This term shall import either the singular or plural, as the case may be. (4) "Controlled atmosphere storage" means any storage warehouse consisting of one or more rooms, or one or more rooms in any one facility in which atmospheric gases are controlled in their amount and in degrees of temperature for the purpose of controlling the condition and maturity of any fresh fruits or vegetables in order that, upon removal, they may be designated as having been exposed to controlled atmosphere. [1961 c 29 § 1.] 15.30.020 15.30.020 Annual license required—Expiration date. It shall be unlawful for any person to engage in the business of operating a controlled atmosphere storage warehouse or warehouses without first obtaining an annual license from the director. Such license shall expire on August 31st of any one year. [1961 c 29 § 2.] [Title 15 RCW—page 46] 15.30.030 Application for license, contents—Issuance, prerequisites. Application for a license to operate a controlled atmosphere warehouse shall be on a form prescribed by the director and shall include the following: (1) The full name of the person applying for the license. (2) If such applicant is an individual, receiver, trustee, firm, partnership, association or corporation, the full name of each member of the firm or partnership or the names of the officers of the association or corporation shall be given on the application. (3) The principal business address of the applicant in the state and elsewhere. (4) The name of a person domiciled in this state authorized to receive and accept service or legal notices of all kinds. (5) The storage capacity of each controlled atmosphere storage warehouse the applicant intends to operate by cubic capacity or volume. (6) The kind of fruits or vegetables for which the applicant intends to provide controlled atmosphere storage. (7) Any other information prescribed by the director necessary to carry out the purposes and provisions of this chapter. The director shall issue a license to an applicant upon his satisfaction that the applicant has satisfied the requirements of this chapter and rules adopted hereunder and that such applicant has paid the required license fee. [1961 c 29 § 3.] 15.30.030 15.30.040 Annual license fee. The application for an annual license to engage in the business of operating a controlled atmosphere storage warehouse or warehouses shall be accompanied by an annual license fee prescribed by the director by rule. [1988 c 254 § 6; 1961 c 29 § 4.] 15.30.040 15.30.050 Enforcement—Rules authorized, procedure. The director shall enforce and carry out the provisions of this chapter and may adopt the necessary rules to carry out its purposes. The adoption of rules shall be subject to the provisions of chapter 34.05 RCW, concerning the adoption of rules, as enacted or hereafter amended. [1961 c 29 § 5.] 15.30.050 15.30.060 Rules—Oxygen content, temperature, and time period to be maintained—Classification of fruits, vegetables as controlled atmosphere stored. The director shall adopt rules: (1) Prescribing the maximum amount of oxygen that may be retained in a sealed controlled atmosphere storage warehouse: PROVIDED, That such maximum amount of oxygen retained shall not exceed five percent when apples are stored in such controlled atmosphere storage warehouse. (2) Prescribing the period in which the oxygen content shall be reduced to the amount prescribed in subsection (1) of this section: PROVIDED, That such period shall not exceed twenty days when apples are stored in such controlled atmosphere warehouse. (3) The length of time and the degrees of temperature at which any fruits or vegetables shall be retained in controlled atmosphere storage, before they may be classified as having been stored in controlled atmosphere storage: PROVIDED, That such period shall not be less than forty-five days for Gala and Jonagold varieties and not less than sixty days for 15.30.060 (2006 Ed.) Controlled Atmosphere Storage of Fruits and Vegetables other apples. [1999 c 70 § 1; 1994 c 23 § 1; 1967 c 215 § 1; 1961 c 29 § 6.] 15.30.070 15.30.070 License renewal date—Penalty for late renewal, exception. If an application for renewal of the license provided for in RCW 15.30.020 is not filed prior to September 1st of any one year, a penalty of two dollars and fifty cents shall be assessed and added to the original fee and shall be paid by the applicant before the renewal license shall be issued: PROVIDED, That such penalty shall not apply if the applicant furnishes an affidavit that he has not engaged in the business of operating a controlled atmosphere storage warehouse subsequent to the expiration of his prior license. [1961 c 29 § 7.] 15.30.080 15.30.080 Denial, suspension, revocation of license— Grounds—Hearing required. The director is authorized to deny, suspend or revoke the license provided for in RCW 15.30.020 subsequent to a hearing, in any case in which he finds that there has been a failure or refusal to comply with the provisions of this chapter or rules adopted hereunder. [1961 c 29 § 8.] 15.30.090 15.30.090 Denial, suspension, revocation of license— Hearings subject to Administrative Procedure Act. All hearings for a denial, suspension, or revocation of the license provided for in RCW 15.30.020 shall be subject to the provisions of chapter 34.05 RCW concerning adjudicative proceedings. [1989 c 175 § 45; 1961 c 29 § 9.] 15.30.170 (1) The name and address of the licensee. (2) The number of the warehouse and the storage capacity of the warehouse. (3) The date of sealing of the warehouse. (4) Date of opening of the warehouse. (5) A daily record of the date and time of the tests, including the percentage of carbon dioxide, percentage of oxygen and the temperature. [1961 c 29 § 12.] 15.30.130 15.30.130 Identity of fruit and vegetables to be maintained by CA number and inspection number to retail market. The identity of any fruits or vegetables represented as having been stored in a room or warehouse subject to the provisions of this chapter shall be maintained, by the CA number issued to the licensee in whose warehouse such fruits and vegetables were stored and the state lot inspection number issued by the director for such fruits or vegetables, from the time it leaves such warehouse through the various channels of trade and transportation to the retailer. [1961 c 29 § 13.] 15.30.140 15.30.140 Maturity and condition standards may be higher than for fruit and vegetables not subject to chapter. The director may by rule establish condition and maturity standards for fruits or vegetables subject to the provisions of this chapter which may be higher than maturity and condition standards established for similar grades or classifications of such fruits or vegetables which are not subject to the provisions of this chapter. [1961 c 29 § 14.] Effective date—1989 c 175: See note following RCW 34.05.010. 15.30.150 15.30.100 15.30.100 Subpoenas—Witnesses and fees. The director may issue subpoenas to compel the attendance of witnesses and/or the production of books, documents and records, anywhere in the state in any hearing affecting the authority or privilege granted by a license issued under the provisions of this chapter. Witnesses shall be entitled to fees for attendance and travel, as provided for in chapter 2.40 RCW, as enacted or hereafter amended. [1961 c 29 § 10.] 15.30.110 15.30.110 Issuance of warehouse number—Use of letters "CA"—Marking containers with letters and number. The director when issuing a license to an applicant shall include a warehouse number which shall be preceded by the letters "CA". If the applicant in applying for a license includes a request for a specific warehouse number, the director shall issue such number to the applicant if such number has not been issued to a prior applicant. The letters "CA" and the number issued as provided in this section shall be marked in a manner provided by the director on all containers in which fruits or vegetables subject to the provisions of this chapter are placed or packed. [1961 c 29 § 11.] 15.30.120 15.30.120 Licensee to make daily determination of air components—Record, form, contents. The licensee shall make air component determinations as to the percentage of carbon dioxide, oxygen and temperature at least once each day. A record of such determinations shall be kept on a form prescribed by the director for a period of two years and shall include the following: (2006 Ed.) 15.30.150 Minimum condition and maturity standards for apples. Minimum condition and maturity standards for apples subject to the provisions of this chapter shall be the U.S. condition and maturity standards for export as provided in 7 Code of Federal Regulations 51.317 on February 21, 1961: PROVIDED, That the director may adopt any subsequent amendment to such U.S. condition and maturity standards for export prescribed by the secretary of agriculture of the United States. [1961 c 29 § 15.] 15.30.160 15.30.160 Inspection, certification prior to using "CA" or similar designation—Eradication required, when. No person in this state shall place or stamp the letters "CA" or a similar designation in conjunction with a number or numbers upon any container or subcontainer of any fruits or vegetables, unless the director has inspected such fruits or vegetables and issued a state lot number for such fruits or vegetables in conjunction with a certificate stating their quality and condition, that they were stored in a warehouse licensed under the provisions of this chapter and that they meet all other requirements of this chapter or rules adopted hereunder: PROVIDED, That if such fruits or vegetables are not allowed to enter the channels of commerce within two weeks of such inspection or a subsequent similar inspection by the director the letters "CA" and the state lot number shall be eradicated by the licensee. [1961 c 29 § 16.] 15.30.170 15.30.170 Inspection, certification may be requested by financially interested person. Any person financially interested in any fruits or vegetables subject to the provisions [Title 15 RCW—page 47] 15.30.180 Title 15 RCW: Agriculture and Marketing of this chapter may apply to the director for inspection and certification as to whether such fruits or vegetables meet the requirements provided for in this chapter or rules adopted hereunder. [1961 c 29 § 17.] 15.30.180 15.30.180 Fees for inspection and certification. The director shall prescribe the necessary fees to be charged to the licensee or owner for the inspection and certification of any fruits or vegetables subject to the provisions of this chapter or rules adopted hereunder. The fees provided for in this section shall become due and payable by the end of the next business day and if such fees are not paid within the prescribed time, the director may withdraw inspection or refuse to perform any inspection or certification services for the person in arrears: PROVIDED, That the director in such instances may demand and collect inspection and certification fees prior to inspecting and certifying any fruits or vegetables for such person. [1961 c 29 § 18.] 15.30.190 15.30.190 Certificate as evidence. Every inspection certificate issued by the director under the provisions of this chapter shall be received in all courts of the state as prima facie evidence of the statement therein. [1961 c 29 § 19.] 15.30.200 15.30.200 Disposition of fees. All moneys collected under the provisions of this chapter for the inspection and certification of any fruits or vegetables subject to the provisions of this chapter shall be handled and deposited in the manner provided for in *chapter 15.16 RCW, as enacted or hereafter amended, for the handling of inspection and certification fees derived for the inspection of any fruits and vegetables. [1961 c 29 § 20.] *Reviser’s note: Chapter 15.16 RCW was repealed by 1963 c 122. Later enactment, see chapter 15.17 RCW. 15.30.210 15.30.210 Unlawful sales, acts, or use of words "controlled atmosphere storage" and terms of similar import. It shall be unlawful for any person to sell, offer for sale, hold for sale, or transport for sale any fruits or vegetables represented as having been exposed to "controlled atmosphere storage" or to use any such term or form of words or symbols of similar import unless such fruits or vegetables have been stored in controlled atmosphere storage which meets the requirements of this chapter or rules adopted hereunder. [1961 c 29 § 21.] 15.30.220 15.30.220 Injunctions authorized. The director may bring an action to enjoin the violation or threatened violation of any provision of this chapter or any rule adopted pursuant to this chapter in the superior court in the county in which such violation occurs or is about to occur, notwithstanding the existence of any other remedies at law. [1961 c 29 § 22.] 15.30.230 15.30.230 Chapter cumulative and nonexclusive. The provisions of this chapter shall be cumulative and nonexclusive and shall not affect any other remedy. [1961 c 29 § 23.] inal, which shall already be in existence on February 21, 1961. [1961 c 29 § 24.] 15.30.250 15.30.250 Penalties for violating chapter. (1) Except as provided in subsection (2) of this section, any person violating the provisions of this chapter or rules adopted hereunder is guilty of a misdemeanor. (2) A second or subsequent violation is a gross misdemeanor. Any offense committed more than five years after a previous conviction shall be considered a first offense. [2003 c 53 § 106; 1961 c 29 § 25.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 15.30.260 15.30.260 Cooperation, agreements with other governmental agencies. The director may cooperate with and enter into agreements with governmental agencies of this state, other states and agencies of federal government in order to carry out the purpose and provisions of this chapter. [1961 c 29 § 26.] 15.30.900 15.30.900 Fruits and vegetables in storage prior to enactment of chapter. Any fruits or vegetables now in controlled atmosphere storage and removed after February 21, 1961 may be marked, shipped, represented and sold as having been exposed to controlled atmosphere storage if such fruits and vegetables meet the requirements of this chapter and the rules and regulations adopted hereunder. [1961 c 29 § 28.] 15.30.910 15.30.910 Severability—1961 c 29. If any section or provision of this chapter shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the chapter as a whole or any section, provision or part thereof, not adjudged invalid or unconstitutional. [1961 c 29 § 27.] Chapter 15.35 RCW WASHINGTON STATE MILK POOLING ACT Chapter 15.35 Sections 15.35.010 15.35.030 15.35.060 15.35.070 15.35.080 15.35.090 15.35.100 15.35.105 15.35.110 15.35.115 15.35.120 15.35.130 15.35.140 15.35.150 15.35.160 15.35.170 15.35.180 15.30.240 15.30.240 Prior civil or criminal liability not affected. The enactment of this chapter shall not have the effects of terminating, or in any way modifying any liability, civil or crim[Title 15 RCW—page 48] 15.35.190 15.35.200 15.35.210 Short title. Declaration of public interest. Purposes. Powers conferred to be liberally construed—Monopoly— Price setting. Definitions. Milk control between states. Director’s authority—Subpoena power—Rules. Minimum milk price—Competition from outside the marketing area. Referendum on establishing or discontinuing market area pooling arrangement. Referendum on establishing or discontinuing market area pooling arrangement—Producer-dealers. Qualifications for producers to sign petitions or vote in referendums. Form of producer petitions. Director to establish systems within market areas. Determination of quota. Contracts, rights and powers of associations not affected. Quotas—Transfer of—Limitations. Records of milk dealers and cooperatives, inspection and audit of. Records necessary for milk dealers. Verified reports of milk dealers. Milk dealer license—Required. (2006 Ed.) Washington State Milk Pooling Act 15.35.220 15.35.230 15.35.240 15.35.250 15.35.260 15.35.270 15.35.280 15.35.290 15.35.300 15.35.310 15.35.900 Milk dealer license—Application for—Contents. Milk dealer license—Fees—Additional assessment for late renewal. Milk dealer license—Denial, suspension, or revocation of— Grounds. Marketing assessment on producers—Additional assessment for milk testing—Penalty—Court action. Records and reports of licensees for assessment purposes. Assessment due date. Separate account for each marketing plan—Deductions for departmental costs. Court actions to implement. General penalty—Misdemeanor—Exception. Certain producer-dealers exempt. Severability—1971 ex.s. c 230. 15.35.010 15.35.010 Short title. This chapter may be known and cited as the Washington state milk pooling act to provide for equitable pricing and pooling among producers and processors of milk and milk products. [1993 c 345 § 1; 1971 ex.s. c 230 § 1.] 15.35.030 15.35.030 Declaration of public interest. It is hereby declared that: (1) Milk is a necessary article of food for human consumption; (2) The production, distribution, and maintenance of an adequate supply of healthful milk of proper chemical and physical content, free from contamination, is vital to the public health and welfare; (3) It is the policy of the state to promote, foster, and encourage the intelligent production and orderly marketing of adequate supplies of pure and wholesome milk and milk products necessary to its citizens, to promote competitive prices, and to eliminate economic waste, destructive trade practices, and improper accounting for milk purchased from producers; (4) Economic factors concerning the production, marketing, and sale of milk in the state may not be accurately reflected in federal programs; (5) Conditions within the milk industry of this state are such that it may be necessary to establish marketing areas wherein pricing and pooling arrangements between producers are necessary, and for that purpose the director shall have the administrative authority, with such additional duties as are herein prescribed, after investigations and public hearings, to prescribe such marketing areas and modify the same when advisable or necessary. [1993 c 345 § 2; 1991 c 239 § 1; 1971 ex.s. c 230 § 3.] 15.35.060 15.35.060 Purposes. The purposes of this chapter are to: (1) Authorize and enable the director to prescribe marketing areas and to establish pricing and pooling arrangements which are necessary to prevent disorderly marketing of milk due to varying factors of costs of production, health regulations, transportation, and other factors in said marketing areas of this state; (2) Authorize and enable the director to formulate marketing plans subject to the provisions of this chapter, in accordance with chapter 34.05 RCW, which provide for pricing and pooling arrangements and declare such plans in effect for any marketing area; (2006 Ed.) 15.35.080 (3) Provide funds for administration and enforcement of this chapter by assessments to be paid by producers. [1993 c 345 § 3; 1991 c 239 § 2; 1971 ex.s. c 230 § 6.] 15.35.070 15.35.070 Powers conferred to be liberally construed—Monopoly—Price setting. It is the intent of the legislature that the powers conferred in this chapter shall be liberally construed. Nothing in this chapter shall be construed as permitting or authorizing the development of conditions of monopoly in the production or distribution of milk, nor shall this chapter give the director authority to establish wholesale or retail prices for processed milk products. [1993 c 345 § 5; 1991 c 239 § 3; 1971 ex.s. c 230 § 7.] 15.35.080 15.35.080 Definitions. For the purposes of this chapter: (1) "Department" means the department of agriculture of the state of Washington; (2) "Director" means the director of the department or the director’s duly appointed representative; (3) "Person" means a natural person, individual, firm, partnership, corporation, company, society, and association, and every officer, agent, or employee thereof. This term shall import either the singular or plural as the case may be; (4) "Market" or "marketing area" means any geographical area within the state or another state comprising one or more counties or parts thereof, where marketing conditions are substantially similar and which may be designated by the director as one marketing area; (5) "Milk" means all fluid milk from cows as defined in chapter 15.36 RCW and rules adopted under chapter 15.36 RCW; (6) "Milk products" includes any product manufactured from milk or any derivative or product of milk; (7) "Milk dealer" means any person engaged in the handling of milk in his or her capacity as the operator of a milk plant, as that term is defined in chapter 15.36 RCW and rules adopted under chapter 15.36 RCW: (a) Who receives milk in an unprocessed state from dairy farms, and who processes milk into milk or milk products; and (b) Whose milk plant is located within the state or from whose milk plant milk or milk products that are produced at least in part from milk from producers are disposed of to any place or establishment within a marketing area; (8) "Producer" means a person producing milk within this state for sale under a grade A milk permit issued by the department under the provisions of chapter 15.36 RCW or, if the director so provides by rule, a person who markets to a milk dealer milk produced under a grade A permit issued by another state; (9) "Classification" means the classification of milk into classes according to its utilization by the department; (10) The terms "plan," "market area and pooling arrangement," "market area pooling plan," "market area and pooling plan," "market pool," and "market plan" all have the same meaning; (11) "Producer-dealer" means a producer who engages in the production of milk and also operates a plant from which an average of more than three hundred pounds daily of milk products, except filled milk, is sold within the marketing area [Title 15 RCW—page 49] 15.35.090 Title 15 RCW: Agriculture and Marketing and who has been so designated by the director. A state institution which processes and distributes milk of its own production shall be considered a producer-dealer for purposes of this chapter, but the director may by rule exempt such state institutions from any of the requirements otherwise applicable to producer-dealers. [1994 c 143 § 509; 1993 c 345 § 4; 1992 c 58 § 1; 1991 c 239 § 4; 1971 ex.s. c 230 § 8.] 15.35.090 15.35.090 Milk control between states. (1) The director shall in carrying out the provisions of this chapter and any marketing plan thereunder confer with the legally constituted authorities of other states of the United States, and the United States department of agriculture, for the purpose of seeking uniformity of milk control with respect to milk coming in to the state and going out of the state in interstate commerce with a view to accomplishing the purposes of this chapter, and may enter into a compact or compacts which will insure a uniform system of milk control between this state and other states. (2) In order to facilitate carrying out the provisions and purposes of this chapter, the department may hold joint hearings with authorized officers or agencies of other states who have duties and powers similar to those of the department or with any authorized person designated by the United States department of agriculture, and may enter into joint agreements with such authorized state or federal agencies for exchange of information with regard to prices paid to producers for milk moving from one state to the other or any purpose to carry out and enforce this chapter. [1991 c 239 § 5; 1971 ex.s. c 230 § 9.] 15.35.100 15.35.100 Director’s authority—Subpoena power— Rules. Subject to the provisions of this chapter, the director is hereby vested with the authority: (1) To investigate all matters pertaining to the production, processing, storage, transportation, and distribution of milk and milk products in the state, and shall have the authority to: (a) Establish classifications of processed milk and milk products, and a minimum price or a formula to determine a minimum price to be paid by milk dealers for milk used to produce each such class of products; (b) Require that payment be made by dealers to producers of fluid milk or their cooperative associations and prescribe the method and time of such payments by dealers to producers or their cooperative associations in accordance with a marketing plan for milk; (c) Determine what constitutes a natural milk market area; (d) Establish quota systems within marketing plans, and to determine by using uniform rules, what portion of the milk produced by each producer shall be assigned to each quota classification; (e) Provide for the pooling of minimum class values from the sales of each class of milk to milk dealers, and the equalization of returns to producers; (f) Provide and establish market pools for a designated market area with such rules as the director may adopt; (g) Employ an executive officer, who shall be known as the milk pooling administrator; [Title 15 RCW—page 50] (h) Employ such persons or contract with such entities as may be necessary and incur all expenses necessary to carry out the purposes of this chapter; (i) Determine by rule, what portion of any increase in the available quotas shall be assigned to new producers or existing producers. (2) To issue subpoenas to compel the attendance of witnesses and/ or the production of books, documents, and records anywhere in the state in any hearing affecting the authority of privileges granted by a license issued under the provisions of this chapter. Witnesses shall be entitled to fees for attendance and travel as provided for in chapter 2.40 RCW. (3) To make, adopt, and enforce all rules necessary to carry out the purposes and policies of this chapter subject to the provisions of chapter 34.05 RCW concerning the adoption of rules. Nothing contained in this chapter shall be construed to abrogate or affect the status, force, or operation of any provision of the public health laws enacted by the state or any municipal corporation or the public service laws of this state. [1993 c 345 § 6; 1991 c 239 § 6; 1971 ex.s. c 230 § 10.] 15.35.105 Minimum milk price—Competition from outside the marketing area. (1) In establishing a minimum milk price or a formula to determine a minimum milk price, as provided under RCW 15.35.060 and 15.35.100, the director shall, in addition to other appropriate criteria, consider the: (a) Cost of producing fluid milk for human consumption; (b) Transportation costs; (c) Milk prices in states or regions outside of the state that influence prices within the marketing areas; (d) Demand for fluid milk for human consumption; (e) Alternative enterprises available to producers; and (f) Economic impact on milk dealers. (2) A milk dealer who believes that actual competition from outside the marketing area is having a significant economic impact on that milk dealer, may petition the director for a public hearing on an expedited basis to consider whether the minimum milk price in the market plan should be changed relative to the milk price to a competitor located outside the state plus transportation costs for that competitor to compete with the petitioning milk dealer. (a) To be considered, the petition must identify the specific action requested, and must be accompanied by a statement summarizing the facts and evidence that would be provided at a public hearing by or on behalf of the petitioner to support the need for the requested action, including an identification of circumstances that have changed since the last rule-making proceeding at which the minimum price was established. (b) Within twenty-one days of receiving the petition, the director shall either: (i) Adopt rules on an emergency basis, in accordance with RCW 34.05.350; (ii) File, and distribute to all milk dealers and other interested parties, notice that a hearing will be held within sixty days of receiving the petition; (iii) Advise the petitioner in writing that the request for rule making is denied, and explain the reasons for the denial; or 15.35.105 (2006 Ed.) Washington State Milk Pooling Act (iv) Advise the petitioner in writing that the petition provides insufficient information from which to find that rule making should be initiated, and request that the petition be resubmitted with additional information. (c) Except as otherwise specifically provided in this section, this petition must be handled in accordance with RCW 34.05.330, and the rule-making procedures of chapter 34.05 RCW. (3) The director may adopt rules of practice or procedure with respect to the proceedings. [1993 c 345 § 7; 1991 c 239 § 7.] 15.35.110 Referendum on establishing or discontinuing market area pooling arrangement. (1) The director, either upon his or her own motion or upon petition by ten percent of the producers in any proposed area, shall conduct a hearing to determine whether to establish or discontinue a market area pooling arrangement. Upon determination by the director that in order to satisfy the purposes of this chapter a pooling arrangement should be established, a referendum of affected individual producers and milk dealers shall be conducted by the department. (2) In order for the director to establish a market area and pooling plan: (a) Sixty-six and two-thirds percent of the producers and producer-dealers that vote must be in favor of establishing a market area and pooling plan; (b) Sixty-six and two-thirds percent of the milk dealers and producer-dealers that vote must be in favor of establishing a market area and pooling plan; and (c) Producer-dealers providing notice to the director under RCW 15.35.115(1), shall be authorized to vote both as producers and as milk dealers. (3) Except as provided in subsection (4) of this section, the director, within ninety days from the date the results of a referendum approved under subsection (2) of this section are filed with the secretary of state, shall adopt rules to establish a market pool in the market area, as provided for in this chapter. In conducting hearings on rules proposed for adoption under this subsection, the director shall invite public comment on whether milk regulation similar to the market area pooling plan proposed in the rules exists in neighboring states and whether a lack of such milk regulation in neighboring states would render such a market area pooling plan in this state ineffective or impractical. (4) If, following hearings held under subsection (3) of this section, the director determines that the lack of milk regulation in neighboring states similar to the market area pooling plan proposed for this state would render such a pooling arrangement in this state ineffective or impractical, the director shall so state in writing. The director shall file the statement with the code reviser for publication in the Washington State Register. In such a case, a market area pooling plan shall not be established in the market area under subsection (3) of this section based upon the referendum that precipitated the hearings. If the director determines that such a lack of milk regulation in neighboring states would not render such a market area pooling plan ineffective or impractical in this state, the director shall adopt rules in accordance with subsection (3) of this section. 15.35.110 (2006 Ed.) 15.35.115 (5) If fifty-one percent of the producers and producerdealers voting representing fifty-one percent of the milk produced and fifty-one percent of the milk dealers and producerdealers in the market area vote to terminate a pooling plan, the director, within one hundred twenty days, shall terminate all the provisions of said market area and pooling arrangement. (6) A referendum of affected producers, producer-dealers, and milk dealers shall be conducted only when a market area pooling arrangement is to be established. Only producers, milk dealers, and producer-dealers who are subject to the plan may vote on the termination of a pooling plan. [1993 c 345 § 8; 1992 c 58 § 4; 1991 c 239 § 8; 1971 ex.s. c 230 § 11.] 15.35.115 15.35.115 Referendum on establishing or discontinuing market area pooling arrangement—Producer-dealers. (1) Not less than sixty days before a referendum creating a market area and pooling plan with quotas is to be conducted under RCW 15.35.110, the director shall notify each producer-dealer regarding the referendum. Any producer-dealer may choose to vote on the referendum and each choosing to do so shall notify the director in writing of this choice not later than thirty days before the referendum is conducted. Such a producer-dealer and any person who becomes a producer-dealer or producer by acquiring the quota of such a producer-dealer shall be a fully regulated producer under such an approved plan and shall receive a quota which is not less than the sales of milk in fluid form from the producer facilities during the reference period used by the director in determining quotas for producers. Such a producer-dealer shall also be a fully regulated milk dealer under the terms of such an approved plan. RCW 15.35.310(1) does not apply to a producer-dealer who is subject to regulation under this subsection. (2) If a person was not a producer-dealer at the time notice was provided to producer-dealers under subsection (1) of this section regarding a referendum on a proposed market area and pooling plan with quotas, the plan was approved by referendum, and the person subsequently became a producerdealer (other than by virtue of the person’s acquisition of the quota of a producer-dealer who is fully regulated under the plan), the person is subject to all of the terms of the plan for producers and milk dealers during the duration of the plan and RCW 15.35.310(1) does not apply to such a person with regard to that plan. (3) This subsection applies: To a person who was a producer-dealer at the time the notice was provided to producerdealers under subsection (1) of this section regarding a referendum which was approved and who did not notify the director under subsection (1) of this section to vote in that referendum; and to a person who acquires the facility of such a person. If such a person’s sales of milk in fluid form subsequent to the adoption of the plan increases such that those sales in any year are more than fifty percent greater than the sales of milk in fluid form from the producer facilities during any of the previous five years, RCW 15.35.310(1) does not apply to that person with regard to that plan. Such a producer-dealer shall be a fully regulated producer under such an approved plan and shall receive a quota which is not less than the producer-dealer’s sales of milk in fluid form during the reference [Title 15 RCW—page 51] 15.35.120 Title 15 RCW: Agriculture and Marketing period used by the director in determining quotas for producers. Such a producer-dealer shall also be a fully regulated dealer under the terms of such an approved plan. If changes are made, on a market area-wide basis, to the quotas established under the plan, the director shall by rule adjust the fifty percent limitation provided by this section by an equivalent amount. [1993 c 345 § 9; 1992 c 58 § 2.] 15.35.120 15.35.120 Qualifications for producers to sign petitions or vote in referendums. (1) The producers qualified to sign a petition, or to vote in any referendum concerning a market pool, shall be all those producers shipping milk to the market area on a regular supply basis and who would or do receive or pay equalization in an existing market pool in a market area, or in a market pool if established in such market area. (2) The milk dealers qualified to vote in any referendum establishing a market pool shall be all those milk dealers who operate a plant which is located within the state and who would receive milk priced under a market pool if established in such market area. (3) The director is authorized during business hours to review the books and records of milk dealers to obtain a list of the producers qualified to sign petitions or to vote in referendums and to verify that such milk dealers are qualified to vote in a referendum. [1991 c 239 § 9; 1971 ex.s. c 230 § 12.] 15.35.130 15.35.130 Form of producer petitions. Petitions filed with the director by producers shall: (1) Consist of one or more pages, each of which is dated at the bottom. The date shall be inserted on each sheet prior to, or at the time the first signature is obtained on each sheet. The director shall not accept a sheet on which such date is more than sixty days, prior to the time it is filed with the director. After a petition is filed, additional pages may be filed if time limits have not expired. (2) Contain wording at the top of each page which clearly explains to each person whose signature appears thereon the meaning and intent of the petition. Such wording shall also clearly indicate to the director if it is in reference to a request for public hearing, exactly what matters are to be studied and desired. Similar information must be directed to the director if the matter relates to a referendum. The director has the authority to clarify wording from a petition before making it a part of a referendum. No informalities or technicalities in the conduct of a referendum, or in any matters relating thereto, shall invalidate any referendum if it is fairly and reasonably conducted by the director. [1971 ex.s. c 230 § 13.] 15.35.140 15.35.140 Director to establish systems within market areas. (1) The director shall establish a system of classifying, pricing, and pooling of all milk used in each market area established under RCW 15.35.110. (2) Thereafter the director may establish a system in each market area for the equalization of returns for all quota milk and all surplus over quota milk whereby all producers selling milk to milk dealers or delivering milk in such market area, or their cooperative associations, will receive the same prices for all quota milk and all surplus over quota milk, except that [Title 15 RCW—page 52] any premium paid to a producer by a dealer above established prices shall not be considered in determining average pool prices. Such prices may reflect adjustments based on the value of component parts of each producer’s milk. [1991 c 239 § 10; 1971 ex.s. c 230 § 14.] 15.35.150 15.35.150 Determination of quota. (1) Under a market pool and as used in this section, "quota" means a producer’s or producer-dealer’s portion of the total sales of milk in a market area in fluid form or, in the director’s discretion, in other forms. (2) The director may in each market area subject to a market plan establish each producer’s and each producerdealer’s initial quota in the market area. Such initial quotas shall be determined by the department after due notice and the opportunity for a hearing as provided in chapter 34.05 RCW. In making this determination, consideration shall be given to a history of the producer’s production record. In no case shall a producer-dealer receive as a quota an amount which is less than his or her fluid milk sales for the reference period used by the director in determining quotas for other producers. In any system of establishing quotas, provision shall be made for new producers to qualify for allocation of quota in a reasonable proportion and for old and new producers to participate in any new increase in available quota in a reasonable proportion. The director may establish a method to proportionately decrease quota allocations in the event decreases in milk usage occur. All subsequent changes or new quotas issued shall be determined by the department after due notice and the opportunity for a hearing as provided in chapter 34.05 RCW. [1993 c 345 § 10; 1992 c 58 § 5; 1991 c 239 § 11; 1971 ex.s. c 230 § 15.] 15.35.160 15.35.160 Contracts, rights and powers of associations not affected. No provision of this chapter shall be deemed or construed to: (1) Affect or impair the contracts of any such cooperative association with its members or other producers marketing their milk through such corporation; (2) Impair or affect any contract which any such cooperative association has with milk dealers or others which are not in violation of this chapter; (3) Affect or abridge the rights and powers of any such cooperative association conferred by the laws of this state under which it is incorporated. [1971 ex.s. c 230 § 16.] 15.35.170 15.35.170 Quotas—Transfer of—Limitations. Quotas provided for in this chapter may not in any way be transferred without the consent of the director. Regulations regarding transfer of quotas shall be determined by the department after due notice and the opportunity for a hearing as provided in chapter 34.05 RCW. Any contract for the transfer of quotas, unless the transfer has previously been approved by the director, shall be null and void. The director shall make rules and regulations to preclude any person from using a corporation as a device to evade the provisions of this section. The quotas assigned to any producer shall become null and void as of any time the producer does not own the (2006 Ed.) Washington State Milk Pooling Act means of production to which the quotas pertain. Quotas shall in no event be considered as property and may be taken or abolished by the state without compensation. [1991 c 239 § 12; 1971 ex.s. c 230 § 17.] 15.35.180 15.35.180 Records of milk dealers and cooperatives, inspection and audit of. The director shall examine and audit not less than one time each year or at any other such time the director considers necessary, the books and records, and may photostat such books, records, and accounts of milk dealers and cooperatives licensed or believed subject to license under this chapter for the purpose of determining: (1) How payments to producers for the milk handled are computed and whether the amount of such payments are in accordance with the applicable marketing plan; (2) If any provisions of this chapter affecting such payments directly or indirectly have been or are being violated. No person shall in any way hinder or delay the director in conducting such examination. The director may accept and use for the purposes of this section any audit made for or by a federal milk market order administrator which provides the information necessary for such purposes. [1991 c 239 § 13; 1971 ex.s. c 230 § 18.] 15.35.190 15.35.190 Records necessary for milk dealers. All milk dealers subject to the provisions of this chapter shall keep the records as deemed necessary by the director. [1971 ex.s. c 230 § 19.] 15.35.200 15.35.200 Verified reports of milk dealers. Each milk dealer subject to the provisions of this chapter shall from time to time, as required by rule of the director, make and file a verified report, on forms prescribed by the director, of all matters on account for which a record is required to be kept, together with such other information or facts as may be pertinent and material within the scope of the purpose of this chapter. Such reports shall cover a period specified in the order, and shall be filed within a time fixed by the director. [1971 ex.s. c 230 § 20.] 15.35.210 15.35.210 Milk dealer license—Required. It shall be unlawful for any milk dealer subject to the provisions of a marketing plan to handle milk subject to the provisions of such marketing plan without first obtaining an annual license from the director for each separate place of business where such milk is received or sold. Such license shall be in addition to any other license required by the laws of this state: PROVIDED, That the provisions of this section shall not become effective for a period of sixty days subsequent to the inception of a marketing plan in any marketing area prescribed by the director. [1971 ex.s. c 230 § 21.] 15.35.220 15.35.220 Milk dealer license—Application for— Contents. Application for a license to act as a milk dealer shall be on a form prescribed by the director and shall contain, but not be limited to, the following: (1) The nature of the business to be conducted; (2) The full name and address of the person applying for the license if an individual; and if a partnership, the full name (2006 Ed.) 15.35.240 and address of each member thereof; and if a corporation, the full name and address of each officer and director; (3) The complete address at which the business is to be conducted; (4) Facts showing that the applicant has adequate personnel and facilities to properly conduct the business of a milk dealer; (5) Facts showing that the applicant has complied with all the rules prescribed by the director under the provisions of this chapter; (6) Any other reasonable information the director may require. [1971 ex.s. c 230 § 22.] 15.35.230 15.35.230 Milk dealer license—Fees—Additional assessment for late renewal. (1) Application for each milk dealer’s license shall be accompanied by an annual license fee to be established by the director by rule. (2) If an application for the renewal of a milk dealer’s license is not filed on or before the first day of an annual licensing period a late fee of up to one-half of the license fee shall be assessed and added to the original fee and shall be paid by the applicant before the renewal license shall be issued: PROVIDED, That such additional assessment shall not apply if the applicant furnishes an affidavit that the applicant has not acted as a milk dealer subsequent to the expiration of his or her prior license. [1991 c 239 § 14; 1971 ex.s. c 230 § 23.] 15.35.240 15.35.240 Milk dealer license—Denial, suspension, or revocation of—Grounds. The director may deny, suspend, or revoke a license upon due notice and an opportunity for a hearing as provided in chapter 34.05 RCW concerning adjudicative proceedings, or rules adopted thereunder by the director, when he is satisfied by a preponderance of the evidence of the existence of any of the following facts: (1) A milk dealer has failed to account and make payments without reasonable cause, for milk purchased from a producer subject to the provisions of this chapter or rules adopted hereunder; (2) A milk dealer has committed any act injurious to the public health or welfare or to trade and commerce in milk; (3) A milk dealer has continued in a course of dealing of such nature as to satisfy the director of his inability or unwillingness to properly conduct the business of handling or selling milk, or to satisfy the director of his intent to deceive or defraud producers subject to the provisions of this chapter or rules adopted hereunder; (4) A milk dealer has rejected without reasonable cause any milk purchased or has rejected without reasonable cause or reasonable advance notice milk delivered in ordinary continuance of a previous course of dealing, except where the contract has been lawfully terminated; (5) Where the milk dealer is insolvent or has made a general assignment for the benefit of creditors or has been adjudged bankrupt or where a money judgment has been secured against him upon which an execution has been returned wholly or partially satisfied; (6) Where the milk dealer has been a party to a combination to fix prices, contrary to law; a cooperative association organized under chapter 23.86 RCW and making collective [Title 15 RCW—page 53] 15.35.250 Title 15 RCW: Agriculture and Marketing sales and marketing milk pursuant to the provisions of such chapter, directly or through a marketing agent, shall not be deemed or construed to be a conspiracy or combination in restraint of trade or an illegal monopoly; (7) Where there has been a failure either to keep records or to furnish statements or information required by the director; (8) Where it is shown that any material statement upon which the license was issued is or was false or misleading or deceitful in any particular; (9) Where the applicant is a partnership or a corporation and any individual holding any position or interest or power of control therein has previously been responsible in whole or in part for any act for which a license may be denied, suspended, or revoked, pursuant to the provisions of this chapter or rules adopted hereunder; (10) Where the milk dealer has violated any provisions of this chapter or rules adopted hereunder; (11) Where the milk dealer has ceased to operate the milk business for which the license was issued. [1989 c 307 § 36; 1989 c 175 § 47; 1987 c 164 § 1; 1971 ex.s. c 230 § 24.] Reviser’s note: This section was amended by 1989 c 175 § 47 and by 1989 c 307 § 36, each without reference to the other. Both amendments are incorporated in the publication of this section pursuant to RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Legislative finding—1989 c 307: See note following RCW 23.86.007. Application—1989 c 307: See RCW 23.86.900. Effective date—1989 c 175: See note following RCW 34.05.010. 15.35.250 15.35.250 Marketing assessment on producers— Additional assessment for milk testing—Penalty—Court action. (1) There is hereby levied upon all milk sold or received in any marketing area subject to a marketing plan established under the provisions of this chapter an assessment, not to exceed five cents per one hundred pounds of all such milk, to be paid by the producer of such milk. Such assessment shall be collected by the first milk dealer who receives or handles such milk from any producer or his or her agent subject to such marketing plan and shall be paid to the director for deposit into the agricultural local fund. The amount to be assessed and paid to the director under any marketing plan shall be determined by the director within the limits prescribed by this subsection and shall be determined according to the necessities required to carry out the purpose and provisions of this chapter under any such marketing plan. (2) In the event a producer’s milk dealer does not provide milk testing in a state-certified laboratory, the director may levy an additional assessment on all such milk, not to exceed three cents per one hundred pounds of milk, to be paid by the producer of such milk. Such assessment shall be collected by the first milk dealer who receives or handles such milk from any producer or the producer’s agent subject to the marketing plan and shall be paid to the director for deposit into the agricultural local fund. Moneys from such assessments shall be used to provide testing of the milk in a statecertified laboratory. The amount to be assessed and paid to the director under this subsection shall be determined by the director within the limits prescribed by this subsection. [Title 15 RCW—page 54] (3) Upon the failure of any dealer to withhold out of amounts due to or to become due to a producer at the time a dealer is notified by the director of the amounts to be withheld and upon failure of such dealer to pay such amounts, the director subject to the provisions of RCW 15.35.260, may revoke the license of the dealer required by RCW 15.35.230. The director may commence an action against the dealer in a court of competent jurisdiction in the county in which the dealer resides or has his principal place of business to collect such amounts. If it is determined upon such action that the dealer has wrongfully refused to pay the amounts the dealer shall be required to pay, in addition to such amounts, all the costs and disbursements of the action, to the director as determined by the court. If the director’s contention in such action is not sustained, the director shall pay to the dealer all costs and disbursements of the action as determined by the court. [1993 c 345 § 11; 1991 c 239 § 15; 1971 ex.s. c 230 § 25.] 15.35.260 15.35.260 Records and reports of licensees for assessment purposes. Each licensee, in addition to other records required under the provisions of this chapter, shall keep such records and make such reports as the director may require for the purpose of computing payments of assessments by such licensee. [1971 ex.s. c 230 § 26.] 15.35.270 15.35.270 Assessment due date. All assessments on milk subject to the provisions of this chapter and a marketing order shall be paid to the director on or before the twentieth day of the succeeding month for the milk which was received or handled in the previous month. [1971 ex.s. c 230 § 27.] 15.35.280 15.35.280 Separate account for each marketing plan—Deductions for departmental costs. The director shall establish a separate account for each marketing plan established under the provisions of this chapter, and all license fees and assessments collected under any such marketing plan shall be deposited in its separate account to be used only for the purpose of carrying out the provisions of such marketing plan: PROVIDED, That the director may deduct from each such account the necessary costs incurred by the department. Such costs shall be prorated among the several marketing plans if more than one is in existence under the provisions of this chapter. [1971 ex.s. c 230 § 28.] 15.35.290 15.35.290 Court actions to implement. In addition to any other remedy provided by law, the director in the name of the state shall have the right to sue in any court of competent jurisdiction for the recovery of any moneys due it from any persons subject to the provisions of this chapter and shall also have the right to institute suits in equity for injunctive relief and for purpose of enforcement of the provisions of this chapter. [1971 ex.s. c 230 § 29.] 15.35.300 15.35.300 General penalty—Misdemeanor—Exception. Any violation of this chapter and/or rules and regulations adopted thereunder shall constitute a misdemeanor: PROVIDED, That this section shall not apply to retail purchasers who purchase milk for domestic consumption. [1971 ex.s. c 230 § 30.] (2006 Ed.) Milk and Milk Products 15.35.310 15.35.310 Certain producer-dealers exempt. (1) Except as provided in RCW 15.35.115, the provisions of this chapter shall not apply to persons designated as producerdealers, except that: (a) The director may require pursuant to RCW 15.35.100 any information deemed necessary to verify a producerdealer’s status as a producer-dealer; and (b) A producer-dealer shall comply with all requirements of this chapter applicable to milk dealers, except those which the director may deem unnecessary. (2) The director shall upon request designate producerdealers and adopt rules governing eligibility for designation of a producer-dealer and cancellation of such designation. To receive such designation, a producer-dealer shall, at a minimum: (a) In its capacity as a handler, have and exercise complete and exclusive control over the operation and management of a plant at which it handles and processes milk received from its own milk production resources and facilities as designated in subsection (4)(a) of this section, the operation and management of which are under the complete and exclusive control of the producer-dealer in its capacity as a dairy farmer; (b) Neither receive at its designated milk production resources and facilities nor receive, handle, process, or distribute at or through any of its milk handling, processing, or distributing resources and facilities, as designated in subsection (4)(b) of this section, milk products for reconstitution into fluid milk products, or fluid milk products derived from any source other than (i) its designated milk production resources and facilities, (ii) other milk dealers within the limitation specified in subsection (2)(e) of this section, or (iii) nonfat milk solids which are used to fortify fluid milk products; (c) Neither be directly nor indirectly associated with the business control or management of, nor have a financial interest in, another dealer’s operation; nor shall any other dealer be so associated with the producer-dealer’s operation; (d) Not allow milk from the designated milk production resources and facilities of the producer-dealer to be delivered in the name of another person as producer milk to another handler; and (e) Not handle fluid milk products derived from sources other than the designated milk production facilities and resources, except for fluid milk product purchased from pool plants which do not exceed in the aggregate a daily average during the month of one hundred pounds. (3) Designation of any person as a producer-dealer following a cancellation of its prior designation shall be preceded by performance in accordance with subsection (2) of this section for a period of one month. (4) Designation of a person as a producer-dealer shall include the determination and designation of the milk production, handling, processing, and distributing resources and facilities, all of which shall be deemed to constitute an integrated operation, as follows: (a) As milk production resources and facilities: All resources and facilities, milking herd, buildings housing such herd, and the land on which such buildings are located, used for the production of milk: (2006 Ed.) Chapter 15.36 (i) Which are directly, indirectly, or partially owned, operated, or controlled by the producer-dealer; (ii) In which the producer-dealer in any way has an interest including any contractual arrangement; and (iii) Which are directly, indirectly, or partially owned, operated, or controlled by any partner or stockholder of the producer-dealer. However, for purposes of this item (4)(a)(iii) any such milk production resources and facilities which the producer-dealer proves to the satisfaction of the director do not constitute an actual or potential source of milk supply for the producer-dealer’s operation as such shall not be considered a part of the producer-dealer’s milk production resources and facilities; and (b) As milk handling, processing, and distributing resources and facilities: All resources and facilities including store outlets used for handling, processing, and distributing any fluid milk product: (i) Which are directly, indirectly, or partially owned, operated, or controlled by the producer-dealer; or (ii) In which the producer-dealer in any way has an interest, including any contractual arrangement, or with respect to which the producer-dealer directly or indirectly exercises any degree of management or control. (5) Designation as a producer-dealer shall be canceled automatically upon determination by the director that any of the requirements of subsection (2) of this section are not continuing to be met, such cancellation to be effective on the first day of the month following the month in which the requirements were not met, or the conditions for cancellation occurred. [1992 c 58 § 6; 1991 c 239 § 16; 1971 ex.s. c 230 § 31.] 15.35.900 15.35.900 Severability—1971 ex.s. c 230. If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provisions to other persons or circumstances, is not affected. [1971 ex.s. c 230 § 32.] Chapter 15.36 Chapter 15.36 RCW MILK AND MILK PRODUCTS (Formerly: Fluid milk) Sections 15.36.002 15.36.012 15.36.021 15.36.025 15.36.041 15.36.051 15.36.071 15.36.081 15.36.091 15.36.101 15.36.111 15.36.131 15.36.141 15.36.151 15.36.161 15.36.171 15.36.181 15.36.191 Intent. Definitions. Milk and milk products—Rule-making authority—Grade A pasteurized and raw milk—Grade C milk and milk products. Application of chapter 34.05 RCW. Milk producer’s license. Milk processing plant license—Fee waiver. Milk hauler’s license—Endorsements. Dairy technician’s license—Application—Renewal—Fees. Dairy technician’s license—Records—Inspection of. Milk wash station license. Inspection of dairy farms and milk processing plants—Violations—Director’s access. Sale of out-of-state grade A milk and milk products. Grading of milk and milk products. Unlawful to sell, offer for sale, or deliver certain products— Diseased animals—Colostrum—Exceptions. Cows, goats, and other mammals—Animal health requirements. Grades of milk and milk products that may be sold. Sale of adulterated or misbranded milk or milk products prohibited—Possession restricted. Milk or milk product analysis—Report of violative results. [Title 15 RCW—page 55] 15.36.002 15.36.201 15.36.206 15.36.221 15.36.231 15.36.241 15.36.261 15.36.271 15.36.281 15.36.401 15.36.412 15.36.421 15.36.451 15.36.454 15.36.455 15.36.457 15.36.471 15.36.473 15.36.475 15.36.481 15.36.491 15.36.511 15.36.525 15.36.531 15.36.541 15.36.551 15.36.561 Title 15 RCW: Agriculture and Marketing Examination of milk and milk products—Violations—Director’s options. Source of milk and milk products—Seller’s disclosure. Grade A raw milk—Cooling. Raw milk or milk products—Bottling and capping—Packaging—Labeling. Capping of milk or milk products. Butter or cheese—Pasteurization of milk or cream. "Pasteurized"—Use of word regulated. Unlawful use of containers—Seizure authorized. Licenses—Denial, suspension, revocation—Reasons. Issuance of cease and desist order. Milk processing plant or producer—License suspension. Regrading of milk or milk products—Reinstatement of license. Failure to comply with chapter or rules—Civil penalties. Violations—Notice, orders, damages. Authority to assess civil penalty. Component parts of fluid dairy products—Violations of standards—Civil penalty—Investigation. Failure to comply with chapter or rules—Criminal penalties. Laboratory tests—Admission as evidence. Violations may be enjoined. Licenses—Money deposited in general fund—Exception. Unlawful actions. Sanitary certificates—Rules—Fee for issuance. Declaration of police power. Chapter cumulative. Dairy inspection program—Assessment. Dairy inspection program—Advisory committee—Purpose— Terms. 15.36.002 15.36.002 Intent. This chapter is intended to enact state legislation that safeguards the public health and promotes public welfare by: (1) Protecting the consuming public from milk or milk products that are: (a) Unsafe; (b) produced under unsanitary conditions; (c) do not meet bacterial standards under the PMO; or (d) below the quality standards under Title 21 C.F.R. or administrative rules and orders adopted under this chapter; and (2) requiring licensing of all aspects of the dairy production and processing industry. [1994 c 143 § 101.] 15.36.012 15.36.012 Definitions. For the purpose of this chapter: "Adulterated milk" means milk that is deemed adulterated under appendix L of the PMO. "Colostrum milk" means milk produced within ten days before or until practically colostrum free after parturition. "DMO" means supplement I, the recommended sanitation ordinance for grade A condensed and dry milk products and condensed and dry whey, to the PMO published by the United States public health service, food and drug administration. "Dairy farm" means a place or premises where one or more cows, goats, or other mammals are kept, a part or all of the milk or milk products from which is sold or offered for sale. "Dairy technician" means any person who takes samples of milk or cream or fluid derivatives thereof, on which sample tests are to be made as a basis of payment, or who grades, weighs, or measures milk or cream or the fluid derivatives thereof, the grade, weight, or measure to be used as a basis of payment, or who operates equipment wherein milk or products thereof are pasteurized. "Degrade" means the lowering in grade from grade A to grade C. "Department" means the state department of agriculture. [Title 15 RCW—page 56] "Director" means the director of agriculture of the state of Washington or the director’s duly authorized representative. "Grade A milk processing plant" means any milk processing plant that meets all of the standards of the PMO to process grade A pasteurized milk or milk products. "Grade A pasteurized milk" means grade A raw milk that has been pasteurized. "Grade A raw milk" means raw milk produced upon dairy farms conforming with all of the items of sanitation contained in the PMO, in which the bacterial plate count does not exceed twenty thousand per milliliter and the coliform count does not exceed ten per milliliter as determined in accordance with RCW 15.36.201. "Grade A raw milk for pasteurization" means raw milk produced upon dairy farms conforming with all of the same items of sanitation contained in the PMO of grade A raw milk, and the bacterial plate count, as delivered from the farm, does not exceed eighty thousand per milliliter as determined in accordance with RCW 15.36.201. "Grade C milk" is milk that violates any of the requirements for grade A milk but that is not deemed to be adulterated. "Milk" means the lacteal secretion, practically free of colostrum, obtained by the complete milking of one or more healthy cows, goats, or other mammals. "Milk hauler" means a person who transports milk or milk products in bulk to or from a milk processing plant, receiving station, or transfer station. "Milk processing" means the handling, preparing, packaging, or processing of milk in any manner in preparation for sale as food, as defined in chapter 69.04 RCW. Milk processing does not include milking or producing milk on a dairy farm that is shipped to a milk processing plant for further processing. "Milk processing plant" means a place, premises, or establishment where milk or milk products are collected, handled, processed, stored, bottled, pasteurized, aseptically processed, bottled, or prepared for distribution, except an establishment that merely receives the processed milk products and serves them or sells them at retail. "Milk products" means the product of a milk manufacturing process. "Misbranded milk" means milk or milk products that carries a grade label unless such grade label has been awarded by the director and not revoked, or that fails to conform in any other respect with the statements on the label. "Official laboratory" means a biological, chemical, or physical laboratory that is under the direct supervision of the state or a local regulatory agency. "Officially designated laboratory" means a commercial laboratory authorized to do official work by the department, or a milk industry laboratory officially designated by the department for the examination of grade A raw milk for pasteurization and commingled milk tank truck samples of raw milk for antibiotic residues and bacterial limits. "PMO" means the grade "A" pasteurized milk ordinance published by the United States public health service, food and drug administration. "Pasteurized" means the process of heating every particle of milk or milk product in properly designed and operated (2006 Ed.) Milk and Milk Products equipment to the temperature and time standards specified in the PMO. "Person" means an individual, partnership, firm, corporation, company, trustee, or association. "Producer" means a person or organization who operates a dairy farm and provides, sells, or offers milk for sale. "Receiving station" means a place, premises, or establishment where raw milk is received, collected, handled, stored, or cooled and prepared for further transporting. "Sale" means selling, offering for sale, holding for sale, preparing for sale, distributing, dispensing, delivering, supplying, trading, bartering, offering a gift as an inducement for sale of, and advertising for sale in any media. "Transfer station" means any place, premises, or establishment where milk or milk products are transferred directly from one milk tank truck to another. "Wash station" means a place, facility, or establishment where milk tanker trucks are cleaned in accordance with the standards of the PMO. [2006 c 157 § 2; 1999 c 291 § 1; 1995 c 374 § 1; 1994 c 143 § 102; 1989 c 354 § 1; 1961 c 11 § 15.32.010. Prior: 1955 c 238 § 71; prior: (i) 1943 c 90 § 1, part; 1933 c 188 § 1, part; 1929 c 213 § 1, part; 1927 c 192 § 1, part; 1919 c 192 § 1, part; Rem. Supp. 1943 § 6164, part. (ii) 1929 c 213 § 6, part; 1927 c 192 § 16, part; 1921 c 104 § 3, part; 1919 c 192 § 41, part; RRS § 6203, part. Formerly RCW 15.32.010.] Findings—2006 c 157: "The legislature finds that chapter 15.36 RCW includes the regulation of raw milk and raw milk products including arrangements known as "cow shares" in which one or more individuals purchase one or more shares in a milk-producing animal in return for a portion of the milk that is produced. The legislature also finds that the agencies charged with protecting public health and safety need to have strong enforcement mechanisms and be able to respond rapidly, comprehensively, and effectively. It is not the intent of this act to prohibit either the sale of raw milk or cow share or similar arrangements by producers and processors who are properly licensed under chapter 15.36 RCW." [2006 c 157 § 1.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: "Sections 1 through 47, 50 through 53, and 59 through 68 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect June 30, 1995." [1995 c 374 § 81.] Severability—1989 c 354: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 c 354 § 89.] 15.36.021 Milk and milk products—Rule-making authority—Grade A pasteurized and raw milk—Grade C milk and milk products. The director of agriculture is authorized to: (1) Adopt rules necessary to carry out the purposes of chapter 15.36 RCW, which includes rules governing the farm storage tank and bulk milk tanker requirements, however the rules may not restrict the display or promotion of products covered under this section. (2) By rule, establish, amend, or both, definitions and standards for milk and milk products. Such definitions and standards established by the director shall conform, insofar as practicable, with the definitions and standards for milk and milk products adopted by the federal food and drug administration. (3) By rule, adopt the PMO, DMO, and supplemental documents by reference to establish requirements for grade A pasteurized and grade A raw milk. 15.36.021 (2006 Ed.) 15.36.051 (4) Adopt rules establishing standards for grade A pasteurized and grade A raw milk that are more stringent than the PMO based upon current industry or public health information for the enforcement of this chapter whenever he or she determines that any such rules are necessary to carry out the purposes of this section and RCW 15.36.481. (5) By rule, certify an officially designated laboratory to analyze milk for standard of quality, adulteration, contamination, and unwholesomeness. (6) Adopt rules setting standards and requirements for the production of grade C milk and milk products. [1999 c 291 § 2; 1996 c 188 § 3; 1994 c 143 § 103; 1989 c 354 § 13; 1969 ex.s. c 102 § 1. Formerly RCW 15.36.011.] Severability—1989 c 354: See note following RCW 15.36.012. Repealed definitions constitute rules: "The definitions constituting section 15.36.010, chapter 11, Laws of 1961 and RCW 15.36.010 as hereinafter in section 7 of this 1969 amendatory act repealed are hereby constituted and declared to be operative and to remain in force as the rules of the department of agriculture until such time as amended, modified, or revoked by the director of agriculture." [1969 ex.s. c 102 § 2.] 15.36.025 15.36.025 Application of chapter 34.05 RCW. Chapter 34.05 RCW governs the rights, remedies, and procedures respecting the administration of this chapter, including rule making, assessment of civil penalties, emergency actions, and license suspension, revocation, or denial. [1999 c 291 § 3.] 15.36.041 15.36.041 Milk producer’s license. Every milk producer must obtain a milk producer’s license to operate as a milk producer as defined in this chapter. A milk producer’s license is not transferable with respect to persons or locations or both. The license, issued by the director upon approval of an application for the license and compliance with the provisions of this chapter, shall contain the license number, name, residence, and place of business, if any, of the licensee. [1994 c 143 § 202.] 15.36.051 15.36.051 Milk processing plant license—Fee waiver. A milk processing plant must obtain an annual milk processing plant license from the department, which shall expire on June 30 of each year. A milk processing plant may choose to process (1) grade A milk and milk products, or (2) other milk products that are not classified grade A. Only one license may be required to process milk; however, milk processing plants must obtain the necessary endorsements from the department in order to process products as defined for each type of milk or milk product processing. Application for a license shall be on a form prescribed by the director and accompanied by a fifty-five dollar annual license fee. The applicant shall include on the application the full name of the applicant for the license and the location of the milk processing plant he or she intends to operate and any other necessary information. Upon the approval of the application by the director and compliance with the provisions of this chapter, including the applicable rules adopted under this chapter by the department, the applicant shall be issued a license or a renewal of a license. Licenses shall be issued to cover only those products, processes, and operations specified in the license application and approved for licensing. If a license holder wishes to [Title 15 RCW—page 57] 15.36.071 Title 15 RCW: Agriculture and Marketing engage in processing a type of milk product that is different than the type specified on the application supporting the licensee’s existing license and processing that type of food product would require a major addition to or modification of the licensee’s processing facilities, the licensee shall submit an amendment to the current license application. In such a case, the licensee may engage in processing the new type of milk product only after the amendment has been approved by the department. A licensee under this section shall not be required to obtain a food processing plant license under chapter 69.07 RCW to process milk or milk products. The director shall waive the fee for a food processing license under chapter 69.07 RCW for persons who are also licensed as a milk processing plant. [2005 c 414 § 1; 1999 c 291 § 4; 1994 c 143 § 203; 1991 c 109 § 2; 1961 c 11 § 15.32.110. Prior: (i) 1927 c 192 § 11; 1923 c 27 § 8; 1919 c 192 § 29; RRS § 6192. (ii) 1919 c 192 § 33; RRS § 6195. Formerly RCW 15.32.110.] Effective date—2005 c 414 §§ 1 and 4: "Sections 1 and 4 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect July 1, 2005." [2005 c 414 § 5.] 15.36.071 15.36.071 Milk hauler’s license—Endorsements. A milk hauler must obtain a milk hauler’s license to conduct the operation under this chapter. A milk hauler’s license is not transferable with respect to persons or locations or both. The license, issued by the director upon approval of an application for the license and compliance with the provisions of this chapter, shall contain the license number, name, residence, and place of business, if any, of the licensee. A milk hauler’s license shall also contain endorsements for individual milk transport vehicles. The license plate number and registration number for each milk transport vehicle shall be listed on the endorsement. [1995 c 374 § 2; 1994 c 143 § 205.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. 15.36.081 15.36.081 Dairy technician’s license—Application— Renewal—Fees. A dairy technician must obtain a dairy technician’s license to conduct operations under this chapter. Such license shall be limited to those functions which the licensee has been found qualified to perform. Before issuing the license the director shall assess the applicant’s qualifications and may test the applicant for the functions for which application has been made. Application for a license as a dairy technician shall be made upon forms provided by the director, and shall be filed with the department. The director may issue a temporary license to the applicant for such period as may be prescribed and stated in the license, not to exceed sixty days, but the license may not be renewed to extend the period beyond sixty days. The initial application for a dairy technician’s license must be accompanied by a license fee of ten dollars. The fee for renewal of the license is five dollars. All dairy technicians’ licenses shall expire on December 31 of odd-numbered years. [1999 c 291 § 5; 1994 c 143 § 206; 1963 c 58 § 6; 1961 c 11 § 15.32.580. Prior: 1943 c 90 § 4; 1927 c 192 § 8; 1923 [Title 15 RCW—page 58] c 27 § 7; 1919 c 192 § 26; Rem. Supp. 1943 § 6189. Formerly RCW 15.32.580.] 15.36.091 15.36.091 Dairy technician’s license—Records— Inspection of. Licensed dairy technicians shall personally take all samples, conduct all tests, and determine all weights and grades of milk and milk products bought, sold, or delivered upon the basis of weight or grade or on the basis of the milk fat, nonfat milk solids, or other components contained therein. Each licensee shall keep a copy of every original report of each test, weight, or grade made by him or her for a period of two months after making the report. No unfair, fraudulent, or manipulated sample shall be taken or delivered for analysis. [1994 c 143 § 207; 1963 c 58 § 9; 1961 c 11 § 15.32.590. Prior: 1927 c 192 § 7, part; 1923 c 27 § 6, part; 1919 c 192 § 25, part; RRS § 6188, part. Formerly RCW 15.32.590.] 15.36.101 15.36.101 Milk wash station license. A wash station operator must obtain a milk wash station license to conduct the operation under this chapter for all wash stations separate from a milk processing plant. A milk wash station license is not transferable with respect to persons or locations or both. The license, issued by the director upon approval of an application for such license and compliance with the provisions of this chapter, shall contain the license number, name, residence, and place of business, if any, of the licensee. [1994 c 143 § 208.] 15.36.111 15.36.111 Inspection of dairy farms and milk processing plants—Violations—Director’s access. (1) The director shall inspect all dairy farms and all milk processing plants prior to issuance of a license under this chapter and at a frequency determined by the director by rule: PROVIDED, That the director may accept the results of periodic industry inspections of producer dairies if such inspections have been officially checked periodically and found satisfactory. In case the director discovers the violation of any item of grade requirement, he or she shall make a second inspection after a lapse of such time as he or she deems necessary for the defect to be remedied, but not before the lapse of three days, and the second inspection shall be used in determining compliance with the grade requirements of this chapter. Whenever there is any violation of the same requirement of this chapter on the second inspection, the director may initiate proceedings to degrade, suspend the license, or assess a civil penalty. (2) One copy of the inspection report detailing the grade requirement violations shall be posted by the director in a conspicuous place upon an inside wall of the milk tank room or a mutually agreed upon location on a dairy farm or given to an operator of the milk processing plant, and said inspection report shall not be defaced or removed by any person except the director. Another copy of the inspection report shall be filed with the records of the director. (3) Every milk producer and milk processing plant shall permit the director access to all parts of the establishment during the working hours of the producer or milk processing plant, which shall at a minimum include the hours from 8 a.m. to 5 p.m., and every milk processing plant shall furnish the director, upon his or her request, for official use only, (2006 Ed.) Milk and Milk Products samples of any milk product for laboratory analysis, and a true statement of the actual quantities of milk and milk products of each grade purchased and sold. (4) The director shall have access to all parts of a dairy farm or facility that is not licensed as a milk producer or milk processing plant if the director has information that the dairy farm or facility is engaged in activities that require a license under this chapter. The director shall have access during the working hours of the dairy farm or facility, which shall at a minimum include the hours from 8 a.m. to 5 p.m. The director shall have the authority to take samples of milk or any milk products and water and environmental samples for laboratory analysis. For all establishments subject to this subsection and subsection (3) of this section, the director shall have access to records including, but not limited to, customer lists, milk production records, temperature records, and records of inspections and tests. (5) If the director is denied access to a dairy farm or milk processing plant, the director may apply to a court of competent jurisdiction for a search warrant authorizing access to the property and facilities for purposes of conducting tests and inspections, taking samples, and examining records. To show that access is denied, the director shall file with the court an affidavit or declaration containing a description of his or her attempts to notify and locate the owner or the owner’s agent and to secure consent. Upon application, the court may issue a search warrant for the purposes requested. [2006 c 157 § 3; 1999 c 291 § 6; 1996 c 189 § 1; 1994 c 143 § 209; 1961 c 11 § 15.36.100. Prior: 1949 c 168 § 5; Rem. Supp. 1949 § 6266-34. Formerly RCW 15.36.100.] Findings—2006 c 157: See note following RCW 15.36.012. Effective date—1996 c 189: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [March 28, 1996]." [1996 c 189 § 3.] 15.36.131 15.36.131 Sale of out-of-state grade A milk and milk products. Grade A milk and milk products from outside the state may not be sold in the state of Washington unless produced and/or pasteurized under provisions equivalent to the requirements of this chapter and the PMO: PROVIDED, That the director shall satisfy himself or herself that the authority having jurisdiction over the production and processing is properly enforcing such provisions. [1994 c 143 § 211; 1961 c 11 § 15.36.500. Prior: 1949 c 168 § 11; Rem. Supp. 1949 § 6266-39. Formerly RCW 15.36.500.] 15.36.141 15.36.141 Grading of milk and milk products. Grades of milk and milk products as defined in this chapter shall be based on the respectively applicable standards contained in this chapter, with the grading of milk products being identical with the grading of milk, except that bacterial standards are omitted in the case of cultured milk products. Vitamin D milk shall be only of grade A, certified pasteurized, or certified raw quality. The grade of a milk product shall be that of the lowest grade milk or milk product used in its preparation. [1994 c 143 § 510; 1984 c 226 § 3; 1981 c 297 § 2; 1961 c 11 § 15.36.120. Prior: 1955 c 238 § 12; prior: 1949 c 168 § 7, part; Rem. Supp. 1949 § 6266-36, part. Formerly RCW 15.36.120.] Severability—1981 c 297: See note following RCW 15.36.201. (2006 Ed.) 15.36.171 15.36.151 Unlawful to sell, offer for sale, or deliver certain products—Diseased animals—Colostrum— Exceptions. It is unlawful to sell, offer for sale, or deliver: (1) Milk or products produced from milk from cows, goats, or other mammals affected with disease or of which the owner thereof has refused official examination and tests for disease; or (2) Colostrum milk for consumption by humans, except that this prohibition regarding colostrum milk does not apply to: (a) Colostrum milk made or to be made available to persons having multiple sclerosis, or other persons acting on their behalf, who, at the time of the initial sale, present a form, signed by a licensed physician, certifying that the intended user has multiple sclerosis and that the user releases the provider of the milk from liability resulting from the consumption of the milk; or (b) Colostrum milk processed or to be processed by a licensed food processing facility or a milk processing plant as a nutritional supplement in accordance with the federal dietary supplement health and education act. Colostrum milk used for this purpose must be pasteurized or otherwise subjected to a heat process or other treatment sufficient to kill harmful organisms. Colostrum milk described in subsection (2)(a) or (b) of this section is exempt from the prohibition provided by subsection (2) of this section if it comes from a licensed producer. Such colostrum milk is also exempt from meeting the standards for grade A raw milk required by this chapter. [2000 c 97 § 1; 1999 c 291 § 7; 1994 c 143 § 303; 1981 c 321 § 1; 1961 c 11 § 15.32.160. Prior: 1929 c 213 § 9; 1919 c 192 § 49; RRS § 6211. Formerly RCW 15.32.160.] 15.36.151 15.36.161 Cows, goats, and other mammals—Animal health requirements. (1) All milking cows, goats, and other mammals must meet the animal health requirements established by the state veterinarian under the authority of chapter 16.36 RCW. (2) Milk or milk products from cows, goats, and other mammals intended for consumption in the raw state must be from a herd which is tested negative within the previous twelve months for brucellosis, tuberculosis, and any other disease the director may designate by rule. Additions to the herd must be tested negative for the diseases within the previous thirty days before introduction into the herd. The state veterinarian shall direct all testing procedures in accordance with state and national standards for animal disease eradication. (3) Cows, goats, and other mammals showing chronic mastitis, whether producing abnormal milk or not, shall be permanently excluded from the milking herd. Cows, goats, and other mammals producing bloody, stringy, or otherwise abnormal milk, but with only slight inflammation of the udder shall be excluded from the herd until reexamination shows that the milk has become normal. [1999 c 291 § 8; 1982 c 131 § 2; 1961 c 11 § 15.36.150. Prior: 1955 c 238 § 15; prior: 1949 c 168 § 7, part; Rem. Supp. 1949 § 6266-36, part. Formerly RCW 15.36.150.] 15.36.161 15.36.171 15.36.171 Grades of milk and milk products that may be sold. The director may revoke the license of any [Title 15 RCW—page 59] 15.36.181 Title 15 RCW: Agriculture and Marketing milk processing plant or producer whose product fails to qualify as grade A pasteurized or grade A raw, or in lieu thereof may degrade the product to grade C and permit its sale as other than fluid milk or grade A milk products during a period not exceeding thirty days. In the event of an emergency, the director may permit the sale of grade C milk for more than thirty days. [1999 c 291 § 9; 1995 c 374 § 3; 1994 c 143 § 301; 1989 c 354 § 22; 1961 c 11 § 15.36.470. Prior: 1949 c 168 § 8; Rem. Supp. 1949 § 6266-37. Formerly RCW 15.36.470.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. Severability—1989 c 354: See note following RCW 15.36.012. milk processing plant license or assess a civil penalty whenever the standard is again violated so that three of the last five consecutive samples exceed the limit of the same standard. [1999 c 291 § 12. Prior: 1994 c 143 § 401; 1994 c 46 § 11; 1989 c 354 § 17; 1981 c 297 § 1; 1961 c 11 § 15.36.110; prior: 1955 c 238 § 10; 1949 c 168 § 6; Rem. Supp. 1949 § 6266-35. Formerly RCW 15.36.110.] Effective date—1994 c 46: See note following RCW 15.58.070. Severability—1989 c 354: See note following RCW 15.36.012. Severability—1981 c 297: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1981 c 297 § 43.] 15.36.206 15.36.181 15.36.181 Sale of adulterated or misbranded milk or milk products prohibited—Possession restricted. No person shall produce, sell, offer, or expose for sale, or have in possession with intent to sell, any milk or milk product which is adulterated or misbranded. It is unlawful for any person, elsewhere than in a private home, to have in possession any adulterated or misbranded milk or milk products. Adulterated or misbranded milk or milk products may be impounded and disposed of by the director. [1999 c 291 § 10; 1994 c 143 § 302; 1961 c 11 § 15.36.070. Prior: 1949 c 168 § 2; Rem. Supp. 1949 § 6266-31. Formerly RCW 15.36.070.] 15.36.191 15.36.191 Milk or milk product analysis—Report of violative results. After obtaining a sample of milk or milk product for analysis, the department shall, within ten days of obtaining the result of the analysis, send any violative results to the person from whom the sample was taken or to the person responsible for the condition of the milk. [1999 c 291 § 11; 1994 c 143 § 304; 1989 c 354 § 11; 1961 c 11 § 15.32.530. Prior: 1907 c 234 § 12; RRS § 6278. Formerly RCW 15.32.530.] Severability—1989 c 354: See note following RCW 15.36.012. 15.36.201 15.36.201 Examination of milk and milk products— Violations—Director’s options. (1) During any consecutive six months at least four samples of raw milk, raw milk for pasteurization, or both, from each dairy farm and raw milk for pasteurization, after receipt by the milk processing plant and prior to pasteurization, heat-treated milk products, and pasteurized milk and milk products from each grade A milk processing plant, for purposes of compliance with the PMO, shall be collected in at least four separate months and examined in an official laboratory: PROVIDED, That in the case of raw milk for pasteurization the director may accept the results of an officially designated laboratory. (2) If two of the last four consecutive bacterial counts, somatic cell counts, coliform determinations, or cooling temperatures, taken on separate days, exceed the standard for milk or milk products established in this chapter and rules adopted under this chapter, the director shall send written notice thereof to the person concerned. This notice shall remain in effect so long as two of the last four consecutive samples exceed the limit of the same standard. An additional sample shall be taken after sending of the notice, but not before the lapse of three days. The director may initiate proceedings to degrade or suspend the milk producer’s license or [Title 15 RCW—page 60] 15.36.206 Source of milk and milk products— Seller’s disclosure. Any person selling milk or milk products shall furnish the director, upon request, with the name of all milk processing plants or distributors from whom their milk and milk products are obtained. [1999 c 291 § 13.] 15.36.221 15.36.221 Grade A raw milk—Cooling. Milk and milk products for consumption in the raw state or for pasteurization shall be cooled within two hours of completion of milking to forty degrees Fahrenheit or less and maintained at that temperature until picked up, in accordance with RCW 15.36.201, so long as the blend temperature after the first and following milkings does not exceed fifty degrees Fahrenheit. [1995 c 374 § 4; 1984 c 226 § 5; 1961 c 11 § 15.36.260. Prior: 1955 c 238 § 37; prior: 1949 c 168 § 7, part; Rem. Supp. 1949 § 6266-36, part. Formerly RCW 15.36.260.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. 15.36.231 Raw milk or milk products—Bottling and capping—Packaging—Labeling. (1) Milk and milk products for consumption in the raw state shall be bottled or packaged on the farm where produced. Bottling and capping shall be done in a sanitary manner by means of approved equipment and operations. Caps or cap stock shall be purchased in sanitary containers and kept therein in a clean dry place until used. (2) All containers enclosing raw milk or any raw milk product shall be plainly labeled or marked with the word "raw" and the name of the producer or packager. The label or mark shall be in letters of a size, kind, and color approved by the director and shall contain no marks or words which are misleading. [2005 c 414 § 2; 1999 c 291 § 14; 1961 c 11 § 15.36.265. Prior: 1955 c 238 § 38; prior: 1949 c 168 § 7, part; Rem. Supp. 1949 § 6266-36, part. Formerly RCW 15.36.265.] 15.36.231 15.36.241 15.36.241 Capping of milk or milk products. Capping of milk or milk products shall be done in a sanitary manner by means of approved equipment and operations. The cap or cover shall cover the pouring lip to at least its largest diameter. [2005 c 414 § 3; 1961 c 11 § 15.36.420. Prior: 1955 c 238 § 64; prior: 1949 c 168 § 7, part; Rem. Supp. 1949 § 6266-36, part. Formerly RCW 15.36.420.] 15.36.261 15.36.261 Butter or cheese—Pasteurization of milk or cream. All milk or cream used in the manufacture of pas(2006 Ed.) Milk and Milk Products teurized butter or cheese shall be pasteurized only in the plant where the butter or cheese is manufactured. [1961 c 11 § 15.32.410. Prior: 1919 c 192 § 12; RRS § 6175. Formerly RCW 15.32.410.] 15.36.271 15.36.271 "Pasteurized"—Use of word regulated. No person shall use the word "pasteurized" in connection with the sale, designation, advertising, labeling, or billing of milk, cream, or any milk product unless the same and all milk products used in the manufacture thereof consist exclusively of milk, skimmed milk, or cream that has been pasteurized in its final form. [1989 c 354 § 7; 1961 c 11 § 15.32.420. Prior: 1919 c 192 § 71; RRS § 6233. Formerly RCW 15.32.420.] Severability—1989 c 354: See note following RCW 15.36.012. 15.36.451 Upon notice by the director to deny, revoke, or suspend a license, a person may request a hearing under chapter 34.05 RCW. (2) Whenever a milk transport vehicle is found in violation of this chapter or rules adopted under this chapter, the endorsement for that milk transport vehicle contained on a milk hauler’s license may be suspended or revoked. The suspension or revocation does not apply to any other milk transport vehicle operated by the milk hauler. (3) A license may be revoked by the director upon serious or repeated violations or after a license suspension or degrade for thirty continuous days without correction of the items causing the suspension or degrade. [1999 c 291 § 15; 1994 c 143 § 501.] 15.36.412 15.36.281 15.36.281 Unlawful use of containers—Seizure authorized. (1) It shall be unlawful for a person other than the owner, to possess for sale or barter or to use a container that is used to distribute packaged milk or milk products and that bears the name or trademark of an owner that has been properly registered. (2) A person receiving packaged dairy products in containers bearing the registered name or trademark of the owner shall return the containers to the owner. (3) When such a container is in the possession of a person other than the owner, the director may seize and hold it until it is established to the director’s satisfaction that such possession is lawful. The director may seize such containers and return them to the owner, in which case the owner shall pay the expenses thereof. Neither the director nor a person who returns such containers shall be liable for containers lost in transportation. [1994 c 143 § 508; 1961 c 11 § 15.32.450. Prior: (i) 1927 c 192 § 22, part; 1923 c 27 § 12, part; 1919 c 192 § 86, part; 1915 c 101 § 1, part; RRS § 6259, part. (ii) 1915 c 101 § 3; RRS § 6261. (iii) 1927 c 192 § 22a; 1915 c 101 § 4; RRS § 6262. (iv) 1927 c 192 § 22b; 1915 c 101 § 5; RRS § 6263. Formerly RCW 15.32.450.] 15.36.401 15.36.401 Licenses—Denial, suspension, revocation—Reasons. (1) A license issued under this chapter may be denied, suspended, or revoked by the director when a person: (a) Fails to comply with the provisions of this chapter or the rules adopted under this chapter; (b) Refuses the department access to a portion or area of a facility regulated under this chapter, for the purpose of carrying out the provisions of this chapter; (c) Fails to comply with an order of the director; (d) Refuses to make available to the department records required to be kept under the provisions of this chapter; (e) Fails to comply with the applicable provisions of chapter 69.04 RCW, Washington intrastate commerce in food, drugs, and cosmetics act, or rules adopted under that chapter; (f) Interferes with the director in the performance of his or her duties; or (g) Exhibits negligence, misconduct, or lack of qualification in the discharge of his or her functions. (2006 Ed.) 15.36.412 Issuance of cease and desist order. The director may issue a cease and desist order to any person whom the director has reason to believe is engaged in an activity for which a license is required by this chapter. The person to whom such notice is issued may request an adjudicative proceeding to contest the order. [2006 c 157 § 5.] Findings—2006 c 157: See note following RCW 15.36.012. 15.36.421 15.36.421 Milk processing plant or producer— License suspension. (1) If the director finds a milk processing plant or producer operating under conditions that constitute an immediate danger to public health, safety, or welfare or if the licensee or an employee of the licensee actively prevents the director or the director’s representative, during an on-site inspection, from determining whether such a condition exists, the director may summarily suspend a license provided for in this chapter. (2) If a license is summarily suspended, the holder of the license shall be notified in writing that the license is, upon service of the notice, immediately suspended and that prompt opportunity for a hearing will be provided. (3) If a license is summarily suspended, processing and shipping operations shall immediately cease. However, the director may reinstate the license if the condition that caused the suspension has been abated to the director’s satisfaction. [1999 c 291 § 16; 1994 c 143 § 503.] 15.36.451 15.36.451 Regrading of milk or milk products— Reinstatement of license. Any producer or milk processing plant whose milk has been degraded by the director, or whose license has been suspended may at any time make application for the regrading of his or her products or the reinstatement of his or her license. Upon receipt of a satisfactory application, in case the lowered grade or the license suspension was the result of violation of the bacteriological or cooling temperature standards, the director shall take further samples of the applicant’s output, at a rate of not more than two samples per week. The director shall regrade the milk or milk products upward or reinstate the license on compliance with grade requirements as determined in accordance with the provisions of RCW 15.36.201. In case the lowered grade of the applicant’s product or the license suspension was due to a violation of an item other than bacteriological standard or cooling temperature, the said [Title 15 RCW—page 61] 15.36.454 Title 15 RCW: Agriculture and Marketing application must be accompanied by a statement signed by the applicant to the effect that the violated item of the specifications had been conformed with. Within one week of the receipt of such an application and statement the director shall make a reinspection of the applicant’s establishment and thereafter as many additional reinspections as he or she may deem necessary to assure himself or herself that the applicant is again complying with the higher grade requirements. The higher grade or license shall be reinstated upon confirmation that all violated items are corrected and any period for reduction in grade or license suspensions as ordered by the director has been completed. [1999 c 291 § 17; 1996 c 189 § 2; 1994 c 143 § 506; 1961 c 11 § 15.36.480. Prior: 1949 c 168 § 9; Rem. Supp. 1949 § 6266-37a. Formerly RCW 15.36.480.] Effective date—1996 c 189: See note following RCW 15.36.111. 15.36.454 15.36.454 Failure to comply with chapter or rules— Civil penalties. (1) Except as provided in RCW 15.36.471 or subsection (2) or (3) of this section, any person who fails to comply with this chapter or the rules adopted under this chapter may be subject to a civil penalty in an amount of not more than one thousand dollars per violation per day. (2) The director shall adopt rules establishing civil penalties assessed under RCW 15.36.111(1) and 15.36.201(2). The penalties shall be equitably based on the volume of milk or milk product handled by the producer or milk processor subject to the penalty. (3) Whenever the results of an antibiotic, pesticide, or other drug residue test on a producer’s milk are above the actionable level established in the PMO, the producer is subject to a civil penalty in an amount equal to one-half the value of the sum of the volumes of milk produced on the day prior to and the day of the adulteration. The value of the milk shall be computed using the weighted average price for the federal market order under which the milk is delivered. (4) Each violation is a separate and distinct offense. The director shall impose the civil penalty in accordance with chapter 34.05 RCW. Moneys collected under this section and RCW 15.36.471 shall be remitted to the department and deposited into the revolving fund of the Washington state dairy products commission. [1999 c 291 § 18.] 15.36.455 15.36.455 Violations—Notice, orders, damages. (1) When the director has probable cause to believe that milk or milk products are being sold, distributed, stored, or transported in violation of this chapter or rules adopted under this chapter, the director may issue and serve upon the owner or custodian of the milk or milk products a written notice of embargo and order prohibiting the sale of the milk or milk products. If the owner or custodian is not available for service, the director may attach the notice of embargo and order prohibiting sale to the container holding the milk or milk products. The milk or milk products shall not be sold, used, or removed until this chapter has been complied with and the milk or milk products have been released from embargo under conditions specified by the director in writing. (2) The department may issue a destruction and disposal order covering any embargoed milk or milk products. The destruction and disposal shall occur at the cost of the owner or custodian. [Title 15 RCW—page 62] (3) The person to whom the notice of embargo and order prohibiting sale was issued or the person to whom a destruction or disposal order was issued may request an adjudicative proceeding to contest the order. (4) A state court shall not allow the recovery of damages from an administrative action under this section if the court finds there was probable cause for the action. [2006 c 157 § 6.] Findings—2006 c 157: See note following RCW 15.36.012. 15.36.457 15.36.457 Authority to assess civil penalty. The authority to assess a civil penalty under RCW 15.36.111(1) and 15.36.201(2) shall be used only as consistent with the 1995 grade A pasteurized milk ordinance published by the United States public health service, food and drug administration and adopted by [the] department in WAC 16-101-700, or any subsequent version as adopted by the department under the authority of RCW 15.36.021(3). [1999 c 291 § 19.] 15.36.471 15.36.471 Component parts of fluid dairy products— Violations of standards—Civil penalty—Investigation. (1) The director shall adopt rules imposing a civil penalty of not more than ten thousand dollars for violations of the standards for component parts of fluid dairy products which are established under this chapter or adopted pursuant to RCW 69.04.398. (2) In case of a violation of the standards for the composition of milk products, an investigation shall be made to determine the cause of the violation which shall be corrected. Additional samples shall be taken as soon as possible and tested by the department. [1999 c 291 § 20; 1994 c 143 § 511; 1993 c 212 § 3; 1989 c 175 § 49; 1986 c 203 § 19. Formerly RCW 15.36.595.] Effective date—1989 c 175: See note following RCW 34.05.010. Severability—1986 c 203: See note following RCW 15.17.230. 15.36.473 15.36.473 Failure to comply with chapter or rules— Criminal penalties. (1) It is unlawful for any person to sell raw milk from a dairy farm that is not licensed as a milk producer or a milk processing plant under this chapter. (2) The sale of raw milk from a dairy farm that is not licensed as a milk producer and a milk processing plant under this chapter constitutes: (a) For the first offense, a misdemeanor; and (b) For the second and subsequent offenses, a gross misdemeanor punishable according to chapter 9A.20 RCW. (3) Neither the issuance of a cease and desist order nor payment of a civil penalty relieves the person so selling raw milk from criminal prosecution, but the remedy of a cease and desist order or civil penalty is in addition to any criminal liability. [2006 c 157 § 7.] Findings—2006 c 157: See note following RCW 15.36.012. 15.36.475 15.36.475 Laboratory tests—Admission as evidence. Tests performed by an official laboratory or an officially designated laboratory of a milk sample drawn by a department official or a licensed dairy technician shall be admitted as prima facie evidence of a violation in any proceeding to enforce this chapter. [1999 c 291 § 21.] (2006 Ed.) Milk and Milk Products 15.36.481 15.36.481 Violations may be enjoined. The director may bring an action to enjoin the violation of any provision of this chapter or any rule adopted under this chapter in the superior court of the county in which the defendant resides or maintains his or her principal place of business or Thurston county. [1999 c 291 § 22; 1969 ex.s. c 102 § 4. Formerly RCW 15.36.600.] 15.36.491 15.36.491 Licenses—Money deposited in general fund—Exception. All moneys received for licenses under this chapter shall be deposited in the general fund, except that all moneys received for annual milk processing plant licenses under RCW 15.36.051 shall be deposited in the agricultural local fund established under RCW 43.23.230. [2005 c 414 § 4; 1999 c 291 § 23; 1961 c 11 § 15.32.710. Prior: 1899 c 43 § 27; RRS § 6249. Formerly RCW 15.32.710.] Effective date—2005 c 414 §§ 1 and 4: See note following RCW 15.36.051. 15.36.561 sion of any such sections, and if any section or part of a section in this chapter shall be found to contain, cover or effect any matter, topic or thing which is also contained in, covered in or effected by said sections, or by any of them, or by any part thereof, the prohibitions, mandates, directions, and regulations hereof, and the penalties, powers and duties herein prescribed shall be construed to be additional to those prescribed in such sections and not in substitution therefor. And nothing in this chapter shall be construed to forbid the importation, transportation, manufacture, sale, or possession of any article of food which is not prohibited from interstate commerce by the laws of the United States or rules or regulations lawfully made thereunder, if there be a standard of quality, purity and strength therefor authorized by any law of this state, and such article comply therewith and be not misbranded. [1961 c 11 § 15.32.910. Prior: 1919 c 192 § 88; RRS § 6266. Formerly RCW 15.32.910.] 15.36.551 15.36.511 15.36.511 Unlawful actions. (1) It is unlawful for any person to: (a) Interfere with or obstruct any person in the performance of official duties under this chapter; (b) Employ a tester, sampler, weigher, grader, or pasteurizer who is not licensed as a dairy technician; (c) Alter or tamper with a seal placed by the director; (d) Alter or tamper with a sample of milk or milk products taken or sealed by the director; or (e) Operate as a milk producer or milk processing plant without obtaining a license from the director. (2) Except as provided under RCW 15.36.131, it is unlawful for a milk processing plant to accept milk from a person not licensed as a producer or milk processor. [2006 c 157 § 4; 1999 c 291 § 24; 1961 c 11 § 15.32.730. Prior: 1919 c 192 § 76; RRS § 6238. Formerly RCW 15.32.730.] Findings—2006 c 157: See note following RCW 15.36.012. 15.36.525 15.36.525 Sanitary certificates—Rules—Fee for issuance. The department may issue sanitary certificates to milk processing plants under this chapter subject to such requirements as it may establish by rule. The fee for issuance is fifty dollars per certificate. Fees collected under this section shall be deposited in the agricultural local fund. [1999 c 291 § 25.] 15.36.531 15.36.531 Declaration of police power. It is hereby declared that this chapter is enacted as an exercise of the police power of the state of Washington for the preservation of the public health and each and every section thereof shall be construed as having been intended to effect such purpose and not as having been intended to affect any regulation or restraint of commerce between the several states which may by the Constitution of the United States of America have been reserved to the congress thereof. [1961 c 11 § 15.32.900. Prior: 1919 c 192 § 83; RRS § 6245. Formerly RCW 15.32.900.] 15.36.541 15.36.541 Chapter cumulative. Nothing in this chapter shall be construed as affecting or being intended to effect a repeal of chapter 69.04 RCW or RCW 69.40.010 through 69.40.025, or of any of such sections, or of any part or provi(2006 Ed.) 15.36.551 Dairy inspection program—Assessment. (Expires June 30, 2010.) There is levied on all milk processed in this state an assessment not to exceed fifty-four one-hundredths of one cent per hundredweight. The director shall determine, by rule, an assessment, that with contribution from the general fund, will support an inspection program to maintain compliance with the provisions of the pasteurized milk ordinance of the national conference on interstate milk shipment. All assessments shall be levied on the operator of the first milk processing plant receiving the milk for processing. This shall include milk processing plants that produce their own milk for processing and milk processing plants that receive milk from other sources. Milk processing plants whose monthly assessment for receipt of milk totals less than twenty dollars in any given month are exempted from paying this assessment for that month. All moneys collected under this section shall be paid to the director by the twentieth day of the succeeding month for the previous month’s assessments. The director shall deposit the funds into the dairy inspection account hereby created within the agricultural local fund established in RCW 43.23.230. The funds shall be used only to provide inspection services to the dairy industry. If the operator of a milk processing plant fails to remit any assessments, that sum shall be a lien on any property owned by him or her, and shall be reported by the director and collected in the manner and with the same priority over other creditors as prescribed for the collection of delinquent taxes under chapters 84.60 and 84.64 RCW. This section expires June 30, 2010. [2004 c 132 § 1; 1999 c 291 § 26; 1995 c 15 § 1; 1994 c 34 § 1; 1993 sp.s. c 19 § 1; 1992 c 160 § 1. Formerly RCW 15.36.105.] Effective date—1995 c 15: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [April 12, 1995]." [1995 c 15 § 2.] 15.36.561 15.36.561 Dairy inspection program—Advisory committee—Purpose—Terms. (1) There is created a dairy inspection program advisory committee. The committee shall consist of eleven members appointed by the director. The director shall solicit nominations for members of the committee from Washington dairy producer organizations and milk processors. The committee shall consist of four members [Title 15 RCW—page 63] Chapter 15.37 Title 15 RCW: Agriculture and Marketing who are producers or their representatives, four members who are milk processors or their representatives, one member who is a producer processor, one member who is a milk hauler, and one member who is a milk equipment dealer. (2) The purpose of this advisory committee is to advise the director in the administration of the dairy inspection program and regarding policy issues related to this chapter. (3) The terms of the members of the committee shall be staggered and the members shall serve a term of three years until their successor has been appointed and qualified. In the event a committee member resigns, is disqualified, or vacates a position on the committee for any reason the vacancy may be filled by the director under the provisions of this section governing appointments. The director may remove a member for cause. (4) The committee shall elect one of its members as chair. The committee shall meet by the call of the director, chair, or a majority of the committee. Members of the committee shall serve without compensation. [1999 c 291 § 27; 1994 c 143 § 507; 1994 c 34 § 2; 1992 c 160 § 2. Formerly RCW 15.36.107.] Chapter 15.37 RCW MILK AND MILK PRODUCTS FOR ANIMAL FOOD Chapter 15.37 Sections 15.37.010 15.37.020 15.37.030 15.37.040 15.37.050 15.37.060 15.37.070 15.37.080 15.37.090 15.37.100 15.37.110 15.37.120 15.37.130 15.37.140 15.37.150 15.37.900 Definitions. Enforcement of chapter—Rules, subject to administrative procedure act. Minimum conditions for sale, etc.—When license required— Expiration date of license. Application, issuance of license. License fee on application. Penalty for delinquency on renewal of license. Denial, suspension, revocation of license. Denial, suspension, revocation of license—Hearings subject to administrative procedure act. Subpoenas—Witness fees. Coloring of milk in containers, when required. Labels on containers—Contents. Entry on premises. Injunctions authorized. Chapter cumulative and nonexclusive. Penalty. Severability—1961 c 285. 15.37.010 15.37.010 Definitions. For the purpose of this chapter: (1) "Department" means the department of agriculture of the state of Washington. (2) "Director" means the director of the department or his duly appointed representative. (3) "Person" means a natural person, individual, or firm, partnership, corporation, company, society, and association, and every officer, agent, or employee thereof. This term shall import either the singular or plural, as the case may be. [1961 c 285 § 1.] 15.37.030 15.37.030 Minimum conditions for sale, etc.—When license required—Expiration date of license. It shall be unlawful for any person to sell, offer for sale, hold for sale, or advertise for sale, trade, barter, or to give as an inducement for the sale of another product, milk, cream, or skim milk, for animal food consumption, which does not meet, or has not been produced and handled under conditions prescribed for grade A milk as provided in chapter 15.36 RCW as enacted or hereafter amended, without first obtaining an annual license from the director which shall expire on June 30th following the date of issuance unless revoked prior thereto by the director for cause. [1961 c 285 § 3.] 15.37.040 15.37.040 Application, issuance of license. Application for a license shall be on a form prescribed by the director and shall include the following: (1) The full name of the person applying for the license. (2) If such applicant is a receiver, trustee, firm, partnership, association, or corporation, the full name of each member of the firm or partnership or the names of the officers of the association or corporation shall be given on the application. (3) The principal business address of the applicant in the state and elsewhere. (4) The name of a person domiciled in this state authorized to receive and accept service or legal notice of all kinds. (5) Any other information prescribed by the director necessary to carry out the purposes and provisions of this chapter. The director shall issue a license to an applicant upon his satisfaction that the applicant has satisfied the requirements of this chapter and rules adopted hereunder and that such applicant has paid the required fee. [1961 c 285 § 4.] 15.37.050 15.37.050 License fee on application. The application for an annual license to sell, offer for sale, hold for sale, or advertise for sale, trade, barter, or to give as an inducement for the sale of another product, milk, cream, or skim milk for animal food consumption shall be accompanied by a license fee of twenty-five dollars. [1961 c 285 § 5.] 15.37.060 15.37.060 Penalty for delinquency on renewal of license. If an application for renewal of a license provided for in RCW 15.37.030 is not filed prior to July 1st of any one year, a penalty of ten dollars shall be assessed and added to the original fee and shall be paid by the applicant before the renewal license shall be issued: PROVIDED, That such penalty shall not apply if the applicant furnishes an affidavit that he has not sold, offered for sale, held for sale, or advertised for sale, milk, cream, or skim milk for animal food consumption subsequent to the expiration of his prior license. [1961 c c 285 § 6.] 15.37.020 15.37.020 Enforcement of chapter—Rules, subject to administrative procedure act. The director shall enforce and carry out the provisions of this chapter and may adopt the necessary rules to carry out its purpose. The adoption of rules shall be subject to the provisions of chapter 34.05 RCW, concerning the adoption of rules, as enacted or hereafter amended. [1961 c 285 § 2.] [Title 15 RCW—page 64] 15.37.070 15.37.070 Denial, suspension, revocation of license. The director is authorized to deny, suspend, or revoke the license provided for in RCW 15.37.030 subsequent to a hearing in any case in which he finds that there has been a failure or refusal to comply with the provisions of this chapter or rules adopted hereunder. [1961 c 285 § 7.] (2006 Ed.) Dairy Products Commission 15.37.080 Chapter 15.44 15.37.080 Denial, suspension, revocation of license— Hearings subject to administrative procedure act. All hearings for a denial, suspension, or revocation of a license provided for in RCW 15.37.030 shall be subject to the provisions of chapter 34.05 RCW concerning adjudicative proceedings. [1989 c 175 § 50; 1961 c 285 § 8.] terized as provided in RCW 15.37.100 or rules adopted hereunder. No person shall interfere with the director or his duly authorized representative when he is performing or carrying out the duties imposed on him by this chapter or rules adopted hereunder. [1961 c 285 § 12.] Effective date—1989 c 175: See note following RCW 34.05.010. 15.37.130 Injunctions authorized. The director may bring an action to enjoin the violation or threatened violation of any provision of this chapter or any rule adopted pursuant to this chapter in the superior court of Thurston county, notwithstanding the existence of any other remedy at law. [1961 c 285 § 13.] 15.37.090 15.37.090 Subpoenas—Witness fees. The director may issue subpoenas to compel the attendance of witnesses and/or the production of books, documents, and records in the county in which the person licensed under this chapter resides in any hearing affecting the authority or privileges granted by a license issued under the provisions of this chapter. Witnesses, except complaining witnesses, shall be entitled to fees for attendance and travel, as provided for in chapter 2.40 RCW as enacted or hereafter amended. [1961 c 285 § 9.] 15.37.100 15.37.100 Coloring of milk in containers, when required. It shall be unlawful for any person to sell, offer for sale, hold for sale, advertise for sale, trade, barter, or to give as an inducement for the sale of another product, any milk, cream, or skim milk, for animal food consumption which does not meet, or has not been produced under conditions prescribed for grade A milk, as prescribed in chapter 15.36 RCW as enacted or hereafter amended and rules adopted thereunder, and the applicable provisions of chapter 69.04 RCW (the Food, Drug and Cosmetic Act) as enacted and hereafter amended and rules adopted thereunder, in containers provided either by the vendor or vendee and which are capable of holding less than twenty liquid quarts, unless such milk, cream, or skim milk has been decharacterized with a color prescribed by the director which will not affect its nutritive value for animal food. [1961 c 285 § 10.] 15.37.110 15.37.110 Labels on containers—Contents. It shall be unlawful to sell, offer for sale, hold for sale, trade, barter, or to offer as an inducement for the sale of another product, milk, cream, or skim milk subject to the provisions of this chapter in containers which are not labeled in a conspicuous location readily visible to any person handling such containers with the following: (1) The name and address of the producer or distributor in letters not less than one-fourth inch in size. (2) The name of the contents in letters not less than onefourth inch in size. (3) The words "not for human consumption" in letters at least one-half inch in size. (4) The words "decharacterized with harmless food coloring" in letters not less than one-fourth inch in size. [1961 c 285 § 11.] 15.37.120 15.37.120 Entry on premises. The director or his duly authorized representative may enter, during reasonable business hours, any premise where milk, cream, or skim milk subject to the provisions of this chapter is produced, handled, distributed, sold, offered for sale, held for sale, or used for the inducement of the sale of another product to determine if such milk, cream, or skim milk has been properly decharac(2006 Ed.) 15.37.130 15.37.140 Chapter cumulative and nonexclusive. The provisions of this chapter shall be cumulative and nonexclusive and shall not affect any other remedy. [1961 c 285 § 14.] 15.37.140 15.37.150 Penalty. Any person violating the provisions of this chapter or rules adopted hereunder is guilty of a misdemeanor. [1961 c 285 § 15.] 15.37.150 15.37.900 Severability—1961 c 285. If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1961 c 285 § 16.] 15.37.900 Chapter 15.44 Chapter 15.44 RCW DAIRY PRODUCTS COMMISSION Sections 15.44.010 15.44.015 15.44.020 15.44.021 15.44.022 15.44.023 15.44.027 15.44.030 15.44.032 15.44.033 15.44.035 15.44.038 15.44.040 15.44.050 15.44.060 15.44.061 15.44.062 15.44.063 15.44.065 15.44.070 15.44.080 15.44.085 15.44.087 15.44.090 15.44.100 15.44.110 15.44.130 15.44.133 15.44.135 15.44.140 15.44.150 15.44.160 Definitions. Regulating dairy products—Commission created—Existing comprehensive scheme—Laws applicable. Commission composition. Director appoints members—Nominations—Advisory vote. Transition to director appointed commission. Associations with same objective—Dual membership—Contracting. Commission districts and boundaries. Member qualifications. Terms—Vacancies. Nomination and appointment procedure. Producer lists—Each producer responsible for accuracy—Use of lists. Quorum—Compensation—Travel expenses. Copies of records as evidence. Manager—Secretary-treasurer—Treasurer’s bond. Powers and duties. Commission’s plans, programs, and projects—Director’s approval required. Commission speaks for state—Director’s oversight. Reimbursement for costs. Commission may establish foundations. Rules or orders to be filed and published—Rule-making exemptions. Assessments on milk and cream—Amounts—Increases—Producer referendum. Assessments on class I or class II milk. Class I and class II milk defined. Collection of assessments—Lien. Records of dealers, shippers—Preservation—Inspection. Reports of dealers and shippers to commission—Subpoenas. Research, advertising, educational campaign—Increase or decrease of assessments—Procedure. Promotional hosting expenditures—Rules. Promotional printing and literature—Contracts. Authority to inspect premises and records—Subpoenas. Action against commission enforced as if a corporation—Liability—Limitations. Enforcement of chapter. [Title 15 RCW—page 65] 15.44.010 15.44.170 15.44.180 15.44.185 15.44.190 15.44.195 15.44.901 15.44.910 Title 15 RCW: Agriculture and Marketing Penalty. Jurisdiction of courts. Certain records exempt from public disclosure—Exceptions— Actions not prohibited by chapter. Funding staff support—Rules. Costs of implementing RCW 15.44.061. Severability—2004 c 99. Liberal construction. General obligation bonds: Chapter 43.99I RCW. 15.44.010 15.44.010 Definitions. As used in this chapter: "Commission" means the Washington state dairy products commission; To "ship" means to deliver or consign milk or cream to a person dealing in, processing, distributing, or manufacturing dairy products for sale, for human consumption or industrial or medicinal uses; "Handler" means one who purchases milk, cream, or skimmed milk for processing, manufacturing, sale, or distribution; "Dealer" means one who handles, ships, buys, and sells dairy products, or who acts as sales or purchasing agent, broker, or factor of dairy products; "Mail" or "send" for purposes of any notice relating to rule making, referenda, or elections means regular mail or electronic distribution, as provided in RCW 34.05.260 for rule making. "Electronic distribution" or "electronically" means distribution by electronic mail or facsimile mail; "Processor" means a person who uses milk or cream for canning, drying, manufacturing, preparing, or packaging or for use in producing or manufacturing any product therefrom; "Producer" means a person who produces milk from cows and sells it for human or animal food, or medicinal or industrial uses; "Maximum authorized assessment rate" means the level of assessment most recently approved by a referendum of producers; "Current level of assessment" means the level of assessment paid by the producer as set by the commission which cannot exceed the maximum authorized assessment rate. [2002 c 313 § 88; 1985 c 261 § 17; 1979 ex.s. c 238 § 1; 1961 c 11 § 15.44.010. Prior: 1939 c 219 § 2; RRS § 6266-2.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1979 ex.s. c 238: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1979 ex.s. c 238 § 27.] 15.44.015 15.44.015 Regulating dairy products—Commission created—Existing comprehensive scheme—Laws applicable. The history, economy, culture, and the future of Washington state’s agriculture involves the dairy industry. In order to develop and promote Washington’s dairy products as part of an existing comprehensive scheme to regulate those products the legislature declares: (1) That the Washington state dairy products commission is created. The commission may also take actions under the name "the dairy farmers of Washington"; (2) That it is vital to the continued economic well-being of the citizens of this state and their general welfare that its dairy products be properly promoted by (a) enabling the dairy industry to help themselves in establishing orderly, fair, sound, efficient, and unhampered marketing, grading, and [Title 15 RCW—page 66] standardizing of the dairy products they produce; and (b) working to stabilize the dairy industry by increasing consumption of dairy products within the state, the nation, and internationally; (3) That dairy producers operate within a regulatory environment that imposes burdens on them for the benefit of society and the citizens of the state and includes restrictions on marketing autonomy. Those restrictions may impair the dairy producer’s ability to compete in local, domestic, and foreign markets; (4) That it is in the overriding public interest that support for the dairy industry be clearly expressed, that adequate protection be given to agricultural commodities, uses, activities, and operations, and that dairy products be promoted individually, and as part of a comprehensive industry to: (a) Enhance the reputation and image of Washington state’s agriculture industry; (b) Increase the sale and use of Washington state’s dairy products in local, domestic, and foreign markets; (c) Protect the public by educating the public in reference to the quality, care, and methods used in the production of Washington state’s dairy products; (d) Increase the knowledge of the health-giving qualities and dietetic value of dairy products; and (e) Support and engage in programs or activities that benefit the production, handling, processing, marketing, and uses of dairy products produced in Washington state; (5) That this chapter is enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state; and (6) That the dairy industry is a highly regulated industry and that this chapter and the rules adopted under it are only one aspect of the regulated industry. Other regulations and restraints applicable to the dairy industry include the: (a) Federal marketing order under 7 C.F.R., Part 1124; (b) Dairy promotion program under the dairy and tobacco adjustment act of 1983, Subtitle B; (c) Milk and milk products act under chapter 15.36 RCW and rules, including: (i) The national conference of interstate milk shippers pasteurized milk ordinance; (ii) The national conference of interstate milk shippers dry milk ordinance; (iii) Standards for the fabrication of single-service containers; (iv) Procedures governing cooperative state-public health service; (v) Methods of making sanitation ratings of milk supplies; (vi) Evaluation and certification of milk laboratories; and (vii) Interstate milk shippers; (d) Milk and milk products for animal food act under chapter 15.37 RCW and rules; (e) Organic food products act under chapter 15.86 RCW and rules; (f) Intrastate commerce in food, drugs, and cosmetics act under chapter 69.04 RCW and rules, including provisions of 21 C.F.R. relating to the general manufacturing practices, (2006 Ed.) Dairy Products Commission milk processing, food labeling, food standards, and food additives; (g) Washington food processing act under chapter 69.07 RCW and rules; (h) Washington food storage warehouses act under chapter 69.10 RCW and rules; (i) Animal health under chapter 16.36 RCW and rules; (j) Weighmasters under chapter 15.80 RCW and rules; and (k) Dairy nutrient management act under chapter 90.64 RCW and rules. [2002 c 313 § 87.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.020 15.44.020 Commission composition. The dairy products commission shall be composed of not more than ten members. There shall be one member from each district who shall be a practical producer of dairy products, one member shall be a dealer, and one member shall be a producer who also acts as a dealer. The director of agriculture shall be a voting member of the commission. As used in this chapter, "director" means the director of agriculture or his or her authorized representative. [2003 c 396 § 24; 2002 c 313 § 89; 1979 ex.s. c 238 § 2; 1975 1st ex.s. c 136 § 1; 1965 ex.s. c 44 § 2; 1961 c 11 § 15.44.020. Prior: 1959 c 163 § 2; prior: (i) 1939 c 219 § 3, part; RRS § 62663, part. (ii) 1939 c 219 § 4, part; RRS § 6266-4, part.] Effective date—2003 c 396: See note following RCW 15.66.030. Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1979 ex.s. c 238: See note following RCW 15.44.010. 15.44.021 15.44.021 Director appoints members—Nominations—Advisory vote. (1) The director shall appoint the members of the commission. (2) Candidates for producer member positions on the commission shall be nominated under RCW 15.44.033. (3) The director shall cause an advisory vote to be held for the producer member positions. Advisory ballots shall be mailed to all affected producers in the district where a vacancy is about to occur and shall be returned to the director not less than thirty days prior to the commencement of the term. The advisory ballot shall be conducted in a manner so that it is a secret ballot. The names of the two candidates receiving the most votes in the advisory vote shall be forwarded to the director for potential appointment to the commission. In the event there are only two candidates nominated for a position, an advisory vote may not be held and the candidates’ names shall be forwarded to the director for potential appointment. If only one candidate is nominated for a position, the commission shall select a second candidate whose name will be forwarded to the director. (4) Any candidate whose name is forwarded to the director for potential appointment shall submit to the director a letter stating why he or she wishes to be appointed to the commission. The director may select either person for the position. [2003 c 396 § 25.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.44.022 15.44.022 Transition to director appointed commission. To accomplish the transition to a commission structure where the director appoints the commission members, the (2006 Ed.) 15.44.027 names of the currently elected commission members shall be forwarded to the director for appointment to the commission within thirty days of May 20, 2003. Thereafter, the director shall appoint commission members pursuant to RCW 15.44.021 as the current commission member terms expire. [2003 c 396 § 28.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.44.023 15.44.023 Associations with same objective—Dual membership—Contracting. Any board member of the commission may be a member or officer of an association that has the same objectives for which the commission was formed. The commission may contract with the association for services necessary to carry out any purposes authorized under this chapter if an appropriate written contract has been entered into. [2002 c 313 § 101.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.027 15.44.027 Commission districts and boundaries. The commission shall delete, combine, revise, amend, or modify in any manner commission districts and boundaries by regulation as required and in accordance with the intent and provisions of this section. Commission districts established by statute prior to September 8, 1975 shall remain in effect until superseded by such regulations. The boundaries of the commission districts shall be maintained in a manner that assures each producer a representation in the commission which is reasonably equal with the representation afforded all other producers by their commission members. The commission shall, when requested in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW as enacted or hereafter amended, or on its own initiative, hold hearings to determine if new boundaries for each commission district should be established in order to afford each producer a reasonably equal representation in the commission, and if the commission so finds it shall change the boundaries of said commission districts to carry out the proper reapportionment of producer representation on the commission: PROVIDED, That the requirement of this section for reasonable equal representation of each producer on the commission need not require an equality of representation when the commission districts east of the crest of the Cascade mountains are compared to the commission districts west of the crest of the Cascade mountains: PROVIDED FURTHER, That the area east of the crest of the Cascade mountains shall comprise not less than two commission districts. The commission may in carrying out this reapportionment directive reduce the number of districts presently provided by prior law, whenever it is in the best interest of the producers and if such change would maintain reasonable apportionment for each historical production or marketing area: PROVIDED, That each elected commission member whose district may be consolidated with another district shall be allowed to serve out his term of office. If the commission fails to carry out its directive as set forth herein for equal representation of each producer on the commission the director of agriculture may upon request by ten producers institute a hearing to determine if there is reasonably equal representation for each producer on the com[Title 15 RCW—page 67] 15.44.030 Title 15 RCW: Agriculture and Marketing mission. If the director of agriculture finds that such reasonably equal representation is lacking, he then shall realign the district boundaries in a manner which will provide proper representation on the commission for each producer. [1975 1st ex.s. c 136 § 7.] 15.44.030 15.44.030 Member qualifications. Each of the producer members of the commission shall: (1) Be a citizen and resident of this state and the district which he represents; and (2) Be and for the five years last preceding his election have been actually engaged in producing dairy products within this state. These qualifications must continue during each member’s term of office. The dealer member shall be actively engaged as a dealer in dairy products or employed in a dealer capacity as an officer or employee at management level in a dairy products organization. [1975 1st ex.s. c 136 § 2; 1965 ex.s. c 44 § 4; 1961 c 11 § 15.44.030. Prior: 1959 c 163 § 4; prior: 1939 c 219 § 3, part; RRS § 6266-3, part.] 15.44.032 15.44.032 Terms—Vacancies. The regular term of office of each producer member of the commission shall be three years. Commission members shall be first nominated and elected in 1966 in the manner set forth in RCW 15.44.033 and shall take office as soon as they are qualified. However, expiration of the term of the respective commission members first elected in 1966 shall be as follows: (1) District I and II on July 1, 1967; (2) District III and IV on July 1, 1968; and (3) District V, VI and VII on July 1, 1969. The respective terms shall end on July 1st of each third year thereafter. Any vacancies that occur on the commission shall be filled by appointment by the other members of the commission, and such appointee shall hold office for the remainder of the term for which he is appointed to fill, so that commission memberships shall be on a uniform staggered basis. The term of office of the first dealer appointed by the director shall expire July 1, 1977, and the term of office of the first producer who also acts as a dealer appointed by the director shall expire on July 1, 1978. The term of office of each dealer and each producer who also acts as a dealer shall be three years or until such time as a successor is duly appointed. Any vacancy for a dealer or a producer who also acts as a dealer shall be forthwith filled by the director. The director, in making any appointments set forth herein, may consider lists of nominees supplied him by dealers or producers also acting as dealers. [1975 1st ex.s. c 136 § 3; 1965 ex.s. c 44 § 5; 1961 c 11 § 15.44.032. Prior: 1959 c 163 § 5.] 15.44.033 15.44.033 Nomination and appointment procedure. Producer members of the commission shall be nominated by producers within the district that such producer members represent in the year in which a commission member’s term shall expire. Nomination for candidates to be appointed to the commission shall be conducted by mail by the director. Such nomination forms shall be mailed by the director to each producer in a district where a vacancy is about to occur. Such [Title 15 RCW—page 68] mailing shall be made on or after April 1st, but not later than April 10th of the year the commission vacancy will occur. The nomination form shall provide for the name of the producer being nominated and the names of five producers nominating such nominee. The producers nominating such nominee shall affix their signatures to such form and shall further attest that the said nominee meets the qualifications for a producer member to serve on the commission and that he or she will be willing to serve on the commission if appointed. All nominations as provided for herein shall be returned to the director by April 30th, and the director shall not accept any nomination postmarked later than midnight April 30th, nor place the candidate thereon on the advisory election ballot. Advisory vote ballots for electing nominees to the commission will be mailed by the director to all eligible producers no later than May 15th, in districts where advisory elections are to be held and such ballots to be valid shall be returned postmarked no later than May 31st of the year mailed, to the director in Olympia. The director shall determine whether the persons nominated possess the qualifications required by statute for the position. [2003 c 396 § 26; 1995 c 374 § 59; 1967 c 240 § 30; 1965 ex.s. c 44 § 6.] Effective date—2003 c 396: See note following RCW 15.66.030. Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. Severability—1967 c 240: See note following RCW 43.23.010. 15.44.035 15.44.035 Producer lists—Each producer responsible for accuracy—Use of lists. (1) The commission shall prior to each advisory election, in sufficient time to satisfy the requirements of RCW 15.44.033, furnish the director with a list of all producers within the district for which the advisory election is being held. The commission shall require each dealer and shipper in addition to the information required under RCW 15.44.110 to furnish the commission with a list of names of producers whose milk they handle. (2) Any producer may on his or her own motion file his or her name with the commission for the purpose of receiving notice of the advisory election. (3) It is the responsibility of each producer to ensure that his or her correct address is filed with the commission. (4) For all purposes of giving notice, holding referenda, and conducting advisory votes for nominees to the commission, the applicable list of producers corrected up to the day preceding the date the list is certified and mailed to the director is deemed to be the list of all producers or handlers, as applicable, entitled to notice or to vote. The list shall be corrected and brought up-to-date in accordance with evidence and information provided to the commission. [2003 c 396 § 27; 2002 c 313 § 90; 1965 ex.s. c 44 § 7.] Effective date—2003 c 396: See note following RCW 15.66.030. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.038 15.44.038 Quorum—Compensation—Travel expenses. (1) A majority of the commission members shall constitute a quorum for the transaction of all business and the performance of all duties of the commission. (2006 Ed.) Dairy Products Commission (2) Each member shall be compensated in accordance with RCW 43.03.230. Each member or employee shall be reimbursed for actual travel expenses incurred in carrying out the provisions of this chapter as defined by the commission in rule. Otherwise, if not defined in rule, reimbursement for travel expenses shall be at the rates allowed by RCW 43.03.050 and 43.03.060. [2002 c 313 § 92; 1984 c 287 § 15; 1975-’76 2nd ex.s. c 34 § 15; 1975 1st ex.s. c 7 § 12; 1961 c 11 § 15.44.038. Prior: 1959 c 163 § 8.] Effective dates—2002 c 313: See note following RCW 15.65.020. Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. 15.44.040 15.44.040 Copies of records as evidence. Copies of the proceedings, records and acts of the commission, when certified by the secretary, shall be admissible in any court and be prima facie evidence of the truth of the statements therein contained. [1961 c 11 § 15.44.040. Prior: 1959 c 163 § 9; prior: 1939 c 219 § 4, part; RRS § 6266-4, part.] 15.44.050 15.44.050 Manager—Secretary-treasurer—Treasurer’s bond. The commission shall elect a manager, who is not a member, and fix his compensation; and shall appoint a secretary-treasurer, who shall sign all vouchers and receipts for all moneys received by the commission. The treasurer shall file with the commission a fidelity bond in the sum of one hundred thousand dollars, executed by a surety company authorized to do business in the state, in favor of the state and the commission, conditioned for the faithful performance of his duties and strict accounting of all funds to the commission. [1979 ex.s. c 238 § 3; 1961 c 11 § 15.44.050. Prior: (i) 1939 c 219 § 5; RRS § 6266-5. (ii) 1939 c 219 § 6; RRS § 6266-6.] Severability—1979 ex.s. c 238: See note following RCW 15.44.010. 15.44.061 (7) Make in its name such contracts and other agreements as are necessary to build demand and promote the sale of dairy products on either a state, national, or foreign basis; (8) Keep accurate records of all its dealings, which shall be open to public inspection and audit by the regular agencies of the state; (9) Conduct the necessary research to develop more efficient and equitable methods of marketing dairy products, and enter upon, singly or in participation with others, the promotion and development of state, national, or foreign markets; (10) Participate in federal and state agency hearings, meetings, and other proceedings relating to the regulation of the production, manufacture, distribution, sale, or use of dairy products, to provide educational meetings and seminars for the dairy industry on such matters, and to expend commission funds for such activities; (11) Retain the services of private legal counsel to conduct legal actions, on behalf of the commission. The retention of a private attorney is subject to the review of the office of the attorney general; (12) Work cooperatively with other local, state, and federal agencies, universities, and national organizations for the purposes of this chapter; (13) Accept and expend or retain any gifts, bequests, contributions, or grants from private persons or private and public agencies to carry out the purposes of this chapter; (14) Engage in appropriate fund-raising activities for the purpose of supporting activities of the commission authorized by this chapter; (15) Expend funds for commodity-related education, training, and leadership programs as the commission deems appropriate; and (16) Work cooperatively with nonprofit and other organizations to carry out the purposes of this chapter. [2002 c 313 § 93; 1999 c 300 § 1; 1979 ex.s. c 238 § 4; 1961 c 11 § 15.44.060. Prior: 1959 c 163 § 13; 1939 c 219 § 8; RRS § 6266-8.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.060 15.44.060 Powers and duties. The commission shall have the power and duty to: (1) Elect a chairman and such other officers as it deems advisable, and adopt, rescind, and amend rules, regulations, and orders for the exercise of its powers, which shall have the effect of law when not inconsistent with existing laws; (2) Administer and enforce the provisions of this chapter and perform all acts and exercise all powers reasonably necessary to effectuate the purpose hereof; (3) Employ and discharge advertising counsel, advertising agents, and such attorneys, agents, and employees as it deems necessary, and prescribe their duties and powers and fix their compensation; (4) Establish offices, incur expenses, enter into contracts, and create such liabilities as are reasonable and proper for the proper administration of this chapter; (5) Investigate and prosecute violations of this chapter; (6) Conduct scientific research designed to improve milk production, quality, transportation, processing, and distribution and to develop and discover uses for products of milk and its derivatives; (2006 Ed.) Severability—1979 ex.s. c 238: See note following RCW 15.44.010. 15.44.061 15.44.061 Commission’s plans, programs, and projects—Director’s approval required. (1) The commission shall develop and submit to the director for approval any plans, programs, and projects concerning the following: (a) The establishment, issuance, effectuation, and administration of appropriate programs or projects for the advertising, promotion, and education of the affected commodities; and (b) The establishment and effectuation of market research projects, market development projects, or both to the end that the marketing and utilization of the affected commodities may be encouraged, expanded, improved, or made more efficient. (2) The director shall review the commission’s advertising or promotion program to ensure that no false claims are being made concerning the affected commodities. (3) The commission, prior to the beginning of its fiscal year, shall prepare and submit to the director for approval its research plan, its commodity-related education, training and leadership plan, and its budget on a fiscal period basis. [Title 15 RCW—page 69] 15.44.062 Title 15 RCW: Agriculture and Marketing (4) The director shall strive to review and make a determination of all submissions described in this section in a timely manner. [2003 c 396 § 29.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.44.062 15.44.062 Commission speaks for state—Director’s oversight. The commission exists primarily for the benefit of the people of the state of Washington and its economy. The legislature hereby charges the commission, with oversight by the director, to speak on behalf of Washington state government with regard to its particular commodities. [2003 c 396 § 30.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.44.063 15.44.063 Reimbursement for costs. (1) The commission shall reimburse the director for necessary costs for services conducted on behalf of the commission under this chapter. (2) The commission may enter into an agreement with the director to administer this chapter or chapter 34.05 RCW. [2002 c 313 § 91.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.065 15.44.065 Commission may establish foundations. The commission may establish foundations using commission funds as grant money when the foundation benefits the dairy products industry. Commission funds may only be used for the purposes authorized in this chapter. [2002 c 313 § 100.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.070 15.44.070 Rules or orders to be filed and published— Rule-making exemptions. (1) Every rule or order made by the commission shall be filed with the director and published in two legal newspapers, one east and one west of the Cascade mountains, within ten days after it is adopted, and is effective as set forth under RCW 34.05.380. (2) Rule-making proceedings conducted under this chapter are exempt from compliance with RCW 34.05.310, the provisions of chapter 19.85 RCW, the regulatory fairness act, and the provisions of RCW 43.135.055 when adoption of the rule is determined by a referendum vote of the affected parties. [2002 c 313 § 94; 1975 1st ex.s. c 7 § 39; 1961 c 11 § 15.44.070. Prior: 1939 c 219 § 18; RRS § 6266-18.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.080 15.44.080 Assessments on milk and cream— Amounts—Increases—Producer referendum. (1) There is hereby levied upon all milk produced in this state an assessment of: (a) 0.75 percent of class I price for 3.5 percent butter fat milk as established in any market area by a market order in effect in that area or by the state department of agriculture in case there is no market order for that area; or (b) While the federal dairy and tobacco adjustment act of 1983, Title I, Subtitle B-dairy promotion program, is in effect: (i) An assessment rate not to exceed the rate approved at the most recent referendum that would achieve a ten cent per hundredweight credit to local, state, or regional promotion [Title 15 RCW—page 70] organizations provided by Title I, Subtitle B of the federal dairy and tobacco adjustment act of 1983; and (ii) An additional assessment of 0.625 of one cent per hundredweight. (2) Subject to approval by a producer referendum as provided in this section, the commission shall have the further power and duty to increase the amount of the maximum authorized assessment rate to be levied upon either milk or cream according to the necessities required to effectuate the stated purpose of the commission. In determining such necessities, the commission shall consider one or more of the following: (a) The necessities of: (i) Developing better and more efficient methods of marketing milk and related dairy products; (ii) Aiding dairy producers in preventing economic waste in the marketing of their commodities; (iii) Developing and engaging in research for developing better and more efficient production, marketing, and utilization of agricultural products; (iv) Establishing orderly marketing of dairy products; (v) Providing for uniform grading and proper preparation of dairy products for market; (vi) Providing methods and means including but not limited to public relations and promotion, for the maintenance of present markets, for development of new or larger markets, both domestic and foreign, for dairy products produced within this state, and for the prevention, modification, or elimination of trade barriers which obstruct the free flow of such agricultural commodities to market; (vii) Restoring and maintaining adequate purchasing power for dairy producers of this state; and (viii) Protecting the interest of consumers by assuring a sufficient pure and wholesome supply of milk and cream of good quality; (b) The extent and probable cost of required research and market promotion and advertising; (c) The extent of public convenience, interest, and necessity; and (d) The probable revenue from the assessment as a consequence of its being revised. (3)(a) This section shall apply where milk or cream is marketed either in bulk or package. However, this section shall not apply to milk or cream used upon the farm or in the household where produced. (b) The increase in the maximum authorized assessment rate to be charged producers on milk and cream provided for in this section shall not become effective until approved by fifty-one percent of the producers voting in a referendum conducted by the commission. The referendum for approval of any increase in the maximum authorized assessment rate provided for in this section shall be by secret mail ballot furnished to all producers paying assessments to the commission. The commission shall furnish ballots to producers at least ten days in advance of the day it has set for concluding the referendum and counting the ballots. Any interested producer may be present at such time the commission counts the ballots. [2002 c 313 § 95; 1985 c 261 § 18; 1973 1st ex.s. c 41 § 1; 1969 c 60 § 1; 1965 ex.s. c 44 § 1; 1961 c 11 § 15.44.080. Prior: 1959 c 163 § 11; prior: (2006 Ed.) Dairy Products Commission 1949 c 185 § 1, part; 1939 c 219 § 9, part; Rem. Supp. 1949 § 6266-9, part.] 15.44.130 Severability—1979 ex.s. c 238: See note following RCW 15.44.010. 15.44.090 Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.085 15.44.085 Assessments on class I or class II milk. There is hereby levied on every hundredweight of class I or class II milk, as defined in RCW 15.44.087, sold by a dealer, including any milk sold by a producer who acts as a dealer, an assessment of: (1) Five-eighths of one cent per hundredweight. Such assessment shall be in addition to the producer assessment paid by any producer who also acts as a dealer. (2) Any additional assessment, within the power and duty of the commission to levy, such that the total assessment shall not exceed one cent per hundredweight, as required to effectuate the purpose of this section. Such assessment may be increased by approval of dealers and producers who also act as dealers, subject to the standards set forth in chapter 15.44 RCW for increasing or decreasing assessments. The funds derived from such assessment shall be used for educational programs and the sum of such funds derived annually from said dealers and producers who act as dealers shall be matched by assessments derived from producers for the purpose of funding the educational purposes by an amount not less than the moneys collected from dealers and producers who act as dealers. [2002 c 313 § 96; 1979 ex.s. c 238 § 5; 1975 1st ex.s. c 136 § 5.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1979 ex.s. c 238: See note following RCW 15.44.010. 15.44.087 15.44.087 Class I and class II milk defined. For the purpose of RCW 15.44.085, class I and class II milk sold means milk from cows produced by a producer as defined in RCW 15.44.010 and utilized as follows: (1) Class I milk shall be all skim milk and butterfat: (a) Sold in the form of fluid milk product subject to the following limitations and exceptions: (i) Any products fortified with added nonfat milk solids shall be class I in an amount equal only to the weight of an equal volume of like unmodified product of the same butterfat content. (ii) Fluid milk products in concentrated form shall be class I in an amount equal to the skim milk and butterfat used to produce the quantity of such products sold. (iii) Products classified as class II pursuant to subsection (2) of this section are excepted. (b) Packaged fluid milk products in inventory at the end of the month. (2) Class II milk shall be all skim milk and butterfat: (a) Used to produce ice cream, ice cream mix, frozen desserts, aerated cream products, plastic cream, soured cream dressing, yogurt, eggnog, cottage cheese, pot cheese, bakers cheese, cream cheese, neufchatel cheese, or starter; or (b) Any milk or milk product, sterilized and either (i) packaged in hermetically sealed metal, plastic, foil, paper, or glass containers and used to produce condensed milk and condensed skim milk, or (ii) in fluid milk products disposed of in bulk to commercial food processing establishments or producer milk sold to a commercial food processing establishment. [1979 ex.s. c 238 § 6; 1975 1st ex.s. c 136 § 6.] (2006 Ed.) 15.44.090 Collection of assessments—Lien. All assessments shall be collected by the first dealer and deducted from the amount due the producer, and all moneys so collected shall be paid to the treasurer of the commission on or before the twentieth day of the succeeding month for the previous month’s collections, and deposited by him in banks designated by the commission to the credit of the commission fund. If a dealer or a producer who acts as a dealer fails to remit any assessments, or fails to make deductions for assessments, such sum shall, in addition to penalties provided in this chapter, be a lien on any property owned by him, and shall be reported to the county auditor by the commission, supported by proper and conclusive evidence, and collected in the manner and with the same priority over other creditors as prescribed for the collection of delinquent taxes. [1979 ex.s. c 238 § 7; 1975 1st ex.s. c 136 § 4; 1961 c 11 § 15.44.090. Prior: 1959 c 163 § 12; prior: 1949 c 185 § 1, part; 1939 c 219 § 9, part; Rem. Supp. 1949 § 6266-9, part.] Severability—1979 ex.s. c 238: See note following RCW 15.44.010. 15.44.100 15.44.100 Records of dealers, shippers—Preservation—Inspection. Each dealer or shipper shall keep a complete and accurate record of all milk or cream handled by him. The record shall be in such form and contain such information as the commission shall prescribe, and shall be preserved for a period of two years, and be submitted for inspection at any time upon request of the commission or its agent. [1961 c 11 § 15.44.100. Prior: 1959 c 163 § 14; 1939 c 219 § 10; RRS § 6266-10.] 15.44.110 15.44.110 Reports of dealers and shippers to commission—Subpoenas. (1) Each dealer and shipper shall at such times as by rule required file with the commission a return under oath on forms to be furnished by the commission, stating the quantity of dairy products handled, processed, manufactured, delivered, and shipped, and the quantity of all milk and cream delivered to or purchased by such person from the various producers of dairy products or their agents in the state during the period or periods prescribed by the commission. (2) The commission has the authority to issue subpoenas for the production of books, records, documents, and other writings of any kind and may issue subpoenas to witnesses to give testimony. [2002 c 313 § 97; 1961 c 11 § 15.44.110. Prior: 1959 c 163 § 15; 1939 c 219 § 11; RRS § 6266-11.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.130 15.44.130 Research, advertising, educational campaign—Increase or decrease of assessments—Procedure. (1) In order to adequately advertise and market Washington dairy products in the domestic, national and foreign markets, and to make such advertising and marketing research and development as extensive as public interest and necessity require, and to put into force and effect the policy of this chapter 15.44 RCW, the commission shall provide for and conduct a comprehensive and extensive research, advertising and educational campaign, and keep such research, advertising and education as continuous as the production, sales, and market conditions reasonably require. [Title 15 RCW—page 71] 15.44.133 Title 15 RCW: Agriculture and Marketing (2) The commission shall investigate and ascertain the needs of dairy products and producers, the conditions of the markets, and the extent to which public convenience and necessity require advertising and research to be conducted. (3)(a) The commission may decrease or increase the current level of assessment provided for in RCW 15.44.080 following a hearing conducted in accordance with the Administrative Procedure Act, chapter 34.05 RCW: PROVIDED, That the current level of assessment established in this manner shall not exceed the maximum authorized assessment rate established by producers in the most recent referendum. (b) Upon receipt of a petition bearing the names of twenty percent of the producers requesting a reduction in the current level of assessment, the commission shall hold a hearing in accordance with chapter 34.05 RCW to receive producer testimony. After considering the testimony of the producer, the commission may adjust the current level of assessment. [1985 c 261 § 19; 1969 c 60 § 2; 1961 c 11 § 15.44.130. Prior: 1959 c 163 § 17; 1949 c 185 § 2; 1939 c 219 § 13; Rem. Supp. 1949 § 6266-13.] this chapter does not exist either against the administrator, members, employees, and agents in their individual capacity or the state of Washington. The administrator, its members, and its agents and employees are not responsible individually in any way whatsoever to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employee, except for their own individual acts of dishonesty or crime. All persons employed or contracting under this chapter shall be limited to, and all salaries, expenses, and liabilities incurred by the commission shall be payable only from the funds collected under this chapter. [2003 c 396 § 32; 2002 c 313 § 102; 1961 c 11 § 15.44.150. Prior: 1939 c 219 § 7; RRS § 6266-7.] Effective date—2003 c 396: See note following RCW 15.66.030. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.160 15.44.160 Enforcement of chapter. All state and county law enforcement officers and all employees and agents of the department shall enforce this chapter. [1961 c 11 § 15.44.160. Prior: 1939 c 219 § 16; RRS § 6266-16.] 15.44.133 15.44.133 Promotional hosting expenditures—Rules. The commission is authorized to adopt rules governing promotional hosting expenditures by commission employees, agents, or board members under RCW 15.04.200. [2002 c 313 § 99.] 15.44.170 15.44.170 Penalty. Whoever violates or aids in the violation of the provisions of this chapter shall be guilty of a gross misdemeanor. [1961 c 11 § 15.44.170. Prior: 1939 c 219 § 14; RRS § 6266-14.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.180 15.44.135 15.44.135 Promotional printing and literature— Contracts. Promotional printing and literature not restricted by laws relating to public printer, see RCW 15.24.085. Conditions of employment, etc., in contracts, see RCW 15.24.086. 15.44.140 15.44.140 Authority to inspect premises and records—Subpoenas. (1) The commission through its agents may inspect the premises and records of any carrier, handler, dealer, manufacturer, processor, or distributor of dairy products for the purpose of enforcing this chapter. (2) The commission has the authority to issue subpoenas for the production of books, records, documents, and other writings of any kind for any carrier, handler, dealer, manufacturer, processor, or distributor of dairy products for the purpose of enforcing this chapter. [2002 c 313 § 98; 1961 c 11 § 15.44.140. Prior: 1939 c 219 § 19; RRS § 6266-19.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.150 15.44.150 Action against commission enforced as if a corporation—Liability—Limitations. Any action by the commission administrator, member, employee, or agent thereof pertaining to the performance or nonperformance or misperformance of any matters or things authorized, required, or permitted by this chapter, and any other liabilities, debts, or claims against the commission shall be enforced in the same manner as if the commission were a corporation. No liability for the debts or actions of the commission shall exist against the state of Washington or any subdivision or instrumentality thereof. Liability for the debts or actions of the commission’s administrator, member, employee, or agent incurred in their official capacity under [Title 15 RCW—page 72] 15.44.180 Jurisdiction of courts. The superior courts are hereby vested with jurisdiction to enforce this chapter and to prevent and restrain violations thereof. [1961 c 11 § 15.44.180. Prior: 1939 c 219 § 15; RRS § 6266-15.] 15.44.185 15.44.185 Certain records exempt from public disclosure—Exceptions—Actions not prohibited by chapter. (1) Under RCW 42.56.380, certain agricultural business records, commission records, and department of agriculture records relating to the commission and producers of agricultural commodities are exempt from public disclosure. (2) Financial and commercial information and records submitted to either the department or the commission for the purpose of administering this chapter may be shared between the department and the commission. They may also be used, if required, in any suit or administrative hearing involving any provision of this chapter or a marketing order. (3) This chapter does not prohibit: (a) The issuance of general statements based upon the reports of persons subject to this chapter as long as the statements do not identify the information furnished by any person; or (b) The publication by the director or the commission of the name of any person violating this chapter and a statement of the manner of the violation by that person. [2005 c 274 § 214; 2002 c 313 § 69.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.190 15.44.190 Funding staff support—Rules. The director may provide by rule for a method to fund staff support for all commodity boards and commissions in accordance with (2006 Ed.) Seed Bailment Contracts RCW 43.23.033 if a position is not directly funded by the legislature and costs related to the specific activity undertaken on behalf of an individual commodity board or commission. The commission shall provide funds to the department according to the rules adopted by the director. [2002 c 313 § 75.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.44.195 15.44.195 Costs of implementing RCW 15.44.061. The costs incurred by the department of agriculture associated with the implementation of RCW 15.44.061 shall be paid for by the commission. [2003 c 396 § 31.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.44.901 15.44.901 Severability—2004 c 99. If any section, subsection, sentence, clause, or part of this chapter is for any reason held to be invalid or unconstitutional, the judicial decision does not affect the remainder of the chapter and its application to other persons or circumstances. The legislature declares that each section, subsection, sentence, clause, and part of this chapter was enacted with the intent that if any portion of this chapter is severed, the remainder of the chapter is capable of accomplishing its legislative purpose. [2004 c 99 § 2.] Effective date—2004 c 99: See note following RCW 15.28.901. 15.44.910 15.44.910 Liberal construction. This chapter shall be liberally construed. [1961 c 11 § 15.44.910. Prior: 1939 c 219 § 17, part; RRS § 6266-17, part.] Chapter 15.48 Chapter 15.48 RCW SEED BAILMENT CONTRACTS 15.48.280 15.48.280 Security interest not created by contract— Filing, recording or notice of contract not required to establish validity of contract or title in bailor. Seed bailment contracts for the increase of agricultural seeds shall not create a security interest under the terms of the Uniform Commercial Code, *chapter 62A.9 RCW. No filing, recording or notice of a seed bailment contract shall be required under any of the laws of the state to establish, during the term of a seed bailment contract the validity of any such contracts, nor to establish and confirm in the bailor the title to all seed, seed stock, plant life and the resulting seed crop thereof grown or produced by the bailee under the terms of a bailment contract. [1967 c 114 § 15.] *Reviser’s note: Chapter 62A.9 RCW was repealed in its entirety by 2000 c 250 § 9A-901, effective July 1, 2001. For later enactment, see chapter 62A.9A RCW. Emergency—Effective date—1967 c 114: See note following RCW 62A.4-406. 15.48.290 15.48.290 Payments required to be made by bailor to bailee subject to security interests and agricultural liens. All payments of money required by the terms of a seed bailment contract to be made by a bailor to a bailee shall be subject to security interests perfected as required by *chapter 62A.9 RCW, as amended, and all agricultural liens provided for and perfected in accordance with Title 60 RCW. [1967 c 114 § 16.] *Reviser’s note: Chapter 62A.9 RCW was repealed in its entirety by 2000 c 250 § 9A-901, effective July 1, 2001. For later enactment, see chapter 62A.9A RCW. Emergency—Effective date—1967 c 114: See note following RCW 62A.4-406. Chapter 15.49 Sections 15.48.270 15.48.280 15.48.290 Definitions. Security interest not created by contract—Filing, recording or notice of contract not required to establish validity of contract or title in bailor. Payments required to be made by bailor to bailee subject to security interests and agricultural liens. Agricultural and vegetable seeds: Chapter 15.49 RCW. Liens, crop: Chapter 60.11 RCW. 15.48.270 15.48.270 Definitions. As used in this chapter: (1) "Seed bailment contract" means any bailment contract for the increase of agricultural seeds where the bailor retains title to seed, seed stock, plant life and the seed crop resulting therefrom. (2) "Bailee" is any tenant farmer or landowner or both, who, for an agreed compensation agrees to plant agricultural seeds furnished by the bailor and to care for, cultivate, harvest and deliver to the bailor the seed resulting therefrom. (3) "Bailor" is any seed contractor who delivers agricultural seed to a bailee under the terms of a seed bailment contract which requires the bailee to plant, care for, cultivate, harvest and deliver the resultant seed crop to the bailor and requires the bailor to pay the bailee the amount of compensation agreed upon in the contract for the bailees’ services in producing the seed. [1967 c 114 § 14.] Emergency—Effective date—1967 c 114: See note following RCW 62A.4-406. (2006 Ed.) Chapter 15.49 Chapter 15.49 RCW SEEDS (Formerly: Washington state seed act) Sections 15.49.005 15.49.011 15.49.021 15.49.031 15.49.041 15.49.051 15.49.061 15.49.071 15.49.081 15.49.091 15.49.101 15.49.111 15.49.310 15.49.330 15.49.350 15.49.360 15.49.370 15.49.380 15.49.390 15.49.400 15.49.410 15.49.420 15.49.460 15.49.470 15.49.480 15.49.900 15.49.920 15.49.930 Purpose—Rules. Definitions. Standards and label requirements—Rules. Labels—Required information. Violations—Civil penalty. Unlawful practices. Exceptions. Damages—Arbitration prerequisite to legal action. Arbitration—Filing fee—Rules. Arbitration—Procedure. Investigation of complaint by arbitration committee. Arbitration committee—Creation—Generally. Department to administer chapter—Rules and regulations— Guidance of federal seed act. Screenings—Removal required—Disposition. Permit to condition certified seed. Records—Maintenance—Availability of records and samples for inspection. Department’s enforcement authority. Dealer’s license to distribute seeds. Renewal of dealer’s license. Seed labeling permit. "Stop sale, use or removal orders"—Seizure—Condemnation. Damages precluded. Injunctions. Moneys, disposition—Fees, fines, penalties and forfeitures of district courts, remittance. Cooperation and agreements with other agencies. Existing liabilities not affected. Effective date—1969 c 63. Continuation of rules adopted pursuant to repealed sections— Adoption, amendment or repeal. [Title 15 RCW—page 73] 15.49.005 15.49.940 15.49.950 Title 15 RCW: Agriculture and Marketing Short title. Severability—1969 c 63. 15.49.005 15.49.005 Purpose—Rules. The purpose of this chapter is to provide uniformity and consistency in the packaging of agricultural, vegetable, and flower seeds so as to facilitate the interstate movement of seed, to protect consumers, and to provide a dispute-resolution process. The department of agriculture is hereby authorized to adopt rules in accordance with chapter 34.05 RCW to implement this chapter. To the extent possible, the department shall seek to incorporate into the rules provisions from the recommended uniform state seed law in order to attain consistency with other states. [1989 c 354 § 70.] Effective date—1989 c 354 §§ 70-81 and 84-86: "Sections 70 through 81 and 84 through 86 of this act shall take effect January 1, 1990." [1989 c 354 § 88.] Severability—1989 c 354: See note following RCW 15.36.012. 15.49.011 15.49.011 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (l) "Advertisement" means all representations, other than those on the label, disseminated in any manner or by any means, relating to seed within the scope of this chapter. (2) "Agricultural seed" includes grass, forage, cereal, oil, fiber, and other kinds of crop seeds commonly recognized within this state as agricultural seeds, lawn seeds, and combinations of such seeds, and may include common and restricted noxious weed seeds but not prohibited noxious weed seeds. (3) "Blend" means seed consisting of more than one variety of a kind, each in excess of five percent by weight of the whole. (4) "Bulk seed" means seed distributed in a nonpackage form. (5) "Certifying agency" means (a) an agency authorized under the laws of any state, territory, or possession to certify seed officially and which has standards and procedures approved by the United States secretary of agriculture to assure the genetic purity and identity of the seed certified; or (b) an agency of a foreign country determined by the United States secretary of agriculture to adhere to procedures and standards for seed certification comparable to those adhered to generally by seed-certifying agencies under (a) of this subsection. (6) "Conditioning" means drying, cleaning, scarifying, and other operations that could change the purity or germination of the seed and require the seed lot to be retested to determine the label information. (7) "Dealer" means any person who distributes. (8) "Department" means the department of agriculture of the state of Washington or its duly authorized representative. (9) "Director" means the director of the department of agriculture. (10) "Distribute" means to import, consign, offer for sale, hold for sale, sell, barter, or otherwise supply seed in this state. (11) "Flower seeds" includes seeds of herbaceous plants grown from their blooms, ornamental foliage, or other orna[Title 15 RCW—page 74] mental parts, and commonly known and sold under the name of flower seeds in this state. (12) The terms "foundation seed," "registered seed," and "certified seed" mean seed that has been produced and labeled in compliance with the regulations of the department. (13) "Germination" means the emergence and development from the seed embryo of those essential structures which, for the kind of seed in question, are indicative of the ability to produce a normal plant under favorable conditions. (14) "Hard seeds" means seeds that remain hard at the end of the prescribed test period because they have not absorbed water due to an impermeable seed coat. (15) "Hybrid" means the first generation seed of a cross produced by controlling the pollination and by combining (a) two or more inbred lines; (b) one inbred or a single cross with an open pollinated variety; or (c) two varieties or species, except open-pollinated varieties of corn (Zea mays). The second generation or subsequent generations from such crosses shall not be regarded as hybrids. Hybrid designations shall be treated as variety names. (16) "Inert matter" means all matter not seed, that includes broken seeds, sterile florets, chaff, fungus bodies, and stones as determined by methods defined by rule. (17) "Kind" means one or more related species or subspecies that singly or collectively is known by one common name, for example, corn, oats, alfalfa, and timothy. (18) "Label" includes a tag or other device attached to or written, stamped, or printed on any container or accompanying any lot of bulk seeds purporting to set forth the information required on the seed label by this chapter, and it may include any other information relating to the labeled seed. (19) "Lot" means a definite quantity of seed identified by a lot number or other mark, every portion or bag of which is uniform within recognized tolerances for the factors that appear in the labeling. (20) "Lot number" shall identify the producer or dealer and year of production or the year distributed for each lot of seed. This requirement may be satisfied by use of a conditioner’s or dealer’s code. (21) "Master license system" means the mechanism established by chapter 19.02 RCW by which master licenses, endorsed for individual state-issued licenses, are issued and renewed using a master application and a master license expiration date common to each renewable license endorsement. (22) "Mixture," "mix," or "mixed" means seed consisting of more than one kind, each in excess of five percent by weight of the whole. (23) "Official sample" means any sample of seed taken and designated as official by the department. (24) "Other crop seed" means seed of plants grown as crops, other than the kind or variety included in the pure seed, as determined by methods defined by rule. (25) "Prohibited (primary) noxious weed seeds" are the seeds of weeds which when established are highly destructive, competitive, and/or difficult to control by cultural or chemical practices. (26) "Person" means an individual, partnership, corporation, company, association, receiver, trustee, or agent. (27) "Pure live seed" means the product of the percent of germination plus hard or dormant seed multiplied by the per(2006 Ed.) Seeds cent of pure seed divided by one hundred. The result is expressed as a whole number. (28) "Pure seed" means seed exclusive of inert matter and all other seeds not of the seed being considered as determined by methods defined by rule. (29) "Restricted (secondary) noxious weed seeds" are the seeds of weeds which are objectionable in fields, lawns, and gardens of this state, but which can be controlled by cultural or chemical practices. (30) "Retail" means to distribute to the ultimate consumer. (31) "Screenings" mean chaff, seed, weed seed, inert matter, and other materials removed from seed in cleaning or conditioning. (32) "Seed labeling registrant" means a person who has obtained a permit to label seed for distribution in this state. (33) "Seeds" mean agricultural or vegetable seeds or other seeds as determined by rules adopted by the department. (34) "Stop sale, use, or removal order" means an administrative order restraining the sale, use, disposition, and movement of a specific amount of seed. (35) "Treated" means that the seed has received an application of a substance, or that it has been subjected to a process for which a claim is made. (36) "Type" means a group of varieties so nearly similar that the individual varieties cannot be clearly differentiated except under special conditions. (37) "Variety" means a subdivision of a kind that is distinct, uniform, and stable; "distinct" in the sense that the variety can be differentiated by one or more identifiable morphological, physiological, or other characteristics from all other varieties of public knowledge; "uniform" in the sense that variations in essential and distinctive characteristics are describable; and "stable" in the sense that the variety will remain unchanged in its essential and distinctive characteristics and its uniformity when reproduced or reconstituted as required by the different categories of varieties. (38) "Vegetable seeds" includes the seeds of those crops that are grown in gardens and on truck farms and are generally known and sold under the name of vegetable or herb seeds in this state. (39) "Weed seeds" include the seeds of all plants generally recognized as weeds within this state, and includes the seeds of prohibited and restricted noxious weeds as determined by regulations adopted by the department. (40) "Inoculant" means a commercial preparation containing nitrogen fixing bacteria applied to the seed. (41) "Coated seed" means seed that has been treated and has received an application of inert material during the treatment process. [1989 c 354 § 73.] Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. 15.49.021 15.49.021 Standards and label requirements—Rules. (1) The department shall establish by rule standards and label requirements for the following seed types: Agricultural seed (including grass, lawn, and turf seed), flower seed, and vegetable seed. (2006 Ed.) 15.49.051 (2) The standards and label requirements shall be divided into the following categories: (a) Percentage of kind and variety of each seed component present; and (b) Percentage of weed seed (restricted and common). (3) The standards and label requirements developed by the department shall at a minimum include: (a) Amount of inert material; (b) Specifics and warning for treated seed; (c) Specifics for coated seed; (d) Specifics and duration for inoculated seed; (e) Specifics for seed which is below standard; (f) Specifics for seed contained in containers, mats, tapes, or other planting devices; (g) Specifics for seed sold in bulk; (h) Specifics for hybrid seed; and (i) Specifics for seed mixtures. [1989 c 354 § 71.] Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. 15.49.031 15.49.031 Labels—Required information. In addition to the requirements contained in RCW 15.49.021, each seed label shall contain the following: (1) The name and address of the person who labeled the seed and who sells, offers, or exposes the seed for sale within the state; (2) Lot number identification; (3) Seed origin; (4) Germination rate and date of germination test or the year for which the seed was packaged for sale. [1989 c 354 § 72.] Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. 15.49.041 15.49.041 Violations—Civil penalty. Every person who fails to comply with this chapter or the rules adopted under it may be subjected to a civil penalty, as determined by the director, in an amount of not more than two thousand dollars for every such violation. Each and every such violation shall be a separate and distinct offense. [1989 c 354 § 74.] Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. 15.49.051 15.49.051 Unlawful practices. (1) It is unlawful for any person to sell, offer for sale, expose for sale, or transport for sale any agricultural, vegetable, or flower seeds within this state unless the test to determine the percentage of germination is completed within a fifteen-month period prior to sale, provided that germination tests for seed packaged in hermetically sealed containers shall be completed within thirty-six months prior to sale. The department shall establish rules for allowing retesting. (2) It is unlawful for any person to sell, offer for sale, expose for sale, or transport for sale any agricultural, vegetable, or flower seed within this state not labeled in accordance with this chapter or having false or misleading labeling or for which there has been false or misleading advertisement. [Title 15 RCW—page 75] 15.49.061 Title 15 RCW: Agriculture and Marketing (3) It is unlawful to represent seed to be certified unless it has been determined by a seed-certifying agency that such seed conformed to standards of purity and identity or variety in compliance with the rules adopted under this chapter. (4) It is unlawful to attach any tags of similar size and format to the official certification tag that could be mistaken for the official certification tag. (5) It is unlawful for any person to sell, offer for sale, expose for sale, or transport for sale any agricultural, vegetable, or flower seed within this state labeled with a variety name but not certified by an official seed-certifying agency when it is a variety for which a United States certification of plant variety protection under the plant variety protection act (7 U.S.C. Sec. 2321 et seq.) specifies sale only as a class of certified seed: PROVIDED, That seed from a certified lot may be labeled as to variety name when used in a mixture by, or with the approval of, the owner of the variety. (6) It is unlawful for any person within this state: (a) To detach, alter, deface, or destroy any label required by this chapter or its implementing rules or to alter or substitute seed in a manner that may defeat the purpose of this chapter; (b) To disseminate any false or misleading advertisements concerning seeds subject to this chapter in any manner or by any means; (c) To hinder or obstruct in any way, any authorized person in the performance of his or her duties under this chapter; (d) To fail to comply with a "stop sale" order or to move or otherwise handle or dispose of any lot of seed held under a "stop sale" order or tags attached thereto, except with express permission of the enforcing officer, and for the purpose specified thereby; (e) To use the word "trace" as a substitute for any statement that is required; and (f) To use the word "type" in any labeling in connection with the name of any agricultural seed variety. (7) It is unlawful for any person to sell, offer for sale, expose for sale, or transport for sale any agricultural, vegetable, or flower seed within this state that consists of or contains: (a) Prohibited noxious weed seeds; or (b) restricted noxious weed seeds in excess of the number declared on the label. [1989 c 354 § 75.] Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. 15.49.061 15.49.061 Exceptions. (1) The provisions of RCW 15.49.011 through 15.49.051 do not apply: (a) To seed or grain not intended for sowing purposes; (b) To seed in storage by, or being transported or consigned to a conditioning establishment for conditioning if the invoice or labeling accompanying the shipment of such seed bears the statement "seeds for conditioning" and if any labeling or other representation that may be made with respect to the unconditioned seed is subject to this chapter; (c) To any carrier with respect to any seed transported or delivered for transportation in the ordinary course of its business as a carrier if the carrier is not engaged in producing, conditioning, or marketing seeds subject to this chapter; or (d) Seed stored or transported by the grower of the seed. [Title 15 RCW—page 76] (2) No person may be subject to the penalties of this chapter for having sold or offered for sale seeds subject to this chapter that were incorrectly labeled or represented as to kind, species, variety, or type, which seeds cannot be identified by examination thereof, unless he or she has failed to obtain an invoice, genuine grower’s declaration, or other labeling information and to take such other precautions as may be reasonable to ensure the identity to be that stated. A genuine grower’s declaration of variety shall affirm that the grower holds records of proof concerning parent seed, such as invoice and labels. [1989 c 354 § 76.] Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. 15.49.071 15.49.071 Damages—Arbitration prerequisite to legal action. (1) When a buyer is damaged by the failure of any seed covered by this chapter to produce or perform as represented by the required label, by warranty, or as a result of negligence, the buyer, as a prerequisite to maintaining a legal action against the dealer of such seed, shall have first provided for the arbitration of the claim. Any statutory period of limitations with respect to such claim shall be tolled from the date arbitration proceedings are instituted until ten days after the date on which the arbitration award becomes final. (2) Similarly, no such claim may be asserted as a counterclaim or defense in any action brought by a dealer against a buyer until the buyer has first provided for arbitration of the claim. Upon the buyer’s filing of a written notice of intention to assert such a claim as a counterclaim or defense in the action accompanied by a copy of the buyer’s complaint in arbitration filed as provided in this chapter, the action shall be stayed, and any applicable statute of limitations shall be tolled with respect to such claim from the date arbitration proceedings are instituted until ten days after the arbitration award becomes final. (3) Conspicuous language calling attention to the requirement for arbitration under this section shall be referenced or included on the analysis label required under RCW 15.49.011 through 15.49.101. (4) If the parties agree to submit the claim to arbitration and to be bound by the arbitration award, then the arbitration shall be subject to chapter 7.04A RCW, and RCW 15.49.081 through 15.49.111 will not apply to the arbitration. If the parties do not so agree, then the buyer may provide for mandatory arbitration by the arbitration committee under RCW 15.49.081 through 15.49.111. An award rendered in such mandatory arbitration shall not be binding upon the parties and any trial on any claim so arbitrated shall be de novo. (5) This section applies only to claims, or counterclaims, where the relief sought is, or includes, a monetary amount in excess of two thousand dollars. All claims for two thousand dollars or less shall be commenced in either district court or small claims court. [2005 c 433 § 36; 1989 c 354 § 77.] Application—Captions not law—Savings—Effective date—2005 c 433: See RCW 7.04A.290 through 7.04A.310 and 7.04A.900. Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. (2006 Ed.) Seeds 15.49.081 15.49.081 Arbitration—Filing fee—Rules. The director shall adopt rules, in conformance with chapter 34.05 RCW, providing for mandatory arbitration under this chapter and governing the proceedings of the arbitration committee. The decisions and proceedings of the arbitration committee shall not be subject to chapter 34.05 RCW. The department shall establish by rule a filing fee to cover the administrative costs of processing a complaint and submitting it to the arbitration committee. [1989 c 354 § 78.] Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. 15.49.091 15.49.091 Arbitration—Procedure. (1) To submit a claim to mandatory arbitration, the buyer shall make and file with the department a sworn complaint against the dealer alleging the damages sustained. The buyer shall send a copy of the complaint to the dealer by United States registered mail. The filing fee shall be submitted to the department with each complaint filed and may be recovered from the dealer or other seller upon recommendations of the arbitration committee. (2) Within twenty days after receipt of a copy of the complaint, the dealer shall file with the department, by United States registered mail, the answer to the complaint. Failure of a dealer to file a timely answer to the complaint shall be so documented for the record. (3) The director shall, upon receipt of the answer, refer the complaint and answer to the arbitration committee for investigation, findings, and recommendations. (4) Any dealer may request an investigation by the arbitration committee for any dispute involving seed which may not otherwise be before the arbitration committee. [1989 c 354 § 79.] Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. 15.49.101 15.49.101 Investigation of complaint by arbitration committee. (1) Upon referral of a complaint for investigation, the arbitration committee shall make a prompt and full investigation of the matters complained of and report its award to the director within sixty days of such referral or such later date as parties may determine or as may be required in subsection (3) of this section. (2) The report of the arbitration committee shall include, in addition to its award, recommendations as to costs, if any. (3) In the course of its investigation, the arbitration committee may examine the buyer and the dealer on all matters that the arbitration committee may consider relevant; may grow a representative sample of the seed referred to in the complaint if considered necessary; and may hold informal hearings at such time and place as the committee chairman may direct upon reasonable notice to all parties. If the committee decides to grow a representative sample of the seed, the sixty-day period identified in this section shall be extended an additional thirty days. (4) After the committee has made its award, the director shall promptly transmit the report by certified mail to all parties. [1989 c 354 § 80.] (2006 Ed.) 15.49.310 Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. 15.49.111 15.49.111 Arbitration committee—Creation—Generally. (1) The director shall create an arbitration committee composed of five members, including the director, or a department employee designated by the director, and four members appointed by the director. The director shall make appointments so that the committee is balanced and does not favor the interests of either buyers or dealers. The director also shall appoint four alternates to the committee. In making appointments the director, to the extent practical, shall seek the recommendations of each of the following: (a) The dean of the college of agriculture and home economics at Washington State University; (b) The chief officer of an organization in this state representing the interests of seed dealers; (c) The chief officer of an agriculture organization in this state as the director may determine to be appropriate; and (d) The president of an agricultural organization in this state representing persons who purchase seed. (2) Each alternate member shall serve only in the absence of the member for whom the person is an alternate. (3) The committee shall elect a chairman and a secretary from its membership. The chairman shall conduct meetings and deliberations of the committee and direct all of its other activities. The secretary shall keep accurate records of all such meetings and deliberations and perform such other duties for the commission as the chairman may direct. (4) The purpose of the committee is to conduct arbitration as provided in this chapter. The committee may be called into session by or at the direction of the director or upon direction of its chairman to consider matters referred to it by the director in accordance with this chapter. (5) The members of the committee shall receive no compensation for performing their duties but shall be reimbursed for travel expenses; expense reimbursement shall be borne equally by the parties to the arbitration. (6) For purposes of this chapter, a quorum of four members or their alternates is necessary to conduct an arbitration investigation or to make an award. If a quorum is present, a simple majority of members present shall be sufficient to make a decision. Any member disagreeing with the award may prepare a dissenting opinion and such opinion also will be included in the committee’s report. (7) The director shall make provisions for staff support, including legal advice, as the committee finds necessary. [1989 c 354 § 81.] Effective date—1989 c 354 §§ 70-81 and 84-86: See note following RCW 15.49.005. Severability—1989 c 354: See note following RCW 15.36.012. 15.49.310 15.49.310 Department to administer chapter—Rules and regulations—Guidance of federal seed act. The department shall administer, enforce, and carry out the provisions of this chapter and may adopt regulations necessary to carry out its purpose. The adoption of regulations shall be subject to a public hearing and all other applicable provisions of chapter 34.05 RCW (Administrative Procedure Act), as enacted and hereafter amended. [Title 15 RCW—page 77] 15.49.330 Title 15 RCW: Agriculture and Marketing The department when adopting regulations in respect to the seed industry shall consult with affected parties, such as growers, conditioners, and distributors of seed. Any final regulation adopted shall be based upon the requirements and conditions of the industry and shall be for the purpose of promoting the well-being of the purchasers and users of seed as well as the members of the seed industry. When seed labeling, terms, methods of sampling and analysis, and tolerances are not specifically stated in this chapter or otherwise designated by the department, the department shall, in order to promote uniformity, be guided by officially recognized associations, or regulations under The Federal Seed Act. [1981 c 297 § 9; 1969 c 63 § 31.] Severability—1981 c 297: See note following RCW 15.36.201. 15.49.330 Screenings—Removal required—Disposition. (1) All screenings, removed in the cleaning or conditioning of seeds, which contain prohibited or restricted noxious weed seeds shall be removed from the seed conditioning plant only under conditions that will prevent weed seeds from being dispersed into the environment. (2) The director may by regulation adopt requirements for moving, conditioning, and/or disposing of screenings. [1981 c 297 § 11; 1979 c 154 § 1; 1969 c 63 § 33.] 15.49.330 Severability—1981 c 297: See note following RCW 15.36.201. Severability—1979 c 154: "If any provision of this 1979 act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1979 c 154 § 27.] 15.49.350 Permit to condition certified seed. Upon application for a permit to condition certified seed, the department shall inspect the seed conditioning facilities of the applicant to determine that genetic purity and identity of seed conditioned can be maintained. Upon approval, the department shall issue a seed conditioning permit, for each regular place of business, which shall be conspicuously displayed in the office of such business. The permit shall remain in effect as long as the facilities comply with the department’s requirements for such permit. [1981 c 297 § 13; 1969 c 63 § 35.] 15.49.350 Severability—1981 c 297: See note following RCW 15.36.201. 15.49.360 Records—Maintenance—Availability of records and samples for inspection. The seed labeling registrant whose name appears on the label shall: (1) Keep, for a period of two years after the date of final disposition, complete records of each lot of seed distributed: PROVIDED, That the file sample of each lot of seed distributed need be kept for only one year. (2) Make available, during regular working hours, such records and samples for inspection by the department. [1969 c 63 § 36.] 15.49.360 15.49.370 Department’s enforcement authority. The department shall have the authority to: (1) Sample, inspect, make analysis of, and test seeds distributed within this state at such time and place and to such extent as it may deem necessary to determine whether such seeds are in compliance with the provisions of this chapter. The methods of sampling and analysis shall be those adopted 15.49.370 [Title 15 RCW—page 78] by the department from officially recognized sources. The department, in determining for administrative purposes whether seeds are in violation of this chapter, shall be guided by records, and by the official sample obtained and analyzed as provided for in this section. Analysis of an official sample, by the department, shall be accepted as prima facie evidence by any court of competent jurisdiction. (2) Enter any dealer’s or seed labeling registrant’s premises at all reasonable times in order to have access to seeds and to records. This includes the determination of the weight of packages and bulk shipments. (3) Adopt and enforce regulations for certifying seeds, and shall fix and collect fees for such service. The director of the department may appoint persons as agents for the purpose of assisting in the certification of seeds. (4) Adopt and enforce regulations for inspecting, grading, and certifying growing crops of seeds; inspect, grade, and issue certificates upon request; and fix and collect fees for such services. (5) Make purity, germination and other tests of seed on request, and fix and collect charges for the tests made. (6) Establish and maintain seed testing facilities, employ qualified persons, establish by rule special assessments as needed, and incur such expenses as may be necessary to carry out the provisions of this chapter. (7) Adopt a list of the prohibited and restricted noxious weed seeds. (8) Publish reports of official seed inspections, seed certifications, laboratory statistics, verified violations of this chapter, and other seed branch activities which do not reveal confidential information regarding individual company operations or production. (9) Deny, suspend, or revoke licenses, permits and certificates provided for in this chapter subsequent to a hearing, subject to the provisions of chapter 34.05 RCW (Administrative Procedure Act) as enacted or hereafter amended, in any case in which the department finds that there has been a failure or refusal to comply with the provisions of this chapter or regulations adopted hereunder. [1981 c 297 § 14; 1969 c 63 § 37.] Severability—1981 c 297: See note following RCW 15.36.201. 15.49.380 15.49.380 Dealer’s license to distribute seeds. (1) No person shall distribute seeds without having obtained a dealer’s license for each regular place of business: PROVIDED, That no license shall be required of a person who distributes seeds only in sealed packages of eight ounces or less, packed by a seed labeling registrant and bearing the name and address of the registrant: PROVIDED FURTHER, That a license shall not be required of any grower selling seeds of his own production exclusively. Such seed sold by such grower must be properly labeled as provided in this chapter. Each dealer’s license shall cost twenty-five dollars, shall be issued through the master license system, shall bear the date of issue, shall expire on the master license expiration date and shall be prominently displayed in each place of business. (2) Persons custom conditioning and/or custom treating seeds for others for remuneration shall be considered dealers for the purpose of this chapter. (2006 Ed.) Seeds (3) Application for a license to distribute seed shall be through the master license system and shall include the name and address of the person applying for the license, the name of a person domiciled in this state authorized to receive and accept service or legal notices of all kinds, and any other reasonable and practical information prescribed by the department necessary to carry out the purposes and provisions of this chapter. [1982 c 182 § 24; 1981 c 297 § 15; 1969 c 63 § 38.] Severability—1982 c 182: See RCW 19.02.901. Severability—1981 c 297: See note following RCW 15.36.201. Master license system existing licenses or permits registered under, when: RCW 19.02.810. to include additional licenses: RCW 19.02.110. 15.49.390 15.49.390 Renewal of dealer’s license. If an application for renewal of the dealer’s license provided for in RCW 15.49.380, is not filed prior to the master license expiration date, the master license delinquency fee shall be assessed under chapter 19.02 RCW and shall be paid by the applicant before the renewal license shall be issued. [1982 c 182 § 25; 1969 c 63 § 39.] Severability—1982 c 182: See RCW 19.02.901. Master license delinquency fee—Rate—Disposition: RCW 19.02.085. expiration date: RCW 19.02.090. system—Existing licenses or permits registered under, when: RCW 19.02.810. 15.49.400 15.49.400 Seed labeling permit. (1) No person shall label seed for distribution in this state without having obtained a seed labeling permit. The seed labeling registrant shall be responsible for the label and the seed contents. The application for a seed labeling permit shall be submitted to the department on forms furnished by the department, and shall be accompanied by a fee of twenty dollars per applicant. The application form shall include the name and address of the applicant, a label or label facsimile, and any other reasonable and practical information prescribed by the department. Upon approval, the department shall issue said permit to the applicant. All permits expire on January 31st of each year. (2) If an application for renewal of the seed labeling permit provided for in this section is not filed prior to February 1st of any one year, an additional fee of ten dollars shall be assessed and added to the original fee and shall be paid by the applicant before the license shall be issued: PROVIDED, That such additional fee shall not apply if the applicant furnishes an affidavit that he has not labeled seed for distribution in this state subsequent to the expiration of his prior permit. [1969 c 63 § 40.] 15.49.410 15.49.410 "Stop sale, use or removal orders"—Seizure—Condemnation. (1) When the department has determined or has probable cause to suspect that any lot of seed or screenings is mislabeled and/or is being distributed in violation of this chapter or regulations adopted hereunder, it may issue and enforce a written or printed "stop sale, use or removal order" warning the distributor not to dispose of the lot of seed or screenings in any manner until written permission is given by the department or a court of competent jurisdiction. The department shall release the lot of seed or (2006 Ed.) 15.49.480 screenings so withdrawn when said provisions and regulations have been complied with. If compliance is not obtained, the department may bring proceedings for condemnation. (2) Any lot of seed or screenings not in compliance with the provisions of this chapter shall be subject to seizure on complaint of the department to a court of competent jurisdiction in the locality in which the seed or screenings are located. In the event the court finds the seed or screenings to be in violation of this chapter and orders the condemnation of said seed or screenings, such lot of seed or screenings shall be denatured, conditioned, destroyed, relabeled, or otherwise disposed of in compliance with the laws of this state: PROVIDED, That in no instance shall the court order such disposition of said seed or screenings without first having given the claimant an opportunity to apply to the court, within twenty days, for the release of said seed or screenings or for permission to condition or relabel it to bring it into compliance with this chapter. [1981 c 297 § 16; 1969 c 63 § 41.] Severability—1981 c 297: See note following RCW 15.36.201. 15.49.420 15.49.420 Damages precluded. No state court shall allow the recovery of damages from administrative action taken or for stop sales or seizures under RCW 15.49.410 if the court finds that there was probable cause for such action. [1969 c 63 § 42.] 15.49.460 15.49.460 Injunctions. The department is hereby authorized to apply for, and the court authorized to grant, a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this chapter or any regulations promulgated under this chapter, notwithstanding the existence of any other remedy at law. Any such injunction shall be issued without bond. [1969 c 63 § 46.] 15.49.470 15.49.470 Moneys, disposition—Fees, fines, penalties and forfeitures of district courts, remittance. All moneys collected under the provisions of this chapter shall be paid to the director and deposited in an account within the agricultural local fund. Such deposits shall be used only in the administration and enforcement of this chapter. Any residual balance remaining in the seed fund on June 9, 1988, shall be transferred to that account within the agricultural local fund. All fees, fines, forfeitures and penalties collected or assessed by a district court because of the violation of a state law shall be remitted as provided in chapter 3.62 RCW as now exists or is later amended. [1988 c 254 § 2; 1987 c 202 § 176; 1975 1st ex.s. c 257 § 2; 1969 ex.s. c 199 § 13; 1969 c 63 § 47.] Intent—1987 c 202: See note following RCW 2.04.190. Effective date—1975 1st ex.s. c 257: See note following RCW 15.13.470. 15.49.480 15.49.480 Cooperation and agreements with other agencies. The department may cooperate with and enter into agreements with other governmental agencies, whether of this state, other states, or agencies of the federal government, and with private associations, in order to carry out the purposes and provisions of this chapter. [1969 c 63 § 48.] [Title 15 RCW—page 79] 15.49.900 Title 15 RCW: Agriculture and Marketing 15.49.900 15.49.900 Existing liabilities not affected. The enactment of this chapter shall not have the effect of terminating or in any way modifying any liability, civil or criminal, which shall already be in existence on July 1, 1969. [1969 c 63 § 49.] 15.49.920 15.49.920 Effective date—1969 c 63. The effective date of this 1969 act is July 1, 1969. [1969 c 63 § 51.] 15.49.930 15.49.930 Continuation of rules adopted pursuant to repealed sections—Adoption, amendment or repeal. The repeal of sections 15.48.010 through 15.48.260 and 15.48.900, chapter 11, Laws of 1961 and RCW 15.48.010 through 15.48.260 and 15.48.900 and the enactment of this 1969 act shall not be deemed to have repealed any regulations adopted under the provisions of sections 15.48.010 through 15.48.260 and 15.48.900, chapter 11, Laws of 1961 and RCW 15.48.010 through 15.48.260 and 15.48.900, and in effect immediately prior to such repeal and not inconsistent with the provisions of this 1969 act. For the purpose of this 1969 act, it shall be deemed that such rules have been adopted under the provisions of this 1969 act pursuant to chapter 34.05 RCW, as enacted or hereafter amended concerning the adoption of rules. Any amendment or repeal of such rules after July 1, 1969, shall be subject to the provisions of chapter 34.05 RCW (Administrative Procedure Act) as enacted or hereafter amended, concerning the adoption of rules. [1969 c 63 § 52.] 15.49.940 15.49.940 Short title. RCW 15.49.020 through 15.49.950 shall be known as the "Washington State Seed Act." [1969 c 63 § 53.] 15.49.950 15.49.950 Severability—1969 c 63. If any section or provision of this 1969 act shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the act as a whole or any section, provision, or part thereof, not adjudged invalid or unconstitutional. [1969 c 63 § 55.] Chapter 15.53 Chapter 15.53 RCW COMMERCIAL FEED Sections 15.53.901 15.53.9012 15.53.9013 15.53.9014 15.53.9015 15.53.9016 15.53.9018 15.53.902 15.53.9022 15.53.9024 15.53.9038 15.53.904 Definitions. Administration and administrative rules. Commercial feed license—Required—Exemptions—Application—Fees—Renewal—Denial or cancellation for noncompliance—Violation—Penalty—Rules. Registration of pet food and specialty pet food—Exemption—Application—Renewal—Fees—Denial or cancellation for noncompliance—Violation—Penalty. Responsible buyer status—Application—Removal—List. Labeling—Required information—Recordkeeping—Rules. Semiannual report required—Inspection fees—Reports— Late fees—Confidentiality. Adulteration—Definition—Unlawful to distribute. Misbranding—Definition—Unlawful to distribute. Inspections of facilities, vehicles, equipment, etc.—Verification of records and procedures—Notice—Official samples—Warrants authorized. Department’s remedies for noncompliance—"Withdrawal from distribution" order—Condemnation—Seizure. Department’s remedies for noncompliance—Classification of crimes—Prosecutions—Injunctions. [Title 15 RCW—page 80] 15.53.9042 15.53.9044 15.53.9046 15.53.9048 15.53.9054 15.53.9056 Department to publish distribution information, production data, and analyses comparison. Disposition of moneys. Cooperation with other entities. Chapter is cumulative. Severability—1965 ex.s. c 31. Short title. 15.53.901 Definitions. The definitions set forth in this section apply throughout this chapter. (1) "Brand name" means a word, name, symbol, or device, or any combination thereof, identifying the commercial feed of a distributor or registrant and distinguishing it from that of others. (2) "Commercial feed" means all materials or combination of materials that are distributed or intended for distribution for use as feed or for mixing in feed, unless such materials are specifically exempted. Unmixed whole seeds and physically altered entire unmixed seeds, when such whole seeds or physically altered seeds are not chemically changed or not adulterated within the meaning of RCW 15.53.902, are exempt. The department by rule may exempt from this definition, or from specific provisions of this chapter, commodities such as hay, straw, stover, silage, cobs, husks, hulls, and individual chemical compounds or substances when such commodities, compounds, or substances are not intermixed with other materials, and are not adulterated within the meaning of RCW 15.53.902. (3) "Contract feeder" means a person who is an independent contractor and feeds commercial feed to animals pursuant to a contract whereby such commercial feed is supplied, furnished, or otherwise provided to such person and whereby such person’s remuneration is determined all or in part by feed consumption, mortality, profits, or amount or quality of product. (4) "Customer-formula feed" means commercial feed that consists of a mixture of commercial feeds or feed ingredients, or both, each batch of which is manufactured according to the instructions of the final purchaser. (5) "Department" means the department of agriculture of the state of Washington or its duly authorized representative. (6) "Director" means the director of the department or a duly authorized representative. (7) "Distribute" means to offer for sale, sell, exchange or barter, commercial feed; or to supply, furnish, or otherwise provide commercial feed to a contract feeder. (8) "Distributor" means a person who distributes. (9) "Drug" means an article intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in animals other than people and articles, other than feed intended to affect the structure or a function of the animal body. (10) "Facility" means any place where a commercial feed is manufactured, repackaged, sold, transloaded, or stored for later distribution. (11) "Feed ingredient" means each of the constituent materials making up a commercial feed. (12) "Final purchaser" means a person who purchases commercial feed to feed to animals in his or her care. (13) "Initial distributor" means a person who first distributes a commercial feed in or into this state. (14) "Label" means a display of written, printed, or graphic matter upon or affixed to the container in which a 15.53.901 (2006 Ed.) Commercial Feed commercial feed is distributed, or on the invoice or delivery slip with which a commercial feed is distributed. (15) "Labeling" means all labels and other written, printed, or graphic matter: (a) Upon a commercial feed or any of its containers or wrappers; or (b) accompanying such commercial feed. (16) "Licensee" means a person who holds a commercial feed license as prescribed in this chapter. (17) "Manufacture" means to grind, mix or blend, or further process a commercial feed for distribution. (18) "Medicated feed" means a commercial feed containing a drug or other medication. (19) "Mineral feed" means a commercial feed intended to supply primarily mineral elements or inorganic nutrients. (20) "Official sample" means a sample of feed taken by the department, obtained and analyzed as provided in RCW 15.53.9024 (3), (5), or (6). (21) "Percent" or "percentage" means percentage by weight. (22) "Person" means an individual, firm, partnership, corporation, or association. (23) "Pet" means a domesticated animal normally maintained in or near the household of the owner of the pet. (24) "Pet food" means a commercial feed prepared and distributed for consumption by pets. (25) "Product name" means the name of the commercial feed that identifies it as to kind, class, or specific use. (26) "Responsible buyer" means a licensee who is not the final purchaser of a commercial feed and has agreed to be responsible for reporting tonnage and paying inspection fees for all commercial feeds they distribute. (27) "Retail" means to distribute to the final purchaser. (28) "Sell" or "sale" includes exchange. (29) "Specialty pet" means a domesticated animal pet normally maintained in a cage or tank, such as, but not limited to, gerbils, hamsters, canaries, psittacine birds, mynahs, finches, tropical fish, goldfish, snakes, and turtles. (30) "Specialty pet food" means a commercial feed prepared and distributed for consumption by specialty pets. (31) "Ton" means a net weight of two thousand pounds avoirdupois. (32) "Transload" means to transfer commercial feed from one carrier to another carrier without processing or blending the ingredients, for example, transferred from rail car to trucks or shipping containers. (33) "Quantity statement" means the net weight (mass), net volume (liquid or dry), or count. [2005 c 18 § 1; 1995 c 374 § 33; 1982 c 177 § 1; 1975 1st ex.s. c 257 § 3; 1965 ex.s. c 31 § 2. Prior acts on this subject: 1961 c 11 §§ 15.53.010 through 15.53.900; 1953 c 80 §§ 1-35.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. Effective date—1975 1st ex.s. c 257: See note following RCW 15.13.470. 15.53.9012 15.53.9012 Administration and administrative rules. (1) The department shall administer, enforce and carry out the provisions of this chapter and may adopt rules necessary to carry out its purpose. In adopting such rules, the director shall consider (a) the official definitions of feed ingredients and official feed terms adopted by the association of Ameri(2006 Ed.) 15.53.9013 can feed control officials and published in the official publication of that organization; and (b) any regulation adopted pursuant to the authority of the federal food, drug, and cosmetic act (21 U.S.C. Sec. 301, et seq.), if the department would have the authority under this chapter to adopt the regulations. The adoption of rules shall be subject to a public hearing and all other applicable provisions of chapter 34.05 RCW (Administrative Procedure Act). (2) The director when adopting rules in respect to the feed industry shall consult with affected parties, such as manufacturers and distributors of commercial feed and any final rule adopted shall be designed to promote orderly marketing and shall be reasonable and necessary and based upon the requirements and condition of the industry and shall be for the purpose of promoting the well-being of the members of the feed industry as well as the well-being of the purchasers and users of feed and for the general welfare of the people of the state. [1995 c 374 § 34; 1965 ex.s. c 31 § 3.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. 15.53.9013 15.53.9013 Commercial feed license—Required— Exemptions—Application—Fees—Renewal—Denial or cancellation for noncompliance—Violation—Penalty— Rules. (1) Except as provided under subsection (2) of this section, any person: (a) Who manufactures a commercial feed in this state; (b) who distributes a commercial feed in or into this state; or (c) whose name appears on a commercial feed label as guarantor, must first obtain from the department a commercial feed license for each facility that distributes in or into this state. (2) The following persons are exempt from the requirement of a commercial feed license: (a) Any person who makes only retail sales of commercial feed which bears labeling or other approved indication that the commercial feed is from a licensed manufacturer, guarantor, or distributor who has assumed full responsibility for reporting and paying the inspection fee due under chapter 18, Laws of 2005; (b) Any person distributing only pet food or specialty pet food; (c) Any person distributing food processing byproducts from fruit, vegetable, or potato processing plants, freezing or dehydrating facilities, or juice or jelly preserving plants, except that the distribution of byproducts or products of sugar refineries are not exempt from the requirement of a commercial feed license; and (d) Any person distributing bona fide experimental feed on which accurate records and experimental programs are maintained. (3) Application for a commercial feed license must be made annually on forms provided by the department and must be accompanied by a fee of fifty dollars. (4) The commercial feed license expires on June 30th of each year. The application and fee for a commercial feed license renewal is due July 1st of each year. If a completed application and appropriate fee is not received by July 1st, a late renewal fee of fifty dollars per facility will be assessed in addition to the license fee and must be paid by the applicant before the renewal license is issued. A late renewal fee will not apply if the applicant furnishes an affidavit that he or she [Title 15 RCW—page 81] 15.53.9014 Title 15 RCW: Agriculture and Marketing has not distributed a commercial feed subsequent to the expiration of his or her prior license. The assessment of the late renewal fee will not prevent the department from taking other action as provided for in this chapter. (5) An application for a commercial feed license must include: (a) The name and mailing address of the applicant; (b) The physical address of the facility; (c) The name, contact information, and signature of the applicant; and (d) Other information required by the department by rule. (6) The department may deny a license application if the applicant is not in compliance with this chapter or applicable rules, and may cancel a license if the licensee is not in compliance with this chapter or applicable rules. Prior to denial or cancellation of a license, the department shall provide notice and an opportunity to correct deficiencies. If an applicant or licensee fails to correct the deficiency, the department shall deny or cancel the license. If aggrieved by the decision, the applicant or licensee may request a hearing as authorized under chapter 34.05 RCW. (7) Notwithstanding the payment of a late renewal fee, it is a violation to distribute a commercial feed by an unlicensed person, and nothing in this chapter prevents the department from imposing a penalty authorized by this chapter for the violation. (8) The department may under conditions specified by rule, request submission of labels and labeling in order to determine compliance with the provisions of this chapter. [2005 c 18 § 2; 1995 c 374 § 35.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. 15.53.9014 15.53.9014 Registration of pet food and specialty pet food—Exemption—Application—Renewal—Fees— Denial or cancellation for noncompliance—Violation— Penalty. (1) A person may not distribute in this state a pet food or specialty pet food that has not been registered by the department. (2) All applications for registration must be submitted on forms provided by the department and must include: (a) The name and mailing address of the applicant; (b) The physical address of the applicant; (c) The name, contact information, and signature of the applicant; (d) Indication of the package sizes distributed for each product; and (e) Other information required by the department by rule. (3) An application for registration must be accompanied by a label and other applicable printed matter describing the product and the following fees: (a) Twenty-two dollars per product for those products distributed only in packages of ten pounds or more; (b) Ninety dollars per product for those products distributed in packages of less than ten pounds; or (c) Ninety dollars per product for those products distributed both in packages of less than ten pounds and packages of ten pounds or more. [Title 15 RCW—page 82] (4) Registrations are issued by the department for a twoyear period beginning on July 1st of a given year and ending twenty-four months later on July 1st, except that registrations issued to a registrant who applies to register an additional product during the last twelve months of the registrant’s period expire on the next July 1st. (5) A distributor is not required to register a pet food or specialty pet food that is already registered under this chapter, as long as it is distributed with the original label. (6) Changes in the guarantee of either chemical or ingredient composition of a pet food or specialty pet food registered under this chapter may be permitted if there is satisfactory evidence that such changes would not result in a lowering of the feed value of the product for the purpose for which it was designed. (7) The department may deny registration of any pet food or speciality pet food not in compliance with this chapter and its rules. The department may cancel any registration subsequently found to be not in compliance with this chapter and its rules. Prior to denial or cancellation of a registration, the applicant or registrant of an existing registered pet food or specialty pet food must be notified of the reasons and given an opportunity to amend the application to comply. If the applicant does not make the necessary corrections, the department will deny or cancel the registration. The applicant or registrant of an existing registered pet food or specialty pet food may request a hearing as provided for in chapter 34.05 RCW. (8) Application for renewal of registration is due July 1st of each registration period. If an application for renewal is not received by the department by the due date, a late fee of twenty dollars per product is added to the original fee and must be paid by the applicant before the renewal registration may be issued. A late fee will not apply if the applicant furnishes an affidavit that he or she has not distributed this feed subsequent to the expiration of the prior registration. Payment of a late fee does not prevent the department from imposing a penalty authorized by this chapter for the violation. [2005 c 18 § 4; (2005 c 18 § 3 expired July 1, 2006); 1995 c 374 § 36; 1993 sp.s. c 19 § 2; 1982 c 177 § 2; 1975 1st ex.s. c 257 § 4; 1965 ex.s. c 31 § 4.] Effective date—2005 c 18 § 4: "Section 4 of this act takes effect July 1, 2006." [2005 c 18 § 12.] Effective date—2005 c 18 § 3: "Section 3 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2005." [2005 c 18 § 11.] Expiration date—2005 c 18 § 3: "Section 3 of this act expires July 1, 2006." [2005 c 18 § 13.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. Effective date—1975 1st ex.s. c 257: See note following RCW 15.13.470. 15.53.9015 15.53.9015 Responsible buyer status—Application— Removal—List. (1) To become a responsible buyer, a commercial feed licensee must apply for responsible buyer status on forms provided by the department. The application must include: (a) The name and mailing address of the licensee; (b) The physical address of the licensee; (2006 Ed.) Commercial Feed (c) The name, contact information, and signature of the applicant; and (d) Other information required by the department by rule. (2) To be removed from responsible buyer status, the licensee must notify the department in writing. The licensee is not released from responsible buyer status until the department notifies the licensee in writing of such release. (3) The department will maintain a current list of all responsible buyers and make the list available on request. [2005 c 18 § 5.] 15.53.9016 15.53.9016 Labeling—Required information— Recordkeeping—Rules. (1) Any commercial feed, except a customer-formula feed, distributed in this state must be accompanied by a legible label bearing the following information: (a) The product name and the brand name, if any, under which the commercial feed is distributed. (b) The guaranteed analysis stated in such terms as the department by rule determines is required to advise the user of the composition of the feed or to support claims made in the labeling. In all cases the substances or elements must be determinable by laboratory methods such as the methods published by the association of official analytical chemists. (c) The common or usual name of each ingredient used in the manufacture of the commercial feed, except as the department may, by regulation, permit the use of a collective term for a group of ingredients all of which perform the same function. An ingredient statement is not required for single standardized ingredient feeds which are officially defined. (d) The name and principal mailing address of the manufacturer or the person responsible for distributing the commercial feed. (e) Adequate directions for use for all commercial feeds containing drugs and for all such other commercial feeds as the department may require by rule as necessary for their safe and effective use. (f) Those precautionary statements the department by rule determines are necessary for the safe and effective use of the commercial feed. (g) The net weight as required under chapter 19.94 RCW. (2) When a commercial feed, except a customer-formula feed, is distributed in this state in bags or other containers, the label must be placed on or affixed to the container; when a commercial feed, except a customer-formula feed, is distributed in bulk the label must accompany delivery and be furnished to the purchaser at time of delivery. (3) A customer-formula feed must be labeled by shipping document. The shipping document, which is to accompany delivery and be supplied to the purchaser at the time of delivery, must bear the following information: (a) Name and address of the manufacturer; (b) Name and address of the purchaser; (c) Date of delivery; (d) Product name and the net weight as required under chapter 19.94 RCW; (e) Adequate directions for use for all customer-formula feeds containing drugs and for such other feeds as the depart(2006 Ed.) 15.53.9018 ment may require by rule as necessary for their safe and effective use; (f) The directions for use and precautionary statements as required by subsection (1)(e) and (f) of this section; and (g) If a drug containing product is used: (i) The purpose of the medication (claim statement); (ii) The established name of each active drug ingredient and the level of each drug used in the final mixture expressed in accordance with rules established by the department. (4) The product name and quantity statement of each commercial feed and each other ingredient used in the customer formula feed must be on file at the plant producing the product. These records must be kept on file for one year after the last sale. This information must be made available to the purchaser, the dealer making the sale, and the department on request. [2005 c 18 § 6; 1995 c 374 § 37; 1965 ex.s. c 31 § 5.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. 15.53.9018 Semiannual report required—Inspection fees—Reports—Late fees—Confidentiality. (1) Every registrant or licensee must file a semiannual report on forms provided by the department setting forth the number of tons of commercial feed distributed in or into this state. The report must be filed regardless of the amount of feed distributed or inspection fees owed. The report must include: (a) The name and mailing address of the registrant or licensee; (b) The physical address of the registrant or licensee; (c) The name, contact information, and signature of the person filing the report; (d) The total number of tons distributed in or into this state; (e) The total number of tons on which the registrant or licensee is paying; (f) If the registrant or licensee is not paying inspection fees on all commercial feed he or she distributed in or into this state, information regarding the registrants or licensees that are responsible for paying the inspection fees and the number of tons involved; and (g) Other information required by the department by rule. (2) Except as provided in subsections (3) through (5) of this section, each initial distributor or responsible buyer must pay to the department an inspection fee on all commercial feed distributed by such person during the reporting period. The inspection fee must accompany the report required in subsection (1) of this section. The inspection fee shall be not less than four cents nor more than twelve cents per ton as prescribed by the department by rule. These fees shall be used for enforcement and administration of this chapter and its rules. (3) The initial distributor is not required to pay an inspection fee for commercial feed he or she distributed to a responsible buyer. (4) In a situation where a responsible buyer is distributing to another responsible buyer, the inspection fee must be paid by the last responsible buyer to distribute the commercial feed. (5) The initial distributor or responsible buyer is not required to pay an inspection fee for: (a) Pet food and spe15.53.9018 [Title 15 RCW—page 83] 15.53.902 Title 15 RCW: Agriculture and Marketing cialty pet food distributed in packages weighing less than ten pounds; (b) distribution of bona fide experimental feeds on which accurate records and experimental programs are maintained; (c) commercial feed distributed to points outside this state; and (d) food processing byproducts from fruit, vegetable, or potato processing plants, freezing or dehydrating facilities, or juice or jelly preserving plants. (6) Tonnage will be reported and inspection fees will be paid on (a) byproducts or products of sugar refineries; and (b) materials used in the preparation of pet foods and specialty pet food. (7)(a) Each person made responsible by this chapter for filing a report or paying inspection fees must do so according to the following schedule: (i) For the period January 1st through June 30th of each year, the report and inspection fees are due on July 31st of that year; and (ii) For the period July 1st through December 31st of each year, the report and inspection fees are due on January 31st of the following year. (b) If a complete report is not received by the due date or the appropriate inspection fees are not received by the due date, the person responsible for filing the report or paying the inspection fee must pay a late fee equal to fifteen percent of the inspection fee owed or fifty dollars, whichever is greater. (c) The department may cancel the registration of a person’s commercial feed or may cancel a person’s commercial feed license if that person fails to pay the late fee. The applicant or licensee may request a hearing as authorized under chapter 34.05 RCW. (8) If inspection fees are owed, the minimum inspection fee is twelve dollars and fifty cents. (9) For the purpose of verifying the accuracy of reports and payment of appropriate inspection fees, the department may examine, at reasonable times, a registrant’s or licensee’s distribution records and may require each registrant or licensee to maintain records or file additional reports. These records must be maintained in usable condition by the registrant or licensee for a period of three years unless by rule this retention period is extended and must be submitted to the department upon request. (10) The report required by subsection (1) of this section shall not be a public record, and any information given in such report which would reveal the business operation of the person making the report is exempt from public disclosure under chapter 42.56 RCW, and information obtained by the department from other governmental agencies or other sources that is used to verify information received in the report is exempt from public disclosure under chapter 42.56 RCW. However, this subsection does not prevent the use of information concerning the business operation of a person if any action, suit, or proceeding instituted under the authority of this chapter, including any civil action for collection of unpaid inspection fees, which action is hereby authorized and which shall be as an action at law in the name of the director of the department. (11) Any commercial feed obtained by a consumer or contract feeder outside the jurisdiction of this state and brought into this state for use is subject to all the provisions of this chapter, including inspection fees. [2006 c 209 § 2; 2005 c 18 § 7; 1995 c 374 § 38; 1982 c 177 § 3; 1981 c 297 § [Title 15 RCW—page 84] 17; 1979 c 91 § 1; 1975 1st ex.s. c 257 § 5; 1967 c 240 § 32; 1965 ex.s. c 31 § 6.] Effective date—2006 c 209: See RCW 42.56.903. Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. Effective date—1981 c 297 § 17: "Section 17 of this act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect June 30, 1981." [1981 c 297 § 44.] Severability—1981 c 297: See note following RCW 15.36.201. Effective date—1979 c 91: "This act shall take effect on January 1, 1980." [1979 c 91 § 2.] Effective date—1975 1st ex.s. c 257: See note following RCW 15.13.470. Severability—1967 c 240: See note following RCW 43.23.010. 15.53.902 15.53.902 Adulteration—Definition—Unlawful to distribute. It is unlawful for any person to distribute an adulterated feed. A commercial feed is deemed to be adulterated: (1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance, such commercial feed shall not be considered adulterated under this subsection if the quantity of such substance in such commercial feed does not ordinarily render it injurious to health; or (2) If it bears or contains any added poisonous, added deleterious, or added nonnutritive substance which is unsafe within the meaning of section 406 of the federal food, drug, and cosmetic act (other than one which is (a) a pesticide chemical in or on a raw agricultural commodity; or (b) a food additive); or (3) If it is, or it bears, or contains any food additive which is unsafe within the meaning of section 409 of the federal food, drug, and cosmetic act (21 U.S.C. Sec. 348); or (4) If it is ruminant feed and is, bears, or contains any animal protein prohibited in ruminant feed that is unsafe within the meaning of federal regulations promulgated under section 409 of the federal food, drug, and cosmetic act (21 U.S.C. Sec. 348); or (5) If it is a raw agricultural commodity and it bears or contains a pesticide chemical which is unsafe within the meaning of section 408(a) of the federal food, drug, and cosmetic act: PROVIDED, That where a pesticide chemical has been used in or on a raw agricultural commodity in conformity with an exemption granted or a tolerance prescribed under section 408 of the federal food, drug, and cosmetic act and such raw agricultural commodity has been subjected to processing such as canning, cooking, freezing, dehydrating, or milling, the residue of such pesticide chemical remaining in or on such processed feed shall not be deemed unsafe if such residue in or on the raw agricultural commodity has been removed to the extent possible in good manufacturing practice and the concentration of such residue in the processed feed is not greater than the tolerance prescribed for the raw agricultural commodity unless the feeding of such processed feed will result or is likely to result in a pesticide residue in the edible product of the animal, which is unsafe within the meaning of section 408(a) of the federal food, drug, and cosmetic act; or (2006 Ed.) Commercial Feed (6) If it is, or it bears or contains any color additive which is unsafe within the meaning of section 706 of the federal food, drug, and cosmetic act; or (7) If it is, or it bears or contains any new animal drug that is unsafe within the meaning of section 512 of the federal food, drug, and cosmetic act (21 U.S.C. Sec. 360b); or (8) If any valuable constituent has been in whole or in part omitted or abstracted therefrom or any less valuable substance substituted therefor; or (9) If its composition or quality falls below or differs from that which it is purported or is represented to possess by its labeling; or (10) If it contains a drug and the methods used in or the facilities or controls used for its manufacture, processing, or packaging do not conform to current good manufacturing practice rules adopted by the department to assure that the drug meets the requirements of this chapter as to safety and has the identity and strength and meets the quality and purity characteristics that it purports or is represented to possess. In adopting such rules, the department shall adopt the current good manufacturing practice regulations for type A medicated articles and type B and type C medicated feeds established under authority of the federal food, drug, and cosmetic act, unless the department determines that they are not appropriate to the conditions that exist in this state; or (11) If it contains viable, prohibited (primary) noxious weed seeds in excess of one per pound, or if it contains viable, restricted (secondary) noxious weed seeds in excess of twenty-five per pound. The primary and secondary noxious weed seeds shall be those as named pursuant to the provisions of chapter 15.49 RCW and rules adopted thereunder. [2005 c 40 § 1; 1995 c 374 § 39; 1982 c 177 § 4; 1979 c 154 § 2; 1965 ex.s. c 31 § 7.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. Severability—1979 c 154: See note following RCW 15.49.330. 15.53.9022 Misbranding—Definition—Unlawful to distribute. It shall be unlawful for any person to distribute misbranded feed. A commercial feed shall be deemed to be misbranded: (1) If its labeling is false or misleading in any particular; (2) If it is distributed under the name of another commercial feed; (3) If it is not labeled as required in RCW 15.53.9016 and in rules prescribed under this chapter; (4) If it purports to be or is represented as a commercial feed, or if it purports to contain or is represented as containing a commercial feed or feed ingredient, unless such commercial feed or feed ingredient conforms to the definition of identity, if any, prescribed by rule of the department. In the adopting of such rules the department may consider commonly accepted definitions such as those issued by nationally recognized associations or groups of feed control officials; (5) If any word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use; 15.53.9022 (2006 Ed.) 15.53.9024 (6) If its composition or quality falls below or differs from that which it is purported or is represented to possess by its labeling. [1995 c 374 § 40; 1965 ex.s. c 31 § 8.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. 15.53.9024 15.53.9024 Inspections of facilities, vehicles, equipment, etc.—Verification of records and procedures— Notice—Official samples—Warrants authorized. (1) For the purpose of enforcement of this chapter, and in order to determine whether its provisions have been complied with, including whether an operation is subject to such provisions, inspectors duly designated by the director, upon presenting appropriate credentials, and a written notice to the owner, operator, or agent in charge, are authorized (a) to enter, during normal business hours, any facility within the state in which commercial feeds are manufactured, transloaded, processed, packed, distributed, or held for distribution, or to enter a vehicle being used to transport or hold such feeds; and (b) to inspect at reasonable times and within reasonable limits and in a reasonable manner, the facilities, or vehicles and all pertinent equipment, finished and unfinished materials, containers, labeling, and records. The inspection may include the verification of only such records, and production and control procedures as may be necessary to determine compliance with this chapter and its rules. (2) A separate notice shall be given for each such inspection, but a notice is not required for each entry made during the period covered by the inspection. Each such inspection shall be commenced and completed with reasonable promptness. Upon completion of the inspection, the person in charge of the facility or vehicle shall be so notified. (3) If the inspector or employee making such inspection of a facility or vehicle has obtained a sample in the course of the inspection, upon completion of the inspection and prior to leaving the premises, he or she shall give to the owner, operator, or agent in charge, a receipt describing the samples obtained. (4) If the owner of a facility or vehicle described in subsection (1) of this section, or his or her agent, refuses to admit the director or his or her agent to inspect in accordance with subsections (1) and (2) of this section, the director or his or her agent is authorized to obtain from any court of competent jurisdiction a warrant directing such owner or his or her agent to submit the premises described in the warrant to inspection. (5) For the enforcement of this chapter, the director or his or her duly assigned agent is authorized to enter upon any public or private premises including any vehicle of transport during regular business hours to have access to, and to obtain samples, and to examine records relating to distribution of commercial feeds. (6) Sampling and analysis shall be conducted in accordance with methods published by the association of official analytical chemists, or in accordance with other generally recognized methods. (7) The results of all analyses of official samples shall be forwarded by the department to the person named on the label and to the purchaser, if known. If the inspection and analysis of an official sample indicates a commercial feed has been adulterated or misbranded and upon request within thirty days following the receipt of the analysis, the department [Title 15 RCW—page 85] 15.53.9038 Title 15 RCW: Agriculture and Marketing shall furnish to the registrant or licensee a portion of the sample concerned. If referee analysis is requested, a portion of the official sample shall be furnished by the department and shall be sent directly to an independent lab agreed to by all parties. (8) The department, in determining for administrative purposes whether a feed is deficient in any component, shall be guided solely by the official sample as defined in RCW 15.53.901(20) and obtained and analyzed as provided for in this section. (9) Analysis of an official sample by the department shall be accepted as prima facie evidence by any court of competent jurisdiction. [2005 c 18 § 8; 1995 c 374 § 41; 1965 ex.s. c 31 § 9.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. Prosecutions, official analysis as evidence: RCW 15.53.904. 15.53.9038 15.53.9038 Department’s remedies for noncompliance—"Withdrawal from distribution" order—Condemnation—Seizure. (1) When the department has reasonable cause to believe that any lot of commercial feed is adulterated or misbranded or is being distributed in violation of this chapter or any rules hereunder it may issue and enforce a written or printed "withdrawal from distribution" order, or "stop sale" order, warning the distributor not to dispose of the lot of feed in any manner until written permission is given by the department. The department shall release the lot of commercial feed so withdrawn when the provisions and rules have been complied with. If compliance is not obtained within thirty days, parties may agree to an alternative disposition in writing or the department may institute condemnation proceedings in a court of competent jurisdiction. (2) Any lot of commercial feed not in compliance with the provisions and rules is subject to seizure on complaint of the department to a court of competent jurisdiction in the area in which the commercial feed is located. If the court finds the commercial feed to be in violation of this chapter and orders the condemnation of the commercial feed, it shall be disposed of in any manner consistent with the quality of the commercial feed and the laws of the state. The court shall first give the claimant an opportunity to apply to the court for release of the commercial feed or for permission to process or relabel the commercial feed to bring it into compliance with this chapter. [1995 c 374 § 42; 1982 c 177 § 5; 1975 1st ex.s. c 257 § 7; 1965 ex.s. c 31 § 16.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. Effective date—1975 1st ex.s. c 257: See note following RCW 15.13.470. 15.53.904 15.53.904 Department’s remedies for noncompliance—Classification of crimes—Prosecutions—Injunctions. (1) Any person convicted of violating any of the provisions of this chapter or the rules and regulations issued thereunder or who shall impede, obstruct, hinder, or otherwise prevent or attempt to prevent the department in the performance of its duty in connection with the provisions of this chapter, shall be adjudged guilty of a misdemeanor as provided in RCW 9A.20.021. In all prosecutions under this chapter involving the composition of a lot of commercial [Title 15 RCW—page 86] feed, a certified copy of the official analysis signed by the department shall be accepted as prima facie evidence of the composition. (2) Any person convicted of intentionally violating RCW 15.53.902(4) or the rules issued thereunder is guilty of a gross misdemeanor as provided in RCW 9A.20.021. (3) Nothing in this chapter shall be construed as requiring the department to report for prosecution or for the institution of seizure proceedings as a result of minor violations of this chapter when it believes that the public interest will be best served by a suitable notice of warning in writing. (4) It shall be the duty of each prosecuting attorney to whom any violation is reported to cause appropriate proceedings to be instituted and prosecuted in a court of competent jurisdiction without delay. Before the department reports a violation for such prosecution, an opportunity shall be given the distributor to present the distributor’s view in writing or orally to the department. (5) The department is hereby authorized to apply for and the court to grant a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this chapter or any rule or regulation promulgated under this chapter notwithstanding the existence of other remedies at law. Said injunction to be issued without bond. [2005 c 40 § 2; 1965 ex.s. c 31 § 17.] Analysis of official sample as evidence: RCW 15.53.9024. 15.53.9042 15.53.9042 Department to publish distribution information, production data, and analyses comparison. The department shall publish at least annually, in such forms as it may deem proper, information concerning the distribution of commercial feed, together with such data on their production and use as it may consider advisable, and a report of the results of the analyses of official samples of commercial feed within the state as compared with the analyses guaranteed on the label or as calculated from the invoice data for customerformula feeds: PROVIDED, That the information concerning production and use of commercial feeds shall not disclose the operations of any person. [1995 c 374 § 43; 1965 ex.s. c 31 § 18.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. 15.53.9044 15.53.9044 Disposition of moneys. All moneys collected under this chapter shall be paid to the director and deposited in an account within the agricultural local fund. Such deposits shall be used only in the administration and enforcement of this chapter. [2005 c 18 § 9; 1988 c 254 § 5; 1975 1st ex.s. c 257 § 8; 1965 ex.s. c 31 § 19.] Effective date—1975 1st ex.s. c 257: See note following RCW 15.13.470. 15.53.9046 15.53.9046 Cooperation with other entities. The director may cooperate with and enter into agreements with governmental agencies of this state, other states, agencies of the federal government and private associations in order to carry out the purpose and provisions of this chapter. [1965 ex.s. c 31 § 24.] (2006 Ed.) Fertilizers, Minerals, and Limes 15.53.9048 15.53.9048 Chapter is cumulative. The provisions of this chapter shall be cumulative and nonexclusive and shall not affect any other remedy. [1965 ex.s. c 31 § 20.] 15.53.9054 15.53.9054 Severability—1965 ex.s. c 31. If any section or provision of this act shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the act as a whole or any section, provision, or part thereof, not adjudged invalid or unconstitutional. [1965 ex.s. c 31 § 27.] 15.53.9056 15.53.9056 Short title. This chapter shall be known as the "Washington Commercial Feed Law." [1965 ex.s. c 31 § 1.] Chapter 15.54 RCW FERTILIZERS, MINERALS, AND LIMES Chapter 15.54 Sections 15.54.265 15.54.270 15.54.275 15.54.325 15.54.330 15.54.340 15.54.350 15.54.362 15.54.370 15.54.380 15.54.390 15.54.400 15.54.412 15.54.414 15.54.420 15.54.430 15.54.433 15.54.436 15.54.440 15.54.450 15.54.460 15.54.470 15.54.474 15.54.480 15.54.490 15.54.800 15.54.820 15.54.910 15.54.930 15.54.940 15.54.950 15.54.960 Intent—1998 c 36. Definitions. Bulk fertilizer distribution license. Commercial fertilizer registration—Required for distribution—Application. Commercial fertilizer registration—Application review— Labels and guarantees. Labeling requirements. Inspection fees. Reports—Inspection fees—Confidentiality, exception. Official samples—Inspection, analysis, testing—Right of entry. Penalties for deficiencies upon analysis of commercial fertilizers—Appeal—Disposition of penalties. Determination and publication of commercial values—Use in assessment of penalty payments. Restrictions on sale—Minimum percentages. Misbranding. Adulteration. Unlawful acts. Publication of distribution information, analyses results. Fertilizer data base—Public availability—Biennial report to legislature. Cancellation of license to distribute or of registration— Refusal to register if fraudulent or deceptive practices used—Opportunity for hearing. "Stop sale," "stop use," or "withdrawal from distribution" order, when issued—Release—Associated costs. Noncompliance—Seizure—Disposition—Associated costs. Damages from administrative action, stop sales or seizures. Violations—Department discretion—Duty of prosecuting attorney—Injunctions. Penalty—Failure to comply with chapter or rule. Disposition of moneys. Cooperation with other entities. Enforcement of chapter—Adoption of rules. Department of ecology—Waste-derived or micronutrient fertilizer—Standards—Written decision—Appeal of decision. Prior liability preserved. Effective date—1967 ex.s. c 22. Continuation of rules adopted pursuant to repealed sections. Short title. Severability—1967 ex.s. c 22. Crop liens: Chapter 60.11 RCW. 15.54.265 15.54.265 Intent—1998 c 36. (1) The legislature intends to strengthen the state’s fertilizer adulteration laws to protect human health and the environment by: (a) Ensuring that all fertilizers meet standards for allowable metals; (b) Allowing fertilizer purchasers and users to know about the contents of fertilizer products; and (2006 Ed.) 15.54.270 (c) Clarifying the department of ecology’s oversight authority over waste-derived fertilizers. (2) The legislature intends to provide better information to the public on fertilizers, soils, and potential health effects by authorizing additional studies on plant uptake of metals and levels of dioxins in soils and products. [1998 c 36 § 1.] Short title—1998 c 36: "This act may be known and cited as the fertilizer regulation act." [1998 c 36 § 24.] 15.54.270 Definitions. Terms used in this chapter have the meaning given to them in this chapter unless the context clearly indicates otherwise. (1) "Brand" means a term, design, or trademark used in connection with the distribution and sale of one or more grades of commercial fertilizers. (2) "Bulk fertilizer" means commercial fertilizer distributed in a nonpackaged form such as, but not limited to, tote bags, tote tanks, bins, tanks, trailers, spreader trucks, and railcars. (3) "Calcium carbonate equivalent" means the acid-neutralizing capacity of an agricultural liming material expressed as a weight percentage of calcium carbonate. (4) "Commercial fertilizer" means a substance containing one or more recognized plant nutrients and that is used for its plant nutrient content or that is designated for use or claimed to have value in promoting plant growth, and shall include limes, gypsum, and manipulated animal and vegetable manures. It does not include unmanipulated animal and vegetable manures, organic waste-derived material, and other products exempted by the department by rule. (5) "Composting" means the controlled aerobic degradation of organic waste materials. Natural decay of organic waste under uncontrolled conditions is not composting. (6) "Customer-formula fertilizer" means a mixture of commercial fertilizer or materials of which each batch is mixed according to the specifications of the final purchaser. (7) "Department" means the department of agriculture of the state of Washington or its duly authorized representative. (8) "Director" means the director of the department of agriculture. (9) "Distribute" means to import, consign, manufacture, produce, compound, mix, or blend commercial fertilizer, or to offer for sale, sell, barter, exchange, or otherwise supply commercial fertilizer in this state. (10) "Distributor" means a person who distributes. (11) "Fertilizer material" means a commercial fertilizer that either: (a) Contains important quantities of no more than one of the primary plant nutrients: Nitrogen, phosphate, and potash; (b) Has eighty-five percent or more of its plant nutrient content present in the form of a single chemical compound; or (c) Is derived from a plant or animal residue or byproduct or natural material deposit that has been processed in such a way that its content of plant nutrients has not been materially changed except by purification and concentration. (12) "Grade" means the percentage of total nitrogen, available phosphoric acid, and soluble potash stated in whole numbers in the same terms, order, and percentages as in the "guaranteed analysis," unless otherwise allowed by a rule adopted by the department. Specialty fertilizers may be guar15.54.270 [Title 15 RCW—page 87] 15.54.270 Title 15 RCW: Agriculture and Marketing anteed in fractional units of less than one percent of total nitrogen, available phosphorus or phosphoric acid, and soluble potassium or potash. Fertilizer materials, bone meal, manures, and similar materials may be guaranteed in fractional units. (13) "Guaranteed analysis." (a) Until the director prescribes an alternative form of "guaranteed analysis" by rule the term "guaranteed analysis" shall mean the minimum percentage of plant nutrients claimed in the following order and form: Total nitrogen (N) ............. Available phosphoric acid (P2O5) .... ............. Soluble potash (K2O) percent percent percent The percentage shall be stated in whole numbers unless otherwise allowed by the department by rule. The "guaranteed analysis" may also include elemental guarantees for phosphorus (P) and potassium (K). (b) For unacidulated mineral phosphatic material and basic slag, bone, tankage, and other organic phosphatic materials, the total phosphoric acid or degree of fineness may also be guaranteed. (c) Guarantees for plant nutrients other than nitrogen, phosphorus, and potassium shall be as allowed or required by rule of the department. The guarantees for such other nutrients shall be expressed in the form of the element. (d) The guaranteed analysis for limes shall include the percentage of calcium or magnesium expressed as their carbonate; the calcium carbonate equivalent as determined by methods prescribed by the association of official analytical chemists; and the minimum percentage of material that will pass respectively a one hundred mesh, sixty mesh, and ten mesh sieve. The mesh size declaration may also include the percentage of material that will pass additional mesh sizes. (e) In commercial fertilizer, the principal constituent of which is calcium sulfate (gypsum), the percentage of calcium sulfate (CaSO4.2H2O) shall be given along with the percentage of total sulfur. (14) "Imported fertilizer" means any fertilizer distributed into Washington from any other state, province, or country. (15) "Label" means the display of all written, printed, or graphic matter, upon the immediate container, or a statement accompanying a fertilizer. (16) "Labeling" includes all written, printed, or graphic matter, upon or accompanying a commercial fertilizer, or advertisement, brochures, posters, television, and radio announcements used in promoting the sale of such fertilizer. (17) "Licensee" means the person who receives a license to distribute a commercial fertilizer under the provisions of this chapter. (18) "Lime" means a substance or a mixture of substances, the principal constituent of which is calcium or magnesium carbonate, hydroxide, or oxide, singly or combined. (19) "Manipulation" means processed or treated in any manner, including drying to a moisture content less than thirty percent. (20) "Manufacture" means to compound, produce, granulate, mix, blend, repackage, or otherwise alter the composition of fertilizer materials. (21) "Micronutrients" are: Boron; chlorine; cobalt; copper; iron; manganese; molybdenum; sodium; and zinc. [Title 15 RCW—page 88] (22) "Micronutrient fertilizer" means a produced or imported commercial fertilizer that contains commercially valuable concentrations of micronutrients but does not contain commercially valuable concentrations of nitrogen, phosphoric acid, available phosphorus, potash, calcium, magnesium, or sulfur. (23) "Official sample" means a sample of commercial fertilizer taken by the department and designated as "official" by the department. (24) "Organic waste-derived material" means grass clippings, leaves, weeds, bark, plantings, prunings, and other vegetative wastes, uncontaminated wood waste from logging and milling operations, food wastes, food processing wastes, and materials derived from these wastes through composting. "Organic waste-derived material" does not include products that include biosolids. (25) "Packaged fertilizer" means commercial fertilizers, either agricultural or specialty, distributed in nonbulk form. (26) "Person" means an individual, firm, brokerage, partnership, corporation, company, society, or association. (27) "Percent" or "percentage" means the percentage by weight. (28) "Produce" means to compound or fabricate a commercial fertilizer through a physical or chemical process, or through mining. "Produce" does not include mixing, blending, or repackaging commercial fertilizer products. (29) "Registrant" means the person who registers commercial fertilizer under the provisions of this chapter. (30) "Specialty fertilizer" means a commercial fertilizer distributed primarily for nonfarm use, such as, but not limited to, use on home gardens, lawns, shrubbery, flowers, golf courses, municipal parks, cemeteries, greenhouses, and nurseries. (31) "Ton" means the net weight of two thousand pounds avoirdupois. (32) "Total nutrients" means the sum of the percentages of total nitrogen, available phosphoric acid, and soluble potash as guaranteed and as determined by analysis. (33) "Washington application rate" is calculated by using an averaging period of up to four consecutive years that incorporates agronomic rates that are representative of soil, crop rotation, and climatic conditions in Washington state. (34) "Waste-derived fertilizer" means a commercial fertilizer that is derived in whole or in part from solid waste as defined in chapter 70.95 or 70.105 RCW, or rules adopted thereunder, but does not include fertilizers derived from biosolids or biosolids products regulated under chapter 70.95J RCW or wastewaters regulated under chapter 90.48 RCW. [1998 c 36 § 2; 1997 c 427 § 1; 1993 c 183 § 1; 1987 c 45 § 1; 1967 ex.s. c 22 § 1.] Short title—1998 c 36: See note following RCW 15.54.265. Construction—1987 c 45: "This act shall not be construed as affecting any existing right acquired or liability or obligation incurred under the sections amended or repealed in this act or under any rule, regulation, or order adopted under those sections, nor as affecting any proceeding instituted under those sections." [1987 c 45 § 32.] Severability—1987 c 45: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1987 c 45 § 33.] Effective date—1967 ex.s. c 22: See RCW 15.54.930. (2006 Ed.) Fertilizers, Minerals, and Limes 15.54.275 Bulk fertilizer distribution license. (1) No person may distribute a bulk fertilizer in this state until a license to distribute has been obtained by that person. An annual license is required for each out-of-state or in-state location that distributes bulk fertilizer in Washington state. An application for each location shall be filed on forms provided by the master license system and shall be accompanied by an annual fee of twenty-five dollars per location. The license shall expire on the master license expiration date. (2) An application for license shall include the following: (a) The name and address of licensee. (b) Any other information required by the department by rule. (3) The name and address shown on the license shall be shown on all labels, pertinent invoices, and storage facilities for fertilizer distributed by the licensee in this state. (4) If an application for license renewal provided for in this section is not filed prior to the master license expiration date, a delinquency fee of twenty-five dollars shall be assessed and added to the original fee and shall be paid by the applicant before the renewal license shall be issued. The assessment of this delinquency fee shall not prevent the department from taking any other action as provided for in this chapter. The penalty shall not apply if the applicant furnishes an affidavit that he or she has not distributed this commercial fertilizer subsequent to the expiration of his or her prior license. [1998 c 36 § 3; 1993 c 183 § 2.] 15.54.275 Short title—1998 c 36: See note following RCW 15.54.265. 15.54.325 Commercial fertilizer registration— Required for distribution—Application. (1) No person may distribute in this state a commercial fertilizer until it has been registered with the department by the producer, importer, or packager of that product. A bulk fertilizer does not require registration if all commercial fertilizer products contained in the final product are registered. (2) An application for registration shall be made on a form furnished by the department and shall include the following: (a) The product name; (b) The brand and grade; (c) The guaranteed analysis; (d) Name, address, and phone number of the registrant; (e) Labels for each product being registered; (f) Identification of those products that are (i) wastederived fertilizers, (ii) micronutrient fertilizers, or (iii) fertilizer materials containing phosphate; (g) The concentration of each metal, for which standards are established under RCW 15.54.800, in each product being registered, unless the product is (i) anhydrous ammonia or a solution derived solely from dissolving anhydrous ammonia in water, (ii) a customer-formula fertilizer containing only registered commercial fertilizers, or (iii) a packaged commercial fertilizer whose plant nutrient content is present in the form of a single chemical compound which is registered in compliance with this chapter and the product is not blended with any other material. The provisions of (g)(i) of this subsection do not apply if the anhydrous ammonia is derived in whole or in part from waste such that the fertilizer is a "waste-derived fertilizer" as defined in RCW 15.54.270. Ver15.54.325 (2006 Ed.) 15.54.330 ification of a registration relied on by an applicant under (g)(iii) of this subsection must be submitted with the application; (h) Waste-derived fertilizers and micronutrient fertilizers shall include at a minimum, information to ensure the product complies with chapter 70.105 RCW and the resource conservation and recovery act, 42 U.S.C. Sec. 6901 et seq.; and (i) Any other information required by the department by rule. (3) All companies planning to mix customer-formula fertilizers shall include the statement "customer-formula grade mixes" under the column headed "product name" on the product registration application form. All customer-formula fertilizers sold under one brand name shall be considered one product. (4) All registrations issued by the department for registrants whose names begin with the letters A through M expire on June 30th of even-numbered years and all registrations issued by the department for registrants whose names begin with the letters N through Z expire on June 30th of odd-numbered years, unless otherwise specified in rule adopted by the director. (5) An application for registration shall be accompanied by a fee of fifty dollars for each product, except that an applicant whose registration expires in even-numbered years shall pay a fee of twenty-five dollars for each product for the registration period ending June 30, 2000. (6) If an application for renewal of the product registration provided for in this section is not filed prior to July 1st of the registration renewal year, a late fee of ten dollars per product shall be assessed and added to the original fee and shall be paid by the applicant before the renewal registration shall be issued. The assessment of this late fee shall not prevent the department from taking any other action as provided for in this chapter. The late fee shall not apply if the applicant furnishes an affidavit that he or she has not distributed this commercial fertilizer subsequent to the expiration of his or her prior registration. [1999 c 383 § 1; 1999 c 382 § 1; 1998 c 36 § 4; 1993 c 183 § 3.] Reviser’s note: This section was amended by 1999 c 382 § 1 and by 1999 c 383 § 1, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective date—1999 c 383: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 1999." [1999 c 383 § 5.] Effective date—1999 c 382: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 1999." [1999 c 382 § 2.] Short title—1998 c 36: See note following RCW 15.54.265. 15.54.330 15.54.330 Commercial fertilizer registration—Application review—Labels and guarantees. (1) The department shall examine the commercial fertilizer product registration application form and labels for conformance with the requirements of this chapter. If the application and appropriate labels are in proper form and contain the required information, the particular commercial fertilizer products shall be [Title 15 RCW—page 89] 15.54.340 Title 15 RCW: Agriculture and Marketing registered by the department and a certificate of registration shall be issued to the applicant. (2) In reviewing the commercial fertilizer product registration application, the department may consider experimental data, manufacturers’ evaluations, data from agricultural experiment stations, product review evaluations, or other authoritative sources to substantiate labeling claims. The data shall be from statistically designed and analyzed trials representative of the soil, crops, and climatic conditions found in the northwestern area of the United States. (3) In determining whether approval of a labeling statement or guarantee of an ingredient is appropriate, the department may require the submission of a written statement describing the methodology of laboratory analysis utilized, the source of the ingredient material, and any reference material relied upon to support the label statement or guarantee of ingredient. (4) Before registering a waste-derived fertilizer or micronutrient fertilizer, the department shall obtain written approval from the department of ecology as provided in RCW 15.54.820. Once a waste-derived fertilizer or micronutrient fertilizer has been approved by the department of ecology, its subsequent use in another product during that registration cycle shall not require department of ecology review. This subsection shall apply to new and renewal registration applications for periods beginning July 1, 1999, and thereafter. [1999 c 383 § 2; 1998 c 36 § 5; 1993 c 183 § 4; 1967 ex.s. c 22 § 21.] Effective date—1999 c 383: See note following RCW 15.54.325. Short title—1998 c 36: See note following RCW 15.54.265. 15.54.340 15.54.340 Labeling requirements. (1) Any commercial fertilizer distributed in this state shall have placed on or affixed to the package a label setting forth in clearly legible and conspicuous form the following information: (a) The net weight; (b) The product name, brand, and grade. The grade is not required if no primary nutrients are claimed; (c) The guaranteed analysis; (d) The name and address of the registrant or licensee. The name and address of the manufacturer, if different from the registrant or licensee, may also be stated; (e) Any information required under WAC 296-62-054; (f) A statement, established by rule, referring persons to the department’s Uniform Resource Locator (URL) internet address where data regarding the metals content of the product is located; and (g) Other information as required by the department by rule. (2) If a commercial fertilizer is distributed in bulk, a written or printed statement of the information required by subsection (1) of this section shall accompany delivery and be supplied to the purchaser at the time of delivery. (3) Each delivery of a customer-formula fertilizer shall be subject to containing those ingredients specified by the purchaser, which ingredients shall be shown on the statement or invoice with the amount contained therein, and a record of all invoices of customer-formula grade mixes shall be kept by the registrant or licensee for a period of twelve months and shall be available to the department upon request: PRO[Title 15 RCW—page 90] VIDED, That each such delivery shall be accompanied by either a statement, invoice, a delivery slip, or a label if bagged, containing the following information: The net weight; the brand; the guaranteed analysis which may be stated to the nearest tenth of a percent or to the next lower whole number; the name and address of the registrant or licensee, or manufacturer, or both; and the name and address of the purchaser. [2003 c 15 § 1; 1999 c 381 § 1; 1998 c 36 § 6; 1993 c 183 § 5; 1987 c 45 § 12; 1967 ex.s. c 22 § 22.] Effective date—2003 c 15 § 1: "Section 1 of this act takes effect January 1, 2004." [2003 c 15 § 2.] Effective date—1999 c 381: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 1999." [1999 c 381 § 2.] Short title—1998 c 36: See note following RCW 15.54.265. Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.54.350 15.54.350 Inspection fees. (1) There shall be paid to the department for all commercial fertilizers distributed in this state to nonregistrants or nonlicensees an inspection fee of fifteen cents per ton of lime and thirty cents per ton of all other commercial fertilizer distributed during the year beginning July 1st and ending June 30th. (2) Distribution of commercial fertilizers for shipment to points outside this state may be excluded. (3) When more than one distributor is involved in the distribution of a commercial fertilizer, the last registrant or licensee who distributes to a nonregistrant or nonlicensee is responsible for paying the inspection fee, unless the payment of fees has been made by a prior distributor of the fertilizer. [1993 c 183 § 6; 1987 c 45 § 13; 1981 c 297 § 18; 1975 1st ex.s. c 257 § 9; 1967 ex.s. c 22 § 23.] Construction—Severability—1987 c 45: See notes following RCW 15.54.270. Severability—1981 c 297: See note following RCW 15.36.201. Effective date—1975 1st ex.s. c 257: See note following RCW 15.13.470. 15.54.362 15.54.362 Reports—Inspection fees—Confidentiality, exception. (1) Every registrant or licensee who distributes commercial fertilizer in this state shall file a semiannual report on forms provided by the department setting forth the number of net tons of each commercial fertilizer so distributed in this state. The reports will cover the following periods: January 1 through June 30 and July 1 through December 31 of each year. Upon permission of the department, an annual statement under oath may be filed for the annual reporting period of July 1 through June 30 of any year by any person distributing within the state less than one hundred tons for each six-month period during any calendar year, and upon filing such statement, such person shall pay the inspection fee required under RCW 15.54.350. The department may accept sales records or other records accurately reflecting the tonnage sold and verifying such reports. (2) Each person responsible for the payment of inspection fees for commercial fertilizer distributed in this state shall include the inspection fees with the report on the same dates and for the same reporting periods mentioned in subsection (1) of this section. If in one year a registrant or lic(2006 Ed.) Fertilizers, Minerals, and Limes ensee distributes less than eighty-three tons of commercial fertilizer or less than one hundred sixty-seven tons of commercial lime or equivalent combination of the two, the registrant or licensee shall pay the minimum inspection fee. The minimum inspection fee shall be twenty-five dollars per year. (3) The department may, upon request, require registrants or licensees to furnish information setting forth the net tons of commercial fertilizer distributed to each location in this state. (4) Semiannual or annual reports filed after the close of the corresponding reporting period shall pay a late filing fee of twenty-five dollars. Inspection fees which are due and have not been remitted to the department by the due date shall have a late-collection fee of ten percent, but not less than twenty-five dollars, added to the amount due when payment is finally made. The assessment of this late collection fee shall not prevent the department from taking any other action as provided for in this chapter. (5) It shall be a misdemeanor for any person to divulge any information provided under this section that would reveal the business operation of the person making the report. However, nothing contained in this subsection may be construed to prevent or make unlawful the use of information concerning the business operations of a person in any action, suit, or proceeding instituted under the authority of this chapter, including any civil action for the collection of unpaid inspection fees, which action is hereby authorized and which shall be as an action at law in the name of the director of the department. [1993 c 183 § 7; 1987 c 45 § 14.] Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.54.370 15.54.370 Official samples—Inspection, analysis, testing—Right of entry. (1) It shall be the duty of the department to inspect, sample, make analysis of, and test commercial fertilizers distributed within this state at such time and place and to such an extent as it may deem necessary to determine whether such fertilizers are in compliance with the provisions of this chapter. The department is authorized to stop any commercial vehicle transporting fertilizers on the public highways and direct it to the nearest scales approved by the department to check weights of fertilizers being delivered. The department is also authorized, upon presentation of proper identification, to enter any distributor’s premises, including any vehicle of transport, at all reasonable times in order to have access to commercial fertilizers and to records relating to their distribution. (2) The methods of sampling and analysis shall be those adopted by the department from officially recognized sources. (3) The department, in determining for administrative purposes whether a fertilizer is deficient in any component or total nutrients, shall be guided solely by the official sample as defined in RCW 15.54.270 and obtained and analyzed as provided for in this section. (4) When the inspection and analysis of an official sample has been made, the results of analysis shall be forwarded by the department to the registrant or licensee and to the purchaser, if known. Upon request and within thirty days, the department shall furnish to the registrant or licensee a portion of the sample concerned. (2006 Ed.) 15.54.390 (5) Analysis of an official sample by the department shall be accepted as prima facie evidence by any court of competent jurisdiction. [1993 c 183 § 8; 1987 c 45 § 16; 1967 ex.s. c 22 § 25.] Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.54.380 Penalties for deficiencies upon analysis of commercial fertilizers—Appeal—Disposition of penalties. (1) If the analysis shall show that any commercial fertilizer falls short of the guaranteed analysis in any one plant nutrient or in total nutrients, penalty shall be assessed in favor of the department in accordance with the following provisions: (a) A penalty of three times the commercial value of the deficiency, if such deficiency in any one plant nutrient is more than two percent under guarantee on any one commercial fertilizer in which that plant nutrient is guaranteed up to and including ten percent; a penalty of three times the commercial value of the deficiency, if such deficiency in any one plant nutrient is more than three percent under guarantee on any one commercial fertilizer in which that plant nutrient is guaranteed from ten and one-tenth percent to twenty percent; a penalty of three times the commercial value of the deficiency, if such deficiency in any one plant nutrient is more than four percent under guarantee on any one commercial fertilizer in which that plant nutrient is guaranteed twenty and one-tenth percent and above. (b) A penalty of three times the commercial value of the total nutrient deficiency shall be assessed when such deficiency is more than two percent under the calculated total nutrient guarantee. (c) When a commercial fertilizer is subject to penalty under both (a) and (b) of this subsection, only the larger penalty shall be assessed. (2) All penalties assessed under this section on any one commercial fertilizer, represented by the sample analyzed, shall be paid to the department within three months after the date of notice from the department to the registrant or licensee. The department shall deposit the amount of the penalty into an account with the agricultural local fund. (3) Nothing contained in this section shall prevent any person from appealing to a court of competent jurisdiction for a judgment as to the justification of such penalties imposed under subsections (1) and (2) of this section. (4) The civil penalties payable in subsections (1) and (2) of this section shall in no manner be construed as limiting the consumer’s right to bring a civil action in damage against the registrant or licensee paying said civil penalties. [1998 c 36 § 7; 1993 c 183 § 9; 1987 c 45 § 17; 1967 ex.s. c 22 § 26.] 15.54.380 Short title—1998 c 36: See note following RCW 15.54.265. Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.54.390 15.54.390 Determination and publication of commercial values—Use in assessment of penalty payments. For the purpose of determining the commercial value to be applied under the provisions of RCW 15.54.380, the department shall determine and publish the values per unit of nitrogen, available phosphoric acid, and soluble potash in commercial fertilizers in this state. The values so determined and [Title 15 RCW—page 91] 15.54.400 Title 15 RCW: Agriculture and Marketing published shall be used in determining and assessing penalty payments and shall be established by rule. [1987 c 45 § 18; 1967 ex.s. c 22 § 27.] Construction—Severability—1987 c 45: See notes following RCW 15.54.270. (4) If the concentration of any nonnutritive constituent in a representative sample of commercial fertilizer exceeds the maximum concentration stated on the registration application or on the label. [1998 c 36 § 8; 1993 c 183 § 10; 1987 c 45 § 21.] Short title—1998 c 36: See note following RCW 15.54.265. 15.54.400 15.54.400 Restrictions on sale—Minimum percentages. No superphosphate containing less than eighteen percent of available phosphoric acid may be sold or offered for sale in this state. Specialty fertilizers, except manipulated animal and vegetable manures, guaranteeing less than five percent total plant food shall contain on the label specific directions for use, and prior to registration, the department may require proof of the efficacy of the product when used as directed. [1987 c 45 § 19; 1967 ex.s. c 22 § 28.] Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.54.412 15.54.412 Misbranding. No person may distribute misbranded commercial fertilizer. A commercial fertilizer shall be deemed to be misbranded: (1) If its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular; (2) If it is distributed under the name of another fertilizer product; (3) If its labeling bears any reference to registration under this chapter unless such reference is required by rule under this chapter; (4) If any word, statement, or other information, required by this chapter or rules adopted thereunder to appear on the label or labeling, is not prominently placed thereon with such conspicuousness (as compared with other words, statements, design, or graphic matter in the labeling), and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use; or (5) If it purports to be or is represented as a fertilizer, or is represented as containing a plant nutrient or fertilizer unless such plant nutrient or fertilizer conforms to the definition of identity, if any, prescribed by the department by rule. In adopting such rules the department shall give due regard to commonly accepted definitions and official fertilizer terms such as those issued by the association of American plant food control officials. [1987 c 45 § 20.] Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.54.414 15.54.414 Adulteration. No person may distribute an adulterated commercial fertilizer. A commercial fertilizer is adulterated: (1) If it contains any deleterious or harmful substance in sufficient amount to render it injurious to beneficial plant life when applied in accordance with directions for use on the label, or if adequate warning statements or directions for use which may be necessary to protect plant life are not shown upon the label; (2) If its composition falls below or differs from that which it is purported to possess by its labeling; (3) If it contains unwanted viable seed; or [Title 15 RCW—page 92] Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.54.420 15.54.420 Unlawful acts. It shall be unlawful for any person to: (1) Distribute an adulterated or misbranded commercial fertilizer; (2) Fail, refuse, or neglect to place upon or attach to each package of distributed commercial fertilizer a label containing all of the information required by this chapter; (3) Fail, refuse, or neglect to deliver to a purchaser of bulk commercial fertilizer a statement containing the information required by this chapter; (4) Distribute a commercial fertilizer product which has not been registered with the department; (5) Distribute bulk fertilizer without holding a license to do so; (6) Refuse or neglect to keep and maintain records, or to make reports when and as required; or (7) Make false or fraudulent applications, records, invoices, or reports. [1998 c 36 § 9; 1993 c 183 § 11; 1987 c 45 § 22; 1967 ex.s. c 22 § 30.] Short title—1998 c 36: See note following RCW 15.54.265. Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.54.430 15.54.430 Publication of distribution information, analyses results. The department shall publish at least annually and in such form as it may deem proper (1) information concerning the distribution of commercial fertilizers and (2) results of analyses based on official samples as compared with the analyses guaranteed. [1967 ex.s. c 22 § 31.] 15.54.433 15.54.433 Fertilizer data base—Public availability— Biennial report to legislature. (1) The department shall expand its fertilizer data base to include additional information required for registration under RCW 15.54.325 and 15.54.330. (2) Except for confidential information under RCW 15.54.362 regarding fertilizer tonnages distributed in the state, information in the fertilizer data base shall be made available to the public upon request. (3) The department, and the department of ecology in consultation with the department of health, shall biennially prepare a report to the legislature presenting information on levels of nonnutritive substances in fertilizers. Results from agency testing of products that were sampled shall also be displayed. The first such report will be provided to the legislature by December 1, 1999. (4) After July 1, 1999, the department shall post on the internet the information contained in applications for fertilizer registration. [1998 c 36 § 21.] Short title—1998 c 36: See note following RCW 15.54.265. (2006 Ed.) Fertilizers, Minerals, and Limes 15.54.436 15.54.436 Cancellation of license to distribute or of registration—Refusal to register if fraudulent or deceptive practices used—Opportunity for hearing. The department may cancel the license to distribute commercial fertilizer or registration of any commercial fertilizer product or refuse to license a distributor or register any commercial fertilizer product as provided in this chapter due to: (1) An incomplete or insufficient license or registration application; (2) The misbranding or adulteration of a commercial fertilizer; or (3) A violation of this chapter or rules adopted under this chapter. If the department cancels or refuses to renew an existing license or registration due to the misbranding or adulteration of a commercial fertilizer or due to a violation of this chapter or a rule adopted hereunder, the licensee/registrant or applicant may request a hearing as provided for in chapter 34.05 RCW. [1998 c 36 § 10; 1993 c 183 § 12; 1987 c 45 § 24.] Short title—1998 c 36: See note following RCW 15.54.265. Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.54.440 15.54.440 "Stop sale," "stop use," or "withdrawal from distribution" order, when issued—Release—Associated costs. (1) Commercial fertilizers that are not registered in Washington state or that fail to meet the Washington standards for total metals pose an emergency situation because they may contain certain metals at levels which are harmful to Washington soils and plants and may contain substances which are harmful to the public without its knowledge. Commercial fertilizers that are not registered or that fail to meet the Washington standards for total metals are subject to immediate stop sale, stop use, or withdrawal from distribution in this state and seizure, disposal, or both. (2) The department may issue and enforce a written "stop sale," "stop use," or "withdrawal from distribution" order to the distributor, owner, or custodian of any lot of commercial fertilizer to hold the commercial fertilizer at a designated place when the department has reasonable cause to believe such fertilizer is being offered or exposed for sale in violation of any of the provisions of this chapter. (3) The department may issue and enforce a written immediate "stop sale," "stop use," or "withdrawal from distribution" order to any distributor, owner, or custodian of commercial fertilizer in the state for any commercial fertilizer that: (a) Is not registered in Washington state; or (b) According to the department, fails to meet the Washington standards for total metals, as established in RCW 15.54.800 or the rules adopted under this chapter. (4) The department shall release the commercial fertilizer stopped or withdrawn under subsection (2) or (3) of this section when the distributor, owner, or custodian has complied with the provisions of this chapter and the rules adopted under it and the department has issued a written release order. If compliance is not or cannot be obtained, the department may institute proceedings under RCW 15.54.450 or may agree in writing with the distributor, owner, or custodian of the commercial fertilizer to an alternative disposition of the commercial fertilizer. (2006 Ed.) 15.54.470 (5) All costs associated with any "stop sale," "stop use," or "withdrawal from distribution" incurred by the distributor, owner, or custodian of a commercial fertilizer are the responsibility of the distributor, owner, or custodian. [1999 c 383 § 3; 1987 c 45 § 23; 1967 ex.s. c 22 § 32.] Effective date—1999 c 383: See note following RCW 15.54.325. Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.54.450 15.54.450 Noncompliance—Seizure—Disposition— Associated costs. (1) Any lot of commercial fertilizer not in compliance with the provisions of this chapter shall be subject to seizure on complaint of the department to a court of competent jurisdiction in the area in which the commercial fertilizer is located. (2) Any commercial fertilizer that is not registered in the state or that fails to meet the Washington standards for total metals is subject to seizure on complaint of the department in the name of the state to Thurston county superior court or other court of competent jurisdiction. (3) In the event the court finds, upon application by the department under subsection (1) or (2) of this section, that a commercial fertilizer violates this chapter or the rules adopted under it and orders the condemnation of the commercial fertilizer, the commercial fertilizer shall be disposed of in any manner consistent with the quality of the commercial fertilizer and the laws of the state: PROVIDED, That in no instance shall the disposition of the commercial fertilizer be ordered by the court without first giving the claimant an opportunity to apply to the court for release of the commercial fertilizer or for permission to process or relabel the commercial fertilizer to bring it into compliance with this chapter and the rules adopted under it. (4) All costs associated with disposal are the responsibility of the distributor, owner, or custodian of the commercial fertilizer unless such a distributor, owner, or custodian is the consumer or is a person whose role as a distributor, owner, or custodian of the fertilizer is only that of a transporter of the fertilizer. Such disposal costs shall not be the responsibility of the consumer or such a transporter of the commercial fertilizer. [1999 c 383 § 4; 1967 ex.s. c 22 § 33.] Effective date—1999 c 383: See note following RCW 15.54.325. 15.54.460 15.54.460 Damages from administrative action, stop sales or seizures. No state court shall allow the recovery of damages from administrative action taken or for stop sales or seizures under RCW 15.54.440 and 15.54.450 if the court finds that there was probable cause for such action. [1967 ex.s. c 22 § 34.] 15.54.470 15.54.470 Violations—Department discretion—Duty of prosecuting attorney—Injunctions. (1) Any person who violates any provision of this chapter shall be guilty of a misdemeanor, and the fines collected shall be disposed of as provided under RCW 15.54.480. (2) Nothing in this chapter shall be considered as requiring the department to report for prosecution or to cancel the registration of a commercial fertilizer product or to stop the sale of fertilizers for violations of this chapter, when violations are of a minor character, and/or when the department [Title 15 RCW—page 93] 15.54.474 Title 15 RCW: Agriculture and Marketing believes that the public interest will be served and protected by a suitable notice of the violation in writing. (3) It shall be the duty of each prosecuting attorney to whom any violation of this chapter is reported, to cause appropriate proceedings to be instituted and prosecuted in a court of competent jurisdiction without delay. Before the department reports a violation of this chapter for such prosecution, an opportunity shall be given the distributor to present his or her view in writing or orally to the department. (4) The department is hereby authorized to apply for, and the court authorized to grant, a temporary or permanent injunction restraining any person from violating or continuing to violate any of the provisions of this chapter or any rule adopted under this chapter, notwithstanding the existence of any other remedy at law. Any such injunction shall be issued without bond. [1998 c 36 § 11; 1993 c 183 § 13; 1967 ex.s. c 22 § 35.] Short title—1998 c 36: See note following RCW 15.54.265. 15.54.474 15.54.474 Penalty—Failure to comply with chapter or rule. Every person who fails to comply with this chapter, or any rule adopted under it, may be subjected to a civil penalty, as determined by the director, in an amount of not more than seven thousand five hundred dollars for every such violation. Each and every such violation shall be a separate and distinct offense. Every person, who, through an act of commission or omission, procures, aids, or abets in the violation shall be considered to have violated this chapter and may be subject to the penalty provided for in this section. [1998 c 36 § 12; 1987 c 45 § 10.] Short title—1998 c 36: See note following RCW 15.54.265. Construction—Severability—1987 c 45: See notes following RCW 15.54.270. (2) The director may adopt appropriate rules for carrying out the purpose and provisions of this chapter, including but not limited to rules providing for: (a) Definitions of terms; (b) Determining standards for labeling and registration of commercial fertilizers; (c) The collection and examination of commercial fertilizers; (d) Recordkeeping by registrants and licensees; (e) Regulation of the use and disposal of commercial fertilizers for the protection of ground water and surface water; and (f) The safe handling, transportation, storage, display, and distribution of commercial fertilizers. (3)(a) Standards are established for allowable levels of nonnutritive substances in commercial fertilizers. These standards are Canadian figures for agricultural and agri-food Canadian maximum acceptable cumulative metal additions to soil established under Trade Memorandum T-4-93 dated August 1996. Washington application rates shall be used to ensure that the maximum acceptable cumulative metal additions to soil are not exceeded. (b) If federal or other risk-based standards are adopted or scientific peer-reviewed studies show that the standards adopted in this section are not at the appropriate level to protect human health or the environment, the department, in consultation with the departments of ecology and health, may initiate a rule making [may adopt a rule] to amend these standards. [1998 c 36 § 15; 1997 c 427 § 3; 1993 c 183 § 14; 1987 c 45 § 9.] Short title—1998 c 36: See note following RCW 15.54.265. Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.54.820 Department of ecology—Waste-derived or micronutrient fertilizer—Standards—Written decision— Appeal of decision. (1) After receipt from the department of the completed application required by RCW 15.54.325, the department of ecology shall evaluate whether the use of the proposed waste-derived fertilizer or the micronutrient fertilizer as defined in RCW 15.54.270 is consistent with the following: (a) Chapter 70.95 RCW, the solid waste management act; (b) Chapter 70.105 RCW, the hazardous waste management act; and (c) 42 U.S.C. Sec. 6901 et seq., the resource conservation and recovery act. (2) The department of ecology shall apply the standards adopted in RCW 15.54.800. If more stringent standards apply under chapter 173-303 WAC for the same constituents, the department of ecology must use the more stringent standards. (3) Within sixty days of receiving the completed application, the department of ecology shall advise the department as to whether the application complies with the requirements of subsections (1) and (2) of this section. In making a determination, the department of ecology shall consult with the department of health and the department of labor and industries. (4) A party aggrieved by a decision of the department of ecology to issue a written approval under this section or to 15.54.820 15.54.480 15.54.480 Disposition of moneys. (1) Except as provided in subsection (2) of this section, all moneys collected under the provisions of this chapter shall be paid to the director and deposited in an account within the agricultural local fund. Such deposits shall be used only in the administration and enforcement of this chapter. (2) Moneys collected under RCW 15.54.474 shall be deposited in the general fund. [1998 c 36 § 13; 1988 c 254 § 3; 1975 1st ex.s. c 257 § 11; 1967 ex.s. c 22 § 36.] Short title—1998 c 36: See note following RCW 15.54.265. Effective date—1975 1st ex.s. c 257: See note following RCW 15.13.470. 15.54.490 15.54.490 Cooperation with other entities. The director may cooperate with and enter into agreements with other governmental agencies, whether of this state, other states, or agencies of the federal government, and with private associations, in order to carry out the purposes and provisions of this chapter. [1967 ex.s. c 22 § 37.] 15.54.800 15.54.800 Enforcement of chapter—Adoption of rules. (1) The director shall administer and enforce the provisions of this chapter and any rules adopted under this chapter. All authority and requirements provided for in chapter 34.05 RCW apply to this chapter in the adoption of rules. [Title 15 RCW—page 94] (2006 Ed.) Washington Pesticide Control Act deny the issuance of such an approval may appeal the decision to the pollution control hearings board within thirty days of the decision. Review of such a decision shall be conducted in accordance with chapter 43.21B RCW. Any subsequent appeal of a decision of the hearings board shall be obtained in accordance with RCW 43.21B.180. [1998 c 36 § 16.] Short title—1998 c 36: See note following RCW 15.54.265. 15.54.910 15.54.910 Prior liability preserved. The enactment of this chapter shall not have the effect of terminating, or in any way modifying any liability, civil or criminal, which shall already be in existence on the effective date of this chapter. [1967 ex.s. c 22 § 38.] 15.58.120 15.58.130 15.58.140 15.58.150 15.58.160 15.58.170 15.58.180 15.58.200 15.58.205 15.58.207 15.58.210 15.58.220 15.58.230 15.58.233 15.58.235 15.58.240 15.58.250 15.58.260 15.54.930 15.54.930 Effective date—1967 ex.s. c 22. The effective date of this act is July 1, 1967. [1967 ex.s. c 22 § 40.] 15.54.940 15.54.940 Continuation of rules adopted pursuant to repealed sections. The repeal of sections 15.54.010 through 15.54.250 and 15.54.900, chapter 11, Laws of 1961 and chapter 15.54 RCW and the enactment of this act shall not be deemed to have repealed any rules adopted under the provisions of sections 15.54.010 through 15.54.250 and 15.54.900, chapter 11, Laws of 1961 and chapter 15.54 RCW and in effect immediately prior to such repeal and not inconsistent with the provisions of this act. All such rules shall be considered to have been adopted under the provisions of this act. [1967 ex.s. c 22 § 41.] Repeal of prior law by 1967 act: "Sections 15.54.010 through 15.54.250 and section 15.54.900, chapter 11, Laws of 1961 and RCW 15.54.010 through 15.54.250 and 15.54.900 are each repealed." [1967 ex.s. c 22 § 43.] 15.54.950 15.54.950 Short title. RCW 15.54.270 through 15.54.490 and 15.54.910 through 15.54.940 shall be known as the "Washington Commercial Fertilizer Act." [1967 ex.s. c 22 § 42.] 15.58.270 15.58.280 15.58.290 15.58.300 15.58.310 15.58.320 15.58.330 15.58.335 15.58.340 15.58.345 15.58.350 15.58.360 15.58.370 15.58.380 15.58.400 15.58.405 15.58.411 15.58.420 15.58.445 15.58.450 15.58.460 15.58.465 15.58.470 15.54.960 15.54.960 Severability—1967 ex.s. c 22. If any section or provision of this chapter shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the chapter as a whole or any section, provision, or part thereof, not adjudged invalid or unconstitutional. [1967 ex.s. c 22 § 44.] Chapter 15.58 RCW WASHINGTON PESTICIDE CONTROL ACT Chapter 15.58 Sections 15.58.010 15.58.020 15.58.030 15.58.040 15.58.045 15.58.050 15.58.060 15.58.065 15.58.070 15.58.080 15.58.090 15.58.100 15.58.110 (2006 Ed.) Short title. Declaration of public interest. Definitions. Director’s authority—Rules. Disposal of unusable pesticides—Rules. Registration of pesticides—Generally. Statement for registration—Contents. Protection of privileged or confidential information. Pesticide annual registration fee—Expiration of registrations—Deposit in agricultural local fund. Additional fee for late registration renewal. Certain agencies may register without fee—Not subject to RCW 15.58.180. Criterion for registering. Refusing or canceling registration—Procedure. 15.58.900 15.58.901 15.58.910 15.58.920 15.58.940 15.58.941 15.58.942 15.58.943 15.58.020 Suspension of registration when hazard to public health. "Misbranded" as applicable to pesticides, devices, or spray adjuvants. "Adulterated" as applicable to pesticides. Unlawful practices. Violations of chapter—"Stop sale, use or removal" order. "Stop sale, use or removal" order—Adjudication. Pesticide dealer license—Generally. Pesticide dealer manager—License qualifications. Structural pest inspector licenses—Required—Exemptions. Structural pest inspector licenses—Examination. Pest control consultant licenses—Required—Exemptions. Public pest control consultant license. Consultant’s license—Requirements. Renewal of licenses—Recertification standards. Renewal of licenses—Delinquency. Classification of licenses. Recordkeeping requirements. Civil penalties and/or denial, suspension, or revocation of license, registration or permit. Subpoenas—Witness fees. Sampling and examination of pesticides or devices—Procedure when criminal proceedings contemplated. Minor violations, warning notice in writing. Persons exempted from certain penalties under RCW 15.58.150. Pesticides for foreign export not in violation of chapter. Certain pharmacists exempted from licensing provisions. Violation of chapter—Misdemeanor. Civil penalty. Injunction. Damages—Civil action not precluded. Persons charged with enforcement barred from interest in pesticides, devices. No recovery of damages when probable cause. Results of analyses to be published. Board to advise director. Cooperation and agreements with other agencies. Emergency situations—Special local needs—Experimental use permits. Use of license fees—Deposit of money collected for civil penalties. Report to legislature. Wood destroying organism inspections—License required. Wood destroying organism inspection report—Unique inspection control number required. Structural pest inspector—Evidence of financial responsibility required—Exemptions. Structural pest inspector—Forms of evidence of financial responsibility—Amount—Terms. Structural pest inspector—Failure to meet financial responsibility requirements. Effective date—1971 ex.s. c 190. Effective date—2000 c 96. Continuation of rules adopted pursuant to repealed sections. Existing liabilities not affected. Severability—1971 ex.s. c 190. Severability—1979 c 146. Severability—1989 c 380. Effective date—2003 c 212. 15.58.010 15.58.010 Short title. This chapter may be known and cited as the Washington Pesticide Control Act. [1971 ex.s. c 190 § 1.] 15.58.020 15.58.020 Declaration of public interest. The formulation, distribution, storage, transportation, and disposal of any pesticide and the dissemination of accurate scientific information as to the proper use, or nonuse, of any pesticide, is important and vital to the maintenance of a high level of public health and welfare both immediate and future, and is hereby declared to be a business affected with the public interest. The provisions of this chapter are enacted in the exercise of the police powers of the state for the purpose of protecting the immediate and future health and welfare of the people of the state. [1971 ex.s. c 190 § 2.] [Title 15 RCW—page 95] 15.58.030 15.58.030 Title 15 RCW: Agriculture and Marketing 15.58.030 Definitions. As used in this chapter the words and phrases defined in this section shall have the meanings indicated unless the context clearly requires otherwise. (1) "Active ingredient" means any ingredient which will prevent, destroy, repel, control, or mitigate pests, or which will act as a plant regulator, defoliant, desiccant, or spray adjuvant. (2) "Antidote" means the most practical immediate treatment in case of poisoning and includes first aid treatment. (3) "Arthropod" means any invertebrate animal that belongs to the phylum arthropoda, which in addition to insects, includes allied classes whose members are wingless and usually have more than six legs; for example, spiders, mites, ticks, centipedes, and isopod crustaceans. (4) "Complete wood destroying organism inspection" means inspection for the purpose of determining evidence of infestation, damage, or conducive conditions as part of the transfer, exchange, or refinancing of any structure in Washington state. Complete wood destroying organism inspections include any wood destroying organism inspection that is conducted as the result of telephone solicitation by an inspection, pest control, or other business, even if the inspection would fall within the definition of a specific wood destroying organism inspection. (5) "Defoliant" means any substance or mixture of substances intended to cause the leaves or foliage to drop from a plant with or without causing abscission. (6) "Department" means the Washington state department of agriculture. (7) "Desiccant" means any substance or mixture of substances intended to artificially accelerate the drying of plant tissues. (8) "Device" means any instrument or contrivance intended to trap, destroy, control, repel, or mitigate pests, or to destroy, control, repel or mitigate fungi, nematodes, or such other pests, as may be designated by the director, but not including equipment used for the application of pesticides when sold separately from the pesticides. (9) "Director" means the director of the department or a duly authorized representative. (10) "Distribute" means to offer for sale, hold for sale, sell, barter, or supply pesticides in this state. (11) "EPA" means the United States environmental protection agency. (12) "EPA restricted use pesticide" means any pesticide with restricted uses as classified for restricted use by the administrator, EPA. (13) "FIFRA" means the federal insecticide, fungicide, and rodenticide act as amended (61 Stat. 163, 7 U.S.C. Sec. 136 et seq.). (14) "Fungi" means all nonchlorophyll-bearing thallophytes (all nonchlorophyll-bearing plants of a lower order than mosses and liverworts); for example, rusts, smuts, mildews, molds, yeasts, and bacteria, except those on or in living persons or other animals. (15) "Fungicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any fungi. [Title 15 RCW—page 96] (16) "Herbicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any weed. (17) "Inert ingredient" means an ingredient which is not an active ingredient. (18) "Ingredient statement" means a statement of the name and percentage of each active ingredient together with the total percentage of the inert ingredients in the pesticide, and when the pesticide contains arsenic in any form, the ingredient statement shall also include percentages of total and water soluble arsenic, each calculated as elemental arsenic. The ingredient statement for a spray adjuvant must be consistent with the labeling requirements adopted by rule. (19) "Insect" means any of the numerous small invertebrate animals whose bodies are more or less obviously segmented, and which for the most part belong to the class insecta, comprising six-legged, usually winged forms, for example, beetles, bugs, bees, flies, and to other allied classes of arthropods whose members are wingless and usually have more than six legs, for example, spiders, mites, ticks, centipedes, and isopod crustaceans. (20) "Insecticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any insects which may be present in any environment whatsoever. (21) "Inspection control number" means a number obtained from the department that is recorded on wood destroying organism inspection reports issued by a structural pest inspector in conjunction with the transfer, exchange, or refinancing of any structure. (22) "Label" means the written, printed, or graphic matter on, or attached to, the pesticide, device, or immediate container, and the outside container or wrapper of the retail package. (23) "Labeling" means all labels and other written, printed, or graphic matter: (a) Upon the pesticide, device, or any of its containers or wrappers; (b) Accompanying the pesticide, or referring to it in any other media used to disseminate information to the public; and (c) To which reference is made on the label or in literature accompanying or referring to the pesticide or device except when accurate nonmisleading reference is made to current official publications of the department, United States departments of agriculture; interior; education; health and human services; state agricultural colleges; and other similar federal or state institutions or agencies authorized by law to conduct research in the field of pesticides. (24) "Land" means all land and water areas, including airspace and all plants, animals, structures, buildings, devices and contrivances, appurtenant thereto or situated thereon, fixed or mobile, including any used for transportation. (25) "Master license system" means the mechanism established by chapter 19.02 RCW by which master licenses, endorsed for individual state-issued licenses, are issued and renewed using a master application and a master license expiration date common to each renewable license endorsement. (26) "Nematocide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate nematodes. (2006 Ed.) Washington Pesticide Control Act (27) "Nematode" means any invertebrate animal of the phylum nemathelminthes and class nematoda, that is, unsegmented round worms with elongated, fusiform, or saclike bodies covered with cuticle, and inhabiting soil, water, plants or plant parts, may also be called nemas or eelworms. (28) "Person" means any individual, partnership, association, corporation, or organized group of persons whether or not incorporated. (29) "Pest" means, but is not limited to, any insect, rodent, nematode, snail, slug, weed and any form of plant or animal life or virus, except virus on or in a living person or other animal, which is normally considered to be a pest or which the director may declare to be a pest. (30) "Pest control consultant" means any individual who sells or offers for sale at other than a licensed pesticide dealer outlet or location where they are employed, or who offers or supplies technical advice or makes recommendations to the user of: (a) Highly toxic pesticides, as determined under RCW 15.58.040; (b) EPA restricted use pesticides or restricted use pesticides which are restricted by rule to distribution by licensed pesticide dealers only; or (c) Any other pesticide except those pesticides which are labeled and intended for home and garden use only. (31) "Pesticide" means, but is not limited to: (a) Any substance or mixture of substances intended to prevent, destroy, control, repel, or mitigate any insect, rodent, snail, slug, fungus, weed, and any other form of plant or animal life or virus, except virus on or in a living person or other animal which is normally considered to be a pest or which the director may declare to be a pest; (b) Any substance or mixture of substances intended to be used as a plant regulator, defoliant or desiccant; and (c) Any spray adjuvant. (32) "Pesticide advisory board" means the pesticide advisory board as provided for in the Washington pesticide application act. (33) "Pesticide dealer" means any person who distributes any of the following pesticides: (a) Highly toxic pesticides, as determined under RCW 15.58.040; (b) EPA restricted use pesticides or restricted use pesticides which are restricted by rule to distribution by licensed pesticide dealers only; or (c) Any other pesticide except those pesticides which are labeled and intended for home and garden use only. (34) "Pesticide dealer manager" means the owner or other individual supervising pesticide distribution at one outlet holding a pesticide dealer license. (35) "Plant regulator" means any substance or mixture of substances intended through physiological action, to accelerate or retard the rate of growth or maturation, or to otherwise alter the behavior of ornamental or crop plants or their produce, but shall not include substances insofar as they are intended to be used as plant nutrients, trace elements, nutritional chemicals, plant inoculants, or soil amendments. (36) "Registrant" means the person registering any pesticide under the provisions of this chapter. (37) "Restricted use pesticide" means any pesticide or device which, when used as directed or in accordance with a (2006 Ed.) 15.58.040 widespread and commonly recognized practice, the director determines, subsequent to a hearing, requires additional restrictions for that use to prevent unreasonable adverse effects on the environment including people, lands, beneficial insects, animals, crops, and wildlife, other than pests. (38) "Rodenticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate rodents, or any other vertebrate animal which the director may declare by rule to be a pest. (39) "Specific wood destroying organism inspection" means an inspection of a structure for purposes of identifying or verifying evidence of an infestation of wood destroying organisms prior to pest management activities. (40) "Spray adjuvant" means any product intended to be used with a pesticide as an aid to the application or to the effect of the pesticide, and which is in a package or container separate from the pesticide. Spray adjuvant includes, but is not limited to, acidifiers, compatibility agents, crop oil concentrates, defoaming agents, drift control agents, modified vegetable oil concentrates, nonionic surfactants, organosilicone surfactants, stickers, and water conditioning agents. Spray adjuvant does not include products that are only intended to mark the location where a pesticide is applied. (41) "Special local needs registration" means a registration issued by the director pursuant to provisions of section 24(c) of FIFRA. (42) "Structural pest inspector" means any individual who performs the service of conducting a complete wood destroying organism inspection or a specific wood destroying organism inspection. (43) "Unreasonable adverse effects on the environment" means any unreasonable risk to people or the environment taking into account the economic, social, and environmental costs and benefits of the use of any pesticide, or as otherwise determined by the director. (44) "Weed" means any plant which grows where not wanted. (45) "Wood destroying organism" means insects or fungi that consume, excavate, develop in, or otherwise modify the integrity of wood or wood products. Wood destroying organism includes, but is not limited to, carpenter ants, moisture ants, subterranean termites, dampwood termites, beetles in the family Anobiidae, and wood decay fungi (wood rot). (46) "Wood destroying organism inspection report" means any written document that reports or comments on the presence or absence of wood destroying organisms, their damage, and/or conducive conditions leading to the establishment of such organisms. [2004 c 100 § 6; 2003 c 212 § 1; 2000 c 96 § 1; 1992 c 170 § 1; 1991 c 264 § 1; 1989 c 380 § 1; 1982 c 182 § 26; 1979 c 146 § 1; 1971 ex.s. c 190 § 3.] Effective date—2004 c 100: See note following RCW 17.21.020. Severability—1982 c 182: See RCW 19.02.901. 15.58.040 15.58.040 Director’s authority—Rules. (1) The director shall administer and enforce the provisions of this chapter and rules adopted under this chapter. All the authority and requirements provided for in chapter 34.05 RCW (Administrative Procedure Act) and chapter 42.30 RCW shall apply to this chapter in the adoption of rules including those requiring due notice and a hearing for the adoption of permanent rules. [Title 15 RCW—page 97] 15.58.045 Title 15 RCW: Agriculture and Marketing (2) The director is authorized to adopt appropriate rules for carrying out the purpose and provisions of this chapter, including but not limited to rules providing for: (a) Declaring as a pest any form of plant or animal life or virus which is injurious to plants, people, animals (domestic or otherwise), land, articles, or substances; (b) Determining that certain pesticides are highly toxic to people. For the purpose of this chapter, highly toxic pesticide means any pesticide that conforms to the criteria in 40 C.F.R. Sec. 156.10 for toxicity category I due to oral inhalation or dermal toxicity. The director shall publish a list of all pesticides, determined to be highly toxic, by their common or generic name and their trade or brand name if practical. Such list shall be kept current and shall, upon request, be made available to any interested party; (c) Determining standards for denaturing pesticides by color, taste, odor, or form; (d) The collection and examination of samples of pesticides or devices; (e) The safe handling, transportation, storage, display, distribution, and disposal of pesticides and their containers; (f) Restricting or prohibiting the use of certain types of containers or packages for specific pesticides. These restrictions may apply to type of construction, strength, and/or size to alleviate danger of spillage, breakage, misuse, or any other hazard to the public. The director shall be guided by federal regulations concerning pesticide containers; (g) Procedures in making of pesticide recommendations; (h) Adopting a list of restricted use pesticides for the state or for designated areas within the state if the director determines that such pesticides may require rules restricting or prohibiting their distribution or use. The director may include in the rule the time and conditions of distribution or use of such restricted use pesticides and may, if it is found necessary to carry out the purpose and provisions of this chapter, require that any or all restricted use pesticides shall be purchased, possessed, or used only under permit of the director and under the director’s direct supervision in certain areas and/or under certain conditions or in certain quantities or concentrations. The director may require all persons issued such permits to maintain records as to the use of all the restricted use pesticides; (i) Label requirements of all pesticides required to be registered under provisions of this chapter; (j) Regulating the labeling of devices; (k) The establishment of criteria governing the conduct of a structural pest inspection; (l) Declaring crops, when grown to produce seed specifically for crop reproduction purposes, to be nonfood and/or nonfeed sites of pesticide application. The director may include in the rule any restrictions or conditions regarding: (i) The application of pesticides to the designated crops; and (ii) the disposition of any portion of the treated crop; (m) Fixing and collecting examination fees; and (n) Requiring individuals to earn recertification credits in the classifications in which they are licensed. (3) For the purpose of uniformity and to avoid confusion endangering the public health and welfare the director may adopt rules in conformity with the primary pesticide standards, particularly as to labeling, established by the United States environmental protection agency or any other federal [Title 15 RCW—page 98] agency. [2003 c 212 § 2; 2000 c 96 § 8; 1997 c 242 § 1; 1996 c 188 § 4; 1991 c 264 § 2; 1989 c 380 § 2; 1971 ex.s. c 190 § 4.] 15.58.045 15.58.045 Disposal of unusable pesticides—Rules. The director of agriculture may adopt rules to allow the department of agriculture to take possession and dispose of canceled, suspended, or otherwise unusable pesticides held by persons licensed under chapter 15.58 RCW or regulated under chapter 17.21 RCW. For purposes of this section, the department may become licensed as a hazardous waste generator. The department may set fees to cover expenses in connection with pesticide waste received from persons licensed under chapter 15.58 RCW. [1989 c 354 § 57.] Severability—1989 c 354: See note following RCW 15.36.012. 15.58.050 15.58.050 Registration of pesticides—Generally. Every pesticide which is distributed within this state or delivered for transportation or transported in intrastate commerce or between points within this state through any point outside this state shall be registered with the director subject to the provisions of this chapter. However, registration is not required if: A pesticide is shipped from one plant or warehouse to another plant or warehouse operated by the same person and used solely at such plant or warehouse as a constituent part to make a pesticide which is registered under the provisions of this chapter; or a written permit has been obtained from the director to distribute or use the specific pesticide for experimental purposes subject to restrictions and conditions set forth in the permit. [2002 c 274 § 1; 1989 c 380 § 3; 1971 ex.s. c 190 § 5.] Effective date—Expiration date—2002 c 274: "(1) Sections 1, 2, and 4 of this act take effect January 1, 2003. (2) Section 2 of this act expires January 1, 2004." [2002 c 274 § 5.] 15.58.060 15.58.060 Statement for registration—Contents. (1) The applicant for registration shall file a statement with the department which shall include: (a) The name and address of the applicant and the name and address of the person whose name will appear on the label, if other than the applicant’s; (b) The name of the pesticide; (c) The complete formula of the pesticide, including the active and inert ingredients: PROVIDED, That confidential business information of a proprietary nature is not made available to any other person and is exempt from disclosure as a public record, as provided by RCW 42.56.070; (d) Other necessary information required for completion of the department’s application for registration form; and (e) A complete copy of the labeling accompanying the pesticide and a statement of all claims to be made for it, including the directions and precautions for use. (2) The director may require a full description of the tests made and the results thereof upon which the claims are based. (3) The director may prescribe other necessary information by rule. [2005 c 274 § 215; 1989 c 380 § 4; 1971 ex.s. c 190 § 6.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. (2006 Ed.) Washington Pesticide Control Act 15.58.065 15.58.065 Protection of privileged or confidential information. (1) In submitting data required by this chapter, the applicant may: (a) Mark clearly any portions which in the applicant’s opinion are trade secrets or commercial or financial information; and (b) Submit such marked material separately from other material required to be submitted under this chapter. (2) Notwithstanding any other provision of this chapter or other law, the director shall not make public information which in the director’s judgment should be privileged or confidential because it contains or relates to trade secrets or commercial or financial information except that, when necessary to carry out the provisions of this chapter, information relating to unpublished formulas of products acquired by authorization of this chapter may be revealed to any state or federal agency consulted and may be revealed at a public hearing or in findings of fact issued by the director when necessary under this chapter. (3) If the director proposes to release for inspection information which the applicant or registrant believes to be protected from disclosure under subsection (2) of this section, the director shall notify the applicant or registrant in writing, by certified mail. The director shall not thereafter make available for inspection such data until thirty days after receipt of the notice by the applicant or registrant. During this period, the applicant or registrant may institute an action in the superior court of Thurston county for a declaratory judgment as to whether such information is subject to protection under subsection (2) of this section. [1989 c 380 § 5; 1979 c 146 § 4.] 15.58.110 Effective date—1997 c 242: "Sections 2, 4 through 7, 11 through 15, 17, and 22 of this act take effect January 1, 1998." [1997 c 242 § 23.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. Effective date—1994 c 46: "Sections 1 through 20, 26, and 27 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [March 21, 1994]." [1994 c 46 § 28.] 15.58.080 15.58.080 Additional fee for late registration renewal. If the renewal of a pesticide registration or special needs registration is not filed by the day the registration expires, an additional fee of fifty dollars shall be assessed and added to the original fee. The additional fee shall be paid by the applicant before the registration renewal for that pesticide shall be issued unless the applicant furnishes an affidavit certifying that the applicant did not distribute the unregistered pesticide during the period of nonregistration. The payment of the additional fee is not a bar to any prosecution for doing business without proper registry. [2002 c 274 § 4; 1994 c 46 § 2; 1989 c 380 § 7; 1983 c 95 § 3; 1971 ex.s. c 190 § 8.] Effective date—Expiration date—2002 c 274: See note following RCW 15.58.050. Effective date—1994 c 46: See note following RCW 15.58.070. 15.58.090 15.58.090 Certain agencies may register without fee—Not subject to RCW 15.58.180. All federal, state, and county agencies shall register without fee all pesticides sold by them and they shall not be subject to the license provisions of RCW 15.58.180. [1971 ex.s. c 190 § 9.] 15.58.100 15.58.070 15.58.070 Pesticide annual registration fee—Expiration of registrations—Deposit in agricultural local fund. (1) All registrations issued by the department expire December 31st of the following year except that registrations issued by the department to a registrant who is applying to register an additional pesticide during the second year of the registrant’s registration period shall expire December 31st of that year. (2) An application for registration shall be accompanied by a fee of two hundred ninety dollars for each pesticide, except that a registrant who is applying to register an additional pesticide during the year the registrant’s registration expires shall pay a fee of one hundred forty-five dollars for each additional pesticide. (3) Fees shall be deposited in the agricultural local fund to support the activities of the pesticide program within the department. (4) Any registration approved by the director and in effect on the last day of the registration period, for which a renewal application has been made and the proper fee paid, continues in full force and effect until the director notifies the applicant that the registration has been renewed, or otherwise denied in accord with the provision of RCW 15.58.110. [2002 c 274 § 3 (2002 c 274 § 2 expired January 1, 2004); 1997 c 242 § 2; 1995 c 374 § 66; 1994 c 46 § 1; 1989 c 380 § 6; 1983 c 95 § 2; 1971 ex.s. c 190 § 7.] Effective date—2002 c 274 § 3: "Section 3 of this act takes effect January 1, 2004." [2002 c 274 § 6.] Effective date—Expiration date—2002 c 274: See note following RCW 15.58.070. (2006 Ed.) 15.58.100 Criterion for registering. (1) The director shall require the information required under RCW 15.58.060 and shall register the label or labeling for such pesticide if he determines that: (a) Its composition is such as to warrant the proposed claims for it; (b) Its labeling and other material required to be submitted comply with the requirements of this chapter; (c) It will perform its intended function without unreasonable adverse effects on the environment; (d) When used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment; (e) In the case of any pesticide subject to section 24(c) of FIFRA, it meets (1)(a), (b), (c), and (d) of this section and the following criteria: (i) The proposed classification for general use, for restricted use, or for both is in conformity with section 3(d) of FIFRA; (ii) A special local need exists. (2) The director shall not make any lack of essentiality a criterion for denying registration of any pesticide. [1979 c 146 § 2; 1971 ex.s. c 190 § 10.] 15.58.110 15.58.110 Refusing or canceling registration—Procedure. (1) If it does not appear to the director that the pesticide is such as to warrant the proposed claims for it or if the pesticide and its labeling and other material required to be submitted do not comply with the provisions of this chapter or rules adopted under this chapter, the registrant shall be [Title 15 RCW—page 99] 15.58.120 Title 15 RCW: Agriculture and Marketing notified of the manner in which the pesticide, labeling, or other material required to be submitted fails to comply with the provisions of this chapter so as to afford the applicant an opportunity to make the necessary corrections. If, upon receipt of such notice, the applicant does not make the corrections the director shall refuse to register the pesticide. The applicant may request a hearing as provided for in chapter 34.05 RCW. (2) The director may, when the director determines that a pesticide or its labeling does not comply with the provisions of this chapter or the rules adopted under this chapter, cancel the registration of a pesticide after a hearing in accordance with the provisions of chapter 34.05 RCW. [1989 c 380 § 8; 1971 ex.s. c 190 § 11.] 15.58.120 15.58.120 Suspension of registration when hazard to public health. The director may, when the director determines that there is or may be an imminent hazard to the public health and welfare, suspend on the director’s own motion, the registration of a pesticide in conformance with the provisions of chapter 34.05 RCW. [1989 c 380 § 9; 1971 ex.s. c 190 § 12.] (iv) Directions for use and a warning or caution statement which are necessary and which if complied with would be adequate to protect the public and to prevent injury to the public, including living people, useful vertebrate animals, useful vegetation, useful invertebrate animals, wildlife, and land; and (v) The weight or measure of the content, subject to the provisions of chapter 19.94 RCW (state weights and measures act) as enacted or hereafter amended. (e) If that pesticide contains any substance or substances in quantities highly toxic to people, determined as provided by RCW 15.58.040, unless the label bears, in addition to any other matter required by this chapter: (i) The skull and crossbones; (ii) The word "POISON" in red prominently displayed on a background of distinctly contrasting color; and (iii) A statement of an antidote for the pesticide. (f) If the pesticide container does not bear a label or if the label does not contain all the information required by this chapter or the rules adopted under this chapter. (3) To a spray adjuvant when the label fails to state the type or function of the principal functioning agents. [1989 c 380 § 10; 1971 ex.s. c 190 § 13.] 15.58.130 15.58.130 "Misbranded" as applicable to pesticides, devices, or spray adjuvants. The term "misbranded" shall apply: (1) To any pesticide or device if its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular; (2) To any pesticide: (a) If it is an imitation of or is offered for sale under the name of another pesticide; (b) If its labeling bears any reference to registration under the provision of this chapter unless such reference be required by rules under this chapter; (c) If any word, statement, or other information, required by this chapter or rules adopted under this chapter to appear on the label or labeling, is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or graphic matter in the labeling), and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use; (d) If the label does not bear: (i) The name and address of the manufacturer, registrant or person for whom manufactured; (ii) Name, brand or trademark under which the pesticide is sold; (iii) An ingredient statement on that part of the immediate container and on the outside container or wrapper, if there be one, through which the ingredient statement on the immediate container cannot be clearly read, of the retail package which is presented or displayed under customary conditions of purchase: PROVIDED, That the director may permit the ingredient statement to appear prominently on some other part of the container, if the size or form of the container makes it impracticable to place it on the part of the retail package which is presented or displayed under customary conditions of purchase; [Title 15 RCW—page 100] 15.58.140 15.58.140 "Adulterated" as applicable to pesticides. The term "adulterated" shall apply to any pesticide if its strength or purity deviates from the professed standard or quality as expressed on its labeling or under which it is sold, or if any substance has been substituted wholly or in part for the pesticide, or if any valuable constituent of the pesticide has been wholly or in part abstracted, or if any contaminant is present in an amount which is determined by the director to be a hazard. [1971 ex.s. c 190 § 14.] 15.58.150 15.58.150 Unlawful practices. (1) It is unlawful for any person to distribute within the state or deliver for transportation or transport in intrastate commerce or between points within this state through any point outside this state any of the following: (a) Any pesticide which has not been registered pursuant to the provisions of this chapter; (b) Any pesticide if any of the claims made for it or any of the directions for its use or other labeling differs from the representations made in connection with its registration, or if the composition of a pesticide differs from its composition as represented in connection with its registration: PROVIDED, That at the discretion of the director, a change in the labeling or formula of a pesticide may be made within a registration period without requiring reregistration of the product; (c) Any pesticide unless it is in the registrant’s or the manufacturer’s unbroken immediate container and there is affixed to such container, and to the outside container or wrapper of the retail package, if there is one through which the required information on the immediate container cannot be clearly read, a label bearing the information required in this chapter and the rules adopted under this chapter; (d) Any pesticide including arsenicals, fluorides, fluosilicates, and/or any other white powdered pesticides unless they have been distinctly denatured as to color, taste, odor, or form if so required by rule; (2006 Ed.) Washington Pesticide Control Act (e) Any pesticide which is adulterated or misbranded, or any device which is misbranded; (f) Any pesticide in containers, violating rules adopted pursuant to RCW 15.58.040(2)(f) or pesticides found in containers which are unsafe due to damage. (2) It shall be unlawful: (a) To sell or deliver any pesticide to any person who is required by law or rules promulgated under such law to be certified, licensed, or have a permit to use or purchase the pesticide unless such person or the person’s agent, to whom sale or delivery is made, has a valid certification, license, or permit to use or purchase the kind and quantity of such pesticide sold or delivered: PROVIDED, That, subject to conditions established by the director, such permit may be obtained immediately prior to sale or delivery from any person designated by the director; (b) For any person to detach, alter, deface or destroy, wholly or in part, any label or labeling provided for in this chapter or rules adopted under this chapter, or to add any substance to, or take any substance from, a pesticide in a manner that may defeat the purpose of this chapter or the rules adopted thereunder; (c) For any person to use or cause to be used any pesticide contrary to label directions or to regulations of the director if those regulations differ from or further restrict the label directions: PROVIDED, The compliance to the term "contrary to label directions" is enforced by the director consistent with the intent of this chapter; (d) For any person to use for his or her own advantage or to reveal, other than to the director or proper officials or employees of the state, or to the courts of the state in response to a subpoena, or to physicians, or in emergencies to pharmacists and other qualified persons for use in the preparation of antidotes, any information relative to formulas of products acquired by authority of RCW 15.58.060; (e) For any person to make false, misleading, or erroneous statements or reports concerning any pest during or after a pest inspection or to fail to comply with criteria established by rule for structural pest inspections; (f) For any person to make false, misleading, or erroneous statements or reports in connection with any pesticide complaint or investigation; (g) For any person to act as, or advertise that they perform the services of, a structural pest inspector without having a license to act as a structural pest inspector; (h) For a business to conduct one or more complete wood destroying organism inspections without first having obtained a structural pest inspection company license from the department. [2003 c 212 § 3; 2000 c 96 § 6; 1991 c 264 § 3; 1989 c 380 § 11; 1987 c 45 § 25; 1979 c 146 § 3; 1971 ex.s. c 190 § 15.] Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 15.58.160 15.58.160 Violations of chapter—"Stop sale, use or removal" order. When the director has reasonable cause to believe a pesticide or device is being distributed, stored, or transported in violation of any of the provisions of this chapter, or of any of the prescribed rules under this chapter, the director may issue and serve a written "stop sale, use or removal" order upon the owner or custodian of any such pes(2006 Ed.) 15.58.180 ticide or device. If the owner or custodian is not available for service of the order, the director may attach the order to the pesticide or device. The pesticide or device shall not be sold, used or removed until the provisions of this chapter have been complied with and the pesticide or device has been released in writing under conditions specified by the director, or the violation has been otherwise disposed of as provided in this chapter by a court of competent jurisdiction. [1989 c 380 § 12; 1971 ex.s. c 190 § 16.] 15.58.170 15.58.170 "Stop sale, use or removal" order—Adjudication. (1) After service of a "stop sale, use or removal" order is made upon any person, either that person or the director may file an action in a court of competent jurisdiction in the county in which a violation of this chapter or rules adopted under this chapter is alleged to have occurred for an adjudication of the alleged violation. The court in such action may issue temporary or permanent injunctions mandatory or restraining, and such intermediate orders as it deems necessary or advisable. The court may order condemnation of any pesticide or device which does not meet the requirements of this chapter or rules adopted under this chapter: PROVIDED, That no authority is granted hereunder to affect the sale or use of products on which legally approved pesticides have been legally used. (2) If the pesticide or device is condemned, it shall, after entry of decree, be disposed of by destruction or sale as the court directs, and the proceeds, if such pesticide or device is sold, less cost including legal costs, shall be paid to the state treasury: PROVIDED, That the pesticide or device shall not be sold contrary to the provisions of this chapter or rules adopted under this chapter. Upon payment of costs and execution and delivery of a good and sufficient bond conditioned that the pesticide or device shall not be disposed of unlawfully, the court may direct that the pesticide or device be delivered to the owner thereof for relabeling or reprocessing as the case may be. (3) When a decree of condemnation is entered against the pesticide, court costs, fees, and storage and other proper expenses shall be awarded against the person, if any, appearing as claimant of the pesticide. [1997 c 242 § 3; 1989 c 380 § 13; 1971 ex.s. c 190 § 17.] 15.58.180 15.58.180 Pesticide dealer license—Generally. (1) Except as provided in subsections (4) and (5) of this section, it is unlawful for any person to act in the capacity of a pesticide dealer or advertise as or assume to act as a pesticide dealer without first having obtained an annual license from the director. The license shall expire on the master license expiration date. A license is required for each location or outlet located within this state from which pesticides are distributed. A manufacturer, registrant, or distributor who has no pesticide dealer outlet licensed within this state and who distributes such pesticides directly into this state shall obtain a pesticide dealer license for his or her principal out-of-state location or outlet, but such licensed out-of-state pesticide dealer is exempt from the pesticide dealer manager requirements. (2) Application for a license shall be accompanied by a fee of fifty dollars and shall be made through the master [Title 15 RCW—page 101] 15.58.200 Title 15 RCW: Agriculture and Marketing license system and shall include the full name of the person applying for the license and the name of the individual within the state designated as the pesticide dealer manager. If the applicant is a partnership, association, corporation, or organized group of persons, the full name of each member of the firm or partnership or the names of the officers of the association or corporation shall be given on the application. The application shall further state the principal business address of the applicant in the state and elsewhere, the name of a person domiciled in this state authorized to receive and accept service of summons of legal notices of all kinds for the applicant, and any other necessary information prescribed by the director. (3) It is unlawful for any licensed dealer outlet to operate without a pesticide dealer manager who has a license of qualification. The department shall be notified forthwith of any change in the pesticide dealer manager designee during the licensing period. (4) This section does not apply to (a) a licensed pesticide applicator who sells pesticides only as an integral part of the applicator’s pesticide application service when such pesticides are dispensed only through apparatuses used for such pesticide application, or (b) any federal, state, county, or municipal agency that provides pesticides only for its own programs. (5) A user of a pesticide may distribute a properly labeled pesticide to another user who is legally entitled to use that pesticide without obtaining a pesticide dealer’s license if the exclusive purpose of distributing the pesticide is keeping it from becoming a hazardous waste as defined in chapter 70.105 RCW. [1997 c 242 § 4; 1989 c 380 § 14; 1983 c 95 § 4; 1982 c 182 § 27; 1971 ex.s. c 190 § 18.] Effective date—1997 c 242: See note following RCW 15.58.070. Severability—1982 c 182: See RCW 19.02.901. Master license system: Chapter 19.02 RCW. 15.58.200 15.58.200 Pesticide dealer manager—License qualifications. The director shall require each pesticide dealer manager to demonstrate to the director knowledge of pesticide laws and rules; pesticide hazards; and the safe distribution, use and application, and disposal of pesticides by satisfactorily passing a written examination after which the director shall issue a license of qualification. Application for a license shall be accompanied by a fee of twenty-five dollars. The pesticide dealer manager license shall be an annual license expiring on a date set by rule by the director. [1997 c 242 § 5; 1992 c 170 § 2; 1991 c 109 § 38; 1989 c 380 § 15; 1981 c 297 § 19; 1971 ex.s. c 190 § 20.] Effective date—1997 c 242: See note following RCW 15.58.070. Severability—1981 c 297: See note following RCW 15.36.201. 15.58.205 15.58.205 Structural pest inspector licenses— Required—Exemptions. (1) Except as provided in subsection (2) of this section, no individual may perform services as a structural pest inspector or advertise that they perform services of a structural pest inspector without obtaining a structural pest inspector license from the director. The license expires annually on a date set by rule by the director. Application for a license must be on a form prescribed by the director and must be accompanied by a fee of forty-five dollars. [Title 15 RCW—page 102] (2) The following are exempt from the application fee requirement of subsection (1) of this section when acting within the authorities of their existing licenses issued under chapter 15.58 or 17.21 RCW: Licensed pest control consultants; licensed commercial pesticide applicators and operators; licensed private-commercial applicators; and licensed demonstration and research applicators. (3) The following are exempt from the structural pest inspector licensing requirement: Individuals inspecting for damage caused by wood destroying organisms if the inspections are solely for the purpose of: (a) Repairing or making specific recommendations for the repair of the damage, or (b) assessing a monetary value for the structure inspected. Individuals performing wood destroying organism inspections that incorporate but are not limited to the activities described in (a) or (b) of this subsection are not exempt from the structural pest inspector licensing requirement. (4) Persons holding a valid license to act as a structural pest inspector on July 1, 2003, are exempt from this requirement until expiration of that license. (5) A structural pest inspector license is not valid for conducting a complete wood destroying organism inspection unless the inspector owns or is employed by a business with a structural pest inspection company license. [2003 c 212 § 5.] 15.58.207 15.58.207 Structural pest inspector licenses—Examination. The director shall require each applicant for a structural pest inspector license to demonstrate to the director the applicant’s knowledge of applicable laws and regulations; structural pest identification and damage; and conditions conducive to the development of wood destroying organisms by satisfactorily passing a written examination for the classifications for which the applicant has applied prior to issuing the license. [2003 c 212 § 6.] 15.58.210 15.58.210 Pest control consultant licenses— Required—Exemptions. (1) Except as provided in subsection (2) of this section, no individual may perform services as a pest control consultant without obtaining a license from the director. The license shall expire annually on a date set by rule by the director. Application for a license shall be on a form prescribed by the director and shall be accompanied by a fee of forty-five dollars. (2) The following are exempt from the licensing requirements of subsection (1) of this section when acting within the authorities of their existing licenses issued under chapter 17.21 RCW: Licensed commercial pesticide applicators and operators; licensed private-commercial applicators; and licensed demonstration and research applicators. The following are also exempt from the licensing requirements of subsection (1) of this section: Employees of federal, state, county, or municipal agencies when acting in their official governmental capacities; and pesticide dealer managers and employees working under the direct supervision of the pesticide dealer manager and only at a licensed pesticide dealer’s outlet. [2003 c 212 § 4; 2000 c 96 § 9; 1997 c 242 § 6; 1992 c 170 § 3. Prior: 1991 c 264 § 4; 1991 c 109 § 39; 1989 c 380 § 16; 1983 c 95 § 5; 1971 ex.s. c 190 § 21.] Effective date—1997 c 242: See note following RCW 15.58.070. (2006 Ed.) Washington Pesticide Control Act 15.58.220 15.58.220 Public pest control consultant license. For the purpose of this section public pest control consultant means any individual who is employed by a governmental agency or unit to act as a pest control consultant as defined in *RCW 15.58.030(28). No person shall act as a public pest control consultant without first obtaining a license from the director. The license shall expire annually on a date set by rule by the director. Application for a license shall be on a form prescribed by the director and shall be accompanied by a fee of twenty-five dollars. Federal and state employees whose principal responsibilities are in pesticide research, the jurisdictional health officer or a duly authorized representative, public pest control consultants licensed and working in the health vector field, and public operators licensed under RCW 17.21.220 shall be exempt from this licensing provision. [1997 c 242 § 7; 1991 c 109 § 40; 1989 c 380 § 17; 1986 c 203 § 4; 1981 c 297 § 20; 1971 ex.s. c 190 § 22.] *Reviser’s note: RCW 15.58.030 was amended by 2000 c 96 § 1, changing subsection (28) to subsection (29). RCW 15.58.030 was subsequently amended by 2003 c 212 § 1, changing subsection (29) to subsection (30). Effective date—1997 c 242: See note following RCW 15.58.070. Severability—1986 c 203: See note following RCW 15.17.230. Severability—1981 c 297: See note following RCW 15.36.201. 15.58.250 tal protection agency-approved government agency plan. [2003 c 212 § 7; 2000 c 96 § 7; 1997 c 242 § 10.] 15.58.235 15.58.235 Renewal of licenses—Delinquency. (1) If an application for renewal of a pesticide dealer license is not filed on or before the master license expiration date, the master license delinquency fee shall be assessed under chapter 19.02 RCW and shall be paid by the applicant before the renewal license is issued. (2) If application for renewal of any license provided for in this chapter other than the pesticide dealer license is not filed on or before the expiration date of the license, a penalty equivalent to the license fee shall be assessed and added to the original fee, and shall be paid by the applicant before the renewal license is issued: PROVIDED, That such penalty shall not apply if the applicant furnishes an affidavit certifying that he or she has not acted as a licensee subsequent to the expiration of the license. (3) Any license for which a renewal application has been made, all other requirements have been met, and the proper fee paid, continues in full force and effect until the director notifies the applicant that the license has been renewed or the application has been denied. [1989 c 380 § 19.] 15.58.240 15.58.230 15.58.230 Consultant’s license—Requirements. The director shall require each applicant for a pest control consultant’s license or a public pest control consultant’s license to demonstrate to the director the applicant’s knowledge of pesticide laws and regulations; pesticide hazards; and the safe distribution, use and application, and disposal of pesticides by satisfactorily passing a written examination for the classifications for which the applicant has applied prior to issuing the license. [1989 c 380 § 18; 1971 ex.s. c 190 § 23.] 15.58.233 15.58.233 Renewal of licenses—Recertification standards. (1) The director may renew any license issued under this chapter subject to the recertification standards identified in subsection (2) of this section or an examination requiring new knowledge that may be required to perform in those areas licensed. (2) Except as provided in subsection (3) of this section, all individuals licensed under this chapter shall meet the recertification standards identified in (a) or (b) of this subsection, every five years, in order to qualify for continuing licensure. (a) Individuals licensed under this chapter may qualify for continued licensure through accumulation of recertification credits. Individuals licensed under this chapter shall accumulate a minimum of forty department-approved credits every five years with no more than fifteen credits allowed per year. (b) Individuals licensed under this chapter may qualify for continued licensure through meeting the examination requirements necessary to become licensed in those areas in which the licensee operates. (3) At the termination of a licensee’s five-year recertification period, the director may waive the recertification requirements if the licensee can demonstrate that he or she is meeting comparable recertification standards through another state or jurisdiction or through a federal environmen(2006 Ed.) 15.58.240 Classification of licenses. The director may classify licenses to be issued under the provisions of this chapter. Such classifications may include but not be limited to agricultural crops, ornamentals, or noncrop land herbicides. If the licensee has a classified license the licensee shall be limited to practicing within these classifications. Each such classification shall be subject to separate testing procedures and requirements: PROVIDED, That no person shall be required to pay an additional license fee if the person desires to be licensed in one or all of the license classifications provided for by the director under the authority of this section. The director may charge an examination fee established by the director by rule when an examination is necessary, before a license may be issued or when application for a license and examination is made at other than a regularly scheduled examination date. The director may renew any applicant’s license under the classification for which the applicant is licensed, subject to reexamination or other recertification standards as determined by the director when deemed necessary because new knowledge or new classifications are required to carry out the responsibilities of the licensee. [1989 c 380 § 20; 1986 c 203 § 5; 1971 ex.s. c 190 § 24.] Severability—1986 c 203: See note following RCW 15.17.230. 15.58.250 15.58.250 Recordkeeping requirements. Any person issued a license or permit under the provisions of this chapter may be required by the director to keep accurate records on a form prescribed by the director which may contain the following information: (1) The delivery, movement or holding of any pesticide or device, including the quantity; (2) The date of shipment and receipt; (3) The name of consignor and consignee; and (4) Any other information, necessary for the enforcement of this chapter, as prescribed by the director. [Title 15 RCW—page 103] 15.58.260 Title 15 RCW: Agriculture and Marketing The director shall have access to such records at any reasonable time to copy or make copies of such records for the purpose of carrying out the provisions of this chapter. [1989 c 380 § 22; 1971 ex.s. c 190 § 25.] 15.58.260 15.58.260 Civil penalties and/or denial, suspension, or revocation of license, registration or permit. The director is authorized to impose a civil penalty and/or deny, suspend, or revoke any license, registration or permit provided for in this chapter subject to a hearing and in conformance with the provisions of chapter 34.05 RCW (Administrative Procedure Act) in any case in which the director finds there has been a failure or refusal to comply with the provisions of this chapter or rules adopted under this chapter. [1989 c 380 § 23; 1985 c 158 § 2; 1971 ex.s. c 190 § 26.] 15.58.300 15.58.300 Persons exempted from certain penalties under RCW 15.58.150. The penalties provided for violations of RCW 15.58.150(1)(a), (b), (c), (d), and (e) shall not apply to: (1) Any carrier while lawfully engaged in transporting a pesticide within the state, if such carrier, upon request, permits the director to copy all records showing the transaction in and movement of the articles. (2) Public officials of the state and the federal government engaged in the performance of their official duties. (3) The manufacturer or shipper of a pesticide for experimental use only by or under the supervision of an agency of this state or of the federal government authorized by law to conduct research in the field of pesticides. [1971 ex.s. c 190 § 30.] 15.58.310 15.58.270 15.58.270 Subpoenas—Witness fees. The director may issue subpoenas to compel the attendance of witnesses and/or production of books, documents and records in the county in which the person licensed under this chapter resides in any hearing affecting the authority or privilege granted by a license, registration or permit issued under the provisions of this chapter. Witnesses shall be entitled to fees for attendance and travel, as provided for in chapter 2.40 RCW as enacted or hereafter amended. [1971 ex.s. c 190 § 27.] 15.58.280 15.58.280 Sampling and examination of pesticides or devices—Procedure when criminal proceedings contemplated. The sampling and examination of pesticides or devices shall be made under the direction of the director for the purpose of determining whether or not they comply with the requirements of this chapter. The director is authorized, upon presentation of proper identification, to enter any distributor’s premises, including any vehicle of transport, at all reasonable times in order to have access to pesticides or devices. If it appears from such examination that a pesticide or device fails to comply with the provisions of this chapter or rules adopted under this chapter, and the director contemplates instituting criminal proceedings against any person, the director shall cause notice to be given to such person. Any person so notified shall be given an opportunity to present his views, either orally or in writing, with regard to the contemplated proceedings. If thereafter in the opinion of the director it appears that the provisions of this chapter or rules adopted under this chapter have been violated by such person, the director shall refer a copy of the results of the analysis or the examination of such pesticide or device to the prosecuting attorney for the county in which the violation occurred. [1989 c 380 § 24; 1971 ex.s. c 190 § 28.] 15.58.290 15.58.290 Minor violations, warning notice in writing. Nothing in this chapter shall be construed as requiring the director to report for prosecution or for the institution of condemnation proceedings minor violations of this chapter when the director believes that the public interest will be best served by a suitable notice of warning in writing. [1989 c 380 § 25; 1971 ex.s. c 190 § 29.] [Title 15 RCW—page 104] 15.58.310 Pesticides for foreign export not in violation of chapter. No pesticides shall be deemed in violation of this chapter when intended solely for export to a foreign country, and when prepared or packed according to the specifications or directions of the purchaser. If not so exported, all the provisions of this chapter shall apply. [1971 ex.s. c 190 § 31.] 15.58.320 15.58.320 Certain pharmacists exempted from licensing provisions. The license provisions of this chapter shall not apply to any pharmacist who is licensed pursuant to chapter 18.64 RCW and does not distribute any pesticide required to be registered under the provisions of this chapter. [1971 ex.s. c 190 § 32.] 15.58.330 15.58.330 Violation of chapter—Misdemeanor. Any person violating any provisions of this chapter or rules adopted under this chapter is guilty of a misdemeanor. [1989 c 380 § 26; 1971 ex.s. c 190 § 33.] 15.58.335 15.58.335 Civil penalty. Every person who fails to comply with this chapter or the rules adopted under it may be subjected to a civil penalty, as determined by the director, in an amount of not more than seven thousand five hundred dollars for every such violation. Each and every such violation shall be a separate and distinct offense. Every person who, through an act of commission or omission, procures, aids, or abets in the violation shall be considered to have violated this section and may be subject to the civil penalty herein provided. [1989 c 380 § 27; 1985 c 158 § 1.] 15.58.340 15.58.340 Injunction. The director may bring an action to enjoin the violation or threatened violation of any provision of this chapter or any rule made pursuant to this chapter in a court of competent jurisdiction of the county in which such violation occurs or is about to occur. [1989 c 380 § 28; 1971 ex.s. c 190 § 34.] 15.58.345 15.58.345 Damages—Civil action not precluded. Nothing in this chapter shall preclude any person aggrieved by a violation of this chapter from bringing suit in a court of competent jurisdiction for damages arising from the violation. [1989 c 380 § 29.] (2006 Ed.) Washington Pesticide Control Act 15.58.350 15.58.350 Persons charged with enforcement barred from interest in pesticides, devices. No person charged with the enforcement of any provision of this chapter shall be directly or indirectly interested in the sale, manufacture or distribution of any pesticide or device. [1971 ex.s. c 190 § 35.] 15.58.360 15.58.360 No recovery of damages when probable cause. No state court shall allow the recovery of damages from administrative action taken or for "stop sale, use or removal" if the court finds that there was probable cause for such action. [1971 ex.s. c 190 § 36.] 15.58.370 15.58.370 Results of analyses to be published. The department shall publish at least annually and in such form as it may deem proper, results of analyses based on official samples as compared with the analyses guaranteed and information concerning the distribution of pesticides: PROVIDED, That individual distribution information shall not be a public record. [1971 ex.s. c 190 § 37.] 15.58.380 15.58.380 Board to advise director. The pesticide advisory board shall advise the director on any or all problems relating to the formulation, distribution, storage, transportation, disposal, and use of pesticides in the state. [1971 ex.s. c 190 § 38.] 15.58.400 15.58.400 Cooperation and agreements with other agencies. The director is authorized to cooperate with and enter into agreements with any other agency of the state, the United States, and any other state or agency thereof for the purpose of carrying out the provisions of this chapter and securing uniformity of regulation. [1971 ex.s. c 190 § 40.] 15.58.405 15.58.405 Emergency situations—Special local needs—Experimental use permits. For the purpose of exercising the authority granted to the state under the provisions of FIFRA, the director may: (1) Meet emergency conditions in this state by applying for an exemption from any provision of FIFRA as provided for by section 18 of that act. If such exemption is granted by the administrator of EPA the director may carry out and enforce the requirements and conditions of the exemption; (2) Comply with the requirements necessary to issue special local needs registration under section 24(c) of FIFRA; and (3) Comply with the requirements necessary to issue experimental use permits under section 5(f) of FIFRA. [1979 c 146 § 5.] 15.58.411 15.58.411 Use of license fees—Deposit of money collected for civil penalties. All license fees collected under this chapter shall be paid to the director for use exclusively in the enforcement of this chapter. All moneys collected for civil penalties levied under this chapter shall be deposited in the state general fund. [1997 c 242 § 8; 1995 c 374 § 67.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. (2006 Ed.) 15.58.460 15.58.420 15.58.420 Report to legislature. By February 1st of each year the department shall report to the appropriate committees of the house of representatives and the senate on the activities of the department under this chapter. The report shall include, at a minimum, a review of the department’s enforcement activities, with the number of cases investigated and the number and amount of civil penalties assessed. [1997 c 242 § 9; 1989 c 380 § 30.] 15.58.445 15.58.445 Wood destroying organism inspections— License required. It is unlawful for any business to conduct complete wood destroying organism inspections without having obtained a company license from the director. Application for a structural pest inspection company license must be on a form prescribed by the director. The application must include the following information: (1) The full name of the individual applying for such license; (2) The full name of the company that employs structural pest inspectors; (3) The physical and mailing addresses of the company, and the telephone and facsimile numbers, if available; (4) A list of the names of the structural pest inspectors who are employed by the company; (5) The unique business identifier for the company; and (6) Any other necessary information prescribed by the director. Any changes to the information on the prescribed structural pest inspection company license form shall be reported by the company to the department within thirty days of the change. [2003 c 212 § 8.] 15.58.450 15.58.450 Wood destroying organism inspection report—Unique inspection control number required. It is unlawful for any person to issue a wood destroying organism inspection report, prepared in conjunction with the transfer, exchange, or refinancing of any structure, without recording a unique inspection control number on the wood destroying organism inspection report. All wood destroying organism inspection reports completed by the same inspector, relating to a single transfer, exchange, or refinance, shall bear the same unique inspection control number. The responsibility to record the unique inspection control number on the report under this section lies solely with the person issuing the wood destroying organism inspection report. [2000 c 96 § 2.] 