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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.

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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.

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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.

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Washington family law recognizes Committed Intimate Relationships (“CIRs”), which are stable relationships, similar to a marriage, in which the parties live together knowing that they are not lawfully married.  CIRs have also been referred to as “meretricious relationships.” Washington courts consider five factors to determine if a CIR exists: whether the parties have continuously cohabitated, the length of the relation, the relationship’s purpose, whether the parties pooled their resources and services, and the parties’ intent.  If the court determines there is a CIR, it then must determine the parties’ interest in the property acquired during the CIR and distribute the property in a just and equitable manner.  Connell v. Francisco.

A man recently challenged a court’s finding of a CIR and division of property. The parties were in a romantic relationship from 2008 to September 2020, according to the appeals court’s unpublished opinion.  They purchased a home and lived together from December 2012 until they broke up.  The female partner made the down payment on the home, but they otherwise paid bills equally.  They had two children.

The female partner alleged the male partner committed domestic violence.  She petitioned for division of the property of a CIR.  She separately petitioned to establish parentage of the children and sought a parenting plan and dissolution of the CIR.

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A student pursuing a claim against their school based on disciplinary action arising from a Title IX complaint may also seek a temporary restraining order or injunction to stop a suspension or expulsion while their case is pending.  A student recently sought to enjoin a suspension.

The medical student filed suit against his private New York medical school after he was suspended for 20 months following a finding he was responsible for sexual misconduct.  He alleged that the school’s adjudication of the complaint violated Title IX and New York City Human Rights laws.  He also made a breach of contract claim.  He moved for a temporary restraining order and preliminary injunction to enjoin the suspension and reinstate him.

According to the court’s opinion, the plaintiff and the complainant, identified by the court as Jane Roe, were both students at the school.  After the graduation formal, several people went to the plaintiff’s apartment on campus.  Jane Roe asked to spend the night because she was intoxicated.  The plaintiff gave her a blanket and pillow and offered her the couch.

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A trial court in a Washington divorce has broad discretion to make a just and equitable property division.  RCW 26.09.080 sets forth certain factors that the court must consider in making a just and equitable property distribution, but those factors are not exclusive.  The trial court must consider the nature and extent of both the community property and any separate property, the length of the marriage, and each spouse’s economic circumstances when the division takes effect.  The court must fairly consider the circumstances and future needs of both parties. An appeals court generally affirms a property distribution unless there was a manifest abuse of discretion.  A manifest abuse of discretion occurs if there is a patent disparity in the economic circumstances of the parties as a result of the decree.  A former husband recently challenged a property division in which his former wife was awarded a $12,000 judgment.

The parties got married in April 2018 and separated in October 2020.  According to the appeals court’s unpublished opinion, they did not have many assets or debts.  They bought a home during the marriage. The wife transferred her interest in the home to the husband in 2019 via a quitclaim deed, though her reasons for doing so were in dispute.

The husband asked that the court award each party the bank and retirement accounts in their own name and the vehicle and any personal property in their possession. He asked the court to award him the home. He agreed to assume the community debt if he did not have to pay spousal maintenance.

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“Coercive control” was added to Washington’s definition of “domestic violence” in 2022.  Although the statute provides a number of examples of coercive control, there have been few appellate cases interpreting it.  In an unpublished opinion, a Washington appeals court recently reviewed a domestic violence protection order, granted partly upon a finding that the husband had engaged in acts of coercive control.

In her petition for a domestic violence protection order, the wife indicated the husband had or owned firearms and that his use of firearms or other dangerous weapons “would be a serious and immediate threat. . .”  The petition also stated he “threatened to ‘kill himself’ while holding a gun.” She also stated he would say he was a burden and should end his life about once a month.   The petition stated the husband had “23 failed suicide attempts from his childhood.” The wife alleged he had more than 15 firearms in the house, with at least three in the bedroom and that ammunition was nearby.  She stated she wanted a divorce but did not feel it would be safe to tell the husband while he had guns.

The husband denied the allegations.  He averred he had never threatened the wife.  He also averred he had never attempted to kill himself, pointed a firearm at his head and threatened to kill himself, or said he “should end [his] life.”

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Generally, Washington’s “corpus delicti” rule requires the state to prove that the crime occurred, independent of the defendant’s own statements.  The state must provide sufficient evidence in its case-in-chief.  However, if the defendant presents evidence during their case-in-chief, they waive the challenge to the sufficiency of the evidence as of that point and an appeals court may consider all of the evidence to determine if there was sufficient evidence to support an inference that the crime happened.

A defendant recently challenged his conviction for felony violation of a protection order, arguing the state had presented insufficient evidence of the knowledge element of the corpus delicti because it relied on statements he had made to the responding officer.

The defendant’s grandaunt obtained a temporary protection order prohibiting the defendant from coming within 1,000 feet of her home on January 18, 2022. According to the appeals court’s unpublished opinion, the next day she heard someone try to unlock her door and saw the defendant through the peephole.  She told him he was not supposed to be there and he had to leave.  He first sat down and smoked a cigarette before leaving.

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The Sixth Circuit recently determined a school can be liable in a Title IX case for not responding to social media activity by students.  A Nashville, Tennessee, high school student filed suit against the public school system, alleging it was deliberately indifferent to harassment related to her sexual assault and participation in the subsequent investigation.  She alleged the school system was deliberately indifferent before the assault and after the assault, and also alleged equal protection claims under 42 U.S.C. § 1983.

According to the Sixth Circuit’s opinion, a video was recorded of the plaintiff during a non-consensual sexual encounter and posted on social media and third party websites.  Other students harassed – the plaintiff.

The school’s Executive Principal learned about the video on the evening the incident occurred and the school set up a meeting with the plaintiff’s mother the next day.  The plaintiff and her family received harassment and threats from other students on social media. The mother made a list of students who made the threats.

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Trial courts have broad discretion to create a parenting plan, and abuse that discretion only if they make a decision that is manifestly unreasonable or based on untenable grounds or reasons.  In re Marriage of Littlefield. A mother recently appealed a parenting plan allowing the father parenting time on the Sabbath both parents claimed to observe according to the Seventh-day Adventist faith.

The final parenting plan identified the mother as the primary parent and the parties entered an order by agreement for the father’s visitation.

The father objected when the mother moved for relocation.  A temporary order allowed the move and gave the father one weekend a month for eight hours each on Friday, Saturday, and Sunday.

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