Seattle Attorneys Blog

Washington Appeals Court Upholds Mother’s Felony Harassment Conviction

January 20, 2022 | by Blair & Kim, PLLC

Some custody cases can become so acrimonious they result in Washington civil protection orders and even criminal court. In a recent unpublished case, a mother challenged her convictions of felony harassment and felony violation of a protection order.

When the parents divorced, the mother was awarded sole custody of the children. After the father obtained treatment for a brain injury he incurred in the military, he was given visitation. The mother would not comply with the visitation order and the father was given sole custody in September 2018.

According to the appeals court’s opinion, the father found the mother attempting to break in to his home the day he took custody. She physically attacked him and his father.

Washington Annulment and Fraud Involving the Essentials of Marriage

January 9, 2022 | by Blair & Kim, PLLC

Washington public policy favors a presumption that a marriage is valid. Case law has held that a party seeking a Washington annulment must show the marriage is invalid by “clear, satisfactory, and convincing evidence.” A marriage is invalid if one party was induced to enter into it by “fraud involving the essentials of marriage” and the parties have not voluntarily cohabitated after the fraud was discovered. RCW 26.09.040.

A man recently challenged a denial of his petition to invalidate his marriage, alleging the wife had misrepresented her prior relationship with another man. The parties’ mothers were long-time friends. The husband went to Vietnam with his mother in 2015 and met the wife. He visited her again in 2016. He asked her if she had ever had any prior relationships and she said she had not. They started talking about marriage later that year. The husband applied for a K-1 visa in 2017.

When the wife got to the U.S. in August 2017, she asked the husband to get a marriage license the next day. The couple married as soon as the 3-day waiting period passed. They slept in separate bedrooms that night. According to the appeals court’s opinion, the parties were only sexually intimate once, later that month.

Disclosure of Student Discipline Records Under Washington Public Records Act

December 31, 2021 | by Blair & Kim, PLLC

A Washington Title IX investigation can have lasting and serious effects on an accused student. A Washington appeals court recently concluded that the names of students found responsible for a crime of violence or a nonforcible sexual offense in disciplinary proceedings at a public university are subject to disclosure under the Washington Public Records Act (“PRA”).

According to the appeals court’s opinion, journalists submitted a public records request to a university seeking results of disciplinary proceedings with findings that “a student was responsible for a crime of violence or nonforcible sexual offense in the last five years.” The university provided tables of the offenses, each including the disciplinary action taken, but with the students’ names redacted. The university also provided an exemption log which identified the student’s names as exempt from disclosure under RCW 42.56.230(1).

The journalists sued the university to get the students’ names. The university subsequently concluded the names were not exempt and notified the involved students it intended to disclose their names. Seven students sought injunctive relief. The trial court denied the injunctions, finding the students failed to show their names were exempt.

Washington Conviction Reversed Due to Juror’s “Actual Bias”

December 29, 2021 | by Blair & Kim, PLLC

Washington criminal defendants are guaranteed a trial by an impartial jury under both the state and federal constitutions. The trial court should excuse a potential juror if the performance of their duties as a juror would be prevented or substantially impaired by their views. Actual bias is a basis of a for-cause challenge by either party. Actual bias occurs when the prospective juror’s state of mind that would prevent them from trying the issue impartially without prejudice to the challenging party. RCW 4.44.170. If a juror with actual bias is seated, the error is not harmless and requires a new trial. A defendant recently appealed his murder convictions, arguing the court erred in seating a juror with actual bias.

A young Canadian couple was killed while traveling to Seattle in 1987. Their bodies were discovered in different counties. A DNA profile was developed from DNA retrieved from the woman’s body and clothing. The male victim was excluded as the source of that DNA. According to the appeals court’s opinion, the defendant was identified as a potential source of the DNA profile in 2018 through genealogy matching. The defendant’s DNA was matched to the profile from the female victim’s pants and body after undercover officers collected a coffee cup he discarded.

The state charged the defendant with two counts of first degree aggravated murder. In an individualized inquiry, a potential jury expressed uncertainty she could be fair. She thought the topics and evidence may be difficult for her because of her own traumatic experiences in the past. The defendant moved to dismiss the juror for cause, but the trial court denied the motion. That potential juror was seated on the jury.

Washington Juvenile Drug Possession Adjudication Vacated Under Blake

December 23, 2021 | by Blair & Kim, PLLC

In State v. Blake in 2021, the Washington Supreme Court determined that Washington’s strict liability drug statute violated due process because it “criminalize[d] innocent and passive possession.” This case has had a tremendous impact on Washington drug possession cases. A Washington criminal conviction that is based on an unconstitutional statute is required to be vacated. A number of cases under the previous version of R.C.W. 69.50.4013(1) have been overturned as a result of the Blake decision. Recently, a juvenile appealed his drug possession adjudication under a different statute, arguing it should also be vacated due to the court’s holding in Blake.

The juvenile was found guilty of violation of the Uniform Controlled Substances Act under former R.C.W. 69.50.4014. He appealed, arguing the Washington Supreme Court’s decision in Blake required his adjudication to be vacated. He argued the applicable version of R.C.W. 69.50.4014 was unconstitutional and void based on the reasoning in Blake.

The state argued that Blake did not void the applicable version of R.C.W. 69.50.4014 because that charge carried a lesser punishment than the statute Blake found was unconstitutional. The appeals court rejected the state’s argument, noting the Blake court did not base its decision on the severity of the punishment. The Blake decision was instead based on the statute’s lack of an intent element.

