BILL REQ. #:  S-0667.1 

Read first time 03/06/2003.   Referred to Committee on Commerce & Trade.

     AN ACT Relating to workplace harassment; amending RCW 36.18.020; adding a new chapter to Title 10 RCW; and prescribing penalties.

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

NEW SECTION.  Sec. 1   DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Workplace harassment" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner.
     (2) "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. "Course of conduct" includes, in addition to any other form of communication, contact, or conduct, the sending of an electronic communication. Constitutionally protected activity is not included within the meaning of "course of conduct."
     (3) "Employer" means an individual, partnership, association, or corporation, or a person or group of persons who act, directly or indirectly, on behalf of or in the interest of an employer and with the consent of the employer. "Employer" includes the state, a political subdivision of the state, and any school district or other special district.

NEW SECTION.  Sec. 2   COURSE OF CONDUCT--DETERMINATION OF PURPOSE.
In determining whether the course of conduct serves any legitimate or lawful purpose, the court should consider whether:
     (1) Any current contact between the parties was initiated by the respondent only or was initiated by both parties;
     (2) The respondent has been given clear notice that all further contact with the petitioner is unwanted;
     (3) The respondent's course of conduct appears designed to alarm, annoy, or harass the petitioner;
     (4) The respondent is acting pursuant to any statutory authority, including but not limited to acts which are reasonably necessary to:
     (a) Protect property or liberty interests;
     (b) Enforce the law; or
     (c) Meet specific statutory duties or requirements;
     (5) The respondent's course of conduct has the purpose or effect of unreasonably interfering with the petitioner's privacy or the purpose or effect of creating an intimidating, hostile, or offensive living environment for the petitioner;
     (6) Contact by the respondent with the petitioner or the petitioner's family has been limited in any manner by any previous court order.

NEW SECTION.  Sec. 3   PROTECTION ORDER--PETITION. An employer or an authorized agent of an employer may petition for an order for protection in cases of workplace harassment.
     (1) A petition for relief shall allege the existence of harassment and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.
     (2) A petition for relief may be made regardless of whether or not there is a pending lawsuit, complaint, petition, or other action between the parties.
     (3) All court clerks' offices shall make available simplified forms and instructional brochures. Any assistance or information provided by clerks under this section does not constitute the practice of law and clerks are not responsible for incorrect information contained in a petition.
     (4) Filing fees are set in RCW 36.18.020, but no filing fee may be charged for a petition filed in an existing action or under an existing cause number brought under this chapter in the jurisdiction where the relief is sought or as provided in section 6 of this act. Forms and instructional brochures shall be provided free of charge.
     (5) A person is not required to post a bond to obtain relief in any proceeding under this section.

NEW SECTION.  Sec. 4   COURT ORDERED REMEDIES. If the court grants a petition for relief against workplace harassment, the court may do any of the following:
     (1) Restrain the defendant from coming near the employer's property or place of business;
     (2) Restrain the defendant from contacting the employer, or other person while that person is on or at the employer's property or place of business or is performing official work duties; and
     (3) Grant any other relief necessary for the protection of the employer, the workplace, the employer's employees, or any other person who is on or at the employer's property or place of business or who is performing official work duties.

NEW SECTION.  Sec. 5   ADMINISTRATOR FOR COURTS--FORMS, INFORMATION. The administrator for the courts shall develop and prepare, in consultation with interested persons, model forms and instructional brochures required under section 3(3) of this act.

NEW SECTION.  Sec. 6   FEES EXCUSED, WHEN. No fees for filing or service of process may be charged by a public agency to petitioners seeking relief under this chapter from a person who has stalked them as that term is defined in RCW 9A.46.110, or from a person who has engaged in conduct that would constitute a sex offense as defined in RCW 9A.44.130, or from a person who is a family or household member as defined in RCW 26.50.010(2) who has engaged in conduct that would constitute domestic violence as defined in RCW 26.50.010(1).

NEW SECTION.  Sec. 7   PROCEEDING IN FORMA PAUPERIS. Persons seeking relief under this chapter may file an application for leave to proceed in forma pauperis on forms supplied by the court. If the court determines that a petitioner lacks the funds to pay the costs of filing, the petitioner shall be granted leave to proceed in forma pauperis and no filing fee or any other court related fees shall be charged by the court to the petitioner for relief sought under this chapter. If the petitioner is granted leave to proceed in forma pauperis, then no fees for service may be charged to the petitioner.

