READ FIRST TIME 02/14/13.   

     AN ACT Relating to creating a claim for compensation for wrongful conviction and imprisonment; amending RCW 4.92.130; adding a new section to chapter 28B.15 RCW; adding a new section to chapter 72.09 RCW; and adding a new chapter to Title 4 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature recognizes that persons convicted and imprisoned for crimes they did not commit have been uniquely victimized. Having suffered tremendous injustice by being stripped of their lives and liberty, they are forced to endure imprisonment and are later stigmatized as felons. A majority of those wrongly convicted in Washington state have no remedy available under the law for the destruction of their personal lives resulting from errors in our criminal justice system. The legislature intends to provide an avenue for those who have been wrongly convicted in Washington state to redress the lost years of their lives, and help to address the unique challenges faced by the wrongly convicted after exoneration.

NEW SECTION.  Sec. 2   (1) Any person convicted in superior court and subsequently imprisoned for one or more felonies of which he or she is actually innocent may file a claim for compensation against the state.
     (2) For purposes of this chapter, a person is:
     (a) "Actually innocent" of a felony if he or she did not engage in any illegal conduct alleged in the charging documents; and
     (b) "Wrongly convicted" if he or she was charged, convicted, and imprisoned for one or more felonies of which he or she is actually innocent.
     (3)(a) If the person entitled to file a claim under subsection (1) of this section is incapacitated and incapable of filing the claim, or if he or she is a minor, or is a nonresident of the state, the claim may be filed on behalf of the claimant by an authorized agent.
     (b) A claim filed under this chapter survives to the personal representative of the claimant as provided in RCW 4.20.046.

NEW SECTION.  Sec. 3   (1) All claims under this chapter must be filed in superior court. The venue for such actions is governed by RCW 4.12.020.
     (2) Service of the summons and complaint is governed by RCW 4.28.080.

NEW SECTION.  Sec. 4   (1) In order to file an actionable claim for compensation under this chapter, the claimant must establish by documentary evidence that:
     (a) The claimant has been convicted of one or more felonies in superior court and subsequently sentenced to a term of imprisonment, and has served all or part of the sentence;
     (b)(i) The claimant is not currently incarcerated for any offense; and
     (ii) During the period of confinement for which the claimant is seeking compensation, the claimant was not serving a term of imprisonment or a concurrent sentence for any crime other than the felony or felonies that are the basis for the claim;
     (c)(i) The claimant has been pardoned on grounds consistent with innocence for the felony or felonies that are the basis for the claim; or
     (ii) The claimant's judgment of conviction was reversed or vacated and the charging document dismissed on the basis of significant new exculpatory information or, if a new trial was ordered pursuant to the presentation of significant new exculpatory information, either the claimant was found not guilty at the new trial or the claimant was not retried and the charging document dismissed; and
     (d) The claim is not time barred by section 9 of this act.
     (2) In addition to the requirements in subsection (1) of this section, the claimant must state facts in sufficient detail for the finder of fact to determine that:
     (a) The claimant did not engage in any illegal conduct alleged in the charging documents; and
     (b) The claimant did not commit or suborn perjury, or fabricate evidence to cause or bring about the conviction. A guilty plea to a crime the claimant did not commit, or a confession that is later determined by a court to be false, does not automatically constitute perjury or fabricated evidence under this subsection.
     (3) Convictions vacated, overturned, or subject to resentencing pursuant to In re: Personal Detention of Andress, 147 Wn.2d 602 (2002) may not serve as the basis for a claim under this chapter unless the claimant otherwise satisfies the qualifying criteria set forth in section 2 of this act and this section.
     (4) The claimant must verify the claim unless he or she is incapacitated, in which case the personal representative or agent filing on behalf of the claimant must verify the claim.
     (5) If the attorney general concedes that the claimant was wrongly convicted, the court must award compensation as provided in section 6 of this act.
     (6)(a) If the attorney general does not concede that the claimant was wrongly convicted and the court finds after reading the claim that the claimant does not meet the filing criteria set forth in this section, it may dismiss the claim, either on its own motion or on the motion of the attorney general.
     (b) If the court dismisses the claim, the court must set forth the reasons for its decision in written findings of fact and conclusions of law.

NEW SECTION.  Sec. 5   Any party is entitled to the rights of appeal afforded parties in a civil action following a decision on such motions. In the case of dismissal of a claim, review of the superior court action is de novo.

