[atlas:bill]

AN ACT Relating to the availability of funds from convicted criminals for compensating victims of crime; amending RCW 7.68.320; adding new sections to chapter 7.68 RCW; adding a new section to chapter 72.09 RCW; adding a new section to chapter 4.56 RCW; adding a new section to chapter 4.96 RCW; adding a new section to chapter 35.31 RCW; adding a new section to chapter 36.33 RCW; repealing RCW 7.68.200, 7.68.210, 7.68.220, 7.68.230, 7.68.240, 7.68.250, 7.68.260, 7.68.270, and 7.68.280; and prescribing penalties.

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

NEW SECTION. Sec. 1. The definitions in this section apply throughout sections 2 through 7 of this act unless the context clearly requires otherwise.

(1) "Convicted" means a verdict or finding of guilty, an agreement to a plea of guilty, or a verdict or finding of not guilty by reason of insanity.

(2) "Crime" means (a) any felony defined in the laws of the state; or (b) an out-of-state or federal offense that under the laws of this state would be a felony and: (i) The crime victim was a resident of this state at the time of the commission of the offense; or (ii) the act or acts constituting the offense occurred in whole or in part in this state.

(3) "Crime victim" means a person who sustains emotional, psychological, physical, or financial injury to person or property as the result of a crime, or the representative of such person.

(4) "Earned income" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonuses, or otherwise.

(5) "Funds of a convicted person" means all funds and property received from any source by or on behalf of a person convicted of a crime, or received by the representative of the person, excluding child support and earned income, if the person has been convicted of a crime and the person:

(a) Is serving a sentence of total or partial confinement with the department of corrections, a local correctional facility, or a federal correctional facility;

(b) Is subject to supervision by the state, a local jurisdiction, or the federal government under an order of community custody, postrelease supervision, home detention, probation or parole, deferred prosecution or disposition, or any other form of supervision for the conviction of a crime that does not involve confinement in a correctional facility; or

(c) Has completed the requirements of any sentence and is no longer under the supervision of the state, a local jurisdiction, or the federal government, or has been discharged from a sentence by a court, and if within three years of completion of the requirements of the sentence or discharge of the offender, the offender received any funds or property as a result of any interest, right, cause of action, or claim of any kind that the offender obtained or that accrued prior to the expiration of the offender's sentence or discharge.

(6) "Profits from a crime" means any tangible or intangible property that is, directly or indirectly, obtained through or generated from the commission of a crime, as a result of having committed the crime, or from the sale, conversion, or exchange of proceeds of a crime.

(7) "Representative" means one who represents or stands in the place of another person, including but not limited to an agent, an assignee, an attorney, a guardian, a partner, an administrator, an executor, or an heir of another person, or a parent of a minor.

NEW SECTION. Sec. 2. (1) Every person, firm, corporation, partnership, limited liability company, association, or other legal entity, or representative of such person, firm, corporation, partnership, limited liability company, association, or entity, that knowingly contracts for, pays, or agrees to pay: Profits from a crime to a person charged with or convicted of that crime, or to that person's representative; or any funds of a convicted person where the value, combined value, or aggregate value of the payment or payments of such funds exceeds or will exceed ten thousand dollars, shall provide written notice to the department of the payment or obligation to pay as soon as practicable after discovering that the payment or intended payment constitutes profits from a crime or funds of a convicted person.

(2) A superintendent of a correctional facility, or any other officer or employee of a correctional facility, who receives or will receive funds of a convicted person on behalf of an inmate of the facility where the value, combined value, or aggregate value of the funds exceeds or will exceed ten thousand dollars shall report the receipt of the funds to the department.

(3) The state, any agency or subdivision of the state, or any local jurisdiction that makes a payment or is obligated to pay funds of a convicted person where the value, combined value, or aggregate value of such funds exceeds or will exceed ten thousand dollars shall provide written notice of the payment or obligation to pay to the department.

(4) A convicted person, or the convicted person's representative, who receives or will receive funds of a convicted person where the value, combined value, or aggregate value of such funds exceeds or will exceed ten thousand dollars shall provide written notice of the receipt or right to receive payment of the funds to the department.

NEW SECTION. Sec. 3. Whenever the department receives a notice of a contract, an agreement to pay, or payment of profits from a crime or funds of a convicted person under section 2 of this act, or when the department receives notice of a seizure and forfeiture of profits proceeding under RCW 7.68.320, the department shall notify all known crime victims of the crime from which the profits derive or of the crime for which the convicted person was convicted of the existence of the profits or funds at the crime victim's last known address. In addition, the department shall publish a legal notice in newspapers of general circulation in the county where the crime was committed and in counties contiguous to such county advising any crime victims of the existence of the profits or funds.

