Seattle Attorneys Blog

Accused Students Proceeding Under a Pseudonym in Title IX Litigation

August 31, 2022 | by Blair & Kim, PLLC

The use of pseudonyms has been a significant issue in Title IX litigation recently, with some courts denying accused students the ability to proceed in litigation against their school under a pseudonym. The First Circuit, however, has recently vacated an order denying an accused student the use of a pseudonym and provided a new standard for evaluating this issue.

According to the First Circuit’s opinion, the plaintiff was found responsible for nonconsensual sexual contact and intercourse and sexual harassment by a three-member panel following a Title IX investigation and hearing. He was notified he would be expelled. The university denied his appeal and expelled him shortly before he was to graduate.

The plaintiff sued the university, alleging breach of contract, promissory estoppel, and denial of basic fairness. He alleged the investigation’s “[r]adical feminist anti-male bias” led to a presumption the complainant’s allegations were true. He also moved to proceed by pseudonym because he would be significantly harmed by being required to reveal his identity. The district court denied the motion and the plaintiff ultimately appealed.

Use of Recording without All Parties’ Consent in Washington Criminal Case

August 25, 2022 | by Blair & Kim, PLLC

Washington’s privacy act generally prohibits recordings of communications obtained without consent of all parties from being admitted as evidence at trial. RCW 9.73.030. In some circumstances, however, they may be admissible. A law enforcement officer can intercept, record, or disclose a conversation with the consent of one party and authorization of a judge. The judge must approve the application for authorization if there is probable cause the other party committed, is committing, or is about to commit a felony. RCW 9.73.090(2). The requirements for the application are set forth in RCW 9.73.130, and if the application is not in compliance with those requirements, the order is unlawful and the recording cannot be admitted into evidence. A defendant recently challenged admission of a video of him and his brothers discussing the crime.

According to the appeals court’s unpublished opinion, five young men in masks and dark clothes killed two people and shot three others in an encampment for people without housing. One of the victims identified the person who shot her as a man called “Juice.”

A man called “Lucky” contacted the police the following day and said his 17-year-old nephew, the defendant, had admitted to the shooting. Lucky and a relative went to the police department for an interview. They told the detective the defendant and his brothers owned three guns. Lucky agreed to try to record a conversation with the defendant.

Jury Instructions for Lesser-Included Offenses in Washington

August 14, 2022 | by Blair & Kim, PLLC

Washington criminal defendants have the right for the jury to be instructed on applicable lesser-included crimes if each of the elements of the lesser offense is a necessary element of the charged offense and the evidence supports an inference the lesser crime was committed instead of the greater offense. There must also be affirmative evidence of the defendant’s theory.

A defendant recently challenged her conviction because the trial court denied her request to instruct the jury on lesser-included offenses. According to the appeals court’s unpublished opinion, the defendant told another sophomore student that a senior, identified by the court as “RV,” had inappropriately touched her and other girls. She had complained to the administration, but did not receive a response. She and the other student, identified as “JC” developed a plan to “take out” or “kill” RV, according to statements she gave the police. She said she was to convince RV to meet her at a market across from the school and JC would attack him.

The state presented evidence of messages associated with the defendant’s social media account convincing RV to her. JC went behind the market with a knife and a red t-shirt over his face. RV and the defendant went inside the market to buy lunch. The defendant testified she only intended to get lunch and return to school. As they were leaving the market, other students were “talkin’ about a guy in the field with a red mask.” They went behind the store and RV saw someone in a red mask stand up and point at him. He decided to go back to school. JC and the defendant spoke, and then both went back to school, too.

