Seattle Attorneys Blog

Representatives Initiate Investigation of Title IX Rulemaking

November 29, 2023 | by Blair & Kim, PLLC

Representative Lisa McClain, Chairwoman of the Subcommittee on Health Care and Financial Services, and Representative Virginia Foxx, Chairwoman of the Committee on Education and the Workforce, recently initiated an investigation into the Department of Education’s proposed Title IX regulations. Their November 16, 2023, letter to Department of Education Secretary Miguel Cardona expressed concerns about changes to due process protections as well as inclusion of gender identity discrimination within the definition of “sex discrimination.” They are investigating whether outside groups had improper influence over drafting the proposed rules.

The letter stated that the proposed changes would “eviscerate the safeguards that ensured due process for all students.” The letter points to the proposed reinstatement of the “single-investigator model” as an example and states that federal and state courts had ruled against universities more than half the time in lawsuits filed under the 2011 policy when this model was previously in effect.

The letter also alleges that the proposed inclusion of “discrimination on the basis of gender identity” in the definition of “sex discrimination” would “harm women and girls across the country.”

Washington Court Failed to Properly Consider MHSA in Sentencing Felony No-Contact Order Violation

November 28, 2023 | by Blair & Kim, PLLC

In some circumstances, a Washington criminal defendant may be eligible for a sentencing alternative, including a parenting sentence alternative, a drug offender sentencing alternative (“DOSA”), or a mental health sentencing alternative (“MHSA”). The defendant must meet certain conditions to qualify for these alternatives. A defendant is only eligible for an MHSA if: their conviction is for a felony but is not a sex offense or a serious violent offense, they have a diagnosis for a serious mental illness recognized by the current mental health diagnostic manual, the judge determines the defendant and community would benefit from treatment and supervision, and the defendant is willing to participate. RCW 9.94A.695(1). If the court determines that an MHSA is appropriate, it imposes a term of community custody within a range determined based on the length of the standard range sentence, but the court has discretion in determining the actual length of the community custody within the ranges. RCW 9.94A.695(4).

A defendant recently challenged his sentence for felony violation of a no-contact order, arguing the court did not follow the proper procedure set forth in the statute when it denied his request for an MHSA.

According to the unpublished opinion of the appeals court, the defendant was arrested outside his ex-wife’s apartment in April, 2021. Two active no-contact orders prohibited him from contacting her or being within 1,000 feet of her apartment. He had served a sentence for a prior violation and recently been released. He was also under the conditions of a DOSA.

Mother Did Not Violate Washington Custody Order by Claiming Child on Her Taxes

November 25, 2023 | by Blair & Kim, PLLC

Who gets to claim the children as dependents on their tax returns can be a contentious issue in a Washington custody case. A father recently sought a contempt order against the mother when she claimed one of the children as a dependent.

According to the appeals court’s unpublished opinion, the parties entered into an agreed child support order when they divorced in 2009. The trial court’s final child support order provided that the mother would have the right to claim the child identified as T.A.R. as a dependent on her taxes and the father had the right to claim the child identified as M.A.R. The order further provided that “WHEN THERE IS ONLY ONE CHILD ELIGIBLE FOR TAX DEDUCTION PURPOSES,” the mother would have the right to claim the children for even years and the other parent would have the right to claim them “for the opposite years.”

After learning the mother claimed T.A.R. in the 2021 tax year, the father moved for an order to show cause why the mother should not be held in contempt, arguing she violated the order when she claimed T.A.R. in 2021 after M.A.R. had turned eighteen. He argued the alternating clause applied after M.A.R. turned eighteen because T.A.R. was then the only “child.” He acknowledged he could have claimed M.A.R., but argued he only would have received $500 by doing so, while he would have a $6,000 tax exemption if he claimed T.A.R.

Washington Appeals Court Determines Fenced Pasture Not Protected by Ferrier Rule

November 14, 2023 | by Blair & Kim, PLLC

Article I, section 7 of the Washington Constitution protects a person from having their “home invaded, without authority of law,” which generally requires a valid warrant. There is, however, an exception to the warrant requirement when officers obtain a valid consent to search. The consent except applies only when the consent is voluntary, the person has the authority to consent, and the search is within the scope of the consent.

Pursuant to State v. Ferrier, before entering a home when conducting a “knock and talk,” an officer must inform the person they have the right to refuse consent, revoke consent, and limit the scope of their consent to certain locations in the home. An important aspect of the court’s analysis in Ferrier was the constitutional protection of a person’s home. The court also expressed concerns about officers using the knock and talk to avoid getting a search warrant. The Ferrier court concluded officers violate article I, section 7 if they fail to inform a resident of the right to refuse consent to a warrantless search of the home.

The state recently appealed an order suppressing evidence officers obtained in multiple warrantless searches of a fenced pasture after the trial court suppressed the evidence based on the Ferrier rule.

Federal Court Requires University to Turn Over Records of Past Investigations in Title IX Case

October 31, 2023 | by Blair & Kim, PLLC

The Family Educational Rights and Privacy Act (“FERPA”) is a federal law that protects education records. FERPA generally prohibits a school or university from disclosing a student’s personally identifiable information in their education record without prior consent. Recently, a university refused to disclose records related to its prior sexual misconduct investigations, arguing that doing so would violate the involved students’ right to privacy under FERPA. A federal district court has granted the plaintiff’s motion to compel, subject to a stipulated agreement by the parties addressing notice to third parties.