NEW SECTION. Sec. 4. (1) Notwithstanding any provision of the law with respect to the timely bringing of an action, a crime victim has the right to bring a civil action in a court of competent jurisdiction to recover money damages from a person convicted of a crime of which the crime victim is a victim, or the convicted person's representative, within five years of the crime victim's discovery of any profits from a crime or funds of a convicted person. A judgment obtained pursuant to this section is not subject to execution or enforcement against the first one thousand dollars deposited in an inmate account to the credit of the inmate. In addition, if the civil action involves funds of a convicted person and the funds were recovered by the convicted person under a judgment obtained in a civil action, a judgment pursuant to this section is not subject to execution or enforcement against the first ten percent of any compensatory damages awarded in the action.

(2) A crime victim who files suit under the provisions of subsection (1) of this section shall provide written notice of the commencement of the action to the department by delivering a copy of the summons and complaint to the department. The crime victim may also give such notice to the department prior to filing the action so as to allow the department time to apply for any appropriate provisional remedies which are otherwise authorized to be invoked prior to the commencement of an action.

NEW SECTION. Sec. 5. (1) Upon receipt of a copy of a summons and complaint, or upon receipt of notice from the crime victim prior to filing the action as provided in section 4 of this act, the department shall immediately take such actions as are necessary to: (a) Notify all other known crime victims of the alleged existence of profits from a crime or funds of a convicted person by certified mail, return receipt requested, if the victims' names and addresses are known by the department; (b) publish, at least once every six months for five years from the date it receives notice by a victim, a legal notice in newspapers of general circulation in the county where the crime was committed and in counties contiguous to such county advising any crime victims of the existence of profits from a crime or funds of a convicted person. For crimes committed in a county located within a city having a population of one million or more, the notice must be published in newspapers having general circulation in such city. The department may, in its discretion, provide for such additional notice as it deems necessary; and (c) avoid the wasting of the assets identified in the complaint as the newly discovered profits from a crime or as funds of a convicted person, in any manner consistent with subsection (2) of this section.

(2) The department, acting on behalf of the plaintiff and all other victims, has the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff, including the provisional remedies of attachment, injunction, or receivership. On a motion for a provisional remedy, the moving party shall state whether any other provisional remedy has previously been sought in the same action against the same defendant. The court may require the moving party to elect between those remedies to which it would otherwise be entitled.

NEW SECTION. Sec. 6. (1) Whenever it appears that a person or entity has knowingly and willfully failed to give notice in violation of section 2 of this act, other than the state, a subdivision of the state, or a person who is a superintendent or other officer or employee of a correctional facility required to give notice, the department is authorized to serve a notice of hearing upon the person or entity by personal service or by registered or certified mail. The notice must contain the time, place, and purpose of the hearing. In addition, the notice must be accompanied by a petition alleging facts of an evidentiary character that support or tend to support that the person or entity, who must be named in the notice as a respondent, knowingly and willfully failed to give notice in violation of section 2 of this act. Service of the notice and petition must take place at least fifteen days prior to the date of the hearing.

(2) The director of the department, or any person designated by the director, shall preside over the hearing. The presiding officer shall administer oaths and may issue subpoenas. The presiding officer is not bound by the rules of evidence or civil procedure, but his or her determination must be based on a preponderance of the evidence. At the hearing, the burden of proof is on the department, which shall be represented by the counsel to the department or another person designated by the department. The department shall produce witnesses and present evidence in support of the alleged violation, which may include relevant hearsay evidence. The respondent, who may appear personally at the hearing, has the right of counsel and may cross-examine witnesses and produce evidence and witnesses in his or her behalf, which may include relevant hearsay evidence. The issue of whether the person who received an alleged payment or obligation to pay committed the underlying crime shall not be relitigated at the hearing. If the alleged violation is the failure to give notice of a payment amount involving two or more payments the combined value or aggregate value of which exceeds ten thousand dollars, no violation shall be found unless it is shown that such payments were intentionally structured to conceal their character as funds of a convicted person, as defined in section 1 of this act.

(3) At the conclusion of the hearing, if the presiding officer is not satisfied that there is a preponderance of the evidence in support of a violation, the officer shall dismiss the petition. If the presiding officer is satisfied that there is a preponderance of the evidence that the respondent committed one or more violations, the officer shall so find. Upon such a finding, the presiding officer shall prepare a written statement, to be made available to the respondent and respondent's counsel, indicating the evidence relied on and the reasons for finding the violation.

(4) The department shall adopt administrative rules governing the procedures to be followed with respect to hearings, including rules for the administrative appeal of a decision made under this section, in accordance with the requirements of this section and chapter 34.05 RCW.

