Seattle Attorneys Blog

Federal Court Enjoins University from Proceeding with Title IX Disciplinary Hearing

November 24, 2020 | by Blair & Kim, PLLC

Although the preamble to the new Title IX regulations states the regulations do not apply retroactively, a Temporary Restraining Order issued by a New York federal court recently raised questions about retroactive application. The court has recently rendered a much more detailed opinion on the issue of a preliminary injunction in the Title IX discrimination case.

According to the court’s opinion, the plaintiff had a consensual sexual relationship with a female student, identified as “Jane Roe.” She invited him to her dorm room to discuss an incident where she allegedly caught him recording her getting dressed. The plaintiff alleged he had to walk to her room because he was too drunk to drive. He continued to drink after he arrived. The two had consensual sex, and then each filed Title IX complaints against the other for the events that followed.

Roe alleged that they argued and the plaintiff put his hand around her neck and squeezed. She also alleged he engaged in sexual activity without her consent.

Modifying Washington State Spousal Maintenance

November 23, 2020 | by Blair & Kim, PLLC

Before awarding Washington spousal maintenance, a court must consider certain factors. Those factors include the financial resources of the spouse requesting maintenance; the time it would take that spouse to get the necessary education or training to find appropriate employment; that spouse’s age, physical and emotion conditions, and financial obligations; the established standard of living; the length of the marriage; and the ability of the other spouse to meet their own financial needs and obligations and those of the requesting spouse. RCW 26.09.090(1).

A wife recently challenged a modification of her spousal maintenance after the husband lost his job. The parties were married for nearly 31 years before they divorced in 2017. The husband had reached the level of senior vice president in his career and was earning a gross income of about $20,600 per month plus a discretionary annual bonus of up to half his salary. Their children were adults at the time of the divorce.

The parties agreed to an equal asset division. The wife received the home and some cash and retirement assets, and the husband kept most of the liquid assets. They agreed the husband would pay $6,000 per month in spousal maintenance for five years until he turned 60. He would then pay the wife $3,000 per month until he turned 67. The agreement was intended to give the parties equal financial circumstances until they both could access retirement funds without penalties.

Washington Court Finds Property Cannot Remain Separate after Being Conveyed to the Community

November 12, 2020 | by Blair & Kim, PLLC

The court must characterize property as community or separate when distributing property in a Washington divorce. Character is generally determined when the property is acquired. When a spouse acquires property before the marriage, that property is presumed to be separate property unless there is sufficient evidence of an intent to change it to community property. A wife recently challenged a court’s determination that property remained separate after a conveyance to the marital community.

Before the parties married, the husband moved into the home the wife owned with her previous partner.

The husband owned property on Aldergrove with two rental units. He also owned a property on Yew Street. After the marriage, the parties rented the Aldergrove units and the Yew Street property and deposited the proceeds into a marital community joint bank account.

Felony Violation of a Protection Order in Washington

November 4, 2020 | by Blair & Kim, PLLC

A person who repeatedly violates a Washington protection order may be charged with a felony. Violation of certain protection orders is a class C felony when the defendant has at least two previous convictions for violating a protection order. RCW 26.50.110(5). The defendant in a recent case appealed a felony violation of a no-contact order conviction arguing that the alleged action that constituted the violation was not itself a crime.

The defendant and his wife separated after 10 years of marriage. When they separated, they lived in a trailer on the wife’s parents’ property, and she remained there after the separation. A domestic violence no-contact order was issued against the defendant prohibiting him from keeping his wife under surveillance. The defendant was convicted of violating the no-contact order twice before the events that led to this case.

The defendant asked a deputy to perform a welfare check on the animals at his wife’s trailer. After learning a friend was caring for the animals, the deputy asked why the defendant was concerned about the animals. He told her a code enforcement officer told him he issued a letter prohibiting the wife from living in the trailer.

Supreme Court May Determine if Title IX Records Must Be Disclosed under State Public Records Act

October 30, 2020 | by Blair & Kim, PLLC

The Family Educational Rights and Privacy Act (“FERPA”) protects the privacy of “education records.” FERPA does, however, allow a college or university to disclose to the alleged victim the final results of a disciplinary proceeding related to a crime of violence or a nonforcible sex offense. FERPA further states that it does not prohibit the disclosure of the final results of such a disciplinary proceeding if the institution finds the student violated its rules or policies with respect to the crime or offense, but the disclosure may generally only include only the student’s name and violation. 20 U.S.C. § 1232g(b)(6). These provisions of FERPA generally apply to any postsecondary educational institution that receives federal funds, but when the institution is public, it must also comply with state public records laws.

In a recent case, news organizations sued certain officials of a North Carolina University (the “University”) for alleged violations of North Carolina’s Public Records Act. The plaintiffs requested copies of records related to “a person having been found responsible for rape, sexual assault or any related or lesser included sexual misconduct. . .” The University denied the request on the grounds the records were protected by FERPA.

The plaintiffs changed the request to include only the names of students found responsible, the nature and date of the violations, and the imposed sanctions. The University again denied the request.

Washington Court Cannot Grant Sole Decision-Making Authority to Parent with History of Domestic Violence

October 23, 2020 | by Blair & Kim, PLLC

Domestic violence can affect all aspects of family life, including child custody. Pursuant to RCW 26.09.191(1)(c), a final parenting plan cannot require the parents to engage in mutual decision-making where the court finds a parent engaged in a history of domestic violence. A mother recently appealed a court order granting the father sole decision-making after the court found he had a history of domestic violence.