NEW SECTION.  Sec. 8   HEARING--SERVICE. Upon receipt of the petition, the court shall order a hearing which shall be held not later than fourteen days from the date of the order. Except as provided in section 10 of this act, personal service shall be made upon the respondent not less than five court days before the hearing. If timely personal service cannot be made, the court shall set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication as provided by section 10 of this act. If the court permits service by publication, the court shall set the hearing date not later than twenty-four days from the date of the order. The court may issue an ex parte order for protection pending the hearing as provided in sections 9 and 10 of this act.

NEW SECTION.  Sec. 9   ANTIHARASSMENT PROTECTION ORDERS--EX PARTE TEMPORARY--HEARING--LONGER TERM, RENEWAL. (1) Upon filing a petition for a civil antiharassment protection order under this chapter, the petitioner may obtain an ex parte temporary antiharassment protection order. An ex parte temporary antiharassment protection order may be granted with or without notice upon the filing of an affidavit which, to the satisfaction of the court, shows reasonable proof of workplace harassment of the petitioner by the respondent and that great or irreparable harm will result to the petitioner if the temporary antiharassment protection order is not granted.
     (2) An ex parte temporary antiharassment protection order shall be effective for a fixed period not to exceed fourteen days or twenty-four days if the court has permitted service by publication under section 10 of this act. The ex parte order may be reissued. A full hearing, as provided in this chapter, shall be set for not later than fourteen days from the issuance of the temporary order or not later than twenty-four days if service by publication is permitted. Except as provided in sections 8 and 10 of this act, the respondent shall be personally served with a copy of the ex parte order along with a copy of the petition and notice of the date set for the hearing. The ex parte order and notice of hearing shall include at a minimum the date and time of the hearing set by the court to determine if the temporary order should be made effective for one year or more, and notice that if the respondent should fail to appear or otherwise not respond, an order for protection will be issued against the respondent pursuant to the provisions of this chapter, for a minimum of one year from the date of the hearing. The notice shall also include a brief statement of the provisions of the ex parte order and notify the respondent that a copy of the ex parte order and notice of hearing has been filed with the clerk of the court.
     (3) At the hearing, if the court finds by a preponderance of the evidence that workplace harassment exists, a civil antiharassment protection order shall issue prohibiting such workplace harassment.
     (4) An order issued under this chapter shall be effective for not more than one year unless the court finds that the respondent is likely to resume workplace harassment of the petitioner when the order expires. If so, the court may enter an order for a fixed time exceeding one year or may enter a permanent antiharassment protection order.
     (5) At any time within the three months before the expiration of the order, the petitioner may apply for a renewal of the order by filing a petition for renewal. The petition for renewal shall state the reasons why the petitioner seeks to renew the protection order. Upon receipt of the petition for renewal, the court shall order a hearing which shall be not later than fourteen days from the date of the order. Except as provided in section 10 of this act, personal service shall be made upon the respondent not less than five days before the hearing. If timely service cannot be made the court shall set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication as provided by section 10 of this act. If the court permits service by publication, the court shall set the new hearing date not later than twenty-four days from the date of the order. If the order expires because timely service cannot be made the court shall grant an ex parte order of protection as provided in this section. The court shall grant the petition for renewal unless the respondent proves by a preponderance of the evidence that the respondent will not resume harassment of the petitioner when the order expires. The court may renew the protection order for another fixed time period or may enter a permanent order as provided in subsection (4) of this section.
     (6) The court, in granting an ex parte temporary antiharassment protection order or a civil antiharassment protection order, shall have broad discretion to grant such relief as the court deems proper, including an order:
     (a) Restraining the respondent from making any attempts to contact the petitioner;
     (b) Restraining the respondent from making any attempts to keep the petitioner under surveillance;
     (c) Requiring the respondent to stay a stated distance from the petitioner's residence and workplace; and
     (d) Considering the provisions of RCW 9.41.800.
     (7) A petitioner may not obtain an ex parte temporary antiharassment protection order against a respondent if the petitioner has previously obtained two such ex parte orders against the same respondent but has failed to obtain the issuance of a civil antiharassment protection order unless good cause for such failure can be shown.
     (8) The court order shall specify the date an order issued pursuant to subsections (4) and (5) of this section expires if any. The court order shall also state whether the court issued the protection order following personal service or service by publication and whether the court has approved service by publication of an order issued under this section.

