Seattle Attorneys Blog

Federal Court Denies Injunction Against Title IX Final Rule

September 8, 2020 | by Blair & Kim, PLLC

A federal court has denied a preliminary injunction to stop or delay the implementation of the new Title IX regulations. The court found the plaintiffs had not established that they are likely to succeed on their claims or to suffer substantial irreparable harm.

The plaintiffs argued the K-12 grievance process exceeded the Department’s authority and is arbitrary and capricious. The court noted that the Final Rule’s requirements may not be the best way to handle Title IX in K-12 schools, but did not find that the plaintiffs would be likely to show it was arbitrary and capricious. The Final Rule includes different requirements for K-12 than for post-secondary schools. The court could not substitute its own judgment for the Department’s when the Department had considered the data and there was “a rational connection between the facts found and the choice made.”

The plaintiffs also argued the Department exceeded its authority by penalizing schools for investigating or punishing conduct that did not fit within the Final Rule’s definition of sexual harassment as Title IX violations. The court found they had “not squarely presented this argument.” The court also noted that the challenged portions of the Final Rule seemed to be rooted in the authority the Department was granted by Title IX. Finally, the Department indicated that it did not intend to withhold funding from a school for mischaracterizing a disciplinary proceeding as a Title IX proceeding, but would instead seek to clarify the nature of the proceeding for the parties. The plaintiffs therefore had not shown that they were likely to succeed on their claim the Department exceeded its authority by penalizing schools that took a broader view of sexual harassment generally, or even in the specific case of the mandatory dismissal of complaints alleging harassment that did not meet the Title IX definition.

Washington Appeals Court Vacates Conviction Based on Search of Sleeping Man

September 8, 2020 | by Blair & Kim, PLLC

Washington drug cases often turn on the legality of the search that found the evidence. Both the federal and Washington state constitutions provide protection from unreasonable searches and seizures. Generally, searches must be conducted under a lawful warrant, unless an exception applies. A man recently successfully challenged his conviction on the grounds the trial court erred in applying the Terry and community care taking exceptions to the search that found the evidence used against him.

A Starbucks employee called 911 for assistance removing a sleeping person from the store. According to the court’s opinion, the officer tried to wake the defendant, but he was unresponsive. The officer started to suspect the defendant was under the influence of drugs. He noticed a metal utensil partially sticking out of the defendant’s pocket. He was concerned it was a knife, needle, or other sharp object. He took it out of the defendant’s pocket and found it was a cook spoon with a dark brown residue and burn marks. The officer determined he had probable cause for an arrest and kept searching, finding drugs and other drug paraphernalia.

The officer then performed a “hard sternum rub” to wake the defendant. He told the defendant he was under arrest, handcuffed him, and took him to an aid car.

Washington Court Denies Grandparent Visitation

August 20, 2020 | by Blair & Kim, PLLC

Parents have a liberty interest in their fundamental right to autonomy in raising their children. Courts must therefore give weight to a parent’s decision to deny visitation to the child’s grandparents. A court can only order Washington grandparent visitation over the objection of a fit parent if the grandparent shows that denying visitation would be harmful to the child. A grandmother and stepgrandfather recently challenged a court’s denial of their petition for visitation.

In July 2015, the mother moved with the children to Washington where her mother and stepfather lived from Las Vegas. The mother moved with the children to Oregon the following November. The father filed for divorce in June 2016. The mother brought the children back to Washington to stay with her mother and stepfather. She died of suicide that October.

The father did not immediately take the children. According to the appeals court’s opinion, he said he needed help taking care of things after the mother’s death. He also said the children were in school in Walla Walla, and he was focused on getting transferred to the Air Force Base in Spokane.

Washington Appeals Court Overturns Teen’s Harassment Case Based on Text Messages

August 13, 2020 | by Blair & Kim, PLLC

A charge of harassment can punish speech, raising First Amendment issues. When the state charges a person with harassment under Washington criminal law, it has to prove the defendant’s statements were not protected speech. One way to do this is to show that the words constituted a “true threat.” A true threat is not hyperbole or a joke, but a serious threat. Courts do not consider what the speaker intended. Instead, they look at whether a reasonable person would foresee the statement being interpreted as intent to physically harm someone. The court considers this question in the context of the actual intended audience. Courts may consider whether there was a specific plan to harm, the tone of the message, and whether it was repeated to multiple audiences.