Washington Court Denies Grandmother Visitation

August 7, 2022 | by Blair & Kim, PLLC

Parents have a fundamental right to make certain decisions regarding their children, including decisions regarding visitation with grandparents. A nonparent relative may petition for visitation if they have an ongoing and substantial relationship with the child and harm or the substantial risk of harm to the child is likely if the court denies visitation. RCW 26.11.040. The court will order visitation if it is in the child’s best interest and there is a likelihood of harm or the substantial risk of harm if visitation is not granted. Washington family law presumes the decision of a fit parent to deny visitation to a nonparent is in the child’s best interest and does not create either a likelihood of harm or a substantial risk of harm. RCW 26.11.040(2). To overcome the presumption, a nonparent seeking visitation must show by clear and convincing evidence that visitation is necessary to prevent harm or the substantial risk of harm to the child. RCW 26.11.040. The petitioner must state the specific facts supporting the petition in an affidavit. The trial court will only hold an evidentiary hearing if it finds it more likely than not the petition will be granted based on the petition and affidavit. RCW 26.11.030.

A grandmother recently appealed a court’s denial of her petition for visitation. The child and both parents lived with her grandmother after the child was born in 2015. The father and child moved out after he learned the mother was using drugs again. The father was granted full custody. The parenting plan prohibited contact between the mother and child until the mother could show she had been sober, employed, and stable for an extended period of time. The parenting plan also stated the grandmother’s home was not appropriate for the mother and restricted the grandmother from driving the child due to her history of DUIs.

After the custody case concluded, the father allowed the mother’s grandparents to visit the child. They sometimes took her to visit the grandmother. The grandmother also sometimes spent holidays and the child’s birthday parties with the father’s family. The relationship between the father and grandmother soured, however, due to disagreements regarding the child and concerns about the grandmother’s use of alcohol. The father then limited the grandmother’s time with the child.

Court Holds Tax-Exempt Status Subjects Private School to Title IX

July 31, 2022 | by Blair & Kim, PLLC

Title IX prohibits sex-based discrimination in education programs or activities that receive federal financial assistance. Public schools are clearly subject to Title IX requirements, but applicability to private schools is less clear. If a private school receives federal financial assistance, it is subject to Title IX, thought there are certain exemptions for educational institutions controlled by religious organizations. Federal financial assistance can include grants and loans, but can also include programs such as the National School Lunch Program and Head Start. A federal court in Maryland recently considered whether tax-exempt status constitutes federal financial assistance.

Former students and parents on behalf of minor former students sued a private high school, alleging the school had failed to adequately address their complaints of sexual assault and sexual harassment by male students. The school moved to dismiss the Title IX complaints, alleging it was not subject to Title IX because it was not a direct recipient of federal financial assistance at the time in question.

The court stated the school’s argument was “without merit” because its “tax-exempt status . . . constitutes federal financial assistance for the purposes of Title IX.”

Recent Changes to Washington Civil Protection Order Laws

July 29, 2022 | by Blair & Kim, PLLC

Major changes in Washington’s civil protection order laws took effect July 1, 2022. The changes were intended to update and harmonize laws related to civil protection orders.

Civil protection order laws are now consolidated under RCW 7.105. Under the new law, rules and procedures will be more standardized across the different types of protection orders. There are procedural changes to service of process and hearings. Electronic service is now prioritized except in cases requiring the surrender of firearms, cases involving the transfer of custody of a child, cases involving removal of the respondent from a shared residence, cases where the respondent is incarcerated, and vulnerable adult protection order cases filed by someone other than the vulnerable adult. RCW 7.105.150.

Hearings related to protection orders may be held in person or remotely. The court must allow a party to appear remotely unless it finds good cause to require them to attend in person or by other specific means. RCW 7.105.205.

Washington Appeals Court Upholds Divorce of Foreign Nationals

July 21, 2022 | by Blair & Kim, PLLC

Courts must have jurisdiction over the cases they hear. A husband recently challenged the jurisdiction of the Washington court that dissolved his marriage. To petition for divorce in Washington, the petitioner or their spouse must be a resident of Washington. RCW 26.09.030. Washington courts have held that this means a party must be domiciled in Washington.

The wife was a Polish citizen and the husband was a Swiss citizen. They got married in Switzerland in 2012 and then moved with their children to Washington in 2014. They both worked in Washington and enrolled their children in local schools and activities.

