2023 November Hearsay

HearSay THE OFFICIAL MAGAZINE OF THE CLARK COUNTY BAR ASSOCIATION

November 2023

December 2019

The CCBA Celebrates Halloween

“Been there, done that.”

“Still there, still doing it.”

JESSE JACOBS

DON JACOBS

Injury law in Oregon and Washington Available for consult, association, or referral.

JESSE JACOBS Clark County, WA Bar Association President OTLA Guardian WSAJ Eagle DON JACOBS Trial Lawyer of the Year, Clark County (2015) Past President, Oregon Trial Lawyers Association

Portland 503.222.7757

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Vancouver 360.695.1624

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nwinjurylawcenter.com

The Clark County Bar Association is a professional organization that serves to support our local attorney community through providing education and networking opportunities designed to enhance and foster better relationships within the local legal community.

MEDICAL MALPRACTICE WRONGFUL DEATH PERSONAL INJURY

Law office of:

JANE E. CLARK AT TO R N E Y

AT

L AW

1014 Franklin Street Franklin Suites, Suite 108 Vancouver, WA 98660

Available for Referral or Association Vancouver 360.859.3823 Portland 503.974.4161 Email Jane@janeclarklegal.com

November Hearsay Contributors Nathan Petersen Petersen Rothermel Law Firm

Nathan Petersen is a partner at Petersen Rothermel Law Firm.

His practice focuses mostly on Family Law and Estate Planning.

Scott Edwards Schauermann Thayer

Scott Edwards practice focuses on wrongful death, personal injury, auto accident, biking accident, and insurance cases. He is a frequent speaker and has given many presentations regarding technology, insurance bad faith, and trial skills to other legal professionals.

Leila Arefi-Pour Vancouver Defenders

L e i l a A r e f i - Po u r i s a C r i m i n a l D e f e n s e a t t o r n e y a t Va n c o u v e r Defenders. Leila was recently elected as the Secretary of the Animal Law Section for the Wa s h i n g t o n S t a t e B a r a n d w i l l begin her role in October 2020.

Whitney Hawke Wheeler Boyd, Attorneys at Law

Whitney Hawke is a partner at Wheeler Boyd. Her practice focuses primarily on family law.

Judge Emily Sheldrick Clark County Superior Court

Judge Emily Sheldrick was appointed to the Clark County Superior Court Bench in 2021.

Before her appointment to Superior Court, Judge Sheldrick practiced law with an emphasis on employment and business litigation.

CCBA Celebrates Halloween page 10

Jordan Taylor: On a Mission to Bring Futsal to Clark County page 15

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Side Hustles page 18

The Pets of Vancouver Defenders page 27

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Updates to the City of Vancouver’s Criminal Prosecution Diversion Program On August 14, 2023, the City of Vancouver announced that it would be lowering the cost of participation in its Criminal Prosecution Diversion Program for qualified individuals who otherwise meet the Court’s indigency standard. The new price for qualifying defendants participating in the City’s diversion program will now be a flat-rate fee of $50 plus any restitution owed the victim. As compared to the regular diversion fee ($500-$700), this change represents a savings of 90% or more.

The legal need for – and significance of – lower diversion costs.

For the past 20 years, the City Attorney’s Office has administered a diversion program that has offered participants an alternative to traditional prosecution. If successfully completed, program participants have their pending criminal charges dismissed and avoid the direct and indirect consequences of a criminal conviction. By many standards, the program has been extremely successful and has allowed thousands of first-time offenders within minimal criminal history an opportunity to avoid criminal convictions by participating in treatment, staying crime free, and paying restitution owed to crime victims. But admittedly, the City’s program isn’t perfect.

When it was created 20 years ago, the City’s diversion program was designed to be self-funding. But today, the high cost of participation can also make the City’s diversion program prohibitive for some prospective participants. Participants are charged a fee of $500-$700* to enter the program (*the exact fee varies according to the type of criminal charges at issue) and historically, the City has not inquired into a defendant’s ability to pay this fee. Oftentimes, diversion participants pay their fees on time and successfully complete the program. But other times, participants fall behind in their payments. When this happens, participants are referred to collections, face revocation of their diversion agreement, and ultimately, imposition of criminal penalties. What makes these costs particularly problematic is when they’re compared to the relatively low (immediate) costs of pleading guilty to a crime.

The Washington Supreme Court has held that if a defendant pleads guilty, or is found guilty, a sentencing judge cannot impose fees or fines without inquiring into the defendant’s ability to pay.

State v. Blazina, 182 Wn.2d 827 (2015). Given that most criminal defendants – about 80% – are indigent, this has resulted in Washington Courts waiving the vast majority of fines in district court cases. As a result, when faced with the choice of pleading guilty and receiving no fines (or minimal fines), or opting for participation in a diversion program where the costs are quite high, many defendants choose to plead guilty. Of course, later, a conviction is often accompanied by numerous indirect burdens; difficulty obtaining employment, housing, or education to name a few.

