wa-law.org > bill > 2025-26 > SB 6239 > Engrossed Second Substitute
The legislature finds that survivors of historical sexual abuse deserve a fair, accessible, and trauma-informed process to seek accountability and resolution. Some claims arising from abuse in government facilities or programs involve events that occurred decades ago. These delays create significant barriers to timely resolution while survivors continue to bear lasting harm. The legislature acknowledges that older claims against the state and its subdivisions present unique challenges, including faded memories, unavailable witnesses, and lost records, which increase costs and prolong litigation for all parties.
The legislature therefore finds it necessary to create a claims commission for the purpose of expediting the early resolution of abuse claims arising from government facilities and programs. The purpose of this act is to establish a survivor-centered procedure designed to promote early evaluation, accountability, and resolution of sexual abuse claims, reduce unnecessary litigation, and encourage fair settlement, while fully preserving survivors' constitutional rights and access to the courts. This act is intended to provide a fair, efficient, and trauma-informed process that supports survivors while giving the state and its political subdivisions early opportunities to evaluate claims and pursue resolution.
The legislature recognizes that while private entrepreneurs voluntarily choose the ambit of their activity and can thereby exert some control over their exposure to liability, the state and its political subdivisions do not have the same flexibility. In acting for the public good and in responding to public need, state and local governments must provide a broad range of services and perform a broad range of functions throughout the entire state, regardless of how much exposure to liability may be involved. The legislature also recognizes that the state and its political subdivisions provide essential public services and functions, and that unlimited liability could disrupt or make prohibitively expensive the provision of such essential public services and functions.
The legislature finds that the right to sue the government is not considered a privilege or immunity requiring heightened scrutiny analysis by the courts. The right to pursue a government tort liability claim in court is not a fundamental right of state citizenship. Article II, section 26 of our state Constitution gives the legislature the sole authority to decide how suits may be brought against the state, so long as the processes conform to the equal protection guarantees of the state and federal Constitutions. A distinction based on the age and type of claims serves a legitimate state interest in that it rationally relates to the purpose of the statute: Addressing old cases and providing all claimants justice by encouraging negotiation and fair settlement, and providing a fair but streamlined resolution that is less expensive and more efficient for all parties involved.
The legislature further finds that its power to control and regulate the right of suit against the state and its political subdivisions is plenary. The state may grant the right or refuse it as it chooses. When the state grants the right, it may annex such conditions thereto as it deems wise. Further, the state supreme court has consistently acknowledged that this constitutional duty includes the power to establish conditions precedent to a suit being brought against the state or its political subdivisions, including reasonable procedural burdens that may be placed on tort claimants as long as such burdens are not substantial and do not constitute a real impediment to relief. The legislature therefore finds it necessary to protect the public treasury from increasing liability while providing a structured, fair process for persons who seek compensation for injuries caused by the government.
(1) There is hereby created a claims commission within the office of administrative hearings for the purpose of adjudicating claims against the state and its political subdivisions, or against their officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct.
(1) Before filing a claim with the claims commission, a claimant shall comply with the presentment and filing requirements outlined in RCW 4.92.100 and 4.92.110, or RCW 4.96.020, except where a claimant files a claim with the commission after commencing a civil action based on the same tortious conduct. The filing of a claim with the commission shall toll the applicable statute of limitations, but if the claimant commences a civil action and subsequently files a claim with the claims commission based on the same tortious conduct, the court shall dismiss the civil action.
Within 12 months of an award of $5,000,000 or more arising from a claim under section 2(1)(b) of this act in which the state was a defendant:
The commission and the defendant agency shall produce a report on the facts and law leading to the payment; and
The appropriate committees of the legislature shall conduct a joint hearing for the purpose of reviewing the report and considering potential modifications to state government practices and policies to prevent or reduce future liability for tortious conduct by the state. No information protected by attorney-client privilege or the attorney work product doctrine shall be presented at the hearing.
