Seattle Attorneys Blog

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In a recent unpublished case, the Sixth Circuit held that an accused student had waived his due process rights.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.

Washington Appeals Court Finds Man Was Arrested When Handcuffed and Read Miranda Rights

June 12, 2020 | by Blair & Kim, PLLC

Under both the Washington and U.S. Constitutions, warrantless seizures are generally prohibited. Police may, however, briefly stop and question a person if the officer has a well-founded suspicion the person was connected to actual or potential criminal activity. The suspicion must be based on objective facts. This type of stop is called an investigative stop or a Terry stop. In a recent case, a man challenged a conviction, arguing he had been placed under custodial arrest without probable cause and not held for a Terry stop.

A store employee called 911 when she saw a man in the store she thought had previously stolen video equipment. She described the man and said she had not seen him steal anything that day, but there was video of him stealing previously. She told the 911 operator the direction he was riding his bike after he left the store.

A police officer found the defendant, who matched most of the description and was riding his bike in the direction the employee stated. The officer told the defendant about the 911 call. The defendant denied being involved in a theft. The officer told him he could not leave and handcuffed him. The officer also gave him his Miranda warning.

Thirteen-Year-Old Juveniles May Waive Miranda Rights in Washington

June 5, 2020 | by Blair & Kim, PLLC

The Fifth Amendment to the US Constitution protects individuals from being forced to incriminate themselves. Before interrogating a person in custody, the police have to tell them of their right to remain silent and that what they say could be used against them. The police must also advise them of the right to speak with an attorney before being question and to have the attorney present. The police must inform them of their right to counsel, which may be appointed if they cannot afford one. Finally, the police have to advise them of their right to stop the questioning. Under Washington law, a juvenile has the same rights against self-incrimination as adults. The rights of a juvenile under 12 years old may only be waived by a parent, guardian, or custodian, but a juvenile at least 12 years old may waive their own rights. RCW 13.40.140.

In a recent case, a juvenile defendant appealed her conviction arguing her Miranda waiver should not be considered valid. According to the appeals court’s opinion, when the defendant was 11 or 12 years old, she took videos of her friend, who was the same age, showering and getting dressed. After the defendant turned 13, the friend learned the videos were posted on the defendant’s Snapchat account. The friend asked her to delete them. The defendant denied posting them and said she did not have a phone anymore and that her Snapchat account was hacked.

The friend’s stepfather contacted the defendant’s mother, but the mother also stated the defendant did not have a device to post them. A third girl testified she saw the videos when the defendant posted them to a group chat including her and the friend that evening.

Washington Appeals Court Affirms Spousal Maintenance Modification

May 28, 2020 | by Blair & Kim, PLLC

Under Washington family law, spousal maintenance may generally only be modified upon a “substantial change in circumstances.” RCW 26.09.170. In considering whether a substantial change has occurred, the court should consider the spouse’s ability to pay in relation to the other spouse’s financial need. A substantial change must not have been contemplated when the original order was issued. A former wife recently challenged modification of the spousal maintenance her former husband was ordered to pay following loss of his job and reemployment.

At the time of the divorce in September 2017, the court found the husband was earning more than $10,000 per month net. The wife had retired after working for the armed forces for 40 years, and was unable to work due to health issues. Her net income was more than $4,000 per month. The court ordered the husband to pay the wife $3000 per month in spousal maintenance and noted it intended to equalize their standards of living.

The husband lost his job in December. He moved to suspend his spousal maintenance in February. The commissioner granted his motion and ordered him to notify the wife when he obtained employment. The husband got a job as a chief engineer in April but failed to notify the wife until July.

Washington Stalking Civil Protection Orders

May 21, 2020 | by Blair & Kim, PLLC

A court may issue a Washington protection order based on stalking behavior. (RCW 7.92.100) Stalking includes repeated actual or attempted contact with the victim, tracking the victim, monitoring the victim’s actions or following the victim. The respondent’s conduct must serve no legal purpose and be conduct that the respondent knows or reasonably should know would intimidate, frighten, or threaten a reasonable person. (RCW 7.92.020) An ex-husband recently challenged a protection order issued against him, arguing his wife had not alleged behaviors that constituted stalking.

The ex-wife petitioned for an order of protection six months after the divorce, alleging her ex-husband was stalking her. She claimed he hired a private investigator to follow her. She also alleged he accessed her bank accounts and social media accounts through her old phone. The trial court issued a temporary restraining order.

The ex-wife testified at the hearing that her ex-husband had accessed her Ancestry account and read her private messages. She said he also accessed her social media accounts and read her private messages. She also thought he accessed the account where her employer reimbursed her expenses. She testified he had hired a private investigator who followed her for about four weeks. She said she felt afraid and threatened.

Title IX Final Rule

May 14, 2020 | by Blair & Kim, PLLC

After much anticipation, the Department of Education (the Department) has finally released its final rule addressing how schools receiving federal financial assistance must respond to sexual harassment allegations. The Department has expressed an intention to provide a fair process to both complainants and respondents. These regulations put in place requirements that will help ensure the protection of the due process rights of students who are accused of misconduct.

The new regulations define sexual harassment to include sexual assault, dating violence, domestic violence, and stalking. The regulations apply the Davis definition to unwelcome conduct sexual harassment. The conduct must be severe, pervasive, and objectively offensive.

The regulations set forth procedural requirements around the grievance and investigation process. Title IX personnel may not have conflicts of interests or bias against either party generally or personally. They must also be trained on the investigation and grievance process, including how to serve impartially and avoid bias. The respondent is entitled to a presumption he or she is not responsible for the alleged conduct until a determination has been made. Upon receiving a formal complaint, the school must provide all known parties with written notice of its grievance process and the notice of allegations with enough detail to allow them for the initial interview. The notice must inform the parties of their right to have an advisor of their choice. The school must provide notice of any additional allegations it decides to investigate.