NEW SECTION.  Sec. 6   (1) In order to obtain a judgment in his or her favor, the claimant must show by clear and convincing evidence that:
     (a) The claimant was convicted of one or more felonies in superior court and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence;
     (b)(i) The claimant is not currently incarcerated for any offense; and
     (ii) During the period of confinement for which the claimant is seeking compensation, the claimant was not serving a term of imprisonment or a concurrent sentence for any conviction other than those that are the basis for the claim;
     (c)(i) The claimant has been pardoned on grounds consistent with innocence for the felony or felonies that are the basis for the claim; or
     (ii) The claimant's judgment of conviction was reversed or vacated and the charging document dismissed on the basis of significant new exculpatory information or, if a new trial was ordered pursuant to the presentation of significant new exculpatory information, either the claimant was found not guilty at the new trial or the claimant was not retried and the charging document dismissed;
     (d) The claimant did not engage in any illegal conduct alleged in the charging documents; and
     (e) The claimant did not commit or suborn perjury, or fabricate evidence to cause or bring about his or her conviction. A guilty plea to a crime the claimant did not commit, or a confession that is later determined by a court to be false, does not automatically constitute perjury or fabricated evidence under this subsection.
     (2) Any pardon or proclamation issued to the claimant must be certified by the officer having lawful custody of the pardon or proclamation, and be affixed with the seal of the office of the governor, or with the official certificate of such officer before it may be offered as evidence.
     (3) In exercising its discretion regarding the weight and admissibility of evidence, the court must give due consideration to difficulties of proof caused by the passage of time or by release of evidence pursuant to a plea, the death or unavailability of witnesses, the destruction of evidence, or other factors not caused by the parties.
     (4) The claimant may not be compensated for any period of time in which he or she was serving a term of imprisonment or a concurrent sentence for any conviction other than the felony or felonies that are the basis for the claim.
     (5) If the jury or, in the case where the right to a jury is waived, the court finds by clear and convincing evidence that the claimant was wrongly convicted, the court must order the state to pay the actually innocent claimant the following compensation award, as adjusted for partial years served and to account for inflation from the effective date of this section:
     (a) Fifty thousand dollars for each year of actual confinement including time spent awaiting trial and an additional fifty thousand dollars for each year served under a sentence of death pursuant to chapter 10.95 RCW;
     (b) Twenty-five thousand dollars for each year served on parole, community custody, or as a registered sex offender pursuant only to the felony or felonies which are grounds for the claim;
     (c) Compensation for child support payments owed by the claimant that became due and interest on child support arrearages that accrued while the claimant was in custody on the felony or felonies that are grounds for the compensation claim. The funds must be paid on the claimant's behalf in a lump sum payment to the department of social and health services for disbursement under Title 26 RCW;
     (d) Reimbursement for all restitution, assessments, fees, court costs, and all other sums paid by the claimant as required by pretrial orders and the judgment and sentence; and
     (e) Attorneys' fees for successfully bringing the wrongful conviction claim calculated at ten percent of the monetary damages awarded under subsection (5)(a) and (b) of this section, plus expenses. However, attorneys' fees and expenses may not exceed seventy-five thousand dollars. These fees may not be deducted from the compensation award due to the claimant and counsel is not entitled to receive additional fees from the client related to the claim. The court may not award any attorneys' fees to the claimant if the claimant fails to prove he or she was wrongly convicted.
     (6) The compensation award may not include any punitive damages.
     (7) The court may not offset the compensation award by any expenses incurred by the state, the county, or any political subdivision of the state including, but not limited to, expenses incurred to secure the claimant's custody, or to feed, clothe, or provide medical services for the claimant. The court may not offset against the compensation award the value of any services or reduction in fees for services to be provided to the claimant as part of the award under this section.
     (8) The compensation award is not income for tax purposes, except attorneys' fees awarded under subsection (5)(e) of this section.
     (9)(a) Upon finding that the claimant was wrongly convicted, the court must seal the claimant's record of conviction.
     (b) Upon request of the claimant, the court may order the claimant's record of conviction vacated if the record has not already been vacated, expunged, or destroyed under court rules. The requirements for vacating records under RCW 9.94A.640 do not apply.
     (10) Upon request of the claimant, the court must refer the claimant to the department of corrections or the department of social and health services for access to reentry services, if available, including but not limited to counseling on the ability to enter into a structured settlement agreement and where to obtain free or low-cost legal and financial advice if the claimant is not already represented, the community-based transition programs and long-term support programs for education, mentoring, life skills training, assessment, job skills development, mental health and substance abuse treatment.
     (11) The claimant or the attorney general may initiate and agree to a claim with a structured settlement for the compensation awarded under subsection (5) of this section. During negotiation of the structured settlement agreement, the claimant must be given adequate time to consult with the legal and financial advisor of his or her choice. Any structured settlement agreement binds the parties with regard to all compensation awarded. A structured settlement agreement entered into under this section must be in writing and signed by the parties or their representatives and must clearly state that the parties understand and agree to the terms of the agreement.
     (12) Before approving any structured settlement agreement, the court must ensure that the claimant has an adequate understanding of the agreement. The court may approve the agreement only if the judge finds that the agreement is in the best interest of the claimant and actuarially equivalent to the lump sum compensation award under subsection (5) of this section before taxation. When determining whether the agreement is in the best interest of the claimant, the court must consider the following factors:
     (a) The age and life expectancy of the claimant;
     (b) The marital or domestic partnership status of the claimant; and
     (c) The number and age of the claimant's dependants.

