Seattle Attorneys Blog

2024 Title IX Final Rule

April 30, 2024 | by Blair & Kim, PLLC

The Department of Education has finally released the final rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (“Final Rule”). The Final Rule makes significant changes to the Title IX regulations that were previously amended under the Trump administration in 2020.

The Final Rule specifically provides that sex-based discrimination includes discrimination based on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” A number of lawsuits have already been filed challenging protections related to sexual orientation and gender identity.

The Final Rule includes a new definition of “sex-based harassment” and removes the current definition of “sexual harassment.” The definition identifies and defines three types of sex-based harassment: quid pro quo harassment, hostile environment harassment, and specific offenses. The specific offenses include sexual assault, dating violence, domestic violence, and stalking.

Washington Appeals Court Rules Against Retroactive Application of Law Excluding Juvenile Adjudications from Offender Score

April 21, 2024 | by Blair & Kim, PLLC

In 2023, the legislature amended RCW 9.94A.535(1)(b) to prohibit the inclusion of most prior juvenile adjudications in an offender score. A defendant recently challenged a sentence imposed in October 2022 because the court had included juvenile adjudications in his offender score.

Following an incident in May 2022, the defendant was found guilty of third degree theft and residential burglary. According to the appeals court’s opinion, the court included six juvenile adjudications in calculating the defendant’s offender score. He was sentenced in October 2022 to 364 days of confinement, which was suspended, for the theft conviction and 45 months of confinement for the residential burglary.

The defendant appealed, arguing that his offender score should be calculated without the previous juvenile adjudications based on RCW 9.94A.535(1)(b).

Washington Appeals Court Affirms Parenting Plan Awarding Residential Placement to Father

April 11, 2024 | by Blair & Kim, PLLC

Pursuant to RCW 26.09.191(5), a court in a Washington custody case may not draw presumptions from the provisions of the temporary parenting plan when it enters a permanent parenting plan. The court must instead base the permanent residential custody on the child’s best interest as determined at trial. The court generally must consider the factors set forth in RCW 26.09.187(3)(a), which relate to the child’s relationship with each parent, knowing and voluntary agreements between the parties, each parent’s performance of parenting functions, the child’s developmental level and emotional needs, the child’s relationship with significant people and involvement in activities and with the physical surroundings, the wishes of the parents and the child if mature enough, and each parent’s employment schedule. A mother recently challenged a parenting plan, arguing the trial court had improperly drawn presumptions from the temporary plan and had improperly applied the factors.

According to the appeals court’s opinion, the original parenting plan in Arizona granted substantially equal parenting time. The father had moved to Spokane by the time it was entered.

The father petitioned for modification in Spokane County, alleging the mother had moved to Virginia. A temporary parenting plan gave him primary placement and allowed the mother visitation in Spokane. Three factors were at issue in the appeal.

Washington Supreme Court Addresses Students’ Due Process Rights in Disciplinary Actions

March 31, 2024 | by Blair & Kim, PLLC

The Washington Supreme Court has recently decided a case involving school discipline. A Washington public school student filed suit after being suspended and not allowed to return to in-person school after the suspension was over.

The Court noted that students facing suspension are entitled to due process because they have a property interest in their educational benefits. Students also have statutory protections in Washington.

RCW 28A.600.015 requires the superintendent of public instruction to adopt rules regarding the substantive and procedural due process rights of students. The rules may allow a district to use informal due process procedures for short-term suspensions, if the superintendent determines that the students’ interests are adequately protected. The law prohibits a suspension or expulsion from being indefinite. Short-term suspension procedures apply for suspensions up to 10 consecutive school days. Emergency removal must be converted to another form of corrective action within 10 school days if they do not end within that timeframe. The law also prohibits schools from using long-term suspension or expulsion as discretionary discipline.

Washington Appeals Court Reverses Conviction for Violation of a No-Contact Order

March 21, 2024 | by Blair & Kim, PLLC

Washington felony violation of a court order occurs when a person, who has at least two previous convictions for violating a court order, knows a no-contact order exists and knowing violates a provision of it. Willful violation of a court order occurs when a person has willful contact with another that is prohibited by a valid court order and the person has knowledge of the order. Accidental contact is not willful. A person must both know of the no-contact order and intend the contact. Washington case law has held that proof that the defendant acted knowingly constitutes proof they acted willfully. Previous Washington cases have held that the defendant does not have to have specific knowledge of the terms of a no-contact order, but instead must have knowledge of the no-contact order and know that the willful contact violated it.

A defendant recently appealed his conviction, arguing the prosecution had misstated the law regarding the meaning of “knowingly.” He was charged with two counts of violation of a court order – domestic violence. According to the appeals court’s published opinion, the protected party under the no-contact order testified that she heard knocking on her bedroom window and saw the defendant outside. She called the police. She also testified that she received two text messages that she translated and summarized as saying “he hates me for everything I’ve done to him, for not letting him see the kids.” She further stated that he hoped the kids started hating her for not letting them see their father.

The state’s closing arguments included multiple statements about the knowledge requirement of violation of a no-contact order. The state stated “This element does not say [the defendant] knew of the provisions of this order and knowingly violated this order. The knowing part refers solely to the violation.” The state further stated, “What I have to prove to you is that [the defendant] knowingly violated a provision of this order.”