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Vancouver, Washington • www.cityofvancouver.us

Why is the City changing its Diversion Fees now?

Following a special, one-day legislative session earlier this year, the Washington Legislature reached an agreement on passage of SB 5536 providing a legal ‘fix’ to State v. Blake, 197 Wn.2d 170 (2021), which invalidated the state’s possession of controlled substances law on constitutional grounds.

Legislature’s passage of SB 5536 reinstated criminal penalties for knowing possession of controlled substances. But as a corollary, SB 5536 also encourages Law Enforcement and Prosecuting Attorneys to offer treatment and diversion programs as alternatives in lieu of prosecution. As a result, City leaders began to evaluate whether the high cost of the City’s diversion program could be inadvertently creating barriers to participation.

Further changes to the City’s Diversion Program.

While lowering costs and fees for people with limited ability to pay is an improvement, the Vancouver City Attorney’s Office has committed to continue to monitor its prosecution diversion program for additional refinements that may be appropriate over the months and years ahead. To assist in this effort, the City Attorney’s Office will begin using a new prosecution case management system (eProsecutor) early next year. The City’s new eProsecutor system will allow City leaders to track the race and ethnicity of people subjected to the burdens of prosecution and critically analyze the social justice impacts of the City’s misdemeanor prosecution programs. The addition of this platform has been several years in the making and stands to be a powerful tool in advancing the goals of the City Attorney’s Office which include identifying opportunities to lawfully balance inequities and repairing imperfections that have long existed in our systems.

Vancouver, Washington • www.cityofvancouver.us

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FOR SALE! Through November, 2023

The law library is taking blind bids on these titles: 1. Employment in WA 4e 2021 - Lexis 2. WA Land Use 2021 – v. 36 WA Pr 3. WA Summary Judgment 2021-22 – v. 34 WA Pr 4. WA Elder Law and Health Law 2021 (2 vol) – v. 26-26A WA Pr 5. WA Torts and PI 2019 - LexisNexis 6. WA Pretrial Civ Pro 2013 (2 vol) - LexisNexis 7. WA Civil Discovery 2013 – LexisNexis Give your bid to the law librarian through the end of November. Bids must indicate your name, phone number, amount, and item(s) on which you are bidding. Winners will be notified in early December.

We reserve the right to withdraw any item from bidding.

We are open M - F from 9:00-2:00 if you would like to see the materials and bid in person. You can also send your bid to lawlibrary@clark.wa.gov.

Maria Sosnowski Clark County Law Library PO Box 5000 Vancouver WA 98666 maria.sosnowski@clark.wa.gov 564.397.2268 https://clark.wa.gov/law-library 26

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Up Close and Personal with the New Local Court Rules

By Judge Emily Sheldrick & Nathan Petersen In early March 2022, the Clark County Superior Court decided to undertake a significant project of reviewing our Local Rules. The Local Rules Subcommittee, comprised of Court Administrator Cheryl Stone, Judges Nancy Retsinas, Emily Sheldrick, Camara Banfield and Commissioner Jill Sasser, met on a weekly basis to review the Local Rules and draft proposed revisions, deletions, and additions to the Local Rules. The group considered several factors in evaluating the Local Rules, including statewide changes to Superior Court rules, local rules in other larger counties, changes that had occurred due to the COVID-19 Pandemic, as well as ways in which our local rules could adapt to current local practice and procedure.

As a result of this detail-intensive work, the Local Rules Subcommittee proposed multiple revisions to the Local Rules. The Subcommittee presented these proposed rules to several different stakeholder groups within our legal community and solicited feedback and comments.

After receiving feedback, Superior Court adopted some, but not all, of the proposed changes. These became effective on September 1, 2022.

The Local Rules Committee 32

hosted CLEs and other forums to answer questions about implementation of the Rules.

In January 2023, Superior Court underwent a significant change in its governance structure. With three divisions, Criminal, Civil, and Family, the bench noticed a few procedures that continue to need “fine-tuning.” Superior Court adopted some additional changes to the Local Rules this summer. With these changes, as well as the changes adopted in 2022, Superior Court continues to look for ways to create efficiencies and implement procedures to help the divisions run smoothly.

This article will highlight the most significant changes and offer tips on navigating the new rules. This article will also share advice to attorneys on various reminders and procedures to assist both the bench and practitioners on “best practices” when litigating in Civil and Family Law Divisions.

DISCLAIMER: This article will not address all the rules changes, so please do not rely on this article to give you a complete update on all new or revised rules. Also, this article will not address ex parte procedures. The Civil and Family Law Divisions continue to work on developing their postpandemic ex parte process. Once these procedures have been finalized, Superior Court intends to provide comprehensive information to the bar on the ex parte process.