The joint legislative audit and review committee must conduct a review of the claims commission. The review must include:
The attorney general or an assistant attorney general shall appear and act as counsel for the state, except in proceedings under section 3 of this act, in which counsel for the defendant agency shall provide legal representation. An administrative proceeding shall proceed in accordance with section 3 of this act, and review of such proceedings shall be governed by chapter 34.05 RCW. A court action shall proceed in all respects as other court actions. Appellate review of a court action may be sought as in other court actions . If case review is sought by the state, no bond shall be required of the appellant.
No execution shall issue against the state on any judgment.
Whenever a final judgment against the state is obtained in an action on a claim arising out of tortious conduct, or whenever a final order awarding damages is obtained in an administrative proceeding under section 3 of this act, the claim shall be paid from the liability account.
Whenever a final judgment against the state shall have been obtained in any other action, the clerk of the court shall make and furnish to the office of risk management a duly certified copy of such judgment; the office of risk management shall thereupon audit the amount of damages and costs therein awarded, and the same shall be paid from appropriations specifically provided for such purposes by law.
Final judgments for which there are no provisions in state law for payment shall be transmitted by the office of risk management to the senate and house of representatives committees on ways and means as follows:
On the first day of each session of the legislature, the office of risk management shall transmit judgments received and audited since the adjournment of the previous session of the legislature.
During each session of legislature, the office of risk management shall transmit judgments immediately upon completion of audit.
All claims, other than judgments, made to the legislature against the state of Washington for money or property, shall be accompanied by a statement of the facts on which such claim is based and such evidence as the claimant intends to offer in support of the claim and shall be filed with the office of risk management, which shall retain the same as a record. All claims of $2,000 or less shall be approved or rejected by the office of risk management, and if approved shall be paid from appropriations specifically provided for such purpose by law. Such decision, if adverse to the claimant in whole or part, shall not preclude the claimant from seeking relief from the legislature. If the claimant accepts any part of his or her claim which is approved for payment by the office of risk management, such acceptance shall constitute a waiver and release of the state from any further claims relating to the damage or injury asserted in the claim so accepted. The office of risk management shall submit to the house and senate committees on ways and means, at the beginning of each regular session, a comprehensive list of all claims paid pursuant to this subsection during the preceding year. For all claims not approved by the office of risk management, the office of risk management shall recommend to the legislature whether such claims should be approved or rejected. Recommendations shall be submitted to the senate and house of representatives committees on ways and means not later than the 30th day of each regular session of the legislature. Claims which cannot be processed for timely submission of recommendations shall be held for submission during the following regular session of the legislature. The recommendations shall include, but not be limited to:
A summary of the facts alleged in the claim, and a statement as to whether these facts can be verified by the office of risk management;
An estimate by the office of risk management of the value of the loss or damage which was alleged to have occurred;
An analysis of the legal liability, if any, of the state for the alleged loss or damage; and
A summary of equitable or public policy arguments which might be helpful in resolving the claim.
The legislative committees to whom such claims are referred shall make a transcript, recording, or statement of the substance of the evidence given in support of such a claim. If the legislature approves a claim the same shall be paid from appropriations specifically provided for such purpose by law.
Subsections (3) through (6) of this section do not apply to judgments or claims against the state housing finance commission created under chapter 43.180 RCW.
Whenever an action or proceeding for damages is brought against any past or present officer, employee, or volunteer of a local governmental entity of this state, arising from acts or omissions while performing or in good faith purporting to perform his or her official duties, such officer, employee, or volunteer may request the local governmental entity to authorize the defense of the action or proceeding at the expense of the local governmental entity.
If the legislative authority of the local governmental entity, or the local governmental entity using a procedure created by ordinance or resolution, finds that the acts or omissions of the officer, employee, or volunteer were, or in good faith purported to be, within the scope of his or her official duties, the request shall be granted. If the request is granted, the necessary expenses of defending the action or proceeding shall be paid by the local governmental entity. Any monetary judgment or final order against the officer, employee, or volunteer shall be paid on approval of the legislative authority of the local governmental entity or by a procedure for approval created by ordinance or resolution.