In a recent case, a 17-year-old defendant successfully challenged her adjudication of guilt on a harassment charge. During an argument with her mother, the defendant texted her friends. In one text, she stated “Bet imma get her killed [. . .]” She texted another friend, “Imma [expletive] kill this [expletive].”

The mother subsequently looked in the phone and found the texts. She also found violent comments the defendant made about another person. The mother changed the locks on the house and slept with a knife. She showed screen shots of the messages to the police.

Individualized Inquiry Required before Shackling Defendant at Pre-Trial Proceedings in Washington

August 6, 2020 | by Blair & Kim, PLLC

Washington criminal case law has established that defendants are entitled to be free of shackles at trial, unless there are extraordinary circumstances. Restraints may affect a number of constitutional rights, including the presumption of innocence, the right to testify, and the right to consult with counsel. Trial courts do, however, have discretion in deciding on courtroom security measures, including restraints, as long as they base that discretion on facts in the record.

In a recent case, a defendant challenged his conviction after he was shackled in pretrial appearances and required to wear a leg brace at his jury trial. At his first court appearance, the defendant was shackled in handcuffs and a belly chain. His attorney moved for removal of the shackles, arguing they violated the defendant’s due process rights under the Fifth Amendment and the Washington State Constitution.

The trial court held a consolidated hearing on all motions related to restraint and removal before it. The court granted the motions “to the extent the court agrees there are less restrictive means of furthering the compelling government interest of courtroom security.” The court proposed videoconferencing as an alternative, but acknowledged it would not be implemented for over a year. The court indicated its adoption of the sheriff’s policies would remain in effect until videoconferencing was implemented. The policy required leg braces at trials.

Sixth Circuit Holds Student Can Waive Cross-Examination in Title IX Hearing

July 28, 2020 | by Blair & Kim, PLLC

The new Title IX regulations will afford students accused of sexual harassment or sexual misconduct some due process protections. Those regulations are being challenged, and even when they take effect, schools may not fully follow them. Students in Washington State who are not aware of their rights may waive them or even be pressured into waiving them.

In a recent unpublished case, the Sixth Circuit held that an accused student had waived his due process rights. Following an investigation for alleged sexual misconduct, the school’s policy allowed for two options for resolution, an administrative hearing or a board hearing. The administrative hearing was a more informal process in which an adjudicator met with each party separately. The adjudicator would then determine culpability and any punishment based on those meetings and the investigatory materials. The administrative hearing process did not provide for the parties to present evidence or cross-examine witnesses. The more formal board hearing involved an actual hearing before a three member panel, where witnesses could testify and a type of cross-examination. Both parties would be allowed to question witnesses and submit questions that they wanted to ask each other to the panel. The panel would then determine culpability and punishment, if appropriate.

In this case, both parties indicated in their signed statements that they preferred an administrative hearing. The University therefore moved forward with an administrative hearing. The hearing officer found the plaintiff was “responsible for non-consensual sexual intercourse under the university sexual misconduct policy” and ordered a two year suspension. The hearing officer also barred the plaintiff from campus during his suspension and from living in University housing after the suspension.

Washington Court Does Not Allow Mother to Relocate with the Child

July 21, 2020 | by Blair & Kim, PLLC

When parents separate, there often comes a time when one of them wants to move. Relocation can cause issues with co-parenting. Under Washington family law, when a custodial parent wants to move with the child, there is a rebuttable presumption the move will be allowed. The other parent may rebut the presumption by showing the benefit of the move is outweighed by its detrimental effect, based on several factors. Those factors include: the child’s relationship with each parent and other significant people in their life; any agreement between the parties; which relationship it would be more detrimental to disrupt; whether there are restrictions under RCW 26.09.191; the reasons for each parent’s position and whether they are requesting or opposing the relocation in good faith; how the relocation would affect the child’s development; the resources and opportunities available in the current and proposed locations; ways to continue the child’s relationship and access to the other parent; alternatives to relocation; and the financial impact and logistics of relocating or not relocating.

In a recent case, a mother challenged the parenting plan entered by the court. The couple had lived together with the father’s mother and the mother and child continued to live there after they separated. The mother subsequently petitioned for a parenting plan and asked to move from Spokane to Medical Lake, where her boyfriend lived.

