S-5303.1

SENATE BILL 6268

BySenators Rolfes, Kuderer, Wellman, Darneille, Hasegawa, Wilson, C., and Das

AN ACT Relating to abusive litigation; amending RCW 26.09.191 and 26.50.060; adding a new chapter to Title 26 RCW; and creating a new section.

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

The legislature finds that courts have considerable authority to respond to abusive litigation tactics, while upholding litigants' constitutional rights to access to the courts. Because courts have inherent authority to control the conduct of litigants, they have considerable discretion to fashion creative remedies in order to curb abusive litigation. The legislature intends to provide the courts with an additional tool to curb abusive litigation and to mitigate the harms abusive litigation perpetuates.

(1) "Abusive litigation" means litigation where all of the following apply:

(a) The opposing parties have a current or former intimate partner relationship;

(b) The party who is filing, initiating, advancing, or continuing the litigation has been found by a court to have committed domestic violence against the other party pursuant to: (i) An order entered under this chapter; (ii) a parenting plan with restrictions based on RCW 26.09.191(2)(a)(iii); or (iii) a restraining order entered under chapter 26.09, 26.26, or 26.26A RCW, provided that the issuing court made a specific finding that the restraining order was necessary due to domestic violence; and

(c) The litigation is being initiated, advanced, or continued primarily for the purpose of harassing, intimidating, or maintaining contact with the other party.

(2) "Intimate partner" is defined in RCW 26.50.010.

(3) "Litigation" means any kind of legal action or proceeding including, but not limited to: (i) Filing a summons, complaint, demand, or petition; (ii) serving a summons, complaint, demand, or petition, regardless of whether it has been filed; (iii) filing a motion, notice of court date, note for motion docket, or order to appear; (iv) serving a motion, notice of court date, note for motion docket, or order to appear, regardless of whether it has been filed or scheduled; (v) filing a subpoena, subpoena duces tecum, request for interrogatories, request for production, notice of deposition, or other discovery request; or (vi) serving a subpoena, subpoena duces tecum, request for interrogatories, request for production, notice of deposition, or other discovery request.

(4) "Perpetrator of abusive litigation" means a person who files, initiates, advances, or continues litigation in violation of an order restricting abusive litigation.

(a) In any answer or response to the litigation being filed, initiated, advanced, or continued;

(b) By motion made at any time during any open or ongoing case; or

(c) By separate motion made under this chapter, within five years of the entry of an order for protection even if the order has since expired.

(2) Any court of competent jurisdiction may, on its own motion, determine that a hearing pursuant to section 4 of this act is necessary to determine if a party is engaging in abusive litigation.

(3) The administrative office of the courts shall update the instructions, brochures, standard petition, and order for protection forms, and create new forms for the motion for order restricting abusive litigation and order restricting abusive litigation, and update the court staff handbook when changes in the law make an update necessary.

(4) No filing fee may be charged for proceedings under this section regardless of whether it is filed under this chapter or another action in this title. Forms and instructional brochures shall be provided free of charge.

(5) The provisions of this section are nonexclusive and do not affect any other remedy available.

(2) At the time set for the hearing on the alleged abusive civil action, the court shall hear all relevant testimony and may require any affidavits, documentary evidence, or other records the court deems necessary.

(1) The same or substantially similar issues between the same or substantially similar parties have been litigated within the past five years in the same court or any other court of competent jurisdiction; or

(2) The same or substantially similar issues between the same or substantially similar parties have been raised, plead, or alleged in the past five years and were dismissed on the merits or with prejudice; or

(3) Within the last ten years, the party allegedly engaging in abusive litigation has been sanctioned under superior court civil rule 11 or a similar rule or law in another jurisdiction for filing one or more cases, petitions, motions, or other filings, that were found to have been frivolous, vexatious, intransigent, or brought in bad faith involving the same opposing party; or

(4) A court of record in another judicial district has determined that the party allegedly engaging in abusive litigation has previously engaged in abusive litigation or similar conduct and has been subject to a court order imposing prefiling restrictions.

(2) In addition to dismissal or denial of any pending abusive litigation within the jurisdiction of the court, the court shall enter an "order restricting abusive litigation." The order shall:

(a) Impose all costs of any abusive civil action pending in the court at the time of the court's finding pursuant to subsection (1) of this section against the party advancing the abusive litigation;

(b) Award the other party reasonable attorneys' fees and costs of responding to the abusive litigation including the cost of seeking the order restricting abusive litigation; and

(c) Identify the party protected by the order and impose prefiling restrictions upon the party found to have engaged in abusive litigation for a period of not less than forty-eight months nor more than seventy-two months.