The necessary expenses of defending an elective officer of the local governmental entity in a judicial hearing to determine the sufficiency of a recall charge as provided in RCW 29A.56.140 shall be paid by the local governmental entity if the officer requests such defense and approval is granted by both the legislative authority of the local governmental entity and the attorney representing the local governmental entity. The expenses paid by the local governmental entity may include costs associated with an appeal of the decision rendered by the superior court concerning the sufficiency of the recall charge.
When an officer, employee, or volunteer of the local governmental entity has been represented at the expense of the local governmental entity under subsection (1) of this section and the court or commission hearing the action has found that the officer, employee, or volunteer was acting within the scope of his or her official duties, and a judgment or final order has been entered against the officer, employee, or volunteer under chapter 4.96 RCW or 42 U.S.C. Sec. 1981 et seq., thereafter the judgment creditor or successful claimant shall seek satisfaction for nonpunitive damages only from the local governmental entity, and a judgment or final order for nonpunitive damages shall not become a lien upon any property of such officer, employee, or volunteer. The legislative authority of a local governmental entity may, pursuant to a procedure created by ordinance or resolution, agree to pay an award for punitive damages.
No action or administrative proceeding subject to the claim filing requirements of RCW 4.92.100 shall be commenced against the state, or against any state officer, employee, or volunteer, acting in such capacity, for damages arising out of tortious conduct until 60 calendar days have elapsed after the claim is presented to the office of risk management in the department of enterprise services. The applicable period of limitations within which an action must be commenced shall be tolled during the 60 calendar day period. For the purposes of the applicable period of limitations, an action commenced within five court days after the 60 calendar day period has elapsed is deemed to have been presented on the first day after the 60 calendar day period elapsed.
The provisions of this section apply to claims for damages against all local governmental entities and their officers, employees, or volunteers, acting in such capacity.
The governing body of each local governmental entity shall appoint an agent to receive any claim for damages made under this chapter. The identity of the agent and the address where he or she may be reached during the normal business hours of the local governmental entity are public records and shall be recorded with the auditor of the county in which the entity is located. All claims for damages against a local governmental entity, or against any local governmental entity's officers, employees, or volunteers, acting in such capacity, shall be presented to the agent within the applicable period of limitations within which an action must be commenced. A claim is deemed presented when the claim form is delivered in person or is received by the agent by regular mail, registered mail, or certified mail, with return receipt requested, to the agent or other person designated to accept delivery at the agent's office. The failure of a local governmental entity to comply with the requirements of this section precludes that local governmental entity from raising a defense under this chapter.
For claims for damages presented after July 26, 2009, all claims for damages must be presented on the standard tort claim form that is maintained by the office of risk management in the department of enterprise services, except as allowed under (c) of this subsection. The standard tort claim form must be posted on the department of enterprise services' website.
The standard tort claim form must, at a minimum, require the following information:
The claimant's name, date of birth, and contact information;
A description of the conduct and the circumstances that brought about the injury or damage;
A description of the injury or damage;
A statement of the time and place that the injury or damage occurred;
A listing of the names of all persons involved and contact information, if known;
A statement of the amount of damages claimed; and
A statement of the actual residence of the claimant at the time of presenting the claim and at the time the claim arose.
The standard tort claim form must be signed either:
By the claimant, verifying the claim;
Pursuant to a written power of attorney, by the attorney-in-fact for the claimant;
By an attorney admitted to practice in Washington state on the claimant's behalf; or
By a court-approved guardian or guardian ad litem on behalf of the claimant.