NEW GENERAL RULES: REMOTE APPEARANCE AND ELECTRONIC FILING As a result of the COVID-19 Pandemic, virtual courtroom appearances and use of electronic or digital signatures have become more commonplace for many litigants and parties.

New Local General Rules 19 and 30 are intended to reflect these changes and allow for flexibility.

LOCAL RULE

SUMMARY OF CHANGE

TIPS/REMINDERS

LGR 19 REMOTE APPEARANCE

First adopted in September 2022, LGR 19 authorizes “remote appearance” for civil and family law dockets. Superior Court revised LGR 19 effective September 1, 2023, to clarify that evidentiary hearings (including bench trials) are presumed to be “in person”. The court must approve remote appearance for evidentiary hearings by motion and order.

Although parties and attorneys may continue to appear via Zoom for Civil and Family Law Dockets, attorneys must file a motion in order to have anyone appear via Zoom.

Practitioners should not presume that they can appear or have a witness appear remotely without prior approval by the court. “Best practice” is to seek agreement between the parties before making a motion to the court for a remote appearance.

LGR 30 ELECTRONIC FILING

This rule was adopted September 1, 2022, in order to confirm that electronic signatures are authorized on all pleadings for both attorneys and laypersons.

The Rule is intended to codify the emergency rules that were adopted during the pandemic.

GR 17 Declaration/Affidavit is no longer needed when submitting a pleading with an electronic signature.

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Breaking Up Is Hard To Do

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Clark County Superior Court

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BENCH/BAR COMMITTEE MEETING MINUTES October 10, 2023 -Persons in attendance: Nicholas Alexander (nick@vancouverwillsandtrusts.com) Leslie L opez (leslie.lopez@clark.wa.gov) Donald Esau (don@esaulaw.com) (Le Ann Larson (LeAnn.Larson@ clark.wa.gov) Jeffrie Keddie (jeffriek@nwjustice.org) Judge Fairgrieve (john.fairgrieve@clark.wa.gov) Judge Retsinas (nancy.retsinas@clark.wa.gov) - If you have matters that you would like to bring to the attention of the Bench/Bar, you are welcome to contact the above-mentioned members of the committee.

I. OLD BUSINESS: Discussed changing days of Bench/Bar committee to a different day besides the second Tuesday of the month.

II. NEW BUSINESS: - Judge Fairgrieve: Current Criminal docket structure has been running for six month and my peers seem to be happy with it; with more data coming in some of the things we have hoped it would do is being accomplished. As far as trials are concerned, in the Fall we had more cases called for trial than capacity (felony) which was not surprising given the back-log of cases. What that means is that we needed to prioritize cases that were within speedy trial, and who’s defendants have not waived. We would like to avoid, if possible, having weeks where no cases were called and it varies tremendously. o Two issues in Superior court – legislature passed two laws that went into effect July of this year – one has to do with firearm surrender for certain type of felonies. New statute says before the release of defendant they are to show proof of surrender or declaration of non-surrender (if they did not own firearms). This causes problems in a few ways - they are surrendering at sentencing but they may have been in custody so there would not have been an opportunity to hand-over the firearms. Law enforcement would then go out with defendant to their home to collect firearms at that time. Possible change at changeof-plea to smooth out process, and we are still working on it. Another statute on July 23 concerning DNA collection – Legislative intent was not being accomplished because DNA not being updated. Tissue samples are now being collected at sentencing. Agency that takes the samples are still working out process. DNA samples are part of the discharge process, which would not follow the statute but we are working on those solutions.

- Looks like were heading in the process of a public defender’s (“PD”) office – Plan is to hire a supervising attorney in the fall. Attorney and staff to be hired in 2024.

We are the only county of our size that does not have a PD office.

- Mock-trial around the corner. Probate case, called “whiskers”. All sorts of great issues. February 21 and 22 will be the trial. State championship will be in March 22 – 24. Not sure if middle schools will be participating and I believe they are gaging the interest of the middle schoolers.

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Don Esau: On here for the Gship bar and nothing to add.

- Judge Retsinas: – Civil Div ex parte dropbox now being offered so my department can accept directly - this offers civil practitioners (type 2) cases for non-emergency guardianship, agreed orders, probate petitions and orders, etc., for an expedited process. Unlawful detainer practitioner still following same process as before. We want to avoid criminal, family law, minor guardianship, or emergency orders being presented through this new process.

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New probate matters can include check and letters and the department will process the paperwork but must include filing fee, or you will need to go to the Clerk’s Office to provide payment. Currently this new dropbox method is for attorneys only. See below for what is and is not appropriate for this new offering: - The Civil Division Ex Parte Dropbox offers you another way to present ex parte motions/proposed orders to Civil Division Departments.

- This is located on the 3rd floor outside Judge Snider’s courtroom.