15.58.460 15.58.460 Structural pest inspector—Evidence of financial responsibility required—Exemptions. (1) The director shall not issue a license to any individual who intends to act as a structural pest inspector until evidence of financial responsibility, required and described in subsection (2) of this section, is furnished by the applicant or the business employing the applicant. Licensed commercial applicators that have met the requirements of RCW 17.21.160 and their licensed commercial operator employees are exempt from this financial responsibility requirement when performing specific wood destroying organism inspections. Public employees licensed to perform structural pest inspections are exempt from this licensing requirement when acting within their official capacities. [Title 15 RCW—page 105] 15.58.465 Title 15 RCW: Agriculture and Marketing (2) Evidence of financial responsibility, consisting of one of the following, must be provided and maintained as a condition of licensure: (a) An errors and omissions insurance policy, the amount and terms of which are consistent with the requirements of RCW 15.58.465(1)(a); (b) A surety bond, the amounts and terms of which are consistent with the requirements of RCW 15.58.465(1)(b); (c) A surety bond and an errors and omissions insurance policy, the amount and terms of which are consistent with the requirements of RCW 15.58.465(1)(c); (d) An assigned account, the amount and terms of which are consistent with the requirements of RCW 15.58.465(1)(d); (e) Any other type of evidence of financial responsibility identified by the director by rule that provides coverage equivalent to that provided by any of (a) through (d) of this subsection. (3) Evidence of financial responsibility must be supplied to the department on a financial responsibility insurance certificate, surety bond form, assigned account form, or other form prescribed by the director with regard to evidence provided under subsection (2)(e) of this section. [2003 c 212 § 9; 2000 c 96 § 3.] 15.58.465 Structural pest inspector—Forms of evidence of financial responsibility—Amount—Terms. (1) The following requirements apply to the forms of evidence of financial responsibility required under RCW 15.58.460. (a) Errors and Omissions Insurance. The amount of the errors and omissions insurance policy required by RCW 15.58.460(2)(a) shall not be less than twenty-five thousand dollars. The insurance policy shall be maintained at not less than the required sum at all times during the licensed period. The insurance policy shall provide coverage for errors and omissions in an inspection conducted during the term of the policy. However, the policy may limit the insurer’s liability on the policy in effect at the time of the inspection to two years from the date of the inspection. (b) Surety Bond. The amount of the surety bond required by RCW 15.58.460(2)(b) shall not be less than twenty-five thousand dollars. The surety bond shall be maintained at not less than the required sum at all times during the licensed period. Any person having a claim against the structural pest inspector for legal damages as a result of the actions of the structural pest inspector may bring suit upon the bond in the court of the county in which the inspection took place or of the county in which jurisdiction of the structural pest inspector may be had. The surety issuing the bond shall be named as a party to any suit upon the bond. The suit upon the bond must be commenced within two years of the date of the inspection. (c) Surety Bond and Errors and Omissions Insurance. The amount of the surety bond required by RCW 15.58.460(2)(c) shall not be less than twelve thousand five hundred dollars. Except as to the amount of the bond, the terms of the bond shall be identical to those set forth in (b) of this subsection. The amount of the errors and omissions insurance policy required by RCW 15.58.460(2)(c) shall not be less than twenty-five thousand dollars. The insurance policy shall be maintained at not less than the required sum at all 15.58.465 [Title 15 RCW—page 106] times during the licensed period. The insurance policy shall provide coverage for errors and omissions in an inspection conducted during the term of the policy. (d) Assigned Account. The amount of the assigned account required by RCW 15.58.460(2)(d) shall not be less than twenty-five thousand dollars. The assigned account shall be held by the department to satisfy any execution on a judgment issued against the inspector for legal damages resulting from errors and omissions in the conduct of an inspection, according to the provisions of the assigned account agreement. The department has no liability for payment in excess of the amount of the assigned account. (i) The assigned account agreement filed with the director as evidence of financial responsibility shall be canceled at the expiration of two years after the inspector’s license has expired or been revoked, or at the expiration of two years after the inspector has furnished another form of evidence of financial responsibility required by RCW 15.58.460, unless legal action has been instituted against the inspector prior to the expiration of the two-year period and the director has been provided written notice of the same by the claimant. In such a case the director shall not cancel the assigned account agreement until the director either receives a copy of the order dismissing the action by registered or certified mail, or has received a copy of the unsatisfied judgment and has complied with the requirements of (d)(ii) of this subsection. (ii) Any person having an unsatisfied final judgment against the inspector for legal damages awarded based on errors and omissions in the conduct of an inspection may execute upon the funds in the assigned account by serving a certified copy of the unsatisfied final judgment by registered or certified mail upon the department within one year of the date of entry of such judgment. Upon the receipt of service of such certified copy the department shall direct the financial institution to pay from the assigned account, through the registry of the court which rendered judgment, towards the amount of the unsatisfied judgment. The priority of payment from the assigned account shall be the order of receipt of the final judgment by the department. (2) Nothing in subsection (1) of this section that limits the time period in which a suit must be commenced on a surety bond or in which a claim must be made on a policy effects the statute of limitations applicable to any claim any person may have against the structural pest inspector or company. (3) The director may only accept a surety bond or insurance policy as evidence of financial responsibility if the bond or policy is issued by an insurer authorized to do business in this state. The director shall be notified ten days before any reduction of insurance coverage at the request of the applicant or cancellation of the surety bond or insurance by the surety or insurer and by the insured. (4) The total and aggregate of the surety and insurer for all claims is limited to the face of the surety bond or insurance policy. The director may accept a surety bond or insurance policy in the proper sum that has a deductible clause in an amount not exceeding five thousand dollars for the total amount of surety bond or insurance required by this section. If the applicant has not satisfied the requirement of the deductible amount in any prior legal claim the deductible clause may not be accepted by the director unless the appli(2006 Ed.) Apiaries cant furnishes the director with a surety bond or insurance policy which satisfies the amount of the deductible as to all claims that may arise. [2003 c 212 § 10; 2000 c 96 § 4.] 15.58.470 15.58.470 Structural pest inspector—Failure to meet financial responsibility requirements. Whenever the form of evidence of financial responsibility for a structural pest inspector license is reduced below the requirements of RCW 15.58.465 or no longer applies to the structural pest inspector, or whenever the licensee or the business that employs the licensee has failed to provide evidence of financial responsibility as required by RCW 15.58.460 by the expiration date of any previous form of evidence of financial responsibility, the director shall immediately suspend the structural pest inspector license until the requirements of RCW 15.58.465 are met again. [2003 c 212 § 11; 2000 c 96 § 5.] 15.58.900 15.58.900 Effective date—1971 ex.s. c 190. The effective date of this act is July 1, 1971: PROVIDED, That the effective date of sections 21, 22 and 23 is March 1, 1973. [1971 ex.s. c 190 § 42.] 15.60.010 15.58.943 15.58.943 Effective date—2003 c 212. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2003. [2003 c 212 § 12.] Chapter 15.60 Chapter 15.60 RCW APIARIES Sections 15.60.005 15.60.010 15.60.021 15.60.031 15.60.040 15.60.055 15.60.065 15.60.075 15.60.085 15.60.095 15.60.900 15.60.901 Definitions. Apiary advisory committee. Registration of hives. Late registration fee. Money collected under chapter—Placement—Disbursement. Violations—Penalty. Apiary coordinated areas—Hearing to establish. Apiary coordinated areas—Order describing. Apiary coordinated areas—Boundary change procedure. Apiary coordinated areas within certain counties. Severability—1977 ex.s. c 362. Effective date—2000 c 100. Honey, standards and marketing: Chapter 69.28 RCW. Honey bee commission: Chapter 15.62 RCW. 15.60.005 15.58.901 15.58.901 Effective date—2000 c 96. This act takes effect July 1, 2000. [2000 c 96 § 10.] 15.58.910 15.58.910 Continuation of rules adopted pursuant to repealed sections. The repeal of RCW 15.57.010 through 15.57.930 and the enactment of this chapter shall not be deemed to have repealed any rules adopted under the provisions of RCW 15.57.010 through 15.57.930 in effect immediately prior to such repeal and not inconsistent with the provisions of this chapter. All such rules shall be considered to have been adopted under the provisions of this chapter. [1989 c 380 § 31; 1971 ex.s. c 190 § 43.] 15.58.920 15.58.920 Existing liabilities not affected. The enactment of this chapter shall not have the effect of terminating, or in any way modifying, any liability, civil or criminal, which shall already be in existence on the date this chapter becomes effective. [1971 ex.s. c 190 § 44.] 15.58.940 15.58.940 Severability—1971 ex.s. c 190. If any provisions of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances is not affected. [1971 ex.s. c 190 § 46.] 15.60.005 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter: (1) "Department" means the department of agriculture of the state of Washington. (2) "Director" means the director of the state department of agriculture or the director’s authorized representative. (3) "Apiary" means a site where hives of bees or hives are kept or found. (4) "Apiarist" means any person who owns bees or is a keeper of bees in Washington. (5) "Bees" means adult insects, eggs, larvae, pupae, or other immature stages of the species Apis mellifera. (6) "Colony" refers to a natural group of bees having a queen or queens. (7) "Hive" means a manufactured receptacle or container prepared for the use of bees, that includes movable frames, combs, and substances deposited into the hive by bees. (8) "Person" means a natural person, individual, firm, partnership, company, society, association, corporation or every officer, agent, or employee of one of these entities. (9) "Broker" means a person who is engaged in pollinating agricultural crops for a fee using hives that are owned by another person. [2000 c 100 § 1; 1994 c 178 § 1; 1993 c 89 § 1; 1988 c 4 § 1; 1977 ex.s. c 362 § 1; 1961 c 11 § 15.60.005. Prior: 1955 c 271 § 1.] 15.58.941 15.58.941 Severability—1979 c 146. If any provision of this 1979 act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1979 c 146 § 7.] 15.58.942 15.58.942 Severability—1989 c 380. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1989 c 380 § 88.] (2006 Ed.) 15.60.010 15.60.010 Apiary advisory committee. The director may establish an apiary advisory committee including members representing the major segments of the apiary industry including commercial and noncommercial beekeepers, representatives from the Washington State University apiary program or cooperative extension, and receivers of pollination services as deemed appropriate. The committee shall advise the director on administration of this chapter and issues affecting the apiary industry. The committee may also advise the director on the funding of research projects of benefit to the apiary industry. [Title 15 RCW—page 107] 15.60.021 Title 15 RCW: Agriculture and Marketing The committee shall meet at the call of the director. Members of the committee shall serve without compensation but may be reimbursed for travel expenses incurred in attending meetings of the committee and any other official duty authorized by the director, pursuant to RCW 43.03.050 and 43.03.060. [2000 c 100 § 2; 1994 c 178 § 3; 1993 c 89 § 3; 1975-’76 2nd ex.s. c 34 § 16; 1961 c 11 § 15.60.010. Prior: 1933 ex.s. c 59 § 1; RRS § 3170-1; prior: 1919 c 116 § 1.] Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. 15.60.021 15.60.021 Registration of hives. (1) Each person owning one or more hives with bees, brokers renting hives, and apiarists resident in other states who operate hives in Washington shall register with the director by April 1st each year. (2) The registration application shall include: (a) The name, address, and phone number of the apiarist or broker; (b) The number of colonies of bees to be owned, brokered, or operated in Washington that year; (c) A registration fee as prescribed in rule by the director, with the advice of the apiary advisory committee; and (d) Any other information required by the department by rule. (3) The director shall issue to each apiarist or broker registered with the department an apiarist identification number. [2000 c 100 § 3; 1994 c 178 § 6; 1993 c 89 § 11; 1988 c 4 § 9; 1977 ex.s. c 362 § 5; 1961 c 11 § 15.60.050. Prior: 1933 ex.s. c 59 § 6; RRS § 3170-6. Formerly RCW 15.60.050.] 15.60.031 15.60.031 Late registration fee. A late fee of one and one-half percent per month shall be assessed on registration fees received after April 1st. [2000 c 100 § 4; 1994 c 178 § 5; 1993 c 89 § 10; 1988 c 4 § 8; 1981 c 296 § 9; 1977 ex.s. c 362 § 9. Formerly RCW 15.60.043.] Severability—1981 c 296: See note following RCW 15.08.010. 15.60.040 15.60.040 Money collected under chapter—Placement—Disbursement. All money collected under this chapter shall be placed in an account in the agricultural local fund. Money in the account shall be used to carry out the purposes of this chapter and may be used for apiary-related activities of the department or funding research projects of benefit to the apiary industry that the director may select upon the advice of the apiary advisory committee. No appropriation is required for disbursement from the account. [2000 c 100 § 5; 1994 c 178 § 4; 1993 c 89 § 8; 1988 c 4 § 6; 1981 c 296 § 8; 1977 ex.s. c 362 § 4; 1961 c 11 § 15.60.040. Prior: 1959 c 174 § 1; 1955 c 271 § 6; prior: (i) 1949 c 105 § 2; 1933 ex.s. c 59 § 3; Rem. Supp. 1949 § 3170-3. (ii) 1933 ex.s. c 59 § 4; RRS § 3170-4.] Severability—1981 c 296: See note following RCW 15.08.010. 15.60.055 15.60.055 Violations—Penalty. (1) Except as provided in subsection (2) of this section, a person who violates or fails to comply with any of the provisions of this chapter or any rule adopted under this chapter is guilty of a misdemeanor. (2) A second or subsequent violation is a gross misdemeanor. [Title 15 RCW—page 108] (3) Whenever the director finds that a person has committed a violation of any of the provisions of this chapter or any rule adopted under this chapter and that violation has not been punished as a misdemeanor or gross misdemeanor, the director may impose and collect a civil penalty not exceeding one thousand dollars for each violation. Each violation shall be a separate and distinct offense. A person who knowingly, through an act of omission or commission, procures or aids or abets in the violation shall be considered to have violated this section and may be subject to the civil penalty. [2003 c 53 § 107; 1993 c 89 § 17; 1991 c 363 § 15; 1989 c 354 § 64. Formerly RCW 15.60.170.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. Severability—1989 c 354: See note following RCW 15.36.012. 15.60.065 15.60.065 Apiary coordinated areas—Hearing to establish. When the county legislative authority determines that it would be desirable to establish an apiary coordinated area or areas in their county, they shall make an order fixing a time and place when a hearing will be held, notice of which shall be published at least once each week for two successive weeks in a newspaper having general circulation within the county. It shall be the duty of the county legislative authority at the time fixed for such hearing, to hear all persons interested in the establishment of apiary coordinated areas as defined in *RCW 15.60.180, 15.60.190, and 15.60.210. [1993 c 89 § 18; 1989 c 354 § 65. Formerly RCW 15.60.180.] *Reviser’s note: RCW 15.60.180, 15.60.190, and 15.60.210 were recodified as RCW 15.60.065, 15.60.075, and 15.60.085, respectively, pursuant to 2000 c 100 § 7, effective June 30, 2001. Severability—1989 c 354: See note following RCW 15.36.012. 15.60.075 15.60.075 Apiary coordinated areas—Order describing. Within thirty days after the conclusion of any such hearing the county legislative authority shall make an order describing the apiary coordinated areas within the county as to the maximum allowable number of hives per site, the minimum allowable distance between sites, and the minimum required setback from property lines. The order shall be entered upon the records of the county and published in a newspaper having general circulation in the county at least once each week for four successive weeks. [1989 c 354 § 66. Formerly RCW 15.60.190.] Severability—1989 c 354: See note following RCW 15.36.012. 15.60.085 15.60.085 Apiary coordinated areas—Boundary change procedure. When the county legislative authority of any county deems it advisable to change the boundary or boundaries of any apiary coordinated area, a hearing shall be held in the same manner as provided in *RCW 15.60.180. If the county legislative authority decides to change the boundary or boundaries of any apiary coordinated area or areas, they shall within thirty days after the conclusion of such hearing make an order describing the change or changes. Such order shall be entered upon the records of the county and published in a newspaper having general circulation in the county once each week for four successive weeks. [1989 c 354 § 68. Formerly RCW 15.60.210.] (2006 Ed.) Ladybugs and Other Beneficial Insects *Reviser’s note: RCW 15.60.180 was recodified as RCW 15.60.065 pursuant to 2000 c 100 § 7, effective June 30, 2001. Severability—1989 c 354: See note following RCW 15.36.012. 15.60.095 15.60.095 Apiary coordinated areas within certain counties. The county legislative authority of any county with a population of from forty thousand to less than seventy thousand located east of the Cascade crest and bordering in the southern side of the Snake river shall have the power to designate by an order made and published, as provided in *RCW 15.60.190, certain territories as apiary coordinated areas in which they may designate the number of colonies per apiary, the distance between apiaries, the minimum required setback distance from property lines, and the time of year the regulations shall be in effect. No territory so designated shall be less than two square miles in area. [1993 c 89 § 20. Formerly RCW 15.60.220.] *Reviser’s note: RCW 15.60.190 was recodified as RCW 15.60.075 pursuant to 2000 c 100 § 7, effective June 30, 2001. 15.60.900 15.60.900 Severability—1977 ex.s. c 362. If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1977 ex.s. c 362 § 11.] 15.60.901 15.60.901 Effective date—2000 c 100. This act takes effect June 30, 2001. [2000 c 100 § 9.] 15.61.030 15.61.030 Injunctions. The director of agriculture may bring an action to enjoin the violation of any provision of this chapter or rule adopted pursuant to said sections in the county where such violation has occurred, notwithstanding the existence of any other remedies at law. [1963 c 232 § 12.] 15.61.040 15.61.040 Nonapplicability to honey bees and insects used for research. The provisions of this chapter shall not apply to honey bees or to those beneficial insects used for research purposes. [1963 c 232 § 13.] 15.61.050 15.61.050 Violations—Penalty. (1) Except as provided in subsection (2) of this section, any person violating the provisions of this chapter or rules adopted hereunder is guilty of a misdemeanor. (2) A second or subsequent violation is a gross misdemeanor. Any offense committed more than five years after a previous conviction shall be considered a first offense. [2003 c 53 § 108; 1963 c 232 § 14.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 15.61.900 15.61.900 Severability—1963 c 232. If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1963 c 232 § 15.] Chapter 15.62 Chapter 15.61 RCW LADYBUGS AND OTHER BENEFICIAL INSECTS Chapter 15.61 Sections 15.61.010 15.61.020 15.61.030 15.61.040 15.61.050 15.61.900 Administrative declaration—Regulation of commercial movement. Intergovernmental cooperation. Injunctions. Nonapplicability to honey bees and insects used for research. Violations—Penalty. Severability—1963 c 232. 15.61.010 15.61.010 Administrative declaration—Regulation of commercial movement. The director of agriculture in order to protect the production of native and/or domestic plants or their products in this state, may declare ladybugs or any other insects to be beneficial insects and necessary to maintain a beneficial biological balance over insects which are detrimental to such native and/or domestic plants or their products. Such declaration shall be made only after a hearing as prescribed in the administrative procedure act, chapter 34.05 RCW. Upon declaring ladybugs or other insects to be beneficial insects the director of agriculture may regulate or prohibit the commercial movement of such beneficial insects from this state. [1963 c 232 § 10.] 15.61.020 15.61.020 Intergovernmental cooperation. The director of agriculture may cooperate and enter into agreements with governmental agencies, other states, and agencies of the federal government to carry out the purposes and provisions of this chapter or rules adopted hereunder. [1963 c 232 § 11.] (2006 Ed.) 15.62.010 Chapter 15.62 RCW HONEY BEE COMMISSION Sections 15.62.010 15.62.020 15.62.030 15.62.040 15.62.050 15.62.060 15.62.070 15.62.080 15.62.090 15.62.100 15.62.110 15.62.120 15.62.130 15.62.140 15.62.150 15.62.160 15.62.170 15.62.180 15.62.190 15.62.200 15.62.210 15.62.220 15.62.230 15.62.300 15.62.310 15.62.900 15.62.910 Purpose and findings. Definitions. Commission established by referendum. Powers and duties of commission. Commission compositions—Eleven positions. Position qualifications. Terms of office—Vacancies. Apiarist members—Election. Notice, elections, referenda—Lists of apiarists, manufacturers, processors, and first handlers. Costs of elections and referendums—Reimbursement. Quorum—Travel expenses. Certified copies of commission’s proceedings, records, and acts—Admissible in court. Commission officers—Members’ fidelity bonds. Assessments—Minimum—Increase. Assessments—Collection—Deposit in local fund—Gifts, grants, and endowments—Failure to remit assessment. Assessment error—Refund. Recordkeeping. Reporting. Promotional printing and literature—Exempt from public printing requirements. Audit of records of affected persons. Nonliability of state—Salaries, expenses, and liabilities. Violations—Misdemeanor. Prosecutions—Superior court jurisdiction—Equitable remedies. Termination, suspension, or continuance of commission. Termination or suspension of commission. Liberal construction. Severability—1989 c 5. Apiary regulation: Chapter 15.60 RCW. 15.62.010 15.62.010 Purpose and findings. The purpose of this chapter is to advance the public welfare and education and to [Title 15 RCW—page 109] 15.62.020 Title 15 RCW: Agriculture and Marketing promote the interest, products, services, and stabilization of Washington’s honey bee industry. The legislature finds that: (1) Increasing the consumption of products of the honey bee industry and promoting the use of its services and stabilizing the honey bee industry within the state and nation is a valid and necessary exercise of the power of the state to protect the public health, to provide for the economic development of the state, and to promote the welfare of the people of the state; (2) Honey bee industry products produced and services provided in Washington make an important contribution to the agricultural industry of the state of Washington. The business of researching, marketing, and distributing such products and the promotion of its services is in the public interest; (3) It is necessary to enhance the reputation of Washington honey bee industry products and services in domestic and national markets; (4) It is necessary to promote and educate the public regarding the value of honey bee industry products and services, and to spread that knowledge throughout the state and nation to increase the awareness and consumption of honey bee products and the use of honey bee services; (5) State and national markets for Washington honey bee industry products may benefit from promotion of honey bee products through education and advertising; (6) It is necessary to stabilize the Washington honey bee industry, to enlarge its markets, and increase the consumption of Washington honey bee industry products and services to assure the payment of taxes to the state and its subdivisions, to alleviate unemployment, and to provide for higher wage scales for agricultural labor and maintenance of a reasonable standard of living; (7) Providing information to the public on the manner, cost, and expense of producing, and the care taken to produce and sell, honey bee industry products and services of the highest quality, the methods and care used in their preparation for market, and the methods of sale and distribution is in the public interest; (8) It is necessary to protect the public by educating it on the various benefits of honey bee industry services, the food value of its products, and their industrial and medicinal uses. [1989 c 5 § 1.] 15.62.020 15.62.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter: (1) "Affected person" means an apiarist, manufacturer, processor, first handler, broker, or volunteer who shall pay to the commission the minimum assessments required in RCW 15.62.140. (2) "Apiarist" means any person, firm, partnership, association, or corporation who owns, operates, manages, or brokers ten or more honey bee (Apis mellifera) colonies or any volunteer participant having less than ten colonies in the state of Washington. (3) "Bee colony" means a natural group of honey bees containing seven thousand or more workers and one or more queens, housed in a man-made hive with movable frames, and operated as a beekeeping unit. [Title 15 RCW—page 110] (4) "Broker" means any person other than an apiarist who, for a fee, places or sets twenty-five or more bee colonies for pollination or buys and sells one thousand dollars or more per year of industry products he or she does not produce or manufacture. (5) "Commission" means the Washington state honey bee industry commission or its authorized agents. (6) "Department" means the department of agriculture. (7) "Director" means the director of the department of agriculture. (8) "First handler" means any person in Washington who imports industry products or bee supplies and equipment into Washington for processing, packing, or sale in the state of Washington. (9) "Industry products" means queen bees, packaged bees, and items which are made by bees including, but not limited to, honey, pollen, bees wax, and propolis and items manufactured for use in the honey bee industry as enumerated under "manufacturer" in this section. (10) "Manufacturer" means any person making bee supplies and equipment such as: Supers (hive boxes), frames, bees wax foundation, smokers, extractors, bee veils, pollen traps, queen rearing equipment, bee cages and packages, queen excluders, and other bee supplies used in the honey bee industry. (11) "Person" means any individual, firm, partnership, or corporation engaged in the apiculture industry. (12) "Processor" means any person processing, selling, marketing, or distributing bee industry products. (13) "Retail sales" means those sales made directly to consumers whether apiarists, brokers, or persons involved in the apiculture industry, or the public. [1989 c 5 § 2.] 15.62.030 15.62.030 Commission established by referendum. The Washington state honey bee commission shall be established following approval of a referendum by a majority of the affected apiarists and brokers, as set forth in RCW 15.62.140(4) for assessment increases. [1989 c 5 § 3.] 15.62.040 15.62.040 Powers and duties of commission. The commission shall have the following powers and duties: (1) To elect a chairperson and other officers as it deems advisable; (2) To promulgate rules and regulations under the administrative procedure act, chapter 34.05 RCW, and RCW 15.04.200 as necessary to effectuate the purpose and policies of this chapter; (3) To administer and enforce the provisions of this chapter and perform all acts and exercise all powers reasonably necessary to fulfill the purpose thereof; (4) To employ and discharge advertising agents, attorneys as permitted by the attorney general, agents, and employees as it deems necessary, and to prescribe their duties and powers and fix their compensation; (5) To establish offices, hire employees who shall be exempt from chapter 41.06 RCW, incur expenses which shall not exceed revenues, enter into contracts, and create such liabilities as are reasonable and proper for the administration of this chapter; (2006 Ed.) Honey Bee Commission (6) To investigate and refer violations of this chapter to local prosecuting attorneys or special prosecutors appointed by the commission and the local prosecuting attorney; (7) To contract for scientific research designed to improve production, pollination, management, quality, processing, and distribution and to develop and discover uses for products of the honey bee industry; (8) To make in its name advertising contracts and other agreements necessary to promote the industry and bee products and services in state, national, and foreign markets; (9) To keep accurate records of all commission dealings, which shall be open to public inspection and audit by authorized state agencies; (10) To contract for research to develop more efficient methods of promoting the honey bee industry and its products and services; (11) To develop and conduct educational programs for the benefit of industry and to inform the public regarding Washington’s honey bee industry; (12) To enter into contracts and agreements for purposes consistent with this chapter; (13) To publish at least an annual report of its activities and financial status subject to audit by the state auditor; (14) To establish an operating monetary reserve and carry over to subsequent fiscal periods any excess funds in the reserve: PROVIDED, That the reserve funds shall not exceed one fiscal period’s budget. The reserve funds shall only be used to defray any expenses authorized under this chapter; (15) To audit any affected person’s records as described in RCW 15.62.200; and (16) To consider the assessment of honey or manufactured bee supplies produced or sold in Washington. Assessments shall only be levied after a referendum is conducted and approved by a majority vote, as set forth in RCW 15.62.140(4), of persons engaged in the honey bee industry of Washington. [1989 c 5 § 13.] 15.62.070 (7) Position eight, appointed by the director, shall be a manufacturer or broker of industry products representing Washington residents engaged in the apiculture industry; and (8) Position nine, appointed by the director, shall be a processor or first handler representing residents engaged in Washington’s honey bee industry; and (9) Position ten shall be the director of the Washington state department of agriculture, who shall be a nonvoting ex officio member; and (10) Position eleven, appointed by the director, may be an affected person representing out-of-state interests who are not Washington residents but are active as affected persons in Washington. [1989 c 5 § 4.] 15.62.060 15.62.060 Position qualifications. (1) Commission positions one through seven shall be filled by persons who meet the following requirements: (a) Resident of this state; (b) Resident of the area they represent; and (c) Actually engaged in owning, operating, or as a broker of bee colonies for the five years immediately preceding their election. (2) Commission positions eight and nine shall be filled by persons who meet the following requirements: (a) Resident of this state; and (b) Actually engaged as a manufacturer, broker of industry products, processor, or first handler for the five years immediately preceding their election. (3) Commission members shall be immediately disqualified if they no longer meet the qualifications during their terms of office. The vacancy on the commission shall be filled according to *section 38 of this act. (4) Position eleven shall be filled by a person who qualifies under subsection (1)(c) or (2)(b) of this section and is not a resident of Washington. [1989 c 5 § 5.] *Reviser’s note: The reference to "section 38 of this act" is incorrect. Apparently a reference to "section 6 of this act," codified as RCW 15.62.070, was intended. 15.62.050 15.62.050 Commission compositions—Eleven positions. The commission shall consist of the following members: (1) Apiarist position one shall represent area one, which includes the counties of Whatcom, San Juan[,] Island, Skagit, Snohomish, and King; and (2) Apiarist position two shall represent area two, which includes the counties of Pierce, Kitsap, Clallam, Jefferson, Grays Harbor, Mason, Thurston, Pacific, Lewis, Wahkiakum, Cowlitz, Clark, [and] Skamania; and (3) Apiarist positions three and four shall represent area three, which includes the counties of Kittitas, Yakima, Klickitat, and Benton; and (4) Apiarist position five shall represent area four, which includes the counties of Okanogan, Chelan, and Douglas; and (5) Apiarist position six shall represent area five, which includes the counties of Grant, Adams, Franklin, Walla Walla, Columbia, Garfield, Asotin, and Whitman; and (6) Apiarist position seven shall represent area six, which includes the counties of Spokane, Lincoln, Ferry, Stevens, and Pend Oreille; [and] (2006 Ed.) 15.62.070 15.62.070 Terms of office—Vacancies. (1) The regular terms of office of each elected member of the commission shall be three years, except that the term of office for the initial members shall be as follows: (a) Positions for areas one, four, and seven - one year. (b) Positions for areas two, five, and eight - two years. (c) Positions for areas three, six, and nine - three years. (d) If filled, position for area eleven - three years. (2) No elected member of the board may serve more than two full consecutive three-year terms. (3) Terms of office shall end on August 31 of the last year of the elected or appointed term. (4) Any vacancies on the commission shall be filled by a person meeting the qualifications established in *section 37 of this act appointed by the other voting members of the commission. The appointee shall hold office for the remainder of the term, at which time an election for that position shall be conducted. [1989 c 5 § 6.] *Reviser’s note: The reference to "section 37 of this act" is incorrect. Apparently a reference to "section 5 of this act," codified as RCW 15.62.060, was intended. [Title 15 RCW—page 111] 15.62.080 Title 15 RCW: Agriculture and Marketing 15.62.080 15.62.080 Apiarist members—Election. (1) Apiarist members of the commission shall be nominated and elected by the apiarists within the district they are to represent in the year in which a member’s term expires. The candidate receiving the largest number of votes cast shall be elected. The election shall be by secret mail ballot and shall be conducted by the director, who shall be reimbursed for actual expenses of conducting the election by the commission. (2) The director shall provide forms for the nomination of candidates to each affected person. The nomination form shall provide for the name of the person being nominated and the names of five persons supporting the nomination. (3) The persons nominating the candidate shall affirm that the candidate meets the qualifications and is willing to serve by signing the nomination form. (4) The nomination forms shall be returned to the director by June 30 of the election year, and the director shall not accept any nomination postmarked later than midnight of that date. (5) In the event no nomination is submitted for a position, the director shall nominate at least two, but no more than three, qualified persons and place their names on the election ballot as nominees. Any qualified person may be elected by write-in ballot, even though his or her name was not placed in nomination. (6) Ballots for electing commission members shall be mailed by the director to all apiarists and brokers in areas where elections are to be held no later than July 15. Ballots, to be valid, shall be returned to the director postmarked no later than July 31. Elected persons shall take office effective September 1 of the year elected except initial elections shall take place within one hundred twenty days after July 23, 1989. [1989 c 5 § 7.] 15.62.090 15.62.090 Notice, elections, referenda—Lists of apiarists, manufacturers, processors, and first handlers. (1)(a) The director shall cause a list to be prepared of all apiarists, as defined in RCW 15.62.020, from the list of apiarists registered with the department under *RCW 15.60.030. A qualified person may, at any time, have his or her name placed on the list by registering with the department. (b) The director shall cause a list to be prepared of manufacturers, processors, and first handlers. The list shall be prepared from any information the director has at hand or may readily obtain. A qualified person may, at any time, have his or her name placed on the list by notifying the department and providing such information as the department deems necessary to determine whether the person qualifies as a manufacturer, processor, or first handler under RCW 15.62.020. (c) For all purposes of giving notice and conducting elections or referenda, the lists the director has on hand under this section, corrected up to the day next preceding the date for issuing notices or ballots, are, for purposes of this chapter, deemed to be the lists of all persons entitled to notice or to assent or dissent or to vote. (2) Any person may file his or her name and address with the commission for the purpose of receiving notices regarding the activities of the commission. Persons who are not Washington residents but are active as affected persons in this state and who wish to be considered for appointment to position eleven on the commission may file their names with [Title 15 RCW—page 112] the director. A person desiring such consideration must supply such information as the director deems appropriate. [1989 c 5 § 8.] *Reviser’s note: RCW 15.60.030 was repealed by 2000 c 100 § 8, effective June 30, 2001. 15.62.100 15.62.100 Costs of elections and referendums— Reimbursement. The commission shall reimburse the director for the actual costs incurred in conducting the elections and referendums, and acquiring lists of affected persons. [1989 c 5 § 9.] 15.62.110 15.62.110 Quorum—Travel expenses. (1) A majority of the commission members shall constitute a quorum for the transaction of all business of the commission. (2) Members of the commission shall be reimbursed for travel expenses, as prescribed by the commission, for each day spent in attendance at, or traveling to and from, commission meetings or when conducting authorized commission business. [1989 c 5 § 10.] 15.62.120 15.62.120 Certified copies of commission’s proceedings, records, and acts—Admissible in court. Copies of the proceedings, records, and acts of the commission, when certified by the secretary, shall be admissible in any court and be evidence of the truth of the statements therein contained. [1989 c 5 § 11.] 15.62.130 15.62.130 Commission officers—Members’ fidelity bonds. The commission may elect an executive secretary who is not a member and fix his or her compensation and may appoint a treasurer who shall sign all vouchers and receipts for moneys received by the commission. The commission shall purchase for each of its members a fidelity bond executed by a surety company authorized to do business in the state, in favor of the state and the commission, in a sum to be determined by the commission. [1989 c 5 § 12.] 15.62.140 15.62.140 Assessments—Minimum—Increase. (1) The commission shall collect annual assessments as follows: (a) Twenty-five cents for each colony operated by an apiarist or broker in Washington at any time in a calendar year. Each colony shall be assessed only once per calendar year. There shall be a minimum assessment of ten dollars. (b) The sale of a business enterprise by an apiarist or broker shall not be assessed. The provisions of this subsection (1) are effective only if the referendum required by RCW 15.62.030 on the creation of the commission is adopted. (2) Subject to approval by referendum, the commission shall have the power and duty to increase the amount of the assessments as necessary to fulfill the purposes of this chapter. (3) In determining the necessity for an assessment increase, the commission shall consider: (a) The purpose of the commission; (b) The extent and probable cost of required research, promotion, and advertising; (c) The extent of public convenience, interest, and necessity; and (2006 Ed.) Honey Bee Commission (d) The expected revenue from the increased assessment. (4) The increase in assessment shall not become effective until approved by a majority of the affected persons voting in a referendum conducted by the commission. The referendum must be approved by: (a) Either fifty-one percent of the apiarists and brokers representing sixty-six percent of the colonies registered in Washington in the twelve months preceding voting; or (b) Sixty-six percent of the apiarists and brokers representing fifty-one percent of the colonies registered in Washington in the twelve months preceding voting; and (c) Either fifty-one percent of manufacturers, processors, and first handlers representing sixty-six percent of industry products sold in Washington by its residents; or (d) Sixty-six percent of manufacturers, processors, and first handlers representing fifty-one percent of industry products sold in Washington by its residents. [1989 c 5 § 14.] 15.62.150 15.62.150 Assessments—Collection—Deposit in local fund—Gifts, grants, and endowments—Failure to remit assessment. (1) All assessments shall be collected by the commission on a quarterly basis or as otherwise determined by the commission. (2) The commission shall create a local fund in a local financial institution approved by the director and shall deposit therein, each day, all moneys received by the commission except an amount for petty cash as fixed by commission regulations. Moneys in the fund shall only be expended for the purposes of this chapter. Moneys in the fund are not subject to appropriation. (3) The commission fund is authorized to receive such gifts, grants, and endowments from public or private sources as may be made from time to time, in trust or otherwise, for the use and benefit of the purposes of the commission and expend the same or any income therefrom according to the terms of the gifts, grants, or endowments. (4) If an affected person fails to remit any assessment, such assessment plus interest at the rate of one percent per month from the due date shall constitute a personal debt of the person assessed or who otherwise owes the assessment and shall be due and payable within thirty days from the date it becomes first due the commission. In the event of failure of the person to pay due and payable assessments, the commission may bring civil action against the person in a state court of competent jurisdiction for collection thereof, together with any reasonable costs including attorneys’ fees. The action shall be tried and judgment rendered as in any other cause of action for debt due and payable. This provision is in addition to the penalty section contained in RCW 15.62.220. [1989 c 5 § 15.] 15.62.160 15.62.160 Assessment error—Refund. A person shall be entitled to a refund of assessed money held by the commission fund when it has been determined by the commission that the affected person was assessed and made payment in error. [1989 c 5 § 16.] 15.62.170 15.62.170 Recordkeeping. (1) Each apiarist and broker shall keep accurate records of the number of colonies owned or operated during each calendar year. (2006 Ed.) 15.62.230 (2) Each manufacturer shall keep accurate records of gross sales of industry products or manufactured goods sold in the state of Washington. (3) Each processor shall keep accurate records of the pounds of honey sold in the state of Washington. (4) Each first-handler shall keep accurate records of the industry products sold in the state of Washington. (5) The records shall contain information required by the commission and shall be preserved for a period of five years. (6) The records shall be made available for audit upon request of the commission or its agent, as authorized in RCW 15.62.040 and 15.62.200. [1989 c 5 § 17.] 15.62.180 15.62.180 Reporting. Each affected person shall, as required, file with the commission a return under oath on forms to be furnished by the commission, stating the information requested by the commission regarding the ownership, handling, processing, manufacturing, delivering, shipping, sale, and brokering of various honey bee industry products and activities as defined in RCW 15.62.020. The report shall cover the period or periods of time prescribed by the commission. [1989 c 5 § 18.] 15.62.190 15.62.190 Promotional printing and literature— Exempt from public printing requirements. The restrictive provisions of chapter 43.78 RCW shall not apply to promotional printing and literature for the Washington state honey bee commission. [1989 c 5 § 19.] Public printer—Public printing: Chapter 43.78 RCW. 15.62.200 15.62.200 Audit of records of affected persons. The commission through its agents may audit the records of any affected person for the purpose of enforcing the provisions of this chapter. The commission must first notify the affected person of their intention to audit and may request supporting documents of the affected person regarding reports submitted on commission forms under RCW 15.62.180. [1989 c 5 § 20.] 15.62.210 15.62.210 Nonliability of state—Salaries, expenses, and liabilities. The state shall not be liable for the acts or on the contracts of the commission, nor shall any member or employee of the commission be liable on its contracts. All salaries, expenses, and liabilities incurred by persons employed or contracting under this chapter for the commission shall be limited to, and payable only from, the funds collected hereunder. [1989 c 5 § 21.] 15.62.220 15.62.220 Violations—Misdemeanor. Any person who violates or aids in the violation of any provision of this chapter or any rule or regulation of the commission shall be guilty of a misdemeanor. [1989 c 5 § 22.] 15.62.230 15.62.230 Prosecutions—Superior court jurisdiction—Equitable remedies. (1) Any prosecution brought under this chapter may be instituted in any county in which the defendant or any defendant resides, or in which the violation was committed, or in which the defendant or any defendant has his or her principal place of business. [Title 15 RCW—page 113] 15.62.300 Title 15 RCW: Agriculture and Marketing (2) The commission is hereby vested with the authority to utilize the services of the local prosecuting attorneys or special prosecutors as agreed upon by the commission and the local prosecutor for purposes of carrying out the prosecution of cases brought under this chapter. (3) The superior courts are hereby vested with jurisdiction to enforce the provisions of this chapter, and the rules and regulations of the commission issued hereunder, and to prevent and enjoin and restrain violations thereof. [1989 c 5 § 23.] 15.62.300 Termination, suspension, or continuance of commission. In the seventh year following the inception of the commission, a referendum shall be conducted by the department of agriculture to determine if the commission is still desired by the beekeeping industry in Washington. The commission shall continue if the director finds that affected apiarists and brokers voting in a referendum conducted as for an assessment increase in RCW 15.62.140(4) voted in favor of such continuance, otherwise it shall be terminated or suspended as in RCW 15.62.310. [1989 c 5 § 25.] 15.62.300 15.62.310 Termination or suspension of commission. The commission shall be terminated or suspended if the director finds that apiarists and brokers voting in a referendum conducted as for an assessment increase in RCW 15.62.140(4) voted in favor of such termination or suspension. A referendum may be called by a majority of the commission or by twenty percent of the resident affected persons representing twenty percent of the colonies and industry products sold in Washington. Any moneys in the treasury at the time of an affirmative termination or suspension vote shall first be used to effect all acts associated with the termination or suspension procedures and liquidation of the affairs of the commission. Any residual funds not necessary to defray the expenses of termination or suspension of the commission shall be turned over to Washington State University to be used in conducting research on the honey bee Apis mellifera. [1989 c 5 § 26.] 15.62.310 15.62.900 Liberal construction. This chapter shall be liberally construed to effectuate the policies and purpose set forth herein. [1989 c 5 § 24.] 15.62.900 15.62.910 Severability—1989 c 5. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1989 c 5 § 27.] 15.62.910 Chapter 15.64 Chapter 15.64 RCW FARM MARKETING Sections 15.64.010 15.64.030 15.64.040 15.64.050 15.64.053 Director’s duties and powers. Studies of farm marketing problems—Rules. Use of funds for studies—Joint studies with other agencies. Small farm direct marketing assistance program—Created— Duties. Small farm direct marketing assistance program—Report on accomplishments. [Title 15 RCW—page 114] 15.64.010 15.64.010 Director’s duties and powers. The director shall investigate and promote the economical and efficient distribution of farm products, and in so doing may cooperate with federal agencies and agencies of this and other states engaged in similar activities. For such purposes he may: (1) Maintain a market news service by bulletins and through newspapers, giving information as to prices, available supplies of different farm products, demand in local and foreign markets, freight rates, and any other data of interest to producers and consumers; (2) Aid producers and consumers in establishing economical and efficient methods of distribution, promoting more direct business relations by organizing cooperative societies of buyers and sellers and by other means reducing the cost and waste in the distribution of farm products; (3) Investigate the methods of middlemen handling farm products, and in so doing, he may hear complaints and suggestions and may visit places of business of all such middlemen and may examine under oath, the officers and employees thereof; (4) If he finds further legislation on this subject advisable, he shall make recommendations thereon to the governor not later than the fifteenth of November of each even-numbered year; (5) Investigate the possibilities of direct dealing between the producer and consumer by parcel post and other mail order methods; (6) Assist in the obtaining and employment of farm labor, and to that end cooperate with federal, state and municipal agencies engaged in similar work; (7) Investigate the methods, charges and delays of transportation of farm products and assist producers in relation thereto. [1961 c 11 § 15.64.010. Prior: 1917 c 119 § 3; RRS § 2876.] 15.64.030 15.64.030 Studies of farm marketing problems— Rules. The director shall enact rules and regulations governing the pursuit of technical studies of farm marketing problems. Said studies shall be under the supervision of the director of the experimental station of Washington State University. The extension service of Washington State University shall provide for dissemination to the public of knowledge gained by such studies. [1961 c 11 § 15.64.030. Prior: 1947 c 280 § 2; Rem. Supp. 1947 § 2909-2.] 15.64.040 15.64.040 Use of funds for studies—Joint studies with other agencies. Moneys appropriated to the department for agricultural marketing research shall be expended by the department to further studies by the department, the experiment station of Washington State University and the extension service of Washington State University. The studies shall be made jointly or in conjunction with those made by the United States Department of Agriculture as provided for in the Flannigan-Hope Act, Title II "The Agricultural Marketing Act of 1946" Public Law 733. All funds appropriated shall be expended jointly and as matching funds with any federal funds made available for such purposes. [1961 c 11 § 15.64.040. Prior: 1947 c 280 § 1; Rem. Supp. 1947 § 29091.] (2006 Ed.) Washington State Agricultural Commodity Boards 15.64.050 15.64.050 Small farm direct marketing assistance program—Created—Duties. (Expires July 1, 2007.) (1) The small farm direct marketing assistance program is created. (2) The director shall employ a small farm direct marketing assistant. (3) The small farm direct marketing assistance program shall assist small farms in their direct marketing efforts. In carrying out this duty the program shall: (a) Assist small farms in complying with federal, state, and local rules and regulations as they apply to direct marketing of agricultural products; (b) Assist in developing infrastructure to increase direct marketing opportunities for small farms; (c) Provide information on direct marketing opportunities for small farms; (d) Promote localized food production systems; (e) Increase access to information for farmers wishing to sell farm products directly to consumers; (f) Identify and help reduce market barriers facing small farms in direct marketing; (g) Assist in developing and submitting proposals to grant programs to assist small farm direct marketing efforts; and (h) Perform other functions that will assist small farms in directly marketing their products. (4) This section expires July 1, 2007. [2001 2nd sp.s. c 3 § 2.] Findings—2001 2nd sp.s. c 3: "The legislature finds that: (1) Many consumers in this state appreciate and seek out the opportunity to purchase local farm products. (2) Consumers and small-scale farmers would both benefit from increased opportunities to market farm products locally. Direct marketing provides farmers with the opportunity to realize an increased share of consumers’ food dollars and provides consumers with a greater opportunity to support local agriculture and understand farm operations, farm culture, and the role farms play in meeting our food needs. (3) The state would greatly benefit from a focused effort to increase the economic viability and profitability of small farms through increasing their ability to market their products directly to consumers. (4) Direct marketing opportunities are often not feasible for farmers to undertake because of market barriers and the difficulty of obtaining information related to marketing. (5) A direct marketing assistance program for small farmers could provide the needed information, technical assistance, and barrier clearing work that is a key to increasing direct marketing of farm products." [2001 2nd sp.s. c 3 § 1.] 15.64.053 15.64.053 Small farm direct marketing assistance program—Report on accomplishments. (Expires July 1, 2007.) (1) The director shall, by December 1, 2006, issue a report on the accomplishments of the small farm direct marketing assistance program. The report must be submitted to the committees of the senate and the house of representatives that have jurisdiction over agricultural issues. The report must be made available to the public. (2) This section expires July 1, 2007. [2001 2nd sp.s. c 3 § 3.] Findings—2001 2nd sp.s. c 3: See note following RCW 15.64.050. (2006 Ed.) Chapter 15.65 Chapter 15.65 RCW WASHINGTON STATE AGRICULTURAL COMMODITY BOARDS Chapter 15.65 (Formerly: Washington state agricultural enabling act of 1961— Commodity boards) Sections 15.65.010 15.65.020 15.65.028 15.65.033 15.65.040 15.65.043 15.65.047 15.65.050 15.65.055 15.65.060 15.65.070 15.65.090 15.65.100 15.65.110 15.65.120 15.65.130 15.65.140 15.65.150 15.65.160 15.65.170 15.65.175 15.65.180 15.65.183 15.65.185 15.65.190 15.65.193 15.65.200 15.65.203 15.65.205 15.65.210 15.65.220 15.65.230 15.65.235 15.65.240 15.65.243 15.65.250 15.65.260 15.65.270 15.65.280 15.65.283 Short title. Definitions. Regulating agricultural commodities—Existing comprehensive scheme. Regulating agricultural commodities—Laws applicable. Establishing a commodity board—Marketing order—Purposes. Board may establish foundation. Director’s duties and responsibilities—Amendments to marketing orders or agreements without a referendum—Rules. Director to enforce and administer chapter—Marketing agreements, orders issued, amended, notice, grounds for amendments. Regulatory authority on the production of rapeseed by variety and location. Form, filing of marketing agreement, order, amendment, and other proceedings. Notice of hearing on proposal—Publication—Contents. Subpoenas—Compelling attendance of witnesses, fees— Immunity of witnesses. Director’s findings and recommended decision, delivery of copies—Taking official notice of facts from other agencies. Filing objections to recommended decision—Final decision— Waiver. Contents and scope of recommended and final decision— Delivery of copies. Agreements binding only on those who assent in writing— Agreement not effective until sufficient signatories to effectuate chapter—When effective. Minimum assent requirements prerequisite to order or amendment affecting producers or producer marketing. Minimum requirements prerequisite to order or amendment assessing handlers—Assent by producers. Ascertainment of required assent percentages. Issuance or amendment of marketing order—Assent—Rules. Issuing, amending, or terminating a marketing order—Limitation on public hearings or referendums. Suspension of marketing agreement or order upon advice of commodity board—Certain prerequisites waived. Termination of marketing order or agreement—Petition—Procedure. Referendum prior to termination of a marketing order or agreement—Procedure—Exceptions. Termination of agreement or order on assent of producers— Procedure. When marketing order or agreement is terminated—Duties of affected commodity board. Lists of affected parties—Information used to establish lists— Purpose and use. Certain records exempt from public disclosure—Exceptions— Actions not prohibited by chapter. After any vote, referendum, nomination, or election— Affected parties provided results—Disputes. Powers and duties of director with respect to the administration and enforcement of agreements and orders—Administrator—Personnel. Commodity boards—Membership—Marketing agreement or order to establish and control—Director votes. Qualifications of members of commodity boards. Producer-handlers as producers for membership purposes— Exception. Terms of members of commodity boards—Elections or appointment. When director appoints majority of the board—Nominations—Advisory vote—Notice—Director selects either of two candidates receiving the most votes. Nominations for election to commodity board—When only one nominee. Election of members of commodity board—Procedure. Vacancies, quorum, compensation, travel expenses of commodity board members and employees. Powers and duties of commodity board—Reservation of power to director. Members may belong to association with same objectives— Contracts with other associations authorized. [Title 15 RCW—page 115] 15.65.010 15.65.285 15.65.287 15.65.289 15.65.290 15.65.295 15.65.300 15.65.305 15.65.310 15.65.320 15.65.330 15.65.340 15.65.350 15.65.360 15.65.370 15.65.375 15.65.380 15.65.390 15.65.400 15.65.410 15.65.420 15.65.430 15.65.440 15.65.450 15.65.470 15.65.480 15.65.490 15.65.500 15.65.510 15.65.520 15.65.530 15.65.540 15.65.550 15.65.560 15.65.570 15.65.580 15.65.590 15.65.600 15.65.610 15.65.620 15.65.630 15.65.640 15.65.650 15.65.670 15.65.900 15.65.910 Title 15 RCW: Agriculture and Marketing Restrictive provisions of chapter 43.78 RCW not applicable to promotional printing and literature of commodity boards. Commission’s plans, programs, and projects—Director’s approval required. Commission speaks for state—Director’s oversight. Claims and liabilities, enforcement against organization—Personal liabilities of officials, employees, etc. Lists of all affected producers and handlers—Affected parties responsible for accuracy—Use of lists. Agreement or order to contain detailed statement of powers and purposes. Promotional hosting expenditures—Rules. Advertising, sale, trade barrier, claim, etc., provisions in agreement or order. Agreement and order provisions for research. Agreement and order provisions for uniform grades and standards—Enforcement—Rules. Agreement and order provisions prohibiting or regulating certain practices. Agreement and order to define applicable area—"Production area"—"Marketing area." Agreement and order provisions for marketing information, services, verification of grades, standards, sampling, etc. Agreement or order not to prohibit or discriminatorily burden marketing. Agreement and order provisions—Participation in proceedings concerning regulation of pesticides or agricultural chemicals. Additional agreement or order provisions. Annual assessment—Limitation generally. Rate of assessment. Time, place, method for payment and collection of assessments. Use of moneys collected—Departmental expenses. Refunds of moneys received or collected. Assessments personal debt—Additional percentage if not paid—Civil action to collect. Deposit to defray department’s expenses—Circumstances requiring reimbursement. Depositaries for revolving fund—Deposits. Separate accounts for each agreement or order—Disbursements. Records of financial transactions to be kept by director— Audits. Bonds of administrator, board, employee. Information and inspections required—Hearings—Confidentiality and disclosures. Criminal acts and penalties. Civil liability—Use of moneys recovered. Jurisdiction of superior courts—Who may bring action. Duty of attorney general and prosecuting attorneys—Investigation and hearing by director. Remedies additional. Proceedings subject to administrative procedure act—Exemptions. Director may issue agreement or order similar to license or order issued by United States—Administrator, board. Cooperation, joint agreements or orders with other states and United States to achieve uniformity. Public interest to be protected—Establishment of prices prohibited. Orders, rules of Washington utilities and transportation commission and interstate commerce commission not affected. Chapter not to affect other laws—Agreements and orders under prior law may be made subject to chapter. Application of chapter to canners, freezers, pressers, dehydrators of fruit or vegetables. Chapter not to apply to green pea grower or processor. Hop commodity board—Powers. Costs of implementing RCW 15.65.287. Savings—1961 c 256. Severability—1961 c 256. Agricultural processing and marketing associations: Chapter 24.34 RCW. Investment of agricultural commodity commission funds in savings or time deposits of banks, trust companies and mutual savings banks: RCW 15.66.185. 15.65.010 15.65.010 Short title. This chapter shall be known and may be cited as the Washington state agricultural enabling act. [1961 c 256 § 1.] [Title 15 RCW—page 116] 15.65.020 15.65.020 Definitions. The following terms are hereby defined: (1) "Director" means the director of agriculture of the state of Washington or his or her duly appointed representative. The phrase "director or his or her designee" means the director unless, in the provisions of any marketing agreement or order, he or she has designated an administrator, board, or other designee to act in the matter designated, in which case "director or his or her designee" means for such order or agreement the administrator, board, or other person(s) so designated and not the director. (2) "Department" means the department of agriculture of the state of Washington. (3) "Marketing order" means an order adopted by the director under this chapter that establishes a commodity board for an agricultural commodity or agricultural commodities with like or common qualities or producers. (4) "Marketing agreement" means an agreement entered into and issued by the director pursuant to this chapter. (5) "Agricultural commodity" means any of the following commodities or products: Llamas, alpacas, or any other animal or any distinctive type of agricultural, horticultural, viticultural, floricultural, vegetable, or animal product, including, but not limited to, products qualifying as organic food products under chapter 15.86 RCW and private sector cultured aquatic products as defined in RCW 15.85.020 and other fish and fish products, either in its natural or processed state, including beehives containing bees and honey and Christmas trees but not including timber or timber products. The director is hereby authorized to determine (on the basis of common usage and practice) what kinds, types or subtypes should be classed together as an agricultural commodity for the purposes of this chapter. (6) "Production area" and "marketing area" means any area defined as such in any marketing order or agreement in accordance with RCW 15.65.350. "Affected area" means the marketing or production area so defined in such order, agreement or proposal. (7) "Unit" of an agricultural commodity means a unit of volume, weight, quantity, or other measure in which such commodity is commonly measured. The director shall designate in each marketing order and agreement the unit to be used therein. (8) "Affected unit" means in the case of marketing agreements and orders drawn on the basis of a production area, any unit of the commodity specified in or covered by such agreement or order which is produced in such area and sold or marketed or delivered for sale or marketing; and "affected unit" means, in the case of marketing agreements and orders drawn on the basis of marketing area, any unit of the commodity specified in or covered by such agreement or order which is stored in frozen condition or sold or marketed or delivered for sale or marketing within such marketing area: PROVIDED, That in the case of marketing agreements "affected unit" shall include only those units which are produced by producers or handled by handlers who have assented to such agreement. (9) "Affected commodity" means that part or portion of any agricultural commodity which is covered by or forms the subject matter of any marketing agreement or order or proposal, and includes all affected units thereof as herein defined and no others. (2006 Ed.) Washington State Agricultural Commodity Boards (10) "Producer" means any person engaged in the business of producing any agricultural commodity for market in commercial quantities. "Affected producer" means any producer who is subject to a marketing order or agreement. "To produce" means to act as a producer. For the purposes of RCW 15.65.140 and 15.65.160 as now or hereafter amended "producer" shall include bailees who contract to produce or grow any agricultural product on behalf of a bailor who retains title to the seed and its resulting agricultural product or the agricultural product delivered for further production or increase. (11) "Handler" means any person who acts, either as principal, agent or otherwise, in processing, selling, marketing or distributing an agricultural commodity or storage of a frozen agricultural commodity which was not produced by him or her. "Handler" does not mean a common carrier used to transport an agricultural commodity. "Affected handler" means any handler of an affected commodity. "To handle" means to act as a handler. (12) "Producer-handler" means any person who acts both as a producer and as a handler with respect to any agricultural commodity. A producer-handler shall be deemed to be a producer with respect to the agricultural commodities which he or she produces, and a handler with respect to the agricultural commodities which he or she handles, including those produced by himself or herself. (13) "Cooperative association" means any incorporated or unincorporated association of producers which conforms to the qualifications set out in the act of congress of the United States of February 18, 1922 as amended, known as the "Capper-Volstead Act" and which is engaged in making collective sales or in marketing any agricultural commodity or product thereof or in rendering service for or advancing the interests of the producers of such commodity on a nonprofit cooperative basis. (14) "Member of a cooperative association" means any producer who markets his or her product through such cooperative association and who is a voting stockholder of or has a vote in the control of or is a party to a marketing agreement with such cooperative association with respect to such product. (15) "Producer marketing" or "marketed by producers" means any or all operations performed by any producer or cooperative association of producers in preparing for market and marketing, and shall include: (a) selling any agricultural commodity produced by such producer(s) to any handler; (b) delivering any such commodity or otherwise disposing of it for commercial purposes to or through any handler. (16) "Commercial quantities" as applied to producers and/or production means such quantities per year (or other period of time) of an agricultural commodity as the director finds are not less than the minimum which a prudent man engaged in agricultural production would produce for the purpose of making such quantity of such commodity a substantial contribution to the economic operation of the farm on which such commodity is produced. "Commercial quantities" as applied to handlers and/or handling means such quantities per year (or other period of time) of an agricultural commodity or product thereof as the director finds are not less than the minimum which a prudent man engaged in such handling would handle for the purpose of making such quantity a sub(2006 Ed.) 15.65.020 stantial contribution to the handling operation in which such commodity or product thereof is so handled. In either case the director may in his or her discretion: (a) Determine that substantial quantity is any amount above zero; and (b) apply the quantity so determined on a uniform rule applicable alike to all persons which he or she finds to be similarly situated. (17) "Commodity board" means any board established pursuant to RCW 15.65.220. "Board" means any such commodity board unless a different board is expressly specified. (18) "Sell" includes offer for sale, expose for sale, have in possession for sale, exchange, barter or trade. (19) "Section" means a section of this chapter unless some other statute is specifically mentioned. The present includes the past and future tenses, and the past or future the present. The masculine gender includes the feminine and neuter. The singular number includes the plural and the plural includes the singular. (20) "Represented in a referendum" means that a written document evidencing approval or assent or disapproval or dissent is duly and timely filed with or mailed to the director by or on behalf of an affected producer and/or a volume of production of an affected commodity in a form which the director finds meets the requirements of this chapter. "Referendum" means a vote by the affected parties or affected producers which is conducted by secret ballot. (21) "Person" means any individual, firm, corporation, limited liability company, trust, association, partnership, society, or any other organization of individuals, or any unit or agency of local, state, or federal government. (22) "Affected parties" means any producer, affected producer, handler, or commodity board member. (23) "Assessment" means the monetary amount established in a marketing order or agreement that is to be paid by each affected producer to a commodity board in accordance with the schedule established in the marketing order or agreement. (24) "List of affected parties" means a list containing the names and mailing addresses of affected parties. This list shall contain the names and addresses of all affected parties and, if requested by the director, the amount, by unit, of the affected commodity produced during a designated period under this chapter. (25) "List of affected producers" means a list containing the names and mailing addresses of affected producers. This list shall contain the names and addresses of all affected producers and, if requested by the director, the amount, by unit, of the affected commodity produced during a designated period under this chapter. (26) "List of affected handlers" means a list containing the names and addresses of affected handlers. This list shall contain the names and addresses of all affected handlers and, if requested by the director, the amount, by unit, of the affected commodity handled during a designated period under this chapter. (27) "Mail" or "send" for purposes of any notice relating to rule making, referenda, or elections means regular mail or electronic distribution, as provided in RCW 34.05.260 for rule making. "Electronic distribution" or "electronically" means distribution by electronic mail or facsimile mail. (28) "Percent by numbers" means the percent of those persons on the list of affected parties or affected producers. [Title 15 RCW—page 117] 15.65.028 Title 15 RCW: Agriculture and Marketing (29) "Rule-making proceedings" means the rule-making provisions as outlined in chapter 34.05 RCW. (30) "Vacancy" means that a board member leaves or is removed from a board position prior to the end of a term, or a nomination process for the beginning of a term concludes with no candidates for a position. (31) "Volume of production" means the percent of the average volume of production of the affected commodity of those on the list of affected parties or affected producers for a production period. For the purposes of this chapter, a production period is a minimum three-year period or as specified in the marketing order or agreement. [2002 c 313 § 1; 1993 c 80 § 2; 1986 c 203 § 15. Prior: 1985 c 457 § 13; 1985 c 261 § 1; 1975 1st ex.s. c 7 § 2; 1961 c 256 § 2.] Effective dates—2002 c 313: "This act takes effect July 1, 2002, except for sections 1, 15, 17, 29, 30, 39, 45, 57, 58, 137, and 138 of this act which are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately [April 2, 2002]." [2002 c 313 § 139.] (e) Support and engage in programs or activities that benefit the planting, production, harvesting, handling, processing, marketing, and uses of agricultural commodities produced in Washington state; (4) That the director seek to enhance, protect, and perpetuate the ability of the private sector to produce food and fiber, and seek to maintain the economic well-being of the agricultural industry in Washington state consistent with its regulatory activities and responsibilities; (5) That the director is hereby authorized to implement, administer, and enforce this chapter through the adoption of marketing orders that establish commodity boards; and (6) That this chapter is enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state. [2002 c 313 § 2.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.033 Severability—1986 c 203: See note following RCW 15.17.230. 15.65.028 15.65.028 Regulating agricultural commodities— Existing comprehensive scheme. The history, economy, culture, and the future of Washington state to a large degree all involve agriculture. In order to develop and promote Washington’s agricultural products as part of the existing comprehensive scheme to regulate agricultural commodities, the legislature declares: (1) That the marketing of agricultural products within this state is in the public interest. It is vital to the continued economic well-being of the citizens of this state and their general welfare that its agricultural commodities be properly promoted by (a) enabling producers of agricultural commodities to help themselves in establishing orderly, fair, sound, efficient, and unhampered marketing, grading, and standardizing of the commodities they produce and (b) working towards stabilizing the agricultural industry by increasing consumption of agricultural commodities within the state, the nation, and internationally; (2) That farmers and ranchers operate within a regulatory environment that imposes burdens on them for the benefit of society and the citizens of the state and includes restrictions on marketing autonomy. Those restrictions may impair the agricultural producer’s ability to compete in local, domestic, and foreign markets; (3) That it is now in the overriding public interest that support for the agricultural industry be clearly expressed, that adequate protection be given to agricultural commodities, uses, activities, and operations, and that each agricultural commodity be promoted individually, and as part of a comprehensive industry to: (a) Enhance the reputation and image of Washington state’s agricultural commodities; (b) Increase the sale and use of Washington state’s agricultural commodities in local, domestic, and foreign markets; (c) Protect the public by educating the public in reference to the quality, care, and methods used in the production of Washington state’s agricultural commodities; (d) Increase the knowledge of the health-giving qualities and dietetic value of Washington state’s agricultural commodities and products; and [Title 15 RCW—page 118] 15.65.033 Regulating agricultural commodities— Laws applicable. This chapter and the rules adopted under it are only one aspect of the comprehensively regulated agricultural industry. (1) Other laws applicable to agricultural commodities include the following chapters and the rules adopted thereunder: Chapter 15.08 RCW Horticultural pests and diseases; Chapter 15.13 RCW Horticultural plants and facilities— Inspection and licensing; Chapter 15.14 RCW Planting stock; Chapter 15.15 RCW Certified seed potatoes; Chapter 15.17 RCW Standards of grades and packs; Chapter 15.19 RCW Certification and inspection of ginseng; Chapter 15.30 RCW Controlled atmosphere storage of fruits and vegetables; Chapter 15.49 RCW Seeds; Chapter 15.53 RCW Commercial feed; Chapter 15.54 RCW Fertilizers, minerals, and limes; Chapter 15.58 RCW Washington pesticide control act; Chapter 15.60 RCW Apiaries; Chapter 15.64 RCW Farm marketing; Chapter 15.83 RCW Agricultural marketing and fair practices; Chapter 15.85 RCW Aquaculture marketing; Chapter 15.86 RCW Organic food products; Chapter 15.92 RCW Center for sustaining agriculture and natural resources; Chapter 17.24 RCW Insect pests and plant diseases; Chapter 19.94 RCW Weights and measures; Chapter 20.01 RCW Agricultural products—Commission merchants, dealers, brokers, buyers, agents; Chapter 22.09 RCW Agricultural commodities; Chapter 69.04 RCW Food, drugs, cosmetics, and poisons including provisions of 21 C.F.R. relating to the general manufacturing practices, food labeling, food standards, food additives, and pesticide tolerances; Chapter 69.07 RCW Washington food processing act; Chapter 69.25 RCW Washington wholesome eggs and egg products act; Chapter 69.28 RCW Honey; (2006 Ed.) Washington State Agricultural Commodity Boards 7 U.S.C., section 136, Federal insecticide, fungicide, and rodenticide act. (2) In addition to the laws and regulations listed in subsection (1) of this section that apply to the agricultural industry as a whole, the dry pea and lentil industry is regulated by or must comply with the additional laws and rules adopted under 7 U.S.C., chapter 38, agricultural marketing act. [2002 c 313 § 3.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.050 modities of good quality at all seasons and times. [2002 c 313 § 4; 2001 c 315 § 4; 1961 c 256 § 4.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.043 15.65.043 Board may establish foundation. A commodity board may establish a foundation using commission funds as grant money when the foundation benefits the commodity for which the board was established. Commission funds may be used for the purposes authorized in the marketing order. [2001 c 315 § 7.] 15.65.040 15.65.040 Establishing a commodity board—Marketing order—Purposes. The director may adopt a marketing order that establishes a commodity board under this chapter for any of the following purposes: (1) To aid agricultural producers in preventing economic waste in the marketing of their agricultural commodities and in developing more efficient methods of marketing agricultural products. (2) To enable agricultural producers of this state, with the aid of the state: (a) To develop, and engage in research for developing, better and more efficient production, irrigation, processing, transportation, handling, marketing, and utilization of agricultural products; (b) To establish orderly marketing of agricultural commodities; (c) To provide for uniform grading and proper preparation of agricultural commodities for market; (d) To provide methods and means (including, but not limited to, public relations and promotion) for the maintenance of present markets and for the development of new or larger markets, both domestic and foreign, for agricultural commodities produced within this state and for the prevention, modification, or elimination of trade barriers which obstruct the free flow of such agricultural commodities to market; (e) To eliminate or reduce economic waste in the marketing and/or use of agricultural commodities; (f) To restore and maintain adequate purchasing power for the agricultural producers of this state; (g) To provide information or communicate on matters pertaining to the production, irrigation, processing, transportation, marketing, or uses of an agricultural commodity produced in Washington state to any elected official or officer or employee of any agency; (h) To provide marketing information and services for producers of an agricultural commodity; (i) To provide information and services for meeting resource conservation objectives of producers of an agricultural commodity; (j) To engage in cooperative efforts in the domestic or foreign marketing of food products of an agricultural commodity; (k) To provide for commodity-related education and training; and (l) To accomplish all the declared policies of this chapter. (3) To protect the interest of consumers by assuring a sufficient pure and wholesome supply of agricultural com(2006 Ed.) 15.65.047 15.65.047 Director’s duties and responsibilities— Amendments to marketing orders or agreements without a referendum—Rules. (1) The director may adopt rules necessary to carry out the director’s duties and responsibilities under this chapter including: (a) The issuance, amendment, or termination of marketing orders or agreements; (b) Procedural, technical, or administrative rules which may address and include, but are not limited to: (i) The submission of a petition to issue, amend, or terminate a marketing order or agreement under this chapter; (ii) Nominations conducted under this chapter; (iii) Elections of board members or referenda conducted under this chapter; (iv) Actions of the director upon a petition to issue, amend, or terminate a marketing order or agreement; (c) Rules that provide for a method to fund: (i) The costs of staff support for all commodity boards and commissions in accordance with RCW 43.23.033 if the position is not directly funded by the legislature; and (ii) The actual costs related to the specific activity undertaken on behalf of an individual commodity board or commission. (2) The director may adopt amendments to marketing agreements or orders without conducting a referendum if the amendments are adopted under the following criteria: (a) The proposed amendments relate only to internal administration of a marketing order or agreement and are not subject to violation by a person; (b) The proposed amendments adopt or incorporate by reference without material change federal statutes or regulations, Washington state statutes, or rules of other Washington state agencies, if the material adopted or incorporated regulates the same activities as are authorized under the marketing order or agreement; (c) The proposed amendments only correct typographical errors, make address or name changes, or clarify language of a rule without changing the marketing order or agreement; and (d) The content of the proposed amendments is explicitly and specifically dictated by statute. A marketing order or agreement shall not be amended without a referendum to provide that a majority of the commodity board members be appointed by the director. [2002 c 313 § 7.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.050 15.65.050 Director to enforce and administer chapter—Marketing agreements, orders issued, amended, [Title 15 RCW—page 119] 15.65.055 Title 15 RCW: Agriculture and Marketing notice, grounds for amendments. The director shall administer and enforce this chapter and it shall be his or her duty to carry out its provisions and put them into force in accordance with its terms, but issuance, amendment, modification, and/or suspension of marketing agreements and orders and of any terms or provisions thereof shall be accomplished according to the procedures set forth in this chapter and not otherwise. Whenever he or she has reason to believe that the issuance or amendment of a marketing agreement or order will tend to effectuate any declared policy or purpose of this chapter with respect to any agricultural commodity, and in the case of application for issuance or amendment ten or more producers of such commodity apply or when a petition for amendment is submitted by majority vote of a commodity board, then the director shall give due notice of, and an opportunity for, a public hearing upon such issuance or amendment, and the director shall issue marketing agreements and orders containing the provisions specified in this chapter and from time to time amend the same whenever upon compliance with and on the basis of facts adduced in accordance with the procedural requirements of this chapter he or she shall find that such agreement, order, or amendment: (1) Will tend to effectuate one or more of the declared policies of this chapter and is needed in order to effectuate the same. (2) Is reasonably adapted to accomplish the purposes and objects for which it is issued and complies with the applicable provisions of this chapter. (3) Has been approved or favored by the percentages of producers and/or handlers specified in and ascertained in accordance with this chapter. [2002 c 313 § 5; 1961 c 256 § 5.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.055 15.65.055 Regulatory authority on the production of rapeseed by variety and location. The legislature finds that the production of marketable rapeseed within this state is in the interest of the public welfare. The legislature further finds that the production of incompatible varieties of rapeseed in close geographical proximity adversely affects the purity and marketability of rapeseed, and that it is in the public interest to establish geographical districts and buffer zones wherein the production of rapeseed may be restricted by variety. For the purpose of rapeseed production in the state of Washington, the director of the department of agriculture shall have the regulatory authority on the production of rapeseed by variety and geographic location until such time as a rapeseed commodity commission is formulated. Once formed, the rapeseed commodity commission shall assume the regulatory authority on the production of rapeseed by variety and geographic location in the state of Washington. [1986 c 203 § 21.] Severability—1986 c 203: See note following RCW 15.17.230. 15.65.060 15.65.060 Form, filing of marketing agreement, order, amendment, and other proceedings. The director shall cause any marketing agreement, order proposed for issuance, or amendment to be set out in detailed form and reduced to writing, which writing is herein designated "proposal." The director shall make and maintain on file in the [Title 15 RCW—page 120] office of the department a copy of each proposal and a full and complete record of all notices, hearings, findings, decisions, assents, and all other proceedings relating to each proposal and to each marketing agreement and order. [2002 c 313 § 6; 1961 c 256 § 6.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.070 15.65.070 Notice of hearing on proposal—Publication—Contents. The director shall publish notice of any hearing called for the purpose of considering and acting upon any proposal for a period of not less than two days in one or more newspapers of general circulation as the director may prescribe. No such public hearing shall be held prior to five days after the last day of such period of publication. Such notice shall set forth the date, time and place of said hearing, the agricultural commodity and the area covered by such proposal; a concise statement of the proposal; a concise statement of each additional subject upon which the director will hear evidence and make a determination, and a statement that, and the address where, copies of the proposal may be obtained. The director shall also mail notice to all producers and handlers within the affected area who may be directly affected by such proposal and whose names and addresses appear, on the day next preceding the day on which such notice is published, upon lists of such persons then on file in the department. [2002 c 313 § 8; 1987 c 393 § 5; 1985 c 261 § 2; 1979 c 154 § 4; 1961 c 256 § 7.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1979 c 154: See note following RCW 15.49.330. 15.65.090 15.65.090 Subpoenas—Compelling attendance of witnesses, fees—Immunity of witnesses. The director shall have the power to issue subpoenas for the production of any books, records, or documents of any kind and to subpoena witnesses to be produced or to appear (as the case may be) in the county wherein the principal party involved in such hearing resides. No person shall be excused from attending and testifying or from producing documentary evidence before the director in obedience to the subpoena of the director on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him or her may tend to incriminate him or her or subject him or her to a penalty or forfeiture, but no natural person shall be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he or she may be so required to testify or produce evidence, documentary or otherwise, before the director in obedience to a subpoena issued by him or her: PROVIDED, That no natural person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying. The superior court of the county in which any such hearing or proceeding may be had, may compel the attendance of witnesses and the production of records, papers, books, accounts, documents and testimony as required by such subpoena. In case any witness refuses to attend or testify or produce any papers required by the subpoena, the director or his or her examiner shall so report to the superior court of the county in which the proceeding is pending by petition setting forth that due notice was given of the time and place of attendance of the witness or the production of the papers and that the witness has been (2006 Ed.) Washington State Agricultural Commodity Boards summoned in the manner prescribed in this chapter and that the fees and mileage of the witness have been paid or tendered to him or her in accordance with RCW 2.40.020 and that he or she has failed to attend or produce the papers required by the subpoena at the hearing, cause, or proceeding specified in the notice and subpoena, or has refused to answer questions propounded to him or her in the course of such hearing, cause or proceeding, and shall ask an order of the court to compel such witness to appear and testify before the director. The court upon such petition shall enter an order directing the witness to appear before the court at a time and place to be fixed in such order and then and there show cause why he or she has not responded to the subpoena. A certified copy of the show cause order shall be served upon the witness. If it shall appear to the court that the subpoena was regularly issued, the court shall enter a decree that the witness appear at the time and place fixed in the decree and testify or produce the required papers, and on failing to obey said decree the witness shall be dealt with as for contempt of court. [2002 c 313 § 9; 1961 c 256 § 9.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.100 15.65.100 Director’s findings and recommended decision, delivery of copies—Taking official notice of facts from other agencies. The director shall make and publish findings based upon the facts, testimony and evidence received at the public hearings together with any other relevant facts available to him from official publications of the United States or any state thereof or any institution of recognized standing and he is hereby expressly empowered to take "official notice" of the same. Such findings shall be made upon every material point controverted at the hearing and/or required by this chapter and upon such other matters and things as the director may deem fitting and proper. The director shall issue a recommended decision based upon his findings and shall cause copies of the findings and recommended decision to be delivered or mailed to all parties of record appearing at the hearing, or their attorneys of record. [1961 c 256 § 10.] 15.65.110 15.65.110 Filing objections to recommended decision—Final decision—Waiver. After the issuance of a recommended decision all interested parties shall have a period of not less than ten days to file objections or exceptions with the director. Thereafter the director shall take such objections and exceptions as are filed into consideration and shall issue and publish his final decision which may be the same as the recommended decision or may be revised in the light of said objections and exceptions. Upon written waiver executed by all parties of record at any hearing or by their attorneys of record the director may in his discretion omit compliance with the provisions of this section. [1961 c 256 § 11.] 15.65.120 15.65.120 Contents and scope of recommended and final decision—Delivery of copies. The recommended decision shall contain the text in full of any recommended agreement, order, or amendment, and may deny or approve the proposal in its entirety, or it may recommend a marketing agreement, order, or amendment containing other or different terms or conditions from those contained in the proposal: (2006 Ed.) 15.65.140 PROVIDED, That the same shall be of a kind or type substantially within the purview of the notice of hearing and shall be supported by evidence taken at the hearing or by documents of which the director is authorized to take official notice. The final decision shall set out in full the text of the agreement, order, or amendment covered thereby, and the director shall issue and deliver or mail copies of the final decision to all producers and handlers within the affected area who may be directly affected by such final decision and whose names and addresses appear, on the day next preceding the day on which such final decision is issued, upon the lists of such persons then on file in the department, and to all parties of record appearing at the hearing, or their attorneys of record. If the final decision denies the proposal in its entirety no further action shall be taken by the director. [2002 c 313 § 10; 1985 c 261 § 3; 1961 c 256 § 12.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.130 15.65.130 Agreements binding only on those who assent in writing—Agreement not effective until sufficient signatories to effectuate chapter—When effective. With respect to marketing agreements, the director shall after publication of his final decision, invite all producers and handlers affected thereby to assent or agree to the agreement or amendment set out in such decision. Said marketing agreements or amendments thereto shall be binding upon and only upon persons who have agreed thereto in writing and whose written agreement has been filed with the director: PROVIDED, That the filing of such written agreement by a cooperative association shall be binding upon such cooperative and all of its members, and PROVIDED, FURTHER, That the director shall enter into and put into force a marketing agreement or amendment thereto when and only when he shall find in addition to the other findings specified in this chapter that said marketing agreement or any amendment thereto has been assented to by a sufficient number of signatories who handle or produce a sufficient volume of the commodity affected to tend to effectuate the declared policies and purposes of this chapter and to accomplish the purposes and objects of such agreement or amendment thereto and provide sufficient moneys from assessments levied to defray the necessary expenses of formulation, issuance, administration and enforcement. Such agreement shall be deemed to be issued and put into force and effect when the director shall have so notified all persons who have assented thereto. [1961 c 256 § 13.] 15.65.140 15.65.140 Minimum assent requirements prerequisite to order or amendment affecting producers or producer marketing. No marketing order or amendment thereto directly affecting producers or producer marketing shall be issued unless the director determines (in accordance with any of the procedures described at RCW 15.65.160) that the issuance of such order or amendment is assented to or favored by producers within the affected area who during a representative period determined by the director constituted either (1) at least sixty-five percent by numbers and at least fifty-one percent by volume of production of the producers who have been engaged within the area of production specified in such marketing order in the production for market of [Title 15 RCW—page 121] 15.65.150 Title 15 RCW: Agriculture and Marketing the commodity specified therein, or who during such representative period have been engaged in the production of such commodity for marketing in the marketing area specified in such marketing order, or (2) at least fifty-one percent by numbers and at least sixty-five percent by volume of production of such producers: PROVIDED, That producers shall be deemed to have assented to or approved a proposed amendment order if sixty percent or more by number and sixty percent or more by volume of those replying assent or approve the proposed order in a referendum. [1985 c 261 § 4; 1975 1st ex.s. c 7 § 3; 1961 c 256 § 14.] 15.65.150 15.65.150 Minimum requirements prerequisite to order or amendment assessing handlers—Assent by producers. Any marketing order or amendment thereto directly assessing handlers shall be issued either (1) when the director determines that the issuance of such order or amendment is assented to or favored by handlers who during a representative period determined by the director constituted at least fifty-one percent by numbers or fifty-one percent by volume handled of the handlers who have been engaged in the handling of the commodity specified in such marketing order produced in such production area or marketed in such marketing area, as the case may be, or (2) when upon the basis of findings on a duly noticed hearing held in the manner herein provided, the director determines: (a) That the issuance of such order or amendment will not result in unequal cost of product or availability of supplies, or cause competitive disadvantage of other respects as between handlers; (b) That the issuance of such order or amendment is the only practical means of advancing the interest of producers of such commodity pursuant to the declared policy of this chapter and that failure to issue such order or amendment would tend to prevent effectuation of the declared policies of this chapter; (c) That the issuance of such order is assented to or favored by producers who during a representative period determined by the director constituted at least seventy-five percent by numbers or at least sixty-five percent by volume of production of the producers who have been engaged within the production area specified in such marketing order in the production for market of the commodity specified therein, or who during such representative period have been engaged in the production of such commodity for sale in the marketing area specified in such order. [1985 c 261 § 5; 1961 c 256 § 15.] 15.65.160 15.65.160 Ascertainment of required assent percentages. After publication of his final decision, the director shall ascertain (either by written agreement in accordance with subdivision (1) of this section or by referendum in accordance with subdivision (2) of this section) whether the above specified percentages of producers and/or handlers assent to or approve any proposed order, amendment or termination, and for such purpose: (1) The director may ascertain whether assent or approval by the percentages specified in RCW 15.65.140, 15.65.150 or 15.65.190 (whichever is applicable) have been complied with by written agreement, and the requirements of [Title 15 RCW—page 122] assent or approval shall, in such case, be held to be complied with, if of the total number of affected producers or affected handlers within the affected area and the total volume of production of the affected commodity or product thereof, the percentages evidencing assent or approval are equal to or in excess of the percentages specified in said sections; or (2) The director may conduct a referendum among producers within the affected area and the requirements of assent or approval shall be held to be complied with if of the total number of such producers and the total volume of production represented in such referendum the percentage assenting to or favoring is equal to or in excess of the percentage specified in RCW 15.65.140, 15.65.150 or 15.65.190 (whichever is applicable) as now or hereafter amended: PROVIDED, That thirty percent of the affected producers within the affected area producing thirty percent by volume of the affected commodity have been represented in a referendum to determine assent or approval of the issuance of a marketing order: PROVIDED FURTHER, That a marketing order shall not become effective when the provisions of subdivision (3) of this section are used unless sixty-five percent by number of the affected producers within the affected area producing fifty-one percent by volume of the affected commodity or fifty-one percent by number of such affected producers producing sixty-five percent by volume of the affected commodity approve such marketing order; (3) The director shall consider the assent or dissent or the approval or disapproval of any cooperative marketing association authorized by its producer members either by a majority vote of those voting thereon or by its articles of incorporation or by its bylaws or by any marketing or other agreement to market the affected commodity for such members or to act for them in any such referendum as being the assent or dissent or the approval or disapproval of the producers who are members of or stockholders in or under contract with such cooperative association of producers: PROVIDED, That the association shall first determine that a majority of its affected producers authorizes its action concerning the specific marketing order. [1985 c 261 § 6; 1975 1st ex.s. c 7 § 4; 1961 c 256 § 16.] 15.65.170 15.65.170 Issuance or amendment of marketing order—Assent—Rules. If the director determines that the requisite assent has been given to issue or amend a marketing order, the issuance or amendment shall be adopted by rule by the director within thirty days of the validation of the vote. If the director determines that the requisite assent has not been given no further action shall be taken by the director upon the proposal, and the order contained in the final decision shall be without force or effect. [2002 c 313 § 11; 1987 c 393 § 6; 1961 c 256 § 17.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.175 15.65.175 Issuing, amending, or terminating a marketing order—Limitation on public hearings or referendums. The director shall not be required to hold a public hearing or a referendum more than once in any twelve-month period on petitions to issue, amend, or terminate a commodity marketing order if any of the following circumstances are present: (2006 Ed.) Washington State Agricultural Commodity Boards (1) The petition proposes to establish a marketing order or agreement for the same commodity; (2) The petition proposes the same or a similar amendment to a marketing order or agreement; or (3) The petition proposes to terminate the same marketing order or agreement. [2002 c 313 § 12.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.180 15.65.180 Suspension of marketing agreement or order upon advice of commodity board—Certain prerequisites waived. The director may, upon the advice of the commodity board serving under any marketing agreement or order and without compliance with the provisions of RCW 15.65.050 through 15.65.170, suspend any such agreement or order or term or provision thereof for a period of not to exceed one year, if the director finds that such suspension will tend to effectuate the declared policy of this chapter. Any suspension of all or substantially all of a marketing agreement or order by the director shall not become effective until the end of the then current marketing season. [2002 c 313 § 13; 1961 c 256 § 18.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.183 15.65.183 Termination of marketing order or agreement—Petition—Procedure. The director may terminate a marketing order or agreement in accordance with this chapter. (1) To terminate a marketing order or agreement: (a) The director must receive a petition by affected producers under this chapter signed by at least ten percent of the affected producers; or (b) A majority of a commodity board may file a petition with the director. (2) The petitioners must include in the petition at the time of filing: (a) A statement of why the marketing order or agreement and the commodity board created under it no longer meets [meet] the purposes of this chapter; (b) The name of a person designated to represent the petitioners; and (c) The effective date of a marketing order or agreement termination, which may not be less than one year from the date the petition was filed with the director. (3) Within sixty days of receipt of a petition meeting the requirements of this section, the director shall commence rule-making proceedings to repeal the marketing order or agreement and, subsequently, a referendum on the issue. (4) The director shall include a copy of a petition to terminate a marketing order or agreement with the notice to affected producers when rule-making proceedings are commenced. (5) If the petitioners fail to meet the requirements of this chapter, the director shall deny the petition and a referendum vote will not be conducted. The person designated to represent the petitioners shall be notified if a petition is denied. [2002 c 313 § 14.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.185 15.65.185 Referendum prior to termination of a marketing order or agreement—Procedure—Exceptions. (2006 Ed.) 15.65.193 Except as provided in RCW 15.65.190 or subsection (4) of this section, the director, prior to termination of the marketing order or agreement, shall conduct a referendum as provided in this chapter, the rules adopted by the director, and the applicable marketing order or agreement. (1) If a referendum on the termination of a marketing order or agreement is assented to, the referendum proposal shall be adopted by the director within thirty days of the count of the ballots and shall go into effect under chapter 34.05 RCW. If those affected producers eligible to vote in the referendum do not assent, no further action shall be taken by the director on the proposal. (2) The list of affected producers used for conducting a referendum on the termination of a marketing order or agreement shall be kept in the rule-making file by the director. The list shall be certified as a true representation of the referendum mailing list. Inadvertent failure to notify an affected producer does not invalidate a referendum. (3) The list of affected producers that is certified as the true representation of the mailing list of a referendum shall be used to determine assent as provided for in RCW 15.65.190. (4) If the director determines that one hundred percent of the affected producers have filed a written application with the director requesting that a marketing order or agreement be terminated, the director may terminate the marketing order or agreement without conducting a referendum. The termination of the marketing order or agreement shall go into effect under chapter 34.05 RCW, but no sooner than at the end of the marketing season then current. [2002 c 313 § 15.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.190 15.65.190 Termination of agreement or order on assent of producers—Procedure. Any marketing agreement or order shall be terminated if the director finds that fifty-one percent by numbers and fifty-one percent by volume of production of the affected producers within the affected area favor or assent to such termination. The director may ascertain without compliance with the provisions of RCW 15.65.050 through 15.65.130 whether such termination is so assented to or favored whenever twenty percent by numbers or twenty percent by volume of production of said producers file written application with him for such termination. No such termination shall become effective until the expiration of the marketing season then current. [1985 c 261 § 7; 1961 c 256 § 19.] 15.65.193 15.65.193 When marketing order or agreement is terminated—Duties of affected commodity board. If after complying with the procedures outlined in this chapter and a referendum proposal to terminate a marketing order or agreement is assented to, the affected commodity board shall: (1) Document the details of all measures undertaken to terminate the marketing order and identify and document all closing costs; (2) Contact the office of the state auditor and arrange for a final audit of the commodity board. Payment for the audit shall be from commodity board funds and identified in the budget for closing costs; (3) Provide for the reimbursement to affected producers of moneys collected by assessment. Reimbursement shall be [Title 15 RCW—page 123] 15.65.200 Title 15 RCW: Agriculture and Marketing made to those considered affected producers over the previous three-year time frame on a pro rata basis and at a percent commensurate with their volume of production over the previous three-year period unless a different time period is specified in the marketing order or agreement. If the commodity board finds that the amounts of moneys are so small as to make impractical the computation and remitting of the pro rata refund, the moneys shall be paid into the state treasury as unclaimed trust moneys; and (4) Transfer all remaining files to the department for storage and archiving, as appropriate. [2002 c 313 § 16.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.200 15.65.200 Lists of affected parties—Information used to establish lists—Purpose and use. (1) Whenever application is made for the issuance of a marketing agreement or order or the director otherwise determines to hold a hearing for the purpose of such issuance, the director or a designee shall establish a list of affected parties along with volume of production data covering a minimum three-year period, or in such lesser time as the affected party has produced the commodity in question, from information provided by the petitioners, by obtaining information on affected parties from applicable producer, handler, or processor organizations or associations or other sources identified as maintaining the information. (2) The director shall use the list of affected parties for the purpose of notice, referendum proceedings, and electing and selecting members of commodity boards in accordance with this chapter. (3) An affected party may at any time file his or her name and mailing address with the director. A list of affected parties may be brought up-to-date by the director up to the day preceding a mailing of a notice or ballot under this chapter and that list is deemed the list of affected parties entitled to vote. (4) The list of affected parties used for the issuance of a marketing order or agreement shall be kept in a file maintained by the director. The list shall be certified as a true representation of the mailing list. Inadvertent failure to notify an affected party does not invalidate a proceeding conducted under this chapter. (5) The list of affected parties that is certified as the true representation of the mailing list of a referendum shall be used to determine assent as provided in this chapter. (6) The director shall provide the commodity board the list of affected and interested parties once a marketing order or agreement is adopted and a commodity board is established as provided in this chapter. [2002 c 313 § 17; 1985 c 261 § 8; 1961 c 256 § 20.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.203 15.65.203 Certain records exempt from public disclosure—Exceptions—Actions not prohibited by chapter. (1) Pursuant to RCW 42.56.380, certain agricultural business records, commodity board records, and department of agriculture records relating to commodity boards and producers of agricultural commodities are exempt from public disclosure. [Title 15 RCW—page 124] (2) Financial and commercial information and records submitted to either the department or a commodity board for the purpose of administering this chapter or a marketing order or agreement may be shared between the department and the applicable commodity board. They may also be used, if required, in any suit or administrative hearing involving this chapter or a marketing order or agreement. (3) This chapter does not prohibit: (a) The issuance of general statements based upon the reports of a number of persons subject to any marketing order or agreement as long as the statements do not identify the information furnished by any person; or (b) The publication by the director or a commodity board of the name of any person violating any marketing order or agreement and a statement of the manner of the violation by that person. [2005 c 274 § 216; 2002 c 313 § 18.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.205 15.65.205 After any vote, referendum, nomination, or election—Affected parties provided results—Disputes. (1) Upon completion of any vote, referendum, or nomination and elections, the department shall tally the results of the vote and provide the results to affected parties. (2) If an affected party disputes the results of a vote, that affected party, within sixty days from the announced results, shall provide in writing a statement of why the vote is disputed and request a recount. (3) Once the vote is tallied and distributed, all disputes are resolved, and all matters in a vote are finalized, the individual ballots may be destroyed. [2002 c 313 § 19.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.210 15.65.210 Powers and duties of director with respect to the administration and enforcement of agreements and orders—Administrator—Personnel. The director shall administer, enforce, direct, and control every marketing agreement and order in accordance with its provisions. For such purposes he shall include in each order and he may include in each agreement provisions for the employment of such administrator and such additional personnel (including attorneys engaged in the private practice of law, subject to the approval and supervision of the attorney general) as he determines are necessary and proper for such order or agreement to effectuate the declared policies of this chapter. Such provisions may provide for the qualifications, method of selection, term of office, grounds of dismissal and the detailed powers and duties to be exercised by such administrator or board and by such additional personnel, including the authority to borrow money and incur indebtedness, and may also provide either that the said administrative board shall be the commodity board or that the administrator or administrative board be designated by the director or the governor. [1977 ex.s. c 26 § 4; 1961 c 256 § 21.] 15.65.220 15.65.220 Commodity boards—Membership—Marketing agreement or order to establish and control— Director votes. (1) Every marketing agreement and order shall provide for the establishment of a commodity board of (2006 Ed.) Washington State Agricultural Commodity Boards not less than five nor more than thirteen members and shall specify the exact number thereof and all details as to (a) qualification, (b) nomination, (c) election or appointment by the director, (d) term of office, and (e) powers, duties, and all other matters pertaining to such board. (2) The members of the board shall be producers or handlers or both in such proportion as the director shall specify in the marketing agreement or order, but in any marketing order or agreement the number of handlers on the board shall not exceed the number of producers thereon. The marketing order or agreement may provide that a majority of the board be appointed by the director, but in any event, no less than one-third of the board members shall be elected by the affected producers. (3) In the event that the marketing order or agreement provides that a majority of the commodity board be appointed by the director, the marketing order or agreement shall incorporate the provisions of RCW 15.65.243 for board member selection. (4) The director shall appoint to every board one member who represents the director. The director shall be a voting member of each commodity board. [2003 c 396 § 9; 2002 c 313 § 20; 1961 c 256 § 22.] 15.65.250 15.65.240 15.65.240 Terms of members of commodity boards— Elections or appointment. The term of office of board members shall be three years, and one-third as nearly as may be shall be elected or appointed every year: PROVIDED, That at the inception of any agreement or order the entire board shall be elected or appointed one-third for a term of one year, one-third for a term of two years and one-third for a term of three years to the end that memberships on such board shall be on a rotating basis. In the event an order or agreement provides that both producers and handlers shall be members of such board the terms of each type of member shall be so arranged that one-third of the handler members as nearly as may be and one-third of the producer members as nearly as may be shall be elected or appointed each year. Any marketing agreement or order may provide for election or appointment of board members by districts, in which case district lines and the number of board members to be elected or appointed from each district shall be specified in such agreement or order and upon such basis as the director finds to be fair and equitable and reasonably adapted to effectuate the declared policies of this chapter. [2002 c 313 § 23; 1961 c 256 § 24.] Effective dates—2002 c 313: See note following RCW 15.65.020. Effective date—2003 c 396: See note following RCW 15.66.030. 15.65.243 Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.230 15.65.230 Qualifications of members of commodity boards. A producer member of each commodity board must be a practical producer of the affected commodity and must be a citizen, resident of this state, and over the age of eighteen years. Each producer board member must be and have been actually engaged in producing such a commodity within the state of Washington for a period of five years and have, during that period, derived a substantial portion of his or her income therefrom and not be engaged in business, directly or indirectly, as a handler or other dealer. A handler member of each board must be a practical handler of the affected commodity and must be a citizen, resident of this state, and over the age of eighteen years. Each handler board member must be and have been, either individually or as an officer or employee of a corporation, firm, partnership, association, or cooperative, actually engaged in handling such a commodity within the state of Washington for a period of five years and have, during that period, derived a substantial portion of his or her income therefrom. The qualification of a member of the board as set forth in this section must continue during the term of office. [2002 c 313 § 21; 2001 c 315 § 5; 1961 c 256 § 23.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.235 15.65.235 Producer-handlers as producers for membership purposes—Exception. Whenever any commodity board is formed under the provisions of this chapter and it only affects producers and producer-handlers, then such producer-handlers shall be considered to be acting only as producers for purpose of membership on a commodity board: PROVIDED, That this section shall not apply to a commodity board which only affects producers and producer-handlers of essential oils. [2002 c 313 § 22; 1971 c 25 § 1.] Effective dates—2002 c 313: See note following RCW 15.65.020. (2006 Ed.) 15.65.243 When director appoints majority of the board—Nominations—Advisory vote—Notice—Director selects either of two candidates receiving the most votes. (1) This section or *RCW 15.65.245 applies when the director appoints a majority of the board positions as set forth under RCW 15.65.220(3). (2) Candidates for director-appointed board positions on a commodity board shall be nominated under RCW 15.65.250. (3) The director shall cause an advisory vote to be held for the director-appointed positions. Not less than ten days in advance of the vote, advisory ballots shall be mailed to all producers or handlers entitled to vote, if their names appear upon the list of affected parties or affected producers or handlers, whichever is applicable. Notice of every advisory vote for board membership shall be published in a newspaper of general circulation within the affected area defined in the order or agreement not less than ten days in advance of the date of the vote. The advisory ballot shall be conducted in a manner so that it is a secret ballot. The names of the two candidates receiving the most votes in the advisory vote shall be forwarded to the director for potential appointment to the board. In the event there are only two candidates nominated for a board position, an advisory vote may not be held and the candidates’ names shall be forwarded to the director for potential appointment. (4) The candidates whose names are forwarded to the director for potential appointment shall submit to the director a letter stating why he or she wishes to be appointed to the board. The director may select either person for the position. [2002 c 313 § 24.] *Reviser’s note: RCW 15.65.245 was repealed by 2003 c 396 § 37. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.250 15.65.250 Nominations for election to commodity board—When only one nominee. For the purpose of nom[Title 15 RCW—page 125] 15.65.260 Title 15 RCW: Agriculture and Marketing inating candidates for board memberships, the director shall call separate meetings of the affected producers and handlers within the affected area and in case elections shall be by districts the director shall call separate meetings for each district. However, at the inception any marketing agreement or order nominations may be at the issuance hearing. Nomination meetings shall be called annually and at least thirty days in advance of the date set for the election of board members. Notice of every such meeting shall be published in a newspaper of general circulation within the affected area defined in the order or agreement not less than ten days in advance of the date of such meeting and in addition, written notice of every such meeting shall be given to all on the list of affected parties or affected producers and/or handlers, whichever is applicable. However, if the agreement or order provides for election by districts such written notice need be given only to the producers or handlers residing in or whose principal place of business is within such district. Nonreceipt of notice by any interested person shall not invalidate proceedings at such meetings. Any qualified person may be nominated orally for membership upon such board at the said meetings. Nominations may also be made within five days after any such meeting by written petition filed with the director signed by not less than five producers or handlers, as the case may be, entitled to have participated in said meeting. If the board moves and the director approves that the nomination meeting procedure be deleted, the director shall give notice of the vacancy by mail to all affected producers or handlers. The notice shall call for nominations in accordance with the marketing order or agreement and shall give the final date for filing nominations which shall not be less than twenty days after the notice was mailed. Not more than one board member may be part of the same "person" as defined by this chapter. When only one nominee is nominated for any position on the board, the director shall determine whether the nominee meets the qualifications for the position and, if so, the director shall declare the nominee elected or appoint the nominee to the position. [2002 c 313 § 26; 1987 c 393 § 7; 1985 c 261 § 9; 1975 1st ex.s. c 7 § 5; 1961 c 256 § 25.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.260 15.65.260 Election of members of commodity board—Procedure. (1) The elected members of every commodity board shall be elected by secret mail ballot under the supervision of the director. Elected producer members of the board shall be elected by a majority of the votes cast by the affected producers within the affected area, but if the marketing order or agreement provides for districts such producer members of the board shall be elected by a majority of the votes cast by the affected producers in the respective districts. Each affected producer within the affected area shall be entitled to one vote. Elected handler members of the board shall be elected by a majority of the votes cast by the affected handlers within the affected area, but if the marketing order or agreement provides for districts such handler members of the board shall be elected by a majority of the votes cast by the affected handlers in the respective districts. Each affected handler within the affected area shall be entitled to one vote. [Title 15 RCW—page 126] If a nominee does not receive a majority of the votes on the first ballot a run-off election shall be held by mail in a similar manner between the two candidates for such position receiving the largest number of votes. (2) Notice of every election for board membership shall be published in a newspaper of general circulation within the affected area defined in the order or agreement not less than ten days in advance of the date of such election. Not less than ten days prior to every election for board membership, the director shall mail a ballot of the candidates to each producer and handler entitled to vote whose name appears upon the list of affected parties or affected producers or handlers, whichever is applicable. Any other producer or handler entitled to vote may obtain a ballot by application to the director upon establishing his or her qualifications. Nonreceipt of a ballot by any person entitled to vote shall not invalidate the election of any board member. [2002 c 313 § 27; 1985 c 261 § 10; 1961 c 256 § 26.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.270 Vacancies, quorum, compensation, travel expenses of commodity board members and employees. (1) In the event of a vacancy in an elected position on the board, the remaining board members shall select a qualified person to fill the vacant position for the remainder of the current term or as provided in the marketing order or agreement. (2) In the event of a vacancy on the board in a position appointed by the director, the remaining board members shall recommend to the director a qualified person for appointment to the vacant position. The director shall appoint the person recommended by the board unless the person fails to meet the qualifications of board members under this chapter and the marketing order or agreement. (3) A majority of the voting members of the board shall constitute a quorum for the transaction of all business and the carrying out of all duties of the board. (4) Each member of the board shall be compensated in accordance with RCW 43.03.230. Members and employees of the board may be reimbursed for actual travel expenses incurred in carrying out the provisions of this chapter, as defined under the commodity board’s marketing order or agreement. Otherwise, if not defined or referenced in the marketing order or agreement, reimbursement for travel expenses shall be at the rates allowed state employees in accordance with RCW 43.03.050 and 43.03.060. [2002 c 313 § 28; 2001 2nd sp.s. c 6 § 1; 1984 c 287 § 16; 1975-’76 2nd ex.s. c 34 § 19; 1961 c 256 § 27.] 15.65.270 Effective dates—2002 c 313: See note following RCW 15.65.020. Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. 15.65.280 Powers and duties of commodity board— Reservation of power to director. The powers and duties of the board shall be: (1) To elect a chairman and such other officers as it deems advisable; (2) To advise and counsel the director with respect to the administration and conduct of such marketing agreement or order; 15.65.280 (2006 Ed.) Washington State Agricultural Commodity Boards (3) To recommend to the director administrative rules and orders and amendments thereto for the exercise of his or her powers in connection with such agreement or order; (4) To advise the director upon any and all assessments provided pursuant to the terms of such agreement or order and upon the collection, deposit, withdrawal, disbursement and paying out of all moneys; (5) To assist the director in the collection of such necessary information and data as the director may deem necessary in the proper administration of this chapter; (6) To administer the order or agreement as its administrative board if the director designates it so to do in such order or agreement; (7) To work cooperatively with other local, state, and federal agencies; universities; and national organizations for the purposes provided in the board’s marketing order or agreement; (8) To enter into contracts or interagency agreements with any private or public agency, whether federal, state, or local, to carry out the purposes provided in the board’s marketing order or agreement. Personal service contracts must comply with chapter 39.29 RCW; (9) To accept and expend or retain any gifts, bequests, contributions, or grants from private persons or private and public agencies to carry out the purposes provided in the board’s marketing order or agreement; (10) To retain in emergent situations the services of private legal counsel to conduct legal actions on behalf of a board. The retention of a private attorney is subject to review by the office of the attorney general; (11) To engage in appropriate fund-raising activities for the purpose of supporting activities of the board authorized by the marketing order or agreement; (12) To enter into contracts or agreements for research in the production, irrigation, processing, transportation, marketing, use, or distribution of an affected commodity; (13) To participate in international, federal, state, and local hearings, meetings, and other proceedings relating to the production, irrigation, manufacture, regulation, transportation, distribution, sale, or use of affected commodities including activities authorized under RCW 42.17.190, including the reporting of those activities to the public disclosure commission; (14) To maintain a list of the names and addresses of affected producers that may be compiled from information used to collect assessments under the marketing order or agreement, and data on the value of each producer’s production for a minimum three-year period; (15) To maintain a list of the names and addresses of persons who handle the affected commodity within the affected area and data on the amount and value of the commodity handled for a minimum three-year period by each person; and (16) To perform such other duties as the director may prescribe in the marketing agreement or order. Any agreement or order under which the commodity board administers the order or agreement shall (if so requested by the affected producers within the affected area in the proposal or promulgation hearing) contain provisions whereby the director reserves the power to approve or disapprove every order, rule or directive issued by the board, in which event such approval or disapproval shall be based on (2006 Ed.) 15.65.289 whether or not the director believes the board’s action has been carried out in conformance with the purposes of this chapter. [2002 c 313 § 29; 2001 c 315 § 6; 1985 c 261 § 11; 1961 c 256 § 28.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.283 15.65.283 Members may belong to association with same objectives—Contracts with other associations authorized. Any member of an agricultural commodity board may also be a member or officer of an association which has the same objectives for which the agricultural commodity board was formed. An agricultural commodity board may also contract with such association for services necessary to carry out any purposes authorized under this chapter, provided that an appropriate contract has been entered into. [1972 ex.s. c 112 § 1.] 15.65.285 15.65.285 Restrictive provisions of chapter 43.78 RCW not applicable to promotional printing and literature of commodity boards. The restrictive provisions of chapter 43.78 RCW, as now or hereafter amended, shall not apply to promotional printing and literature for any commodity board. [1972 ex.s. c 112 § 2.] 15.65.287 15.65.287 Commission’s plans, programs, and projects—Director’s approval required. (1) Each commodity commission shall develop and submit to the director for approval any plans, programs, and projects concerning the following: (a) The establishment, issuance, effectuation, and administration of appropriate programs or projects for the advertising and promotion of the affected commodity; and (b) The establishment and effectuation of market research projects, market development projects, or both to the end that the marketing and utilization of the affected commodity may be encouraged, expanded, improved, or made more efficient. (2) The director shall review each commodity commission’s advertising or promotion program to ensure that no false claims are being made concerning the affected commodity. (3) Each commodity commission, prior to the beginning of its fiscal year, shall prepare and submit to the director for approval its research plan, its commodity-related education and training plan, and its budget on a fiscal period basis. (4) The director shall strive to review and make a determination of all submissions described in this section in a timely manner. [2003 c 396 § 10.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.65.289 15.65.289 Commission speaks for state—Director’s oversight. Each commission organized under a marketing order adopted under this chapter exists primarily for the benefit of the people of the state of Washington and its economy. The legislature hereby charges each commission, with oversight by the director, to speak on behalf of Washington state government with regard to its particular commodity. [2003 c 396 § 11.] Effective date—2003 c 396: See note following RCW 15.66.030. [Title 15 RCW—page 127] 15.65.290 Title 15 RCW: Agriculture and Marketing 15.65.290 15.65.290 Claims and liabilities, enforcement against organization—Personal liabilities of officials, employees, etc. Obligations incurred by any administrator or board or employee or agent thereof pertaining to their performance or nonperformance or misperformance of any matters or things authorized, required or permitted them by this chapter or any marketing agreement or order issued pursuant to this chapter, and any other liabilities or claims against them or any of them shall be enforced in the same manner as if the whole organization under such marketing agreement or order were a corporation. No liability for the debts or actions of such administrator, board, employee or agent incurred in their official capacity under the agreement or order shall exist either against its administrator, board, officers, employees and/or agents in his or their individual capacity, nor against the state of Washington or any subdivision or instrumentality thereof nor against any other organization, administrator or board (or employee or agent thereof) established pursuant to this chapter or the assets thereof. The administrator of any order or agreement, the members of any such board, and also his or their agents and employees, shall not be held responsible individually in any way whatsoever to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person or employee, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other administrator, board, member of any such board, or other person. The liability of the members of any such board shall be several and not joint and no member shall be liable for the default of any other member. [1961 c 256 § 29.] 15.65.295 15.65.295 Lists of all affected producers and handlers—Affected parties responsible for accuracy—Use of lists. (1) Each commodity board shall prepare a list of all affected producers from any information available from the department, producers, producer associations or organizations, or handlers of the affected commodity. This list shall contain the names and addresses of all affected persons who produce the affected commodity and the amount, by unit, of the affected commodity produced during at least the past three years. (2) Each commodity board shall prepare a list of all persons who handle the affected commodity and the amount of the commodity handled by each person during at least the past three years. (3) It is the responsibility of all affected parties to ensure that their correct address is filed with the commodity board. It is also the responsibility of affected parties to submit production data and handling data to the commodity board as prescribed by the board’s marketing order or agreement. (4) Any qualified person may, at any time, have his or her name placed upon any list for which he or she qualifies by delivering or mailing the information to the commodity board. The lists shall be corrected and brought up-to-date in accordance with evidence and information provided to the commodity board. (5) At the director’s request, the commodity board shall provide the director a list of affected producers or handlers that is certified by the commodity board to be complete according to the commodity board’s records. The list shall [Title 15 RCW—page 128] contain all information required by the director to conduct a referendum or board member election or selection under this chapter and the marketing order or agreement. (6) For all purposes of giving notice, holding referenda, and electing or selecting members of a commodity board, the applicable list corrected up to the day preceding the date the list is certified by the commodity board and mailed to the director is deemed to be the list of all affected producers or affected handlers, as applicable, entitled to notice or to vote. Inadvertent failure to notify an affected producer or handler does not invalidate a proceeding conducted under this chapter. [2002 c 313 § 30.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.300 15.65.300 Agreement or order to contain detailed statement of powers and purposes. The purposes for which each marketing agreement and order is issued and the powers which shall be exercised thereunder shall be stated in detail in the provisions of such agreement or order. Any such agreement or order or amendment thereto may contain provisions for the exercise of any one or more or all of the powers and purposes set forth in RCW 15.65.310 through 15.65.340. However, any agreement, order or amendment wherein the affected commodity is one of those listed below shall contain provisions for the exercise of only those powers and purposes contained in said RCW 15.65.310 through 15.65.340 set after its name below, to wit: (1) Wheat, RCW 15.65.310, 15.65.320 and 15.65.330. [1961 c 256 § 30.] 15.65.305 15.65.305 Promotional hosting expenditures—Rules. Agricultural commodity boards shall adopt rules governing promotional hosting expenditures by commodity board employees, agents, or board members under RCW 15.04.200. [2002 c 313 § 31.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.310 15.65.310 Advertising, sale, trade barrier, claim, etc., provisions in agreement or order. Any marketing agreement or order may provide for advertising, sales, promotion and/or other programs for maintaining present markets and/or creating new or larger markets for the affected commodity. It may also provide for the prevention, modification or removal of trade barriers which obstruct the free flow of the affected commodity to market. Each such order or agreement and all programs thereunder shall be directed toward increasing the sale of such commodity without reference to any particular brand or trade name and shall neither make use of false or unwarranted claims in behalf of such commodity nor disparage the quality, value, sale or use of any other agricultural commodity. [1961 c 256 § 31.] 15.65.320 15.65.320 Agreement and order provisions for research. Any marketing agreement or order may provide for research in the production, processing and/or distribution of the affected commodity and for the expenditure of money for such purposes. Insofar as practicable, such research shall be carried out by experiment stations of Washington state university but if in the judgment of the director or his designee said experiment stations do not have adequate facilities (2006 Ed.) Washington State Agricultural Commodity Boards for a particular project or if some other research agency has better facilities therefor, the project may be carried out by other research agencies selected by the director or his designee. [1961 c 256 § 32.] 15.65.330 15.65.330 Agreement and order provisions for uniform grades and standards—Enforcement—Rules. Any marketing agreement or order may contain provisions which directly provide for, or which authorize the director or his designee to provide by rules and regulations for, any one or more, or all, of the following: (1) Establishing uniform grades and standards of quality, condition, maturity, size, weight, pack, packages and/or label for the affected commodity or any products thereof; (2) requiring producers, handlers and/or other persons to conform to such grades and/or standards in packing, packaging, processing, labeling, selling or otherwise commercially disposing of the affected commodity and/or in offering, advertising and/or delivering it therefor; (3) providing for inspection and enforcement to ascertain and effectuate compliance; (4) establishing rules and regulations respecting the foregoing; (5) providing that the director or his designee shall carry out inspection and enforcement of, and may (within the general provisions of the agreement or order) establish detailed provisions relating to, such standards and grades and such rules and regulations: PROVIDED, That any modification not of a substantial nature, such as the modification of standards within a certain grade may be made without a hearing, and shall not be considered an amendment for the purposes of this chapter. [1961 c 256 § 33.] 15.65.340 15.65.340 Agreement and order provisions prohibiting or regulating certain practices. Any marketing agreement or order may contain provisions prohibiting and/or otherwise regulating any one or more or all of the practices listed to the extent that such practices affect, directly or indirectly, the commodity which forms the subject matter of such agreement or order or any product thereof, but only with respect to persons who engage in such practices with the intent of or with the reasonably foreseeable effect of inducing any purchaser to become his customer or his supplier or of otherwise dealing or trading with him or of diverting trade from a competitor, to wit: (1) Paying rebates, commissions or unearned discounts; (2) Giving away or selling below the true cost (which includes all direct and indirect costs incurred to the point of sale plus a reasonable margin of mark-up for the seller) any of the affected commodities or of any other commodity or product thereof; (3) Unfairly extending privileges or benefits (pertaining to price, to credit, to the loan, lease or giving away of facilities, equipment or other property or to any other matter or thing) to any customer, supplier or other person; (4) Discriminating between customers, or suppliers of like class; (5) Using the affected or any other commodity or product thereof as a loss leader or using any other device whereby for advertising, promotional, come-on or other purposes such commodity or product is sold below its fair value; (6) Making or publishing false or misleading advertising. Such regulation may authorize uniform trade practices appli(2006 Ed.) 15.65.375 cable to all similarly situated handlers and/or other persons. Such regulation shall not prevent any person (a) from selling below cost to liquidate excess inventory which cannot otherwise be moved, or (b) from meeting the equally low legal price of any competitor within any one trading area during any one trading period and the director may define in said marketing agreement or order said trading area and said trading period in accordance with generally accepted industry practices; but in any event the burden of proving that such selling was to meet the equally low legal price of a competitor or to liquidate said excess inventory shall be upon the person who sells below cost as above defined. Any marketing agreement or order may authorize use of any money received and of any persons employed thereunder for legal proceedings, of any type and in the name of any person, directed to enforcement of this or any other law in force in the state of Washington relating to the prevention of unfair trade practices. [1961 c 256 § 34.] 15.65.350 15.65.350 Agreement and order to define applicable area—"Production area"—"Marketing area." Every marketing agreement and order shall define the area to which it applies which may be all or any contiguous portion of the state. Such area may be defined as a "production area" in which case such agreement or order shall regulate or apply with respect to all of the commodity specified in such agreement or order which is produced within such production area and sold, marketed or delivered for sale or marketing. Such area may be defined as a "marketing area" in which case such agreement or order shall regulate or apply with respect to all of the commodity specified in such agreement or order which is stored in frozen condition or sold or marketed or delivered for sale or marketing or distribution or processing or consumption within such marketing area. [1985 c 261 § 12; 1961 c 256 § 35.] 15.65.360 15.65.360 Agreement and order provisions for marketing information, services, verification of grades, standards, sampling, etc. Any marketing agreement or order may provide for marketing information and services to producers and for the verification of grades, standards, weights, tests and sampling of quality and quantity of the agricultural product purchased by handlers from producers. [1961 c 256 § 36.] 15.65.370 15.65.370 Agreement or order not to prohibit or discriminatorily burden marketing. No marketing agreement or order or amendment thereto shall prohibit or discriminatorily burden the marketing in its area of any agricultural commodity or product thereof produced in any production area of the United States. [1961 c 256 § 37.] 15.65.375 15.65.375 Agreement and order provisions—Participation in proceedings concerning regulation of pesticides or agricultural chemicals. Any marketing agreement or order may authorize the members of a commodity board, or their agents or designees, to participate in federal or state hearings or other proceedings concerning regulation of the manufacture, distribution, sale, or use of any pesticide as defined by *RCW 15.58.030(30) or any agricultural chemical [Title 15 RCW—page 129] 15.65.380 Title 15 RCW: Agriculture and Marketing which is of use or potential use in producing the affected commodity. Any marketing agreement or order may authorize the expenditure of commodity board funds for this purpose. [2002 c 313 § 32; 1988 c 54 § 1.] *Reviser’s note: RCW 15.58.030 was amended by 2003 c 212 § 1, changing subsection (30) to subsection (31). Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.380 15.65.380 Additional agreement or order provisions. Any marketing agreement or order may contain any other, further, and different provisions which are incidental to and not inconsistent with this chapter and which the director finds to be needed and reasonably adapted to effectuate the declared policies of this chapter. The provisions shall set forth the detailed application of this chapter to the affected agricultural commodity. [2002 c 313 § 33; 1961 c 256 § 38.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.390 15.65.390 Annual assessment—Limitation generally. There is hereby levied, and the director or his designee shall collect, upon each and every affected unit of any agricultural commodity specified in any marketing agreement or order an annual assessment which shall be paid by the producer thereof upon each and every such affected unit stored in frozen condition or sold or marketed or delivered for sale or marketed by him, and which shall be paid by the handler thereof upon each and every such unit purchased or received for sale, processing or distribution, or stored in frozen condition, by him: PROVIDED, That such assessment shall be paid by producers only, if only producers are regulated by such agreement or order, and by handlers only, if only handlers are so regulated, and by both producers and handlers if both are so regulated. Such assessments shall be expressed as a stated amount of money per unit or as a percentage of the receipt price at the first point of sale. The total amount of such annual assessment to be paid by all producers of such commodity, or by all handlers of such commodity shall not exceed four percent of the total market value of all affected units stored in frozen condition or sold or marketed or delivered for sale or marketing by all producers of such units during the year to which the assessment applies. [1987 c 393 § 9; 1985 c 261 § 13; 1961 c 256 § 39.] 15.65.400 15.65.400 Rate of assessment. In every marketing agreement and order the director shall prescribe the rate of such assessment. Such assessment shall be expressed as a stated amount of money per unit or as a percentage of the receipt price at the first point of sale. Such rate may be at the full amount of, or at any lesser amount than the amount hereinabove limited. Such rate may be altered or amended from time to time, but only upon compliance with the procedural requirements of this chapter. In every such marketing agreement, order and amendment the director shall base his determination of such rate upon the volume and price of sales of affected units (or units which would have been affected units had the agreement or order been in effect) during a period which the director determines to be a representative period. The rate of assessment prescribed in any such agreement, order or amendment shall for all purposes and times be deemed to be within the limits of assessment above provided [Title 15 RCW—page 130] until such time as such agreement or order is amended as to such rate. [1987 c 393 § 10; 1961 c 256 § 40.] 15.65.410 15.65.410 Time, place, method for payment and collection of assessments. The director shall prescribe in each marketing order and agreement the time, place and method for payment and collection of assessments under such order or agreement upon any uniform basis applicable alike to all producers subject to such assessment, and upon the same or any other uniform basis applicable alike to all handlers subject to such assessment. For such purpose the director may, by the terms of the marketing order or agreement: (1) Require stamps to be purchased from him or his designee and attached to the containers, invoices, shipping documents, inspection certificates, releases, or receiving receipts or tickets (said stamps to be canceled immediately upon being attached and the date of cancellation placed thereon); or (2) Require handlers to collect producer assessments from producers whose production they handle and remit the same to the director or his designee; or (3) Require the person subject to the assessment to give adequate assurance or security for its payment; or (4) Require in the case of assessments against affected units stored in frozen condition: (a) Cold storage facilities storing such commodity to file information and reports with the department or affected commission regarding the amount of commodity in storage, the date of receipt, and the name and address of each such owner; and (b) That such commodity not be shipped from a cold storage facility until the facility has been notified by the commission that the commodity owner has paid the commission for any assessments imposed by the marketing order. Unless the director has otherwise provided in any marketing order or agreement, assessments payable by producers shall be paid prior to the time when the affected unit is shipped off the farm, and assessments payable to handlers shall be paid prior to the time when the affected units are received by or for the account of the first handler. No affected units shall be transported, carried, shipped, sold, marketed or otherwise handled or disposed of until every due and payable assessment herein provided for has been paid by the producer or first handler and the receipt issued. [1985 c 261 § 14; 1961 c 256 § 41.] 15.65.420 15.65.420 Use of moneys collected—Departmental expenses. Moneys collected by the director or his designee pursuant to any marketing order or agreement from any assessment or as an advance deposit thereon, shall be used by the director or his designee only for the purpose of paying for expenses and costs arising in connection with the formulation, issuance, administration and enforcement of such order or agreement and carrying out its provisions together with a proportionate share of the overhead expenses of the department attributable to its performance of its duties under this chapter with respect to such marketing order or agreement. [1961 c 256 § 42.] (2006 Ed.) Washington State Agricultural Commodity Boards 15.65.430 15.65.430 Refunds of moneys received or collected. Any moneys collected or received by the director or his or her designee pursuant to the provisions of any marketing agreement or order during or with respect to any season or year may be refunded on a pro rata basis at the close of such season or year or at the close of such longer period as the director determines to be reasonably adapted to effectuate the declared policies of this chapter and the purposes of such marketing agreement or order, to all persons from whom such moneys were collected or received, or may be carried over into and used with respect to the next succeeding season, year or period whenever the director or a designee finds that the same will tend to effectuate such policies and purposes. [2002 c 313 § 34; 1961 c 256 § 43.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.440 15.65.440 Assessments personal debt—Additional percentage if not paid—Civil action to collect. Any due and payable assessment herein levied in such specified amount as may be determined by the director or his designee pursuant to the provisions of this chapter and such agreement or order, shall constitute a personal debt of every person so assessed or who otherwise owes the same, and the same shall be due and payable to the director or his designee when payment is called for by him. In the event any person fails to pay the director or his designee the full amount of such assessment or such other sum on or before the date due, the director or his designee may, and is hereby authorized to, add to such unpaid assessment or sum an amount not exceeding ten percent of the same to defray the cost of enforcing the collecting of the same. In the event of failure of such person or persons to pay any such due and payable assessment or other such sum, the director or his designee may bring a civil action against such person or persons in a court of competent jurisdiction for the collection thereof, together with the above specified ten percent thereon, and such action shall be tried and judgment rendered as in any other cause of action for debt due and payable. [1985 c 261 § 15; 1961 c 256 § 44.] 15.65.450 15.65.450 Deposit to defray department’s expenses— Circumstances requiring reimbursement. Prior to the issuance of any marketing agreement or order, the director may require the applicants therefor to deposit with him or her such amount of money as the director may deem necessary to defray the expenses of preparing and making effective such agreement or order. (1) A commodity board shall reimburse the department for expenses incurred by the department when a commodity board petitions the director to amend or terminate a marketing order or agreement and for other services provided by the department under this chapter. The department shall provide to a commodity board an estimate of expenses that may be incurred to amend or terminate a marketing order or agreement prior to any services taking place. (2) Petitioners who are not a majority of a commodity board, and who file a petition with the director to issue, amend, or terminate a marketing order or agreement, shall deposit funds with the director to pay for expenses incurred by the department, under rules adopted by the director. (2006 Ed.) 15.65.490 (3) A commodity board shall reimburse petitioners the amount paid to the department under the following circumstances: (a) If the petition is to issue a marketing order or agreement, the commodity board shall reimburse the petitioners the amount expended by the department when funds become available after establishment of the commodity board; or (b) If the petition is to amend or terminate a marketing order or agreement and the proposal is assented to by the affected parties or affected producers, the commodity board shall reimburse the petitioners within thirty days of the referendum. (4) If for any reason a proceeding is discontinued, the commodity board or petitioners, whichever is applicable, shall only reimburse the department for expenses incurred by the department up until the time the proceeding is discontinued. [2002 c 313 § 35; 1961 c 256 § 45.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.470 15.65.470 Depositaries for revolving fund—Deposits. The director or his or her designee shall designate financial institutions which are qualified public depositaries under chapter 39.58 RCW as depositary or depositaries of money received for the marketing act revolving fund. All moneys received by the director or his or her designee or by any administrator, board or employee, except an amount of petty cash for each day’s needs as fixed by the regulations, shall be deposited each day in a designated depositary. [1987 c 393 § 8; 1961 c 256 § 47.] 15.65.480 15.65.480 Separate accounts for each agreement or order—Disbursements. The director and each of his designees shall deposit or cause to be deposited all moneys which are collected or otherwise received by them pursuant to the provisions of this chapter in a separate account or accounts separately allocated to each marketing order or agreement under which such moneys are collected or received, and such deposits and accounts shall be in the name of and withdrawable by the check or draft of the administrator or board or designated employee thereof established by such order or agreement. All expenses and disbursements incurred and made pursuant to the provisions of any marketing agreement or order, including a pro rata share of the administrative expenses of the department of agriculture incurred in the general administration of this chapter and all orders and agreements issued pursuant thereto, shall be paid from, and only from, moneys collected and received pursuant to such order or agreement and all moneys deposited for the account of any order or agreement in the marketing act revolving fund shall be paid from said account of such fund by check, draft or voucher in such form and in such manner and upon the signature of such person as may be prescribed by the director or his designee. [1961 c 256 § 48.] 15.65.490 15.65.490 Records of financial transactions to be kept by director—Audits. The director and each of his designees shall keep or cause to be kept separately for each agreement and order in accordance with accepted standards of good accounting practice, accurate records of all assessments, collections, receipts, deposits, withdrawals, disburse[Title 15 RCW—page 131] 15.65.500 Title 15 RCW: Agriculture and Marketing ments, paid outs, moneys and other financial transactions made and done pursuant to such order or agreement, and the same shall be audited at least every five years subject to procedures and methods lawfully prescribed by the state auditor. The books and accounts maintained under every such agreement and order shall be closed as of the last day of each fiscal year of the state of Washington or of a fiscal year determined by the director. A copy of every such audit shall be delivered within thirty days after the completion thereof to the governor and the commodity board of the agreement or order concerned. [1982 c 81 § 1; 1979 c 154 § 5; 1973 c 106 § 10; 1961 c 256 § 49.] Severability—1979 c 154: See note following RCW 15.49.330. 15.65.500 15.65.500 Bonds of administrator, board, employee. The director or his designee shall require that a bond be given by every administrator, administrative board and/or employee occupying a position of trust under any marketing agreement or order, in such amount as the director or his designee shall deem necessary, the premium for which bond or bonds shall be paid from assessments collected pursuant to such order or agreement: PROVIDED, That such bond need not be given with respect to any person covered by any blanket bond covering officials or employees of the state of Washington. [1961 c 256 § 50.] 15.65.510 15.65.510 Information and inspections required— Hearings—Confidentiality and disclosures. All parties to a marketing agreement, all persons subject to a marketing order, and all producers, dealers, and handlers of a commodity governed by the provisions of a marketing agreement or order shall severally from time to time, upon the request of the director, the director’s designee, or the commodity board established under the marketing agreement or order, furnish such information and permit such inspections as the director, the director’s designee, or the commodity board finds to be necessary to effectuate the declared policies of this chapter and the purposes of such agreement or order. Information and inspections may also be required by the director, the director’s designee, or the commodity board to ascertain and determine the extent to which such agreement or order has been carried out or has effectuated such policies and purposes, or to determine whether or not there has been any abuse of the privilege of exemption from laws relating to trusts, monopolies and restraints of trade. Such information shall be furnished in accordance with forms and reports to be prescribed by the director, the director’s designee, or the commodity board. The director, the director’s designee, or a designee of the commodity board is hereby authorized to inspect crops and examine such books, papers, records, copies of tax reports, accounts, correspondence, contracts, documents, or memoranda as he or she deems relevant and which are within the control: (1) Of any such party to such marketing agreement or, any person subject to any marketing order from whom such report was requested, or (2) Of any person having, either directly or indirectly, actual or legal control of or over such party, producer or handler of such records, or [Title 15 RCW—page 132] (3) Of any subsidiary of any such party, producer, handler or person. To carry out the purposes of this section the director or the director’s designee upon giving due notice, may hold hearings, take testimony, administer oaths, subpoena witnesses and issue subpoenas for the production of books, records, documents or other writings of any kind. RCW *15.65.080, 15.65.090, 15.65.100 and 15.65.110, together with such other regulations consistent therewith as the director may from time to time prescribe, shall apply with respect to any such hearing. All information furnished to or acquired by the director or the director’s designee pursuant to this section shall be kept confidential by all officers and employees of the director or the director’s designee and only such information so furnished or acquired as the director deems relevant shall be disclosed by the director or them, and then only in a suit or administrative hearing brought at the direction or upon the request of the director or to which the director or the director’s designee or any officer of the state of Washington is a party, and involving the marketing agreement or order with reference to which the information so to be disclosed was furnished or acquired. Nothing in this section shall prohibit: (1) The issuance of general statements based upon the reports of a number of persons subject to any marketing agreement or order, which statements do not identify the information furnished by any person; or (2) The publication by the director or the director’s designee of the name of any person violating any marketing agreement or order, together with a statement of the particular provisions and the manner of the violation of the marketing agreement or order so violated by such person. [1989 c 354 § 29; 1961 c 256 § 51.] *Reviser’s note: RCW 15.65.080 was repealed by 2002 c 313 § 37. Severability—1989 c 354: See note following RCW 15.36.012. 15.65.520 15.65.520 Criminal acts and penalties. It shall be a misdemeanor: (1) For any person to violate any provision of this chapter or any provision of any marketing agreement or order duly issued by the director pursuant to this chapter. (2) For any person to wilfully render or furnish a false or fraudulent report, statement or record required by the director pursuant to the provisions of this chapter or any provision of any marketing agreement or order duly issued by the director pursuant to this chapter or to wilfully fail or refuse to furnish or render any such report, statement or record so required. (3) For any person engaged in the wholesale or retail trade to fail or refuse to furnish to the director or his designee or his duly authorized agents, upon request, information concerning the name and address of the person from whom he has received an agricultural commodity regulated by a marketing agreement or order in effect and issued pursuant to the terms of this chapter and the grade, standard, quality or quantity of and the price paid for such commodity so received. Every person convicted of any such misdemeanor shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment of not less than ten days nor more than six months or by both such fine and imprisonment. Each violation during any day shall constitute (2006 Ed.) Washington State Agricultural Commodity Boards a separate offense: PROVIDED, That if the court finds that a petition pursuant to RCW 15.65.570 was filed and prosecuted by the defendant in good faith and not for delay, no penalty shall be imposed under clause (1) of this section for such violations as occurred between the date upon which the defendant’s petition was filed with the director and the date upon which notice of the director’s decision thereon was given to the defendant in accordance with RCW 15.65.570 and regulations prescribed pursuant thereto. [1961 c 256 § 52.] 15.65.530 15.65.530 Civil liability—Use of moneys recovered. Any person who violates any provisions of this chapter or any marketing agreement or order duly issued and in effect pursuant to this chapter or who violates any rule or regulation issued by the director and/or his designee pursuant to the provisions of this chapter or of any marketing agreement or order duly issued by the director and in effect pursuant to this chapter, shall be liable civilly for a penalty in an amount not to exceed the sum of five hundred dollars for each and every violation thereof. Any moneys recovered pursuant to this paragraph shall be allocated to and used for the purposes of the agreement or order concerned. [1961 c 256 § 53.] 15.65.540 15.65.540 Jurisdiction of superior courts—Who may bring action. The several superior courts of the state of Washington are hereby vested with jurisdiction: (1) Specifically to enforce this chapter and the provisions of each and every marketing agreement and order issued pursuant to this chapter and each and every term, condition and provision thereof; (2) To prevent, restrain and enjoin pending litigation and thereafter permanently any person from violating this chapter or the provisions of any such agreement or order and each and every term, condition and provision thereof, regardless of the existence of any other remedy at law. (3) To require pending litigation and thereafter permanently by mandatory injunction each and every person subject to the provisions of any such agreement or order to carry out and perform the provisions of this chapter an each and every duty imposed upon him by such marketing agreement or order. The director or any administrator or board under any marketing agreement or order, in the name of the state of Washington, or any person affected or regulated by or subject to any marketing order or agreement issued pursuant to this chapter upon joining the director as a party may bring or cause to be brought actions or proceedings for specific performance, restraint, injunction or mandatory injunction against any person who violates or refuses to perform the obligations or duties imposed upon him by this chapter or by any marketing agreement or order issued pursuant to this chapter and said courts shall have jurisdiction of such cause and shall grant such relief upon proof of such violation or threatened violation or refusal. [1961 c 256 § 54.] 15.65.550 15.65.550 Duty of attorney general and prosecuting attorneys—Investigation and hearing by director. Upon the request of the director or his designee, it shall be the duty of the attorney general of the state of Washington and of the several prosecuting attorneys in their respective counties to (2006 Ed.) 15.65.590 institute proceedings to enforce the remedies and to collect the moneys provided for or pursuant to this chapter. Whenever the director and/or his designee has reason to believe that any person has violated or is violating the provisions of any marketing agreement or order issued pursuant to this chapter, the director and/or his designee shall have and is hereby granted the power to institute an investigation and, after due notice to such person, to conduct a hearing in order to determine the facts for the purpose of referring the matter to the attorney general or to the appropriate prosecuting attorney for appropriate action. The provisions contained in RCW *15.65.080, 15.65.090, 15.65.100 and 15.65.110 shall apply with respect to such hearings. [1961 c 256 § 55.] *Reviser’s note: RCW 15.65.080 was repealed by 2002 c 313 § 37. 15.65.560 15.65.560 Remedies additional. The remedies provided for in this chapter shall be in addition to, and not exclusive of, any other remedies or penalties provided for in this chapter or now or hereafter existing at law or in equity, and such remedies shall be concurrent and alternative and neither singly nor combined shall the same be exclusive. [1961 c 256 § 56.] 15.65.570 15.65.570 Proceedings subject to administrative procedure act—Exemptions. (1) All proceedings conducted under this chapter shall be subject to the provisions of chapter 34.05 RCW unless otherwise provided for in this chapter. (2) Rule-making proceedings conducted under this chapter are exempt from compliance with RCW 34.05.310, chapter 19.85 RCW, the regulatory fairness act, and RCW 43.135.055 when the adoption of the rules is determined by a referendum vote of the affected parties. [2002 c 313 § 36; 1961 c 256 § 57.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.580 15.65.580 Director may issue agreement or order similar to license or order issued by United States— Administrator, board. In the event the director finds that it tends to effectuate the declared purposes of this chapter within the standards prescribed in this chapter, the director may issue a marketing agreement or order, applicable to the marketing, within the state of Washington of any agricultural commodity, containing like terms, provisions, methods and procedures as any license or order regulating the marketing of such commodity in interstate or foreign commerce, issued by the secretary of agriculture of the United States pursuant to the provisions of any law or laws of the United States. In selecting an administrator or the members of any board or other agency under such marketing order, the director may utilize the same persons as those serving in a similar capacity under such federal license or order, so as to avoid duplicating or conflicting personnel: PROVIDED, That any administrator, board or agency so appointed by the director shall be responsible to the director for the performance of such of their duties as relate to the administration of any such marketing agreement or order issued by the director hereunder. [1961 c 256 § 58.] 15.65.590 15.65.590 Cooperation, joint agreements or orders with other states and United States to achieve uniformity. [Title 15 RCW—page 133] 15.65.600 Title 15 RCW: Agriculture and Marketing The director and his designee are hereby authorized to confer with and cooperate with the legally constituted authorities of other states and of the United States, for the purpose of obtaining uniformity in the administration of federal and state marketing regulations, licenses, agreements or orders, and the director is authorized to conduct joint hearings, issue joint or concurrent marketing agreements or orders, for the purposes and within the standards set forth in this chapter, and may exercise any administrative authority prescribed by this chapter to effect such uniformity of administration and regulation. [1961 c 256 § 59.] 15.65.600 15.65.600 Public interest to be protected—Establishment of prices prohibited. The director shall protect the public interest and the interest of all consumers and producers of every agricultural commodity regulated by every marketing agreement and order issued pursuant to this chapter and shall neither take nor authorize any action which shall have for its purpose the establishment or maintenance of prices. [1961 c 256 § 60.] Reviser’s note: *(1) The "Washington state apple advertising commission" was renamed the "Washington apple commission" by 2002 c 313 § 115. **(2) RCW 15.63.010 through 15.63.920 were repealed by 1998 c 11 § 1. 15.65.630 15.65.630 Application of chapter to canners, freezers, pressers, dehydrators of fruit or vegetables. Except for the provisions of this chapter relating to levying, collecting, and paying assessments, nothing in this chapter shall apply to any person engaged in the canning, freezing, pressing, or dehydrating of fresh fruit or vegetables. [1985 c 261 § 16; 1961 c 256 § 63.] 15.65.640 15.65.640 Chapter not to apply to green pea grower or processor. Nothing in this chapter shall apply to any person engaged in growing of or processing green peas. [1961 c 256 § 64.] 15.65.650 15.65.610 15.65.610 Orders, rules of Washington utilities and transportation commission and interstate commerce commission not affected. Nothing in this chapter contained shall apply to any order, rule or regulation issued or issuable by the Washington utilities and transportation commission or the interstate commerce commission with respect to the operation of common carriers. [1961 c 256 § 61.] 15.65.620 15.65.620 Chapter not to affect other laws—Agreements and orders under prior law may be made subject to chapter. Nothing in this chapter shall apply to nor alter nor change any provision of the statutes of the state of Washington relating to the *apple advertising commission (RCW 15.24.010-15.24.210 inclusive), to the soft tree fruits commission (RCW 15.28.010-15.28.310 inclusive), or to dairy products commission (RCW 15.44.010-15.44.180 inclusive), or to wheat commission (**RCW 15.63.010-15.63.920 inclusive). No marketing agreement or order containing any of the provisions specified in RCW 15.65.310 or 15.65.320 shall be issued with respect to the respective commodities affected by said statutes unless and until any commission established by any such statute shall cease to perform the provisions of its respective statute. The provisions of this chapter shall have no application to any marketing agreement or order issued pursuant to the Washington agricultural enabling act of 1955 (chapter 15.66 RCW); except that any such marketing agreement or order issued pursuant to said 1955 act may be brought under this chapter upon compliance with the provisions of this chapter relating to amendments of marketing agreements and orders, whereupon: (1) The provisions of this chapter shall apply to and the provisions of said 1955 act shall cease to apply to such marketing agreement or order; and (2) All assets and liabilities of, or pertaining to such agreement or order, and of any commission or agency established by it, shall continue to exist with respect to such agreement, order, commission or agency after being so brought under this chapter. [1961 c 256 § 62.] [Title 15 RCW—page 134] 15.65.650 Hop commodity board—Powers. In order to ensure a viable and stable hop industry within the state of Washington and to further the policies set forth in RCW 15.65.040(2) (d) and (f), the legislature specifically recognizes that the hop commodity board has the power to enter into contracts, at its discretion, with individual producers of hops to set aside or remove from production existing planted hop acreage until such time as the need to contract with individual producers of hops is eliminated based on the adoption of a federal marketing order. This section does not limit the director’s duty under RCW 15.65.600. [2002 c 313 § 138.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.65.670 15.65.670 Costs of implementing RCW 15.65.287. The costs incurred by the department associated with the implementation of RCW 15.65.287 shall be paid for by the affected commodity commissions. [2003 c 396 § 12.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.65.900 15.65.900 Savings—1961 c 256. This chapter shall not repeal, amend or modify chapter 15.66 RCW, or any other law providing for the marketing of agricultural commodities and/or providing for marketing agreements or orders for such agricultural commodities, which shall be in existence on the date this act becomes effective. [1961 c 256 § 65.] Reviser’s note: The effective date of this act was midnight June 7, 1961, see preface 1961 session laws. 15.65.910 15.65.910 Severability—1961 c 256. If any section, sentence, clause or part of this act is for any reason held to be unconstitutional, such decision shall not affect the remaining portions of this act. The legislature hereby declares that it would have passed this act and each section, sentence, clause and part thereof despite the fact that one or more sections, clauses or parts thereof be declared unconstitutional. [1961 c 256 § 66.] (2006 Ed.) Washington State Agricultural Commodity Commissions Chapter 15.66 RCW WASHINGTON STATE AGRICULTURAL COMMODITY COMMISSIONS Chapter 15.66 (Formerly: Washington agricultural enabling act of 1955—Commodity commissions) Sections 15.66.010 15.66.015 15.66.017 15.66.023 15.66.025 15.66.030 15.66.040 15.66.050 15.66.053 15.66.055 15.66.060 15.66.070 15.66.080 15.66.090 15.66.093 15.66.097 15.66.100 15.66.105 15.66.110 15.66.113 15.66.120 15.66.123 15.66.130 15.66.140 15.66.141 15.66.142 15.66.143 15.66.145 15.66.150 15.66.153 15.66.157 15.66.160 15.66.170 15.66.180 15.66.185 15.66.190 15.66.200 15.66.210 15.66.220 15.66.230 15.66.240 15.66.245 15.66.250 15.66.260 15.66.263 15.66.270 15.66.275 15.66.280 15.66.900 15.66.901 (2006 Ed.) 15.66.010 Agricultural processing and marketing associations: Chapter 24.34 RCW. Investment of agricultural commodity commission funds in savings or time deposits of banks, trust companies and mutual savings banks: RCW 15.66.185. 15.66.010 Definitions. Regulating agricultural commodities—Existing comprehensive scheme. Regulating agricultural commodities—Laws applicable. Commission may establish foundation. Regulatory authority on the production of rapeseed by variety and location. Marketing orders authorized—Purposes. Prerequisites to marketing orders—Director’s duties. Petition for marketing order—Deposit to defray department’s expenses—Circumstances requiring reimbursement. Proceedings subject to administrative procedure act—Exemptions. Director’s duties and responsibilities—Rules. Lists of affected parties—Notice—Use of lists. Petitions for marketing orders—Public hearing—Legal notice. Findings, conclusions, and recommended decision of the director—Notification—Final decision. After final decision—Assent of affected parties determined by referendum. Suspension of marketing order upon request of commodity commission. Issuing, amending, or terminating a marketing order—Limitation on public hearings or referendums. Contents of marketing order. Certain records exempt from public disclosure—Exemptions—Actions not prohibited by chapter. Commodity commission—Composition—Terms. When director appoints majority of the commission—Nominations—Advisory vote—Notice—Director selects either of two candidates receiving the most votes. Commodity commission—Nominations—Elections—Vacancies. After any vote, referendum, nomination, or election— Affected parties provided results—Disputes. Commodity commission—Meetings—Quorum—Compensation—Travel expenses for members and employees. Commodity commission—Powers and duties. Commission’s plans, programs, and projects—Director’s approval required. Commission speaks for state—Director’s oversight. Lists of all affected producers and handlers—Affected parties responsible for accuracy—Use of lists. Members may belong to association with same objectives— Contracts with associations authorized. Annual assessments—Rate—Collection. Promotional hosting expenditures—Rules. When commodity commission is terminated—Duties of affected commodity commission. Annual assessments—Disposition of revenue. Annual assessments—Payments—Civil action to enforce. Expenditure of funds collected. Investment of agricultural commodity commission funds in savings or time deposits of banks, trust companies, and mutual savings banks. Official bonds required. Petition for modification or exemption—Hearing—Appeal from ruling. Unlawful acts—Penalties—Injunctions—Investigations. Compliance with chapter a defense in any action. Liability of commission, state, etc. Marketing agreements. Marketing agreement or order—Authority for participation in proceedings concerning regulation of pesticides or agricultural chemicals. Price fixing and product limiting prohibited. Costs of conducting nominations and elections—Reimbursement. Costs of implementing RCW 15.66.141. Exemptions. Applicability of chapter to state agencies or other governmental units. Restrictive provisions of chapter 43.78 RCW not applicable to promotional printing and literature of commissions. Short title. Severability—2004 c 99. 