Passed by the Senate March 4, 2011 YEAS 46   ________________________________________ President of the Senate Passed by the House April 7, 2011 YEAS 53   ________________________________________ Speaker of the House of Representatives | I, Thomas Hoemann, Secretary of the Senate of the State of Washington, do hereby certify that the attached is SUBSTITUTE SENATE BILL 5423 as passed by the Senate and the House of Representatives on the dates hereon set forth. ________________________________________ Secretary | |
Approved ________________________________________ Governor of the State of Washington | Secretary of State State of Washington |
State of Washington | 62nd Legislature | 2011 Regular Session |
READ FIRST TIME 02/21/11.
AN ACT Relating to legal financial obligations; amending RCW 10.82.090, 9.94A.760, 4.56.190, 9.94A.7606, 9.94A.7607, 9.94A.7608, and 9.94A.7609; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 (1) The legislature finds that it is in the
interest of the public to promote the reintegration into society of
individuals convicted of crimes. Research indicates that legal
financial obligations may constitute a significant barrier to
successful reintegration. The legislature further recognizes that the
accrual of interest on nonrestitution debt during the term of
incarceration results in many individuals leaving prison with
insurmountable debt. These circumstances make it less likely that
restitution will be paid in full and more likely that former offenders
and their families will remain in poverty. In order to foster
reintegration, this act creates a mechanism for courts to eliminate
interest accrued on nonrestitution debt during incarceration and
improves incentives for payment of legal financial obligations.
(2) At the same time, the legislature believes that payment of
legal financial obligations is an important part of taking personal
responsibility for one's actions. The legislature therefore, supports
the efforts of county clerks in taking collection action against those
who do not make a good faith effort to pay.
Sec. 2 RCW 10.82.090 and 2009 c 479 s 14 are each amended to read
as follows:
(1) Except as provided in subsection (2) of this section, financial
obligations imposed in a judgment shall bear interest from the date of
the judgment until payment, at the rate applicable to civil judgments.
All nonrestitution interest retained by the court shall be split
twenty-five percent to the state treasurer for deposit in the state
general fund, twenty-five percent to the state treasurer for deposit in
the judicial information system account as provided in RCW 2.68.020,
twenty-five percent to the county current expense fund, and twenty-five
percent to the county current expense fund to fund local courts.
(2) The court may, on motion by the offender, following the
offender's release from total confinement, reduce or waive the interest
on legal financial obligations levied as a result of a criminal
conviction((.)) as follows:
(a) The court shall waive all interest on the portions of the legal
financial obligations that are not restitution that accrued during the
term of total confinement for the conviction giving rise to the
financial obligations, provided the offender shows that the interest
creates a hardship for the offender or his or her immediate family;
(b) The court may reduce interest on the restitution portion of the
legal financial obligations only if the principal has been paid in
full;
(c) The court may otherwise reduce or waive the interest ((only as
an incentive for the offender to meet his or her)) on the portions of
the legal financial obligations((. The court may not waive the
interest on the restitution portion of the legal financial obligation
and may only reduce the interest on the restitution portion of the
legal financial obligation if the principal of the restitution has been
paid in full.)) that are not restitution if the offender ((must)) shows
that he or she has personally made a good faith effort to pay((,)) and
that the interest accrual is causing a significant hardship((, and that
he or she will be unable to pay the principal and interest in full and
that reduction or waiver of the interest will likely enable the
offender to pay the full principal and any remaining interest
thereon)). For purposes of this section, "good faith effort" means
that the offender has either (((a))) (i) paid the principal amount in
full; or (((b))) (ii) made ((twenty-four consecutive)) at least fifteen
monthly payments within an eighteen-month period, excluding any
payments mandatorily deducted by the department of corrections((, on
his or her legal financial obligations under his or her payment
agreement with the court));
(d) For purposes of (a) through (c) of this subsection, the court
may reduce or waive interest on legal financial obligations only as an
incentive for the offender to meet his or her legal financial
obligations. The court may grant the motion, establish a payment
schedule, and retain jurisdiction over the offender for purposes of
reviewing and revising the reduction or waiver of interest.
(3) This section applies to persons convicted as adults or
adjudicated in juvenile court.