(5) Whenever it is found that a respondent knowingly and willfully failed to give notice in violation of section 2 of this act, the department shall impose an assessment of up to the amount of the payment or obligation to pay and a civil penalty of up to one thousand dollars or ten percent of the payment or obligation to pay, whichever is greater. If a respondent fails to pay the assessment and civil penalty imposed pursuant to this subsection, the assessment and civil penalty may be recovered from the respondent by an action brought by the attorney general, upon the request of the department, in any court of competent jurisdiction. The department shall deposit the assessment in an escrow account pending the expiration of the five-year statute of limitations authorized by section 4 of this act to preserve such funds to satisfy a civil judgment in favor of a person who is a crime victim of a crime committed by the convicted person to whom such failure to give notice relates. The department shall pay the civil penalty to the state treasurer, who shall deposit the money as provided in RCW 43.08.250 and the money shall be used to compensate victims of crimes through the crime victims' compensation fund.

(6) The department shall notify any crime victim or crime victims, who may have a claim against the convicted person, of the existence of any moneys deposited into an escrow account by the department. The notice shall instruct the crime victims that they may have a right to commence a civil action against the convicted person, as well as any other information deemed necessary by the department.

(7) Upon a crime victim's presentation to the department of a civil judgment against the convicted person for damages incurred as a result of the crime, the department shall satisfy up to one hundred percent of that judgment, including costs, with the escrowed fund obtained pursuant to this section, but in no event shall the amount of all judgments and costs satisfied from such escrowed funds exceed the amount in escrow. If more than one crime victim indicates to the department that they intend to commence or have commenced a civil action against the convicted person, the department shall delay satisfying any judgment or costs until the claims of all crime victims are reduced to judgment. If the aggregate of all judgments or costs obtained by crime victims exceeds the amount of escrowed funds, the amount used to partially satisfy each judgment shall be reduced to a pro rata share.

(8) After expiration of the five-year statute of limitations period established under section 4 of this act, the department shall review all judgments that have been satisfied from such escrowed funds. In the event no claim was filed or judgment obtained prior to the expiration of the five-year statute of limitations, the department shall distribute the escrowed fund as follows: Fifty percent to the state treasurer, who shall deposit the money as provided in RCW 43.08.250 and the money shall be used to compensate victims of crimes through the crime victims' compensation fund; and fifty percent to the respondent. In the event a claim or claims are pending at the expiration of the statute of limitations, such funds shall remain escrowed until the final determination of all such claims to allow the department to satisfy any judgment which may be obtained by the crime victim.

NEW SECTION. Sec. 7. The department shall develop a brochure to be made available to crime victims that contains a summary of the provisions of this act, the potential availability of a civil cause of action for damages against the convicted person, how the crime victim can obtain information about the status of any funds of a convicted person or profits from a crime, and any other information the department determines would aid individuals in obtaining compensation for damages suffered by the crime victim as a result of the crime. The department shall provide this brochure to the clerk of each superior court to be made available by the court to crime victims.

NEW SECTION. Sec. 8. A new section is added to chapter 72.09 RCW to read as follows:

Whenever the department receives funds of a convicted person, as defined in section 1 of this act, on behalf of an inmate that amount to a value, combined value, or aggregate value exceeding ten thousand dollars, or when the total value of unencumbered funds in an inmate's institutional account exceeds ten thousand dollars, the department shall provide written notice to the department of labor and industries, as required in section 2 of this act, of the availability of the funds. The department shall provide written notice to all inmates who may be subject to a requirement to report to the department of labor and industries any funds of a convicted person of the requirements of this act, the procedure for reporting, and potential penalties for failure to comply.

NEW SECTION. Sec. 9. A new section is added to chapter 4.56 RCW to read as follows:

In a case where damages are awarded to an inmate serving a sentence of imprisonment with the department of corrections or to a prisoner confined at a local correctional facility, the court shall give prompt written notice to the department of labor and industries of the inmates or prisoner's right to the judgment for damages.

NEW SECTION. Sec. 10. A new section is added to chapter 4.96 RCW to read as follows:

In a case where payment arising out of a claim or judgment is to be made to an inmate serving a sentence with the department of corrections or to a prisoner confined at a local correctional facility, the office of risk management shall give written notice of the obligation to pay the claim or judgment, if required by section 2 of this act, to the department of labor and industries.

NEW SECTION. Sec. 11. A new section is added to chapter 35.31 RCW to read as follows:

In a case where payment for any reason is to be made to an inmate serving a sentence with the department of corrections or to a prisoner confined at a local correctional facility, the clerk or other financial officer shall give written notice of the obligation to pay, if required by section 2 of this act, to the department of labor and industries.