The trial court considered the factors in RCW 26.09.187. Under Washington family law, a court must consider certain factors when determining the parenting plan. These factors include the child’s relationship with each parent, past and potential future parenting performance, the child’s needs and emotional development, the child’s relationship with others, his environment, and his activities, the wishes of the parents and of the child if he is mature enough to express a reason and an independent preference, and the parents’ employment schedules. RCW 26.09.187.

Washington Appeals Court Reverses Organized Retail Theft Conviction

July 14, 2020 | by Blair & Kim, PLLC

In a Washington criminal case, the state must prove all of the elements of the crime. In a recent case, a defendant challenged her conviction for second degree organized retail theft, arguing that the state had not shown that she obtained goods from a “mercantile establishment” when the alleged crime involved online catalogs.

Second degree organized retail theft occurs when the defendant steals property worth a total of at least $750 from one or more “mercantile establishments.” RCW 91.56.350.

According to the appeals court’s opinion, the defendant used her neighbors’ names and accounts to place three orders from online catalogs. One of the other residents reported the incident to the complex office and the police. The defendant was charged with second degree organized retail theft, two counts of second degree possession of stolen property, and three counts of first degree identity theft.

Washington Appeals Court Affirms Violation of No-Contact Order Conviction Supported by Video Surveillance

July 7, 2020 | by Blair & Kim, PLLC

Article I, section 7 of the Washington State Constitution provides individuals a privacy right that is greater than the protection provided by the Fourth Amendment to the U.S. Constitution. A search occurs under article I, section 7, when the government disturbs a citizen’s privacy interests that the citizen should be entitled to have safe from government interference without a warrant. Courts consider the nature and extent of the information the government may obtain through its conduct. An officer observing something through his or her own senses is not a search under this section, if the officer is in a location he or she is lawfully allowed to be. Officers may use tools that enhance their natural senses, such as binoculars or flashlights, but equipment that does more than enhance the senses may require a warrant. Law enforcement needs a warrant to use infrared thermal devices to observe heat patterns in a home or to track a private vehicle with a GPS device.

In a recent case, a defendant challenged his conviction of two counts of felony violation of a domestic violence no-contact order that involved video surveillance evidence. He had previously pleaded guilty to misdemeanor counts of violation of a domestic violence no-contact order under a previous order. According to the appeals court’s opinion, a detective initiated an investigation after an investigator with the Prosecuting Attorney’s Office encountered the defendant in the parking lot of his wife’s apartment building. The detective had surveillance cameras installed on a telephone pole. In the videos, she saw someone she believed to be the defendant walking toward the defendant’s wife’s apartment. The police then obtained a search warrant. When they executed the warrant, they found the defendant standing outside an open window. They also found his mail and clothes in the bedroom. He was arrested and charged with residential burglary and two counts of felony violation of a domestic violence order.

The defendant sought to suppress the video surveillance evidence, arguing the police violated his rights under both article I, section 7, and the Fourth Amendment. He also argued the police were not allowed to install the surveillance cameras on telephone poles. The trial court found the cameras were directed to public areas and the parking lot, not the defendant’s wife’s apartment. The court also found the defendant did not have standing to raise the telephone pole issue. The trial court denied the defendant’s motion to suppress the video evidence.

Property Distribution in Washington Committed Intimate Relationship Case Must Be Just and Equitable

June 24, 2020 | by Blair & Kim, PLLC

Washington family law recognizes the Committed Intimate Relationship (CIR) doctrine, which was judicially created to resolve the property distribution issues of unmarried couples who had acquired property that would have been community property if they had been married. If a court determines there was a CIR, the court must make a just and equitable distribution of the community-like property acquired during the CIR.

A party must file a petition to distribute property acquired during a CIR within three years of the date the CIR ends. In a recent case, a mother challenged the property distribution, arguing it was unjust and inequitable and that the father had filed the petition after the statute of limitations had passed.

According to the appeals court’s opinion, the couple started dating in 2004 and moved in together in 2005. In 2011, a house was purchased in the mother’s name with only her name on the mortgage. In 2012, the couple’s son was born. In 2016, the mother went to Mexico with the son. According to the mother, the locks on the house were changed when she got back.