An overview of the Legislature’s 2021 session
BY RALPH W. FLICK
The Washington State Legislature adjourned its 2021 session on April 25. In all, the Legislature passed 335 bills—including a new state budget, a tax on capital gains, a cap-and-trade carbon emissions regulatory system, and a low carbon fuel standard—some of which were of particular interest to the WSBA, its sections, and its members. All of the bills summarized below have been signed into law by Gov. Jay Inslee.
Senate Bill (SB) 5005 – Concerning Business Corporations. Originating from the Corporate Act Revisions Committee of the Business Law Section, this bill contains new provisions for notice by electronic transmission to shareholders and directors of business corporations.
SB 5034 – Concerning Nonprofit Corporations. Originating from the Nonprofit Corporations Committee of the Business Law Section, this bill provides a comprehensive modernization of the Washington Nonprofit Corporations Act (WNCA), which has not been significantly updated since 1967. Some of the many changes to the WNCA are: a more efficient process for electronic transmissions; comprehensive rules governing members and directors; updates to record keeping and filing requirements; protection of charitable assets; and addressing the authority of the attorney general to investigate and intervene to protect charitable assets.
LEGISLATION OF INTEREST TO WSBA SECTIONS
In addition to legislation that is requested by the WSBA, the WSBA Legislative Affairs team monitors and takes appropriate action on legislative proposals significant to the practice of law and the administration of justice. WSBA sections regularly track and review bills during the legislative session. The following is a summary of bills of interest to the sections.
Police Accountability & Justice
Police Tactics and Equipment. Among several policing reform bills in this session, House Bill (HB) 1054 bans police use of chokeholds, neck restraints, no-knock warrants, and some military equipment. The bill as passed does not ban use of tear gas (a ban that was included in original versions of the legislation); however, the final version places restrictions on its use. HB 1310 revised the standard for use of deadly force to account for the context of a situation, allowing such force only during situations that include an imminent threat of serious physical injury or death.11 O’Sullivan, Joseph, “Washington legislature bans police chokeholds and neck restraints and sets limits on tear gas and use of force,” The Seattle Times, April 23, 2021. http://www.seattletimes.com/seattle-news/politics/washington-legislature-bans-police-chokeholds-neck-restraints-and-sets-limits-on-tear-gas-and-use-of-force/.
Peace and Correction Officer Accountability. SB 5051 overhauls the state’s laws regarding the decertification of police and corrections officers. The law expands the list of reasons for which an officer may lose certification and expands the state’s power to investigate police misconduct or revoke or suspend an officer’s license.22 Richer, Mike, “Washington Senate approves police accountability bill,” KIRO7 News, Feb. 27, 2021. http://www.kiro7.com/news/local/washington-senate-approves-police-accountability-bill/2BVADWDLOJEMXK7BA2YQZZR4UA/.
Felony Voting Rights. HB 1078 restores voter eligibility for all nonincarcerated parolees as well as those convicted of a felony in courts outside of Washington. The bill also requires notification to felons of their voter rights upon release from confinement. Washington is the 20th state to restore voting rights to released felons; this legislation is expected to restore rights to approximately 20,000 people across the state.33 Williams, Jordan, “Inslee signs bill restoring voting rights to parolees in Washington state,” The Hill, April 8, 2021. https://thehill.com/homenews/state-watch/547142-inslee-signs-bill-restoring-voting-rights-to-parolees-in-washington.
Private Detention Facilities. HB 1090 bans privately operated detention centers in Washington; however, existing facilities will remain in place until their contracts expire. This bill is expected to result in the closure of the Northwest Detention Center, a privately operated detention center for Immigration and Customs Enforcement; however, the private contract for that facility does not expire until 2025 and some immigrant rights groups are calling for an earlier closure.44 Withycombe, Claire and Lugo, Dianne, “Caravan from Salem brings message of hope to detainee mothers,” Statesman Journal, May 8, 2021. http://www.statesmanjournal.com/story/news/politics/2021/05/08/salem-caravan-message-hope-detainee-immigration-mothers-day-northwest-ice-processing-center/5004403001/. See also Detention Watch Network, “Bill signed into law in Washington State will phase out private prisons. Group call for immediate closure of the notorious Northwest Detention Center,” April 15, 2021. http://www.detentionwatchnetwork.org/pressroom/releases/2021/bill-signed-law-washington-state-will-phase-out-private-prisons-groups-call.
Behavioral Health and the Justice System. SB 5476 responds to the Washington Supreme Court decision in State v. Blake (see page 24 for more on this decision), which invalidated the existing criminal drug possession law. SB 5476 reestablishes criminal penalties for drug possession while also requiring diversion programs, and funding, for behavioral health prevention, treatment, and related services.