NEW SECTION. Sec. 12. A new section is added to chapter 36.33 RCW to read as follows:

In a case where payment for any reason is to be made to an inmate serving a sentence with the department of corrections or to a prisoner confined at a local correctional facility, the county treasurer or other financial officer shall give written notice of the obligation to pay, if required by section 2 of this act, to the department of labor and industries.

Sec. 13. RCW 7.68.320 and 1993 c 288 s 5 are each amended to read as follows:

(1) Any property subject to seizure and forfeiture under RCW 7.68.310 may be seized by the prosecuting attorney of the county in which the convicted person was convicted upon process issued by any superior court having jurisdiction over the property. The prosecuting attorney shall provide notice of the seizure and forfeiture proceeding to the department of labor and industries for the purposes of notifying crime victims.

(2) Proceedings for forfeiture are commenced by a seizure. Seizure of real property shall include the filing of a lis pendens by the seizing agency. Real property seized under this section shall not be transferred or otherwise conveyed until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later, except that such real property seized may be transferred or conveyed to any person or entity who acquires title by foreclosure or deed in lieu of foreclosure of a security interest.

(3) The prosecuting attorney who seized the property shall cause notice to be served within fifteen days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, including any community property interest, of the seizure and intended forfeiture of the seized property. Service of notice of seizure of real property shall be made according to the rules of civil procedure. However, the state may not obtain a default judgment with respect to real property against a party who is served by substituted service absent an affidavit stating that a good faith effort has been made to ascertain if the defaulted party is incarcerated within the state, and that there is no present basis to believe that the party is incarcerated within the state. The notice of seizure in other cases may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen-day period following the seizure. Notice of seizure in the case of property subject to a security interest that has been perfected by filing a financing statement in accordance with chapter 62A.9A RCW, or a certificate of title, shall be made by service upon the secured party or the secured party's assignee at the address shown on the financing statement or the certificate of title.

(4) If no person notifies the seizing prosecuting attorney in writing of the person's claim of ownership or right to possession of the property within forty-five days for personal property or ninety days for real property, the property seized shall be deemed forfeited.

(5) If any person notifies the seizing prosecuting attorney in writing of the person's claim of ownership or right to possession of the property within forty-five days for personal property or ninety days for real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The prosecuting attorney shall file the case into a court of competent jurisdiction. In a court hearing between two or more claimants to the article or articles involved, the prevailing party shall be entitled to a judgment for costs and reasonable attorneys' fees. In cases involving personal property, the burden of producing evidence shall be by a preponderance and upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of the property. In cases involving real property, the burden of producing evidence shall be by a preponderance and upon the prosecuting attorney. The seizing prosecuting attorney shall promptly return the property to the claimant upon a determination by the prosecuting attorney or court that the claimant is the present lawful owner or is lawfully entitled to possession of the property.

(6) Upon the entry of an order of forfeiture of real property, the court shall forward a copy of the order to the county auditor of the county in which the property is located and to the department of labor and industries for the purpose of notifying crime victims. Orders for the forfeiture of real property shall be entered by the superior court, subject to court rules.

(7) A forfeiture action under this section may be brought at any time from the date of conviction until the expiration of the statutory maximum period of incarceration that could have been imposed for the crime involved.

(8) A forfeiture of property encumbered by a bona fide security interest is subject to the interest of the secured party if at the time the security interest was created, the secured party did not know that the property was subject to seizure and forfeiture.

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 7 of this act are each added to chapter 7.68 RCW.

NEW SECTION. Sec. 16. The following acts or parts of acts are each repealed:

(1) RCW 7.68.200 (Payment for reenactments of crimes--Contracts--Deposits--Damages) and 1979 ex.s. c 219 s 13;

(2) RCW 7.68.210 (Payment may be directed based on contract) and 1979 ex.s. c 219 s 12;

(3) RCW 7.68.220 (Notice published of moneys in escrow) and 1979 ex.s. c 219 s 14;

(4) RCW 7.68.230 (Payment to accused if charges dismissed, acquitted) and 1979 ex.s. c 219 s 15;

(5) RCW 7.68.240 (Payment if no actions pending) and 1988 c 155 s 4 & 1979 ex.s. c 219 s 16;

(6) RCW 7.68.250 (Persons not guilty for mental reasons deemed convicted) and 1979 ex.s. c 219 s 17;

(7) RCW 7.68.260 (Time for filing action begins when escrow account established) and 1979 ex.s. c 219 s 18;

(8) RCW 7.68.270 (Escrow moneys may be used for legal representation) and 1979 ex.s. c 219 s 19; and

(9) RCW 7.68.280 (Actions to avoid law null and void) and 1979 ex.s. c 219 s 20.