NEW SECTION.  Sec. 7   (1) On or after the effective date of this section, when a court grants judicial relief, such as reversal and vacation of a person's conviction, consistent with the criteria established in section 4 of this act, the court must provide to the claimant a copy of sections 2 through 12 of this act at the time the relief is granted.
     (2) The clemency and pardons board or the indeterminate sentence review board, whichever is applicable, upon issuance of a pardon by the governor on grounds consistent with innocence on or after the effective date of this section, must provide a copy of sections 2 through 12 of this act to the individual pardoned.
     (3) If an individual entitled to receive the information required under this section shows that he or she was not provided with the information, he or she has an additional twelve months, beyond the statute of limitations under section 9 of this act, to bring a claim under this chapter.

NEW SECTION.  Sec. 8   (1) It is the intent of the legislature that the remedies and compensation provided under this chapter shall be exclusive to all other remedies at law and in equity against the state or any political subdivision of the state. As a requirement to making a request for relief under this chapter, the claimant waives any and all other remedies, causes of action, and other forms of relief or compensation against the state, any political subdivision of the state, and their officers, employees, agents, and volunteers related to the claimant's wrongful conviction and imprisonment. This waiver shall also include all state, common law, and federal claims for relief, including claims pursuant to 42 U.S.C. Sec. 1983. A wrongfully convicted person who elects not to pursue a claim for compensation pursuant to this chapter shall not be precluded from seeking relief through any other existing remedy. The claimant must execute a legal release prior to the payment of any compensation under this chapter. If the release is held invalid for any reason and the claimant is awarded compensation under this chapter and receives a tort award related to his or her wrongful conviction and incarceration, the claimant must reimburse the state for the lesser of:
     (a) The amount of the compensation award, excluding the portion awarded pursuant to section 6(5) (c) through (e) of this act; or
     (b) The amount received by the claimant under the tort award.
     (2) A release dismissal agreement, plea agreement, or any similar agreement whereby a prosecutor's office or an agent acting on its behalf agrees to take or refrain from certain action if the accused individual agrees to forgo legal action against the county, the state of Washington, or any political subdivision, is admissible and should be evaluated in light of all the evidence. However, any such agreement is not dispositive of the question of whether the claimant was wrongly convicted or entitled to compensation under this chapter.

NEW SECTION.  Sec. 9   Except as provided in section 7 of this act, an action for compensation under this chapter must be commenced within three years after the grant of a pardon, the grant of judicial relief and satisfaction of other conditions described in section 2 of this act, or release from custody, whichever is later. However, any action by the state challenging or appealing the grant of judicial relief or release from custody tolls the three-year period. Any persons meeting the criteria set forth in section 2 of this act who was wrongly convicted before the effective date of this section may commence an action under this chapter within three years after the effective date of this section.

     *NEW SECTION.  Sec. 10   All payments by the state under this chapter shall be paid from the liability account established under RCW 4.92.130.
     *Sec. 10 was vetoed. See message at end of chapter.