Greenhouse Gas Emissions. HB 1091 requires the Department of Ecology to implement a clean fuel standard by 2023, joining Oregon, California, and British Columbia in limiting the aggregate greenhouse gas emission in the state to below-2017 levels by 2035.55 Voegele, Erin, “Washington legislature passes CFS bill, delivers bill to governor,” Biomass Magazine, April 26, 2021. http://biomassmagazine.com/articles/17933/washington-legislature-passes-cfs-bill-delivers-bill-to-governor. See also Flatt, Courtney, “Washington Joins Oregon, California, British Columbia in Passing Low-Carbon Fuel Standard,” April 27, 2021. http://www.kuow.org/stories/washington-joins-oregon-california-british-columbia-in-passing-low-carbon-fuel-standard.
Climate Commitment. SB 5126 sets a goal of zero carbon emissions by 2050 by implementing a “cap and invest” system that caps carbon emissions and invests in new infrastructure to reduce carbon emissions in certain industries such as transit, agriculture, forestry, and shipbuilding.66 O’Sullivan, Joseph, “Washington Legislature approves caps on carbon pollution and greenhouse gas emissions, giving big win to Inslee, environmentalists,” The Seattle Times, April 24, 2021. http://www.seattletimes.com/seattle-news/politics/washington-legislature-passes-carbon-pricing-bill-giving-big-win-to-inslee-environmentalists/. See also Clean and Prosperous Washington, “Historic Climate Bill Passes Washington State Legislature: State on Path to Becoming Net Zero Carbon by 2050,” PR Newswire, April 24, 2021. http://www.prnewswire.com/news-releases/historic-climate-bill-passes-washington-state-legislature-301276337.html.
Home Foreclosure. Resources available from the state for the mediation, reporting, and payment provisions of the Foreclosure Fairness Act are tied to the number of trustees’ sales in the preceding year. As a result of the federal COVID-19 foreclosure moratorium, the number of trustees’ sales in 2020 was reduced; HB 1108 puts into place a temporary stopgap remedy to ensure that funding and assistance programs for homeowners facing foreclosure are not lost as a result of the temporary reduction in trustees’ sales stemming from the federal moratorium.
Working Families Tax Exemption and Capital Gains Tax. HB 1297 funds the Working Families Tax Exemption program that was created in 2008 but never funded, while SB 5096 will impose a 7 percent excise tax on capital gain earnings of more than $250,000 on the sale of certain long-term assets, such as stocks and bonds, but excluding retirement accounts, real estate, farms, forestry, and certain owner-operated small businesses.77 Cornfield, Jerry, “New laws will tax the rich, offer aid to low-income workers,” The Everett Daily Herald, May 5, 2021. http://www.heraldnet.com/news/new-laws-will-tax-the-rich-offer-aid-to-low-income-workers/.
Trusts and Estates. SB 5132 creates the Uniform Electronic Wills Act, which allows the creation of valid digital wills; the Uniform Fiduciary Income and Principal Act, which adjusts the allocation of receipts of a trust among the beneficiaries and applies also to trusts that are converted to unitrusts; and the Uniform Powers of Appointment Act, which provides for the exercise of powers of appointment and distribution of property.
Long-Term Care Insurance. HB 1323 created the Long-Term Care Act, the first of its kind in the United States, which establishes a mandatory payroll tax of 0.58 percent to fund long-term care needs; however, those with private long-term care insurance plans will be provided a one-time opt-out opportunity.88 Coldstream Wealth Management, “What You Need to Know About the New Washington State Long-Term Care Act,” April 26, 2021.
Child Development & Custody
Early Childhood Development. SB 5237, the Fair Start for Kids Act, caps copayments and provides financial aid for child care and provides more access to grants and other funding for day care providers. The new capital gains excise tax (SB 5096, discussed under Taxes) will fund most of these programs.99 Ray, Amanda, “Opinion: Fair Start for Kids Act is just that – a start,” Yakima Herald-Republic, May 11, 2021. http://www.yakimaherald.com/opinion/editorials/opinion-fair-start-for-kids-act-is-just-that—-a-start/article_7ef57423-22e5-5ed7-a67d-48bd5fa6c3ee.html.
Foreign Child Custody Disputes. HB 1042 requires Washington courts involved in foreign child custody disputes to consider the foreign country’s human-rights record before making a decision on whether to enforce a child custody decree pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Specifically, the bill requires the courts to consider whether the foreign jurisdiction at issue imposes the death penalty for the practice of religion, expression of political beliefs, or sexual orientation.1010 Bostock, Bill, “How an American woman lost a bitter custody battle with her Saudi ex and fled the kingdom to save her daughter,” Insider, May 2, 2021. http://www.insider.com/bethany-vierra-american-trapped-saudi-arabia-escape-2021-4.
Civil Protection Orders
HB 1320 consolidates and amends laws regarding civil protection orders in Washington state to increase safety for victims of domestic violence, sexual assault, stalking, abuse of vulnerable adults, unlawful harassment, and threats of gun violence.