A few days after the father filed for divorce, the mother called 911 and reported a domestic assault. The father told police she had attacked him. The mother was arrested and a criminal no-contact order was issued to prevent her from contacting the father or going to the family home. The father also obtained a temporary restraining order preventing her from contacting him or their children.

Each party petitioned for a domestic violence protection order (DVPO) as part of the divorce proceeding. The court reissued the father’s temporary restraining order, but removed the children from it. It also reissued the mother’s temporary DVPO. The court granted the mother weekend residential time with the children and appointed a guardian ad litem.

Washington Appeals Court Reverses Conviction For Lack of Unanimous Jury Verdict

October 14, 2020 | by Blair & Kim, PLLC

For a Washington criminal defendant to be convicted, both the U.S. and Washington constitutions require a unanimous jury to find the charged criminal act has been committed. A unanimous jury can be an issue where the state charges only a single count but presents evidence of multiple criminal acts. If the state does not choose a single act, then the jurors should be instructed that they must unanimously find the same criminal act was proved beyond a reasonable doubt in order to convict. A defendant recently challenged his conviction on the grounds he was denied his right to a unanimous jury verdict after the trial court failed to provide a unanimity instruction.

The state charged the defendant with one count of felony harassment of “[alleged male victim] and/or [alleged female victim].” The appeals court noted that harassing each of the alleged victims would be two distinct crimes that could have been charged as separate counts. The jury was not given a unanimous verdict instruction.

To prove felony harassment under RCW 9A.46.020(2)(b)(ii), the state had to prove the defendant threatened the alleged victim by “threatening to kill the person threatened or any other person,” and that the threatened person reasonably feared the threat would be carried out. The Washington Supreme Court has held that the “person threatened” is the person who is the target of the coercion or intimidation. A person may be threatened by a threat against another person. To prove felony harassment, the state must show that the threatened person had a reasonable fear the threat would be carried out.

Eighth Circuit Reverses Dismissal of Accused Student’s Title IX Claim

September 30, 2020 | by Blair & Kim, PLLC

Colleges and universities have experienced pressure from multiple sources to address sexual assault issues. Unfortunately, in some cases, they have responded in ways that deny a fair process to the accused student. A recent case shows that a university’s actions in response to such pressure may support a Title IX claim by an accused male student. If you face Title IX charges, the Seattle defense attorneys at our firm can help you fight for your rights.

A male student challenged the dismissal of his Title IX suit arising from the university’s handling of a sexual assault complaint against him. Because the appeal was from a motion to dismiss, the facts considered by the Eighth Circuit were those alleged in the plaintiff’s complaint.

A female student, referred to as “Jane Roe,” accused the plaintiff of sexual assault during his senior year. Following a Title IX investigation, the university’s Title IX Coordinator concluded the evidence did not show the plaintiff had violated university policy. He found sexual contact had occurred, but there was insufficient evidence to show Roe was incapacitated due to intoxication.

Store May Be Liable for Parking Lot Accident in Washington

September 21, 2020 | by Blair & Kim, PLLC

When a person is seriously injured in a Washington car accident, it is important to identify all potential avenues of recovery to help fully compensate the victim for their loss. When an accident occurs in a parking lot or other private property, the property owner or business proprietor may have some liability for the accident, depending upon the facts of the case.

In a recent case, a person injured in a parking lot sued the owner of the store she was intending to enter. The woman was seriously injured when a vehicle hit her while she was using a crosswalk to go to the entrance of a store. The vehicle that hit her had to reverse into the crosswalk from the diagonal parking spot where it was parked to go north out of the parking lot. The woman and her husband sued the driver and the owner of the shopping center. They later added additional defendants, including the owner of the store.

The trial court found the store owner did not owe a duty of care to the plaintiffs and granted summary judgment to the store owner. The plaintiffs appealed and argued the store owed a duty of reasonable care because it was in control of the parking lot. The store owner argued the property owner kept sole control over the common areas under the lease. The appeals court found the property owner was the possessor of the common areas and had responsibility for maintaining them under the lease. The appeals court rejected the plaintiffs’ argument the store owner was liable as a possessor of the common area.

No Washington State Constitution Protection Against Use of Recorded Jail Calls in Criminal Case

September 14, 2020 | by Blair & Kim, PLLC

Article I, section 7, of the Washington State Constitution protects individuals from warrantless searches into their private affairs. Courts must consider what type of information may be discovered through the government’s action and how the interest being asserted has been treated in the past. A defendant in a Washington criminal case recently challenged his conviction on the grounds the state had violated his right to be free from intrusion into his private affairs.

The defendant was arrested for violating a domestic violence no contact order prohibiting him from contacting his wife. The order had been modified to allow the parties to communicate by phone, text, and email, but the detective told him the court would probably issue a new no contact order that would not allow phone contact. The trial court did so the next day.

There is a sign by the jail phone informing inmates calls “are recorded and subject to monitoring.” There is also an automated message that warns the caller and recipient that the “call is subject to recording and monitoring.” The detective searched for the defendant’s calls and found he had called his wife from the jail phone on four different days. The state charged him with four counts of felony domestic violence court order violation.