Sec. 3 RCW 9.94A.760 and 2008 c 231 s 35 are each amended to read
as follows:
(1) Whenever a person is convicted in superior court, the court may
order the payment of a legal financial obligation as part of the
sentence. The court must on either the judgment and sentence or on a
subsequent order to pay, designate the total amount of a legal
financial obligation and segregate this amount among the separate
assessments made for restitution, costs, fines, and other assessments
required by law. On the same order, the court is also to set a sum
that the offender is required to pay on a monthly basis towards
satisfying the legal financial obligation. If the court fails to set
the offender monthly payment amount, the department shall set the
amount if the department has active supervision of the offender,
otherwise the county clerk shall set the amount. Upon receipt of an
offender's monthly payment, restitution shall be paid prior to any
payments of other monetary obligations. After restitution is
satisfied, the county clerk shall distribute the payment proportionally
among all other fines, costs, and assessments imposed, unless otherwise
ordered by the court.
(2) If the court determines that the offender, at the time of
sentencing, has the means to pay for the cost of incarceration, the
court may require the offender to pay for the cost of incarceration at
a rate of fifty dollars per day of incarceration, if incarcerated in a
prison, or the court may require the offender to pay the actual cost of
incarceration per day of incarceration, if incarcerated in a county
jail. In no case may the court require the offender to pay more than
one hundred dollars per day for the cost of incarceration. Payment of
other court-ordered financial obligations, including all legal
financial obligations and costs of supervision shall take precedence
over the payment of the cost of incarceration ordered by the court.
All funds recovered from offenders for the cost of incarceration in the
county jail shall be remitted to the county and the costs of
incarceration in a prison shall be remitted to the department.
(3) The court may add to the judgment and sentence or subsequent
order to pay a statement that a notice of payroll deduction is to be
issued immediately. If the court chooses not to order the immediate
issuance of a notice of payroll deduction at sentencing, the court
shall add to the judgment and sentence or subsequent order to pay a
statement that a notice of payroll deduction may be issued or other
income-withholding action may be taken, without further notice to the
offender if a monthly court-ordered legal financial obligation payment
is not paid when due, and an amount equal to or greater than the amount
payable for one month is owed.
If a judgment and sentence or subsequent order to pay does not
include the statement that a notice of payroll deduction may be issued
or other income-withholding action may be taken if a monthly legal
financial obligation payment is past due, the department or the county
clerk may serve a notice on the offender stating such requirements and
authorizations. Service shall be by personal service or any form of
mail requiring a return receipt.
(4) Independent of the department or the county clerk, the party or
entity to whom the legal financial obligation is owed shall have the
authority to use any other remedies available to the party or entity to
collect the legal financial obligation. These remedies include
enforcement in the same manner as a judgment in a civil action by the
party or entity to whom the legal financial obligation is owed.
Restitution collected through civil enforcement must be paid through
the registry of the court and must be distributed proportionately
according to each victim's loss when there is more than one victim.
The judgment and sentence shall identify the party or entity to whom
restitution is owed so that the state, party, or entity may enforce the
judgment. If restitution is ordered pursuant to RCW 9.94A.750(6) or
9.94A.753(6) to a victim of rape of a child or a victim's child born
from the rape, the Washington state child support registry shall be
identified as the party to whom payments must be made. Restitution
obligations arising from the rape of a child in the first, second, or
third degree that result in the pregnancy of the victim may be enforced
for the time periods provided under RCW 9.94A.750(6) and 9.94A.753(6).
All other legal financial obligations for an offense committed prior to
July 1, 2000, may be enforced at any time during the ten-year period
following the offender's release from total confinement or within ten
years of entry of the judgment and sentence, whichever period ends
later. Prior to the expiration of the initial ten-year period, the
superior court may extend the criminal judgment an additional ten years
for payment of legal financial obligations including crime victims'
assessments. All other legal financial obligations for an offense
committed on or after July 1, 2000, may be enforced at any time the
offender remains under the court's jurisdiction. For an offense
committed on or after July 1, 2000, the court shall retain jurisdiction
over the offender, for purposes of the offender's compliance with
payment of the legal financial obligations, until the obligation is
completely satisfied, regardless of the statutory maximum for the
crime. The department may only supervise the offender's compliance
with payment of the legal financial obligations during any period in
which the department is authorized to supervise the offender in the
community under RCW 9.94A.728, 9.94A.501, or in which the offender is
confined in a state correctional institution or a correctional facility
pursuant to a transfer agreement with the department, and the
department shall supervise the offender's compliance during any such
period. The department is not responsible for supervision of the
offender during any subsequent period of time the offender remains
under the court's jurisdiction. The county clerk is authorized to
collect unpaid legal financial obligations at any time the offender
remains under the jurisdiction of the court for purposes of his or her
legal financial obligations.