15.66.010 Definitions. For the purposes of this chapter: (1) "Director" means the director of agriculture of the state of Washington or any qualified person or persons designated by the director of agriculture to act for him or her concerning some matter under this chapter. (2) "Department" means the department of agriculture of the state of Washington. (3) "Marketing order" means an order adopted by rule by the director that establishes a commodity commission for an agricultural commodity pursuant to this chapter. (4) "Agricultural commodity" means any of the following commodities or products: Llamas, alpacas, or any other animal or any distinctive type of agricultural, horticultural, viticultural, vegetable, and/or animal product, including, but not limited to, products qualifying as organic food products under chapter 15.86 RCW and private sector cultured aquatic products as defined in RCW 15.85.020 and other fish and fish products, within its natural or processed state, including beehives containing bees and honey and Christmas trees but not including timber or timber products. The director is authorized to determine what kinds, types or subtypes should be classed together as an agricultural commodity for the purposes of this chapter. (5) "Producer" means any person engaged in the business of producing or causing to be produced for market in commercial quantities any agricultural commodity. "To produce" means to act as a producer. For the purposes of this chapter, "producer" shall include bailees who contract to produce or grow any agricultural product on behalf of a bailor who retains title to the seed and its resulting agricultural product or the agricultural product delivered for further production or increase. (6) "Affected producer" means any producer who is subject to a marketing order. (7) "Affected commodity" means the agricultural commodity that is specified in the marketing order. (8) "Commodity commission" or "commission" means a commission formed to carry out the purposes of this chapter under a particular marketing order concerning an affected commodity. (9) "Unit" means a unit of volume, quantity or other measure in which an agricultural commodity is commonly measured. (10) "Unfair trade practice" means any practice which is unlawful or prohibited under the laws of the state of Washington including but not limited to Titles 15, 16 and 69 RCW and chapters 9.16, 19.77, 19.80, 19.84, and 19.83 RCW, or any practice, whether concerning interstate or intrastate commerce that is unlawful under the provisions of the act of Congress of the United States, September 26, 1914, chapter 311, section 5, 38 U.S. Statutes at Large 719 as amended, known as the "Federal Trade Commission Act of 1914", or the violation of or failure accurately to label as to grades and standards in accordance with any lawfully established grades or standards or labels. [Title 15 RCW—page 135] 15.66.015 Title 15 RCW: Agriculture and Marketing (11) "Person" includes any individual, firm, corporation, limited liability company, trust, association, partnership, society, or any other organization of individuals or any unit or agency of local, state, or federal government. (12) "Cooperative association" means any incorporated or unincorporated association of producers which conforms to the qualifications set out in the act of Congress of the United States, Feb. 18, 1922, chapter 57, sections 1 and 2, 42 U.S. Statutes at Large 388 as amended, known as the "Capper-Volstead Act" and which is engaged in making collective sales or in marketing any agricultural commodity or product thereof or in rendering service for or advancing the interests of the producers of such commodity on a nonprofit cooperative basis. (13) "Member of a cooperative association" or "member" means any producer of an agricultural commodity who markets his or her product through such cooperative association and who is a voting stockholder of or has a vote in the control of or is under a marketing agreement with such cooperative association with respect to such product. (14) "Affected handler" means any handler of an affected commodity. (15) "Affected parties" means any producer, affected producer, handler, or commodity commission member. (16) "Assessment" means the monetary amount established in a marketing order that is to be paid by each affected producer to a commission in accordance with the schedule established in the marketing order. (17) "Mail" or "send," for purposes of any notice relating to rule making, referenda, or elections, means regular mail or electronic distribution, as provided in RCW 34.05.260 for rule making. "Electronic distribution" or "electronically" means distribution by electronic mail or facsimile mail. (18) "Handler" means any person who acts, either as principal, agent, or otherwise, in the processing, selling, marketing, or distributing of an agricultural commodity that is not produced by the handler. "Handler" does not include a common carrier used to transport an agricultural commodity. "To handle" means to act as a handler. (19) "List of affected parties" means a list containing the names and mailing addresses of affected parties. This list must contain the names and addresses of all affected parties and, if requested by the director, the amount, by unit, of the affected commodity produced during a designated period under this chapter. (20) "List of affected producers" means a list containing the names and mailing addresses of affected producers. This list must contain the names and addresses of all affected producers and, if requested by the director, the amount, by unit, of the affected commodity produced during a designated period under this chapter. (21) "List of affected handlers" means a list containing the names and addresses of affected handlers. This list must contain the names and addresses of all affected handlers and, if requested by the director, the amount, by unit, of the affected commodity handled during a designated period under this chapter. (22) "Percent by numbers" means the percent of those persons on the list of affected parties or affected producers. (23) "Referendum" means a vote by the affected parties or affected producers which is conducted by secret ballot. [Title 15 RCW—page 136] (24) "Rule-making proceedings" means rule making under chapter 34.05 RCW. (25) "Vacancy" means that a commission member leaves or is removed from a position on the commission prior to the end of a term, or a nomination process for the beginning of a term concludes with no candidates for a position. (26) "Volume of production" means the percent of the average volume of production of the affected commodity of those on the list of affected parties or affected producers for a production period. For the purposes of this chapter, a production period is a minimum three-year period or as specified in the marketing order. [2002 c 313 § 39; 1993 c 80 § 3; 1986 c 203 § 16; 1985 c 457 § 14; 1983 c 288 § 6; 1982 c 35 § 180; 1975 1st ex.s. c 7 § 6; 1961 c 11 § 15.66.010. Prior: 1955 c 191 § 1.] Effective dates—2002 c 313: See note following RCW 15.65.020. Severability—1986 c 203: See note following RCW 15.17.230. Short title—Purposes—1983 c 288: See note following RCW 19.86.090. Intent—Severability—Effective dates—Application—1982 c 35: See notes following RCW 43.07.160. 15.66.015 15.66.015 Regulating agricultural commodities— Existing comprehensive scheme. The history, economy, culture, and the future of Washington state to a large degree all involve agriculture. In order to develop and promote Washington’s agricultural products as part of the existing comprehensive scheme to regulate agricultural commodities, the legislature declares: (1) That the marketing of agricultural products within this state is in the public interest. It is vital to the continued economic well-being of the citizens of this state and their general welfare that its agricultural commodities be properly promoted by (a) enabling producers of agricultural commodities to help themselves in establishing orderly, fair, sound, efficient, and unhampered marketing, grading, and standardizing of the commodities they produce; and (b) working towards stabilizing the agricultural industry by increasing consumption of agricultural commodities within the state, the nation, and internationally; (2) That farmers and ranchers operate within a regulatory environment that imposes burdens on them for the benefit of society and the citizens of the state and includes restrictions on marketing autonomy. Those restrictions may impair the agricultural producer’s ability to compete in local, domestic, and foreign markets; (3) That it is now in the overriding public interest that support for the agricultural industry be clearly expressed, that adequate protection be given to agricultural commodities, uses, activities, and operations, and that each agricultural commodity be promoted individually, and as part of a comprehensive industry to: (a) Enhance the reputation and image of Washington state’s agricultural commodities; (b) Increase the sale and use of Washington state’s agricultural commodities in local, domestic, and foreign markets; (c) Protect the public by educating the public in reference to the quality, care, and methods used in the production of Washington state’s agricultural commodities; (2006 Ed.) Washington State Agricultural Commodity Commissions (d) Increase the knowledge of the health-giving qualities and dietetic value of Washington state’s agricultural commodities and products; and (e) Support and engage in programs or activities that benefit the planting, production, harvesting, handling, processing, marketing, and uses of agricultural commodities produced in Washington state; (4) That the director seek to enhance, protect, and perpetuate the ability of the private sector to produce food and fiber, and seek to maintain the economic well-being of the agricultural industry in Washington state consistent with its regulatory activities and responsibilities; (5) That the director is hereby authorized to implement, administer, and enforce this chapter through the adoption of marketing orders that establish commodity commissions; and (6) That this chapter is enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state. [2002 c 313 § 38.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.017 15.66.017 Regulating agricultural commodities— Laws applicable. This chapter and the rules adopted under it are only one aspect of the comprehensively regulated agricultural industry. (1) Other laws applicable to agricultural commodities include the following chapters and the rules adopted thereunder: Chapter 15.08 RCW Horticultural pests and diseases; Chapter 15.13 RCW Horticultural plants and facilities— Inspection and licensing; Chapter 15.14 RCW Planting stock; Chapter 15.15 RCW Certified seed potatoes; Chapter 15.17 RCW Standards of grades and packs; Chapter 15.19 RCW Certification and inspection of ginseng; Chapter 15.30 RCW Controlled atmosphere storage of fruits and vegetables; Chapter 15.49 RCW Seeds; Chapter 15.53 RCW Commercial feed; Chapter 15.54 RCW Fertilizers, minerals, and limes; Chapter 15.58 RCW Washington pesticide control act; Chapter 15.60 RCW Apiaries; Chapter 15.64 RCW Farm marketing; Chapter 15.83 RCW Agricultural marketing and fair practices; Chapter 15.85 RCW Aquaculture marketing; Chapter 15.86 RCW Organic food products; Chapter 15.92 RCW Center for sustaining agriculture and natural resources; Chapter 17.24 RCW Insect pests and plant diseases; Chapter 19.94 RCW Weights and measures; Chapter 20.01 RCW Agricultural products—Commission merchants, dealers, brokers, buyers, agents; Chapter 22.09 RCW Agricultural commodities; Chapter 69.04 RCW Food, drugs, cosmetics, and poisons including provisions of 21 C.F.R. relating to the general manufacturing practices, food labeling, food standards, food additives, and pesticide tolerances; Chapter 69.07 RCW Washington food processing act; (2006 Ed.) 15.66.030 Chapter 69.25 RCW Washington wholesome eggs and egg products act; Chapter 69.28 RCW Honey; 7 U.S.C., section 136, Federal insecticide, fungicide, and rodenticide act. (2) In addition to the laws and regulations listed in subsection (1) of this section that apply to the agricultural industry as a whole, the potato industry is regulated by or must comply with the following additional laws and the rules or regulations adopted thereunder: (a) 7 C.F.R., Part 51, United States standards for grades of potatoes; (b) 7 C.F.R., Part 946, Federal marketing order for Irish potatoes grown in Washington; (c) 7 C.F.R., Part 1207, Potato research and promotion plan. (3) In addition to the laws and regulations listed in subsection (1) of this section that apply to the agricultural industry as a whole, the wheat and barley industries are regulated by or must comply with the following additional laws and the rules adopted thereunder: (a) 7 U.S.C., section 1621, Agricultural marketing act; (b) Chapter 70.94 RCW, Washington clean air act, agricultural burning. (4) In addition to the laws and regulations listed in subsection (1) of this section that apply to the agricultural industry as a whole, the poultry industry is regulated by or must comply with the following additional laws and the rules adopted thereunder: (a) 21 U.S.C., chapter 10, Poultry and poultry products inspection; (b) 21 U.S.C., chapter 9, Packers and stockyards; (c) 7 U.S.C., section 1621, Agricultural marketing act; (d) Washington fryer commission labeling standards. [2002 c 313 § 41.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.023 15.66.023 Commission may establish foundation. A commodity commission may establish a foundation using commission funds as grant money when the foundation benefits the commodity for which the commission was established. Commission funds may be used for the purposes authorized in the marketing order. [2001 c 315 § 8.] 15.66.025 15.66.025 Regulatory authority on the production of rapeseed by variety and location. For the purpose of rapeseed production in the state of Washington, the director of the department of agriculture shall have the regulatory authority on the production of rapeseed by variety and geographical location until such time as a rapeseed commodity commission is formulated. Once formed, the rapeseed commodity commission shall assume the regulatory authority on the production of rapeseed by variety and geographic location in the state of Washington. [1986 c 203 § 22.] Severability—1986 c 203: See note following RCW 15.17.230. 15.66.030 15.66.030 Marketing orders authorized—Purposes. Marketing orders may be made for any one or more of the following purposes: [Title 15 RCW—page 137] 15.66.040 Title 15 RCW: Agriculture and Marketing (1) To establish plans and conduct programs for advertising and sales promotion, to maintain present markets, or to create new or larger markets for any agricultural commodity grown in the state of Washington; (2) To provide for carrying on research studies to find more efficient methods of production, irrigation, processing, transportation, handling, and marketing of any agricultural commodity; (3) To provide for improving standards and grades by defining, establishing, and providing labeling requirements with respect to the same; (4) To investigate and take necessary action to prevent unfair trade practices; (5) To provide information or communicate on matters pertaining to the production, irrigation, processing, transportation, marketing, or uses of an agricultural commodity produced in Washington state to any elected official or officer or employee of any agency; (6) To provide marketing information and services for producers of an agricultural commodity; (7) To provide information and services for meeting resource conservation objectives of producers of an agricultural commodity; (8) To engage in cooperative efforts in the domestic or foreign marketing of food products of an agricultural commodity; (9) To provide for commodity-related education and training; and (10) To assist and cooperate with the department or any other local, state, or federal government agency in the investigation and control of exotic pests and diseases that could damage or affect trade of the affected commodity. [2003 c 396 § 1; 2002 c 313 § 40; 2001 c 315 § 1; 1961 c 11 § 15.66.030. Prior: 1955 c 191 § 3.] be affected, whichever is less, and shall be filed with the director. A petition for amendment or termination of a marketing order may be submitted to the director by majority vote of a commission. (2) A commission shall reimburse the department for expenses incurred by the department when a commodity commission petitions the director to amend or terminate a marketing order and for other services provided by the department under this chapter. The department shall provide to a commodity commission an estimate of expenses that may be incurred to amend or terminate a marketing order prior to any services taking place. (3) Petitioners who are not a majority of a commission, and who file a petition with the director to issue, amend, or terminate a marketing order, shall deposit funds with the director to pay for expenses incurred by the department, under rules adopted by the director. (4) A commission shall reimburse petitioners the amount paid to the department under the following circumstances: (a) If the petition is to issue a marketing order, the commission shall reimburse the petitioners the amount expended by the department when funds become available after establishment of the commission; or (b) If the petition is to amend or terminate a marketing order, the commission shall reimburse the petitioners within thirty days of the referendum if the proposal is assented to by the affected producers. (5) If for any reason a proceeding is discontinued, the commission or petitioners, whichever is applicable, shall reimburse the department only for expenses incurred by the department up until the time the proceeding is discontinued. [2002 c 313 § 42; 1961 c 11 § 15.66.050. Prior: 1955 c 191 § 5.] Effective date—2003 c 396: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 20, 2003]." [2003 c 396 § 45.] Effective dates—2002 c 313: See note following RCW 15.65.020. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.040 15.66.040 Prerequisites to marketing orders—Director’s duties. Marketing orders and orders modifying or terminating existing marketing orders shall be promulgated by the director only after the director has done the following: (1) Received a petition as provided for in RCW 15.66.050; (2) Given notice of hearing as provided for in RCW 15.66.060; (3) Conducted a hearing as provided for in RCW 15.66.070; (4) Made findings and decision as provided for in RCW 15.66.080; (5) Determined assent of affected producers as provided for in RCW 15.66.090. [1961 c 11 § 15.66.040. Prior: 1955 c 191 § 4.] 15.66.050 15.66.050 Petition for marketing order—Deposit to defray department’s expenses—Circumstances requiring reimbursement. (1) Petitions for issuance, amendment or termination of a marketing order shall be signed by not less than five percent or one hundred of the producers alleged to [Title 15 RCW—page 138] 15.66.053 15.66.053 Proceedings subject to administrative procedure act—Exemptions. (1) All rule-making proceedings conducted under this chapter shall be in accordance with chapter 34.05 RCW. (2) Rule-making proceedings conducted under this chapter are exempt from compliance with RCW 34.05.310, chapter 19.85 RCW, the regulatory fairness act, and RCW 43.135.055 when adoption of the rule is determined by a referendum vote of the affected parties. (3) The director may adopt amendments to marketing orders without conducting a referendum if the amendments are adopted under the following criteria: (a) The proposed amendments relate only to internal administration of a marketing order and are not subject to violation by a person; (b) The proposed amendments adopt or incorporate by reference without material change federal statutes or regulations, Washington state statutes, or rules of other Washington state agencies, if the material adopted or incorporated regulates the same activities as are authorized under the marketing order; (c) The proposed amendments only correct typographical errors, make address or name changes, or clarify language of a rule without changing the marketing order; (2006 Ed.) Washington State Agricultural Commodity Commissions (d) The content of the proposed amendments is explicitly and specifically dictated by statute. A marketing order shall not be amended without a referendum to provide that a majority of the commodity commission members be appointed by the director. [2002 c 313 § 43.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.055 15.66.055 Director’s duties and responsibilities— Rules. The director may adopt rules necessary to carry out the director’s duties and responsibilities under this chapter including: (1) The issuance, amendment, suspension, or termination of marketing orders; (2) Procedural, technical, or administrative rules which may address and include, but are not limited to: (a) The submission of a petition to issue, amend, or terminate a marketing order under this chapter; (b) Nominations conducted under this chapter; (c) Elections of commission members or referenda conducted under this chapter; and (d) Actions of the director upon a petition to issue, amend, or terminate a marketing order; (3) Rules that provide for a method to fund: (a) The costs of staff support for all commodity boards and commissions in accordance with RCW 43.23.033 if the position is not directly funded by the legislature; and (b) The actual costs related to the specific activity undertaken on behalf of an individual commodity board or commission. [2002 c 313 § 44.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.060 15.66.060 Lists of affected parties—Notice—Use of lists. (1) Upon receipt of a petition for the issuance of a marketing order, the director shall establish a list of affected parties of the agricultural commodity affected. In establishing a list of affected parties and their individual production, the director shall publish a notice to producers of the commodity to be affected requiring them to file with the director a report showing the producer’s name, mailing address, and the yearly average quantity of the affected commodity produced by him or her in the three years preceding the date of the notice or in such lesser time as the producer has produced the commodity in question. Information as to production may also be accepted from other valid sources if readily available. Notice of a proposed marketing order issuance shall be as provided for in RCW 15.66.070. (2) The director shall use the list of affected parties for the purpose of notice, referendum proceedings, and electing or selecting members of the commission in accordance with this chapter and rules adopted under this chapter. (3) An affected party may at any time file his or her name and mailing address with the director. A list of affected parties may be brought up-to-date by the director up to the day preceding a mailing of a notice or ballot under this chapter and that list is deemed the list of affected parties entitled to vote. (4) The list of affected parties shall be kept in the rulemaking file by the director. The list shall be certified as a true representation of the referendum mailing list. Inadvertent (2006 Ed.) 15.66.070 failure to notify an affected party does not invalidate a proceeding conducted under this chapter. (5) The list of affected parties that is certified as the true representation of the mailing list of a referendum shall be used to determine assent as provided in this chapter. (6) The director shall provide the commodity commission the list of affected and interested parties once a marketing order is adopted and a commodity commission is established as provided in this chapter. [2002 c 313 § 45; 1975 1st ex.s. c 7 § 7; 1969 c 66 § 1; 1961 c 11 § 15.66.060. Prior: 1955 c 191 § 6.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.070 15.66.070 Petitions for marketing orders—Public hearing—Legal notice. (1) The substance of a petition received under RCW 15.66.050 shall be set out in detail and designated as the proposal. A copy of the proposal shall be mailed to all affected parties or producers based on the list provided for in RCW 15.66.060 or 15.66.143, as applicable, and shall be posted on the department’s web site. (2) Notice of a public hearing to issue, amend, or terminate a marketing order shall be published in the form of a legal notice for a period of two days in a newspaper of general circulation within the affected areas, as the director may prescribe. The notice must also be posted on the department’s web site. The director shall mail a copy of the public hearing notice along with a copy of the proposal as provided in subsection (1) of this section to all affected parties or affected producers, as applicable, who may be directly affected by the proposal and whose names and addresses appear on the list compiled under this chapter. The mailing must include the department’s web site address along with a description of the process for the issuance, amendment, or termination of a marketing order, as applicable. (3) At a public hearing the director shall receive testimony offered in support of, or opposition to, the proposed issuance of, amendment to, or termination of a marketing order and concerning the terms, conditions, scope, and area thereof. Such hearing shall be public and all testimony shall be received under oath. A full and complete record of all proceedings at such hearings shall be made and maintained on file in the office of the director, which file shall be open to public inspection. The director shall base any findings upon the testimony received at the hearing, together with any other relevant facts available from official publications of institutions of recognized standing. The director shall describe in the findings such official publications upon which any finding is based. (4) The director shall have the power to subpoena witnesses and to issue subpoenas for the production of any books, records, or documents of any kind. (5) The superior court of the county in which any hearing or proceeding may be had may compel the attendance of witnesses and the production of records, papers, books, accounts, documents and testimony as required by such subpoena. The director, in case of the refusal of any witness to attest or testify or produce any papers required by the subpoena, shall report to the superior court of the county in which the proceeding is pending by petition setting forth that due notice has been given of the time and place of attendance [Title 15 RCW—page 139] 15.66.080 Title 15 RCW: Agriculture and Marketing of the witness or the production of the papers and that the witness has been summoned in the manner prescribed in this chapter and that he or she has failed to attend or produce the papers required by the subpoena at the hearing, cause or proceeding specified in the subpoena, or has refused to answer questions propounded to him or her in the course of such hearing, cause, or proceeding, and shall ask an order of the court to compel a witness to appear and testify before the director. The court upon such petition shall enter an order directing the witness to appear before the court at a time and place to be fixed in such order and then and there to show cause why he or she has not responded to the subpoena. A copy of the order shall be served upon the witness. If it appears to the court that the subpoena was regularly issued, it shall enter an order that the witness appear at the time and place fixed in the order and testify or produce the required papers, and on failing to obey the order the witness shall be dealt with as for contempt of court. [2004 c 179 § 1; 2002 c 313 § 46; 1961 c 11 § 15.66.070. Prior: 1955 c 191 § 7.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.080 15.66.080 Findings, conclusions, and recommended decision of the director—Notification—Final decision. (1) The director shall make findings upon material points controverted at the hearing and required by this chapter and upon such other matters and things as he or she may deem fitting and proper. Based upon those findings, the director shall make conclusions and develop and issue a recommended decision. The findings, conclusions, and recommended decision, and the full text of the proposal shall be posted on the department’s web site. For amendment and termination petitions, the affected commission may include a link on its web site to the department’s web site. (2) The recommended decision may deny or approve the proposal in its entirety, or it may recommend a marketing order containing other or different terms or conditions from those contained in the proposal: PROVIDED, That the same shall be of a kind or type substantially within the purview of the notice of hearing and shall be supported by evidence taken at the hearing or by documents of which the director is authorized to take official notice. The director shall not approve the issuance, amendment, or termination of any marketing order unless he or she shall find with respect thereto: (a) That the proposed issuance, amendment or termination thereof is reasonably calculated to attain the objective sought in such marketing order; (b) That the proposed issuance, amendment, or termination is in conformity with the provisions of this chapter and within the applicable limitations and restrictions set forth therein will tend to effectuate the declared purposes and policies of this chapter; (c) That the interests of consumers of such commodity are protected in that the powers of this chapter are being exercised only to the extent necessary to attain such objectives. (3) If the director’s recommended decision does not make any changes to the proposal, notification will be made by mail in the form of a postcard reciting the director’s recommended decision. The postcard will also include the department’s web site address where any person can access [Title 15 RCW—page 140] the full text of the director’s findings, conclusions, and recommended decision. (4) If the director’s recommended decision makes changes to the proposal or does not support the proposal, notification will be made by mail in the form of a letter describing the changes made or explaining the reason for not supporting the proposal and a referendum. The letter will also include the department’s web site address where any person can access the full text of the director’s findings, conclusions, and recommended decision. (5) After the director issues his or her findings, conclusions, and recommended decision all interested parties shall have a period of not less than fifteen days from the date of the mailing of the postcard or letter to file statements with the director in support of or in opposition to the recommended decision. The director shall consider the additional statements and shall issue his or her final decision. The final decision may be the same as the recommended decision or may be revised in light of the additional information received in response to the recommended decision. The director shall notify affected parties of his or her final decision by mail in the form of a postcard. Notification shall include the department’s web site address where any person can access the full text of the director’s findings, conclusions, and final decision and the full text of the final proposal. If the final decision denies the proposal in its entirety, no further action shall be taken by the director. (6) Affected parties who do not have access to materials posted on the department’s web site may request notification by fax or mail. [2004 c 179 § 2; 1961 c 11 § 15.66.080. Prior: 1955 c 191 § 8.] 15.66.090 After final decision—Assent of affected parties determined by referendum. After the director issues his or her final decision approving the issuance, amendment, or termination of a marketing order, the director shall determine by a referendum whether the affected parties or producers assent to the proposed action or not. The director shall conduct the referendum among the affected parties or producers based on the list as provided for in RCW 15.66.060 or 15.66.143, as applicable, and the affected parties or producers shall be deemed to have assented to the proposed issuance or termination order if fifty-one percent or more by number reply to the referendum within the time specified by the director, and if, of those replying, sixty-five percent or more by number and fifty-one percent or more by volume assent to the proposed order. The producers shall be deemed to have assented to the proposed amendment order if sixty percent or more by number and sixty percent or more by volume of those replying assent to the proposed order. The determination by volume shall be made on the basis of volume as determined in the list of affected producers created under provisions of RCW 15.66.060, subject to rules and regulations of the director for such determination. The director shall consider the approval or disapproval of any cooperative marketing association authorized by its producer members to act for them in any such referendum, as being the approval or disapproval of the producers who are members of or stockholders in or under contract with such association of cooperative producers: PROVIDED, That the association shall first determine that a majority of the membership of the associa15.66.090 (2006 Ed.) Washington State Agricultural Commodity Commissions tion authorize its action concerning the specific marketing order. Results of the referendum shall be mailed to all affected parties in the form of a postcard. If the requisite assent is given, the director shall adopt the order. [2004 c 179 § 3; 2002 c 313 § 47; 1975 1st ex.s. c 7 § 8; 1961 c 11 § 15.66.090. Prior: 1955 c 191 § 9.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.093 15.66.113 (2) Financial and commercial information and records submitted to either the department or a commodity commission for the purpose of administering this chapter or a marketing order may be shared between the department and the applicable commodity commission. They may also be used, if required, in any suit or administrative hearing involving any provision of this chapter or a marketing order. (3) This chapter does not prohibit: (a) The issuance of general statements based upon the reports of a number of persons subject to any marketing order as long as the statements do not identify the information furnished by any person; or (b) The publication by the director or a commodity commission of the name of any person violating any marketing order and a statement of the manner of the violation by that person. [2005 c 274 § 217; 2002 c 313 § 50.] 15.66.093 Suspension of marketing order upon request of commodity commission. The director may, upon the request of a commodity commission and without compliance with RCW 15.66.070 through 15.66.090, suspend the commission’s order or term or provision thereof for a period of not to exceed one year, if the director finds that the suspension will tend to effectuate the declared policy of this chapter. Any suspension of all, or substantially all, of a marketing order by the director is not effective until the end of the then current marketing season. [2002 c 313 § 48.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Effective dates—2002 c 313: See note following RCW 15.65.020. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.097 15.66.097 Issuing, amending, or terminating a marketing order—Limitation on public hearings or referendums. The director is not required to hold a public hearing or a referendum more than once in any twelve-month period on petitions to issue, amend, or terminate a marketing order if any of the following circumstances are present: (1) The petition proposes to establish a marketing order for the same commodity; (2) The petition proposes the same or a similar amendment to a marketing order; or (3) The petition proposes to terminate the same marketing order. [2002 c 313 § 49.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.100 15.66.100 Contents of marketing order. A marketing order shall define the area of the state to be covered by the order which may be all or any portion of the state; shall contain provisions for establishment of a commodity commission and administration and operation and powers and duties of same; shall provide for assessments as provided for in this chapter and shall contain one or more of the provisions as set forth in RCW 15.66.030. The order may provide that its provisions covering standards, grades, labels and trade practices apply with respect to the affected commodity marketed or sold within such area regardless of where produced. A marketing order may provide that one commodity commission may administer marketing orders for two or more affected commodities, if approved by a majority, as provided in this chapter for the creation of a marketing order, of the affected producers of each affected commodity concerned. [1961 c 11 § 15.66.100. Prior: 1955 c 191 § 10.] 15.66.105 15.66.105 Certain records exempt from public disclosure—Exemptions—Actions not prohibited by chapter. (1) Pursuant to RCW 42.56.380, certain agricultural business records, commodity commission records, and department of agriculture records relating to commodity commissions and producers of agricultural commodities are exempt from public disclosure. (2006 Ed.) 15.66.110 15.66.110 Commodity commission—Composition— Terms. (1) Every marketing order shall establish a commodity commission composed of not less than five nor more than fifteen members. Commission members shall be citizens and residents of this state if required by the marketing order, and over the age of eighteen. Not more than one commission member may be part of the same "person" as defined by this chapter. The term of office of commission members shall be three years with the terms rotating so than one-third of the terms will commence as nearly as practicable each year. However, the first commission shall be selected, one-third for a term of one year, one-third for a term of two years, and onethird for a term of three years, as nearly as practicable. Except as provided in subsection (2) of this section, no less than sixty percent of the commission members shall be elected by the affected producers and such elected members shall all be affected producers. Except as provided in subsection (4) of this section, the remaining members shall be appointed by the commission and shall be either affected producers, others active in matters relating to the affected commodity, or persons not so related. (2) A marketing order may provide that a majority of the commission be appointed by the director. (3) In the event that the marketing order provides that a majority of the commission be appointed by the director, the marketing order shall incorporate the provisions of RCW 15.66.113 for member selection. (4) The director shall appoint to every commission one member who represents the director. The director is a voting member of each commodity commission. [2003 c 396 § 4; 2002 c 313 § 51; 2001 c 315 § 2; 1961 c 11 § 15.66.110. Prior: 1955 c 191 § 11.] Effective date—2003 c 396: See note following RCW 15.66.030. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.113 15.66.113 When director appoints majority of the commission—Nominations—Advisory vote—Notice— Director selects either of two candidates receiving the most votes. (1) This section or *RCW 15.66.115 applies [Title 15 RCW—page 141] 15.66.120 Title 15 RCW: Agriculture and Marketing *Reviser’s note: RCW 15.66.115 was repealed by 2003 c 396 § 7. prior to expiration of the term, or appointed by the director under this chapter and the marketing order. (5) When only one nominee is nominated for any position on the commission, the director shall determine whether the nominee meets the qualifications of the position and, if so, the director shall declare the nominee elected or appoint the nominee to the position. (6) In the event of a vacancy in an elected commission member position on a commodity commission, the remaining members shall select a qualified person to fill the vacant position for the remainder of the current term or as provided in the marketing order. (7) In the event of a vacancy in an appointed member position on a commodity commission, the appointment of members shall be as specified in the marketing order. (8) In the event of a vacancy in a director-appointed member position on a commodity commission, the remaining members shall recommend to the director a qualified person for appointment to the vacant position. The director shall appoint the person recommended by the commission unless the person fails to meet the qualifications of commission members under this chapter and the marketing order. [2002 c 313 § 54; 1975 1st ex.s. c 7 § 9; 1961 c 11 § 15.66.120. Prior: 1955 c 191 § 12.] Effective dates—2002 c 313: See note following RCW 15.65.020. Effective dates—2002 c 313: See note following RCW 15.65.020. when the director appoints a majority of the positions of the commission as set forth under RCW 15.66.110(3). (2) Candidates for director-appointed positions on a commission shall be nominated under RCW 15.66.120(1). (3) Not less than sixty days nor more than seventy-five days prior to the commencement of a commission member’s term, the director shall cause an advisory vote to be held for the director-appointed positions. Advisory ballots shall be mailed to all affected producers and shall be returned to the director not less than thirty days prior to the commencement of the term. The advisory ballot shall be conducted in a manner so that it is a secret ballot. The names of the two candidates receiving the most votes in the advisory vote shall be forwarded to the director for potential appointment to the commission. In the event there are only two candidates nominated for a position, an advisory vote may not be held and the candidates’ names shall be forwarded to the director for potential appointment. (4) The candidates whose names are forwarded to the director for potential appointment shall submit to the director a letter stating why he or she wishes to be appointed to the commission. The director may select either person for the position. [2002 c 313 § 52.] 15.66.120 15.66.120 Commodity commission—Nominations— Elections—Vacancies. (1) Not less than ninety days nor more than one hundred and five days prior to the beginning of each term of each elected commission member, notice shall be mailed to all affected producers with a call for nominations in accordance with this section and provisions of the marketing order. The notice shall give the final date for filing nominations, which shall not be less than eighty days nor more than eighty-five days before the beginning of such term. The notice shall also advise that nominating petitions shall be signed by five persons qualified to vote for such candidates or, if the number of nominating signers is provided for in the marketing order, then the number provided in the marketing order. (2) Not less than sixty days nor more than seventy-five days prior to the commencement of a commission member term, the director shall mail ballots to all affected producers. Ballots shall be required to be returned to the director not less than thirty days prior to the commencement of the term. The mail ballot shall be conducted in a manner so that it shall be a secret ballot. With respect to the first commission for a particular commodity, the director may call for nominations for commission members in the notice of the director’s decision following the hearing and the ballot may be submitted at the time the director’s proposed order is submitted to the affected producers for their assent. (3) Commission members may be elected or appointed from various districts within the area covered by the marketing order if the order so provides, with the number of members from each district to be in accordance with the provisions of the marketing order. (4) The members of the commission not elected by the affected producers shall be elected by a majority of the commission at a meeting of the commission within ninety days [Title 15 RCW—page 142] 15.66.123 15.66.123 After any vote, referendum, nomination, or election—Affected parties provided results—Disputes. (1) Upon completion of any vote, referendum, or nomination and elections, the department shall tally the results of the vote and provide the results to affected parties. (2) If an affected party disputes the results of a vote, that affected party, within sixty days from the announced results, shall provide in writing a statement of why the vote is disputed and request a recount. (3) Once the vote is tallied and distributed, all disputes are resolved, and all matters in a vote are finalized, the individual ballots may be destroyed. [2002 c 313 § 55.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.130 15.66.130 Commodity commission—Meetings— Quorum—Compensation—Travel expenses for members and employees. Each commodity commission shall hold such regular meetings as the marketing order may prescribe or that the commission by resolution may prescribe, together with such special meetings that may be called in accordance with provisions of its resolutions upon reasonable notice to all members thereof. A majority of the voting members shall constitute a quorum for the transaction of all business of the commission. Each member of the commission shall be compensated in accordance with RCW 43.03.230. Members and employees of the commission may be reimbursed for actual travel expenses incurred in carrying out the provisions of this chapter, as defined under the commodity commission’s marketing order. Otherwise, if not defined or referenced in the marketing order, reimbursement for travel expenses shall be in accordance with RCW 43.03.050 and 43.03.060. [2002 c 313 § 56; 2001 2nd sp.s. c 6 § 2; 1984 c 287 § 17; 1975-’76 2nd (2006 Ed.) Washington State Agricultural Commodity Commissions ex.s. c 34 § 20; 1975 1st ex.s. c 7 § 10; 1972 ex.s. c 112 § 3; 1961 c 11 § 15.66.130. Prior: 1955 c 191 § 13.] Effective dates—2002 c 313: See note following RCW 15.65.020. Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. 15.66.140 15.66.140 Commodity commission—Powers and duties. Every commodity commission shall have such powers and duties in accordance with provisions of this chapter as may be provided in the marketing order and shall have the following powers and duties: (1) To elect a chair and such other officers as determined advisable; (2) To adopt, rescind and amend rules and regulations reasonably necessary for the administration and operation of the commission and the enforcement of its duties under the marketing order; (3) To administer, enforce, direct and control the provisions of the marketing order and of this chapter relating thereto; (4) To employ and discharge at its discretion such administrators and additional personnel, attorneys, advertising and research agencies and other persons and firms that it may deem appropriate and pay compensation to the same; (5) To acquire personal property and purchase or lease office space and other necessary real property and transfer and convey the same; (6) To institute and maintain in its own name any and all legal actions, including actions by injunction, mandatory injunction or civil recovery, or proceedings before administrative tribunals or other governmental authorities necessary to carry out the provisions of this chapter and of the marketing order; (7) To keep accurate records of all its receipts and disbursements, which records shall be open to inspection and audit by the state auditor or private auditor designated by the state auditor at least every five years; (8) Borrow money and incur indebtedness; (9) Make necessary disbursements for routine operating expenses; (10) To expend funds for commodity-related education, training, and leadership programs as each commission deems expedient; (11) To work cooperatively with other local, state, and federal agencies; universities; and national organizations for the purposes provided in the commission’s marketing order; (12) To enter into contracts or interagency agreements with any private or public agency, whether federal, state, or local, to carry out the purposes provided in the commission’s marketing order. Personal service contracts must comply with chapter 39.29 RCW; (13) To accept and expend or retain any gifts, bequests, contributions, or grants from private persons or private and public agencies to carry out the purposes provided in the commission’s marketing order; (14) To enter into contracts or agreements for research in the production, irrigation, processing, transportation, marketing, use, or distribution of an affected commodity; (2006 Ed.) 15.66.141 (15) To retain in emergent situations the services of private legal counsel to conduct legal actions on behalf of a commission. The retention of a private attorney is subject to review by the office of the attorney general; (16) To engage in appropriate fund-raising activities for the purpose of supporting activities of the commission authorized by the marketing order; (17) To participate in international, federal, state, and local hearings, meetings, and other proceedings relating to the production, irrigation, manufacture, regulation, transportation, distribution, sale, or use of affected commodities including activities authorized under RCW 42.17.190, including the reporting of those activities to the public disclosure commission; (18) To maintain a list of the names and addresses of affected producers that may be compiled from information used to collect assessments under the provisions of the marketing order and data on the value of each producer’s production for a minimum three-year period; (19) To maintain a list of the names and addresses of persons who handle the affected commodity within the affected area and data on the amount and value of the commodity handled for a minimum three-year period by each person; (20) To request records and audit the records of producers or handlers of the affected commodity during normal business hours to determine whether the appropriate assessment has been paid; (21) To acquire or own intellectual property rights, licenses, or patents and to collect royalties resulting from commission-funded research related to the affected commodity; and (22) Such other powers and duties that are necessary to carry out the purposes of this chapter. [2003 c 396 § 2; 2002 c 313 § 57; 2001 c 315 § 3; 1985 c 261 § 20; 1982 c 81 § 2; 1961 c 11 § 15.66.140. Prior: 1955 c 191 § 14.] Effective date—2003 c 396: See note following RCW 15.66.030. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.141 15.66.141 Commission’s plans, programs, and projects—Director’s approval required. (1) Each commodity commission shall develop and submit to the director for approval any plans, programs, and projects concerning the following: (a) The establishment, issuance, effectuation, and administration of appropriate programs or projects for the advertising and promotion of the affected commodity; and (b) The establishment and effectuation of market research projects, market development projects, or both to the end that the marketing and utilization of the affected commodity may be encouraged, expanded, improved, or made more efficient. (2) The director shall review each commodity commission’s advertising or promotion program to ensure that no false claims are being made concerning the affected commodity. (3) Each commodity commission, prior to the beginning of its fiscal year, shall prepare and submit to the director for approval its research plan, its commodity-related education and training plan, and its budget on a fiscal period basis. [Title 15 RCW—page 143] 15.66.142 Title 15 RCW: Agriculture and Marketing (4) The director shall strive to review and make a determination of all submissions described in this section in a timely manner. [2003 c 396 § 5.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.66.142 15.66.142 Commission speaks for state—Director’s oversight. Each commission organized under a marketing order adopted under this chapter exists primarily for the benefit of the people of the state of Washington and its economy. The legislature hereby charges each commission, with oversight by the director, to speak on behalf of Washington state government with regard to its particular commodity. [2003 c 396 § 6.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.66.143 15.66.143 Lists of all affected producers and handlers—Affected parties responsible for accuracy—Use of lists. (1) Each commodity commission shall prepare a list of all affected producers from any information available from the department, producers, producer associations, organizations, or handlers of the affected commodity. This list shall contain the names and addresses of all affected persons who produce the affected commodity and the amount, by unit, of the affected commodity produced during at least the past three years. (2) Each commodity commission shall prepare a list of all persons who handle the affected commodity and the amount of the commodity handled by each person during at least the past three years. (3) It is the responsibility of all affected parties to ensure that their correct address is filed with the commodity commission. It is also the responsibility of affected parties to submit production data and handling data to the commission as prescribed by the commission’s marketing order. (4) Any qualified person may, at any time, have his or her name placed upon any list for which he or she qualifies by delivering or mailing the information to the commission. The lists shall be corrected and brought up-to-date in accordance with evidence and information provided to the commission. (5) At the director’s request, the commodity commission shall provide the director a certified list of affected producers or affected handlers from the commodity commission records. The list shall contain all information required by the director to conduct a referendum or commission member elections under this chapter. (6) For all purposes of giving notice and holding referenda on amendment or termination proposals, and for giving notice and electing or selecting members of a commission, the applicable list corrected up to the day preceding the date the list is certified by the commission and mailed to the director is deemed to be the list of all affected producers or affected handlers, as applicable, entitled to notice or to vote. Inadvertent failure to notify an affected producer or handler does not invalidate a proceeding conducted under this chapter. [2002 c 313 § 58.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.145 15.66.145 Members may belong to association with same objectives—Contracts with associations authorized. Any member of an agricultural commission may also be a [Title 15 RCW—page 144] member or officer of an association which has the same objectives for which the agricultural commission was formed. An agricultural commission may also contract with such association for services necessary to carry out any purposes authorized under this chapter, provided that an appropriate contract has been entered into. [1972 ex.s. c 112 § 4.] 15.66.150 15.66.150 Annual assessments—Rate—Collection. There is hereby levied, and there shall be collected by each commission, upon each and every unit of any agricultural commodity specified in any marketing order an annual assessment which shall be paid by the producer thereof upon each and every such unit sold, processed, stored or delivered for sale, processing or storage by him. Such assessments shall be expressed as a stated amount of money per unit or as a percentage of the net unit price at the time of sale. The total amount of such annual assessment to be paid by all affected producers of such commodity shall not exceed three percent of the total market value of all affected units sold, processed, stored or delivered for sale, processing or storage by all affected producers of such units during the year to which the assessment applies. Every marketing order shall prescribe the per unit or percentage rate of such assessment. Such rate may be at the full amount of, or at any lesser amount than the amount hereinabove limited and may be altered from time to time by amendment of such order. In every such marketing order and amendment the determination of such rate shall be based upon the volume and price of sales of affected units during a period which the director determines to be a representative period. The per unit or percentage rate of assessment prescribed in any such order or amendment shall for all purposes and times be deemed to be within the limits of assessment above provided until such time as such order is amended as to such rate. However, at the end of any year, any affected producer may obtain a refund from the commission of any assessment payments made which exceed three percent of the total market value of all of the affected commodity sold, processed, stored or delivered for sale, processing or storage by such producer during the year. Such refund shall be made only upon satisfactory proof given by such producer in accordance with reasonable rules and regulations prescribed by the director. Such market value shall be based upon the average sales price received by such producer during the year from all his bona fide sales or, if such producer did not sell twentyfive percent or more of all of the affected commodity produced by him during the year, such market value shall be determined by the director upon other sales of the affected commodity determined by the director to be representative and comparable. To collect such assessment each order may require: (1) Stamps to be purchased from the affected commodity commission or other authority stated in such order and attached to the containers, invoices, shipping documents, inspection certificates, releases, or receiving receipts or tickets (said stamps to be canceled immediately upon being attached and the date of cancellation placed thereon). (2) Payment of producer assessments before the affected units are shipped off the farm or payment of assessments at different or later times, and in such event the order may (2006 Ed.) Washington State Agricultural Commodity Commissions require any person subject to the assessment to give adequate assurance or security for its payment. (3) Every affected producer subject to assessment under such order to deposit with the commission in advance an amount based on the estimated number of affected units upon which such person will be subject to such assessment in any one year during which such marketing order is in force, or upon any other basis which the director determines to be reasonable and equitable and specifies in such order, but in no event shall such deposit exceed twenty-five percent of the estimated total annual assessment payable by such person. At the close of such marketing year the sums so deposited shall be adjusted to the total of such assessments payable by such person. (4) Handlers receiving the affected commodity from the producer, including warehousemen and processors, to collect producer assessments from producers whose production they handle and remit the same to the affected commission. The lending agency for a commodity credit corporation loan to producers shall be deemed a handler for the purpose of this subsection. No affected units shall be transported, carried, shipped, sold, stored or otherwise handled or disposed of until every due and payable assessment herein provided for has been paid and the receipt issued, but no liability hereunder shall attach to common carriers in the regular course of their business. [1981 c 297 § 40; 1979 ex.s. c 93 § 1; 1961 c 11 § 15.66.150. Prior: 1957 c 133 § 1; 1955 c 191 § 15.] Severability—1981 c 297: See note following RCW 15.36.201. 15.66.153 15.66.153 Promotional hosting expenditures—Rules. Agricultural commodity commissions shall adopt rules governing promotional hosting expenditures by commodity commission employees, agents, or commission members under RCW 15.04.200. [2002 c 313 § 59.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.157 15.66.157 When commodity commission is terminated—Duties of affected commodity commission. If after complying with the procedures outlined in this chapter and a referendum proposal to terminate a commodity commission is assented to, the affected commodity commission shall: (1) Document the details of all measures undertaken to terminate the commodity commission and identify and document all closing costs; (2) Contact the office of the state auditor and arrange for a final audit of the commission. Payment for the audit shall be from commission funds and identified in the budget for closing costs; (3) Provide for the reimbursement to affected producers of moneys collected by assessment. Reimbursement shall be made to those considered affected producers over the previous three-year time frame on a pro rata basis and at a percent commensurate with their volume of production over the previous three-year period unless a different time period is specified in the marketing order. If the commodity commission finds that the amounts of moneys are so small as to make impractical the computation and remitting of the pro rata refund, the moneys shall be paid into the state treasury as unclaimed trust moneys; and (2006 Ed.) 15.66.180 (4) Transfer all remaining files to the department for storage and archiving, as appropriate. [2002 c 313 § 60.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.160 15.66.160 Annual assessments—Disposition of revenue. Moneys collected by any commodity commission pursuant to any marketing order from any assessment for marketing purposes or as an advance deposit thereon shall be used by the commission only for the purpose of paying for the costs or expenses arising in connection with carrying out the purposes and provisions of such agreement or order. Upon the termination of any marketing order any and all moneys remaining with the commodity commission operating under that marketing order and not required to defray expenses or repay obligations incurred by that commission shall be returned to the affected producers in proportion to the assessments paid by each in the two year period preceding the date of the termination order. [1961 c 11 § 15.66.160. Prior: 1955 c 191 § 16.] 15.66.170 15.66.170 Annual assessments—Payments—Civil action to enforce. Any due and payable assessment herein levied, and every sum due under any marketing order in a specified amount shall constitute a personal debt of every person so assessed or who otherwise owes the same, and the same shall be due and payable to the commission when payment is called for by the commission. In the event any person fails to pay the full amount of such assessment or such other sum on or before the date due, the commission may add to such unpaid assessment or sum an amount not exceeding ten percent of the same to defray the cost of enforcing the collecting of the same. In the event of failure of such person or persons to pay any such due and payable assessment or other such sum, the commission may bring a civil action against such person or persons in a state court of competent jurisdiction for the collection thereof, together with the above specified ten percent thereon, and such action shall be tried and judgment rendered as in any other cause of action for debt due and payable. [1961 c 11 § 15.66.170. Prior: 1955 c 191 § 17.] 15.66.180 15.66.180 Expenditure of funds collected. All moneys which are collected or otherwise received pursuant to each marketing order created under this chapter shall be used solely by and for the commodity commission concerned and shall not be used for any other commission, nor the department except as otherwise provided in this chapter. Such moneys shall be deposited in a separate account or accounts in the name of the individual commission in any bank which is a state depositary. All expenses and disbursements incurred and made pursuant to the provisions of any marketing order shall be paid from moneys collected and received pursuant to such order without the necessity of a specific legislative appropriation and all moneys deposited for the account of any order shall be paid from said account by check or voucher in such form and in such manner and upon the signature of such person as may be prescribed by the commission. None of the provisions of RCW 43.01.050 shall be applicable to any such account or any moneys so received, collected or [Title 15 RCW—page 145] 15.66.185 Title 15 RCW: Agriculture and Marketing expended. [2002 c 313 § 61; 1961 c 11 § 15.66.180. Prior: 1955 c 191 § 18.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.185 15.66.185 Investment of agricultural commodity commission funds in savings or time deposits of banks, trust companies, and mutual savings banks. (1) Any funds of any agricultural commodity commission may be invested in savings or time deposits in banks, trust companies, and mutual savings banks that are doing business in the United States, up to the amount of insurance afforded such accounts by the Federal Deposit Insurance Corporation. (2) This section shall apply to all funds which may be lawfully so invested, which in the judgment of any agricultural commodity commission are not required for immediate expenditure. The authority granted by this section is not exclusive and shall be construed to be cumulative and in addition to other authority provided by law for the investment of such funds, including, but not limited to, authority granted under chapters 39.58, 39.59, and 43.84 RCW. [2003 c 396 § 3; 2002 c 313 § 62; 1967 ex.s. c 54 § 2. Formerly RCW 30.04.370.] Effective date—2003 c 396: See note following RCW 15.66.030. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.190 15.66.190 Official bonds required. Every administrator, employee or other person occupying a position of trust under any marketing order and every member actually handling or drawing upon funds shall give a bond in such penal amount as may be required by the affected commission or by the order, the premium for which bond or bonds shall be paid by the commission. [1961 c 11 § 15.66.190. Prior: 1955 c 191 § 19.] 15.66.200 15.66.200 Petition for modification or exemption— Hearing—Appeal from ruling. An affected producer subject to a marketing order may file a written petition with the director stating that the order, agreement or program or any part thereof is not in accordance with the law, and requesting a modification thereof or exemption therefrom. He shall thereupon be given a hearing, which hearing shall be conducted in the manner provided by RCW 15.66.070, and thereafter the director shall make his ruling which shall be final. Appeal from any ruling of the director may be taken to the superior court of the county in which the petitioner resides or has his principal place of business, by serving upon the director a copy of the notice of appeal and complaint within twenty days from the date of entry of the ruling. Upon such application the court may proceed in accordance with RCW 7.16.010 through 7.16.140. If the court determines that the ruling is not in accordance with law, it shall remand the proceedings to the director with directions to make such ruling as the court determines to be in accordance with law or to take such further proceedings as in its opinion are required by this chapter. [1961 c 11 § 15.66.200. Prior: 1955 c 191 § 20.] 15.66.210 15.66.210 Unlawful acts—Penalties—Injunctions— Investigations. It shall be a misdemeanor for: [Title 15 RCW—page 146] (1) Any person wilfully to violate any provision of this chapter or any provision of any marketing order duly issued by the director pursuant to this chapter. (2) Any person wilfully to render or furnish a false or fraudulent report, statement of record required by the director or any commission pursuant to the provisions of this chapter or any provision of any marketing order duly issued by the director pursuant to this chapter or wilfully to fail or refuse to furnish or render any such report, statement or record so required. In the event of violation or threatened violation of any provision of this chapter or of any marketing order duly issued or entered into pursuant to this chapter, the director, the affected commission, or any affected producer on joining the affected commission, shall be entitled to an injunction to prevent further violation and to a decree of specific performance of such order, and to a temporary restraining order and injunction pending litigation upon filing a verified complaint and sufficient bond. All persons subject to any order shall severally from time to time, upon the request of the director, furnish him with such information as he finds to be necessary to enable him to effectuate the policies of this chapter and the purposes of such order or to ascertain and determine the extent to which such order has been carried out or has effectuated such policies and purposes, or to determine whether or not there has been any abuse of the privilege of exemptions from laws relating to trusts, monopolies and restraints of trade. Such information shall be furnished in accordance with forms and reports to be prescribed by the director. For the purpose of ascertaining the correctness of any report made to the director pursuant to this section or for the purpose of obtaining the information required in any such report where it has been requested and has not been furnished, the director is authorized to examine such books, papers, records, copies of tax reports, accounts, correspondence, contracts, documents or memoranda as he deems relevant and which are within the control of any such person from whom such report was requested, or of any person having, either directly or indirectly, actual or legal control of or over such person or such records, or of any subsidiary of any such person. To carry out the purposes of this section the director, upon giving due notice, may hold hearings, take testimony, administer oaths, subpoena witnesses and issue subpoenas for the production of books, records, documents or other writings of any kind, and RCW 15.66.070 shall apply with respect to any such hearing, together with such other regulations consistent therewith as the director may from time to time prescribe. [1961 c 11 § 15.66.210. Prior: 1955 c 191 § 21.] 15.66.220 15.66.220 Compliance with chapter a defense in any action. In any civil or criminal action or proceeding for violation of any rule of [or] statutory or common law against monopolies or combinations in restraint of trade, proof that the act complained of was done in compliance with the provisions of this chapter or a marketing order issued under this chapter, and in furtherance of the purposes and provisions of this chapter, shall be a complete defense to such action or proceeding. [1961 c 11 § 15.66.220. Prior: 1955 c 191 § 22.] (2006 Ed.) Washington State Agricultural Commodity Commissions 15.66.230 15.66.230 Liability of commission, state, etc. Obligations incurred by any commission and any other liabilities or claims against the commission shall be enforced only against the assets of such commission in the same manner as if it were a corporation and no liability for the debts or actions of the commission shall exist against either the state of Washington or any subdivision or instrumentality thereof or against any other commission established pursuant to this chapter or the assets thereof or against any member officer, employee or agent of the board in his individual capacity. The members of any such commission, including employees of such board, shall not be held responsible individually in any way whatsoever to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person or employee, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other member of any such commission. The liability of the members of such commission shall be several and not joint and no member shall be liable for the default of any other member. [1961 c 11 § 15.66.230. Prior: 1955 c 191 § 23.] 15.66.240 15.66.240 Marketing agreements. Marketing agreements shall be created upon written application filed with the director by not less than five commercial producers of an agricultural commodity and upon approval of the director. The director shall hold a public hearing upon such application. Not less than five days prior thereto he shall give written notice thereof to all producers whom he determines may be proper parties to such agreement and shall publish such notice at least once in a newspaper of general circulation in the affected area. The director shall approve an agreement so applied for only if he shall find: (1) That no other agreement or order is in force for the same commodity in the same area or any part thereof; (2) That such agreement will tend to effectuate its purpose and the declared policies of this chapter and conforms to law; (3) That enough persons who produce a sufficient amount of the affected commodity to tend to effectuate said policies and purposes and to provide sufficient moneys to defray the necessary expenses of formulation, issuance, administration and enforcement have agreed in writing to said agreement. Such agreement may be for any of the purposes and may contain any of the provisions that a marketing order may contain under the provisions of this chapter but no other purposes and provisions. A commodity commission created by such agreement shall in all respects have all powers and duties as a commodity commission created by a marketing order. Such agreement shall be binding upon, and only upon, persons who have signed the agreement: PROVIDED, That a cooperative association may, in behalf of its members, execute any and all marketing agreements authorized hereunder, and upon so doing, such agreement so executed shall be binding upon said cooperative association and its members. Such agreements shall go into force when the director endorses his approval in writing upon the agreement and so notifies all who have signed the agreement. Additional signatories may be added at any time with the approval of the director. Every (2006 Ed.) 15.66.263 agreement shall remain in force and be binding upon all persons so agreeing for the period specified in such agreement but the agreement shall provide a time at least once in every twelve months when any or all such persons may withdraw upon giving notice as provided in the agreement. Such an agreement may be amended or terminated in the same manner as herein provided for its creation and may also be terminated whenever after the withdrawal of any signatory the director finds on the basis of evidence presented at such hearing that not enough persons remain signatory to such agreement to effectuate the purposes of the agreement or the policies of the act or to provide sufficient moneys to defray necessary expenses. However, in the event that a cooperative association is signatory to the marketing agreement in behalf of its members, the action of the cooperative association shall be considered the action of its members for the purpose of determining withdrawal or termination. [1961 c 11 § 15.66.240. Prior: 1955 c 191 § 24.] 15.66.245 15.66.245 Marketing agreement or order—Authority for participation in proceedings concerning regulation of pesticides or agricultural chemicals. Any marketing agreement or order may authorize the members of a commodity commission, or their agents or designees, to participate in federal or state hearings or other proceedings concerning regulation of the manufacture, distribution, sale, or use of any pesticide as defined by *RCW 15.58.030(30) or any agricultural chemical which is of use or potential use in producing the affected commodity. Any marketing agreement or order may authorize the expenditure of commodity commission funds for this purpose. [2002 c 313 § 63; 1988 c 54 § 2.] *Reviser’s note: RCW 15.58.030 was amended by 2003 c 212 § 1, changing subsection (30) to subsection (31). Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.250 15.66.250 Price fixing and product limiting prohibited. Nothing contained in this chapter shall permit fixing of prices not otherwise permitted by law or any limitation on production and no marketing order or agreement or any rule or regulation thereunder shall contain any such provisions. [1961 c 11 § 15.66.250. Prior: 1955 c 191 § 25.] 15.66.260 15.66.260 Costs of conducting nominations and elections—Reimbursement. The department shall be reimbursed for actual costs incurred in conducting nominations and elections for members of any commodity commission established under the provisions of this chapter. Such reimbursement shall be made from the funds of the commission for which the nominations and elections were conducted by the director. [2002 c 313 § 64; 1969 c 66 § 2; 1961 c 11 § 15.66.260. Prior: 1955 c 191 § 26.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.66.263 15.66.263 Costs of implementing RCW 15.66.141. The costs incurred by the department of agriculture that are associated with the implementation of RCW 15.66.141 shall be paid for by the affected commodity commissions. [2003 c 396 § 8.] Effective date—2003 c 396: See note following RCW 15.66.030. [Title 15 RCW—page 147] 15.66.270 Title 15 RCW: Agriculture and Marketing 15.66.270 15.66.270 Exemptions. Nothing in this chapter contained shall apply to: (1) Any order, rule, or regulation issued or issuable by the Washington utilities and transportation commission or the interstate commerce commission with respect to the operation of common carriers; (2) Any provision of the statutes of the state of Washington relating to the *apple advertising commission (chapter 15.24 RCW), to the soft tree fruits commission (chapter 15.28 RCW) or to the dairy products commission (chapter 15.44 RCW). No marketing agreement or order shall be issued with respect to apples, soft tree fruits or dairy products for the purposes specified in RCW 15.66.030(1) or 15.66.030(2). [1961 c 11 § 15.66.270. Prior: 1955 c 191 § 27.] *Reviser’s note: The "Washington state apple advertising commission" was renamed the "Washington apple commission" by 2002 c 313 § 115. 15.66.275 15.66.275 Applicability of chapter to state agencies or other governmental units. The provisions of this chapter and any marketing order established thereunder shall be applicable to any state agency or other governmental unit engaged in the production for sale of any agricultural commodity subject to such marketing order, especially those relating to RCW 15.66.150 concerning assessments. Such assessments shall be paid by the state agency or governmental agency made subject to the marketing order from the proceeds derived from the sale of said agricultural commodities. [1967 ex.s. c 55 § 1.] 15.66.280 15.66.280 Restrictive provisions of chapter 43.78 RCW not applicable to promotional printing and literature of commissions. The restrictive provisions of chapter 43.78 RCW as now or hereafter amended shall not apply to promotional printing and literature for any commission formed under this chapter. [1972 ex.s. c 112 § 5.] 15.66.900 15.66.900 Short title. This chapter shall be known and may be cited as the "Washington Agricultural Enabling Act." [1961 c 11 § 15.66.900. Prior: 1955 c 191 § 29.] 15.66.901 15.66.901 Severability—2004 c 99. If any section, subsection, sentence, clause, or part of this chapter is for any reason held to be invalid or unconstitutional, the judicial decision does not affect the remainder of the chapter and its application to other persons or circumstances. The legislature declares that each section, subsection, sentence, clause, and part of this chapter was enacted with the intent that if any portion of this chapter is severed, the remainder of the chapter is capable of accomplishing its legislative purpose. [2004 c 99 § 3.] Effective date—2004 c 99: See note following RCW 15.28.901. Chapter 15.70 Chapter 15.70 RCW RURAL REHABILITATION Sections 15.70.010 Director may receive federal funds for rural rehabilitation corporation. [Title 15 RCW—page 148] 15.70.020 15.70.030 15.70.040 15.70.050 Director may delegate certain powers to secretary of agriculture. Deposit and use of funds. Powers of director—In general. No liability as to United States. 15.70.010 15.70.010 Director may receive federal funds for rural rehabilitation corporation. The director of the state department of agriculture is hereby designated as the state official of the state of Washington to make application to and receive from the secretary of agriculture of the United States, or any other proper federal official, pursuant and subject to the provisions of public law 499, 81st congress, approved May 3, 1950, the trust assets, either funds or property, held by the United States as trustee in behalf of the Washington rural rehabilitation corporation. [1961 c 11 § 15.70.010. Prior: 1951 c 169 § 1.] 15.70.020 15.70.020 Director may delegate certain powers to secretary of agriculture. The director of agriculture is authorized, in his discretion, to enter into agreements with the secretary of agriculture of the United States pursuant to section 2(f) of the aforesaid act of the congress of the United States, upon such terms and conditions and for such periods of time as may be mutually agreeable, authorizing the secretary of agriculture of the United States to accept, administer, expend and use in the state of Washington all or any part of such trust assets or any other funds of the state of Washington which may be appropriated for such uses for carrying out the purposes of titles I and II of the Bankhead-Jones farm tenant act, in accordance with the applicable provisions of title IV thereof, as now or hereafter amended, and to do any and all things necessary to effectuate and carry out the purposes of said agreements. [1961 c 11 § 15.70.020. Prior: 1951 c 169 § 2.] 15.70.030 15.70.030 Deposit and use of funds. Notwithstanding any other provisions of law, funds and the proceeds of the trust assets which are not authorized to be administered by the secretary of agriculture of the United States under the provisions of RCW 15.70.020 shall be received by the director of agriculture and by him deposited with the treasurer of the state. Such funds are hereby appropriated and may be expended or obligated by the director of agriculture for the purposes of RCW 15.70.020 or for use by the director of agriculture for such of the rural rehabilitation purposes permissible under the charter of the now dissolved Washington rural rehabilitation corporation as may from time to time be agreed upon by the director of agriculture and the secretary of agriculture of the United States, subject to the applicable provisions of said public law 499. [1961 c 11 § 15.70.030. Prior: 1951 c 169 § 3.] 15.70.040 15.70.040 Powers of director—In general. The director of agriculture is authorized and empowered to: (1) Collect, compromise, adjust or cancel claims and obligations arising out of or administered under this chapter or under any mortgage, lease, contract or agreement entered into or administered pursuant to this chapter and if, in his judgment, necessary and advisable, pursue the same to final collection in any court having jurisdiction. (2006 Ed.) Hardwoods Commission (2) Bid for and purchase at any execution, foreclosure or other sale, or otherwise to acquire property upon which the director of agriculture has a lien by reason of judgment or execution, or which is pledged, mortgaged, conveyed or which otherwise secures any loan or other indebtedness owing to or acquired by the director of agriculture under this chapter, and (3) Accept title to any property so purchased or acquired; to operate or lease such property for such period as may be deemed necessary to protect the investment therein; and to sell or otherwise dispose of such property in a manner consistent with the provisions of this chapter. The authority herein contained may be delegated to the secretary of agriculture of the United States with respect to funds or assets authorized to be administered and used by him under agreements entered into pursuant to RCW 15.70.020. [1961 c 11 § 15.70.040. Prior: 1951 c 169 § 4.] 15.70.050 15.70.050 No liability as to United States. The United States and the secretary of agriculture thereof, shall be held free from liability by virtue of the transfer of the assets to the director of agriculture of the state of Washington pursuant to this chapter. [1961 c 11 § 15.70.050. Prior: 1951 c 169 § 5.] Chapter 15.74 Chapter 15.74 RCW HARDWOODS COMMISSION Sections 15.74.005 15.74.010 15.74.020 15.74.030 15.74.040 15.74.050 15.74.060 15.74.070 15.74.900 Legislative purpose. Commission created. Commission authority. Commission management. Financial requirements. Obligations, liabilities, and claims. Assessments—Generally. Assessments—Failure to pay. Severability—1990 c 142. 15.74.005 15.74.005 Legislative purpose. The legislature recognizes that the economic base of the state of Washington is directly tied to the development and management of forest industries and that efforts to enhance and promote the recognition and expansion of the hardwoods industry should be coordinated between state and federal agencies, the forest products industry, commissions, institutions of higher education, and other entities. The legislature further recognizes that the development of hardwood forests and hardwood products will require multispecie, sustained-yield management plans for industrial and nonindustrial timber tracts, the development of products and markets for all grades of hardwoods, a stable and predictable tax program for new and existing firms and financial assistance for the attraction and expansion of new and existing hardwood processing facilities. The legislature also recognizes that the welfare of the citizens of the state of Washington require, as a public purpose, a continuing effort toward the full utilization of hardwood forests and the hardwood products industry. [1990 c 142 § 1.] 15.74.010 15.74.010 Commission created. In recognition of the findings and purposes in RCW 15.74.005, there is created the Washington hardwoods commission, which is created solely for the purposes set forth in this chapter. The commission (2006 Ed.) 15.74.030 shall be comprised of seven members. All members shall be members of the hardwood industry. All members shall initially be appointed by the governor and shall be appointed to staggered terms. Three members shall be appointed for a twoyear term, two members to a three-year term, and two members to a four-year term. The hardwoods commission shall, by January 1, 1991, develop a method of electing board members to replace the appointed members. Each board member shall serve until the election of his or her successor. Five voting members of the commission constitute a quorum for the transaction of any business of the commission. Each member of the commission shall be a resident of the state and over the age of twenty-one. [1990 c 142 § 2.] 15.74.020 15.74.020 Commission authority. The commission shall have the power, duty, and responsibility to assist in the retention, expansion, and attraction of hardwood-related industries by creating a climate for development and support of the industry. The commission shall coordinate efforts to enhance and promote the expansion of the forest industry among state and federal agencies, industry organizations, and institutions of higher education. The commission shall have the power and duty to develop products and markets for various species and grades of hardwoods, and to study and recommend a tax program that will attract new firms and promote stability for existing firms. The commission shall also have as its duty the development of an enhancement and protection program that will reduce waste and respect environmental sensitivity. The commission will develop financial assistance programs from public and private moneys for attraction and expansion of new and existing primary, secondary, and tertiary processing facilities. It is also appropriate that the commission utilize recognized experts in educational institutions, public and private foundations, and agencies of the state, to facilitate research into economic development, hardwood silviculture, woodland management, and the development of new products. The commission will also work cooperatively with the department of natural resources in the development of best management practices for hardwood resources. [1990 c 142 § 3.] 15.74.030 15.74.030 Commission management. The commission shall have the power to elect a chair and such officers as the commission deems necessary and advisable. The commission shall elect a treasurer who shall be responsible for all receipts and disbursements by the commission. The treasurer’s faithful discharge of duties shall be guaranteed by a bond at the sole expense of the commission. The commission shall adopt rules for its governance, which shall provide for the holding of an annual meeting for the election of officers and the transaction of other business and for such other meetings as the commission may direct. The commission shall do all things reasonably necessary to effect the purposes of this chapter. The commission shall have no legislative power. The commission may employ and discharge managers, secretaries, agents, attorneys, and other employees or staff, and may engage the services of independent contractors, prescribe their duties, and fix their compensation. Each member of the board shall be compensated in accordance with RCW 43.03.240 and shall be reimbursed for travel expenses at the [Title 15 RCW—page 149] 15.74.040 Title 15 RCW: Agriculture and Marketing rates allowed state employees in accordance with RCW 43.03.050 and 43.03.060. [1991 c 67 § 1; 1990 c 142 § 4.] 15.74.040 15.74.040 Financial requirements. The commission shall maintain an account with one or more public depositaries, and may deposit moneys in the depositary and expend moneys for purposes authorized by this chapter in the form of drafts made by the commission. The commission shall keep accurate records of all receipts, disbursements, and other financial transactions in accordance with generally accepted principles of accounting, available for audit by the state auditor. [1990 c 142 § 5.] 15.74.050 15.74.050 Obligations, liabilities, and claims. Obligations incurred by the commission and liabilities or claims against the commission shall be enforced only against the assets of the commission in the same manner as if it were a corporation and no liability for the debts or actions of the commission shall exist against either the state of Washington or any subdivision or instrumentality thereof or against any member, officer, employee, or agent of the commission in his or her individual capacity. The members of the commission, including employees of the commission, shall not be held responsible in any way whatsoever to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as principle, agent, person, or employees, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other members of the commission. [1990 c 142 § 6.] 15.74.060 15.74.060 Assessments—Generally. To provide for permanent funding of the Washington hardwoods commission, agricultural commodity assessments shall be levied by the commission on processors of hardwoods. An assessment is hereby levied on hardwood processors operating within the state of Washington. The assessment categories shall be based on the hardwood processor’s production per calendar quarter. The assessment shall be levied based upon the following schedule: CATEGORY QUARTERLY PRODUCTION (THOUSAND TONS) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 5 to 7.5 7.5 to 15 15 to 25 25 to 35 35 to 45 45 to 62.5 62.5 to 82.5 82.5 to 125 125 to 175 175 to 250 250 to 350 350 to 450 450 to 625 625 to 875 875 to 1125 Over 1125 [Title 15 RCW—page 150] QUARTERLY ASSESSMENT $ 150 $ 300 $ 600 $ 900 $ 1,200 $ 1,500 $ 2,250 $ 3,000 $ 4,500 $ 6,000 $ 9,000 $12,000 $15,000 $22,500 $30,000 $35,000 The commission may develop by rule formulas for converting other units of measure to thousands of tons of production for determining the appropriate production category. The assessment shall be calculated based upon calendar quarters with the first assessment period beginning July 1, 1991. [1991 c 67 § 3; 1990 c 142 § 7.] 15.74.070 15.74.070 Assessments—Failure to pay. Any due and payable assessment levied under this chapter in such specified amount as may be determined by the commission shall constitute a personal debt of every person so assessed or who otherwise owes the same, and the same shall be due and payable to the commission when payment is called for by the commission. In the event any person fails to pay the commission the full amount of such assessment or such other sum on or before the date due, the commission may, and is hereby authorized to, add to such unpaid assessment or sum an amount not exceeding ten percent of the same to defray the cost of enforcing the collecting of the same. In the event of failure of such person or persons to pay any such due and payable assessment or other such sum, the commission may bring a civil action against such person or persons in a court of competent jurisdiction for the collection thereof, together with the above specified ten percent thereon, and such action shall be tried and judgment rendered as in any other cause of action for debt due and payable. [1991 c 67 § 2.] 15.74.900 15.74.900 Severability—1990 c 142. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1990 c 142 § 9.] Chapter 15.76 Chapter 15.76 RCW AGRICULTURAL FAIRS, YOUTH SHOWS, EXHIBITIONS Sections 15.76.100 15.76.110 15.76.115 15.76.120 15.76.130 15.76.140 15.76.150 15.76.160 15.76.165 15.76.170 15.76.180 Declaration of public interest—Allocation of state funds authorized. Definitions. Fair fund—Created—Treasurer’s transfer—Purpose. Categories of fairs—Jurisdiction and organization. Application for state allocation—Purposes—Form. Eligibility requirements for state allocation. Allocations from the fair fund—Considerations. Purposes for which allocation made—To whom made—List of premiums to be submitted as part of application, form. Application of counties for capital improvement and maintenance assistance. Fairs commission—Creation, terms, compensation, powers and duties. Rules and regulations. County fairs: Chapter 36.37 RCW. County property, lease for agricultural purposes: RCW 36.34.145. 15.76.100 15.76.100 Declaration of public interest—Allocation of state funds authorized. It is hereby declared that it is in the public interest to hold agricultural fairs, including the exhibition of livestock and agricultural produce of all kinds, as well as related arts and manufactures; including products of the farm home and educational contest, displays and demonstrations designed to train youth and to promote the welfare of farm people and rural living. Fairs qualifying hereun(2006 Ed.) Agricultural Fairs, Youth Shows, Exhibitions der shall be eligible for allocations from the state fair fund as provided in this chapter. [1961 c 61 § 1.] 15.76.110 Definitions. "Director" shall mean the director of agriculture. "Commission" shall mean the fairs commission created by this chapter. "State allocations" shall mean allocations from the state fair fund. [1961 c 61 § 2.] 15.76.110 15.76.115 Fair fund—Created—Treasurer’s transfer—Purpose. The fair fund is created in the custody of the state treasury. All moneys received by the department of agriculture for the purposes of this fund and from RCW 67.16.105(4) shall be deposited into the fund. At the beginning of fiscal year 2002 and each fiscal year thereafter, the state treasurer shall transfer into the fair fund from the general fund the sum of two million dollars. Expenditures from the fund may be used only for assisting fairs in the manner provided in this chapter. Only the director of agriculture or the director’s designee may authorize expenditures from the fund. The fund is subject to allotment procedures under chapter 43.88 RCW, but no appropriation is required for expenditures. [2001 2nd sp.s. c 16 § 1; 1998 c 345 § 2.] 15.76.115 Severability—Effective date—Contingent effective date—1998 c 345: See notes following RCW 15.04.090. 15.76.120 Categories of fairs—Jurisdiction and organization. For the purposes of this chapter all agricultural fairs in the state which may become eligible for state allocations shall be divided into categories, to wit: (1) "Area fairs"—those not under the jurisdiction of boards of county commissioners; organized to serve an area larger than one county, having both open and junior participation, and having an extensive diversification of classes, displays and exhibits; (2) "County and district fairs"—organized to serve the interests of single counties other than those in which a recognized area fair or a district fair as defined in RCW 36.37.050, is held and which are under the direct control and supervision of the county commissioners of the respective counties, which have both open and junior participation, but whose classes, displays and exhibits may be more restricted or limited than in the case of area or district fairs. There may be but one county fair in a single county: PROVIDED, HOWEVER, That the county commissioners of two or more counties may, by resolution, jointly sponsor a county fair. (3) "Community fairs"—organized primarily to serve a smaller area than an area or county fair, which may have open or junior classes, displays, or exhibits. There may be more than one community fair in a county. (4) "Youth shows and fairs"—approved by duly constituted agents of Washington State University or the office of the superintendent of public instruction, serving three or more counties, and having for their purpose the education and training of rural youth in matters of rural living. [1993 c 163 § 1; 1991 c 238 § 74; 1961 c 61 § 3.] 15.76.120 Effective dates—Severability—1991 c 238: See RCW 28B.50.917 and 28B.50.918. 15.76.130 Application for state allocation—Purposes—Form. For the purpose of encouraging agricultural fairs and training rural youth, the board of trustees of any fair 15.76.130 (2006 Ed.) 15.76.160 or youth show may apply to the director of agriculture for state allocations as hereinafter set forth. Such application shall be in such form as the director may prescribe. [1961 c 61 § 4.] 15.76.140 15.76.140 Eligibility requirements for state allocation. (1) Before any agricultural fair may become eligible for state allocations it must have conducted two successful consecutive annual fairs immediately preceding application for such allocations, and have its application therefor approved by the director. (2) Beginning January 1, 1994, the director may waive this requirement for an agricultural fair that through itself or its predecessor sponsoring organization has successfully operated at least two years as a county fair and that reorganizes as an area fair. [2001 c 157 § 1; 1995 c 374 § 71; 1965 ex.s. c 32 § 1; 1961 c 61 § 5.] Effective date—2001 c 157: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 2, 2001]." [2001 c 157 § 2.] 15.76.150 15.76.150 Allocations from the fair fund—Considerations. The director shall have the authority to make allocations from the state fair fund, including interest income under RCW 43.79A.040, exclusively as follows: Eighty-five percent to participating agricultural fairs, distributed according to the merit of such fairs measured by a merit rating to be set up by the director. This merit rating shall take into account such factors as area and population served, open and/or youth participation, attendance, gate receipts, number and type of exhibits, premiums and prizes paid, community support, evidence of successful achievement of the aims and purposes of the fair, extent of improvements made to grounds and facilities from year to year, and overall condition and appearance of grounds and facilities. The remaining fifteen percent of money in the state fair fund may be used for special assistance to any participating fair or fairs and for administrative expenses incurred in the administration of this chapter only, including expenses incurred by the fair commission as may be approved by the director: PROVIDED, That not more than five percent of the state fair fund may be used for such expenses. The division and payment of funds authorized in this section shall occur at such times as the director may prescribe. [2002 c 313 § 113; 1965 ex.s. c 32 § 2; 1961 c 61 § 6.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.76.160 15.76.160 Purposes for which allocation made—To whom made—List of premiums to be submitted as part of application, form. Any state allocations made under this chapter to fairs or youth shows, other than fairs or youth shows operated by or for and under the control of one or more counties or other agencies, as defined in subsection (4) of RCW 15.76.120, shall be made only as a reimbursement in whole or in part for the payment of premiums and prizes awarded to participants in such fairs or youth shows. State allocations to fairs under the control of one or more counties shall be made to the county treasurer of the county in which the fair is held. State allocations to other publicly sponsored fairs or youth shows shall be made to such sponsor. The [Title 15 RCW—page 151] 15.76.165 Title 15 RCW: Agriculture and Marketing board of trustees of any private fair or youth show, as part of its application for any allocation under this chapter, and as a condition of such allocation, shall submit to the director a list of premiums and prizes awarded to participants in its last preceding fair or youth show. Such list shall contain the names of all premium and prize winners, a description of each prize or premium, including its amount or value, and the total values of all such awards. The list shall be in such form and contain such further information as the director may require, and shall be verified as to its accuracy by the oath of the president of the fair or youth show, together with that of the secretary or manager, subscribed thereon. [1961 c 61 § 7.] Chapter 15.80 Sections 15.80.300 15.80.310 15.80.320 15.80.330 15.80.340 15.80.350 15.80.360 15.80.370 15.80.380 15.80.390 15.80.400 15.80.410 15.80.420 15.76.165 15.76.165 Application of counties for capital improvement and maintenance assistance. Any county which owns or leases property from another governmental agency and provides such property for area or county and district agricultural fair purposes may apply to the director for special assistance in carrying out necessary capital improvements to such property and maintenance of the appurtenances thereto. [2005 c 443 § 2; 1973 c 117 § 1; 1969 c 85 § 1.] 15.80.430 15.80.440 15.80.450 15.80.460 15.80.470 15.80.480 15.80.490 Finding—Intent—Effective date—2005 c 443: See notes following RCW 82.08.0255. 15.80.530 15.80.540 15.80.550 15.76.170 15.76.170 Fairs commission—Creation, terms, compensation, powers and duties. There is hereby created a fairs commission to consist of the director of agriculture as ex officio member and chairman, and seven members appointed by the director to be persons who are interested in fair activities; at least three of whom shall be from the east side of the Cascades and three from the west side of the Cascades and one member at large. The first appointment shall be: Three for a one year term, two for a two year term, and two for a three year term, and thereafter the appointments shall be for three year terms. Appointed members of the commission shall be compensated in accordance with RCW 43.03.240 and shall be reimbursed for travel expenses, in accordance with RCW 43.03.050 and 43.03.060 payable on proper vouchers submitted to and approved by the director, and payable from that portion of the state fair fund set aside for administrative costs under this chapter. The commission shall meet at the call of the chairman, but at least annually. It shall be the duty of the commission to act as an advisory committee to the director, to assist in the preparation of the merit rating used in determining allocations to be made to fairs, and to perform such other duties as may be required by the director from time to time. [1984 c 287 § 18; 1975-’76 2nd ex.s. c 34 § 21; 1975 1st ex.s. c 7 § 11; 1961 c 61 § 8.] Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. Chapter 15.80 RCW WEIGHMASTERS 15.80.500 15.80.510 15.80.520 15.80.560 15.80.570 15.80.580 15.80.590 15.80.600 15.80.610 15.80.620 15.80.630 15.80.640 15.80.650 15.80.660 15.80.900 15.80.910 15.80.920 Definitions—Application. "Department." "Director." "Person." "Licensed public weighmaster." "Weigher." "Vehicle." "Certified weight." "Commodity." "Thing." "Retail merchant." Director’s duty to enforce—Adoption of rules. Highway transport of commodities sold by weight—Weighing required—Exceptions. Certificates of weight and invoices to be carried with loads. Reweighing—Weighing—Variance from invoiced weight. Weighmaster’s license—Applications—Fee—Bond. Weighmaster’s license—Issuance—Expiration date. Weighmaster’s license—Renewal date—Penalty fee. Surety bond. Weigher’s license—Employees or agents to issue weight tickets—Application—Fee. Weigher’s license—Issuance—Expiration date. Duties of weighmaster. Certification of weights—Impression seal—Fee—Annual renewal. Certified weight ticket—Form—Contents—Evidence. Copies of weight tickets. Weighmaster or weigher to determine weights—Automatic devices. Weighing devices to be suitable—Testing of weighing and measuring devices. Weighing devices—Rated capacity to exceed weight of load. Weighing devices—Platform size to sufficiently accommodate vehicles. Denial, suspension, or revocation of licenses—Hearing. Hearings for denial, suspension or revocation of licenses— Notice—Location. Subpoenas—Oaths. Assuming to act as weighmaster or weigher. Falsifying weight tickets, weight or count—Unlawfully delegating—Presealing before weighing. Writing, etc., false ticket or certificate—Influence—Penalty. Violations—Penalty. Collected moneys—Deposit. Chapter cumulative. Effective date—1969 ex.s. c 100. Severability—1969 ex.s. c 100. 15.80.300 Definitions—Application. Terms used in this chapter shall have the meaning given to them in RCW 15.80.310 through 15.80.400 unless the context where used shall clearly indicate to the contrary. [1969 ex.s. c 100 § 1.] 15.80.300 15.80.310 "Department." "Department" means the department of agriculture of the state of Washington. [1969 ex.s. c 100 § 2.] 15.80.310 15.80.320 "Director." "Director" means the director of the department or his duly appointed representative. [1969 ex.s. c 100 § 3.] 15.80.320 15.80.330 "Person." "Person" means a natural person, individual, or firm, partnership, corporation, company, society, or association. This term shall import either the singular or plural, as the case may be. [1969 ex.s. c 100 § 4.] 15.80.330 15.76.180 15.76.180 Rules and regulations. The director shall have the power to adopt such rules and regulations as may be necessary or appropriate to carry out the purposes of this chapter. [1961 c 61 § 9.] [Title 15 RCW—page 152] 15.80.340 "Licensed public weighmaster." "Licensed public weighmaster" also referred to as weighmaster, means any person, licensed under the provisions of this chapter, who 15.80.340 (2006 Ed.) Weighmasters weighs, measures or counts any commodity or thing and issues therefor a signed certified statement, ticket, or memorandum of weight, measure or count accepted as the accurate weight, or count upon which the purchase or sale of any commodity or upon which the basic charge or payment for services rendered is based. [1969 ex.s. c 100 § 5.] 15.80.350 15.80.350 "Weigher." "Weigher" means any person who is licensed under the provisions of this chapter and who is an agent or employee of a weighmaster and authorized by the weighmaster to issue certified statements of weight, measure or count. [1969 ex.s. c 100 § 6.] 15.80.360 15.80.360 "Vehicle." "Vehicle" means any device, other than a railroad car, in, upon, or by which any commodity, is or may be transported or drawn. [1969 ex.s. c 100 § 7.] 15.80.370 15.80.370 "Certified weight." "Certified weight" means any signed certified statement or memorandum of weight, measure or count issued by a weighmaster or weigher in accordance with the provisions of this chapter or any regulation adopted thereunder. [1969 ex.s. c 100 § 8.] 15.80.380 15.80.380 "Commodity." "Commodity" means anything that may be weighed, measured or counted in a commercial transaction. [1969 ex.s. c 100 § 9.] 15.80.390 15.80.390 "Thing." "Thing" means anything used to move, handle, transport or contain any commodity for which a certified weight, measure or count is issued when such thing is used to handle, transport, or contain a commodity. [1969 ex.s. c 100 § 10.] 15.80.400 15.80.400 "Retail merchant." "Retail merchant" means and includes any person operating from a bona fide fixed or permanent location at which place all of the retail business of said merchant is transacted, and whose business is exclusively retail except for the occasional wholesaling of small quantities of surplus commodities which have been taken in exchange for merchandise from the producers thereof at the bona fide fixed or permanent location. [1969 ex.s. c 100 § 11.] 15.80.410 15.80.410 Director’s duty to enforce—Adoption of rules. The director shall enforce and carry out the provisions of this chapter and may adopt the necessary rules to carry out its purpose. The adoption of rules shall be subject to the provisions of chapter 34.05 RCW (Administrative Procedure Act), as enacted or hereafter amended, concerning the adoption of rules. [1969 ex.s. c 100 § 12.] 15.80.420 15.80.420 Highway transport of commodities sold by weight—Weighing required—Exceptions. It shall be a violation of this chapter to transport by highway any hay, straw or grain which has been purchased by weight or will be purchased by weight, unless it is weighed and a certified weight ticket is issued thereon, by the first licensed public weighmaster which would be encountered on the ordinary route to the destination where the hay, straw or grain is to be (2006 Ed.) 15.80.450 unloaded: PROVIDED, HOWEVER, That this section shall not apply to the following: (1) The transportation of, or sale of, hay, straw or grain by the primary producer thereof; (2) The transportation of hay, straw or grain by an agriculturalist for use in his own growing, or animal or poultry husbandry endeavors; (3) The transportation of grain by a party who is either a warehouseman or grain dealer and who is licensed under the grain warehouse laws and who makes such shipment in the course of the business for which he is so licensed; (4) The transportation of hay, straw or grain by retail merchants, except for the provisions of RCW 15.80.430 and 15.80.440; (5) The transportation of grain from a warehouse licensed under the grain warehouse laws when the transported grain is consigned directly to a public terminal warehouse. [1969 ex.s. c 100 § 13.] 15.80.430 15.80.430 Certificates of weight and invoices to be carried with loads. Certificates of weight issued by licensed public weighmasters and invoices for sales by a retail merchant, if the commodity is being hauled by or for such retail merchant, shall be carried with all loads of hay, straw or grain when in transit. [1969 ex.s. c 100 § 14.] 15.80.440 15.80.440 Reweighing—Weighing—Variance from invoiced weight. The driver of any vehicle previously weighed by a licensed public weighmaster may be required to reweigh the vehicle and load at the nearest scale. The driver of any vehicle operated by or for a retail merchant which vehicle contains hay, straw, or grain may be required to weigh the vehicle and load at the nearest scale, and if the weight is found to be less than the amount appearing on the invoice, a copy of which is required to be carried on the vehicle, the director shall report the finding to the consignee and may cause such retail merchant to be prosecuted in accordance with the provisions of this chapter. [1969 ex.s. c 100 § 15.] 15.80.450 15.80.450 Weighmaster’s license—Applications— Fee—Bond. Any person may apply to the director for a weighmaster’s license. Such application shall be on a form prescribed by the director and shall include: (1) The full name of the person applying for such license and if the applicant is a partnership, association or corporation, the full name of each member of the partnership or the names of the officers of the association or corporation; (2) The principal business address of the applicant in this state and elsewhere; (3) The names of the persons authorized to receive and accept service of summons and legal notice of all kinds for the applicant; (4) The location of any scale or scales subject to the applicant’s control and from which certified weights will be issued; and (5) Such other information as the director feels necessary to carry out the purposes of this chapter. Such annual application shall be accompanied by a license fee of fifty dollars for each scale from which certified [Title 15 RCW—page 153] 15.80.460 Title 15 RCW: Agriculture and Marketing weights will be issued and a bond as provided for in RCW 15.80.480. [2006 c 358 § 3; 1969 ex.s. c 100 § 16.] Effective dates—2006 c 358: See note following RCW 19.94.175. 15.80.460 15.80.460 Weighmaster’s license—Issuance—Expiration date. The director shall issue a license to an applicant upon his satisfaction that the applicant has satisfied the requirements of this chapter and the rules adopted hereunder and that such applicant is of good moral character, not less than eighteen years of age, and has the ability to weigh accurately and make correct certified weight tickets. Any license issued under this chapter shall expire annually on a date set by rule by the director. License fees shall be prorated where necessary to accommodate staggering of expiration dates of a license or licenses. [1991 c 109 § 7; 1971 ex.s. c 292 § 14; 1969 ex.s. c 100 § 17.] Severability—1971 ex.s. c 292: See note following RCW 26.28.010. 15.80.470 15.80.470 Weighmaster’s license—Renewal date— Penalty fee. If an application for renewal of any license provided for in this chapter is not filed prior to the expiration date, there shall be assessed and added to the renewal fee as a penalty therefor fifty percent of said renewal fee which shall be paid by the applicant before any renewal license shall be issued. The penalty shall not apply if the applicant furnishes an affidavit that he has not acted as a weighmaster or weigher subsequent to the expiration of his or her prior license. [1991 c 109 § 8; 1969 ex.s. c 100 § 18.] 15.80.480 15.80.480 Surety bond. Any applicant for a weighmaster’s license shall execute and deliver to the director a surety bond executed by the applicant as principal and by a surety company qualified and authorized to do business in this state as surety. Such bond shall be in the sum of one thousand dollars. The bond shall be of standard form and approved by the director as to terms and conditions. Said bond shall be conditioned that the principal will not commit any fraudulent act and will comply with the provisions of this chapter and the rules adopted hereunder. Said bond shall be to the state for the benefit of every person availing himself of the services and certifications issued by a weighmaster, or weigher subject to his control. The total and aggregate liability of the surety for all claims upon the bond shall be limited to the face value of such bond. Every bond filed with and approved by the director shall, without the necessity of periodic renewal, remain in force and effect until such time as the license of the licensee is revoked for cause or otherwise canceled. All such sureties on a bond, as provided herein, shall only be released and discharged from all liability to the state accruing on such bond upon compliance with the provisions of RCW 19.72.110, as enacted or hereafter amended, concerning notice and proof of service, but this shall not operate to relieve, release, or discharge the surety from any liability already accrued or which shall accrue (due and to become due hereunder) before the expiration period provided for in RCW 19.72.110, as enacted or hereafter amended, concerning notice and proof of service, and unless the principal shall before the expiration of such period, file a new bond, the director shall forthwith cancel the principal’s license. [1969 ex.s. c 100 § 19.] [Title 15 RCW—page 154] 15.80.490 15.80.490 Weigher’s license—Employees or agents to issue weight tickets—Application—Fee. Any weighmaster may file an application with the director for a license for any employee or agent to operate and issue certified weight tickets from a scale which such weighmaster is licensed to operate under the provisions of this chapter. Such application shall be submitted on a form prescribed by the director and shall contain the following: (1) Name of the weighmaster; (2) The full name of the employee or agent and his resident address; (3) The position held by such person with the weighmaster; (4) The scale or scales from which such employee or agent will issue certified weights; and (5) Signature of the weigher and the weighmaster. Such annual application shall be accompanied by a license fee of ten dollars. [2006 c 358 § 4; 1969 ex.s. c 100 § 20.] Effective dates—2006 c 358: See note following RCW 19.94.175. 15.80.500 15.80.500 Weigher’s license—Issuance—Expiration date. Upon the director’s satisfaction that the applicant is of good moral character, has the ability to weigh accurately and make correct certified weight tickets and that he is an employee or agent of the weighmaster, the director shall issue a weigher’s license which will expire annually on a date set by rule by the director. License fees shall be prorated where necessary to accommodate staggering of expiration dates of a license or licenses. [1991 c 109 § 9; 1969 ex.s. c 100 § 21.] 15.80.510 15.80.510 Duties of weighmaster. A licensed public weighmaster shall: (1) Keep the scale or scales upon which he weighs any commodity or thing, in conformity with the standards of weights and measures; (2) carefully and correctly weigh and certify the gross, tare and net weights of any load of any commodity or thing required to be weighed; and (3) without charge, weigh any commodity or thing brought to his scale by an inspector authorized by the director, and issue a certificate of the weights thereof. [1969 ex.s. c 100 § 22.] 15.80.520 15.80.520 Certification of weights—Impression seal—Fee—Annual renewal. Certification of weights shall be made by means of an impression seal, the impress of which shall be placed by the weighmaster or weigher making the weight determination upon the weights shown on the weight tickets. The impression seal shall be procured from the director upon the payment of a fee of five dollars, and such fee shall accompany the applicant’s application for a weighmaster’s license. The seal shall be retained by the weighmaster upon payment of an annual renewal fee of five dollars, and the fee shall accompany the annual renewal application for a weighmaster’s license. Any replacement seal needed shall be procured from the director upon payment to the department of the cost for such replacement. An impression seal shall be used only at the scale to which it is assigned, and remains the property of the state and shall be returned forthwith to the director upon the termination, suspension, or revocation of the weighmaster’s license. [1983 c 95 § 6; 1969 ex.s. c 100 § 23.] (2006 Ed.) Weighmasters 15.80.530 15.80.530 Certified weight ticket—Form—Contents—Evidence. The certified weight ticket shall be of a form approved by the director and shall contain the following information: (1) The date of issuance; (2) The kind of commodity weighed, measured, or counted; (3) The name of owner, agent, or consignee of the commodity weighed; (4) The name of seller, agent or consignor; (5) The accurate weight, measure or count of the commodity weighed, measured or counted; including the entry of the gross, tare and/or net weight, where applicable; (6) The identifying numerals or symbols, if any, of each container separately weighed and the motor vehicle license number of each vehicle separately weighed; (7) The means by which the commodity was being transported at the time it was weighed, measured or counted; (8) The name of the city or town where such commodity was weighed; (9) The complete signature of weighmaster or weigher who weighed, measured or counted the commodity; and (10) Such other available information as may be necessary to distinguish or identify the commodity. Such weight certificates when so made and properly signed and sealed shall be prima facie evidence of the accuracy of the weights, measures or count shown, as a certified weight, measure or count. [1969 ex.s. c 100 § 24.] 15.80.540 15.80.540 Copies of weight tickets. Certified weight tickets shall be made in triplicate, one copy to be delivered to the person receiving the weighed commodity at the time of delivery, which copy shall accompany the vehicle that transports such commodity, one copy to be forwarded to the seller by the carrier of the weighed commodity, and one copy to be retained by the weighmaster that weighed the vehicle transporting such commodity. The copy retained by the weighmaster shall be kept at least for a period of one year, and such copies and such other records as the director shall determine necessary to carry out the purposes of this chapter shall be made available at all reasonable business hours for inspection by the director. [1969 ex.s. c 100 § 25.] 15.80.550 15.80.550 Weighmaster or weigher to determine weights—Automatic devices. No weighmaster or weigher shall enter a weight value on a certified weight ticket that he has not determined and he shall not make a weight entry on a weight ticket issued at any other location: PROVIDED, HOWEVER, That if the director determines that an automatic weighing or measuring device can accurately and safely issue weights in conformance with the purpose of this chapter, he may adopt a regulation to provide for the use of such a device for the issuance of certified weight tickets. The certified weight ticket shall be so prepared that it will show the weight or weights actually determined by the weighmaster. In any case in which only the gross, the tare or the net weight is determined by the weighmaster he shall strike through or otherwise cancel the printed entries for the weights not determined or computed by him. [1969 ex.s. c 100 § 26.] (2006 Ed.) 15.80.610 15.80.560 15.80.560 Weighing devices to be suitable—Testing of weighing and measuring devices. A licensed public weighmaster shall in making a weight determination as provided for in this chapter, use a weighing device that is suitable for the weighing of the type and amount of commodity being weighed. The director shall cause to be tested for proper state standards of weight all weighing or measuring devices utilized by any licensed public weighmaster. Certified weights shall not be issued over a device that has been rejected or condemned for repair or use by the director until such device has been repaired. [1969 ex.s. c 100 § 27.] 15.80.570 15.80.570 Weighing devices—Rated capacity to exceed weight of load. A weighmaster shall not use a weighing device to determine the weight of a load when the weight of such load exceeds the manufacturer’s maximum rated capacity for such weighing device. If upon inspection the director declares that the maximum rated capacity of any weighing device is less than the manufacturer’s maximum rated capacity, the weighmaster shall not weigh a load that exceeds the director’s declared maximum rated capacity for such weighing device. [1969 ex.s. c 100 § 28.] 15.80.580 15.80.580 Weighing devices—Platform size to sufficiently accommodate vehicles. No weighmaster shall weigh a vehicle or combination of vehicles to determine the weight of such vehicle or combination of vehicles unless the weighing device has a platform of sufficient size to accommodate such vehicle or combination of vehicles fully and completely as one entire unit. When a combination of vehicles must be broken up into separate units in order to be weighed as prescribed, each separate unit shall be entirely disconnected before weighing and a separate certified weight ticket shall be issued for each separate unit. [1969 ex.s. c 100 § 29.] 15.80.590 15.80.590 Denial, suspension, or revocation of licenses—Hearing. The director is hereby authorized to deny, suspend, or revoke a license subsequent to a hearing, if a hearing is requested, in any case in which he finds that there has been a failure to comply with the requirements of this chapter or rules adopted hereunder. Such hearings shall be subject to chapter 34.05 RCW (Administrative Procedure Act) concerning adjudicative proceedings. [1989 c 175 § 52; 1969 ex.s. c 100 § 30.] Effective date—1989 c 175: See note following RCW 34.05.010. 15.80.600 15.80.600 Hearings for denial, suspension or revocation of licenses—Notice—Location. For hearings for revocations, suspension, or denial of a license, the director shall give the licensee or applicant such notice as is required under the provisions of chapter 34.05 RCW, as enacted or hereafter amended. Such hearings shall be held in the county where the licensee resides. [1969 ex.s. c 100 § 31.] 15.80.610 15.80.610 Subpoenas—Oaths. The director, for the purposes of this chapter, may issue subpoenas to compel the attendance of witnesses, and/or the production of books and/or documents anywhere in the state. The party shall have opportunity to make his defense, and may have such subpoe[Title 15 RCW—page 155] 15.80.620 Title 15 RCW: Agriculture and Marketing nas issued as he desires. Subpoenas shall be served in the same manner as in civil cases in the superior court. Witnesses shall testify under oath which may be administered by the director. [1969 ex.s. c 100 § 32.] 15.80.620 15.80.620 Assuming to act as weighmaster or weigher. It shall be unlawful for any person not licensed pursuant to the provisions of this chapter to: (1) Hold himself out, in any manner, as a weighmaster or weigher; or (2) Issue any ticket as a certified weight ticket. [1969 ex.s. c 100 § 33.] 15.80.630 15.80.630 Falsifying weight tickets, weight or count—Unlawfully delegating—Presealing before weighing. It shall be unlawful for a weighmaster or weigher to falsify a certified weight ticket, or to cause an incorrect weight, measure or count to be determined, or delegate his authority to any person not licensed as a weigher, or to preseal a weight ticket with his official seal before performing the act of weighing. [1969 ex.s. c 100 § 34.] 15.80.640 15.80.640 Writing, etc., false ticket or certificate— Influence—Penalty. Any person who shall mark, stamp or write any false weight ticket, scale ticket, or weight certificate, knowing it to be false, and any person who influences, or attempts to wrongfully influence any licensed public weighmaster or weigher in the performance of his official duties shall be guilty of a gross misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment of not less than thirty days nor more than one year in the county jail, or by both such fine and imprisonment. [1969 ex.s. c 100 § 35.] 15.80.650 15.80.650 Violations—Penalty. (1) Except as provided in RCW 15.80.640 or subsection (2) of this section, any person violating any provision of this chapter or rules adopted hereunder is guilty of a misdemeanor. (2) A second or subsequent violation is a gross misdemeanor. Any offense committed more than five years after a previous conviction shall be considered a first offense. [2003 c 53 § 109; 1969 ex.s. c 100 § 36.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 15.80.660 15.80.660 Collected moneys—Deposit. All moneys collected under this chapter shall be placed in the weights and measures account created in RCW 19.94.185. [1995 c 355 § 25.] Application—Effective dates—1995 c 355: See notes following RCW 19.94.015. 15.80.900 15.80.900 Chapter cumulative. The provisions of this chapter shall be cumulative and nonexclusive and shall not affect any other remedy available at law. [1969 ex.s. c 100 § 37.] 15.80.910 15.80.910 Effective date—1969 ex.s. c 100. This act shall take effect on July 1, 1969. [1969 ex.s. c 100 § 38.] [Title 15 RCW—page 156] 15.80.920 15.80.920 Severability—1969 ex.s. c 100. If any section or provision of this act shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the act as a whole, or any section, provision or part thereof, not adjudged invalid or unconstitutional. [1969 ex.s. c 100 § 39.] Chapter 15.83 Chapter 15.83 RCW AGRICULTURAL MARKETING AND FAIR PRACTICES Sections 15.83.005 15.83.010 15.83.020 15.83.030 15.83.040 15.83.050 15.83.060 15.83.070 15.83.080 15.83.090 15.83.100 15.83.110 15.83.900 15.83.905 Intent. Definitions. Negotiating agents—Association of producers—Accreditation. Unlawful practices of handlers. Unlawful practices of association of producers or members. Violations of chapter—Complaint. Director’s authority—Recordkeeping—Cooperation. Injury due to unlawful practices—Damages. Unlawful practices—Civil penalty. Injunction. Rules. Advisory committee. Short title. Severability—1989 c 355. 15.83.005 15.83.005 Intent. Agricultural products are produced by many individual farmers and ranchers located throughout the state. The efficient production and marketing of agricultural products by farmers, ranchers, and handlers is of vital concern to the welfare and general economy of the state. It is the purpose of this chapter to establish standards of fair practices required of handlers, producers, and associations of producers, with respect to certain agricultural commodities, to establish the mutual obligation of handlers and accredited associations of producers to negotiate relative to the production or marketing of these agricultural commodities. It is the intent of the legislature that a workable process be developed through which a fair price and other contract terms can be arrived at through negotiations between processors of agricultural products and an accredited association of producers, and that in developing rules and administering this chapter the director of agriculture shall recognize this intent. [1989 c 355 § 1.] 15.83.010 15.83.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Accredited association of producers" means an association of producers which is accredited by the director to be the exclusive negotiation agent for all producer members of the association within a negotiating unit. (2) "Advance contract" means a contract for purchase and sale of a crop entered into before the crop becomes a growing crop and providing for delivery at or after the harvest of that crop. (3) "Agricultural products" as used in this chapter means sweet corn and potatoes produced for sale from farms in this state. (4) "Association of producers" means any association of producers of agricultural products engaged in marketing, negotiating for its members, shipping, or processing as (2006 Ed.) Agricultural Marketing and Fair Practices defined in section 15(a) of the federal agriculture marketing act of 1929 or in section 1 of 42 Stat. 388. (5) "Director" means the director of the department of agriculture. (6) "Handler" means a processor or a person engaged in the business or practice of: (a) Acquiring agricultural products from producers or associations of producers for use by a processor; (b) Processing agricultural products received from producers or associations of producers, provided that a cooperative association owned by producers shall not be a handler except when contracting for crops from producers who are not members of the cooperative association; (c) Contracting or negotiating contracts or other arrangements, written or oral, with or on behalf of producers or associations of producers with respect to the production or marketing of any agricultural product for use by a processor; or (d) Acting as an agent or broker for a handler in the performance of any function or act specified in (a), (b), or (c) of this subsection. (7) "Negotiate" means meeting at reasonable times and for reasonable periods of time commencing at least sixty days before the normal planting date and concluding within thirty days of the normal planting date to make a serious, fair, and reasonable attempt to reach agreement by acknowledging or refuting with reason points brought up by either party with respect to the price, terms of sale, compensation for products produced under contract, or other terms relating to the production or sale of these products: PROVIDED, That neither party shall be required to disclose proprietary business or financial records or information. (8) "Negotiating unit" means a negotiating unit approved by the director under RCW 15.83.020. (9) "Person" means an individual, partnership, corporation, association, or any other entity. (10) "Processor" means any person that purchases agricultural crops from a producer and cans, freezes, dries, dehydrates, cooks, presses, powders, or otherwise processes those crops in any manner for eventual resale. A person who solely cleans, sorts, grades, and packages a farm product for sale without altering the natural condition of the product is not a processor. A person processing any portion of a crop is a processor. (11) "Producer" means a person engaged in the production of agricultural products as a farmer or planter, including a grower or farmer furnishing inputs, production management, or facilities for growing or raising agricultural products. A producer who is also a handler shall be considered a handler under this chapter. (12) "Qualified commodity" means agricultural products as defined in subsection (3) of this section. [1989 c 355 § 2.] 15.83.020 Negotiating agents—Association of producers—Accreditation. (1) An association of producers may file an application with the director: (a) Requesting accreditation to serve as the exclusive negotiating agent on behalf of its producer members who are within a proposed negotiating unit with respect to any qualified commodity; (b) Describing geographical boundaries of the proposed negotiating unit; 15.83.030 (c) Specifying the number of producers and the quantity of products included within the proposed negotiating unit; (d) Specifying the number and location of the producers and the quantity of products represented by the association; and (e) Supplying any other information required by the director. (2) Within a reasonable time after receiving an application under subsection (1) of this section, the director shall approve or disapprove the application in accordance with this section. (a) The director shall approve the initial application or renewal if the director determines that: (i) The association is owned and controlled by producers under the charter documents or bylaws of the association; (ii) The association has valid and binding contracts with its members empowering the association to sell or negotiate terms of sale of its members’ products or to negotiate for compensation for products produced under contract by its members; (iii) The association represents a sufficient percentage of producers or that its members produce a sufficient percentage of agricultural products to enable it to function as an effective agent for producers in negotiating with a given handler as defined in rules promulgated by the department. In making this finding, the director shall exclude any quantity of the agricultural products contracted by producers with producerowned and controlled processing cooperatives with its members and any quantity of these products produced by handlers; (iv) One of the association’s functions is to act as principal or agent for its members in negotiations with handlers for prices and other terms of trade with respect to the production, sale, and marketing of the products of its members, or for compensation for products produced by its members under contract; and (v) Accreditation would not be contrary to the policies established in RCW 15.83.005. (b) If the director does not approve the application under (a) of this subsection, then the association of producers may file an amended application with the director. The director, within a reasonable time, shall approve the amended application if it meets the requirements set out in (a) of this subsection. (3) At the discretion of the director, or upon submission of a timely filed petition by an affected handler or an affected association of producers, the association of producers accredited under this section may be required by the director to renew the application for accreditation by providing the information required under subsection (1) of this section. [1989 c 355 § 3.] 15.83.020 (2006 Ed.) 15.83.030 15.83.030 Unlawful practices of handlers. It shall be unlawful for any handler to engage, or permit any employee or agent to engage, in the following practices: (1) To refuse to negotiate with an association of producers accredited under RCW 15.83.020 with respect to any qualified commodity: PROVIDED, That the obligation to negotiate does not require either party to agree to a proposal, to make a concession, or to enter into a contract; [Title 15 RCW—page 157] 15.83.040 Title 15 RCW: Agriculture and Marketing (2) To coerce any producer in the exercise of his or her right to contract with, join, refrain from contracting with or joining, belong to an association of producers, or refuse to deal with any producer because of the exercise of that producer’s right to contract with, join, or belong to an association or because of that producer’s promotion of legislation on behalf of an association of producers; (3) To discriminate against any producer with respect to price, quantity, quality, or other terms of purchase, acquisition, or other handling of agricultural products because of that producer’s membership in or contract with an association of producers or because of that producer’s promotion of legislation on behalf of an association of producers; (4) To coerce or intimidate any producer to enter into, maintain, breach, cancel, or terminate a membership agreement or marketing contract with an association of producers or a contract with a handler; (5) To pay or loan money, give anything of value, or offer any other inducement or reward to a producer for refusing or ceasing to belong to an association of producers; (6) To make knowingly false reports about the finances, management, or activities of associations of producers or handlers; or (7) To conspire, agree, or arrange with any other person to do, aid, or abet any act made unlawful by this chapter. [1989 c 355 § 4.] 15.83.040 15.83.040 Unlawful practices of association of producers or members. It shall be unlawful for any accredited association of producers or members of such association to engage, or permit any employee or agent to engage, in the following practices: (1) To refuse to negotiate with a handler for any qualified commodity for which the association is accredited under RCW 15.83.020; (2) To coerce or intimidate a handler to breach, cancel, or terminate a marketing contract with an individual producer, association of producers, or a member of an association; (3) To knowingly make or circulate false reports about the finances, management, or activities of an association of producers or a handler; (4) To coerce or intimidate a producer to enter into, breach, cancel, or terminate a membership agreement or marketing contract with an association of producers; (5) To conspire, agree, or arrange with any other person to do, aid, or abet any practice which is in violation of this chapter; or (6) To pay or loan money, give anything of value, or offer any other inducement or reward to a producer for refusing to contract or negotiate with a processor. [1989 c 355 § 5.] conducted in accordance with the provisions of chapter 34.05 RCW concerning contested cases. (2) No complaint may be issued based upon any act occurring more than six months before the filing of the charge with the director. At the discretion of the director, any other person may be allowed to intervene in the proceeding and to present testimony and other evidence. (3) If upon the preponderance of the evidence taken, the director is of the opinion that any person named in the complaint has engaged in or is engaging in any prohibited practice, the director shall make and enter findings of fact and shall issue and cause to be served on that person, an order requiring that person to cease and desist from the practice and to take affirmative action to further the policies of this chapter. The order may also require the person to make reports from time to time showing the extent of compliance with the order. If, upon the preponderance of the testimony and other evidence, the director determines that the person named in the complaint has not engaged in or is not engaging in any prohibited practice, the director shall make and enter findings of fact and an order dismissing the complaint. [1989 c 355 § 6.] 15.83.060 15.83.060 Director’s authority—Recordkeeping— Cooperation. If required to carry out the objectives of this chapter, including the conduct of any investigations or hearing: (1) The director shall require any person to: (a) Establish and maintain records; (b) Make reports; and (c) Provide other information as may be reasonably required. (2) Any person subject to the provisions of this chapter shall provide the information, records, and reports reasonably required by the director, or make such material available to the director for inspection and/or copying at reasonable times and places, except that no person shall be required under this section to provide to the director proprietary business or financial records or information. [1989 c 355 § 7.] 15.83.070 15.83.070 Injury due to unlawful practices—Damages. A person injured in his or her business or property by reason of any violation of or conspiracy to violate RCW 15.83.030 or 15.83.040 may sue in a court of competent jurisdiction of the county in which such violation occurred without respect to the amount in controversy, and shall recover damages sustained, including reasonable attorneys’ fees and costs of bringing the suit. Any action to enforce any cause of action under this section shall be forever barred unless commenced not later than two years after the cause of action accrues. [1989 c 355 § 8.] 15.83.080 15.83.050 15.83.050 Violations of chapter—Complaint. (1) If any person is charged with violating any provision of this chapter, the director shall investigate the charges. If, upon investigation, the director has reasonable cause to believe that the person charged has violated the provision, the director shall issue and cause to be served upon the person, a complaint stating the charges. A hearing on the charges shall be [Title 15 RCW—page 158] 15.83.080 Unlawful practices—Civil penalty. A person who violates RCW 15.83.030 or 15.83.040 may be assessed a civil penalty by the director of not more than five thousand dollars for each offense. No civil penalty may be assessed unless the person charged has been given notice and opportunity for a hearing pursuant to chapter 34.05 RCW. In determining the amount of the penalty, the director shall consider the size of the business of the person charged, the pen(2006 Ed.) Aquaculture Marketing alty’s affect [effect] on the person’s ability to continue in business, and the gravity of the violation. If the director is unable to collect the civil penalty, the director shall refer the collection to the attorney general. [1989 c 355 § 9.] 15.83.090 15.83.090 Injunction. The director or any aggrieved producer, accredited association, or handler may bring an action to enjoin the violation of any provision of this chapter or any regulation made pursuant to this chapter in a court of competent jurisdiction of the county in which such violation occurs or is about to occur. [1989 c 355 § 10.] 15.83.100 15.83.100 Rules. The director may promulgate such rules in accordance with chapter 34.05 RCW, and orders, as may be necessary to carry out this chapter. [1989 c 355 § 11.] 15.83.110 15.83.110 Advisory committee. The director shall establish an advisory committee consisting of the following persons: Six producers who are producers from names submitted by an association of producers, and six handlers subject to this chapter from names submitted by handlers. The advisory committee shall study and report on all issues related to this chapter. [1989 c 355 § 12.] 15.83.900 Short title. This chapter may be known and cited as the agricultural marketing and fair practices act. [1989 c 355 § 13.] 15.83.900 15.83.905 Severability—1989 c 355. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1989 c 355 § 14.] 15.83.905 Chapter 15.85 Chapter 15.85 RCW AQUACULTURE MARKETING Sections 15.85.010 15.85.020 15.85.030 15.85.040 15.85.050 15.85.060 Legislative declaration. Definitions. Department principal agency for aquaculture marketing support. Rules. Program to assist marketing and promotion of aquaculture products. Private sector cultured aquatic products—Identification— Rules. Aquaculture disease control: Chapter 77.115 RCW. 15.85.010 15.85.010 Legislative declaration. The legislature declares that aquatic farming provides a consistent source of quality food, offers opportunities of new jobs, increased farm income stability, and improves balance of trade. The legislature finds that many areas of the state of Washington are scientifically and biologically suitable for aquaculture development, and therefore the legislature encourages promotion of aquacultural activities, programs, and development with the same status as other agricultural activities, programs, and development within the state. The legislature finds that aquaculture should be considered a branch of the agricultural industry of the state for purposes of any laws that apply to or provide for the advance(2006 Ed.) 15.85.020 ment, benefit, or protection of the agriculture industry within the state. The legislature further finds that in order to ensure the maximum yield and quality of cultured aquatic products, the department of fish and wildlife should provide diagnostic services that are workable and proven remedies to aquaculture disease problems. It is therefore the policy of this state to encourage the development and expansion of aquaculture within the state. It is also the policy of this state to protect wildstock fisheries by providing an effective disease inspection and control program and prohibiting the release of salmon or steelhead trout by the private sector into the public waters of the state and the subsequent recapture of such species as in the practice commonly known as ocean ranching. [1994 c 264 § 4; 1985 c 457 § 1.] Release and recapture of salmon or steelhead prohibited: RCW 77.12.459. 15.85.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Aquaculture" means the process of growing, farming, or cultivating private sector cultured aquatic products in marine or freshwaters and includes management by an aquatic farmer. (2) "Aquatic farmer" is a private sector person who commercially farms and manages the cultivating of private sector cultured aquatic products on the person’s own land or on land in which the person has a present right of possession. (3) "Private sector cultured aquatic products" are native, nonnative, or hybrids of marine or freshwater plants and animals that are propagated, farmed, or cultivated on aquatic farms under the supervision and management of a private sector aquatic farmer or that are naturally set on aquatic farms which at the time of setting are under the active supervision and management of a private sector aquatic farmer. When produced under such supervision and management, private sector cultured aquatic products include, but are not limited to, the following plants and animals: 15.85.020 Scientific Name Common Name Enteromorpha Monostroma Ulva Laminaria Nereocystis Porphyra Iridaea Haliotis Zhlamys Hinnites Tatinopecten Protothaca Tapes Saxidomus Mytilus Crassostrea Ostrea Pacifasticus Macrobrachium Salmo and Salvelinus green nori awo-nori sea lettuce konbu bull kelp nori abalone pink scallop rock scallop Japanese or weathervane scallop native littleneck clam manila clam butter clam mussels Pacific oysters Olympia and European oysters crayfish freshwater prawn trout, char, and Atlantic salmon [Title 15 RCW—page 159] 15.85.030 Oncorhynchus Ictalurus Cyprinus Acipenseridae Title 15 RCW: Agriculture and Marketing salmon catfish carp Sturgeon Private sector cultured aquatic products do not include herring spawn on kelp and other products harvested under a herring spawn on kelp permit issued in accordance with RCW 77.70.210. (4) "Department" means the department of agriculture. (5) "Director" means the director of agriculture. [2003 c 39 § 7; 1989 c 176 § 3; 1985 c 457 § 2.] Chapter 15.86 Chapter 15.86 RCW ORGANIC FOOD PRODUCTS Sections 15.86.010 15.86.020 15.86.030 15.86.060 15.86.065 15.86.070 15.86.090 15.86.110 Purpose. Definitions. Marketing of organic products—Standards—Restrictions. Rules—National organic program—Violations—Penalties. State organic program—Authority of department—Rules. Rules—Certification program—Fees. Mandatory certification—Exceptions. Confidentiality of business related information. Kosher food products: Chapter 69.90 RCW. 15.86.010 15.85.030 15.85.030 Department principal agency for aquaculture marketing support. The department is the principal state agency for providing state marketing support services for the private sector aquaculture industry. [1985 c 457 § 3.] 15.85.040 15.85.040 Rules. The department shall adopt rules under chapter 34.05 RCW to implement this chapter. [1985 c 457 § 7.] 15.85.050 15.85.050 Program to assist marketing and promotion of aquaculture products. The department shall exercise its authorities, including those provided by chapters 15.64, 15.65, 15.66, and 43.23 RCW, to develop a program for assisting the state’s aquaculture industry to market and promote the use of its products. [1989 c 11 § 2; 1985 c 457 § 4.] Severability—1989 c 11: See note following RCW 9A.56.220. 15.85.060 15.85.060 Private sector cultured aquatic products— Identification—Rules. The director shall establish identification requirements for private sector cultured aquatic products to the extent that identifying the source and quantity of the products is necessary to permit the department of fish and wildlife to administer and enforce Title 77 RCW effectively. The rules shall apply only to those private sector cultured aquatic products the transportation, sale, processing, or other possession of which would otherwise be required to be licensed under Title 77 RCW if they were not cultivated by aquatic farmers. The rules shall apply to the transportation or possession of such products on land other than aquatic lands and may require that they be: (1) Placed in labeled containers or accompanied by bills of lading or sale or similar documents identifying the name and address of the producer of the products and the quantity of the products governed by the documents; or (2) both labeled and accompanied by such documents. The director shall consult with the director of fish and wildlife to ensure that such rules enable the department of fish and wildlife to enforce the programs administered under those titles. If rules adopted under chapter 69.30 RCW satisfy the identification required under this section for shellfish, the director shall not establish different shellfish identification requirements under this section. [2003 c 39 § 8; 1994 c 264 § 5; 1988 c 36 § 6; 1985 c 457 § 5.] [Title 15 RCW—page 160] 15.86.010 Purpose. The legislature recognizes a public benefit in: (1) Establishing standards governing the labeling and advertising of food products and agricultural commodities as organically produced; (2) Providing certification under the federal organic food production act of 1990, 7 U.S.C. Sec. 6501 et seq., and the rules adopted thereunder for agricultural products marketed and labeled using the term "organic" or a derivative of the term "organic;" (3) Providing access for Washington producers, processors, and handlers to domestic and international markets for organic food products; and (4) Establishing a state organic program under the federal organic food production act of 1990, 7 U.S.C. Sec. 6501 et seq., and the rules adopted thereunder. [2002 c 220 § 1; 1992 c 71 § 1; 1985 c 247 § 1.] 15.86.020 15.86.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Director" means the director of the department of agriculture or the director’s designee. (2) "Organic food" means any agricultural product, in whole or in part, including meat, dairy, and beverage, that is marketed using the term organic or any derivative of organic and that is produced, handled, and processed in accordance with this chapter. (3) "Producer" means any person or organization who or which grows, raises, or produces an agricultural product. (4) "Handler" means any person who sells, distributes, or packs organic or transitional products. (5) "Transitional food" means any food product that satisfies all of the requirements of organic food except the time requirements as defined in rule. (6) "Organic certifying agent" means any third-party certification organization that is recognized by the director as being one which imposes, for certification, standards consistent with this chapter. (7) "Processor" means any person engaged in the canning, freezing, drying, dehydrating, cooking, pressing, powdering, packaging, baking, heating, mixing, grinding, churning, separating, extracting, cutting, fermenting, eviscerating, preserving, jarring, or otherwise processing organic food. (8) "Person" means any natural person, firm, partnership, exchange, association, trustee, receiver, corporation, and any member, officer, or employee thereof or assignee for the benefit of creditors. (2006 Ed.) Organic Food Products (9) "Department" means the state department of agriculture. (10) "Represent" means to hold out as or to advertise. (11) "Sale" means selling, offering for sale, holding for sale, preparing for sale, trading, bartering, offering a gift as an inducement for sale of, and advertising for sale in any media. [2002 c 220 § 2; 1992 c 71 § 2; 1989 c 354 § 32; 1985 c 247 § 2.] Severability—1989 c 354: See note following RCW 15.36.012. 15.86.030 15.86.030 Marketing of organic products—Standards—Restrictions. To be labeled, sold, or represented as an organic food, a product shall be produced under standards established under RCW 15.86.060. A producer, processor, or handler shall not represent, sell, or offer for sale any food product with the representation that the product is an organic food if the producer, processor, or handler knows, or has reason to know, that the food has not been produced, processed, or handled in accordance with standards established under RCW 15.86.060. [2002 c 220 § 3; 1992 c 71 § 3; 1989 c 354 § 30; 1985 c 247 § 3.] Effective date—1989 c 354 § 30: "Section 30 of this act shall take effect on January 1, 1991." [1989 c 354 § 87.] Severability—1989 c 354: See note following RCW 15.36.012. Violation of RCW 15.86.030 constitutes violation of RCW 19.86.020: RCW 19.86.023. 15.86.060 15.86.060 Rules—National organic program—Violations—Penalties. (1) The director shall adopt rules, in conformity with chapter 34.05 RCW, as the director believes are appropriate for the adoption of the national organic program under the federal organic food production act of 1990, 7 U.S.C. Sec. 6501 et seq., and the rules adopted thereunder and for the proper administration of this chapter. (2) The director shall issue orders to producers, processors, or handlers whom he or she finds are violating any provision of this chapter, or rules or regulations adopted under this chapter, to cease their violations and desist from future violations. Whenever the director finds that a producer, processor, or handler has committed a violation, the director shall impose on and collect from the violator a civil fine not exceeding the total of the following amounts: (a) The state’s estimated costs of investigating and taking appropriate administrative and enforcement actions in respect to the violation; and (b) one thousand dollars. (3) The director may deny, suspend, or revoke a certification provided for in this chapter if he or she determines that an applicant or certified person has violated this chapter or rules adopted under it. [2002 c 220 § 4; 1992 c 71 § 7; 1985 c 247 § 6.] 15.86.065 15.86.065 State organic program—Authority of department—Rules. The department is authorized to take such actions, conduct proceedings, and enter orders as permitted or contemplated for a state organic program under the federal organic food production act of 1990, 7 U.S.C. Sec. 6501 et seq., and the rules adopted thereunder. The state organic program shall not be inconsistent with the requirements of 7 U.S.C. Sec. 6501 et seq. and the rules adopted thereunder, including 7 C.F.R. Sec. 205.668. The department (2006 Ed.) 15.86.110 shall adopt rules necessary to implement this section. [2002 c 220 § 7.] 15.86.070 15.86.070 Rules—Certification program—Fees. (1) The director may adopt rules establishing a program for certifying producers, processors, and handlers as meeting state, national, or international standards for organic or transitional food. The rules may govern, but are not limited to governing: The number and scheduling of on-site visits, both announced and unannounced, by certification personnel; recordkeeping requirements; and the submission of product samples for chemical analysis. The rules shall include a fee schedule that will provide for the recovery of the full cost of the organic food program. Fees collected under this section shall be deposited in an account within the agricultural local fund and the revenue from such fees shall be used solely for carrying out the provisions of this section, and no appropriation is required for disbursement from the fund. The director may employ such personnel as are necessary to carry out the provisions of this section. (2) The fees established under this section may be increased in excess of the fiscal growth factor as provided in RCW 43.135.055 for the fiscal year ending June 30, 2003. [2002 c 220 § 5; 1997 c 303 § 4; 1992 c 71 § 10; 1989 c 354 § 34; 1987 c 393 § 12.] Findings—1997 c 303: See note following RCW 43.135.055. Severability—1989 c 354: See note following RCW 15.36.012. 15.86.090 15.86.090 Mandatory certification—Exceptions. (1) It is unlawful for any person to sell, offer for sale, or process any agricultural product within this state with an organic label unless that person is certified under this chapter by the department or a recognized organic certifying agent. (2) Subsection (1) of this section shall not apply to: (a) Final retailers of organic food that do not process organic food products; or (b) Producers who sell no more than five thousand dollars annually in value of agricultural products directly to consumers. [2002 c 220 § 6; 1992 c 71 § 8.] Captions not law—1992 c 71: "Captions as used in sections 6, 8, 9, and 13 of this act do not constitute part of the law." [1992 c 71 § 13.] 15.86.110 15.86.110 Confidentiality of business related information. (1) Except as provided in subsection (2) of this section, the department shall keep confidential any business related information obtained under this chapter concerning an entity certified under this chapter or an applicant for such certification and such information shall be exempt from public inspection and copying under chapter 42.56 RCW. (2) Applications for certification under this chapter and laboratory analyses pertaining to that certification shall be available for public inspection and copying. [2005 c 274 § 218; 1992 c 71 § 11.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. [Title 15 RCW—page 161] Chapter 15.88 Chapter 15.88 Title 15 RCW: Agriculture and Marketing Chapter 15.88 RCW WINE COMMISSION Sections 15.88.010 15.88.020 15.88.025 15.88.030 15.88.040 15.88.050 15.88.060 15.88.070 15.88.073 15.88.075 15.88.080 15.88.090 15.88.100 15.88.110 15.88.120 15.88.130 15.88.140 15.88.150 15.88.160 15.88.170 15.88.180 15.88.900 15.88.901 15.88.902 Legislative declaration. Definitions. Regulating wine grapes and wine—Existing comprehensive scheme—Applicable laws. Wine commission created—Composition. Designation of commission members—Terms. Appointment of members—Travel expenses. Enforcement of commission obligations against commission assets—Liability of commission members and employees. Commission powers and duties. Commission’s plans, programs, and projects—Director’s approval required. Commission speaks for state—Director’s oversight. Research, promotional, and educational campaign. Campaign goals. Commission members’ votes weighted—Exception. Assessments on wine producers and growers to fund commission. List of growers of vinifera grapes—Reporting system. Annual assessment on harvested vinifera grapes—Approval by referendum—Rules. Referendum determining grower participation—Effect. Deposit of moneys. Assessment constitutes debt—Penalty for nonpayment—Civil action. Certain records exempt from public disclosure—Exceptions— Actions not prohibited by chapter. Funding staff support—Rules—Costs of implementing RCW 15.88.073. Construction—1987 c 452. Effective dates—1987 c 452. Severability—1987 c 452. 15.88.010 15.88.010 Legislative declaration. The legislature declares that: (1) Marketing is a dynamic and changing part of Washington agriculture and a vital element in expanding the state economy. (2) The sale in the state and export to other states and abroad of wine made in the state contribute substantial benefits to the economy of the state, provide a large number of jobs and sizeable tax revenues, and have an important stabilizing effect on prices received by agricultural producers. Development of exports of these commodities abroad will contribute favorably to the balance of trade of the United States and of the state. The sale and export are therefore affected with the public interest. (3) The production of wine grapes in the state is a new and important segment of Washington agriculture which has potential for greater contribution to the economy of the state if it undergoes healthy development. (4) The general welfare of the people of the state will be served by healthy development of the activities of growing and processing wine grapes, which development will improve the tax bases of local communities in which agricultural land and processing facilities are located, and obviate the need for state and federal funding of local services. The industries are therefore affected with the public interest. (5) Creation of a commission for the public purpose of administering the revenue of the commission under RCW 66.24.210(3) for the enhancement of production of wine grapes and wine and the marketing of Washington wine will materially advance the industries of growing and processing wine grapes and thereby the interests of the citizens of the state. [1987 c 452 § 1.] [Title 15 RCW—page 162] 15.88.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Commission" means the Washington wine commission. (2) "Director" means the director of agriculture or the director’s duly appointed representative. (3) "Department" means the department of agriculture. (4) "Person" includes any individual, firm, corporation, trust, association, partnership, society, or any other organization of individuals. (5) "Grower" means a person who has at least five acres in production of vinifera grapes. (6) "Growers’ association" means a nonprofit association of Washington producers of vinifera grapes, whether or not incorporated, which the director finds to comprise the interested persons affected by appointment of members of the commission or, if the director finds that no such association exists, a group of growers of vinifera grapes within the state identified by the director as fairly representing growers of vinifera grapes within the state. (7) "Vinifera grapes" means the agricultural product commonly known as VITIS VINIFERA and those hybrid of VITIS VINIFERA which have predominantly the character of VITIS VINIFERA. (8) "Producer" means any person or other entity which grows within the state vinifera grapes or any person or other entity licensed under Title 66 RCW to produce within the state wine made predominantly from vinifera grapes. (9) "Wine producer" means any person or other entity licensed under Title 66 RCW to produce within the state wine from vinifera grapes. (10) "Eastern Washington" means that portion of the state lying east of the Cascade mountain range. (11) "Western Washington" means that portion of the state lying west of the Cascade mountain range. (12) "Wine" for the purposes of this section shall be as defined in RCW 66.04.010. (13) "Wine institute" means a nonprofit association of Washington wine producers, whether or not incorporated, which the director finds to comprise interested persons affected by appointment of members of the commission or, if the director finds that no such association exists, a group composed of all such producers identified as actively engaged in the production of wine within the state. (14) "Handler" means any Washington winery, or processor, juicer, grape broker, agent, or person buying or receiving vinifera grapes to be passed on or exported either as grapes, juice, or wine. [1988 c 257 § 6; 1987 c 452 § 2.] 15.88.020 15.88.025 15.88.025 Regulating wine grapes and wine—Existing comprehensive scheme—Applicable laws. The history, economy, culture, and future of Washington state’s agriculture involves the wine industry. In order to develop and promote wine grapes and wine as part of an existing comprehensive scheme to regulate those products the legislature declares: (1) That it is vital to the continued economic well-being of the citizens of this state and their general welfare that its wine grapes and wine be properly promoted by (a) enabling the wine industry to help themselves in establishing orderly, (2006 Ed.) Wine Commission fair, sound, efficient, and unhampered marketing of wine grapes and wines they produce; and (b) working to stabilize the wine industry by increasing markets for wine grapes and wine within the state, the nation, and internationally; (2) That wine grape growers and wine producers operate within a regulatory environment that imposes burdens on them for the benefit of society and the citizens of the state and includes restrictions on marketing autonomy. Those restrictions may impair the wine grape growers’ and wine producers’ ability to compete in local, domestic, and foreign markets; (3) That it is in the overriding public interest that support for the wine industry be clearly expressed; that adequate protection be given to agricultural commodities, uses, activities, and operations; and that wine grapes and wine be promoted individually, and as part of a comprehensive industry to: (a) Enhance the reputation and image of Washington state’s agriculture industry; (b) Increase the sale and use of wine grapes and wine in local, domestic, and foreign markets; (c) Protect the public by educating the public in reference to the quality, care, and methods used in the production of wine grapes and wine; (d) Increase the knowledge of the qualities and value of Washington’s wine grapes and wine; and (e) Support and engage in programs or activities that benefit the production, handling, processing, marketing, and uses of wine grapes and wine; (4) That this chapter is enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state; and (5) That the production and marketing of wine grapes and wine is a highly regulated industry and that the provisions of this chapter and the rules adopted under it are only one aspect of the regulated industry. Other regulations and restraints applicable to the wine grape and wine industry include: (a) Organic food products act under chapter 15.86 RCW; (b) Horticultural pests and diseases under chapter 15.08 RCW; (c) Horticultural plants and facilities—Inspection and licensing under chapter 15.13 RCW; (d) Planting stock under chapter 15.14 RCW; (e) Washington pesticide control act under chapter 15.58 RCW; (f) Insect pests and plant diseases under chapter 17.24 RCW; (g) Wholesale distributors and suppliers of wine and malt beverages under chapter 19.126 RCW; (h) Weights and measures under chapter 19.94 RCW; (i) Title 66 RCW, alcoholic beverage control; (j) Title 69 RCW, food, drugs, cosmetics, and poisons including provisions of 21 C.F.R. relating to the general manufacturing practices, food labeling, food standards, food additives, and pesticide tolerances; (k) Chapter 69.07 RCW, Washington food processing act; (l) 27 U.S.C., Secs. 201 through 211, 213 through 219a, and 122A; (2006 Ed.) 15.88.040 (m) 27 C.F.R., Parts 1, 6, 9, 10, 12, 16, 240, 251, 252; and (n) Rules under Titles 16 and 314 WAC, and rules adopted under chapter 15.88 RCW. [2002 c 313 § 110.] Effective dates—2002 c 313: See note following RCW 15.65.020. 15.88.030 15.88.030 Wine commission created—Composition. (1) There is created an agricultural commodity commission to be known and designated as the Washington wine commission. The commission shall be composed of twelve voting members and one nonvoting member; five voting members shall be growers, five voting members shall be wine producers, one voting member shall be the director, and one voting member shall be a wine distributor licensed under RCW 66.24.200. Of the grower members, at least one shall be a person who does not have over fifty acres of vinifera grapes in production, at least one shall be a person who has over one hundred acres of vinifera grapes in production, and two may be persons who produce and sell their own wine. Of the wine producer members, at least one shall be a person producing not more than twenty-five thousand gallons of wine annually, at least one shall be a person producing over one million gallons of wine annually, and at least two shall be persons who produce wine from their own grapes. In addition, at least one member shall be a wine producer located in western Washington and at least two members shall be wine producers located in eastern Washington. (2) The commission shall have one nonvoting member who is a wine producer in this state whose principal wine or wines are produced from fruit other than vinifera grapes. (3) Seven voting members of the commission constitute a quorum for the transaction of any business of the commission. (4) Each voting member of the commission shall be a citizen and resident of this state and over the age of twenty-one years. Each voting member, except the member holding position eleven, must be or must have been engaged in that phase of the grower or wine producer industry that he or she is appointed to represent, and must during his or her term of office derive a substantial portion of income therefrom, or have a substantial investment in the growing of vinifera grapes or the production of wine from vinifera grapes as an owner, lessee, partner, or a stockholder owning at least ten percent of the voting stock in a corporation engaged in the growing of vinifera grapes or wine production from vinifera grapes; or the manager or executive officer of such a corporation. These qualifications apply throughout each member’s term of office. This subsection does not apply to the director. [2003 c 396 § 38; 1997 c 321 § 40; 1988 c 254 § 12; 1987 c 452 § 3.] Effective date—2003 c 396: See note following RCW 15.66.030. Effective date—1997 c 321: See note following RCW 66.24.010. 15.88.040 15.88.040 Designation of commission members— Terms. The appointed voting positions on the commission shall be designated as follows: The wine producers shall be designated positions one, two, three, four, and five; the growers shall be designated positions six, seven, eight, nine, and ten; the wine wholesaler shall be position eleven; and the director shall be position number thirteen. The nonvoting [Title 15 RCW—page 163] 15.88.050 Title 15 RCW: Agriculture and Marketing industry member shall be designated position number twelve. The member designated as filling position one shall be a person producing over one million gallons of wine annually. The member designated as position one shall be the sole representative, directly or indirectly, of the producer eligible to hold position one and in no event shall that producer directly or indirectly control more than fifty percent of the votes of the commission. Except for position thirteen, the regular terms of office shall be three years from the date of appointment and until their successors are appointed. However, the first terms of the members appointed upon July 1, 1987, shall be as follows: Positions one, six, and eleven shall terminate July 1, 1990; positions two, four, seven, and nine shall terminate July 1, 1989; and positions three, five, eight, and ten shall terminate July 1, 1988. The term of the initial nonvoting industry member shall terminate July 1, 1990. [2003 c 396 § 39; 1988 c 254 § 13; 1987 c 452 § 4.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.88.050 15.88.050 Appointment of members—Travel expenses. (1) The director shall appoint the members of the commission. In making such appointments, the director shall take into consideration recommendations made by the growers’ association and the wine institute as the persons recommended for appointment as members of the commission. In appointing persons to the commission, the director shall seek to ensure as nearly as possible a balanced representation on the commission which would reflect the composition of the growers and wine producers throughout the state as to number of acres cultivated and amount of wine produced. (2) The appointment shall be carried out immediately subsequent to July 1, 1987, and members so appointed as set forth in this chapter shall serve for the periods set forth for the original members of the commission under RCW 15.88.040. (3) In the event a position on the commission becomes vacant due to resignation, disqualification, death, or for any other reason, the unexpired term of the position shall immediately be filled by appointment by the director. (4) Each member or employee of the commission shall be reimbursed for actual travel expenses incurred in carrying out the provisions of this chapter as defined by the commission in rule. Otherwise if not defined in rule, reimbursement for travel expenses shall be at the rates allowed by RCW 43.03.050 and 43.03.060. [2003 c 396 § 40; 2002 c 313 § 111; 1987 c 452 § 5.] Effective date—2003 c 396: See note following RCW 15.66.030. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.88.060 15.88.060 Enforcement of commission obligations against commission assets—Liability of commission members and employees. Obligations incurred by the commission and liabilities or claims against the commission shall be enforced only against the assets of the commission in the same manner as if it were a corporation and no liability for the debts or actions of the commission shall exist against either the state of Washington or any subdivision or instrumentality thereof or against any member, officer, employee, or agent of the commission in his or her individual capacity. The members of the commission, including employees of the [Title 15 RCW—page 164] commission, shall not be held responsible individually or any way whatsoever to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employees, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other members of the commission. [1987 c 452 § 6.] 15.88.070 15.88.070 Commission powers and duties. The powers and duties of the commission include: (1) To elect a chairman and such officers as the commission deems advisable. The officers shall include a treasurer who is responsible for all receipts and disbursements by the commission and the faithful discharge of whose duties shall be guaranteed by a bond at the sole expense of the commission. The commission shall adopt rules for its own governance, which shall provide for the holding of an annual meeting for the election of officers and transaction of other business and for such other meetings as the commission may direct; (2) To do all things reasonably necessary to effect the purposes of this chapter. However, the commission shall have no legislative power; (3) At the pleasure of the commission, to employ and discharge managers, secretaries, agents, attorneys, and employees and to engage the services of independent contractors as the commission deems necessary, to prescribe their duties, and to fix their compensation; (4) To receive donations of wine from wineries for promotional purposes; (5) To engage directly or indirectly in the promotion of Washington wine, including without limitation the acquisition in any lawful manner and the dissemination without charge of wine, which dissemination shall not be deemed a sale for any purpose and in which dissemination the commission shall not be deemed a wine producer, supplier, or manufacturer of any kind or the clerk, servant, or agent of a producer, supplier, or manufacturer of any kind. Such dissemination shall be for agricultural development or trade promotion, which may include promotional hosting and shall in the good faith judgment of the commission be in aid of the marketing, advertising, or sale of wine, or of research related to such marketing, advertising, or sale; (6) To acquire and transfer personal and real property, establish offices, incur expense, enter into contracts (including contracts for creation and printing of promotional literature, which contracts shall not be subject to chapter 43.78 RCW, but which shall be cancelable by the commission unless performed under conditions of employment which substantially conform to the laws of this state and the rules of the department of labor and industries). The commission may create such debt and other liabilities as may be reasonable for proper discharge of its duties under this chapter; (7) To maintain such account or accounts with one or more qualified public depositaries as the commission may direct, to cause moneys to be deposited therein, and to expend moneys for purposes authorized by this chapter by drafts made by the commission upon such institutions or by other means; (2006 Ed.) Wine Commission (8) To cause to be kept and annually closed, in accordance with generally accepted accounting principles, accurate records of all receipts, disbursements, and other financial transactions, available for audit by the state auditor; (9) To create and maintain a list of producers and to disseminate information among and solicit the opinions of producers with respect to the discharge of the duties of the commission, directly or by arrangement with trade associations or other instrumentalities; (10) To employ, designate as agent, act in concert with, and enter into contracts with any person, council, commission or other entity for the purpose of promoting the general welfare of the vinifera grape industry and particularly for the purpose of assisting in the sale and distribution of Washington wine in domestic and foreign commerce, expending moneys as it may deem necessary or advisable for such purpose and for the purpose of paying its proportionate share of the cost of any program providing direct or indirect assistance to the sale and distribution of Washington wine in domestic or foreign commerce, employing and paying for vendors of professional services of all kinds; and (11) To sue and be sued as a commission, without individual liability for acts of the commission within the scope of the powers conferred upon it by this chapter. [1987 c 452 § 7.] 15.88.073 15.88.073 Commission’s plans, programs, and projects—Director’s approval required. (1) The commission shall develop and submit to the director for approval any plans, programs, and projects concerning the following: (a) The establishment, issuance, effectuation, and administration of appropriate programs or projects for the advertising, promotion, and education of the affected commodities; and (b) The establishment and effectuation of market research projects, market development projects, or both to the end that the marketing and utilization of the affected commodities may be encouraged, expanded, improved, or made more efficient. (2) The director shall review the commission’s advertising or promotion program to ensure that no false claims are being made concerning the affected commodities. (3) The commission, prior to the beginning of its fiscal year, shall prepare and submit to the director for approval its research plan, its commodity-related education and training plan, and its budget on a fiscal period basis. (4) The director shall strive to review and make a determination of all submissions described in this section in a timely manner. [2003 c 396 § 42.] Effective date—2003 c 396: See note following RCW 15.66.030. 15.88.075 15.88.075 Commission speaks for state—Director’s oversight. The commission exists primarily for the benefit of the people of the state of Washington and its economy. The legislature hereby charges the commission, with oversight by the director, to speak on behalf of the Washington state government with regard to wine grapes and wine. [2003 c 396 § 43.] Effective date—2003 c 396: See note following RCW 15.66.030. (2006 Ed.) 15.88.110 15.88.080 Research, promotional, and educational campaign. The commission shall create, provide for, and conduct a comprehensive and extensive research, promotional, and educational campaign as crop, sales, and market conditions reasonably require. It shall investigate and ascertain the needs of producers, conditions of markets, and degree of public awareness of products, and take into account the information adduced thereby in the discharge of its duties under this chapter. [1987 c 452 § 8.] 15.88.080 15.88.090 Campaign goals. The commission shall adopt as major objectives of its research, promotional, and educational campaign such goals as will serve the needs of producers, which may include, without limitation, efforts to: (1) Establish Washington wine as a major factor in markets everywhere; (2) Promote Washington wineries as tourist attractions; (3) Encourage favorable reporting of Washington wine and wineries in the press throughout the world; (4) Establish the state in markets everywhere as a major source of premium wine; (5) Encourage favorable legislative and regulatory treatment of Washington wine in markets everywhere; (6) Foster economic conditions favorable to investment in the production of vinifera grapes and Washington wine; (7) Advance knowledge and practice of production of wine grapes in this state; (8) Discover and develop new and improved vines for the reliable and economical production of wine grapes in the state; and (9) Advance knowledge and practice of the processing of wine grapes in the state. [1987 c 452 § 9.] 