BILL REQ. #:  H-3564.1 

Read first time 01/15/10.   Referred to Committee on Judiciary.

     AN ACT Relating to the confiscation of funds for individuals convicted of a crime; and adding new sections to chapter 9.94A RCW.

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

NEW SECTION.  Sec. 1   During the pendency of any criminal case charging a felony offense defined in this chapter, the superior court may, in addition to its other powers, issue an order pursuant to section 2 of this act. Upon conviction of a person for a violation of this chapter, the superior court may, in addition to its other powers of disposition, issue an order pursuant to section 2 of this act.

NEW SECTION.  Sec. 2   (1) The superior court has jurisdiction to prevent, restrain, and remedy a felony offense after making provision for the rights of all innocent persons affected by the violation and after hearing or trial, as appropriate, by issuing appropriate orders.
     (2) Prior to a determination of liability, orders issued under subsection (1) of this section may include, but are not limited to, entering restraining orders or prohibitions or taking such other actions, including the acceptance of satisfactory performance bonds, in connection with any property or other interest subject to damages, forfeiture, or other restraints pursuant to this section as the court deems proper. The orders may also include attachment, receivership, or injunctive relief in regard to personal or real property pursuant to Title 7 RCW. In shaping the reach or scope of receivership, attachment, or injunctive relief, the superior court shall provide for the protection of bona fide interests in property, including community property, of persons who were not involved in the violation of this chapter, except to the extent that such interests or property were acquired or used in such a way as to be subject to forfeiture under subsection (3)(f) of this section.
     (3) Following a determination of liability, orders may include, but are not limited to:
     (a) Ordering any person to divest himself or herself of any interest, direct or indirect, in any enterprise;
     (b) Imposing reasonable restrictions on the future activities or investments of any person, including prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect the laws of this state, to the extent the Constitutions of the United States and this state permit;
     (c) Ordering dissolution or reorganization of any enterprise;
     (d) Ordering the payment of actual damages sustained to those persons injured by the felony offense committed;
     (e) Ordering the payment of all costs and expenses of incarceration relating to the felony offense of conviction, incurred by the state or county as appropriate to the state general fund or the county;
     (f) Ordering forfeiture first as restitution to any person damaged by the felony act, then to the state general fund and the county, as appropriate, to the extent not already ordered to be paid in other damages, of the following:
     (i) Any property or other interest acquired or maintained as part of the felony offense committed;
     (ii) Any property, contractual right, or claim against property used to influence any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of the felony offense committed;
     (iii) All proceeds traceable to or derived from the felony offense committed, and all moneys, negotiable instruments, securities, and other things of value significantly used or intended to be used significantly to facilitate commission of the felony offense.
     (4) In addition to or in lieu of an action under this section, the attorney general or county prosecuting attorney may file an action for forfeiture to the state general fund or county, for cost of incarceration, as appropriate, to the extent not already ordered paid pursuant to this section, of the following:
     (a) Any interest acquired or maintained by the convicted person;
     (b) Any interest, property, contractual right, or claim against property used that the person has established, operated, controlled, conducted, or participated in the conduct of the felony offense;
     (c) All proceeds traceable to or derived from the felony offense and all moneys, negotiable instruments, securities, and other things of value significantly used or intended to be used significantly to facilitate the commission of the offense.
     (5) A defendant convicted in any criminal proceeding is precluded in any civil proceeding from denying the essential allegations of the criminal offense proven in the criminal trial in which the defendant was convicted. For the purposes of this subsection, a conviction shall be deemed to have occurred upon a verdict, finding, or plea of guilty, notwithstanding the fact that appellate review of the conviction and sentence has been or may be sought. If a subsequent reversal of the conviction occurs, any judgment that was based upon that conviction may be reopened upon motion of the defendant.
     (6) The initiation of civil proceedings under this section shall be commenced within three years after discovery of the felony offense or within three years after the final disposition of any criminal charges relating to the felony offense, whichever is later.
     (7) The attorney general or county prosecuting attorney may, in a civil action brought pursuant to this section, file with the clerk of the superior court a certificate stating that the case is of special public importance. A copy of that certificate shall be furnished immediately by the clerk to the presiding chief judge of the superior court in which the action is pending and, upon receipt of the copy, the judge shall immediately designate a judge to hear and determine the action. The judge so designated shall promptly assign the action for hearing, participate in the hearings and determination, and cause the action to be expedited.
     (8) The standard of proof in actions brought pursuant to this section is the preponderance of the evidence test.
     (9) A person other than the attorney general or county prosecuting attorney who files an action under this section shall serve notice and one copy of the pleading on the attorney general within thirty days after the action is filed with the superior court. The notice shall identify the action, the person, and the person's attorney. Service of the notice does not limit or otherwise affect the right of the state to maintain an action under this section or intervene in a pending action nor does it authorize the person to name the state or the attorney general as a party to the action.
     (10) Except in cases filed by a county prosecuting attorney, the attorney general may, upon timely application, intervene in any civil action or proceeding brought under this section if the attorney general certifies that in the attorney general's opinion the action is of special public importance. Upon intervention, the attorney general may assert any available claim and is entitled to the same relief as if the attorney general had instituted a separate action.
     (11) In addition to the attorney general's right to intervene as a party in any action under this section, the attorney general may appear as amicus curiae in any proceeding in which a claim under this section has been asserted or in which a court is interpreting this chapter or this section.
     (12) A private civil action under this section does not limit any other civil or criminal action under this chapter or any other provision. Private civil remedies provided under this section are supplemental and not mutually exclusive.

NEW SECTION.  Sec. 3   Sections 1 and 2 of this act are each added to chapter 9.94A RCW.