Seattle Attorneys Blog

Department of Education Delays Final Title IX Rule

May 31, 2023 | by Blair & Kim, PLLC

In July 2022, the Department of Education (“Department”) proposed Title IX regulations that would undo a number of changes made during the Trump Administration. The final rule was expected to be released this month. The Department recently provided an update, however, stating that the new anticipated date for the final Title IX rule is October 2023.

According to the Department, more than 240,000 public comments were submitted in response to the proposed regulations. This is more than twice the number of comments the controversial 2018 proposed regulations received. Under the proposed rule, sex-based discrimination and harassment would include gender identity, sexual orientation, sex characteristics, sex stereotypes, and pregnancy or related conditions. Much of the attention around the proposed rule has been focused on the protections based on gender identity and sexual orientation, but there are other significant changes.

Victim advocates and education organizations have raised concerns over the mandatory reporting requirements, which require certain employees to report conduct that may constitute sex discrimination to the Title IX Coordinator. The American Association of University Professors commented that such requirements negatively affect teaching and advising relationships. Other commenters noted that the mandatory reporting requirements as written could be confusing to students and would likely discourage victims from seeking help and support.

Washington Appeals Court Affirms Admission of 911 Call as Excited Utterance

May 28, 2023 | by Blair & Kim, PLLC

Generally, hearsay is not admissible in a Washington criminal case, unless it meets an exception. Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” ER 801(c). Generally, hearsay is not admissible unless it meets a specific exception. One exception is an “excited utterance.” Statements made while the speaker is still under the stress of the exciting event are considered more likely to be true because they are thought to be spontaneous. The exception only applies if there has been “a startling event or condition,” the statement was made while the speaker was under the stress of the excitement from that event or condition, and the statement was related to the startling event or condition. ER 803(2). In determining if the excited utterance exception applies, the court may consider the speaker’s emotional state, the spontaneity of the statement, how long has passed, and if the speaker has had the opportunity to fabricate a story. A defendant recently challenged the admission of a 911 call when the alleged victim had not testified at trial.

According to the appeals court’s opinion, the defendant and his ex-girlfriend had recently broken up at the time of the incident. The defendant knocked on his ex-girlfriend’s door at about 10 and started crawling in her bedroom window when she did not answer. She woke up and told him not to come in. She then ran a neighbor’s apartment. The defendant followed and knocked on the neighbor’s door.

The neighbor called 911. The ex-girlfriend told the 911 operator the defendant jumped in her window while she was sleeping and was currently standing outside the door trying to open it. She said he wanted to hurt her.

Washington Appeals Court Upholds Deviation from Standard Child Support Calculation

May 23, 2023 | by Blair & Kim, PLLC

Washington child support is determined based on the Washington State Child Support Schedule. A trial court may deviate from the standard child support calculation when it would be inequitable not to do so. The trial court must specify its reasons for deviation or for denying a request for deviation in its findings of fact. RCW 26.19.075 sets forth a non-exclusive list of reasons for deviation. A husband recently challenged a child support deviation, arguing the trial court should instead have characterized that amount as spousal maintenance.

According to the appeals court’s opinion, the parties had three children together during their fourteen-year marriage. The trial court found the wife was voluntarily underemployed and imputed a monthly net income of $2,048 to her, but she actually earned about $800 from her part-time job. The husband had a net monthly income of $7,374.

The trial court determined the wife needed $3017.27 per month for her basic needs and expenses. The court determined she would receive that amount in combined spousal and child support. Pursuant to the child support guidelines, the husband’s adjusted child support would be $1,566. The trial court acknowledged that spousal maintenance would change the income of the parties for determining child support. To get to the intended total, the trial court adjusted the child support amount and ordered the husband to pay $2,017.27 in monthly child support and $1,000 in monthly spousal maintenance for a year. The court indicated child support would be recalculated based on the parties’ income without spousal support after the spousal support ended in a year.

Washington Appeals Court Affirms Juvenile’s Adjudication Despite Self-Defense Claim

May 14, 2023 | by Blair & Kim, PLLC

A Washington criminal defendant can raise a self-defense claim by offering some evidence that their actions occurred in circumstances of self-defense. Once the defendant meets this low burden, the burden shifts to the state to prove, beyond a reasonable doubt, the absence of self-defense.