- You can avoid the clerk’s office by dropping your matter into that dropbox.

- You can still go through the clerk’s office if you prefer to drop your ex parte matters there and/or need same day consideration.

- If you are a UD practitioner, also follow the instructions of the UD Department.

-If you are a probate/guardianship practitioner, also follow the instructions of the Probate Department.

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What CAN be placed into this dropbox: -General Civil filings with a motion/proposed order - Probate/Adult Guardianship filings with a motion/proposed order - Minor settlement filings with a motion/proposed order - New cases ok so long as the filing contains a motion/proposed order

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What NOT to place into this dropbox: - No guarantee of same day service – use Clerk’s Ex Parte Process if you need same day service.

- No emergency submissions – contact either the rotating ex parte department or the assigned judicial department for handling of such submissions.

- No family law or criminal matters - No bench copies intended for a scheduled hearing – drop those off in the assigned department’s mailbox in court admin, 4th floor, or directly with the assigned department (depending on instructions you receive from the assigned department’s JA) 37

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HOW do I place items into the dropbox: - Secure your bundle of paperwork (binder or envelope).

- Provide contact information in case the court needs to reach out to you.

- Checks are ok.

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Questions? Reach out to the assigned department’s JA.

- Le Ann Larson: No updates today from the CCBA – but no cost brown bag Family Law CLE will be coming soon – keep an eye out for an email from the CCBA for details.

- Jeffrey Keddie: Nothing today from the NW Justice Project.

MEETING ADORNED 12:24 pm.

Respectfully Submitted, Nicholas Alexander

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Clark County Bar Association

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Minutes for the CCBA Board of Trustees Meeting October 3, 2023

Minutes for the CCBA Board of Trustees Meeting October 3, 2023 Called to order 12:03 pm. Hawke, Wechselblatt, Larson, Melnick, Sutanto, Petersen, Busby, Phelan and Executive Director Darco September 5, 2023 board meeting minutes: Motion to Approve (Sutanto/Phelan) Approved September 18, 2023 General Meeting Minutes: Motion to Approve (Wechselblatt/Hawke) Approved Treasurer’s Report (Melnick): Reviewed financial reports. The CCBA has three sources of income: membership dues, CLE revenue, and advertising revenue. Membership dues are ahead of last year at this time. Please renew if you haven’t yet and get your colleague who doesn’t have a membership to join. Remember that there are staff memberships too. This is the start of the new fiscal budget year, so the budget looks great at this time.

Ongoing Action Items Committee Reports: Hearsay Committee (Hawke) Lots of great content is in the works.

Social Committee (Phelan) It’s been a great year for social events. The Summer Soiree was more attended than the first one. A certain judge loves White Claws. Can you guess who? Next up is holiday party planning. A tentative date for Barrister’s Ball is 3/2/24.

CLE Committee: the plan is to have CLEs recorded for later purchase. Ryan Busby will be the CLE Committee liaison from the board. He will research recording CLEs and attend quarterly meetings.

DEI Committee (Wechselblatt) The Street Law program will resume in the spring. The committee will plan a CLE and may coordinate a diversity component in the end of year ethics CLE. Membership Committee ( Sutanto) no update

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Current Action Items Ratify email decision to approve 2023/2024 Budget (Hawke) Motion to ratify decision made by board via email to approve 2023/2024 budget for presentation at annual meeting.

(Larson/Phelan) Ratified Judicial Membership (Hawke) Discussion of judges as honorary members. Decision to maintain the long tradition of honorary memberships for judges. Thank you to Judge Retsinas and Judge Bartlett for your judicial donations.

Volunteer Lawyer Program Resolution (Hawke) motion to resolve to support the VLP. (Phelan/Melnick) Approved. Resolution signed.

Vote to Change Bank Signatories (Hawke) Motion to remove Christina Phelan and add Deb Wechselblatt as a signatory on the bank account. (Larson/Petersen) Approved Adjusting 2024 meeting dates (Hawke) Motion to move January, April, and July board meeting dates to the 9th. (Larson/Phelan) Approved Attorney Fee Survey (Hawke) Discussion of doing an attorney fee survey as the last one was in 2010. Idea to ask about LLLT fees and initial retainer amounts. Will review and suggest changes.

Updated Board Pics and Bios (Darco) Board to review pics and bios for updates. New board members to send pics and bios to Darco.

Membership Update and Plan (Hawke) 2023/2024: 307 members to date. Last Oct 1: 298 members. Nonrenewed at this time: 128 procrastinators. New members: 15. Total membership 2022/2023: 410. Expect a call from Treasurer Melnick or another board member if you haven’t renewed or have not been a CCBA member before. We are looking to increase membership by 36 more members than last year.

Upcoming Events FREE brown bag CLE: Howard Marshack is presenting on October 24th.

Adjourned

Andy Nygard, CFP

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