The parties separated in October of 2018 and the wife filed for divorce the following April. The husband argued the court did not have jurisdiction over the divorce because he and the children were not domiciled in Washington. The wife testified that the husband’s job was a permanent position and they had no solid plans to go back to Switzerland. She said she considered the move to Washington to be “a new beginning.” She said she intended to remain in Washington permanently with the children, her fiancé, and her new baby.

Washington Harassment and True Threats

July 10, 2022 | by Blair & Kim, PLLC

To convict a defendant of Washington harassment, the state must show that the defendant knowingly threatened to cause bodily injury, physically damage someone else’s property, or physically confine or restrain another person, without the authority of law, and placed the threatened person in reasonable fear that they would carry out the threat. Harassment is a class C felony if the threat was to kill the threatened person or someone else. RCW 9A.46.020. Since it criminalizes a pure form of speech, the harassment statute implicates the First Amendment. Washington courts therefore interpret it as criminalizing only “true threats.”

A defendant recently challenged his felony harassment conviction, arguing the state had not produced evidence of a true threat. A man was renting a room in defendant’s home from April to October of 2020. According to the appeals court’s opinion, the defendant yelled at the renter and called him names during a conflict that summer. He also would throw things in his bedroom. The renter heard the defendant having a “tantrum” in the garage on August 23. The defendant told the renter his boxes should be taken out of the garage. The renter said he had misunderstood a text message about when he should remove the boxes. The defendant pointed at him and said he had a gun and would shoot the renter in the head. After the defendant walked away, the renter went back to his own room and called the police.

The defendant was charged and ultimately convicted of one count of felony harassment with a domestic violence enhancement.

Department of Education Releases Proposed Title IX Rule

June 29, 2022 | by Blair & Kim, PLLC

The U.S. Department of Education released a new proposed Title IX rule for public comment on the 50^th anniversary of Title IX. This proposed rule has been highly anticipated, and as expected, reverses some of the changes made in 2020.

The proposed rule broadens the scope and application of the Title IX regulations. It states the scope of Title IX is “[d]iscrimination on the basis of sex. . .” Sex-based discrimination under the proposed rule expressly includes discrimination based on gender identity, sexual orientation, sex characteristics, sex stereotypes, and pregnancy or related conditions. Likewise, the proposed rule includes discrimination on those bases within the definition of “sex-based harassment.” The proposed rule places unwelcome conduct harassment under a hostile environment framework. The definition of “hostile environment” requires the unwelcome conduct to be “sufficiently severe or pervasive” to either deny or limit the person’s ability to participate in or benefit from the education program or activity. The proposed rule further expands the application of Title IX by placing an obligation on schools to address a sex-based hostile environment under the school’s education program or activity even if the harassment occurred outside the education program or activity or outside the U.S.

The proposed regulations also expand the school’s ability to use an informal resolution process to include situations where a formal complaint has not been filed.

Washington Court Denies DOSA Sentence for Multiple Violations of No Contact Order

June 27, 2022 | by Blair & Kim, PLLC

Washington’s Drug Offender Sentencing Alternative (“DOSA”) program provides substance use disorder treatment and community treatment to people with a substance use disorder who have committed certain crimes. A DOSA sentence reduces or eliminates the time a person must spend in jail or prison if they complete the treatment and comply with the supervision requirements. A defendant recently challenged a court’s denial of his request of a DOSA sentence.

He was charged with three felony counts of violating a court order, with the state alleging he knowingly violated a no contact order on three occasions and that he had at least two prior convictions for violating a court order.

At sentencing, the defendant asked for a prison-based Drug Offender Sentencing Alternative (“DOSA”), pursuant to RCW 9.94A.660, pointing to testimony from the alleged victim in which she responded “yes” to a question asking if the defendant used methamphetamine. The court described this testimony as inadmissible and prejudicial. The trial court noted that the defendant was facing three cases in a different county and had two prior convictions for violating court orders.