According to the appeals court’s opinion, the juvenile’s mother came into the 15-year-old juvenile’s room and saw her hide a cell phone under the covers. The juvenile refused to give it to her mother, and they scuffled over it. The juvenile ultimately kicked her mother twice.

The state charged the juvenile with fourth degree assault with notice of a domestic violence allegation. The juvenile testified , saying, “. . . the only reason I kicked her was to . . . get her off of me,” and “. . . I kicked her because she was on my leg, and it hurt. And—because I knew at that point I knew I wasn’t going to get the phone back . . . .”

Washington Appeals Court Upholds Renewal of DVPO

April 30, 2023 | by Blair & Kim, PLLC

A Washington Domestic Violence Protection Order (“DVPO”) may order a respondent to participate in state-certified treatment, and failure to do so may be considered if the petitioner seeks renewal. A respondent recently challenged renewal of a DVPO, arguing the court should have considered his relocation and participation in an out-of-state treatment program.

According to the appeals court’s opinion, the petitioner and respondent were a married couple living in Montana when they separated in 2018. After moving to Washington, the wife sought a Domestic Violence Protection Order (“DVPO”). A court commissioner issued a DVPO for one year, requiring treatment and counseling in a domestic violence perpetrator program approved by Washington’s Department of Social and Health Services (“DSHS”).

The petitioner sought renewal of the order in 2020. The petition stated she still feared the respondent and future violent acts if the order was allowed to expire. She also stated she was afraid to visit her daughter, who lived in the same town as the respondent, without a DVPO. The respondent argued he was not a threat to the petitioner because he was still living in Montana. He offered evidence he had completed a Montana domestic violence treatment program.

Federal Court Denies University’s Motion to Dismiss Title IX Claim Arising from Off-Campus Conduct

April 30, 2023 | by Blair & Kim, PLLC

In a recent case, a female student of a Louisiana university sued multiple parties as a result of an off-campus rape by another student who had been accused of multiple prior sexual assaults and rapes. A Louisiana federal court denied the university defendants’ motion to dismiss, finding the university had substantial control over the context of the assault even though it occurred off-campus.

According to the court’s opinion, the plaintiff was raped in 2021 while a student at the university. She did not know the last name of her attacker at the time. A national newspaper reported on the accused student’s alleged sexual misconduct and the defendants’ failure to act. The plaintiff filed suit for Title IX violations and negligence against the Board of Supervisors of the university the accused student previously attended, the Board of Supervisors of the university she attended with the accused student, and the local city-parish government.

The accused student had previously been banned from another university’s campus in Baton Rouge (“First University”) after two female students of that university separately reported him for rape. He subsequently transferred repeatedly between the university attended by the plaintiff (the “University”) and another university (“Second University”) under the same Board of Supervisors.

Washington Appeals Court Upholds 54-Month Spousal Maintenance Award

April 25, 2023 | by Blair & Kim, PLLC

Washington spousal maintenance is intended to support a spouse until they are able to support themselves. The trial court’s primary consideration is the economic situations of the parties after the divorce. Courts must consider the factors set forth in RCW, but those factors are not exclusive. The factors include the financial resources of the spouse seeking maintenance, the time needed for the spouse to obtain sufficient education to find appropriate employment, the standard of living during the marriage, the length of the marriage, the age, physical condition, and financial obligations of the spouse seeking maintenance, the ability of the other spouse to meet their own needs and financial obligations in addition to those of the spouse seeking maintenance. The trial court does not have to make specific findings of fact for each of the factors. A maintenance award must be just, and a court abuses its discretion if it does not base maintenance on a fair consideration of the factors. A wife recently challenged an award of spousal maintenance, arguing the trial court abused its discretion.

According to the appeals court’s unpublished opinion, the parties each finished college with a bachelor’s degree in 1992 and got married in 1994. They moved several times and lived in multiple states before and after the marriage. They agreed the wife would stay home and care for the children, but she did teach fitness classes when she could get childcare.