NEW SECTION.  Sec. 10   HEARING RESET AFTER EX PARTE ORDER--SERVICE BY PUBLICATION--CIRCUMSTANCES. (1) If the respondent was not personally served with the petition, notice of hearing, and ex parte order before the hearing, the court shall reset the hearing for twenty- four days from the date of entry of the order and may order service by publication instead of personal service under the following circumstances:
     (a) The sheriff or municipal officer files an affidavit stating that the officer was unable to complete personal service upon the respondent. The affidavit must describe the number and types of attempts the officer made to complete service;
     (b) The petitioner files an affidavit stating that the petitioner believes that the respondent is hiding from the server to avoid service. The petitioner's affidavit must state the reasons for the belief that the respondent is avoiding service;
     (c) The server has deposited a copy of the summons, in substantially the form prescribed in subsection (3) of this section, notice of hearing, and the ex parte order of protection in the post office, directed to the respondent at the respondent's last known address, unless the server states that the server does not know the respondent's address; and
     (d) The court finds reasonable grounds exist to believe that the respondent is concealing himself or herself to avoid service, and that further attempts to personally serve the respondent would be futile or unduly burdensome.
     (2) The court shall reissue the temporary order of protection not to exceed another twenty-four days from the date of reissuing the ex parte protection order and order to provide service by publication.
     (3) The publication shall be made in a newspaper of general circulation in the county where the petition was brought and in the county of the last known address of the respondent once a week for three consecutive weeks. The newspaper selected must be one of the three most widely circulated papers in the county. The publication of summons shall not be made until the court orders service by publication under this section. Service of the summons shall be considered complete when the publication has been made for three consecutive weeks. The summons must be signed by the petitioner. The summons shall contain the date of the first publication, and shall require the respondent upon whom service by publication is desired, to appear and answer the petition on the date set for the hearing. The summons shall also contain a brief statement of the reason for the petition and a summary of the provisions under the ex parte order. The summons shall be essentially in the following form:

NEW SECTION.  Sec. 11   REPRESENTATION OR APPEARANCE. (1) Nothing in this chapter shall preclude either party from representation by private counsel or from appearing on his or her own behalf.
     (2) The court may require the respondent to pay the filing fee and court costs, including service fees, and to reimburse the petitioner for costs incurred in bringing the action, including a reasonable attorney's fee. If the petitioner has been granted leave to proceed in forma pauperis, the court may require the respondent to pay the filing fee and costs, including services fees, to the county or municipality incurring the expense.

NEW SECTION.  Sec. 12   SERVICE OF ORDER. (1) An order issued under this chapter shall be personally served upon the respondent, except as provided in subsections (5) and (7) of this section.
     (2) The sheriff of the county or the peace officers of the municipality in which the respondent resides shall serve the respondent personally unless the petitioner elects to have the respondent served by a private party.
     (3) If the sheriff or municipal peace officer cannot complete service upon the respondent within ten days, the sheriff or municipal peace officer shall notify the petitioner.
     (4) Returns of service under this chapter shall be made in accordance with the applicable court rules.
     (5) If an order entered by the court recites that the respondent appeared in person before the court, the necessity for further service is waived and proof of service of that order is not necessary. The court's order, entered after a hearing, need not be served on a respondent who fails to appear before the court, if material terms of the order have not changed from those contained in the temporary order, and it is shown to the court's satisfaction that the respondent has previously been personally served with the temporary order.
     (6) Except in cases where the petitioner has fees waived under section 6 of this act or is granted leave to proceed in forma pauperis, municipal police departments serving documents as required under this chapter may collect the same fees for service and mileage authorized by RCW 36.18.040 to be collected by sheriffs.
     (7) If the court previously entered an order allowing service by publication of the notice of hearing and temporary order of protection pursuant to section 10 of this act, the court may permit service by publication of the order of protection issued under section 9 of this act. Service by publication must comply with the requirements of section 10 of this act.

NEW SECTION.  Sec. 13   ORDER FOLLOWING SERVICE BY PUBLICATION.
Following completion of service by publication as provided in section 10 of this act, if the respondent fails to appear at the hearing, the court may issue an order of protection as provided in section 9 of this act. That order must be served pursuant to section 12 of this act, and forwarded to the appropriate law enforcement agency pursuant to section 14 of this act.