Washington Mother Required to Undergo Specific Type of Therapy to Have Equal Residential Time

March 14, 2024 | by Blair & Kim, PLLC

In a recent Washington custody case, a mother challenged a parenting plan that required her to undergo a particular form of therapy to receive equal residential time with the child. An appeals court reviews the provisions of a parenting plan under a manifest abuse of discretion standard, meaning the trial’s decision is manifestly unreasonable or based on untenable grounds or reasons.

The parents were in a committed intimate relationship from the middle of 2015 to late 2018. They had a child in September 2017. Each party had alleged intimate partner violence against the other. The mother was arrested for domestic violence in September 2018, but the father’s petition for a protection order was dismissed for lack of evidence.

The mother petitioned for a parenting plan, among other things. The court entered a temporary parenting plan that gave the parties equal residential time and joint education and healthcare decision-making. The court appointed a parenting coordinator who conducted a parenting evaluation.

Washington Appeals Court Determines Fenced Yard Is Not Dwelling under Residential Burglary Statute

March 7, 2024 | by Blair & Kim, PLLC

Under Washington criminal law, a defendant commits residential burglary if they enter or unlawfully remain in a dwelling, other than a vehicle, with the intent to commit a crime against a person or property inside. RCW 9A.52.025. To convict a defendant of residential burglary, the state must prove that the defendant entered a dwelling, while other forms of burglary only require the state to prove the defendant entered a building. A defendant recently challenged his conviction of residential burglary, arguing a fenced back yard was not a dwelling.

According to the opinion of the appeals court, which considered the facts in a light most favorable to the prosecution, a homeowner saw the defendant attempting to enter the home’s back door. The homeowner testified the defendant had a hammer and a crowbar and was striking the deadbolt. The defendant saw the homeowner and stopped and ran. The homeowner tripped him in the front yard and he dropped his bag and the crowbar. The homeowner testified the defendant tried to hit him with the crowbar and bite him. The homeowner held his arm around the defendant’s neck until the police got there.

The defendant was ultimately charged with residential burglary, possession of burglary tools, third degree assault, and two counts of bail jumping.

Title IX Final Rule on Sex-Based Discrimination Submitted for OIRA Review

February 26, 2024 | by Blair & Kim, PLLC

The Department of Education submitted the “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” final rule to the Office of Information and Regulatory Affairs (“OIRA”) for review on February 2, 2024, according to a government website.

The final rule is expected to undo many of the changes made in the 2020 final rule. The new final rule has been delayed multiple times since the publication of the draft rule in July 2022. The final rule was originally expected to be published in May 2023, but the Department of Education pushed that date back to October 2023 after receiving an exceptionally large number of comments during the public comment period. It was subsequently delayed again, with a new anticipated publication date of March 2024.

Although the final rule has been submitted to OIRA, it still may not meet the expected March 2024 publication date. According to Executive Order 12866, OIRA has 90 days to complete its review, but that timeframe may be extended. Interested parties can request to meet with OIRA during its review. Given the high number of public comments received during the comment period for the draft rule, there may also be significant interest in meeting with OIRA regarding the final rule. It is therefore likely that the OIRA will not complete its review in time for the final rule to be published by March 2024.

Duty of Prosecution to Preserve Evidence in Washington Criminal Case

February 25, 2024 | by Blair & Kim, PLLC

The Due Process Clause of the Fourteenth Amendment requires criminal defendants to have “a meaningful opportunity to present a complete defense.” The prosecution generally has a duty to preserve evidence, but it is not absolute. State v. Wittenbarger. The state’s failure to preserve “material exculpatory evidence” generally requires dismissal, but a failure to preserve “potentially useful evidence only requires dismissal if the state acted in bad faith. Potentially useful evidence is evidence that could have been subjected to tests which might have exonerated the defendant. State v. Groth.

A Washington criminal defendant recently appealed his drug and gun-related convictions after the police department allowed the vehicle in which he was found to be towed from its lot.

According to the appeals court’s opinion, the defendant was arrested on a warrant after a police officer found him sleeping in a vehicle. The officer testified that he found significant amounts of cash and drugs in the defendant’s pocket in a search incident to arrest. The drugs subsequently tested positive for methamphetamine and fentanyl. The officer found paraphernalia, including a box of baking soda, in the car and a revolver in a bag in front of the driver’s seat.

Washington Appeals Court Concludes Defendant Knew of No-Contact Orders He Did Not Sign

February 20, 2024 | by Blair & Kim, PLLC

During the COVID-19 pandemic, courts adopted a number of policies and procedures to prevent infection. A defendant recently appealed his convictions for violation of a no contact order, challenging whether the state proved he had knowledge of the order when he had not signed it during COVID-19 protocols.

According to the appeals court’s opinion, a 2020 domestic violence no-contact order prohibited the defendant from contacting the ex-girlfriend until 2025. In October 2021, the two got into an argument. The ex-girlfriend called 911 and reported that the defendant had strangled her.

The responding officer observed that the ex-girlfriend was “very nervous” and appeared fearful and like she had been crying. He testified she told him the defendant strangled her. He did not see any injuries.