Seattle Attorneys Blog

Temporary Restraining Order Prohibits Student’s Suspension in Title IX Case

September 30, 2021 | by Blair & Kim, PLLC

A suspension or other sanctions imposed by a university as the result of a Title IX accusation can have severe consequences for the accused student. In some cases, it may be possible to prevent such sanctions, or at least delay them. An Indiana court recently issued a temporary restraining order against a university restraining it from suspending a male student or imposing other sanctions or restrictions against him following a Title IX complaint and investigation.

In his complaint, the plaintiff alleged a large number of procedural errors in the university’s handling of a Title IX complaint against him, including violations of Title IX regulations and the university’s own policies and procedures. His complaint included allegations of issues in the investigation, hearing, and the appeal process. He alleged the university did not disclose the details of the complaint against him or produce copies of certain evidence. The plaintiff also alleged the university hired individuals from an outside company with a conflict of interest to act as decision-makers, while the university’s policy defined “Decision-Makers” as “members of the three-person panel of trained faculty, staff, and/or administrative officials . . . .”

The plaintiff also alleged the complainant was allowed to testify at the hearing about alleged sexual assaults by the plaintiff against others, alleged rape by the plaintiff, and alleged nonconsensual sexual interactions between the plaintiff and others. The plaintiff alleged the decision-makers did not stop the irrelevant testimony and in fact the Hearing Officer asked questions related to those topics. The plaintiff alleged the Hearing Officer asked questions that were prohibited by the university’s policy and applicable regulations. The plaintiff also alleged the hearing Officer relied on the complainant’s and her roommate’s testimony about photos that were not in evidence. His lawsuit also identified numerous alleged issues with how the university processed his appeal.

Changes in Washington’s Civil Protection Order Laws

September 30, 2021 | by Blair & Kim, PLLC

The Washington legislature recently passed legislation that makes significant changes to Washington civil protection order law. The legislation expressed an intent to clarify and simplify civil protection laws, in part to provide greater access to protection orders and the related court processes. To further this goal, the new legislation consolidates the six types of civil protection orders into one chapter of the Revised Code of Washington (“RCW”). The laws relating to the different types of orders were previously scattered in multiple chapters of the RCW.

The new legislation also requires the administrative office of the courts to review the different approaches to jurisdiction for the different types of protection orders and evaluate “whether jurisdiction should be harmonized, modified, or consolidated. . . .” This review is to be done through the state supreme court’s gender and justice commission with support from the state women’s commission.

The new laws also require the administrative office of the courts to develop a single form that may be used for five of the types of civil protection orders, excluding only extreme risk protection orders. Courts will be required to allow petitions to be submitted electronically. Superior courts must meet this requirement by January 1, 2021 and all courts of limited jurisdiction must do so by January 1, 2026. Courts must also implement electronic tracking of the case by the petitioner and respondent within that same timeframe.

Washington Divorce Granted Despite Party’s Incapacity

September 27, 2021 | by Blair & Kim, PLLC

A court must appoint a guardian ad litem when a party to an action is incapacitated and does not have a guardian. RCW 4.08.060. In In re Marriage of Gannon, the Washington Supreme Court held that a guardian or guardian ad litem may pursue a Washington divorce on behalf of an incompetent ward if it is in the ward’s best interests, noting that never allowing divorce to be pursued on behalf of the incompetent spouse would allow the competent spouse “absolute, final control over the marriage” and such a result was “not equitable.” The trial court must hold a hearing to determine whether dissolution is in the ward’s best interest.

In a recent unpublished case, an appeals court considered whether the trial court properly granted a divorce. According to the appeals court’s opinion, the parties married in 1989. The husband was diagnosed with Alzheimer’s disease in 2014. The parties started having arguments, including a physical altercation in 2016. The wife testified that she told the husband she was afraid he would kill her if she stayed with him. A neighbor testified the husband came to his house and said he could not go home because he was afraid he would be killed. The neighbor testified the husband asked him to call the police. The police arrested the wife.