Local governmental entities shall make available the standard tort claim form described in this section with instructions on how the form is to be presented and the name, address, and business hours of the agent of the local governmental entity. If a local governmental entity chooses to also make available its own tort claim form in lieu of the standard tort claim form, the form:
May require additional information beyond what is specified under this section, but the local governmental entity may not deny a claim because of the claimant's failure to provide that additional information;
Must not require the claimant's social security number; and
Must include instructions on how the form is to be presented and the name, address, and business hours of the agent of the local governmental entity appointed to receive the claim.
If any claim form provided by the local governmental entity fails to require the information specified in this section, or incorrectly lists the agent with whom the claim is to be filed, the local governmental entity is deemed to have waived any defense related to the failure to provide that specific information or to present the claim to the proper designated agent.
Presenting either the standard tort claim form or the local government tort claim form satisfies the requirements of this chapter.
The amount of damages stated on the claim form is not admissible at trial.
No action or administrative proceeding subject to the claim filing requirements of this section shall be commenced against any local governmental entity, or against any local governmental entity's officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim has first been presented to the agent of the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty calendar day period. For the purposes of the applicable period of limitations, an action commenced within five court days after the sixty calendar day period has elapsed is deemed to have been presented on the first day after the sixty calendar day period elapsed.
With respect to the content of claims under this section and all procedural requirements in this section, this section must be liberally construed so that substantial compliance will be deemed satisfactory.
A liability account in the custody of the treasurer is hereby created as a nonappropriated account to be used solely and exclusively for the payment of liability settlements and judgments against the state under 42 U.S.C. Sec. 1981 et seq. or for the tortious conduct of its officers, employees, and volunteers and all related legal defense costs.
The purpose of the liability account is to: (a) Expeditiously pay legal liabilities and defense costs of the state resulting from tortious conduct; (b) promote risk control through a cost allocation system which recognizes agency loss experience, levels of self-retention, and levels of risk exposure; and (c) establish an actuarially sound system to pay incurred losses, within defined limits.
The liability account shall be used to pay claims for injury and property damages and legal defense costs exclusive of agency-retained expenses otherwise budgeted.
No money shall be paid from the liability account, except for defense costs, unless all proceeds available to the claimant from any valid and collectible liability insurance shall have been exhausted and unless:
The claims commission has made an award of damages that the claimant has accepted;
The claim shall have been reduced to final judgment in a court of competent jurisdiction; or
The claim has been approved for payment.
The liability account shall be financed through annual premiums assessed to state agencies, based on sound actuarial principles, and shall be for liability coverage in excess of agency-budgeted self-retention levels.
Annual premium levels shall be determined by the risk manager. An actuarial study shall be conducted to assist in determining the appropriate level of funding.
Disbursements for claims from the liability account shall be made to the claimant, or to the clerk of the court for judgments, upon written request to the state treasurer from the risk manager.
The director may direct agencies to transfer moneys from other funds and accounts to the liability account if premiums are delinquent.
The liability account shall not exceed 50 percent of the actuarial value of the outstanding liability as determined annually by the office of risk management. If the account exceeds the maximum amount specified in this section, premiums may be adjusted by the office of risk management in order to maintain the account balance at the maximum limits. If, after adjustment of premiums, the account balance remains above the limits specified, the excess amount shall be prorated back to the appropriate funds.
Payment of claims and judgments arising out of tortious conduct or pursuant to 42 U.S.C. Sec. 1981 et seq. shall not be made by any agency or department of state government with the exception of the office of risk management, and that office shall authorize and direct the payment of moneys only from the liability account whenever:
The head or governing body of any agency or department of state or the designee of any such agency certifies to the office of risk management that a claim has been settled;
The claims commission has made and forwarded a certified copy of a final order and the attorney general certifies that the order is final and was entered in an administrative proceeding on a claim arising out of tortious conduct of the state; or
The clerk of court has made and forwarded a certified copy of a final judgment in a court of competent jurisdiction and the attorney general certifies that the judgment is final and was entered in an action on a claim arising out of tortious conduct or under and pursuant to 42 U.S.C. Sec. 1981 et seq. Payment of a judgment shall be made to the clerk of the court for the benefit of the judgment creditors. Upon receipt of payment, the clerk shall satisfy the judgment against the state.