(5) In order to assist the court in setting a monthly sum that the
offender must pay during the period of supervision, the offender is
required to report to the department for purposes of preparing a
recommendation to the court. When reporting, the offender is required,
under oath, to respond truthfully and honestly to all questions
concerning present, past, and future earning capabilities and the
location and nature of all property or financial assets. The offender
is further required to bring all documents requested by the department.
(6) After completing the investigation, the department shall make
a report to the court on the amount of the monthly payment that the
offender should be required to make towards a satisfied legal financial
obligation.
(7)(a) During the period of supervision, the department may make a
recommendation to the court that the offender's monthly payment
schedule be modified so as to reflect a change in financial
circumstances. If the department sets the monthly payment amount, the
department may modify the monthly payment amount without the matter
being returned to the court. During the period of supervision, the
department may require the offender to report to the department for the
purposes of reviewing the appropriateness of the collection schedule
for the legal financial obligation. During this reporting, the
offender is required under oath to respond truthfully and honestly to
all questions concerning earning capabilities and the location and
nature of all property or financial assets. The offender shall bring
all documents requested by the department in order to prepare the
collection schedule.
(b) Subsequent to any period of supervision, or if the department
is not authorized to supervise the offender in the community, the
county clerk may make a recommendation to the court that the offender's
monthly payment schedule be modified so as to reflect a change in
financial circumstances. If the county clerk sets the monthly payment
amount, or if the department set the monthly payment amount and the
department has subsequently turned the collection of the legal
financial obligation over to the county clerk, the clerk may modify the
monthly payment amount without the matter being returned to the court.
During the period of repayment, the county clerk may require the
offender to report to the clerk for the purpose of reviewing the
appropriateness of the collection schedule for the legal financial
obligation. During this reporting, the offender is required under oath
to respond truthfully and honestly to all questions concerning earning
capabilities and the location and nature of all property or financial
assets. The offender shall bring all documents requested by the county
clerk in order to prepare the collection schedule.
(8) After the judgment and sentence or payment order is entered,
the department is authorized, for any period of supervision, to collect
the legal financial obligation from the offender. Subsequent to any
period of supervision or, if the department is not authorized to
supervise the offender in the community, the county clerk is authorized
to collect unpaid legal financial obligations from the offender. Any
amount collected by the department shall be remitted daily to the
county clerk for the purpose of disbursements. The department and the
county clerks are authorized, but not required, to accept credit cards
as payment for a legal financial obligation, and any costs incurred
related to accepting credit card payments shall be the responsibility
of the offender.
(9) The department or any obligee of the legal financial obligation
may seek a mandatory wage assignment for the purposes of obtaining
satisfaction for the legal financial obligation pursuant to RCW
9.94A.7701. Any party obtaining a wage assignment shall notify the
county clerk. The county clerks shall notify the department, or the
administrative office of the courts, whichever is providing the monthly
billing for the offender.
(10) The requirement that the offender pay a monthly sum towards a
legal financial obligation constitutes a condition or requirement of a
sentence and the offender is subject to the penalties for noncompliance
as provided in RCW 9.94B.040, 9.94A.737, or 9.94A.740.
(11)(a) ((Until January 1, 2004, the department shall mail
individualized monthly billings to the address known by the department
for each offender with an unsatisfied legal financial obligation.)) The administrative office of the
courts shall mail individualized ((
(b) Beginning January 1, 2004,monthly)) periodic billings to the
address known by the office for each offender with an unsatisfied legal
financial obligation.
(((c))) (b) The billing shall direct payments, other than
outstanding cost of supervision assessments under RCW 9.94A.780, parole
assessments under RCW 72.04A.120, and cost of probation assessments
under RCW 9.95.214, to the county clerk, and cost of supervision,
parole, or probation assessments to the department.
(((d))) (c) The county clerk shall provide the administrative
office of the courts with notice of payments by such offenders no less
frequently than weekly.
(((e))) (d) The county clerks, the administrative office of the
courts, and the department shall maintain agreements to implement this
subsection.
(12) The department shall arrange for the collection of unpaid
legal financial obligations during any period of supervision in the
community through the county clerk. The department shall either
collect unpaid legal financial obligations or arrange for collections
through another entity if the clerk does not assume responsibility or
is unable to continue to assume responsibility for collection pursuant
to subsection (4) of this section. The costs for collection services
shall be paid by the offender.
(13) The county clerk may access the records of the employment
security department for the purposes of verifying employment or income,
seeking any assignment of wages, or performing other duties necessary
to the collection of an offender's legal financial obligations.