The plaintiff filed a Title IX suit against his private university in Rhode Island, alleging he had been improperly disciplined based on his gender after being falsely accused of sexual assault. The plaintiff requested “comparator discovery” of other sexual misconduct cases during discovery. The university objected based on FERPA. The university provided the plaintiff with a summary chart of comparators that included gender, charges, sanctions, and appeal outcomes. The plaintiff requested the investigation report and adjudication and appeal decisions of four of the matters included in the chart and any other “related” matters. He requested that the names be redacted, but that the genders be included

The university determined six of thirty total cases were responsive, but it again objected. The university argued that there was a significant risk the parties could be identified even with redaction. It pointed out there would be details regarding those individuals and their “private, sexual encounters” in the reports and decisions. The university stated FERPA required it to make a reasonable effort to notify the student parties and potentially witnesses before disclosure.

Washington Appeals Court Upholds Juvenile’s Arson Convictions

October 31, 2023 | by Blair & Kim, PLLC

Washington law provides special protections to children in criminal investigations. Pursuant to RCW 13.40.740, which became effective January 1, 2022, a juvenile being questioned in a custodial interrogation, detained based on probable cause of involvement in criminal activity, or asked to consent to an evidentiary search can only knowingly, intelligently, and voluntarily waive their Miranda rights after consulting with an attorney. This consultation cannot be waived. A Washington juvenile defendant recently challenged his convictions, arguing in part the consultation requirement should apply even though he was interviewed before the statute’s effective date.

The Fires

According to the unpublished appeals court opinion, the thirteen-year-old juvenile told his father there was a fire at the dumpster of their apartment complex when he returned from taking out the trash on May 7.

He was home alone on the morning of May 16 and two more fires occurred. He was home alone again that afternoon and three more fires were set. No one saw how the fires started or who started them.

Due Process in a Washington De Facto Parentage Proceeding

October 20, 2023 | by Blair & Kim, PLLC

In some circumstances, Washington family law may recognize a person as a de facto parent, or a person who is not a child’s biological or adoptive parent, but who has the rights and responsibilities of a legal parent. A person seeking to be declared a de facto parent must prove the elements set forth in RCW 26.26A.440(4) by a preponderance of the evidence. They must show that they lived with the child for a significant period, consistently took care of the child, engaged in “full and permanent” parenting responsibilities without expectation of compensation, held the child out as their own, and established a parental relationship with the child that was “fostered or supported” by another parent of the child. Additionally, they must show that continuing the relationship is in the child’s best interest.

A mother recently appealed a court order awarding her former romantic partner the rights of a legal parent to her child. According to the appeals court, the mother’s relationship with the petitioner began while she was pregnant with the child and continued until the child was about nine years old. The petitioner was not the child’s biological father, but petitioned for de facto parentage after his relationship with the mother ended. The mother wanted to move out of state to be closer to her family, but remained in Clark County to respond to the petition.

Proceeding

The petitioner alleged he provided the child “emotional and material support.” He filed documents, including evidence the school listed him as the child’s guardian and emails with the child’s teacher, principal, and school counselor. He also submitted transcripts of videos in which he and the mother stated he would be the child’s father and the child called him “daddy.”

Washington Appeals Court Reverses Restitution Order

October 8, 2023 | by Blair & Kim, PLLC

RCW 9.94A.753(5) requires a court to order restitution when a defendant is convicted of a Washington criminal offense that results in injury or damage to or loss of property, unless there are “extraordinary circumstances.” The state must prove the damages by a preponderance of the evidence. Restitution cannot include intangible losses like mental anguish or pain and suffering. The restitution cannot be more than double the amount of the defendant’s gain or the victim’s loss. RCW 9.94A.753(3)(a). A defendant recently challenged a restitution order, arguing the state had not sufficiently proven he had caused the damages.

According to the unpublished opinion of the appeals court, the pleaded guilty to a single count of vehicle prowl and three counts of possession of a stolen vehicle. He agreed to pay restitution for in an amount to be determined for two of the charged crimes and three uncharged crimes, including possession of a pick-up truck.

In addition to damages to the truck for which the defendant was charged, the state requested $12,605.84 for damage to the uncharged truck. The state argued the defendant was responsible for all of the damage to the uncharged truck because he was “the person that caused the victim to lose possession of the vehicle. . .” and asked the trial court to find that the defendant was responsible for all of the damages associated with the vehicle.

Washington DVPO and the Relocation Presumption

September 30, 2023 | by Blair & Kim, PLLC

Washington family law recognizes a rebuttable presumption that relocation of a child under a parenting plan will be permitted. That presumption does not apply, however, if the parents have “substantially equal residential time.” “Substantially equal time” generally means the child spends at least 45% of their residential time with each parent pursuant to a court order. RCW 26.09.525. A father recently challenged a relocation, partly because the trial court applied the presumption by considering how the residential time changed under a Domestic Violence Protection Order (“DVPO”).

According to the appeals court’s opinion, the mother sought a DVPO against the father after seeing severe bruising on their two-year-old daughter.

The mother filed a notice of intent to move the children. She asked that the father be evaluated for substance abuse and anger management or domestic violence and comply with the treatment recommendations. She also requested the court suspend his residential time for non-compliance.

Eighth Circuit Affirms Dismissal of Expelled High School Student’s Title IX Case

September 26, 2023 | by Blair & Kim, PLLC

Much of the Title IX litigation brought by students accused of sexual misconduct occurs at the post-secondary level, but a male student recently sued his former high school after being expelled.

The plaintiff was a student at an all-boys private high school in Nebraska. According to the Eighth Circuit’s opinion, school staff overhead the plaintiff in a conversation with his friend. The plaintiff claimed he told his friend “that he would not have sex” with a particular teacher, but the staff believed he said he would have sex with the teacher.

The school initiated an investigation. The plaintiff alleged the Dean of Students said he considered the plaintiff “guilty” and “repeatedly demanded” the plaintiff admit he said he would have sex with the teacher. The plaintiff claimed he ultimately gave “a false confession” in response to the “pressure” and was expelled.