15.88.090 15.88.100 Commission members’ votes weighted— Exception. (1) Except as provided in subsection (2) of this section, the vote of each of the voting members of the commission shall be weighted as provided by this subsection for the transaction of any of the business of the commission. The total voting strength of the entire voting membership of the commission shall be twelve votes. The vote of position one shall be equal to the lesser of the following: Six and one-half votes; or eleven votes times the percentage of the wine produced in the state that is produced by the person filling position one. The percentage shall be based upon the amount of wine produced in the previous calendar year and shall be rounded to the nearest ten percent. The remaining votes of the membership of the commission shall be divided equally among the remaining members of the commission. (2) In the event that the percentage of wine produced by the producer represented by position one falls below twentyfive percent of the wine produced in this state, the weighted voting mechanism provided for in subsection (1) of this section shall cease to be effective. In that case, the voting shall be based on one vote per position. [2003 c 396 § 41; 1988 c 254 § 14; 1987 c 452 § 10.] 15.88.100 Effective date—2003 c 396: See note following RCW 15.66.030. Effective date—1988 c 254 § 14: "Section 14 of this act shall take effect July 1, 1989." [1988 c 254 § 15.] 15.88.110 Assessments on wine producers and growers to fund commission. See RCW 66.24.215. 15.88.110 [Title 15 RCW—page 165] 15.88.120 Title 15 RCW: Agriculture and Marketing 15.88.120 15.88.120 List of growers of vinifera grapes— Reporting system. (1) The commission shall cause a list to be prepared of all Washington growers from any information available from the department, growers’ association, or wine producers. This list shall contain the names and addresses of all persons who grow vinifera grapes for sale or use by wine producers within this state and the amount (by tonnage) of vinifera grapes produced during the period designated by the commission. A qualified person may, at any time, have his or her name placed upon the list by delivering or mailing the information to the commission. This list shall be corrected and brought up to date in accordance with evidence and information available to the commission on or before December 31st of each year. For all purposes of giving notice and holding referendums, the list on hand, corrected up to the day next preceding the date for issuing notices or ballots as the case may be, is, for purposes of this chapter, deemed to be the list of all growers entitled to notice or to assent or dissent or to vote. (2) The commission shall develop a reporting system to document that the vinifera grape growers in this state are reporting quantities of vinifera grapes grown and subject to the assessment as provided in RCW 15.88.130. [1988 c 257 § 1.] 15.88.130 15.88.130 Annual assessment on harvested vinifera grapes—Approval by referendum—Rules. (1) Pursuant to approval by referendum in accordance with RCW 15.88.140, commencing on July 1, 1989, there shall be levied, and the commission shall collect, upon all vinifera grapes grown within this state an annual assessment of three dollars per ton of vinifera grapes harvested to be paid by the grower of the grapes. (2) The commission shall recommend rules to the director prescribing the time, place, and method for payment and collection of this assessment. For such purpose, the commission may recommend that the director, by rule, require the wine producers or handlers within this state to collect the grower assessments from growers whose vinifera grapes they purchase or accept delivery and remit the assessments to the commission, and provide for collecting assessments from growers who ship directly out of state. (3) After considering any recommendations made under subsection (2) of this section, the director shall adopt rules, in accordance with chapter 34.05 RCW, prescribing the time, place, and method for the payment and collection of the assessment levied under this section and approved under RCW 15.88.140. [1988 c 257 § 2.] 15.88.140 15.88.140 Referendum determining grower participation—Effect. (1) For purposes of determining grower participation in the commission and assessment under RCW 15.88.130, the director shall conduct a referendum among all vinifera grape growers within the state. The requirements of assent or approval of the referendum will be held to be complied with if: (a) At least fifty-one percent by numbers of growers replying in the referendum vote affirmatively or at least fifty-one percent by acreage of those growers replying in the referendum vote affirmatively; and (b) thirty percent of all vinifera grape growers and thirty percent by acreage have been represented in the referendum to determine assent or [Title 15 RCW—page 166] approval of participation and assessment. The referendum shall be conducted on or before September 15, 1988. (2) If the director determines that the requisite assent has been given, the director shall direct the commission to put into force the assessment in RCW 15.88.130. (3) If the director determines that the requisite assent has not been given, the director shall direct the commission not to levy the assessment provided in RCW 15.88.130. If the requisite assent has not been given, the commission shall not continue to specifically foster the interests of vinifera grape growers. [1988 c 257 § 3.] 15.88.150 15.88.150 Deposit of moneys. The commission shall deposit moneys collected under RCW 15.88.130 in a separate account in the name of the commission in any bank that is a state depositary. All expenditures and disbursements made from this account under this chapter may be made without the necessity of a specific legislative appropriation. None of the provisions of RCW 43.01.050 apply to this account or to the moneys received, collected, or expended as provided in RCW 15.88.120 through 15.88.160. [1988 c 257 § 4.] 15.88.160 15.88.160 Assessment constitutes debt—Penalty for nonpayment—Civil action. A due and payable assessment levied in such specified amount as determined by the commission under RCW 15.88.130 constitutes a personal debt of every person so assessed or who otherwise owes the assessment, and the assessment is due and payable to the commission when payment is called for by the commission. If a person fails to pay the commission the full amount of the assessment by the date due, the commission may add to the unpaid assessment an amount not exceeding ten percent of the assessment to defray the cost of enforcing its collection. If the person fails to pay any such due and payable assessment or other such sum, the commission may bring a civil action for collection against the person or persons in a court of competent jurisdiction. The action shall be tried and judgment rendered as in any other cause of action for a debt due and payable. [1988 c 257 § 5.] 15.88.170 15.88.170 Certain records exempt from public disclosure—Exceptions—Actions not prohibited by chapter. (1) Under RCW 42.56.380, certain agricultural business records, commission records, and department of agriculture records relating to the commission and producers of agricultural commodities are exempt from public disclosure. (2) Financial and commercial information and records submitted to either the department or the commission for the purpose of administering this chapter may be shared between the department and the commission. They may also be used, if required, in any suit or administrative hearing involving any provision of this chapter or a marketing order. (3) This chapter does not prohibit: (a) The issuance of general statements based upon the reports of persons subject to this chapter as long as the statements do not identify the information furnished by any person; or (b) The publication by the director or the commission of the name of any person violating this chapter and a statement (2006 Ed.) Washington Beer Commission of the manner of the violation by that person. [2005 c 274 § 219; 2002 c 313 § 70.] Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.88.180 15.88.180 Funding staff support—Rules—Costs of implementing RCW 15.88.073. (1) The director may provide by rule for a method to fund staff support for all commodity boards or commissions in accordance with RCW 43.23.033 if a position is not directly funded by the legislature and costs related to the specific activity undertaken on behalf of an individual commodity board or commission. The commission shall provide funds to the department according to the rules adopted by the director. (2) The costs incurred by the department associated with the implementation of RCW 15.88.073 shall be paid for by the commission. [2003 c 396 § 44; 2002 c 313 § 76.] Effective date—2003 c 396: See note following RCW 15.66.030. Effective dates—2002 c 313: See note following RCW 15.65.020. 15.88.900 15.88.900 Construction—1987 c 452. This act shall be liberally construed to effectuate its purposes. [1987 c 452 § 19.] 15.88.901 Effective dates—1987 c 452. (1) Sections 1 through 9 and 11 through 20 of this act are necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1987. (2) Section 10 of this act shall take effect July 1, 1989. [1987 c 452 § 21.] 15.89.160 15.89.170 15.89.900 15.89.901 15.89.025 Enforcement. Prosecution—Enforcement by superior courts. Construction—2006 c 330. Severability—2006 c 330. 15.89.010 15.89.010 Legislative declaration. The legislature declares that: (1) Marketing is a dynamic and changing part of Washington agriculture and a vital element in expanding the state economy; (2) The sale in this state and export to other states and abroad of beer made in this state contribute substantial benefits to the economy of the state and provide a large number of jobs and sizeable tax revenues; (3) The production of beer in this state is a new and important segment of Washington agriculture that has potential for greater contribution to the economy of the state if it undergoes continued development; and (4) The general welfare of the people of this state will be served by continued development of the activities of the production of beer, that will improve the tax bases of local communities where agricultural land and processing facilities are located, and reduce the need for state and federal funding of local services. The industries are therefore affected with the public interest. [2006 c 330 § 1.] 15.88.901 15.88.902 15.88.902 Severability—1987 c 452. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1987 c 452 § 20.] Chapter 15.89 Chapter 15.89 RCW WASHINGTON BEER COMMISSION Sections 15.89.010 15.89.020 15.89.025 15.89.030 15.89.040 15.89.050 15.89.060 15.89.070 15.89.073 15.89.075 15.89.080 15.89.090 15.89.100 15.89.110 15.89.120 15.89.130 15.89.140 15.89.150 (2006 Ed.) Legislative declaration. Definitions. Regulating beer—Existing comprehensive scheme—Applicable laws. Washington beer commission created—Composition. Director’s duties—Referendum of beer producers. Appointment of members—Terms, travel expenses. Enforcement of commission obligations against commission assets—Liability of commission members and employees. Commission powers and duties. Commission’s plans, programs, and projects—Director’s approval required. Commission speaks for state—Director’s oversight. Research, promotional, and educational campaign. Campaign goals. List of producers of beer—Reporting system. Annual assessment on beer production—Approval by referendum—Rules. Deposit of money. Assessment constitutes debt—Penalty for nonpayment—Civil action. Certain records exempt from public disclosure—Exceptions. Costs—Funding staff support—Rules. 15.89.020 15.89.020 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Affected producer" means any producer who is subject to this chapter. (2) "Beer" means any malt beverage or malt liquor as the terms are defined in chapter 66.04 RCW. (3) "Commission" means the Washington beer commission. (4) "Department" means the department of agriculture. (5) "Director" means the director of the department or the director’s duly authorized representative. (6) "Fiscal year" means the twelve-month period beginning with January 1st of any year and ending December 31st. (7) "Producer" means any person or other entity licensed under Title 66 RCW to produce beer within Washington state and who produces less than one hundred thousand barrels of beer annually per location. (8) "Referendum" means a vote by affected producers that is conducted by secret ballot. [2006 c 330 § 2.] 15.89.025 15.89.025 Regulating beer—Existing comprehensive scheme—Applicable laws. The history, economy, culture, and future of Washington state’s agriculture involve the beer industry. In order to develop and promote beer as part of an existing comprehensive scheme to regulate those products, the legislature declares that: (1) It is vital to the continued economic well-being of the citizens of this state and their general welfare that beer produced in Washington state be properly promoted; (2) It is in the overriding public interest that support for the Washington beer industry be clearly expressed and that beer be promoted individually, and as part of a comprehensive industry to: [Title 15 RCW—page 167] 15.89.030 Title 15 RCW: Agriculture and Marketing (a) Enhance the reputation and image of Washington state’s agriculture industry; (b) Protect the public by educating the public in reference to the quality, care, and methods used in the production of beer; (c) Increase the knowledge of the qualities and value of Washington’s beer; and (d) Support and engage in programs or activities that benefit the production, handling, processing, marketing, and uses of beer; (3) This chapter is enacted in the exercise of the police powers of this state to protect the health, peace, safety, and general welfare of the people of this state; and (4) The production and marketing of beer is a highly regulated industry and this chapter and the rules adopted under it are only one aspect of the regulated industry. Other laws applicable to the beer industry include: (a) The organic food products act, chapter 15.86 RCW; (b) The wholesale distributors and suppliers of malt beverages, chapter 19.126 RCW; (c) Weights and measures, chapter 19.94 RCW; (d) Title 66 RCW, alcoholic beverage control; (e) Title 69 RCW, food, drugs, cosmetics, and poisons; (f) 21 C.F.R. as it relates to general manufacturing practices, food labeling, food standards, food additives, and pesticide tolerances; (g) Chapter 69.07 RCW, Washington food processing act; (h) 27 U.S.C. Secs. 201 through 211, 213 through 219a, and 122A; (i) 27 C.F.R. Parts 1, 6, 9, 10, 12, 16, 240, 251, and 252; and (j) Rules under Title 314 WAC. [2006 c 330 § 3.] 15.89.030 15.89.030 Washington beer commission created— Composition. (1) Subject to the referendum conducted under RCW 15.89.040, there is created an agricultural commodity commission, to be known as the Washington beer commission. The commission shall be comprised of seven voting members; six members shall be producers and one voting member shall be the director. (2) Five voting members of the commission constitute a quorum for the transaction of any commission business. (3) Each producer member shall be a citizen and resident of this state and over the age of twenty-one. Each producer member must be engaged in producing beer, and must, during his or her term of office, derive a substantial portion of income from the production of beer, or have a substantial investment in the production of beer as an owner, lessee, partner, or the manager or executive officer of such a corporation. No more than one board member may be part of the same person as defined by RCW 15.04.010. These qualifications apply throughout each member’s term of office but do not apply to the director. (4) The producer members shall serve three-year terms. Of the initial voting members, two members shall be appointed for a one-year term, two members shall be appointed for a two-year term, and two members shall be appointed for a three-year term. [2006 c 330 § 4.] [Title 15 RCW—page 168] 15.89.040 15.89.040 Director’s duties—Referendum of beer producers. (1) Upon receipt of a petition containing the signatures of five beer producers from a statewide Washington state craft brewing trade association or other affected producers to implement this chapter and to determine producer participation in the commission and assessment under this chapter, the director shall: (a) Conduct a referendum of beer producers. The requirements of assent or approval of the referendum are met if: (i) At least fifty-one percent by numbers of affected producers participating in the referendum vote affirmatively; and (ii) Thirty percent of the affected producers and thirty percent of the production have been represented in the referendum to determine assent or approval of participation and assessment. The referendum shall be conducted within sixty days of receipt of the petition; and (b) Establish a list of beer producers from information provided by the petitioners, by obtaining information on beer producers from applicable producer organizations or associations or other sources identified as maintaining the information. In establishing a current list of beer producers and their individual production, the director shall use the beer producer’s name, mailing address, and production by the producer in the preceding fiscal year. Information on each producer shall be mailed to each beer producer on record with the director for verification. All corrections shall be filed with the director within twenty days from the date of mailing. The list of affected producers shall be kept in a file by the director. The list shall be certified as a true representation of the referendum mailing list. Inadvertent failure to notify an affected producer does not invalidate a proceeding conducted under this chapter. The director shall provide the commission the list of affected producers after assent in a referendum as provided in this section. (2) If the director determines that the requisite assent has been given in the referendum conducted under subsection (1) of this section, the director shall: (a) Within sixty days after assent of the referendum held, appoint the members of the commission; and (b) Direct the commission to put into force the assessment as provided for in RCW 15.89.110. (3) If the director determines that the requisite assent has not been given in the referendum conducted under subsection (1) of this section, the director shall take no further action to implement or enforce this chapter. (4) Upon completion of the referendum conducted under subsection (1) of this section, the department shall tally the results of the vote and provide the results to affected producers. If an affected producer disputes the results of a vote, that producer within sixty days from the announced results, shall provide in writing a statement of why the vote is disputed and request a recount. Once the vote is tallied and distributed, all disputes are resolved, and all matters in a vote are finalized, the individual ballots may be destroyed. (5) Before conducting the referendum provided for in subsection (1) of this section, the director may require the petitioners to deposit with him or her an amount of money as the director deems necessary to defray the expenses of conducting the referendum. The director shall provide the petitioners an estimate of expenses that may be incurred to con(2006 Ed.) Washington Beer Commission duct a referendum before any service takes place. Petitioners shall deposit funds with the director to pay for expenses incurred by the department. The commission shall reimburse petitioners the amount paid to the department when funds become available. However, if for any reason the referendum process is discontinued, the petitioners shall reimburse the department for expenses incurred by the department up until the time the process is discontinued. (6) The director is not required to hold a referendum under subsection (1) of this section more than once in any twelve-month period. [2006 c 330 § 5.] 15.89.050 15.89.050 Appointment of members—Terms, travel expenses. (1) The director shall appoint the producer members of the commission. In making appointments, no later than ninety days before an expiration of a commission member’s term, the director shall call for recommendations for commission member positions, and the director shall take into consideration recommendations made by a statewide Washington state craft brewing trade association or other affected producers. In appointing persons to the commission, the director shall seek a balanced representation on the commission that reflects the composition of the beer producers throughout the state on the basis of beer produced and geographic location. Information on beer production by geographic location shall be provided by the commission upon the director’s request. (2) If a position on the commission becomes vacant due to resignation, disqualification, death, or for any other reason, the commission shall notify the director and the unexpired term shall immediately be filled by appointment by the director. (3) Each member or employee of the commission shall be reimbursed for actual travel expenses incurred in carrying out this chapter as defined by the commission in rule. Otherwise if not defined in rule, reimbursement for travel expenses shall be at the rates allowed by RCW 43.03.050 and 43.03.060. [2006 c 330 § 6.] 15.89.060 15.89.060 Enforcement of commission obligations against commission assets—Liability of commission members and employees. Obligations incurred by the commission and any other liabilities or claims against the commission shall be enforced only against the assets of the commission and, except to the extent of such assets, no liability for the debts or actions of the commission exists against either the state of Washington or any subdivision or instrumentality thereof or against any member, employee, or agent of the commission or the state of Washington in his or her individual capacity. Except as otherwise provided in this chapter, neither the commission members, nor its employees, may be held individually responsible for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employee, except for their own individual acts of dishonesty or crime. No person or employee may be held individually responsible for any act or omission of any other commission members. The liability of the commission members shall be several and not joint, and no member is liable for the default of any other member. This provision confirms that commission members have been (2006 Ed.) 15.89.070 and continue to be, state officers or volunteers for purposes of RCW 4.92.075 and are entitled to the defenses, indemnifications, limitations of liability, and other protections and benefits of chapter 4.92 RCW. [2006 c 330 § 7.] 15.89.070 15.89.070 Commission powers and duties. The commission shall: (1) Elect a chair and officers. The officers must include a treasurer who is responsible for all receipts and disbursements by the commission and the faithful discharge of whose duties shall be guaranteed by a bond at the sole expense of the commission. The commission must adopt rules for its own governance that provide for the holding of an annual meeting for the election of officers and the transaction of other business and for other meetings the commission may direct; (2) Do all things reasonably necessary to effect the purposes of this chapter. However, the commission has no rulemaking power except as provided in this chapter; (3) Employ and discharge managers, secretaries, agents, attorneys, and employees and engage the services of independent contractors; (4) Retain, as necessary, the services of private legal counsel to conduct legal actions on behalf of the commission. The retention of a private attorney is subject to review by the office of the attorney general; (5) Receive donations of beer from producers for promotional purposes under subsections (6) and (7) of this section and for fund-raising purposes under subsection (8) of this section. Donations of beer for promotional purposes may only be disseminated without charge; (6) Engage directly or indirectly in the promotion of Washington beer, including, without limitation, the acquisition in any lawful manner and the dissemination without charge of beer. This dissemination is not deemed a sale for any purpose and the commission is not deemed a producer, supplier, or manufacturer, or the clerk, servant, or agent of a producer, supplier, distributor, or manufacturer. This dissemination without charge shall be for agricultural development or trade promotion, and not for fund-raising purposes under subsection (8) of this section. Dissemination for promotional purposes may include promotional hosting and must in the good faith judgment of the commission be in the aid of the marketing, advertising, sale of beer, or of research related to such marketing, advertising, or sale; (7) Promote Washington beer by conducting unique beer tastings without charge; (8) Beginning July 1, 2007, fund the Washington beer commission through sponsorship of up to twelve beer festivals annually at which beer may be sold to festival participants. For this purpose, the commission would qualify for issue of a special occasion license as an exception to WAC 314-05-020 but must comply with laws under Title 66 RCW and rules adopted by the liquor control board under which such events may be conducted; (9) Participate in international, federal, state, and local hearings, meetings, and other proceedings relating to the production, regulation, distribution, sale, or use of beer including activities authorized under RCW 42.17.190, including the reporting of those activities to the public disclosure commission; [Title 15 RCW—page 169] 15.89.073 Title 15 RCW: Agriculture and Marketing (10) Acquire and transfer personal and real property, establish offices, incur expenses, and enter into contracts, including contracts for the creation and printing of promotional literature. The contracts are not subject to chapter 43.78 RCW, and are cancelable by the commission unless performed under conditions of employment that substantially conform to the laws of this state and the rules of the department of labor and industries. The commission may create debt and other liabilities that are reasonable for proper discharge of its duties under this chapter; (11) Maintain accounts with one or more qualified public depositories as the commission may direct, for the deposit of money, and expend money for purposes authorized by this chapter by drafts made by the commission upon such institutions or by other means; (12) Cause to be kept and annually closed, in accordance with generally accepted accounting principles, accurate records of all receipts, disbursements, and other financial transactions, available for audit by the state auditor; (13) Create and maintain a list of producers and disseminate information among and solicit the opinions of producers with respect to the discharge of the duties of the commission, directly or by arrangement with trade associations or other instrumentalities; (14) Employ, designate as an agent, act in concert with, and enter into contracts with any person, council, commission, or other entity to promote the general welfare of the beer industry and particularly to assist in the sale and distribution of Washington beer in domestic and foreign commerce. The commission shall expend money necessary or advisable for this purpose and to pay its proportionate share of the cost of any program providing direct or indirect assistance to the sale and distribution of Washington beer in domestic or foreign commerce, employing and paying for vendors of professional services of all kinds; (15) Sue and be sued as a commission, without individual liability for acts of the commission within the scope of the powers conferred upon it by this chapter; and (16) Serve as liaison with the liquor control board on behalf of the commission and not for any individual producer. [2006 c 330 § 8.] 15.89.073 Commission’s plans, programs, and projects—Director’s approval required. (1) The commission shall develop and submit to the director for approval any plans, programs, and projects concerning the following: (a) The establishment, issuance, effectuation, and administration of appropriate programs or projects for advertising, promotion, and education programs related to beer; and (b) The establishment and effectuation of market research projects, market development projects, or both to the end that the marketing of beer may be encouraged, expanded, improved, or made more efficient. (2) The director shall review the commission’s advertising or promotion program to ensure that no false claims are being made concerning beer. (3) The commission, before the beginning of its fiscal year, shall prepare and submit to the director for approval its research plan, its commodity-related education and training plan, and its budget on a fiscal period basis. 15.89.073 [Title 15 RCW—page 170] (4) The director shall strive to review and make a determination of all submissions described in this section in a timely manner. [2006 c 330 § 9.] 15.89.075 15.89.075 Commission speaks for state—Director’s oversight. The commission exists primarily for the benefit of the people of the state of Washington and its economy. The legislature hereby charges the commission, with oversight by the director, to speak on behalf of the Washington state government with regard to the marketing and promotion of Washington produced beer. [2006 c 330 § 10.] 15.89.080 15.89.080 Research, promotional, and educational campaign. The commission may create, provide for, and conduct a comprehensive and extensive research, promotional, and educational campaign as sales and market conditions reasonably require. It shall investigate and ascertain the needs of producers, conditions of markets, and degree of public awareness of products, and take into account this information in the discharge of its duties under this chapter. [2006 c 330 § 11.] 15.89.090 15.89.090 Campaign goals. The commission shall adopt as major objectives of its research, promotional, and educational campaign goals that serve the needs of producers. The goals may include efforts to: (1) Establish Washington beer as a major factor in markets everywhere; (2) Promote Washington breweries as tourist attractions; (3) Encourage favorable reporting of Washington beer and breweries in the press throughout the world; (4) Establish Washington beer in markets everywhere as a major source of premium beer; (5) Encourage favorable legislative and regulatory treatment of Washington beer in markets everywhere; (6) Encourage promotion of Washington agriculture related to beer production, specifically hops, malting barley, and wheat grown in the state; and (7) Foster economic conditions favorable to investment in the production of Washington beer. [2006 c 330 § 12.] 15.89.100 15.89.100 List of producers of beer—Reporting system. (1) The commission shall prepare a list of all affected producers from information available from the liquor control board, the department, or the producers’ association. This list must contain the names and addresses of affected producers within this state and the amount, by barrelage, of beer produced during the period designated by the commission. A qualified person may, at any time, have his or her name placed upon the list by delivering or mailing the information to the commission. This list shall be corrected and brought up-to-date in accordance with evidence and information available to the commission by December 31st of each year. For the purposes of giving notice and holding referendums, the list updated before the date for issuing notices or ballots is the list of all producers entitled to notice, to assent or dissent, or to vote. Inadvertent failure to notify a producer does not invalidate a proceeding conducted under this chapter. (2) It is the responsibility of affected producers to ensure that their correct address is filed with the commission. It is (2006 Ed.) Center for Sustaining Agriculture and Natural Resources also the responsibility of affected producers to submit production data to the commission as prescribed by this chapter. (3) The commission shall develop a reporting system to document that the affected producers in this state are reporting quantities of beer produced and are paying the assessment as provided in RCW 15.89.110. [2006 c 330 § 13.] 15.89.110 15.89.110 Annual assessment on beer production— Approval by referendum—Rules. (1) Pursuant to referendum in accordance with RCW 15.89.040, there is levied, and the commission shall collect, upon beer produced by an affected producer, an annual assessment of ten cents per barrel of beer produced, up to ten thousand barrels per location. (2) The commission shall adopt rules prescribing the time, place, and method for payment and collection of this assessment and provide for the collection of assessments from affected producers who ship directly out-of-state. (3) The commission may reduce the assessment per affected producer based upon in-kind contributions to the commission. [2006 c 330 § 14.] 15.89.120 15.89.120 Deposit of money. The commission shall deposit money collected under RCW 15.89.110 in a separate account in the name of the commission in any bank that is a state depositary. All expenditures and disbursements made from this account under this chapter may be made without the necessity of a specific legislative appropriation. RCW 43.01.050 does not apply to this account or to the money received, collected, or expended as provided in this chapter. [2006 c 330 § 15.] 15.89.130 15.89.130 Assessment constitutes debt—Penalty for nonpayment—Civil action. An assessment levied in an amount determined by the commission under RCW 15.89.110 constitutes a personal debt of every person assessed or who otherwise owes the assessment, and the assessment is due and payable to the commission when payment is called for by the commission. If a producer fails to pay the commission the full amount of the assessment by the date due, the commission may add to the unpaid assessment an amount not exceeding ten percent of the assessment to defray the cost of enforcing its collection. If the person fails to pay an assessment, the commission may bring a civil action for collection against the person or persons in a court of competent jurisdiction. The action shall be tried and judgment rendered as in any other cause of action for a debt due and payable. [2006 c 330 § 16.] Chapter 15.92 (3) This section does not prohibit: (a) The issuance of general statements based upon the reports of persons subject to this chapter as long as the statements do not identify the information furnished by any person; or (b) The publication by the director or the commission of the name of any person violating this chapter and a statement of the manner of the violation by that person. [2006 c 330 § 17.] 15.89.150 15.89.150 Costs—Funding staff support—Rules. (1) All costs incurred by the department, including the adoption of rules and other actions necessary to carry out this chapter, shall be reimbursed by the commission. (2) The director may provide by rule for a method to fund staff support for all commodity boards or commissions in accordance with RCW 43.23.033 if a position is not directly funded by the legislature and costs are related to the specific activity undertaken on behalf of an individual commodity board or commission. The commission shall provide funds to the department according to the rules adopted by the director. [2006 c 330 § 18.] 15.89.160 15.89.160 Enforcement. County and state law enforcement officers, the liquor control board and its enforcement agents, and employees of the department shall enforce this chapter. [2006 c 330 § 19.] 15.89.170 15.89.170 Prosecution—Enforcement by superior courts. (1) Any prosecution brought under this chapter may be instituted in any county in which the defendant or any defendant resides, or in which the violation was committed, or in which the defendant or any defendant has his or her principal place of business. (2) The superior courts may enforce this chapter and the rules and regulations of the commission issued hereunder, and may prevent and restrain violations thereof. [2006 c 330 § 20.] 15.89.900 Construction—2006 c 330. This act shall be liberally construed to effectuate its purposes. [2006 c 330 § 21.] 15.89.900 15.89.901 15.89.901 Severability—2006 c 330. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2006 c 330 § 29.] 15.89.140 15.89.140 Certain records exempt from public disclosure—Exceptions. (1) Under RCW 42.56.380, certain agricultural business records, commission records, and department of agriculture records relating to the commission and producers of agricultural commodities are exempt from public disclosure. (2) Financial and commercial information and records submitted to either the department or the commission for the purpose of administering this chapter may be shared between the department and the commission. They may also be used, if required, in any suit or administrative hearing involving this chapter. (2006 Ed.) Chapter 15.92 RCW CENTER FOR SUSTAINING AGRICULTURE AND NATURAL RESOURCES Chapter 15.92 Sections 15.92.005 15.92.010 15.92.020 15.92.030 15.92.040 15.92.050 15.92.060 Finding. Definitions. Center established. Primary activities—Cooperative with University of Washington. Administrator. Food and environmental quality laboratory. Laboratory responsibilities. [Title 15 RCW—page 171] 15.92.005 15.92.070 15.92.080 15.92.090 15.92.095 15.92.100 15.92.105 15.92.110 Title 15 RCW: Agriculture and Marketing Board to advise laboratory. Annual report—Acceptable risk of human and environmental exposure. Commission on pesticide registration—Established—Composition—Duration of membership—Compensation. Commission on pesticide registration—State appropriations— Restrictions on use of state money—Commission approval required. Commission on pesticide registration—Duties. Commission on pesticide registration—Report on activities— Review by legislature. Commission on pesticide registration—Receipt of gifts, grants, and endowments. 15.92.005 15.92.005 Finding. The legislature finds that public concerns are increasing about the need for significant efforts to develop sustainable systems in agriculture. The sustainable systems would address many anxieties, including the erosion of agricultural lands, the protection and wise utilization of natural resources, and the safety of food production. Consumers have demonstrated their apprehension in the marketplace by refusing to purchase products whose safety is suspect and consumer confidence is essential for a viable agriculture in Washington. Examples of surface and ground water contamination by pesticides and chemical fertilizers raise concerns about deterioration of environmental quality. Reducing soil erosion would maintain water quality and protect the long-term viability of the soil for agricultural productivity. Both farmers and farm labor are apprehensive about the effects of pesticides on their health and personal safety. Development of sustainable farming systems would strengthen the economic viability of Washington’s agricultural production industry. Public anxieties over the use of chemicals in agriculture have resulted in congress amending the federal insecticide, fungicide and rodenticide act which requires all pesticides and their uses registered before November 1984 to be reregistered, complying with present standards, by the end of 1997. The legislature finds that the pesticide reregistration process and approval requirements could reduce the availability of chemical pesticides for use on minor crops in Washington and may jeopardize the farmers’ ability to grow these crops in Washington. The legislature recognizes that Washington State University supports research and extension programs that can lead to reductions in pesticide use where viable alternatives are both environmentally and economically sound. Yet, the legislature finds that a focused and coordinated program is needed to develop possible alternatives, increase public confidence in the safety of the food system, and educate farmers and natural resource managers on land stewardship. The legislature further finds that growers, processors, and agribusiness depend upon pesticide laboratories associated with manufacturers, regional universities, state departments of agriculture, and the United States department of agriculture to provide residue data for registering essential pesticides. The registration of uses for minor crops, which include vegetables, fruits, nuts, berries, nursery and greenhouse crops, and reregistration of needed chemicals, are activities of particular concern to ensure crop production. Furthermore, public demands for improved information and education on pesticides and risk assessment efforts justify these efforts. [Title 15 RCW—page 172] The legislature further finds that multiple alternatives are needed for pest control, including programs for integrated pest management, genetic resistance to pests, biological control, cultural practices, and the use of appropriate approved chemicals. [1991 c 341 § 1.] 15.92.010 15.92.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Agricultural commodity" means any distinctive type of agricultural, horticultural, viticultural, floricultural, vegetable, or animal product, including but not limited to, products qualifying as organic food products under chapter 15.86 RCW, private sector cultured aquatic products as defined in RCW 15.85.020, bees and honey, and Christmas trees but not including timber or timber products. (2) "Center" means the center for sustaining agriculture and natural resources established at Washington State University. (3) "Laboratory" means the food and environmental quality laboratory established at Washington State University at Tri-Cities. (4) "Integrated pest management" is a strategy that uses various combinations of pest control methods, biological, cultural, and chemical, in a compatible manner to achieve satisfactory control and ensure favorable economic and environmental consequences. (5) "IR-4 program" means interregional research project number four, clearances of chemicals and biologics for minor or special uses, established in 1963 by the cooperative state research service of the United States department of agriculture, the coordinated national program involving land-grant universities and the United States department of agriculture to provide data required for the registration of pesticides needed for the production of minor crops. (6) "Minor crop" means an agricultural crop considered to be minor in the national context of registering pesticides. (7) "Minor use" means a pesticide use considered to be minor in the national context of registering pesticides including, but not limited to, a use for a special local need. (8) "Natural resources" means soil, water, air, forests, wetlands, wildlands, and wildlife. (9) "Pesticide" means chemical or biologic used to control pests such as insect, rodent, nematode, snail, slug, weed, virus, or any organism the director of agriculture may declare to be a pest. (10) "Registration" means use of a pesticide approved by the state department of agriculture. (11) "Sustainable agriculture" means a systems approach to farming, ranching, and natural resource production that builds on and supports the physical, biological, and ecological resource base upon which agriculture depends. The goals of sustainable agriculture are to provide human food and fiber needs in an economically viable manner for the agriculture industry and in a manner which protects the environment and contributes to the overall safety and quality of life. [1995 c 390 § 4; 1991 c 341 § 2.] 15.92.020 15.92.020 Center established. A center for sustaining agriculture and natural resources is established at Washing(2006 Ed.) Center for Sustaining Agriculture and Natural Resources ton State University. The center shall provide statewide leadership in research, extension, and resident instruction programs to sustain agriculture and natural resources. [1991 c 341 § 3.] 15.92.030 15.92.030 Primary activities—Cooperative with University of Washington. The center is to work cooperatively with the University of Washington to maximize the use of financial resources in addressing forestry issues. The center’s primary activities include but are not limited to: (1) Research programs which focus on developing possible alternative production and marketing systems through: (a) Integrated pest management; (b) Biological pest control; (c) Plant and animal breeding; (d) Conservation strategies; and (e) Understanding the ecological basis of nutrient management; (2) Extension programs which focus on: (a) On-farm demonstrations and evaluation of alternative production practices; (b) Information dissemination, and education concerning sustainable agriculture and natural resource systems; and (c) Communication and training on sustainable agriculture strategies for consumers, producers, and farm and conservation-related organizations; (3) On-farm testing and research to calculate and demonstrate costs and benefits, including economic and environmental benefits and trade-offs, inherent in farming systems and technologies; (4) Crop rotation and other natural resource processes such as pest-predator interaction to mitigate weed, disease, and insect problems, thereby reducing soil erosion and environmental impacts; (5) Management systems to improve nutrient uptake, health, and resistance to diseases and pests by incorporating the genetic and biological potential of plants and animals into production practices; (6) Soil management, including conservation tillage and other practices to minimize soil loss and maintain soil productivity; and (7) Animal production systems emphasizing preventive disease practices and mitigation of environmental pollution. [1991 c 341 § 4.] 15.92.040 15.92.040 Administrator. The center is managed by an administrator. The administrator shall hold a joint appointment as an assistant director in the Washington State University agricultural research center and cooperative extension. (1) A committee shall advise the administrator. The dean of the Washington State University college of agriculture and home economics shall make appointments to the advisory committee so the committee is representative of affected groups, such as the Washington department of social and health services, the Washington department of ecology, the Washington department of agriculture, the chemical and fertilizer industry, food processors, marketing groups, consumer groups, environmental groups, farm labor, and natural resource and agricultural organizations. (2006 Ed.) 15.92.070 (2) Each appointed member shall serve a term of three years, and one-third are appointed every year. The entire committee is appointed the first year: One-third for a term of one year, one-third for a term of two years, and one-third for a term of three years. A member shall continue to serve until a successor is appointed. Vacancies are filled by appointment for the unexpired term. The members of the advisory committee shall serve without compensation but shall be reimbursed for travel expenses incurred while engaged in the business of the committee as provided in RCW 43.03.050 and 43.03.060. (3) It is the responsibility of the administrator, in consultation with the advisory committee, to: (a) Recommend research and extension priorities for the center; (b) Conduct a competitive grants process to solicit, review, and prioritize research and extension proposals; and (c) Advise Washington State University on the progress of the development and implementation of research, teaching, and extension programs that sustain agriculture and natural resources of Washington. [1991 c 341 § 5.] 15.92.050 15.92.050 Food and environmental quality laboratory. A food and environmental quality laboratory operated by Washington State University is established in the Tri-Cities area to conduct pesticide residue studies concerning fresh and processed foods, in the environment, and for human and animal safety. The laboratory shall cooperate with public and private laboratories in Washington, Idaho, and Oregon. [1991 c 341 § 6.] 15.92.060 15.92.060 Laboratory responsibilities. The responsibilities of the laboratory shall include: (1) Evaluating regional requirements for minor crop registration through the federal IR-4 program; (2) Providing a program for tracking the availability of effective pesticides for minor crops, minor uses, and emergency uses in this state; (3) Conducting studies on the fate of pesticides on crops and in the environment, including soil, air, and water; (4) Improving pesticide information and education programs; (5) Assisting federal and state agencies with questions regarding registration of pesticides which are deemed critical to crop production, consistent with priorities established in RCW 15.92.070; and (6) Assisting in the registration of biopesticides, pheromones, and other alternative chemical and biological methods. [1995 c 390 § 5; 1991 c 341 § 7.] 15.92.070 15.92.070 Board to advise laboratory. The laboratory is advised by a board appointed by the dean of the Washington State University college of agriculture and home economics. The dean shall cooperate with appropriate officials in Washington, Idaho, and Oregon in selecting board members. (1) The board shall consist of one representative from each of the following interests: A human toxicologist or a health professional knowledgeable in worker exposure to pesticides, the Washington State University vice-provost for research or research administrator, representatives from the [Title 15 RCW—page 173] 15.92.080 Title 15 RCW: Agriculture and Marketing state department of agriculture, the department of ecology, the department of health, the department of labor and industry [industries], privately owned Washington pesticide analytical laboratories, federal regional pesticide laboratories, an Idaho and Oregon laboratory, whether state, university, or private, a chemical and fertilizer industry representative, farm organizations, food processors, marketers, farm labor, environmental organizations, and consumers. Each board member shall serve a three-year term. The members of the board shall serve without compensation but shall be reimbursed for travel expenses incurred while engaged in the business of the board as provided in RCW 43.03.050 and 43.03.060. (2) The board is in liaison with the pesticide advisory board and the pesticide incident reporting and tracking panel and shall review the chemicals investigated by the laboratory according to the following criteria: (a) Chemical uses for which a data base exists on environmental fate and acute toxicology, and that appear safer environmentally than pesticides available on the market; (b) Chemical uses not currently under evaluation by public laboratories in Idaho or Oregon for use on Washington crops; (c) Chemicals that have lost or may lose their registration and that no reasonably viable alternatives for Washington crops are known; and (d) Other chemicals vital to Washington agriculture. (3) The laboratory shall conduct research activities using approved good laboratory practices, namely procedures and recordkeeping required of the national IR-4 minor use pesticide registration program. (4) The laboratory shall coordinate activities with the national IR-4 program. [1991 c 341 § 8.] 15.92.080 15.92.080 Annual report—Acceptable risk of human and environmental exposure. The center for sustaining agriculture and natural resources at Washington State University shall prepare and present an annual report to the appropriate legislative committees. The report shall include the center’s priorities to find alternatives to the use of agricultural chemicals that pose human and environmental risks. The first report, due no later than November 1, 1992, shall use federal criteria of acceptable risk of human and environmental exposure for establishing such priorities and for conducting responsive research and education programs. For each subsequent year, the report shall detail the center’s progress toward meeting the goals identified in the center’s plan. [1991 c 341 § 9.] 15.92.090 15.92.090 Commission on pesticide registration— Established—Composition—Duration of membership— Compensation. (1) A commission on pesticide registration is established. The commission shall be composed of twelve voting members appointed by the governor as follows: (a) Eight members from the following segments of the state’s agricultural industry as nominated by a statewide private agricultural association or agricultural commodity commission formed under Title 15 RCW: (i) The tree fruit industry; (ii) hop growers; (iii) potato growers; (iv) wheat growers; (v) vegetable and seed growers; (vi) berry growers; (vii) wine [Title 15 RCW—page 174] grape growers; and (viii) the nursery and landscape industry. Although members are appointed from various segments of the agriculture industry, they are appointed to represent and advance the interests of the industry as a whole. (b) One member from each of the following: (i) Forest protection industry; (ii) food processors; (iii) agricultural chemical industry; and (iv) professional pesticide applicators. One member shall be appointed for each such segment of the industry and shall be nominated by a statewide, private association of that segment of the industry. The representative of the agricultural chemical industry shall be involved in the manufacture of agricultural crop protection products. The following shall be ex officio, nonvoting members of the commission: The coordinator of the interregional project number four at Washington State University; the director of the department of ecology or the director’s designee; the director of the department of agriculture or the director’s designee; the director of the department of labor and industries or the director’s designee; and the secretary of the department of health or the secretary’s designee. (2) Each voting member of the commission shall serve a term of three years. However, the first appointments in the first year shall be made by the governor for one, two, and three-year terms so that, in subsequent years, approximately one-third of the voting members shall be appointed each year. The governor shall assign the initial one, two, and three-year terms to members by lot. A vacancy shall be filled by appointment for the unexpired term in the same manner provided for an appointment to the full term. No member of the commission may be removed by the governor during his or her term of office unless for cause of incapacity, incompetence, neglect of duty, or malfeasance in office. Each member of the commission shall receive travel expenses in accordance with RCW 43.03.050 and 43.03.060 for attending meetings of the commission and for performing special duties, in the way of official commission business, specifically assigned to the person by the commission. The voting members of the commission serve without compensation from the state other than such travel expenses. (3) Nominations for the initial appointments to the commission under subsection (1) of this section shall be submitted by September 1, 1995. The governor shall make initial appointments to the commission by October 15, 1995. (4) The commission shall elect a chair from among its voting members each calendar year. After its original organizational meeting, the commission shall meet at the call of the chair. A majority of the voting members of the commission constitutes a quorum and an official action of the commission may be taken by a majority vote of the quorum. [1999 c 247 § 1; 1995 c 390 § 1.] 15.92.095 15.92.095 Commission on pesticide registration— State appropriations—Restrictions on use of state money—Commission approval required. (1) This subsection applies to the use of state appropriations made to or legislatively intended for the commission on pesticide registration and to any other moneys appropriated by the state and received by the commission on pesticide registration: (a) The moneys may not be expended without the express approval of the commission on pesticide registration; (2006 Ed.) Forest Products Commission (b) The moneys may be used for: (i) Evaluations, studies, or investigations approved by the commission on pesticide registration regarding the registration or reregistration of pesticides for minor crops or minor uses or regarding the availability of pesticides for emergency uses. These evaluations, studies, or investigations may be conducted by the food and environmental quality laboratory or may be secured by the commission from other qualified laboratories, researchers, or contractors by contract, which contracts may include, but are not limited to, those purchasing the use of proprietary information; (ii) evaluations, studies, or investigations approved by the commission regarding research, implementation, and demonstration of any aspect of integrated pest management and pesticide resistance management programs; (iii) the tracking system described in RCW 15.92.060; and (iv) the support of the commission on pesticide registration and its activities; and (c) Not less than twenty-five percent of such moneys shall be dedicated to studies or investigations concerning the registration or use of pesticides for crops that are not among the top twenty agricultural commodities in production value produced in the state, as determined annually by the Washington agricultural statistics service. (2) The commission on pesticide registration shall establish priorities to guide it in approving the use of moneys for evaluations, studies, and investigations under this section. Each biennium, the commission shall prepare a contingency plan for providing funding for laboratory studies or investigations that are necessary to pesticide registrations or related processes that will address emergency conditions for agricultural crops that are not generally predicted at the beginning of the biennium. [1999 c 247 § 2; 1995 c 390 § 2.] 15.92.100 Commission on pesticide registration— Duties. The commission on pesticide registration shall: (1) Provide guidance to the food and environmental quality laboratory established in RCW 15.92.050 regarding the laboratory’s studies, investigations, and evaluations concerning the registration of pesticides for use in this state for minor crops and minor uses and concerning the availability of pesticides for emergency uses; (2) Encourage agricultural organizations to assist in providing funding, in-kind services, or materials for laboratory studies and investigations concerning the registration of pesticides and research, implementation, and demonstration of any aspect of integrated pest management and pesticide resistance management programs for minor crops and minor uses that would benefit the organizations; (3) Provide guidance to the laboratory regarding a program for: Tracking the availability of effective pesticides for minor crops, minor uses, and emergency uses; providing this information to organizations of agricultural producers; and maintaining close contact between the laboratory, the department of agriculture, and organizations of agricultural producers regarding the need for research to support the registration of pesticides for minor crops and minor uses and the availability of pesticides for emergency uses; (4) Ensure that the activities of the commission and the laboratory are coordinated with the activities of other laboratories in the Pacific Northwest, the United States department of agriculture, and the United States environmental protec15.92.100 (2006 Ed.) Chapter 15.100 tion agency to maximize the effectiveness of regional efforts to assist in the registration of pesticides for minor crops and minor uses and in providing for the availability of pesticides for emergency uses for the region and the state; and (5) Ensure that prior to approving any residue study that there is written confirmation of registrant support and willingness or ability to add the given minor crop to its label including any restrictions or guidelines the registrant intends to impose. [1999 c 247 § 3; 1995 c 390 § 3.] 15.92.105 15.92.105 Commission on pesticide registration— Report on activities—Review by legislature. By December 15, 2002, the commission shall file with the legislature a report on the activities supported by the commission for the period beginning on July 23, 1995, and ending on December 1, 2002. The report shall include an identification of: The priorities that have been set by the commission; the state appropriations made to Washington State University that have been within the jurisdiction of the commission; the evaluations, studies, and investigations funded in whole or in part by such moneys and the registrations and uses of pesticides made possible in large part by those evaluations, studies, and investigations; the matching moneys, in-kind services, and materials provided by agricultural organizations for those evaluations, studies, and investigations; and the program or programs for tracking pesticide availability provided by the laboratory under the guidance of the commission and the means used for providing this information to organizations of agricultural producers. During the regular session of the legislature in the year 2003, the appropriate committees of the house of representatives and senate shall evaluate the effectiveness of the commission in fulfilling its statutory responsibilities. [1995 c 390 § 6.] 15.92.110 15.92.110 Commission on pesticide registration— Receipt of gifts, grants, and endowments. The commission on pesticide registration, and Washington State University on behalf of the commission, may receive such gifts, grants, and endowments from public or private sources as may be used from time to time, in trust or otherwise, for the use and benefit of the commission and expend the same or any income therefrom according to the terms of the gifts, grants, or endowments. [1995 c 390 § 7.] Chapter 15.100 Chapter 15.100 RCW FOREST PRODUCTS COMMISSION Sections 15.100.010 15.100.020 15.100.030 15.100.040 15.100.043 15.100.050 15.100.060 15.100.070 15.100.080 15.100.090 Finding. Definitions. Washington forest products commission—Created—Membership—Quorum—Terms. Initial meeting—Nominations for initial election of members—Subsequent efforts when approval not given. Costs of proceeding to form a commission—Reimbursement. After initial election of members—Rules—Annual meetings—Public notice. Vacancies—Compensation. Obligations of commission—Limitations on liabilities or claims—State—Individual capacity. Powers and duties of commission. Research, promotional, and educational campaigns. [Title 15 RCW—page 175] 15.100.010 15.100.100 15.100.110 15.100.120 15.100.130 15.100.140 15.100.150 15.100.160 15.100.900 15.100.901 Title 15 RCW: Agriculture and Marketing List of all Washington producers—Confidential—Reporting system for assessment purposes. Assessment for permanent funding of commission—Adjustments—Referendum. Establishment of commission and initial assessment—Statewide referendum among producers. Deposit of moneys collected—Appropriation not required. Assessment—Personal debt—Payable when called—Failure to pay—Civil action. Enforcement of chapter. Superior courts—Jurisdiction. Construction. Severability—2001 c 314. 15.100.010 15.100.010 Finding. The legislature finds that the creation of a forest products commission would assist in expanding the state’s economy, because: (1) Marketing is a dynamic and changing part of the Washington forest products industry and a vital element in expanding the state economy; (2) The sale in the state and export to other states and abroad of forest products made in the state contribute substantial benefits to the economy of the state, provide a large number of jobs and sizeable tax revenues, and are key components of the health of many local communities because many secondary businesses are largely dependent on the health of the forest products industry; and (3) Forest products are made from a renewable resource and are more environmentally sound than many alternative products. [2001 c 314 § 1.] 15.100.020 15.100.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Commission" means the forest products commission. (2) "Department" means the department of agriculture. (3) "Director" means the director of the department of agriculture or the director’s authorized representative. (4) "Forest products" or "timber" means trees of any species maintained for eventual harvest whether planted or of natural growth, standing or down, on privately or publicly owned land, and also includes wood products related thereto, but does not include Christmas trees or other trees on which the timber excise tax provided under chapter 84.33 RCW is not imposed. (5) "Person" includes any individual, corporation, firm, partnership, trust, association, or any other organization of individuals. (6) "Producer" means any person who harvests timber in Washington state and pays the timber excise tax imposed under chapter 84.33 RCW on at least two million board feet in a calendar year or in four consecutive calendar quarters. (7) "Eastern Washington" means that portion of the state lying east of the Cascade mountain range. (8) "Western Washington" means that portion of the state lying west of the Cascade mountain range. [2001 c 314 § 2.] 15.100.030 15.100.030 Washington forest products commission—Created—Membership—Quorum—Terms. (1)(a) There is created a commodity commission to be known and designated as the Washington forest products commission. The commission is composed of nine voting members. The [Title 15 RCW—page 176] commission may, in its sole discretion, add or remove nonvoting ex officio members to the commission. Of the members, six shall be from western Washington, and three shall be from eastern Washington. After the initial election of commission members, however, if a position cannot be filled by a member from eastern Washington within sixty days from the date on which nominations may first be received because of a lack of candidates, the position may be filled by a member from western Washington. Under no circumstances will there be less than two board members from eastern Washington. If a position was filled by a member from western Washington because of a lack of candidates from eastern Washington, and districts are not used for the nomination and election of members, then a person from eastern Washington must fill the next available vacancy or open position at the next election to bring the number of representatives from eastern Washington up to three members. All members shall be elected by the entire group of producers unless the commission creates districts for the members as authorized in RCW 15.100.050. If districts are used for the nomination and election of commission members, and it does not appear that one of the positions from eastern Washington will be filled because of a lack of candidates, then a commission member who resides in western Washington must be elected by the entire group of producers as an at-large member. The position of the western Washington member who is elected as an at-large member shall be filled by a member from eastern Washington at the expiration of the term of the at-large member. If districts are not used for the nomination and election of members, the commission shall strive to achieve representation on the commission from the different geographic regions of the state. (b) Of the six members from western Washington, three members must have annual harvests of more than seventyfive million board feet, and three members must have annual harvests between two million board feet and seventy-five million board feet. (c) Of the two members from eastern Washington, one member must have an annual harvest greater than forty million board feet, and one member must have an annual harvest between two million board feet and forty million board feet. If there is a third member from eastern Washington, the only harvest requirement is that the member have an annual harvest of at least two million board feet. (2) The members must be citizens and residents of this state, and over the age of twenty-one years. Each member must currently, and for the five years last preceding his or her election, be actually engaged in producing forest products within the state of Washington, either individually or as an officer of a corporation, firm, partnership, trust, association, or business organization at the level of production required to qualify as a producer. Each member must also derive a substantial amount of his or her income from the production of forest products. The qualifications set forth in this section apply throughout each member’s term of office. (3) No more than one member of the commission may be employed by, or connected in a proprietary capacity with, the same corporation, firm, partnership, trust, association, or business organization. (4) Five voting members of the commission constitute a quorum for the transaction of all business and the carrying out of the duties of the commission. (2006 Ed.) Forest Products Commission (5) The regular term of office of the members is four years from November 1st following their election and until their successors are elected and qualified. However, the first terms of the members elected in the initial November 1st election is as follows: Positions one, four, and seven terminate on November 1st, two years after the initial election is held; positions two, five, and eight terminate on November 1st, three years after the initial election is held; and positions three, six, and nine terminate on November 1st, four years after the initial election is held. [2002 c 251 § 2; 2001 c 314 § 3.] 15.100.070 15.100.043 Costs of proceeding to form a commission—Reimbursement. The association responsible for giving the director notice under RCW 15.100.040 that substantial interest exists in forming a forest products commission shall reimburse the department for its costs associated with conducting a proceeding to initiate a commission under RCW 15.100.040 and 15.100.120. If the necessary approval is received for the creation of a commission, the commission shall reimburse the association for the costs paid to the department when funds become available. [2002 c 251 § 4.] 15.100.043 15.100.050 After initial election of members— Rules—Annual meetings—Public notice. (1) After the initial election of commission members, the commission shall establish rules for electing commission members, including the method used for notification, nominating, and voting. The commission may create commission districts and boundaries, and may also establish a weighted voting procedure for election of commission members. The commission shall hold its annual meeting during the month of October each year for the purpose of nominating commission members and the transaction of other business. Public notice of the meeting shall be given by the commission in the manner it determines is appropriate. A producer may on his or her own motion file his or her name with the commission for the purpose of receiving notice of the meeting. The nonreceipt of the notice by any interested person does not invalidate the proceedings. (2) Prior to the nomination of commission members, the department of revenue shall provide the commission with a list of all qualified producers within the state based upon tax records of the department. [2001 c 314 § 5.] 15.100.050 15.100.040 15.100.040 Initial meeting—Nominations for initial election of members—Subsequent efforts when approval not given. (1) The director shall call the initial meeting of producers of forest products for the purpose of nominating their respective members of the commission after receiving notice from an association representing producers of forest products that substantial interest exists in forming a forest products commission. Public notice of the meeting shall be given by the director in the manner the director determines is appropriate. A producer may on his or her own motion file his or her name with the director for the purpose of receiving notice of the meeting. The nonreceipt of the notice by any interested person does not invalidate the proceedings. (2) Prior to the nomination of commission members, the department of revenue shall provide the director with a list of all qualified producers within the state based upon tax records of the department. (3) For the initial election of commission members, any qualified producer may be nominated orally for a commissioner position at the meeting convened by the director. Nominations may also be made within five days prior to the meeting by a written petition filed with the department, signed by at least five producers who reside in the state. If the director determines that one of the positions from eastern Washington will go unfilled because of a lack of candidates, the director shall announce that this position shall be filled by a member from western Washington. If the position designated for eastern Washington is filled by a member from western Washington because of a lack of candidates from eastern Washington, this position shall be designated as position number seven by the director for purposes of RCW 15.100.030(5). Under no circumstances will there be less than two board members from eastern Washington. (4) The initial members of the commission shall be elected by secret mail ballot under the supervision of the director at the same time the referendum is submitted under RCW 15.100.120 calling for the creation of the commission and the imposition of the initial assessment. If a nominee does not receive a majority of the votes on the first ballot, a run-off election shall be held by mail in a similar manner between the two candidates for the position receiving the largest number of votes. (5) If the director determines under RCW 15.100.120(3) that the requisite approval for the establishment of a commission has not been given, any subsequent efforts to create a commission must follow the procedures established under this chapter for the initial nomination and election of members. [2002 c 251 § 3; 2001 c 314 § 4.] (2006 Ed.) 15.100.060 Vacancies—Compensation. (1) In the event a position becomes vacant due to resignation, disqualification, death, or for any other reason, the position until the next annual meeting shall be filled by vote of the remaining members of the commission. At the annual meeting a commissioner shall be elected to fill the balance of the unexpired term. (2) Each member of the commission shall be compensated in accordance with RCW 43.03.230 and shall be reimbursed for actual travel expenses incurred in carrying out the provisions of this chapter. Employees of the commission may also be reimbursed for actual travel expenses when on official commission business. [2001 c 314 § 6.] 15.100.060 15.100.070 Obligations of commission—Limitations on liabilities or claims—State—Individual capacity. Obligations incurred by the commission and liabilities or claims against the commission may be enforced only against the assets of the commission in the same manner as if it were a corporation and no liability for the debts or actions of the commission exists against either the state of Washington or any subdivision or instrumentality thereof or against any member, officer, employee, or agent of the commission in his or her individual capacity. The members of the commission, including employees of the commission, may not be held responsible individually or any way whatsoever to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employees, except for their own individual acts of dishonesty 15.100.070 [Title 15 RCW—page 177] 15.100.080 Title 15 RCW: Agriculture and Marketing or crime. A person or employee may not be held responsible individually for any act or omission of any other members of the commission. [2001 c 314 § 7.] 15.100.080 15.100.080 Powers and duties of commission. The powers and duties of the commission include: (1) To elect a chairman and such officers as the commission deems advisable. The commission shall adopt rules for its own governance, which provide for the holding of an annual meeting for the election of officers and transaction of other business and for such other meetings as the commission may direct; (2) To adopt any rules necessary to carry out the purposes of this chapter, in conformance with chapter 34.05 RCW; (3) To administer and do all things reasonably necessary to carry out the purposes of this chapter; (4) At the pleasure of the commission, to employ a treasurer who is responsible for all receipts and disbursements by the commission and the faithful discharge of whose duties shall be guaranteed by a bond at the sole expense of the commission; (5) At the pleasure of the commission, to employ and discharge managers, secretaries, agents, attorneys, and employees and to engage the services of independent contractors as the commission deems necessary, to prescribe their duties, and to fix their compensation; (6) To engage directly or indirectly in the promotion of Washington forest products and managed forests, and shall in the good faith judgment of the commission be in aid of the marketing, advertising, or sale of forest products, or of research related to such marketing, advertising, or sale of forest products, or of research related to managed forests; (7) To enforce the provisions of this chapter, including investigating and prosecuting violations of this chapter; (8) To acquire and transfer personal and real property, establish offices, incur expense, and enter into contracts. Contracts for creation and printing of promotional literature are not subject to chapter 43.78 RCW, but such contracts may be canceled by the commission unless performed under conditions of employment which substantially conform to the laws of this state and the rules of the department of labor and industries. The commission may create such debt and other liabilities as may be reasonable for proper discharge of its duties under this chapter; (9) To maintain such account or accounts with one or more qualified public depositaries as the commission may direct, to cause moneys to be deposited therein, and to expend moneys for purposes authorized by this chapter by drafts made by the commission upon such institutions or by other means; (10) To cause to be kept and annually closed, in accordance with generally accepted accounting principles, accurate records of all receipts, disbursements, and other financial transactions, available for audit by the state auditor; (11) To create and maintain a list of producers and to disseminate information among and solicit the opinions of producers with respect to the discharge of the duties of the commission, directly or by arrangement with trade associations or other instrumentalities; [Title 15 RCW—page 178] (12) To employ, designate as agent, act in concert with, and enter into contracts with any person, council, commission, or other entity for the purpose of promoting the general welfare of the forest products industry and particularly for the purpose of assisting in the sale and distribution of Washington forest products in domestic and foreign commerce, expending moneys as it may deem necessary or advisable for such purpose and for the purpose of paying its proportionate share of the cost of any program providing direct or indirect assistance to the sale and distribution of Washington forest products in domestic or foreign commerce, and employing and paying for vendors of professional services of all kinds; (13) To sue and be sued as a commission, without individual liability for acts of the commission within the scope of the powers conferred upon it by this chapter; (14) To propose assessment levels for producers subject to referendum approval under RCW 15.100.110; and (15) To participate in federal and state agency hearings, meetings, and other proceedings relating to the regulation, production, manufacture, distribution, sale, or use of forest products. [2001 c 314 § 8.] 15.100.090 15.100.090 Research, promotional, and educational campaigns. The commission shall create, provide for, and conduct a research, promotional, and educational campaign as sales and market conditions reasonably require. It shall investigate and ascertain the needs of producers, conditions of markets, and degree of public awareness of products, and take into account the information obtained in the discharge of its duties under this chapter. [2001 c 314 § 9.] 15.100.100 15.100.100 List of all Washington producers—Confidential—Reporting system for assessment purposes. (1) The commission shall cause a list to be prepared of all Washington producers of forest products from any information available from the commission, producers’ association, or producers, including tax records from the department of revenue. This list shall contain the names and addresses of all persons who produce forest products within this state, the amount of forest products produced during the period designated by the commission, and the assessment amount for each member. The list is considered confidential and may be reviewed only by the employees of the commission, except for information that may be disclosed to the public and commission members under subsection (4) of this section. A qualified person may, at any time, have his or her name placed upon the list by delivering or mailing the information to the commission. This list shall be corrected and brought up to date in accordance with evidence and information available to the commission on or before December 31st of each year, or as soon thereafter as possible. For all purposes of giving notice and holding referendums, the list on hand, corrected up to the day next preceding the date for issuing notices or ballots as the case may be, is, for purposes of this chapter, the list of all producers entitled to notice or to assent or dissent or to vote. (2) The commission shall develop a reporting system to document that the producers of forest products in this state are reporting quantities of forest products produced and subject to the assessment as provided in RCW 15.100.110. (2006 Ed.) Forest Products Commission (3) The department of revenue may charge the commission for the reasonable costs of providing reports of harvest activity on a quarterly basis. (4) Any taxpayer information received by the commission from the department of revenue may only be used for the limited purposes of establishing lists of producers necessary to determine eligibility for voting, eligibility for serving as a commission member, the amount of assessments owed, or other necessary purposes as established by law. Any return or tax information received from the department of revenue may be reviewed only by the employees of the commission. Employees may disclose to the public and commission members a list of commission members, groupings of at least three commission members by the amount of forest products harvested over any time period designated by the commission of at least one quarter, and the members who are eligible for the various positions on the commission. [2001 c 314 § 10.] 15.100.110 Assessment for permanent funding of commission—Adjustments—Referendum. (1) To provide for permanent funding of the forest products commission, an assessment shall be levied by the commission on producers of each species of forest products. The initial rate of assessment that shall be submitted for approval by referendum pursuant to RCW 15.100.120 is fifty-seven cents per thousand board feet. The initial assessment is not effective until approved by a majority of producers as required by RCW 15.100.120. (2) After the initial assessment rate is approved, the commission may adjust the amount of the assessment within a range of forty-five cents up to ninety cents per thousand board feet. The commission shall submit any proposed increase in the assessment to producers pursuant to the referendum process established in this section, and shall supply all known producers with a ballot for the referendum. The commission shall establish the assessment for the marketing year by January 1st of each year, or as soon thereafter as possible. Assessments may only be used for the purposes and objects of this chapter. (3) The forest products commission may raise the assessment on forest products in excess of the fiscal growth factor under chapter 43.135 RCW. The assessment limits established by this section are solely to provide prior legislative authority for the purposes of RCW 43.135.055 and are not a limit on the authority of the forest products commission to alter assessments in any manner not limited by RCW 43.135.055. However, any alteration in assessments made under this section must be made with the procedural requirements established by this chapter for altering such assessments. (4) The requirement for approval of an assessment is met if: (a) At least fifty-one percent by numbers of producers replying in the referendum vote affirmatively, and these producers represent at least sixty-one percent of the volume of the producers replying in the referendum; or (b) sixty-five percent by numbers of producers replying in the referendum vote affirmatively, and these producers represent at least fifty-one percent of the volume of the producers replying in the referendum. An assessment shall only be approved if at least forty percent of the eligible producers participate in the vote. [2001 c 314 § 11.] 15.100.110 (2006 Ed.) 15.100.160 15.100.120 15.100.120 Establishment of commission and initial assessment—Statewide referendum among producers. (1) For purposes of determining producer participation in the commission, the initial election of commissioners, and for imposition of the original assessment specified in RCW 15.100.110, the director shall conduct a referendum among all producers of forest products within the state. (2) The requirement for approval of the assessment and creation of the commission is met if: (a) At least fifty-one percent by numbers of producers replying in the referendum vote affirmatively, and these producers represent at least sixty-one percent of the volume of the producers replying in the referendum; or (b) sixty-five percent by numbers of producers replying in the referendum vote affirmatively, and these producers represent at least fifty-one percent of the volume of the producers replying in the referendum. The referendum shall only be approved if at least forty percent of the eligible producers participate in the vote. (3) If the director determines that the requisite approval has been given, the director shall declare the establishment of the commission and direct it to put into force the assessment authorized in RCW 15.100.110. If the director finds that the requisite approval has not been given, then this chapter is not operative. [2001 c 314 § 12.] 15.100.130 15.100.130 Deposit of moneys collected—Appropriation not required. The commission shall deposit moneys collected under RCW 15.100.110 in a separate account in the name of the commission in any bank that is a state depositary. All expenditures and disbursements made from this account under this chapter may be made without the necessity of a specific legislative appropriation. RCW 43.01.050 does not apply to this account or to the moneys received, collected, or expended under this chapter. [2001 c 314 § 13.] 15.100.140 15.100.140 Assessment—Personal debt—Payable when called—Failure to pay—Civil action. A due and payable assessment levied in the amount determined by the commission under RCW 15.100.110 constitutes a personal debt of every person so assessed, or who otherwise owes the assessment, and the assessment is due and payable to the commission when payment is called for by the commission. If a person fails to pay the commission the full amount of the assessment by the date due, the commission may add to the unpaid assessment an amount not exceeding ten percent of the assessment to defray the cost of enforcing its collection. If the person fails to pay any due and payable assessment or other such sum, the commission may bring a civil action for collection against the person or persons in a court of competent jurisdiction. The action shall be tried and judgment rendered as in any other cause of action for a debt due and payable. [2001 c 314 § 14.] 15.100.150 15.100.150 Enforcement of chapter. All county and state law enforcement officers shall assist in the enforcement of this chapter. [2001 c 314 § 15.] 15.100.160 15.100.160 Superior courts—Jurisdiction. The superior courts are hereby vested with jurisdiction to enforce this [Title 15 RCW—page 179] 15.100.900 Title 15 RCW: Agriculture and Marketing chapter and the rules of the commission, and to prevent and restrain violations thereof. [2001 c 314 § 16.] 15.100.900 Construction. This chapter shall be liberally construed to effectuate its purposes. [2001 c 314 § 17.] 15.100.900 15.100.901 Severability—2001 c 314. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2001 c 314 § 22.] 15.100.901 Chapter 15.105 RCW FROM THE HEART OF WASHINGTON PROGRAM Chapter 15.105 carrying out the from the heart of Washington program that is now part of the department. The private, nonprofit corporation must qualify as a tax-exempt, nonprofit corporation under section 501(c) of the federal internal revenue code; the majority of members on its board of directors must be from Washington commodity commissions, nonprofit associations organized for the promotion of Washington agricultural products, and other agricultural industry groups; and the corporation must carry forward with the work of the current program. (3) "Department" means the Washington state department of agriculture. (4) "Director" means the director of the Washington state department of agriculture. (5) "Fiscal agent" means the Washington state fruit commission, as a contractor of the department. [2004 c 26 § 2.] Sections 15.105.005 15.105.010 15.105.020 15.105.030 15.105.040 15.105.050 15.105.060 15.105.900 15.105.901 Findings. Definitions. Establishing a private, nonprofit corporation—Duties of successor organization—Debts and other liabilities. Actions by department to establish a successor organization. Board of directors of the successor organization—State membership. Program logo. Gifts, grants, or endowments. Severability—2004 c 26. Effective date—2004 c 26. 15.105.005 15.105.005 Findings. The legislature finds that the support of Washington’s agriculture industry and its family farms by the citizens of the state of Washington is beneficial to the economy of the state. The legislature also finds that Washington farmers produce a variety of wholesome, quality products and are good stewards of the land. The legislature also finds that the from the heart of Washington program, developed by the Washington state department of agriculture with one-time federal grant moneys, is a valuable tool to convey important messages about Washington agriculture and to encourage Washington citizens to buy Washington-grown and Washington-processed food and agricultural products. With the exhaustion of the one-time federal grant funding, the legislature finds that the program would benefit from a new governance structure that will allow the necessary operational flexibility to enable the program to expand and to encourage private investment in the program, and that the continuance of the program as a private, nonprofit corporation is the best method to achieve these goals. The legislature further finds that the continuation of the from the heart of Washington program will provide both direct and indirect economic benefits to the people of the state of Washington. [2004 c 26 § 1.] 15.105.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "From the heart of Washington" or "program" means that program created by the department to encourage Washington citizens to purchase Washington food and agricultural products and to promote the value of agriculture and family farms to Washington state. (2) "Successor organization" means a private, nonprofit corporation created specifically to assume responsibility for 15.105.010 [Title 15 RCW—page 180] 15.105.020 15.105.020 Establishing a private, nonprofit corporation—Duties of successor organization—Debts and other liabilities. (1) The department may cooperate with other agencies, boards, commissions, and associations in the state of Washington to establish a private, nonprofit corporation for the purpose of carrying out the program. The nonprofit corporation must be organized under chapter 24.03 RCW and has the powers granted under that chapter. However, this chapter does not prohibit the department or other agencies, boards, commissions, and associations from separately continuing to promote Washington products under their existing authorities. (2) The department may contract with the successor organization to carry out the program. The contract must require the successor organization to aggressively seek to fund its continued operation from nonstate funding sources. (3) The successor organization must report to the department each January 1st on the amounts it has secured from both nonstate and state funding sources, its operations, and its programs. (4) Debts and other liabilities of the successor organization are successor organization debts and liabilities only and may be satisfied only from the resources of the successor organization. The state of Washington is not liable for the debts or liabilities of the successor organization. [2004 c 26 § 3.] 15.105.030 15.105.030 Actions by department to establish a successor organization. In order to accomplish the establishment of a successor organization, the department and its fiscal agent may take all necessary and proper steps, including: (1) Transferring any equipment, software, data base, other assets except the logo of the program, or contracts for services to the successor organization under appropriate terms and conditions, including reasonable compensation deemed appropriate by the department. The department shall retain the right to repossess any property transferred to the successor organization in the event that the successor organization dissolves, becomes bankrupt, insolvent, or is otherwise unable to carry out the program, or if the successor organization fails to comply with any contract with the department. In the event that the department exercises its right to repossess under this section, any property returned to the (2006 Ed.) Energy Freedom Program department becomes the property of the state and is administered by the department; (2) Unless otherwise provided by agreement, assigning any contracts and other duties and responsibilities to the successor organization related to the program; and (3) Providing necessary support services to the successor organization under contract for up to a two-year period after the effective date of a contract between a successor organization and the department for the delivery of program services. The successor organization shall provide full reimbursement for all costs of services contracted for under this subsection. [2004 c 26 § 4.] 15.105.040 15.105.040 Board of directors of the successor organization—State membership. (1) The department shall designate one or more persons to serve in the capacity of a member of the board of directors of the successor organization. The state is not liable under any circumstances for the acts of the successor organization, any member of its board of directors, or its employees. (2) The department may pay an annual membership fee to the successor organization not to exceed the value of services received. [2004 c 26 § 5.] 15.105.050 15.105.050 Program logo. The logo of the program is the property of the department. The department may license the use of the logo to the successor organization and others, as it deems appropriate. The department retains the right to cancel any license to use the logo. [2004 c 26 § 6.] 15.105.060 15.105.060 Gifts, grants, or endowments. The department may receive gifts, grants, or endowments from private or public sources that are made from time to time, in trust or otherwise, for the use and benefit of the purposes of the program. The department may spend or contract with the successor organization to spend the gifts, grants, or endowments or income from the private or public sources according to their terms. [2004 c 26 § 7.] 15.105.900 15.105.900 Severability—2004 c 26. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2004 c 26 § 8.] 15.105.901 15.105.901 Effective date—2004 c 26. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 19, 2004]. [2004 c 26 § 10.] 15.110.060 15.110.900 15.110.901 15.110.010 Director’s report. Expiration date—Transfer of moneys—2006 c 171 §§ 1-7. Severability—2006 c 171. 15.110.005 15.110.005 Findings—2006 c 171. (Expires June 30, 2016.) The legislature finds that: (1) Washington’s dependence on energy supplied from outside the state and volatile global energy markets makes its economy and citizens vulnerable to unpredictable and high energy prices; (2) Washington’s dependence on petroleum-based fuels increases energy costs for citizens and businesses; (3) Diesel soot from diesel engines ranks as the highest toxic air pollutant in Washington, leading to hundreds of premature deaths and increasing rates of asthma and other lung diseases; (4) The use of biodiesel results in significantly less air pollution than traditional diesel fuels; (5) Improper disposal and treatment of organic waste from farms and livestock operations can have a significant negative impact on water quality; (6) Washington has abundant supplies of organic wastes from farms that can be used for energy production and abundant farmland where crops could be grown to supplement or supplant petroleum-based fuels; (7) The use of energy and fuel derived from these sources can help citizens and businesses conserve energy and reduce the use of petroleum-based fuels, would improve air and water quality in Washington, reduce environmental risks from farm wastes, create new markets for farm products, and provide new industries and jobs for Washington citizens; (8) The bioenergy industry is a new and developing industry that is, in part, limited by the availability of capital for the construction of facilities for converting farm and forest products into energy and fuels; (9) Instead of leaving our economy at the mercy of global events, and the policies of foreign nations, Washington state should adopt a policy of energy independence; and (10) The energy freedom program is meant to lead Washington state towards energy independence. Therefore, the legislature finds that it is in the public interest to encourage the rapid adoption and use of bioenergy, to develop a viable bioenergy industry within Washington state, to promote public research and development in bioenergy sources and markets, and to support a viable agriculture industry to grow bioenergy crops. To accomplish this, the energy freedom program is established to promote public research and development in bioenergy, and to stimulate the construction of facilities in Washington to generate energy from farm sources or convert organic matter into fuels. [2006 c 171 § 1.] 15.110.010 Chapter 15.110 Chapter 15.110 RCW ENERGY FREEDOM PROGRAM Sections 15.110.005 15.110.010 15.110.020 15.110.030 15.110.040 15.110.050 (2006 Ed.) Findings—2006 c 171. Definitions. Establishing the energy freedom program. Suspension or cancellation of assistance. Applications—Criteria. Energy freedom account. 15.110.010 Definitions. (Expires June 30, 2016.) The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Applicant" means any political subdivision of the state, including port districts, counties, cities, towns, special purpose districts, and other municipal corporations or quasimunicipal corporations. "Applicant" may also include federally recognized tribes and state institutions of higher education with appropriate research capabilities. [Title 15 RCW—page 181] 15.110.020 Title 15 RCW: Agriculture and Marketing (2) "Assistance" includes loans, leases, product purchases, or other forms of financial or technical assistance. (3) "Department" means the department of agriculture. (4) "Director" means the director of the department of agriculture. (5) "Peer review committee" means a board, appointed by the director, that includes bioenergy specialists, energy conservation specialists, scientists, and individuals with specific recognized expertise. (6) "Project" means the construction of facilities, including the purchase of equipment, to convert farm products or wastes into electricity or gaseous or liquid fuels or other coproducts associated with such conversion. These specifically include fixed or mobile facilities to generate electricity or methane from the anaerobic digestion of organic matter, and fixed or mobile facilities for extracting oils from canola, rape, mustard, and other oilseeds. "Project" may also include the construction of facilities associated with such conversion for the distribution and storage of such feedstocks and fuels. (7) "Research and development project" means research and development, by an institution of higher education as defined in subsection (1) of this section, relating to: (a) Bioenergy sources including but not limited to biomass and associated gases; or (b) The development of markets for bioenergy coproducts. [2006 c 171 § 2.] 15.110.020 Establishing the energy freedom program. (Expires June 30, 2016.) (1) The energy freedom program is established within the department. The director may establish policies and procedures necessary for processing, reviewing, and approving applications made under this chapter. (2) When reviewing applications submitted under this program, the director shall consult with those agencies having expertise and knowledge to assess the technical and business feasibility of the project and probability of success. These agencies may include, but are not limited to, Washington State University, the University of Washington, the department of ecology, the department of community, trade, and economic development, and the Washington state conservation commission. (3) The director, in cooperation with the department of community, trade, and economic development, may approve an application only if the director finds: (a) The project will convert farm products or wastes directly into electricity or into gaseous or liquid fuels or other coproducts associated with such conversion; (b) The project demonstrates technical feasibility and directly assists in moving a commercially viable project into the marketplace for use by Washington state citizens; (c) The facility will produce long-term economic benefits to the state, a region of the state, or a particular community in the state; (d) The project does not require continuing state support; (e) The assistance will result in new jobs, job retention, or higher incomes for citizens of the state; (f) The state is provided an option under the assistance agreement to purchase a portion of the fuel or feedstock to be produced by the project, exercisable by the department of general administration; 15.110.020 [Title 15 RCW—page 182] (g) The project will increase energy independence or diversity for the state; (h) The project will use feedstocks produced in the state, if feasible, except this criterion does not apply to the construction of facilities used to distribute and store fuels that are produced from farm products or wastes; (i) Any product produced by the project will be suitable for its intended use, will meet accepted national or state standards, and will be stored and distributed in a safe and environmentally sound manner; (j) The application provides for adequate reporting or disclosure of financial and employment data to the director, and permits the director to require an annual or other periodic audit of the project books; and (k) For research and development projects, the application has been independently reviewed by a peer review committee as defined in RCW 15.110.010 and the findings delivered to the director. (4) The director may approve an application for assistance up to five million dollars. In no circumstances shall this assistance constitute more than fifty percent of the total project cost. (5) The director shall enter into agreements with approved applicants to fix the terms and rates of the assistance to minimize the costs to the applicants, and to encourage establishment of a viable bioenergy industry. The agreement shall include provisions to protect the state’s investment, including a requirement that a successful applicant enter into contracts with any partners that may be involved in the use of any assistance provided under this program, including services, facilities, infrastructure, or equipment. Contracts with any partners shall become part of the application record. (6) The director may defer any payments for up to twenty-four months or until the project starts to receive revenue from operations, whichever is sooner. [2006 c 171 § 3.] 15.110.030 15.110.030 Suspension or cancellation of assistance. (Expires June 30, 2016.) (1) Upon written notice to the recipient of any assistance under this program, the director may suspend or cancel the assistance if any of the following occur: (a) The recipient fails to make satisfactory and reasonable progress to complete the project, or the director concludes the recipient will be unable to complete the project or any portion of it; or (b) The recipient has made misrepresentations in any information furnished to the director in connection with the project. (2) In the event that any assistance has been awarded to the recipient under this program at the time of breach, or failure of the recipient to satisfactorily perform, the director may require that the full amount or value of the assistance, or a portion thereof, be repaid within a period specified by the director. [2006 c 171 § 4.] 15.110.040 15.110.040 Applications—Criteria. (Expires June 30, 2016.) If the total requested dollar amount of assistance exceeds the amount available in the energy freedom account (2006 Ed.) Energy Freedom Program 15.110.901 created in RCW 15.110.050, the applications must be prioritized based upon the following criteria: (1) The extent to which the project will help reduce dependence on petroleum fuels and imported energy either directly or indirectly; (2) The extent to which the project will reduce air and water pollution either directly or indirectly; (3) The extent to which the project will establish a viable bioenergy production capacity in Washington; (4) The benefits to Washington’s agricultural producers; and (5) The number and quality of jobs and economic benefits created by the project. [2006 c 171 § 5.] 15.110.050 15.110.050 Energy freedom account. (Expires June 30, 2016.) The energy freedom account is created in the state treasury. All receipts from appropriations made to the account and any loan payments of principal and interest derived from loans made under this chapter must be deposited into the account. Moneys in the account may be spent only after appropriation. Expenditures from the account may be used only for assistance for projects consistent with this chapter or otherwise authorized by the legislature. Administrative costs of the department may not exceed three percent of the total funds available for this program. [2006 c 371 § 223; 2006 c 171 § 6.] Part headings not law—2006 c 371: "Part headings in this act are not any part of the law." [2006 c 371 § 240.] Severability—2006 c 371: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2006 c 371 § 241.] Effective date—2006 c 371: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 31, 2006]." [2006 c 371 § 242.] 15.110.060 15.110.060 Director’s report. (Expires June 30, 2016.) The director shall report to the legislature and governor on the status of the energy freedom program created under this chapter, on or before December 1, 2006, and annually thereafter. This report must include information on the projects that have been funded, the status of these projects, and their environmental, energy savings, and job creation benefits. [2006 c 171 § 7.] 15.110.900 15.110.900 Expiration date—Transfer of moneys— 2006 c 171 §§ 1-7. Sections 1 through 7 of this act expire June 30, 2016. Any moneys in the energy freedom account on that date and any moneys received pursuant to assistance made under this chapter must be deposited in the general fund. [2006 c 171 § 11.] 15.110.901 15.110.901 Severability—2006 c 171. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2006 c 171 § 15.] (2006 Ed.) [Title 15 RCW—page 183] Title 16 Title 16 ANIMALS AND LIVESTOCK (Formerly: Animals, estrays, brands, and fences) Chapters 16.04 16.08 16.10 16.24 16.36 16.38 16.49 16.50 16.52 16.54 16.57 16.58 16.60 16.65 16.67 16.68 16.70 16.72 Trespass of animals—General. Dogs. Dogs—Licensing—Dog control zones. Stock restricted areas. Animal health. Livestock diseases—Diagnostic service program. Custom slaughtering. Humane slaughter of livestock. Prevention of cruelty to animals. Abandoned animals. Identification of livestock. Identification of cattle through licensing of certified feed lots. Fences. Public livestock markets. Washington state beef commission. Disposal of dead animals. Control of pet animals infected with diseases communicable to humans. Fur farming. Agister and trainer liens: Chapter 60.56 RCW. Carrier or racing pigeons—Injury to: RCW 9.61.190 and 9.61.200. Control of predatory birds injurious to agriculture: RCW 15.04.110, 15.04.120. "Coyote getters" may be used to control coyotes: RCW 9.41.185. Director of agriculture: Chapter 43.23 RCW. Dog guide or service animal, interfering with: RCW 9.91.170. Dog license tax, counties: Chapter 36.49 RCW. Grazing ranges: Chapter 79.13 RCW, RCW 79.10.125. Harming a police dog or police horse: RCW 9A.76.200. Killing of person by vicious animal: RCW 9A.32.070. Larcenous appropriation of livestock: Chapter 9A.56 RCW. Milk and milk products for animal food: Chapter 15.37 RCW. Nuisances, agricultural activities: RCW 7.48.300 through 7.48.310. Race horses: Chapter 67.16 RCW. Stealing horses or cattle as larceny: Chapter 9A.56 RCW. Chapter 16.04 Chapter 16.04 RCW TRESPASS OF ANIMALS—GENERAL Sections 16.04.005 16.04.010 16.04.015 16.04.020 16.04.025 16.04.030 16.04.040 16.04.045 16.04.050 16.04.060 16.04.070 16.04.080 16.04.100 (2006 Ed.) Liability for damages—Restraint—Notice. Trespassing animals—Restraint—Damages and costs. Damages, liability. Notice of restraint—Owner known. Owner of animals unknown—Procedure. Actions for damages. Jurisdiction—Appeal. Continuance. Substituted service. Sale—When costs may be charged to plaintiff. Surplus—Disposition. Stock on United States military reservation. Trespass via fence damaged by wildlife. Dangerous dogs: RCW 16.08.070 through 16.08.100. Disturbance on public highway: RCW 9A.84.030. Fences: Chapter 16.60 RCW. 16.04.005 Liability for damages—Restraint—Notice. See RCW 16.60.015. 16.04.005 16.04.010 Trespassing animals—Restraint—Damages and costs. Any person suffering damage done by any horses, mules, donkeys, cattle, goats, sheep, swine, or any such animals, which shall either trespass upon any land enclosed by lawful fence as provided in chapter 16.60 RCW or trespass while running at large in violation of chapter 16.24 RCW may retain and keep in custody such offending animals until the owner or person having possession of such animals shall pay such damage and costs, or until good and sufficient security be given for the same. [1989 c 286 § 1; 1925 ex.s. c 56 § 1; 1893 c 31 § 1; RRS § 3090.] 16.04.010 Severability—1989 c 286: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1989 c 286 § 26.] Damages to stock on unfenced railroad: RCW 81.52.050 through 81.52.070. Pleading answer in action to recover property distrained: RCW 4.36.140. 16.04.015 Damages, liability. Except as provided under RCW 16.04.100, whenever any animals trespass as provided in RCW 16.04.010, the owner or person having possession of such animal shall be liable for all damages the owner or occupant may sustain by reason of such trespass. [1994 c 263 § 1; 1989 c 286 § 2.] 16.04.015 Severability—1989 c 286: See note following RCW 16.04.010. 16.04.020 Notice of restraint—Owner known. Whenever any animals are restrained as provided in RCW 16.04.010, the person restraining such animals shall within twenty-four hours thereafter notify in writing the owner, or person in whose custody the same was at the time the trespass was committed, of the seizure of such animals, and the probable amount of the damages sustained: PROVIDED, He knows to whom such animals belong. [1893 c 31 § 2; RRS § 3091. FORMER PART OF SECTION: 1925 ex.s. c 56 § 2; 1893 c 31 § 3; RRS § 3092, now codified as RCW 16.04.025.] 16.04.020 16.04.025 Owner of animals unknown—Procedure. If the owner or the person having in charge or possession such animals is unknown to the person sustaining the damage, the person retaining such animals shall, within twentyfour hours, notify the county sheriff or the nearest state brand inspector as to the number, description, and location of the animals. The county sheriff or brand inspector shall examine 16.04.025 [Title 16 RCW—page 1] 16.04.030 Title 16 RCW: Animals and Livestock the animals by brand, tattoo, or other identifying characteristics and attempt to ascertain ownership. If the animal is marked with a brand or tattoo which is registered with the director of agriculture, the brand inspector or county sheriff shall furnish this information and other pertinent information to the person holding the animals who in turn shall send the notice required in RCW 16.04.020 to the animals’ owner of record by certified mail. If the county sheriff or the brand inspector determines that there is no apparent damage to the property of the person retaining the animals, or if the person sustaining the damage contacts the county sheriff or brand inspector to have the animals removed from his or her property, such animals shall be removed in accordance with chapter 16.24 RCW. Such removal shall not prejudice the property owner’s ability to recover damages through civil suit. [1989 c 286 § 21; 1985 c 415 § 24; 1925 ex.s. c 56 § 2; 1893 c 31 § 3; RRS § 3092. Formerly RCW 16.04.020, part.] Severability—1989 c 286: See note following RCW 16.04.010. 16.04.030 16.04.030 Actions for damages. If the owner or person having such animals in charge fails or refuses to pay the damages done by such animals, and the costs, or give satisfactory security for the same within twenty-four hours from the time the notice was served, if served personally, or in case of horses, mares, mules and asses, within twenty-four hours from the time such notice was posted, if served by posting the same, and in case of cattle, goats, sheep and swine within ten days from the time of such posting, the person damaged may commence a suit, before any court having jurisdiction thereof, against the owner of such animals, or against the persons having the same in charge, or possession, when the trespass was committed, if known; and if unknown the defendant shall be designated as John Doe, and the proceedings shall be the same in all respects as in other civil actions, except as modified in RCW 16.04.010 through 16.04.070. If such suit is commenced in superior court the summons shall require the defendant to appear within five days from the date of service of such summons, if served personally. [1925 ex.s. c 56 § 3; 1893 c 31 § 4; RRS § 3093.] 16.04.040 16.04.040 Jurisdiction—Appeal. District judges shall have exclusive jurisdiction of all actions and proceedings under RCW 16.04.010 through 16.04.070 when the damages claimed do not exceed one hundred dollars: PROVIDED, HOWEVER, That any party considering himself or herself aggrieved shall have the right of appeal to the superior court as in other cases. [1987 c 202 § 177; 1893 c 31 § 9; RRS § 3098.] Intent—1987 c 202: See note following RCW 2.04.190. 16.04.045 16.04.045 Continuance. If upon the trial it appears that the defendant is not the owner or person in charge of such offending animals, the case shall be continued, and proceedings had as in RCW 16.04.050 provided, if the proper defendant be unknown to plaintiff. [1893 c 31 § 6; RRS § 3095. Formerly RCW 16.04.050, part.] 16.04.050 16.04.050 Substituted service. If the owner or keeper of such offending animals is unknown to plaintiff at the com[Title 16 RCW—page 2] mencement of the action, or if on the trial it appears that the defendant is not the proper party, defendant, and the proper party is unknown, service of the summons or notice shall be made by publication, by publishing a copy of the summons or notice, with a notice attached, stating the object of the action and giving a description of the animals seized, in a newspaper of general circulation in the area where the plaintiff resides less than ten days previous to the day of trial. [1985 c 469 § 8; 1893 c 31 § 7; RRS § 3096. FORMER PART OF SECTION: 1893 c 31 § 6; RRS § 3095, now codified as RCW 16.04.045.] 16.04.060 16.04.060 Sale—When costs may be charged to plaintiff. Upon the trial of an action as herein provided [RCW 16.04.010 through 16.04.070] the plaintiff shall prove the amount of damages sustained and the amount of expenses incurred for keeping the offending animals, and any judgment rendered for damages, costs, and expenses against the defendant shall be a lien upon such animals committing the damage, and the same may be sold and the proceeds shall be applied in full satisfaction of the judgment as in other cases of sale of personal property on execution: PROVIDED, That no judgment shall be continued against the defendant for any deficiency over the amount realized on the sale of such animals, if it shall appear upon the trial that no damage was sustained, or that a tender was made and paid into court of an amount equal to the damage and costs, then judgment shall be rendered against the plaintiff for costs of suit and damage sustained by defendant. [1893 c 31 § 5; RRS § 3094.] 16.04.070 16.04.070 Surplus—Disposition. If when such animals are sold, there remains a surplus of money, over the amount of the judgment and costs, it shall be deposited with the county treasurer, by the officer making the sale, and if the owner of such animals does not appear and call for the same, within six months from the day of sale, it shall be paid into the school fund, for the use of the public schools of said county. [1893 c 31 § 8; RRS § 3097.] 16.04.080 16.04.080 Stock on United States military reservation. It shall be unlawful for the owner of any livestock to allow such livestock to run at large or be upon any United States military reservation upon which field artillery firing or other target practice with military weapons is conducted. Any owner who permits livestock to run at large or be upon any such reservation shall do so at the risk of such owner and such owner shall have no claim for damages if such livestock is injured or destroyed while so running at large on such reservation: PROVIDED, HOWEVER, That the commanding officer of any such United States military reservation may issue permits for specific areas and for specific periods of time when firing will not be conducted thereon authorizing the owner of such livestock to permit the same to run at large or be upon any such military reservation. [1937 c 101 § 1; RRS § 3068-1.] 16.04.100 16.04.100 Trespass via fence damaged by wildlife. If damages are caused by a trespassing animal, neither the state nor the owner of the animal shall be liable if the owner of the animal can prove that the trespass is due to damage caused by (2006 Ed.) Dogs wildlife to a lawful fence and, in a stock restricted area, the owner of the animal did not have a reasonable opportunity to repair the fence. The state shall pay all costs of transportation, advertising, legal proceedings, and keep of an animal that has been restrained pursuant to RCW 16.04.010. Claims filed under this section shall be processed according to the procedures under chapter 4.92 RCW. [1994 c 263 § 3.] Chapter 16.08 Chapter 16.08 RCW DOGS (Formerly: Dangerous dogs) Sections 16.08.010 16.08.020 16.08.030 16.08.040 16.08.050 16.08.060 16.08.070 16.08.080 16.08.090 16.08.100 16.08.010 Liability for injury to stock by dogs. The owner or keeper of any dog shall be liable to the owner of any animal killed or injured by such dog for the amount of damages sustained and costs of collection, to be recovered in a civil action. [1985 c 415 § 14; 1929 c 198 § 5; RRS § 3106. Prior: 1919 c 6 § 5; RCS § 3106.] 16.08.020 16.08.020 Dogs injuring stock may be killed. It shall be lawful for any person who shall see any dog or dogs chasing, biting, injuring or killing any sheep, swine or other domestic animal, including poultry, belonging to such person, on any real property owned or leased by, or under the control of, such person, or on any public highway, to kill such dog or dogs, and it shall be the duty of the owner or keeper of any dog or dogs so found chasing, biting or injuring any domestic animal, including poultry, upon being notified of that fact by the owner of such domestic animals or poultry, to thereafter keep such dog or dogs in leash or confined upon the premises of the owner or keeper thereof, and in case any such owner or keeper of a dog or dogs shall fail or neglect to comply with the provisions of this section, it shall be lawful for the owner of such domestic animals or poultry to kill such dog or dogs found running at large. [1929 c 198 § 6; RRS § 3107. Prior: 1919 c 6 § 6; 1917 c 161 § 6; RCS § 3107.] 16.08.030 Marauding dog—Duty of owner to kill. It shall be the duty of any person owning or keeping any dog or dogs which shall be found killing any domestic animal to kill such dog or dogs within forty-eight hours after being notified of that fact, and any person failing or neglecting to comply with the provisions of this section shall be deemed guilty of a misdemeanor, and it shall be the duty of the sheriff or any deputy sheriff to kill any dog found running at large (after the first day of August of any year and before the first day of March in the following year) without a metal identification (2006 Ed.) tag. [1929 c 198 § 7; RRS § 3108. Prior: 1919 c 6 § 7; 1917 c 161 § 7; RCS § 3108.] 16.08.040 16.08.040 Dog bites—Liability. The owner of any dog which shall bite any person while such person is in or on a public place or lawfully in or on a private place including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness. [1941 c 77 § 1; Rem. Supp. 1941 § 3109-1.] 16.08.050 Liability for injury to stock by dogs. Dogs injuring stock may be killed. Marauding dog—Duty of owner to kill. Dog bites—Liability. Entrance on private property, when lawful. Provocation as a defense. Dangerous dogs and related definitions. Dangerous dogs—Notice to owners—Right of appeal—Certificate of registration required—Surety bond—Liability insurance—Restrictions. Dangerous dogs—Requirements for restraint—Potentially dangerous dogs—Dogs not declared dangerous. Dangerous dogs—Confiscation—Conditions—Duties of animal control authority—Penalties and affirmative defenses for owners of dogs that attack—Dog fights, penalty. 16.08.010 16.08.030 16.08.070 16.08.050 Entrance on private property, when lawful. A person is lawfully upon the private property of such owner within the meaning of RCW 16.08.040 when such person is upon the property of the owner with the express or implied consent of the owner: PROVIDED, That said consent shall not be presumed when the property of the owner is fenced or reasonably posted. [1979 c 148 § 1; 1941 c 77 § 2; Rem. Supp. 1941 § 3109-2.] 16.08.060 16.08.060 Provocation as a defense. Proof of provocation of the attack by the injured person shall be a complete defense to an action for damages. [1941 c 77 § 3; Rem. Supp. 1941 § 3109-3.] 16.08.070 16.08.070 Dangerous dogs and related definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout RCW 16.08.070 through 16.08.100. (1) "Potentially dangerous dog" means any dog that when unprovoked: (a) Inflicts bites on a human or a domestic animal either on public or private property, or (b) chases or approaches a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, or any dog with a known propensity, tendency, or disposition to attack unprovoked, to cause injury, or to cause injury or otherwise to threaten the safety of humans or domestic animals. (2) "Dangerous dog" means any dog that (a) inflicts severe injury on a human being without provocation on public or private property, (b) kills a domestic animal without provocation while the dog is off the owner’s property, or (c) has been previously found to be potentially dangerous because of injury inflicted on a human, the owner having received notice of such and the dog again aggressively bites, attacks, or endangers the safety of humans. (3) "Severe injury" means any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery. (4) "Proper enclosure of a dangerous dog" means, while on the owner’s property, a dangerous dog shall be securely confined indoors or in a securely enclosed and locked pen or structure, suitable to prevent the entry of young children and designed to prevent the animal from escaping. Such pen or structure shall have secure sides and a secure top, and shall also provide protection from the elements for the dog. (5) "Animal control authority" means an entity acting alone or in concert with other local governmental units for [Title 16 RCW—page 3] 16.08.080 Title 16 RCW: Animals and Livestock enforcement of the animal control laws of the city, county, and state and the shelter and welfare of animals. (6) "Animal control officer" means any individual employed, contracted with, or appointed by the animal control authority for the purpose of aiding in the enforcement of this chapter or any other law or ordinance relating to the licensure of animals, control of animals, or seizure and impoundment of animals, and includes any state or local law enforcement officer or other employee whose duties in whole or in part include assignments that involve the seizure and impoundment of any animal. (7) "Owner" means any person, firm, corporation, organization, or department possessing, harboring, keeping, having an interest in, or having control or custody of an animal. [2002 c 244 § 1; 1987 c 94 § 1.] Severability—1987 c 94: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1987 c 94 § 6.] 16.08.080 16.08.080 Dangerous dogs—Notice to owners— Right of appeal—Certificate of registration required— Surety bond—Liability insurance—Restrictions. (1) Any city or county that has a notification and appeal procedure with regard to determining a dog within its jurisdiction to be dangerous may continue to utilize or amend its procedure. A city or county animal control authority that does not have a notification and appeal procedure in place as of June 13, 2002, and seeks to declare a dog within its jurisdiction, as defined in subsection (7) of this section, to be dangerous must serve notice upon the dog owner in person or by regular and certified mail, return receipt requested. (2) The notice must state: The statutory basis for the proposed action; the reasons the authority considers the animal dangerous; a statement that the dog is subject to registration and controls required by this chapter, including a recitation of the controls in subsection (6) of this section; and an explanation of the owner’s rights and of the proper procedure for appealing a decision finding the dog dangerous. (3) Prior to the authority issuing its final determination, the authority shall notify the owner in writing that he or she is entitled to an opportunity to meet with the authority, at which meeting the owner may give, orally or in writing, any reasons or information as to why the dog should not be declared dangerous. The notice shall state the date, time, and location of the meeting, which must occur prior to expiration of fifteen calendar days following delivery of the notice. The owner may propose an alternative meeting date and time, but such meeting must occur within the fifteen-day time period set forth in this section. After such meeting, the authority must issue its final determination, in the form of a written order, within fifteen calendar days. In the event the authority declares a dog to be dangerous, the order shall include a recital of the authority for the action, a brief concise statement of the facts that support the determination, and the signature of the person who made the determination. The order shall be sent by regular and certified mail, return receipt requested, or delivered in person to the owner at the owner’s last address known to the authority. (4) If the local jurisdiction has provided for an administrative appeal of the final determination, the owner must fol[Title 16 RCW—page 4] low the appeal procedure set forth by that jurisdiction. If the local jurisdiction has not provided for an administrative appeal, the owner may appeal a municipal authority’s final determination that the dog is dangerous to the municipal court, and may appeal a county animal control authority’s or county sheriff’s final determination that the dog is dangerous to the district court. The owner must make such appeal within twenty days of receiving the final determination. While the appeal is pending, the authority may order that the dog be confined or controlled in compliance with RCW 16.08.090. If the dog is determined to be dangerous, the owner must pay all costs of confinement and control. (5) It is unlawful for an owner to have a dangerous dog in the state without a certificate of registration issued under this section. This section and RCW 16.08.090 and 16.08.100 shall not apply to police dogs as defined in RCW 4.24.410. (6) Unless a city or county has a more restrictive code requirement, the animal control authority of the city or county in which an owner has a dangerous dog shall issue a certificate of registration to the owner of such animal if the owner presents to the animal control unit sufficient evidence of: (a) A proper enclosure to confine a dangerous dog and the posting of the premises with a clearly visible warning sign that there is a dangerous dog on the property. In addition, the owner shall conspicuously display a sign with a warning symbol that informs children of the presence of a dangerous dog; (b) A surety bond issued by a surety insurer qualified under chapter 48.28 RCW in a form acceptable to the animal control authority in the sum of at least two hundred fifty thousand dollars, payable to any person injured by the dangerous dog; or (c) A policy of liability insurance, such as homeowner’s insurance, issued by an insurer qualified under Title 48 RCW in the amount of at least two hundred fifty thousand dollars, insuring the owner for any personal injuries inflicted by the dangerous dog. (7)(a)(i) If an owner has the dangerous dog in an incorporated area that is serviced by both a city and a county animal control authority, the owner shall obtain a certificate of registration from the city authority; (ii) If an owner has the dangerous dog in an incorporated or unincorporated area served only by a county animal control authority, the owner shall obtain a certificate of registration from the county authority; (iii) If an owner has the dangerous dog in an incorporated or unincorporated area that is not served by an animal control authority, the owner shall obtain a certificate of registration from the office of the local sheriff. (b) This subsection does not apply if a city or county does not allow dangerous dogs within its jurisdiction. (8) Cities and counties may charge an annual fee, in addition to regular dog licensing fees, to register dangerous dogs. (9) Nothing in this section limits a local authority in placing additional restrictions upon owners of dangerous dogs. This section does not require a local authority to allow a dangerous dog within its jurisdiction. [2002 c 244 § 2; 1989 c 26 § 3; 1987 c 94 § 2.] Severability—1987 c 94: See note following RCW 16.08.070. (2006 Ed.) Dogs—Licensing—Dog Control Zones 16.08.090 16.08.090 Dangerous dogs—Requirements for restraint—Potentially dangerous dogs—Dogs not declared dangerous. (1) It is unlawful for an owner of a dangerous dog to permit the dog to be outside the proper enclosure unless the dog is muzzled and restrained by a substantial chain or leash and under physical restraint of a responsible person. The muzzle shall be made in a manner that will not cause injury to the dog or interfere with its vision or respiration but shall prevent it from biting any person or animal. (2) Potentially dangerous dogs shall be regulated only by local, municipal, and county ordinances. Nothing in this section limits restrictions local jurisdictions may place on owners of potentially dangerous dogs. (3) Dogs shall not be declared dangerous if the threat, injury, or damage was sustained by a person who, at the time, was committing a wilful trespass or other tort upon the premises occupied by the owner of the dog, or was tormenting, abusing, or assaulting the dog or has, in the past, been observed or reported to have tormented, abused, or assaulted the dog or was committing or attempting to commit a crime. [1987 c 94 § 3.] Severability—1987 c 94: See note following RCW 16.08.070. 16.08.100 16.08.100 Dangerous dogs—Confiscation—Conditions—Duties of animal control authority—Penalties and affirmative defenses for owners of dogs that attack—Dog fights, penalty. (1) Any dangerous dog shall be immediately confiscated by an animal control authority if the: (a) Dog is not validly registered under RCW 16.08.080; (b) owner does not secure the liability insurance coverage required under RCW 16.08.080; (c) dog is not maintained in the proper enclosure; or (d) dog is outside of the dwelling of the owner, or outside of the proper enclosure and not under physical restraint of the responsible person. The owner must pay the costs of confinement and control. The animal control authority must serve notice upon the dog owner in person or by regular and certified mail, return receipt requested, specifying the reason for the confiscation of the dangerous dog, that the owner is responsible for payment of the costs of confinement and control, and that the dog will be destroyed in an expeditious and humane manner if the deficiencies for which the dog was confiscated are not corrected within twenty days. The animal control authority shall destroy the confiscated dangerous dog in an expeditious and humane manner if any deficiencies required by this subsection are not corrected within twenty days of notification. In addition, the owner shall be guilty of a gross misdemeanor punishable in accordance with RCW 9A.20.021. (2) If a dangerous dog of an owner with a prior conviction under this chapter attacks or bites a person or another domestic animal, the dog’s owner is guilty of a class C felony, punishable in accordance with RCW 9A.20.021. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that he or she was in compliance with the requirements for ownership of a dangerous dog pursuant to this chapter and the person or domestic animal attacked or bitten by the defendant’s dog trespassed on the defendant’s real or personal property or provoked the defendant’s dog without justification or excuse. In addition, the dangerous dog shall be immediately confiscated by an animal (2006 Ed.) 16.10.020 control authority, placed in quarantine for the proper length of time, and thereafter destroyed in an expeditious and humane manner. (3) The owner of any dog that aggressively attacks and causes severe injury or death of any human, whether or not the dog has previously been declared potentially dangerous or dangerous, shall, upon conviction, be guilty of a class C felony punishable in accordance with RCW 9A.20.021. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the human severely injured or killed by the defendant’s dog: (a) Trespassed on the defendant’s real or personal property which was enclosed by fencing suitable to prevent the entry of young children and designed to prevent the dog from escaping and marked with clearly visible signs warning people, including children, not to trespass and to beware of dog; or (b) provoked the defendant’s dog without justification or excuse on the defendant’s real or personal property which was enclosed by fencing suitable to prevent the entry of young children and designed to prevent the dog from escaping and marked with clearly visible signs warning people, including children, not to trespass and to beware of dog. In such a prosecution, the state has the burden of showing that the owner of the dog either knew or should have known that the dog was potentially dangerous as defined in this chapter. The state may not meet its burden of proof that the owner should have known the dog was potentially dangerous solely by showing the dog to be a particular breed or breeds. In addition, the dog shall be immediately confiscated by an animal control authority, quarantined, and upon conviction of the owner destroyed in an expeditious and humane manner. (4) Any person entering a dog in a dog fight is guilty of a class C felony punishable in accordance with RCW 9A.20.021. [2002 c 244 § 3; 1987 c 94 § 4.] Severability—1987 c 94: See note following RCW 16.08.070. Chapter 16.10 RCW DOGS—LICENSING—DOG CONTROL ZONES Chapter 16.10 Sections 16.10.010 16.10.020 16.10.030 16.10.040 Purpose. Dog control zones—Determination of need by county commissioners. Dog control zones—Public hearing, publication of notice. Dog control zones—Regulations—License fees, collection, disposition. Pet animals—Taking, concealing, injuring, killing, etc.—Penalty: RCW 9.08.070. 16.10.010 Purpose. The purpose of this chapter is to provide for the licensing of dogs within specific areas of particular counties. [1969 c 72 § 1.] 16.10.010 16.10.020 Dog control zones—Determination of need by county commissioners. County commissioners may, if the situation so requires, establish dog control zones within high density population districts, or other specified areas, of a county outside the corporate limits of any city, and outside the corporate limits of any organized township. For such zones, licensing regulations may be established which shall not necessarily be operative in sparsely settled rural districts, or in other portions of the county where they may not be 16.10.020 [Title 16 RCW—page 5] 16.10.030 Title 16 RCW: Animals and Livestock needed. In determining the need for such zones, and in drawing their boundaries, county commissioners shall take into consideration the following factors: (1) The density of population in the area proposed to be zoned; (2) Zoning regulations, if any, in force in the area proposed to be zoned; (3) The public health, safety and welfare within the area proposed to be zoned. If the commissioners shall find that the area proposed to be zoned is heavily populated, or that the purposes for which the land is being used therein require that dogs be controlled, or that the health, safety, and welfare of the people in the area require such control, they may propose the establishment of a dog control zone. [1969 c 72 § 2.] 16.10.030 16.10.030 Dog control zones—Public hearing, publication of notice. In determining whether a dog control zone should be established, the county commissioners shall call a public hearing, notice of which shall be published once a week for each of four consecutive weeks prior thereto in a newspaper of general circulation within the proposed zone. At such a hearing, proponents and opponents of the proposed dog control zone may appear and present their views. The final decision of the commissioners with respect to the establishment of such a zone shall not be made until the conclusion of the hearing. [1969 c 72 § 3.] 16.10.040 16.10.040 Dog control zones—Regulations—License fees, collection, disposition. The county commissioners shall by ordinance promulgate the regulations to be enforced within a dog control zone. These shall include provisions for the control of unlicensed dogs and the establishment of license fees. The county sheriff and/or other agencies designated by the county commissioners shall be responsible for the enforcement of the act, including the collection of license fees. Fees collected shall be transferred to the current expense fund of each county. [1969 c 72 § 4.] Chapter 16.24 Chapter 16.24 RCW STOCK RESTRICTED AREAS Sections 16.24.010 16.24.020 16.24.030 16.24.040 16.24.050 16.24.060 16.24.065 16.24.070 16.24.090 16.24.100 16.24.110 16.24.120 16.24.130 16.24.140 16.24.150 16.24.160 16.24.170 16.24.180 16.24.190 16.24.200 16.24.210 Restricted areas—Range areas. Hearing—Notice. Order establishing area—Publication. Penalty. Change of boundaries. Road signs in range areas. Stock at large in restricted areas—Running at large on state or federal land. Stock on highway right-of-way—Limitations. Animals at large—Limitations—Defense. Prosecution—Proof of ownership. Public nuisance—Impounding. Impounding—Procedure. Impounding—Notice—Copy to owner. Impounding—Owner to pay costs. Sale of impounded animal—Retroactive effect. Conduct of sale—Disposition of proceeds. Purchase of animal, restrictions. Castration or gelding of stock at large. Bull breed restrictions. Bull ratio restrictions. Bull breed and ratio restrictions not applicable to counties west of Cascades. [Title 16 RCW—page 6] 16.24.220 16.24.230 Separating estrays from herd. Moving another’s livestock from range. 16.24.010 Restricted areas—Range areas. The county legislative authority of any county of this state shall have the power to designate by an order made and published, as provided in RCW 16.24.030, certain territory as stock restricted area within such county in which it shall be unlawful to permit livestock of any kind to run at large. No territory so designated shall be less than two square miles in area. RCW 16.24.010 through 16.24.065 shall not affect counties having adopted township organization. All territory not so designated shall be range area, in which it shall be lawful to permit cattle, horses, mules, or donkeys to run at large: PROVIDED, That the county legislative authority may designate areas where it shall be unlawful to permit any livestock other than cattle to run at large. [1989 c 286 § 4; 1937 c 40 § 1; 1911 c 25 § 1; RRS § 3068. Prior: 1907 c 230 § 1; 1905 c 91 § 1; R & B § 3166.] 16.24.010 Severability—1989 c 286: See note following RCW 16.04.010. 16.24.020 Hearing—Notice. *Within sixty days after the taking effect of RCW 16.24.010 through 16.24.065, the county legislative authority of each of the several counties of the state may make an order fixing a time and place when a hearing will be had, notice of which shall be published at least once each week for two successive weeks in some newspaper having a general circulation within the county. It shall be the duty of the county legislative authority at the time fixed for such hearing, or at the time to which such hearing may be adjourned, to hear all persons interested in the establishment of range areas or stock restricted areas as defined in RCW 16.24.010 through 16.24.065. [1989 c 286 § 5; 1937 c 40 § 2; 1923 c 33 § 1; 1911 c 25 § 2; RRS § 3069.] 16.24.020 *Reviser’s note: RCW 16.24.010 through 16.24.065 took effect March 1, 1937. Severability—1989 c 286: See note following RCW 16.04.010. 16.24.030 Order establishing area—Publication. Within thirty days after the conclusion of any such hearing the county legislative authority shall make an order describing the stock restricted areas within the county where livestock may not run at large, which order shall be entered upon the records of the county and published in a newspaper having general circulation in such county at least once each week for four successive weeks. [1989 c 286 § 6; 1937 c 40 § 3; 1923 c 33 § 2; 1911 c 25 § 3; RRS § 3070.] 16.24.030 Severability—1989 c 286: See note following RCW 16.04.010. 16.24.040 16.24.040 Penalty. Any person, or any agent, employee or representative of a corporation, violating any of the provisions of such order after the same shall have been published or posted as provided in RCW 16.24.030 or, violating any provision of this chapter, shall be guilty of a misdemeanor. [1975 c 38 § 1; 1911 c 25 § 4; RRS § 3071.] 16.24.050 Change of boundaries. When the county legislative authority of any county deem[s] it advisable to change the boundary or boundaries of any stock restricted area, a hearing shall be held in the same manner as provided in RCW 16.24.020. If the county legislative authority decides 16.24.050 (2006 Ed.) Stock Restricted Areas to change the boundary or boundaries of any stock restricted area or areas, it shall within thirty days after the conclusion of such hearing make an order describing said change or changes. Such order shall be entered upon the records of the county and published in a newspaper having general circulation in such county once each week for four successive weeks. [1989 c 286 § 7; 1937 c 40 § 4; 1923 c 93 § 1; RRS § 3070-1.] Severability—1989 c 286: See note following RCW 16.04.010. 16.24.130 while in charge of sufficient attendants. [1989 c 286 § 14; 1911 c 25 § 5; RRS § 3072. Formerly RCW 16.12.010, part.] Severability—1989 c 286: See note following RCW 16.04.010. 16.24.100 16.24.100 Prosecution—Proof of ownership. In any prosecution under chapter 16.24 RCW proof that the animal running at large is branded with the registered or known brand of the defendant shall be prima facie evidence that the defendant is the owner of said animal. [1989 c 286 § 3; 1895 c 124 § 2; RRS § 3086. Formerly RCW 16.16.020.] 16.24.060 16.24.060 Road signs in range areas. At the point where a public road enters a range area, and at such other points thereon within such area as the county legislative authority shall designate, there shall be erected a road sign bearing the words: "RANGE AREA. WATCH OUT FOR LIVESTOCK." [1989 c 286 § 8; 1937 c 40 § 5; RRS § 30702.] Severability—1989 c 286: See note following RCW 16.04.010. 16.24.065 16.24.065 Stock at large in restricted areas—Running at large on state or federal land. (1) No person owning or in control of any livestock shall willfully or negligently allow such livestock to run at large in any stock restricted area or to wander or stray upon the right-of-way of any public highway lying within a stock restricted area when not in the charge of some person. (2) Livestock may run at large upon lands belonging to the state of Washington or the United States only when the owner of the livestock has been granted grazing privileges in writing. [1989 c 286 § 9; 1985 c 415 § 20; 1937 c 40 § 6; RRS § 3070-3. Formerly RCW 16.24.070, part.] Severability—1989 c 286: See note following RCW 16.04.010. 16.24.070 16.24.070 Stock on highway right-of-way—Limitations. It shall be unlawful for any person to herd or move any livestock over, along or across the right-of-way of any public highway, or portion thereof, within any stock restricted area, without having in attendance a sufficient number of persons to control the movement of such livestock and to warn or otherwise protect vehicles traveling upon such public highway from any danger by reason of such livestock being herded or moved thereon. [1989 c 286 § 10; 1937 c 189 § 127; RRS § 6360-127, part. Prior: 1927 c 309 § 41, part; RRS § 6362-41, part. FORMER PART OF SECTION: 1937 c 40 § 6; RRS § 3070-3, now codified as RCW 16.24.065. Formerly RCW 16.24.070 and 16.24.080.] Severability—1989 c 286: See note following RCW 16.04.010. 16.24.090 16.24.090 Animals at large—Limitations—Defense. Except as provided in chapter 16.24 RCW, a person who owns or has possession, charge, or control of horses, mules, donkeys, cattle, goats, sheep or swine shall not negligently allow them to run at large at any time or within any territory. It shall not be necessary for any person to fence against such animals, and it shall be no defense to any action or proceedings brought pursuant to this chapter or chapter 16.04 RCW that the party injured by or restraining such animals did not have his or her lands enclosed by a lawful fence: PROVIDED, That such animals may be driven upon the highways (2006 Ed.) Severability—1989 c 286: See note following RCW 16.04.010. 16.24.110 16.24.110 Public nuisance—Impounding. Any horses, mules, donkeys, or cattle of any age running at large or trespassing in violation of chapter 16.24 RCW as now or hereafter amended, which are not restrained as provided by RCW 16.04.010, are declared to be a public nuisance. The sheriff of the county where found and the nearest brand inspector shall have authority to impound such animals which are not restrained as provided by RCW 16.04.010. [1989 c 286 § 11; 1985 c 415 § 16; 1979 c 154 § 6; 1975 1st ex.s. c 7 § 14; 1951 c 31 § 2. Formerly RCW 16.13.020.] Severability—1989 c 286: See note following RCW 16.04.010. Severability—1979 c 154: See note following RCW 15.49.330. 16.24.120 16.24.120 Impounding—Procedure. Upon taking possession of any livestock at large contrary to the provisions of *RCW 16.13.020, or any unclaimed livestock submitted or impounded, by any person, at any public livestock market or any other facility approved by the director, the sheriff or brand inspector shall cause it to be transported to and impounded at the nearest public livestock market licensed under chapter 16.65 RCW or at such place as approved by the director. If the sheriff has impounded an animal in accordance with this section, he shall forthwith notify the nearest brand inspector of the department of agriculture, who shall examine the animal and, by brand, tattoo, or other identifying characteristic, shall attempt to ascertain the ownership thereof. [1989 c 286 § 12; 1979 c 154 § 7; 1975 1st ex.s. c 7 § 15; 1951 c 31 § 3. Formerly RCW 16.13.030.] *Reviser’s note: RCW 16.13.020 was recodified as RCW 16.24.110 pursuant to 1989 c 286 § 18. Severability—1989 c 286: See note following RCW 16.04.010. Severability—1979 c 154: See note following RCW 15.49.330. 16.24.130 16.24.130 Impounding—Notice—Copy to owner. The brand inspector shall cause to be published once in a newspaper published in the county where the animal was found, a notice of the impounding. The notice shall state: (1) A description of the animal, including brand, tattoo or other identifying characteristics; (2) When and where found; (3) Where impounded; and (4) That if unclaimed, the animal will be sold at a public livestock market sale or other public sale, and the date of such sale: PROVIDED, That if no newspaper shall be published in such county, copies of the notice shall be posted at four commonly frequented places therein. [Title 16 RCW—page 7] 16.24.140 Title 16 RCW: Animals and Livestock If the animal is marked with a brand or tattoo which is registered with the director of agriculture, the brand inspector, on or before the date of publication or posting, shall send a copy of the notice to the owner of record by registered mail. [1995 c 374 § 69; 1975 1st ex.s. c 7 § 16; 1951 c 31 § 4. Formerly RCW 16.13.040.] Effective date—1995 c 374 §§ 69, 70, and 72-79: "Sections 69, 70, and 72 through 79 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [May 16, 1995]." [1995 c 374 § 82.] 16.24.140 16.24.140 Impounding—Owner to pay costs. Upon claiming any animal impounded under this chapter, the owner shall pay all costs of transportation, advertising, legal proceedings, and keep of the animal, except as provided under RCW 16.04.100. [1994 c 263 § 2; 1989 c 286 § 13; 1951 c 31 § 5. Formerly RCW 16.13.050.] Severability—1989 c 286: See note following RCW 16.04.010. 16.24.150 16.24.150 Sale of impounded animal—Retroactive effect. If no person shall claim the animal within ten days after the date of publication or posting of the notice, it shall be sold at the next succeeding public livestock market sale to be held at the sales yard where impounded, provided that in the director’s discretion the department of agriculture may otherwise cause the animal to be sold at public sale. The legislature intends this to be a clarification of existing law; therefore, this section shall have retroactive effect as of December 1, 1994. [1995 c 374 § 70; 1975 1st ex.s. c 7 § 17; 1951 c 31 § 6. Formerly RCW 16.13.060.] Effective date—1995 c 374 §§ 69, 70, and 72-79: See note following RCW 16.24.130. 16.24.160 16.24.160 Conduct of sale—Disposition of proceeds. The proceeds of the sale of animals impounded under this chapter, after deducting the costs of sale, shall be impounded in the estray fund of the department of agriculture, and if no valid claim is made within one year from the date of sale, the director of the department of agriculture shall transfer the proceeds of sale to the brand fund of the department to be used for the enforcement of this chapter. [1985 c 415 § 17; 1951 c 31 § 7. Formerly RCW 16.13.070.] 16.24.170 16.24.170 Purchase of animal, restrictions. No law enforcement officer shall, directly or indirectly, purchase any animal sold under the provisions of this chapter, or any interest therein. [1951 c 31 § 8. Formerly RCW 16.13.080.] 16.24.180 16.24.180 Castration or gelding of stock at large. It shall be lawful for any person having cows or heifers running at large in this state to take up or capture and castrate, at the risk of the owner, at any time between the first day of March and the fifteenth day of May, any bull above the age of ten months found running at large out of the enclosed grounds of the owner or keeper. It shall be lawful for any person to take up or capture and geld, at the risk of the owner, between April 1 and September 30 of any year, any stud horse or jackass or any male mule above the age of eighteen months found running at large out of the enclosed grounds of the owner or keeper. If the said animal shall die, as a result of such castra[Title 16 RCW—page 8] tion, the owner shall have no recourse against the person who shall have taken up or captured and castrated, or caused to be castrated, the said animal: PROVIDED, Such act of castration shall have been skillfully done by a person accustomed to doing the same: AND PROVIDED FURTHER, That if the person so taking up or capturing such animal, or causing it to be so taken up or captured, shall know the owner or keeper of such animal, and shall know that said animal is being kept for breeding purposes, it shall be his duty forthwith to notify such owner or keeper of the taking up of said animal, and if such owner or keeper shall not within two days after being so notified pay for the reasonable costs of keeping of said animal, and take and safely keep said animal thereafter within his own enclosures, then it shall be lawful for the taker-up of said animal to castrate the same, and the owner thereof shall pay a reasonable sum for such act of castration, if done skillfully, as hereinbefore required, and shall also pay for the keeping of said animal as above provided, and the amount for which he may be liable therefor may be recovered in an action at law in any court having jurisdiction thereof: AND PROVIDED FURTHER, That if said animal should be found running at large a third time within the same year, and within the prohibited dates hereinbefore mentioned, it shall be lawful for any person to capture and castrate the animal without giving any notice to the owner or keeper whatever. For purposes of this section, geld and castrate shall have the same meaning. [1989 c 286 § 15; 1965 c 66 § 4; 1890 p 453 § 1; RRS § 3081. Formerly RCW 16.20.010.] Severability—1989 c 286: See note following RCW 16.04.010. 16.24.190 16.24.190 Bull breed restrictions. It shall be unlawful for any person, firm, association or corporation to turn upon or allow to run at large on any range area in this state any bull other than a registered bull of a recognized beef breed. All persons running cattle in common on any range area may, however, agree to run any purebred or crossbred bull of any breed, registered or unregistered, as they may deem appropriate for their area. [1986 c 177 § 1; 1985 c 415 § 18; 1917 c 111 § 1; RRS § 3082. Formerly RCW 16.20.020.] 16.24.200 16.24.200 Bull ratio restrictions. Before any person, firm, association or corporation turns upon a range area in this state any female cattle of breeding age of more than fifteen in number, they shall procure and turn with said female breeding cattle one registered bull of recognized beef breed for every forty females or fraction thereof of twenty-five or over. All persons running cattle in common on any range area may, however, agree to any other proportion of bulls to female cattle of breeding age as they may deem appropriate for their area. [1986 c 177 § 2; 1917 c 111 § 2; RRS § 3083. Formerly RCW 16.20.030.] 16.24.210 16.24.210 Bull breed and ratio restrictions not applicable to counties west of Cascades. RCW 16.24.190 and 16.24.200 shall not apply to counties lying west of the summit of the Cascade mountains. [1989 c 286 § 17; 1985 c 415 § 19. Formerly RCW 16.20.035.] Severability—1989 c 286: See note following RCW 16.04.010. (2006 Ed.) Animal Health 16.24.220 Separating estrays from herd. It shall be the duty of any and all persons searching or hunting for stray horses, mules or cattle, to drive the band or herd in which they may find their stray horses, mules or cattle, into the nearest corral before separating their said stray animals from the balance of the herd or band; that in order to separate their said stray animals from the herd or band, the person or persons owning said stray shall drive them out of and away from the corral in which they may be driven before setting the herd at large. [1989 c 286 § 16; 1987 c 202 § 181; 1969 ex.s. c 199 § 14; Code 1881 § 2537; RRS § 3050. Prior: 1869 pp 408, 409 §§ 1, 2. Formerly RCW 16.28.160.] 16.24.220 Severability—1989 c 286: See note following RCW 16.04.010. Intent—1987 c 202: See note following RCW 2.04.190. 16.24.230 Moving another’s livestock from range. No person shall remove any livestock belonging to another from the range on which they are permitted to run at large, without the prior consent of the owner thereof. The owner of any livestock may move his or her own livestock, together with such other livestock as cannot be separated from his or her own, to the nearest corral, or other facility in order to separate his or her own livestock, if the other livestock are returned to the same location from which they were moved within twenty-four hours. [1985 c 415 § 21; 1891 c 12 § 1; RRS § 3048. Formerly RCW 16.28.170, part. Formerly RCW 16.28.165.] 16.24.230 Chapter 16.36 Chapter 16.36 RCW ANIMAL HEALTH (Formerly: Diseases—Quarantine—Garbage feeding) Sections 16.36.005 16.36.010 16.36.020 16.36.025 16.36.040 16.36.050 16.36.060 16.36.070 16.36.080 16.36.082 16.36.084 16.36.086 16.36.090 16.36.092 16.36.096 16.36.098 16.36.100 16.36.105 16.36.110 16.36.128 Definitions. Quarantine—Hold order. Powers of director. Recovery of costs. Rules—Prevention—Inspections and tests—Reportable disease—Federal regulations. Unlawful actions—Importation—Required certificates— Intentional or willful misconduct. Tests, examinations, or inspections—Entry onto premises— Unlawful conduct—Seizure of property—Search warrant. Danger of infection—Emergencies. Veterinarians and others to report diseases—Director’s duties—Unlawful importation. Infected or exposed animals—Unlawful to transfer or expose other animals. Duty to report infection or exposure to disease—Unlawful conduct. Negligence of owner of infected livestock—Liability. Destruction of diseased or quarantined animals. Duty to bury carcass of diseased livestock—Dead livestock presumed diseased. Destruction of animals—Payment of indemnity. Quarantine, hold order, or destruct order—Written request for hearing. Cooperation with other governmental agencies. Swine, garbage feeding, license—Application—Fee—Inspection. Violations, gross misdemeanor—Injunction—Denial, revocation, or suspension of license. Application of Title 77 RCW. Implied warranty not applying to livestock as free from disease: RCW 62A.2-316. 16.36.005 Definitions. As used in this chapter: "Animal" means all members of the animal kingdom except humans, fish, and insects. However, "animal" does 16.36.005 (2006 Ed.) 16.36.005 not mean noncapti ve wil d life a s defi ne d in R CW 77.08.010(16), except as used in RCW 16.36.050(1) and 16.36.080 (1), (2), (3), and (5). "Animal reproductive product" means sperm, ova, fertilized ova, and embryos from animals. "Farm-raised fish" means fish raised by aquaculture as defined in RCW 15.85.020. Farm-raised fish are considered to be a part of animal agriculture; however, disease inspection, prevention, and control programs and related activities for farm-raised fish are administered by the department of fish and wildlife under chapter 77.115 RCW. "Communicable disease" means a disease due to a specific infectious agent or its toxic products transmitted from an infected person, animal, or inanimate reservoir to a susceptible host, either directly or indirectly through an intermediate plant or animal host, vector, or the environment. "Contagious disease" means a communicable disease that is capable of being easily transmitted from one animal to another animal or a human. "Director" means the director of agriculture of the state of Washington or his or her authorized representative. "Department" means the department of agriculture of the state of Washington. "Deputized state veterinarian" means a Washington state licensed and accredited veterinarian appointed and compensated by the director according to state law and department policies. "Garbage" means the solid animal and vegetable waste and offal together with the natural moisture content resulting from the handling, preparation, or consumption of foods in houses, restaurants, hotels, kitchens, markets, meat shops, packing houses and similar establishments or any other food waste containing meat or meat products. "Herd or flock plan" means a written management agreement between the owner of a herd or flock and the state veterinarian, with possible input from a private accredited veterinarian designated by the owner and the area veterinarian-incharge of the United States department of agriculture, animal and plant health inspection service, veterinary services in which each participant agrees to undertake actions specified in the herd or flock plan to control the spread of infectious, contagious, or communicable disease within and from an infected herd or flock and to work toward eradicating the disease in the infected herd or flock. "Hold order" means an order by the director to the owner or agent of the owner of animals or animal reproductive products which restricts the animals or products to a designated holding location pending an investigation by the director of the disease, disease exposure, well-being, movement, or import status of the animals or animal reproductive products. "Infectious agent" means an organism including viruses, rickettsia, bacteria, fungi, protozoa, helminthes, or prions that is capable of producing infection or infectious disease. "Infectious disease" means a clinical disease of humans or animals resulting from an infection with an infectious agent that may or may not be communicable or contagious. "Livestock" means horses, mules, donkeys, cattle, bison, sheep, goats, swine, rabbits, llamas, alpacas, ratites, poultry, waterfowl, game birds, and other species so designated by statute. "Livestock" does not mean free ranging wildlife as defined in Title 77 RCW. [Title 16 RCW—page 9] 16.36.010 Title 16 RCW: Animals and Livestock "Person" means a person, persons, firm, or corporation. "Quarantine" means the placing and restraining of any animal or its reproductive products by the owner or agent of the owner within a certain described and designated enclosure or area within this state, or the restraining of any animal or its reproductive products from entering this state, as may be directed in an order by the director. "Reportable disease" means a disease designated by rule by the director as reportable to the department by veterinarians and others made responsible to report by statute. "Veterinary biologic" means any virus, serum, toxin, and analogous product of natural or synthetic origin, or product prepared from any type of genetic engineering, such as diagnostics, antitoxins, vaccines, live microorganisms, killed microorganisms, and the antigenic or immunizing components intended for use in the diagnosis, treatment, or prevention of diseases in animals. [2003 c 39 § 9; 1998 c 8 § 1; 1987 c 163 § 1; 1953 c 17 § 1.] 16.36.010 Quarantine—Hold order. (1) The director shall supervise the prevention of the spread and the suppression of infectious, contagious, communicable, and dangerous diseases affecting animals within, in transit through, and imported into the state. (2) The director may issue a quarantine order and enforce the quarantine of any animal or its reproductive products when any animal or its reproductive products are affected with or have been exposed to disease or when there is reasonable cause to investigate whether any animal or its reproductive products are affected with or have been exposed to disease, either within or outside the state. Overt disease or exposure to disease in any animal or its reproductive products need not be immediately obvious for a quarantine order to be issued or enforced. The quarantine shall remain in effect as long as the director deems necessary. (3) The director may issue a hold order when: (a) Overt disease or exposure to disease in an animal is not immediately obvious but there is reasonable cause to investigate whether an animal is diseased or has been exposed to disease; (b) Import health papers, permits, or other transportation documents required by law or rule are not complete or are suspected to be fraudulent; or (c) Further transport of an animal would jeopardize the well-being of the animal or other animals in Washington state. A hold order is in effect for seven days and expires at midnight on the seventh day from the date of the hold order. A hold order may be replaced with a quarantine order for the purpose of animal disease control. (4) Any animal or animal reproductive product placed under a quarantine or hold order shall be kept separate and apart from other animals designated in the instructions of the quarantine or hold order, and shall not be allowed to have anything in common with other animals. (5) The expenses of handling and caring for any animal or animal reproductive product placed under a quarantine or hold order are the responsibility of the owner. (6) The director has authority over the quarantine or hold area until the quarantine or hold order is released or the hold order expires. 16.36.010 [Title 16 RCW—page 10] (7) Any animal or animal reproductive product placed under a quarantine or hold order may not be moved, transported, or sold without written approval from the director or until the quarantine or hold order is released, or the hold order expires. (8) The director may administer oaths and examine witnesses and records in the performance of his or her duties to control diseases affecting animals. [2004 c 251 § 1; 1998 c 8 § 2; 1927 c 165 § 2; RRS § 3111. Prior: 1915 c 100 § 6, part; 1903 c 26 § 2, part.] 16.36.020 16.36.020 Powers of director. (1) The director shall enforce and administer the provisions of this chapter pertaining to garbage feeding. (2) The director has the authority to regulate the sale, distribution, and use of veterinary biologics in the state and may adopt rules to restrict the sale, distribution, or use of any veterinary biologic in any manner necessary to protect the health and safety of the public and the state’s animal population. (3) The director has the authority to license and regulate the activities of veterinary laboratories that do not have a veterinarian licensed under chapter 18.92 RCW present within the management or staff of the veterinary laboratory. The director may adopt rules to regulate these laboratories in any manner necessary to protect the health and safety of the public and the public’s animals. [1998 c 8 § 3; 1987 c 163 § 2; 1979 c 154 § 8; 1953 c 17 § 2; 1947 c 172 § 1; 1933 c 177 § 1; 1927 c 165 § 1; formerly Rem. Supp. 1947 § 3110. Prior: 1915 c 100 § 5; 1901 c 112 § 2; 1895 c 167 § 2.] Severability—1979 c 154: See note following RCW 15.49.330. 16.36.025 16.36.025 Recovery of costs. The director may collect moneys to recover the reasonable costs of printing and distributing certificates and other supplies to veterinarians. [1998 c 8 § 19.] 16.36.040 16.36.040 Rules—Prevention—Inspections and tests—Reportable disease—Federal regulations. (1) The director may adopt and enforce rules necessary to carry out the purpose and provisions of this chapter, and including: (a) Preventing the introduction or spreading of infectious, contagious, communicable, or dangerous diseases affecting animals in this state; (b) Governing the inspection and testing of all animals within or about to be imported into this state; and (c) Designating any disease as a reportable disease. (2) Rules to prevent the introduction or spread of infectious, contagious, communicable, or dangerous diseases affecting animals in this state may differ from federal regulations by being more restrictive. [1998 c 8 § 4; 1979 c 154 § 10; 1947 c 172 § 3; 1927 c 165 § 4; Rem. Supp. 1947 § 3113. Prior: 1915 c 100 § 4; 1901 c 112 § 2; 1895 c 167 § 2.] Severability—1979 c 154: See note following RCW 15.49.330. 16.36.050 16.36.050 Unlawf ul actions—Importation— Required certificates—Intentional or willful misconduct. It is unlawful for any person to: (1) Bring into this state for any purpose any animals without first having secured an official health certificate or certificate of veterinary inspection, reviewed by the state vet(2006 Ed.) Animal Health erinarian of the state of origin that the animals meet the health requirements of the state of Washington. This subsection does not apply to livestock imported into this state for immediate slaughter, or other animals exempted by rule; (2) Divert en route to other than an approved, inspected feedlot for subsequent slaughter or to sell for other than immediate slaughter or to fail to slaughter within seven calendar days after arrival, any animal imported into this state for immediate slaughter; (3) Intentionally falsely make, complete, alter, use, or sign an animal health certificate, certificate of veterinary inspection, or official written animal health document of the department; (4) Willfully hinder, obstruct, or resist the director, or any peace officer or deputized state veterinarian acting under him or her, when engaged in the performance of their duties; or (5) Willfully fail to comply with or to violate any rule or order adopted by the director under this chapter. [1998 c 8 § 5; 1979 c 154 § 11; 1947 c 172 § 4; 1927 c 165 § 5; Rem. Supp. 1947 § 3114. Prior: 1915 c 100 § 7; 1905 c 169 § 1; 1903 c 125 § 1.] Severability—1979 c 154: See note following RCW 15.49.330. 16.36.060 16.36.060 Tests, examinations, or inspections— Entry onto premises—Unlawful conduct—Seizure of property—Search warrant. (1) The director has the authority to enter the animal premises of any animal owner at any reasonable time to conduct tests, examinations, or inspections for disease conditions when there is reasonable cause to investigate whether animals on the premises or that have been on the premises are infected with or have been exposed to a reportable disease. It is unlawful for any person to interfere with the tests, inspections, or examinations, or to alter any segregation or identification systems made in connection with the tests, inspections, or examinations. When the director has determined that there is probable cause that there is a serious risk from disease or contamination, the director may seize those items necessary to conduct the tests, inspections, or examinations. (2) If the director is denied access to the animal premises or the animals for purposes of conducting tests, inspections, or examinations or the animal owner fails to comply with an order of the director, the director may apply to a court of competent jurisdiction for a search warrant. The warrant may authorize access to any animal or animal premises for purposes of conducting tests, inspections, or examinations of any animal or animal premises, or taking samples, and may authorize seizure or destruction of property. The warrant shall be issued upon probable cause being found by the court. It is sufficient probable cause to show a potential threat to the agricultural interests of this state or a potential threat which seriously endangers animals, human health, the environment, or public welfare. To show that access is denied, the director shall file with the court an affidavit or declaration containing a description of all attempts to notify and locate the owner or the owner’s agent and to secure consent. [2004 c 251 § 2; 1998 c 8 § 6; 1985 c 415 § 2; 1979 c 154 § 12; 1947 c 172 § 5; 1927 c 165 § 6; Rem. Supp. 1947 § 3115. Prior: 1895 c 167 § 3.] (2006 Ed.) 16.36.082 Severability—1979 c 154: See note following RCW 15.49.330. 16.36.070 16.36.070 Danger of infection—Emergencies. When any local governing body notifies the director of the presence or probable danger of infection from any animal diseases, the director, state veterinarian, or a deputized state veterinarian shall respond immediately and take appropriate action. In case of an emergency, the director may appoint deputies or assistants with equal power to act. [1998 c 8 § 7; 1947 c 172 § 6; 1927 c 165 § 7; Rem. Supp. 1947 § 3116. Prior: 1895 c 167 § 4.] 16.36.080 16.36.080 Veterinarians and others to report diseases—Director’s duties—Unlawful importation. (1) Any person licensed to practice veterinary medicine, surgery, and dentistry in this state, veterinary laboratories, and others designated by this chapter shall immediately report in writing or by telephone, facsimile, or electronic mail to the director the existence or suspected existence of any reportable disease among animals within the state. (2) Persons using their own diagnostic services must report any reportable disease among animals within the state to the director. (3) The director shall investigate and/or maintain records of all cases of reportable diseases among animals within this state. (4) The director may require appropriate treatment of any animal affected with, suspected of being affected with, or that has been exposed to any reportable disease. The owner may dispose of the animal rather than treating the animal as required by the director. (5) It is unlawful for any person to import any animal infected with or exposed to a reportable disease without a permit from the director. [1998 c 8 § 8; 1947 c 172 § 7; 1927 c 165 § 8; Rem. Supp. 1947 § 3117.] 16.36.082 16.36.082 Infected or exposed animals—Unlawful to transfer or expose other animals. (1) It is unlawful for any person to sell, exchange, or give away any animal that he or she knows: (a) Is infected with any contagious, infectious, or communicable disease; (b) Has been exposed to any contagious, communicable, or infectious disease within the previous thirty days; or (c) Has been treated for any condition within the previous thirty days; without notifying the purchaser or person taking possession of the animal of the infection, exposure, or treatment unless the legal withdrawal period for any treatment has been met or exceeded. (2) It is unlawful for any owner or person in possession of any animal having any contagious, communicable, or infectious disease to knowingly: (a) Turn out the animal onto enclosed lands adjoining the enclosed lands of another that are kept for pasture or otherwise used for raising animals without notifying the owner of the enclosed lands; or (b) Stable the animal or allow the animal to be stabled in any barn with other animals without notifying the other owners. [1998 c 8 § 14; 1927 c 165 § 26; RRS § 3135. Prior: See [Title 16 RCW—page 11] 16.36.084 Title 16 RCW: Animals and Livestock Reviser’s note to RCW 16.44.020. Formerly RCW 16.44.130.] 16.36.084 16.36.084 Duty to report infection or exposure to disease—Unlawful conduct. Any person owning or having in his or her control any livestock which become infected with scrapie or another transmissible spongiform encephalopathy (TSE) or which have been exposed to such disease, shall immediately report the disease or exposure to the director. It is unlawful for any person to fail to report or to attempt to conceal the existence of any such disease. [1998 c 8 § 15; 1927 c 165 § 28; RRS § 3137. Prior: See Reviser’s note to RCW 16.44.020. Formerly RCW 16.44.140.] cies, this state or any of its agencies, or any municipal corporation; or (2) that has been brought into this state in violation of this chapter or rules adopted under this chapter. [1998 c 8 § 10; 1985 c 415 § 4; 1963 ex.s. c 8 § 1.] 16.36.098 16.36.098 Quarantine, hold order, or destruct order—Written request for hearing. Any person whose animal or animal reproductive products are placed under a quarantine, a hold order, or destruct order under RCW 16.36.090 may request a hearing. The request for a hearing must be in writing and filed with the director. Any hearing will be held in conformance with RCW 34.05.422 and 34.05.479. [2004 c 251 § 4; 1998 c 8 § 17.] 16.36.086 16.36.086 Negligence of owner of infected livestock— Liability. When any livestock affected with any contagious, infectious, or communicable disease mingle with any healthy livestock belonging to another person, through the fault or negligence of the owner of the diseased livestock or his or her agent, the owner is liable for all damages sustained by the owner of the healthy livestock. [1998 c 8 § 16; 1927 c 165 § 32; RRS § 3141. Prior: See Reviser’s note to RCW 16.44.020. Formerly RCW 16.44.160.] 16.36.100 16.36.100 Cooperation with other governmental agencies. The director is authorized to cooperate with and enter into agreements with governmental agencies of this state, other states, and agencies of federal government in order to carry out the purpose and provisions of this chapter and to promote consistency of regulation. [1998 c 8 § 11; 1927 c 165 § 10; RRS § 3119. Prior: 1901 c 112 § 3, part; 1895 c 167 § 5, part.] 16.36.105 16.36.090 16.36.090 Destruction of diseased or quarantined animals. When public welfare demands, the director may order the slaughter or destruction of any animal affected with or exposed to any contagious, infectious, or communicable disease that is affecting or may affect the health of the state’s animal population. The director may order destruction of any animal held under quarantine when public welfare demands or the owner of the animal fails or refuses to follow a herd or flock plan. The director shall give a written order directing an animal be destroyed by or under the direction of the state veterinarian. [2004 c 251 § 3; 1998 c 8 § 9; 1985 c 415 § 3; 1979 c 154 § 13; 1947 c 172 § 8; 1927 c 165 § 9; Rem. Supp. 1947 § 3118. Prior: 1901 c 112 § 3, part; 1895 c 167 § 5, part.] Severability—1979 c 154: See note following RCW 15.49.330. 16.36.092 16.36.092 Duty to bury carcass of diseased livestock—Dead livestock presumed diseased. Every person owning or having in charge any livestock that has died because of disease shall dispose of the carcass within a time frame and in a manner prescribed in rule by the director, which may include, but is not limited to, burial, composting, incinerating, landfilling, natural decomposition, or rendering. Any livestock found dead from an unknown cause is presumed to have died because of disease. [2006 c 155 § 1; 1949 c 100 § 2; Rem. Supp. 1949 § 3142-2. Formerly RCW 16.68.020] 16.36.096 16.36.096 Destruction of animals—Payment of indemnity. In ordering the slaughter or destruction of any animal, the director may pay an indemnity in an amount not to exceed seventy-five percent of the appraised or salvage value of the animal ordered slaughtered or destroyed. The actual indemnity amount shall be established by the director by rule. Payment of indemnity does not apply to an animal: (1) Belonging to the federal government or any of its agen[Title 16 RCW—page 12] 16.36.105 Swine, garbage feeding, license—Application—Fee—Inspection. No person shall feed garbage to swine without first obtaining a license from the director. The license expires on June 30th of each year. Application for a license shall be accompanied by a fee of ten dollars which shall be credited to the general fund. The license is nontransferable and a separate license is required for each place of business if an operator has more than one feeding station. Upon receipt of an application for a license to feed garbage, the director shall inspect the premises and determine whether the applicant meets the requirements of 9 CFR Chapter 1 Part 166 as adopted by rule and any other rules adopted under this chapter. Upon approval of the application by the director and compliance with the provisions of this section, the applicant shall be issued a license. This section does not apply to any person feeding garbage from his or her own domestic household. [1998 c 8 § 12; 1953 c 17 § 4.] Feeding of carcasses to swine: RCW 16.68.150. 16.36.110 16.36.110 Violations, gross misdemeanor—Injunction—Denial, revocation, or suspension of license. (1) Any person who violates any provision of this chapter or the rules adopted under this chapter shall be guilty of a gross misdemeanor. Each day upon which a violation occurs constitutes a separate violation. (2) The director may bring an action to enjoin the violation of any provision of this chapter or any rule adopted under this chapter in the superior court of Thurston county or of the county in which such violation occurs notwithstanding the existence of other remedies at law. (3) The director may deny, revoke, or suspend any license issued under this chapter for any failure or refusal to comply with this chapter or rules adopted under this chapter. Upon notice by the director to deny, revoke, or suspend a license, a person may request a hearing under chapter 34.05 RCW. [1998 c 8 § 13; 1989 c 354 § 35; 1981 c 296 § 14; (2006 Ed.) Livestock Diseases—Diagnostic Service Program 1957 c 22 § 5. Prior: 1953 c 17 § 8; 1927 c 165 § 33; RRS § 3142.] 16.49.015 versity or private institutions and/or research organizations. [1969 c 100 § 4.] Severability—1989 c 354: See note following RCW 15.36.012. 16.38.050 Severability—1981 c 296: See note following RCW 15.08.010. 16.36.128 16.36.128 Application of Title 77 RCW. Certain animals defined in this chapter as livestock or animal may also meet the definition of wildlife contained in Title 77 RCW. This chapter does not allow importation, possession, or uses of animals that are in violation of Title 77 RCW or the rules adopted under that title, nor does it relieve the owners or possessors of wildlife from full compliance with the requirements of Title 77 RCW or the rules adopted under that title. Rules adopted by the director shall not allow importation, possession, or uses of animals that are in violation of Title 77 RCW or the rules adopted under that title. [1998 c 8 § 18.] 16.38.050 Acceptance of gifts, funds, equipment, etc. In carrying out such diagnostic service program, the director of agriculture may accept public or private funds, gifts or equipment or any other necessary properties. [1969 c 100 § 5.] 