2021 Proposed Changes to the Local Court Rules
The following proposed rules are open for comment through June 19, 2021. Please email comments to Court Administrator Emery at: amber.emery@clark.wa.gov
Comments will be posted within 2 business days under the Local Rules tab – 2021 Comments on Proposed Changes to the LCR.
LCRRLJ 3.4- Presence of the Defendant
LGR 30 – Mandatory Electronic Filing
LCRRLJ 3.1 – Right to and Assignment of Lawyer
LCRRLJ 4.5 – Pretrial Procedures
I write in opposition to proposed Clark County local rule LCrRLJ 3.4. The proposed rule would require people accused of crimes to appear at nearly all pre-trial hearings. Not only would that impose an unnecessary burden on people accused of crimes but presumed innocent, it would also directly contradict state rule CrRLJ 3.4. Of special concern are LCrRLJ 3.4(1)(a) and (b), which would require the accused’s presence at all mandatory pre-trial hearings and motions to continue.
Under CrRLJ 3.4, a court must find good cause to require an accused be present at a hearing other than arraignment, trial, or sentencing. See CrRLJ 3.4(d). The rules of statutory interpretation show that a court may require the accused’s presence at other hearings only after an individualized finding. First, the plain language of CrRLJ 3.4 makes that clear. Compare CrRLJ 3.4(b) (accused’s physical presence at listed hearings is necessary) with CrRLJ 3.4(d) (court may require an accused person’s presence at other hearings only if there is good cause). Second, CrRLJ 3.4(b) specifically refers to the three hearings that an accused must always attend, inferring that the accused need not attend other hearings. See Magney v. Truc Pham, 195 Wn.2d 795, 803, 466 P.3d 1077 (2020) (expression of one set of things in a statute or court rule infers the exclusion of others that are omitted). Finally, even assuming the state rule is ambiguous, the rule of lenity mandates individual findings of good cause.
Both findings of good cause and findings of necessity, which allow courts to issue warrants for failures to appear, must be individualized. A blanket requirement that an accused appear at all pretrial hearings will not support a later finding of necessity. See State v. Gelinas, 15 Wn.App.2d 484, 494, 478 P.3d 638, 644 (2020) (court could not issue bench warrant for nonappearance absent specific showing that accused’s personal attendance was necessary to ensure progress of his case).
A local rule may not contradict a state court rule. See Gelinas, 15 Wn.App.2d at 494 (blanket requirement of presence “is inconsistent with the state rules and therefore invalid under RCW 3.30.080”); GR 7(c) (“[a]ll local rules shall be consistent with rules adopted by the Supreme Court”).
Proposed local court rule LCrRLJ 3.4 would contradict both state court rule CrRLJ 3.4 and State v. Gelinas. We ask that you not adopt it.
Except for trial, PV hearings, competency proceedings, personal appearance by a defendant should not be required, except via electronic (zoom) means.
They should not be required for
Motions in Limine
Trial Readiness
Continuances
Omnibus
Mandatory Pretrial
Firearm Surrender review
Evidentiary Hearings
So long as counsel of record affirms on the record that their client waives in person appearance.
It is a good idea to do away with pretrial conferences
One of the new rules says that District Court will now charge a fee for electronic filing. It is completely unfair to litigants and their attorneys to charge for a mandatory requirement. I understand the need for filing fees for new cases, but not for filling documents in one that is already open.
Paragraph 3 of the new LGR 30 should be stricken.
The proposed rule conflicts with CrRLJ 3.4 and makes when inmates can appear through video transmission
The "good cause" found by the court in this proposed rule is not specified and will likely be found to be void on any challenge to a higher court. Further, the Court has participated in virtual court hearings as long as I have been practicing law through the use of "video arraignments." When the Court finds good cause to require physical presence but makes an exception for in-custody first appearances / arraignments, bail hearings, and trial settings, then saying out of custody defendants must be physical present makes no sense. The reality is that the physical presence requirement is not necessary. If it were necessary, we would bring inmates to the courtroom. Physical presence of participants might make things more convenient for the court, but at the expense of many, including the community at large. See below.
There is actually good cause not to require physical presence.
Court is easier to attend when it is virtual. Some people cannot attend court due to transportation, child care, work, fear, anxiety, etc. Zoom as an option makes this much easier for many people. This not only benefits the defendants, but also their employers, their children, and other family members.
The environmental impact of several dozens of people driving into downtown is substantially lessened by not requiring people to be physically present. Business travel in general should be dramatically curtailed, and our courts should lead the way on this front. The only true in-person business that really requires in-person appearance in our court system is fact finding hearings and trials.