(3) If the court finds by a preponderance of the evidence that the litigation does not constitute abusive litigation, the court shall enter written findings and the litigation shall proceed. Nothing in this section or chapter shall be construed as limiting the court's inherent authority to control the proceedings and litigants before it.

(4) The provisions of this section are nonexclusive and do not affect any other remedy available to the person who is protected by the order restricting abusive litigation or to the court.

(2) Notwithstanding subsection (1) of this section and consistent with the state Constitution, a person who is subject to an order restricting abusive litigation may seek permission to file a new case or a motion in an existing case using the procedure set out in subsection (3) of this section.

(3)(a) A person who is subject to an order restricting litigation against whom prefiling restrictions have been imposed pursuant to this chapter who wishes to initiate a new case or file a motion in an existing case during the time the person is under filing restrictions must first appear before the judicial officer who imposed the prefiling restrictions to make application for permission to institute the civil action.

(b)(i) The judicial officer may examine witnesses, court records, and any other available evidence to determine if the proposed litigation is abusive litigation or if there are reasonable and legitimate grounds upon which the litigation is based.

(ii) If the judicial officer determines the proposed litigation is abusive litigation, based on reviewing the records as well as any evidence from the person who is subject to the order, then it is not necessary for the person protected by the order to appear or participate in any way. If the judicial officer is unable to determine whether the proposed litigation is abusive without hearing from the person protected by the order, then the court shall issue an order scheduling a hearing, and notifying the protected party of the party's right to appear and/or participate in the hearing. The order should specify whether the protected party is expected to submit a written response. When possible, the protected party should be permitted to appear telephonically and provided instructions for how to appear telephonically.

(c)(i) If the judicial officer believes the litigation that the party who is subject to the prefiling order is making application to file will constitute abusive litigation, the application shall be denied, dismissed, or otherwise disposed with prejudice.

(ii) If the judicial officer reasonably believes that the litigation the party who is subject to the prefiling order is making application to file will not be abusive litigation, the judicial officer may grant the application and issue an order permitting the filing of the case, motion, or pleading. The order shall be attached to the front of the pleading to be filed with the clerk. The party who is protected by the order shall be served with a copy of the order at the same time as the underlying pleading.

(d) The findings of the judicial officer shall be reduced to writing and made a part of the record in the matter. If the party who is subject to the order disputes the finding of the judge, the party may seek review of the decision to the presiding judge. If the judicial officer who denied the application is the presiding judge, the presiding judge shall select another judge in the judicial district to review the findings. If another judge in the judicial district is not available, the presiding judge may select a judge from an adjoining judicial district to review the findings. If the presiding judge, or the reviewing judge, believes that the pleading the person is making application to file is not abusive litigation, the findings of the judicial officer who denied the application are overruled and the presiding judge, or reviewing judge shall sign an order permitting the filing of the action. The order shall be entered and attached to the pleading and the protected party shall be served with a copy of the order at the same time the underlying pleading is served.

(4) If the application for the filing of a pleading is granted pursuant to this section, the period of time commencing with the filing of the application requesting permission to file the action and ending with the issuance of an order permitting filing of the action shall not be computed as a part of any applicable period of limitations within which the matter must be instituted.

(5) If, after a party who is subject to prefiling restrictions has made application and been granted permission to file or advance a case pursuant to this section, any judicial officer hearing or presiding over the case, or any part thereof, determines that the person is attempting to add parties, amend the complaint, or is otherwise attempting to alter the parties and issues involved in the litigation in a manner that the judicial officer reasonably believes would constitute abusive litigation, the judicial officer shall stay the proceedings and refer the case back to the judicial officer who granted the application to file, for further disposition.

(6)(a) If a party who is protected by an order restricting abusive litigation is served with a pleading filed by the person who is subject to the order, and the pleading does not have an attached order allowing the pleading, the protected party may respond to the case by filing a copy of the order restricting abusive litigation.

(b) If it is brought to the attention of the court that a person against whom prefiling restrictions have been imposed has filed a new case or is continuing an existing case without having been granted permission pursuant to this section, the court shall dismiss, deny, or otherwise dispose of the matter. This action may be taken by the court on the court's own motion or initiative. The court may take whatever action against the perp