16.38.060 16.38.060 Schedule of fees may be established—Use. The director may, following a public hearing, establish a schedule of fees for services performed in carrying out such diagnostic service program. All fees collected under this provision shall be retained by the director of agriculture to be spent only for carrying out the purposes of this chapter. [1986 c 203 § 6; 1969 c 100 § 6.] Severability—1986 c 203: See note following RCW 15.17.230. Chapter 16.38 Chapter 16.38 RCW LIVESTOCK DISEASES—DIAGNOSTIC SERVICE PROGRAM Sections 16.38.010 16.38.020 16.38.030 16.38.040 16.38.050 16.38.060 Chapter 16.49 Chapter 16.49 RCW CUSTOM SLAUGHTERING Sections Declaration of purpose. Director authorized to carry on diagnostic program. Employment of personnel. Agreements and/or contracts with other entities. Acceptance of gifts, funds, equipment, etc. Schedule of fees may be established—Use. Implied warranty not applying to livestock as free from disease: RCW 62A.2-316. 16.38.010 16.38.010 Declaration of purpose. The production of livestock is one of the largest industries in this state; and whereas livestock disease constitutes a constant threat to the public health and the production of livestock in this state; and whereas the prevention and control of such livestock diseases by the state may be best carried on by the establishment of a diagnostic service program for livestock diseases; therefore it is in the public interest and for the purpose of protecting health and general welfare that a livestock diagnostic service program be established. [1969 c 100 § 1.] 16.38.020 16.38.020 Director authorized to carry on diagnostic program. The director of agriculture is hereby authorized to carry on a diagnostic service program for the purpose of diagnosing any livestock disease which affects or may affect any livestock which is or may be produced in this state or otherwise handled in any manner for public distribution or consumption. [1969 c 100 § 2.] 16.38.030 16.38.030 Employment of personnel. In carrying out such diagnostic service program the director of agriculture may employ, subject to the state civil service act, chapter 41.06 RCW, the necessary personnel to properly effectuate such diagnostic service program. [1969 c 100 § 3.] 16.49.005 16.49.008 16.49.015 16.49.025 16.49.035 16.49.045 16.49.055 16.49.065 16.49.075 16.49.085 16.49.095 16.49.105 16.49.115 16.49.125 Intent. Application. Definitions. Rules. Custom slaughtering and custom meat licenses—Generally. Inspections. Custom meat facilities—Conditions for preparation of inspected and uninspected meat. Licensed custom farm slaughterer—Transport of offal. Unlawful acts—Selling, trading, or giving away uninspected meat or meat products—Interfering with director’s duties. Violations of chapter or rules—Investigation by director— Subpoenas. Denial, suspension, revocation of license—Grounds—Request for hearing. Noncompliance with chapter or rules—Civil penalty. Application of administrative procedure act. Custom meat facilities—Sale of inspected meat—Ordinances may be more restrictive. 16.49.005 16.49.005 Intent. This chapter is intended to safeguard the household user of uninspected and inspected meat products from possible harm due to adulterated, misbranded, or unfit meat or meat products or meat or meat products that have been prepared under insanitary conditions. [2000 c 99 § 1.] 16.49.008 16.49.008 Application. (1) This chapter does not apply to the slaughter and preparation of one thousand or fewer pastured chickens in a calendar year by the agricultural producer of the chickens for the sale of whole raw chickens by the producer directly to the ultimate consumer at the producer’s farm. (2) For the purposes of this section, "chicken" means the species Gallus domesticus. [2003 c 397 § 1.] 16.49.015 16.38.040 16.38.040 Agreements and/or contracts with other entities. In carrying out such diagnostic service program the director of agriculture may enter into agreements and/or contracts with any other governmental agencies whether state or federal or public institution such as Washington State Uni(2006 Ed.) 16.49.015 Definitions. For the purposes of this chapter: (1) "Department" means the department of agriculture of the state of Washington. (2) "Director" means the director of the department or the director’s designee. [Title 16 RCW—page 13] 16.49.025 Title 16 RCW: Animals and Livestock (3) "Custom farm slaughterer" means a person licensed to slaughter meat food animals for the owner of the animal through the use of a mobile unit. (4) "Custom slaughtering establishment" means the facility operated by a person licensed to slaughter meat food animals for the owner of the animal at a fixed location. (5) "Custom meat facility" means the facility operated by a person licensed to prepare uninspected meat for the owner of the uninspected meat. Operators of custom meat facilities may also sell prepackaged inspected meat to any person. This chapter does not prohibit the operator of a custom meat facility from being licensed to prepare at the facility and sell inspected meat to any person. (6) "Inspected meat" means the carcasses or carcass parts of meat food animals which have been slaughtered and inspected at establishments subject to inspection under a federal meat inspection act. (7) "Uninspected meat" means the carcasses or carcass parts of meat food animals that have been slaughtered by the owner of the animals, a custom farm slaughterer, or at a custom slaughtering establishment. (8) "Household user" means the ultimate consumer, members of the consumer’s household, and his or her nonpaying guests and employees. (9) "Person" means any individual, partnership, association, and corporation. (10) "Meat food animal" means cattle, swine, sheep, or goats. (11) "Meat food bird" means a ratite, such as an ostrich, emu, or rhea. (12) "Official establishment" means an establishment operated for the purpose of slaughtering meat food animals for sale or use as human food in compliance with the federal meat inspection act. (13) "Prepared" means smoked, salted, rendered, boned, cut up, or otherwise processed. [2000 c 99 § 2; 1999 c 291 § 28; 1987 c 77 § 4. Formerly RCW 16.49.435.] Savings—1987 c 77: "This act does not affect any existing right acquired or liability or obligation incurred under the sections amended or repealed in this act or under any rule, regulation, or order adopted under those sections, and does not affect any proceeding instituted under those sections." [1987 c 77 § 12.] 16.49.025 16.49.025 Rules. The director shall enforce and carry out the provisions of this chapter and adopt rules necessary to carry out its purpose. The rules may include, but are not limited to: (1) Requirements for construction, equipment, cleaning, sanitation, and sanitary practices to ensure sanitary operations; (2) Requirements for identification or tagging of meat food animals slaughtered by licensees to maintain identification of the owner of the animal; (3) Requirements for handling and storing inspected and uninspected meats and meat products; (4) Requirements for labeling meat and meat products; and (5) Requirements for slaughtering and processing of meat food birds by licensees. [2000 c 99 § 3; 1987 c 77 § 5. Formerly RCW 16.49.680.] Savings—1987 c 77: See note following RCW 16.49.015. [Title 16 RCW—page 14] 16.49.035 16.49.035 Custom slaughtering and custom meat licenses—Generally. (1) It is unlawful for any person to operate as a custom farm slaughterer or to operate a custom slaughtering establishment or custom meat facility in the state without first obtaining a license from the director. Custom farm slaughterers must obtain a separate license for each mobile unit. Separate licenses are required for each custom slaughtering establishment and custom meat facility. (2) Application for a license must be made on a form prescribed by the director and accompanied by a twenty-five dollar license fee. The application must include: (a) The full name and address of the applicant. If the applicant is a partnership or corporation, the application must include the full name and address of each partner or officer; (b) The physical location address of each establishment or facility to be licensed; (c) The name and address of a resident of this state authorized to accept legal notices for the applicant; and (d) Any other information prescribed by the director. (3) If an application for renewal of a license and the license fee are not received by June 30th, the applicant must pay an additional fee of twenty-five dollars before the renewal license is issued. (4) Initial issuance of a license requires a prelicense inspection by the director for compliance with this chapter and rules adopted under this chapter. A license shall only be issued after an applicant is found to be in substantial compliance with this chapter and rules adopted under this chapter. (5) Licenses issued under this chapter expire June 30th of each year. (6) Licenses issued under this chapter are not transferrable. [2000 c 99 § 4; 1991 c 109 § 4; 1987 c 77 § 1; 1985 c 415 § 5; 1959 c 204 § 44. Formerly RCW 16.49.440.] Savings—1987 c 77: See note following RCW 16.49.015. 16.49.045 16.49.045 Inspections. To determine compliance with this chapter and the rules adopted under this chapter, the director may inspect the mobile unit of any custom farm slaughterer and the premises of any custom slaughtering establishment or custom meat facility at any reasonable time. [2000 c 99 § 5; 1987 c 77 § 8. Formerly RCW 16.49.690.] Savings—1987 c 77: See note following RCW 16.49.015. 16.49.055 16.49.055 Custom meat facilities—Conditions for preparation of inspected and uninspected meat. Inspected and uninspected meat may only be prepared by a custom meat facility under the following conditions: (1) Inspected meat and meat products prepared from inspected meat must be kept separated from uninspected meat and meat products prepared from uninspected meat to prevent inspected meat from coming into contact with uninspected meat. (2) Preparation of inspected meat and uninspected meat must be done at different times. (3) Equipment used in preparing uninspected meat or products prepared from uninspected meat must be cleaned and sanitized before being used to prepare inspected meat. (4) Uninspected meat may be prepared only for the use of the owner, who must be a household user. (2006 Ed.) Humane Slaughter of Livestock (5) Uninspected meat and meat products prepared from uninspected meat must be clearly marked and labeled "not for sale". (6) Packages of uninspected meat may not be stored in a retail counter. [2000 c 99 § 6; 1987 c 77 § 3; 1985 c 415 § 7; 1971 ex.s. c 98 § 3. Formerly RCW 16.49.610.] Savings—1987 c 77: See note following RCW 16.49.015. 16.49.065 16.49.065 Licensed custom farm slaughterer— Transport of offal. A licensed custom farm slaughterer may transport the offal of a meat food animal he or she has slaughtered for the owner, when it is transported as part of a slaughtering transaction and the offal is handled in a sanitary manner. [2000 c 99 § 7; 1967 ex.s. c 120 § 4. Formerly RCW 16.49.451.] 16.49.075 16.49.075 Unlawful acts—Selling, trading, or giving away uninspected meat or meat products—Interfering with director’s duties. It is unlawful for any person to: (1) Sell, trade, or give away uninspected meat or meat products; or (2) Interfere with the director in the performance of his or her duties under this chapter or the rules adopted under this chapter. [2000 c 99 § 8; 1987 c 77 § 9. Formerly RCW 16.49.700.] Savings—1987 c 77: See note following RCW 16.49.015. 16.49.085 16.49.085 Violations of chapter or rules—Investigation by director—Subpoenas. The director may investigate any violation or possible violation of this chapter or any rule adopted under this chapter. To assist in such investigation, the director may issue subpoenas to compel the attendance of witnesses or to compel production of records or documents anywhere in the state. [2000 c 99 § 9; 1987 c 77 § 10. Formerly RCW 16.49.710.] Savings—1987 c 77: See note following RCW 16.49.015. 16.49.105 16.49.105 Noncompliance with chapter or rules— Civil penalty. Any person who fails to comply with this chapter or the rules adopted under this chapter may be subject to a civil penalty in an amount of not more than one thousand dollars per violation per day. Each violation is a separate and distinct offense. All moneys collected for civil penalties under this chapter shall be deposited in the state general fund. [2000 c 99 § 11; 1994 c 128 § 2; 1985 c 415 § 6; 1959 c 204 § 51. Formerly RCW 16.49.510.] 16.49.115 16.49.115 Application of administrative procedure act. Chapter 34.05 RCW governs the rights, remedies, and procedures respecting the administration of this chapter, including rule making, assessment of civil penalties, emergency actions, and license suspension, revocation, or denial. [2000 c 99 § 12.] 16.49.125 16.49.125 Custom meat facilities—Sale of inspected meat—Ordinances may be more restrictive. The provisions of this chapter relating to the sale of inspected meat in custom meat facilities do not supersede or restrict the authority of any county or any city to adopt ordinances that are more restrictive for the handling and sale of inspected meat than those provided in this chapter. [2000 c 99 § 13; 1999 c 291 § 29; 1987 c 77 § 11; 1971 ex.s. c 98 § 9. Formerly RCW 16.49.670.] Savings—1987 c 77: See note following RCW 16.49.015. Chapter 16.50 RCW HUMANE SLAUGHTER OF LIVESTOCK Chapter 16.50 Sections 16.50.100 16.50.110 16.50.120 16.50.130 16.50.140 16.49.095 16.49.095 Denial, suspension, revocation of license— Grounds—Request for hearing. The director may deny, suspend, or revoke any license required under this chapter if the director determines that an applicant or licensee has committed any of the following acts: (1) Refused, neglected, or failed to comply with the provisions of this chapter, the rules adopted under this chapter, or any lawful order of the director; (2) Refused, neglected, or failed to keep and maintain records required under this chapter or rules adopted under this chapter to make the records available to the director on request; (3) Refused the director access to any facilities or parts of the facilities for the purpose of carrying out the provisions of this chapter or rules adopted under this chapter; or (4) Refused, neglected, or failed to comply with any provisions of chapter 69.04 RCW, intrastate commerce in food, drugs, and cosmetics, or rules adopted under that chapter. Upon receipt of notice by the director to deny, suspend, or revoke a license, a person may request a hearing under chapter 34.05 RCW. [2000 c 99 § 10; 1994 c 128 § 1; 1985 c 415 § 12. Formerly RCW 16.49.444.] (2006 Ed.) 16.50.110 16.50.150 16.50.160 16.50.170 16.50.900 Declaration of policy. Definitions. Humane methods for bleeding or slaughtering livestock required. Administration of chapter—Rules. Manually operated hammer, sledge or poleaxe—Declared inhumane. Religious freedom—Ritual slaughter defined as humane. Injunctions against violations. Penalty for violations. Severability—1967 c 31. 16.50.100 16.50.100 Declaration of policy. The legislature of the state of Washington finds that the use of humane methods in the slaughter of livestock prevents needless suffering; results in safer and better working conditions for persons engaged in the slaughtering industry; brings about improvement of products and economy in slaughtering operations; and produces other benefits for producers, processors and consumers which tend to expedite the orderly flow of livestock and their products. It is therefore declared to be the policy of the state of Washington to require that the slaughter of all livestock, and the handling of livestock in connection with slaughter, shall be carried out only by humane methods and to provide that methods of slaughter shall conform generally to those authorized by the Federal Humane Slaughter Act of 1958, and regulations thereunder. [1967 c 31 § 1.] 16.50.110 16.50.110 Definitions. For the purpose of this chapter: [Title 16 RCW—page 15] 16.50.120 Title 16 RCW: Animals and Livestock (1) "Department" means the department of agriculture of the state of Washington. (2) "Director" means the director of the department or his duly appointed representative. (3) "Humane method" means either: (a) A method whereby the animal is rendered insensible to pain by mechanical, electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast or cut; or (b) a method in accordance with the ritual requirements of any religious faith whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument. (4) "Livestock" means cattle, calves, sheep, swine, horses, mules and goats. (5) "Packer" means any person engaged in the business of slaughtering livestock. (6) "Person" means a natural person, individual, firm, partnership, corporation, company, society and association and every officer, agent or employee, thereof. This term shall import either the singular or plural, as the case may be. (7) "Slaughterer" means any person engaged in the commercial or custom slaughtering of livestock, including custom farm slaughterers. [1967 c 31 § 2.] 16.50.160 16.50.160 Injunctions against violations. The director may bring an action to enjoin the violation or threatened violation of any provision of this chapter or any rule adopted pursuant to this chapter in the superior court in the county in which such violation occurs or is about to occur, notwithstanding the existence of the other remedies at law. [1967 c 31 § 6.] 16.50.170 16.50.170 Penalty for violations. Any person violating any provision of this chapter or of any rule adopted hereunder is guilty of a misdemeanor and subject to a fine of not more than two hundred fifty dollars or confinement in the county jail for not more than ninety days. [1967 c 31 § 7.] 16.50.900 16.50.900 Severability—1967 c 31. If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances is not affected. [1967 c 31 § 9.] Chapter 16.52 RCW PREVENTION OF CRUELTY TO ANIMALS Chapter 16.52 Sections 16.52.011 16.52.015 16.50.120 16.50.120 Humane methods for bleeding or slaughtering livestock required. No slaughterer or packer shall bleed or slaughter any livestock except by a humane method: PROVIDED, That the director may, by administrative order, exempt a person from compliance with this chapter for a period of not to exceed six months if he finds that an earlier compliance would cause such person undue hardship. [1967 c 31 § 3.] 16.50.130 16.50.130 Administration of chapter—Rules. The director shall administer the provisions of this chapter. He shall adopt and may from time to time revise rules which shall conform substantially to the rules and regulations promulgated by the secretary of agriculture of the United States pursuant to the Federal Humane Slaughter Act of 1958, Public Law 85-765, 72 Stat. 862 and any amendments thereto. Such rules shall be adopted pursuant to the provisions of chapter 34.05 RCW as enacted or hereafter amended concerning the adoption of rules. [1967 c 31 § 4.] 16.50.140 16.50.140 Manually operated hammer, sledge or poleaxe—Declared inhumane. The use of a manually operated hammer, sledge or poleaxe is declared to be an inhumane method of slaughter within the meaning of this chapter. [1967 c 31 § 5.] 16.50.150 16.50.150 Religious freedom—Ritual slaughter defined as humane. Nothing in this chapter shall be construed to prohibit, abridge, or in any way hinder the religious freedom of any person or group. Notwithstanding any other provisions of this chapter, ritual slaughter and the handling or other preparation of livestock for ritual slaughter is defined as humane. [1967 c 31 § 10.] [Title 16 RCW—page 16] 16.52.020 16.52.025 16.52.080 16.52.085 16.52.090 16.52.095 16.52.100 16.52.110 16.52.117 16.52.165 16.52.180 16.52.185 16.52.190 16.52.193 16.52.200 16.52.205 16.52.207 16.52.210 16.52.220 16.52.225 16.52.230 16.52.300 16.52.305 Definitions—Principles of liability. Enforcement—Law enforcement agencies and animal care and control agencies. Humane societies—Enforcement authority. Humane societies—Animal control officers. Transporting or confining in unsafe manner—Penalty. Removal of animals for feeding—Examination—Notice— Euthanasia. Docking horses—Misdemeanor. Cutting ears—Misdemeanor. Confinement without food and water—Intervention by others. Old or diseased animals at large. Animal fighting—Prohibited behavior—Class C felony— Exceptions. Punishment—Conviction of misdemeanor. Limitations on application of chapter. Exclusions from chapter. Poisoning animals—Penalty. Poisoning animals—Strychnine sales—Records—Report on suspected purchases. Sentences—Forfeiture of animals—Liability for costs—Civil penalty—Education, counseling. Animal cruelty in the first degree. Animal cruelty in the second degree. Destruction of animal by law enforcement officer—Immunity from liability. Transfers of mammals for research—Certification requirements—Pet animals. Nonambulatory livestock—Transporting or accepting delivery—Gross misdemeanor—Definition. Remedies not impaired. Dogs or cats used as bait—Seizure—Limitation. Unlawful use of hook—Gross misdemeanor. Cruelty to stock in transit: RCW 81.56.120. Pet animals—Taking, concealing, injuring, killing, etc.—Penalty: RCW 9.08.070. 16.52.011 16.52.011 Definitions—Principles of liability. (1) Principles of liability as defined in chapter 9A.08 RCW apply to this chapter. (2) Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (a) "Animal" means any nonhuman mammal, bird, reptile, or amphibian. (2006 Ed.) Prevention of Cruelty to Animals (b) "Animal care and control agency" means any city or county animal control agency or authority authorized to enforce city or county municipal ordinances regulating the care, control, licensing, or treatment of animals within the city or county, and any corporation organized under RCW 16.52.020 that contracts with a city or county to enforce the city or county ordinances governing animal care and control. (c) "Animal control officer" means any individual employed, contracted, or appointed pursuant to RCW 16.52.025 by an animal care and control agency or humane society to aid in the enforcement of ordinances or laws regulating the care and control of animals. For purposes of this chapter, the term "animal control officer" shall be interpreted to include "humane officer" as defined in (e) of this subsection and RCW 16.52.025. (d) "Euthanasia" means the humane destruction of an animal accomplished by a method that involves instantaneous unconsciousness and immediate death, or by a method that causes painless loss of consciousness, and death during the loss of consciousness. (e) "Humane officer" means any individual employed, contracted, or appointed by an animal care and control agency or humane society as authorized under RCW 16.52.025. (f) "Law enforcement agency" means a general authority Washington law enforcement agency as defined in RCW 10.93.020. (g) "Necessary food" means the provision at suitable intervals of wholesome foodstuff suitable for the animal’s age and species and sufficient to provide a reasonable level of nutrition for the animal. (h) "Owner" means a person who has a right, claim, title, legal share, or right of possession to an animal or a person having lawful control, custody, or possession of an animal. (i) "Person" means individuals, corporations, partnerships, associations, or other legal entities, and agents of those entities. (j) "Substantial bodily harm" means substantial bodily harm as defined in RCW 9A.04.110. [1994 c 261 § 2.] Finding—Intent—1994 c 261: "The legislature finds there is a need to modernize the law on animal cruelty to more appropriately address the nature of the offense. It is not the intent of this act to remove or decrease any of the exemptions from the statutes on animal cruelty that now apply to customary animal husbandry practices, state game or fish laws, rodeos, fairs under chapter 15.76 RCW, or medical research otherwise authorized under federal or state law. It is the intent of this act to require the enforcement of chapter 16.52 RCW by persons who are accountable to elected officials at the local and state level." [1994 c 261 § 1.] 16.52.015 16.52.015 Enforcement—Law enforcement agencies and animal care and control agencies. (1) Law enforcement agencies and animal care and control agencies may enforce the provisions of this chapter. Animal care and control agencies may enforce the provisions of this chapter in a county or city only if the county or city legislative authority has entered into a contract with the agency to enforce the provisions of this chapter. (2) Animal control officers enforcing this chapter shall comply with the same constitutional and statutory restrictions concerning the execution of police powers imposed on law enforcement officers who enforce this chapter and other criminal laws of the state of Washington. (2006 Ed.) 16.52.025 (3) Animal control officers have the following enforcement powers when enforcing this chapter: (a) The power to issue citations based on probable cause to offenders for misdemeanor and gross misdemeanor violations of this chapter or RCW 9.08.070 through 9.08.078 or 81.56.120; (b) The power to cause a law enforcement officer to arrest and take into custody any person the animal control officer has probable cause to believe has committed or is committing a violation of this chapter or RCW 9.08.070 or 81.56.120. Animal control officers may make an oral complaint to a prosecuting attorney or a law enforcement officer to initiate arrest. The animal control officer causing the arrest shall file with the arresting agency a written complaint within twenty-four hours of the arrest, excluding Sundays and legal holidays, stating the alleged act or acts constituting a violation; (c) The power to carry nonfirearm protective devices for personal protection; (d) The power to prepare affidavits in support of search warrants and to execute search warrants when accompanied by law enforcement officers to investigate violations of this chapter or RCW 9.08.070 or 81.56.120, and to seize evidence of those violations. (4) Upon request of an animal control officer who has probable cause to believe that a person has violated this chapter or RCW 9.08.070 or 81.56.120, a law enforcement agency officer may arrest the alleged offender. [2003 c 53 § 110; 1994 c 261 § 3.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.020 16.52.020 Humane societies—Enforcement authority. Any citizens of the state of Washington incorporated under the laws of this state as a humane society or as a society for the prevention of cruelty to animals may enforce the provisions of this chapter through its animal control officers subject to the limitations in RCW 16.52.015 and 16.52.025. The legislative authority in each county may grant exclusive authority to exercise the privileges and authority granted by this section to one or more qualified corporations for a period of up to three years based upon ability to fulfill the purposes of this chapter. [1994 c 261 § 4; 1973 1st ex.s. c 125 § 1; 1901 c 146 § 1; RRS § 3184.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.025 16.52.025 Humane societies—Animal control officers. Trustees of humane societies incorporated pursuant to RCW 16.52.020 may appoint society members to act as animal control officers. The trustee appointments shall be in writing. The appointment shall be effective in a particular county only if an appointee obtains written authorization from the superior court of the county in which the appointee seeks to enforce this chapter. To obtain judicial authorization, an appointee seeking judicial authorization on or after June 9, 1994, shall provide evidence satisfactory to the judge that the appointee has successfully completed training which has prepared the appointee to assume the powers granted to animal control officers pursuant to RCW 16.52.015. The trustees [Title 16 RCW—page 17] 16.52.080 Title 16 RCW: Animals and Livestock shall review appointments every three years and may revoke an appointment at any time by filing a certified revocation with the superior court that approved the appointment. Authorizations shall not exceed three years or trustee termination, whichever occurs first. To qualify for reappointment when a term expires on or after June 9, 1994, the officer shall obtain training or satisfy the court that the officer has sufficient experience to exercise the powers granted to animal control officers pursuant to RCW 16.52.015. [1994 c 261 § 5.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.080 16.52.080 Transporting or confining in unsafe manner—Penalty. Any person who wilfully transports or confines or causes to be transported or confined any domestic animal or animals in a manner, posture or confinement that will jeopardize the safety of the animal or the public shall be guilty of a misdemeanor. And whenever any such person shall be taken into custody or be subject to arrest pursuant to a valid warrant therefor by any officer or authorized person, such officer or person may take charge of the animal or animals; and any necessary expense thereof shall be a lien thereon to be paid before the animal or animals may be recovered; and if the expense is not paid, it may be recovered from the owner of the animal or the person guilty. [1982 c 114 § 5; 1974 ex.s. c 12 § 1; 1901 c 146 § 5; RRS § 3188. Prior: 1893 c 27 § 2, part; Code 1881 § 930, part.] Cruelty to stock in transit: RCW 81.56.120. 16.52.085 16.52.085 Removal of animals for feeding—Examination—Notice—Euthanasia. (1) If a law enforcement officer or animal control officer has probable cause to believe that an owner of a domestic animal has violated this chapter and no responsible person can be found to assume the animal’s care, the officer may authorize, with a warrant, the removal of the animal to a suitable place for feeding and care, or may place the animal under the custody of an animal care and control agency. In determining what is a suitable place, the officer shall consider the animal’s needs, including its size and behavioral characteristics. An officer may remove an animal under this subsection without a warrant only if the animal is in an immediate life-threatening condition. (2) If a law enforcement officer or an animal control officer has probable cause to believe a violation of this chapter has occurred, the officer may authorize an examination of a domestic animal allegedly neglected or abused in violation of this chapter by a veterinarian to determine whether the level of neglect or abuse in violation of this chapter is sufficient to require removal of the animal. This section does not condone illegal entry onto private property. (3) Any owner whose domestic animal is removed pursuant to this chapter shall be given written notice of the circumstances of the removal and notice of legal remedies available to the owner. The notice shall be given by posting at the place of seizure, by delivery to a person residing at the place of seizure, or by registered mail if the owner is known. In making the decision to remove an animal pursuant to this chapter, the officer shall make a good faith effort to contact the animal’s owner before removal. [Title 16 RCW—page 18] (4) The agency having custody of the animal may euthanize the animal or may find a responsible person to adopt the animal not less than fifteen business days after the animal is taken into custody. A custodial agency may euthanize severely injured, diseased, or suffering animals at any time. An owner may prevent the animal’s destruction or adoption by: (a) Petitioning the district court of the county where the animal was seized for the animal’s immediate return subject to court-imposed conditions, or (b) posting a bond or security in an amount sufficient to provide for the animal’s care for a minimum of thirty days from the seizure date. If the custodial agency still has custody of the animal when the bond or security expires, the animal shall become the agency’s property unless the court orders an alternative disposition. If a court order prevents the agency from assuming ownership and the agency continues to care for the animal, the court shall order the owner to renew a bond or security for the agency’s continuing costs for the animal’s care. (5) If no criminal case is filed within fourteen business days of the animal’s removal, the owner may petition the district court of the county where the animal was removed for the animal’s return. The petition shall be filed with the court, with copies served to the law enforcement or animal care and control agency responsible for removing the animal and to the prosecuting attorney. If the court grants the petition, the agency which seized the animal must deliver the animal to the owner at no cost to the owner. If a criminal action is filed after the petition is filed but before the animal is returned, the petition shall be joined with the criminal matter. (6) In a motion or petition for the animal’s return before a trial, the burden is on the owner to prove by a preponderance of the evidence that the animal will not suffer future neglect or abuse and is not in need of being restored to health. (7) Any authorized person treating or attempting to restore an animal to health under this chapter shall not be civilly or criminally liable for such action. [1994 c 261 § 6; 1987 c 335 § 1; 1974 ex.s. c 12 § 2.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. Construction—1987 c 335: "Nothing in this act shall be construed as expanding or diminishing, in any manner whatsoever, any authority granted officers under RCW 16.52.020 or 16.52.030." [1987 c 335 § 6.] Severability—1987 c 335: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1987 c 335 § 7.] 16.52.090 16.52.090 Docking horses—Misdemeanor. Every person who shall cut or cause to be cut, or assist in cutting the solid part of the tail of any horse in the operation known as "docking," or in any other operation for the purpose of shortening the tail or changing the carriage thereof, shall be guilty of a misdemeanor. [1901 c 146 § 6; RRS § 3189. FORMER PART OF SECTION: Code 1881 § 840; 1871 p 103 § 1; RRS § 3206, now codified as RCW 16.52.095.] 16.52.095 16.52.095 Cutting ears—Misdemeanor. It shall not be lawful for any person to cut off more than one-half of the ear or ears of any domestic animal such as an ox, cow, bull, calf, sheep, goat or hog, or dog, and any person cutting off more than one-half of the ear or ears of any such animals, shall be deemed guilty of a misdemeanor, and upon conviction, shall (2006 Ed.) Prevention of Cruelty to Animals be fined in any sum less than twenty dollars. This section does not apply if cutting off more than one-half of the ear of the animal is a customary husbandry practice. [1994 c 261 § 7; Code 1881 § 840; 1871 p 103 § 1; RRS § 3206. Formerly RCW 16.52.090, part.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.100 16.52.100 Confinement without food and water— Intervention by others. If any domestic animal is impounded or confined without necessary food and water for more than thirty-six consecutive hours, any person may, from time to time, as is necessary, enter into and open any pound or place of confinement in which any domestic animal is confined, and supply it with necessary food and water so long as it is confined. The person shall not be liable to action for the entry, and may collect from the animal’s owner the reasonable cost of the food and water. The animal shall be subject to attachment for the costs and shall not be exempt from levy and sale upon execution issued upon a judgment. If an investigating officer finds it extremely difficult to supply confined animals with food and water, the officer may remove the animals to protective custody for that purpose. [1994 c 261 § 10; 1982 c 114 § 6; 1901 c 146 § 12; RRS § 3195.] 16.52.190 (d) Suffers or permits any place over which the person has possession or control to be occupied, kept, or used for the purpose of an exhibition of animal fighting; or (e) Takes, leads away, possesses, confines, sells, transfers, or receives a stray animal or a pet animal, with the intent to deprive the owner of the pet animal, and with the intent of using the stray animal or pet animal for animal fighting, or for training or baiting for the purpose of animal fighting. (2) A person who violates this section is guilty of a class C felony punishable under RCW 9A.20.021. (3) Nothing in this section prohibits the following: (a) The use of dogs in the management of livestock, as defined by chapter 16.57 RCW, by the owner of the livestock or the owner’s employees or agents or other persons in lawful custody of the livestock; (b) The use of dogs in hunting as permitted by law; or (c) The training of animals or the use of equipment in the training of animals for any purpose not prohibited by law. (4) For the purposes of this section, "animal" means dogs or male chickens. [2006 c 287 § 1; 2005 c 481 § 3; 1994 c 261 § 11; 1982 c 114 § 9.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.165 Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.110 16.52.110 Old or diseased animals at large. Every owner, driver, or possessor of any old, maimed or diseased horse, cow, mule, or other domestic animal, who shall permit the same to go loose in any lane, street, square, or lot or place of any city or township, without proper care and attention, for more than three hours after knowledge thereof, shall be guilty of a misdemeanor: PROVIDED, That this shall not apply to any such owner keeping any old or diseased animal belonging to him on his own premises with proper care. Every sick, disabled, infirm or crippled horse, ox, mule, cow or other domestic animal, which shall be abandoned on the public highway, or in any open or enclosed space in any city or township, may, if, after search by a peace officer or officer of such society no owner can be found therefor, be killed by such officer; and it shall be the duty of all peace and public officers to cause the same to be killed on information of such abandonment. [1901 c 146 § 13; RRS § 3196.] 16.52.117 16.52.117 Animal fighting—Prohibited behavior— Class C felony—Exceptions. (1) A person commits the crime of animal fighting if the person knowingly does any of the following: (a) Owns, possesses, keeps, breeds, trains, buys, sells, or advertises or offers for sale any animal with the intent that the animal shall be engaged in an exhibition of fighting with another animal; (b) Knowingly promotes, organizes, conducts, participates in, is a spectator of, advertises, prepares, or performs any service in the furtherance of, an exhibition of animal fighting, transports spectators to an animal fight, or provides or serves as a stakeholder for any money wagered on an animal fight at any place or building; (c) Keeps or uses any place for the purpose of animal fighting, or manages or accepts payment of admission to any place kept or used for the purpose of animal fighting; (2006 Ed.) 16.52.165 Punishment—Conviction of misdemeanor. Every person convicted of any misdemeanor under RCW 16.52.080 or 16.52.090 shall be punished by a fine of not exceeding one hundred and fifty dollars, or by imprisonment in the county jail not exceeding sixty days, or both such fine and imprisonment, and shall pay the costs of the prosecution. [1982 c 114 § 7; 1901 c 146 § 16; RRS § 3199. Formerly RCW 16.52.160, part.] 16.52.180 16.52.180 Limitations on application of chapter. No part of this chapter shall be deemed to interfere with any of the laws of this state known as the "game laws," nor be deemed to interfere with the right to destroy any venomous reptile or any known as dangerous to life, limb or property, or to interfere with the right to kill animals to be used for food or with any properly conducted scientific experiments or investigations, which experiments or investigations shall be performed only under the authority of the faculty of some regularly incorporated college or university of the state of Washington or a research facility registered with the United States department of agriculture and regulated by 7 U.S.C. Sec. 2131 et seq. [1994 c 261 § 12; 1901 c 146 § 18; RRS § 3201.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.185 16.52.185 Exclusions from chapter. Nothing in this chapter applies to accepted husbandry practices used in the commercial raising or slaughtering of livestock or poultry, or products thereof or to the use of animals in the normal and usual course of rodeo events or to the customary use or exhibiting of animals in normal and usual events at fairs as defined in RCW 15.76.120. [1994 c 261 § 22; 1982 c 114 § 10.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.190 16.52.190 Poisoning animals—Penalty. (1) Except as provided in subsections (2) and (3) of this section, a person is guilty of the crime of poisoning animals if the person inten[Title 16 RCW—page 19] 16.52.193 Title 16 RCW: Animals and Livestock tionally or knowingly poisons an animal under circumstances which do not constitute animal cruelty in the first degree. (2) Subsection (1) of this section shall not apply to euthanizing by poison an animal in a lawful and humane manner by the animal’s owner, or by a duly authorized servant or agent of the owner, or by a person acting pursuant to instructions from a duly constituted public authority. (3) Subsection (1) of this section shall not apply to the reasonable use of rodent or pest poison, insecticides, fungicides, or slug bait for their intended purposes. As used in this section, the term "rodent" includes but is not limited to Columbia ground squirrels, other ground squirrels, rats, mice, gophers, rabbits, and any other rodent designated as injurious to the agricultural interests of the state as provided in *chapter 17.16 RCW. The term "pest" as used in this section includes any pest as defined in RCW 17.21.020. (4) A person violating this section is guilty of a gross misdemeanor. [2003 c 53 § 111; 1994 c 261 § 13; 1941 c 105 § 1; RRS § 3207-1. Formerly RCW 16.52.150, part.] *Reviser’s note: Chapter 17.16 RCW was repealed by 1994 c 11 § 1. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.193 Poisoning animals—Strychnine sales— Records—Report on suspected purchases. (1) It is unlawful for any person other than a registered pharmacist to sell at retail or furnish to any person any strychnine: PROVIDED, That nothing herein prohibits county, state, or federal agents, in the course of their duties, from furnishing strychnine to any person. Every such registered pharmacist selling or furnishing such strychnine shall, before delivering the same, record the transaction as provided in RCW 69.38.030. If any such registered pharmacist suspects that any person desiring to purchase strychnine intends to use the same for the purpose of poisoning unlawfully any domestic animal or domestic bird, he or she may refuse to sell to such person, but whether or not he or she makes such sale, he or she shall if he or she so suspects an intention to use the strychnine unlawfully, immediately notify the nearest peace officer, giving such officer a complete description of the person purchasing, or attempting to purchase, such strychnine. (2) A person violating this section is guilty of a gross misdemeanor. [2003 c 53 § 112; 1987 c 34 § 7; 1941 c 105 § 2; Rem. Supp. 1941 § 3207-2. Formerly RCW 18.67.110.] 16.52.193 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 16.52.200 Sentences—Forfeiture of animals—Liability for costs—Civil penalty—Education, counseling. (1) The sentence imposed for a misdemeanor or gross misdemeanor violation of this chapter may be deferred or suspended in accordance with RCW 3.66.067 and 3.66.068, however the probationary period shall be two years. (2) In case of multiple misdemeanor or gross misdemeanor convictions, the sentences shall be consecutive, however the probationary period shall remain two years. (3) In addition to the penalties imposed by the court, the court shall order the forfeiture of all animals held by law enforcement or animal care and control authorities under the provisions of this chapter if any one of the animals involved 16.52.200 [Title 16 RCW—page 20] dies as a result of a violation of this chapter or if the defendant has a prior conviction under this chapter. In other cases the court may enter an order requiring the owner to forfeit the animal if the court deems the animal’s treatment to have been severe and likely to reoccur. If forfeiture is ordered, the owner shall be prohibited from owning or caring for any similar animals for a period of two years. The court may delay its decision on forfeiture under this subsection until the end of the probationary period. (4) In addition to fines and court costs, the defendant, only if convicted or in agreement, shall be liable for reasonable costs incurred pursuant to this chapter by law enforcement agencies, animal care and control agencies, or authorized private or public entities involved with the care of the animals. Reasonable costs include expenses of the investigation, and the animal’s care, euthanization, or adoption. (5) If convicted, the defendant shall also pay a civil penalty of one thousand dollars to the county to prevent cruelty to animals. These funds shall be used to prosecute offenses under this chapter and to care for forfeited animals pending trial. (6) As a condition of the sentence imposed under this chapter or RCW 9.08.070 through 9.08.078, the court may also order the defendant to participate in an available animal cruelty prevention or education program or obtain available psychological counseling to treat mental health problems contributing to the violation’s commission. The defendant shall bear the costs of the program or treatment. [2003 c 53 § 113; 1994 c 261 § 14; 1987 c 335 § 2.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Finding—Intent—1994 c 261: See note following RCW 16.52.011. Construction—Severability—1987 c 335: See notes following RCW 16.52.085. 16.52.205 16.52.205 Animal cruelty in the first degree. (1) A person is guilty of animal cruelty in the first degree when, except as authorized in law, he or she intentionally (a) inflicts substantial pain on, (b) causes physical injury to, or (c) kills an animal by a means causing undue suffering, or forces a minor to inflict unnecessary pain, injury, or death on an animal. (2) A person is guilty of animal cruelty in the first degree when, except as authorized by law, he or she, with criminal negligence, starves, dehydrates, or suffocates an animal and as a result causes: (a) Substantial and unjustifiable physical pain that extends for a period sufficient to cause considerable suffering; or (b) death. (3) A person is guilty of animal cruelty in the first degree when he or she: (a) Knowingly engages in any sexual conduct or sexual contact with an animal; (b) Knowingly causes, aids, or abets another person to engage in any sexual conduct or sexual contact with an animal; (c) Knowingly permits any sexual conduct or sexual contact with an animal to be conducted on any premises under his or her charge or control; (d) Knowingly engages in, organizes, promotes, conducts, advertises, aids, abets, participates in as an observer, or performs any service in the furtherance of an act involving (2006 Ed.) Prevention of Cruelty to Animals any sexual conduct or sexual contact with an animal for a commercial or recreational purpose; or (e) Knowingly photographs or films, for purposes of sexual gratification, a person engaged in a sexual act or sexual contact with an animal. (4) Animal cruelty in the first degree is a class C felony. (5) In addition to the penalty imposed in subsection (4) of this section, the court may order that the convicted person do any of the following: (a) Not harbor or own animals or reside in any household where animals are present; (b) Participate in appropriate counseling at the defendant’s expense; (c) Reimburse the animal shelter or humane society for any reasonable costs incurred for the care and maintenance of any animals taken to the animal shelter or humane society as a result of conduct proscribed in subsection (3) of this section. (6) Nothing in this section may be considered to prohibit accepted animal husbandry practices or accepted veterinary medical practices by a licensed veterinarian or certified veterinary technician. (7) If the court has reasonable grounds to believe that a violation of this section has occurred, the court may order the seizure of all animals involved in the alleged violation as a condition of bond of a person charged with a violation. (8) For purposes of this section: (a) "Animal" means every creature, either alive or dead, other than a human being. (b) "Sexual conduct" means any touching or fondling by a person, either directly or through clothing, of the sex organs or anus of an animal or any transfer or transmission of semen by the person upon any part of the animal, for the purpose of sexual gratification or arousal of the person. (c) "Sexual contact" means any contact, however slight, between the mouth, sex organ, or anus of a person and the sex organ or anus of an animal, or any intrusion, however slight, of any part of the body of the person into the sex organ or anus of an animal, or any intrusion of the sex organ or anus of the person into the mouth of the animal, for the purpose of sexual gratification or arousal of the person. (d) "Photographs" or "films" means the making of a photograph, motion picture film, videotape, digital image, or any other recording, sale, or transmission of the image. [2006 c 191 § 1; 2005 c 481 § 1; 1994 c 261 § 8.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.207 16.52.207 Animal cruelty in the second degree. (1) A person is guilty of animal cruelty in the second degree if, under circumstances not amounting to first degree animal cruelty, the person knowingly, recklessly, or with criminal negligence inflicts unnecessary suffering or pain upon an animal. (2) An owner of an animal is guilty of animal cruelty in the second degree if, under circumstances not amounting to first degree animal cruelty, the owner knowingly, recklessly, or with criminal negligence: (a) Fails to provide the animal with necessary shelter, rest, sanitation, space, or medical attention and the animal (2006 Ed.) 16.52.220 suffers unnecessary or unjustifiable physical pain as a result of the failure; or (b) Abandons the animal. (3) Animal cruelty in the second degree is a misdemeanor. (4) In any prosecution of animal cruelty in the second degree, it shall be an affirmative defense, if established by the defendant by a preponderance of the evidence, that the defendant’s failure was due to economic distress beyond the defendant’s control. [2005 c 481 § 2; 1994 c 261 § 9.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.210 Destruction of animal by law enforcement officer—Immunity from liability. This chapter shall not limit the right of a law enforcement officer to destroy an animal that has been seriously injured and would otherwise continue to suffer. Such action shall be undertaken with reasonable prudence and, whenever possible, in consultation with a licensed veterinarian and the owner of the animal. Law enforcement officers and licensed veterinarians shall be immune from civil and criminal liability for actions taken under this chapter if reasonable prudence is exercised in carrying out the provisions of this chapter. [1987 c 335 § 3.] 16.52.210 Construction—Severability—1987 c 335: See notes following RCW 16.52.085. 16.52.220 Transfers of mammals for research—Certification requirements—Pet animals. (1) All transfers of mammals, other than rats and mice bred for use in research and livestock, to research institutions in this state, whether by sale or otherwise, shall conform with federal laws and, except as to those animals obtained from a source outside the United States, shall be accompanied by one of the following written certifications, dated and signed under penalty of perjury: (a) Breeder certification: A written statement certifying that the person signing the certification is a United States department of agriculture-licensed class A dealer whose business license in the state of Washington includes only those animals that the dealer breeds and raises as a closed or stable colony and those animals that the dealer acquires for the sole purpose of maintaining or enhancing the dealer’s breeding colony, that the animal being sold is one of those animals, and that the person signing the certification is authorized to do so. The certification shall also include an identifying number for the dealer, such as a business license number. (b) True owner certification: A written statement certifying that the animal being transferred is owned by the person signing the certification, and that the person signing the certification either (i) has no personal knowledge or reason to believe that the animal is a pet animal, or (ii) consents to having the animal used for research at a research institution. The certification shall also state the date that the owner obtained the animal, and the person or other source from whom it was obtained. The certification shall also include an identifying number for the person signing the certification, such as a drivers’ license number or business license number. The certifications signed by or on behalf of a humane society, animal control agency, or animal shelter need not contain a statement that the society, agency, or shelter owns the animal, but shall state that the animal has been in the possession of the society, 16.52.220 [Title 16 RCW—page 21] 16.52.225 Title 16 RCW: Animals and Livestock agency, or shelter for the minimum period required by law that entitles it to legally dispose of the animal. (2) In addition to the foregoing certification, all research institutions in this state shall open at the time a dog or cat is transferred to it a file that contains the following information for each dog or cat transferred to the institution: (a) All information required by federal law; (b) The certification required by this section; and (c) A brief description of the dog or cat (e.g. breed, color, sex, any identifying characteristics), and a photograph of the dog or cat. The brief description may be contained in the written certification. These files shall be maintained and open for public inspection for a period of at least two years from the date of acquisition of the animal. (3) All research institutions in this state shall, within one hundred eighty days of May 12, 1989, adopt and operate under written policies governing the acquisition of animals to be used in biomedical or product research at that institution. The written policies shall be binding on all employees, agents, or contractors of the institution. These policies must contain, at a minimum, the following provisions: (a) Animals shall be acquired in accordance with the federal animal welfare act, public health service policy, and other applicable statutes and regulations; (b) No research may be conducted on a pet animal without the written permission of the pet animal’s owner; (c) Any animal acquired by the institution that is determined to be a pet animal shall be returned to its legal owner, unless the institution has the owner’s written permission to retain the animal; and (d) A person at the institution shall be designated to have the responsibility for investigating any facts supporting the possibility that an animal in the institution’s possession may be a pet animal, including any inquiries from citizens regarding their pets. This person shall devise and insure implementation of procedures to inform inquiring citizens of their right to prompt review of the relevant files required to be kept by the institution for animals obtained under subsection (2) of this section, and shall be responsible for facilitating the rapid return of any animal determined to be a pet animal to the legal owner who has not given the institution permission to have the animal or transferred ownership of it to the institution. (4) For the purposes of this section, "research institution" means any facility licensed by the United States department of agriculture to use animals in biomedical or product research. [1989 c 359 § 3.] Application of consumer protection act: RCW 19.86.145. 16.52.225 16.52.225 Nonambulatory livestock—Transporting or accepting delivery—Gross misdemeanor—Definition. (1) A person is guilty of a gross misdemeanor punishable as provided in RCW 9A.20.021 if he or she knowingly transports or accepts delivery of live nonambulatory livestock to, from, or between any livestock market, feedlot, slaughtering facility, or similar facility that trades in livestock. The transport or acceptance of each nonambulatory livestock animal is considered a separate and distinct violation. [Title 16 RCW—page 22] (2) Nonambulatory livestock must be humanely euthanized before transport to, from, or between locations listed in subsection (1) of this section. (3) Livestock that was ambulatory prior to transport to a feedlot and becomes nonambulatory because of an injury sustained during transport may be unloaded and placed in a separate pen for rehabilitation at the feedlot. (4) For the purposes of this section, "nonambulatory livestock" means cattle, sheep, swine, goats, horses, mules, or other equine that cannot rise from a recumbent position or cannot walk, including but not limited to those with broken appendages, severed tendons or ligaments, nerve paralysis, a fractured vertebral column, or metabolic conditions. [2004 c 234 § 1.] Effective date—2004 c 234: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 31, 2004]." [2004 c 234 § 2.] 16.52.230 16.52.230 Remedies not impaired. No provision of RCW 9.08.070 through 9.08.078 or 16.52.220 shall in any way interfere with or impair the operation of any other provision of this chapter or Title 28B RCW, relating to higher education or biomedical research. The provisions of RCW 9.08.070 through 9.08.078 and 16.52.220 are cumulative and nonexclusive and shall not affect any other remedy. [2003 c 53 § 114; 1989 c 359 § 5.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 16.52.300 16.52.300 Dogs or cats used as bait—Seizure—Limitation. (1) If any person commits the crime of animal cruelty in the first or second degree by using or trapping to use domestic dogs or cats as bait, prey, or targets for the purpose of training dogs or other animals to track, fight, or hunt, law enforcement officers or animal control officers shall seize and hold the animals being trained. The seized animals shall be disposed of by the court pursuant to the provisions of RCW 16.52.200(3). (2) This section shall not in any way interfere with or impair the operation of any provision of Title 28B RCW, relating to higher education or biomedical research. [1994 c 261 § 15; 1990 c 226 § 1.] Finding—Intent—1994 c 261: See note following RCW 16.52.011. 16.52.305 16.52.305 Unlawful use of hook—Gross misdemeanor. (1) A person is guilty of the unlawful use of a hook if the person utilizes, or attempts to use, a hook with the intent to pierce the flesh or mouth of a bird or mammal. (2) Unlawful use of a hook is a gross misdemeanor. [2004 c 220 § 1.] Effective date—2004 c 220: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 29, 2004]." [2004 c 220 § 2.] Chapter 16.54 Chapter 16.54 RCW ABANDONED ANIMALS Sections 16.54.010 When deemed abandoned. (2006 Ed.) Identification of Livestock 16.54.020 16.54.030 Disposition of abandoned animal by person having custody. Duty of sheriff—Sale—Disposition of proceeds. 16.54.010 16.54.010 When deemed abandoned. An animal is deemed to be abandoned under the provisions of this chapter when it is placed in the custody of a veterinarian, boarding kennel owner, or any person for treatment, board, or care and: (1) Having been placed in such custody for an unspecified period of time the animal is not removed within fifteen days after notice to remove the animal has been given to the person who placed the animal in such custody or having been so notified the person depositing the animal refuses or fails to pay agreed upon or reasonable charges for the treatment, board, or care of such animal, or; (2) Having been placed in such custody for a specified period of time the animal is not removed at the end of such specified period or the person depositing the animal refuses to pay agreed upon or reasonable charges for the treatment, board, or care of such animal. [1977 ex.s. c 67 § 1; 1955 c 190 § 1.] 16.57.105 16.57.110 16.57.120 16.57.130 16.57.140 16.57.150 16.57.153 16.57.160 16.57.165 16.57.170 16.57.180 16.57.200 16.57.210 16.57.220 16.57.223 16.57.230 16.57.240 16.57.243 16.57.245 16.57.260 16.57.267 16.57.270 16.57.275 16.54.020 16.54.020 Disposition of abandoned animal by person having custody. Any person having in his care, custody, or control any abandoned animal as defined in RCW 16.54.010, may deliver such animal to any humane society having facilities for the care of such animals or to any pound maintained by or under contract or agreement with any city or county within which such animal was abandoned. If no such humane society or pound exists within the county the person with whom the animal was abandoned may notify the sheriff of the county wherein the abandonment occurred. [1955 c 190 § 2.] 16.57.277 16.57.280 16.57.290 16.57.300 16.57.303 16.57.310 16.57.320 16.57.330 16.57.340 16.54.030 16.54.030 Duty of sheriff—Sale—Disposition of proceeds. It shall be the duty of the sheriff of such county upon being so notified, to dispose of such animal as provided by law in reference to estrays if such law is applicable to the animal abandoned, or if not so applicable then such animal shall be sold by the sheriff at public auction. Notice of any such sale shall be given by posting a notice in three public places in the county at least ten days prior to such public sale. Proceeds of such sale shall be paid to the county treasurer for deposit in the county general fund. [1955 c 190 § 3.] Chapter 16.57 Chapter 16.57 RCW IDENTIFICATION OF LIVESTOCK Sections 16.57.010 16.57.015 16.57.020 16.57.023 16.57.025 16.57.030 16.57.040 16.57.050 16.57.060 16.57.070 16.57.080 16.57.090 16.57.100 (2006 Ed.) Definitions. Livestock identification advisory board—Rule review—Fee setting. Livestock brands—Director is the recorder—Recording fee. Permanent renewal of brands—Heritage brands—Fees. Livestock inspection—Licensed and accredited veterinarians—Fees. Tattoo brands and marks not recordable. Production record brands. Use of unrecorded brand prohibited—Exception. Brands similar to governmental brands not to be recorded. Conflicting claims to brand. Renewal of recorded brands—Schedule—Fee—Failure to pay. Brand is personal property—Instruments affecting title, recording, effect—Fee—Nonliability of director for agents. Right to use brand—Brand as evidence of title. 16.57.350 16.57.353 16.57.360 16.57.370 16.57.400 16.57.405 16.57.407 16.57.410 16.57.420 16.57.900 16.57.901 16.57.902 16.57.010 Preemptory right to use brand. Size and characteristics of brand. Removal or alteration of brand—Penalty. Similar brands not to be recorded. Certified copy of record of brand—Fee. Brand book—Contents—Costs. Administration of brands—Rules. Cattle or horses—Rules—Mandatory inspection points. Agreements with others to perform livestock inspection. Inspection of livestock, hides, records. Search warrants. Duty of owner or agent—Livestock inspection. Arrest without warrant. Livestock inspection—Fee schedule—Certificates. Payment of inspection fee—Due at inspection—Lien—Late fee. Charges for livestock inspection—Actual inspection required. Certificates of permit, inspection, self-inspection. Moving or transporting cattle—Certificate or proof of ownership must accompany—Exceptions. Authority to stop vehicles carrying cattle or horses. Removal of cattle or horses from state—Inspection certificate required. Failure to present animal for inspection. Unlawful to refuse assistance in establishing identity and ownership of livestock. Transporting cattle carcass or primal part—Certificate of permit required. Custom slaughter beef tags—Fee—Rules. Possession of cattle or horse marked with another’s brand— Penalty. Impounding cattle and horses—No certificate or proof of ownership when offered for sale—Disposition. Proceeds from sale of impounded cattle and horses—Paid to director—Exception. Proceeds from sale of impounded dairy breed cattle—Paid to seller. Notice of sale—Claim on proceeds. Disposition of proceeds of sale when no proof of ownership— Penalty for accepting proceeds after sale, barter, trade. Disposition of proceeds of sale—No claim made—No proof of ownership provided. Reciprocal agreements—When livestock from another state an estray, sale. Rules—Enforcement of chapter. Rules—Compliance with federal requirements. Civil infractions. Disposition of fees. Horse and cattle identification—Inspection when consigned for sale. Microchip in a horse—Removal with intent to defraud—Gross misdemeanor. Microchip in a horse—Authority to investigate removal. Horses—Registering agencies—Permit required—Fee— Records—Identification symbol inspections—Rules. Ratite identification. Severability—1959 c 54. Severability—1967 c 240. Effective dates—2003 c 326. 16.57.010 16.57.010 Definitions. For the purpose of this chapter: (1) "Department" means the department of agriculture of the state of Washington. (2) "Director" means the director of the department or his or her duly authorized representative. (3) "Person" means a natural person, individual, firm, partnership, corporation, company, society, and association, and every officer, agent or employee thereof. This term shall import either the singular or the plural as the case may be. (4) "Livestock" includes, but is not limited to, horses, mules, cattle, sheep, swine, and goats. (5) "Brand" means a permanent fire brand or any artificial mark, other than an individual identification symbol, approved by the director to be used in conjunction with a brand or by itself. [Title 16 RCW—page 23] 16.57.015 Title 16 RCW: Animals and Livestock (6) "Production record brand" means a number brand which shall be used for production identification purposes only. (7) "Livestock inspection" or "inspection" means the examination of livestock or livestock hides for brands or any means of identifying livestock or livestock hides including the examination of documents providing evidence of ownership. (8) "Individual identification symbol" means a permanent mark placed on a horse for the purpose of individually identifying and registering the horse and which has been approved for use as such by the director. (9) "Registering agency" means any person issuing an individual identification symbol for the purpose of individually identifying and registering a horse. (10) "Ratite" means, but is not limited to, ostrich, emu, rhea, or other flightless bird used for human consumption, whether live or slaughtered. (11) "Microchipping" means the implantation of an identification microchip or similar electronic identification device to establish the identity of an individual animal: (a) In the pipping muscle of a chick ratite or the implantation of a microchip in the tail muscle of an otherwise unidentified adult ratite; (b) In the nuchal ligament of a horse unless otherwise specified by rule of the director; and (c) In locations of other livestock species as specified by rule of the director when requested by an association of producers of that species of livestock. (12) "Certificate of permit" means a form prescribed by and obtained from the director that is completed by the owner or a person authorized to act on behalf of the owner to show the ownership of livestock. It is used to document ownership of livestock while in transit within the state or on consignment to any public livestock market, special sale, slaughter plant or certified feed lot. It does not evidence inspection of livestock. (13) "Inspection certificate" means a certificate issued by the director or a veterinarian certified by the director documenting the ownership of an animal based on an inspection of the animal. It includes an individual identification certificate. (14) "Individual identification certificate" means an inspection certificate that authorizes the livestock owner to transport the animal out of state multiple times within a set period of time. (15) "Self-inspection certificate" means a form prescribed by and obtained from the director that is completed and signed by the buyer and seller of livestock to document a change in ownership. (16) "Horses" means horses, burros, and mules. [2003 c 326 § 2; 1996 c 105 § 1; 1993 c 105 § 2; 1989 c 286 § 22; 1981 c 296 § 15; 1979 c 154 § 17; 1967 c 240 § 34; 1959 c 54 § 1.] Legislative finding and purpose—1993 c 105: "The legislature finds that ratites have been raised for commercial purposes on farms in the United States for over sixty years and have been raised elsewhere for over one hundred twenty years. In recognition that ratite farming is an agricultural pursuit, the purpose of this act is to assure that the regulatory mechanisms regarding animal health and ownership identification are in place." [1993 c 105 § 1.] Severability—1989 c 286: See note following RCW 16.04.010. Severability—1981 c 296: See note following RCW 15.08.010. [Title 16 RCW—page 24] Severability—1979 c 154: See note following RCW 15.49.330. 16.57.015 16.57.015 Livestock identification advisory board— Rule review—Fee setting. (1) The director shall establish a livestock identification advisory board. The board shall be composed of six members appointed by the director. One member shall represent each of the following groups: Beef producers, public livestock market operators, horse owners, dairy farmers, cattle feeders, and meat processors. As used in this subsection, "meat processor" means a person licensed to operate a slaughtering establishment under chapter 16.49 RCW or the federal meat inspection act (21 U.S.C. Sec. 601 et seq.). In making appointments, the director shall solicit nominations from organizations representing these groups statewide. The board shall elect a member to serve as chair of the board. (2) The purpose of the board is to provide advice to the director regarding livestock identification programs administered under this chapter and regarding inspection fees and related licensing fees. The director shall consult the board before adopting, amending, or repealing a rule under this chapter or altering a fee under RCW 16.58.050, 16.65.030, 16.65.037, or 16.65.090. If the director publishes in the state register a proposed rule to be adopted under the authority of this chapter and the rule has not received the approval of the advisory board, the director shall file with the board a written statement setting forth the director’s reasons for proposing the rule without the board’s approval. (3) The members of the advisory board serve three-year terms. However, the director shall by rule provide shorter initial terms for some of the members of the board to stagger the expiration of the initial terms. The members serve without compensation. The director may authorize the expenses of a member to be reimbursed if the member is selected to attend a regional or national conference or meeting regarding livestock identification. Any such reimbursement shall be in accordance with RCW 43.03.050 and 43.03.060. [2003 c 326 § 3; 1993 c 354 § 10.] 16.57.020 16.57.020 Livestock brands—Director is the recorder—Recording fee. The director shall be the recorder of livestock brands and such brands shall not be recorded elsewhere in this state. Any person desiring to record a livestock brand shall apply on a form prescribed by the director. The application shall be accompanied by a facsimile of the brand applied for and a one hundred twenty dollar recording fee. The director shall, upon his or her satisfaction that the application and brand facsimile meet the requirements of this chapter and its rules, record the brand. [2003 c 326 § 4; 1994 c 46 § 7; 1971 ex.s. c 135 § 1; 1965 c 66 § 1; 1959 c 54 § 2.] Effective date—1994 c 46: See note following RCW 15.58.070. 16.57.023 16.57.023 Permanent renewal of brands—Heritage brands—Fees. The director may adopt rules establishing criteria and fees for the permanent renewal of brands registered with the department but renewed as livestock heritage brands. Such heritage brands are not intended for use on livestock. [2003 c 326 § 5; 1998 c 263 § 5.] (2006 Ed.) Identification of Livestock 16.57.025 16.57.025 Livestock inspection—Licensed and accredited veterinarians—Fees. The director may enter into agreements with Washington state licensed and accredited veterinarians, who have been certified by the director, to perform livestock inspection. Fees for livestock inspection performed by a certified veterinarian shall be collected by the veterinarian and remitted to the director. Veterinarians providing livestock inspection may charge a fee for livestock inspection that is in addition to and separate from fees collected under RCW 16.57.220. The director may adopt rules necessary to implement livestock inspection performed by veterinarians and may adopt fees to cover the cost associated with certification of veterinarians. [2003 c 326 § 6; 1998 c 263 § 6.] 16.57.030 16.57.030 Tattoo brands and marks not recordable. The director shall not record tattoo brands or marks for any purpose. [2003 c 326 § 7; 1959 c 54 § 3.] 16.57.040 16.57.040 Production record brands. The director may provide for the use of production record brands. Numbers for such brands shall be issued at the discretion of the director and shall be placed on livestock immediately below the recorded ownership brand or any other location prescribed by the director. [2003 c 326 § 8; 1974 ex.s. c 64 § 1; 1959 c 54 § 4.] 16.57.120 of the renewal fee and a late fee of twenty-five dollars. If the brand is not recorded within one year to the prior owner, the director may issue the brand to any other applicant. [2003 c 326 § 10; 1994 c 46 § 16; 1993 c 354 § 5; 1991 c 110 § 1; 1974 ex.s. c 64 § 2; 1971 ex.s. c 135 § 2; 1965 c 66 § 3; 1961 c 148 § 1; 1959 c 54 § 8.] Effective date—1994 c 46: See note following RCW 15.58.070. Prior legislative approval—1994 c 46: See note following RCW 16.65.030. 16.57.090 16.57.090 Brand is personal property—Instruments affecting title, recording, effect—Fee—Nonliability of director for agents. A brand is the personal property of the owner of record. Any instrument affecting the title of the brand shall be executed by the recorded owner and acknowledged by a notary public. The director shall record the instrument upon presentation and payment of a recording fee of twenty-five dollars. The recording shall be constructive notice to all the world of the existence and conditions affecting the title to the brand. A copy of all records concerning the brand, certified by the director, shall be received in evidence to all intent and purposes as the original instrument. The director shall not be personally liable for failure of the director’s agents to properly record the instrument. [2003 c 326 § 11; 1994 c 46 § 17; 1993 c 354 § 6; 1974 ex.s. c 64 § 3; 1965 c 66 § 2; 1959 c 54 § 9.] Effective date—1994 c 46: See note following RCW 15.58.070. 16.57.050 16.57.050 Use of unrecorded brand prohibited— Exception. No person shall place a brand on livestock for any purpose unless the brand is recorded with the director in the person’s name. [2003 c 326 § 9; 1959 c 54 § 5.] 16.57.060 16.57.060 Brands similar to governmental brands not to be recorded. No brand shall be recorded for ownership purposes which will be applied in the same location and is similar or identical to a brand used or reserved for ownership or health purposes by a governmental agency or the agent of such an agency. [1959 c 54 § 6.] 16.57.070 16.57.070 Conflicting claims to brand. The director shall determine conflicting claims between applicants to a brand, and in so doing shall consider the priority of applicants. [1959 c 54 § 7.] 16.57.080 16.57.080 Renewal of recorded brands—Schedule— Fee—Failure to pay. The director shall establish by rule a schedule for the renewal of recorded brands. The fee for renewal of a recorded brand shall be one hundred twenty dollars for each four-year period of brand ownership, except that the director may, in adopting a renewal schedule, provide for the collection of renewal fees on a prorated basis. At least sixty days before the expiration of a recorded brand, the director shall notify by letter the owner of record of the brand that on the payment of the renewal fee the director shall issue proof of payment allowing the brand owner exclusive ownership and use of the brand for the subsequent ownership period. The failure of the owner to pay the renewal fee by the date required by rule shall cause ownership of the brand to expire. For one year following the expiration, the director shall record the brand only to the prior owner upon payment (2006 Ed.) Prior legislative approval—1994 c 46: See note following RCW 16.65.030. 16.57.100 16.57.100 Right to use brand—Brand as evidence of title. The right to use a brand shall be evidenced by the original certificate issued by the director showing that the brand is of present record or a certified copy of the record of the brand showing that it is of present record. A healed brand of record on livestock shall be prima facie evidence that the recorded owner of the brand has legal title to the livestock and is entitled to its possession. The director may require additional proof of ownership for any animal showing more than one healed brand. [2003 c 326 § 12; 1971 ex.s. c 135 § 3; 1959 c 54 § 10.] 16.57.105 16.57.105 Preemptory right to use brand. Any person having a brand recorded with the department shall have a preemptory right to use such brand and its design under any newly approved method of branding adopted by the director. [1967 c 240 § 38.] 16.57.110 16.57.110 Size and characteristics of brand. No brand shall be placed on livestock that is not permanent in nature and of a size that is not readily visible. The director, in order to assure that brands are readily visible, may prescribe the size of branding irons to be used for ownership brands. [1959 c 54 § 11.] 16.57.120 16.57.120 Removal or alteration of brand—Penalty. No person shall remove or alter a brand of record on livestock without first having secured the written permission of the director. Violation of this section is a gross misdemeanor. [2003 c 326 § 13; 1991 c 110 § 2; 1959 c 54 § 12.] [Title 16 RCW—page 25] 16.57.130 Title 16 RCW: Animals and Livestock 16.57.130 Similar brands not to be recorded. The director shall not record a brand that is identical to a brand of present record; nor a brand so similar to a brand of present record that it will be difficult to distinguish between the brands when applied to livestock. [2003 c 326 § 14; 1959 c 54 § 13.] 16.57.130 with any qualified county, municipal, or other local law enforcement agency, or qualified individuals for the purpose of performing livestock inspection in areas where inspection by the director may not readily be available. [2003 c 326 § 19; 1971 ex.s. c 135 § 6.] 16.57.170 16.57.140 16.57.140 Certified copy of record of brand—Fee. The owner of a brand of record may obtain from the director a certified copy of the record of the owner’s brand upon payment of a fee of fifteen dollars. [2003 c 326 § 15; 1994 c 46 § 18; 1993 c 354 § 7; 1974 ex.s. c 64 § 4; 1959 c 54 § 14.] Effective date—1994 c 46: See note following RCW 15.58.070. Prior legislative approval—1994 c 46: See note following RCW 16.65.030. 16.57.150 16.57.150 Brand book—Contents—Costs. The director shall publish a book to be known as the "Washington State Brand Book", showing all the brands of record. The book shall contain the name and address of the owners of brands of record and a copy of the livestock identification laws and rules. Supplements to the brand book showing newly recorded brands, amendments, or newly adopted rules shall be published at the discretion of the director. Whenever the director deems it necessary, the director may publish a new brand book. The director may collect moneys to recover the reasonable costs of publishing and distributing copies of the brand book. [2003 c 326 § 16; 1974 ex.s. c 64 § 5; 1959 c 54 § 15.] 16.57.153 Administration of brands—Rules. The director may adopt rules necessary to administer the recording and changing of ownership of brands. [2003 c 326 § 17.] 16.57.153 16.57.170 Inspection of livestock, hides, records. The director may enter at any reasonable time any slaughterhouse or public livestock market to inspect livestock or hides, and may enter at any reasonable time an establishment where hides are held to inspect them for brands or other means of identification. The director may enter any of these premises at any reasonable time to examine all books and records required by law in matters relating to livestock identification. For purposes of this section, "any reasonable time" means during regular business hours or during any working shift. [2003 c 326 § 20; 1959 c 54 § 17.] 16.57.180 16.57.180 Search warrants. Should the director be denied access to any premises or establishment where access was sought for the purposes set forth in RCW 16.57.170, the director may apply to any court of competent jurisdiction for a search warrant authorizing access to the premises or establishment for those purposes. The court may upon application, issue the search warrant for the purposes requested. [2003 c 326 § 21; 1959 c 54 § 18.] 16.57.200 16.57.200 Duty of owner or agent—Livestock inspection. Any owner or his or her agent shall make livestock being inspected readily accessible and shall cooperate with the director to carry out the inspection in a safe and expeditious manner. [2003 c 326 § 22; 1959 c 54 § 20.] 16.57.210 16.57.160 16.57.160 Cattle or horses—Rules—Mandatory inspection points. The director may adopt rules: (1) Designating any point for mandatory inspection of cattle or horses or the furnishing of proof that cattle or horses passing or being transported through the point have been inspected or identified and are lawfully being transported; (2) Providing for self-inspection of twenty-five head or less of cattle; (3) Providing for issuance of individual horse and cattle identification certificates or other means of horse and cattle identification; and (4) Designating the documents that constitute other satisfactory proof of ownership for cattle and horses. A bill of sale may not be designated as documenting satisfactory proof of ownership for cattle. [2006 c 156 § 3; 2003 c 326 § 18; 1991 c 110 § 3; 1981 c 296 § 16; 1971 ex.s. c 135 § 4; 1959 c 54 § 16.] Effective date—2006 c 156: See note following RCW 16.57.220. Effective date—1981 c 296 § 16: "Section 16 of this amendatory act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately [May 19, 1981]." [1981 c 296 § 34.] Severability—1981 c 296: See note following RCW 15.08.010. 16.57.165 16.57.165 Agreements with others to perform livestock inspection. The director may, in order to reduce the cost of inspection to livestock owners, enter into agreements [Title 16 RCW—page 26] 16.57.210 Arrest without warrant. The director shall have authority to arrest without warrant anywhere in the state any person found in the act of, or whom the director has reason to believe is guilty of, transporting, holding, selling, or slaughtering stolen livestock. Any person arrested by the director shall be turned over to the county sheriff or other local law enforcement officer where the arrest was made, as quickly as possible. [2003 c 326 § 23; 1959 c 54 § 21.] 16.57.220 16.57.220 Livestock inspection—Fee schedule—Certificates. (1) Except as provided for in RCW 16.65.090 and otherwise in this section, the fee for livestock inspection is one dollar and sixty cents per head for cattle and three dollars and fifty cents for horses or the time and mileage fee, whichever is greater. (2) When cattle are identified with the owner’s brand or other form of identification specified by the director by rule, the fee for livestock inspection is one dollar and ten cents per head or the time and mileage fee, whichever is greater. This fee does not apply for inspection of cattle when documenting a change of ownership with a self-inspection certificate. (3) No inspection fee is charged for a calf that is inspected before moving out-of-state under an official temporary grazing permit if the calf is part of a cow-calf unit and the calf is identified with the owner’s Washington-recorded brand or other form of identification specified by the director by rule. (2006 Ed.) Identification of Livestock (4) The fee for inspection of cattle at a processing plant with a daily capacity of no more than five hundred head of cattle where the United States department of agriculture maintains a meat inspection program is four dollars per head. (5) When a single inspection certificate issued for thirty or more horses belonging to one person, the fee for livestock inspection is two dollars per head or the time and mileage fee, whichever is greater. (6) The fee for individual identification certificates is twenty dollars for an annual certificate and sixty dollars for a lifetime certificate or the time and mileage fee, whichever is greater. However, the fee for an annual certificate listing thirty or more animals belonging to one person is five dollars per head or the time and mileage fee, whichever is greater. A lifetime certificate shall not be issued until the fee has been paid to the director. (7) The minimum fee for the issuance of an inspection certificate by the director is five dollars. The minimum fee does not apply to livestock consigned to a public livestock market or special sale or inspected at a cattle processing plant. (8) For purposes of this section, "the time and mileage fee" means seventeen dollars per hour and the current mileage rate set by the office of financial management. [2006 c 156 § 1; 2003 c 326 § 24; 1997 c 356 § 3; 1997 c 356 § 2; 1995 c 374 § 49; (1995 c 374 § 48 expired July 1, 1997). Prior: 1994 c 46 § 25; 1994 c 46 § 19; 1993 c 354 § 8; 1981 c 296 § 17; 1971 ex.s. c 135 § 5; 1967 c 240 § 35; 1959 c 54 § 22.] Effective date—2006 c 156: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect June 1, 2006." [2006 c 156 § 4.] Effective dates—1997 c 356: "(1) Sections 2, 4, 6, 8, and 10 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect July 1, 1997. (2) Sections 3, 5, 7, 9, and 11 of this act take effect July 1, 1998." [1997 c 356 § 12.] Effective date—Expiration date—1995 c 374 §§ 48, 49, 56, and 57: "(1) Sections 49 and 57 of this act shall take effect July 1, 1997. (2) Sections 48 and 56 of this act shall expire July 1, 1997." [1995 c 374 § 58.] Effective date—1994 c 46 §§ 21-25: See note following RCW 16.65.090. Effective date—1994 c 46: See note following RCW 15.58.070. Prior legislative approval—1994 c 46: See note following RCW 16.65.030. Severability—1981 c 296: See note following RCW 15.08.010. 16.57.223 Payment of inspection fee—Due at inspection—Lien—Late fee. (1) Any inspection fee shall be paid to the department by the owner or person in possession of the livestock unless the inspection is requested by the purchaser and then the fee shall be paid by the purchaser. (2) Except as provided by rule, the inspection fee is due and payable at the time inspection is performed and shall be paid upon billing by the department and, if not, constitutes a prior lien on the cattle or cattle hides or horses or horse hides inspected until the fee is paid. (3) A late fee of one and one-half percent per month shall be assessed on the unpaid balance against persons more than thirty days in arrears. [2003 c 326 § 25.] 16.57.223 (2006 Ed.) 16.57.260 16.57.230 Charges for livestock inspection—Actual inspection required. No person shall collect or make a charge for inspection of livestock unless there has been an actual inspection of the livestock. [2003 c 326 § 26; 1995 c 374 § 50; 1959 c 54 § 23.] 16.57.230 Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. 16.57.240 Certificates of permit, inspection, selfinspection. (1) Certificates of permit, inspection certificates, and self-inspection certificates shall show the owner, number, breed, sex, brand, or other method of identification of the cattle or horses and any other necessary information required by the director. (2) The director may issue certificate of permit forms to any person on payment of a fee established by rule. (3) Certificates of permit, inspection certificates, selfinspection certificates, or other satisfactory proof of ownership shall be kept by the owner and/or person in possession of any cattle and shall be furnished to the director or any peace officer upon demand. (4) A self-inspection certificate is not valid if proof of ownership is not provided to the buyer for cattle bearing brands not recorded to the seller. [2003 c 326 § 27; 1995 c 374 § 51; 1991 c 110 § 4; 1985 c 415 § 8; 1981 c 296 § 18; 1959 c 54 § 24.] 16.57.240 Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. Severability—1981 c 296: See note following RCW 15.08.010. 16.57.243 Moving or transporting cattle—Certificate or proof of ownership must accompany—Exceptions. Cattle may not be moved or transported within this state without being accompanied by a certificate of permit, inspection certificate, self-inspection certificate, or other satisfactory proof of ownership, except: (1) When the cattle are moved or transported upon lands under the exclusive control of the person moving or transporting the cattle; or (2) When the cattle are being moved or transported for temporary grazing or feeding purposes and have the recorded brand of the person having or transporting the cattle. Certificates of permit, inspection certificates, selfinspection certificates, or other satisfactory proof of ownership accompanying cattle being moved or transported within this state shall be subject to inspection at any time by the director or any peace officer. [2003 c 326 § 28.] 16.57.243 16.57.245 Authority to stop vehicles carrying cattle or horses. The director or any peace officer may stop vehicles carrying cattle or horses to determine if the livestock being transported are accompanied by a certificate of permit, inspection certificate, self-inspection certificate, or other satisfactory proof of ownership, as determined by the director. [2003 c 326 § 29.] 16.57.245 16.57.260 Removal of cattle or horses from state— Inspection certificate required. It is unlawful for any person to remove or cause to be removed or accept for removal from this state, any cattle or horses which are not accompanied at all times by an inspection certificate on such cattle or 16.57.260 [Title 16 RCW—page 27] 16.57.267 Title 16 RCW: Animals and Livestock horses, except as provided by rule adopted under this chapter. [2003 c 326 § 30; 1981 c 296 § 19; 1959 c 54 § 26.] Severability—1981 c 296: See note following RCW 15.08.010. 16.57.267 16.57.267 Failure to present animal for inspection. It is unlawful for any person to fail to present an animal for inspection at any mandatory inspection point designated by the director by rule under this chapter. [2003 c 326 § 31.] 16.57.270 16.57.270 Unlawful to refuse assistance in establishing identity and ownership of livestock. It is unlawful for any person moving or transporting livestock in this state to refuse to assist the director or any peace officer in establishing the identity and ownership of the livestock being moved or transported. [2003 c 326 § 32; 1959 c 54 § 27.] 16.57.275 16.57.275 Transporting cattle carcass or primal part—Certificate of permit required. Any cattle carcass, or primal part thereof, of any breed or age being transported in this state from other than a state or federal licensed and inspected slaughterhouse or common carrier hauling for the slaughterhouse, shall be accompanied by a certificate of permit signed by the owner of the carcass or primal part thereof and, if the carcass or primal part is delivered to a facility custom handling the carcasses or primal parts thereof, the certificate of permit shall be deposited with the owner or manager of the custom handling facility and the certificate of permit shall be retained for a period of one year and be made available to the department for inspection during regular business hours or any working shift. [2003 c 326 § 33; 1967 c 240 § 37.] 16.57.277 16.57.277 Custom slaughter beef tags—Fee—Rules. Any person licensed as a custom farm slaughterer under RCW 16.49.035 shall complete and attach a custom slaughter beef tag to each of the four quarters of all slaughtered cattle handled by the slaughterer. The tags must remain on the quarters until the quarters are cut and wrapped. Only the director may provide custom slaughter beef tags to custom farm slaughterers. The fee for each set of four custom slaughter beef tags is as prescribed in WAC 16-607-100 as it existed on January 1, 2000. The director may, by rule, establish criteria for the use of custom slaughter beef tags. [2000 c 99 § 14.] 16.57.280 16.57.280 Possession of cattle or horse marked with another’s brand—Penalty. No person shall knowingly have possession of any cattle or horse marked with a recorded brand of another person unless the: (1) Cattle or horse lawfully bears the person’s own healed recorded brand; or (2) Cattle or horse is accompanied by a certificate of permit from the owner of the recorded brand; or (3) Cattle or horse is accompanied by an inspection certificate; or (4) Cattle is accompanied by a self-inspection certificate; or (5) Horse is accompanied by a bill of sale from the previous owner; or (6) Cattle or horse is accompanied by other satisfactory proof of ownership as designated in rule. [Title 16 RCW—page 28] A violation of this section constitutes a gross misdemeanor. [2003 c 326 § 34; 1995 c 374 § 52; 1991 c 110 § 5; 1959 c 54 § 28.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. 16.57.290 16.57.290 Impounding cattle and horses—No certificate or proof of ownership when offered for sale—Disposition. All cattle and horses that are not accompanied by a certificate of permit, inspection certificate, self-inspection certificate, or other satisfactory proof of ownership when offered for sale and presented for inspection by the director, shall be impounded. If theft is suspected, the director shall immediately initiate an investigation. If theft is not suspected, the animal shall be sold and the proceeds retained by the director. Upon the sale of the cattle or horses, the director shall give the purchasers an inspection certificate for the cattle or horses documenting their ownership. [2003 c 326 § 35; 1995 c 374 § 53; 1989 c 286 § 23; 1981 c 296 § 20; 1979 c 154 § 18; 1967 ex.s. c 120 § 6; 1959 c 54 § 29.] Effective date—1995 c 374 §§ 1-47, 50-53, and 59-68: See note following RCW 15.36.012. Severability—1989 c 286: See note following RCW 16.04.010. Severability—1981 c 296: See note following RCW 15.08.010. Severability—1979 c 154: See note following RCW 15.49.330. 16.57.300 16.57.300 Proceeds from sale of impounded cattle and horses—Paid to director—Exception. Except under RCW 16.57.303, the proceeds from the sale of cattle and horses when impounded under RCW 16.57.290, after paying the cost thereof, shall be paid to the director, who shall make a record showing the brand or marks or other method of identification of the animals and the amount realized from the sale thereof. However, the proceeds from a sale of the cattle or horses at a licensed public livestock market shall be held by the licensee for a reasonable period not to exceed thirty days to permit the consignor to establish ownership or the right to sell the cattle or horses. If the consignor fails to establish legal ownership or the right to sell the cattle or horses, the proceeds shall be paid to the director to be disposed of as any other estray proceeds. [2003 c 326 § 36; 1989 c 286 § 24; 1981 c 296 § 21; 1959 c 54 § 30.] Severability—1989 c 286: See note following RCW 16.04.010. Severability—1981 c 296: See note following RCW 15.08.010. 16.57.303 16.57.303 Proceeds from sale of impounded dairy breed cattle—Paid to seller. The proceeds from the sale of dairy breed cattle when impounded under RCW 16.57.290, and after paying the cost thereof, shall be paid to the seller if: (1) The cattle bears a brand that is not recorded in this state or any state where a reciprocal agreement is in place as provided under RCW 16.57.340; (2) There is no evidence of theft; (3) The director has posted the brand for at least ninety days at each licensed public livestock market in this state and any other state where the director provides for livestock inspection; and (4) No other person has established legal ownership of the cattle with the director. (2006 Ed.) Identification of Livestock The proceeds from the sale shall be held by the director until paid to the seller or other person as specified by the director. However, the proceeds from a sale of the cattle at a licensed public livestock market shall be held by the licensee. [2003 c 326 § 37.] 16.57.310 16.57.310 Notice of sale—Claim on proceeds. When a person has been notified by registered mail that animals bearing the person’s recorded brand have been sold by the director, the person shall present to the director a claim on the proceeds within thirty days from the receipt of the notice or the director may decide that no claim exists. [2003 c 326 § 38; 1959 c 54 § 31.] 16.57.407 (a) To support the agriculture industry in meeting federal requirements for the country-of-origin labeling of meat. Any requirements established under this subsection for country of origin labeling purposes shall be substantially consistent with and shall not exceed the requirements established by the United States department of agriculture; and (b) In consultation with the livestock identification advisory board under RCW 16.57.015, to implement federal requirements for animal identification needed to trace the source of livestock for disease control and response purposes. (2) The director may cooperate with and enter into agreements with other states and agencies of federal government to carry out such systems and to promote consistency of regulation. [2004 c 233 § 1.] 16.57.320 16.57.320 Disposition of proceeds of sale when no proof of ownership—Penalty for accepting proceeds after sale, barter, trade. If, after the expiration of one year from the date of sale, the person presenting the animals for inspection has not provided the director with satisfactory proof of ownership, the proceeds from the sale shall be paid on the claim of the owner of the recorded brand. However, it shall be a gross misdemeanor for the owner of the recorded brand to knowingly accept such funds after he or she has sold, bartered or traded such animals to the claimant or any other person. [2003 c 326 § 39; 1991 c 110 § 6; 1959 c 54 § 32.] 16.57.330 16.57.330 Disposition of proceeds of sale—No claim made—No proof of ownership provided. If, after the expiration of one year from the date of sale, no claim under RCW 16.57.310 is made or no satisfactory proof of ownership is provided under RCW 16.57.320, the money shall be credited to the department to be expended in carrying out the provisions of this chapter. [2003 c 326 § 40; 1959 c 54 § 33.] 16.57.340 16.57.340 Reciprocal agreements—When livestock from another state an estray, sale. The director has the authority to enter into reciprocal agreements with any or all states to prevent the theft, misappropriation, or loss of identification of livestock. The director may declare any livestock which is shipped or moved into this state from those states estrays if the livestock is not accompanied by the proper inspection certificate or other certificates required by the law of the state of origin of the livestock. The director may hold the livestock subject to all costs of holding or sell the livestock and send the funds, after the deduction of the cost of the sale, to the proper authority in the state of origin of the livestock. [2003 c 326 § 41; 1959 c 54 § 34.] 16.57.360 16.57.360 Civil infractions. The department is authorized to issue notices of and enforce civil infractions in the manner prescribed under chapter 7.80 RCW. The violation of any provision of this chapter and/or rules adopted under this chapter shall constitute a class I civil infraction as provided under chapter 7.80 RCW unless otherwise specified herein. [2003 c 326 § 42; 1991 c 110 § 7; 1959 c 54 § 36.] 16.57.370 16.57.370 Disposition of fees. All fees collected under the provisions of this chapter shall be deposited in an account in the agricultural local fund and used to carry out the purposes of this chapter. [2003 c 326 § 43; 1959 c 54 § 37.] Fees provided in chapter 16.58 RCW to be used to carry out provisions of chapters 16.57 and 16.58 RCW: RCW 16.58.130. 16.57.400 16.57.400 Horse and cattle identification—Inspection when consigned for sale. Horses and cattle may be identified by individual identification certificates or other means of identification authorized by the director. The certificates or other means of identification are valid only for the use of the owner in whose name it is issued. Horses and cattle identified pursuant to this section are only subject to inspection when the animal is consigned for sale. [2003 c 326 § 44; 1994 c 46 § 20; 1993 c 354 § 9; 1981 c 296 § 23; 1974 ex.s. c 38 § 3.] Effective date—1994 c 46: See note following RCW 15.58.070. Prior legislative approval—1994 c 46: See note following RCW 16.65.030. Severability—1981 c 296: See note following RCW 15.08.010. 16.57.405 16.57.350 16.57.350 Rules—Enforcement of chapter. The director may adopt such rules as are necessary to carry out the purposes of this chapter. It shall be the duty of the director to enforce and carry out the provisions of this chapter and/or rules adopted hereunder. No person shall interfere with the director when he or she is performing or carrying out duties imposed on him or her by this chapter and/or rules adopted hereunder. [1994 c 46 § 8; 1959 c 54 § 35.] Effective date—1994 c 46: See note following RCW 15.58.070. 16.57.353 16.57.353 Rules—Compliance with federal requirements. (1) The director may adopt rules: (2006 Ed.) 16.57.405 Microchip in a horse—Removal with intent to defraud—Gross misdemeanor. A person who removes or causes to be removed a microchip implanted in a horse, or who removes or causes to be removed a microchip from one horse and implants or causes it to be implanted in another horse, with the intent to defraud a subsequent purchaser, is guilty of a gross misdemeanor. [1996 c 105 § 2.] 16.57.407 16.57.407 Microchip in a horse—Authority to investigate removal. The department has the authority to conduct an investigation of an incident where scars or other marks indicate that a microchip has been removed from a horse. [1996 c 105 § 3.] [Title 16 RCW—page 29] 16.57.410 Title 16 RCW: Animals and Livestock 16.57.410 Horses—Registering agencies—Permit required—Fee—Records—Identification symbol inspections—Rules. (1) No person may act as a registering agency without a permit issued by the director. The director may issue a permit to any person to act as a registering agency for the purpose of issuing permanent identification symbols for horses in a manner prescribed by the director. Application for a permit, or the renewal thereof by January 1 of each year, shall be on a form prescribed by the director, and accompanied by the proof of registration to be issued, any other documents required by the director, and a fee of two hundred and fifty dollars. (2) Each registering agency shall maintain a permanent record for each individual identification symbol. The record shall include, but need not be limited to, the name, address, and phone number of the horse owner and a general description of the horse. A copy of each permanent record shall be forwarded to the director, if requested by the director. (3) Horses shall be examined for individual identification symbols when presented for inspection. (4) The director shall adopt rules necessary to administer this section. [2003 c 326 § 45; 1993 c 354 § 11; 1989 c 286 § 25; 1981 c 296 § 35.] 16.57.410 16.58.040 16.58.050 16.58.060 16.58.070 16.58.080 16.58.095 16.58.100 16.58.110 16.58.120 16.58.130 16.58.140 16.58.150 16.58.160 16.58.170 16.58.900 16.58.910 Certified feed lot license—Required—Application, contents. Certified feed lot license—Fee—Issuance or renewal— Inspection prior to issuance of original license. Certified feed lot license—Expiration—Late renewal. Certified feed lot license—Denial, suspension, or revocation—Hearings. Livestock inspection—Facilities required—Help to be furnished. Inspection required for cattle not having inspection certificate. Audits—Purpose. Records—Contents—Examination. Records required at each certified feed lot. Feed lots—Fee for each head of cattle handled—Failure to pay. Disposition of fees. Situations when no inspection required—Fee—Suspension of license—Hearing. Suspension of license awaiting investigation—Hearing. General penalties—Subsequent offenses. Chapter as cumulative and nonexclusive. Severability—1971 ex.s. c 181. 16.58.010 16.58.010 Purpose. The purpose of this chapter is to expedite the movement of cattle from producers to the point of slaughter without losing the ownership identity of such cattle, and further to provide for fair and economical methods of identification of cattle in such commercial feed lots. [1979 c 81 § 1; 1971 ex.s. c 181 § 1.] Severability—1989 c 286: See note following RCW 16.04.010. Severability—1981 c 296: See note following RCW 15.08.010. 16.57.420 Ratite identification. The department may, in consultation with representatives of the ratite industry, develop by rule a system that provides for the identification of individual ratites through the use of microchipping. The department may establish fees for the issuance or reissuance of microchipping numbers sufficient to cover the expenses of the department. [1993 c 105 § 3.] 16.57.420 Legislative finding and purpose—1993 c 105: See note following RCW 16.57.010. 16.57.900 Severability—1959 c 54. If any section or provision of this chapter shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the chapter as a whole, or any section, provision or part thereof, not adjudged invalid or unconstitutional. [1959 c 54 § 38.] 16.57.900 16.57.901 Severability—1967 c 240. See note following RCW 43.23.010. 16.57.901 16.57.902 Effective dates—2003 c 326. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2003, except for sections 4 and 10 of this act which take effect January 1, 2004. [2003 c 326 § 93.] 16.57.902 Chapter 16.58 RCW IDENTIFICATION OF CATTLE THROUGH LICENSING OF CERTIFIED FEED LOTS Chapter 16.58 Sections 16.58.010 16.58.020 16.58.030 Purpose. Definitions. Rules—Interference with director proscribed. [Title 16 RCW—page 30] 16.58.020 16.58.020 Definitions. For the purpose of this chapter: (1) "Certified feed lot" means any place, establishment, or facility commonly known as a commercial feed lot, cattle feed lot, or the like, which complies with all of the requirements of this chapter, and any rules adopted under this chapter and which holds a valid license from the director. (2) "Department" means the department of agriculture of the state of Washington. (3) "Director" means the director of the department or his or her duly authorized representative. (4) "Licensee" means any persons licensed under the provisions of this chapter. (5) "Person" means a natural person, individual, firm, partnership, corporation, company, society, and association, and every officer, agent or employee thereof. This term shall import either the singular or the plural as the case may be. (6) "Livestock inspection" or "inspection" means the examination of livestock or livestock hides for brands or any means of identifying livestock or livestock hides including the examination of documents providing evidence of ownership. (7) "Change of ownership" means the transfer of ownership from one person to another by the sale of livestock. It does not mean: A change in partners within a partnership; a change in members within an association or a society; or the sale of stock within a corporation, company, or association. (8) "Direct to slaughter" means the delivery of livestock to a slaughter plant within ten days of the sale of the cattle to the slaughter plant. [2003 c 326 § 46; 1971 ex.s. c 181 § 2.] Effective dates—2003 c 326: See RCW 16.57.902. 16.58.030 16.58.030 Rules—Interference with director proscribed. The director may adopt those rules as are necessary to carry out the purpose of this chapter. No person shall interfere with the director when he or she is performing or carrying out any duties imposed upon the director by this chapter (2006 Ed.) Identification of Cattle Through Licensing of Certified Feed Lots or rules adopted under this chapter. [2003 c 326 § 47; 1971 ex.s. c 181 § 3.] Effective dates—2003 c 326: See RCW 16.57.902. 16.58.040 16.58.040 Certified feed lot license—Required— Application, contents. Any person desiring to engage in the business of operating one or more certified feed lots shall obtain an annual license from the director for that purpose. The application for a license shall be on a form prescribed by the director and shall include the following: (1) The number of certified feed lots the applicant intends to operate and their exact location and mailing address; (2) The legal description of the land on which the certified feed lot will be situated; (3) A complete description of the facilities used for feeding and handling of cattle at each certified feed lot; (4) The estimated number of cattle which can be handled for feeding purposes at each certified feed lot; and (5) Any other information necessary to carry out the purpose and provisions of this chapter and rules adopted under this chapter. [2003 c 326 § 48; 1971 ex.s. c 181 § 4.] 16.58.110 16.58.070 16.58.070 Certified feed lot license—Denial, suspension, or revocation—Hearings. The director is authorized to deny, suspend, or revoke a license in accordance with the provisions of chapter 34.05 RCW if he or she finds that there has been a failure to comply with any requirement of this chapter or rules adopted under this chapter. Hearings for the revocation, suspension, or denial of a license shall be subject to the provisions of chapter 34.05 RCW. [2003 c 326 § 51; 1989 c 175 § 54; 1971 ex.s. c 181 § 7.] Effective dates—2003 c 326: See RCW 16.57.902. Effective date—1989 c 175: See note following RCW 34.05.010. 16.58.080 1 6 . 5 8 .0 8 0 L i v e s t o c k i n s p ec t i o n — F a c i l i t i e s required—Help to be furnished. Every certified feed lot shall be equipped with a facility or a livestock pen, approved by the director as to location and construction within the feed lot so that necessary livestock inspection can be carried on in a proper, expeditious and safe manner. Each licensee shall furnish the director with sufficient help necessary to carry out inspections in the manner set forth above. [2003 c 326 § 52; 1971 ex.s. c 181 § 8.] Effective dates—2003 c 326: See RCW 16.57.902. Effective dates—2003 c 326: See RCW 16.57.902. 16.58.095 16.58.050 16.58.050 Certified feed lot license—Fee—Issuance or renewal—Inspection prior to issuance of original license. (1) The application for an annual license to engage in the business of operating one or more certified feed lots shall be accompanied by a license fee of eight hundred fifty dollars. (2) Upon approval of the application by the director and compliance with the provisions of this chapter and rules adopted under this chapter, the applicant shall be issued a license or license renewal. The director shall conduct an inspection of all cattle and their corresponding ownership documents prior to issuing an original license. The inspection fee is the higher of the current inspection fee per head of cattle or time and mileage as set forth in RCW 16.57.220. [2003 c 326 § 49; 1997 c 356 § 5; 1997 c 356 § 4; 1994 c 46 § 23; 1994 c 46 § 14; 1993 c 354 § 3; 1979 c 81 § 2; 1971 ex.s. c 181 § 5.] Effective dates—2003 c 326: See RCW 16.57.902. Effective dates—1997 c 356: See note following RCW 16.57.220. Effective date—1994 c 46 §§ 21-25: See note following RCW 16.65.090. Effective date—1994 c 46: See note following RCW 15.58.070. Prior legislative approval—1994 c 46: See note following RCW 16.65.030. 16.58.095 Inspection required for cattle not having inspection certificate. All cattle entering or reentering a certified feed lot must be inspected upon entry, unless they are accompanied by an inspection certificate issued by the director, or any other agency authorized in any state or Canadian province by law to issue a certificate. Licensees shall report a discrepancy between cattle entering or reentering a certified feed lot and the inspection certificate accompanying the cattle to the nearest inspector immediately. A discrepancy may require an inspection of all the cattle entering or reentering the lot, except as may otherwise be provided by rule. [2003 c 326 § 53; 1991 c 109 § 11; 1979 c 81 § 6.] Effective dates—2003 c 326: See RCW 16.57.902. 16.58.100 16.58.100 Audits—Purpose. The director shall conduct audits of the cattle received, fed, handled, and shipped by the licensee at each certified feed lot. These audits shall be for the purpose of determining if the cattle correlate with the inspection certificates issued in their behalf and that the certificate of assurance furnished the director by the licensee correlates with his or her assurance that inspected cattle were not commingled with uninspected cattle. [2003 c 326 § 54; 1979 c 81 § 3; 1971 ex.s. c 181 § 10.] Effective dates—2003 c 326: See RCW 16.57.902. 16.58.110 16.58.060 16.58.060 Certified feed lot license—Expiration— Late renewal. Certified feed lot licenses expire on June 30th following the date of issuance. If a person fails, refuses, or neglects to apply for renewal of a license by June 30th, the person’s license shall expire. To reinstate a license, the person shall be assessed a late fee of twenty-five dollars which shall be added to the regular license fee and shall be paid before the director may issue a license to the applicant. [2003 c 326 § 50; 1991 c 109 § 10; 1971 ex.s. c 181 § 6.] Effective dates—2003 c 326: See RCW 16.57.902. (2006 Ed.) 16.58.110 Records—Contents—Examination. All certified feed lots shall furnish the director with records as requested by the director on a monthly basis on all cattle entering or on feed in the certified feed lots and dispersed therefrom. These records must include a copy of each inspection certificate received and an itemized listing of all cattle entering and leaving the feed lot. All requested records shall be subject to examination by the director for the purpose of maintaining the integrity of the identity of all the cattle. The director may make the examinations only during regular business hours or any working shift except in an emergency [Title 16 RCW—page 31] 16.58.120 Title 16 RCW: Animals and Livestock to protect the interest of the owners of the cattle. [2003 c 326 § 55; 1991 c 109 § 12; 1971 ex.s. c 181 § 11.] Effective dates—2003 c 326: See RCW 16.57.902. 16.58.120 16.58.120 Records required at each certified feed lot. The licensee shall maintain sufficient records as required by the director at each certified feed lot, if said licensee operates more than one certified feed lot. [1991 c 109 § 13; 1971 ex.s. c 181 § 12.] diately suspend the certified feed lot’s license until such time as the director can conduct an investigation to verify the condition of reports or records. Upon notice by the director to suspend a license under this section, a person may request a hearing under chapter 34.05 RCW. [2003 c 326 § 59; 1991 c 109 § 15; 1971 ex.s. c 181 § 16.] Effective dates—2003 c 326: See RCW 16.57.902. 16.58.170 16.58.130 16.58.130 Feed lots—Fee for each head of cattle handled—Failure to pay. Each licensee shall pay to the director a fee of twenty-five cents for each head of cattle handled through the licensee’s feed lot. Payment of the fee shall be made by the licensee on a monthly basis. Failure to pay as required shall be grounds for suspension or revocation of a certified feed lot license. The director shall not renew a certified feed lot license if a licensee has failed to make prompt and timely payments. [2006 c 156 § 2; 2003 c 326 § 56; 1997 c 356 § 7; 1997 c 356 § 6; 1994 c 46 § 24; 1994 c 46 § 15; 1993 c 354 § 4; 1991 c 109 § 14; 1979 c 81 § 4; 1971 ex.s. c 181 § 13.] Effective date—2006 c 156: See note following RCW 16.57.220. 16.58.170 General penalties—Subsequent offenses. (1) Except as provided in subsection (2) of this section, any person who violates the provisions of this chapter or any rule adopted under this chapter is guilty of a misdemeanor. (2) A second or subsequent violation is a gross misdemeanor. Any offense committed more than five years after a previous conviction shall be considered a first offense. [2003 c 326 § 60; 2003 c 53 § 115; 1971 ex.s. c 181 § 17.] Reviser’s note: This section was amended by 2003 c 53 § 115 and by 2003 c 326 § 60, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Effective dates—2003 c 326: See RCW 16.57.902. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Effective dates—2003 c 326: See RCW 16.57.902. Effective dates—1997 c 356: See note following RCW 16.57.220. Effective date—1994 c 46 §§ 21-25: See note following RCW 16.65.090. Effective date—1994 c 46: See note following RCW 15.58.070. Prior legislative approval—1994 c 46: See note following RCW 16.65.030. 16.58.140 16.58.140 Disposition of fees. All fees provided for in this chapter shall be deposited in an account in the agricultural local fund and used for enforcing and carrying out the purpose and provisions of this chapter or chapter 16.57 RCW. [2003 c 326 § 57; 1979 c 81 § 5; 1971 ex.s. c 181 § 14.] 16.58.900 Chapter as cumulative and nonexclusive. The provisions of this chapter shall be cumulative and nonexclusive and shall not affect any other remedy. [1971 ex.s. c 181 § 18.] 16.58.900 16.58.910 16.58.910 Severability—1971 ex.s. c 181. If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances shall not be affected. [1971 ex.s. c 181 § 19.] Chapter 16.60 Effective dates—2003 c 326: See RCW 16.57.902. Chapter 16.60 RCW FENCES Sections 16.58.150 16.58.150 Situations when no inspection required— Fee—Suspension of license—Hearing. No inspection shall be required when cattle are moved or transferred from one certified feed lot to another when they are accompanied by satisfactory proof of ownership and there is no change of ownership or from a certified feed lot to a point within this state, or out of state where this state maintains inspection, for the purpose of immediate slaughter. Any change of ownership within a certified feed lot requires a livestock inspection unless the cattle are sent direct to slaughter. An inspection fee as provided for in RCW 16.57.220 is payable to the director by the seller of the cattle or through the licensee as an agent. Upon notice by the director to suspend a license under this section, a person may request a hearing under chapter 34.05 RCW. [2003 c 326 § 58; 1971 ex.s. c 181 § 15.] Effective dates—2003 c 326: See RCW 16.57.902. 16.58.160 16.58.160 Suspension of license awaiting investigation—Hearing. The director may, when a certified feed lot’s conditions become such that the integrity of reports or records of the cattle in that feed lot becomes doubtful, imme[Title 16 RCW—page 32] 16.60.010 16.60.011 16.60.015 16.60.020 16.60.030 16.60.040 16.60.050 16.60.055 16.60.060 16.60.062 16.60.064 16.60.075 16.60.076 16.60.080 16.60.085 16.60.090 16.60.095 Lawful fence defined. Other lawful fences. Liability for damages—Restraint—Notice. Partition fence—Reimbursement. Partition fence—Erection—Notice. Partition fence—Failure to build—Recovery of half of cost. Partition fence—Hog fencing. Fence on the land of another by mistake—Removal. Partition fence—Discontinuance. Assessing value of partition fence. Impeachment of assessment—Damages. Damages by breachy animals. Proof. Temporary gate across highway. Temporary gate across highway—Auditor may grant permit. Failure to remove gate—Penalty. Fees. 16.60.010 16.60.010 Lawful fence defined. A lawful fence shall be of at least four barbed, horizontal, well-stretched wires, spaced so that the top wire is forty-eight inches, plus or minus four inches, above the ground and the other wires at intervals below the top wire of twelve, twenty-two, and thirty-two inches. These wires shall be securely fastened to substantial posts set firmly in the ground as nearly equidistant as possi(2006 Ed.) Fences ble, but not more than twenty-four feet apart. If the posts are set more than sixteen feet apart, the wires shall be supported by stays placed no more than eight feet from each other or from the posts. [1985 c 415 § 22; Code 1881 § 2488; 1873 p 447 § 1; 1871 p 63 § 1; 1869 p 323 § 1; RRS § 5441. FORMER PART OF SECTION: Code 1881 § 2489; 1873 p 447 § 2; 1871 p 64 § 2; 1869 p 324 § 2; RRS § 5442, now codified as RCW 16.60.011.] 16.60.011 16.60.011 Other lawful fences. All other fences as strong and as well calculated as the fence described in RCW 16.60.010 shall be lawful fences. [1985 c 415 § 23; Code 1881 § 2489; 1873 p 447 § 2; 1871 p 64 § 2; 1869 p 324 § 2; RRS § 5442. Formerly RCW 16.60.010, part.] 16.60.015 16.60.015 Liability for damages—Restraint—Notice. Any person making and maintaining in good repair around his or her enclosure or enclosures, any fence such as is described in RCW 16.60.010 and 16.60.011, may recover in a suit for trespass before the nearest court having competent jurisdiction, from the owner or owners of any animal or animals which shall break through such fence, in full for all damages sustained on account of such trespass, together with the costs of suits; and the animal or animals, so trespassing, may be taken and held as security for the payment of such damages and costs: PROVIDED, That such person shall provide notice as required under RCW 16.04.020 and 16.04.025: PROVIDED FURTHER, That such person shall have such fences examined and the damages assessed by three reliable, disinterested parties and practical farmers, within five days next after the trespass has been committed: AND, PROVIDED FURTHER, That if, before trial, the owner of such trespassing animal or animals, shall have tendered the person injured any costs which may have accrued, and also the amount in lieu of damages which shall equal or exceed the amount of damages afterwards awarded by the court or jury, and the person injured shall refuse the same and cause the trial to proceed, such person shall pay all costs and receive only the damages awarded. [1985 c 415 § 26; Code 1881 § 2490; 1873 p 447 § 3; 1871 p 64 § 3; 1869 p 324 § 3; RRS § 5443.] 16.60.060 Hog fencing: RCW 16.60.050. 16.60.030 16.60.030 Partition fence—Erection—Notice. When two or more persons own land adjoining which is inclosed by one fence, and it becomes necessary for the protection of the interest of one party said partition fence should be made between them, the other or others, when notified thereof, shall erect or cause to be erected one-half of such partition fence, said fence to be erected on, or as near as practicable, the line of said land. [Code 1881 § 2492; 1873 p 448 § 5; 1871 p 65 § 5; 1869 p 325 § 5; RRS § 5445.] 16.60.040 16.60.040 Partition fence—Failure to build—Recovery of half of cost. If, after notice has been given by either party and a reasonable length of time has elapsed, the other party neglect or refuse to erect or cause to be erected, the onehalf of such fence, the party giving notice may proceed to erect or cause to be erected the entire partition fence, and collect by law one-half of the cost thereof from the other party. [Code 1881 § 2493; 1873 p 448 § 6; 1871 p 65 § 6; 1869 p 325 § 6; RRS § 5446.] 16.60.050 16.60.050 Partition fence—Hog fencing. The respective owners of adjoining inclosures shall keep up and maintain in good repair all partition fences between such inclosures in equal shares, so long as they shall continue to occupy or improve the same; and in case either of the parties shall desire to make such fence capable of turning hogs and the other party does not desire to use it for such purpose, then the party desiring to use it shall have the right to attach hog-fencing material to the posts of such fence, which hog fencing shall remain the property of the party who put it up, and he may remove it at any time he desires: PROVIDED, That he leaves the fence in as good condition as it was when the hog fencing was by him attached, the natural decay of the posts excepted. The attaching of such hog fencing shall not relieve the other party from the duty of keeping in repair his part of such fence, as to all materials used in said fence additional to said hog fencing. [1907 c 13 § 2; Code 1881 § 2494; 1873 p 449 § 7; 1871 p 65 § 7; 1869 p 325 § 7; RRS § 5447.] Reimbursement—Hog fencing: RCW 16.60.020. Trespassing animals—Restraint—Damages and costs: RCW 16.04.010. 16.60.055 16.60.020 16.60.020 Partition fence—Reimbursement. When any fence has been, or shall hereafter be, erected by any person on the boundary line of his land and the person owning land adjoining thereto shall make, or cause to be made, an inclosure, so that such fence may also answer the purpose of inclosing his ground, he shall pay the owner of such fence already erected one-half of the value of so much thereof as serves for a partition fence between them: PROVIDED, That in case such fence has woven wire or other material known as hog fencing, then the adjoining owner shall not be required to pay the extra cost of such hog fencing over and above the cost of erecting a lawful fence, as by law defined, unless such adjoining owner has his land fenced with hog fencing and uses the partition fence to make a hog enclosure of his land, then he shall pay to the one who owns said hog fence one-half of the value thereof. [1907 c 13 § 1; Code 1881 § 2491; 1873 p 448 § 4; 1871 p 65 § 4; 1869 p 324 § 4; RRS § 5444.] (2006 Ed.) 16.60.055 Fence on the land of another by mistake— Removal. When any person shall unwittingly or by mistake, erect any fence on the land of another, and when by a line legally determined that fact shall be ascertained, such person may enter upon the premises and remove such fence at any time within three months after such line has been run as aforesaid: PROVIDED, That when the fence to be removed forms any part of a fence enclosing a field of the other party having a crop thereon, such first person shall not remove such fence until such crop might, with reasonable diligence, have been gathered and secured, although more than three months may have elapsed since such division line was run. [Code 1881 § 2495; 1873 p 449 § 8; 1871 p 65 § 8; 1869 p 325 § 8; RRS § 5448. Formerly RCW 16.60.070.] 16.60.060 16.60.060 Partition fence—Discontinuance. When any party shall wish to lay open his inclosure, he shall notify any person owning adjoining inclosures, and if such person [Title 16 RCW—page 33] 16.60.062 Title 16 RCW: Animals and Livestock shall not pay to the party giving notice one-half the value of any partition fence between such enclosures, within three months after receiving such notice, the party giving notice may proceed to remove one-half of such fence, as provided in RCW 16.60.055. [Code 1881 § 2496; 1873 p 449 § 9; 1871 p 65 § 9; 1869 p 325 § 9; RRS § 5449.] 16.60.062 16.60.062 Assessing value of partition fence. In assessing the value of any partition fence, the parties shall proceed as provided for the assessment of damages in RCW 16.60.020. [Code 1881 § 2497; 1873 p 449 § 10; 1871 p 66 § 10; 1869 p 326 § 10; RRS § 5450.] 16.60.090 16.60.090 Failure to remove gate—Penalty. Any person retaining a gate across the highway after his license shall expire, shall be subject to a fine of one dollar for the first day and fifty cents for each subsequent day he shall retain the same, and it may be removed by the road supervisor, as an obstruction, at the cost of the person placing or keeping it upon the highway. [Code 1881, Bagley’s Supp., p 25 § 3; 1871 p 104 § 3; RRS § 5461.] 16.60.095 16.60.095 Fees. The fees of the auditor under RCW 16.60.080 through 16.60.095 shall be paid by the applicant. [Code 1881, Bagley’s Supp., p 25 § 4; 1871 p 104 § 4.] 16.60.064 16.60.064 Impeachment of assessment—Damages. Upon the trial of any cause occurring under the provisions of RCW 16.60.010 through 16.60.076, the defendant may impeach any such assessment, and in that case the court or the jury shall determine the damages. [Code 1881 § 2498; 1873 p 449 § 11; 1871 p 66 § 11; 1869 p 326 § 11; RRS § 5451.] Chapter 16.65 Sections 16.65.005 16.65.010 16.65.015 16.65.020 16.60.075 16.60.075 Damages by breachy animals. The owner of any animal that is unruly, and in the habit of breaking through or throwing down fences, if after being notified that such animal is unruly and in the habit of breaking through or throwing down fences as aforesaid, he shall allow such animal to run at large, shall be liable for all damages caused by such animal, and any and all other animals, that may be in company with such animal. [Code 1881 § 2499; 1873 p 449 § 12; 1871 p 66 § 12; 1869 p 326 § 12; RRS § 5452. Formerly RCW 16.04.090, part. FORMER PART OF SECTION: Code 1881 § 2500; 1873 p 450 § 13; 1871 p 66 § 13; RRS § 5453, now codified as RCW 16.60.076.] 16.60.076 16.60.076 Proof. In case of actions for damages under RCW 16.60.010 through 16.60.076, it shall be sufficient to prove that the fence was lawful when the break was made. [Code 1881 § 2500; 1873 p 450 § 13; 1871 p 66 § 13; RRS § 5453. Formerly RCW 16.04.090, part.] 16.60.080 16.60.080 Temporary gate across highway. Whenever any inhabitant of this state shall have his fences removed by floods or destroyed by fire, the county commissioners of the county in which he resides shall have power to grant a license or permit for him or her to put a convenient gate or gates across any highway for a limited period of time, to be named in their order, in order to secure him from depredations upon his crops until he can repair his fences, and they shall grant such license or permit for no longer period than they may think absolutely necessary. [Code 1881, Bagley’s Supp., p 25 § 1; 1871 p 103 § 1; RRS § 5459. FORMER PART OF SECTION: Code 1881, Bagley’s Supp., p 25 § 2; 1871 p 104 § 2; RRS § 5460, now codified as RCW 16.60.085.] 16.65.030 16.65.037 16.65.040 16.65.042 16.65.044 16.65.050 16.65.060 16.65.080 16.65.090 16.65.100 16.65.120 16.65.130 16.65.140 16.65.150 16.65.160 16.65.170 16.65.180 16.65.190 16.65.200 16.65.210 16.65.220 16.65.230 16.65.232 16.65.235 16.65.240 16.65.250 16.65.260 16.65.270 16.65.280 16.65.290 16.60.085 16.60.085 Temporary gate across highway—Auditor may grant permit. It shall be lawful for the auditor of any county to grant such permit in vacation, but his license shall not extend past the next meeting of the commissioner’s court. [Code 1881, Bagley’s Supp., p 25 § 2; 1871 p 104 § 2; RRS § 5460. Formerly RCW 16.60.080, part.] [Title 16 RCW—page 34] Chapter 16.65 RCW PUBLIC LIVESTOCK MARKETS 16.65.300 16.65.310 16.65.320 16.65.330 Purpose. Definitions. Application of chapter—Exceptions. Supervision of markets and special open consignment horse sales—Rules—Interference with director’s duties. Public livestock market license—Application—Contents— Fee—Public hearing. License—Restrictions—Fees. Public livestock market license—Expiration—Renewal— Penalty. Special open consignment horse sale license required—Application—Fee—Where and when valid. Public livestock market—Open consignment horse sale— Consignor’s name. Disposition of fees. License to be posted. Denial, suspension, revocation of license—Reasons—Hearing. Livestock inspection—Consignor’s fee—Inspection fee. Livestock inspection—Purchaser’s fee. Disposition of proceeds of sale—Limitations on licensee. Unlawful use of consignor’s net proceeds. Custodial account for consignor’s proceeds—Authorized withdrawals—Accounts and records. Penalty for failure to disclose unsatisfied lien, mortgage. Delivery of proceeds and invoice to consignor or shipper. Records of licensee—Contents. Unjust, unreasonable, discriminatory rates or charges prohibited. Schedule of rates and charges. Licensee’s bond to operate market or special open consignment horse sale. Licensee’s bond to operate market—Amount determined by prior business operations—Minimum amount. Licensee’s bond to operate market—Amount when no prior business operations—Minimum and maximum amount. Licensee’s bond to operate market—One bond for each market. Licensee’s bond to operate special open consignment horse sale—Amount determined by estimate of business—Minimum amount. Cash or other security in lieu of surety bond—Rules. Action on bond—Fraud of licensee. Action on bond—Failure to comply with chapter. Licensee’s failure to pay vendor, consignor—Complaint— Director’s powers and duties. Licensee’s failure to pay vendor, consignor—Failure of vendor, consignor to file claim. Licensee’s failure to pay vendor, consignor—Duties of director when names of creditors not available. Licensee’s failure to pay vendor, consignor—Settlement, compromise of claims—Demand on bond—Discharge. Licensee’s failure to pay vendor, consignor—Refusal by surety company to pay demand—Action on bond—New bond, suspension or revocation of license on failure to file. Licensee’s failure to pay vendor, consignor—Settlement, compromise—Creditors share—Priority of state’s claim. Investigations by director—Complaints. Investigations—Powers of director. (2006 Ed.) Public Livestock Markets 16.65.340 16.65.350 16.65.360 16.65.370 16.65.380 16.65.390 16.65.400 16.65.410 16.65.420 16.65.424 16.65.430 16.65.440 16.65.440 16.65.445 16.65.450 16.65.900 16.65.910 Testing, examination, etc., of livestock for disease—Veterinarian employed by the market. Examinations—Sanitary and health practices and standards— Rules. Facilities—Sanitation—Requirements. Watering, feeding facilities—Unlawful acts. Adequate facilities and space required for veterinarians to function. Adequate space and facilities required for livestock inspectors and veterinarians to function. Weighing of livestock at public livestock market. Packer’s interest in market limited. Application for change of or additional sales days, special sales—Considerations for allocation. Additional sales days limited to sales of horses and/or mules. Information and records available to director and news services. Penalty (as amended by 2003 c 326). Penalty (as amended by 2003 c 53). Public hearings. Orders—Appeal. Severability—1959 c 107. Severability—1963 c 232. Exemptions from commission merchants’ act: RCW 20.01.030. 16.65.005 Purpose. The purpose of this chapter is to ensure the orderly marketing of livestock, to ensure the financial stability of public livestock markets, and to protect persons who consign livestock to markets and sales. [2003 c 326 § 61.] 16.65.005 Effective dates—2003 c 326: See RCW 16.57.902. 16.65.010 Definitions. For the purposes of this chapter: (1) The term "public livestock market" means any place, establishment or facility commonly known as a "public livestock market", "livestock auction market", "livestock sales ring", yards selling on commission, or the like, conducted or operated for compensation or profit as a public livestock market, consisting of pens or other enclosures, and their appurtenances in which livestock is received, held, sold, kept for sale or shipment. The term does not include the operation of a person licensed under this chapter to operate a special open consignment horse sale. (2) "Department" means the department of agriculture of the state of Washington. (3) "Director" means the director of the department or his or her duly authorized representative. (4) "Licensee" means any person licensed under the provisions of this chapter. (5) "Livestock" includes horses, mules, burros, cattle, sheep, swine, and goats. (6) "Person" means a natural person, individual, firm, partnership, corporation, company, society, and association, and every officer, agent or employee thereof. This term shall import either the singular or the plural as the case may be. (7) "Stockyard" means any place, establishment, or facility commonly known as a stockyard consisting of pens or other enclosures and their appurtenances in which livestock services such as feeding, watering, weighing, sorting, receiving and shipping are offered to the public: PROVIDED, That stockyard shall not include any facilities where livestock is offered for sale at public auction, feed lots, or quarantined registered feed lots. (8) "Packer" means any person engaged in the business of slaughtering, manufacturing, preparing meat or meat products for sale, marketing meat, meat food products or livestock products. 16.65.010 (2006 Ed.) 16.65.030 (9) "Special open consignment horse sale" means a sale conducted by a person other than the operator of a public livestock market which is limited to the consignment of horses and donkeys only for sale on an occasional and seasonal basis. (10) "Livestock inspection" or "inspection" means the examination of livestock or livestock hides for brands or any means of identifying livestock or livestock hides including the examination of documents providing evidence of ownership. [2003 c 326 § 62; 1983 c 298 § 1; 1961 c 182 § 1; 1959 c 107 § 1.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.015 16.65.015 Application of chapter—Exceptions. (1) Except under subsection (2) of this section, this chapter does not apply to: (a) A farmer selling his or her own livestock. (b) A farmers’ cooperative association or an association of livestock breeders when any class of their own livestock is assembled and offered for sale at a special sale under the association’s management and responsibility. (c) A youth livestock organization such as 4-H, FFA, or other junior livestock group, when any class of livestock owned by the youth members is assembled and offered for sale at a special sale under the organization’s management and responsibility. (2) Any farmer, farmers’ cooperative association, livestock breeders’ association, or youth livestock organization under subsection (1) of this section, may, upon obtaining a permit from the director, conduct a public sale of his or her or its members livestock on an occasional or seasonal basis. Application for the permit shall be in writing to the director for his or her approval at least fifteen days before the proposed public sale is scheduled to be held. The application must be complete and accompanied by a nonrefundable fee of fifty dollars for each sale, except that the fee is waived for youth livestock organizations. The sale is subject to the livestock and health inspection requirements as provided in this chapter for sales at public livestock markets, unless otherwise prescribed by rule. [2003 c 326 § 63; 1983 c 298 § 2.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.020 16.65.020 Supervision of markets and special open consignment horse sales—Rules—Interference with director’s duties. Public livestock markets and special open consignment horse sales shall be under the direction and supervision of the director, and the director may adopt those rules as are necessary to carry out the purpose of this chapter. It shall be the duty of the director to enforce and carry out the provisions of this chapter and rules adopted under this chapter. No person shall interfere with the director when he or she is performing or carrying out any duties imposed by this chapter or rules adopted under this chapter. [2003 c 326 § 64; 1983 c 298 § 5; 1959 c 107 § 2.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.030 16.65.030 Public livestock market license—Application—Contents—Fee—Public hearing. (1) No person shall operate a public livestock market without first having obtained a license from the director. Application for a license [Title 16 RCW—page 35] 16.65.037 Title 16 RCW: Animals and Livestock shall be in writing on forms prescribed by the director, and shall include the following: (a) A nonrefundable original license application fee of two thousand dollars. (b) A legal description of the property upon which the public livestock market shall be located. (c) A complete description and blueprints or plans of the public livestock market physical plant, yards, pens, and all facilities the applicant proposes to use in the operation of such public livestock market. (d) A financial statement, audited by a certified or licensed public accountant, to determine whether or not the applicant meets the minimum net worth requirements, established by the director by rule, to construct and/or operate a public livestock market. If the applicant is a subsidiary of a larger company, corporation, society, or cooperative association, both the parent company and the subsidiary company must submit a financial statement to determine whether or not the applicant meets the minimum net worth requirements. All financial statement information required by this subsection is confidential information and not subject to public disclosure. (e) The schedule of rates and charges the applicant proposes to impose on the owners of livestock for services rendered in the operation of such livestock market. (f) The weekly or monthly sales day or days on which the applicant proposes to operate his or her public livestock market sales and the class of livestock that may be sold on these days. (g) Projected source and quantity of livestock anticipated to be handled. (h) Projected gross dollar volume of business to be carried on, at, or through the public livestock market during the first year’s operation. (i) Facts upon which is based the conclusion that the trade area and the livestock industry will benefit because of the proposed market. (j) Other information as the director may require by rule. (2) If the director determines that the applicant meets all the requirements of subsection (1) of this section, the director shall conduct a public hearing as provided by chapter 34.05 RCW, and shall grant or deny an application for original license for a public livestock market after considering evidence and testimony relating to the requirements of this section and giving reasonable consideration to: (a) Benefits to the livestock industry to be derived from the establishment and operation of the public livestock market proposed in the application; (b) The geographical area that will be affected; (c) The conflict, if any, with sales days already allocated in the area; (d) The amount and class of livestock available for marketing in the area; (e) Buyers available to the proposed market; and (f) Any other conditions affecting the orderly marketing of livestock. (3) Before a license is issued to operate a public livestock market, the applicant must: (a) Execute and deliver to the director a surety bond as required under RCW 16.65.200; [Title 16 RCW—page 36] (b) Provide evidence of a custodial account, as required under RCW 16.65.140, for the consignor’s proceeds; (c) Pay the appropriate license fee; and (d) Provide other information required under this chapter and rules adopted under this chapter. [2003 c 326 § 65; 1995 c 374 § 54; (1994 c 46 § 21 repealed by 1995 c 374 § 55); 1994 c 46 § 12; 1993 c 354 § 1; 1991 c 17 § 1; 1979 ex.s. c 91 § 1; 1971 ex.s. c 192 § 1; 1967 ex.s. c 120 § 5; 1961 c 182 § 2; 1959 c 107 § 3.] Effective dates—2003 c 326: See RCW 16.57.902. Prior legislative approval—1994 c 46: "The reenactment of sections 12 through 20 of this act constitutes approval of fee increases for which prior legislative approval is required by RCW 43.135.055 (section 8, chapter 2, Laws of 1994, Initiative Measure No. 601)." [1994 c 46 § 26.] Effective date—1994 c 46: See note following RCW 15.58.070. 16.65.037 16.65.037 License—Restrictions—Fees. (1) Any license issued under the provisions of this chapter shall only be valid at the location and for the sales day or days for which the license was issued. (2) The license fee shall be based on the average gross sales volume per official sales day of a market in the previous twelve months or, for a new market, the projected average gross sales per official sales day of the market during its first year’s operation. (a) The license fee for markets with an average gross sales volume up to and including ten thousand dollars is one hundred fifty dollars. (b) The license fee for markets with an average gross sales volume over ten thousand dollars and up to and including fifty thousand dollars is three hundred dollars. (c) The license fee for markets with an average gross sales volume over fifty thousand dollars is four hundred fifty dollars. (3) Any applicant operating more than one public livestock market shall make a separate application for a license to operate each public livestock market, and each application shall be accompanied by the appropriate license fee. [2003 c 326 § 66; 1997 c 356 § 9; 1997 c 356 § 8; 1995 c 374 § 57.] Effective dates—2003 c 326: See RCW 16.57.902. Effective dates—1997 c 356: See note following RCW 16.57.220. Effective date—Expiration date—1995 c 374 §§ 48, 49, 56, and 57: See note following RCW 16.57.220. 16.65.040 16.65.040 Public livestock market license—Expiration—Renewal—Penalty. (1) All public livestock market licenses provided for in this chapter expire on March 1st subsequent to the date of issue. (2) Application for renewal of a public livestock market license shall be in writing on forms prescribed by the director, and shall include: (a) All information under RCW 16.65.030(1) (d), (e), and (f); (b) The gross dollar volume of business carried on, at, or through the applicant’s public livestock market in the twelvemonth period prior to the application for renewal of the license; (c) Other information as the director may require by rule; and (d) The appropriate license fee. (2006 Ed.) Public Livestock Markets (3) If any person fails, refuses, or neglects to apply for a renewal of a preexisting license by March 1st, the person’s license shall expire. To reinstate a license, the person shall pay a penalty of twenty-five dollars, which shall be added to the regular license fee, before the license may be reinstated by the director. [2003 c 326 § 67; 1983 c 298 § 6; 1979 ex.s. c 91 § 2; 1959 c 107 § 4.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.042 16.65.042 Special open consignment horse sale license required—Application—Fee—Where and when valid. (1) A person shall not operate a special open consignment horse sale without first obtaining a license from the director. The application for the license shall include: (a) The schedule of rates and charges the applicant proposes to impose on the owners of horses for services rendered in the operation of the horse sale; (b) The specific date and exact location of the proposed sale; (c) Projected quantity and approximate value of horses to be handled; and (d) Such other information as the director may reasonably require. (2) The application shall be accompanied by a license fee of one hundred dollars. Upon the approval of the application by the director and compliance with this chapter, the applicant shall be issued a license. A special open consignment horse sale license is valid only for the specific date or dates and exact location for which the license was issued. [2003 c 326 § 68; 1983 c 298 § 3.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.120 chapter or rules adopted under this chapter; (d) has violated any laws of the state that require inspection of livestock for health or ownership purposes; (e) has violated any condition of the bond, as provided in this chapter. (2) Upon notice by the director to deny, revoke, or suspend a license, a person may request a hearing under chapter 34.05 RCW. (3) The director may issue subpoenas to compel the attendance of witnesses, and/or the production of books or documents anywhere in the state. The applicant or licensee shall have opportunity to be heard, and may have such subpoenas issued as he or she desires. Subpoenas shall be served in the same manner as in civil cases in the superior court. Witnesses shall testify under oath which may be administered by the director. Testimony shall be recorded, and may be taken by deposition under such rules as the director may prescribe. [2003 c 326 § 70; 1985 c 415 § 9; 1971 ex.s. c 192 § 2; 1961 c 182 § 3; 1959 c 107 § 8.] Effective dates—2003 c 326: See RCW 16.57.902. Orders—Appeal: RCW 16.65.450. 16.65.090 16.65.090 Livestock inspection—Consignor’s fee— Inspection fee. The director shall provide for livestock inspection. When livestock inspection is required the licensee shall collect from the consignor and pay to the department an inspection fee, as provided by law, for each animal inspected. However, if in any one sale day the total fees collected for inspection do not exceed one hundred dollars, then the licensee shall pay one hundred dollars for the inspection services. [2003 c 326 § 71; 1997 c 356 § 11; 1997 c 356 § 10; 1994 c 46 § 22; 1994 c 46 § 13; 1993 c 354 § 2; 1983 c 298 § 8; 1971 ex.s. c 192 § 3; 1959 c 107 § 9.] 16.65.044 16.65.044 Public livestock market—Open consignment horse sale—Consignor’s name. It is lawful for the operator of a public livestock market or an open consignment horse sale, upon receiving a request to do so, to allow the announcement of the correct and accurate name of the consignor of any cattle or horses being presented for sale to potential buyers. [1991 c 17 § 5.] 16.65.050 16.65.050 Disposition of fees. All fees provided for under this chapter shall be deposited in an account in the agricultural local fund and used for enforcing and carrying out the purpose and provisions of this chapter and chapter 16.57 RCW. [2003 c 326 § 69; 1959 c 107 § 5.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.060 16.65.060 License to be posted. The licensee’s license shall be posted conspicuously in the main office of such licensee’s public livestock market or special open consignment horse sale. [1983 c 298 § 7; 1959 c 107 § 6.] 16.65.080 16.65.080 Denial, suspension, revocation of license— Reasons—Hearing. (1) The director may deny, suspend, or revoke a license when the director finds that a licensee (a) has misrepresented titles, charges, numbers, brands, weights, proceeds of sale, or ownership of livestock; (b) has attempted payment to a consignor or the department by a check the licensee knows not to be backed by sufficient funds to cover such check; (c) has violated any of the provisions of this (2006 Ed.) Effective dates—2003 c 326: See RCW 16.57.902. Effective dates—1997 c 356: See note following RCW 16.57.220. Effective date—1994 c 46 §§ 21-25: "Sections 21 through 25 of this act shall take effect July 1, 1997." [1994 c 46 § 29.] Effective date—1994 c 46: See note following RCW 15.58.070. Prior legislative approval—1994 c 46: See note following RCW 16.65.030. 16.65.100 16.65.100 Livestock inspection—Purchaser’s fee. The licensee of each public livestock market or special open consignment horse sale shall collect from any purchaser of livestock requesting inspection a fee as provided by law for each animal inspected. This fee shall be in addition to the fee charged to the consignor for inspection and shall not apply to the minimum fee chargeable to the licensee. [2003 c 326 § 72; 1983 c 298 § 9; 1959 c 107 § 10.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.120 16.65.120 Disposition of proceeds of sale—Limitations on licensee. A licensee shall not, except as provided in this chapter, pay the net proceeds or any part thereof arising from the sale of livestock consigned to the said licensee for sale, to any person other than the consignor of such livestock except upon an order from a court of competent jurisdiction, unless (1) such licensee has reason to believe that such person is the owner of the livestock; (2) such person holds a valid unsatisfied mortgage or lien upon the particular livestock, or (3) such person holds a written order authorizing such pay[Title 16 RCW—page 37] 16.65.130 Title 16 RCW: Animals and Livestock ment executed by the owner at the time of or immediately following the consignment of such livestock. [1959 c 107 § 12.] 16.65.130 16.65.130 Unlawful use of consignor’s net proceeds. It shall be unlawful for the licensee to use for his own purposes consignor’s net proceeds, or funds received by such licensee to purchase livestock on order, through recourse to the so-called "float" in the bank account, or in any other manner. [1959 c 107 § 13.] 16.65.140 16.65.140 Custodial account for consignor’s proceeds—Authorized withdrawals—Accounts and records. Each licensee shall establish a custodial account for consignor’s proceeds. All funds derived from the sale of livestock handled on a commission or agency basis shall be deposited in that account. The account shall be drawn on only for the payment of net proceeds to the consignor, or other person or persons of whom the licensee has knowledge is entitled to the proceeds, and to obtain from those proceeds only the sums due the licensee as compensation for the services as are set out in the posted tariffs, and for the sums as are necessary to pay all legal charges against the consignment of livestock which the licensee in the capacity as agent is required to pay for on behalf of the consignor or shipper. The licensee in each case shall keep those accounts and records that will at all times disclose the names of the consignors and the amount due and payable to each from the funds in the custodial account for consignor’s proceeds. The licensee shall maintain the custodial account for consignor’s proceeds in a manner that will expedite examination by the director and reflect compliance with the requirements of this section. [2003 c 326 § 73; 1971 ex.s. c 192 § 4; 1959 c 107 § 14.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.150 16.65.150 Penalty for failure to disclose unsatisfied lien, mortgage. The delivery of livestock, for the purpose of sale, by any consignor or vendor to a public livestock market or special open consignment horse sale without making a full disclosure to the agent or licensee of such public livestock market or special open consignment horse sale of any unsatisfied lien or mortgage upon such livestock shall constitute a gross misdemeanor. [1983 c 298 § 10; 1959 c 107 § 15.] 16.65.160 16.65.160 Delivery of proceeds and invoice to consignor or shipper. The licensee shall deliver the net proceeds together with an invoice to the consignor or shipper within twenty-four hours after the sale or by the end of the next business day if the licensee is not on notice that any other person or persons have a valid interest in the livestock. [1959 c 107 § 16.] 16.65.170 16.65.170 Records of licensee—Contents. The licensee shall keep accurate records which shall be available for inspection to all parties directly interested therein, and the records shall contain the following information: (1) The date on which each consignment of livestock was received and sold. (2) The name and address of the buyer and seller of the livestock. [Title 16 RCW—page 38] (3) The number and species of livestock received and sold. (4) The marks and brands on the livestock. (5) All statements of warranty or representations of title material to, or upon which, any sale is consummated. (6) The gross selling price of the livestock with a detailed list of all charges deducted therefrom. These records shall be kept by the licensee for one year subsequent to the receipt of such livestock. [2003 c 326 § 74; 1967 c 192 § 1; 1959 c 107 § 17.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.180 16.65.180 Unjust, unreasonable, discriminatory rates or charges prohibited. All rates or charges made for any stockyard services furnished at a public livestock market or special open consignment horse sale shall be just, reasonable, and nondiscriminatory, and any unjust, unreasonable, or discriminatory rate or charge is prohibited and declared to be unlawful. [1983 c 298 § 11; 1959 c 107 § 18.] 16.65.190 16.65.190 Schedule of rates and charges. No person shall operate a public livestock market or special open consignment horse sale unless that person has filed a schedule with the application for license to operate a public livestock market or special open consignment horse sale. The schedule shall show all rates and charges for stockyard services to be furnished at the public livestock market or special open consignment horse sale. (1) Schedules shall be posted conspicuously at the public livestock market or special open consignment horse sale, and shall plainly state all rates and charges in such detail as the director may require, and shall state any rules which in any manner change, affect, or determine any part of the aggregate of the rates or charges, or the value of the stockyard services furnished. The director may determine and prescribe the form and manner in which the schedule shall be prepared, arranged, and posted. (2) No changes shall be made in rates or charges so filed and published except after thirty days’ notice to the director and to the public filed and posted as set forth under this section, which shall plainly state the changes proposed to be made and the time the changes will go into effect. (3) No licensee shall charge, demand, or collect a greater or a lesser or a different compensation for a service than the rates and charges specified in the schedule filed with the director and in effect at the time; nor shall a licensee refund or remit in any manner any portion of the rates or charges so specified (but this shall not prohibit a cooperative association of producers from properly returning to its members, on a patronage basis, its excess earnings on their livestock); nor shall a licensee extend to any person at a public livestock market or special open consignment horse sale any stockyard services except as are specified in the schedule. [2003 c 326 § 75; 1983 c 298 § 12; 1959 c 107 § 19.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.200 16.65.200 Licensee’s bond to operate market or special open consignment horse sale. Before the license is issued to operate a public livestock market or special open consignment horse sale, the applicant shall execute and (2006 Ed.) Public Livestock Markets deliver to the director a surety bond in a sum as herein provided for, executed by the applicant as principal and by a surety company qualified and authorized to do business in this state as surety. The bond shall be a standard form and approved by the director as to terms and conditions. The bond shall be conditioned that the principal will not commit any fraudulent act and will comply with the provisions of this chapter and the rules adopted under this chapter. The bond shall be to the state in favor of every consignor and/or vendor creditor whose livestock was handled or sold through or at the licensee’s public livestock market or special open consignment horse sale: PROVIDED, That if the applicant is bonded as a market agency under the provisions of the packers and stockyards act, (7 U.S.C. 181) as amended, on March 20, 1961, in a sum equal to or greater than the sum required under the provisions of this chapter, and the applicant furnishes the director with a bond approved by the United States secretary of agriculture, the director may accept the bond and its method of termination in lieu of the bond provided for herein and issue a license if the applicant meets all the other requirements of this chapter. The total and aggregate liability of the surety for all claims upon the bond shall be limited to the face of the bond. Every bond filed with and approved by the director shall, without the necessity of periodic renewal, remain in force and effect until the license of the licensee is revoked for cause or otherwise canceled. The surety on a bond, as provided herein, shall be released and discharged from all liability to the state accruing on the bond upon compliance with the provisions of RCW 19.72.110 concerning notice and proof of service, but this shall not operate to relieve, release, or discharge the surety from any liability already accrued or which shall accrue (due and to become due hereunder) before the expiration period provided for in RCW 19.72.110 concerning notice and proof of service, and unless the principal shall before the expiration of this period, file a new bond, the director shall immediately cancel the principal’s license. [2003 c 326 § 76; 1983 c 298 § 13; 1971 ex.s. c 192 § 5; 1961 c 182 § 4. Prior: 1959 c 107 § 20.] 16.65.250 that arrived at in the formula. [1971 ex.s. c 192 § 6; 1959 c 107 § 21.] 16.65.220 16.65.220 Licensee’s bond to operate market— Amount when no prior business operations—Minimum and maximum amount. If the application for a license to operate a public livestock market is from a new public livestock market which has not operated in the past twelvemonth period, the director shall determine a bond, in a reasonable sum, that the applicant shall execute in favor of the state, which shall not be less than ten thousand dollars nor greater than twenty-five thousand dollars: PROVIDED, That the director may at any time, upon written notice, review the licensee’s operations and determine whether, because of increased or decreased sales, the amount of the bond should be altered. [1971 ex.s. c 192 § 7; 1959 c 107 § 22.] 16.65.230 16.65.230 Licensee’s bond to operate market—One bond for each market. Any licensee operating more than one public livestock market shall execute a bond, as herein provided, for each such licensed public livestock market. [1959 c 107 § 23.] 16.65.232 16.65.232 Licensee’s bond to operate special open consignment horse sale—Amount determined by estimate of business—Minimum amount. The sum of the bond to be executed by an applicant for a special open consignment horse sale license shall be determined by estimating the dollar volume of business to be carried on, at, or through the applicant’s proposed special open consignment horse sale. The bond amount shall be that amount estimated as the applicant’s dollar volume of business. However, the bond shall not be in an amount less than ten thousand dollars. If the amount exceeds fifty thousand dollars, then that portion above fifty thousand dollars shall be at the rate of ten percent of that value, except that the amount of the bond shall be to the nearest greater five thousand dollar figure. [1983 c 298 § 4.] 16.65.235 Effective dates—2003 c 326: See RCW 16.57.902. 16.65.210 16.65.210 Licensee’s bond to operate market— Amount determined by prior business operations—Minimum amount. The sum of the bond to be executed by an applicant for a public livestock market license shall be determined in the following manner: (1) Determine the dollar volume of business carried on, at, or through, such applicant’s public livestock market in the twelve-month period prior to such applicant’s application for a license. (2) Divide such dollar volume of business by the number of official sale days granted such applicant’s public livestock market, as herein provided, in the same twelve-month period provided for in subsection (1). (3) Bond amount shall be that amount obtained by the formula in subsection (2) except that it shall not be an amount less than ten thousand dollars and if that amount shall exceed fifty thousand then that portion above fifty thousand shall be at the rate of ten percent of that value, except that the amount of the bond shall be to the nearest five thousand figure above (2006 Ed.) 16.65.235 Cash or other security in lieu of surety bond—Rules. In lieu of the surety bond required under the provisions of this chapter, an applicant or licensee may file with the director a deposit consisting of cash or other security acceptable to the director. The director may adopt rules necessary for the administration of such security. [2003 c 326 § 77; 1973 c 142 § 3.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.240 16.65.240 Action on bond—Fraud of licensee. Any vendor or consignor creditor claiming to be injured by the fraud of any licensee may bring action upon said bond against both principal and surety in any court of competent jurisdiction to recover the damages caused by such fraud. [1959 c 107 § 24.] 16.65.250 16.65.250 Action on bond—Failure to comply with chapter. The director or any vendor or consignor creditor may also bring action upon said bond against both principal and surety in any court of competent jurisdiction to recover the damages caused by any failure to comply with the provi[Title 16 RCW—page 39] 16.65.260 Title 16 RCW: Animals and Livestock sions of this chapter and the rules and/or regulations adopted hereunder. [1959 c 107 § 25.] 16.65.260 16.65.260 Licensee’s failure to pay vendor, consignor—Complaint—Director’s powers and duties. In case of failure by a licensee to pay amounts due a vendor or consignor creditor whose livestock was handled or sold through or at the licensee’s public livestock market or special open consignment horse sale, as evidenced by a verified complaint filed with the director, the director may proceed immediately to ascertain the names and addresses of all vendor or consignor creditors of the licensee, together with the amounts due and owing to them and each of them by the licensee, and shall request all vendor and consignor creditors to file a verified statement of their respective claims with the director. This request shall be addressed to each known vendor or consignor creditor at his or her last known address. [2003 c 326 § 78; 1983 c 298 § 14; 1959 c 107 § 26.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.270 16.65.270 Licensee’s failure to pay vendor, consignor—Failure of vendor, consignor to file claim. If a vendor or consignor creditor so addressed fails, refuses or neglects to file in the office of the director his or her verified claim as requested by the director within sixty days from the date of such request, the director shall be relieved of further duty or action on behalf of the producer or consignor creditor. [2003 c 326 § 79; 1959 c 107 § 27.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.280 16.65.280 Licensee’s failure to pay vendor, consignor—Duties of director when names of creditors not available. Where by reason of the absence of records, or other circumstances making it impossible or unreasonable for the director to ascertain the names and addresses of all vendor and consignor creditors, the director, after exerting due diligence and making reasonable inquiry to secure the information from all reasonable and available sources, may make demand on the bond on the basis of information then in his or her possession, and thereafter shall not be liable or responsible for claims or the handling of claims which may subsequently appear or be discovered. [2003 c 326 § 80; 1959 c 107 § 28.] Effective dates—2003 c 326: See RCW 16.57.902. pany to pay the demand, the director may bring an action on the bond in behalf of vendor and consignor creditors. Upon any action being commenced on the bond, the director may require the filing of a new bond. Immediately upon the recovery in any action on the bond the licensee shall file a new bond. Upon failure to file the new bond within ten days, such a failure shall constitute grounds for the suspension or revocation of the license. [2003 c 326 § 81; 1959 c 107 § 30.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.310 16.65.310 Licensee’s failure to pay vendor, consignor—Settlement, compromise—Creditors share—Priority of state’s claim. In any settlement or compromise by the director with a surety company as provided in RCW 16.65.290, where there are two or more consignor and/or vendor creditors that have filed claims, either fixed or contingent, against a licensee’s bond, such creditors shall share pro rata in the proceeds of the bond to the extent of their actual damage: PROVIDED, That the claims of the state and the department which may accrue from the conduct of the licensee’s public livestock market shall have priority over all other claims. [1959 c 107 § 31.] 16.65.320 16.65.320 Investigations by director—Complaints. For the purpose of enforcing the provisions of this chapter, the director on the director’s own motion or upon the verified complaint of any vendor or consignor against any licensee, or agent, or any person assuming or attempting to act as such, shall have full authority to make any and all necessary investigations. The director is empowered to administer oaths of verification of such complaints. [1985 c 415 § 10; 1959 c 107 § 32.] 16.65.330 16.65.330 Investigations—Powers of director. For the purpose of making investigations as provided for in RCW 16.65.320, the director may enter a public livestock market and examine any records required under the provisions of this chapter. The director shall have full authority to issue subpoenas requiring the attendance of witnesses before him, together with all books, memorandums, papers, and other documents relative to the matters under investigation, and to administer oaths and take testimony thereunder. [1959 c 107 § 33.] 16.65.340 16.65.290 16.65.290 Licensee’s failure to pay vendor, consignor—Settlement, compromise of claims—Demand on bond—Discharge. Upon ascertaining all claims and statements in the manner herein set forth, the director may then make demand upon the bond on behalf of those claimants whose statements have been filed, and shall have the power to settle or compromise said claims with the surety company on the bond, and is empowered in such cases to execute and deliver a release and discharge of the bond involved. [1959 c 107 § 29.] 16.65.300 16.65.300 Licensee’s failure to pay vendor, consignor—Refusal by surety company to pay demand— Action on bond—New bond, suspension or revocation of license on failure to file. Upon the refusal of the surety com[Title 16 RCW—page 40] 16.65.340 Testing, examination, etc., of livestock for disease—Veterinarian employed by the market. The director shall, when livestock is sold, traded, exchanged, or handled at or through a public livestock market, require such testing, treating, identifying, examining and record keeping of such livestock by a Washington state licensed and accredited veterinarian employed by the market as in the director’s judgment may be necessary to prevent the spread of brucellosis, tuberculosis, paratuberculosis, pseudorabies, or any other infectious, contagious, or communicable disease among the livestock of this state. The state veterinarian or his or her authorized representative may conduct additional testing and examinations for the same purpose. [2003 c 326 § 82; 1967 c 192 § 2; 1959 c 107 § 34.] Effective dates—2003 c 326: See RCW 16.57.902. (2006 Ed.) Public Livestock Markets 16.65.350 16.65.350 Examinations—Sanitary and health practices and standards—Rules. The director shall adopt rules regarding sanitary practices, health practices and standards, and the examination of animals at public livestock markets. [2003 c 326 § 83; 1959 c 107 § 35.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.360 16.65.360 Facilities—Sanitation—Requirements. Licensees shall provide facilities and sanitation for the prevention of livestock diseases at their public livestock markets, as follows: (1) The floors of all pens and alleys that are part of a public livestock market shall be constructed of concrete or similar impervious material and kept in good repair, with a slope of not less than one-fourth inch per foot to adequate drains leading to an approved sewage system: PROVIDED, That the director may designate certain pens within such public livestock markets as feeding and holding pens and the floors and alleys of such pens shall not be subject to the aforementioned surfacing requirements. (2) Feeding and holding pens maintained in an area adjacent to a public livestock market shall be constructed and separated from such public livestock market, in a manner prescribed by the director, in order to prevent the spread of communicable diseases to the livestock sold or held for sale in such public livestock market. (3) All yards, chutes and pens used in handling livestock shall be constructed of such materials which will render them easily cleaned and disinfected, and such yards, pens and chutes shall be kept clean, sanitary and in good repair at all times, as required by the director. (4) Sufficient calf pens of adequate size to prevent overcrowding shall be provided, and such pens, when used, shall be cleaned and disinfected no later than the day subsequent to each sale. (5) All swine pens, when used, shall be cleaned and disinfected no later than the day subsequent to each sale. (6) A water system carrying a pressure of forty pounds and supplying sufficient water to thoroughly wash all pens, floors, alleys and equipment shall be provided. (7) Sufficient quarantine pens of adequate capacity shall be provided. Such pens shall be used to hold only cattle reacting to brucellosis and tuberculosis or to quarantine livestock with other contagious or communicable diseases and shall be: (a) hard surfaced with concrete or similar impervious material and shall be kept in good repair; (b) provided with separate watering facilities; (c) painted white with the word "quarantine" painted in red letters not less than four inches high on such quarantine pen’s gate; (d) provided with a tight board fence not less than five and one-half feet high; (e) cleaned and disinfected not later than one day subsequent to the date of sale. To prevent the spread of communicable diseases among livestock, the director shall have the authority to cause the cleaning and disinfecting of any area or all areas of a public livestock market and equipment or vehicles with a complete coverage of disinfectants approved by the director. [1959 c 107 § 36.] (2006 Ed.) 16.65.410 16.65.370 16.65.370 Watering, feeding facilities—Unlawful acts. Pens used to hold livestock for a period of twenty-four hours or more in a public livestock market shall have watering and feeding facilities for livestock held in such pens. It shall be unlawful for a public livestock market to hold livestock for a period longer than twenty-four hours without feeding and watering such livestock. An operator of a public livestock market may also refuse to accept the consignment of any livestock that the licensee may believe to have been inadequately fed or otherwise inadequately cared for prior to the delivery of the livestock in question to the public livestock market. [1991 c 17 § 2; 1959 c 107 § 37.] 16.65.380 16.65.380 Adequate facilities and space required for veterinarians to function. Public livestock market facilities shall include adequate space and facilities necessary for market, federal, or state veterinarians to properly carry out their functions as prescribed by law and rules adopted under law or as prescribed by applicable federal law or regulation. [2003 c 326 § 84; 1959 c 107 § 38.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.390 16.65.390 Adequate space and facilities required for livestock inspectors and veterinarians to function. Public livestock market facilities shall include space and facilities necessary for livestock inspectors and veterinarians to properly carry out their duties, as provided by law and rules adopted under law, in a safe and expeditious manner. [2003 c 326 § 85; 1959 c 107 § 39.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.400 16.65.400 Weighing of livestock at public livestock market. (1) Each public livestock market licensee shall maintain and operate approved weighing facilities for the weighing of livestock at such licensee’s public livestock market. (2) All dial scales used by the licensee shall be of adequate size to be readily visible to all interested parties and shall be equipped with a mechanical weight recorder. (3) All beam scales used by the licensee shall be equipped with a balance indicator, a weigh beam and a mechanical weight recorder, all readily visible to all interested parties. (4) All scales used by the licensee shall be checked for balance at short intervals during the process of selling and immediately prior to the beginning of each sale day. (5) The scale ticket shall have the weights mechanically imprinted upon the tickets when the weigh beam is in balance during the process of weighing, and shall be issued in triplicate, for all livestock weighed at a public livestock market. A copy of the weight tickets shall be issued to the buyer and seller of the livestock weighed. [2003 c 326 § 86; 1983 c 298 § 15; 1961 c 182 § 5; 1959 c 107 § 40.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.410 16.65.410 Packer’s interest in market limited. It shall be unlawful for a packer to own or control more than a twenty percent interest in any public livestock market, directly or indirectly through stock ownership or control, or otherwise [Title 16 RCW—page 41] 16.65.420 Title 16 RCW: Animals and Livestock by himself or through his agents or employees. [1959 c 107 § 41.] 16.65.420 16.65.420 Application for change of or additional sales days, special sales—Considerations for allocation. (1) Any application for a change of sales day or days or additional sales day or days for an existing salesyard shall be subject to approval by the director, subsequent to a hearing and the director is hereby authorized to approve these days and class of livestock which may be sold on these days. In considering the approval or denial of these sales days, the director shall give appropriate consideration, among other relevant factors, to the following: (a) The geographical area which will be affected; (b) The conflict, if any, with sales days already allocated in the area; (c) The amount and class of livestock available for marketing in the area; (d) Buyers available to such market; (e) Any other conditions affecting the orderly marketing of livestock. (2) No special sales shall be conducted by the licensee unless the licensee has applied to the director in writing fifteen days prior to such proposed sale. Each application must be accompanied by a nonrefundable fee of fifty dollars. (3) In any case that a licensee fails to conduct sales on the sales days allocated to the licensee, the director shall, subsequent to a hearing, be authorized to revoke an allocation for nonuse. The rate of usage required to maintain an allocation shall be established by rule. [2003 c 326 § 87; 1991 c 17 § 3; 1963 c 232 § 16; 1961 c 182 § 6. Prior: 1959 c 107 § 42.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.424 16.65.424 Additional sales days limited to sales of horses and/or mules. The director has the authority to grant a licensee an additional sales day, or days, limited to the sale of horses and/or mules and may if requested grant the licensee, by permit, the authority to have the sale at premises other than at his or her public livestock market if the facilities are approved by the director as being adequate for the protection of the health and safety of the horses and/or mules. For the purpose of such limited sale the facility requirements of RCW 16.65.360 shall not be applicable. [2003 c 326 § 88; 1963 c 232 § 19.] Effective dates—2003 c 326: See RCW 16.57.902. 16.65.430 16.65.430 Information and records available to director and news services. Information and records of the licensee that are necessary for the compilation of adequate reports on the marketing of livestock shall be made available to the director or any news service, publishing or broadcasting such market reports. [1959 c 107 § 43.] 16.65.440 16.65.440 Penalty (as amended by 2003 c 326). Any person who ((shall)) violates any provisions or requirements of this chapter or rules ((and regulations)) adopted by the director ((pursuant to)) under this chapter ((shall be deemed)) is guilty of a gross misdemeanor((; and any subsequent violation thereafter shall be deemed a gross misdemeanor)). [2003 c 326 § 89; 1959 c 107 § 44.] Effective dates—2003 c 326: See RCW 16.57.902. [Title 16 RCW—page 42] 16.65.440 16.65.440 Penalty (as amended by 2003 c 53). (1) Except as provided in subsection (2) of this section, any person who ((shall)) violates any provisions or requirements of this chapter or rules and regulations adopted by the director pursuant to this chapter ((shall be deemed)) is guilty of a misdemeanor((; and any)). (2) A second or subsequent violation ((thereafter shall be deemed)) is a gross misdemeanor. [2003 c 53 § 116; 1959 c 107 § 44.] Reviser’s note: RCW 16.65.440 was amended twice during the 2003 legislative session, each without reference to the other. For rule of construction concerning sections amended more than once during the same legislative session, see RCW 1.12.025. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 16.65.445 16.65.445 Public hearings. The director shall hold public hearings upon any proposal to adopt any new or amended rules and all hearings for the denial, revocation, or suspension of a license issued under this chapter or in any other adjudicative proceeding, and shall comply in all respects with chapter 34.05 RCW, the Administrative Procedure Act. [2003 c 326 § 90; 1989 c 175 § 55; 1961 c 182 § 7.] Effective dates—2003 c 326: See RCW 16.57.902. Effective date—1989 c 175: See note following RCW 34.05.010. 16.65.450 Orders—Appeal. Any licensee or applicant who feels aggrieved by an order of the director may appeal to the superior court of the county in the state of Washington of the residence of the licensee or applicant where the trial on such appeal shall be held de novo. [1991 c 17 § 4; 1959 c 107 § 46.] 16.65.450 16.65.900 Severability—1959 c 107. If any section or provision of this chapter shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the chapter as a whole, or any section, provision or part thereof, not adjudged invalid or unconstitutional. [1959 c 107 § 45.] 16.65.900 16.65.910 Severability—1963 c 232. 15.61.900. 16.65.910 See RCW Chapter 16.67 RCW WASHINGTON STATE BEEF COMMISSION Chapter 16.67 Sections 16.67.010 16.67.030 16.67.035 16.67.040 16.67.051 16.67.060 16.67.070 16.67.080 16.67.090 16.67.091 16.67.093 16.67.095 16.67.097 16.67.100 16.67.110 16.67.120 16.67.122 16.67.123 16.67.130 Short title. Definitions. Regulating beef and beef products—Existing comprehensive scheme—Laws applicable. Beef commission created—Generally. Designation of positions—Terms. Director to appoint members—Recommendations by industry. Vacancies—Compensation and travel expenses. Commission records as evidence. Powers and duties—Rule making. Commission’s plans, programs, and projects—Director’s approval required. Subpoenas. Commission speaks for state—Director’s oversight. Reimbursement for costs. Meetings—Notice. Promotional programs, research, rate studies, labeling. Levy of assessment—Collections—Federal orders. Additional assessment—National beef promotion and research program—Contingency. Transfer of cattle by meat packer as sale. Assessments personal debt—Delinquent charge—Civil action to collect. (2006 Ed.) Washington State Beef Commission 16.67.140 16.67.160 16.67.170 16.67.180 16.67.190 16.67.195 16.67.900 16.67.910 16.67.920 Livestock purchasers to provide list of sellers to commission. Liability of commission’s assets—Immunity of state, commission employees, etc. Promotional printing not restricted by public printer laws. Certain records exempt from public disclosure—Exceptions— Actions not prohibited by chapter. Funding staff support—Rules. Costs of implementing RCW 16.67.091. Liberal construction—1969 c 133. Severability—1969 c 133. Effective date—1969 c 133. 16.67.010 16.67.010 Short title. This chapter shall be known and may be cited as the Washington state beef commission act. [1969 c 133 § 1.] 