Washington Committed Intimate Relationship Doctrine Not Applicable to Married Parties

December 13, 2021 | by Blair & Kim, PLLC

Washington family law recognizes committed intimate relationships, which are stable relationships where the parties cohabit knowing that they are not lawfully married. It is an equitable doctrine, intended to protect unmarried partners who acquire property during the relationship. Before distributing property under the doctrine, the court must first determine whether there is a committed intimate relationship, based on the circumstances of the case with consideration of a number of factors. If there is a committed intimate relationship, the court must next evaluate the parties’ respective interest in the property acquired during the relationship. Then, the court must distribute the property in a just and equitable manner.

A woman recently sought relief under the committed intimate relationship doctrine for property acquired after she reunited with her husband following a legal separation. The parties legally separated in 2002, resulting in an agreed judgment and decree of legal separation in California. They got back together instead of following through with a divorce at that time. However, they still divided their assets and the father paid child support and spousal maintenance in accordance with the California order.

They stayed together for several years, but separated again in early 2020. The wife petitioned for an equitable distribution of the property acquired after the separation order under the committed intimate relationship doctrine. The husband moved to dismiss the case for failure to state a claim, arguing they were still married. The trial court ultimately dismissed the petition, finding the wife could not pursue a committed intimate partnership claim because the parties were married.

Title IX Plaintiff Required to Use Initials Instead of Pseudonym

November 30, 2021 | by Blair & Kim, PLLC

Because Title IX cases may involve allegations of sexual harassment or sexual assault, Title IX plaintiffs often want to maintain anonymity. Courts commonly allow Title IX plaintiffs, both alleged victims and those who have been accused of sexual misconduct, to proceed under a pseudonym. Recently, however, some courts have denied male plaintiff’s requests to do so.

In one recent case in Colorado, the plaintiff asked to be allowed to file a complaint under a pseudonym in February. The court originally granted that motion, finding the plaintiff had alleged a significant privacy interest. The court noted that the defendants could still object to the use of a pseudonym or the judge could revisit the issue later in the case.

The defendants moved to require the plaintiff to proceed under his true name, arguing the case did not involve highly personal and sensitive matters and that the interests of the defendants and the public interest’s weighed against allowing him to proceed with a pseudonym.

Visitation Provisions in Washington DVPO Are Not Parenting Plan Modification

November 28, 2021 | by Blair & Kim, PLLC

Washington domestic violence protection orders must be supported by a preponderance of the evidence that domestic violence occurred. Domestic violence protection order proceedings are not subject to the same rules of evidence as other types of cases. A court may rely on evidence, such as hearsay, that would not be allowed in other types of proceedings. In a recent unpublished case, a father challenged a domestic violence order against him, arguing in part there was not credible evidence supporting it.

When the parents divorced, the trial court entered a permanent restraining order prohibiting the father from contacting the mother except for reasons related to the children. The trial court in the divorce proceeding found the father engaged in domestic violence and abusive use of conflict. The court also ordered the father to participate in parenting classes and domestic violence treatment.

Several years later, the children told their mother that they were afraid of their father and did not want to go back to his home.

Restoration of Washington Gun Rights After Blake Decision

November 21, 2021 | by Blair & Kim, PLLC

A Washington criminal conviction can have significant and lasting consequences. Convictions may result in greater sentences for subsequent offenses, the loss of firearm rights, and the loss of voting rights. In some circumstances, some rights may be restored. In a recent case, a man who had lost his firearm rights following a felony conviction was denied restoration based on a prior misdemeanor possession conviction.

According to the appeals court’s unpublished opinion, the petitioner was convicted of misdemeanor possession of less than 40 grams of marijuana under former RCW 69.50.401(e), a strict liability offense, in 2003. The following year, he pleaded guilty to felony manufacturing methamphetamine. The judgment and sentence stated the maximum penalty was 10 years and did not list his prior conviction. The petitioner lost the right to use or possess firearms as a result of the 2004 felony conviction.

The petitioner sought restoration of his firearm rights in 2020. The state argued he was not eligible for restoration because the maximum sentence should have been 20 years instead of the state 10 years. The state argued the 2003 conviction automatically triggered the doubling provision of RCW 69.50.408. RCW 69.50.408 allows the doubling of a sentence for a conviction under Chapter 69.50, the Uniform Controlled Substances Act, if the defendant had a prior conviction under Chapter 69.50 or a federal or another state’s law related to narcotics, marijuana, depressants, stimulants, or hallucinogenic drugs.

Washington Appeals Court Allows Separate Property to Be Traced from Joint Account

November 10, 2021 | by Blair & Kim, PLLC

In a Washington divorce, a party who claims an asset is separate property must show it qualifies as separate property by clear and convincing evidence. If separate property becomes commingled with community property to the extent it is impossible to distinguish it, then it becomes community property. In a recent case, a husband challenged the trial court’s distribution of property, arguing the certain assets could not be sufficiently traced to retain their separate character.

The parties were married for nearly 32 years when they separated in January 2018. They owned nine rental properties. The wife argued she made the down payments for three of the properties from her inheritance from her father’s death. She claimed she had a traceable separate property interest in those properties.

Her inheritance had been deposited into a joint savings account where community funds had been deposited. The funds in the account were sometimes used for community expenses. The wife testified the account was used infrequently so the inheritance “was kind of kept separate in there.” She testified she had wanted to keep her inheritance as separate property, but was concerned putting it in a separate account would look like she was not trying to work things out after a recent reconciliation.