Virtual court with emailing of documents requiring less paper and ink use, which is better for the environment, and cheaper for the county.
Less people commuting to court hearings will result in less traffic and safer roads.
Less people crammed into a room will result in our community having less exposure to illness.
Less people crammed into a room will be safer for purposes of potential fire and earthquake risks.
As our community grows, our courthouse will only need to be large enough to house trials, and instead of building a giant new courthouse, we could potentially remodel the one we have with a few smaller virtual courtrooms, leaving the larger courtrooms for trials.
Any of the perceived failings of the remote platform can be addressed instead of scrapped.
Issue – the participants don't always have documents ready. Solution -- I am quite certain DocuSign and Zoom are integrated. If not, there is undoubtedly software out there for this.
Issue – people do not always know how to connect to audio, or mute. Solution – be patient. Solution – find a better platform. Back in the old days, some people went to the wrong courtroom, had their phones go off in the middle of a hearing, talked too loud in the courtroom, walked slowly to the bar, showed up sick, showed up stinky – and what did we do? We had patience.
It appears that all of these changes came about because the Gelinas. Our appellate courts have found that warrants should not be issued when a person does not appear at a hearing where the defendant's presence is not truly necessary. Stating the defendant's physical presence is necessary doesn't change the fact that the physical presence was not truly necessary. From my perspective --
The following hearings do not require the Defendant's appearance --
Waiver of speedy trial - Nothing in the "Time for Trial" rule requires a court to make any findings about such a waiver. The only requirement for a waiver is that it be filed.
Omnibus - Defendants are not consulted as to Omnibus matters currently.
Scheduling of trial - Defendants are not consulted about trial scheduling. If they have bad dates, these dates can be relayed to their attorney.
Arraignment – arraignment can be waived, so their presence is not necessary
The following hearings require Defendant's appearance, but not Defendant's physical presence --
First appearance when in custody
Setting of conditions – This can be done virtually, as it is done for inmates.
Guilty plea – can be done virtually, or if the court believes appropriate on a case by case basis, in person.
Sentencing – can be done virtually, or at the discretion of the court, in person.
Violations of release – if an order to show cause is signed and the court finds the defendants physical presence is necessary, then the judge can so indicate on the order to show cause. Otherwise, virtual should be sufficient.
Readiness
The following hearings require Defendant's physical presence
Evidentiary hearings
Trial
If physical presence is ultimately required for all hearings, exceptions should be granted liberally and in a manner that is easy and streamlined. Further, the Court, the lawyers, and court staff should be more mindful of peoples' time by setting more docket time slots, and less people on to any given docket.
LCRRLJ 3.4 - PRESENCE OF THE DEFENDANT
This rule is a little too early, given that the level of immunization county wide is still less than 75% of the population.
Zoom hearings have been, overall, a good method of reducing the potential transmission of the Covid virus. Most of the routine hearings in the new rule can just as easily be accomplished with the defendant present virtually. Defendants who chose to be present personally can still do so. Cloaking the rule in the garb of the defendant's right to be present is disingenuous. A defendant who is present virtually can observe and hear all the things that go on in these types of routine hearings. Their rights at these routine hearings are fully protected by being present virtually.
I think the requirement for personal appearance at an evidentiary hearing under 3.6 or 3.6 is justified, but not for motions in limine, which seldom if ever require any input from a defendant, since they involve legal issues. Again, a virtual presence protects the defendant's right to observe hearings in his/her case.
Finally, the proposed rule conflicts with with the Supreme Court's CrRLJ 3.4(a), which specifies which types of hearings require the presence of the defendant. I don't think this court has the authority to make a local rule which is more restrictive that the Supreme Court's rule on this topic.
Among those with no vaccine, there is actually a high level of transmission. Except for the case of those who are low functioning, or have poverty issues that may keep them from getting to a vaccine site, this is a choice, and so I only feel bad for the innocents who are exposed by the "nasties," but I have found that a higher level of my clients seem to be anti vax, unfortunately. I won't meet in person with a client who says they are not vaccinated. They can fire me or sue me or whatever, but I don't believe I can be compelled to be around people who make that choice.
I believe they should require people to show a vaccine card before coming into court, and just so the idiots can't complain about "free dumb," have a vaccine site available that people can access in advance. I'm sure this comment will upset a few of the loonies, but to quote that great philosopher, Melania Trump, "I really don't care."