16.67.030 16.67.030 Definitions. For the purpose of this chapter: (1) "Commission" means the Washington state beef commission. (2) "Director" means the director of agriculture of the state of Washington or an appointed representative. (3) "Ex officio members" means those advisory members of the commission who do not have a vote. (4) "Department" means the department of agriculture of the state of Washington. (5) "Person" includes any individual, firm, corporation, trust, association, partnership, society, or any other organization of individuals. (6) "Beef producer" means any person who raises, breeds, grows, or purchases cattle or calves for beef production. (7) "Dairy (beef) producer" means any person who raises, breeds, grows, or purchases cattle for dairy production and who is actively engaged in the production of fluid milk. (8) "Feeder" means any person actively engaged in the business of feeding cattle and usually operating a feed lot. (9) "Producer" means any person actively engaged in the cattle industry including beef producers and dairy (beef) producers. (10) "Washington cattle" shall mean all cattle owned or controlled by affected producers and located or sold in the state of Washington. (11) "Meat packer" means any person operating a slaughtering establishment subject to inspection under a federal meat inspection act. (12) "Livestock salesyard operator" means any person licensed to operate a cattle auction market or salesyard under the provisions of chapter 16.65 RCW as enacted or hereafter amended. (13) "Mail" or "send" for purposes of any notice relating to rule making means regular mail or electronic distribution, as provided in RCW 34.05.260 for rule making. "Electronic distribution" or "electronically" means distribution by electronic mail or facsimile mail. [2002 c 313 § 80; 1999 c 291 § 30; 1969 c 133 § 2.] Effective dates—2002 c 313: See note following RCW 15.65.020. 16.67.035 16.67.035 Regulating beef and beef products—Existing comprehensive scheme—Laws applicable. The history, economy, culture, and the future of Washington state’s agriculture involves the beef industry. In order to develop and promote beef and beef products as part of an existing compre(2006 Ed.) 16.67.035 hensive scheme to regulate those products the legislature declares: (1) That the Washington state beef commission is created; (2) That it is vital to the continued economic well-being of the citizens of this state and their general welfare that its beef and beef products be properly promoted by (a) enabling the beef industry to help themselves in establishing orderly, fair, sound, efficient, and unhampered marketing, grading, and standardizing of beef and beef products they produce; and (b) working to stabilize the beef industry by increasing consumption of beef and beef products within the state, the nation, and internationally; (3) That beef producers operate within a regulatory environment that imposes burdens on them for the benefit of society and the citizens of the state and includes restrictions on marketing autonomy. Those restrictions may impair the beef producer’s ability to compete in local, domestic, and foreign markets; (4) That it is in the overriding public interest that support for the beef industry be clearly expressed, that adequate protection be given to agricultural commodities, uses, activities, and operations, and that beef and beef products be promoted individually, and as part of a comprehensive industry to: (a) Enhance the reputation and image of Washington state’s agriculture industry; (b) Increase the sale and use of beef products in local, domestic, and foreign markets; (c) Protect the public by educating the public in reference to the quality, care, and methods used in the production of beef and beef products, and in reference to the various cuts and grades of beef and the uses to which each should be put; (d) Increase the knowledge of the health-giving qualities and dietetic value of beef products; and (e) Support and engage in programs or activities that benefit the production, handling, processing, marketing, and uses of beef and beef products; (5) That this chapter is enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state; and (6) That the beef industry is a highly regulated industry and that this chapter and the rules adopted under it are only one aspect of the regulated industry. Other regulations and restraints applicable to the beef industry include the: (a) Beef promotion and research act of 1985, U.S.C. Title 7, chapter 62; (b) Beef promotion and research, 7 C.F.R., Part 1260; (c) Agricultural marketing act, 7 U.S.C., section 1621; (d) USDA meat grading, certification, and standards, 7 C.F.R., Part 54; (e) Mandatory price reporting, 7 C.F.R., Part 57; (f) Grazing permits, 43 C.F.R., Part 2920; (g) Capper-Volstead act, U.S.C. Title 7, chapters 291 and 292; (h) Livestock identification under chapter 16.57 RCW and rules; (i) Organic food products act under chapter 15.86 RCW and rules; (j) Intrastate commerce in food, drugs, and cosmetics act under chapter 69.04 RCW and rules, including provisions of [Title 16 RCW—page 43] 16.67.040 Title 16 RCW: Animals and Livestock 21 C.F.R. relating to the general manufacturing practices, food labeling, food standards, food additives, and pesticide tolerances; (k) Washington food processing act under chapter 69.07 RCW and rules; (l) Washington food storage warehouses act under chapter 69.10 RCW and rules; (m) Animal health under chapter 16.36 RCW and rules; and (n) Weights and measures under chapter 19.94 RCW and rules. [2002 c 313 § 79.] Effective dates—2002 c 313: See note following RCW 15.65.020. 16.67.040 16.67.040 Beef commission created—Generally. There is hereby created a Washington state beef commission to be thus known and designated. The commission shall be composed of two beef producers, two dairy (beef) producers, two feeders, one livestock salesyard operator, one meat packer, and the director, who shall be a voting member. If an otherwise voting member is elected as the chair of the commission, the member may, during the member’s term as chair of the commission, cast a vote as a member of the commission only to break a tie vote. If the commission so chooses, there may be one additional nonvoting member in an advisory capacity appointed by the members of the commission for such a term as the members may set. A majority of voting members shall constitute a quorum for the transaction of any business. All appointed members as stated in RCW 16.67.060 shall be citizens and residents of this state, over the age of twenty-five years, each of whom is and has been actually engaged in that phase of the cattle industry he or she represents for a period of five years, and has during that period derived a substantial portion of his or her income therefrom, or have a substantial investment in cattle as an owner, lessee, partner, or a stockholder owning at least ten percent of the voting stock in a corporation engaged in the production of cattle or dressed beef, or a manager or executive officer of such corporation. Producer members of the commission shall not be directly engaged in the business of being a meat packer, or as a feeder, feeding cattle other than their own. Said qualifications must continue throughout each member’s term of office. [2003 c 396 § 33; 2000 c 146 § 1; 1997 c 363 § 1; 1993 c 40 § 1; 1991 c 9 § 1; 1969 c 133 § 3.] 1, 1995; and position three shall terminate July 1, 1996. The initial terms of position six shall terminate July 1, 1998; position seven shall terminate July 1, 1999; and position eight shall terminate July 1, 2000. The regular term of office of subsequent appointees shall be three years from the date of appointment and until their successors are appointed. [1997 c 363 § 2; 1993 c 40 § 3.] Effective date—1993 c 40: See note following RCW 16.67.040. 16.67.060 16.67.060 Director to appoint members—Recommendations by industry. The director shall appoint the members of the commission. In making such appointments, the director shall take into consideration recommendations made to him or her by organizations who represent or who are engaged in the same type of production or business as the person recommended for appointment as a member of the commission. Commencing on June 1, 1993, and by June 1 of each subsequent year, organizations under this section shall make a recommendation as required, to the director of a person to serve on the commission. [1993 c 40 § 4; 1991 c 9 § 3; 1969 c 133 § 5.] Effective date—1993 c 40: See note following RCW 16.67.040. 16.67.070 16.67.070 Vacancies—Compensation and travel expenses. (1) In the event a position on the commission becomes vacant due to resignation, disqualification, death, or for any other reason, the unexpired term of such position shall be filled by the director forthwith. (2) Each member of the commission shall be compensated in accordance with RCW 43.03.230. (3) Each member or employee shall be reimbursed for actual travel expenses incurred in carrying out the provisions of this chapter as defined by the commission in rule. Otherwise if not defined in rule, reimbursement for travel expenses shall be at the rates allowed by RCW 43.03.050 and 43.03.060. [2002 c 313 § 81; 1991 c 9 § 4; 1984 c 287 § 19; 1975-’76 2nd ex.s. c 34 § 22; 1969 c 133 § 6.] Effective dates—2002 c 313: See note following RCW 15.65.020. Legislative findings—Severability—Effective date—1984 c 287: See notes following RCW 43.03.220. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. Effective date—2003 c 396: See note following RCW 15.66.030. 16.67.080 Effective date—1993 c 40: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect June 1, 1993." [1993 c 40 § 5.] 16.67.051 16.67.051 Designation of positions—Terms. Commencing on July 1, 1993, the appointive positions on the commission shall be designated as follows: The beef producers shall be designated position one and position six; the dairy (beef) producers shall be designated position two and position seven; the feeders shall be designated position three and position eight; the livestock salesyard operator shall be designated position four; and the meat packer shall be designated position five. The initial terms of positions one and four shall terminate July 1, 1994; positions two and five shall terminate July [Title 16 RCW—page 44] 16.67.080 Commission records as evidence. Copies of the proceedings, records, and acts of the commission, when certified by the secretary of the commission and authenticated by the commission seal, shall be admissible in any court as prima facie evidence of the truth of the statements contained therein. [1969 c 133 § 7.] 16.67.090 16.67.090 Powers and duties—Rule making. The powers and duties of the commission shall include the following: (1) To administer and enforce the provisions of this chapter, and do all things reasonably necessary to effectuate the purposes of this chapter; (2) To elect a chairman and such other officers as it deems advisable; (2006 Ed.) Washington State Beef Commission (3) To employ and discharge at its discretion a manager, secretary, and such other personnel, including attorneys engaged in the private practice of law subject to the review of the attorney general, as the commission determines are necessary and proper to carry out the purposes of this chapter, and to prescribe their duties and powers and fix their compensation; (4) To adopt, rescind, and amend rules, regulations, and orders for the exercise of its powers hereunder subject to the provisions of chapter 34.05 RCW, except that rule-making proceedings conducted under this chapter are exempt from compliance with RCW 34.05.310, the provisions of chapter 19.85 RCW, the regulatory fairness act, and the provisions of RCW 43.135.055 when adoption of the rule is determined by a referendum vote of the affected parties; (5) To establish by resolution, a headquarters which shall continue as such unless and until so changed by the commission. All records, books and minutes of the commission shall be kept at such headquarters; (6) To require a bond of all commission members and employees of the commission in a position of trust in the amount the commission shall deem necessary. The premium for such bond or bonds shall be paid by the commission from assessments collected. Such bond shall not be necessary if any such commission member or employee is covered by any blanket bond covering officials or employees of the state of Washington; (7) To establish a beef commission revolving fund, such fund to be deposited in a bank or banks or financial institution or institutions, approved for the deposit of state funds, in which all money received by the commission, except an amount of petty cash for each day’s needs not to exceed one hundred dollars, shall be deposited each day or as often during the day as advisable; none of the provisions of RCW 43.01.050 as now or hereafter amended shall apply to money collected under this chapter; (8) To prepare a budget or budgets covering anticipated income and expenses to be incurred in carrying out the provisions of this chapter during each fiscal year; (9) To incur expense and enter into contracts and to create such liabilities as may be reasonable for the proper administration and enforcement of this chapter; (10) To borrow money, not in excess of its estimate of its revenue from the current year’s contributions; (11) To keep or cause to be kept in accordance with accepted standards of good accounting practice, accurate records of all assessments, expenditures, moneys and other financial transactions made and done pursuant to this chapter. Such records, books and accounts shall be audited at least every five years subject to procedures and methods lawfully prescribed by the state auditor. Such books and accounts shall be closed as of the last day of each fiscal year. A copy of such audit shall be delivered within thirty days after completion thereof to the director, the state auditor and the commission. On such years and in such event the state auditor is unable to audit the records, books and accounts within six months following the close of the audit period it shall be mandatory that the commission employ a private auditor to make such audit; (12) To sue and be sued as a commission, without individual liability for acts of the commission within the scope of the powers conferred upon it by this chapter; (2006 Ed.) 16.67.097 (13) To cooperate with any other local, state, or national commission, organization or agency, whether voluntary or established by state or federal law, including recognized livestock groups, engaged in work or activities similar to the work and activities of the commission created by this chapter and make contracts and agreements with such organizations or agencies for carrying on joint programs beneficial to the beef industry; (14) To accept grants, donations, contributions or gifts from any governmental agency or private source for expenditures for any purpose consistent with the provisions of this chapter; and (15) To operate jointly with beef commissions or similar agencies established by state laws in adjoining states. [2002 c 313 § 82; 2000 c 146 § 2; 1982 c 81 § 3; 1969 c 133 § 8.] Effective dates—2002 c 313: See note following RCW 15.65.020. 16.67.091 16.67.091 Commission’s plans, programs, and projects—Director’s approval required. (1) The commission shall develop and submit to the director for approval any plans, programs, and projects concerning the following: (a) The establishment, issuance, effectuation, and administration of appropriate programs or projects for the advertising and promotion of its affected commodities; and (b) The establishment and effectuation of market research projects, market development projects, or both to the end that the marketing and utilization of its affected commodities may be encouraged, expanded, improved, or made more efficient. (2) The director shall review the commission’s advertising or promotion program to ensure that no false claims are being made concerning its affected commodities. (3) The commission, prior to the beginning of its fiscal year, shall prepare and submit to the director for approval its research plan, its commodity-related education and training plan, and its budget on a fiscal period basis. (4) The director shall strive to review and make a determination of all submissions described in this section in a timely manner. [2003 c 396 § 34.] Effective date—2003 c 396: See note following RCW 15.66.030. 16.67.093 16.67.093 Subpoenas. The commission has the power to subpoena witnesses and to issue subpoenas for the production of any books, records, or documents of any kind for the purpose of enforcing this chapter. [2002 c 313 § 85.] Effective dates—2002 c 313: See note following RCW 15.65.020. 16.67.095 16.67.095 Commission speaks for state—Director’s oversight. The commission exists primarily for the benefit of the people of the state of Washington and its economy. The legislature hereby charges the commission, with oversight by the director, to speak on behalf of Washington state government with regard to its particular commodities. [2003 c 396 § 35.] Effective date—2003 c 396: See note following RCW 15.66.030. 16.67.097 16.67.097 Reimbursement for costs. (1) The commission shall reimburse the director for necessary costs for services conducted on behalf of the commission under this chapter. [Title 16 RCW—page 45] 16.67.100 Title 16 RCW: Animals and Livestock (2) The commission may enter into an agreement with the director to administer this chapter or chapter 34.05 RCW. [2002 c 313 § 86.] Effective dates—2002 c 313: See note following RCW 15.65.020. 16.67.100 16.67.100 Meetings—Notice. The commission shall hold regular meetings, at least quarterly, with the time and date thereof to be fixed by resolution of the commission. The commission shall hold an annual meeting. The proposed budget shall be presented for discussion at the meeting. Notice of the annual meeting shall be given by the commission at least ten days prior to the meeting by public notice of such meeting published in newspapers of general circulation in the state of Washington, by radio and press releases and through trade publications. The commission shall establish by resolution, the time, place and manner of calling special meetings of the commission with reasonable notice to the members: PROVIDED, That, the notice of any special meeting may be waived by a waiver thereof by each member of the commission. [2000 c 146 § 3; 1969 c 133 § 9.] 16.67.110 16.67.110 Promotional programs, research, rate studies, labeling. The commission shall provide for programs designed to increase the consumption of beef; develop more efficient methods for the production, processing, handling and marketing of beef; eliminate transportation rate inequalities on feed grains and supplements and other production supplies adversely affecting Washington producers; properly identify beef and beef products for consumers as to quality and origin. For these purposes the commission may: (1) Provide for programs for advertising, sales promotion and education, locally, nationally or internationally, for maintaining present markets and/or creating new or larger markets for beef. Such programs shall be directed toward increasing the sale of beef and shall neither make use of false or unwarranted claims in behalf of beef nor disparage the quality, value, sale or use of any other agricultural commodity; (2) Provide for research to develop and discover the health, food, therapeutic and dietetic value of beef and beef products thereof; (3) Make grants to research agencies for financing studies, including funds for the purchase or acquisition of equipments and facilities, in problems of beef production, processing, handling and marketing; (4) Disseminate reliable information founded upon the research undertaken under this chapter or otherwise available; (5) Provide for rate studies and participate in rate hearings connected with problems of beef production, processing, handling or marketing; and (6) Provide for proper labeling of beef and beef products so that the purchaser and the consuming public of the state will be readily apprised of the quality of the product and how and where it was processed. [2000 c 146 § 4; 1969 c 133 § 10.] 16.67.120 16.67.120 Levy of assessment—Collections—Federal orders. (1) There is hereby levied an assessment of one dol[Title 16 RCW—page 46] lar per head on all Washington cattle sold in this state or elsewhere to be paid by the seller at the time of sale: PROVIDED, That if such sale is accompanied by a brand inspection by the department such assessment may be collected at the same time, place and in the same manner as brand inspection fees. Such fees may be collected by the livestock services division of the department and transmitted to the commission: PROVIDED FURTHER, That, if such sale is made without a brand inspection by the department the assessment shall be paid by the seller and transmitted directly to the commission by the fifteenth day of the month following the month the transaction occurred. (2) The procedures for collecting all state and federal assessments under this chapter shall be as required by the federal order and as described by rules adopted by the commission. [2002 c 313 § 83; 2000 c 146 § 5; 1987 c 393 § 11; 1986 c 190 § 2; 1982 c 47 § 1; 1975 1st ex.s. c 93 § 1; 1969 c 133 § 11.] Effective dates—2002 c 313: See note following RCW 15.65.020. 16.67.122 16.67.122 Additional assessment—National beef promotion and research program—Contingency. In addition to the assessment authorized pursuant to RCW 16.67.120, the commission has the authority to collect an additional assessment of fifty cents per head for cattle subject to assessment by federal order for the purpose of providing funds for a national beef promotion and research program. The manner in which this assessment will be levied and collected shall be established by rule. The authority to collect this assessment shall be contingent upon the implementation of federal legislation providing for a national beef promotion and research program and the establishment of the assessment requirement to fund its activities. [2002 c 313 § 84; 2000 c 146 § 6; 1986 c 190 § 1.] Effective dates—2002 c 313: See note following RCW 15.65.020. 16.67.123 16.67.123 Transfer of cattle by meat packer as sale. The transfer of cattle owned by a meat packer from a feed lot to a slaughterhouse for slaughter shall be deemed a sale of such cattle for the purpose of chapter 16.67 RCW. Such packer shall pay directly to the beef commission the same assessment as required of all other cattle owners selling cattle. [1971 c 64 § 1.] 16.67.130 16.67.130 Assessments personal debt—Delinquent charge—Civil action to collect. Any due and payable assessment levied under the provisions of this chapter shall constitute a personal debt of every person so assessed or who otherwise owes the same and shall be due and payable on the fifteenth day of the month following the month the transaction occurred. In the event any such person fails to pay the full amount within such time, the commission shall add to such unpaid assessment an amount of ten percent of the unpaid assessment to defray the cost of collecting the same. In the event of failure of such person to pay such due and payable assessment, the commission may bring civil action against such person in a state court of competent jurisdiction for the collection thereof, together with the above specified ten percent thereon and any other additional necessary reasonable costs including attorneys’ fees. Such action shall be (2006 Ed.) Disposal of Dead Animals tried and judgment rendered as in any other cause of action for debt due and payable. [2000 c 146 § 7; 1969 c 133 § 12.] 16.68.010 Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. Effective dates—2002 c 313: See note following RCW 15.65.020. 16.67.140 16.67.140 Livestock purchasers to provide list of sellers to commission. The commission may adopt regulations requiring the purchasers of livestock subject to the assessments under this chapter, to furnish the commission with the names of persons from whom such livestock was purchased. Refusal or failure to furnish the commission with such a list shall constitute a misdemeanor. [1969 c 133 § 13.] 16.67.160 16.67.160 Liability of commission’s assets—Immunity of state, commission employees, etc. Obligations incurred by the commission and liabilities or claims against the commission shall be enforced only against the assets of the commission in the same manner as if it were a corporation and no liability for the debts or actions of the commission shall exist against either the state of Washington or any subdivision or instrumentality thereof or against any member officer, employee or agent of the commission in his individual capacity. The members of the commission including employees of the commission shall not be held responsible individually or any way whatsoever to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person or employees, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other member of the commission. The liability of the members of the commission shall be several and not joint and no member shall be liable for the default of any other member. [1969 c 133 § 15.] 16.67.170 16.67.170 Promotional printing not restricted by public printer laws. The restrictive provisions of chapter 43.78 RCW, as now or hereafter amended, shall not apply to promotional printing and literature for the commission. [1969 c 133 § 16.] 16.67.180 16.67.180 Certain records exempt from public disclosure—Exceptions—Actions not prohibited by chapter. (1) Under RCW 42.56.380, certain agricultural business records, commission records, and department of agriculture records relating to the commission and producers of agricultural commodities are exempt from public disclosure. (2) Financial and commercial information and records submitted to either the department or the commission for the purpose of administering this chapter may be shared between the department and the commission. They may also be used, if required, in any suit or administrative hearing involving any provision of this chapter or a marketing order. (3) This chapter does not prohibit: (a) The issuance of general statements based upon the reports of persons subject to this chapter as long as the statements do not identify the information furnished by any person; or (b) The publication by the director or the commission of the name of any person violating this chapter and a statement of the manner of the violation by that person. [2005 c 274 § 220; 2002 c 313 § 71.] (2006 Ed.) 16.67.190 16.67.190 Funding staff support—Rules. The director may provide by rule for a method to fund staff support for all commodity boards or commissions in accordance with RCW 43.23.033 if a position is not directly funded by the legislature and costs related to the specific activity undertaken on behalf of an individual commodity board or commission. The commission shall provide funds to the department according to the rules adopted by the director. [2002 c 313 § 77.] Effective dates—2002 c 313: See note following RCW 15.65.020. 16.67.195 16.67.195 Costs of implementing RCW 16.67.091. The costs incurred by the department associated with the implementation of RCW 16.67.091 shall be paid for by the commission. [2003 c 396 § 36.] Effective date—2003 c 396: See note following RCW 15.66.030. 16.67.900 16.67.900 Liberal construction—1969 c 133. This chapter shall be liberally construed. [1969 c 133 § 20.] 16.67.910 16.67.910 Severability—1969 c 133. If any provisions hereof are declared invalid, the validity of the remainder hereof of the applicability thereof to any other person, circumstances or thing shall not be affected thereby. [1969 c 133 § 17.] 16.67.920 16.67.920 Effective date—1969 c 133. This chapter is necessary for the immediate preservation of the public peace, health and safety, the support of the state government and its existing public institutions, and shall take effect June 1, 1969. [1969 c 133 § 21.] Chapter 16.68 Chapter 16.68 RCW DISPOSAL OF DEAD ANIMALS Sections 16.68.010 16.68.030 16.68.040 16.68.050 16.68.060 16.68.070 16.68.080 16.68.090 16.68.100 16.68.110 16.68.120 16.68.130 16.68.140 16.68.150 16.68.160 16.68.170 16.68.180 16.68.190 Definitions. Sale, gift, or conveyance prohibited—Exceptions. License required of rendering plants and independent collectors. Rendering plant license fee. Independent collector license fee. Substation or places of transfer license fee. Expiration of license—Revocation. Applications for license. Procedure upon application—Inspection of premises. Duty of licensees as to premises. Duty of licensees—Standards. Right of access to premises and records. Unlawful possession of horse meat—Exceptions. Feeding of carcasses to swine unlawful—Exception. Disposition of fees. Rules and regulations. Penalty for violations. Bait for trapping purposes—Exception. 16.68.010 16.68.010 Definitions. For the purposes of this chapter, unless clearly indicated otherwise by the context: (1) "Director" means the director of agriculture; (2) "Meat food animal" means cattle, horses, mules, asses, swine, sheep and goats; [Title 16 RCW—page 47] 16.68.030 Title 16 RCW: Animals and Livestock (3) "Dead animal" means the body of a meat food animal, or any part or portion thereof: PROVIDED, That the following dead animals are exempt from the provisions of this chapter: (a) Edible products from a licensed slaughtering establishment; (b) Edible products where the meat food animal was slaughtered under farm slaughter permit; (c) Edible products where the meat food animal was slaughtered by a bona fide farmer on his own ranch for his own consumption; (d) Hides from meat food animals that are properly identified as to ownership and brands; (4) "Carcass" means all parts, including viscera, of a dead meat food animal; (5) "Person" means any individual, firm, corporation, partnership, or association; (6) "Rendering plant" means any place of business or location where dead animals or any part or portion thereof, or packing house refuse, are processed for the purpose of obtaining the hide, skin, grease residue, or any other byproduct whatsoever; (7) "Substation" means a properly equipped and authorized concentration site for the temporary storage of dead animals or packing house refuse pending final delivery to a licensed rendering plant; (8) "Place of transfer" means an authorized reloading site for the direct transfer of dead animals or packing house refuse from the vehicle making original pickup to the line vehicle that will transport the dead animals or packing house refuse to a specified licensed rendering plant; (9) "Independent collector" means any person who does not own a licensed rendering plant within the state of Washington but is properly equipped and licensed to transport dead animals or packing house refuse to a specified rendering plant. [1949 c 100 § 1; Rem. Supp. 1949 § 3142-1.] Severability—1949 c 100: "If any section or provision of this act shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the act as a whole, nor any section, sentence, phrase, or word thereof not adjudged invalid or unconstitutional." [1949 c 100 § 20.] 16.68.030 16.68.030 Sale, gift, or conveyance prohibited— Exceptions. It is unlawful for any person to sell, offer for sale or give away a dead animal or convey the same along any public road or land not his own: PROVIDED, That dead animals may be sold or given away to and legally transported on highways by a person having an unrevoked, annual license to operate a rendering plant or by a person having an unrevoked, annual license to operate as an independent collector. [1949 c 100 § 3; Rem. Supp. 1949 § 3142-3.] 16.68.040 16.68.040 License required of rendering plants and independent collectors. It is unlawful for any person to operate a rendering plant or act as an independent collector without first obtaining a license from the director. [1949 c 100 § 4; Rem. Supp. 1949 § 3142-4.] shall be required to operate a rendering plant on the premises of a licensed slaughtering establishment maintaining state or federal meat inspection unless said rendering plant receives dead animals that have been transported on public highways. [1949 c 100 § 5; Rem. Supp. 1949 § 3142-5.] 16.68.060 16.68.060 Independent collector license fee. Any person engaged in the business of independent collector shall secure from the director an annual independent collector license and pay an annual fee of fifty dollars. [1949 c 100 § 6; Rem. Supp. 1949 § 3142-6.] 16.68.070 16.68.070 Substation or places of transfer license fee. Any rendering plant operator or independent collector that operates substations or places of transfer shall secure from the director an annual substation license or place of transfer license and pay an annual fee of twenty-five dollars for each substation or place of transfer. [1949 c 100 § 7; Rem. Supp. 1949 § 3142-7.] 16.68.080 16.68.080 Expiration of license—Revocation. Any license or permit issued under this chapter shall expire on the thirtieth day of June next subsequent to the date of issue, and may be sooner revoked by the director or his authorized representative for violations of this chapter. Any licensee or permittee under this chapter shall have the right to demand a hearing before the director before a revocation is made permanent. [1949 c 100 § 8; Rem. Supp. 1949 § 3142-8.] 16.68.090 16.68.090 Applications for license. Any person applying for a license to operate a rendering plant and/or substation and/or place of transfer, or to act as an independent collector shall make application on forms furnished by the director. Said application shall give all information required by the director and shall be accompanied by the required license fee. [1949 c 100 § 9; Rem. Supp. 1949 § 3142-9.] 16.68.100 16.68.100 Procedure upon application—Inspection of premises. If the director finds that the locations, buildings, substations equipment, vehicles, places of transfer, or proposed method of operation do not fully comply with the requirements of this chapter, he shall notify the applicant by registered letter wherein the same fails to comply. If the applicant whose plant or operation failed to comply notifies the director within ten days from the receipt of the registered letter that he will discontinue operations, the fee accompanying the application will be returned to him; otherwise no part of the fee will be refunded. If the applicant whose plant failed to comply within a reasonable time, to be fixed by the director or his authorized representative, notifies the director that such defects are remedied, a second inspection shall be made. Not more than two inspections may be made on one application. [1949 c 100 § 10; Rem. Supp. 1949 § 3142-10.] 16.68.110 16.68.050 16.68.050 Rendering plant license fee. Any person engaged in operating a rendering plant shall secure from the director an annual rendering plant license and pay an annual fee of one hundred dollars: PROVIDED, That no license [Title 16 RCW—page 48] 16.68.110 Duty of licensees as to premises. Every licensee under this chapter must comply with the following: (1) All floors shall be constructed of concrete or other impervious material, shall be kept reasonably clean and in good repair. Floors shall slope at least one-fourth inch to the (2006 Ed.) Disposal of Dead Animals foot toward drains, and slope at least three-eighths inch to the foot as the drains are approached. (2) Adequate sanitary drainage must be provided leading to approved grease traps and approved sewage disposal system. No point on the floor shall be over sixteen feet from a drain. (3) Suitable disposal of paunch contents must be provided in accordance with sanitary regulations. (4) Walls shall be of impervious material to a height not less than six feet from the floor with a tight union with the floor. (5) Potable water supply shall be provided for human consumption, washing and cleaning. (6) Ample steam shall be provided for cleaning purposes. (7) Approved toilet and dressing room facilities must be provided for employees. (8) The building must be kept free from flies, rats, mice, and cockroaches. (9) Premises must be kept neat and orderly and all buildings must be attractive in appearance. (10) All rendering plants, substations, and places of transfer shall be so located, arranged, constructed and maintained, and the operation so conducted at all times as to be consistent with public health and safety. (11) Suitable facilities for the dipping, washing and disinfecting of hides obtained from animals that died or were killed on account of an infectious or contagious disease, shall be provided. (12) Two copies of building or remodeling plans shall be forwarded to the director for his approval before such building or remodeling is begun. [1949 c 100 § 12; Rem. Supp. 1949 § 3142-12.] 16.68.120 Duty of licensees—Standards. Every licensee under this chapter shall comply with the following: (1) Dead animals shall be placed in containers or vehicles which are constructed of or lined with impervious material, and which do not permit the escape of any liquid, and which are covered in such a way that the contents shall not be openly exposed to insects. (2) All vehicles and containers used for transporting dead animals shall be properly cleaned and disinfected before leaving the premises of a rendering plant, substation or place of transfer. (3) After original loading, dead animals shall not be moved from the transporting container or vehicle upon a public highway or in any other place, except at a licensed rendering plant, licensed substation, or licensed place of transfer. (4) No containers and vehicles used for transporting dead animals shall be used for the transporting of live animals except to a licensed rendering plant. (5) All vehicles used to haul dead animals that have died of an infectious or contagious disease, shall proceed directly to the unloading point and shall not enter other premises until the vehicle has been properly cleaned and disinfected. (6) The name of the rendering plant or independent collector shall be painted in letters at least four inches high on each side of every truck used for transporting dead animals. (7) The skinning and dismembering of dead animals shall be done in the building where they are processed. 16.68.120 (2006 Ed.) 16.68.190 (8) Cooking vats or tanks shall be airtight except for proper escape for steam or vapor. (9) Steam or vapor from cooking vats or tanks shall be so disposed of as not to be detrimental to public health or safety. (10) Dead animals shall be processed within forty-eight hours after delivery to the rendering plant. (11) No carcasses, parts thereof, or packing house refuse under process for marketing shall be permitted to come in contact with any part of the building or the equipment used in connection with the unloading, skinning, dismembering and grinding of carcasses or refuse as originally received at disposal plant. [1949 c 100 § 13; Rem. Supp. 1949 § 3142-13.] 16.68.130 16.68.130 Right of access to premises and records. The director or his authorized agent, shall have free and uninterrupted access to all parts of premises that come under the provisions of this chapter, for the purpose of making inspections and the examination of records. [1949 c 100 § 14; Rem. Supp. 1949 § 3142-14.] 16.68.140 16.68.140 Unlawful possession of horse meat— Exceptions. It shall be unlawful for any person to transport, to sell, offer to sell, or have on his premises horse meat for other than human consumption unless said horse meat is decharacterized in a manner prescribed by the director: PROVIDED, That this provision shall not apply to carcasses slaughtered by a farmer for consumption on his own ranch or to carcasses in the possession of a person licensed under this chapter, or to canned horse meat meeting United States bureau of animal industry regulations. [1949 c 100 § 15; Rem. Supp. 1949 § 3142-18.] 16.68.150 16.68.150 Feeding of carcasses to swine unlawful— Exception. It shall be unlawful to feed carcasses of animals, or any part or portion thereof, to swine, unless said carcasses or portions thereof are cooked in a manner prescribed by the director. [1949 c 100 § 16; Rem. Supp. 1949 § 3142-20.] Swine, garbage feeding: RCW 16.36.105 and 16.36.110. 16.68.160 16.68.160 Disposition of fees. Funds collected for license fees and inspection fees shall be retained by the director to be used for the enforcement of this chapter. [1949 c 100 § 11; Rem. Supp. 1949 § 3142-11.] 16.68.170 16.68.170 Rules and regulations. The director is authorized and shall make and enforce such regulations as may be necessary to effectuate the provisions of this chapter. Such regulations shall be consistent with the provisions of this chapter. [1949 c 100 § 17; Rem. Supp. 1949 § 3142-21.] 16.68.180 16.68.180 Penalty for violations. The violation of any provision of this chapter shall be a misdemeanor. [1949 c 100 § 18; Rem. Supp. 1949 § 3142-22.] 16.68.190 16.68.190 Bait for trapping purposes—Exception. Nothing in this chapter shall prohibit the department of fish and wildlife from using the carcasses of dead animals for trap bait in their regular trapping operations. [1994 c 264 § 6; 1988 c 36 § 7; 1949 c 100 § 18A; Rem. Supp. 1949 § 314223.] [Title 16 RCW—page 49] Chapter 16.70 Title 16 RCW: Animals and Livestock Chapter 16.70 RCW CONTROL OF PET ANIMALS INFECTED WITH DISEASES COMMUNICABLE TO HUMANS Chapter 16.70 43.70.170 through 43.70.190, pursuant to 1989 1st ex.s. c 9 § 267, effective July 1, 1989. 16.70.040 Sections 16.70.010 16.70.020 16.70.030 16.70.040 16.70.050 16.70.060 Purpose. Definitions. Emergency action authorized—Scope—Animals as public nuisance. Rules—Scope. Violations—Penalty. Concurrent powers—Cooperation between officials. 16.70.010 16.70.010 Purpose. The incidence of disease communicated to human beings by contact with pet animals has shown an increase in the past few years. The danger to human beings from such pets infected with disease communicable to humans has demonstrated the necessity for legislation to authorize the secretary of the department of health and the state board of health to take such action as is necessary to control the sale, importation, movement, transfer, or possession of such animals where it becomes necessary in order to protect the public health and welfare. [1991 c 3 § 2; 1971 c 72 § 1.] 16.70.040 Rules—Scope. (1) The secretary, with the advice and concurrence of the director of the department of agriculture, shall be authorized to develop rules for proposed adoption by the board relating to the importation, movement, sale, transfer, or possession of pet animals as defined in RCW 16.70.020 which are reasonably necessary for the protection and welfare of the people of this state. (2) The director of the department of agriculture shall also be authorized to adopt rules to allow administration of permits for those pet animals under subsection (1) of this section by the state veterinarian. [1996 c 188 § 5; 1971 c 72 § 4.] 16.70.050 16.70.050 Violations—Penalty. Any person violating or refusing or neglecting to obey the order or directive issued by the secretary pursuant to the authority granted under this action [act] or the rules and regulations promulgated by the board hereunder shall be guilty of a misdemeanor. [1971 c 72 § 5.] 16.70.060 16.70.020 16.70.020 Definitions. The following words or phrases as used in this chapter shall have the following meanings unless the context indicates otherwise: (1) "Pet animals" means dogs (Canidae), cats (Felidae), monkeys and other similar primates, turtles, psittacine birds, skunks, or any other species of wild or domestic animals sold or retained for the purpose of being kept as a household pet. (2) "Secretary" means the secretary of the department of health or his or her designee. (3) "Department" means the department of health. (4) "Board" means the Washington state board of health. (5) "Person" means an individual, group of individuals, partnership, corporation, firm, or association. (6) "Quarantine" means the placing and restraining of any pet animal or animals by direction of the secretary, either within a certain described and designated enclosure or area within this state, or the restraining of any such pet animal or animals from entering this state. [1991 c 3 § 3; 1971 c 72 § 2.] 16.70.030 16.70.030 Emergency action authorized—Scope— Animals as public nuisance. In the event of an emergency arising out of an outbreak of communicable disease caused by exposure to or contact with pet animals, the secretary is hereby authorized to take any reasonable action deemed necessary by him to protect the public health, including but not limited to the use of quarantine or the institution of any legal action authorized pursuant to Title 7 RCW and RCW 43.20A.640 through 43.20A.650. The secretary shall have authority to destroy any pet animal or animals which may reasonably be suspected of having a communicable disease dangerous to humans and such animal or animals are hereby declared to be a public nuisance. [1971 c 72 § 3.] Reviser’s note: "RCW 43.20.150 through 43.20.170" were translated to "RCW 43.20A.640 through 43.20A.650" due to their recodification from chapter 43.20 RCW to chapter 43.20A RCW by 1979 c 141 § 384. Subsequently, RCW 43.20A.640 through 43.20A.650 were recodified as RCW [Title 16 RCW—page 50] 16.70.060 Concurrent powers—Cooperation between officials. The powers conferred on the secretary by this chapter shall be concurrent with the powers conferred on the director of the department of agriculture by chapter 16.36 RCW, and chapter 43.23 RCW, and the secretary and director shall cooperate in exercising their responsibilities in these areas. [1971 c 72 § 6.] Chapter 16.72 Chapter 16.72 RCW FUR FARMING Sections 16.72.010 16.72.020 16.72.030 16.72.040 Definitions. Quarantine controls. Fox, mink, marten declared personalty. Branding—Recording. 16.72.010 16.72.010 Definitions. As used in this chapter: "Director" means director of agriculture. "Department" means department of agriculture. "Person" includes any individual, firm corporation, trust, association, copartnership, society, or other organization of individuals and any other business unit, device or arrangement. "Fur farming" means breeding, raising and rearing of mink, marten, fox and chinchilla in captivity or enclosures. [1955 c 321 § 2.] 16.72.020 16.72.020 Quarantine controls. Fur farming shall be deemed an agricultural pursuit and the director is hereby authorized to exercise quarantine controls over such farms in accordance with the provisions of this title. Facilities available to the department may be used by the director in carrying out the provisions of this chapter. [1955 c 321 § 3.] 16.72.030 16.72.030 Fox, mink, marten declared personalty. All fox, mink and marten that have been lawfully imported or acquired, or bred or reared in captivity or enclosures, are declared to be personal property. Any person hereafter (2006 Ed.) Fur Farming 16.72.040 acquiring any such fur bearing animals in the wild state, shall within ten days furnish satisfactory proof to the director that such animals were lawfully obtained. Such wild animals shall not become personal property under the provisions of this section until such proof is furnished. [1955 c 321 § 4.] 16.72.040 Branding—Recording. The owners of any fox, mink, or marten may mark them by branding with tattoo or other marks for the purpose of identification, but no person shall be entitled to ownership in or rights under any particular branding marks unless and until the branding marks are recorded with the department in the same manner and with like effect as brands of other animals are recorded as provided in *chapter 16.56 RCW. [1955 c 321 § 5.] 16.72.040 *Reviser’s note: Chapter 16.56 RCW was repealed by 1959 c 54 § 39. For later enactment, see chapter 16.57 RCW. (2006 Ed.) [Title 16 RCW—page 51] Title 17 Title 17 WEEDS, RODENTS, AND PESTS Chapters 17.04 Weed districts. 17.06 Intercounty weed districts. 17.10 Noxious weeds—Control boards. 17.12 Agricultural pest districts. 17.15 Integrated pest management. 17.21 Washington pesticide application act. 17.24 Insect pests and plant diseases. 17.26 Control of spartina and purple loosestrife. 17.28 Mosquito control districts. 17.34 Pest control compact. Control of predatory birds injurious to agriculture: RCW 15.04.110 through 15.04.120. Crop liens: Chapter 60.11 RCW. Director of agriculture: Chapter 43.23 RCW. Hospitalization and medical aid for public employees and dependents—Premiums, governmental contributions authorized: RCW 41.04.180, 41.04.190. Mosquito control: Chapter 70.22 RCW. Public bodies may retain collection agencies to collect public debts—Fees: RCW 19.16.500. Washington pesticide control act: Chapter 15.58 RCW. Chapter 17.04 Chapter 17.04 RCW WEED DISTRICTS Sections 17.04.010 17.04.030 17.04.050 17.04.070 17.04.150 17.04.160 17.04.170 17.04.180 17.04.190 17.04.200 17.04.210 17.04.220 17.04.230 17.04.240 17.04.245 17.04.250 17.04.260 17.04.270 17.04.280 17.04.900 17.04.910 Districts authorized—Area and boundaries. Petition—Time, place and notice of hearing. Board to determine petition—Resolution to create district. Meetings—Qualifications of electors and directors—Elections—Officers—Bonds—Terms of office—Vacancies— Rules and regulations. Powers—Weed inspector. Contiguous lands. Indian reservation lands—United States lands. County and state lands. Duties of weed inspector. Violation of rules and regulations—Notice to destroy weeds— Destruction. Statement of expense—Hearing. Examination at hearing of expenses—Amount is tax on land— Effect of failure to serve notices. Appellate review—Notice—Cost bond. Assessments—Classification of property—Tax levy. Assessment—Tax roll—Collection. District treasurer—Duties—Fund. Limit of indebtedness. Districts organized under prior law—Reorganization. Officials of district may enter lands—Penalty for prevention. Disincorporation of district located in county with a population of two hundred ten thousand or more and inactive for five years. Continuation or dissolution of district—Noxious weed control boards. Agricultural and vegetable seeds: Chapter 15.49 RCW. Special purpose districts, expenditures to recruit job candidates: RCW 42.24.170. 17.04.010 Districts authorized—Area and boundaries. The boards of county commissioners of the respective counties may create a weed district or districts within their 17.04.010 (2006 Ed.) counties and enlarge any district, or reduce any district or create or combine or consolidate the districts, or divide or create new districts, from time to time, in the manner hereinafter provided, for the purpose of destroying, preventing and exterminating, or to prevent the introduction, propagation, cultivation or increase of, any particular weed, weeds or plants, or all weeds or plants, including Scotch broom, which are now or may hereafter be classed by the agricultural experiment station of Washington State University as noxious weeds, or plants detrimental to or destructive of crops, fruit, trees, shrubs, valuable plants, forage, or other agricultural plants or produce. Any such district shall include not less than one section of land, and the boundaries thereof shall be along an established road, railroad, scab, uncleared or grazing land, or property line, or established lines, or some natural boundary, and shall include only cultivated or farming lands and shall not include any scab, uncleared or grazing land, except such as shall lie wholly within cultivated or farming lands within the districts, or which lie adjacent to such cultivated or farming lands and which are infested, or which may reasonably be expected to become infested, with the particular weed or weeds to be destroyed, prevented and exterminated by such district: PROVIDED, That any quarter section of land, or lesser legal subdivision in single ownership, fifty percent of which is cultivated or farming land, shall be considered cultivated and farming land within the meaning of this chapter. [1961 c 250 § 1; 1937 c 193 § 1; 1929 c 125 § 1; RRS § 2771. Prior: 1921 c 150 § 1. Formerly RCW 17.04.010 and 17.04.020.] 17.04.030 17.04.030 Petition—Time, place and notice of hearing. Any one or more freeholders owning more than fifty percent of the acreage desired to be included within the proposed weed district may file a petition with the board of county commissioners praying that their land be included, either separately or with other lands included in the petition, in a weed district to be formed for the purpose of destroying, preventing or exterminating any one or all such weeds, or that such lands be included within a district already formed, or a new district or districts to be formed out of any district or districts then existing. Such petition shall state the boundaries of the proposed district, the approximate number of acres in the proposed district, the particular weed or weeds to be destroyed, prevented or exterminated, the general method or means to be used in such work, and shall contain a list of all known land owners within the proposed district, together with the addresses of such land owners. Upon the filing of such petition the board of county commissioners shall fix a time for a hearing thereon, and shall give at least thirty days’ notice of the time and place of such hearing by posting copies of such notice in three conspicuous places within the proposed district, one copy of which shall be at the main entrance to the court house, and by mailing a copy of such [Title 17 RCW—page 1] 17.04.050 Title 17 RCW: Weeds, Rodents, and Pests notice to each of the land owners named in the petition at the address therein named, and if any of the land described in the petition be owned by the state, a copy thereof shall be mailed to the department of natural resources at Olympia. [1988 c 128 § 4; 1929 c 125 § 2; RRS § 2772. Prior: 1921 c 150 § 2. Formerly RCW 17.04.030 and 17.04.040.] 17.04.050 17.04.050 Board to determine petition—Resolution to create district. At the time and place fixed for such hearing the board of county commissioners shall determine whether such weed district shall be created and if such board determines that such district shall be created, it shall fix the boundaries thereof, but shall not modify the purposes of the petition with respect to the weed or weeds to be destroyed, prevented and exterminated as set forth in this petition, and shall not enlarge the boundaries of the proposed district, or enlarge or change the boundary or boundaries of any district or districts already formed without first giving notice to all land owners interested as provided in RCW 17.04.030. If the board shall determine that the weed district petitioned for shall be created it shall pass a resolution to that effect and shall assign a number to such weed district which shall be the lowest number not already taken or adopted by a weed district in such county, and thereafter such district shall be known as "Weed District No. . . . . of . . . . . . County," inserting in the first blank the number of the district and in the second the name of the county in which the district is organized. [1929 c 125 § 3; RRS §§ 2773, 2774. Prior: 1921 c 150 §§ 3, 4. Formerly RCW 17.04.050 and 17.04.060.] 17.04.070 17.04.070 Meetings—Qualifications of electors and directors—Elections—Officers—Bonds—Terms of office—Vacancies—Rules and regulations. If the board of county commissioners establish such district it shall call a special meeting to be held within such district for the purpose of electing three directors for such district. No person shall be eligible to hold the office of director who is not a qualified elector of the state of Washington and a resident and landowner within such district. Such meeting shall be held not less than thirty nor more than ninety days from the date when such district is established by such board. Notice of such meeting shall be given by the county auditor by publication once a week for three successive weeks in a newspaper of general circulation in such district, and by posting such notice for not less than ten days before the date fixed for such meeting in three public places within the boundaries of such district. The notices shall state the object of the meeting and the time and place when the same shall be held. At the time and place fixed for the meeting the county commissioner in whose commissioner district such district is located shall act as chairman and call the meeting to order. The chairman shall appoint two persons to assist him in conducting the election, one of whom shall act as clerk. If such county commissioner be not present the electors of such district then present shall elect a chairman of the meeting. Every person who is a landowner within such district and a qualified elector of the state of Washington shall be entitled to vote at such meeting. Any person offering to vote may be challenged by any legally qualified elector of such district, [Title 17 RCW—page 2] and the chairman of such meeting shall thereupon administer to the person challenged an oath in substance as follows: "You do swear (or affirm) that you are a citizen of the United States and a qualified elector of the state of Washington and an owner of land within the boundaries of weed district No. . . . . of . . . . . . county (giving number of district and name of county)." If the challenged person shall take such oath or make such affirmation, he shall be entitled to vote; otherwise his vote shall not be received. Any person making a false oath, or affirmation, or any person illegally voting at such meeting, shall be punished as provided in the general election laws of the state for illegal voting. The vote shall be by secret ballot, on white paper of uniform size and quality, of such arrangement that when names are written thereon, the same may be folded so as not to disclose the names. The elector shall write the names of three persons that he desires as the first directors of such district and shall fold his ballot and hand the same to the chairman of the meeting who shall deposit it in a ballot box provided for that purpose. The clerk shall thereupon write the name of such person on a list as having voted at such election. After all persons present and entitled to vote have voted, the chairman shall declare the election closed, and shall, with the assistance of the clerk and the other person appointed as assistant, proceed to count the ballots. The person receiving the greatest number of votes shall be elected as director for a term ending three years from the first Monday in March following his election; the person receiving the second greatest number of votes shall be elected for a term ending two years from the first Monday in March following his election, and the person receiving the third greatest number of votes shall be elected for a term ending one year from the first Monday of March following his election. Annually thereafter, there shall be held a meeting of the electors of such district on the last Monday in February, except that the directors may, by giving the same notice as is required for the initial meeting, fix an earlier time for the annual meeting on any nonholiday during the months of December, January or February. At such meeting one director shall be elected to succeed the director whose term will expire on the first Monday in March following. The directors shall call the annual meeting, and shall fix the time and place where the same shall be held and shall give the same notice thereof as provided for the initial meeting. The annual meeting shall be conducted in the same manner as is provided for the initial meeting, and the qualifications of electors at such annual meeting shall be the same as is required for the initial meeting. In conducting directors’ elections, the chairman may accept nominations from the floor but voting shall not be limited to those nominated. All directors shall hold office for the term for which they are elected, and until their successors are elected and qualified. In case of a vacancy occurring in the office of any director, the county commissioners of the county in which such district is located shall appoint a qualified person to fill the vacancy for the unexpired term. The board of directors shall elect one of its members chairman and may appoint a secretary who need not be a member of the board, and who shall be paid such compensation as the board may determine. Each director shall furnish a bond in the sum of one thousand dollars, which may be a surety company bond or property bond (2006 Ed.) Weed Districts approved by the board of county commissioners, which bond shall be filed with the county commissioners and shall be conditioned for the faithful discharge of his duties. The cost of such bond shall be paid by the district the same as other expenses of the district. At any annual meeting the method for destroying, preventing and exterminating weeds of such district as set forth in the petition, and the rules and regulations adopted by such district, may be changed by a majority vote of the qualified electors present at such meeting, or a special meeting may be called for that purpose, notice of which meeting and of such proposed changes to be voted on, shall be given to all landowners residing within the district by mailing a copy of such notice and of such proposed changes to the address of such landowner at least one week before the date fixed for such special meeting. The qualified electors of any weed district, at any annual meeting, may make other weeds that are not on the petition subject to control by the weed district by a two-thirds vote of the electors present: PROVIDED, That said weeds have been classified by the agricultural experiment station of Washington State University as noxious and: PROVIDED FURTHER, That the directors of the weed district give public notice in the manner required for initial meetings of the proposed new control of said weeds by the weed district. [1971 ex.s. c 292 § 15; 1961 c 250 § 2; 1929 c 125 § 4; RRS § 2774-1. Formerly RCW 17.04.070 through 17.04.140.] Severability—1971 ex.s. c 292: See note following RCW 26.28.010. Elections: Chapter 29A.84 RCW. 17.04.150 17.04.150 Powers—Weed inspector. The board of directors of such weed district shall have power: (1) To adopt rules and regulations, plans, methods and means for the purpose of destroying, preventing and exterminating the weed or weeds specified in the petition, and to supervise, carry out and enforce such rules, regulations, plans, methods and means. (2) To appoint a weed inspector and to require from him a bond in such sum as the directors may determine for the faithful discharge of his duties, and to pay the cost of such bond from the funds of such district; and to direct such weed inspector in the discharge of his duties; and to pay such weed inspector from the funds of such district such per diem or salary for the time employed in the discharge of his duties as the directors shall determine. [1961 c 250 § 3; 1929 c 125 § 9; RRS § 2778-1. Prior: 1921 c 150 § 6.] 17.04.160 17.04.160 Contiguous lands. Any city or town contiguous to or surrounded by a weed district formed under this chapter shall provide for the destruction, prevention and extermination of all weeds specified in the petition which are within the boundaries of such city or town, in the same manner and to the same extent as is provided for in such surrounding or contiguous weed district; and it shall be the duty of those in charge of school grounds, playgrounds, cemeteries, parks, or any lands of a public or quasi public nature when such lands shall be contiguous to, or within any weed district, to see that all weeds specified in the petition for the creation of such district are destroyed, prevented and exterminated in accordance with the rules and requirements of such district. [1929 c 125 § 6; RRS § 2775-1.] (2006 Ed.) 17.04.190 Destruction of weeds, etc., city ordinance: RCW 35.21.310. 17.04.170 17.04.170 Indian reservation lands—United States lands. Any lands owned by any individual wholly or partly within the United States government Indian reservation may be included within a weed district formed under this chapter, and shall be subject to the same rules, regulations and taxes as other lands within the district; and the board of directors of any weed district are authorized to arrange with the officer or agent in charge of any United States lands, within or contiguous to any such district, for the destruction, prevention and extermination of weeds on such government lands. [1929 c 125 § 7; RRS § 2775-2.] 17.04.180 17.04.180 County and state lands. Whenever any lands belonging to the county are included within a weed district, the county legislative authority shall determine the amount of the taxes for which the lands would be liable if they were in private ownership, and the county legislative authority shall appropriate from the current expense fund of the county sufficient money to pay such amounts. Whenever any state lands are within any weed district, the county treasurer shall certify annually and forward to the appropriate state agency for payment a statement showing the amount of the tax to which the lands would be liable if they were in private ownership, separately describing each lot or parcel and, if delinquent, with interest and penalties consistent with RCW 84.56.020. [1991 c 245 § 1; 1984 c 7 § 18; 1971 ex.s. c 119 § 1; 1961 c 250 § 4; 1929 c 125 § 8; RRS § 2777. Prior: 1921 c 150 § 7.] Severability—1984 c 7: See note following RCW 47.01.141. 17.04.190 17.04.190 Duties of weed inspector. It shall be the duty of the weed inspector to carry out the directions of the board of directors and to see that the rules and regulations adopted by the board are carried out. He shall personally deliver or mail to each resident landowner within such district and to any lessee or person in charge of any land within such district and residing in such district, a copy of the rules and regulations of such district; and he shall personally deliver a copy thereof to nonresident landowners or shall deposit a copy of the same in the United States post office in an envelope with postage prepaid thereon addressed to the last known address of such person as shown by the records of the county auditor; and in event no such address is available for mailing he shall post a copy of such rules and regulations in a conspicuous place upon such land. A record shall be kept by the weed inspector of such dates of mailing, posting or delivering such rules and regulations. In case of any railroad such rules and regulations shall be delivered to the section foreman, or to any official of the railroad having offices within the state. Such rules and regulations must be delivered, posted or mailed by the weed inspector as herein provided at least ten days before the time to start any annual operations necessary to comply with such rules and regulations: PROVIDED, That after such district shall have been in operation two years such rules and regulations shall be delivered to resident landowners only once every three years, unless such rules and regulations are changed. [1961 c 250 § 5; 1929 c 125 § 10; RRS § 2778-2.] [Title 17 RCW—page 3] 17.04.200 Title 17 RCW: Weeds, Rodents, and Pests 17.04.200 17.04.200 Violation of rules and regulations—Notice to destroy weeds—Destruction. (1) If the weed inspector, or the board of directors, shall find that the rules and regulations of the weed district are not being carried out on any one or more parcels of land within such district, the weed inspector shall give forthwith a notice in writing, on a form to be prescribed by the directors, to the owners, tenants, mortgagees, and occupants, or to the accredited resident agent of any nonresident owner of such lands within the district whereon noxious weeds are standing, being or growing and in danger of going to seed, requiring him to cause the same to be cut down, otherwise destroyed or eradicated on such lands in the manner and within the time specified in the notice, such time, however, not to exceed seven days. It shall be the duty of the county auditor and county treasurer to make available to the weed inspector lists of owners, tenants, and mortgagees of lands within such district; (2) If a resident agent of any nonresident owner of lands where noxious weeds are found standing, being or growing cannot be found, the local weed inspector shall post said notice in the form provided by the directors in three conspicuous places on said land, and in addition to posting said notice the local weed inspector shall, at the same time mail a copy thereof by registered or certified mail with return receipt requested to the owner of such nonresident lands, if his post office address is known or can be ascertained by said inspector from the last tax list in the county treasurer’s office, and it shall be the duty of the treasurer to furnish such lists upon request by the weed inspector. Proof of such serving, posting and mailing of notice by the weed inspector shall be made by affidavit forthwith filed in the office of the county auditor and it shall be the duty of the county auditor to accept and file such affidavits; (3) If the weeds are not cut down, otherwise destroyed or eradicated within the time specified in said notice, the local weed inspector shall personally, or with such help as he may require, cause the same to be cut down or otherwise destroyed in the manner specified in said notice. [1961 c 250 § 6; 1937 c 193 § 2; 1929 c 125 § 11; RRS § 2778-3. Prior: 1921 c 150 § 9, part.] 17.04.210 17.04.210 Statement of expense—Hearing. The weed inspector shall keep an accurate account of expenses incurred by him in carrying out the provisions of this chapter with respect to each parcel of land entered upon, and the prosecuting attorney of the county or the attorney for the weed district shall cause to be served, mailed or posted in the same manner as provided in this chapter for giving notice to destroy noxious weeds, a statement of such expenses, including description of the land, verified by oath of the weed inspector to the owner, lessee, mortgagee, occupant or agent, or person having charge of said land, and coupled with such statement shall be a notice subscribed by said prosecuting attorney or attorney for the weed district and naming a time and place when and where such matter will be brought before the board of directors of such district for hearing and determination, said statement or notice to be served, mailed or posted, as the case may be, at least ten days before the time for such hearing. [1961 c 250 § 7; 1929 c 125 § 12; RRS § 2778-4.] [Title 17 RCW—page 4] 17.04.220 17.04.220 Examination at hearing of expenses— Amount is tax on land—Effect of failure to serve notices. At the time of such hearing as provided in RCW 17.04.210, or at such time to which the same may be continued or adjourned, the board of directors shall proceed to examine expenses incurred by the weed inspector in controlling weeds on the parcel of land in question, and shall hear such testimony of such other persons who may have legal interest in the proceedings, and shall enter an order upon its minutes as to what amount, if any, is properly chargeable against the lands for weed control. Cost of serving, mailing and posting shall be added to any amount so found to be due and shall be considered part of the cost of weed control on the land in question. The amount so charged by the directors shall be a tax on the land on which said work was done after the expiration of ten days from the date of entry of said order, unless an appeal be taken as in this chapter provided, in which event the same shall become a tax at the time the amount to be paid shall be determined by the court; and the county treasurer shall enter the same on the tax rolls against the land for the current year and collect it, together with penalty and interest, as other taxes are collected, and when so collected the same shall be paid into the fund for such weed district: PROVIDED, That a failure to serve, mail or post any of the notices or statements provided for in this chapter, shall not invalidate said tax, but in case of such failure the lien of such tax shall be subordinate and inferior to the interests of any mortgagee to whom notice has not been given in accordance with the provisions of this chapter. [1961 c 250 § 8; 1929 c 125 § 13; RRS § 2778-5. Prior: 1921 c 150 § 5. FORMER PART OF SECTION: 1925 c 125 § 14 now codified in RCW 17.04.230.] 17.04.230 17.04.230 Appellate review—Notice—Cost bond. Any interested party may appeal from the decision and order of the board of directors of such district to the superior court of the county in which such district is located, by serving written notice of appeal on the chairman of the board of directors and by filing in the office of the clerk of the superior court a copy of said notice of appeal with proof of service attached, together with a good and sufficient cost bond in the sum of two hundred dollars, said cost bond to run to such district and in all respects to comply with the laws relating to cost bonds required of nonresident plaintiffs in the superior court. Said notice must be served and filed within ten days from the date of the decision and order of such board of directors, and said bond must be filed within five days after the filing of such notice of appeal. Whenever notice of appeal and the cost bond as herein provided shall have been filed with the clerk of the superior court, the clerk shall notify the board of directors of such district thereof, and such board shall forthwith certify to said court all notices and records in said matters, together with proof of service, and a true copy of the order and decision pertaining thereto made by such board. If no appeal be perfected within ten days from the decision and order of such board, the same shall be deemed confirmed and the board shall certify the amount of such charges to the county treasurer who shall enter the same on the tax rolls against the land. When an appeal is perfected the matter shall be heard in the superior court de novo and the court’s decision shall be conclusive on all persons served under this (2006 Ed.) Intercounty Weed Districts chapter: PROVIDED, That appellate review of the order or decision of the superior court in the manner provided by existing laws, and upon the conclusion of such review, the amount of charges and costs adjudged to be paid shall be certified by the clerk of the superior court to the county treasurer and said treasurer shall proceed to enter the same on his rolls against the lands affected. [1988 c 202 § 21; 1971 c 81 § 56; 1929 c 125 § 14; RRS § 2778-6. Formerly RCW 17.04.220, part, and 17.04.230.] 17.06.010 17.04.260 17.04.260 Limit of indebtedness. No weed district shall contract any obligation in any year in excess of the total of the funds which will be available during the current year from the tax levy made in the preceding year and funds received in the current year from services rendered and from any other lawful source, and funds accumulated from previous years. [1963 c 52 § 1; 1961 c 250 § 9; 1957 c 13 § 4. Prior: 1929 c 125 § 5, part; 1921 c 150 § 8; RRS § 2778.] 17.04.270 Appeals to supreme court: Rules of court: See Rules of Appellate Procedure. Severability—1988 c 202: See note following RCW 2.24.050. Cost bonds, civil procedure: RCW 4.84.210 through 4.84.240. 17.04.240 17.04.240 Assessments—Classification of property— Tax levy. The directors shall annually determine the amount of money necessary to carry on the operations of the district and shall classify the property therein in proportion to the benefits to be derived from the operations of the district and in accordance with such classification shall prorate the cost so determined and shall levy assessments to be collected with the general taxes of the county. In the event that any bonded or warrant indebtedness pledging tax revenue of the district shall be outstanding on April 1, 1951, the directors may, for the sole purpose of retiring such indebtedness, continue to levy a tax upon all taxable property in the district until such bonded or warrant indebtedness shall have been retired. [1957 c 13 § 2. Prior: 1951 c 107 § 1; 1929 c 125 § 5, part; RRS § 2774-2.] Validating—1957 c 13: "The provisions of this act are retroactive and any actions or proceedings had or taken under the provisions of RCW 17.04.240, 17.04.250, 17.04.260, 17.08.050, 17.08.060, 17.08.070, 17.08.080, 17.08.090, 17.08.100 or 17.08.110 are hereby ratified, validated and confirmed." [1957 c 13 § 14.] 17.04.270 Districts organized under prior law— Reorganization. Any weed district heretofore organized under any law of the state of Washington may become a weed district under the provisions of this chapter and entitled to exercise all the powers and subject to the limitations of a weed district organized under this chapter by the election of three directors for such weed district which shall be done in the same manner as is provided in this chapter for the election of the first directors of a district organized under this chapter. [1929 c 125 § 15; RRS § 2778-7.] 17.04.280 17.04.280 Officials of district may enter lands—Penalty for prevention. All weed district directors, all weed inspectors, and all official agents of all weed districts, in the performance of their official duties, have the right to enter and go upon any of the lands within their weed district at any reasonable time for any reason necessary to effectuate the purposes of the weed district. Any person who prevents or threatens to prevent any lawful agent of the weed district, after said agent identifies himself and the purpose for which he is going upon the land, from entering or going upon the land within said weed district at a reasonable time and for a lawful purpose of the weed district, is guilty of a misdemeanor. [1961 c 250 § 10.] 17.04.900 17.04.245 17.04.245 Assessment—Tax roll—Collection. Such assessments as are made under the provisions of RCW 17.04.240, by the weed district commissioners, shall be spread by the county assessor on the general tax roll in a separate item. Such assessments shall be collected and accounted for with the general taxes, with the terms and penalties thereto attached. [1951 1st ex.s. c 6 § 1.] 17.04.900 Disincorporation of district located in county with a population of two hundred ten thousand or more and inactive for five years. See chapter 57.90 RCW. 17.04.910 17.04.910 Continuation or dissolution of district— Noxious weed control boards. See RCW 17.10.900. Chapter 17.06 17.04.250 17.04.250 District treasurer—Duties—Fund. The county treasurer shall be ex officio treasurer of such district and the county assessor and other county officers shall take notice of the formation of such district and of the tax levy and shall extend the tax on the tax roll against the property liable therefor the same as other taxes are extended, and such tax shall become a general tax against such property, and shall be collected and accounted for as other taxes, with the terms and penalties thereto attached. The moneys collected from such tax shall be paid into a fund to be known as "fund of weed district . . . . . . of . . . . . . county" (giving the number of district and name of county). All expenses in connection with the operation of such district, including the expenses of initial and annual meetings, shall be paid from such fund, upon vouchers approved by the board of directors of such district. [1957 c 13 § 3. Prior: 1929 c 125 § 5, part; 1921 c 150 § 5; RRS § 2775.] (2006 Ed.) Chapter 17.06 RCW INTERCOUNTY WEED DISTRICTS Sections 17.06.010 17.06.020 17.06.030 17.06.040 17.06.050 17.06.060 17.06.070 17.06.900 Definitions. Intercounty weed districts authorized. Petition for formation—Notice of hearing. Hearing—Boundaries—Order of establishment. Meetings—Qualifications of electors and directors—Elections—Officers—Bonds—Terms—Rules. Directors powers and duties—Taxation—Treasurer—Costs. Actions of county officers—Costs. Continuation or dissolution of district—Noxious weed control boards. Special purpose districts, expenditures to recruit job candidates: RCW 42.24.170. 17.06.010 17.06.010 Definitions. As used in this chapter, unless the context indicates otherwise, "principal board of county commissioners", "principal county treasurer", and "principal county auditor" mean respectively those in the county of that [Title 17 RCW—page 5] 17.06.020 Title 17 RCW: Weeds, Rodents, and Pests part of the proposed intercounty weed district in which the greatest amount of acreage is located. [1959 c 205 § 1.] 17.06.020 17.06.020 Intercounty weed districts authorized. An intercounty weed district, including all or any part of two counties or more, may be created for the purposes set forth in RCW 17.04.010 by the joint action of the boards of county commissioners of the counties in which any portion of the proposed district is located. [1959 c 205 § 2.] assigned to such weed district which shall be the lowest number not already taken or adopted by an intercounty weed district in the state, and thereafter such district shall be known as "weed district No. . . . .", inserting in the blank the number of the district. If any county represented does not by a majority vote of its board of commissioners support the petition for an intercounty district, the petition shall be dismissed. [1959 c 205 § 4.] 17.06.050 Meetings—Qualifications of electors and directors—Elections—Officers—Bonds—Terms—Rules. If the respective boards of county commissioners establish such district the chairman of the principal board shall call a special meeting of landowners to be held within such district for the purpose of electing three directors for such district. No person shall be eligible to hold the office of director who is not a qualified elector of the state of Washington and a resident and landowner within such district. Such meeting shall be held not less than thirty nor more than ninety days from the date when such district is established. Notice of such meeting shall be given by the principal county auditor by publication once a week for three successive weeks in a newspaper of general circulation in such district, and by posting such notice for not less than ten days before the date fixed for such meeting in three public places within the boundaries of such district. The notices shall state the object of the meeting and the time and place when the same shall be held. At the time and place fixed for the meeting the chairman shall appoint two persons to assist him in conducting the election, one of whom shall act as clerk. If such chairman be not present the electors of such district then present shall elect a chairman of the meeting. Every person who is a landowner within such district and a qualified elector of the state of Washington shall be entitled to vote at such meeting. Any person offering to vote may be challenged by any legally qualified elector of such district, and the chairman of such meeting shall thereupon administer to the person challenged an oath in substance as follows: "You do swear (or affirm) that you are a citizen of the United States and a qualified elector of the state of Washington and an owner of land within the boundaries of weed district No. . . . . (giving number of district)." If the challenged person shall take such oath or make such affirmation, he shall be entitled to vote; otherwise his vote shall not be received. Any person making a false oath, or affirmation, or any person illegally voting at such meeting, shall be punished as provided in the general election laws of the state for illegal voting. The vote shall be by secret ballot, on white paper of uniform size and quality, of such arrangement that when names are written thereon, the same may be folded so as not to disclose the names. The elector shall write the names of three persons that he desires as the first directors of such district and shall fold his ballot and hand the same to the chairman of the meeting who shall deposit it in a ballot box provided for that purpose. The clerk shall thereupon write the name of such person on a list as having voted at such election. After all persons present and entitled to vote have voted, the chairman shall declare the election closed, and shall, with the assistance of the clerk and the other person appointed as 17.06.050 17.06.030 17.06.030 Petition for formation—Notice of hearing. Any one or more freeholders owning more than fifty percent of the acreage desired to be included within the proposed intercounty weed district may file a petition with the principal board of county commissioners praying that their land be included, either separately or with other lands included in the petition, in a weed district to be formed for the purpose of destroying, preventing or exterminating any one or all such weeds, or that such lands be included within a district already formed, or a new district or districts to be formed out of any district or districts then existing. Such petition shall state the boundaries of the proposed district, the approximate number of acres in the proposed district, the particular weed or weeds to be destroyed, prevented or exterminated, the general method or means to be used in such work, and shall contain a list of all known landowners within the proposed district, together with the addresses of such landowners. Upon the filing of such petition the principal board of county commissioners shall notify the other boards of commissioners, shall arrange a time for a joint hearing on the petition, and shall give at least thirty days’ notice of the time and place of such hearing by posting copies of such notice in three conspicuous places within the proposed district, and at the main entrance to the court house of each county, and by mailing a copy of such notice to each of the landowners named in the petition at the address named therein. If any of the land described in the petition be owned by the state a copy thereof shall be mailed to the department of natural resources at Olympia. [1988 c 128 § 5; 1959 c 205 § 3.] 17.06.040 17.06.040 Hearing—Boundaries—Order of establishment. At the time and place fixed for such hearing, with the chairman of the principal board acting as chairman, the respective boards shall determine by a majority vote of each of the boards of county commissioners of the counties whether such intercounty weed district shall be created, and if they determine that such district shall be created, the respective boards shall fix the boundaries of the portion of the proposed district within their respective counties, but they shall not modify the purposes of the petition with respect to the weed or weeds to be destroyed, prevented and exterminated as set forth in the petition, and they shall not enlarge the boundary of the proposed district, or enlarge or change the boundary or boundaries of any district or districts already formed without first giving notice, as provided in RCW 17.06.030, to all landowners interested. If the respective bodies shall determine that the weed district petitioned for shall be created each such board shall thereupon enter an order establishing and defining the boundary lines of the proposed district within its respective county. A number shall be [Title 17 RCW—page 6] (2006 Ed.) Noxious Weeds—Control Boards assistant, proceed to count the ballots. The person receiving the greatest number of votes shall be elected as director for a term ending three years from the first Monday in March following his election; the person receiving the second greatest number of votes shall be elected for a term ending two years from the first Monday in March following his election, and the person receiving the third greatest number of votes shall be elected for a term ending one year from the first day of March following his election. Annually thereafter, there shall be held a meeting of the electors of such district on the first Monday in February. At such meeting one director shall be elected to succeed the director whose term will expire on the first Monday in March following. The directors shall call the annual meeting, and shall fix the time when and place where the same shall be held and shall give the same notice thereof as provided for the initial meeting. The annual meeting shall be conducted in the same manner as is provided for the initial meeting, and the qualifications of electors at such annual meeting shall be the same as is required for the initial meeting. All directors shall hold office for the term for which they are elected, and until their successors are elected and qualified. In case of a vacancy occurring in the office of any director, the remaining members of the board of directors shall appoint a qualified person to fill the vacancy for the unexpired term. The board of directors shall elect one of its members chairman and may appoint a secretary who need not be a member of the board, and who shall be paid such compensation as the board may determine. Each director shall furnish a bond in the sum of one thousand dollars, which may be a surety company bond or property bond approved by the principal board of county commissioners, which bond shall be filed with the same board and shall be conditioned for the faithful discharge of his duties. The cost of such bond shall be paid by the district the same as other expenses of the district. At any annual meeting the method for destroying, preventing and exterminating weeds of such district as set forth in the petition, and the rules and regulations adopted by such district, may be changed by a majority vote of the qualified electors present at such meeting, or a special meeting may be called for that purpose, notice of which meeting and of such proposed changes to be voted on, shall be given to all landowners residing within the district by mailing a copy of such notice and of such proposed changes to the address of such landowner at least one week before the date fixed for such special meeting. [1971 ex.s. c 292 § 16; 1959 c 205 § 5.] Severability—1971 ex.s. c 292: See note following RCW 26.28.010. collected shall be submitted to the proper officer of the county of that part of the district in which the greatest amount of acreage is located. Any power which may be or duty which shall be performed in connection therewith shall be performed by the officer or board receiving such as though only a district in a single county were concerned. All moneys collected from such area constituting a part of such district that should be paid to such district shall be delivered to the principal county treasurer who shall be ex officio treasurer of such district. All other materials, information, or data relating to the district shall be submitted to the district board of directors. Any costs or expenses incurred under this section shall be borne proportionately by each county involved. [1959 c 205 § 6.] 17.06.070 17.06.070 Actions of county officers—Costs. Whenever any action is required or may be performed by any county officer or board for all purposes essential to the maintenance, operation, and administration of the district, such action shall be performed by the respective officer or board of the county of that part of the district in which the greatest amount of acreage of the district is located. All costs incurred shall be borne proportionately by each county in that ratio which the amount of acreage of the district located in that part of each county forming a part of the district bears to the total amount of acreage located in the whole district. [1959 c 205 § 7.] 17.06.900 17.06.900 Continuation or dissolution of district— Noxious weed control boards. See RCW 17.10.900. Chapter 17.10 RCW NOXIOUS WEEDS—CONTROL BOARDS Chapter 17.10 Sections 17.10.007 17.10.010 17.10.020 17.10.030 17.10.040 17.10.050 17.10.060 17.10.070 17.10.074 17.10.080 17.06.060 17.06.060 Directors powers and duties—Taxation— Treasurer—Costs. The board of directors of an intercounty weed district shall have the same powers and duties as the board of directors of a weed district located entirely within one county, and all the provisions of chapter 17.04 RCW are hereby made applicable to intercounty weed districts: PROVIDED, That in the case of evaluation, assessment, collection, apportionment, and any other allied power or duty relating to taxes in connection with the district, the action shall be performed by the officer or board of the county for that area of the district which is located within his respective county, and all materials, information, and other data and all moneys (2006 Ed.) Chapter 17.10 17.10.090 17.10.100 17.10.110 17.10.120 17.10.130 17.10.134 17.10.140 17.10.145 17.10.154 17.10.160 Purpose—Construction—1975 1st ex.s. c 13. Definitions. County noxious weed control boards—Created—Jurisdiction—Inactive status. State noxious weed control board—Members—Terms—Elections—Meetings—Reimbursement for travel expenses. Activation of inactive county noxious weed control board. Activated county noxious weed control board—Members— Election—Terms—Meetings—Quorum—Expenses— Officers—Vacancy. Activated county noxious weed control board—Weed coordinator—Authority—Rules and regulations. State noxious weed control board—Powers—Report. Director—Powers. State noxious weed list—Hearing—Adoption—Dissemination. State noxious weed list—Selection of weeds for control by county board. Order to county board to include weed from state board’s list in county’s noxious weed list. Regional noxious weed control board—Creation. Regional noxious weed control board—Members—Meetings—Quorum—Officers—Effect on county boards. Regional noxious weed control board—Powers and duties. Liability of county and regional noxious weed control boards. Owner’s duty to control spread of noxious weeds. State agencies’ duty to control spread of noxious weeds. Owners’ agreements with county noxious weed control boards—Terms—Enforcement. Right of entry—Warrant for noxious weed search—Civil liability—Penalty for preventing entry. [Title 17 RCW—page 7] 17.10.007 17.10.170 17.10.180 17.10.190 17.10.201 17.10.205 17.10.210 17.10.230 17.10.235 17.10.240 17.10.250 17.10.260 17.10.270 17.10.280 17.10.290 17.10.300 17.10.310 17.10.350 17.10.890 17.10.900 17.10.910 Title 17 RCW: Weeds, Rodents, and Pests Finding presence of noxious weeds—Notice for failure of owner to control—Control by county board—Liability of owner—Lien—Alternative. Hearing on liability for expense of control—Notice—Review. Notice and information as to noxious weed control. Noxious weed control on federal and tribal lands—State and county cooperation. Control of noxious weeds in open areas. Quarantine of land—Order—Expense. Violations—Penalty. Selling product, article, or feed containing noxious weed seeds or toxic weeds—Penalty—Rules—Inspections—Fees. Special assessments, appropriations for noxious weed control—Assessment rates. Applications for noxious weed control funds. Administrative powers to be exercised in conformity with administrative procedure act—Use of weed control substances subject to other acts. Noxious weed control boards—Authority to obtain insurance or surety bonds. Lien for labor, material, equipment used in controlling noxious weeds. Lien for labor, material, equipment used in controlling noxious weeds—Notice of lien. Lien for labor, material, equipment used in controlling noxious weeds—Claim—Filing—Contents. Notice of infraction—Issuance. Infraction—Penalty. Deactivation of county noxious weed control board—Hearing. Weed districts—Continuation—Dissolution—Transfer of assessment funds. Severability—1969 ex.s. c 113. 17.10.007 17.10.007 Purpose—Construction—1975 1st ex.s. c 13. The purpose of this chapter is to limit economic loss and adverse effects to Washington’s agricultural, natural, and human resources due to the presence and spread of noxious weeds on all terrestrial and aquatic areas in the state. The intent of the legislature is that this chapter be liberally construed, and that the jurisdiction, powers, and duties granted to the county noxious weed control boards by this chapter are limited only by specific provisions of this chapter or other state and federal law. [1997 c 353 § 1; 1975 1st ex.s. c 13 § 17. Formerly RCW 17.10.905.] 17.10.010 17.10.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise: (1) "Noxious weed" means a plant that when established is highly destructive, competitive, or difficult to control by cultural or chemical practices. (2) "State noxious weed list" means a list of noxious weeds adopted by the state noxious weed control board. The list is divided into three classes: (a) Class A consists of those noxious weeds not native to the state that are of limited distribution or are unrecorded in the state and that pose a serious threat to the state; (b) Class B consists of those noxious weeds not native to the state that are of limited distribution or are unrecorded in a region of the state and that pose a serious threat to that region; (c) Class C consists of any other noxious weeds. (3) "Person" means any individual, partnership, corporation, firm, the state or any department, agency, or subdivision thereof, or any other entity. (4) "Owner" means the person in actual control of property, or his or her agent, whether the control is based on legal or equitable title or on any other interest entitling the holder to possession and, for purposes of liability, pursuant to RCW 17.10.170 or 17.10.210, means the possessor of legal or equi[Title 17 RCW—page 8] table title or the possessor of an easement: PROVIDED, That when the possessor of an easement has the right to control or limit the growth of vegetation within the boundaries of an easement, only the possessor of the easement is deemed, for the purpose of this chapter, an "owner" of the property within the boundaries of the easement. (5) As pertains to the duty of an owner, the words "control", "contain", "eradicate", and the term "prevent the spread of noxious weeds" means conforming to the standards of noxious weed control or prevention in this chapter or as adopted by rule in chapter 16-750 WAC by the state noxious weed control board and an activated county noxious weed control board. (6) "Agent" means any occupant or any other person acting for the owner and working or in charge of the land. (7) "Agricultural purposes" are those that are intended to provide for the growth and harvest of food and fiber. (8) "Director" means the director of the department of agriculture or the director’s appointed representative. (9) "Weed district" means a weed district as defined in chapters 17.04 and 17.06 RCW. (10) "Aquatic noxious weed" means an aquatic plant species that is listed on the state weed list under RCW 17.10.080. (11) "Screenings" means a mixture of mill or elevator run mixture or a combination of varying amounts of materials obtained in the process of cleaning either grain or seeds, or both, such as light or broken grain or seed, weed seeds, hulls, chaff, joints, straw, elevator dust, floor sweepings, sand, and dirt. [1997 c 353 § 2; 1995 c 255 § 6; 1987 c 438 § 1; 1975 1st ex.s. c 13 § 1; 1969 ex.s. c 113 § 1.] Severability—Effective date—1995 c 255: See RCW 17.26.900 and 17.26.901. 17.10.020 County noxious weed control boards— Created—Jurisdiction—Inactive status. (1) In each county of the state there is created a noxious weed control board, bearing the name of the county within which it is located. The jurisdictional boundaries of each board are the boundaries of the county within which it is located. (2) Each noxious weed control board is inactive until activated pursuant to the provisions of RCW 17.10.040. [1997 c 353 § 3; 1969 ex.s. c 113 § 2.] 17.10.020 17.10.030 State noxious weed control board—Members—Terms—Elections—Meetings—Reimbursement for travel expenses. There is created a state noxious weed control board comprised of nine voting members and three nonvoting members. Four of the voting members shall be elected by the members of the various activated county noxious weed control boards, and shall be residents of a county in which a county noxious weed control board has been activated and a member of said board, and those qualifications shall continue through their term of office. Two of these members shall be elected from the west side of the state, the crest of the Cascades being the dividing line, and two from the east side of the state. The director of agriculture is a voting member of the board. One voting member shall be elected by the directors of the various active weed districts formed under chapter 17.04 or 17.06 RCW. The Washington state association of counties appoints one voting member who 17.10.030 (2006 Ed.) Noxious Weeds—Control Boards shall be a member of a county legislative authority. The director shall appoint two voting members to represent the public interest, one from the west side and one from the east side of the state. The director shall also appoint three nonvoting members representing scientific disciplines relating to weed control. The term of office for all members of the board is three years from the date of election or appointment. The board, by rule, shall establish a position number for each elected position of the board and shall designate which county noxious weed control board members are eligible to vote for each elected position. The elected members serve staggered terms. Elections for the elected members of the board shall be held thirty days prior to the expiration date of their respective terms. Nominations and elections shall be by mail and conducted by the board. The board shall conduct its first meeting within thirty days after all its members have been elected. The board shall elect from its members a chair and other officers as may be necessary. A majority of the voting members of the board constitutes a quorum for the transaction of business and is necessary for any action taken by the board. The members of the board serve without salary, but shall be reimbursed for travel expenses incurred in the performance of their duties under this chapter in accordance with RCW 43.03.050 and 43.03.060. [1997 c 353 § 4; 1987 c 438 § 2; 1975-’76 2nd ex.s. c 34 § 23; 1969 ex.s. c 113 § 3.] Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. 17.10.040 17.10.040 Activation of inactive county noxious weed control board. An inactive county noxious weed control board may be activated by any one of the following methods: (1) Either within sixty days after a petition is filed by one hundred registered voters within the county or, on its own motion, the county legislative authority shall hold a hearing to determine whether there is a need, due to a damaging infestation of noxious weeds, to activate the county noxious weed control board. If such a need is found to exist, then the county legislative authority shall, in the manner provided by RCW 17.10.050, appoint five persons to the county’s noxious weed control board. (2) If the county’s noxious weed control board is not activated within one year following a hearing by the county legislative authority to determine the need for activation, then upon the filing with the state noxious weed control board of a petition comprised either of the signatures of at least two hundred registered voters within the county, or of the signatures of a majority of an adjacent county’s noxious weed control board, the state board shall, within six months of the date of the filing, hold a hearing in the county to determine the need for activation. If a need for activation is found to exist, then the state board shall order the county legislative authority to activate the county’s noxious weed control board and to appoint members to the board in the manner provided by RCW 17.10.050. (3) The director, upon request of the state noxious weed control board, shall order a county legislative authority to activate the noxious weed control board immediately if an infestation of a class A noxious weed or class B noxious weed designated for control on the state noxious weed list is confirmed in that county. The county legislative authority (2006 Ed.) 17.10.050 may, as an alternative to activating the noxious weed board, combat the class A noxious weed or class B noxious weed with county resources and personnel operating with the authorities and responsibilities imposed by this chapter on a county noxious weed control board. No county may continue without a noxious weed control board for a second consecutive year if the class A noxious weed or class B noxious weed has not been eradicated. [1997 c 353 § 5; 1987 c 438 § 3; 1975 1st ex.s. c 13 § 2; 1969 ex.s. c 113 § 4.] 17.10.050 17.10.050 Activated county noxious weed control board—Members—Election—Terms—Meetings—Quorum—Expenses—Officers—Vacancy. (1) Each activated county noxious weed control board consists of five voting members appointed by the county legislative authority. In appointing the voting members, the county legislative authority shall divide the county into five geographical areas that best represent the county’s interests, and appoint a voting member from each geographical area. At least four of the voting members shall be engaged in the primary production of agricultural products. There is one nonvoting member on the board who is the chair of the county extension office or an extension agent appointed by the chair of the county extension office. Each voting member of the board serves a term of four years, except that the county legislative authority shall, when a board is first activated under this chapter, designate two voting members to serve terms of two years. The board members shall not receive a salary but shall be compensated for actual and necessary expenses incurred in the performance of their official duties. (2) The voting members of the board serve until their replacements are appointed. New members of the board shall be appointed at least thirty days prior to the expiration of any board member’s term of office. Notice of expiration of a term of office shall be published at least twice in a weekly or daily newspaper of general circulation in the section [geographical area] with last publication occurring at least ten days prior to the nomination. All persons interested in appointment to the board and residing in the geographical area with a pending nomination shall make a written application that includes the signatures of at least ten registered voters residing in the geographical area supporting the nomination to the county noxious weed control board. After nominations close, the county noxious weed control board shall, after a hearing, send the applications to the county legislative authority recommending the names of the most qualified candidates, and post the names of those nominees in the county courthouse and publish in at least one newspaper of general circulation in the county. The county legislative authority, within ten days of receiving the list of nominees, shall appoint one of those nominees to the county noxious weed control board to represent that geographical area during that term of office. (3) Within thirty days after all the members have been appointed, the board shall conduct its first meeting. A majority of the voting members of the board constitutes a quorum for the transaction of business and is necessary for any action taken by the board. The board shall elect from its members a chair and other officers as may be necessary. (4) In case of a vacancy occurring in any voting position on a county noxious weed control board, the county legisla[Title 17 RCW—page 9] 17.10.060 Title 17 RCW: Weeds, Rodents, and Pests tive authority of the county in which the board is located shall appoint a qualified person to fill the vacancy for the unexpired term. [1997 c 353 § 6; 1987 c 438 § 4; 1980 c 95 § 1; 1977 ex.s. c 26 § 6; 1975 1st ex.s. c 13 § 3; 1974 ex.s. c 143 § 1; 1969 ex.s. c 113 § 5.] 17.10.060 17.10.060 Activated county noxious weed control board—Weed coordinator—Authority—Rules and regulations. (1) Each activated county noxious weed control board shall employ or otherwise provide a weed coordinator whose duties are fixed by the board but which shall include inspecting land to determine the presence of noxious weeds, offering technical assistance and education, and developing a program to achieve compliance with the weed law. The weed coordinator may be employed full time, part time, or seasonally by the county noxious weed control board. County weed board employment practices shall comply with county personnel policies. Within sixty days from initial employment the weed coordinator shall obtain a pest control consultant license, a pesticide operator license, and the necessary endorsements on the licenses as required by law. Each board may purchase, rent, or lease equipment, facilities, or products and may hire additional persons as it deems necessary for the administration of the county’s noxious weed control program. (2) Each activated county noxious weed control board has the power to adopt rules and regulations, subject to notice and hearing as provided in chapters 42.30 and 42.32 RCW, as are necessary for an effective county weed control or eradication program. (3) Each activated county noxious weed control board shall meet with a quorum at least quarterly. [1997 c 353 § 7; 1987 c 438 § 5; 1969 ex.s. c 113 § 6.] 17.10.070 17.10.070 State noxious weed control board—Powers—Report. (1) In addition to the powers conferred on the state noxious weed control board under other provisions of this chapter, it has the power to: (a) Employ a state noxious weed control board executive secretary, and additional persons as it deems necessary, to disseminate information relating to noxious weeds to county noxious weed control boards and weed districts, to coordinate the educational and weed control efforts of the various county and regional noxious weed control boards and weed districts, and to assist the board in carrying out its responsibilities; (b) Adopt, amend, or repeal rules, pursuant to the administrative procedure act, chapter 34.05 RCW, as may be necessary to carry out the duties and authorities assigned to the board by this chapter. (2) The state noxious weed control board shall provide a written report before January 1st of each odd-numbered year to the county noxious weed control boards and the weed districts showing the expenditure of state funds on noxious weed control; specifically how the funds were spent; the status of the state, county, and district programs; and recommendations for the continued best use of state funds for noxious weed control. The report shall include recommendations as to the long-term needs regarding weed control. [1998 c 245 § 3; [Title 17 RCW—page 10] 1997 c 353 § 8; 1987 c 438 § 6; 1975 1st ex.s. c 13 § 4; 1969 ex.s. c 113 § 7.] 17.10.074 Director—Powers. (1) In addition to the powers conferred on the director under other provisions of this chapter, the director, with the advice of the state noxious weed control board, has power to: (a) Require the county legislative authority or the noxious weed control board of any county or any weed district to report to it concerning the presence, absence, or estimated amount of noxious weeds and measures, if any, taken or planned for the control thereof; (b) Employ staff as may be necessary in the administration of this chapter; (c) Adopt, amend, or repeal rules, pursuant to the administrative procedure act, chapter 34.05 RCW, as may be necessary to carry out this chapter; (d) Do such things as may be necessary and incidental to the administration of its functions pursuant to this chapter including but not limited to surveying for and detecting noxious weed infestations; (e) Upon receipt of a complaint signed by a majority of the members of an adjacent county noxious weed control board or weed district, or by one hundred registered voters that are land owners within the county, require the county legislative authority or noxious weed control board of the county or weed district that is the subject of the complaint to respond to the complaint within forty-five days with a plan for the control of the noxious weeds cited in the complaint; (f) If the complaint in (e) of this subsection involves a class A or class B noxious weed, order the county legislative authority, noxious weed control board, or weed district to take immediate action to eradicate or control the noxious weed infestation. If the county or the weed district does not take action to control the noxious weed infestation in accordance with the order, the director may control it or cause it to be controlled. The county or weed district is liable for payment of the expense of the control work including necessary costs and expenses for attorneys’ fees incurred by the director in securing payment from the county or weed district. The director may bring a civil action in a court of competent jurisdiction to collect the expenses of the control work, costs, and attorneys’ fees; (g) In counties without an activated noxious weed control board, enter upon any property as provided for in RCW 17.10.160, issue or cause to be issued notices and citations and take the necessary action to control noxious weeds as provided in RCW 17.10.170, hold hearings on any charge or cost of control action taken as provided for in RCW 17.10.180, issue a notice of civil infraction as provided for in RCW 17.10.230 and 17.10.310 through [and] 17.10.350, and place a lien on any property pursuant to RCW 17.10.280, 17.10.290, and 17.10.300 with the same authorities and responsibilities imposed by these sections on county noxious weed control boards; (h) Adopt a list of noxious weed seeds and toxic weeds which shall be controlled in designated articles, products, or feed stuffs as provided for in RCW 17.10.235. (2) The moneys appropriated for noxious weed control to the department shall be used for administration of the state noxious weed control board, the administration of the direc17.10.074 (2006 Ed.) Noxious Weeds—Control Boards tor’s powers under this chapter, the purchase of materials for controlling, containing, or eradicating noxious weeds, the purchase or collection of biological control agents for controlling noxious weeds, and the contracting for services to carry out the purposes of this chapter. In a county with an activated noxious weed control board, the director shall make every effort to contract with that board for the needed services. (3) If the director determines the need to reallocate funds previously designated for county use, the director shall convene a meeting of the state noxious weed control board to seek its advice concerning any reallocation. [1997 c 353 § 9; 1987 c 438 § 7.] 17.10.080 17.10.080 State noxious weed list—Hearing—Adoption—Dissemination. (1) The state noxious weed control board shall each year or more often, following a hearing, adopt a state noxious weed list. (2) Any person may request during a comment period established by the state weed board the inclusion, deletion, or designation change of any plant to the state noxious weed list. (3) The state noxious weed control board shall send a copy of the list to each activated county noxious weed control board, to each weed district, and to the county legislative authority of each county with an inactive noxious weed control board. (4) The record of rule making must include the written findings of the board for the inclusion of each plant on the list. The findings shall be made available upon request to any interested person. [1997 c 353 § 10; 1989 c 175 § 57; 1987 c 438 § 8; 1975 1st ex.s. c 13 § 5; 1969 ex.s. c 113 § 8.] Effective date—1989 c 175: See note following RCW 34.05.010. 17.10.090 17.10.090 State noxious weed list—Selection of weeds for control by county board. Each county noxious weed control board shall, within ninety days of the adoption of the state noxious weed list from the state noxious weed control board and following a hearing, select those weeds from the class C list and those weeds from the class B list not designated for control in the noxious weed control region in which the county lies that it finds necessary to be controlled in the county. The weeds thus selected and all class A weeds and those class B weeds that have been designated for control in the noxious weed control region in which the county lies shall be classified within that county as noxious weeds, and those weeds comprise the county noxious weed list. [1997 c 353 § 11; 1987 c 438 § 9; 1969 ex.s. c 113 § 9.] 17.10.130 weed control board or weed district, which the adjacent board or district has included that weed in its county list, and the adjacent board or weed district alleges that its noxious weed control program is being hampered by the failure to include the weed on the county’s noxious weed list. [1997 c 353 § 12; 1987 c 438 § 10; 1969 ex.s. c 113 § 10.] 17.10.110 17.10.110 Regional noxious weed control board— Creation. A regional noxious weed control board comprising the area of two or more counties may be created as follows: Either the county legislative authority, or the noxious weed control board, or both, of two or more counties may, upon a determination that the purpose of this chapter will be served by the creation of a regional noxious weed control board, adopt a resolution providing for a limited merger of the functions of their respective counties noxious weed control boards. The resolution becomes effective only when a similar resolution is adopted by the other county or counties comprising the proposed regional board. [1997 c 353 § 13; 1987 c 438 § 11; 1975 1st ex.s. c 13 § 6; 1969 ex.s. c 113 § 11.] 17.10.120 17.10.120 Regional noxious weed control board— Members—Meetings—Quorum—Officers—Effect on county boards. In any case where a regional noxious weed control board is created, the county noxious weed control boards comprising the regional board shall still remain in existence and shall retain all powers and duties provided for the boards under this chapter. The regional noxious weed control board is comprised of the voting members and the nonvoting members of the component counties noxious weed control boards or county legislative authorities who shall, respectively, be the voting and nonvoting members of the regional board: PROVIDED, That each county shall have an equal number of voting members. The board may appoint other nonvoting members as deemed necessary. A majority of the voting members of the board constitutes a quorum for the transaction of business and is necessary for any action taken by the board. The board shall elect a chair from its members and other officers as may be necessary. Members of the regional board serve without salary but shall be compensated for actual and necessary expenses incurred in the performance of their official duties. [1997 c 353 § 14; 1987 c 438 § 12; 1969 ex.s. c 113 § 12.] 17.10.130 17.10.100 17.10.100 Order to county board to include weed from state board’s list in county’s noxious weed list. Where any of the following occur, the state noxious weed control board may, following a hearing, order any county noxious weed control board or weed district to include a noxious weed from the state board’s list in the county’s noxious weed list: (1) Where the state noxious weed control board receives a petition from at least one hundred registered voters within the county requesting that the weed be listed. (2) Where the state noxious weed control board receives a request for inclusion from an adjacent county’s noxious (2006 Ed.) 17.10.130 Regional noxious weed control board— Powers and duties. The powers and duties of a regional noxious weed control board are as follows: (1) The regional board shall, within ninety days of the adoption of the state noxious weed list from the state noxious weed control board and following a hearing, select those weeds from the state list that it finds necessary to be controlled on a regional basis. The weeds thus selected shall also be contained in the county noxious weed list of each county in the region. (2) The regional board shall take action as may be necessary to coordinate the noxious weed control programs of the region and adopt a regional plan for the control of noxious [Title 17 RCW—page 11] 17.10.134 Title 17 RCW: Weeds, Rodents, and Pests weeds. [1997 c 353 § 15; 1987 c 438 § 13; 1969 ex.s. c 113 § 13.] 17.10.134 17.10.134 Liability of county and regional noxious weed control boards. Obligations or liabilities incurred by any county or regional noxious weed control board or any claims against a county or regional noxious weed control board are governed by chapter 4.96 RCW or RCW 4.08.120: PROVIDED, That individual members or employees of a county noxious weed control board are personally immune from civil liability for damages arising from actions performed within the scope of their official duties or employment. [1997 c 353 § 16; 1987 c 438 § 14.] eradication that may be extended over a period of years. The county noxious weed control board may make an agreement with the owner of any parcel of land by contract between the landowner and the respective county noxious weed control board, and the board shall enforce the terms of any agreement. The county noxious weed control board may make any terms that will best serve the interests of the owners of the parcel of land and the common welfare that comply with this chapter. Agreements made under this section must include at least a one thousand foot buffer for all adjacent agricultural land uses. Noxious weed control in this buffer must comply with RCW 17.10.140(1). [1997 c 353 § 19; 1987 c 438 § 16.] 17.10.160 17.10.140 17.10.140 Owner’s duty to control spread of noxious weeds. (1) Except as is provided under subsection (2) of this section, every owner shall perform or cause to be performed those acts as may be necessary to: (a) Eradicate all class A noxious weeds; (b) Control and prevent the spread of all class B noxious weeds designated for control in that region within and from the owner’s property; and (c) Control and prevent the spread of all class B and class C noxious weeds listed on the county weed list as locally mandated control priorities within and from the owner’s property. (2) Forest lands classified under RCW 17.10.240(2), or meeting the definition of forest lands contained in RCW 17.10.240, are subject to the requirements of subsection (1)(a) and (b) of this section at all times. Forest lands are subject to the requirements of subsection (1)(c) of this section only within a one thousand foot buffer strip of adjacent land uses. In addition, forest lands are subject to subsection (1)(c) of this section for a single five-year period following the harvesting of trees for lumber. [1997 c 353 § 17; 1969 ex.s. c 113 § 14.] 17.10.145 17.10.145 State agencies’ duty to control spread of noxious weeds. All state agencies shall control noxious weeds on lands they own, lease, or otherwise control through integrated pest management practices. Agencies shall develop plans in cooperation with county noxious weed control boards to control noxious weeds in accordance with standards in this chapter. All state agencies’ lands must comply with this chapter, regardless of noxious weed control efforts on adjacent lands. [1997 c 353 § 18; 1995 c 374 § 75.] Effective date—1995 c 374 §§ 69, 70, and 72-79: See note following RCW 16.24.130. 17.10.154 17.10.154 Owners’ agreements with county noxious weed control boards—Terms—Enforcement. It is recognized that the prevention, control, and eradication of noxious weeds presents a problem for immediate as well as for future action. It is further recognized that immediate prevention, control, and eradication is practicable on some lands and that prevention, control, and eradication on other lands should be extended over a period of time. Therefore, it is the intent of this chapter that county noxious weed control boards may use their discretion and, by agreement with the owners of land, may propose and accept plans for prevention, control, and [Title 17 RCW—page 12] 17.10.160 Right of entry—Warrant for noxious weed search—Civil liability—Penalty for preventing entry. Any authorized agent or employee of the county noxious weed control board or of the state noxious weed control board or of the department of agriculture where not otherwise proscribed by law may enter upon any property for the purpose of administering this chapter and any power exercisable pursuant thereto, including the taking of specimens of weeds, general inspection, and the performance of eradication or control work. Prior to carrying out the purpose for which the entry is made, the official making such entry or someone in his or her behalf, shall make a reasonable attempt to notify the owner of the property as to the purpose and need for the entry. (1) When there is probable cause to believe that there is property within this state not otherwise exempt from process or execution upon which noxious weeds are standing or growing and the owner refuses permission to inspect the property, a judge of the superior court or district court in the county in which the property is located may, upon the request of the county noxious weed control board or its agent, issue a warrant directed to the board or agent authorizing the taking of specimens of weeds or other materials, general inspection, and the performance of eradication or control work. (2) Application for issuance and execution and return of the warrant authorized by this section shall be in accordance with the applicable rules of the superior court or the district courts. (3) Nothing in this section requires the application for and issuance of any warrant not otherwise required by law: PROVIDED, That civil liability for negligence shall lie in any case in which entry and any of the activities connected therewith are not undertaken with reasonable care. (4) Any person who improperly prevents or threatens to prevent entry upon land as authorized in this section or any person who interferes with the carrying out of this chapter shall be upon conviction guilty of a misdemeanor. [1997 c 353 § 20; 1987 c 438 § 17; 1969 ex.s. c 113 § 16.] 17.10.170 17.10.170 Finding presence of noxious weeds— Notice for failure of owner to control—Control by county board—Liability of owner—Lien—Alternative. (1) Whenever the county noxious weed control board finds that noxious weeds are present on any parcel of land, and that the owner is not taking prompt and sufficient action to control the noxious weeds, pursuant to the provisions of RCW 17.10.140, it shall notify the owner that a violation of this (2006 Ed.) Noxious Weeds—Control Boards chapter exists. The notice shall be in writing and sent by certified mail, and shall identify the noxious weeds found to be present, order prompt control action, and specify the time, of at least ten days from issuance of the notice, within which the prescribed action must be taken. Upon deposit of the certified letter of notice, the noxious weed control authority shall make an affidavit of mailing that is prima facie evidence that proper notice was given. If seed or other propagule dispersion is imminent, immediate control action may be taken fortyeight hours following the time that notification is reasonably expected to have been received by the owner or agent by certified mail or personal service, instead of ten days. If a landowner received a notice of violation from the county noxious weed control board in a prior growing season, removal or destruction of all above ground plant parts may be required at the most effective point in the growing season, as determined by the county weed board, which may be before or after propagule dispersion. (2) The county noxious weed control board or its authorized agents may issue a notice of civil infraction as provided for in RCW 17.10.230, 17.10.310, and 17.10.350 to owners who do not take action to control noxious weeds in accordance with the notice. (3) If the owner does not take action to control the noxious weeds in accordance with the notice, the county board may control them, or cause their being controlled, at the expense of the owner. The amount of the expense constitutes a lien against the property and may be enforced by proceedings on the lien except as provided for by RCW 79.44.060. The owner is liable for payment of the expense, and nothing in this chapter shall be construed to prevent collection of any judgment on account thereof by any means available pursuant to law, in substitution for enforcement of the lien. Necessary costs and expenses including reasonable attorneys’ fees incurred by the county noxious weed control board in carrying out this section may be recovered at the same time as a part of the action filed under this section. Funds received in payment for the expense of controlling noxious weeds shall be transferred to the county noxious weed control board to be expended as required to carry out the purposes of this chapter. (4) The county auditor shall record in his or her office any lien created under this chapter, and any lien shall bear interest at the rate of twelve percent per annum from the date on which the county noxious weed control board approves the amount expended in controlling the weeds. (5) As an alternative to the enforcement of any lien created under subsection (3) of this section, the county legislative authority may by resolution or ordinance require that each lien created be collected by the treasurer in the same manner as a delinquent real property tax, if within thirty days from the date the owner is sent notice of the lien, including the amount thereof, the lien remains unpaid and an appeal has not been made pursuant to RCW 17.10.180. Liens treated as delinquent taxes bear interest at the rate of twelve percent per annum and the interest accrues as of the date notice of the lien is sent to the owner: PROVIDED, That any collections for the lien shall not be considered as tax. [1997 c 353 § 21; 1987 c 438 § 18; 1979 c 118 § 1; 1975 1st ex.s. c 13 § 8; 1974 ex.s. c 143 § 3; 1969 ex.s. c 113 § 17.] (2006 Ed.) 17.10.201 17.10.180 17.10.180 Hearing on liability for expense of control—Notice—Review. Any owner, upon request pursuant to the rules and regulation of the county noxious weed control board, is entitled to a hearing before the board on any charge or cost for which the owner is alleged to be liable pursuant to RCW 17.10.170 or 17.10.210. The board shall send notice by certified mail within thirty days, to each owner at the owner’s last known address, as to any charge or cost and as to his or her right of a hearing. The hearing shall be scheduled within forty-five days of notification. Any determination or final action by the board is subject to judicial review by a proceeding in the superior court in the county in which the property is located, and the court has original jurisdiction to determine any suit brought by the owner to recover damages allegedly suffered on account of control work negligently performed: PROVIDED, That no stay or injunction shall lie to delay any control work subsequent to notice given pursuant to RCW 17.10.160 or pursuant to an order under RCW 17.10.210. [1997 c 353 § 22; 1987 c 438 § 19; 1969 ex.s. c 113 § 18.] 17.10.190 17.10.190 Notice and information as to noxious weed control. Each activated county noxious weed control board must publish annually, and at other times as may be appropriate, in at least one newspaper of general circulation within its area, a general notice. The notice shall direct attention to the need for noxious weed control and give other information concerning noxious weed control requirements as may be appropriate, or indicate where such information may be secured. In addition to the general notice required, the county noxious weed control board may use any appropriate media for the dissemination of information to the public as may be calculated to bring the need for noxious weed control to the attention of owners. The board may consult with individual owners concerning their problems of noxious weed control and may provide them with information and advice, including giving specific instructions and methods when and how certain named weeds are to be controlled. The methods may include some combination of physical, mechanical, cultural, chemical, and/or biological methods, including livestock. Publication of a notice as required by this section is not a condition precedent to the enforcement of this chapter. [1997 c 353 § 23; 1987 c 438 § 20; 1975 1st ex.s. c 13 § 9; 1969 ex.s. c 113 § 19.] 17.10.201 17.10.201 Noxious weed control on federal and tribal lands—State and county cooperation. (1) The state noxious weed control board shall: (a) Work with the various federal and tribal land management agencies to coordinate state and federal noxious weed control; (b) Encourage the various federal and tribal land management agencies to devote more time and resources to noxious weed control; and (c) Assist the various federal and tribal land management agencies by seeking adequate funding for noxious weed control. (2) County noxious weed control boards and weed districts shall work with the various federal and tribal land management agencies in each county in order to: (a) Identify new noxious weed infestations; [Title 17 RCW—page 13] 17.10.205 Title 17 RCW: Weeds, Rodents, and Pests (b) Outline and plan necessary noxious weed control actions; (c) Develop coordinated noxious weed control programs; and (d) Notify local federal and tribal agency land managers of noxious weed infestations. (3) The department of agriculture, county noxious weed control boards, and weed districts are authorized to enter federal lands, with the approval of the appropriate federal agency, to survey for and control noxious weeds where control measures of a type and extent required under this chapter have not been taken. (4) The department of agriculture, county noxious weed control boards, and weed districts may bill the federal land management agency that manages the land for all costs of the noxious weed control performed on federal land. If not paid by the federal agency that manages the land, the cost of the noxious weed control on federal land may be paid from any funds available to the county noxious weed control board or weed district that performed the noxious weed control. Alternatively, the costs of noxious weed control on federal land may be paid from any funds specifically appropriated to the department of agriculture for that purpose. (5) The department of agriculture, county noxious weed control boards, and weed districts are authorized to enter into any reasonable agreement with the appropriate authorities for the control of noxious weeds on federal or tribal lands. (6) The department of agriculture, county noxious weed control boards, and weed districts shall consult with state agencies managing federal land concerning noxious weed infestation and control programs. [1997 c 353 § 34.] 17.10.205 17.10.205 Control of noxious weeds in open areas. Open areas subject to the spread of noxious weeds, including but not limited to subdivisions, school grounds, playgrounds, parks, and rights of way shall be subject to regulation by activated county noxious weed control boards in the same manner and to the same extent as is provided for all terrestrial and aquatic lands of the state. [1997 c 353 § 24; 1975 1st ex.s. c 13 § 16.] 17.10.210 17.10.210 Quarantine of land—Order—Expense. (1) Whenever the director, the county noxious weed control board, or a weed district finds that a parcel of land is so seriously infested with class A or class B noxious weeds that control measures cannot be undertaken thereon without quarantining the land and restricting or denying access thereto or use thereof, the director, the county noxious weed control board, or weed district, with the approval of the director of the department of agriculture, may issue an order for the quarantine and restriction or denial of access or use. Upon issuance of the order, the director, the county noxious weed control board, or the weed district shall commence necessary control measures and may institute legal action for the collection of costs for control work, which may include attorneys’ fees and the costs of other appropriate actions. (2) An order of quarantine shall be served, by any method sufficient for the service of civil process, on all persons known to qualify as owners of the land within the meaning of this chapter. [Title 17 RCW—page 14] (3) The director shall, with the advice of the state noxious weed control board, determine how the expense of control work undertaken pursuant to this section, and the cost of any quarantine in connection therewith, is apportioned. [1997 c 353 § 25; 1987 c 438 § 22; 1969 ex.s. c 113 § 21.] 17.10.230 17.10.230 Violations—Penalty. Any owner knowing of the existence of any noxious weeds on the owner’s land who fails to control such weeds in accordance with this chapter and rules and regulations in force pursuant thereto; or any person who enters upon any land in violation of an order in force pursuant to RCW 17.10.210; or any person who interferes with the carrying out of the provisions of this chapter has committed a civil infraction. [1987 c 438 § 23; 1979 c 118 § 2; 1969 ex.s. c 113 § 23.] 17.10.235 17.10.235 Selling product, article, or feed containing noxious weed seeds or toxic weeds—Penalty—Rules— Inspections—Fees. (1) The director of agriculture shall adopt, with the advice of the state noxious weed control board, rules designating noxious weed seeds which shall be controlled in products, screenings, or articles to prevent the spread of noxious weeds. The rules shall identify the products, screenings, and articles in which the seeds must be controlled and the maximum amount of the seed to be permitted in the product, screenings, or article to avoid a hazard of spreading the noxious weed by seed from the product, screenings, or article. The director shall also adopt, with the advice of the state board, rules designating toxic weeds which shall be controlled in feed stuffs and screenings to prevent injury to the animal that consumes the feed. The rules shall identify the feed stuffs and screenings in which the toxic weeds must be controlled and the maximum amount of the toxic weed to be permitted in the feed. Rules developed under this section shall identify ways that products, screenings, articles, or feed stuffs containing noxious weed seeds or toxic weeds can be made available for beneficial uses. (2) Any person who knowingly or negligently sells or otherwise distributes a product, article, screenings, or feed stuff designated by rule containing noxious weed seeds or toxic weeds designated for control by rule and in an amount greater than the amount established by the director for the seed or weed by rule is guilty of a misdemeanor. (3) The department of agriculture shall, upon request of the buyer, inspect products, screenings, articles, or feed stuffs designated by rule and charge fees, in accordance with chapter 22.09 RCW, to determine the presence of designated noxious weed seeds or toxic weeds. [1997 c 353 § 26; 1987 c 438 § 30; 1979 c 118 § 4.] 17.10.240 17.10.240 Special assessments, appropriations for noxious weed control—Assessment rates. (1) The activated county noxious weed control board of each county shall annually submit a budget to the county legislative authority for the operating cost of the county’s weed program for the ensuing fiscal year: PROVIDED, That if the board finds the budget approved by the legislative authority is insufficient for an effective county noxious weed control program it shall petition the county legislative authority to hold a hearing as provided in RCW 17.10.890. Control of weeds is (2006 Ed.) Noxious Weeds—Control Boards a benefit to the lands within any such section. Funding for the budget is derived from any or all of the following: (a) The county legislative authority may, in lieu of a tax, levy an assessment against the land for this purpose. Prior to the levying of an assessment the county noxious weed control board shall hold a public hearing at which it will gather information to serve as a basis for classification and then classify the lands into suitable classifications, including but not limited to dry lands, range lands, irrigated lands, nonuse lands, forest lands, or federal lands. The board shall develop and forward to the county legislative authority, as a proposed level of assessment for each class, an amount as seems just. The assessment rate shall be either uniform per acre in its respective class or a flat rate per parcel rate plus a uniform rate per acre: PROVIDED, That if no benefits are found to accrue to a class of land, a zero assessment may be levied. The county legislative authority, upon receipt of the proposed levels of assessment from the board, after a hearing, shall accept or modify by resolution, or refer back to the board for its reconsideration all or any portion of the proposed levels of assessment. The amount of the assessment constitutes a lien against the property. The county legislative authority may by resolution or ordinance require that notice of the lien be sent to each owner of property for which the assessment has not been paid by the date it was due and that each lien created be collected by the treasurer in the same manner as delinquent real property tax, if within thirty days from the date the owner is sent notice of the lien, including the amount thereof, the lien remains unpaid and an appeal has not been made pursuant to RCW 17.10.180. Liens treated as delinquent taxes bear interest at the rate of twelve percent per annum and the interest accrues as of the date notice of the lien is sent to the owner: PROVIDED FURTHER, That any collections for the lien shall not be considered as tax; or (b) The county legislative authority may appropriate money from the county general fund necessary for the administration of the county noxious weed control program. In addition the county legislative authority may make emergency appropriations as it deems necessary for the implementation of this chapter. (2) Forest lands used solely for the planting, growing, or harvesting of trees and which are typified, except during a single period of five years following clear-cut logging, by canopies so dense as to prohibit growth of an understory may be subject to an annual noxious weed assessment levied by a county legislative authority that does not exceed one-tenth of the weighted average per acre noxious weed assessment levied on all other lands in unincorporated areas within the county that are subject to the weed assessment. This assessment shall be computed in accordance with the formula in subsection (3) of this section. (3) The calculation of the "weighted average per acre noxious weed assessment" is a ratio expressed as follows: (a) The numerator is the total amount of funds estimated to be collected from the per acre assessment on all lands except (i) forest lands as identified in subsection (2) of this section, (ii) lands exempt from the noxious weed assessment, and (iii) lands located in an incorporated area. (b) The denominator is the total acreage from which funds in (a) of this subsection are collected. For lands of less than one acre in size, the denominator calculation may be (2006 Ed.) 17.10.280 based on the following assumptions: (i) Unimproved lands are calculated as being one-half acre in size on the average, and (ii) improved lands are calculated as being one-third acre in size on the average. The county legislative authority may choose to calculate the denominator for lands of less than one acre in size using other assumptions about average parcel size based on local information. (4) For those counties that levy a per parcel assessment to help fund noxious weed control programs, the per parcel assessment on forest lands as defined in subsection (2) of this section shall not exceed one-tenth of the per parcel assessment on nonforest lands. [1997 c 353 § 27; 1995 c 374 § 77; 1987 c 438 § 31; 1975 1st ex.s. c 13 § 10; 1969 ex.s. c 113 § 24.] Effective date—1995 c 374 §§ 69, 70, and 72-79: See note following RCW 16.24.130. 17.10.250 17.10.250 Applications for noxious weed control funds. The legislative authority of any county with an activated noxious weed control board or the board of any weed district may apply to the director for noxious weed control funds when informed by the director that funds are available. Any applicant must employ adequate administrative personnel to supervise an effective weed control program as determined by the director with advice from the state noxious weed control board. The director with advice from the state noxious weed control board shall adopt rules on the distribution and use of noxious weed control account funds. [1997 c 353 § 28; 1987 c 438 § 32; 1975 1st ex.s. c 13 § 11; 1969 ex.s. c 113 § 25.] 17.10.260 17.10.260 Administrative powers to be exercised in conformity with administrative procedure act—Use of weed control substances subject to other acts. The administrative powers granted under this chapter to the director of the department of agriculture and to the state noxious weed control board shall be exercised in conformity with the provisions of the administrative procedure act, chapter 34.05 RCW, as now or hereafter amended. The use of any substance to control noxious weeds shall be subject to the provisions of the water pollution control act, chapter 90.48 RCW, as now or hereafter amended, the Washington pesticide control act, chapter 15.58 RCW, and the Washington pesticide application act, chapter 17.21 RCW. [1987 c 438 § 33; 1969 ex.s. c 113 § 28.] 17.10.270 17.10.270 Noxious weed control boards—Authority to obtain insurance or surety bonds. Each noxious weed control board may obtain such insurance or surety bonds, or both with such limits as they may deem reasonable for the purpose of protecting their officials and employees against liability for personal or bodily injuries and property damage arising from their acts or omissions while performing or in good faith purporting to perform their official duties. [1987 c 438 § 34; 1974 ex.s. c 143 § 5.] 17.10.280 17.10.280 Lien for labor, material, equipment used in controlling noxious weeds. Every activated county noxious weed control board performing labor, furnishing material, or renting, leasing or otherwise supplying equipment, to be used [Title 17 RCW—page 15] 17.10.290 Title 17 RCW: Weeds, Rodents, and Pests in the control of noxious weeds, or in causing control of noxious weeds, upon any property pursuant to the provisions of chapter 17.10 RCW has a lien upon such property for the labor performed, material furnished, or equipment supplied whether performed, furnished, or supplied with the consent of the owner, or his agent, of such property, or without the consent of said owner or agent. [1987 c 438 § 35; 1975 1st ex.s. c 13 § 13.] 17.10.290 17.10.290 Lien for labor, material, equipment used in controlling noxious weeds—Notice of lien. Every county noxious weed control board furnishing labor, materials, or supplies or renting, leasing, or otherwise supplying equipment to be used in the control of noxious weeds upon any property pursuant to RCW 17.10.160 and 17.10.170 or pursuant to an order under RCW 17.10.210 as now or hereafter amended, shall give to the owner or reputed owner or his agent a notice in writing, within ninety days from the date of the cessation of the performance of such labor, the furnishing of such materials, or the supplying of such equipment, which notice shall cover the labor, material, supplies, or equipment furnished or leased, as well as all subsequent labor, materials, supplies, or equipment furnished or leased, stating in substance and effect that such county noxious weed control board is furnishing or has furnished labor, materials and supplies or equipment for use thereon, with the name of the county noxious weed control board ordering the same, and that a lien may be claimed for all materials and supplies or equipment furnished by such county noxious weed control board for use thereon, which notice shall be given by mailing the same by registered or certified mail in an envelope addressed to the owner at his place of residence or reputed residence. [1987 c 438 § 36; 1975 1st ex.s. c 13 § 14.] 17.10.300 17.10.300 Lien for labor, material, equipment used in controlling noxious weeds—Claim—Filing—Contents. No lien created by RCW 17.10.280 exists, and no action to enforce the same shall be maintained, unless within ninety days from the date of cessation of the performance of the labor, furnishing of materials, or the supplying of equipment, a claim for the lien is filed for record as provided in this section, in the office of the county auditor of the county in which the property, or some part of the property to be affected by the claim for a lien, is situated. The claim shall state, as nearly as may be, the time of the commencement and cessation of performing the labor, furnishing the material, or supplying the equipment, the name of the county noxious weed control board that performed the labor or caused the labor to be performed, furnished the material, or supplied the equipment, a description of the property to be charged with the lien sufficient for identification, the name of the owner, or reputed owner if known, or his or her agent, and if the owner is not known, that fact shall be mentioned, the amount for which the lien is claimed, and shall be signed by the county noxious weed control board, and be verified by the oath of the county noxious weed control board, to the effect that the affiant believes that claim to be just; and the claim of lien may be amended in case of action brought to foreclose the same, by order of the court, as pleadings may be, insofar as the interest [Title 17 RCW—page 16] of third parties shall not be affected by such an amendment. [1997 c 353 § 29; 1975 1st ex.s. c 13 § 15.] 17.10.310 17.10.310 Notice of infraction—Issuance. The county noxious weed control board may issue a notice of civil infraction if after investigation it has reasonable cause to believe an infraction has been committed. A civil infraction may be issued pursuant to RCW 7.80.005, 7.80.070 through 7.80.110, 7.80.120 (3) and (4), and 7.80.130 through 7.80.900. [1997 c 353 § 30; 1987 c 438 § 24.] 17.10.350 17.10.350 Infraction—Penalty. (1) Any person found to have committed a civil infraction under this chapter shall be assessed a monetary penalty not to exceed one thousand dollars. The state noxious weed control board shall adopt a schedule of monetary penalties for each violation of this chapter classified as a civil infraction and submit the schedule to the appropriate court. If a monetary penalty is imposed by the court, the penalty is immediately due and payable. The court may, at its discretion, grant an extension of time, not to exceed thirty days, in which the penalty must be paid. (2) Failure to pay any monetary penalties imposed under this chapter is punishable as a misdemeanor. [2003 c 53 § 117; 1997 c 353 § 31; 1987 c 438 § 28.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 17.10.890 17.10.890 Deactivation of county noxious weed control board—Hearing. The following procedures shall be followed to deactivate a county noxious weed control board: (1) The county legislative authority holds a hearing to determine whether there continues to be a need for an activated county noxious weed control board if: (a) A petition is filed by one hundred registered voters within the county; (b) A petition is filed by a county noxious weed control board as provided in RCW 17.10.240; or (c) The county legislative authority passes a motion to hold such a hearing. (2) Except as provided in subsection (4) of this section, the hearing shall be held within sixty days of final action taken under subsection (1) of this section. (3) If, after a hearing, the county legislative authority determines that no need exists for a county noxious weed control board, due to the absence of class A or class B noxious weeds designated for control in the region, the county legislative authority shall deactivate the board. (4) The county legislative authority shall not convene a hearing as provided for in subsection (1) of this section more frequently than once a year. [1997 c 353 § 32; 1987 c 438 § 37.] 17.10.900 17.10.900 Weed districts—Continuation—Dissolution—Transfer of assessment funds. Any weed district formed under chapter 17.04 or 17.06 RCW prior to the enactment of this chapter, continues to operate under the provisions of the chapter under which it was formed: PROVIDED, That if ten percent of the landowners subject to any such weed district, and the county noxious weed control board upon its own motion, petition the county legislative (2006 Ed.) Agricultural Pest Districts authority for a dissolution of the weed district, the county legislative authority shall provide for an election to be conducted in the same manner as required for the election of directors under the provisions of chapter 17.04 RCW, to determine by majority vote of those casting votes, if the weed district will continue to operate under the chapter it was formed. The land area of any dissolved weed district becomes subject to the provisions of this chapter. Any district assessment funds may be transferred after the dissolution election under contract to the county noxious weed control board to fund the noxious weed control program. [1997 c 353 § 33; 1987 c 438 § 38; 1975 1st ex.s. c 13 § 12; 1969 ex.s. c 113 § 26.] 17.10.910 17.10.910 Severability—1969 ex.s. c 113. If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of this act, or the application of the provision to other persons or circumstances is not affected. [1969 ex.s. c 113 § 27.] Chapter 17.12 Chapter 17.12 RCW AGRICULTURAL PEST DISTRICTS Sections 17.12.010 17.12.020 17.12.030 17.12.040 17.12.050 17.12.060 17.12.080 17.12.100 Pest districts authorized. Petition—Notice—Hearing. Determination—Boundaries of district. Designation of district. Treasurer—Tax levies. Supervision of the district. Levies on state and county lands—Levies on state lands to be added to rental or purchase price. Limit of indebtedness. 17.12.050 such proposed district, whether all or any part of such county, and stating the purpose of such district, the board shall fix a time for the hearing of such petition and shall give at least thirty days notice of the time and place of such hearing by posting copies of such notice of the time and place of such hearing in three conspicuous places within the proposed district and posting one copy of such notice at the court house or place of business of the board, and also by mailing to each freeholder within the proposed district a copy of such notice, to his last known residence, if known, and if not known to the clerk of such board, then and in that event the posting shall be deemed sufficient: PROVIDED, HOWEVER, If the board shall deem it impractical to mail notices to each freeholder, within the proposed district, or if the post office address of all the freeholders are not known, then in that event when recited in a resolution adopted by the board, the notice in addition to posting, shall be published once a week for three successive weeks in the county official paper if there is such, and if there be no official paper, then in some paper published in said county, and if there be no paper published in said county, then in some paper of general circulation within the proposed district. The persons in whose name the property is assessed shall be deemed the owners thereof for the purpose of notice as herein required: PROVIDED, HOWEVER, That for lands belonging to the state, the commissioner of public lands shall be notified, and for lands belonging to the county, the county auditor shall be notified, and if such lands are under lease or conditional sale the lessee or purchaser shall also be notified in the manner above provided. Any person interested may appear at the time of such hearing and may under such rules and regulations as the board may prescribe give his or her reasons for or objections to the creation of such a district. [1919 c 152 § 2; RRS § 2802.] 17.12.010 17.12.010 Pest districts authorized. For the purpose of destroying or exterminating squirrels, prairie dogs, gophers, moles or other rodents, or of rabbits or any predatory animals that destroy or interfere with the crops, fruit trees, shrubs, valuable plants, fodder, seeds or other agricultural plants or products, thing or pest injurious to any agricultural plant or product, or to prevent the introduction, propagation, growth or increase in number of any of the above described animals, or rodents, the board of county commissioners of any county may create a pest district or pest districts within such county and may enlarge any district containing a lesser territory than the whole county, or reduce any district already created, or combine or consolidate districts or divide, or create new districts from time to time in the manner hereinafter set forth. [1919 c 152 § 1; RRS § 2801.] 17.12.020 17.12.020 Petition—Notice—Hearing. Whenever ten or more resident freeholders in any county petition the board of county commissioners, asking that their lands be included, either separately or with other lands designated in the petition in a district to be formed for the purpose of preventing, destroying, or exterminating any of the animals, rodents or other such things described in RCW 17.12.010, or that such lands be included within a district already formed by the enlargement of such district, or a new district or districts be formed out of a district or districts then in existence or out of territory partly in districts already formed and not included in any district, and such petition indicating the boundaries of (2006 Ed.) 17.12.030 17.12.030 Determination—Boundaries of district. Upon the hearing of such petition the board shall determine whether such a district shall be created and shall fix the boundaries thereof, but shall not enlarge the boundaries of proposed districts or enlarge or change the boundary or boundaries of any district or districts already formed without first giving the notice to all parties interested as provided in RCW 17.12.020. [1919 c 152 § 3; RRS § 2803.] 17.12.040 17.12.040 Designation of district. If the board shall deem the interests of the county or of any particular section thereof will be benefited by the creation of such a district or districts, or the changing thereof, it shall make a record thereof upon the minutes of the board and shall designate such territory in each such district as "Pest District . . . . . . for . . . . . . County". [1919 c 152 § 4; RRS § 2804.] 17.12.050 17.12.050 Treasurer—Tax levies. The county treasurer shall be ex officio treasurer for each of such districts so formed and the county assessor and other county officers shall take notice of the formation of such district or districts and shall be governed thereby according to the provisions of this chapter. The assessment or the tax levies as hereinafter provided for shall be extended on the tax rolls against the property liable therefor the same as other assessments or taxes are extended, and shall become a part of the general tax [Title 17 RCW—page 17] 17.12.060 Title 17 RCW: Weeds, Rodents, and Pests against such property and be collected and accounted for the same as other taxes are, with the terms and penalties attached thereto. The moneys so collected shall be held and disbursed as a special fund for such district and shall be paid out only on warrant issued by the county auditor upon voucher approved by the board of county commissioners. [1919 c 152 § 5; RRS § 2805.] 17.12.060 17.12.060 Supervision of the district. The agricultural expert in counties having an agricultural expert, shall under the direction of Washington State University have general supervision of the methods and means of preventing, destroying or exterminating any animals or rodents as herein mentioned within his county, and of how the funds of any pest district shall be expended to best accomplish the purposes for which such funds were raised; in counties having no such agricultural expert each county commissioner shall be within his respective commissioner district, ex officio supervisor, or the board may designate some such person to so act, and shall fix his compensation therefor. Whenever any member of the board shall act as supervisor he shall be entitled to his actual expenses and his per diem as county commissioner the same as if he were doing other county business. [1977 ex.s. c 169 § 4; 1919 c 152 § 6; RRS § 2806.] Reviser’s note: The law authorizing the employment of agricultural experts was 1913 c 18 as amended by 1919 c 193 but since repealed by 1949 c 181 which authorizes cooperative extension work in agriculture and home economics. See RCW 36.50.010. Severability—Nomenclature—Savings—1977 ex.s. c 169: See notes following RCW 28B.10.016. 17.12.080 17.12.080 Levies on state and county lands—Levies on state lands to be added to rental or purchase price. Whenever there shall be included within any pest district lands belonging to the state or to the county the board of county commissioners shall determine the amount of the tax or assessment for which such land would be liable if the same were in private ownership for each subdivision of forty acres or fraction thereof. The assessor shall transmit to the county commissioners a statement of the amounts so due from county lands and the county commissioners shall appropriate from the current expense fund of the county sufficient money to pay such amounts. A statement of the amounts due from state lands within each county shall be annually forwarded to the commissioner of public lands who shall examine the same and if he finds the same correct and that the determination was made according to law, he shall certify the same and issue a warrant for the payment of same against any funds in the state treasury appropriated for such purposes. The commissioner of public lands shall keep a record of the amounts so paid on account of any state lands which are under lease or contract of sale and such amounts shall be added to and become a part of the annual rental or purchase price of the land, and shall be paid annually at the time of payment of rent or payment of interest or purchase price of such land. When such amounts shall be collected by the commissioner of public lands it shall be paid into the general fund in the state treasury. [1973 c 106 § 11; 1919 c 152 § 8; RRS § 2808. Formerly RCW 17.12.080 and 17.12.090.] [Title 17 RCW—page 18] 17.12.100 17.12.100 Limit of indebtedness. No district shall be permitted to contract obligations in excess of the estimated revenues for the two years next succeeding the incoming [incurring] of such indebtedness and it shall be unlawful for the county commissioners to approve of any bills which will exceed the revenue to any district which shall be estimated to be received by such district during the next two years. [1919 c 152 § 9; RRS § 2809.] County budget as limitation on incurring liability: RCW 36.40.100. Chapter 17.15 Chapter 17.15 RCW INTEGRATED PEST MANAGEMENT Sections 17.15.005 17.15.010 17.15.020 17.15.030 17.15.040 Legislative declaration. Definitions. Implementation of integrated pest management practices. Integrated pest management training—Designated coordinator—Representation on interagency coordinating committee. Interagency integrated pest management coordinating committee—Creation—Composition—Duties—Public notice— Progress reports. 17.15.005 17.15.005 Legislative declaration. The legislature declares that it is the policy of the state of Washington to require all state agencies that have pest control responsibilities to follow the principles of integrated pest management. [1997 c 357 § 1.] 17.15.010 17.15.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise: (1) "Integrated pest management" means a coordinated decision-making and action process that uses the most appropriate pest control methods and strategy in an environmentally and economically sound manner to meet agency programmatic pest management objectives. The elements of integrated pest management include: (a) Preventing pest problems; (b) Monitoring for the presence of pests and pest damage; (c) Establishing the density of the pest population, that may be set at zero, that can be tolerated or correlated with a damage level sufficient to warrant treatment of the problem based on health, public safety, economic, or aesthetic thresholds; (d) Treating pest problems to reduce populations below those levels established by damage thresholds using strategies that may include biological, cultural, mechanical, and chemical control methods and that must consider human health, ecological impact, feasibility, and cost-effectiveness; and (e) Evaluating the effects and efficacy of pest treatments. (2) "Pest" means, but is not limited to, any insect, rodent, nematode, snail, slug, weed, and any form of plant or animal life or virus, except virus, bacteria, or other microorganisms on or in a living person or other animal or in or on processed food or beverages or pharmaceuticals, which is normally considered to be a pest, or which the director of the department of agriculture may declare to be a pest. [1997 c 357 § 2.] (2006 Ed.) Washington Pesticide Application Act 17.15.020 17.15.020 Implementation of integrated pest management practices. Each of the following state agencies or institutions shall implement integrated pest management practices when carrying out the agency’s or institution’s duties related to pest control: (1) The department of agriculture; (2) The state noxious weed control board; (3) The department of ecology; (4) The department of fish and wildlife; (5) The department of transportation; (6) The parks and recreation commission; (7) The department of natural resources; (8) The department of corrections; (9) The department of general administration; and (10) Each state institution of higher education, for the institution’s own building and grounds maintenance. [1997 c 357 § 3.] 17.15.030 17.15.030 Integrated pest management training— Designated coordinator—Representation on interagency coordinating committee. (1) A state agency or institution listed in RCW 17.15.020 shall provide integrated pest management training for employees responsible for pest management. The training programs shall be developed in cooperation with the interagency integrated pest management coordinating committee created under RCW 17.15.040. (2) A state agency or institution listed in RCW 17.15.020 shall designate an integrated pest management coordinator and the department of labor and industries and the office of the superintendent of public instruction shall each designate one representative to serve on the committee established in RCW 17.15.040. [1997 c 357 § 4.] 17.15.040 17.15.040 Interagency integrated pest management coordinating committee—Creation—Composition— Duties—Public notice—Progress reports. (1) The interagency integrated pest management coordinating committee is created. The committee is composed of the integrated pest management coordinator from each agency or institution listed under RCW 17.15.020 and the representatives designated under RCW 17.15.030. The coordinator from the department of agriculture shall serve as chair of the committee. (2) The interagency integrated pest management coordinating committee shall share information among the state agencies and institutions and facilitate interagency coordination. (3) The interagency integrated pest management coordinating committee shall meet at least two times a year. All meetings of the committee must be open to the public. The committee shall give public notice of each meeting. (4) By November 30th of each odd-numbered year up to and including November 30th, 2001, the department of agriculture, with the advice of the interagency integrated pest management coordinating committee, shall prepare a report on the progress of integrated pest management programs. The report is to be made available through the state library and placed on the legislative alert list. [1997 c 357 § 5.] (2006 Ed.) 17.21.010 Chapter 17.21 RCW WASHINGTON PESTICIDE APPLICATION ACT Chapter 17.21 Sections 17.21.010 17.21.020 17.21.030 17.21.040 17.21.050 17.21.060 17.21.065 17.21.070 17.21.080 17.21.091 17.21.100 17.21.110 17.21.122 17.21.126 17.21.128 17.21.129 17.21.130 17.21.132 17.21.134 17.21.140 17.21.150 17.21.160 17.21.170 17.21.180 17.21.190 17.21.200 17.21.203 17.21.220 17.21.230 17.21.240 17.21.250 17.21.260 17.21.270 17.21.280 17.21.290 17.21.300 17.21.305 17.21.310 17.21.315 17.21.320 17.21.340 17.21.350 17.21.400 17.21.410 17.21.415 17.21.420 17.21.430 17.21.440 17.21.900 17.21.920 17.21.930 17.21.931 17.21.932 17.21.933 Declaration of police power and purpose. Definitions. Director’s authority—Rules. Rules subject to administrative procedure act. Hearings—Administrative procedure act. Subpoenas—Witness fees. Classification of licenses. Commercial pesticide applicator license—Requirements. Commercial pesticide applicator license—Application— Form. Commercial pesticide applicator license—Persons who may apply under license authority. Recordkeeping by licensees and agricultural users. Commercial pesticide operator license—Requirements. Private-commercial pesticide applicator license—Requirements. Private applicator, limited private applicator, or rancher private applicator—Requirements—Application for license— Fees. Renewal of certificate or license—Recertification standards. Demonstration and research license—Requirements. Revocation, suspension, or denial. License, certification—Applications—Expiration dates. Licenses—Examination requirements. Renewal—Delinquency. Violation of chapter—Unlawful acts. Commercial pesticide applicator license—Financial responsibility. Commercial pesticide applicator license—Amount of bond or insurance required—Notice of reduction or cancellation by surety or insurer. Commercial pesticide applicator license—Suspension of license for failure to meet financial responsibility criteria. Damages due to use or application of pesticide—Report of loss required. Commercial pesticide applicator license—Exemptions. Government research personnel—Requirements. Application of chapter to governmental entities—Public operator license required—Exemption—Liability. Pesticide advisory board. Pesticide advisory board—Vacancies. Pesticide advisory board—Duties. Pesticide advisory board—Officers, meetings. Pesticide advisory board—Travel expenses. Disposition of revenue, enforcement of chapter—District court fees, fines, penalties and forfeitures. Pesticide application apparatuses—License plate as identification. Agreements with other governmental entities. Licensing by cities of first class and counties. General penalty. Civil penalty for failure to comply with chapter. Access to public or private premises—Search warrants—Prosecuting attorney’s duties—Injunctions. Violation of chapter—Remedies. Report to legislature. Landscape or right of way applications—Notice. Landscape applications—Marking of property, posting requirements. Schools—Policies and methods—Notification—Records— Liability. Pesticide-sensitive individuals—List procedure. Pesticide-sensitive individuals—Notification. Agricultural workers and handlers of agricultural pesticides— Coordination of regulation and enforcement with department of labor and industries. Preexisting liabilities not affected. Short title. Severability—1961 c 249. Severability—1967 c 177. Severability—1979 c 92. Severability—1989 c 380. 17.21.010 Declaration of police power and purpose. The application and the control of the use of various pesticides is important and vital to the maintenance of a high level of public health and welfare both immediate and future, and 17.21.010 [Title 17 RCW—page 19] 17.21.020 Title 17 RCW: Weeds, Rodents, and Pests is hereby declared to be affected with the public interest. The provisions of this chapter are enacted in the exercise of the police power of the state for the purpose of protecting the immediate and future health and welfare of the people of the state. [1967 c 177 § 1; 1961 c 249 § 1.] Washington pesticide control act: Chapter 15.58 RCW. 17.21.020 17.21.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Agricultural commodity" means any plant or part of a plant, or animal, or animal product, produced by a person (including farmers, ranchers, vineyardists, plant propagators, Christmas tree growers, aquaculturists, floriculturists, orchardists, foresters, or other comparable persons) primarily for sale, consumption, propagation, or other use by people or animals. (2) "Agricultural land" means land on which an agricultural commodity is produced or land that is in a governmentrecognized conservation reserve program. This definition does not apply to private gardens where agricultural commodities are produced for personal consumption. (3) "Antimicrobial pesticide" means a pesticide that is used for the control of microbial pests, including but not limited to viruses, bacteria, algae, and protozoa, and is intended for use as a disinfectant or sanitizer. (4) "Apparatus" means any type of ground, water, or aerial equipment, device, or contrivance using motorized, mechanical, or pressurized power and used to apply any pesticide on land and anything that may be growing, habitating, or stored on or in such land, but shall not include any pressurized handsized household device used to apply any pesticide, or any equipment, device, or contrivance of which the person who is applying the pesticide is the source of power or energy in making such pesticide application, or any other small equipment, device, or contrivance that is transported in a piece of equipment licensed under this chapter as an apparatus. (5) "Arthropod" means any invertebrate animal that belongs to the phylum arthropoda, which in addition to insects, includes allied classes whose members are wingless and usually have more than six legs; for example, spiders, mites, ticks, centipedes, and isopod crustaceans. (6) "Certified applicator" means any individual who is licensed as a commercial pesticide applicator, commercial pesticide operator, public operator, private-commercial applicator, demonstration and research applicator, private applicator, limited private applicator, rancher private applicator, or any other individual who is certified by the director to use or supervise the use of any pesticide which is classified by the EPA or the director as a restricted use pesticide. (7) "Commercial pesticide applicator" means any person who engages in the business of applying pesticides to the land of another. (8) "Commercial pesticide operator" means any employee of a commercial pesticide applicator who uses or supervises the use of any pesticide and who is required to be licensed under provisions of this chapter. [Title 17 RCW—page 20] (9) "Defoliant" means any substance or mixture of substances intended to cause the leaves or foliage to drop from a plant with or without causing abscission. (10) "Department" means the Washington state department of agriculture. (11) "Desiccant" means any substance or mixture of substances intended to artificially accelerate the drying of plant tissues. (12) "Device" means any instrument or contrivance intended to trap, destroy, control, repel, or mitigate pests, but not including equipment used for the application of pesticides when sold separately from the pesticides. (13) "Direct supervision" by certified private applicators shall mean that the designated restricted use pesticide shall be applied for purposes of producing any agricultural commodity on land owned or rented by the applicator or the applicator’s employer, by a competent person acting under the instructions and control of a certified private applicator who is available if and when needed, even though such certified private applicator is not physically present at the time and place the pesticide is applied. The certified private applicator shall have direct management responsibility and familiarity of the pesticide, manner of application, pest, and land to which the pesticide is being applied. Direct supervision by all other certified applicators means direct on-the-job supervision and shall require that the certified applicator be physically present at the application site and that the person making the application be in voice and visual contact with the certified applicator at all times during the application. However, direct supervision for forest application does not require constant voice and visual contact when general use pesticides are applied using nonapparatus type equipment, the certified applicator is physically present and readily available in the immediate application area, and the certified applicator directly observes pesticide mixing and batching. Direct supervision of an aerial apparatus means the pilot of the aircraft must be appropriately certified. (14) "Director" means the director of the department or a duly authorized representative. (15) "Engage in business" means any application of pesticides by any person upon lands or crops of another. (16) "EPA" means the United States environmental protection agency. (17) "EPA restricted use pesticide" means any pesticide classified for restricted use by the administrator, EPA. (18) "FIFRA" means the federal insecticide, fungicide and rodenticide act as amended (61 Stat. 163, 7 U.S.C. Sec. 136 et seq.). (19) "Forest application" means the application of pesticides to agricultural land used to grow trees for the commercial production of wood or wood fiber for products such as dimensional lumber, shakes, plywood, poles, posts, pilings, particle board, hardboard, oriented strand board, pulp, paper, cardboard, or other similar products. (20) "Fumigant" means any pesticide product or combination of products that is a vapor or gas or forms a vapor or gas on application and whose method of pesticidal action is through the gaseous state. (21) "Fungi" means all nonchlorophyll-bearing thallophytes (all nonchlorophyll-bearing plants of lower order than mosses and liverworts); for example, rusts, smuts, mildews, (2006 Ed.) Washington Pesticide Application Act molds, and yeasts, except those on or in a living person or other animals. (22) "Fungicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any fungi. (23) "Herbicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any weed or other higher plant. (24) "Immediate service call" means a landscape application to satisfy an emergency customer request for service, or a treatment to control a pest to landscape plants. (25) "Insect" means any small invertebrate animal, in any life stage, whose adult form is segmented and which generally belongs to the class insecta, comprised of six-legged, usually winged forms, as, for example, beetles, bugs, bees, and flies. The term insect shall also apply to other allied classes of arthropods whose members are wingless and usually have more than six legs, for example, spiders, mites, ticks, centipedes, and isopod crustaceans. (26) "Insecticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any insect. (27) "Land" means all land and water areas, including airspace and all plants, animals, structures, buildings, devices, and contrivances, appurtenant to or situated on, fixed or mobile, including any used for transportation. (28) "Landscape application" means an application of any EPA registered pesticide to any exterior landscape area around residential property, commercial properties such as apartments or shopping centers, parks, golf courses, schools including nursery schools and licensed day cares, or cemeteries or similar areas. This definition shall not apply to: (a) Applications made by private applicators, limited private applicators, or rancher private applicators; (b) mosquito abatement, gypsy moth eradication, or similar wide-area pest control programs sponsored by governmental entities; and (c) commercial pesticide applicators making structural applications. (29) "Limited private applicator" means a certified applicator who uses or is in direct supervision, as defined for private applicators in this section, of the use of any herbicide classified by the EPA or the director as a restricted use pesticide, for the sole purpose of controlling weeds on nonproduction agricultural land owned or rented by the applicator or the applicator’s employer. Limited private applicators may also use restricted use pesticides on timber areas, excluding aquatic sites, to control weeds designated for mandatory control under chapters 17.04, 17.06, and 17.10 RCW and state and local regulations adopted under chapters 17.04, 17.06, and 17.10 RCW. A limited private applicator may apply restricted use herbicides to the types of land described in this subsection of another person if applied without compensation other than trading of personal services between the applicator and the other person. This license is only valid when making applications in counties of Washington located east of the crest of the Cascade mountains. (30) "Limited production agricultural land" means land used to grow hay and grain crops that are consumed by the livestock on the farm where produced. No more than ten percent of the hay and grain crops grown on limited production (2006 Ed.) 17.21.020 agricultural land may be sold each crop year. Limited production agricultural land does not include aquatic sites. (31) "Nematocide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate nematodes. (32) "Nematode" means any invertebrate animal of the phylum nemathelminthes and class nematoda, that is, unsegmented round worms with elongated, fusiform, or saclike bodies covered with cuticle, and inhabiting soil, water, plants or plant parts. Nematodes may also be called nemas or eelworms. (33) "Nonproduction agricultural land" means pastures, rangeland, fencerows, and areas around farm buildings but not aquatic sites. (34) "Person" means any individual, partnership, association, corporation, or organized group of persons whether or not incorporated. (35) "Pest" means, but is not limited to, any insect, rodent, nematode, snail, slug, weed, and any form of plant or animal life or virus, except virus, bacteria, or other microorganisms on or in a living person or other animal or in or on processed food or beverages or pharmaceuticals, which is normally considered to be a pest, or which the director may declare to be a pest. (36) "Pesticide" means, but is not limited to: (a) Any substance or mixture of substances intended to prevent, destroy, control, repel, or mitigate any pest; (b) Any substance or mixture of substances intended to be used as a plant regulator, defoliant or desiccant; and (c) Any spray adjuvant as defined in RCW 15.58.030. (37) "Pesticide advisory board" means the pesticide advisory board as provided for in this chapter. (38) "Plant regulator" means any substance or mixture of substances intended through physiological action, to accelerate or retard the rate of growth or maturation, or to otherwise alter the behavior of ornamental or crop plants or their produce, but shall not include substances insofar as they are intended to be used as plant nutrients, trace elements, nutritional chemicals, plant inoculants, or soil amendments. (39) "Private applicator" means a certified applicator who uses or is in direct supervision of the use of any pesticide classified by the EPA or the director as a restricted use pesticide, for the purposes of producing any agricultural commodity and for any associated noncrop application on land owned or rented by the applicator or the applicator’s employer or if applied without compensation other than trading of personal services between producers of agricultural commodities on the land of another person. (40) "Private-commercial applicator" means a certified applicator who uses or supervises the use of any pesticide classified by the EPA or the director as a restricted use pesticide for purposes other than the production of any agricultural commodity on lands owned or rented by the applicator or the applicator’s employer. (41) "Rancher private applicator" means a certified applicator who uses or is in direct supervision, as defined for private applicators in this section, of the use of any herbicide or any rodenticide classified by the EPA or the director as a restricted use pesticide for the purpose of controlling weeds and pest animals on nonproduction agricultural land and limited production agricultural land owned or rented by the [Title 17 RCW—page 21] 17.21.030 Title 17 RCW: Weeds, Rodents, and Pests applicator or the applicator’s employer. Rancher private applicators may also use restricted use pesticides on timber areas, excluding aquatic sites, to control weeds designated for mandatory control under chapters 17.04, 17.06, and 17.10 RCW and state and local regulations adopted under chapters 17.04, 17.06, and 17.10 RCW. A rancher private applicator may apply restricted use herbicides and rodenticides to the types of land described in this subsection of another person if applied without compensation other than trading of personal services between the applicator and the other person. This license is only valid when making applications in counties of Washington located east of the crest of the Cascade mountains. (42) "Residential property" includes property less than one acre in size zoned as residential by a city, town, or county, but does not include property zoned as agricultural or agricultural homesites. (43) "Restricted use pesticide" means any pesticide or device which, when used as directed or in accordance with a widespread and commonly recognized practice, the director determines, subsequent to a hearing, requires additional restrictions for that use to prevent unreasonable adverse effects on the environment including people, lands, beneficial insects, animals, crops, and wildlife, other than pests. (44) "Rodenticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate rodents, or any other vertebrate animal which the director may declare by rule to be a pest. (45) "School facility" means any facility used for licensed day care center purposes or for the purposes of a public kindergarten or public elementary or secondary school. School facility includes the buildings or structures, playgrounds, landscape areas, athletic fields, school vehicles, or any other area of school property. (46) "Snails or slugs" include all harmful mollusks. (47) "Unreasonable adverse effects on the environment" means any unreasonable risk to people or the environment taking into account the economic, social, and environmental costs and benefits of the use of any pesticide, or as otherwise determined by the director. (48) "Weed" means any plant which grows where it is not wanted. [2004 c 100 § 1; 2002 c 122 § 2; (2002 c 122 § 1 expired July 1, 2002); 2001 c 333 § 1; 1994 c 283 § 1; 1992 c 176 § 1; 1989 c 380 § 33; 1979 c 92 § 1; 1971 ex.s. c 191 § 1; 1967 c 177 § 2; 1961 c 249 § 2.] Effective date—2004 c 100: "This act takes effect January 1, 2005." [2004 c 100 § 7.] Effective dates—2002 c 122: "(1) Section 1 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 26, 2002]. (2) Section 2 of this act takes effect July 1, 2002." [2002 c 122 § 3.] Expiration date—2002 c 122 § 1: "Section 1 of this act expires July 1, 2002." [2002 c 122 § 4.] Effective date—2001 c 333: "Except for *section 7 of this act, this act takes effect July 1, 2002." [2001 c 333 § 6.] *Reviser’s note: Section 7 of this act was vetoed. 