The wife started experiencing health issues shortly after they moved to Arizona in 2000 or 2001, affecting her ability to work. They moved to Washington in 2006 or 2007. She eventually started teaching yoga and Pilates. She started a business offering yoga classes, massage, and certain merchandise in 2010. She cut back on teaching after having what she believed was a Transient Ischemic Attack, though she was not formally diagnosed. She closed the business center at the end of 2017 as the result of a rent increase. She was in three car accidents in the following two years, causing her constant back and hip pain, issues with balance, shoulder pain, and PTSD.

Washington Appeals Court Holds Occupant Can’t Consent to Search of Someone Else’s Bag

April 13, 2023 | by Blair & Kim, PLLC

Both the Fourth Amendment to the U.S. Constitution and the Washington Constitution make warrantless searches unlawful unless they meet an exception. Valid consent is an exception to the warrant requirement. When premises are shared, a person who has equal control over has the authority to consent to a search of the premises when the other person is absent. Law enforcement must, however, also obtain the consent of the other person with equal control if they are present. State v. Morse. This rule does not apply to someone who does not have common authority over the premises. A host’s consent is effective against a guest in common areas of the premises. A person with authority over the premises does not necessarily have the authority to consent to a search of everything inside the premises. A Washington criminal defendant recently challenged a search of a bag in a motel room after the room’s occupant gave consent to search.

A confidential informant informed the sheriff’s office the defendant and another man were at a motel for a drug deal. A detective detained the other man and the room’s occupant when they left the motel. The defendant was still in the room. The occupant said there were bags belonging to the defendant and the other man in the room. He gave the police written consent to search the room.

The detectives removed the defendant from the room and brought the occupant back in. The occupant acknowledged owning a bag on the bed containing drugs and paraphernalia.

Federal Due Process and Ripeness in Title IX Claim against Private College

March 30, 2023 | by Blair & Kim, PLLC

Lawsuits arising from a Title IX complaint or investigation can involve a number of complex issues. In a recent case, the Sixth Circuit considered both whether a private college’s Title IX procedures were subject to a § 1983 federal due process claim and when a Title IX claim is ripe for review.

According to the Sixth Circuit’s opinion, a student, identified in the court documents as “Jane Roe,” reported alleged sexual misconduct by the plaintiff in December 2019. Pursuant to Roe’s request, the Title IX office did not immediately inform the plaintiff of the allegations or investigate. The plaintiff was notified of the complaint by email on February 4, 2020. He alleged the college’s failure to timely investigate prevented preservation of security footage.

The plaintiff claimed he had to hire a private investigator due to the lack of information from the college. He alleged Roe told his private investigator she planned to use the informal Title IX process.

Washington Appeals Court Rejects Juvenile’s Claim of Self Defense

March 28, 2023 | by Blair & Kim, PLLC

Washington self-defense is an affirmative defense. A person may lawfully use force when they are about to be injured to prevent or try to prevent an offense against their person, when the force used is not more than necessary. RCW 9A.16.020(3). Force is necessary when there does not appear to be a reasonably effective alternative and the force used is reasonable to the lawful purpose. RCW 9A.16.010(1). A juvenile recently appealed his adjudication of guilt of second degree assault, claiming the state failed to disprove he acted in self-defense.

The appeals court’s unpublished opinion stated the juvenile got into a verbal altercation at school with another juvenile, identified by the appeals court’s opinion, as “J.S.” The juvenile called the other student a homophobic slur. J.S. filed an incident report at the office.

They had a second altercation in the courtyard later that day. The juvenile again called the other student a homophobic slur. The other student advanced toward the juvenile. The juvenile tried to walk away. The juvenile started recording on his phone. The juvenile extended his arm as the other student approached, and the other student slapped him. They both went to the ground. The other student was on top and started hitting the juvenile. The other student did not have or threaten to use a weapon, but the juvenile pulled a knife from his pocket and stabbed the other student six times in eight seconds. The juvenile had not responded by pushing or hitting back, but just stabbed the other student. The two did not really know each other and had not spoken before the altercations.