The husband’s children tried to obtain a vulnerable adult protection order, but were unsuccessful. The wife requested a Guardian Ad Litem for her husband, stating she wanted to maintain their finances and control over his healthcare decisions. The husband signed a durable power of attorney for healthcare and durable power of finances. He stated he wanted a divorce.

Washington Juvenile Court Jurisdiction Cannot Be Waived for All Types of Charges

September 14, 2021 | by Blair & Kim, PLLC

Juvenile cases are sometimes transferred to adult criminal court. The requirements regarding a court holding a hearing on the issue of declining jurisdiction are set forth in RCW 13.40.110. An appeals court recently considered whether Washington juvenile court jurisdiction could be waived for any type of case, or if the court’s authority was limited to the types of cases identified in the statute as eligible for a decline hearing.

According to the appeals court’s opinion, a 17-year-old juvenile was charged with two counts of a gross misdemeanor, fourth degree assault. He moved to have the case moved to adult criminal court, partly to have a jury trial and an opportunity to vacate his convictions. He argued a juvenile court may decline jurisdiction over a criminal case if the juvenile intelligently makes an express waiver pursuant to RCW 13.40.140(10). RCW 13.40.140(10) provides that any waiver of a juvenile’s rights must be “express” and “intelligently made.” The state argued that a juvenile court is only permitted to decline jurisdiction in cases in which a decline hearing is required.

The court granted the request and the state requested discretionary review.

Department of Education Issues Title IX Guidance

August 31, 2021 | by Blair & Kim, PLLC

The Department of Education (“Department”) Office of Civil Rights (“OCR”) recently issued a Questions and Answers document providing guidance on Title IX sexual harassment regulations. In addition to a number of questions and answers about the regulations, the 67-page document provides examples of Title IX procedures for elementary schools, high schools, colleges, and universities. The document makes clear that the 2020 regulations remain in place for now, but provides some insight into how the current administration may interpret those regulations until it implements its own amendments.

Applicability

Answer 13 makes clear that the 2020 amendments are not retroactive and schools should apply the Title IX requirements in place when the alleged incident occurred, regardless of when the school responded. The answer also refers schools to various guidance documents that were previously rescinded, indicating they may be helpful to schools handling allegations of sexual harassment occurring before the effective date of the 2020 Final Rule.

Actions Beyond the Regulations

Question 2 addresses whether a school may take steps beyond those set forth in the 2020 Final Rule. The answer provides that the school may take additional actions that do not conflict with Title IX or the regulations. Question 7 and its answer also address alleged sexual misconduct that does not meet the regulations’ definition of sexual harassment. The answer clarifies that the school may respond to reported sexual misconduct that occurs outside the United States or outside the education program or activity. Schools may take action against sexual misconduct that does not fit the definition of sexual harassment. The answer clarifies OCR’s position that Title IX does not prevent a school from addressing misconduct that does not meet the definition of sexual harassment by enforcing its code of conduct.

Washington Conviction Overturned Due to Insufficiency of Charging Document

August 29, 2021 | by Blair & Kim, PLLC

To convict a defendant of possession of a stolen motor vehicle, the prosecution must show the defendant knowingly possessed the vehicle and that he acted with knowledge it was stolen. When a person is charged with a crime, the charging documents must include all of the essential elements of that offense. A Washington criminal defendant recently challenged his conviction, arguing the charging document failed to give him the required notice of the knowledge element of the offense.

According to the appeals court’s opinion, the defendant was stopped because he was not wearing a helmet. The officer suspected the moped the defendant was driving was stolen and confirmed those suspicions with a review of the VIN.

The defendant was charged with and convicted of possession of a stolen motor vehicle. He appealed, arguing the charge violated his constitutional right to notice because it did not include the knowledge element.

Termination of Washington Spousal Maintenance Based on Remarriage

August 28, 2021 | by Blair & Kim, PLLC

Unless an agreement or the divorce decree provides otherwise, a Washington spousal maintenance obligation generally ends when the party receiving it remarries or registers a new domestic partnership or when either party dies. RCW 26.09.170(2). Generally, the court may only modify a maintenance order if there is a substantial change in circumstances. RCW 26.09.170(1). Washington law also allow a divorce decree to preclude or limit modification of a maintenance provision if the parties agreed to do so in the separation agreement. RCW 26.09.070(7). A court does not have the authority to modify such a provision.