NEW SECTION.  Sec. 11   A new section is added to chapter 28B.15 RCW to read as follows:
     (1) Subject to the conditions in subsection (2) of this section and the limitations in RCW 28B.15.910, the governing boards of the state universities, the regional universities, The Evergreen State College, and the community colleges, must waive all tuition and fees for the following persons:
     (a) A wrongly convicted person; and
     (b) Any child or stepchild of a wrongly convicted person who was born or became the stepchild of, or was adopted by, the wrongly convicted person before compensation is awarded under section 6 of this act.
     (2) The following conditions apply to waivers under subsection (1) of this section:
     (a) A wrongly convicted person must be a Washington domiciliary to be eligible for the tuition waiver.
     (b) A child must be a Washington domiciliary ages seventeen through twenty-six years to be eligible for the tuition waiver. A child's marital status does not affect eligibility.
     (c) Each recipient's continued participation is subject to the school's satisfactory progress policy.
     (d) Tuition waivers for graduate students are not required for those who qualify under subsection (1) of this section but are encouraged.
     (e) Recipients who receive a waiver under subsection (1) of this section may attend full time or part time. Total credits earned using the waiver may not exceed two hundred quarter credits, or the equivalent of semester credits.
     (3) Private vocational schools and private higher education institutions are encouraged to provide waivers consistent with the terms of this section.
     (4) For the purposes of this section:
     (a) "Child" means a biological child, stepchild, or adopted child who was born of, became the stepchild of, or was adopted by a wrongly convicted person before compensation is awarded under section 6 of this act.
     (b) "Fees" includes all assessments for costs incurred as a condition to a student's full participation in coursework and related activities at an institution of higher education.
     (c) "Washington domiciliary" means a person whose true, fixed, and permanent house and place of habitation is the state of Washington. In ascertaining whether a wrongly convicted person or child is domiciled in the state of Washington, public institutions of higher education must, to the fullest extent possible, rely upon the standards provided in RCW 28B.15.013.
     (d) "Wrongly convicted person" means a Washington domiciliary who was awarded damages under section 6 of this act.

NEW SECTION.  Sec. 12   A new section is added to chapter 72.09 RCW to read as follows:
     When a court refers a person to the department under section 6 of this act as part of the person's award in a wrongful conviction claim, the department must provide reasonable access to existing reentry programs and services. Nothing in this section requires the department to establish new reentry programs or services.

     *Sec. 13   RCW 4.92.130 and 2011 1st sp.s. c 43 s 513 are each amended to read as follows:
     A liability account in the custody of the treasurer is hereby created as a nonappropriated account to be used solely and exclusively for the payment of liability settlements and judgments against the state under 42 U.S.C. Sec. 1981 et seq. or for the tortious conduct of its officers, employees, and volunteers and all related legal defense costs.
     (1) The purpose of the liability account is to: (a) Expeditiously pay legal liabilities and defense costs of the state resulting from tortious conduct; (b) promote risk control through a cost allocation system which recognizes agency loss experience, levels of self-retention, and levels of risk exposure, including the payment of compensation awarded by a court under section 6 of this act; and (c) establish an actuarially sound system to pay incurred losses, within defined limits.
     (2) The liability account shall be used to pay claims for injury and property damages and legal defense costs exclusive of agency-retained expenses otherwise budgeted.
     (3) No money shall be paid from the liability account, except for defense costs, unless all proceeds available to the claimant from any valid and collectible liability insurance shall have been exhausted and unless:
     (a) The claim shall have been reduced to final judgment in a court of competent jurisdiction; or
     (b) The claim has been approved for payment.
     (4) The liability account shall be financed through annual premiums assessed to state agencies, based on sound actuarial principles, and shall be for liability coverage in excess of agency-budgeted self-retention levels.
     (5) Annual premium levels shall be determined by the risk manager. An actuarial study shall be conducted to assist in determining the appropriate level of funding.
     (6) Disbursements for claims from the liability account shall be made to the claimant, or to the clerk of the court for judgments, upon written request to the state treasurer from the risk manager.
     (7) The director may direct agencies to transfer moneys from other funds and accounts to the liability account if premiums are delinquent.
     (8) The liability account shall not exceed fifty percent of the actuarial value of the outstanding liability as determined annually by the office of risk management. If the account exceeds the maximum amount specified in this section, premiums may be adjusted by the office of risk management in order to maintain the account balance at the maximum limits. If, after adjustment of premiums, the account balance remains above the limits specified, the excess amount shall be prorated back to the appropriate funds.
     (9) The payment of compensation for wrongful conviction awarded by a court under section 6 of this act does not constitute a finding that the wrongful conviction resulted from tortious conduct by the officers or employees of the state or the political subdivisions, municipal corporations, and quasi-municipal corporations of the state.
     *Sec. 13 was vetoed. See message at end of chapter.

NEW SECTION.  Sec. 14   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 15   Sections 1 through 10 of this act constitute a new chapter in Title 4 RCW.