17.21.030 Director’s authority—Rules. The director shall administer and enforce the provisions of this chapter and rules adopted under this chapter. (1) The director may adopt rules: 17.21.030 [Title 17 RCW—page 22] (a) Governing the loading, mixing, application and use, or prohibiting the loading, mixing, application, or use of any pesticide; (b) Governing the time when, and the conditions under which restricted use pesticides shall or shall not be used in different areas as prescribed by the director in the state; (c) Providing that any or all restricted use pesticides shall be purchased, possessed or used only under permit of the director and under the director’s direct supervision in certain areas and/or under certain conditions or in certain quantities of concentrations; however, any person licensed to sell such pesticides may purchase and possess such pesticides without a permit; (d) Establishing recordkeeping requirements for licensees, permittees, and certified applicators; (e) Fixing and collecting examination fees and fees for recertification course sponsorship; (f) Establishing testing procedures, licensing classifications, and requirements for licenses and permits, and criteria for assigning recertification credit to and procedures for department approval of courses as provided by this chapter; (g) Concerning training by employers for employees who mix and load pesticides; (h) Concerning minimum performance standards for spray boom and nozzles used in pesticide applications to minimize spray drift and establishing a list of approved spray nozzles that meet these standards; and (i) Fixing and collecting permit fees. (2) The director may adopt any other rules necessary to carry out the purpose and provisions of this chapter. [1994 c 283 § 2; 1989 c 380 § 34; 1987 c 45 § 26; 1979 c 92 § 2; 1961 c 249 § 3.] Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 17.21.040 17.21.040 Rules subject to administrative procedure act. All rules adopted under the provisions of this chapter shall be subject to the provisions of chapter 34.05 RCW as enacted or hereafter amended, concerning the adoption of rules. [1989 c 380 § 35; 1961 c 249 § 4.] 17.21.050 17.21.050 Hearings—Administrative procedure act. All hearings for the imposition of a civil penalty and/or the suspension, denial, or revocation of a license, certification, or permit issued under the provisions of this chapter shall be subject to the provisions of chapter 34.05 RCW concerning adjudicative proceedings. [1994 c 283 § 3. Prior: 1989 c 380 § 36; 1989 c 175 § 58; 1985 c 158 § 4; 1961 c 249 § 5.] Effective date—1989 c 175: See note following RCW 34.05.010. 17.21.060 17.21.060 Subpoenas—Witness fees. The director may issue subpoenas to compel the attendance of witnesses and/ or production of books, documents, and records anywhere in the state in any hearing affecting the authority or privilege granted by a license, certification, or permit issued under the provisions of this chapter. Witnesses shall be entitled to fees for attendance and travel as provided for in chapter 2.40 RCW as enacted or hereafter amended. [1994 c 283 § 4; 1961 c 249 § 6.] (2006 Ed.) Washington Pesticide Application Act 17.21.065 17.21.065 Classification of licenses. The director may classify licenses to be issued under the provisions of this chapter. These classifications may include but are not limited to pest control operators, ornamental sprayers, agricultural crop sprayers or right of way sprayers; separate classifications may be specified as to ground, aerial, or manual methods used by any licensee to apply pesticides. Each such classification shall be subject to separate testing procedures and requirements. No person shall be required to pay an additional license fee if such person desires to be licensed in one or all of the license classifications provided for by the director under the authority of this section, except as provided for in RCW 17.21.110. [1994 c 283 § 5; 1967 c 177 § 17.] 17.21.070 17.21.070 Commercial pesticide applicator license— Requirements. It shall be unlawful for any person to engage in the business of applying pesticides to the land of another without a commercial pesticide applicator license. Application for a commercial applicator license shall be accompanied by a fee of one hundred seventy dollars and in addition a fee of twenty dollars for each apparatus, exclusive of one, used by the applicant in the application of pesticides: PROVIDED, That the provisions of this section shall not apply to any person employed only to operate any apparatus used for the application of any pesticide, and in which such person has no financial interest or other control over such apparatus other than its day to day mechanical operation for the purpose of applying any pesticide. [1997 c 242 § 11; 1994 c 283 § 6; 1993 sp.s. c 19 § 4; 1991 c 109 § 30; 1989 c 380 § 37; 1981 c 297 § 21; 1967 c 177 § 3; 1961 c 249 § 7.] Effective date—1997 c 242: See note following RCW 15.58.070. Severability—1981 c 297: See note following RCW 15.36.201. 17.21.080 17.21.080 Commercial pesticide applicator license— Application—Form. Application for a commercial pesticide applicator license provided for in RCW 17.21.070 shall be on a form prescribed by the director. (1) The application shall include the following information: (a) The full name of the individual applying for such license. (b) The full name of the business the individual represents with the license. (c) If the applicant is an individual, receiver, trustee, firm, partnership, association, corporation, or any other organized group of persons whether incorporated or not, the full name of each member of the firm or partnership, or the names of the officers of the association, corporation or group. (d) The principal business address of the applicant in the state or elsewhere. (e) The name of a person whose domicile is in the state, and who is authorized to receive and accept services of summons and legal notice of all kinds for the applicant. (f) The model, make, horsepower, and size of any apparatus used by the applicant to apply pesticides. (g) License classification or classifications for which the applicant is applying. (2006 Ed.) 17.21.100 (h) A list of the names of individuals allowed to apply pesticides under the authority of the commercial applicator’s license. (i) Any other necessary information prescribed by the director. (2) Any changes to the information provided on the prescribed commercial applicator form shall be reported by the business to the department within thirty days of the change. [1994 c 283 § 7; 1989 c 380 § 38; 1967 c 177 § 4; 1961 c 249 § 8.] 17.21.091 17.21.091 Commercial pesticide applicator license— Persons who may apply under license authority. (1) No commercial pesticide applicator shall allow a person to apply pesticides under the authority of the commercial pesticide applicator’s license unless the commercial pesticide applicator has, by mail or facsimile transmissions, submitted the name to the department on a form prescribed by the department as provided in RCW 17.21.080(2). The department shall maintain a list for each commercial pesticide applicator of persons authorized to apply pesticides under the authority of the commercial pesticide applicator’s license. (2) Violations of this chapter by a person acting as an employee, agent, or otherwise acting on behalf of or under the license authority of a commercial pesticide applicator, may, in the discretion of the department, be treated as a violation by the commercial pesticide applicator. [1994 c 283 § 8.] 17.21.100 17.21.100 Recordkeeping by licensees and agricultural users. (1) Certified applicators licensed under the provisions of this chapter, persons required to be licensed under this chapter, all persons applying pesticides to more than one acre of agricultural land in a calendar year, including public entities engaged in roadside spraying of pesticides, and all other persons making landscape applications of pesticides to types of property listed in RCW 17.21.410(1) (b), (c), (d), and (e), shall keep records for each application which shall include the following information: (a) The location of the land where the pesticide was applied; (b) The year, month, day and beginning and ending time of the application of the pesticide each day the pesticide was applied; (c) The product name used on the registered label and the United States environmental protection agency registration number, if applicable, of the pesticide which was applied; (d) The crop or site to which the pesticide was applied; (e) The amount of pesticide applied per acre or other appropriate measure; (f) The concentration of pesticide that was applied; (g) The number of acres, or other appropriate measure, to which the pesticide was applied; (h) The licensed applicator’s name, address, and telephone number and the name of the individual or individuals making the application and their license number, if applicable; (i) The direction and estimated velocity of the wind during the time the pesticide was applied. This subsection (i) [Title 17 RCW—page 23] 17.21.110 Title 17 RCW: Weeds, Rodents, and Pests shall not apply to applications of baits in bait stations and pesticide applications within structures; and (j) Any other reasonable information required by the director in rule. (2)(a) The required information shall be recorded on the same day that a pesticide is applied. (b) A commercial pesticide applicator who applies a pesticide to an agricultural crop or agricultural lands shall provide a copy of the records required under subsection (1) of this section for the application to the owner, or to the lessee if applied on behalf of the lessee, of the lands to which the pesticide is applied. Records provided by a commercial pesticide applicator to the owner or lessee of agricultural lands under this subsection need not be provided on a form adopted by the department. (3) The records required under this section shall be maintained and preserved by the licensed pesticide applicator or such other person or entity applying the pesticides for no less than seven years from the date of the application of the pesticide to which such records refer. If the pesticide was applied by a commercial pesticide applicator to the agricultural crop or agricultural lands of a person who employs one or more employees, as "employee" is defined in RCW 49.70.020, the records shall also be kept by the employer for a period of seven years from the date of the application of the pesticide to which the records refer. (4)(a) The pesticide records shall be readily accessible to the department for inspection. Copies of the records shall be provided on request to: The department; the department of labor and industries; treating health care personnel initiating diagnostic testing or therapy for a patient with a suspected case of pesticide poisoning; the department of health; the pesticide incident reporting and tracking review panel; and, in the case of an industrial insurance claim filed under Title 51 RCW with the department of labor and industries, the employee or the employee’s designated representative. In addition, the director may require the submission of the records on a routine basis within thirty days of the application of any restricted use pesticide in prescribed areas controlling the use of the restricted use pesticide. When a request for records is made under this subsection by treating health care personnel and the record is required for determining treatment, copies of the record shall be provided immediately. For all other requests, copies of the record shall be provided within seventy-two hours. (b) Copies of records provided to a person or entity under this subsection (4) shall, if so requested, be provided on a form adopted under subsection (7) of this section. Information for treating health care personnel shall be made immediately available by telephone, if requested, with a copy of the records provided within twenty-four hours. (5) If a request for a copy of the record is made under this section from an applicator referred to in subsection (1) of this section and the applicator refuses to provide a copy, the requester may notify the department of the request and the applicator’s refusal. Within seven working days, the department shall request that the applicator provide the department with all pertinent copies of the records, except that in a medical emergency the request shall be made within two working days. The applicator shall provide copies of the records to the [Title 17 RCW—page 24] department within twenty-four hours after the department’s request. (6) The department shall include inspection of the records required under this section as part of any on-site inspection conducted under this chapter on agricultural lands. The inspection shall determine whether the records are readily transferable to a form adopted by the department and are readily accessible to employees. However, no person subject to a department inspection may be inspected under this subsection (6) more than once in any calendar year, unless a previous inspection has found recordkeeping violations. If recordkeeping violations are found, the department may conduct reasonable multiple inspections, pursuant to rules adopted by the department. Nothing in this subsection (6) limits the department’s inspection of records pertaining to pesticide-related injuries, illnesses, fatalities, accidents, or complaints. (7) The department of agriculture and the department of labor and industries shall jointly adopt, by rule, forms that satisfy the information requirements of this section. [1994 c 283 § 9; 1992 c 173 § 1; 1989 c 380 § 39; 1987 c 45 § 28; 1971 ex.s. c 191 § 3; 1961 c 249 § 10.] Effective dates—1992 c 173: "(1) Sections 1 through 3 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [April 1, 1992]. (2) Section 4 of this act shall take effect January 1, 1993." [1992 c 173 § 5.] Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 17.21.110 17.21.110 Commercial pesticide operator license— Requirements. It shall be unlawful for any person to act as an employee of a commercial pesticide applicator and apply pesticides manually or as the operator directly in charge of any apparatus which is licensed or should be licensed under the provisions of this chapter for the application of any pesticide, without having obtained a commercial pesticide operator license from the director. The commercial pesticide operator license shall be in addition to any other license or permit required by law for the operation or use of any such apparatus. Application for a commercial operator license shall be accompanied by a fee of fifty dollars. The provisions of this section shall not apply to any individual who is a licensed commercial pesticide applicator. [1997 c 242 § 12; 1994 c 283 § 10; 1993 sp.s. c 19 § 5; 1992 c 170 § 5; 1991 c 109 § 31; 1989 c 380 § 40; 1981 c 297 § 22; 1967 c 177 § 6; 1961 c 249 § 11.] Effective date—1997 c 242: See note following RCW 15.58.070. Severability—1981 c 297: See note following RCW 15.36.201. 17.21.122 17.21.122 Private-commercial pesticide applicator license—Requirements. It shall be unlawful for any person to act as a private-commercial pesticide applicator without having obtained a private-commercial pesticide applicator license from the director. Application for a private-commercial pesticide applicator license shall be accompanied by a fee of twenty-five dollars. [1997 c 242 § 13; 1994 c 283 § 11; 1993 sp.s. c 19 § 6; 1992 c 170 § 6; 1991 c 109 § 32; 1989 c 380 § 41; 1979 c 92 § 6.] Effective date—1997 c 242: See note following RCW 15.58.070. (2006 Ed.) Washington Pesticide Application Act 17.21.126 Private applicator, limited private applicator, or rancher private applicator—Requirements— Application for license—Fees. It is unlawful for any person to act as a private applicator, limited private applicator, or rancher private applicator without first complying with requirements determined by the director as necessary to prevent unreasonable adverse effects on the environment, including injury to the pesticide applicator or other persons, for each specific pesticide use. (1) Certification standards to determine the individual’s competency with respect to the use and handling of the pesticide or class of pesticides for which the private applicator, limited private applicator, or rancher private applicator is certified shall be relative to hazards of the particular type of application, class of pesticides, or handling procedure. In determining these standards the director shall take into consideration standards of the EPA and is authorized to adopt these standards by rule. (2) Application for a private applicator or a limited private applicator license, or the renewal of such licenses under RCW 17.21.132(4), shall be accompanied by a fee of twentyfive dollars. Application for a rancher private applicator license, or renewal of such license under RCW 17.21.132(4), shall be accompanied by a fee of seventy-five dollars. Individuals with a valid certified applicator license, pest control consultant license, or dealer manager license who qualify in the appropriate statewide or agricultural license categories are exempt from the private applicator, limited private applicator, or rancher private applicator fee requirements. However, licensed public pesticide operators, otherwise exempted from the public pesticide operator license fee requirement, are not also exempted from the fee requirements under this subsection. [2004 c 100 § 2; 1997 c 242 § 14; 1994 c 283 § 12; 1993 sp.s. c 19 § 7; 1992 c 170 § 7; 1991 c 109 § 33; 1989 c 380 § 42; 1979 c 92 § 8.] 17.21.126 Effective date—2004 c 100: See note following RCW 17.21.020. Effective date—1997 c 242: See note following RCW 15.58.070. 17.21.130 (iii) Rancher private applicators shall accumulate a minimum of twelve department-approved credits every five years; (iv) All other license types established under this chapter shall accumulate a minimum of forty department-approved credits every five years with no more than fifteen credits allowed per year. (b) Certified pesticide applicators may qualify for continued licensure through meeting the examination requirements necessary to become licensed in those areas in which the licensee operates. (3) At the termination of a licensee’s five-year recertification period, the director may waive the requirements identified in subsection (2) of this section if the licensee can demonstrate that he or she is meeting comparable recertification standards through another state or jurisdiction or through a federal environmental protection agency approved government agency plan. [2005 c 397 § 1; 2004 c 100 § 3; 1994 c 283 § 13; 1986 c 203 § 9; 1979 c 92 § 9.] Effective date—2004 c 100: See note following RCW 17.21.020. Severability—1986 c 203: See note following RCW 15.17.230. 17.21.129 17.21.129 Demonstration and research license— Requirements. Except as provided in RCW 17.21.203, it is unlawful for a person to use or supervise the use of any experimental use pesticide or any restricted use pesticide on small experimental plots for research purposes when no charge is made for the pesticide and its application without a demonstration and research applicator’s license. (1) Application for a demonstration and research license shall be accompanied by a fee of twenty-five dollars. (2) Persons licensed in accordance with this section are exempt from the requirements of RCW 17.21.160, 17.21.170, and 17.21.180. [1997 c 242 § 15; 1994 c 283 § 14; 1993 sp.s. c 19 § 8; 1992 c 170 § 8; 1991 c 109 § 34; 1989 c 380 § 43; 1987 c 45 § 30; 1981 c 297 § 26.] Effective date—1997 c 242: See note following RCW 15.58.070. 17.21.128 17.21.128 Renewal of certificate or license—Recertification standards. (1) The director may renew any certification or license issued under authority of this chapter subject to the recertification standards identified in subsection (2) of this section or an examination requiring new knowledge that may be required to apply pesticides. (2) Except as provided in subsection (3) of this section, all individuals licensed under this chapter shall meet the recertification standards identified in (a) or (b) of this subsection, every five years, in order to qualify for continuing licensure. (a) Licensed pesticide applicators may qualify for continued licensure through accumulation of recertification credits. (i) Private applicators shall accumulate a minimum of twenty department-approved credits every five years with no more than ten credits allowed per year; (ii) Limited private applicators shall accumulate a minimum of eight department-approved credits every five years. All credits must be applicable to the control of weeds with at least one-half of the credits directly related to weed control and the remaining credits in topic areas indirectly related to weed control, such as the safe and legal use of pesticides; (2006 Ed.) Construction—Severability—1987 c 45: See notes following RCW 15.54.270. Severability—1981 c 297: See note following RCW 15.36.201. 17.21.130 17.21.130 Revocation, suspension, or denial. Any license, permit, or certification provided for in this chapter may be revoked or suspended, and any license, permit, or certification application may be denied by the director for cause. If the director suspends a license under this chapter with respect to activity of a continuing nature under chapter 34.05 RCW, the director may elect to suspend the license for a subsequent license year during a period that coincides with the period commencing thirty days before and ending thirty days after the date of the incident or incidents giving rise to the violation. The director shall immediately suspend the license or certificate of a person who has been certified pursuant to RCW 74.20A.320 by the department of social and health services as a person who is not in compliance with a support order or a *residential or visitation order. If the person has continued to meet all other requirements for reinstatement during the suspension, reissuance of the license or certificate shall be automatic upon the director’s receipt of a release [Title 17 RCW—page 25] 17.21.132 Title 17 RCW: Weeds, Rodents, and Pests issued by the department of social and health services stating that the licensee is in compliance with the order. [1997 c 58 § 877; 1994 c 283 § 15; 1989 c 380 § 46; 1986 c 203 § 10; 1961 c 249 § 13.] *Reviser’s note: 1997 c 58 § 887 requiring a court to order certification of noncompliance with residential provisions of a court-ordered parenting plan was vetoed. Provisions ordering the department of social and health services to certify a responsible parent based on a court order to certify for noncompliance with residential provisions of a parenting plan were vetoed. See RCW 74.20A.320. Short title—Part headings, captions, table of contents not law— Exemptions and waivers from federal law—Conflict with federal requirements—Severability—1997 c 58: See RCW 74.08A.900 through 74.08A.904. Effective dates—Intent—1997 c 58: See notes following RCW 74.20A.320. Severability—1986 c 203: See note following RCW 15.17.230. 17.21.132 17.21.132 License, certification—Applications— Expiration dates. Any person applying for a license or certification authorized under the provisions of this chapter shall file an application on a form prescribed by the director. (1) The application shall state the license or certification and the classification(s) for which the applicant is applying and the method in which the pesticides are to be applied. (2) For all classes of licenses except private applicator, limited private applicator, and rancher private applicator, all applicants shall be at least eighteen years of age on the date that the application is made. Applicants for a private applicator, limited private applicator, or rancher private applicator license shall be at least sixteen years of age on the date that the application is made. (3) Application for a license to apply pesticides shall be accompanied by the required fee. No license may be issued until the required fee has been received by the department. (4) Each classification of license issued under this chapter except the limited private applicator and the rancher private applicator expires annually on a date set by rule by the director. Limited and rancher private applicator licenses expire on the fifth December 31st after issuance. Renewal applications shall be filed on or before the applicable expiration date. [2004 c 100 § 4; 1997 c 242 § 16; 1994 c 283 § 16; 1991 c 109 § 35; 1989 c 380 § 44.] Effective date—2004 c 100: See note following RCW 17.21.020. 17.21.134 17.21.134 Licenses—Examination requirements. (1) The director shall not issue a commercial pesticide applicator license until the applicant, if he or she is the sole owner and manager of the business has passed examinations in all classifications that the business operates. If there is more than one owner or the owner does not participate in the pesticide application activities, the person managing the pesticide application activities of the business shall be licensed in all classifications that the business operates. The director shall not issue a commercial pesticide operator, public operator, private commercial applicator, or demonstration and research applicator license until the applicant has passed an examination demonstrating knowledge of: (a) How to apply pesticides under the classification for which he or she has applied, manually or with the various apparatuses that he or she may operate; [Title 17 RCW—page 26] (b) The nature and effect of pesticides he or she may apply under such classifications; and (c) Any other matter the director determines to be a necessary subject for examination. (2) The director shall charge an examination fee established by rule when an examination is necessary before a license may be issued or when application for such license and examination is made at other than a regularly scheduled examination date. (3) The director may prescribe separate testing procedures and requirements for each license. [1994 c 283 § 17; 1989 c 380 § 45.] 17.21.140 17.21.140 Renewal—Delinquency. (1) If the application for renewal of any license provided for in this chapter is not filed on or prior to the expiration date of the license under this chapter or as set by rule by the director, a penalty of twenty-five dollars for the commercial pesticide applicator’s license and the rancher private applicator license, and a penalty equivalent to the license fee for any other license, shall be assessed and added to the original fee and shall be paid by the applicant before the renewal license is issued. However, the penalty does not apply if the applicant furnishes an affidavit certifying that he or she has not acted as a licensee subsequent to the expiration of the license. (2) Any license for which a timely renewal application has been made, all other requirements have been met, and the proper fee paid, continues in full force and effect until the director notifies the applicant that the license has been renewed or the application has been denied. [2004 c 100 § 5; 1991 c 109 § 36; 1989 c 380 § 47; 1961 c 249 § 14.] Effective date—2004 c 100: See note following RCW 17.21.020. 17.21.150 17.21.150 Violation of chapter—Unlawful acts. A person who has committed any of the following acts is declared to be in violation of this chapter: (1) Made false or fraudulent claims through any media, misrepresenting the effect of materials or methods to be utilized; (2) Applied worthless or improper pesticides; (3) Operated a faulty or unsafe apparatus; (4) Operated in a faulty, careless, or negligent manner; (5) Refused or neglected to comply with the provisions of this chapter, the rules adopted hereunder, or of any lawful order of the director including a final order of the director directing payment of a civil penalty. In an adjudicative proceeding arising from the department’s denial of a license for failure to pay a civil penalty the subject shall be limited to whether the payment was made and the proceeding may not be used to collaterally attack the final order; (6) Refused or neglected to keep and maintain the pesticide application records required by rule, or to make reports when and as required; (7) Made false or fraudulent records, invoices, or reports; (8) Acted as a certified applicator without having provided direct supervision to an unlicensed person as defined in *RCW 17.21.020(12); (9) Operated an unlicensed apparatus or an apparatus without a license plate issued for that particular apparatus; (2006 Ed.) Washington Pesticide Application Act (10) Used fraud or misrepresentation in making an application for a license or renewal of a license; (11) Is not qualified to perform the type of pest control under the conditions and in the locality in which he or she operates or has operated, regardless of whether or not he or she has previously passed a pesticide license examination; (12) Aided or abetted a licensed or an unlicensed person to evade the provisions of this chapter, combined or conspired with such a licensed or an unlicensed person to evade the provisions of this chapter, or allowed one’s license to be used by an unlicensed person; (13) Knowingly made false, misleading or erroneous statements or reports during or after an inspection concerning any infestation or infection of pests found on land or in connection with any pesticide complaint or investigation; (14) Impersonated any state, county or city inspector or official; (15) Applied a restricted use pesticide without having a certified applicator in direct supervision; (16) Operated a commercial pesticide application business: (a) Without an individual licensed as a commercial pesticide applicator or (b) with a licensed commercial pesticide applicator not licensed in the classification or classifications in which the business operates; or (17) Operated as a commercial pesticide applicator without meeting the financial responsibility requirements including not having a properly executed financial responsibility insurance certificate or surety bond form on file with the department. [1994 c 283 § 18; 1989 c 380 § 48; 1971 ex.s. c 191 § 4; 1967 c 177 § 8; 1961 c 249 § 15.] *Reviser’s note: RCW 17.21.020 was amended by 2001 c 333 § 1, changing subsection (12) to subsection (13). 17.21.160 Commercial pesticide applicator license— Financial responsibility. The director shall not issue a commercial pesticide applicator license until the applicant has furnished evidence of financial responsibility. (1) Evidence of financial responsibility shall consist of either a surety bond; or a liability insurance policy or certification thereof, protecting persons who may suffer legal damages as a result of the operations of the applicant. The surety bond or liability insurance policy need not apply to damages or injury to agricultural crops, plants or land being worked upon by the applicant. The director shall not accept a surety bond or liability insurance policy except from authorized insurers in this state or if placed as a surplus line as provided for in chapter 48.15 RCW. (2) Evidence of financial responsibility shall be supplied to the department on a financial responsibility insurance certificate or surety bond form (blank forms supplied by the department to the applicant). [1994 c 283 § 19; 1989 c 380 § 49; 1967 c 177 § 9; 1961 c 249 § 16.] 17.21.160 17.21.170 Commercial pesticide applicator license— Amount of bond or insurance required—Notice of reduction or cancellation by surety or insurer. The following requirements apply to the amount of bond or insurance required for commercial applicators: (1) The amount of the surety bond or liability insurance, as provided for in RCW 17.21.160, shall be not less than fifty thousand dollars for property damage and public liability 17.21.170 (2006 Ed.) 17.21.190 insurance, each separately, and including loss or damage arising out of the actual use of any pesticide. The surety bond or liability insurance shall be maintained at not less than that sum at all times during the licensed period. (2) The property damage portion of this requirement may be waived by the director if it can be demonstrated by the applicant that all applications performed under this license occur under confined circumstances and on property owned or leased by the applicant. (3) The director shall be notified ten days before any reduction of insurance coverage at the request of the applicant or cancellation of the surety bond or liability insurance by the surety or insurer and by the insured. (4) The total and aggregate of the surety and insurer for all claims is limited to the face of the bond or liability insurance policy. The director may accept a liability insurance policy or surety bond in the proper sum which has a deductible clause in an amount not exceeding five thousand dollars for all applicators for the total amount of liability insurance or surety bond required by this section, but if the applicant has not satisfied the requirement of the deductible amount in any prior legal claim the deductible clause shall not be accepted by the director unless the applicant furnishes the director with a surety bond or liability insurance which shall satisfy the amount of the deductible as to all claims that may arise in his application of pesticides. [1994 c 283 § 20; 1983 c 95 § 7; 1967 c 177 § 10; 1963 c 107 § 1; 1961 c 249 § 17.] 17.21.180 17.21.180 Commercial pesticide applicator license— Suspension of license for failure to meet financial responsibility criteria. The commercial pesticide applicator license shall, whenever the licensee’s surety bond or insurance policy is reduced below the requirements of RCW 17.21.170 or whenever the commercial applicator has not supplied evidence of financial responsibility, as required by RCW 17.21.160 and 17.21.170, by the expiration date of the previous policy or surety bond, be automatically suspended until such licensee’s surety bond or insurance policy again meets the requirements of RCW 17.21.170. In addition, the director may pick up such licensee’s license plates during such period of automatic suspension and return them only at such time as the licensee has furnished written proof that he or she is in compliance with the provisions of RCW 17.21.170. [1994 c 283 § 21; 1989 c 380 § 50; 1987 c 45 § 31; 1967 c 177 § 11; 1961 c 249 § 18.] Construction—Severability—1987 c 45: See notes following RCW 15.54.270. 17.21.190 17.21.190 Damages due to use or application of pesticide—Report of loss required. Any person suffering property loss or damage resulting from the use or application by others of any pesticide shall file with the director a verified report of loss. (1) The report shall set forth, so far as known to the claimant, the following: (a) The name and address of the claimant; (b) The type, kind, property alleged to be injured or damaged; (c) The name of the person applying the pesticide and allegedly responsible; and [Title 17 RCW—page 27] 17.21.200 Title 17 RCW: Weeds, Rodents, and Pests (d) The name of the owner or occupant of the property for whom such application of the pesticide was made. (2) The report shall be filed within thirty days from the time that the property loss or damage becomes known to the claimant. If a growing crop is alleged to have been damaged, the report shall be filed prior to harvest of fifty percent of that crop, unless the loss or damage was not then known. The department shall establish time periods by rule to determine investigation response time. Time periods shall range from immediate to forty-eight hours to initiate an investigation, depending on the severity of the damage. (3) Any person filing a report of loss under this section shall cooperate with the department in conducting an investigation of such a report and shall provide the department or authorized representatives of the department access to any affected property and any other necessary information relevant to the report. If a claimant refuses to cooperate with the department, the report shall not be acted on by the department. (4) The filing of a report or the failure to file a report need not be alleged in any complaint which might be filed in a court of law, and the failure to file the report shall not be considered any bar to the maintenance of any criminal or civil action. (5) The failure to file a report shall not be a violation of this chapter. However, if the person failing to file such report is the only one suffering loss from such use or application of a pesticide by a pesticide applicator or operator, the director may refuse to act upon the complaint. [1994 c 283 § 22; 1991 c 263 § 1; 1989 c 380 § 51; 1961 c 249 § 19.] 17.21.200 17.21.200 Commercial pesticide applicator license— Exemptions. The provisions of this chapter relating to commercial pesticide applicator licenses and requirements for their issuance shall not apply to: (1) Any forest landowner, or his or her employees, applying pesticides with ground apparatus or manually, on his or her own lands or any lands or rights of way under his or her control; or (2) Any farmer owner of ground apparatus applying pesticides for himself or herself or if applied on an occasional basis not amounting to a principal or regular occupation without compensation other than trading of personal services between producers of agricultural commodities on the land of another person; or (3) Any grounds maintenance person conducting grounds maintenance on an occasional basis not amounting to a regular occupation; or (4) Persons who apply pesticides as an incidental part of their business, such as dog grooming services or such other businesses as shall be identified by the director. However, persons exempt under this section shall not use restricted use pesticides and shall not advertise or publicly hold themselves out as pesticide applicators. [1994 c 283 § 23; 1992 c 170 § 9; 1989 c 380 § 52; 1979 c 92 § 3; 1971 ex.s. c 191 § 5; 1967 c 177 § 12; 1961 c 249 § 20.] 17.21.203 17.21.203 Government research personnel— Requirements. The licensing provisions of this chapter shall not apply to research personnel of federal, state, county, or [Title 17 RCW—page 28] municipal agencies when performing pesticide research in their official capacities, however when such persons are applying restricted use pesticides, they shall be licensed as public operators. [1994 c 283 § 24; 1981 c 297 § 23; 1979 c 92 § 4; 1971 ex.s. c 191 § 9.] Severability—1981 c 297: See note following RCW 15.36.201. 17.21.220 17.21.220 Application of chapter to governmental entities—Public operator license required—Exemption— Liability. (1) All state agencies, municipal corporations, and public utilities or any other governmental agency shall be subject to the provisions of this chapter and rules adopted thereunder concerning the application of pesticides. (2) It shall be unlawful for any employee of a state agency, municipal corporation, public utility, or any other government agency to use or to supervise the use of any restricted use pesticide, or any pesticide by means of an apparatus, without having obtained a public operator license from the director. Application for a public operator license shall be accompanied by a fee of twenty-five dollars. The fee shall not apply to public operators licensed and working in the health vector field. The public operator license shall be valid only when the operator is acting as an employee of a government agency. (3) The jurisdictional health officer or his or her duly authorized representative is exempt from this licensing provision when applying pesticides that are not restricted use pesticides to control pests other than weeds. (4) Such agencies, municipal corporations and public utilities shall be subject to legal recourse by any person damaged by such application of any pesticide, and such action may be brought in the county where the damage or some part thereof occurred. [1997 c 242 § 17; 1994 c 283 § 25; 1993 sp.s. c 19 § 9; 1991 c 109 § 37; 1989 c 380 § 53; 1986 c 203 § 11; 1981 c 297 § 24; 1971 ex.s. c 191 § 7; 1967 c 177 § 13; 1961 c 249 § 22.] Effective date—1997 c 242: See note following RCW 15.58.070. Severability—1986 c 203: See note following RCW 15.17.230. Severability—1981 c 297: See note following RCW 15.36.201. 17.21.230 17.21.230 Pesticide advisory board. (1) There is hereby created a pesticide advisory board consisting of four licensed pesticide applicators residing in the state (one shall be licensed to operate agricultural ground apparatus, one shall be an urban landscape applicator, one shall be licensed to operate aerial apparatus, and one shall be licensed for structural pest control), one licensed pest control consultant, one licensed pesticide dealer manager, one entomologist in public service, one toxicologist in public service, one pesticide coordinator from Washington State University, one member from the agricultural chemical industry, one member from the food processing industry, one member representing agricultural labor, one health care practitioner in private practice, two members from the environmental community, one producer of aquacultural products, and two producers of agricultural crops or products on which pesticides are applied. (2) Such members shall be appointed by the director for terms of four years and may be appointed for successive fouryear terms at the discretion of the director. The terms shall be staggered so that approximately one-fourth of the terms (2006 Ed.) Washington Pesticide Application Act expire on June 30 of each calendar year. In making appointments, the director shall seek nominations from affected agricultural and environmental groups. The director may remove any member of the pesticide advisory board prior to the expiration of his or her term of appointment for cause. The pesticide advisory board shall also include the following nonvoting members: The director of the department of labor and industries or a duly authorized representative, the environmental health specialist from the department of health, the assistant director of the pesticide management division of the department, and the directors, or their appointed representatives, of the department[s] of fish and wildlife, natural resources, and ecology. [1994 c 283 § 26; 1989 c 380 § 54; 1988 c 36 § 8; 1974 ex.s. c 20 § 1; 1971 ex.s. c 191 § 8; 1967 c 177 § 14; 1961 c 249 § 23.] 17.21.240 17.21.240 Pesticide advisory board—Vacancies. Upon the death, resignation or removal for cause of any member of the pesticide advisory board, the director shall attempt to fill such vacancy, within thirty days of its creation, for the remainder of its term in the manner herein prescribed for appointment to the board. [1994 c 283 § 27; 1989 c 380 § 55; 1961 c 249 § 24.] 17.21.250 17.21.250 Pesticide advisory board—Duties. The pesticide advisory board shall advise the director on any or all problems relating to the use and application of pesticides in the state. [1989 c 380 § 56; 1961 c 249 § 25.] 17.21.260 17.21.260 Pesticide advisory board—Officers, meetings. The pesticide advisory board shall elect one of its members as chair. The members of the board shall meet at such time and at such place as shall be specified by the call of the director, chair, or a majority of the board. [1994 c 283 § 28; 1989 c 380 § 57; 1961 c 249 § 26.] 17.21.270 17.21.315 be remitted as provided in chapter 3.62 RCW. [1997 c 242 § 18; 1994 c 283 § 29; 1989 c 380 § 59; 1987 c 202 § 183; 1969 ex.s. c 199 § 15; 1961 c 249 § 28.] Intent—1987 c 202: See note following RCW 2.04.190. 17.21.290 17.21.290 Pesticide application apparatuses— License plate as identification. All licensed apparatuses shall be identified by a license plate furnished by the director, at no cost to the licensee, which plate shall be affixed in a location and manner upon such apparatus as prescribed in rule. [1994 c 283 § 30; 1989 c 380 § 60; 1967 c 177 § 15; 1961 c 249 § 29.] 17.21.300 17.21.300 Agreements with other governmental entities. The director is authorized to cooperate with and enter into agreements with any other agency of the state, the United States, and any other state or agency thereof for the purpose of carrying out the provisions of this chapter and securing uniformity of regulation. [1961 c 249 § 30.] 17.21.305 17.21.305 Licensing by cities of first class and counties. The provisions of this chapter requiring all structural pest control operators, exterminators and fumigators to license with the department shall not preclude a city of the first class with a population of one hundred thousand people or more, or the county in which it is situated, from also licensing structural pest control operators, exterminators and fumigators operating within the territorial confines of said city or county: PROVIDED, That when structural pest control operators, exterminators and fumigators are licensed by both the city of the first class and the county in which the city is situated, and there exists a joint county-city health department, then the joint county-city health department may enforce the provisions of the city and county as to the license requirements for the structural pest control operators, exterminators and fumigators. [1986 c 203 § 12; 1967 c 177 § 19.] 17.21.270 Pesticide advisory board—Travel expenses. No person appointed to the pesticide advisory board shall receive a salary or other compensation as a member of the board: PROVIDED, That each member of the board shall receive travel expenses in accordance with RCW 43.03.050 and 43.03.060 as now existing or hereafter amended for each day spent in actual attendance at or traveling to and from meetings of the board or special assignments for the board. [1989 c 380 § 58; 1975-’76 2nd ex.s. c 34 § 24; 1961 c 249 § 27.] 17.21.310 General penalty. (1) Except as provided in subsection (2) of this section, any person who violates any provisions or requirements of this chapter or rules adopted hereunder is guilty of a misdemeanor. (2) A second or subsequent offense is a gross misdemeanor. Any offense committed more than five years after a previous conviction shall be considered a first offense. [2003 c 53 § 118; 1967 c 177 § 16; 1961 c 249 § 34.] Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 17.21.280 17.21.280 Disposition of revenue, enforcement of chapter—District court fees, fines, penalties and forfeitures. (1) Except as provided in subsection (2) of this section, all moneys collected under the provisions of this chapter shall be paid to the director and deposited in the agricultural local fund, RCW 43.23.230, for use exclusively in the enforcement of this chapter. (2) All moneys collected for civil penalties levied under RCW 17.21.315 shall be deposited in the state general fund. All fees, fines, forfeitures and penalties collected or assessed by a district court because of the violation of a state law shall (2006 Ed.) Severability—1986 c 203: See note following RCW 15.17.230. 17.21.310 17.21.315 17.21.315 Civil penalty for failure to comply with chapter. Every person who fails to comply with this chapter or the rules adopted under it may be subjected to a civil penalty, as determined by the director, in an amount of not more than seven thousand five hundred dollars for every such violation. Each and every such violation shall be a separate and distinct offense. Every person who, through an act of commission or omission, procures, aids, or abets in the violation shall be considered to have violated this section and may be subject to the civil penalty herein provided. [1989 c 380 § 61; 1985 c 158 § 3.] [Title 17 RCW—page 29] 17.21.320 Title 17 RCW: Weeds, Rodents, and Pests 17.21.320 Access to public or private premises— Search warrants—Prosecuting attorney’s duties— Injunctions. (1) For purpose of carrying out the provisions of this chapter the director may enter upon any public or private premises at reasonable times, in order: (a) To have access for the purpose of inspecting any equipment subject to this chapter and such premises on which such equipment is kept or stored; (b) To inspect lands actually or reported to be exposed to pesticides; (c) To inspect storage or disposal areas; (d) To inspect or investigate complaints of injury to humans or land; or (e) To sample pesticides being applied or to be applied. (2) Should the director be denied access to any land where such access was sought for the purposes set forth in this chapter, the director may apply to any court of competent jurisdiction for a search warrant authorizing access to such land for said purposes. The court may upon such application, issue the search warrant for the purposes requested. (3) It shall be the duty of each prosecuting attorney to whom any violation of this chapter is reported, to cause appropriate proceedings to be instituted and prosecuted in a court of competent jurisdiction without delay. (4) The director may bring an action to enjoin the violation or threatened violation of any provision of this chapter or any rule made pursuant to this chapter in the superior court of the county in which such violation occurs or is about to occur. [1989 c 380 § 62; 1971 ex.s. c 191 § 10.] 17.21.320 17.21.340 Violation of chapter—Remedies. (1) A person aggrieved by a violation of this chapter or the rules adopted under this chapter: (a) May request an inspection of the area in which the violation is believed to have occurred. If there are reasonable grounds to believe that a violation has occurred, the department shall conduct an inspection as soon as practicable. However, the director may refuse to act on a request for inspection concerning only property loss or damage if the person suffering property damage fails to file a timely report of loss under RCW 17.21.190. If an inspection is conducted, the person requesting the inspection shall: (i) Be promptly notified in writing of the department’s decision concerning the assessment of any penalty pursuant to the inspection; and (ii) Be entitled, on request, to have his or her name protected from disclosure in any communication with persons outside the department and in any record published, released, or made available pursuant to this chapter: PROVIDED, That in any appeal proceeding the identity of the aggrieved person who requests the inspection shall be disclosed to the alleged violator of the act upon request of the alleged violator; (b) Shall be notified promptly, on written application to the director, of any penalty or other action taken by the department pursuant to an investigation of the violation under this chapter; and (c) May request, within ten days from the service of a final order fixing a penalty for the violation, that the director reconsider the entire matter if it is alleged that the penalty is inappropriate. If the person is aggrieved by a decision of the 17.21.340 [Title 17 RCW—page 30] director on reconsideration, the person may request an adjudicative proceeding under chapter 34.05 RCW. However, the procedures for a brief adjudicative proceeding may not be used unless agreed to by the person requesting the adjudicative proceeding. During the adjudicative proceeding under (c) of this subsection, the presiding officer shall consider the interests of the person requesting the adjudicative proceeding. (2) Nothing in this chapter shall preclude any person aggrieved by a violation of this chapter from bringing suit in a court of competent jurisdiction for damages arising from the violation. [1989 c 380 § 63.] 17.21.350 17.21.350 Report to legislature. By February 1st of each year the department shall report to the appropriate committees of the house of representatives and the senate on the activities of the department under this chapter. The report shall include, at a minimum: (1) A review of the department’s pesticide incident investigation and enforcement activities, with the number of cases investigated and the number and amount of civil penalties assessed; and (2) a summary of the pesticide residue food monitoring program with information on the food samples tested and results of the tests, a listing of the pesticides for which testing is done, and other pertinent information. [1997 c 242 § 19; 1989 c 380 § 64.] 17.21.400 17.21.400 Landscape or right of way applications— Notice. (1)(a) A certified applicator making a landscape application shall display the name and telephone number of the applicator or the applicator’s employer on any power application apparatus. The applicator shall also carry the material safety data sheet for each pesticide being applied. (b) A certified applicator making a right of way application shall display the name and telephone number of the applicator or the applicator’s employer and the words "VEGETATION MANAGEMENT APPLICATION" on any power application apparatus. The applicator shall also carry the material safety data sheet for each pesticide being applied. (2) If a certified applicator receives a written request for information on a landscape or right of way spray application, the applicator shall provide the requestor with the name or names of each pesticide applied and (a) a copy of the material safety data sheet for each pesticide; or (b) a pesticide fact sheet for each pesticide as developed or approved by the department. (3) The director shall adopt rules establishing the size and lettering requirements of the apparatus display signs required under this section. [1994 c 283 § 32; 1992 c 176 § 2.] 17.21.410 17.21.410 Landscape applications—Marking of property, posting requirements. (1) A certified applicator making a landscape application to: (a) Residential property shall at the time of the application place a marker at the usual point of entry to the property. If the application is made to an isolated spot that is not a substantial portion of the property, the applicator shall only be required to place a marker at the application site. If the appli(2006 Ed.) Washington Pesticide Application Act cation is in a fenced or otherwise isolated backyard, no marker is required. (b) Commercial properties such as apartments or shopping centers shall at the time of application place a marker in a conspicuous location at or near each site being treated. (c) A golf course shall at the time of the application place a marker at the first tee and tenth tee or post the information in a conspicuous location such as on a central message board. (d) A school, nursery school, or licensed day care shall at the time of the application place a marker at each primary point of entry to the school grounds. A school employee making an application to a school facility shall comply with the posting requirements in RCW 17.21.415. (e) A park, cemetery, rest stop, or similar property as may be defined in rule shall at the time of the application place a marker at each primary point of entry. (2) An individual making a landscape application to a school grounds, nursery school, or licensed day care, and not otherwise covered by subsection (1) of this section, shall at the time of the application place a marker at each primary point of entry to the school grounds. (3) The marker shall be a minimum of four inches by five inches. It shall have the words: "THIS LANDSCAPE HAS BEEN TREATED BY" as the headline and "FOR MORE INFORMATION PLEASE CALL" as the footer. Larger size requirements for markers may be established in rule for specific applications. The company name and service mark shall be included between the headline and the footer on a marker placed by a commercial applicator. The applicator’s telephone number where information can be obtained about the application shall be included in the footer of the marker. Markers shall be printed in colors contrasting to the background. (4) The property owner or tenant shall remove the marker according to the schedule established in rule. A certified applicator or individual who complies with this section is not liable for the removal of markers by unauthorized persons or removal outside the designated removal time. (5) A certified applicator or individual who complies with this section cannot be held liable for personal property damage or bodily injury resulting from markers that are placed as required. [2001 c 333 § 2; 1994 c 283 § 33; 1992 c 176 § 5.] Effective date—2001 c 333: See note following RCW 17.21.020. 17.21.415 17.21.415 Schools—Policies and methods—Notification—Records—Liability. (1) As used in this section, "school" means a licensed day care center or a public kindergarten or a public elementary or secondary school. (2) A school shall provide written notification annually or upon enrollment to parents or guardians of students and employees describing the school’s pest control policies and methods, including the posting and notification requirements of this section. (3) A school shall establish a notification system that, as a minimum, notifies interested parents or guardians of students and employees at least forty-eight hours before a pesticide application to a school facility. The notification system shall include posting of the notification in a prominent place in the main office of the school. (2006 Ed.) 17.21.415 (4) All notifications to parents, guardians, and employees shall include the heading "Notice: Pesticide Application" and, at a minimum, shall state: (a) The product name of the pesticide to be applied; (b) The intended date and time of application; (c) The location to which the pesticide is to be applied; (d) The pest to be controlled; and (e) The name and phone number of a contact person at the school. (5) A school facility application must be made within forty-eight hours following the intended date and time stated in the notification or the notification process shall be repeated. (6) A school shall, at the time of application, post notification signs for all pesticide applications made to school facilities unless the application is otherwise required to be posted by a certified applicator under the provisions of RCW 17.21.410(1)(d). (a) Notification signs for applications made to school grounds by school employees shall be placed at the location of the application and at each primary point of entry to the school grounds. The signs shall be a minimum of four inches by five inches and shall include the words: "THIS LANDSCAPE HAS BEEN RECENTLY SPRAYED OR TREATED WITH PESTICIDES BY YOUR SCHOOL" as the headline and "FOR MORE INFORMATION PLEASE CALL" as the footer. The footer shall provide the name and telephone number of a contact person at the school. (b) Notification signs for applications made to school facilities other than school grounds shall be posted at the location of the application. The signs shall be a minimum of eight and one-half by eleven inches and shall include the heading "Notice: Pesticide Application" and, at a minimum, shall state: (i) The product name of the pesticide applied; (ii) The date and time of application; (iii) The location to which the pesticide was applied; (iv) The pest to be controlled; and (v) The name and phone number of a contact person at the school. (c) Notification signs shall be printed in colors contrasting to the background. (d) Notification signs shall remain in place for at least twenty-four hours from the time the application is completed. In the event the pesticide label requires a restricted entry interval greater than twenty-four hours, the notification sign shall remain in place consistent with the restricted entry interval time as required by the label. (7) A school facility application does not include the application of antimicrobial pesticides or the placement of insect or rodent baits that are not accessible to children. (8) The prenotification requirements of this section do not apply if the school facility application is made when the school is not occupied by students for at least two consecutive days after the application. (9) The prenotification requirements of this section do not apply to any emergency school facility application for control of any pest that poses an immediate human health or safety threat, such as an application to control stinging insects. When an emergency school facility application is made, notification consistent with the school’s notification [Title 17 RCW—page 31] 17.21.420 Title 17 RCW: Weeds, Rodents, and Pests system shall occur as soon as possible after the application. The notification shall include information consistent with subsection (6)(b) of this section. (10) A school shall make the records of all pesticide applications to school facilities required under this chapter, including an annual summary of the records, readily accessible to interested persons. (11) A school is not liable for the removal of signs by unauthorized persons. A school that complies with this section may not be held liable for personal property damage or bodily injury resulting from signs that are placed as required. [2001 c 333 § 3.] Effective date—2001 c 333: See note following RCW 17.21.020. 17.21.420 17.21.420 Pesticide-sensitive individuals—List procedure. (1) The department shall develop a list of pesticidesensitive individuals. The list shall include any person with a documented pesticide sensitivity who submits information to the department on an application form developed by the department indicating the person’s pesticide sensitivity. (2) An applicant for inclusion on the pesticide-sensitive list may apply to the department at any time and shall provide the department, on the department’s form, the name, street address, and telephone number of the applicant and of each property owner with property abutting the applicant’s principal place of residence. The pesticide sensitivity of an individual shall be certified by a physician who holds a valid license to practice medicine in this state. The lands listed on an application for inclusion on the pesticide-sensitive list shall constitute the pesticide notification area for that applicant. For highway or road rights of way, a property abutting shall mean that portion of the property within one-half mile of the principal place of residence. (3) A person whose name has been included on the pesticide-sensitive list shall notify the department of a need to update the list as soon as possible after: (a) A change of address or telephone number; (b) a change in ownership of property abutting a pesticide-sensitive individual; (c) a change in the applicant’s condition; or (d) the sensitivity is deemed to no longer exist. (4) The pesticide-sensitive list shall expire on December 31 of each year. The department shall distribute application forms for the new list at a reasonable time prior to the expiration of the current list, including mailing an application form to each person on the current list at the address given by the person in his or her most recent application. Persons desiring to be placed on or remain on the list shall submit a new application each year. (5) The department shall distribute the list by January 1 and June 15 of each year to all certified applicators likely to make landscape applications. The list shall provide multiple methods of accessing the information so that certified applicators making landscape applications or right of way applications are able to easily determine what properties and individuals require notification for a specific application. An updated list shall be distributed whenever deemed necessary by the department. Certified applicators may request a list of newly registered individuals that have been added to the list since the last distribution. Registered individuals shall [Title 17 RCW—page 32] receive verification that their name has been placed on the list. [1994 c 283 § 34; 1992 c 176 § 3.] 17.21.430 17.21.430 Pesticide-sensitive individuals—Notification. (1) A certified applicator making a landscape application or a right of way application to the pesticide notification area, as defined in RCW 17.21.420(2), of a person on the pesticide-sensitive list shall notify the listed pesticide-sensitive individual of the application. Notification shall be made at least two hours prior to the scheduled application, or in the case of an immediate service call, the applicator shall provide notification at the time of the application. (2) Notification under this section shall be made in writing, in person, or by telephone, and shall disclose the date and approximate time of the application. In the event a certified applicator is unable to provide prior notification because of the absence or inaccessibility of the individual, the applicator shall leave a written notice at the residence of the individual listed on the pesticide-sensitive list at the time of the application. If a person on the pesticide-sensitive list lives in a multifamily dwelling such as an apartment or condominium, the applicator shall notify the person on the list or shall advise the manager or other property owner’s representative to notify the person on the list of the application. [1992 c 176 § 4.] 17.21.440 17.21.440 Agricultural workers and handlers of agricultural pesticides—Coordination of regulation and enforcement with department of labor and industries. (1) As used in this section, "federal worker protection standard" or "federal standard" means the worker protection standard for agricultural workers and handlers of agricultural pesticides adopted by the United States environmental protection agency in 40 C.F.R., part 170 as it exists on June 6, 1996. (2)(a) No rule adopted under this chapter may impose requirements that make compliance with the federal worker protection standard impossible. (b) The department shall adopt by rule safety and health standards that are at least as effective as the federal standard. Standards adopted by the department under this section shall be adopted in coordination with the department of labor and industries. (3) If a violation of the federal worker protection standard, or of state rules regulating activities governed by the federal standard, is investigated by the department and by the department of labor and industries, the agencies shall conduct a joint investigation if feasible, and shall share relevant information. However, an investigation conducted by the department of labor and industries under Title 51 RCW solely with regard to industrial insurance shall not be considered to be an investigation by the department of labor and industries for this purpose. The agencies shall not issue duplicate citations to an individual or business for the same violation of the federal standard or state rules regulating activities governed by the federal standard. By December 1, 1996, the department and the department of labor and industries shall jointly establish a formal agreement that: Identifies the roles of each of the two agencies in conducting investigations of activities governed by the federal standard; and provides for protection of workers and enforcement of standards that is at least [as] (2006 Ed.) Insect Pests and Plant Diseases effective as provided for other enforcement under this chapter. [1996 c 260 § 3.] Finding—Intent—Severability—1996 c 260: See notes following RCW 49.17.280. 17.24.210 17.24.220 17.24.900 17.24.007 Indemnity contracts for damages resulting from prevention, control, or eradication measures—Authorized—Conditions. Sudden oak death syndrome—Coordinated response effort. Captions not law—1991 c 257. Horticultural pests and diseases: Chapter 15.08 RCW. Department of labor and industries authority: RCW 49.17.280. 17.24.003 17.21.900 17.21.900 Preexisting liabilities not affected. The enactment of this act shall not have the effect of terminating, or in any way modifying, any liability, civil or criminal, which shall already be in existence on the date this act becomes effective. [1961 c 249 § 31.] 17.21.920 17.21.920 Short title. This chapter may be cited as the Washington pesticide application act. [1961 c 249 § 33.] 17.21.930 Severability—1961 c 249. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1961 c 249 § 35.] 17.24.003 Purpose. The purpose of this chapter is to provide a strong system for the exclusion of plant and bee pests and diseases through regulation of movement and quarantines of infested areas to protect the forest, agricultural, horticultural, floricultural, and apiary industries of the state; plants and shrubs within the state; and the environment of the state from the impact of insect pests, plant pathogens, noxious weeds, and bee pests and the public and private costs that result when these infestations become established. [1991 c 257 § 3.] 17.21.930 17.21.931 Severability—1967 c 177. If any provision of this amendatory act or its application to any person or circumstance is held invalid, the remainder of this act, or the application of the provision to other persons or circumstances is not affected. [1967 c 177 § 20.] 17.21.931 17.21.932 Severability—1979 c 92. If any provision of this 1979 act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1979 c 92 § 10.] 17.21.932 17.21.933 Severability—1989 c 380. 15.58.942. 17.21.933 Chapter 17.24 See RCW Chapter 17.24 RCW INSECT PESTS AND PLANT DISEASES Sections 17.24.003 17.24.007 17.24.011 17.24.021 17.24.031 17.24.041 17.24.051 17.24.061 17.24.071 17.24.081 17.24.091 17.24.100 17.24.101 17.24.111 17.24.121 17.24.131 17.24.141 17.24.151 17.24.161 17.24.171 (2006 Ed.) Purpose. Definitions. Regulation of plant, plant product, bee movement, and genetically engineered organisms. Inspection and investigation. Determination of origin. Power to adopt quarantine measures—Rules. Introduction of plant pests, noxious weeds, or organisms affecting plant life. Protection of privileged or confidential information—Procedure—Notice—Declaratory judgment. Compliance agreements. Prohibited acts. Impound and disposition. Penalties—Second and subsequent offenses. Statewide survey and control activity. Director’s cooperation with other agencies. Acquisition of lands, water supply, or other properties for quarantine locations. Requested inspections—Fee for service—Disbursements in lieu of fee. Penalties—Criminal and civil penalty. Violations—Costs of control. Funds for technical and scientific services. Determination of imminent danger of infestation of plant pests or plant diseases—Emergency measures—Conditions—Procedures. 17.24.007 17.24.007 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Department" means the state department of agriculture. (2) "Director" means the director of the state department of agriculture or the director’s designee. (3) "Quarantine" means a rule issued by the department that prohibits or regulates the movement of articles, bees, plants, or plant products from designated quarantine areas within or outside the state to prevent the spread of disease, plant pathogens, or pests to nonquarantine areas. (4) "Plant pest" means a living stage of an insect, mite, nematode, slug, snail, or protozoa, or other invertebrate animal, bacteria, fungus, or parasitic plant, or their reproductive parts, or viruses, or an organism similar to or allied with any of the foregoing plant pests, including a genetically engineered organism, or an infectious substance that can directly or indirectly injure or cause disease or damage in plants or parts of plants or in processed, manufactured, or other products of plants. (5) "Plants and plant products" means trees, shrubs, vines, forage, and cereal plants, and all other plants and plant parts, including cuttings, grafts, scions, buds, fruit, vegetables, roots, bulbs, seeds, wood, lumber, and all products made from the plants and plant products. (6) "Certificate" or "certificate of inspection" means an official document certifying compliance with the requirements of this chapter. The term "certificate" includes labels, rubber stamp imprints, tags, permits, written statements, or a form of inspection and certification document that accompanies the movement of inspected and certified plant material and plant products, or bees, bee hives, or beekeeping equipment. (7) "Compliance agreement" means a written agreement between the department and a person engaged in growing, handling, or moving articles, plants, plant products, or bees, bee hives, or beekeeping equipment regulated under this chapter, in which the person agrees to comply with stipulated requirements. (8) "Distribution" means the movement of a regulated article from the property where it is grown or kept, to property that is not contiguous to the property, regardless of the ownership of the properties. [Title 17 RCW—page 33] 17.24.011 Title 17 RCW: Weeds, Rodents, and Pests (9) "Genetically engineered organism" means an organism altered or produced through genetic modification from a donor, vector, or recipient organism using recombinant DNA techniques, excluding those organisms covered by the food, drug and cosmetic act (21 U.S.C. Secs. 301-392). (10) "Person" means a natural person, individual, firm, partnership, corporation, company, society, or association, and every officer, agent, or employee of any of these entities. (11) "Sell" means to sell, to hold for sale, offer for sale, handle, or to use as inducement for the sale of another article or product. (12) "Noxious weed" means a living stage, including, but not limited to, seeds and reproductive parts, of a parasitic or other plant of a kind that presents a threat to Washington agriculture or environment. (13) "Regulated article" means a plant or plant product, bees or beekeeping equipment, noxious weed or other articles or equipment capable of harboring or transporting plant or bee pests or noxious weeds that is specifically addressed in rules or quarantines adopted under this chapter. (14) "Owner" means the person having legal ownership, possession, or control over a regulated article covered by this chapter including, but not limited to, the owner, shipper, consignee, or their agent. (15) "Nuisance" means a plant, or plant part, apiary, or property found in a commercial area on which is found a pest, pathogen, or disease that is a source of infestation to other properties. (16) "Bees" means adult insects, eggs, larvae, pupae, or other immature stages of the species Apis mellifera. (17) "Bee pests" means a mite, other parasite, or disease that causes injury to bees and those honey bees generally recognized to have undesirable behavioral characteristics such as or as found in Africanized honey bees. (18) "Biological control" means the use by humans of living organisms to control or suppress undesirable animals and plants; the action of parasites, predators, or pathogens on a host or prey population to produce a lower general equilibrium than would prevail in the absence of these agents. (19) "Biological control agent" means a parasite, predator, or pathogen intentionally released, by humans, into a target host or prey population with the intent of causing population reduction of that host or prey. (20) "Emergency" means a situation where there is an imminent danger of an infestation of plant pests or disease that seriously threatens the state’s agricultural or horticultural industries or environment and that cannot be adequately addressed with normal procedures or existing resources. [2000 c 100 § 6; 1991 c 257 § 4.] Effective date—2000 c 100: See RCW 15.60.901. (2) Make rules with reference to plants, plant products, bees, bee hives and equipment, and genetically engineered organisms while in transit through this state as may be deemed necessary to prevent the introduction into and dissemination within this state of plant and bee pests and noxious weeds. [1991 c 257 § 5.] 17.24.021 17.24.021 Inspection and investigation. (1) The director may intercept and hold or order held for inspection, or cause to be inspected while in transit or after arrival at their destination, all plants, plant products, bees, or other articles likely to carry plant pests, bee pests, or noxious weeds being moved into this state from another state, territory, or a foreign country or within or through this state for plant and bee pests and disease. (2) The director may enter upon public and private premises at reasonable times for the purpose of carrying out this chapter. If the director be denied access, the director may apply to any court of competent jurisdiction for a search warrant authorizing access to such premises. The court may upon such application issue the search warrant for the purposes requested. (3) The director may adopt rules in accordance with chapter 34.05 RCW as may be necessary to carry out the purposes and provisions of this chapter. [1991 c 257 § 6.] 17.24.031 17.24.031 Determination of origin. The director may demand of a person who has in his or her possession or under his or her control, plants, bees, plant products, or other articles that may carry plant pests, bee pests, or noxious weeds, full information as to the origin and source of these items. Failure to provide that information, if known, may subject the person to a civil penalty. [1991 c 257 § 7.] 17.24.041 17.24.041 Power to adopt quarantine measures— Rules. If determined to be necessary to protect the forest, agricultural, horticultural, floricultural, beekeeping, or environmental interests of this state, the director may declare a quarantine against an area, place, nursery, orchard, vineyard, apiary, or other agricultural establishment, county or counties within the state, or against other states, territories, or foreign countries, or a portion of these areas, in reference to plant pests, or bee pests, or noxious weeds, or genetically engineered plant or plant pest organisms. The director may prohibit the movement of all regulated articles from such quarantined places or areas that are likely to contain such plant pests or noxious weeds or genetically engineered plant, plant pest, or bee pest organisms. The quarantine may be made absolute or rules may be adopted prescribing the conditions under which the regulated articles may be moved into, or sold, or otherwise disposed of in the state. [1991 c 257 § 8.] 17.24.011 17.24.011 Regulation of plant, plant product, bee movement, and genetically engineered organisms. Notwithstanding the provisions of RCW 17.24.041, the director may: (1) Make rules under which plants, plant products, bees, hives and beekeeping equipment, and noxious weeds may be brought into this state from other states, territories, or foreign countries; and [Title 17 RCW—page 34] 17.24.051 17.24.051 Introduction of plant pests, noxious weeds, or organisms affecting plant life. The introduction into or release within the state of a plant pest, noxious weeds, bee pest, or any other organism that may directly or indirectly affect the plant life of the state as an injurious pest, parasite, predator, or other organism is prohibited, except under special permit issued by the department under rules adopted by the director. A special permit is not required for the introduc(2006 Ed.) Insect Pests and Plant Diseases tion or release within the state of a genetically engineered plant or plant pest organism if the introduction or release has been approved under provisions of federal law and the department has been notified of the planned introduction or release. The department shall be the sole issuing agency for the permits. Except for research projects approved by the department, no permit for a biological control agent shall be issued unless the department has determined that the parasite, predator, or plant pathogen is target organism or plant specific and not likely to become a pest of nontarget plants or other beneficial organisms. The director may also exclude biological control agents that are infested with parasites determined to be detrimental to the biological control efforts of the state. The department may rely upon findings of the United States department of agriculture or any experts that the director may deem appropriate in making a determination about the threat posed by such organisms. In addition, the director may request confidential business information subject to the conditions in RCW 17.24.061. Plant pests, noxious weeds, or other organisms introduced into or released within this state in violation of this section shall be subject to detention and disposition as otherwise provided in this chapter. [1991 c 257 § 9.] 17.24.061 17.24.061 Protection of privileged or confidential information—Procedure—Notice—Declaratory judgment. (1) In submitting data required by this chapter, the applicant may: (a) Mark clearly portions of data which in his or her opinion are trade secrets or commercial or financial information; and (b) submit the marked material separately from other material required to be submitted under this chapter. (2) Notwithstanding any other provision of this chapter or other law, the director shall not make information submitted by an applicant or registrant under this chapter available to the public if, in the judgment of the director, the information is privileged or confidential because it contains or relates to trade secrets or commercial or financial information. Where necessary to carry out the provisions of this chapter, information relating to unpublished formulas of products acquired by authorization of this chapter may be revealed to any state or federal agency consulted and may be revealed at a public hearing or in findings of fact issued by the director. (3) If the director proposes to release for inspection or to reveal at a public hearing or in findings of fact issued by the director, information that the applicant or registrant believes to be protected from disclosure under subsection (2) of this section, he or she shall notify the applicant or registrant in writing, by certified mail. The director may not make this data available for inspection nor reveal the information at a public hearing or in findings of fact issued by the director until thirty days after receipt of the notice by the applicant or registrant. During this period, the applicant or registrant may withdraw the application or may institute an action in the superior court of Thurston county for a declaratory judgment as to whether the information is subject to protection under subsection (2) of this section. [1991 c 257 § 10.] 17.24.071 17.24.071 Compliance agreements. The director may enter into compliance agreements with a person engaged in (2006 Ed.) 17.24.091 growing, handling, or moving articles, bees, plants, or plant products regulated under this chapter. [1991 c 257 § 11.] 17.24.081 17.24.081 Prohibited acts. It shall be unlawful for a person to: (1) Sell, offer for sale, or distribute a noxious weed or a plant or plant product or regulated article infested or infected with a plant pest declared by rule to be a threat to the state’s forest, agricultural, horticultural, floricultural, or beekeeping industries or environment; (2) Knowingly receive a noxious weed, or a plant, plant product, bees, bee hive or appliances, or regulated article sold, given away, carried, shipped, or delivered for carriage or shipment within this state, in violation of the provisions of this chapter or the rules adopted under this chapter; (3) Fail to immediately notify the department and isolate and hold the noxious weed, bees, bee hives or appliances, plants or plant products, or other thing unopened or unused subject to inspection or other disposition as may be provided by the department, where the item has been received without knowledge of the violation and the receiver has become subsequently aware of the potential problem; (4) Knowingly conceal or willfully withhold available information regarding an infected or infested plant, plant product, regulated article, or noxious weed; (5) Introduce or move into this state, or to move or dispose of in this state, a plant, plant product, or other item included in a quarantine, except under rules as may be prescribed by the department, after a quarantine order has been adopted under this chapter against a place, nursery, orchard, vineyard, apiary, other agricultural establishment, county of this state, another state, territory, or a foreign country as to a plant pest, bee pest, or noxious weed or genetically engineered plant or plant pest organism, until such quarantine is removed. [1991 c 257 § 12.] 17.24.091 17.24.091 Impound and disposition. (1) If upon inspection, the director finds that an inspected plant or plant product or bees are infected or infested or that a regulated article is being held or transported in violation of a rule or quarantine of the department, the director shall notify the owner that a violation of this chapter exists. The director may impound or order the impounding of the infected or infested or regulated article in such a manner as may be necessary to prevent the threat of infestation. The notice shall be in writing and sent by certified mail or personal service identifying the impounded article and giving notice that the articles will be treated, returned to the shipper or to a quarantined area, or destroyed in a manner as to prevent infestation. The impounded article shall not be destroyed unless the director determines that (a) no effective treatment can be carried out; and (b) the impounded article cannot be returned to the shipper or shipped back to a quarantine area without threat of infestation to this state; and (c) mere possession by the owner constitutes an emergency. (2) Before taking action to treat, return, or destroy the impounded article, the director shall notify the owner of the owner’s right to a hearing before the director under chapter 34.05 RCW. Within ten days after the notice has been given [Title 17 RCW—page 35] 17.24.100 Title 17 RCW: Weeds, Rodents, and Pests the owner may request a hearing. The request must be in writing. (3) The cost to impound articles along with the cost, if any, to treat, return, or destroy the articles shall be at the owner’s expense. The owner is not entitled to compensation for infested or infected articles destroyed by the department under this section. [1991 c 257 § 13.] 17.24.100 17.24.100 Penalties—Second and subsequent offenses. (1) Except as provided in subsection (2) of this section, every person who violates or fails to comply with any rule or regulation adopted and promulgated by the director of agriculture in accordance with and under the provision of this chapter is guilty of a misdemeanor. (2) A second and each subsequent violation or failure to comply with the provisions of this chapter or rule or regulation adopted hereunder is a gross misdemeanor. [2003 c 53 § 119; 1981 c 296 § 26; 1927 c 292 § 7; RRS § 2786. Prior: 1921 c 105 § 7.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Severability—1981 c 296: See note following RCW 15.08.010. 17.24.101 17.24.101 Statewide survey and control activity. If there is reason to believe that a plant or bee pest may adversely impact the forestry, agricultural, horticultural, floricultural, or related industries of the state; or may cause harm to the environment of the state; or such information is needed to facilitate or allow the movement of forestry, agricultural, horticultural, or related products to out-of-state, foreign and domestic markets, the director may conduct, or cause to be conducted, surveys to determine the presence, absence, or distribution of a pest. The director may take such measures as may be required to control or eradicate such pests where such measures are determined to be in the public interest, are technically feasible, and for which funds are appropriated or provided through cooperative agreements. [1991 c 257 § 14.] 17.24.111 17.24.111 Director’s cooperation with other agencies. The director may enter into cooperative arrangements with a person, municipality, county, Washington State University or any of its experiment stations, or other agencies of this state, and with boards, officers, and authorities of other states and the United States, including the United States department of agriculture, for the inspection of bees, plants and plant parts and products and the control or eradication of plant pests, bee pests, or noxious weeds and to carry out other provisions of this chapter. [1991 c 257 § 15.] 17.24.121 17.24.121 Acquisition of lands, water supply, or other properties for quarantine locations. The director may acquire, in fee or in trust, by gift, or whenever funds are appropriated for such purposes, by purchase, easement, lease, or condemnation, lands or other property, water supplies, as may be deemed necessary for use by the department for establishing quarantine stations for the purpose of the isolation, prevention, eradication, elimination, and control of insect pests or plant pathogens that affect the agricultural or horticultural products of the state; for the propagation of bio[Title 17 RCW—page 36] logical control agents; or the isolation of genetically engineered plants or plant pests; or the isolation of bee pests. [1991 c 257 § 16.] 17.24.131 17.24.131 Requested inspections—Fee for service— Disbursements in lieu of fee. To facilitate the movement or sale of forest, agricultural, floricultural, horticultural and related products, or bees and related products, the director may provide, if requested by farmers, growers, or other interested persons, special inspections, pest identifications, plant identifications, plant diagnostic services, pest control activities, other special certifications and activities not otherwise authorized by statute and prescribe a fee for that service. The fee shall, as closely as practical, cover the cost of the service rendered, including the salaries and expenses of the personnel involved. Moneys collected shall be deposited in the plant pest account, which is hereby created within the agricultural local fund. No appropriation is required for disbursement from the plant pest account to provide the services authorized by this section. In lieu of a fee, assessments and other funds deposited in the plant pest account may be disbursed to provide the services authorized by this section. [1997 c 227 § 2; 1991 c 257 § 17.] Effective date—1997 c 227: See note following RCW 15.17.243. 17.24.141 17.24.141 Penalties—Criminal and civil penalty. Whenever the director finds that a person has committed a violation of any of the provisions of this chapter, and that violation has not been punished pursuant to RCW 17.24.100, the director may impose upon and collect from the violator a civil penalty not exceeding five thousand dollars per violation. Each violation shall be a separate and distinct offense. A person who knowingly, through an act of commission or omission, procures or aids or abets in the violation shall be considered to have violated this section and may be subject to the civil penalty. [1991 c 257 § 18.] 17.24.151 17.24.151 Violations—Costs of control. A person who, through a knowing and willful violation of a quarantine established under this chapter, causes an infestation to become established, may be required to pay the costs of public control or eradication measures caused as a result of that violation. [1991 c 257 § 19.] 17.24.161 17.24.161 Funds for technical and scientific services. The director may, at the director’s discretion, provide funds for technical or scientific services, labor, materials and supplies, and biological control agents for the control of plant pests, bee pests, and noxious weeds. [1991 c 257 § 20.] 17.24.171 17.24.171 Determination of imminent danger of infestation of plant pests or plant diseases—Emergency measures—Conditions—Procedures. (1) If the director determines that there exists an imminent danger of an infestation of plant pests or plant diseases that seriously endangers the agricultural or horticultural industries of the state, or that seriously threatens life, health, economic well-being, or the environment, the director shall request the governor to order emergency measures to control the pests or plant diseases under RCW 43.06.010(13). The director’s findings shall (2006 Ed.) Control of Spartina and Purple Loosestrife contain an evaluation of the affect of the emergency measures on public health. (2) If an emergency is declared pursuant to RCW 43.06.010(13), the director may appoint a committee to advise the governor through the director and to review emergency measures necessary under the authority of RCW 43.06.010(13) and this section and make subsequent recommendations to the governor. The committee shall include representatives of the agricultural industries, state and local government, public health interests, technical service providers, and environmental organizations. (3) Upon the order of the governor of the use of emergency measures, the director is authorized to implement the emergency measures to prevent, control, or eradicate plant pests or plant diseases that are the subject of the emergency order. Such measures, after thorough evaluation of all other alternatives, may include the aerial application of pesticides. (4) Upon the order of the governor of the use of emergency measures, the director is authorized to enter into agreements with individuals, companies, or agencies, to accomplish the prevention, control, or eradication of plant pests or plant diseases, notwithstanding the provisions of chapter 15.58 or 17.21 RCW, or any other statute. (5) The director shall continually evaluate the emergency measures taken and report to the governor at intervals of not less than ten days. The director shall immediately advise the governor if he or she finds that the emergency no longer exists or if certain emergency measures should be discontinued. [2003 c 314 § 6; 1991 c 257 § 21.] Findings—2003 c 314: See note following RCW 17.24.220. 17.24.210 17.24.210 Indemnity contracts for damages resulting from prevention, control, or eradication measures— Authorized—Conditions. The director of agriculture may, on the behalf of the state of Washington, enter into indemnity contracts wherein the state of Washington agrees to repay any person, firm, corporation, or other entity acting under the direction or control of the proper authority to provide plant pest or plant disease prevention, control, or eradication measures as provided in this chapter or any rule adopted pursuant to the provisions of this chapter, for losses and damages incurred as a result of such prevention, control, or eradication measures if all of the following conditions occur: (1) At the time of the incident the worker is performing services as an emergency measures worker and is acting within the course of his duties as an emergency measures worker; (2) At the time of the injury, loss, or damage, the organization providing emergency measures by which the worker is employed is an approved organization for providing emergency measures; (3) The injury, loss, or damage is proximately caused by his service either with or without negligence as an emergency measures worker; (4) The injury, loss, or damage is not caused by the intoxication of the worker; and (5) The injury, loss, or damage is not due to wilful misconduct or gross negligence on the part of a worker. Where an act or omission by an emergency services provider in the course of providing emergency services injures a (2006 Ed.) Chapter 17.26 person or property, the provider and the state may be jointly and severally liable for the injury, if state liability is proved under existing or hereafter enacted law. Each person, firm, corporation, or other entity authorized to provide the prevention, control, or eradication measures implementing a program approved under *RCW 17.24.200 shall be identified on a list approved by the director. For the purposes of this section, each person on the list shall be known, for the duration of the person’s services under the program, as "an emergency measures worker." [1982 c 153 § 3.] *Reviser’s note: RCW 17.24.200 was repealed by 1991 c 257 § 23. Severability—1982 c 153: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1982 c 153 § 5.] Effective date—1982 c 153: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect April 1, 1982." [1982 c 153 § 7.] 17.24.220 17.24.220 Sudden oak death syndrome—Coordinated response effort. The department and the department of natural resources shall coordinate their sudden oak death syndrome response efforts with other plant pest agencies and private organizations to exchange information, monitor the confirmed incidences of the disease, and take action as appropriate under existing plant pest control authorities to prevent the introduction of the disease into Washington and to control or eradicate the disease if it is determined to be present in the state. [2003 c 314 § 8.] Findings—2003 c 314: "The legislature finds that since 1995 large numbers of oak and tanoak trees have been dying in the coastal counties of California. The legislature also finds that the disease causing the tree loss, which is commonly referred to as sudden oak death syndrome, has, as of July 27, 2003, been confirmed in twelve California counties, and one Oregon county. The legislature also finds that in addition to affecting several species of oak, this disease has been confirmed to affect several plant species common in Washington’s forests, including Douglas Fir, big leaf maple, huckleberry, rhododendron, madrone, and manzanita. The legislature recognizes that the state of California and the United States department of agriculture have adopted restrictions on the movement of articles that may host the disease, and the state of Oregon and the Canadian government have adopted restrictions on the importation of potential host articles. The legislature finds that an introduction of sudden oak death syndrome into Washington could cause potential damage to the state’s forest health, leading to both economic and ecological losses." [2003 c 314 § 7.] 17.24.900 17.24.900 Captions not law—1991 c 257. Captions as used in RCW 17.24.005 through 17.24.171 constitute no part of the law. [1991 c 257 § 24.] Chapter 17.26 Chapter 17.26 RCW CONTROL OF SPARTINA AND PURPLE LOOSESTRIFE Sections 17.26.005 17.26.006 17.26.007 17.26.010 17.26.011 17.26.015 17.26.020 17.26.900 17.26.901 Findings. Findings—Purpose. Findings—Application to appropriations. Restriction on state agencies and local governments. Spartina removal includes restoration—Study. Lead agency—Responsibilities. High priority for all state agencies—Definitions. Severability—1995 c 255. Effective date—1995 c 255. [Title 17 RCW—page 37] 17.26.005 Title 17 RCW: Weeds, Rodents, and Pests 17.26.005 17.26.005 Findings. The legislature finds that: (1) Spartina alterniflora, Spartina anglica, Spartina x townsendii, and Spartina patens which are collectively called spartina are not native to the state of Washington nor to the west coast of North America. This noxious weed was inadvertently introduced into the wetlands of the state and is now aggressively invading new areas to the detriment of native ecosystems and aquatic habitat. The spread of spartina threatens to permanently convert and displace native freshwater and saltwater wetlands and intertidal zones, including critical habitat for migratory birds, many fish species, bivalves, invertebrates, marine mammals, and other animals. The continued spread of spartina will permanently reduce the diversity and the quantity of these species and will have a significant negative environmental impact. Spartina poses a significant hydrological threat. Clumps and meadows of spartina are dense environments that bind sediments and lift the intertidal gradient up out of the intertidal zone through time. This process reduces flows during flood conditions, raises flood levels, and significantly alters the hydrological regime of estuarine areas. Spartina spreads by rhizomes and seed production. Through lateral growth by rhizomes, spartina establishes a dense monotypic meadow. Through seed production and the spread of seed through the air and by water, spartina is currently being spread to other states and to Canadian provinces. (2) Purple loosestrife was first documented in the state in 1929 along freshwater shorelands. It is now present throughout the state and is particularly abundant in Grant county and its neighboring counties. The plant appears to be colonizing more rapidly on the eastern side of the state than on the western side. It was first introduced to the Winchester wasteway area in the 1960’s and has invaded the area rapidly. Purple loosestrife is displacing native plants and as a result is threatening an extremely important part of this state’s wildlife habitat. Lythrum salicaria and L. virgatum are closely related loosestrife species that are morphologically similar and not easily distinguished from each other in the field. Both species have been referred to as purple loosestrife. (3) Current laws and rules designed to protect the environment and preserve the wetland habitats, fish, and wildlife of the state are not designed to respond to an ecosystem-wide threat of this kind. State and federal agencies, local governments, weed boards, concerned individuals, and property owners attempting to deal with the ecological emergency posed by spartina and purple loosestrife infestations have been frustrated by interagency disagreements, demands for an undue amount of procedural and scientific process and information, dilatory appeals, and the improper application of laws and regulations by agencies that have in fact undermined the legislative purposes of those same laws while ignoring the long-term implications of delay and inaction. There is a compelling need for strong leadership, coordination, and reporting by a single state agency to respond appropriately to this urgent environmental challenge. Any further delay of control efforts will significantly increase the cost of spartina and purple loosestrife control and reduce the likelihood of long-term success. Control efforts must be coordinated across political and ownership boundaries in order to be effective. [Title 17 RCW—page 38] (4) The presence of noxious weeds on public lands constitutes a public nuisance and negatively impacts public and private lands. The legislature finds that control and eradication of noxious weeds on private lands is in the public interest. [1995 c 255 § 1.] 17.26.006 17.26.006 Findings—Purpose. This state is facing an environmental disaster that will affect other states as well as other nations. The legislature finds that six years is sufficient time for state agencies to debate solutions to the spartina and purple loosestrife problems that are occurring in state waters. One of the purposes of chapter 255, Laws of 1995 is to focus agency action on control and future eradication of spartina and purple loosestrife. It is the mandate of the legislature that one state agency, the department of agriculture, be responsible for a unified effort to eliminate spartina and control purple loosestrife, with the advice of the state noxious weed control board, and that state agency shall be directly accountable to the legislature on the progress of the spartina eradication and purple loosestrife control program. [1995 c 255 § 2.] 17.26.007 17.26.007 Findings—Application to appropriations. This section applies to appropriations made to the department of agriculture specifically for the removal or control of spartina or purple loosestrife or both plants. The legislature finds that: The presence of spartina or purple loosestrife on private lands threatens wildlife habitat and provides a source of renewed infestation for public lands; and effective eradication or control of spartina or purple loosestrife requires concerted efforts on both public and private lands to protect public resources. The department of agriculture may grant funds to other state agencies, local governments, and nonprofit corporations for eradication or control purposes and may use those moneys itself. The department of agriculture may match private funds for eradication or control programs on private property on a fifty-fifty matching basis. The accounting and supervision of the funds at the local level shall be conducted by the department of agriculture. [1995 c 255 § 11.] 17.26.010 17.26.010 Restriction on state agencies and local governments. State agencies and local governments may not use any other local, state, or federal permitting requirement, regulatory authority, or legal mechanism to override the legislative intent and statutory mandates of chapter 255, Laws of 1995. [1995 c 255 § 8.] 17.26.011 17.26.011 Spartina removal includes restoration— Study. Spartina removal shall include restoration to return intertidal land and other infested lands to the condition found on adjacent unaffected lands in the same tidal elevation. The department of fish and wildlife, the department of ecology, the department of agriculture, and the department of natural resources shall develop a restoration plan in cooperation with owners of spartina infested lands and shall submit the plan to the appropriate standing committees of the house of representatives and the senate by December 31, 1995. [1995 c 255 § 9.] (2006 Ed.) Mosquito Control Districts 17.26.015 17.26.015 Lead agency—Responsibilities. (1) The state department of agriculture is the lead agency for the control of spartina and purple loosestrife with the advice of the state noxious weed control board. (2) Responsibilities of the lead agency include: (a) Coordination of the control program including memorandums of understanding, contracts, and agreements with local, state, federal, and tribal governmental entities and private parties; (b) Preparation of a statewide spartina management plan utilizing integrated vegetation management strategies that encompass all of Washington’s tidelands. The plan shall be developed in cooperation with local, state, federal, and tribal governments, private landowners, and concerned citizens. The plan shall prioritize areas for control. Nothing in this subsection prohibits the department from taking action to control spartina in a particular area of the state in accordance with a plan previously prepared by the state while preparing the statewide plan; (c) Directing on the ground control efforts that include, but are not limited to: (i) Control work and contracts; (ii) spartina survey; (iii) collection and maintenance of spartina location data; (iv) purchasing equipment, goods, and services; (v) survey of threatened and endangered species; and (vi) site-specific environmental information and documents; and (d) Evaluating the effectiveness of the control efforts. The lead agency shall report to the appropriate standing committees of the house of representatives and the senate no later than December 15th of each year through the year 1999 on the progress of the program, the number of acres treated by various methods of control, and on the funds spent. [1998 c 245 § 4; 1995 c 255 § 10.] 17.26.900 17.26.900 Severability—1995 c 255. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1995 c 255 § 14.] 17.26.901 17.26.901 Effective date—1995 c 255. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [May 5, 1995]. [1995 c 255 § 15.] Chapter 17.28 *Reviser’s note: RCW 77.55.150 was recodified as RCW 77.55.081 pursuant to 2005 c 146 § 1001. (2006 Ed.) Chapter 17.28 RCW MOSQUITO CONTROL DISTRICTS Sections 17.28.010 17.28.020 17.28.030 17.28.040 17.28.050 17.28.060 17.28.070 17.28.080 17.28.090 17.28.100 17.28.110 17.28.120 17.28.130 17.28.140 17.28.150 17.28.160 17.28.170 17.26.020 17.26.020 High priority for all state agencies—Definitions. (1) Facilitating the control of spartina and purple loosestrife is a high priority for all state agencies. (2) The department of natural resources is responsible for spartina and purple loosestrife control on state-owned aquatic lands managed by the department of natural resources. (3) The department of fish and wildlife is responsible for spartina and purple loosestrife control on state-owned aquatic lands managed by the department of fish and wildlife. (4) The state parks and recreation commission is responsible for spartina and purple loosestrife control on stateowned aquatic lands managed by the state parks and recreation commission. (5) Unless the context clearly requires otherwise, the definitions in this subsection apply throughout this chapter, RCW 90.48.020, 90.58.030, and *77.55.150: (a) "Spartina" means Spartina alterniflora, Spartina anglica, Spartina x townsendii, and Spartina patens. (b) "Purple loosestrife" means Lythrum salicaria and Lythrum virgatum. (c) "Aquatic noxious weed" means an aquatic weed on the state noxious weed list adopted under RCW 17.10.080. [2003 c 39 § 10; 1995 c 255 § 12.] Chapter 17.28 17.28.175 17.28.185 17.28.250 17.28.251 17.28.252 17.28.253 17.28.254 17.28.255 17.28.256 17.28.257 17.28.258 17.28.260 17.28.270 17.28.280 17.28.290 17.28.300 17.28.310 17.28.320 17.28.330 17.28.340 17.28.350 17.28.360 17.28.370 17.28.380 17.28.390 17.28.400 17.28.410 17.28.420 Definitions. Districts may be organized in counties—Petition, presentment, signatures. Petition method—Description of boundaries—Verification of signatures—Resolution to include city. Petition method—Publication of petition and notice of meeting. Resolution method. Hearing—Defective petition—Establishment of boundaries. Procedure to include other territory. Determination of public necessity and compliance with chapter. Declaration establishing and naming district—Election to form district—Establishment of district. Election on proposition to levy tax. Board of trustees—Composition. Board of trustees—Name of board—Qualification of members. Board of trustees—Terms—Vacancies. Board of trustees—Organization—Officers—Compensation—Expenses. Board of trustees—Meetings—Rules—Quorum. Powers of district. Mosquito breeding places declared public nuisance—Abatement. Control of mosquitos—Declaration that owner is responsible. Control of mosquitos—Noncompliance by landowner with regulations. Interference with entry or work of district—Penalty. Borrowing money or issuing warrants in anticipation of revenue. Excess levy authorized. District boundaries for tax purposes. Abatement, extermination declared necessity and benefit to land. Classification of property—Assessments. Assessments—Roll, hearings, notices, objections, appeal, etc. Assessments—Payment, lien, delinquencies, foreclosure, etc. County treasurer—Duties. General obligation bonds—Excess property tax levies. Collection, disposition, of revenue—Depository. Withdrawal of funds. Matching funds. Expenses of special elections. Annual certification of assessed valuation. Annexation of territory authorized—Consent by city. Annexation of territory authorized—Petition—Hearing— Boundaries. Annexation of territory authorized—Order of annexation— Election. Annexation of territory authorized—Filing of order—Composition of board. Consolidation of districts—Initial proceedings. Consolidation of districts—Concurrent resolution. Consolidation of districts—Election. Consolidation of districts—Order of consolidation. Consolidation of districts—Composition of board. Consolidation of districts—Powers of consolidated district— Indebtedness of former districts. Dissolution—Election. [Title 17 RCW—page 39] 17.28.010 17.28.430 17.28.440 17.28.450 17.28.900 Title 17 RCW: Weeds, Rodents, and Pests Dissolution—Result of election to be certified—Certificate of dissolution. Dissolution—Disposition of property. Dissolution—Collection of taxes to discharge indebtedness. Severability—1957 c 153. Special purpose districts, expenditures to recruit job candidates: RCW 42.24.170. 17.28.010 17.28.010 Definitions. When used in this chapter, the following terms, words or phrases shall have the following meaning: (1) "District" means any mosquito control district formed pursuant to this chapter. (2) "Board" or "district board" means the board of trustees governing the district. (3) "County commissioners" means the governing body of the county. (4) "Unit" means all unincorporated territory in a proposed district in one county, regarded as an entity, or each city in a proposed district, likewise regarded as an entity. (5) "Territory" means any city or county or portion of either or both city or county having a population of not less than one hundred persons. (6) "Person" means any individual, firm, partnership, corporation, company, association, or joint stock association, and the legal successor thereof. [1957 c 153 § 1.] transmit the same to the board of commissioners of the county in which the greater area of the proposed district is located, together with his certificate as to the sufficiency thereof. [1957 c 153 § 3.] 17.28.040 17.28.040 Petition method—Publication of petition and notice of meeting. Upon receipt of a duly certified petition, the board of commissioners shall cause the text of the petition to be published once a week for at least three consecutive weeks in one or more newspapers of general circulation within the county where the petition is presented and at each city a portion of which is included in the proposed district. If any portion of the proposed district lies in another county, the petition and notice shall be likewise published in that county. Only one copy of the petition need be published even though the district embraces more than one unit. No more than five of the names attached to the petition need appear in the publication of the petition and notice, but the number of signers shall be stated. With the publication of the petition there shall be published a notice of the time of the meeting of the county commissioners when the petition will be considered, stating that all persons interested may appear and be heard. [1957 c 153 § 4.] 17.28.050 17.28.020 17.28.020 Districts may be organized in counties— Petition, presentment, signatures. Any number of units of a territory within the state of Washington in Adams, Benton, Franklin, Grant, Kittitas, Walla Walla and Yakima counties or any other county may be organized as a mosquito control district under the provisions of this chapter. A petition to form a district may consist of any number of separate instruments which shall be presented at a regular meeting of the county commissioners of the county in which the greater area of the proposed district is located. Petitions shall be signed by registered voters of each unit of the proposed district, equal in number to not less than ten percent of the votes cast in each unit respectively for the office of governor at the last gubernatorial election prior to the time of presenting the petition. [1969 c 96 § 1; 1957 c 153 § 2.] 17.28.030 17.28.030 Petition method—Description of boundaries—Verification of signatures—Resolution to include city. Before a city can be included as a part of the proposed district its governing body shall have requested that the city be included by resolution, duly authenticated. The petition shall set forth and describe the boundaries of the proposed district and it shall request that it be organized as a mosquito control district. Upon receipt of such a petition, the auditor of the county in which the greater area of the proposed district is located shall be charged with the responsibility of examining the same and certifying to the sufficiency of the signatures thereon. For the purpose of examining the signatures on such petitions, the auditor shall be permitted access to the voters’ registration books of each city and county located in the proposed district and may appoint the respective county auditors and city clerks thereof as his deputies. No person may withdraw his name from a petition after it has been filed with the auditor. Within thirty days following the receipt of such petition, the auditor shall [Title 17 RCW—page 40] 17.28.050 Resolution method. Such districts may also be organized upon the adoption by the county commissioners of a resolution of intention so to do, in lieu of the procedure hereinbefore provided for the presentation of petitions. In the event the county commissioners adopt a resolution of intention, such resolution shall describe the boundaries of the proposed district and shall set a time and place at which they will consider the organization of the district, and shall state that all persons interested may appear and be heard. Such resolution of intention shall be published in the same manner and for the same length of time as a petition. [1957 c 153 § 5.] 17.28.060 17.28.060 Hearing—Defective petition—Establishment of boundaries. At the time stated in the notice of the filing of the petition or the time mentioned in the resolution of intention, the county commissioners shall consider the organization of the district and hear those appearing and all protests and objections to it. The commissioners may adjourn the hearing from time to time, not exceeding two months in all. No defect in the contents of the petition or in the title to or form of the notice or signatures, or lack of signatures thereto, shall vitiate any proceedings if the petition has a sufficient number of qualified signatures. On the final hearing the county commissioners shall make such changes in the proposed boundaries as are advisable, and shall define and establish the boundaries. [1957 c 153 § 6.] 17.28.070 17.28.070 Procedure to include other territory. If the county commissioners deem it proper to include any territory not proposed for inclusion within the proposed boundaries, they shall first cause notice of intention to do so to be mailed to each owner of land in the territory whose name appears as owner on the last completed assessment roll of the county in (2006 Ed.) Mosquito Control Districts which the territory lies, addressed to the owner at his address given on the assessment roll, or if no address is given, to his last known address; or if it is not known, at the county seat of the county in which his land lies. The notice shall describe the territory and shall fix a time, not less than two weeks from the date of mailing, when all persons interested may appear before the county commissioners and be heard. The boundaries of a district lying in a city shall not be altered unless the governing board of the city, by resolution, consents to the alteration. [1957 c 153 § 7.] 17.28.080 17.28.080 Determination of public necessity and compliance with chapter. Upon the hearing of the petition the county commissioners shall determine whether the public necessity or welfare of the proposed territory and of its inhabitants requires the formation of the district, and shall also determine whether the petition complies with the provisions of this chapter, and for that purpose shall hear all competent and relevant testimony offered. [1957 c 153 § 8.] 17.28.090 17.28.090 Declaration establishing and naming district—Election to form district—Establishment of district. If, from the testimony given before the county commissioners, it appears to that board that the public necessity or welfare requires the formation of the district, it shall, by an order entered on its minutes, declare that to be its finding, and shall further declare and order that the territory within the boundaries so fixed and determined be organized as a district, under an appropriate name to be selected by the county commissioners, subject to approval of the voters of the district as hereinafter provided. The name shall contain the words "mosquito control district." At the time of the declaration establishing and naming the district, the county commissioners shall by resolution call a special election to be held not less than thirty days and not more than sixty days from the date thereof, and shall cause to be published a notice of such election at least once a week for three consecutive weeks in a newspaper of general circulation in the county, setting forth the hours during which the polls will be open, the boundaries of the proposed district as finally adopted, and the object of the election. If any portion of the proposed district lies in another county, a notice of such election shall likewise be published in that county. The election on the formation of the mosquito control district shall be conducted by the auditor of the county in which the greater area of the proposed district is located in accordance with the general election laws of the state and the results thereof shall be canvassed by that county’s canvassing board. For the purpose of conducting an election under this section, the auditor of the county in which the greater area of the proposed district is located may appoint the auditor of any county or the city clerk of any city lying wholly or partially within the proposed district as his deputies. No person shall be entitled to vote at such election unless he is a qualified voter under the laws of the state in effect at the time of such election and has resided within the mosquito control district for at least thirty days preceding the date of the election. The ballot proposition shall be in substantially the following form: (2006 Ed.) 17.28.100 "Shall a mosquito control district be established for the area described in a resolution of the board of commissioners of . . . . . . county adopted on the . . . . day of . . . . . ., 19 . . .? YES NO .............................. .............................. â â" If a majority of the persons voting on the proposition shall vote in favor thereof, the mosquito control district shall thereupon be established and the county commissioners of the county in which the greater area of the district is situated shall immediately file for record in the office of the county auditor of each county in which any portion of the land embraced in the district is situated, and shall also forward to the county commissioners of each of the other counties, if any, in which any portion of the district is situated, and also shall file with the secretary of state, a certified copy of the order of the county commissioners. From and after the date of the filing of the certified copy with the secretary of state, the district named therein is organized as a district, with all the rights, privileges, and powers set forth in this chapter, or necessarily incident thereto. If a majority of the persons voting on the proposition shall vote in favor thereof, all expenses of the election shall be paid by the mosquito control district when organized. If the proposition fails to receive a majority of votes in favor, the expenses of the election shall be borne by the respective counties in which the district is located in proportion to the number of votes cast in said counties. [1957 c 153 § 9.] 17.28.100 17.28.100 Election on proposition to levy tax. At the same election there shall be submitted to the voters residing within the district, for their approval or rejection, a proposition authorizing the mosquito control district, if formed, to levy at the earliest time permitted by law on all taxable property located within the mosquito control district a general tax, for one year, of up to twenty-five cents per thousand dollars of assessed value in excess of any constitutional or statutory limitation for authorized purposes of the mosquito control district. The proposition shall be expressed on the ballots in substantially the following form: "ONE YEAR . . . . . . CENTS PER THOUSAND DOLLARS OF ASSESSED VALUE LEVY Shall the mosquito control district, if formed, levy a general tax of . . . . . . cents per thousand dollars of assessed value for one year upon all the taxable property within said district in excess of the constitutional and/or statutory tax limits for authorized purposes of the district? â YES ............................. NO ............................. â" Such proposition to be effective must be approved by a majority of at least three-fifths of the persons voting on the proposition to levy such tax in the manner set forth in Article VII, section 2(a) of the Constitution of this state, as amended by Amendment 59 and as thereafter amended. [1982 c 217 § 1; 1973 1st ex.s. c 195 § 2; 1957 c 153 § 10.] Severability—Effective dates and termination dates—Construction—1973 1st ex.s. c 195: See notes following RCW 84.52.043. [Title 17 RCW—page 41] 17.28.110 Title 17 RCW: Weeds, Rodents, and Pests 17.28.110 Board of trustees—Composition. Within thirty days after the filing with the secretary of state of the certified copy of the order of formation, a governing board of trustees for the district shall be appointed. The district board shall be appointed as follows: (1) If the district is situated in one county only and consists wholly of unincorporated territory, five members shall be appointed by the county commissioners of the county. (2) If the district is situated entirely in one county and includes both incorporated and unincorporated territory one member shall be appointed from each commissioner district lying wholly or partly within the district by the county commissioners of the county, and one member from each city, the whole or part of which is situated in the district, by the governing body of the city; but if the district board created consists of less than five members, the county commissioners shall appoint from the district at large enough additional members to make a board of five members. (3) If the district is situated in two or more counties and is comprised wholly of incorporated territory, one member shall be appointed from each commissioner district of each county or portion of a county situated in the district by the county commissioners; but if the district board created consists of less than five members, the county commissioners of the county in which the greater area of the district is situated shall appoint from the district at large enough additional members to make a board of five members. (4) If the district is situated in two or more counties and consists of both incorporated and unincorporated territory, one member shall be appointed by the county commissioners of each of the counties from that portion of the district lying within each commissioner district within its jurisdiction; and one member from each city, a portion of which is situated in the district by the governing body of the city; but if the board created consists of less than five members, the county commissioners in which the greater area of the district is situated shall appoint from the district at large enough additional members to make a board of five members. [1959 c 64 § 1; 1957 c 153 § 11.] 17.28.110 17.28.120 Board of trustees—Name of board—Qualification of members. The district board shall be called "The board of trustees of . . . . . . mosquito control district." Each member of the board appointed by the governing body of a city shall be an elector of the city from which he is appointed and a resident of that portion of the city which is in the district. Each member appointed from a county or portion of a county shall be an elector of the county and a resident of that portion of the county which is in the district. Each member appointed at large shall be an elector of the district. [1957 c 153 § 12.] 17.28.120 17.28.130 17.28.130 Board of trustees—Terms—Vacancies. The members of the first board in any district shall classify themselves by lot at their first meeting so that: (1) If the total membership is an even number, the terms of one-half the members will expire at the end of one year, and the terms of the remainder at the end of two years, from the second day of the calendar year next succeeding their appointment. [Title 17 RCW—page 42] (2) If the total membership is an odd number, the terms of a bare majority of the members will expire at the end of one year, and the terms of the remainder at the end of two years, from the second day of the calendar year next succeeding their appointment. The term of each subsequent member is two years from and after the expiration of the term of his predecessor. In event of the resignation, death, or disability of any member, his successor shall be appointed by the governing body which appointed him. [1957 c 153 § 13.] 17.28.140 17.28.140 Board of trustees—Organization—Officers—Compensation—Expenses. The members of the first district board shall meet on the first Monday subsequent to thirty days after the filing with the secretary of state of the certificate of incorporation of the district. They shall organize by the election of one of their members as president and one as secretary. The members of the district board shall serve without compensation; but the necessary expenses of each member for actual traveling in connection with meetings or business of the board may be allowed and paid. The secretary shall receive such compensation as shall be fixed by the district board. [1957 c 153 § 14.] 17.28.150 17.28.150 Board of trustees—Meetings—Rules— Quorum. The district board shall provide for the time and place of holding its regular meetings, and the manner of calling them, and shall establish rules for its proceedings. Special meetings may be called by three members, notice of which shall be given to each member at least twenty-four hours before the meeting. All of its sessions, whether regular or special, shall be open to the public. A majority of the members shall constitute a quorum for the transaction of business. [1957 c 153 § 15.] 17.28.160 17.28.160 Powers of district. A mosquito control district organized under this chapter may: (1) Take all necessary or proper steps for the extermination of mosquitoes. (2) Subject to the paramount control of the county or city in which they exist, abate as nuisances all stagnant pools of water and other breeding places for mosquitoes. (3) If necessary or proper, in the furtherance of the objects of this chapter, build, construct, repair, and maintain necessary dikes, levees, cuts, canals, or ditches upon any land, and acquire by purchase, condemnation, or by other lawful means, in the name of the district, any lands, rights of way, easements, property, or material necessary for any of those purposes. (4) Make contracts to indemnify or compensate any owner of land or other property for any injury or damage necessarily caused by the use or taking of property for dikes, levees, cuts, canals, or ditches. (5) Enter upon without hindrance any lands within the district for the purpose of inspection to ascertain whether breeding places of mosquitoes exist upon such lands; or to abate public nuisances in accordance with this chapter; or to ascertain if notices to abate the breeding of mosquitoes upon (2006 Ed.) Mosquito Control Districts such lands have been complied with; or to treat with oil or other larvicidal material any breeding places of mosquitoes upon such lands. (6) Sell or lease any land, rights of way, easements, property or material acquired by the district. (7) Issue warrants payable at the time stated therein to evidence the obligation to repay money borrowed or any other obligation incurred by the district, warrants so issued to draw interest at a rate fixed by the board payable annually or semiannually as the board may prescribe. (8) Make contracts with the United States, or any state, municipality, or any department of those entities for carrying out the general purpose for which the district is formed. (9) Acquire by gift, devise, bequest, lease, or purchase, real and personal property necessary or convenient for its purposes. (10) Make contracts, employ engineers, health officers, sanitarians, physicians, laboratory personnel, attorneys, and other technical or professional assistants; and publish information or literature and do any and all other things necessary or incident to the powers granted by, and to carry out the projects specified in this chapter. [1981 c 156 § 1; 1957 c 153 § 16.] 17.28.170 17.28.170 Mosquito breeding places declared public nuisance—Abatement. Any breeding place for mosquitoes which exists by reason of any use made of the land on which it is found or of any artificial change in its natural condition is a public nuisance: PROVIDED, That conditions or usage of land which are beyond the control of the landowner or are not contrary to normal, accepted practices of water usage in the district, shall not be considered a public nuisance. The nuisance may be abated in any action or proceeding, or by any remedy provided by law. [1959 c 64 § 2; 1957 c 153 § 17.] 17.28.253 notification is reasonably expected to have been received by the owner or agent by certified mail or personal service. (2) If the owner does not take sufficient action to control mosquitos in accordance with the notice, the board may control them, or cause their being controlled, at the expense of the owner. The amount of such expense shall constitute a lien against the property and may be enforced by proceedings on such lien. The owner shall be liable for payment of the expenses, and nothing in this chapter shall be construed to prevent collection of any judgment on account thereof by any means available pursuant to law, in substitution for enforcement of the lien. Necessary costs and expenses, including reasonable attorneys’ fees, incurred by the board in carrying out this section, may be recovered at the same time, as a part of the action filed under this section. The venue in proceedings for reimbursement of expenses brought pursuant to this section, including those involving governmental entities, shall be the county in which the real property that is the subject of the action is situated. [1990 c 300 § 3.] 17.28.250 17.28.250 Interference with entry or work of district—Penalty. Any person who obstructs, hinders, or interferes with the entry upon any land within the district of any officer or employee of the district in the performance of his duty, and any person who obstructs, interferes with, molests, or damages any work performed by the district, is guilty of a misdemeanor. [1957 c 153 § 25.] 17.28.251 17.28.251 Borrowing money or issuing warrants in anticipation of revenue. A mosquito control district may, prior to the receipt of taxes raised by levy, borrow money or issue warrants of the district in anticipation of revenue, and such warrants shall be redeemed from the first money available from such taxes. [1959 c 64 § 3.] 17.28.252 17.28.175 17.28.175 Control of mosquitos—Declaration that owner is responsible. A board established pursuant to RCW 17.28.110 may adopt, by resolution, a policy declaring that the control of mosquitos within the district is the responsibility of the owner of the land from which the mosquitos originate. To protect the public health or welfare, the board may, in accordance with policies and standards established by the board following a public hearing, adopt a regulation requiring owners of land within the district to perform such acts as may be necessary to control mosquitos. [1990 c 300 § 2.] 17.28.185 17.28.185 Control of mosquitos—Noncompliance by landowner with regulations. (1) Whenever the board finds that the owner has not taken prompt and sufficient action to comply with regulations adopted pursuant to RCW 17.28.175 to control mosquitos originating from the owner’s land, the board shall notify the owner that a violation of this chapter exists. The notice shall be in writing and sent by certified mail, or served by personal service. The notice shall provide a reasonable time period for action to be taken to control mosquitos. If the board deems that a public nuisance or threat to public health or welfare caused by the mosquito infestation is sufficiently severe, it may require immediate control action to be taken within forty-eight hours following the time that (2006 Ed.) 17.28.252 Excess levy authorized. A mosquito control district shall have the power to levy additional taxes in excess of the constitutional and/or statutory limitations for any of the authorized purposes of such district, not in excess of fifty cents per thousand dollars of assessed value per year when authorized so to do by the electors of such district by a threefifths majority of those voting on the proposition in the manner set forth in Article VII, section 2(a) of the Constitution of this state, as amended by Amendment 59 and as thereafter amended at such time as may be fixed by the board of trustees for the district, which special election may be called by the board of trustees of the district, at which special election the proposition of authorizing such excess levy shall be submitted in such form as to enable the voters favoring the proposition to vote "Yes" and those opposing thereto to vote "No". Nothing herein shall be construed to prevent holding the foregoing special election at the same time as that fixed for a general election. [1973 1st ex.s. c 195 § 3; 1959 c 64 § 4.] Severability—Effective dates and termination dates—Construction—1973 1st ex.s. c 195: See notes following RCW 84.52.043. 17.28.253 17.28.253 District boundaries for tax purposes. For the purpose of property taxation and the levying of property taxes the boundaries of the mosquito control district shall be the established official boundary of such district existing on [Title 17 RCW—page 43] 17.28.254 Title 17 RCW: Weeds, Rodents, and Pests the first day of September of the year in which the levy is made, and no such levy shall be made for any mosquito control district whose boundaries are not duly established on the first day of September of such year. [1959 c 64 § 5.] 17.28.254 17.28.254 Abatement, extermination declared necessity and benefit to land. It is hereby declared that whenever the public necessity or welfare has required the formation of a mosquito control district, the abatement or extermination of mosquitoes within the district is of direct, economic benefit to the land located within such district and is necessary for the protection of the public health, safety and welfare of those residing therein. [1959 c 64 § 6.] 17.28.255 17.28.255 Classification of property—Assessments. The board of trustees shall annually determine the amount of money necessary to carry on the operations of the district and shall classify the property therein in proportion to the benefits to be derived from the operations of the district and in accordance with such classification shall apportion and assess the several lots, blocks, tracts, and parcels of land or other property within the district, which assessment shall be collected with the general taxes of the county or counties. A mosquito control district must use the assessed value applicable to forest land, farm and agricultural land, or open space land, under chapter 84.33 or 84.34 RCW, when the land has been designated as such and the assessed value is used as a component in determining the district assessment. If a district uses a fractional amount of assessed value as a component in determining the district assessment, then a fractional amount of the value applicable to forest land, farm and agricultural land, or open space land, under chapter 84.33 or 84.34 RCW, shall be used. [2005 c 181 § 2; 1959 c 64 § 7.] 17.28.260 17.28.260 General obligation bonds—Excess property tax levies. A mosquito control district shall have the power to issue general obligation bonds and to pledge the full faith and credit of the district to the payment thereof, for authorized capital purposes of the mosquito control district, and to provide for the retirement thereof by excess property tax levies whenever a proposition authorizing both the issuance of such bonds and the imposition of such excess levies has been approved by the voters of the district, at an election held pursuant to RCW 39.36.050, by three-fifths of the persons voting on said proposition at said election at which such election the total number of persons voting on such bond proposition shall constitute not less than forty percent of the total number of votes cast within the area of said mosquito control district at the last preceding county or state general election. Mosquito control districts may become indebted for capital purposes up to an amount equal to one and one-fourth percent of the value of the taxable property in the district, as the term "value of the taxable property" is defined in RCW 39.36.015. Such bonds shall never be issued to run for a longer period than ten years from the date of issue and shall be issued and sold in accordance with chapter 39.46 RCW. [1984 c 186 § 5; 1983 c 167 § 18; 1973 1st ex.s. c 195 § 4; 1970 ex.s. c 56 § 5; 1969 ex.s. c 232 § 65; 1957 c 153 § 26.] Purpose—1984 c 186: See note following RCW 39.46.110. Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. Severability—Effective dates and termination dates—Construction—1973 1st ex.s. c 195: See notes following RCW 84.52.043. Purpose—1970 ex.s. c 56: See note following RCW 39.52.020. Validation—Saving—Severability—1969 ex.s. c 232: See notes following RCW 39.52.020. 17.28.270 17.28.256 17.28.256 Assessments—Roll, hearings, notices, objections, appeal, etc. The board of trustees in assessing the property within the district and the rights, duties and liabilities of property owners therein shall be governed, insofar as is consistent with this chapter, by the provisions for county road improvement districts as set forth in RCW 36.88.090 through 36.88.110. [1959 c 64 § 8.] 17.28.257 17.28.257 Assessments—Payment, lien, delinquencies, foreclosure, etc. The provisions of RCW 36.88.120, 36.88.140, 36.88.150, 36.88.170 and 36.88.180 governing the liens, collection, payment of assessments, delinquent assessments, interest and penalties, lien foreclosure and foreclosed property of county road improvement districts shall govern such matters as applied to mosquito control districts. [1959 c 64 § 9.] 17.28.270 Collection, disposition, of revenue— Depository. All taxes levied under this chapter shall be computed and entered on the county assessment roll and collected at the same time and in the same manner as other county taxes. When collected, the taxes shall be paid into the county treasury for the use of the district. If the district is in more than one county the treasury of the county in which the district is organized is the depository of all funds of the district. The treasurers of the other counties shall, at any time, not oftener than twice each year, upon the order of the district board settle with the district board and pay over to the treasurer of the county where the district is organized all money in their possession belonging to the district. The last named treasurer shall give a receipt for the money and place it to the credit of the district. [1957 c 153 § 27.] 17.28.280 17.28.258 17.28.258 County treasurer—Duties. The county treasurer shall collect all mosquito control district assessments, and the duties and responsibilities herein imposed upon him shall be among the duties and responsibilities of his office for which his bond is given as county treasurer. The collection and disposition of revenue from such assessments and the depositary thereof shall be the same as for tax revenues of such districts as provided in RCW 17.28.270. [1959 c 64 § 10.] [Title 17 RCW—page 44] 17.28.280 Withdrawal of funds. The funds shall only be withdrawn from the county treasury depository upon the warrant of the district board signed by its president or acting president, and countersigned by its secretary. [1957 c 153 § 28.] 17.28.290 17.28.290 Matching funds. Any part or all of the taxes collected for use of the district may be used for matching funds made available to the district by county, state, or federal governmental agencies. [1957 c 153 § 29.] (2006 Ed.) Mosquito Control Districts 17.28.300 17.28.300 Expenses of special elections. All expenses of any special election conducted pursuant to the provisions of this chapter shall be paid by the mosquito control district. [1957 c 153 § 30.] 17.28.310 17.28.310 Annual certification of assessed valuation. It shall be the duty of the assessor of each county lying wholly or partially within the district to certify annually to the board the aggregate assessed valuation of all taxable property in his county situated in any mosquito control district as the same appears from the last assessment roll of his county. [1957 c 153 § 31.] 17.28.370 practicable in accordance with the requirements of this chapter for the formation of a district. The expenses of such election shall be borne by the mosquito control district regardless of the outcome of the election. The order of annexation shall describe the boundaries of the annexed territory and that portion of the boundary of the district which coincides with any boundary of the territory. If necessary in making this order, the board may have any portion of the boundaries surveyed. If more than one petition for the annexation of the territory has been presented, the district board may in one order include in the district any number of separate territories. [1957 c 153 § 34.] 17.28.320 17.28.320 Annexation of territory authorized—Consent by city. Any territory contiguous to a district may be annexed to the district. If the territory to be annexed is in a city, consent to the annexation shall first be obtained from the governing body of the city. An authenticated copy of the resolution or order of that body consenting to the annexation shall be attached to the annexation petition. [1957 c 153 § 32.] 17.28.330 17.28.330 Annexation of territory authorized—Petition—Hearing—Boundaries. The district board, upon receiving a written petition for annexation containing a description of the territory sought to be annexed, signed by registered voters in said territory equal in number to at least ten percent of the number of votes cast in the territory for the office of governor at the last gubernatorial election prior to the time the petition is presented, shall set the petition for hearing. It shall publish notice of the hearing along with a copy of the petition, stating the time and place set for the hearing, in each county in which any part of the district or of the territory is situated, and in each city situated wholly or in part in the territory. Not more than five of the names attached to the petition need appear in the publication, but the number of signers shall be stated. At the time set for the hearing the district board shall hear persons appearing in behalf of the petition and all protests and objections to it. The district board may adjourn the hearing from time to time, but not exceeding two months in all. On the final hearing the district board shall make such changes as it believes advisable in the boundaries of the territory, and shall define and establish the boundaries. It shall also determine whether the petition meets the requirements of this chapter. [1957 c 153 § 33.] 17.28.350 17.28.350 Annexation of territory authorized—Filing of order—Composition of board. The order of annexation shall be entered in the minutes of the board and certified copies shall be filed with the secretary of state and with the county clerk and county auditor of each county in which the district or any part of it is situated. From and after the date of the filing and recording of the certified copies of the order, the territory described in the order is a part of the district, with all the rights, privileges, and powers set forth in this act and those necessarily incident thereto. After the annexation of territory to a district, the district board shall consist of the number of members and shall be appointed in the manner prescribed by this chapter for a district formed originally with boundaries embracing the annexed territory. However, the members of the district board in office at the time of the annexation shall continue to serve as members during the remainder of the terms for which they were appointed. [1957 c 153 § 35.] 17.28.360 17.28.360 Consolidation of districts—Initial proceedings. Whenever in the judgment of the district board it is for the best interests of the district that it be consolidated with one or more other districts, it may, by a two-thirds vote of its members, adopt a resolution reciting that fact and declaring the advisability of such consolidation and the willingness of the board to consolidate. The resolution shall be sent to the board of each district with which consolidation is proposed. The board of each district to which a proposal of consolidation is sent shall consider said proposal and give notice of its decision to the proposing board. [1957 c 153 § 36.] 17.28.370 17.28.340 17.28.340 Annexation of territory authorized— Order of annexation—Election. If upon the hearing the district board finds that the petition and the proceedings thereon meet the requirements of this chapter and that it is desirable and to the interests of the district and of the territory proposed to be annexed that the territory, with boundaries as fixed and determined by the district board, or any portion of it, should be annexed to the district, the board shall order the boundaries of the district changed to include the territory, or portion of the territory, subject to approval of the electors of the territory proposed to be annexed. The election to be conducted and the returns canvassed and declared insofar as is (2006 Ed.) 17.28.370 Consolidation of districts—Concurrent resolution. Should it appear that two-thirds of the members of each of the boards of districts proposed to be consolidated favor consolidation each of said boards shall then, by a vote of not less than two-thirds of its members adopt a concurrent resolution in favor of consolidation, declaring its willingness to consolidate, specifying a name for the consolidated district. Immediately upon the adoption of said concurrent resolution a copy of same signed by not less than two-thirds of the members of each board shall be forwarded to the county commissioners of the county in which all of or a major portion of the land of all, the districts consolidated are situated. [1957 c 153 § 37.] [Title 17 RCW—page 45] 17.28.380 Title 17 RCW: Weeds, Rodents, and Pests 17.28.380 17.28.380 Consolidation of districts—Election. When the concurrent resolution for consolidation has been adopted, each board of the districts proposed for consolidation shall forthwith call a special election in its district in which shall be presented to the electors of the districts the question whether the consolidation shall be effected. The election shall be conducted and the returns canvassed and declared insofar as is practicable in accordance with the requirements of this chapter for the formation of a district. The board of each district shall declare the returns of the election in its district, and shall certify the results to the county commissioners of the county in which all the districts, or the major portion of the land of all the districts, are situated. [1957 c 153 § 38.] No property in any of the former districts shall be taxed to pay any indebtedness of any other former district existing at the date of the consolidation. [1957 c 153 § 41.] 17.28.420 17.28.420 Dissolution—Election. The district may at any time be dissolved upon the vote of two-thirds of the qualified electors in the district at a special election called by the district board upon the question. The question shall be submitted as, "Shall the district be dissolved?", or words to that effect. Notice of the election shall be published at least once a week for at least four weeks prior to the date of the election in a newspaper of general circulation in each county of the district. [1957 c 153 § 42.] 17.28.430 17.28.390 17.28.390 Consolidation of districts—Order of consolidation. Should not less than two-thirds of the votes of each of the respective districts proposed to be consolidated favor consolidation the county commissioners shall immediately: (1) Enter an order on its minutes consolidating all of the districts proposed for consolidation into one district with name as specified in the concurrent resolution. (2) Transmit a certified copy of the order to the county commissioners of any other county in which any portion of the consolidated district is situated. (3) Record a copy in the office of the county auditor of each of the counties in which any portion of the consolidated district is situated. (4) File a copy in the office of the secretary of state. After the transmission, recording and filing of the order, the territory in the districts entering into the consolidation proposal forms a single consolidated district. [1957 c 153 § 39.] 17.28.400 17.28.400 Consolidation of districts—Composition of board. After the consolidation, the board of the consolidated district shall consist of the number and shall be appointed in the manner prescribed by this chapter for a district originally formed. The terms of the members of the district boards of the several districts consolidated who are in office at the time of consolidation shall terminate at the time the consolidation becomes effective. [1957 c 153 § 40.] 17.28.430 Dissolution—Result of election to be certified—Certificate of dissolution. Should two-thirds or more of the votes at the election favor dissolution the district board shall certify that fact to the secretary of state. Upon receipt of such certification the secretary of state shall issue his certificate reciting that the district (naming it) has been dissolved, and shall transmit to and file a copy with the county clerk of each county in which any portion of the district is situated. After the date of the certificate of the secretary of state, the district is dissolved. [1957 c 153 § 43.] 17.28.440 17.28.440 Dissolution—Disposition of property. If the district at the time of dissolution was wholly within unincorporated territory in one county, its property vests in that county. If the district at the time of dissolution was situated wholly within the boundaries of a single city, its property vests in that city. If the district at the time of dissolution comprised only unincorporated territory in two or more counties, its property vests in those counties in proportion to the assessed value of each county’s property within the boundaries of the district as shown on the last equalized county assessment roll. If the district at the time of dissolution comprised both incorporated and unincorporated territory, its property vests in each unit in proportion as its assessed property value lies within the boundaries of the district: PROVIDED, HOWEVER, That any real property, easements, or rights of way vest in the city in which they are situated or in the county in which they are situated. [1957 c 153 § 44.] 17.28.450 17.28.410 17.28.410 Consolidation of districts—Powers of consolidated district—Indebtedness of former districts. The consolidated district has all the rights, powers, duties, privileges and obligations of a district formed originally under the provisions of this chapter. If at the time of consolidation there is outstanding an indebtedness of any of the former districts included in the consolidated district, that indebtedness shall be paid in the manner provided for the payment of indebtedness upon dissolution of a district. A consolidated district shall not be liable for any indebtedness of any of the former districts included in it which was outstanding at the time of consolidation. [Title 17 RCW—page 46] 17.28.450 Dissolution—Collection of taxes to discharge indebtedness. If, at the time of election to dissolve, a district has outstanding any indebtedness, the vote to dissolve the district dissolves it for all purposes except the levy and collection of taxes for the payment of the indebtedness, and expenses of assessing, levying, and collecting such taxes. Until the indebtedness is paid, the county commissioners of the county in which the greater portion of the district was situated shall act as the ex officio district board and shall levy taxes and perform such functions as may be necessary in order to pay the indebtedness. [1957 c 153 § 45.] 17.28.900 17.28.900 Severability—1957 c 153. If any part, or parts, of this chapter shall be held unconstitutional, the (2006 Ed.) Pest Control Compact remaining provisions shall be given full force and effect, as completely as if the part held unconstitutional had not been included therein, if any such remaining part can then be administered in furtherance of the purposes of this chapter. [1957 c 153 § 46.] Chapter 17.34 Chapter 17.34 RCW PEST CONTROL COMPACT Sections 17.34.010 17.34.020 17.34.030 17.34.040 17.34.050 17.34.060 17.34.070 Compact provisions. Cooperation with insurance fund authorized. Filing of bylaws and amendments. Compact administrator. Requests or applications for assistance from insurance fund. Agency incurring expenses to be credited with payments to this state. "Executive head" defined. 17.34.010 17.34.010 Compact provisions. The pest control compact is hereby enacted into law and entered into with all other jurisdiction legally joining therein in the form substantially as follows: ARTICLE I FINDINGS The party states find that: 1. In the absence of the higher degree of cooperation among them possible under this compact, the annual loss of approximately seven billion dollars from the depredations of pests is virtually certain to continue, if not to increase. 2. Because of varying climatic, geographic and economic factors, each state may be affected differently by particular species of pests; but all states share the inability to protect themselves fully against those pests which present serious dangers to them. 3. The migratory character of pest infestations makes it necessary for states both adjacent to and distant from one another, to complement each other’s activities when faced with conditions of infestation and reinfestation. 4. While every state is seriously affected by a substantial number of pests, and every state is susceptible of infestation by many species of pests not now causing damage to its crop and plant life and products, the fact that relatively few species of pests present equal danger to or are of interest to all states makes the establishment and operation of an Insurance Fund, from which individual states may obtain financial support for pest control programs of benefit to them in other states and to which they may contribute in accordance with their relative interests, the most equitable means of financing cooperative pest eradication and control programs. ARTICLE II DEFINITIONS As used in this compact, unless the context clearly requires a different construction: 1. "State" means a state, territory or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. 2. "Requesting state" means a state which invokes the procedures of the compact to secure the undertaking or inten(2006 Ed.) 17.34.010 sification of measures to control or eradicate one or more pests within one or more other states. 3. "Responding state" means a state request to undertake or intensify the measures referred to in subdivision (2) of this Article. 4. "Pest" means any invertebrate animal, pathogen, parasitic plant or similar or allied organism which can cause disease or damage in any crops, trees, shrubs, grasses or other plants of substantial value. 5. "Insurance Fund" means the Pest Control Insurance Fund established pursuant to this compact. 6. "Governing Board" means the administrators of this compact representing all of the party states when such administrators are acting as a body in pursuance of authority vested in them by this compact. 7. "Executive Committee" means the committee established pursuant to Article V(E) of this compact. ARTICLE III THE INSURANCE FUND There is hereby established the Pest Control Insurance Fund for the purpose of financing other than normal pest control operations which states may be called upon to engage in pursuant to this compact. The Insurance Fund shall contain moneys appropriated to it by the party states and any donations and grants accepted by it. All appropriations, except as conditioned by the rights and obligations of party states expressly set forth in this compact, shall be unconditional and may not be restricted by the appropriating state to use in the control of any specified pest or pests. Donations and grants may be conditional or unconditional, provided that the Insurance Fund shall not accept any donation or grant whose terms are inconsistent with any provision of this compact. ARTICLE IV THE INSURANCE FUND, INTERNAL OPERATIONS AND MANAGEMENT A. The Insurance Fund shall be administered by a Governing Board and Executive Committee as hereinafter provided. The actions of the Governing Board and Executive Committee pursuant to this compact shall be deemed the actions of the Insurance Fund. B. The members of the Governing Board shall be entitled to one vote each on such Board. No action of the Governing Board shall be binding unless taken at a meeting at which a majority of the total number of votes on the Governing Board are cast in favor thereof. Action of the Governing Board shall be only at a meeting at which a majority of the members are present. C. The Insurance Fund shall have a seal which may be employed as an official symbol and which may be affixed to documents and otherwise used as the Governing Board may provide. D. The Governing Board shall elect annually, from among its members, a chairman, a vice chairman, a secretary and a treasurer. The chairman may not succeed himself. The Governing Board may appoint an executive director and fix his duties and his compensation, if any. Such executive director shall serve at the pleasure of the Governing Board. The Governing Board shall make provisions for the [Title 17 RCW—page 47] 17.34.010 Title 17 RCW: Weeds, Rodents, and Pests bonding of such of the officers and employees of the Insurance Fund as may be appropriate. E. Irrespective of the civil service, personnel or other merit system laws of any of the party states, the executive director, or if there be no executive director, the chairman, in accordance with such procedures as the bylaws may provide, shall appoint, remove or discharge such personnel as may be necessary for the performance of the functions of the Insurance Fund and shall fix the duties and compensation of such personnel. The Governing Board in its bylaws shall provide for the personnel policies and programs of the Insurance Fund. F. The Insurance Fund may borrow, accept or contract for the services of personnel from any state, the United States, or any other governmental agency, or from any person, firm, association or corporation. G. The Insurance Fund may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials and services, conditional or otherwise, from any state, the United States, or any other governmental agency, or from any person, firm, association or corporation, and may receive, utilize and dispose of the same. Any donation, gift or grant accepted by the Governing Board pursuant to this paragraph or services borrowed pursuant to paragraph (F) of this Article shall be reported in the annual report of the Insurance Fund. Such report shall include the nature, amount and conditions, if any, of the donation, gift, grant or services borrowed and the identity of the donor or lender. H. The Governing Board shall adopt bylaws for the conduct of the business of the Insurance Fund and shall have the power to amend and rescind these bylaws. The Insurance Fund shall publish its bylaws in convenient form and shall file a copy thereof and a copy of any amendment thereto with the appropriate agency or officer in each of the party states. I. The Insurance Fund annually shall make to the Governor and legislature of each party state a report covering its activities for the preceding year. The Insurance Fund may make such additional reports as it may deem desirable. J. In addition to the powers and duties specifically authorized and imposed, the Insurance Fund may do such other things as are necessary and incidental to the conduct of its affairs pursuant to this compact. ARTICLE V COMPACT AND INSURANCE FUND ADMINISTRATION A. In each party state there shall be a compact administrator, who shall be selected and serve in such manner as the laws of his state may provide, and who shall: 1. Assist in the coordination of activities pursuant to the compact in his state; and 2. Represent his state on the Governing Board of the Insurance Fund. B. If the laws of the United States specifically so provide, or if administrative provision is made therefor within the Federal Government, the United States may be represented on the Governing Board of the Insurance Fund by not to exceed three representa[Title 17 RCW—page 48] tives. Any such representative or representatives of the United States shall be appointed and serve in such manner as may be provided by or pursuant to federal law, but no such representative shall have a vote on the Governing Board or on the Executive Committee thereof. C. The Governing Board shall meet at least once each year for the purpose of determining policies and procedures in the administration of the Insurance Fund and, consistent with the provisions of the compact, supervising and giving direction to the expenditure of moneys from the Insurance Fund. Additional meetings of the Governing Board shall be held on call of the chairman, the Executive Committee, or a majority of the membership of the Governing Board. D. At such times as it may be meeting, the Governing Board shall pass upon applications for assistance from the Insurance Fund and authorize disbursements therefrom. When the Governing Board is not in session, the Executive Committee thereof shall act as agent of the Governing Board, with full authority to act for it in passing upon such applications. E. The Executive Committee shall be composed of the chairman of the Governing Board and four additional members of the Governing Board chosen by it so that there shall be one member representing each of four geographic groupings of party states. The Governing Board shall make such geographic groupings. If there is representation of the United States on the Governing Board one such representative may meet with the Executive Committee. The chairman of the Governing Board shall be chairman of the Executive Committee. No action of the Executive Committee shall be binding unless taken at a meeting at which at least four members of such Committee are present and vote in favor thereof. Necessary expenses of each of the five members of the Executive Committee incurred in attending meetings of such Committee, when not held at the same time and place as a meeting of the Governing Board, shall be charges against the Insurance Fund. ARTICLE VI ASSISTANCE AND REIMBURSEMENT A. Each party state pledges to each other party state that it will employ its best efforts to eradicate, or control within the strictest practicable limits, any and all pests. It is recognized that performance of this responsibility involves: 1. The maintenance of pest control and eradication activities of interstate significance by a party state at a level that would be reasonable for its own protection in the absence of this compact. 2. The meeting of emergency outbreaks or infestations of interstate significance to no less an extent than would have been done in the absence of this compact. B. Whenever a party state is threatened by a pest not present within its borders but present within another party state, or whenever a party state is undertaking or engaged in activities for the control or eradication of a pest or pests, and finds that such activities are or would be impracticable or substantially more difficult of success by reason of failure of another party (2006 Ed.) Pest Control Compact state to cope with infestation or threatened infestation, that state may request the Governing Board to authorize expenditures from the Insurance Fund for eradication or control measures to be taken by one or more of such other party states at a level sufficient to prevent, or to reduce to the greatest practicable extent, infestation or reinfestation of the requesting state. Upon such authorization the responding state or states shall take or increase such eradication or control measures as may be warranted. A responding state shall use moneys made available from the Insurance Fund expeditiously and efficiently to assist in affording the protection requested. C. In order to apply for expenditures from the Insurance Fund, a requesting state shall submit the following in writing: 1. A detailed statement of the circumstances which occasion the request for the invoking of the compact. 2. Evidence that the pest on account of whose eradication or control assistance is requested constitutes a danger to an agricultural or forest crop, product, tree, shrub, grass or other plant having a substantial value to the requesting state. 3. A statement of the extent of the present and projected program of the requesting state and its subdivision, including full information as to the legal authority for the conduct of such program or programs and the expenditures being made or budgeted therefor, in connection with the eradication, control, or prevention of introduction of the pest concerned. 4. Proof that the expenditures being made or budgeted as detailed in item 3 do not constitute a reduction of the effort for the control or eradication of the pest concerned or, if there is a reduction, the reasons why the level of program detailed in item 3 constitutes a normal level of pest control activity. 5. A declaration as to whether, to the best of its knowledge and belief, the conditions which in its view occasion the invoking of the compact in the particular instance can be abated by a program undertaken with the aid of moneys from the Insurance Fund in one year or less, or whether the request is for an installment in a program which is likely to continue for a longer period of time. 6. Such other information as the Governing Board may require consistent with the provisions of this compact. D. The Governing Board or Executive Committee shall give due notice of any meeting at which an application for assistance from the Insurance Fund is to be considered. Such notice shall be given to the compact administrator of each party state and to such other officers and agencies as may be designated by the laws of the party states. The requesting state and any other party state shall be entitled to be represented and present evidence and argument at such meeting. E. Upon the submission as required by paragraph (C) of this Article and such other information as it may have or acquire, and upon determining that an expenditure of funds is within the purposes of this (2006 Ed.) 17.34.010 compact and justified thereby, the Governing Board or Executive Committee shall authorize support of the program. The Governing Board or the Executive Committee may meet at any time or place for the purpose of receiving and considering an application. Any and all determinations of the Governing Board or Executive Committee, with respect to an application, together with the reasons therefor shall be recorded and subscribed in such manner as to show and preserve the votes of the individual members thereof. F. A requesting state which is dissatisfied with a determination of the Executive Committee shall upon notice in writing given within twenty days of the determination with which it is dissatisfied, be entitled to receive a review thereof at the next meeting of the Governing Board. Determinations of the Executive Committee shall be reviewable only by the Governing Board at one of its regular meetings, or at a special meeting held in such manner as the Governing Board may authorize. G. Responding states required to undertake or increase measures pursuant to this compact may receive moneys from the Insurance Fund, either at the time or times when such state incurs expenditures on account of such measures, or as reimbursement for expenses incurred and chargeable to the Insurance Fund. The Governing Board shall adopt and, from time to time, may amend or revise procedures for submission of claims upon it and for payment thereof. H. Before authorizing the expenditure of moneys from the Insurance Fund pursuant to an application of a requesting state, the Insurance Fund shall ascertain the extent and nature of any timely assistance or participation which may be available from the Federal Government and shall request the appropriate agency or agencies of the Federal Government for such assistance and participation. I. The Insurance Fund may negotiate and execute a memorandum of understanding or other appropriate instrument defining the extent and degree of assistance or participation between and among the Insurance Fund, cooperating federal agencies, states and any other entities concerned. ARTICLE VII ADVISORY AND TECHNICAL COMMITTEES The Governing Board may establish advisory and technical committees composed of state, local, and federal officials, and private persons to advise it with respect to any one or more of its functions. Any such advisory or technical committee, or any member or members thereof may meet with and participate in its deliberations. Upon request of the Governing Board or Executive Committee an advisory or technical committee may furnish information and recommendations with respect to any application for assistance from the Insurance Fund being considered by such Board or Committee and the Board or Committee may receive and consider the same: provided that any participant in a meeting of the Governing Board or Executive Committee held pursuant to Article VI(D) of the compact shall be entitled to know the substance of any such information and recommendations, at the time of the meeting if made prior thereto or as a part thereof or, if made thereafter, no later than the time at which the Gov[Title 17 RCW—page 49] 17.34.010 Title 17 RCW: Weeds, Rodents, and Pests erning Board or Executive Committee makes its disposition of the application. ARTICLE VIII RELATIONS WITH NONPARTY JURISDICTIONS A. A party state may make application for assistance from the Insurance Fund in respect of a pest in a nonparty state. Such application shall be considered and disposed of by the Governing Board or Executive Committee in the same manner as an application with respect to a pest within a party state, except as provided in this Article. B. At or in connection with any meeting of the Governing Board or Executive Committee held pursuant to Article VI(D) of this compact a nonparty state shall be entitled to appear, participate, and receive information only to such extent as the Governing Board or Executive Committee may provide. A nonparty state shall not be entitled to review of any determination made by the Executive Committee. C. The Governing Board or Executive Committee shall authorize expenditures from the Insurance Fund to be made in a nonparty state only after determining that the conditions in such state and the value of such expenditures to the party states as a whole justify them. The Governing Board or Executive Committee may set any conditions which it deems appropriate with respect to the expenditure of moneys from the Insurance Fund in a nonparty state and may enter into such agreement or agreements with nonparty states and other jurisdictions or entities as it may deem necessary or appropriate to protect the interests of the Insurance Fund with respect to expenditures and activities outside of party states. ARTICLE IX FINANCE A. The Insurance Fund shall submit to the executive head or designated officer or officers of each party state a budget for the Insurance Fund for such period as may be required by the laws of that party state for presentation to the legislature thereof. B. Each of the budgets shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. The requests for appropriations shall be apportioned among the party states as follows: one-tenth of the total budget in equal shares and the remainder in proportion to the value of agricultural and forest crops and products, excluding animals and animal products, produced in each party state. In determining the value of such crops and products the Insurance Fund may employ such source or sources of information as in its judgment present the most equitable and accurate comparisons among the party states. Each of the budgets and requests for appropriations shall indicate the source or sources used in obtaining information concerning value of products. C. The financial assets of the Insurance Fund shall be maintained in two accounts to be designated respectively as the "Operating Account" and the "Claims Account". The Operating Account shall consist only of those assets necessary for the administration of the Insurance Fund during the next ensuing twoyear period. The Claims Account shall contain all [Title 17 RCW—page 50] moneys not included in the Operating Account and shall not exceed the amount reasonably estimated to be sufficient to pay all legitimate claims on the Insurance Fund for a period of three years. At any time when the Claims Account has reached its maximum limit or would reach its maximum limit by the addition of moneys requested for appropriation by the party states, the Governing Board shall reduce its budget requests on a pro rata basis in such manner as to keep the Claims Account within such maximum limit. Any moneys in the Claims Account by virtue of conditional donations, grants or gifts shall be included in calculations made pursuant to this paragraph only to the extent that such moneys are available to meet demands arising out of claims. D. The Insurance Fund shall not pledge the credit of any party state. The Insurance Fund may meet any of its obligations in whole or in part with moneys available to it under Article IV(G) of this compact, provided that the Governing Board takes specific action setting aside such moneys prior to incurring any obligation to be met in whole or in part in such manner. Except where the Insurance Fund makes use of moneys available to it under Article IV(G) hereof, the Insurance Fund shall not incur any obligation prior to the allotment of moneys by the party states adequate to meet the same. E. The Insurance Fund shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Insurance Fund shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Insurance Fund shall be audited yearly by a certified or licensed public accountant and a report of the audit shall be included in and become part of the annual report of the Insurance Fund. F. The accounts of the Insurance Fund shall be open at any reasonable time for inspection by duly authorized officers of the party states and by any persons authorized by the Insurance Fund. ARTICLE X ENTRY INTO FORCE AND WITHDRAWAL A. This compact shall enter into force when enacted into law by any five or more states: provided, that one such state is contiguous to this state and the legislature has appropriated the necessary funds. Thereafter, this compact shall become effective as to any other state upon its enactment thereof. B. Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until two years after the executive head of the withdrawing state has given notice in writing of the withdrawal to the executive heads of all other party states. No withdrawal shall affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal. ARTICLE XI CONSTRUCTION AND SEVERABILITY This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any state or of the United States or the applicability thereof to (2006 Ed.) Pest Control Compact 17.34.070 any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state participating herein, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the state affected as to all severable matters. [1969 ex.s. c 130 § 1.] 17.34.020 Cooperation with insurance fund authorized. Consistent with law and within available appropriations, the departments, agencies and officers of this state may cooperate with the insurance fund established by the Pest Control Compact. [1969 ex.s. c 130 § 2.] 17.34.020 17.34.030 Filing of bylaws and amendments. Pursuant to Article IV(H) of the compact, copies of bylaws and amendments thereto shall be filed with the code reviser’s office. [1969 ex.s. c 130 § 3.] 17.34.030 17.34.040 Compact administrator. The compact administrator for this state shall be the director of agriculture. The duties of the compact administrator shall be deemed a regular part of his office. [1969 ex.s. c 130 § 4.] 17.34.040 17.34.050 Requests or applications for assistance from insurance fund. Within the meaning of Article VI(B) or VIII(A), a request or application for assistance from the insurance fund may be made by the director of agriculture whenever in his judgment the conditions qualifying this state for such assistance exist and it would be in the best interest of this state to make such request. [1969 ex.s. c 130 § 5.] 17.34.050 17.34.060 Agency incurring expenses to be credited with payments to this state. The department, agency, or officer expending or becoming liable for an expenditure on account of a control or eradication program undertaken or intensified pursuant to the compact shall have credited to his account in the state treasury the amount or amounts of any payments made to this state to defray the cost of such program, or any part thereof, or as reimbursement thereof. [1969 ex.s. c 130 § 6.] 17.34.060 17.34.070 "Executive head" defined. As used in the compact, with reference to this state, the term "executive head" shall mean the director of agriculture. [1969 ex.s. c 130 § 7.] 17.34.070 (2006 Ed.) [Title 17 RCW—page 51]

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