NEW SECTION.  Sec. 14   NOTICE TO LAW ENFORCEMENT AGENCIES--ENFORCEABILITY. (1) A copy of an antiharassment protection order granted under this chapter shall be forwarded by the clerk of the court on or before the next judicial day to the appropriate law enforcement agency specified in the order.
     Upon receipt of the order, the law enforcement agency shall forthwith enter the order into any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. The law enforcement agency shall expunge expired orders from the computer system. Entry into the law enforcement information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any county in the state.
     (2) The information entered into the computer-based system shall include notice to law enforcement whether the order was personally served or served by publication.

NEW SECTION.  Sec. 15   ENFORCEMENT OF ORDER--KNOWLEDGE PREREQUISITE TO PENALTIES--REASONABLE EFFORTS TO SERVE COPY OF ORDER.
(1) When the court issues an order of protection pursuant to section 9 of this act, the court shall advise the petitioner that the respondent may not be subjected to the penalties set forth in sections 16 and 22 of this act for a violation of the order unless the respondent knows of the order.
     (2) When a peace officer investigates a report of an alleged violation of an order for protection issued under this chapter the officer shall attempt to determine whether the respondent knew of the existence of the protection order. If the officer determines that the respondent did not or probably did not know about the protection order, the officer shall make reasonable efforts to obtain a copy of the protection order and serve it on the respondent during the investigation.

NEW SECTION.  Sec. 16   DISOBEDIENCE OF ORDER--PENALTIES. Any willful disobedience by a respondent age eighteen years or over of any temporary antiharassment protection order or civil antiharassment protection order issued under this chapter subjects the respondent to criminal penalties under this chapter. Any respondent age eighteen years or over who willfully disobeys the terms of any order issued under this chapter may also, in the court's discretion, be found in contempt of court and subject to penalties under chapter 7.21 RCW. Any respondent under the age of eighteen years who willfully disobeys the terms of an order issued under this chapter may, in the court's discretion, be found in contempt of court and subject to the sanction specified in RCW 7.21.030(4).

NEW SECTION.  Sec. 17   SERVICE BY PUBLICATION--COSTS. The court may permit service by publication under this chapter only if the petitioner pays the cost of publication or if the petitioner's costs have been waived pursuant to section 6 of this act, unless the county legislative authority allocates funds for service of process by publication for petitioners who are granted leave to proceed in forma pauperis.

NEW SECTION.  Sec. 18   EXCLUSION OF CERTAIN ACTIONS. Protection orders authorized under this chapter shall not be issued for any action specifically covered by chapter 10.99 or 26.50 RCW.

NEW SECTION.  Sec. 19   OTHER REMEDIES. Nothing in this chapter shall preclude a petitioner's right to utilize other existing civil remedies.

NEW SECTION.  Sec. 20   JURISDICTION. (1) The district courts shall have jurisdiction and cognizance of any civil actions and proceedings brought under this chapter, except the district court shall transfer such actions and proceedings to the superior court when it is shown that the respondent to the petition is under eighteen years of age.
     (2) Superior courts shall have concurrent jurisdiction to receive transfer of antiharassment petitions in cases where a district court judge makes findings of fact and conclusions of law showing that meritorious reasons exist for the transfer. The municipal and district courts shall have jurisdiction and cognizance of any criminal actions brought under RCW 10.14.120 and 10.14.170.

NEW SECTION.  Sec. 21   WHERE ACTION MAY BE BROUGHT. For the purposes of this chapter an action may be brought in:
     (1) The judicial district of the county in which the alleged acts of workplace harassment occurred;
     (2) The judicial district of the county where any respondent resides at the time the petition is filed; or
     (3) The judicial district of the county where a respondent may be served if it is the same county or judicial district where a respondent resides.

NEW SECTION.  Sec. 22   CRIMINAL PENALTY. Any respondent age eighteen years or over who willfully disobeys any civil antiharassment protection order issued pursuant to this chapter is guilty of a gross misdemeanor.

NEW SECTION.  Sec. 23   MODIFICATION OF ORDER. Upon application with notice to all parties and after a hearing, the court may modify the terms of an existing order under this chapter. In any situation where an order is terminated or modified before its expiration date, the clerk of the court shall forward on or before the next judicial day a true copy of the modified order or the termination order to the appropriate law enforcement agency specified in the modified order or termination order. Upon receipt of the order, the law enforcement agency shall promptly enter it in the law enforcement information system.