(14) Nothing in this chapter makes the department, the state, the
counties, or any state or county employees, agents, or other persons
acting on their behalf liable under any circumstances for the payment
of these legal financial obligations or for the acts of any offender
who is no longer, or was not, subject to supervision by the department
for a term of community custody, and who remains under the jurisdiction
of the court for payment of legal financial obligations.
Sec. 4 RCW 4.56.190 and 1994 c 189 s 3 are each amended to read
as follows:
The real estate of any judgment debtor, and such as the judgment
debtor may acquire, not exempt by law, shall be held and bound to
satisfy any judgment of the district court of the United States
rendered in this state and any judgment of the supreme court, court of
appeals, superior court, or district court of this state, and every
such judgment shall be a lien thereupon to commence as provided in RCW
4.56.200 and to run for a period of not to exceed ten years from the
day on which such judgment was entered unless the ten-year period is
extended in accordance with RCW 6.17.020(3), or unless the judgment
results from a criminal sentence for a crime that was committed on or
after July 1, 2000, in which case the lien will remain in effect until
the judgment is fully satisfied. As used in this chapter, real estate
shall not include the vendor's interest under a real estate contract
for judgments rendered after August 23, 1983. If a judgment debtor
owns real estate, subject to execution, jointly or in common with any
other person, the judgment shall be a lien on the interest of the
defendant only.
Personal property of the judgment debtor shall be held only from
the time it is actually levied upon.
Sec. 5 RCW 9.94A.7606 and 1991 c 93 s 7 are each amended to read
as follows:
(1) The department or county clerk may issue to any person or
entity, except to the department, an order to withhold and deliver
property of any kind, including but not restricted to, earnings that
are due, owing, or belonging to the offender, if the department or
county clerk has reason to believe that there is in the possession of
such person or entity, property that is due, owing, or belonging to the
offender. Such order to withhold and deliver may be issued when a
court-ordered legal financial obligation payment is past due:
(a) If an offender's judgment and sentence or a subsequent order to
pay includes a statement that other income-withholding action under
this chapter may be taken without further notice to the offender.
(b) If a judgment and sentence or a subsequent order to pay does
not include the statement that other income-withholding action under
this chapter may be taken without further notice to the offender but
the department or county clerk has served a notice on the offender
stating such requirements and authorizations. The service shall have
been made by personal service or any form of mail requiring a return
receipt.
(2) The order to withhold and deliver shall:
(a) Include the amount of the court-ordered legal financial
obligation;
(b) Contain a summary of moneys that may be exempt from the order
to withhold and deliver and a summary of the civil liability upon
failure to comply with the order; and
(c) Be served by personal service or by any form of mail requiring
a return receipt.
(3) The department or county clerk shall also, on or before the
date of service of the order to withhold and deliver, mail or cause to
be mailed by any form of mail requiring a return receipt, a copy of the
order to withhold and deliver to the offender at the offender's last
known post office address, or, in the alternative, a copy of the order
shall be personally served on the offender on or before the date of
service of the order or within two days thereafter. The copy of the
order shall be mailed or served together with an explanation of the
right to petition for judicial review. If the copy is not mailed or
served as this section provides, or if any irregularity appears with
respect to the mailing or service, the superior court, in its
discretion on motion of the offender promptly made and supported by
affidavit showing that the offender has suffered substantial injury due
to the failure to mail the copy, may set aside the order to withhold
and deliver.
Sec. 6 RCW 9.94A.7607 and 1991 c 93 s 8 are each amended to read
as follows:
(1) A person or entity upon whom service has been made is hereby
required to:
(a) Answer the order to withhold and deliver within twenty days,
exclusive of the day of service, under oath and in writing, and shall
make true answers to the matters inquired of in the order; and
(b) Provide further and additional answers when requested by the
department or county clerk.
(2) Any person or entity in possession of any property that may be
subject to the order to withhold and deliver shall:
(a)(i) Immediately withhold such property upon receipt of the order
to withhold and deliver;
(ii) Deliver the property to the appropriate clerk of the court as
soon as the twenty-day answer period expires;
(iii) Continue to withhold earnings payable to the offender at each
succeeding disbursement interval and deliver amounts withheld from
earnings to the appropriate clerk of the court within ten days of the
date earnings are payable to the offender;
(iv) Inform the department or county clerk of the date the amounts
were withheld as requested under this section; or
(b) Furnish the appropriate clerk of the court a good and
sufficient bond, satisfactory to the clerk, conditioned upon final
determination of liability.