In a recent unpublished case, an ex-husband appealed a court order terminating the spousal maintenance he received. The parties’ divorce decree in 2007 was based on a separation agreement that required the wife to pay the husband spousal maintenance. The agreement provided that the spousal maintenance would terminate when the husband remarried or died. It stated the spousal maintenance obligation was otherwise “non-modifiable” except in the case of the wife’s disability.

The wife sought to terminate the maintenance in 2019, alleging the husband had remarried. She claimed she had seen a news article indicating the husband was married to another woman.

Washington Court Denies Renewal of Domestic Violence Protection Order

August 10, 2021 | by Blair & Kim, PLLC

When a court grants a Washington domestic violence protection order for a fixed period of time, the petitioner may seek a renewal up to three months before it expires. A petition for renewal should be granted unless the respondent shows he or she will not resume domestic violence upon the expiration of the protection order. The respondent must make this showing by a preponderance of the evidence. RCW 26.50.060.

In a recent case, a mother challenged the denial of renewal of an order of protection. The court had originally granted her a one-year domestic violence protection order against her children’s father protecting the mother and their two children. The trial court found the father had harmed one of the kids and the mother was afraid for their safety. The father was prohibited from abusing the mother and children. The children were subject of a dependency proceeding, so the father’s contact with them was subject to the custody of the Department of Children, Youth and Families.

The mother petitioned to renew the protection order. She claimed the father scratched the children during his visitation with them. The trial court held a hearing where the mother, her mother, a polygraph examiner, and a Department of Children, Youth and Families social worker testified. Other evidence included a letter and a report from the Department of Children, Youth and Families.

Prohibition of Absentee Statements in Title IX Hearings Found to Be Arbitrary and Capricious

July 30, 2021 | by Blair & Kim, PLLC

On May 19, 2020, the Department of Education (“DOE”) published a Final Rule significantly amending the regulations that implement Title IX. The Final Rule changed the requirements for how schools handle Title IX complaints and investigations. Four victims’ advocacy groups and three individual plaintiffs filed suit in a federal court in Massachusetts to challenge the Final Rule. The plaintiffs argued in part that portions of the Final Rule were arbitrary and capricious.

In some circumstances, an agency is required to give a detailed explanation when it has a change in policy. An agency must provide a detailed justification for a change in policy that is based on factual findings that contradict the factual findings upon which the previous policy was based. Additionally, the agency must give a detailed justification if there were “serious reliance interests” on the prior policy. The agency then must weigh those reliance interests against the policy concerns.

The court noted that most of the plaintiffs’ arguments that the Final Rule was arbitrary and capricious were really policy arguments. The DOE had explained why the provisions supported its goal, why it wrote them the way it did, and why it rejected a number of alternatives. It also addressed commenters’ concerns.

Washington Conviction Reversed Due to Potential Unconscious Bias in Jury Selection

July 29, 2021 | by Blair & Kim, PLLC

A defendant in a Washington criminal case is entitled to a fair and impartial jury pursuant to both the state and federal constitutions. Washington court rules allow parties to strike some prospective jurors without a stated reason through peremptory challenges. A party may not, however, strike a prospective juror for a discriminatory reason. U.S. Supreme Court case law has developed a framework for analyzing whether there has been improper “purposeful discrimination” in the use of a peremptory challenge. This analysis, however, does not protect the defendant from the potential of unconscious bias in the selection of the jury.

Washington adopted a rule to address this issue. General Rule 37 permits a party or even the court itself to object to a peremptory challenge to raise the issue of improper bias. The party who made the challenge must then articulate their reasons for using the challenge. The court then must determine if an objective observer could see race or ethnicity as a factor, considering the totality of the circumstances. If so, the court should deny the peremptory challenge.

A defendant recently appealed his conviction after the trial court allowed the prosecution to strike a juror over the defendant’s objection. According to the appeals court’s opinion, the defendant was charged with first degree kidnapping and second degree assault of his long-term girlfriend, with four firearm enhancements.