NEW SECTION.  Sec. 24   CONSTITUTIONAL RIGHTS. Nothing in this chapter shall be construed to infringe upon any constitutionally protected rights including, but not limited to, freedom of speech and freedom of assembly.

Sec. 25   RCW 36.18.020 and 2000 c 9 s 1 are each amended to read as follows:
     (1) Revenue collected under this section is subject to division with the state public safety and education account under RCW 36.18.025 and with the county or regional law library fund under RCW 27.24.070.
     (2) Clerks of superior courts shall collect the following fees for their official services:
     (a) The party filing the first or initial paper in any civil action, including, but not limited to an action for restitution, adoption, or change of name, shall pay, at the time the paper is filed, a fee of one hundred ten dollars except, in an unlawful detainer action under chapter 59.18 or 59.20 RCW for which the plaintiff shall pay a case initiating filing fee of thirty dollars, or in proceedings filed under RCW 28A.225.030 alleging a violation of the compulsory attendance laws where the petitioner shall not pay a filing fee. The thirty dollar filing fee under this subsection for an unlawful detainer action shall not include an order to show cause or any other order or judgment except a default order or default judgment in an unlawful detainer action.
     (b) Any party, except a defendant in a criminal case, filing the first or initial paper on an appeal from a court of limited jurisdiction or any party on any civil appeal, shall pay, when the paper is filed, a fee of one hundred ten dollars.
     (c) For filing of a petition for judicial review as required under RCW 34.05.514 a filing fee of one hundred ten dollars.
     (d) For filing of a petition for unlawful harassment under RCW 10.14.040 or for workplace harassment under section 5 of this act a filing fee of forty-one dollars.
     (e) For filing the notice of debt due for the compensation of a crime victim under RCW 7.68.120(2)(a) a fee of one hundred ten dollars.
     (f) In probate proceedings, the party instituting such proceedings, shall pay at the time of filing the first paper therein, a fee of one hundred ten dollars.
     (g) For filing any petition to contest a will admitted to probate or a petition to admit a will which has been rejected, or a petition objecting to a written agreement or memorandum as provided in RCW 11.96A.220, there shall be paid a fee of one hundred ten dollars.
     (h) Upon conviction or plea of guilty, upon failure to prosecute an appeal from a court of limited jurisdiction as provided by law, or upon affirmance of a conviction by a court of limited jurisdiction, a defendant in a criminal case shall be liable for a fee of one hundred ten dollars.
     (i) With the exception of demands for jury hereafter made and garnishments hereafter issued, civil actions and probate proceedings filed prior to midnight, July 1, 1972, shall be completed and governed by the fee schedule in effect as of January 1, 1972: PROVIDED, That no fee shall be assessed if an order of dismissal on the clerk's record be filed as provided by rule of the supreme court.
     (3) No fee shall be collected when a petition for relinquishment of parental rights is filed pursuant to RCW 26.33.080 or for forms and instructional brochures provided under RCW 26.50.030.

NEW SECTION.  Sec. 26   EMPLOYER'S DUTIES NOT MODIFIED. Nothing in this chapter shall be construed to expand, diminish, alter, or modify the duty of an employer to provide a safe workplace for its employees and other persons.

NEW SECTION.  Sec. 27   NOTICE. When the employer has knowledge that a specific person or persons are the target of workplace harassment, the employer shall make a good faith effort to provide notice to the person or persons that the employer intends to petition the court for a petition for relief from workplace harassment.

NEW SECTION.  Sec. 28   EMPLOYER IMMUNITY. An employer is immune from civil liability for seeking or failing to seek a petition for relief under this chapter unless the employer is seeking a petition for relief primarily to accomplish a purpose for which the petition was not designed. An action or statement by an employer under this chapter shall not be deemed an admission by the employer of any fact. An action or statement by an employer under this chapter may be used for impeachment purposes.

NEW SECTION.  Sec. 29   CAPTIONS NOT LAW. Captions used in this chapter are not part of the law.

NEW SECTION.  Sec. 30   Sections 1 through 24 and 26 through 29 of this act constitute a new chapter in Title 10 RCW.