The risk management administration account is created in the custody of the state treasurer. All receipts from appropriations and assessments shall be deposited into the account. Only the director or the director's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but no appropriation is required for expenditures.
The risk management administration account is to be used for the payment of costs related to:
The appropriated administration of liability, property, and vehicle claims, including investigation, claim processing, negotiation, and settlement, and other expenses relating to settlements, final orders awarding damages from the state under section 3 of this act, and judgments against the state not otherwise budgeted;
The nonappropriated pass-through cost associated with the purchase of liability and property insurance, including catastrophic insurance, subject to policy conditions and limitations determined by the risk manager; and
The administration of the prescribed fire claims fund pilot program under RCW 76.04.196.
The risk management administration account's appropriation for risk management shall be financed through a combination of direct appropriations and assessments to state agencies.
The risk management administration account is created in the custody of the state treasurer. All receipts from appropriations and assessments shall be deposited into the account. Only the director or the director's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but no appropriation is required for expenditures.
The risk management administration account is to be used for the payment of costs related to:
The appropriated administration of liability, property, and vehicle claims, including investigation, claim processing, negotiation, and settlement, and other expenses relating to settlements, final orders awarding damages from the state under section 3 of this act, and judgments against the state not otherwise budgeted; and
The nonappropriated pass-through cost associated with the purchase of liability and property insurance, including catastrophic insurance, subject to policy conditions and limitations determined by the risk manager.
The risk management administration account's appropriation for risk management shall be financed through a combination of direct appropriations and assessments to state agencies.
Except as provided in subsection (2) of this section, in the discretion of the agency head, the presiding officer in an administrative hearing shall be:
The agency head or one or more members of the agency head;
If the agency has statutory authority to do so, a person other than the agency head or an administrative law judge designated by the agency head to make the final decision and enter the final order;
One or more administrative law judges assigned by the office of administrative hearings in accordance with chapter 34.12 RCW;
A person or persons designated by the secretary of health pursuant to RCW 43.70.740; or
A neutral hearing officer under section 2 of this act.
An agency expressly exempted under RCW 34.12.020(4) or other statute from the provisions of chapter 34.12 RCW or an institution of higher education shall designate a presiding officer as provided by rules adopted by the agency.
Any individual serving or designated to serve alone or with others as presiding officer is subject to disqualification for bias, prejudice, interest, or any other cause provided in this chapter or for which a judge is disqualified.
Any party may petition for the disqualification of an individual promptly after receipt of notice indicating that the individual will preside or, if later, promptly upon discovering facts establishing grounds for disqualification.
The individual whose disqualification is requested shall determine whether to grant the petition, stating facts and reasons for the determination.
When the presiding officer is an administrative law judge, the provisions of this section regarding disqualification for cause are in addition to the motion of prejudice available under RCW 34.12.050.
If a substitute is required for an individual who becomes unavailable as a result of disqualification or any other reason, the substitute must be appointed by the appropriate appointing authority.
Any action taken by a duly appointed substitute for an unavailable individual is as effective as if taken by the unavailable individual.
Except pursuant to RCW 43.70.740 and section 3 of this act, whenever a state agency conducts a hearing which is not presided over by officials of the agency who are to render the final decision, the hearing shall be conducted by an administrative law judge assigned under this chapter. In assigning administrative law judges, the chief administrative law judge shall wherever practical (1) use personnel having expertise in the field or subject matter of the hearing, and (2) assign administrative law judges primarily to the hearings of particular agencies on a long-term basis.
Section 13 of this act expires June 30, 2033.
Section 14 of this act takes effect June 30, 2033.
Except for section 14 of this act, this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.