(3) Where money is due and owing under any contract of employment,
expressed or implied, or other employment arrangement, or is held by
any person or entity subject to withdrawal by the offender, the money
shall be delivered by remittance payable to the order of the
appropriate clerk of the court.
(4) Delivery to the appropriate clerk of the court of the money or
other property held or claimed shall satisfy the requirement and serve
as full acquittance of the order to withhold and deliver.
(5) The person or entity required to withhold and deliver the
earnings of a debtor under this action may deduct a processing fee from
the remainder of the offender's earnings, even if the remainder would
otherwise be exempt under RCW 9.94A.761. The processing fee may not
exceed:
(a) Ten dollars for the first disbursement to the appropriate clerk
of the court; and
(b) One dollar for each subsequent disbursement.
(6) A person or entity shall be liable to the obligee in an amount
equal to one hundred percent of the value of the court-ordered legal
financial obligation that is the basis of the order to withhold and
deliver, or the amount that should have been withheld, whichever amount
is less, together with costs, interest, and reasonable attorneys' fees
if that person or entity fails or refuses to deliver property under the
order.
The department or county clerk is authorized to issue a notice of
debt pursuant to and to take appropriate action to collect the debt
under this chapter if a judgment has been entered as the result of an
action by the court against a person or entity based on a violation of
this section.
(7) Persons or entities delivering money or property to the
appropriate clerk of the court under this chapter shall not be held
liable for wrongful delivery.
(8) Persons or entities withholding money or property under this
chapter shall not be held liable for wrongful withholding.
Sec. 7 RCW 9.94A.7608 and 1991 c 93 s 9 are each amended to read
as follows:
An order to withhold and deliver or any other income-withholding
action authorized by this chapter may be served on the main office of
a bank, savings and loan association, or credit union or on a branch
office of the financial institution. Service on the main office shall
be effective to attach the deposits of an offender in the financial
institution and compensation payable for personal services due the
offender from the financial institution. Service on a branch office
shall be effective to attach the deposits, accounts, credits, or other
personal property of the offender, excluding compensation payable for
personal services, in the possession or control of the particular
branch served.
Notwithstanding any other provision of RCW 9.94A.760 and 9.94A.7601
through 9.94A.761, if the department or county clerk initiates
collection action against a joint bank account, with or without the
right of survivorship, or any other funds which are subject to the
community property laws of this state, notice shall be given to all
affected parties that the account or funds are subject to potential
withholding. Such notice shall be by first-class mail, return receipt
required, or by personal service and be given at least twenty calendar
days before withholding is made. Upon receipt of such notice, the
nonobligated person shall have ten calendar days to file a petition
with the department or the superior court contesting the withholding of
his or her interest in the account or funds. The department or county
clerk shall provide notice of the right of the filing of the petition
with the notice provided in this paragraph. If the petition is not
filed within the period provided for herein, the department or county
clerk is authorized to proceed with the collection action.
Sec. 8 RCW 9.94A.7609 and 1991 c 93 s 10 are each amended to read
as follows:
(1) The department or county clerk may issue a notice of debt in
order to enforce and collect a court-ordered legal financial obligation
debt through either a notice of payroll deduction or an order to
withhold and deliver.
(2) The notice of debt may be personally served upon the offender
or be mailed to the offender at his or her last known address by any
form of mail requiring a return receipt, demanding payment within
twenty days of the date of receipt.
(3) The notice of debt shall include:
(a) A statement of the total court-ordered legal financial
obligation and the amount to be paid each month.
(b) A statement that earnings are subject to a notice of payroll
deduction.
(c) A statement that earnings or property, or both, are subject to
an order to withhold and deliver.
(d) A statement that the net proceeds will be applied to the
satisfaction of the court-ordered legal financial obligation.
(4) Action to collect a court-ordered legal financial obligation by
notice of payroll deduction or an order to withhold and deliver shall
be lawful after twenty days from the date of service upon the offender
or twenty days from the receipt or refusal by the offender of the
notice of debt.
(5) The notice of debt will take effect only if the offender's
monthly court-ordered legal financial obligation payment is not paid
when due, and an amount equal to or greater than the amount payable for
one month is owned.
(6) The department or county clerk shall not be required to issue
or serve the notice of debt in order to enforce and collect a court-ordered legal financial obligation debt through either a notice of
payroll deduction or an order to withhold and deliver if either the
offender's judgment and sentence or a subsequent order to pay includes
a statement that income-withholding action under this chapter may be
taken without further notice to the offender.